Case: Jyoti Basu and Others Vs. Debi Ghosal and Others

The first appellant, Jyoti Basu, is the Chief Minister and appellants two and three Budhadeb Bhattacharya and Hashim Abdul Halim, are two Ministers of the Government of West Bengal. They have been impleaded by the first respondent as parties to an election petition filed by him questioning the election of the second respondent to the House of the People from the 19- Barrackpore Parliamentary Constituency in the mid-term Parliamentary election held in January, 1980. There were five candidates who sought election from the Constituency. Mod. Ismail, the first respondent, whose candidature was sponsored by the Communist Party of India (Marxist) was, elected securing 2, 66, 698 votes as against Debi Ghosal, a candidate sponsored by the Indian National Congress led by Smt. Indira Gandhi who secured 1, 62, 770 votes. The other candidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan Mishra secured 25, 734, 12, 271 and 2, 763 votes respectively. The first respondent filed an election petition in the High Court of Calcutta questioning the election of the second respondent Mohd. Ismail on various grounds. He impleaded the returned candidate as the first respondent, and the other three unsuccessful candidates respondents 2, 3 and 4 to the election petition. Besides the candidates at the election, he impleaded several others as respondents. The District Magistrate and Returning Officer was impleaded as the fifth respondent, Buddhadeb Bhattacharya, the Minister for Information and Publicity, Government of West Bengal as the sixth respondent. Jyoti Basu, the Chief Minister as the seventh respondent, Md. Amin, the Minister of the Transport Branch of the Home Department as the eighth respondent, Hashim Abdul Halim, the Minister of the Legislative and the Judicial Department as the ninth respondent and the Electoral Registration Officer as the tenth respondent. It was averred in the election petition that the Chief Minister and the o ther Ministers of the Government of West Bengal who were impleaded as parties to the election petition had colluded and conspired with the returned candidate to commit various alleged corrupt practices. Apart from denying the commission of the va rious alleged corrupt practices, the Chief Minister and the other Ministers claimed in their written statements that the election petitioner was not entitled to implead them as parties to the election petition. They claimed that as they were not candidates at the election they could not be impleaded as parties to the election petition. The Chief Minister and two of the other Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya filed an application before the High Court of Calcutta to strike out their names from the array of parties in the election petition. The application was dismissed by the Calcutta High Court on the ground that the applicants (appellants) were proper parties to the election petit ion and, therefore, their names should not be struck out of the array of parties. The appellants have preferred this appeal after obtaining special leave of this Court under Art. 136 of the Constitution.

Reasoning: A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental 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. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. 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 becaus e policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issu ance of the notification calling upon a constitutuency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned exce pt in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. 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 theis equally significant that while an y candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as respondent, even if allegations of any c orrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candida tes at the election. If such is the design of the statute, how can the notion of proper parties enter the picture at all ? We think that the concept of proper parties is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved m ay be joined as respondents to theis not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be named is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to recriminate i.e. to give evidence to prove that the e lection of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined a s a party to the petition then, by virtue of his position as a party, he would also be entitled to recriminate under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert t he petition into a free for all fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 86(6) of the Act that the trial of the election petition should be c oncluded in six months. It is just as well to remember that corrupt practice as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined asview of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.