ition No 1177 of 1979
Under Article 32 of the Constitution of India
Soli J Sorabjee Harish N Salve and Laxmi Kant Pandey for the Petitioner
K Parasaran Attorney General TS Krishnamurty Iyer and Miss A Subhashini for the Respondents
627 The Judgment of the Court was delivered by CHANDRACHUD CJ
The petitioner Dr P Nalla Thampy Thera is not an intermeddler or busy body
He is a public spirited citizen whose motives in filing this petition are to be admired even if his contentions may not merit acceptance
By this petition under Article 32 of the Constitution he challenges the validity of Explanation I to section 771 of the Representation of the People Act 1951 hereinafter referred to as the Act which gives a carte blanche to political parties to spend unlimited monies for the election of the candidates sponsored by them
In practice insofar as our little knowledge of political affairs goes sky is the limit for such expenditure Some call it millions some call it billions
The particular provision of the statute which is under consideration here has a short though significant history
A judgment of this Court led to its enactment
That judgment to which one of us Bhagwati J was a party was delivered on October 3 1974 in Kanwar Lal Gupta vs Amar Nath Chawla
Section 771 of the Act as it stood then read thus Every candidate at an election shall either by him self or by his election agent keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof both dates inclusive Section 773 provides that the total of the said expenditure shall not exceed such amount as may be prescribed that is to say the amount prescribed by the Rules framed under the Act
The expenditure prescribed for a Parliamentary constituency in the Union Territory of Delhi was Rs 10000
The question before the Court in Kanwar Lal Gupta was whether the successful candidate Amar Nath Chawla had incurred or authorised expenditure in connection with his election exceeding the ceiling of Rs 10000
Noting that what section 771 prohibited was not only the incurring but also the authorising of excessive expenditure and that such authorising may be implied or express the Court observed 628 When the political party sponsoring a candidate incurs expenditure in connection with his election as distinguished from expenditure on general party propaganda and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in it it would be reasonable to infer save in special circumstances that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure but his political party has done so
A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate
The same proposition must also held good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate
This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money On November 7 1974 Bill No 104 of 1974 was introduced in the Lok Sabha in order to get over the judgment in Kanwar Lal Gupta
The Statement of Objects and Reasons of that Bill reads thus STATEMENT OF OBJECTS AND REASONS Section 77 of the Representation of the People Act 1951 provides that the total of the expenditure in connection with an election incurred or authorized by the candidate or his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof shall not exceed such amount as may be prescribed
Rule 90 of the Conduct of Elections Rules 1961 seeks to lay down the maximum election expenses for a parliamentary constituency and an Assembly constituency in respect of 629 various States and the Union territories
Clause 6 of section 123 of the Representation of the People Act has specifically included the incurring or authorizing of expenditure in contravention of section 77 as a corrupt practice which if established would not only vitiate the election but also result in disqualifying the candidate for a period of six years under section 8A of the said Act
In the Election Law the emphasis has been on imposing a curb on an individual incurring expenditure in connection with his election in excess of the prescribed limit
The provision contained in section 77 of the Act is very specific in this respect and the intention that the curb is on the expenditure incurred or authorized by the candidate has found support in the judicial pronouncements on the point
The expression incurred or authorized had not been construed so as to bring within its purview the expenditure incurred by a political party in its campaign or by any person other than the candidate unless incurred by such third person as the candidate s agent
In other words the provisions of section 77 and clause 6 of section 123 have been intended and understood to be restraints on the candidate s election expenditure and not on the expenditure of a political party
However in the recent case of Kanwar Lal Gupta vs AN Chawla and Others Civil Appeal No 1549 of 1972 decided on 3rd October 1974 the Supreme Court has interpreted the aforementioned expression incurred or authorized as including within its scope expenses incurred by a political party or other person referred to above
In view of the effect which such interpretation might have particularly with reference to the candidates against whom election petitions are pending it became urgently necessary to clarify the intention underlying the provisions contained in section 77 of the Representation of the People Act 1951 namely that in computing the maximum amount under that section any expenditure incurred or authorized by any other person or body of persons or political parties should not be taken into account
As Parliament was not in session the President 630 promulgated on 19th October 1974 the Representation of the People Amendment Ordinance 1974
The Bill seeks to replace this Ordinance By section 2 of the Amending Act which is called
The Representation of the People Amendment Act 1974 two Explanations were added to section 771 out of which Explanation 1 is directly relevant for our purpose
Those Explanations read thus Explanation 1
Notwithstanding any judgment order or decision of any court to the contrary any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual other than the candidate or his election agent shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this subsection Provided that nothing contained in the Explanation shall affect a any judgment order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People Amendment Ordinance 1974 b any judgment order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance if no appeal has been preferred to the Supreme Court against such judgment order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement
631 Explanation 2
For the purposes of Explanation 1 political party shall have the same meaning as in the Election Symbols Reservation and Allotment Order 1968 as for the time being in force
 The argument of Mr Sorabjee who appears on behalf of the petitioner may be summed up thus 1 It is the essence of fair elections that any individual or any political party howsoever small should be able to contest an election on a footing of equality with any other individual or political party howsoever rich and well financed it may be and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength
2 The rationale of imposing a limit on expenditure incurred or authorised by a candidate in an election is to eliminate as far as possible the pernicious influence of big money in the electoral process which leads to the worst form of political corruption
Limitation on election expenditure is imperative for ensuring the purity of the electoral process
3 It is indisputable that availability of large funds and resources to an individual backed by a political party supporting him would confer greater and undue advantage on him over an individual who is without any links with affluence or wealth
4 Such a consequence is anti democratic because it denies to the citizen the right to have full and effective participation in the electoral process
5 Explanation 1 to section 771 strikes at the very heart of democracy inasmuch as is not only permits but encourages and legitimises the influence of big money in the electoral process and thus militates against the fairness and purity of the electoral process
Furthermore it makes a mockery of and nullifies the salutary object of imposing a ceiling on a candidate s expenditure which provision is a beneficent provision enacted in the interests of purity and genuineness of the democratic process
The impugned provision far from suppressing the mischief of baneful influence of big money directly promotes it and thereby sullies the purity of the electoral process
Consequently it goes against the basic requirement of the Constitution  and violates a basic and essential feature of the Constitution and consequently is arbitrary
6 The impugned provision is further violative of article 14 because it sanctions serious discrimination between one political party or individual and another on the basis of money power
It makes the wealth of affluence of the political party supporting the candidate the decisive factor in the outcome of elections
It introduces wealth and affluence as a measure of a candidate s qualifications or prospects of 632 success which is to introduce a capricious or irrelevant factor 
7 Once the franchise is granted to the electorate provisions may not be made nor conditions imposed which are inconsistent with article 14 of the Constitution irrespective of the fact that the right of franchise is not a fundamental right guaranteed in Part III of the Constitution
Shri Krishnamoorthy Iyer who appears on behalf of the Union of India contends that Explanation 1 to section 771 of the Act was introduced in order to restore the law as expounded in the decisions of this Court prior to the decision in Kanwar Lal Gupta
Those decisions according to learned counsel are Rananjaya Singh vs Baijnath Singh Ram Dayal vs Brijraj Singh and Magraj Patolia vs RK Birla
It is urged that though these decisions have been considered in Kanwar Lal Gupta the Court was not right in holding that the view taken in those decisions was not at variance with the view taken by it
In support of this argument our attention was drawn to the observations made by Beg J in Smt
Indira Gandhi vs Raj Narain to the following effect After examining the catena of cases I think with great respect that the decision of this Court in Kanwar Lal Gupta s case could be understood to point in a direction contrary to that in which the previous cases were decided
Hence it appears to me that the amendment made by Act 58 of 1974 by adding the Explanation 1 to Section 77 of the Act could be justified as merely an attempt to restore the law as it had been understood to be previous to the decision of the Court in Kanwar Lal Gupta s case
 Counsel also relies on various decisions of the High Courts in which it was held prior to the introduction of Explanation 1 to section 771 that the expenses incurred by political parties in connection with the election of their candidates do not fall within the mischief of section 771 read with section 1236 of the Act
The provision contained in Explanation 1 is attempted to be justified by the respondents on the ground that political parties have come to stay in our 633 country that they are indispensable for the proper functioning of democracy and therefore no exception can be taken if a political party incurs expenditure to ensure the success of the candidates sponsored by it
Explanation 1 treats all political parties equally and no violation of Article 14 is involved
Counsel contended finally that legislative policies bearing upon matters governing elections are not open to judicial review
The principal theme of the petitioner s argument is purity of the election process 
All other arguments converge upon that theme and are intended to give strength and succour to it
There is a vast amount of literature on the need to preserve the purity of elections
There is a perceptible awareness amongst political observers if not amongst active politicians that one of the ways to ensure that elections are free and fair is to weed out the influence of big money which to use an expression which has become a household word is more black than white
The Lok Sabha Debates while Explanation 1 was being added to section 771 of the Act show that there was a consensus amongst the Members of the House that election expenses must be effectively controlled which was also reflected in the fact that in almost all countries of the world where representative form of Government prevails provisions as to election expenses are invariably made
On October 18 1979 the Election Commission of India circulated a letter to all recognised national and State parties proposing revision of the maximum limits of election expenses
In the Notes  appended to that letter the Commission says that the election expenditure should be at such reasonably low level as not to defeat the very purpose of fixing a ceiling on election expenses ie curbing the influence of money power  on elections
While the Janata Government was in power it had introduced Bill No 153 of 1977 to amend the Act by deleting inter alia Explanation 1 which was introduced in Section 771 by Amending Act 58 of 1974
The Statement of Objects and Reasons of that Bill insofar as it relates to the proposed deletion of Explanation 1 says It is considered that the amendments made in the Representation of People Act 1951 far from ensuring free and fair elections may have the effect of increasing money power
It is therefore proposed to amend the Act to restore the position that obtained earlier
The Bill eventually lapsed
In Kanwar Lal Gupta one of us Bhagwati J observed 634 The other objective of limiting expenditure is to eliminate as far as possible the influence of big money in the electoral process
If there were no limit on expenditure political parties would go all out for collecting contributions and obviously the largest contributions would be from the rich and affluent who constitute but a fraction of the electorate
The pernicious influence of big money would then play a decisive role in controlling the democratic process in the country
This would inevitably lead to the worst form of political corruption and that in its wake is bound to produce other vices at all levels P 266 In Vatal Nagaraj vs R Dayanand Sagar Krishna Iyer J speaking for the Court observed Money power casts a sinister shadow on our elections and the political payoff of undue expenditure in the various constituencies is too alluring for parties to resist temptation 
The likely evasion of the law by using big money through political parties is a source of pollution of the Indian political process
To channel funds into the campaign for specific candidates getting around the requirements of the law by establishing party committees is all too familiar in this and some other countries
 The decision of the Bombay High Court in Tata Iron  Steel Co Ltd exhibiting considerable uneasiness of mind and a sinking feeling in the heart expressed the view that any attempt on the part of any business house to finance a political party is likely to contaminate the very spring of democracy
In Indian Iron and Steel Co Ltd the Calcutta High Court pointed out the dangers involved in political parties being financed for election purposes by large business houses
The High Court observed in the bid for political favouritism by the bait of money the company who will be the highest bidder may secure the most unfair advantage over the rival trade companies
The Court lamented that such a state of affairs 635 will mark the advent of the voice of the big business in politics and pollute the political life of the country
The Report of the Santhanam Committee on Prevention of Corruption says The public belief in the prevalence of corruption at high political levels has been strengthened by the manner in which funds are collected by political parties especially at the time of elections
Such suspicions attach not only to the ruling party but to all parties as often the opposition can also support private vested interests as well members of the Government party
It is therefore essential that the conduct of political parties should be regulated in this matter by strict principles in relation to collection of funds and electioneering
It has to be frankly recognised that political parties cannot be run and elections be fought without large funds
But these funds should come openly from the supporters or sympathisers of the parties concerned
If even one family in three pays one rupee a year to a political party the total annual contribution will be more than what is needed for all legitimate purposes of all political parties in India
It is the reluctance and inability of these parties to make small collections on a wide basis and the desire to resort to short cuts through large donations that constitutes the major source of corruption and even more of suspicion of corruption
 The Report of the Expert Committee headed by Justice Sacher on Companies and MRTP Acts  deals extensively with the evils flowing out of the donations made to political parties by big business houses and points out the dangers involved in allowing the money power to play a role in the electoral process of our country
paragraph 1312
The Committee recommended that section 293A of the Companies Act which prohibited contribution by companies to political parties should be further strengthened in the manner indicated by it in paragraph 1318
636 In England before the passing of the Representation of the People Act 1949 the view had been expressed that expenses incurred without the authority of the candidate or election agent for promoting or procuring the election of a candidate might not require to be returned as election expenses provided the expenses were incurred by persons who were outsiders not agents and accordingly did not have any part in the conduct or management of the election
It is now provided by the aforesaid Act that certain expenses with a view to promoting or procuring the election of a candidate at an election must not be incurred by any person other than the candidate his election agent and persons authorised in writing by the election agent
If any person incurs or aids abets counsels or procures any other person to incur any expenses in contravention of this provision he is guilty of a corrupt practice
See Halsbury s Laws of England Fourth Edition Volume 15 paragraph 721
We have referred to this large data in order to show that the influence of big money on the election process is regarded universally as an evil of great magnitude
But then the question which we as Judges have to consider is whether the provision contained in Explanation 1 suffers from any constitutional infirmity and particularly whether it violates Article 14
On that question we find it difficult reluctantly though to accept the contention that Explanation 1 offends against the right to equality
Under that provision i a political party or ii any other association or body of persons or iii any individual other than the candidate or his election agent can incur expenses without any limitation whatsoever in connection with the election of a candidate
Such expenses are not deemed to be expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purposes of section 771
It is urged that by reason of this provision affluent political parties get an unequal and unfair advantage over other parties or associations which do not command the same money power and therefore the guarantee of equality is violated
The answer to this contention is that Explanation 1 classifies all political parties or associations in one group and confers upon them the same or similar advantage
Political parties or politically motivated associations or bodies of persons or individuals interested in political happenings are characterised by common attributes the dominant attribute being that they engage themselves in activities of a political nature
Elections constitute the core of such activities
A classification of this nature bears reasonable relationship with the 637 object of the statute that expenses incurred by those who fall within the particular group should not be regarded as expenditure incurred or authorised by the candidate or his election agent
It is then no answer to say that all political parties are not equally situated in the wealth which they command
Were such an argument open the limit set upon election expenses by Rule 90 shall also have to be regarded as violative of the guarantee of equality because a fairly large number of contesting candidates particularly the independents would not be in a position to spend as large an amount as rupees one lakh which is the permissible limit in large constituencies
Classification has to be broadly reasonable in order to sustain the challenge of unconstitutionally
One cannot dissect that process and discover shades within shades to nullify it on the ground of inequality
It is a stark fact of life that an independent who contests an election on his own that is without the support of a political party is at a considerable disadvantage as compared with candidates supported by political parties
But that does not violate the rule of equality
It is not the election law which creates such inequalities
Inequalities exist apart from that law and are unfortunately implicit in the unequal positions in which the citizens find themselves
What the law does is to allow in an equal measure all political parties associations or bodies of persons or individuals other than the candidate or his election agent to incur expenses in connection with the election of a candidate which need not be included in the return of election expenses which the candidate is required to file
Though Explanation 1 clubs associations bodies of persons and certain individuals together with political parties it is plain that the benefit conferred by that provision goes largely though not exclusively to political parties
It is the political parties which sponsor candidates that are in a position to incur large election expenses which often run into astronomical figures
We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses is so unreasonable or arbitrary as to justify the preference being struck down upon that ground
In the first place the statute does not make the affluence of a political party an electoral standard for acquiring eligibility prescribed by the Explanation
Secondly it is not an unwise policy to the extent that we can examine the wisdom of legislative policies to ensure reasonable reduction in the number of contesting candidates which can be done by conferring special privileges upon political parties
It is a matter of common knowledge that in the 638 recent elections to the Lok Sabha and the Legislative Assemblies the printing of the ballot papers posed a serious problem to the Election Commission since the number of contesting candidates in certain constituencies was absurdly large
In any democratic system of Government political parties occupy a distinct and unique place
They are looked upon as guardian angels by their members though occasionally they fail to discharge the benign role of a guardian leave alone the angelic part of it
It is through them that the generality of people attempt to voice or ventilate their grievances
Considering also the power which they wield in the administration of Governmental affairs a special conferment of benefits on them in the matter of modalities governing the election process cannot be regarded as unreasonable or arbitrary
That may perhaps help explain why in Kanwarlal Gupta the Court drew a distinction between the expenses incurred by a political party specifically in connection with the election of a particular candidate and the expenditure incurred by it on general party propaganda the latter not being includible in the return of election expenses which the candidate has to file
The rationale of that decision though not expressed in so many words is that by reason of the important position which political parties occupy in the democratic set up they are entitled to incur expenditure for projecting their programmes and popularising their policies
Explanation 1 only takes one step ahead important though
It obliterates the dividing line drawn in Kanwarlal Gupta between expenses incurred in connection with  the election of a particular candidate and expenses incurred on general party propaganda 
All persons except the candidate and his election agent are now free to incur expenditure of the former kind too without the constraints of ceiling imposed upon election expenditure by section 773 read with Rule 90 of the Conduct of Election Rules 1961
Whether Explanation I restores the law as it was understood before Kanwarlal Gupta or it makes an innovation is irrelevant for deciding upon its validity
Every law whether restorative or innovative has to be tested on the touchstone of the Constitution
It is evident that a certain class of individuals has been included in Explanation 1 out of abundant caution so as to avoid the challenge that they have been discriminated against in comparison with political parties and associations or bodies of persons
It is true that individuals cannot match their spending ability with the 639 financial prowess of political parties or trade unions
But that takes one back to the same point though in a different garb All political parties are not equally affluent and therefore those that command big money get an unfair advantage over the others
Election laws are not designed to produce economic equality amongst citizens
They can at best provide an equal opportunity to all sections of society to project their respective points of view on the occasion of elections
The method somewhat unfortunate by which law has achieved that purpose is by freeing all others except the candidate and his election agent from the restriction on spending so long as the expenditure is incurred or authorised by those others
The argument that individuals are not able to reap the benefit of Explanation 1 effectively by reason of the paucity funds at their command has the same answer as the argument that every contesting candidate cannot afford to spend as large a sum as rupees one lakh and therefore those who can spend that much have an unfair advantage over those who cannot
If the argument that different political parties have been treated equally though they are situated unequally or that individuals have been discriminated against either inter se or in relation to political parties and associations to correct the only method which would measure up to the required constitutional standard is the one in which the State would have to allocate funds from its own exchequer in order to enable the various candidates to contest elections
That would be the fairest form of fairness
But that is a far cry
Counsel for the petitioners urged that Explanation 1 renders the main provision in section 771 nugatory by taking away with one hand what is given by the other
Assuming that this is so the Explanation would not become unconstitutional for that reason
The argument really hears upon the interpretation of the section and the Explanation and not upon the validity of the Explanation
We do not agree that the Explanation denudes the section of its meaning and makes it purposeless
Section 771 deals with the expenditure incurred or authorised by  a candidate or his election agent in connection with the election
It is obligatory to keep a separate and correct account of such expenditure
Explanation 1 deals with the expenditure incurred or authorised by a political party or any other association or body of persons or by an individual other than the candidate or his election agent
It is not obligatory for the candidate or his election agent to keep a separate and correct account of such expenditure
That is because of two reasons
In the first 640 place such expenditure is not incurred or authorised by the candidate or his election agent and therefore in the very nature of things they cannot keep an account of that expenditure
Secondly the argument that expenditure of the kind described in Explanation 1 must be deemed to be incurred or authorised by the candidate or his election agent is met by the provision in the Explanation that it shall not be so deemed
Section 771 on the one hand and Explanation 1 on the other deal with two different situations wherefore the latter cannot render the former meaningless
While we are on this question we would like to point out that if an expenditure which purports to have been incurred for example by a political party has in fact been incurred by the candidate or his election agent Explanation 1 will not be attracted
It is only if the expenditure is in fact incurred or authorised by a political party or any other association or body of persons or by an individual other than the candidate or his election agent that the Explanation will come into play
The candidate cannot place his own funds in the power or possession of a political party or a trade union or some other person and plead for the protection of Explanation 1
The reason is that in such a case the incurring of the expenditure by those others is a mere facade
In truth and substance the expenditure is incurred by the candidate himself because the money is his
What matters for the purpose of Explanation 1 is not whose hand it is that spends the money
The essence of the matter is whose money it is
It is only if the money expended by a political party for example is not laid at its disposal by the candidate or his election agent that Explanation 1 would apply
In other words it must be shown in order that Explanation 1 may apply that the source of the expenditure incurred was not the candidate or his election agent
What is important is to realise that Explanation 1 does not create a fiction
It deals with the realities of political situations
It does not provide that the expenditure in fact incurred or authorised by a candidate or his election agent shall not be deemed to be incurred or authorised by them if the amount is defrayed by a political party
That would be tantamount to creating a fiction
The object of the Explanation is to ensure that the expenditure incurred for example by a political party on its own that is without using the funds provided by the candidate or his election agent shall not be deemed to be expenditure incurred or authorised by the candidate or his election agent
If the expenditure is incurred from out of the funds provided by the candidate or his election agent 641 section 771 and not Explanation I would apply
It is necessary to make this clarification since the use in Explanation 1 of expressions which are generally used when the legislative intent is to create a fiction is apt to cause confusion and misunderstanding
The reason why the expression shall not be deemed to be is used in Explanation 1 is that the Parliament wanted to get over the effect of the judgment of this Court in Kanwar Lal Gupta
Similarly the reason why the expression shall not ever be deemed to have been is used in the Explanation is that the intention of the Parliament was to get over the effect of that judgment retrospectively except to the extent mentioned in clauses a and b of the Proviso to the Explanation
It is essential that the limited range of Explanation 1 ought not to be enlarged
The ceiling placed on election expenses is a basic commandment of the Act not a pious edict
Its object is to keep a check on the expenditure incurred by candidates on their own elections directly or through their election agents
They cannot be permitted to resort to subterfuges in order to evade the restraint imposed by sections 771 and 773 of the Act
Homage to the principle of free and fair elections has to be real not formal
The petitioner is not unjustified in criticising the provision contained in Explanation 1 as diluting the principle of free and fair elections which is the cornerstone of any democratic polity
But it is not for us to lay down policies in matters pertaining to elections
If the provisions of the law violate the Constitution they have to be struck down
We cannot however negate a law on the ground that we do not approve of the policy which underlies it
Can the Court for example strike down Rule 90 on the ground that the limit of rupees one lakh is too high in the Indian context  We may have our own preferences and perceptions but they cannot be used for invalidating laws
In so far as election laws are concerned there is yet another impediment to contend with
The right to contest and election or to vote at it is not a Common Law right
As observed by Chinnappa Reddy J in Jyoti Basu vs Debi Ghosal A right to elect fundamental though it is to democracy is anomalously enough neither a funda 642 mental right nor a Common Law Right
It is pure and simple a statutory right
So is the right to be elected
So is the right to dispute an election
Outside of statute there is no right to elect no right to be elected and no right to dispute an election
Statutory creations they are and therefore subject to statutory limitation
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied
A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those relating to the trial of election disputes is what the statute lays down
We have already referred to the Scheme of the Act
We have noticed the necessity to rid ourselves of notions based on Common Law or Equity
We see that we must seek an answer to the question within the four corners of the Statute
What does the Act say  What does the Act say  It says through Explanation 1 that persons other than the candidate or his election agent may on their own release their purse strings and never tie them again
We have already said that the question as regards the constitutional validity of Explanation 1 has to be determined regardless of the consideration as to whether the said Explanation restores the law as it stood before the decision of this Court in Kanwar Lal Gupta or whether it introduces a new provision altogether
We have decided upon the constitutionality of the Explanation on its own terms
It is therefore unnecessary to consider the pre Explanation decisions of this Court in Rananjaya Singh vs Baijnath Singh Ram Dayal vs Brijraj Singh and Magraj Patolia vs RK Birla except to extract a passage from the last of these three cases which reads thus Now coming to the corrupt practice of incurring expenditure beyond the prescribed limit in several decisions this Court has ruled that it is not sufficient for the petitioners to prove merely that the expenditure more than the prescribed limit had been incurred in connection with the election  he must go further and prove that the 643 excess expenditure was incurred with the consent or under the authority of the returned candidate or his election agent
 In the result the Writ Petition and the Civil Miscellaneous Petitions are dismissed
There will be no order as to costs
APJ Petition dismissed


Summary:
Section 771 of the Representation of the People Act 1951 provides that every candidate at an election shall either by himself or by his election agent keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof both dates inclusive
Section 773 provides that the total of the said expenditure shall not exceed such amount as may be prescribed by the Rules framed under the Act
In Kanwarlal Gupta the Court observed that when the political party sponsoring a candidate incurs expenditure in connection with his election as distinguished from expenditure on general party propaganda and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in it it would be reasonable to infer save in special circumstances that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure but his political party has done so
In order to get over the judgment in Kanwarlal Gupta the Representation of the PeopleAmendment Ordinance 1974 was issued which was replaced by the Representation of the People Amendment Act 1974
Section 2 of the Amending Act added two Explanations to section 771
Explanation 1 provides that notwithstanding any judgment order or decision of any court to the contrary any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any individual other than the candidate or his election agent shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purpose of sub Section 1 of Section 77
623 In the writ petition under article 32 the petitioner challenged the validity of Explanation 1 to section 771 of the Representation of the People Act 1951 on the grounds i that it enables political parties to spend unlimited monies for the election of the candidates sponsored by them ii that this is arbitrary and violative of article 14 because it sanctions serious discrimination between one political party or individual and another on the basis of money poweriii that it not only permits but encourages and legitimises the influence of big money in the electoral process and thus militates against the fairness and purity of the electoral process iv that it denies to the citizen right to have full and effective participation in the electoral process and v that it nullifies the salutary object of imposing a ceiling on a candidate s expenditure
On behalf of the respondent Union of India it was contended i that Explanation 1 to section 771 of the Act was introduced to restore the law as expounded in the decisions of this Court prior to the decision in Kanwarlal Gupta ii that the expenditure incurred by political parties in connection with the election of their candidates do not fall within the mischief of section 771 read with section 1236 of the Act iii that Explanation 1 is not violative of article 14 and iv that legislative policies bearing upon matters governing elections are not open to judicial review
Dismissing the Writ Petition and CMPs
  HELD 1
Explanation 1 to section 771 of the Representation of the People Act 1951 neither suffers from any constitutional infirmity nor it violates article 14
Explanation 1 classifies all political parties or associations in one group and confers upon them the same or similar advantage
Political parties or politically motivated associations or bodies of persons or individuals interested in political happenings are characterised by common attributes the dominant attribute being that they engage themselves in activities of a political nature
Elections constitute the core of such activities
A classification of this nature bears reasonable relationship with the object of the statute that expenses incurred by those who fall within the particular group should not be regarded as expenditure incurred or authorised by the candidates or his election agent
Classification has to be broadly reasonable in order to sustain the challenge of unconstitutionality
One cannot dissect that process and discover shades within shades to nullify it on the ground of inequality
636 G H 637 AC 2
Explanation 1 to section 771 of the Act says that a political party or any other association or any individual other than the candidate or his election agent can incur expenses without any limitation whatsoever in connection with the election of a candidate
Such expenses are not deemed to be expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purpose of section 771
636 E F 3
As independent candidate who contests an election without the support of a political party is at a considerable disadvantage as compared with candidates supported by political parties
But that does not violate the rule of equality
It is not the election law which creates such inequalities
Inequalities 624 exist apart from that law and are implicit in the unequal positions in which the citizens find themselves
What the law does is to allow in an equal measure all political parties associations or bodies or persons or individuals other than the candidate or his election agent to incur expenses in connection with the election of candidate which need not be included in the return of election expenses which the candidate is required to file
637 C E 4
Preferring political parties for exclusion from the sweep of monetary limits on election expenses is not so unreasonable or arbitrary as to justify the preference being struck down upon that ground because the statute neither makes the affluence of a political party and electoral standard for acquiring eligibility prescribed by the Explanation nor is it an unwise policy to ensure reasonable reduction in the number of contesting candidates which can be done by conferring special privileges upon political parties
In any democratic system of government political parties occupy a distinct and unique place
It is through them that the people attempt to voice or ventilate their grievances
Considering the power which they wield in the administration of governmental affairs a special conferment of benefits on them in the matter of modalities governing the election process cannot be regarded as unreasonable or arbitrary
637 G H 638 B C 5
In Kanwarlal Gupta the Court drew a distinction between the expenses incurred by a political party specifically in connection with the election of a particular candidate and the expenditure incurred by it on general party propaganda the latter not being includible in the return of election expenses which the candidate has to file
The rationale of that decision is that by reason of the important position which political parties occupy they are entitled to incur expenditure for projecting their programmes and popularising their policies
Explanation I obliterates the dividing line drawn in Kanwarlal Gupta between expenses incurred in connection with  the election of a particular candidate and expenses incurred on general party propaganda 
All persons except the candidate and his election agent are now free to incur expenditure of the former kind too without the constraints of ceiling imposed upon election expenditure by section 773 read with Rule 90 of the Conduct of Election Rules 1961
638 C E 6
Whether Explanation I restores the law as it was understood before Kanwarlal Gupta or it makes an innovation is irrelevant for deciding upon its validity
Every law whether restorative or innovative has to be tested on the touchstone of the Constitution
638 G 7
Election laws are not designed to produce economic equality amongst citizens
They can at best provide an equal opportunity to all sections of society to project their respective points of view on the occasion of elections
639 B 8
If it is correct that different political parties have been treated equally though they are situated unequally or that individuals have been discriminated against either inter se or in relation to political parties and associations the only method which would measure up to the required constitutional standard is 625 the one in which the State would have to allocate funds from its own exchequer in order to enable the various candidates to contest elections
That would be the fairest form of fairness
639 D E 9
Explanation I would not become unconstitutional for the reason that it allegedly renders the main provisions in section 771 nugatory by taking away with one hand what is given by the other
The Explanation does not denude the section of its meaning and make it purposeless
Section 771 deals with the expenditure incurred or authorised by  a candidate or his election agent in connection with the election
It is obligatory to keep a separate and correct account of such expenditure
Explanation I deals with the expenditure incurred or authorised by a political party or any other association or body of persons or by an individual other than the candidate or his election agent
It is not obligatory for the candidate or his election agent to keep a separate and correct account of such expenditure because such expenditure is not incurred or authorised by the candidate or his election agent and that such expenditure cannot be deemed to be incurred or authorised by the candidate or his election agent
Section 771 on the one hand and Explanation 1 on the other deal with two different situations wherefore the latter cannot render the former meaningless
639 F H 640 A B 10
If an expenditure which purports to have been incurred for example by a political party has in fact been incurred by the candidate or his election agent Explanation I will not be attracted
It is only if the expenditure is in fact incurred or authorised by a political party or any other association or body of persons or by an individual other than the candidate or his election agent that the Explanation will come into play
For seeking protection under Explanation I it must be shown that the source of the expenditure incurred was not the candidate or his election agent
Explanation I does not create a fiction
It deals with the realities of political situations
It does not provide that expenditure in fact incurred or authorised by a candidate or his election agent shall not be deemed to be incurred or authorised by them if the amount is defrayed by a political party
The object of the Explanation is to ensure that the expenditure incurred by a political party on its own without using the funds provided by the candidate or his election agent shall not be deemed to be expenditure incurred or authorised by the candidate or his election agent
If the expenditure is incurred from out of the funds provided by the candidate or his election agent section 771 and not Explanation 1 would apply
640 C H 11
The reason why the expression shall not be deemed to be  is used in Explanation 1 is that Parliament wanted to get over the effect of the judgment of this Court in Kanwarlal Gupta s case
Similarly the expression shall not ever be deemed to have been  is used in the Explanation to get over the effect of that judgment retrospectively except to the extent mentioned in clauses a and b of the Proviso to the Explanation
641 B C 12
The limited range of Explanation I ought not to be enlarged
The ceiling placed on election expenses is a basic commandment of the Act not a 626 pious edict
Its object is to keep a check on the expenditure incurred by candidates on their own elections directly or through their election agents
They cannot be permitted to resort to subterfuges in order to evade the restraint imposed by section 771 and 773 of the Act
Homage to the principle of free and fair elections has to be real not formal
641 C D 13
The Court is not to lay down policies in matters pertaining to elections
The Court cannot negate a law on the ground that it does not approve of the policy which underlies it
The Court might have its own preferences and perceptions but they cannot be used for invalidating laws
641 E F 14
The right to contest an election or to vote at it is not a Common Law right
641 G 15
The question as regards the constitutional validity of Explanation 1 has to be determined regardless of the consideration as to whether the said Explanation restores the law as it stood before the decision of this Court in Kanwarlal Gupta or whether it introduces a new provision altogether
642 E 16
Influence of big money on the election process is regarded universally as an evil of great magnitude
Kanwar Lal Gupta vs Amar Nath Chawla explained
Rananjaya Singh vs Baijnath Singh   Ram Dayal vs Brijraj Singh   Magraj Patolia vs RK Birla   Smt
Indira Gandhi vs Raj Narain  Lok Sabha Debates Vol
XLVII Nos
21 27 12 20 December 1974 page 279 Vatal Nagaraj vs R Dayanand Sagar   399 Tata Iron  Steel Co Ltd AIR 1958 Bombay 155 Indian Iron and Steel Co Ltd AIR 1958 Calcutta 234 Report of the Santhanam Committee on Prevention of Corruption 1962 Section 11 Social Climate  Paragraph 115 Report of the Expert Committee on Companies and MRTP Acts  1978 Chapter XIII pages 99 104 Jyoti Basu vs Debi Ghosal   326 327 Halbury s Law of England Fourth Edition Volume 15 Paragraph 721 referred to