Supreme Court of India
K. VENKATACHALAMversusA. SWAMICKAN AND ANR.
- Citation
- 1999 INSC 203
- Decided
- 26 April 1999
- Disposal
- Dismissed
- Bench
- D P WADHWA
Holding
The High Court was entitled to exercise jurisdiction under Article 226 to declare the appellant disqualified, and Article 329(b) does not bar such relief where the disqualification existed before the election and the election process is over.
Summary
In the 1984 Tamil Nadu Legislative Assembly election, K. Venkatachalam was declared elected despite not being an elector in the Lalgudi constituency, having impersonated another person of the same name. The defeated candidate, A. Swamickan, filed a writ petition under Article 226 seeking a declaration that Venkatachalam was unqualified and a quo warranto order. The High Court initially dismissed the petition on the ground of Article 329(b), but a Division Bench allowed the appeal, holding that the bar did not apply because the disqualification arose before the election and the election process was complete. The Supreme Court affirmed that the High Court was justified in exercising its jurisdiction under Article 226, declared Venkatachalam disqualified, and imposed a penalty of Rs. 500 per day for each day he sat and voted. The appeal was dismissed with costs.
Issues considered
- Whether Article 329(b) bars a High Court writ under Article 226 challenging the election of a candidate who was disqualified prior to election.
- Whether a writ petition is maintainable after the election when an election petition under Section 81 of the Representation of the People Act, 1951 was not filed within the statutory period.
- Whether Articles 190(3) and 192(1) of the Constitution apply to pre‑existing disqualifications or only to disqualifications incurred after election.
- Whether penalty under Article 193 is applicable to a member who knowingly sits and votes while disqualified.
Legislation cited
- Representation of the People Act, 1950s. 16
- Representation of the People Act, 1951s. 100, s. 101, s. 5, s. 81
Subjects
Election lawDisqualificationArticle 226Article 329(b)Representation of the People ActPenalty under Article 193Writ of quo warrantoLegislative AssemblyElectoral rollImpersonation
Judgment
K. VENKATACHALAM A
v.
A. SWAMICKAN AND ANR.
APRIL 26, 1999
- [D.P. WADHWA AND N. SANTOSH HEGDE, JJ.] B
Constitution of India, 1950 :
Articles 226, 329(b) 173(c), 190(3), 19!, 192(1) and 193-Election to
Legislative Assembly-Candidate not an elector in the electoral roll of the C
constituency-Impersonated himself for another person of the same name-
Elected to Legislative Assembly-Writ pe~ition by rival candidate challenging
the election-Dismissed by Single Judge holding that petition not
maintainable in view of bar contained under Article 329(b)-Division Bench
allowing the appeal and declaring the appellant disqualified as member of
Legislative Assembly-On appeal, Held, High Court was justified in exercising D
its jurisdiction under Article 226 of the Constitution-Disqualification
incurred prior to election and therefore bar under Article 329(b) not
attracted-Penalty imposed on appellant for sitting and voting as member
of Legislative Assembly-Representation of People Act, 1951-Section 81
and JOO. E
Article 226-Jurisdiction of High Court-Scope and extent of
In the general election to the Legislative Assembly in Tamil Nadu both
appellant and respondent contested. Appellant was declared elected. After the
elections, while scrutinising the entire electoral roll, respondent found that F .
appellant was not an elector in the electoral roll of the said constituency and
has impersonated him for another person of the same name in the electoral
roll. Thus appellant lacked the basic qualification under clause(c) of Article
173 of the Constitution read with sec. 5 of the Representation of the People
Act, 1951 to sit as a member of the Legislative Assembly. Respondent filed
a petition under Article 226 of the Constitution after lapse of one year for G
a declaration that appellant was not qualified to be a member of Legislative
Assembly. A Single Judge of the High Court dismissed the petition on the
ground that it was not maintainable under Article 226 of the Constitution
in view of bar contained in Article 329(b) of the Constitution. However, on
appeal, the Division Bench of the High Court held that the appellant was not H
857
\ 858 SUPREME COURT REPORTS (1999] 2 S.C.R.
A \iualified to sit as a member of Legislative Assembly as he did not possess ---
~e basic qualification. Aggrieved, the appellant has preferred the present
L
appeal
The contention of the appellant was that in view of the provisions of
. Article 329(b) of the Constitution, High Court could not exercise its
B jurisdiction under Article 226 of the Constitution and that a writ of quo
warranto could not be issued after lapse of one year at the instance of the
candidate who was defeated in the elections.
The contention of the respondent was that as the appellant lacked basic ---
and fundamental qualification under the Constitution to be elected to the ·
C Legislative Assembly it could not be said that a petition under Article 226
was not maintainable after the declaration of the election.
Dismissing the appeal, this Court
D HELD : I. High Court rightly exercised its jurisdiction in entertaining
the writ petition under Article 226 of the Constitution and declared that the
appellant was not entitled to sit in Tamil Nadu Legislative Assembly with
consequent restraint order on. him from functioning as a member of the
Legislative Assembly. (879-B)
E 2. Appellant not being an elector in the electoral roll of the Assembly
constituency lacked the basic qualification under clause (c) of Article 173
of the Constitution read with section 5 of the Act which mandated that a
· person to be elected from an Assembly constituency has to be elector of that
constituency. He, therefore, could not be elected as a. member of the Legislative
Assembly. Appellant in his nomination form impersonated a person taking
F advantage of the fact that such person bears his first name. Appellant would
be even criminally liable as he filed his nomination on affidavit impersonating
himself. If in such circumstances he is allowed to continue to sit and vote
in the Assembly his action would be fraud to the Constitution. The election
of the appellant could have been challenged f?y holding an election petition
G under section 81 of the Act which was not done. Election petition under
section 81 had to be filed within forty days from the date of election of the
/
returned candidate. There is no provision for limitation under the Act. There
was no remedy to challenge the election even though it is established that
the appellant did not have a qualification to be elected to Legislative Assembly.
In the circumstances the High Court can exercise its jurisdiction under
H Article 226 of the Constitution declaring that the appellant is not qualified
K. VENKATACHALAM v. A. SWAMICKAN 859
to be member of the Legislative Assembly. [874-D-E; 877-G-H; 878-A-D) A
3. Article 226 of the Constitution is couched in widest possible term
and unless there is clear bar to jurisdiction of the High Court its powers
under Article 226 of the Constitution can be exercised when there is any
act which is against any provisions of law or violative of constitutional
provisions and when recourse cannot be had to the provisions of the Act for B
the appropriate relief. In the instant case action under Article 192 could not
be taken as the disqualification which the appellant incurred was prior to his
election. In circumstances like the present one, bar of Article 329(b) will
not come illto play when case falls under Articles 191 and 193 and whole
, of the election process is over. (878-G) C
Election Commission of India v. Saka Venkata Rao, AIR (1953) SC
210, relied on.
N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency,
Namakhal, Salem Distt. and Ors., AIR (1952) SC 64; Durga Shankar Mehta D
v. Raghuraj Singh & Ors., AIR (1954) SC 520; Braundaban Nayak v. Election
Commission of India, AIR (1965) SC 1892; Mohinder Singh Gill and Anr.
v. The Chief Election Commissioner, New Delhi and Ors., AIR (1978) SC
851; Krishna Ballabh Prasad Singh v. Sub Divisional Officer, Hilsa-cum-
Returning Officer and Ors., AIR (1985) SC 1746 and Election Commission
of India v. Shivaji and Ors., AIR (1988) SC 61, held inapplicable. E
4. Appellant is liable to penalty as he knows he is not qualified for
membership of the Legislative Assembly yet he sits and votes as a member.
He is liable to penalty of five hundred rupees in respect of each day on which
he so sits or votes and that penalty is recoverable as debt due to.the State.
There has not been any adjudication under the Act and there is no other F
provision of the Constitution as to how penalty so incurred by the appellant
has to be recovered as a debt due to the State. Respondent No. 2 shall
intimate to the State Government as to how many days the appellant sat as
a member of the Legislative Assembly and it would be for the State
Government to recover penalty from the appellant in terms of Article 193 G
of the Constitution. [878-8; 879-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1719 of
1986.
From the Judgment and Order dated 23.4.86 of the Madras High Court H
860 SUPREME COURT REPORTS (1999] 2 S.C.R.
A in W.A. No. 1157of1985.
Tripurari Ray for Vineet Kumar for the Appellant.
V. Balakrishnamurthy and P. Kavilan (V. Balachandran) (NP) for the
Respondent No. 1.
B
A. Mariarputham for the Respondent No. 2.
The Judgment of the Court was delivered by
D.P. W ADHWA, J. Division Bench of the High ~ourt of Judicature at
C Madras by its judgment dated April, 23, 1986 in Writ Appeal declared that K.
Venkatachalam, appellant before us, was not qualified to sit as a member of
the Legislative Assembly in Tamil Nadu as he did not possess the basic
qualifications prescribed in Clause (c) of Article 173 of th.e Constitution read
0
with Section 5 of Representation of the People Act, 195 l (for short "the Act").
The Division Bench held that the appellant was not an elector. for Lalgudi
D Assembly Constituency and, therefore, did not possess the necessary
qualification to be chosen from that constituency. High Court passed the
impugned judgment in exercise of its jurisdiction under Article 226 of the
Constitution. A single Judge of the High Court had, however, earlier dismissed
·the writ petition challenging the election of the appellant on the ground that
E it was not maintainable under Article 226 of the Constitution in view of bar
contained in Clause (b) of Article 329 of the Constitution.
General elections to the Legislative Assembly in Tamil Nadu were held
in December, 1984 and both Venkatachalam, the appellant and Swamickan,
respondent were the candidates. In the result declared Venkatachalam was
F elected. A year after the date of.election of Venkatachalam, petition under
Article 226 of the Constitution was filed by Swamick.an for a declaration that
Venkatachalam was not qualified to be member of the Tamil Nadu Legislative
Assembly representing Lalgudi Assembly Constituency since he was not
elector in the electoral roll of Lalgudi Assembly Constituency for the general
G elections in. question. He also prayed alternatively ior writ of quo warranto
·directing Venkatachalam to show under what authority he was occupying the
seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi
Assembly Constituency. Swam~ckan did not a present any petition calling in
question the election of Venkatachalam under Section 81 of the Act. He
alleged that Venkatachalam impersonated him for another person of the same
H name in the electoral roll of Lalgudi Assembly Constituency and thus sworn
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 861
a false affidavit that he was elector of that constituency. It was alleged that A
the act ofVenkatachalam was fraudulent and a criminal act, which came to be
known to Swamickan after he scrutinized the entire electoral roll of the Lalgudi
Assembly Constituency.
By judgment dated December 3, 1985 a learned single Judge of the High
Court dismissed the writ petition holding that Article 329(b) of the Constitution B
was a complete bar when remedy was available under the Act. Aggrieved
Swamickan filed writ· appeal which, as noted above, was allowed by the
Division Bench of the High Court by judgment dated April 23, 1986. High
Court held· that it was not powerless in exercise of its jurisdiction under
Article 226 of the Constitution from declaring that the election of Venkatachalam C
was illegal inasmuch as he did not possess the basic constitutional and
statutory qualifications. Aggrieved Venkatachalam got leave to appeal to this
Court. His main contention has been that having regard to the provisions of
Article 329(b) of the Constitution, High Court could not exercise its jurisdiction
under Article 226 of the Constitution and further that a writ of quo warranto
could not be issued after lapse of one year at instance of the candidate who D
was defeated in the elections.
There is no dispute and in fact there is no challenge to the finding of
the High Court that V.enkatachalam was not an elector in the electoral roll for
the Lalgudi Assembly Constituency for general elections of December, 1984 E
and that he in blatant and fraudulent manner represented to be an elector of
that constituency while using the similarity in the name of another person.
This act on the part of the appellant could well make him face criminal
prosecution under laws of the country. High Court giving the declaration
against the appellant went into wider issues. It considered the impact of
Article 193 of the Constitution which provides penalty for sitting and voting F
when a person is not qualified to be member of the Legislative Assembly.
Before we consider rival contentions it may be appropriate to set out
relevant provisions as contained in the Constitution and the Act.
As defined in Section 2(e) of the Act "elector" in relation to a constituency G
means a person whose name is entered in the electoral roll of that constituency
for the time being in force and who is not subject to any of the disqualifications
mentioned in section 16 of the Representation of the People Act, 1950 (43 of
1950). Article 173 provides for qlialifications for membership of the State
Legislature. It is as under :- H
862 SUPREME COURT REPORTS [1999) 2 S.C.R.
A "173. Qualification for membership of the State Legislature. - A
person shall not be qualified to be chosen to fill a seat in the Legislature
of a State unless he-
(a) is a citizen of India, and makes and subscribes before some
person authorized in that behalf by the Election Commission an
B oath or affirmation according to the form set out for the purpose
in the Third Scheduie;
-
(b) is, in the case of a seat in the Legislative Assembly, not less
than twenty-five years of age and, in the case of a seat in the
Legislative Council, not less than thirty years of age; and
c (c) possesses such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament."
Under Clause (3) of Article 190 a member vacates his seat in the .Legislature
if he becomes subject to any disqualification under Clauses (1) and (2) of
D Article 191.Article 191 provides for disqualification. of membership and relevant
with this are Articles 192 and 193, which may also be set out hereunder:-
"190. Vacation ofseats.-{1) ........ .
(2) ··········
E (3) If a member of House of the Legislature of a State-
(a) becomes subject to any of the disqualification mentioned in
clause (1) or clause (2) of article 191; or
(b) resigns his seat by writing under his hand addressed to the
Speaker or the Chairman as the case may be, and his resignation
F is accepted by the Speaker or the Chairman, as the case may be,
his seat shall thereupon become vacant :
Provided that in the case of any resignation referred to. in sub-clause
(b), if from information received or otherwise and after making such
G inquiry as he thinks fit, the Speaker or the Chairman, as the case may
be, is satisfied that such resignation is not voluntary or genuine, he
shall not accept such resignation."
"191. Disqualification for membership-( l) A person shall be
disqualified for being chosen as, and for being, a member of the
H Legislative Assembly or Legislative Council of a State-
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 863
(a) · If he holds any office of profit under the Government of India A
or the government of any State specified in the First Schedule,
other than an office declared by the Legislature of the State by
law not to disqualify its holders;
(b) If he is of unsound mind and stands so declared by a competent
court; B
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment
of allegiance or adherence to a foreign State;
(e) Ifhe is so disqualified by or under any law made by Parliament."
c
Explanation :-For the purpose of this clause, a person shall
pot be deemed to hold an office of profit under the Government
of India or the Government. of any State specified in the First
Schedule by reason only that he is a Minister either for the D
Union or for such State.
- (2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified
under the Tenth Schedule."
"192. Decision on questiOn as to disqualifications of members.-(1) E
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 ( l) of Article 191, the question shall be referred
for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor
F
shall obtain the opinion of the Election Commission and shall act
according to such opinion."
"I 93. Penalty for sitting and voting before making oath or affirmation
under Article 188 or when not qualified or when disqua/ified.-lf a G
person sits or votes as a member of the Legislative Assembly or the
Legislative Council of a State before he has complied with the
requirements of Article 188, or when he knows that he is not qualified
or that he is disqualified for membership thereof, or that he is prohibited
from so doing by the provisions of any law made by Parliament or the
Legislature of the State, he shall be liable in respect of each day on H
864 SUPREME COURT REPORTS. [1999] 2 S.C.R.
A which he so sits or votes to a penalty of five hundred rupees to be
recovered as a debt due to the State."
Section S of the Act then provides for further qualifications for
membership ofa Legislative Assembly in view of Clause (c) of Article 173 of
the Constitution. Section 5 of the Act is as under :-
B
"5. Qualifications for membership ofa Legislative Assembly.-A person
shall not be qualified to be chosen to fill a seat in the Legislative
Assembly of a State unless -
(a) in the case of a seat reserved for the Scheduled Castes or for the
C Scheduled Tribes· of that State, he is a member of any of those· castes
or of those tribes, as the case may be, and is an elector for any
Assembly constituency in that State;
(b) in the case of a seat reserved for an autonomous district of Assam,
he is a member of a Scheduled Tribe of any autonomous district and
D is an elector for the Assembly constituency in which such seat or any
other seat is reserved for that district; and
(c) in the case of any other seat, he is an elector for any Assembly
constituency in that State :
E Provided that for the period referred to in Cl.(2) of Art. 371-A, a
person shall not be qualified to be chosen to fill any seat allocated
to the Tuensang district in the Legislative Assembly of Nagaland
unless he is a member of the regional council referred to in that
article."
F Again it is Clause (c) of Section 5 of the Act, which is relevant for our
purpose. Chapter III of the Act prescribes disqualification for membership of
Parliament and State Legislature. The term "disqualified" under Clause (b) of
Section 7 of the this Chapter means disqualified for being chosen as, and for
being, a member of either House of parliament or of the Legislative Assembly
G or Legislative Council of a State. Under Section 8 of the Act a person
convicted of an offence punishable under various sections mentioned therein
shall be disqualified for a certain period from the date of such conviction. A
person is also disqualified again for certain period if found guilty of a corrupt
practice by an order under Section 8A of the Act. Sections 9, 9A, 10 and JOA
also provide for various disqualifications. Under Section 11, the Election
H Commission may, for reason to be recorded, remove any disqualification
K. VENKATAC\_HALAM v. A. SWAMICKAN (D.P. WADHWA, J.] 865
. '
under this. Chapter except under Section SA. 'A
Part VI of the Act provides for disputes regarding election. Under
..
Clause (d) of Section 79 falling under this Part 'electoral right' means the right
of a person to stand or not to stand as, or to withdraw or not to withdraw
from being, a candidate, or to vote or refrain from voting at an election.
B
Under Section 80 of the Act no election shall be called in question
except by an election petition presented in accordance with the provisions of·
Part VI. Election petition can be presented under Section 81 of the Act calling
in question any election on one or more of the grounds specified in Section
100 or Section l 01 of the Act and that petition can be filed by a candidate C
at such election or any elector within 45 days from the date of election of the
returned candidate. Section 101 gives the grounds on which a candidates
other than the returned candidate may be declared to have been elected.
Section 123 defines corrupt practices. Both these Sections l 0 l and 123 of the
Act are not relevant for our purposes. Sections 81 and 100 (in relevant part)
are as under:- ··- D
"81. Presentation of petitions.-~.)) An election petition calling in
question any election may be presented on one or more of the grounds
specified in sub-section (1) of Section 100 and Section 101 to the High
Court by any candidate at such election or any elector within forty
five days from, but not earlier than, the date of election of the returned E
candidate, or if there are more than one returned candidate at the
election and the dates of their election are different, the later of those
two dates.
Explanation.-ln this sub-section, 'elector' means a person who was
entitled to vote at the election to which the election petition relates, F
whether he has voted at such election or not.
"(2) [Omitted by Act 47of1966]
(3) Every election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition, and every G
such copy shall be attested by the petitioner under his own signature
to be a true copy of the petition."
"JOO. Grounds for declaring election to be void.--{1) Subject to the
provisions of sub:section (2) if the High Court is of opinion-
-
" (a) that on the date of his election a returned candidate was not H
866 SUPREME COURT REPORTS [1999] 2 S.C.R.
A qualified, or was disqualified, to be chosen to fill the seat under the
Constitution, or this Act or the Government of Union Territories Act,
1963 (20of1963): or
(b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the
B consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected-
C · (i) by the improper acceptance of any nomination, or
(ii) by any corrupt' practice committed in the interests of the returned
candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or r~jection of any vote or the
reception of any vote which is void, or ·
D
(iv) by any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under· this Act,
the High Court shall declare the election of the returned candidate to
be void."
E
Part XV of the Constitution deals with elections. Clause (b) of Article
J29, which bars interference by court in electoral matters is as under :- ·
"329. Bar to interference by courts in electoral matters.-
Notwithstanding anything in this Constitution
F
(a) .......
(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
G manner as may be provided for by or under any law made by the
appropriate Legislature."
.. Oaths to which a candidate subscribes before and after his election are given
in the Third Schedule of the Constitution and these are :-
H "A. Form of oath or affirmation to be made by a candidate for election
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.J 867
•.
--- to the Legislature of a State : A
"I, A.B; having been nominated as a candidate to fill a seat in the
Legislative Assembly (or Legislative Council), do swear in the name
of god/solemnly affirm that I will bear tru~ faith and allegiance to the
Constitution of India as by law established and that I will uphold the
sovereignty and integrity of India." B
"B. Form of oath or affirmation to be made by a member of the
Legislature of a State :
"I, A.B., having been elected (or nominated) a member of the
Legislative Assembly (or Legislative Council), do swear in the name c
of God/solemnly affirtn that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the·
sovereignty and integrity of India and that I will faithfully discharge
the duty upon which I am about to enter."
In support of his submission that jurisdiction of the High Court was D
barred under Article 226, Mr. Tripurari Ray, learned counsel for the appellant
referred to various decisions of this Court in N. P. Punnuswami v. The Returning
Officer, Namakhal Constituency, Namakhal, Salem Distt, and others, AIR
(1952) SC 64; Durga Shankar Mehta v. Raghuraj Singh and others, AIR
(1954) SC 520; Brundaban Nayak v. Election Commission of India, AIR
E
(1965) SC 1892; Mohinder Singh Gill and another v. The Chief Election
Commissioner, New Delhi and others, AIR (1978) SC 851; Krishna Ballabh
Prasad Singh v. Sub Divisional Officer; Nilsa-cum-Returning Officer and
others, AIR (1985) SC 1746 and Election Commission of India v. Shivaji and
others, AIR (1988) SC 61.
F
In N.P. Punnuswami 's case AIR (1952) SC 64, the appellant was one of
the persons who had filed his nomination papers for election to the Madras
Legislative Assembly from a constituency in Salem District. The Returning
Officer rejected his nomination papers on certain grounds. The appellant
thereupon filed writ petition in the High Court under Article 226 of the
\,.
Constitution seeking a writ of certiorari to quash the orders of the Returning
G
....-- Officer and for a direction to him to include his name in the list of valid
nominations to be published. High Court dismissed the petition on the ground
that it had no jurisdiction to interfere with the orders of the Returning Officer
by reason of the provisions of Article 329 (b) of the Constitution. The
appellant contended before this Court that the view expressed by the High H
A
868 SUPREME COURT REPORTS [1999) 2 S.C.R.
.
Court was not correct and that the jurisdiction of High Court was not affected
\
by Article 329 (b) of the Constitution. This Court said that it would be a fair,
-
inference from the provisions of the Act to state that the Act provided for
only one remedy, that remedy being an election petition to be presented after
the election was over, and there was no remedy provided at any intennediate
. . '
stage. It was contended before this Court that ·since the Act was enacted
B subject to the provisions of the Constitution, it could not bar the jurisdiction
of the High Court to issue writs under Article 226 of the Constitution. The
Court said that this argument, however, was completely shut out by reading
of the act along with Article 329 (b) of the Constitution and that it would be
noticed that the language used in that Article and in Section 80 of the Act -
C was almost identical, with this difference only that the Article is preceded by
the words 'notwithstanding anything in this Constitution'. The Court then
said that those words were quite apt to ·exclude the jurisdiction of the High
Court to deal with any matter, which may arise while the elections were in
progress. This Court arrived at the following Conclusions :-
D "(1) Having regard to the important functions which the legislatures
have to perfonn in democratic countries, it has always been recognized
to be a matter of first importance that elections should be co~cluded ·
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
E not be unduly retarded or protracted. ·
(2) In confonnity 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
F 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
G in progress."
Finally this Court said that Article 329 (b) was primarily intended to exclude
or oust the jurisdiction of all courts in regard to electoral matters and to lay
down the only mode to which an election could be challenged.
H In Durga Shan/car Mehta case AIR (1954) SC 520, a certain Legislative
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 869
Assembly constituency in Madhya Pradesh was a double member constituency, A
being general and reserved. Reghuraj Singh, who was a candidate for a
general seat and had lost election, filed a petition before the Election Tribunal
challenging the election of both the general and reserved category candidates
on the ground that successful reserved constituency candidate, who had
been declared elected to the reserved seat in the said constituency, was at
all times under 25 years of age an~ was consequently not qualified to be B·
chosen to fill a seat in the Legislative Assembly of the State under Article
173 of the Constitution. The Election Tribunal set aside the elections of both
the candidates, general and reserved. On appeal by the general seat candidate
this Court set aside the order of Election Tribunal qua him but upheld against
the reserved seat candidate holding his election to be void. The Court C
observed
"When a person is incapable of being chosen as a member of a
State Assembly under the provisions of the Constitution itself but has
nevertheless been returned as such at an election, it can be said
without impropriety that there has been non-compliance with the D
provisions of the Constitution materially affecting the result of the
election. There is no material difference between "non-compliance"
and "non-observance" or "breach" and this item in clause (c) of sub-
section (2) may be taken as a residuary provision contemplating cases
where there has been infraction of the provisions of the Constitution E
or of the Act but which have not been specifically enumerated in the
other portions of the clause. When a person is not qualified to be
elected a member, there can be no doubt that the Election Tribunal has
got to declare his election to be void. Under section 98 of the Act this
is one of the orders which the Election Tribunal is competent to make.
If it is said that section I 00 of the Act enumerates exhaustively the F
grounds on which an election could be held void either as a whole
or with regard to the returned candidate, we think that it would be a
correct view to take that in the case of a candidate who is
constitutionally incapable of being rett•med as a member there is non-
compliance with the provisions of the Constitution in the holding of G
-- the election and as such sub-section (2)(c) of section 100 of the Act
applies."
In Brundaban Nayak case AIR (1965) SC 1892, the question before this
Court was the interpretation of Article 192 of the Constitution. The appellant
was elected to the Legislative Assembly of Orissa and had been appointed H
A
870 SUPREME COURT REPORTS [1999) 2 S.C.R.
as a Minister in the Council of Ministers in the State. P. Biswal, respondent
--
No. 2 applied to the Governor alleging that appellant had incurred a
disqualification subsequent to his election under Article 19l{l)(e) of the
Constitution read with Section 7 of the Act. Under the instructions of the
Governor of the State the Chief Secretary forwarded the said complaint to the
B Election Commission of India for its opinion. The appellant moved the Punjab
High Court under Article 226 of the Constitution praying that inquiry by the
Election Commission be quashed on the ground ·that it was incompetent and
without jurisdiction. High Court summarily dismissed the writ petition. This
Court granted special leave to appeal to the appellant. There was no doubt
that the allegations made by the respondent No.2 in his complaint before the
C Governor prima facie indicate~ that the disqualification on which he relied
had arisen subsequent to the election of the appellant. After examining the .
Clause (I) of Article 192 of the Constitution this Court observed that what
the said Clause required was that a question should arise and how it arises
or by whom it is raised or in what circumstance it is raised, are not relevant
D for the purpose of the application of the Clause. All that is relevant is that
a question of this type mentioned by the clause should arise. Then this Court
said:-
"Then as to argument based on the words "the question shall be
referred for the decision of the Governor'', these words do not import
E the assumption that any other authority has to receive the complaint
and after a primafacie and initial investigation about the complaint,
send it on or refer it to the Governor for his decision. These words
merely emphasise that any question of the type contemplated by
clause (I) of Article 192 shall be decided by the Governor and Governor
alone; no other authority can decide it, nor can the decision of the
F said question as such fall within the jurisdiction of the Courts. That
is the significance of the words "shall be referred for the decision of
the Governor." If the intention was that the question must be raised
first in the Legislative Assembly and after a prima facie examination
by the Speaker it should be -referred by him to the Governor, Article
-
G 192(1) would have been worded in entirely different manner. We do
not think there is any justification for reading such serious limitations
in Article 192(1) merely by implication."
Finally this Court said that scheme of Article 192(1) and (2) is absolutely clear.
· The decision on the question raised under Article 192( l) has no doubt to be
H pronounced by the Governor but that decision has to be in accordance with
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.) 871
the provisions of the Election Commission. This Court dismissed the appeal. A
In Mohinder Singh Gill case AIR (l 978) SC 851, the Election
Commissioner had ordered re-poll after cancelling the whole poll as there were
disturbances inasmuch as poll ballot papers were destroyed and the ballot
documents from one segment of the constituency were also taken away. The
poll proceeded as ordained almost to the very last stages, but the completion B
of the counting was aborted due to mob violence allegedly mobilised at the
instance of the third respondent whom the appellant said was losing and the
appellant himself winning by a margin of nearly 2000 votes. One of the
questions raised before this Court was: "Is Article 329(b) a blanket ban on
all manner of questions which may have impact on the ultimate result of the C
election, arising between two temporal termini viz., the notification by the
President calling for the election and the. declaration of the result by the
returning officer? Is Article 226 also covered by this embargo and, if so, is
Section l 00 broad enough to accommodate every kind of objection,
constitutional, legal or factual, which may have the result of invalidation of
an election and the declaration of the petitioner as the returned candidate and D
direct the organization of any steps necessary to give full relief ?"
This Court considered its earlier decision in the case of Punnuswami,
AIR (1952) SC 64. Analysing Article 329(b) of the Constitution this Court said
that the sole remedy for an aggrieved party, if he wants to challenge any E
election, is an election petition. And this exclusion of all other remedies
includes constitutional remedies like Article 226 because of the non obstante
clause. If what is impugned is an election the ban operates provided the
proceedings 'calls it in question' or puts it in issue, not otherwise. What is
the high policy animating this inhibition? Is there any interp!"etative alternative
which will obviate irreparable injury and permit legal contests in between? F
How does Section IOO(l)(d)(iv) of the Act integrates into the scheme? The
Court referred to the provisions of Section IOO(l)(d)(iv) and also Section 98
of the Act. The Court then held :-
"30. The plenary bar of Article 329(b) rests on two principles: (1)
The peremptory urgency of prompt engineering of the whole election G
process without intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the commencement and
the conclusion. (2) The provision of a special jurisdiction which can
be invoked by an aggrieved party at the end of the election excludes
other form, the right and remedy being creatures of statutes and H
872 SUPREME COURT REPORTS [1999] 2 S.C.R.
A controlled by the Constitution. Durga Shankar Mehta, [1955] 1 SCR
267; AIR (1954) SC 520 has affirmed this position and supplemented
it by holding that, once the Election Tribunal has decided, the
prohibition is extinguished and the Supreme Court's over all power to
interfere under Article 136 springs into action. In Hari Mehta, [1955]
1 SCR 1104; AIR (1955) SC 233, this Court upheld the rule in Punnusami,
B AIR (1952) SC 64 excluding any proceeding, including one under
Article 226, during the on-going process of election, understood in
the comprehensive sense of notification down to declaration. Beyond
the declaration comes the election petition, but beyond the decision
of the Tribunal the ban of Article 329(b) does not bind.
c 3 l. If 'election, bears the larger connotation, if 'calling in question'
possesses a semantic sweep in plain English, if policy and principle
are tools for interpretation of statutes, language permitting, the
conclusion is irresistible, even though the argument contra may have
emotional impact and ingenious appeal, that the catch-all jurisdiction
D under Article 226 cannot consider the correctness, legality or otherwise
of the direction for cancellation integrated with re-poll. For, the prima
facie purpose of such a re-poll was to restore a detailed poll process
and to complete it through the salvationary effort of a re-poll. Whether,
in fact or law, the order is validly made within his powers or violative
of natural justice can be examined later by the appointed instrumentality,
E viz., the Election Tribunal. That aspect will be explained presently. We
proceed on the footing that re-poll in one polling station or in many
polling stations, for good reasons, is lawful. This shows that re-poll
in many or all segments, all pervasive or isolated, can be lawful. We
are not considering whether the act was bad for other reasons. We
F are concerned only to say that if the regular poll, for some reasons
has failed to reach the goal of choosing by plurality the returned
candidate and to achieve this object a fresh poll (not a new election)
is needed, it may still be a step in the election. The deliverance of
Dunkirk is part of the strategy of counter-attack. Wise of valid, is
another matter.
G
32. On the assumption, but leaving the question of the validity of the
direction for re-poll open for determination.by_the Election Trib~nal,
we hold that a writ petition challenging the cancellation coupled with
re-poll amounts to calling in question a step in 'election' and is,
H therefore, barred by Article 329(b). Ifno re-poll had been directed the
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 873
legal perspective would have been very different. The mere cancellation A
would have been then thwarted the course of the election and different
considerations would have come into play. We need not chase a
hypothetical case."
In Krishna Ba/labh Prasad Singh case, AIR (1985) SC 1746 this Court
with reference to jurisdiction of the High Court under Article 226 of the B
Constitution in an election matter where form 21 C or 21 D had not been issued
under the Rule 64 of the Conduct of Election Rules, 1961 observed as under:-
"It is plain that the declaration envisaged by the Jaw that a candidate
has been elected is the declaration in Form 21 C or Form 21 D. The C
declaration in Form 21 C is made in a general election and the declaration
in Form 2 lD is made when the election is held to fill a casual vacancy.
It is now settled law that the right to vote; the right to stand as a
candidate for election and the entire procedure in relation thereto are
created and determined by statute. Accordingly, when S.66 of the
Representation of the People Act, 1951 provides that the result of the D
election shall be declared in the manner provided by the Act or the
Rules made thereunder. The declaration can be effected in that manner
only. The manner is clearly expressed in Rule 64 of the Conduct of
Election Rules, 1961. There is no other manner. There must be a
declaration in Form 21C or Form 21D. The announcement by the E
Returning Officer that the petitioner . .had been elected has no legal
status because the declaration in Form 21 C had not yet bee11 drawn
up. Even the grant of the certificate of election in Form 22 to the
petitioner cannot avail him because Rule 66 contemplates the grant of
such certificate only after the candidate has been declared elected
under S.66, which refers us .back to Rule 64 and, therefore, to Form F
21C. There having been no declaration in Form 21C at the relevant
time, the grant of the certificate of election in Form 22 to the petitioner
was meaningless.
We are of opinion that the· process of election came to an end
only after the declaration in Form 21 C was made and the consequential G
formalities were completed. The bar of Clause (b) of Article 329 of the
Constitution came into operation only thereafter and an election petition
alone was maintainable. The writ petition cannot be entertained."
In Election Commission of India v. Shivaji and others, AIR (1988) SC
61, this Court had again occasion to consider the jurisdiction of the High H
874 SUPREME COURT REPORTS [1999] 2 S.C.R.
A Court under Article 226 vis-a-vis Article 329(b) of the Constitution. It also
referred to its earlier decision in Punnuswami case [ 1952] SCR 218 and
Mohinder Singh Gill case (l 978] 2 SCR 172.
In all these cases there is a common message that when the poll or re-
poll process is on for election to the Parliament or Legislative Assembly, High
B Court cannot exercise its jurisdiction under 226 of the Constitution and that
remedy of the aggrieved parties is under the Act read with Article 329(b) of
the Constitution. The Act provides for challenge to an election by filing the
election petition under Section 8 l on one or more grounds specified in sub-
section(I) of Sections 100 and l 0 l of the Act. There cannot be any dispute
C that there could be a challenge to the election of the appellant by filing an
election petition on the ground improper acceptance of his nomination inasmuch
as the appellant was not an elector on the electoral roll of Lalgudi Assembly
Constituency and for that matter also by any non-complianc~ with the
provisions of the Constitution or of the Act. If an election petition had been
filed under Section 81 of the Act High Court would have certainly declared
D the election of the appellant void. It was, therefore, submitted that respondent
could not invoke the jurisdiction of the High Court under Article 226 of the
Constitution in view of Article 329(b) of the Constitution read with Sections
81 and l 00 of the Act and only an election petition was maintainable to
challenge the election of the appellant. That right the respondent certainly
E had to challenge the election of the appellant. Election petition under Section
81 of the Act had to be filed within forty-five days from the date of election
of the returned candidate, that' is the appellant in the present case. This was
not done. There is no provision under the Act that an election petition could
be filed beyond the period of limitation prescribed under Section 31 of the
Act. That being so the question arises if the respondent is without any
F remedy particularly when it is established that the appellant did not have the
qualification to be elected to the Tamil Nadu Legislative Assembly from
Lalgudi Assembly Constituency.
Mr. Balakrishnamurthy, learned counsel for the first respondent submitted
G that in such circumstances where the appellant lacked basic and fundamental
-
qualification to be elected as required by the Constitution, it could not be said
that a petition under Article 226 of the Constitution was not maintainable.
Here jurisdiction_ under Article 226 is sought to be exercised after declaratioQ
of the election of the appellant. He referred to Article 193 of the Constitution
which provides for penalty for sitting and voting when a person is not
H qualified to be a member of the Legislative Assembly.
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 875
In support of his submission reference was made to a decision of this A
Court in Election Commission, India v. Saka Venkata Rao, AIR (1953) SC
210. In this case the respondent was convicted and sentenced to a term of
seven years rigorous imprisonment in the year 1942. He was released on the
occasion of celebration of the Independence Day on August 15, 1947. In
June, 1952 there was to be a by-election to a reserved seat in th!! Kakinada B
constituency in Madras Legislative Assembly and the respondent, desiring
to offer himself as a candidate but finding himself disqualified under the Act,
as five years had not elapsed from his release, applied to the Election
Commission on April 2, 1952 for exemption so as to enable him to contest the
election. The respondent did not receive any reply till May 5, 1952, the last
date of filing nominations. He filed his nomination on that day. No exception C
was taken to it either by the Returning Officer or any other candidate. Election
was held on June 14, 1952 and the respondent was declared elected on June
16, 1952 and the result of the election was duly published in the Gazette on
June 19, 1952. Respondent, thereafter took his seat as member of the Assembly
on June 27, 1952. Meanwhile the Election Commission rejected the respondents
application for exemption and communicated such rejection to the respondent D
by its letter dated May 13, 1952, which it is alleged was not received by him.
The Speaker of the Legislative Assembly on July 3, 1952 brought the aforesaid
communication of the Election Commission to the notice of the respondent.
As a question arose as to the respondent's disqualification the Speaker
referred the matter to the Governor of Madras, who in tum forwarded the case E
to the Election Commission for its opinion as required under Article 192 of
the Constitution. In the writ petition filed by the respondent in the High Court
under Article 226 of the Constitution one of the submissions made by the
Election Commission was that Article 192 was, on its true construction,
applicable to cases of disqualification which arose both before and after the
election and that the reference of the question as to respondent's F
disqualification to the Governor of Madras and the latter's reference of the
same to the Election Commission for its opinion were competent and valid.
This Court referred to articles 190(3), 191, 192 and 193 of the Constitution and
observed as under :-
G
"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 pre-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 H
876 SUPREME COURT REPORTS [1999] 2 S.C.R.
,A 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
B provision that his seat is to become thereupon vacant, that is to say,
the seat which the member was filling, therefore, becomes vacant on
his. becoming disqualified, further reinforces the view that the article
contemplates only a sitting member incurring the disability while so
sitting. The suggestion that the language used in Article 190(3) can
c 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 farfetched construction and cannot be accepted. The Attorney-
General admitted 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."
D
Finally, this Court said that Articles 190(3) and 192( 1) are applicable only to
disqualifications to which a member becomes subject after he is elected as
such, and that neither the Governor nor the Election Commission has
jurisdiction to inquire into the respondent's disqualification which arose long
E before his election.
It may be noted that in this case an argument was raised by the
Attorney-General that Articles 190 to 193 should be read together and that
Article 190(3) and Article 192(1) would include within its scope pre-existing
disqualifications as well. This argument was negatived by this Court when it
F said:-
"The Attorney-General argued that the whole fasciculus of the
provisions dealing with "disqualifications of Members," viz., Article
190 to 193, should be read together, and as Articles 191 and 193
clearly cover both pre-existing and supervening disqualifications,
G Articles 190 and 192 should also 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
H 190(3) and 192( 1) is not inapt, in the context, to include :within its
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 877
scope pre-existing disqualifications also, as becoming subject to .a A
disqualification is predicated of "a member of a House of Legislature", •
and a person, who being already disqualified, gets elected, can, not
inappropriately be said to "become" subject to the disqualification as
a member as soon as he is elected. The argument is more ingenious
than sound."
B
This Court further went on to add:-
"It was said that on the view that Articles 190(3) and 192(1) deal
with disqualification incurred after election as a member, there would
be no way of unseating a member who became subject to a
disqualification after his nomination and before his election, for such C
a disqualification is no ground for challenging the election by an
election petition under Article 329 of the Constitution read with Section
100 of the Representation of the People Act, 1951. If this is an
anomaly, it arises out of a lacuna in the latter enactment which could
easily have provided for such a contingency, and it cannot be pressed D
as an argument against the respondent's construction of the
constitutional provisions. On the other hand, the Attorney-General's
contention might, if accepted, lead to conflicting decisions by the
Governor dealing with a reference under Article 192 and by the Election
Tribunal (now the High Court) inquiring into an election petition
under Section 100 of the Parliamentary statute referred to above." E
From this judgment it is clear that this Court held that Article 191, which
lays down the same set of disqualification 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 pre and supervening qualifications. But it also held that it does not F
necessarily follow that Articles 190(3) and 192( 1) must also be taken to cover
both. It, therefore, held that Articles 190(3) and 192(1) go together and
provide remedy when a member incurs a d;squalificat~ after he is elected
as a member. This Court was examining the issue if action under Article 192
could be taken when the respondent Venkata Rao had already incurred G
disqualification prior to his nomination for being elected to the Madras
Legislative Assembly and that after his release from the conviction prescribed
for him to file his nomination was yet not over. This Court, therefore, held that
action under article 192 could not be taken against Venkata Rao.
In the present case the appellant was not an elector in the electoral roll H
878 SUPREME COURT REPORTS [1999] 2 S.C.R.
A of Lalgudi Assembly Constituency. He," therefore, could not be elected as a
member from that constituency. How could a person who is not an elector,
from that constituency could represent the constituency? He lacked the basic
qualification under Clause ( c) of Article 173 of the Constitution read with
Section 5 of the Act which mandated that a person to be elected from an
Assembly constituency has to be elector of that constituency. The appellant
B in the present case is certainly disqualified for being a member of the Legislative
Assembly of Tamil Nadu. His election, however, was not challenged by filing
---
an election petition under Section 81 of the Act. Appellant knows he is
disqualified. Yet he sits and votes as a member of the Legislative Assembly.
He is liable to penalty of five hundred rupees in respect of each day on which
C he so sits or votes and that penalty is recoverable as debt due to the State.
There has not been any adjudication under the Act and there is no other
provision of the Constitution as to how penalty so incurred by the appellant
has to be recovered as a debt due to the State. Appellant is liable to penalty
nevertheless as he knows he is not qualified for membership of the Legislative
Assembly and yet he acts contrary to law.
D
The question that arises for consideration is if in such circumstances
High Court cannot exercise its jurisdiction under Article 226 of the constitution
declaring that the appellant is not qualified to be member of the Tamil Nadu
Legislative Assembly from Lalgudi Assembly Constituency. On the finding
E recorded by the High Court it is clear that the appellant in his nomination form
impersonated a person known as 'Venkatachalam s/o Pethu', taking advantage
of the fact that such person bears his first name. Appellant would be even
criminally liable as he filed his nomination on affidavit impersonating himself.
If in such circumstances he is, allowed to continue to sit and vote in the
Assembly his action would be fraud to the constitution.
F
In view of the judgment of this Court in the case of Election Commission
of India v. Saka Vankata Rao, AIR (1953) SC 210 it may be that action under
Article 192 could not be taken as the disqualification which the appellant
incurred was prior to his election. Various decisions of this Court, which have
G been referred to by the appellant that jurisdiction of the High Court under
Article 226 is barred challenging the election of a returned candidate and
which we have noted above, do not appear to apply to the case of the
appellant now before us. Article 226 of the Constitution is couched in widest
possible term and unless there is clear bar to jurisdiction of the High Court
its powers under Article 226 of the Constitution can be exercised when there
H is any act which is against any provision of law or violative of constitutional
K. VENKATACHALAM v. A. SWAMICKAN [D.P. WADHWA, J.] 879
provisions and when recourse cannot be had to the provisions of the Act for A
the appropriate relief. In circumstances like the present one bar of Article
329(b) will not come into play when case falls under Articles 191 and 193 and
whole of the election process is over. Consider the case where the person
elected is not a citizen of India. Would the Court allow a foreign citizen to
sit and vote in the Legislative Assembly and not exercise jurisdiction under
Article 226 of the Constitution? B
We are, therefore, of the view that the High Court rightly exercised its
jurisdiction in entertaining the writ petition under Article 226 of the Constitution
and declared that the appellant was not entitled to sit in tamil Nadu Legislative
Assembl}l with consequent restraint order on him from functioning as a C
member of the Legislative Assembly. The net effect is that the appellant
ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the
Legislative Assembly is long since over. Otherwise we would have directed
respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to
intimate to Election Commission that Lalgudi Assembly constituency seat has
fallen vacant and for the Election Commission to take necessary steps to hold D
fresh election from that Assembly Constituency. Normally in a case like this
Election Commission should invariably be made a party.
When leave to appeal was granted to the appellant by this Court
operation of the impugned judgment was suspended. Respondent No. 2 shall
intimate to the State Government as to for how many days the appellant sat E
as a member of the Legislative Assembly and it would be for the State
Government to recover penalty from the appellant in terms of Article 193 of
the Constitution.
This appeal is dismissed with costs.
S.V.K.l Appeal dismissed.
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