Judgment Case ID: 494

Judgment:
63 and 64 of 1957. Petitions under Article 71(1) of the Constitution of India for clarification of doubts in connection with the election of the President. R. V. section Mani and I. R. V. Sastri	 for the petitioner in Petition No. 63 of 1957. R. Patnaik	 for the petitioner in Petition No. 64 of 1957. M. C. Setalvad Attorney General for India	 G. N. Joshi	 Porus A. Mehta and R. H. Dhebar	 for the respondents (Caveators) in both the petitions. May 3. The Judgment of the Court was delivered by DAS C. J. The petitioners in the above petitions have moved this Court to exercise the jurisdiction and power vested in it by and under article 71(1) of the Constitution of India and to inquire into and decide what has been described as a "grave doubt" in connection with the election of the President of India and to direct the Election Commission not to proceed with the polling in connection with the said election which has been fixed for May 6	 1957	 but to hold the same after duly completing all the elections to the Lok Sabha and the Legislatures in all the States of the Indian Union including the Union territory. The first main petition was presented on April 26	 1957	 and the second on April 29	 1957. Along with each of the said petitions has been filed a Civil Miscellaneous Petition asking for a stay of the polling for the Presidential election fixed 1083 for May 6	 1957. In the first main petition the Returning Officer has not been made a party	 but in the second petition he has been impleaded as a respondent. The learned Attorney General has appeared on behalf of the Election Commission and has waived the service of notice. We can	 therefore	 dispose of all the petitions before us. There is no dispute as to the material facts which may shortly be stated as follows: After the general elections in all the States and Union territories of India	 except in the Union territory of Himachal Pradesh	 which is to return four members to the Lok Sabha and in two constituencies in the State of Punjab	 the old Lok Sabha was dissolved on April 4	 1957 and the New Lok Sabha was constituted on April 5	 1957	 under section 73 of the Representation of the People Act (XLIII of 1951). As required by section 4 of the Presidential and Vice Presidential Election Act	 1952 (XXXI of 1952)	 the Election Commission issued a notification in the official Gazette appointing April 16	 1957	 as the last date for making nominations	 April 17	 1957	 as the date for the scrutiny of the nominations	 April 20	 1957	 as the last date for the withdrawal of candidatures	 May 6	 1957	 as the polling date and May 10	 1957	 as the date for the counting of the votes and the declaration of the result. The term of office of the present President is due to expire on the mid night of May 12	 1957. The reason for fixing the above time schedule obviously was that the Presidential election should be completed before the term of office of the present President expired. After the notification constituting the new Lok Sabha was published in the Press on April 7	 1957	 the petitioner in the first petition applied to the Election Commission for the supply of the nomination papers	 which he eventually received at Nagpur in the afternoon of April 10	 1957. This left a period of five days for the filing of the nomination paper before the Returning Officer at New Delhi. The petitioner submits that the time was too short and he was prevented from filing his nomination paper due to want of time. He 1084 has filed the petition as a citizen of India and as an "intending candidate" for the Presidential election. The petitioner in the second petition is a member of the Hindu Mahasabha and is contenting the election to the Lok Sabha as an independent candidate from Kangra Parliamentary constituency in the State of Punjab. He filed his nomination paper on January 28	 1957	 as originally the polling was scheduled to commence in that constituency on February 24	 1957. The polling	 however	 has since been postponed and fixed for June 2	 1957. He has filed the petition as a citizen of India and as a prospective member of Lok Sabha and contends that if the Presidential election is held on May 6	 1957	 he will be deprived of his right to vote for the election of the President of the Union. He has also complained of discrimination offending against article 14 of the Constitution. Under article 56 of the Constitution the President holds office for a term of five years from the date on which he enters upon his office. The present incumbent of the high office entered upon his office on May 12	 1952	 and	 as already stated	 his term is due to expire on the mid night of May 12	 1957. Article 62(1) peremptorily requires that the election to fill the vacancy caused by the expiration of the term of office of the President shall be completed before the expiration of the term. It is necessary to bear in mind this clear mandatory provision of the Constitution. For ascertaining how such election of President is to be held	 we have to go back to article 54	 which runs thus: " 54. The President shall be elected by the members of an electoral college consisting of (a) the elected members of both Houses of Parliament ; and (b) the elected members of the Legislative Assemblies of the States. " On one side it is said that the electoral college is to consist of those members falling under clauses (a) and (b)	 who are elected at the crucial date	 that is to say	 the date when the election is to take place. Suppose	 it is said	 that the term of the President 's office expires during the currency of the life of Parliament; as it 1085 may well do in cases contemplated by article 62(2) and suppose there are vacancies in Parliament or in the Legislature of one or more States	 surely the election of the President required by article 62(1) to be held before the expiry of the term of the outgoing President cannot be held up until the vacancies are filled up. ' On the other hand it is contended that the electoral college must be constituted after the elections in all States and Union territories are completed and should consist of all the elected members falling within both the categories. Inasmuch as elections have not taken place at all in Himachal Pradesh and in two constituencies of the State of Punjab	 the electoral college cannot be constituted until after those members are also elected. It is pointed out that though on the present occasion only four members of Himachal Pradesh and only two members in the State of Punjab have not been elected	 nevertheless	 if the objection of the petitioners is not now heeded any party in power may in future arrange for the election of its own nominee as President by postponing the elections in several States	 where it may not expect to get a majority of seats. It is said that on March 28	 1957 some members of the then Lok Sabha had raised a question as to the danger and impropriety of holding the election of the President before the completion of the elections throughout the territory of India. Both the petitioners share the same view and contend that a " grave doubt " has arisen in connection with the election of the President and that such a doubt must	 under article 71	 be inquired into and decided by this Court. The extreme contention put forward on behalf of the petitioners is that it does not matter whether the doubt is well founded or not or whether it is good	 bad or indifferent; this Court is bound to inquire into and decide the same as soon as a doubt arises and a citizen brings it before this Court for resolution thereof. For the purpose of this case it is not necessary for us to express any opinion on the merits of the respective contentions for these petitions may well be disposed of on a narrower preliminary ground. 1086 Article 71 (1) Undoubtedly confers jurisdiction and power on this Court to inquire into and decide " all doubts and disputes arising out of or in connection with the election of President or Vice President " and this Court will have to inquire into and decide the same. But the question is whether there is anything in the Constitution indicating the time at which and the manner in which such doubts and disputes have to be inquired into and decided. Under article 324 the superintendence	 direction and control of the prepa ration of the electoral rolls for	 and the conduct of	 all election	% to Parliament and to the Legislature of every State and of elections to the office of President and Vice President held under this Constitution	 including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and the Legislatures of States shall be vested in the Election Commission. It will be noticed that identical words are used	 namely	 " doubts and disputes arising out of or in connection with elections " which are also to be found in article 71 (1). By article 327	 Parliament was authorised to make provision with respect to all matters " relating to or in connection with elections " to Parliament or to the Legislatures of the States. article 329 provides	 amongst other things	 that notwithstanding anything in this Constitution no election to either House of Parliament or either House of Legislature of a State shall be called in question except by an election Petition presented to such authority and in such manner as may be provided for by or under any law made by the proper legislature. In exercise of powers thus conferred on it	 Parliament enacted the Representation of the People Act	 1951	 providing how elections are to be held and how and on what grounds such elections may be called in question. It also set up a special forum called Election Tribunal for the decision of " doubts and disputes arising out of or in connection with such elections. " In N.P. Ponnuswami vs Returning Officer	 Namakkal Constituency (1) the Returning Officer for that constituency had rejected	 the (1) ; 1087 nomination paper of the appellant. Thereupon the appellant applied to the High Court of Madras under article 226 of the Constitution for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court of Madras dismissed the petition and the appellant brought an appeal to this Court. The Full Court held that in view of the provisions of article 329 (b) of the Constitution and section 80 of the Representation of the People Act	 1951	 the High Court had no jurisdiction to interfere with the order of the Returning Officer. The main controversy in the appeal centered round the words "no election shall be called in question except by an election petition " occurring in article 329 (b). The most important question for determination by this Court was the meaning to be given to the word " election " in article 329 (b). This Court said at page 226: "That word has by long usage in connection with the process of selection of proper representatives in democratic institutions	 acquired both a wide and a narrow meaning. In the narrow sense	 it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense	 the word is used to connote the entire process culminating in a candidate being declared elected. " After referring to the cases of Srinivasalu vs Kuppuswami (1) and Sat Narain vs Hanuman Prasad (2 ) and a passage in Halsbury 's Laws of England	 2nd edition	 Volume 12	 page 237	 this Court took the view that the word "election " could be and had been properly used with respect to the entire process which consisted of several stages and embraced many steps some of which might have an important bearing on the result of the process and	 therefore	 held that in view of the provisions of article 329 (b) of the Constitution and section 80 of the Representation of the People Act	 1951	 the High Court had no jurisdiction to interfere with the (1) A.I.R. (1928) Mad. 253	 255. (2) A.I.R. (1945) Lah. 1088 order of the Returning Officer under article 226. The only way such an order could be called in question was as laid down in article 329 (b) of the Constitution and section 80 of the Representation of the People Act	 1951	 and this could be done only by an election petition presented before the Election Tribunal after the entire process of election culminating in a candidate being declared elected had been gone through. On such election petition being filed the Election Tribunal would be properly bound to inquire into and decide "all doubts and disputes arising out of or in connection with the election " irrespective of the stage in the entire election process to which the " doubts and disputes relate". We now approach the construction of article 71 in the light of the decision of this Court. As already indicated article 71(1) confers jurisdiction and power on this Court to inquire into and decide id all doubts and disputes arising out of or in connection with the election of a President or Vice President". The question is: Is there in this Article or in any other part of the Constitution or anywhere else any indication as to the time when such inquiry is to be held ? In the first place	 article 71 postulates an " election of the President or Vice President " and provides for inquiry into doubts and disputes arising out of or in connection with such an election. What is the meaning to be given to the word " election " as used in this Article? If we give to the word 	election" occurring in article 71(1) the same wide meaning as comprising the entire election process culminating in a candidate being declared elected	 then clearly the inquiry is to be made after such completed election	 i.e.	 after a candidate is declared to be elected as President or Vice President as the case may be. We see no reason why this accepted meaning should not be given to the critical word. In the second place	 under cl. 3 of article 71	 subject to the provisions of this Constitution	 Parliament may by law regulate any matter " relating to or connected with the election " of a President or Vice President. The words here also are similar to those used in article 327 and are equally wide enough to cover matters relating to or 1089 connected with any stage of the entire election process. In exercise of powers conferred on it by article 71(3)	 Parliament has enacted the Presidential and Vice Presidential Election Act	 1952 (XXXI of 1952) to regulate certain matters relating to or connected with elections to the office of President and Vice President of India. A glance through the provisions of this Act will indicate that in the view of Parliament the time for the exercise of jurisdiction by this Court to inquire into and decide doubts and disputes arising out of or in connection with the Presidential election is after the entire election process is completed. Under section 14 of this Act	 which corresponds to section 80 of the Representation of the People Act	 1951	 no election	 meaning the election of the President or Vice President	 shall be called in question except by an election petition presented to this Court in accordance with the provisions of Part III of that Act and of the rules made by this Court under article 145. Section 18	 which lays down the grounds for declaring the election of a returned candidate to be void	 runs as follows: 18. Grounds for declaring the election of a returned candidate to be void: If the Supreme Court is of opinion (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or (b) that the result of the election has been materially affected (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance; or (ii)by the improper reception or refusal of a vote	 or (iii)by the non compliance with the provisions of the Constitution or of this Act or of any rules or	 orders made under this Act; or (c) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate or of any other candidate who has 140 1090 not withdrawn his candidature has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void. (2) For the purposes of this section	 the offences of bribery and undue influence at an election have the same meaning as in Chapter IX A of the Indian Penal Code (Act XLV of 1860). It is quite clear from the language of the section that any improper reception or refusal of a vote	 or any non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act or the improper acceptance or rejection of a nomination paper may be made a ground for challenging the election. This means that all doubts and disputes relating to any stage of the entire election process is to be canvassed by an election petition presented to this Court after the election in its wide sense is concluded. The above stated interpretation appears to us to be in consonance with the other provisions of the Constitution and with good sense. If doubt or dispute arising out of or in connection with the election of a President or Vice President can be brought before this Court before the whole election process is concluded then conceivably the entire election may be held up till after the expiry of the five years ' term which will involve a no compliance with the mandatory provisions of article 62. The well recognised principle of election law	 Indian and English	 is that elections should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people	 which requires that elections should be gone through according to the time schedule. It is	 therefore	 in consonance both with the provisions of article 62 and with good sense to hold that the word "election" used in article 71 means the entire process of election. That is what Parliament understood to be the meaning of article		 71 as is apparent from the Presidential and Vice Presidential Election Act	 1952. Again this Court has framed rules under article 145 to regulate the 1091 procedure and a perusal of those rules will also indicate that " all doubts and disputes arising out of or in connection with the election of a President or Vice President " should be brought before the court after the result of the entire election is declared	 that is to say	 after a candidate is declared to be elected to the office of President or Vice President. It is pointed out that if the petitioners are compelled to wait until after the entire election process is concluded and then to file election petitions	 they will have to show that the result of the election has been materially affected as required by section 18 of the Presidential and Vice Presidential Election Act	 1952. It is contended that there is no reason why this extra	 burden or hardship	 which is not in terms imposed by article 71	 should be placed upon the petitioners. It is not necessary for the purposes of disposing of these petitions to express any opinion as to the validity or otherwise of this requirement of section 18 and we do not do so. But the plea of alleged hardship brought about by section 18 cannot alter the true meaning and import of article 71. In our judgment article 71 postulates an election and the word "election " occurring in article 71 means the entire election process culminating in a candidate being declared elected and doubts and disputes arising out of or in connection with any of the stages of such completed election have to be inquired into and decided by this Court which	 in point of time	 must necessarily be after the completion of the entire process compendiously called the election. Learned counsel appearing for the petitioner in the second petition raised an additional point that the Election Commission by fixing the election on May 6	 1957	 has arbitrarily deprived the members representing territorial constituencies like Kangra and Himachal Pradesh of their right to exercise and enjoy other privileges of membership of Parliament. This argument was raised half heartedly at the fag end of his argument in reply and was not seriously pressed. In any event he did not advance any cogent argument showing how the petitioner had been deprived of the equal protection of the law. Elections have to be held in numerous 1092 constituencies and different dates have to be fixed for holding the actual elections in different constituencies according to the various exigencies relating to the particular localities in which the constituencies are situate. No good ground has been established for holding that there has been any discrimination such as is prohibited by article 14 of the Constitution. In so far as the alleged discrimination	 if any	 in breach of the equal protection clause of the Constitution may be said to be calculated to raise any doubt in connection with the election of the President it will	 at best	 be a noncompliance with the provisions of the Constitution which may or may not	 after the conclusion of the entire election	 be made a ground	 under section 18 of the Presidential and Vice Presidential Election Act	 1952	 for calling the election in question as to which we need formulate no final opinion at this stage. We express no opinion on the merits of any of the controversies between the parties	 but	 for the foregoing reasons	 we hold that the present petitions are premature and cannot be entertained at this stage. We	 therefore	 dismiss the petitions Nos. 63 and 64 of 1957. Civil Miscellaneous Petitions Nos. 563 and 564 of 1957 will also stand dismissed. Petitions dismissed.

Summary:
The petitioners entertained grave doubts as to the propriety of holding the Presidential election before the general elections had been completed throughout the entire territory of India and	 by applications filed under article 71(1) of the Constitution as citizens of India	 invoked the jurisdiction and power of the Supreme Court thereunder to inquire into such doubts and sought for an order restraining the Election Commission from taking the poll in connection with the election of the President	 fixed for May 6	 1957	 till the general elections in the Union territory of Himachal Pradesh and in two Lok Sabha Constituencies of the State of Punjab	 which were still to be held	 had been completed. The expiry of the term of office of the then President which caused the Presidential election was to come about on the mid night of May 12	 1957. One of the petitioners alleged that he was a candidate for the Presidential election and the time intervening between the date when he received his nomination paper and the date fixed for the filing of it was too short to enable him to file it within time and the case of the other was that he was a prospective candidate for election to the Lok Sabha from one of the Punjab Constituencies	 where election was yet to be held	 and would be prevented from exercising his right to vote for the election of the President. Held	 that the present petitions were premature and must be dismissed. ^ The jurisdiction and power conferred on the Supreme Court by article 71(1) of the Constitution to inquire into and decide doubts and disputes arising out of and in connection with the election of the President can be exercised only after a particular candidate has been declared elected and on an election petition filed under section 14 of the Presidential and Vice Presidential Election Act of 1952. The word 'election ' in article 71 of the Constitution is used in the wider sense to denote the entire process of election culminating 139 1082 in a candidate being declared elected and doubts and disputes arising out of and in connection with such election must include all doubts and disputes relating to any particular stage of it. N. P. Ponnuswamy vs Returning Officer	 Namakkal Constituency	 ; 	 referred to. It is a well recognised principle of the law of election that an election cannot be held up to facilitate the ventilation of individual grievances in derogation of the interest of the people in general and article 62 Of the Constitution	 which requires that the election of President must be completed within the time fixed by it and has been conceived in such interest	 is mandatory in character