N.P. Ponnuswami vs Returning Officer

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 351 of 1951

Decision Date: 21 January 1952

Coram: Saiyid Fazal Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this matter the petition was filed by N P Ponnuswami against the Returning Officer for the Namakkal constituency and other respondents. The petition was decided by the Supreme Court of India on 21 January 1952. The judgment was authored by Justice Saiyid Fazal Ali and the bench comprised Justice Saiyid Fazal Ali, Justice M Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B K Mukherjea and Justice N Chandrasekhara Aiyar. The case is reported as 1952 AIR 64 and 1952 SCR 218, and it appears in a large number of citator references, including RF 1954 SC 520, R 1955 SC 233, RF 1957 SC 694, R 1957 SC 871, D 1967 SC 669, MV 1971 SC 530, R 1973 SC 2464, R 1974 SC 480, RF 1974 SC 1185, R 1975 SC 1708, R 1975 SC 2140, RF 1975 SC 2299, E & F 1978 SC 851, RF 1980 SC 1362, RF 1981 SC 547, R 1982 SC 983, R 1983 SC 558, R 1984 SC 135, F 1984 SC 921, E & R 1985 SC 1233, RF 1986 SC 103, R 1988 SC 61, RF 1988 SC 616, and RF 1988 SC 915. The applicable statutory framework comprised Articles 226, 324 to 329 of the Constitution of India and Sections 36 and 80 of the Representation of the People Act 1951, covering election to legislatures, the rejection of a nomination paper, the application for a writ of certiorari, the maintainability of the petition, the jurisdiction of the High Court, the meaning of “election” and “questioning election,” the legislative policy concerning elections, and special remedies.

The headnote of the decision explained that Article 329(b) of the Constitution provides that no election to either House of Parliament, to a State Legislature, or to either House of a State Legislature may be called into question except by an election petition presented to the authority specified and in the manner prescribed by law made by the appropriate legislature. The Representation of the People Act 1951, which contains detailed provisions for elections to the various legislatures, also includes Section 80, which similarly restricts challenges to elections to election petitions filed in accordance with the Act. The petitioner, who had been a candidate for election to the Legislative Assembly of the State of Madras, had his nomination paper rejected by the Returning Officer. He therefore approached the High Court of Madras under Article 226 of the Constitution, seeking a writ of certiorari to set aside the Returning Officer’s order and to compel the inclusion of his name in the list of valid nominations to be published.

The Full Court, comprising Chief Justice Patanjali Sastri, Justice Fazal Ali, Justice Mahajan, Justice Mukherjea, Justice Das and Justice Chandrasekhara Aiyar, 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 possessed no jurisdiction to interfere with the order of the Returning Officer. Consequently, the petition for certiorari was deemed not maintainable, and the High Court was barred from directing the Returning Officer to alter the list of valid nominations.

In this judgment the Court explained that the term “election” has acquired both a narrow and a wide meaning through long usage in the context of selecting representatives for democratic institutions. In its narrow sense the word refers only to the final act of choosing a candidate, which may consist of the poll result when voting takes place, or the return of a candidate unopposed when there is no poll. In its wide sense the expression encompasses the entire procedural sequence that culminates in a candidate being formally declared elected, and it is this broader sense that is employed in Part XV of the Constitution, the section where article 329(b) is situated. The Court observed that the design of Part XV together with the Representation of the People Act, 1951, is to ensure that any matter capable of invalidating an election must be raised at the proper stage, before a specially constituted tribunal, and must not be presented at any intermediate stage before an ordinary court. Under the election law, the rejection of a nomination paper acquires significance solely because it can serve as a ground for calling the election into question. Article 329(b) was enacted, the Court noted, to prescribe the exact manner and the specific stage at which such grounds, together with any other grounds provided by law for challenging an election, may be invoked. By implication, the language of the provision excludes the possibility of raising those grounds in any other manner, at any other stage, or before any other court.

The Court further reasoned that permitting the early raising of election-challenging grounds would defeat the purpose of article 329(b) and of establishing a special tribunal, because any errors could be corrected before the election, rendering the special mechanism unnecessary. The Court warned that any alternative interpretation of the provision would create anomalies the Constitution could not have contemplated, such as the risk of contradictory findings by a High Court at the pre-polling stage and by the independent election tribunal at the later stage when the matter is finally addressed. Consequently, the Court held that contesting the rejection of a nomination paper amounts to “questioning the election” within the meaning of article 329(b) of the Constitution and section 80 of the Representation of the People Act, 1951. Recognising the vital functions that legislatures perform in a democracy, the Court emphasized that it has always been regarded as essential that elections be concluded promptly according to the prescribed timetable, and that any disputes or controversies arising from the electoral process should be deferred until after the election has ended, so that the election procedure is not unduly delayed or prolonged.

In line with the principle that only matters affecting the result of an election deserve consideration, the election law of this country, as well as that of England, prescribed that any issue which does not influence the election should be ignored. The law further stated that if irregularities occur while the election is proceeding, and those irregularities belong to the class of faults that, under the statutory scheme governing elections, would have the effect of nullifying the election and permitting an aggrieved person to challenge it, those matters must be referred to a special tribunal by filing an election petition. They were not to be litigated before any ordinary court while the election was still in progress. The judgment emphasised that the right to vote or to stand as a candidate is not a fundamental civil right; rather, it is a right created by statute or special legislation and therefore must be subject to the limitations imposed by that legislation. The Court observed that the exclusive authority to examine and decide all questions relating to the election of its own members rested with the Legislature. When the Legislature delegated that authority to a specially constituted tribunal, it created a new and distinct jurisdiction, and that jurisdiction had to operate in accordance with the statute that had established it. Moreover, where a statute creates a right or a liability and provides a specific remedy for its enforcement, the statute-prescribed remedy alone must be used. The Court cited several authorities that support this approach, including Wolverhampton New Water Works Co. v. Hawkesford, Neville v. London Express Newspaper Limited, Attorney-General of Trinidad and Tobago v. Gordon Grant & Co., Secretary of State v. Mask & Co., Hurdutrai v. Official Assignee of Calcutta, and The Berge v. Laundry, all of which were referred to in the judgment of the High Court of Madras that was affirmed.

The judgment proceeded to set out the procedural posture of the appeal. It identified the case as a civil appellate matter, bearing the citation Case No. 351 of 1951, and noted that the appeal was filed under article 132 of the Constitution against the judgment and order dated 11 December 1951 of the Madras High Court, rendered by Justices Subba Rao and Venkatarama Ayyar in Writ Petition No. 746 of 1951. The Court recorded that the factual background and the arguments presented by counsel were detailed in the earlier judgment. Counsel for the appellant was identified, as were counsel for the first respondent, for the Union of India, and for the State of Madhya Bharat. The judgment was dated 21 January 1952 and was delivered by Justice Fazl Ali, with Chief Justice Patanjali Sastri and Justices Mahajan, Mukherjea, Das and Chandrasekhara Aiyar concurring. Justice Fazl Ali described the case as an appeal from the Madras High Court’s order that had dismissed the appellant’s petition for a writ of certiorari. The appellant, the Court noted, had been one of the candidates who had submitted nomination papers for election to the Madras Legislative Assembly from the Namakkal constituency.

The appellant had filed his nomination for election to the Madras Legislative Assembly from the Namakkal constituency in Salem district. On 28 November 1951 the Returning Officer of that constituency opened the nomination papers for scrutiny and, on the same day, rejected the appellant’s paper on grounds that are not material to the present appeal. The appellant consequently approached the High Court under article 226 of the Constitution, seeking a writ of certiorari to set aside the Returning Officer’s order and to direct that his name be entered among the valid nominations to be published. The High Court dismissed the petition, holding that it possessed no jurisdiction to interfere with the Returning Officer’s decision because article 329(b) of the Constitution barred such judicial intervention. In the present appeal the appellant contends that the High Court’s view is erroneous, that article 329(b) does not deprive the High Court of jurisdiction, and that he is entitled to the writ of certiorari in the circumstances. The appellant’s challenge to the High Court’s judgment is founded on two principal arguments: first, that the conclusion of the High Court does not follow from the language of article 329(b), whether read in isolation or together with the other provisions of Part XV of the Constitution; and second, that the consequences that would follow if the High Court’s construction of article 329(b) were accepted are so startling that the courts should prefer the construction advanced by the appellant. The first argument, which concerns the interpretation of article 329(b), requires careful examination, whereas the second argument can be addressed briefly at the outset. It is appropriate to observe that the “anomalies” described by the appellant are more accurately characterized as hardship or prejudice, a view expressed forcefully by Wallace J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet, where he said that any post-election remedy would be wholly inadequate to provide the relief sought, namely, to stay the election until it could be conducted with the petitioner as a candidate. Wallace J. further explained that it offers no consolation to tell the petitioner he may stand in another election, nor does it constitute a remedy to let the election proceed and later set it aside, because a fresh election under different conditions could produce a completely new roster of candidates, whereas the petitioner’s proper relief can only be achieved by staying the present election until his rejected nomination is reinstated.

The Court observed that an injunction to stay the election was indispensable unless the petitioner was to be denied relief altogether at the outset. It noted that, in many similar cases, the aggrieved party would normally find it difficult to commence suit before the contemplated wrong was committed; however, when the party succeeded in filing suit in time, the Court could not allow the very wrong it was asked to prevent to be consummated while the suit was pending. The Court then acknowledged that these remarks represented only one aspect of the issue and cited a later decision that presented the opposite view. In that later case, the Court remarked that the petitioner possessed an alternative remedy in the form of an election petition, which it understood had already been filed. It observed that the remedy allowing the petitioner to set aside an election after it was held was not as effective as a remedy that would stop the election altogether, and it quoted earlier observations from the Sarvothama Rao decision. The Court explained that the mere fact that the petitioner could not obtain a pre-election injunction and could only seek relief after the election did not, by itself, confer a right to a writ. It further clarified that the earlier observations concerned the propriety of an injunction in a civil suit, a matter unrelated to the present issue. Moreover, the Court noted that those remarks had been made several years earlier, when it was less common for individuals to seek to stop elections to protect personal interests. The Court highlighted the public-interest consideration that elections and the business of local bodies should not be delayed while individuals pursued personal grievances. It pointed out that the election for the elective seats in the Union had been postponed since 31 May because of the petition, leaving electors without representation and the Board functioning, if at all, with only a nominated fraction of its total strength. The petitioner, the Court said, sought to maintain this situation until his personal grievance was resolved. The Court concluded that the observations made regarding elections to local boards applied with even greater force to elections to legislatures, noting that in a democratic constitution where legislatures play a crucial role, undue postponement or obstruction of elections would lead to serious consequences.

In this part of the judgment the Court observed that any undue postponement or obstruction of elections would have serious consequences, particularly because the legislature performs an essential function in a democratic system; the Court indicated that it would consider this aspect in more detail later, but for the present purpose it relied on a precedent from the 1924 Indian Law Reports (Madras series) which stated two principles. First, that in England the inconvenience or hardship suffered by an individual candidate has never been regarded as sufficient reason for Parliament to provide an immediate remedy, and consequently a candidate whose nomination paper has been rejected must wait until after the election to challenge the validity of that rejection. Second, the Court noted that the question of personal hardship is only a secondary consideration, because if the High Court’s interpretation of Article 329(b) of the Constitution is upheld, any hardship that might result from that interpretation becomes irrelevant. The Court then set out the text of Article 329, which is the final article in Part XV of the Constitution, the heading of which is “Elections.” Article 329 reads: “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.” While construing this provision, both parties referred to other articles in the same Part, namely Articles 324, 325, 326, 327 and 328. Article 324 provides for the constitution and appointment of an Election Commissioner who is tasked with superintending, directing and controlling elections to the legislatures. Article 325 prohibits discrimination against electors on the grounds of religion, race, caste or sex. Article 326 establishes adult suffrage. Article 327 empowers Parliament to enact laws concerning all matters relating to, or in connection with, elections to the legislatures, subject to the provisions of the Constitution. Article 328 similarly empowers a State Legislature to make provisions concerning all matters relating to, or in connection with, elections to the State Legislature. The Court highlighted a notable difference in the language of Articles 327 and 328 compared with Article 329. The former two begin with the words “subject to the provisions of this Constitution,” whereas Article 329 opens with the words “notwithstanding anything in this Constitution.” It was conceded by counsel that this difference in phrasing means that, while any law made by Parliament under Article 327 or by a State Legislature under Article 328 cannot remove the jurisdiction of the High Court under Article 226 of the Constitution, that jurisdiction is excluded in respect of matters dealt with in Article 329.

Article 327, and similarly the power granted to State Legislatures under article 328, do not permit those statutes to remove the jurisdiction of the High Court that is provided by article 226 of the Constitution; however, that High Court jurisdiction is expressly excluded when the matter falls within the scope of article 329. The principal dispute in the present appeal concerns the interpretation of the phrase “no election shall be called in question except by an election petition” found in article 329(b). The specific issue to be resolved is whether a challenge to the Returning Officer’s decision to reject a nomination paper can be regarded as falling within the expression “no election shall be called in question.” The appellant contended that a challenge to an act occurring before any candidate has been declared elected is not the same as questioning an election itself. To support this construction, the appellant advanced several arguments. First, it was argued that the term “election” in article 329(b) should be understood in its ordinary and etymological sense, that is, the result of polling or the final selection of a candidate. Second, the fact that an election petition may be filed only after polling has concluded or after a candidate has been declared elected, and that such petitions normally dispute the final result, was presented as evidence that the word “election” in the provision cannot denote anything other than the polling result or the final selection. Third, it was submitted that the phrasing “arising out of or in connection with” used in article 324(1) and the phrasing “with respect to all matters relating to, or in connection with” employed in articles 327 and 328 demonstrate that the framers intentionally used different language to distinguish matters occurring before the polling result from those occurring after, and that had they intended to include the rejection of a nomination paper within article 329(b) they would have used comparable language. Fourth, the appellant argued that the Returning Officer’s action of rejecting a nomination paper is amenable to review by the High Court under article 226 because section 36 of the Representation of the People Act, 1951 provides for the scrutiny and possible rejection of nomination papers, and that Parliament enacted this provision under the authority of article 327, which is subject to the Constitution. Consequently, the action of the Returning Officer should be subject to the extraordinary jurisdiction of the High Court. While these arguments are initially persuasive, the Court observed that more compelling and fundamental reasons favor the interpretation adopted by the High Court, and that the decisive question remains the proper meaning to be assigned to the word “election” under article 329(b).

In this matter, the Court examined the interpretation to be given to the term “election” as it appears in article 329 (b) of the Constitution. The word has, through long usage in connection with the selection of representatives in a democratic system, developed both a narrow and a wide connotation. In the narrow sense, “election” refers only to the final act of selecting a candidate, which may be represented by the poll result when a poll is held, or by the return of a candidate who is elected unopposed when no poll takes place. By contrast, the wide sense treats “election” as encompassing the entire procedural sequence that culminates in a candidate being declared elected. The Madras High Court, while deciding Srinivasalu v. Kuppuswami (1), examined this issue and held that the term “election” may be understood to include the whole process by which an “elected member” is returned, irrespective of whether a poll is actually required. This view was later affirmed by another learned judge in Sat Narain v. Hanuman Prasad (2), and the present Court concurs with that reasoning. It appears that the Constitution, particularly Part XV, employs the term “election” in its wide meaning, intending it to denote the complete procedure that must be followed to return a candidate to the legislature. The expression “conduct of elections” used in article 324 further points to this broader interpretation, and the same wide sense can be consistently read into the other provisions of Part XV, including article 329 (b). The fact that the wide meaning is accepted in most scholarly works on elections and in several judicial decisions is evident from the recurring question in those sources of when an election actually begins.

The discussion in Halsbury’s Laws of England, quoted under the heading “Commencement of the Election”, illustrates this perspective. The passage observes that although the issuance of the writ is the first formal step in any election, the election may be considered, for certain purposes, to start at an earlier point. Determining the exact moment when an election begins is a factual enquiry in each case, especially when it is necessary to assign responsibility for any breach of election law. The test applied is whether the contest is “reasonably imminent”. Neither the issuance of the writ nor the publication of the notice of election alone determines the commencement date, and the nomination day likewise does not provide a definitive criterion. Typically, the election will commence at least before the writ is issued. The passage further emphasizes that the question of when an election starts must be distinguished from the question of when the “conduct and management of” an election may be said to begin. This nuanced analysis supports the view that the term “election” properly refers to the whole series of stages and steps that together form the electoral process, many of which can influence the final outcome.

Again, the Court observed that the question of when a particular individual began to be a candidate had to be examined in each case. The discussion in the passage clarified that the term “election” could appropriately refer to the entire process, which comprised several stages and included many steps, some of which might have a material impact on the final result. The next important issue for the Court was to determine the meaning of the expression “no election shall be called in question.” A review of any English treatise on elections showed that an election in that jurisdiction could be challenged only on very limited grounds, one of which was the improper rejection of a nomination paper. The Court noted that the law applicable in this country was not materially different, as section 100 of the Representation of the People Act, 1951 listed the improper rejection of a nomination paper among the grounds for declaring an election void. The Court then considered whether the electoral law in this country permitted two separate assaults on matters connected with election proceedings: one while the election was ongoing, by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts being expressly excluded), and another after the election had concluded, by filing an election petition. In the Court’s opinion, affirming such a position would conflict with the scheme of Part XV of the Constitution and the Representation of the People Act, which appeared to require that any matter capable of vitiating an election be raised only at the appropriate stage before a special tribunal and not at an intermediate stage before any other court. The Court explained that, under election law, the only significance of rejecting a nomination paper lay in its use as a ground to call the election into question. Article 329(b) was apparently enacted to prescribe the manner and the stage at which this ground, together with other grounds under the law for calling an election into question, could be invoked. The Court inferred by necessary implication from the language of that provision that those grounds could not be raised in any other manner, at any other stage, or before any other court. The Court argued that if the grounds for calling an election into question could be raised at an earlier stage and any errors were corrected, there would be no purpose for enacting a provision such as Article 329(b) and for establishing a special tribunal. Any other interpretation of the words used in the article would produce anomalies, which the Constitution could not have contemplated, including the possibility of conflicting views being expressed by the High Court at the pre-polling stage and by the election tribunal, an independent body, when the matter was finally brought before it.

It was observed that the Constitution does not contemplate a situation in which the High Court could express a view at the pre-polling stage that later conflicts with a view expressed by the election tribunal, which is intended to function as an independent body when the matter is finally before it. A concise review of the structure of Part XV of the Constitution together with the provisions of the Representation of the People Act 1951 demonstrates that the interpretation favoured by the Court is the appropriate one. In general terms, before an electoral system can be set in motion, three essential requirements must be satisfied. First, there must exist a comprehensive body of laws and rules covering every matter that relates to elections, and a procedure must be established for making those laws and rules. Second, an executive authority must be appointed with the responsibility of ensuring that elections are conducted properly. Third, a judicial tribunal must be created to adjudicate disputes that arise out of or are connected with elections. Articles 327 and 328 of the Constitution address the first requirement, article 324 deals with the second, and article 329 concerns the third. The remaining two articles in Part XV, namely articles 325 and 326, focus on two principles that the framers of the Constitution considered especially important: the prohibition of discrimination in preparing or qualifying the electoral rolls on the basis of religion, race, caste, sex or any combination of these, and the guarantee of adult suffrage. Thus Part XV functions as a self-contained code that lays down the entire framework for enacting suitable legislation and for establishing the machinery needed for conducting elections. The Representation of the People Act 1951, enacted by Parliament under article 327, provides detailed rules for every aspect and every stage of elections to the various legislatures in the country. The Act is organized into several parts, each dealing with a distinct subject matter. Part II sets out the qualifications and disqualifications for membership, Part III prescribes the procedures for notifying general elections, Part IV establishes the administrative machinery for conducting elections, and Part V contains the provisions governing the actual conduct of elections, including the presentation of nomination papers, the requirements for a valid nomination, the scrutiny of nominations, and the processes for polling and counting votes. Part VI addresses disputes concerning elections and specifies the manner in which election petitions may be presented, the constitution of election tribunals, and the trial of election petitions. Part VII enumerates the various corrupt and illegal practices that may affect elections and defines electoral offences. Consequently, the Act operates as a comprehensive, self-contained statute dealing exclusively with elections, meaning that whenever the true position on any electoral matter must be determined, reference is made solely to the Act and the rules made thereunder.

In this case, the Court observed that to determine the true position on any matter relating to elections, one only needed to examine the Representation of the People Act and the rules made thereunder. The provisions that were relevant to the present dispute were sections 80, 100, 105 and 170 of the Act, together with the provisions of Chapter II of Part IV that dealt with the form of election petitions, their contents and the reliefs that could be claimed. Section 80, drafted in language almost identical to article 329(b) of the Constitution, stated that no election could be called into question except by an election petition presented in accordance with the provisions of that Part. Section 100, as earlier noted, set out the grounds on which an election might be challenged, one of the grounds being the improper rejection of a nomination paper. Section 105 declared that every order of the Tribunal made under the Act would be final and conclusive. Section 170 provided that no civil court possessed jurisdiction to question the legality of any action taken or any decision given by the Returning Officer or by any other person appointed under the Act in connection with an election. The Court emphasized that these were the principal statutory provisions governing judicial interference in electoral matters and that the Act contained no clause permitting an intermediate-stage challenge. The Court then referred to the well-settled principle that when a statute creates a right or imposes a liability and also prescribes a special remedy for enforcing that right or liability, the statutory remedy alone must be used. This principle had been articulated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford, where he described three classes of cases. In the first class, a pre-existing common-law liability was affirmed by a statute that offered a distinct remedy, and the party could elect either remedy unless the statute expressly excluded the common-law route. In the second class, the statute conferred a right but did not specify a particular remedy, so the party had to rely on the common-law action. In the third class, the statute created a new liability that did not exist at common law and simultaneously provided a special and particular remedy for its enforcement. Willes J. concluded that the remedy provided by the statute must be followed and that the party could not resort to the common-law process applicable to the second class. The Court noted that this rule had subsequently been approved by the House of Lords in Neville v. London Express Newspaper Limited and reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. and Secretary of State v. Mask & Co. It had also been applied to the enforcement of rights in Hurdutrai v. Official Assignee of Calcutta. Accordingly, the Court inferred that the Representation of the People Act allowed only one remedy—an election petition filed after the election—and that no remedy existed for an intermediate stage.

The passage that was approved by the House of Lords in Neville v. London Express Newspaper Limited and later reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. and Secretary of State v. Mask & Co. has also been held to apply equally to the enforcement of rights, as seen in Hurdutrai v. Official Assignee of Calcutta. From those precedents, the Court inferred that the Representation of the People Act contains only a single remedy, namely an election petition that must be presented after the election has concluded; the Act provides no remedy at any intermediate stage of the electoral process. An argument was advanced that, because the Representation of the People Act was enacted subject to the Constitution, it could not preclude the High Court from exercising jurisdiction to issue writs under article 226 of the Constitution. The Court rejected that argument by reading the Act together with article 329(b). It observed that the language of article 329(b) and the language of section 80 of the Act are almost identical, the only difference being that the constitutional provision is prefixed by the words “notwithstanding anything in this Constitution.” Those words, the Court held, are sufficient to exclude the High Court’s jurisdiction to intervene in matters that arise while elections are in progress. The Court noted that section 107(1) of the Representation of the People Act, 1949 in England is drafted in substantially the same terms as article 329(b), stating: “No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return … presented in accordance with this Part of this Act.” Similar wording had appeared in earlier statutes, and English courts have never held that the improper rejection of a nomination paper can be challenged by a writ of certiorari or mandamus. Instead, counsel conceded that challenges to the improper rejection of nomination papers have always been raised before the appropriate tribunal through an election petition after the election’s conclusion. Although there is no direct decision expressly stating that the words used in the relevant provisions exclude the High Court’s power to issue prerogative writs at an intermediate stage, the complete absence of any such decision can be explained only by the general understanding that those provisions are intended to have that effect.

Reference was made to rule 13 of the rules annexed to the Ballot Act of 1872 and to a corresponding rule found in the Parliamentary Elections Rules of 1949. Both rules provide that when a Returning Officer disallows an objection to a nomination paper, that decision is final, whereas if the Returning Officer permits an objection, the decision may be overturned on a petition that challenges the election or the return. Although these procedural rules were noted, the Court held that they did not bear on the principal issue before it. The Court observed that it is legitimate to contend that, when language similar to that used in article 329(b) of the Constitution has been consistently interpreted in England as excluding the jurisdiction of the courts, including the High Court, the same interpretative result must follow from the language employed in article 329(b). The phrase “notwithstanding anything in this Constitution” was said to give that article a force comparable to a statute enacted by a sovereign legislature such as the English Parliament. Furthermore, the Court pointed out that article 329(b) must be read as complementing clause (a) of the same article. Clause (a) bars judicial intervention in matters relating to laws made under articles 327 and 328 concerning the delimitation of constituencies or the allocation of seats to those constituencies. The Court noted that it had been conceded that article 329(b) removes judicial jurisdiction over matters that arise from the commencement of polling until the final selection of a candidate. Consequently, the Court asked what conceivable purpose the legislature could have had in limiting High Court jurisdiction under article 226 to only those matters connected with nominations. If Part XV of the Constitution functions as a self-contained code that creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts, including the High Court, there is no rational basis for assuming that the Constitution would leave a narrow portion of the electoral process for adjudication before the High Courts, thereby disrupting the election timetable. The Court therefore concluded that the more reasonable construction is that article 329 encompasses all “electoral matters.”

The Court then summarized its conclusions. First, it emphasized that, given the vital functions legislatures perform in democratic societies, it has always been recognized as a matter of utmost importance that elections be concluded as early as possible in accordance with the prescribed schedule, and that any controversial issues or disputes arising from elections should be deferred until after the election has been completed so that the electoral process is not unnecessarily delayed or prolonged. Second, adhering to this principle, the Court observed that the scheme of election law in this country, as well as in England, is to attach no significance to any matter that does not affect the “election” itself. Accordingly, if any irregularities are committed while the election is still in progress, such irregularities belong to the category of matters that, under the law governing elections, would have the effect of vitiating the election and would enable the affected party to challenge it. Such matters, the Court said, should be presented before a special tribunal through an election petition rather than being the subject of dispute before any court while the election is ongoing.

When a question arises that is capable of nullifying an election while the poll is still underway, the law treats such a matter as one that must be presented before a special election tribunal through an election petition. It should not be the subject of a dispute in any ordinary court while the election is in progress. The principle is illustrated by a decision of the Privy Council in Theberge v. Laudry (1876) 2 App. Cas. 102. In that case the petitioner had been declared duly elected as a member of the Legislative Assembly of the Province of Quebec. Subsequently, on petition, the Superior Court, applying the Quebec Controverted Elections Act of 1875, declared the election void and found the petitioner personally guilty of corrupt practices as well as his agents. The petitioner then sought special leave to appeal to Her Majesty in Council, but the petition for leave was refused. The refusal was based on the proper construction of the 1875 Act and the earlier 1872 Act, which expressly provided that the judgment of the Superior Court “shall not be susceptible of appeal.” The legislative intent, the Council held, was to create a tribunal dedicated to trying election petitions whose decision would be final for all purposes and would not be subject to review by the Crown under its prerogative.

In delivering the Privy Council’s judgment, Lord Cairns observed that the two Acts of Parliament were “peculiar in their character” because they did not deal with ordinary civil rights but instead created an entirely new and, until then, unknown jurisdiction in a particular Court. This jurisdiction was intended to take over from the Legislative Assembly the function of deciding election petitions and to determine the status of those claiming membership of the Assembly. Lord Cairns emphasized that such a special jurisdiction must be exercised in a manner that quickly becomes conclusive, thereby allowing the composition of the Legislative Assembly to be known promptly. After addressing other matters, the Lord Chancellor added that the subject-matter of the legislation was extremely peculiar, concerning the rights and privileges of electors and of the Legislative Assembly to which they elect members. Those rights and privileges, he noted, form a distinct and specialized area of law.

In every colony, following the model of the mother country, the Legislative Assembly had always jealously protected the rights and privileges that belonged to it. These privileges were regarded as belonging exclusively to the Assembly, independent of the Crown, insofar as they properly existed. It would therefore be surprising and contrary to the overall purpose of the legislation if, finally, the determination of such rights and privileges ceased to rest with the Legislative Assembly, ceased to rest with the Superior Court that the Assembly had created in its place, and instead fell to the Crown in Council, acting on the advice of the Crown’s advisers at home, without reference to either the judgment of the Legislative Assembly or that of the Court it had substituted. From this decision, two main points emerge. First, the right to vote or to stand as a candidate for election is not a civil right; it is created by statute or special law and must be subject to the limitations imposed by that law. Second, it is, in strict terms, the sole prerogative of the Legislature to examine and determine all matters relating to the election of its own members. If the Legislature transfers that authority to a special tribunal, creating an entirely new jurisdiction, that tribunal must exercise its power in accordance with the law that established it. The Court noted that the question of the powers of the High Court under articles 226 and 227 and of the Supreme Court under article 136 of the Constitution will have to be decided on an appropriate occasion. At this stage, the Court considered an argument raised on behalf of the appellant that relied on article 71(1) of the Constitution, which provides: “All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final.” The argument highlighted the marked contrast in language between article 71(1) and article 329(b). The differing phraseology suggested that the two provisions were not intended to have the same meaning and scope concerning the matters that could be brought before the respective tribunals. The argument further asserted that, had the Constitution’s framers intended article 329(b) to cover all possible disputes related to elections to legislatures, including disputes over nominations, they would have employed similar wording.

The Court observed that although article 71 (1) uses a particular wording, it is not essential for every constitutional provision to employ identical language. The Court noted that various alternative expressions could convey the meaning intended by article 329 (b) with equal clarity. It further remarked that once it is accepted that the same idea may be expressed in different terms and that uniform phrasing is not required in each provision, the argument challenging article 329 (b) on the basis of its wording loses much of its persuasiveness. Nonetheless, the Court indicated that a satisfactory explanation exists for the manner in which article 329 (b) was drafted. By referring to the election rules framed under the Government of India Acts of 1919 and 1935, the Court demonstrated that those rules employed language closely resembling that of article 329 (b). The rule under the Government of India Act, 1919, identified as rule 31 of the electoral rules, states: “No election shall be called in question, except by an election petition presented in accordance with the provisions of this Part.” The Court pointed out that this rule appears in Part VII, whose heading reads “The final decision of doubts and disputes as to the validity of an election.” These headings illuminate the function intended for the election tribunal, and they correspond to the wording that counsel for the appellant argued should have been used to clarify the provision’s meaning. The Court further explained that the same pattern was adopted in the election rules established under the Government of India Act, 1935, which are contained in “The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936,” dated 3 July 1936. The corresponding rule in that Order states: “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 located in Part III of the Order, headed “Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices.” The Court observed that these rules were apparently modeled on the corresponding provisions of the British Acts of 1868 and 1872, which had long been understood in England to cover the same subject matter. Considering this historical background, the Court concluded that it is not difficult to understand why the Constitution’s framers chose the present wording for article 329 (b), selecting language that had been consistently employed in earlier legislative enactments and had withstood the test of time. Finally, the Court indicated that it would now address the reason for the use of negative language in the article.

In examining the constitutional provisions, the Court observed a substantial distinction between article 71 (1) and article 329 (b). Article 71 (1) was drafted in an affirmative manner because it creates a special jurisdiction for the Supreme Court that the Court could not otherwise exercise except as conferred by this article. By contrast, article 329 (b) was designed principally to exclude the jurisdiction of every court in electoral matters and to prescribe the sole procedure for challenging an election. Consequently, a negative formulation was deemed more suitable, and it was logical that the framers followed the existing pattern in which negative language had already been employed. Before closing its discussion, the Court turned to an argument that had been forcefully presented by counsel for the appellant and reproduced by a High Court judge. The argument asserted that if a nomination forms part of an election, then a dispute concerning the validity of the nomination amounts to an election-related dispute, which may be raised only through an election petition under article 329 (b). It further claimed that the Returning Officer would lack authority to decide the matter and that section 36 of Act XLIII of 1981 was ultra vires because it allegedly granted the Returning Officer jurisdiction that article 329 (b) reserves for a Tribunal appointed in accordance with that article.

The Court characterized this line of reasoning as exhibiting considerable dialectical skill but noted that it did not affect the outcome of the appeal and could be answered succinctly. Under section 36 of the Representation of the People Act, 1951, the Returning Officer is mandated to examine nomination papers to verify their compliance with statutory requirements and to resolve any objections raised against any nomination. The Court emphasized that without the proper performance of this duty, numerous candidates might contest elections without meeting legal standards, resulting in confusion. While performing this statutory function, the Returning Officer does not question the election itself; rather, the scrutiny of nomination papers represents an essential, albeit preliminary, stage in the electoral process. The Court held that nothing done to advance the election can, by any reasonable interpretation, be described as questioning the election. The argument’s flaw lay in equating a single procedural step taken to further an election with the election itself. Ultimately, the Court clarified that the appeal did not hinge on the definition of the word “election” but on interpreting the comprehensive phrase “no election shall be called in question” within its constitutional and statutory context.

In this case, the Court observed that the expression “called in question” must be interpreted in its proper context and setting, and that such interpretation must be undertaken with due regard to the structure and purpose of Part XV of the Constitution as well as to the provisions of the Representation of the People Act, 1951. The Court further held that the argument advanced by the petitioner regarding the meaning of the phrase did not affect the chosen method of approaching the issue presented in the appeal, and that the adopted method represented the only correct approach to resolve the matter. The Court was informed that, in addition to the Madras High Court, seven other State High Courts had held that they lacked jurisdiction under article 226 of the Constitution to entertain petitions that challenged the improper rejection of nomination papers. The Court agreed with that view, affirmed its correctness, and consequently concluded that the appeal failed and should be dismissed. In view of the nature and importance of the points raised, the Court decided that no order as to costs should be made against any party. The Chief Justice, Patanjali Sastri, expressed agreement, and each of the other judges—Mehr Chand Mahajan, Mukherjea, Das, and Chandrasekhara Aiyar—also recorded their agreement. The appeal was dismissed. The agents for the parties were noted as follows: the appellant was represented by S. Subrahmanyam; the first respondent was represented by P. A. Mehta; and the Union of India and the State of Madhya Bharat were also represented by P. A. Mehta.