Case: S. Narayanaswami Vs. G. Pannerselvam &amp; Ors

1. This is an appeal under Sec. 116-A of the Representation of the People Act, 1951. The appellants election, held on 11-4-1970, to the Madras Legislative Council from the Madras District Graduates Constituency was set aside by a learned Judge of the Madras High Court who decided all the issues except one in favour of the appellant. The only issue decided against the appellant, which is now before us, was framed as follows:Whether the first Respondent was not qualified to stand for election to the Graduates Constituency on all or any of the ground set out by the petitioner in paragraphs 7 to 9 of the election Petition ?2. Paragraph 7 to 9 of the election petition against the appellant are lengthy, prolix and argumentative. The case and the contentions of the Respondent G. Panneerselvam, the petitioner before the High Court, which were accepted by the High Court, may be summarised as follows:        3. Firstly the whole purpose of Article 171 of the Constitution was to confer a right of functional representation upon persons possessing certain educational or other qualifications so that the Appellant Narayanaswami, who had only passed the High School Leaving Examination and was not a Graduate, could not be elected as all to the Legislative Council from the Graduates Constituency; secondly, it would be absurd and destructive of the very concept of representation of especially qualified persons that an individual who does not possess the essential or basic qualification of the electors should be representative of those who are to be represented because of this special qualification of theirs; and thirdly, the Constitution, being an organic instrument for the goverance of the land must be interpreted in a particularly broad and liberal manner so as to give effect to the underlying principles and purposes of the system of representation sought to be set up by it and not in such a way as to defect them. Hence, the educational qualification of the electors should be read into the system of representation set up by the Constitution for Legislative Councils as a necessary qualification of candidates in such constituencies.

Reasoning:
7. The plain and ordinary meaning of the term electorate is confined to the body of persons who elect. It does not contain, within its ambit, the extended notion of a body of persons electing representatives from amongst themselves. Thus, the use of the term electorate, in Art. 171 (3) of our Constitution, could not by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. The qualifications of the electors constituting the electorate and of those who can represent each electorate, contemplated by the Constitution and then supplemented by Parliament are separately set out for each house12. An important and very noticeable difference between qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the People Act of 1951 and those for the membership of a Legislative Council by Section 6 of that Act is that, so far as a member of the Legislative Assembly is concerned, he or she has to be an Elector in the Constituency from which he or she stands, but a member of a Legislative Council in a State is not similarly required to be a member of the electorate. All that Parliament says, in Sec.6 of the Representation of the People Act, 1951, is that the person to be chosen as a member of the Legislative Council has to be an elector for any Assembly constituency in the State to whose legislative Council he was to be chosen. He has to be ordinarily resident in the State to qualify for nomination. No other qualifications, apart, from those found in Article 173 of the Constitution and S.6 of the Representation of the People Act of 1951, are to be found laid down anywhere. But, an additional qualification was found, by the judgment under appeal before us, to exist by resorting to a presumed legislative intent and then practically adding it to those expressly laid down15. Whatever may have been the opinions of Constitution makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as functional or vocatitonal representation which has been advocated by Guild-Socialist and Syndicalist Schools of political thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our Constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experienced by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents16. In the case of the Graduates constituency, it is provided in Article 171 (3) (b) that the electors must have held their degrees for at least three years before they become qualified as electors. Thus, in laying down the test of competence of voters of such a constituency, mere possession of degrees by them was not considered sufficient. Moreover, graduates are not an occupational or vocational group but merely a body of persons with an educational qualification. It would, therefore, not be correct to describe the additional representation sought to be given to them as an attempt to introduce the functional or vocational principle. On the face of it, Article 171 appears to be designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education. If the presumption of their better competence to elect a suitable representative is there, as we think that there must be it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge, experience, and wisdom which satisfy certain standards. It may well be that the Constitution makers, acting upon such a presumption, had intentionally left the educational qualifications of a candidate for election from the graduates constituency unspecifiedIn the case before us, it could not possibly be said that the question to be dealt with was not known to the legislators. It could not even be said that qualifications of the electors as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was not specially directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrated amply how legislative attention was paid to the qualifications of the electors as well as of the elected in every case. Hence the correct presumption, in such a case would be that the omission was deliberate21. We think that the language as well as the legislative history of Article 171 and 173 of the Constitution and Section 6 of the Representation of the People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the Graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme of functional representation underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that by adding a deemed to be necessary or implied qualification of a representative of the Graduates which the Constitution makers, orin any event the Parliament, could have easily imposed, the learned Judge had really invaded the Legislative sphere. The defect if any, in the law could be removed only by law made by Parliament22. We conclude, after considering all the relevant constitutional and statutory provisions relating to the qualifications of a candidate of election from the Graduates constituency of the Legislative Council of the Madras State, that the appellant possesses all the qualifications laid down for such a candidate.