Election Commission Of India vs Saka Venkata Rao: Case Analysis

This Case comment on Election Commission Of India vs Saka Venkata Rao is written by Veerpal Kaur, a 5th-year BA.LLB student at School of Law, LPU.

INTRODUCTION

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO – 205 of 1952

PARTIES: Election Commission Of India vs Saka Venkata Rao

ELECTION COMMISSION, INDIA ………PETITIONER

VERSUS

SAKA VENKATA SUBBA RAOUNION OF INDIA ……….RESPONDENTS

JUDGES (BENCH)

JUSTICE SASTRI, M. PATANJALI (CJ), MUKHERJEA, B.K., BOSE, VIVIAN, HASAN, GHULAM, BHAGWATI, NATWARLAL H.

This is an appeal from an order of a Single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the Election Commission, a statutory authority constituted by the President and having its offices permanently located at New Delhi, from enquiring into the alleged disqualification of the respondent for membership of the Madras Legislative Assembly.

FACTS OF THE CASE:

• The respondent was convicted by the Sessions Judge of East Godavari and sentenced to a term of seven years’ rigorous imprisonment in 1942, and he was released on the occasion of the celebration of independence Day on 15th August, 1947.
• In June 1952, there was to be a by-election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under section 7 (b) of the Representation of the People Act, 1951, as five years had not elapsed from his release, applied to the Commission on 2nd April, 1952, for exemption so as to enable him to contest the election.¹
• No reply to the application having been received till 5th May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th June, 1952. The result of the election was published in the Fort St. George Gazette  (Extraordinary) on 19th June, 1952, and the respondent took his seat as a member of the Assembly on 27th June, 1952.
• Meanwhile, the Commission rejected the respondent’s application for exemption and communicated such rejection to the respondent by its letter dated 13th May, 1952, which however was not received by him. On 3rd July, 1952, the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice “for such action as he may think fit to take”, the fact that the respondent’s application for exemption had been rejected. A question as to the respondent’s disqualification having thus been raised, the Speaker referred the question to the Governor of Madras who forwarded the case to the Commission for its “opinion” as required by article 192 of the Constitution.
• The respondent having thereupon challenged the competency of the reference and the action taken thereon by the Governor, the Commission notified the respondent that his case would be heard on 21st August, 1952. Accordingly, the Chief Election Commissioner (who was the sole Member of the Commission for the time  being) went down to Madras and heard the respondent’s counsel and the Advocate-General of Madras on 21th August, 1952, when it was agreed that, in case the petitioner’s counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28th August, 1952, and the Commission should take them into consideration before giving its opinion to the Governor.
• On the same day (21st August, 1952) the respondent applied to the High Court under article 226 of the Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal. He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear from proceeding with the reference made by the Governor of Madras who was not, however, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the court to issue the writs asked for, on the ground that the Commission was not “with in the territory in relation to which the High Court exercised jurisdiction”.
• A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under article 361 (1), and that the Commission itself, which had not to “decide” the question of disqualification, but had merely to give its “opinion”, could not be proceeded against under article 226.
• On the merits, the Commission contended that article 192 was, on its true construction, applicable to cases of disqualification arising both before and after the election and that both the reference of the question as to the respondent’s disqualification to the Governor of Madras and the latter’s reference of the same to the Commission for its opinion were competent and valid.
• The application was heard by Subba Rao J. who overruled the preliminary objections and held that article 192 on its true construction applied only to cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent’s disqualification which arose long before the election took place. He accordingly issued a writ prohibiting the Commission from proceeding with the enquiry in regard to the question referred to it by the Governor under article 192. The learned Judge, however, granted a certificate under article 132 that the case involved substantial questions of law as to the interpretation of the Constitution, and the Commission has accordingly preferred this appeal.

LAWS INVOLVED (LAW POINTS)

SECTION 7 (b) OF THE REPRESNTATION OF PEOPLE ACT, 1951²:- “disqualified”

means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

ARTICLE 192 OF THE CONSTITUTION³: – Decision on questions as to disqualifications of members.

1. If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred to the decision of the Governor and his decision shall be final.
2. Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

ARTICLE 226 OF THE CONSTITUTION⁴: – Power of High Courts to issue certain writs.

1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
   • a)          Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
   • b)         giving the such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
4.   The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

ARTICLE 132 OF THE CONSTITUTION⁵: – Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.

1. An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as t the interpretation of this Constitution.
2. Omitted.
3. Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the expression final order includes an order declaring an issue which, if decided in favor of the appellant, would be sufficient for the final disposal of the case.

ARTICLYE 361(1) OF THE CONSTITUTION⁶; –

1. The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties: Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that

nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governor of India or the Government of a State.

ISSUE FRAMED

1.  That the conclusion arrived at by the High Court does not follow from the language of Article 329 (b) of the Constitution. Whether that Article is read by itself or along with the other Articles in Part XV of the Constitution?
2. That the anomalies which will arise if the construction put by the High Court on Article 329 (b) is accepted, are so startling that the Courts should lean in favor of the construction put forward on behalf of the appellant.
3. Whether the Articles 191, 192 and 193 deals with Pre-election disqualification?

SUBMISSIONS OF THE PETITIONER

• The first argument which turns on the construction of Article 329 (b) requires serious consideration.⁷ It should be stated that what the appellant chooses to call anomaly can be more appropriately described as hardship or prejudice and what their nature will be has been stated.
• Having regard to the important functions which the Legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
• In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the ‘‘election’’; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the ‘‘election’’ and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.

SUBMISSIONS OF THE RESPONDENTS

The right to vote or stand as a candidate for election is not a civil right but is a creature of stature or special law and must be subject to the limitations imposed by it.

• Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
• It should be mentioned here that the question as to what the powers of the High Court under Articles 226 and 227 and of this Court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.

JUDGEMENT OF THE COURT

1. This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal that I think it can be very shortly answered. Under section 36 of the Representation of the People Act, 1951⁸, 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 may be made to any nomination.
2. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensure. 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.⁹ 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.
3. 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. Evidently, 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 Constitution to entertain petitions regarding improper rejection of nomination papers.
4. This view is in my opinion correct and must be affirmed. The appeal must therefore fail and is dismissed. In view of the nature and importance of the points raised in this appeal, there should be no order to costs.

CONCLUSION: Election Commission Of India vs Saka Venkata Rao

That the whole fasciculus of the provisions dealing with “disqualifications of Members”, vis., Articles 190 to 193, should also be read together, and as Articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, Articles 190 and 192 should be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided.

The use of the word “become” in Articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope pre-existing disqualifications also, as becoming subject to a disqualification is predicated of “a member of a House of Legislature”, and a person, who, being already disqualified, gets elected, can, not appropriately, be said to “become” subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and Article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both re- existing and supervening disqualifications; but it does not necessarily follow that Articles 190 (3) and 192 (1) must also be taken to cover both.

Their meaning must depend on the language used which, we think, is reasonably plain. In our opinion these two ‘Articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words becomes subject” in Article 190 (3) and “has become subject” in Article 192 (1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the  member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the Article contemplates only a sitting member incurring the disability while so sitting.

SUGGESTIONS: Election Commission Of India vs Saka Venkata Rao

The suggestion that the language used in Article 190 (3) can equally be applied to a pre- existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and far-fetched construction and cannot be accepted. That if the word  “is” were substituted for “becomes” or “has become”, it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.

REFERENCES

¹ https://www.casemine.com/search/in/saka%2Bvenkata%2Bsubba%2Brao (Last visited on September, 5, 2022).

² THE REPRESENTATION OF PEOPLE ACT, 1951

³ The Constitution of India, 1949

⁴ The Constitution of India, 1949

https://www.lawyerservices.in/Election-Commission-Of-India-Versus-Saka-Venkata-Rao-1953-02-27(last

visited on September, 8, 2022).

Representation of the People Act, 1951: Election-Commission-Of-India-Versus-Saka–Venkata–Rao

⁹ https://main.sci.gov.in/jonew/judis/42.pdf (last visited on September, 10, 2022)Election-Commission-Of-India-Versus-Saka–Venkata–Rao