N. P. PONNUSWAMI v. RETURNING OFFICER, NAMAKKAL CONSTITUENCY AND OTHERS
Citation: [1952] 1 S.C.R. 218; 1952 INSC 2
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , MEHR CHAND MAHAJAN, BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, SIR SYED FAZL ALI, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1952 INSC 2. Supreme Court of India judgment dated 1952-01-21. N. P. PONNUSWAMI v. RETURNING OFFICER, NAMAKKAL CONSTITUENCY AND OTHERS. Read the judgment...
Judgment text
218 SUPREME COURT REPORTS [1952J N. P. PONNUS\VAMI ti. RETURNING OFFICER, NAMAKKAL CONSTITUENCY and OTHERS UNION OF INDIA and STATE OF MADHYA BHARA T-INTERVENERS. [PATANJALI SAsTRr C. J. , FAZL Au, MEHR CHAND MAHAJAN, MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ. J Constitution of India Arts. 226, 324 to 329-Representation of the People Act, 1951, ss. 36, 80--Election to Legislatures-Rejection of nomination paper-Applicati-on to High Court for writ of certiorari -Maintainability-.. furisdiction of High Court-Meaning of "election" and "questioning election"-Poli"cy of Legislature with regard to elections-Special remedies. Article 329 (b) of the Constitution of India provides that "no election to either House of Parliament or to the House or either House of the 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 appropriate Legislature.
" The Representation of the People Act, 1951, which made detailed provisions for election to the various Legislatures of the country also contains a· provi~ sion (sec. 80) that no election shall be called in question except by an election petition presented in accordance with the provi~ sions of the Act. The appellant\ who was a candidate for election to the Legislative Assembly of the State of Madras_ and whose nomination paper was rejected by the Returning Officer, 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: Held by the Full Court (PATANJALI SASTRI, C. J. , FAZL Au, MAHAJAN, MuKHERJEA, DAS and CHANDRASEKHAR. A AiYAR JJ. ) that in view of the provisions of articles 329 (b) of the Constitution and sec.
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 word uelection" 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 and it" is in this wide sense that the word is used in Part XV of the Returmng Constitution in which article 329 (b) occurs. Constituency The scheme of Part XV of the Constitution and the Representation of the People Act, 1951,' seems to .
be that any matter which has the effect of vitiating an election should be brought up' only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. Undl:r the election law, the only significance which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question. _Article 329 (b) was apparently enacted to preS wait_ until after the election to challenge the validity of the rejection of his nomination paper, and secondly, that the question of hardship or inconvenience is after all . only a secondary question, because if the construction put by the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconvenience becomes irrelevant.
Article 329 is the last article in Part XV of the Constitution the heading of which is "Elections", and· it runs as follows :- "Notwithstanding anything in this Constitution-- ( a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 327 or article 328, shall not be called in question in any court ; (b) no election to either House of Parliament or to the House or either House of the 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 appropriate Legislature. " In construing this article, reference was made by both parties in the course of their arguments to the other articles in the same Part, namely, articles 324, 325, 326, 327 and 328.
Article 324 provides for the constitution and appointment of an Elecetion Commis-sioner to superintend, direct and control elections to the legislatures ; article 325 prohibits discrimination against electors on the ground of religion, race, ca etitions) Order, 1936", dated the 3rd July, 1936. In that Order, the rule corresponding to rule 31 under the earlier Act, runs thus :- - "No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the Order. " This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices.
" The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been iutended to cover the same ground as the provisions in England have been understood to cover in that country for so many years. If the language used in article 329 (b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time. And now a word as to why negative language was used in article 329 (b). It seems to me that there is an important difference between article 71 ( 1) and article 329 (b). Article 71 (1) had to be in an affir-mative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article.
Article 329 (b), on the other hand, was primarily intended to exclude or ousl the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged. The negative form was therefore more appropriate, and, that being so, it is not surprising that it was decided to follow the pre-existing pattern in which also the negative language had been adopted. Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words:- "It was next contended that if nomination is part. of election, a dispute as to the validity of nomination is a dispute relating to election and that can be.
called in question only in accordance with the provisions of article 329 (b) by the presentation of an election petition to the appropriate Tribunal and that the Returning Officer would have no jurisdiction to decide that matter, and it was further argued that section 36 of Act XL. III of. 1951 would be utlra vires inasmuch as it confers on the Returning Officer a jurisdiction which article 329 (b) confers on a Tribunal to be appointed in accordance with the article. " This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize: the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination.
It is clear that unless this duty is discharged properly, any number of candidates may stand for election without comply-ing with the provisions of the Act and a great deal of confusion may ensue. In . discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent . to election.
The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression-"no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evi-dently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method. We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Om-stitution to entertain petitions regarding improper rejection of nomination papers. This view is in ! PY opinion wrrect and must be affirmed. The appeal must therefore fail and is dismissed. In view of the nature and importance of the points raised m this appeal, there should be no order to costs. p ATANJ ALI SASTRI c. J,_:I agree. MEim CHAND MAHAJAN J.
-1 agree. MuKHERJEA f. -1 agree. DAs J. -1 agree. CHANDllASEKHARA AIYAR r. -I agree. Appeal dismitsed. Agent for the appellant : S. Subt<ahmanyam. Agent for the 1st respondent : P. A. Mehta. Agent for the Union of India and the State of Madhya Bharat : P. A. Mehta. GIPN-Si-3S. C India/71-6-10·72-7DO
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