REGISTERED No. D. 221
The Gazette of India
EXTRAORDINARY
PART II—Section 3—Sub-section (ii)
PUBLISHED BY AUTHORITY
No. 135] NEW DELHI, FRIDAY, APRIL 19, 1968/CHAITRA 30 , 1890
Separate paging is given to this Part in order that it may be filed
as a separate compilation
MINISTRY OF LAW
(Legislative Department)
NOTIFICATION
New Delhi, the 19th April 1968
S.O. 1434-—The following Order made by the President is published for general Information;
ORDER
Whereas a petition has been filed by Shri Bableshwar Hajisaheb Aminsaheb against Shri Damani Surajratan Fattechand, a Member of the House of the People allowing that the opposite party therein has become subject to the disqualifications under article 102 of the Constitution;
And whereas a reference has been made by the President to the Election Commission with reference to the said petition under article 103 of the Constitu- tion as to whether the said Shri Damani Surajratan Fattechand has become subject to any of the disqualifications mentioned in article 102 of the Constitution;
And whereas the Election Commission has given its opinion that the opposite party has not become subject to any of the disqualifications (a copy of which is annexed hereto) on the aforesaid reference by the President under article 103;
ZAKIR HUSAIN,
President of India.
Now, therefore, T. Zakir Husain, President of India, in exercise of the powers conferred on me under article 103 of the Constitution, do hereby decide, ill accordance with the opinion of the Election Commission, that the. said Shri Damani Surajratan Fattechand has not become subject to any of the disqualifications mentioned in clause (1) of article 102 after he became a Member of the House, of the People. RASHTRAPATI BHAVAN, NEW DELHI. 13th April, 1968.
( 525 )
526 r H£ GAZETTE OF INDIA EXTRAORDINARY [PART H-ANNEX"0T!E
ELECTION COMMISSION, INDIA
REFERENCE CASE NO. 5 OF 1967
[Under article 103 of the Constitution of India] Shri Bableshwar Hajisaheb Aminsaheb—Petitioner.
Versus
Shri Damani Surajratan Fattechand—Opposite Party.
PRESENT
Shri S. P. Sen-Verma Chief Election Commissioner of India
The 2917i day of March 1968.
The petitioner, Shri Bableshwar Hajisaheb Aminaheb in person.
For the respondent—Shri R. M, Hajarnavis, Senior Advocate with Shri Balmukand R. Agarwala, Advocate.
OPINION
This is a case under article 303 of the Constitution on a reference made by the President of India. The allegations made by the petitioner in his petition filed before the President in his affidavit and in his oral arguments before me are that the respondent committed during the last genera] election held in February 1967, two corrupt practices and one offence. It is alleged that the respondent committed on the polling day the corrupt practice of free conveyance of voters to and from polling stations under section 123(5) which is also an electoral offence under section 133 of the Representation of the People Act, 1951. The other corrupt practice alleged to have been committed by the respondent is the incurring of election expenses beyond the authorised maximum limit of Rs. 25,000. It has been stated in the affidavit filed by the petitioner as well as in his oral arguments before me that the respondent, Shri Damani, spent about Rs, 25 lakhs from secret funds for corrupt practices at the time of the election which took place on the 15th February, 1967.
The respondent while completely denying all these allegations has raised a preliminary objection. It is contended that the present petition does not He at all and is entirely incompetent as the two corrupt practices and the one electoral offence are alleged to have been committed, according to the petitioner's own case, during the last general election before the respondent was declared elected as a member of the House of the People. It is contended that the petitioner, if he had any grievance, should have filed an election petition under the relevant provisions of the Representation of the People Act, 1951,
I am of the opinion that this preliminary objection raised by the respondent must be upheld. On the petitioner's own case, as made out in his petition, affidavit and oral arguments, the two corrupt practices and the one electoral offence were committed by the respondent during the last general election of February 1967. If that be so, then it is well settled by the decisions of the Supreme Court that article 103 of the Constitution is applicable only in the case of a supervening or post-election disqualification and not in the case of any pre-election disqualification. In other words, the question, which may be raised under article 103 is as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in article 102(1). If a disqualification has been incurred before a person has become a member of either House of Parliament, then the remedy lies by means of an election petition under the relevant provisions of the, Representation of the People Act read with article 329 (b) of the Constitution, wide Saka Venkata Rao's case (1953) SCR 1144. This case has been approved and followed by the Supreme Court in the recent case of Shri Brundaban Nayak (1905) 3 SCR 53.
Apart from the decisions of the Supreme Court mentioned above the langu- age of article 103 clearly shows that the disqualification referred to therein must be a disqualification incurred after a person has become a member of Parliament. In other words, the disqualification must be engendered by the commission of a corrupt practice or an electoral offence or otherwise after a person has become B member of Parliament. The mention of the words 'a member' and 'has become subject' in article 103(1) clearly shows that the disqualifications must be super- vening or post-election disqualifications. By way of comparison, It may be
Sfcc. 3(li)] THfc O A z t r t 't OF INDIA EXTRAORDINARY 527
pointed out that article 102(1), uses the expression 'a person'—a person shall be disqualified and not a member shall become subject to disqualification. The language of article 103(1) is in. pan matena with the language ol article 101(3). In that article also the \vord used is 'member' and not 'person'.
Then, under article 329 (hj an election can be called in question only by an election petition and 111 no other way. Since the commission oi a corrupt practice vitiates an election, it is one oi Ihe grounds under section 100 of the Representation of the People Act, 1951 on which an election can be called in question by an election petition. II such election petition is not filed, then the commission oi such corrupt practice and any disqualification which it may entail cannot be agitated afterwards m view oi tne clear mandate oi article 329. But if a disqualification is incurred by a member 0} Jfartiament, that is, by a person alter he has become a member of Parliament, then that has nothing to do with the election or nomination whereby he had been elected or nominated as a member of Parliament and, therelore, such subsequent disqualification cannot be made a subject matter oi an election petition under the .Representation of the People Act, 1951, But though a disqualified member cannot, continue as such member 111 view ol article lul(3)(u), lhaL article cannot, be invoked, nor can it come into play unless and until 11 has been lound by a competent authority that the member concerned has become subject to such disqualification. JMow, who this competent authority should be and. can be. Parliament, and it is well known, is extremely jealous of its own rights and privileges and the rights and privileges of its members. Therefore, the iiamers "of the Constitution thought that the decision on a matter like ihis should not be leit to an outside agency, however high that agency might be, and thereioie, have provided by article 103 that if a question is raised as to whether a member oi Parliament has become subject to any disqualifications, then it should be decided by one oi the constituent organs of Parliament itself and by nobody else, namely, the President oi India who under article 79 oi the Constitution is one oi the component units oi Parliament. But article 103 again provides that in givnig his decision the Presi- dent shall be guided by the opinion of the Election Commission. There is good reason lor his also. The jilccaon Commission having been entrusted Dy tho Constitution with the superintendence, direction and control of ail elections and ail maUers relating there co is an expert authority to decide questions oi dis- qualihcanons ol members oi Parliament, not only tnat, the election Commission has been made an independent and impartial body by tne Constitution itselt as the highest Court of the land, namely, the Supreme Court o± India. These are the principles underlying article 103 of the Constitution.
Thus, both on authority and on principle, I am of the view that the petitioner has no Locus standi to move tne President under article 103 of the Constitution. In view of my finding on the preliminary point it is not necessary for me to go into the merits ot tne case m detail. Except the uncorroborated statement oi the petitioner, there is nothing on the record to prove tnat tne respondent has exceeded the maximum amount ot eiecuon expenses authorised by law. As stated already, the petitioner, in IDS atlldavit as well a-s in his oral arguments before me, repeatedly alleged that tne respondent had incurred, an expenditure oi Wt.. 125 lakhs during the last general eiecUon out tne petitioner instead oi lollowing the right course by means oi filing an election petition has adopted the wrong path of moving the President under article 103. 1 know that the problems connected with election expenditure do not admit oi an easy solution as one jurist (and not a politician or political writer) Proi, Junus faione in his recent book "Social Dimensions oi Law and Justice" (19b6; has observed at page 31b— "The problems oi licit and illicit election expenses are unending." Be that as it may, in the instant case the petitioner is without any remedy. In the first place his petition is bound to fail on the preliminary ground. In the second place, his allegations he has utterly failed to prove.
The petitioner had, instead of filing an election petition under the Represen- tation of the People Act, 1951, filed a writ petition beiore tne Bombay High Court for declaring the election oi the respondent void. But the Bombay High Court dismissed that petition. The petitioner also produced certihed copies of two judgments in a criminal case to prove his allegations that two motor car drivers who had been employed by the respondent had been convicted by the criminal court- In both the cases the accused persons voluntarily pleaded guilty and each ol them was convicted and sentenced to pal a fine ol its. 2b, in detault to suffer simple imprisonment for 15 days. Assuming that these two motor car drivers were the agents of the, respondent, even then the conviction oi the agents or employees cannot by any stretch of imagination be regarded as the conviction of the principal or the master. There is no provision in criminal law or juris- prudence that if the agent or the servant is convicted and sentenced, then the
528 T HE GAZETTE OF INDIA EXTRAORDINARY [PART II-SEC. 3(li)]principal or the master shall also bo convicted and sentenced even if the principal or the master has not been joined as a co-accused and even if no rhargp, has been framed and proved against him, Bv no fiction of law can such a startling proposition be allowed or accepted. Thr rase is of course entirely different where the principal or tho master is joined as a co-accused and Is convicted for 1he offence committed by the agent or tho servant cither as a conspirator or sis an abettor or as an accessory but that is not the case of the petitioner in thh case.
Even if it be assumed for the sake of argument and argument only that the respondent should be visited with the consequonces (in this case disqualification for conviction) of his agents' conviciion (again on the assumption that the con- victed motor car drivers were his agents), even then that would have been of no avail to the petitioner because under section 8 of the Representation of tho People Act, 1951. conviction for an offence under section 133 of Itjat Act does not entail any disqualification for membership. But as stated curlier, these considerations of the ease on merit are unnecessary in view of my finding on the preliminary objection that the petition does not lie under article 103 of the Constitution.
I must say that the petitioner is a frank man. He admitted nt the end of the hearing that he could not flic a regular election petition before the election court, narnely. the Bombay High Court, because of the heavy amount of security deposit (Rs. 2,000) which is required to be filed with an election petition under section 117 of the Representation of the People Act, 195] I have sympathy for the petitioner although that sympathy i,s hardlv of any avail to him. I am accordingly of the opinion that the petition filed bv tho petitioner before, the President of India should be dismissed and that it cannot be held, that the respondent has become subject under article 103 of the Constitution to any of the disqualifications mentioned in clause (1) of article 102 after he became a member of the House of the People.
The Election Commission accordingly humbly advised tho President of Indln that the petition filed before him by the petitioner, Shri Bnblophwnr Haji'Sheb Aminsaheb, should be dismissed as he has failed to prove that the opposite parlv. Shri Damani Surajratan Fattcchand, has become, as a member of Parliament subject to any of the disqualifications mentioned In article 102
S- P. SEN-VARMA,
Chief Election Commissioner of India,
29-3-1908.
FNo. F.7(13)/"8-Leg.II.J
V. N BHATIA, Secy,