Two appeals to the Supreme Court are being discussed in the present case. In the first appeal, the appellant is Indira Nehru Gandhi and the respondent is Raj Narain. The second appeal is the cross objection by Raj Narain. On June 12, 1975, the Allahabad High Court delivered a judgement, which has given rise to the present appeals. The High Court held the then Prime MInister, Smt. Indira Nehru Gandhi, guilty of committing corrupt practice by obtaining the support of government officials in furtherance of her election propaganda. The High Court further found substance in the allegation against the appellant and held her guilty of committing corrupt practices under Section 123 (7) of the Representation of the People Act, 1951 by obtaining the assistance of Yashpal Kapur, a government officer. The High Court disqualified the appellant for a period of six years. During the pendency of the matter in the High Court, Section 77 was inserted in the Representation of People (Amendment) Act, 1974 and the Election Laws (Amendments) Act, 1975 was published in the Gazette of India. The Constitution (Thirty ninth Amendment) Act was published in the gazette in August, 1975. The Constitution Amendment Act inserted in the Ninth Schedule to the Constitution a number of enactments including to amendments Acts of 1974 and 1975 mentioned above. Article 329A was also inserted through Constitution (thirty ninth Amendment) Act, 1975.
- Whether the appellant has taken steps that constitutes corrupt practice under Section 123(7) of the Representation of the People Act ?
- Whether insertion of Article 329A(4) by way of Constitution (Thirty-ninth Amendment) Act, 1975 damages the basic structure of the Constitution?
On Behalf of the Appellant:
The appellant contended that in furtherance of Article 329A(4) of the Constitution, which limits the jurisdiction of the High Court to invalidate election of a Prime Minister on any grounds, the election of the appellant shall not be deemed to be void or ever become void on any ground on which such election could be declared void.
On Behalf of the Respondent:
- The respondent contends that the Amendment Acts of 1974 and 1975 do not enjoy constitutional immunity under the ninth schedule because they destroy the basic structure of the Constitution.
- The respondent has challenged the constitutional validity of Article 329(4) on the grounds that it damages the basic structure of the Constitution as laid down under Keshwananda Bharti case.
The High Court held the election of the Indira Gandhi from the constituency of Rai Bareilly void, on the ground that the appellant committed corrupt practice under the Section 123(7) of the Representation of People Act, 1951 to the extent that she had received and availed the assistance of a Government officer, Yashpal Kapur for the furtherance of her election prospects during the period from January 7 to 24, 1971 when Yashpal Kapur was still a gazetted officer in the service of the Government of India.
The High Court found substance in the allegation and noticed that Yashpal Kapur had remained in service of the Government till January 25, 1971 which was the date of the notification of the resignation and termination of the service of a person in the service of the Central Government. Yashpal Kapur in view of the newly added explanation to section 123 (7) of the Representation of People Act, 1951 , ceased to be in government service with effect from January 14, 1971. Any assistance of Government officer which the appellant was alleged to have received or availed on or after January 14, 1971 would not make her guilty of committing corrupt practice under Section 123(7) of the R. P. Act.
Section 10 of Amendment Act, 1975, which the amendments made by Sections 6, 7 and 8 of the Act in the R. P. Act shall have retrospective operation, so as to apply to any election held before the commencement of the Act in respect of which an election petition is pending or in respect of which appeal from any order of the High Court is pending immediately before the commencement of Amendment 1975.
The use of the symbol of cow and calf is concerned, is covered by the amendment made in Section 123(3) of the R. P. Act. The said provisions of Amendment Act, 1975 are generic in terms and would apply to all election disputes which may be pending either in the High Court or in appeal before the Supreme Court. It is true that the retrospective operation of an amending Act has the effect of placing one party to the dispute in a more advantageous position compared to others but that is unavoidable in most of the amendments with retrospective operation. One of the objects of the change effected by Act of 1975 is to remove the uncertainty and set at rest the controversy as to what would be the precise date of a person in the service of the Central Government ceasing to be in such service in case he tenders his resignation. The amended law makes it clear that where the date of taking effect of the resignation is stated in the publication in the Official Gazette, it shall be that date.
The newly added proviso to Section 123(7) is concerned, it may be stated that the act in the discharge or purported discharge of official duty of the government employees would in the very nature of things have to be of a kind which is compliant to their official duties. It may include steps taken by the government employees for maintenance of law and order or in connection with the security of a candidate or other persons. It would not, however, include canvassing or doing such acts which may properly be considered to be part of the election propaganda for furtherance of the prospects of a candidate’s election.
What is permissible under the above provision is that which is done in public interest and not something done in the personal interest of a candidate. In spite of some problems which may arise in close cases, this difference must be borne in mind. If, however, in the course of doing something in public interest, some advantage may also possibly accrue to a candidate at a beneficial position, it will have to be regarded as incidental and would not detract from action taken under the above provision being in public interest. Contrary to that, any action taken with a view to benefit the personal interest of a candidate should not be allowed to be perceived as an action taken in public interest. It should be ensured that public interest is not allowed to degenerate into a cloak for furtherance of the personal interests of a candidate in an election.
A law in the terms of Article 329A (4)(i) can validly be made by a Legislature as well as by a constituent authority. The reason of above law having retrospective effect would not take away from from the capability of the Legislature to make such a law. It is well- settled that it is permissible for a Legislature to make a law with retrospective effect.
Part (ii) of clause (4) spells out the consequence which flows from part (i) of the clause. If the previous law relates to the election petitions and its connected matters was not to apply to the election of the Prime Minister and the Speaker, it would compulsorily follow that the election of the appellant who was the Prime Minister would not be void or ever become void on the ground on which such election could be declared to be void.
To some extent, this appears to be true of part (iv) of clause (4). If the previous law governs election petitions and connected matters was not to apply to the election of the appellant, the High Court shall have no jurisdiction to decide the election petition challenging the election of the appellant. The effect of part (i) of clause (4) is that the High Court was deprived of the jurisdiction to listen to disputes relating to the election of the appellant with a retrospective effect. The law through which the election of the appellant was declared to be void as a result of the amendment was also made invalid with retrospective effect to the dispute relating to the election of the appellant. The resultant effect of the amendment was that the order by which the election of the appellant was declared to be void and the finding on which such order was based were rendered to be void and no effect.
Another aspect of part (iv) of clause (4) relates to the question as to whether it is open to the constituent authority to declare an order and a finding of the High Court to be void and of no effect or whether such a declaration can be made only either in separate judicial proceedings before a higher court.
A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there no rigid separation of powers in the Constitution of India, by and large the spheres of judicial function and legislative function have been distinguished and it is not allowed for the Legislature to encroach upon the judicial functions. It has accordingly been held that a Legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the Legislature to declare the judgment of the court to be void or not binding
By part (iii) it is stated that the election of the appellant will continue to be valid in every aspect. Such a statement would not follow from part (i) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as mentioned earlier, in effect represented the consequences flowing from part (i).
In the case of Kesavananda Bharati, the Supreme Court held by majority that the power of amendment of the Constitution contained in Article 368 does not permit hampering the basic structure of the Constitution. Democracy can function only upon the belief of the people that elections are free and fair and are not controlled or manipulated by dishonest means, that they are functionable tools of ascertaining majority opinion both in reality and form and are not mere ceremonies performed to generate illusion. Election laws prescribes a Code of conduct in election matters and prescribe, what may be called, rules of electoral morality. Election laws also contain a provision for resolving disputes and determination of controversies which must inevitably arise in election matters as they arise in other spheres of human activity. The object of such a provision is to enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in election matters.
The drawback of clause (4) of Article 329A is that it makes the previous law contained in the R. P. Act as amended by Acts of 1974 and 1975 inapplicable to the challenge to the election of the appellant. It also makes no other alternate election law for resolving any dispute. The further vice from which the above clause suffers is that it not merely limits the High Court of its jurisdiction to decide a matter relating to the election of the appellant, it confers no jurisdiction on any other authority to decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon the grounds advanced by the respondent to challenge the election of the appellant, the constituent authority has declared the election of the appellant to be valid.
The vice of declaration contained in part (iii) of clause (4) regarding the validity of the election of the appellant is aggravated by the fact that such a declaration is made after the High Court which was then seized of jurisdiction had found substance in some of the grounds advanced by the respondent and had consequently declared the election of the appellant to be void. Clause (4) of Article 329A is so worded that however serious may be the malpractices vitiating the election of the Speaker or the Prime Minister, the effect of clause (4) is that the said election would have to be treated as valid.
Clause (4) of Article 329A violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election.
- The appellant has not committed any corrupt practise under section 123 of the R.P Act, 1951
- Article 329 (4) is violative of the basic structure of the Constitution and hence invalid.
 Writ Petition (civil) 135 of 1970