Holding

The amendments made by the Representation of the People (Amendment) Ordinance, 1992 and the Representation of the People (Second Amendment) Ordinance, 1992 are constitutionally valid.

Summary

The petitioner challenged two 1992 Ordinances that amended the Representation of the People Act, 1951 – narrowing the counter‑manding provision in Section 52 to only candidates of recognised political parties who die, and reducing the minimum interval between the withdrawal of nominations and polling from twenty to fourteen days under Section 30. The petitioner argued that these distinctions violated Articles 14, 19 and 21 of the Constitution and were discriminatory. The Union contended that the amendments were necessary to curb election disruptions caused by terrorism and the surge in independent candidates, and that the party system is a constitutional cornerstone. The Court held that the right to vote or to stand for election is not a fundamental right, that the party system is recognised in the Constitution, and that the classification of party candidates is a valid legislative distinction. Consequently, both amendments were held constitutionally valid and the writ petition was dismissed.

Issues considered

Whether the amendment to Section 52 of the Representation of the People Act, 1951, limiting counter‑manding to candidates of recognised political parties, violates Article 14 (equality) and other fundamental rights.
Whether the reduction of the poll interval from twenty to fourteen days in Section 30 of the Representation of the People Act, 1951, is arbitrary and violative of Articles 14, 19 and 21.
Whether the right to vote or to stand as a candidate is a fundamental or civil right under the Constitution.
Whether the two 1992 Ordinances are ultra vires the Constitution of India.

Legislation cited

Constitution of Indias. 14, s. 19, s. 21
Representation of the People Act, 1951s. 30, s. 52

Subjects

Representation of the People ActElection lawArticle 14EqualityPolitical partiesCountermanding electionPoll scheduleOrdinanceUltra viresFundamental rights

Judgment

A RAMA KANT PANDEY
v.
UNION OF INDIA

FEBRUARY 5, 1993

B (LAUT MOHAN SHARMA, CJ., S. MOHAN AND
S.P. BHARUCHA, JJ.)

Constitution of India, 1950:

C Articles 14, 19 and 21-The Representation of People (Amendment)
Ordinance Nos. 1 and 2 of 199G-Whether ultra vires.

The Representation of People (Amendment) Ordinances No. 1 and 2
of 199G-Whether ultra vires the Constitution of India, 1950.
-
Representation of the People Ac~ 195J:
D
Sections 52 and 30-Countennanding of elections-Confinement of
cases where candidate of recognised political party dies-Reduction of period
from 20 days to 14 days for completion of election-Whether valid and proper.
E The petitioner in bis Writ Petition Under Article 32 of the Coostltu·
lion of India, challenged the constitutional validity of the Representation
of the People (Amendment) Ordinance, 1992 (Ordinance No. 1 of 1992),
and the Representation of the People (Second Amendment) Ordinance,
1992 (Ordinance No.2 of 1992) on the grounds of violation of Articles 14,
19 and 21 of the Constitution of India.
F
The provisions of Section 52 of the Representation of the People Act,
1951 as they stood before amendment provided for countermanding the
election in either of two contingencies: • (I) if a candidate whose nomina·
lion was found valid on scrutiny under section 36 or who bas not
withdrawn his candidature under section 37 died and a report of bis death
G was received before the publication of the list of contesting candidates
under section 38, (ii) if a contesting candidate died and a report of bis
death was received before the commencement of the poll. By Ordinance
No. 1 of 1992, the area attracting the provisions of countermanding in
section 52 bad been narrowed down by confining the provisions only to
H such cases where a candidate of a recognized political party dies.
786
-.c

' RAMA KANT v. U.0.1. 787

Section 30 of the Representation of People Act, 1951 dealt with A
appointment of dates for nomination, scrutiny and the holding of poll, and
~
in clause (d) it was provided that the date of poll shall not be earlier than
the twentieth day after the last date for the withdrawal of candidatures.
With a view of expedite the whole process, the words "twentieth day" have
been subsituted by the words "fourteenth day" in clause (d) of Section 30
by the Second Ordinance viz. Ordinance No. 2 of 1992. B

On behalf of the petitioner it was contended that the distinction
-f made by the impugned amendment between a candidate set up by· a
recognised political party and any other candidate Is artificial, iocoosis-
tent with the spirit of the election law and discriminatory, that the Con- c
- stitutioo does not confer on a candidate set up by a registered political
party any special right, and treats all candidates similarly, and does not
recognize any categorisation, that the difference being introduced by the
impugned amendment was contrary to the scheme of the Constitution and
y violative of the equality clause lo Article 14, and that it also infringed the
guarantee under Article 19(1)(a). Io respect of the Second Ordinance the D
objection was that the period of 14 days substituted by the amendment was
too short, and the reduction from the period of 20 days was arbitrary and
prejudicial to the larger interest for which elections are held.

The Petition was contested on behalf of Union of India by stating E
~. that on account of increase in terrorism and physical violence in several
parts of the Country combined with the phenomenal increase lo the
number of independent candidates,· the danger of disruption of the elec-
.lion process had been fast growing and the problem was, therefore, taken
up, examined and it was considered that the amendments were essential
to curb the danger of dlsniption of the election process. F

~
Dismissing the Writ Petition, this Court,

HELD : 1. The right to vote or to stand as a candidate for election
is neither a fundamental right nor a civil right. In England also it has
G
never been recognised rui a common law right. [7910]

.,_ Jyoti Basu & Ors. v. Debi Ghosa/ & Ors., A.l.R. 1982 S.C. 983 and 986,
referred to.

2. The Cabinet system of Government bas been envisaged by our H
788 SUPREME COURT REPORTS (1993) 1 S.C.R.

A Constitution, and the same is on the British pattem. In England, where
democracy has prevailed for longer than in any other country in recent -y'
times, the Cabinet system of Government has been found to be most
effective. In other democratic countries also the party system has been
adopted with success. [792C·DJ

B Shamser Singh v. State ofPunjab, [1975] 1 SCR814 at 827, referred to.

·3. For a strong vibrant democratic Govemment, it is necessary to
have a parliamentary majority as well as a parliamentary minority, so that
the dilferrent points or view on controversial Issues are bronght out and
C debated on •.he Door of the ParliamenL This can be best achieved by the
party system, so that the problems of the nation may be discussed, con-
sidered and resolved in a constructive spirit. To abolish or ignore the
party system would be to permit a chorus of discordant notes to replace
-
an organised discussion. [792EJ

D Sir Ivor Jennings· 'Cabinet Government' 2nd Edn. p.16, referred to.

4. Our Constitution has clearly recognised the importance of the
party system, which was further emphasized by the additiou or the 10th
Schedule to IL The Election Symbols (Reservation and Allotment) Order
is also a step in that very direction. [792FJ
E
5. That candidates set np by political parties constitute a class
separate from other candidates has been recognised in numerous cases by
this Court "hich has also emphasized the vital role of political parties in
a parliamentary form of democracy and expressed anxiety abont the
F -growing number or independent candidates. [792H, 793C]

Dr. P.N. Thampy Terah v. Union of India, [1985] Suppl. SCC 189 and
D.M.L. Agarwal v. Rajiv Gandh~ (1987] Suppl. SCC 93, referred to.

6. The Representation of the People (Amendment) Ordinance, 1992
G and the Representation or the People (Second Amendment) Ordinance,
1992 Jre constitutionally valid. [789C]

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 47 .•
of 1992. -,

H (Under Article 32 of the Constitution of India).
jlAMA KANT v. U.0.1. [SHARMA, CJ.] 789

PL. Singal and NA. Siddiqui for the Petitioner. A

D.N. Dwivedi, Additional Solicitor General and Mrs. Niranjana
Singh for the Respondent.

The Judgment of the Court was delivered by
B
SHARMA, CJ. By the present application under Article 32 of the
Constituion of India, the petitioner has challenged the constitutional
validity of the Representation of the People (Amendment) Ordinance,
1992 (Ordinance No.1 of 1992) and the Representation of the people
(Second Amendment) Ordinance, 1992 (Ordinance No.2 of 1992), on the C
grounds of violation of Articles 14, 19 and 21. By the first Ordinance,
section 52 of the Representation of the People Act, 1951 (the Act) provid-
ing for countermanding elections in certain circumstances has been
amended. By the second Ordinance the period of 20 days in section 30 of
the Act has been reduced to 14 days. Later, when the Parliament met, the i)
amendments were incorporated by an amending Act.

2. The provisions of section 52, as they stood before the amendment,
provided for countermanding the election in either of 2 contingencies - (i)
if a candidate whose nomination was found valid on scrutiny under section
36 or who has not withdrawn his candidature under section 37 died and a E
report of his death was received before the publication of thd list of
contesting candidates under section 38, (ii) if a contesting candidate died
and a report of his death was received before the commencement of the
poll. On countermanding the Returning Officer will have to report the fact
to the Election Commission; and all proceedings with reference to the F
election will have to be commenced de novo in all respects as if for a new
election. By the first Ordinance, the area attracting the provisions of
contermanding has been narrowed down by confining the provisions only
to such cases where a candidate of a recognized political party dies.

3. Section 30 deals with appointment of dates for nomination, G
scrutiny and the holding of poll, and in clause (d) it is provided that the
date of poll shall not be earlier than the twentieth day after the last date
for the withdrawal of candidatures. With a view to expedite the whole
process the words "twentieth day" have been substituted by the words
"fourteenth day" in the said clause by the impugned Ordinace. H
790 SUPREME COURT REPORTS (1993) 1 S.C.R.

A 4. Learned counsel for the petitioner has strenuously contended that
the distinction made by the impugned amendment between a candidate set
.UP hy a recognised. political party and any other candidate is artificial,
inconsistent with the spirit of the election law and discriminatory. The
Constitution does not confer on a candidate set up by a registered political
B party any special right, and treats all candidates similarly. It does not
recognize any ·categorisation. It is, therefore, argued· that tbe difference
which is being introduced by the impugned amendment is contrary to the
scheme of the Constitution and violative of the equality clause in Article
14. According to the learned counsel, this will also infringe the guarantee
under Article 19(1)(a) in respect of freedom of speech and expression.
c
5. Elaborating his argument, the learned counsel contended that the
right to choose its representative belongs to the voters of a particular
constituency, and this should not be whittled down by amendments which
have a tendenr,y to undermine this element. Lack of wisdom in giving
D importance to recognized political parties was emphasised by saying that
such parties almost always impose their choice of candidates in tbeir own
int.erest and at the cost of the welfare of the constituencies. By introducing
this imbalance in the Act, it is slated, the republican character of tbe
Constitution is jeopardised. The sum and substance of the argument on
E behalf of the petitioner is that no distinction can be made between one
candidate and another purely depending on recognition as a political party.

6. So far the second Ordinance is concerned, the objection is that
the period of 14 days, substituted by the amendment, is too short and the
F reduction from the period of 20 days is arbitrary and prejudicial to the
larger interest for which elections are held.

7. in reply, Mr. Altaf Ahmad, Additional Solicitor General, appear-
ing on behalf of the Union of India has strongly relied upon the statements
made in the counter affidavit filed on behalf of tbe respondent stating that
G on account of increase in terrorism and physical violence in several parts
of the country combined v,ith the phenomenal increase in the number of
independent candidates, the danger of disruption of the ~lection process
has been fast growing and the prnblem was, therefore, taken up for serious
consideration. The issue was examined by the Electoral Reforms Commit-
H tee set up in 1990 under the Chairmanship of the then Minister of law and
RAMA KANT v. U.0.1. [SHARMA, CJ.) 791

Justice, late Dinesh Goswami. After studying the problem deeply and A
considering various points of view presented in this regard the· Committee
made its recommendation and, accordingly, the impugned amendment was
made. Explaining the mgency of introducing the amendment by an Or-
dinance (when Parliament was not in session) the counter-affidavit states
that it had then been decided to hold the General Ele.ctions to the House
of People from the State of Punjab as also the election to the State
B
Legislature of that State and having regard to the law and order situation
prevailing in the State, it was considered essential to curb the danger of
disruption of the election process by amending section 52 immediately.
With the same object in view, the period of 20 days mentioned in section
c
- 30 was substituted by 14 days.

8. Before proceeding to examine the merits of the argument ad-
dressed on behalf of the petitioner it will be usefui to note that the right
to vote or to stand as a candidate for election is neither a fundamental nor
a civil right. In England also it has never been recognised as a _common D
law right. In this connection, we may usefully refer to the following obser-
vations in Jyoti Basu & Others v. Debi Ghosa/ & Others, A.1.R.1982 S.C.983
and 986 which reads as under :

'The nature of the right to ele<;t, the right to be elected
and the right to dispute an election and the scheme of the E
constitutional and statutory provisions in relation to these
rights have been explained by the Court in N.P. Ponnus-
wami v. Returning Officer, Namakkal Constituency, [1952)
SCR 218 : AIR 1952 SC 64 and Jagan Nath v. Jaswant
Singh, AIR 1954 SC 210. We proceed to state what we F
have gleaned from what has been said, so much as neces-
sary for this case.

A right to· elect, fundamental though it is to democracy,
is, anomalously ·enough, neither a fundamental right nor
a Common Law Right. It is pure and simple, a statutory G
right. So is the right to be elected. So is the right to dispute
an election. Outside of statute, there is no right to elect,
no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation." H
792 SUPREME COURT REPORTS (1993) l S.C.R.

A The objection raised by the petitioner, therefore, must be examined
in this background.

IJ.. The challenge of the petitioner is directed against the differential
treatment which the election law in India gives to candidates set up by
political parties. The main thrust of the argument of the learned counsel
B
is that the party system and the recognition of political parties is itself
detrimental to the cause of real democracy. In any event, no additional
advantage ought to have been allowed to candidates set up by political
parties. This stand runs counter to the constitutional scheme adopted by
the nation. It has firmly been established that the Cabinet system of
c
-
Government has been envisaged by our Constitution and that the same is
on the British pattern. (See Shamsher Singh v. St<Ue of Punjab, (1975) 1
SCR 814 at 827). In England where democracy has prevailed for longer
than in any other country in recent times, the Cabinet system of Govern-
ment has been found to be most effective. In the other democratic
D countries also the party system has been adopted with success. It has been
realised that for a strong vibrant democratic Government, it is necessary
~-
to have a parliamentary majority as well as a parliamentary minority, so
that the different points of view on controversial issues are brought out and
d~bated on the floor of the Parliament. This can be best achieved by the
party system, so that the problems of the nation may be discussed, con-
E sidered and resolved in a constructive spirit. To abolish or ignore the party
system would be to permit a chorus of discordant notes to replace an
organised discussion. In his book "Cabinet Government" (2nd Edition page
16) Sir Ivor Jennings has very rightly said. ·'Party warfare is thus essential
to the working of the democratic system". It is, therefore, idle to suggest
F that for establishing a true democratic society, the party system should be
ignored. Our Constitution has clearly recognized the importance of this
system, which was further emphasized by the addition of the 10th Schedule .....__
to it. The Election Symbols (Reservation and Allotment) Order is also a
step in that very direction.

G 10. There is also no merit whatsoever in the contention that can-
didates set up by political parties should not receive any special treatment.
The fact that candidates set up by political parties constitute a class
separate from the other candidates has been recognized by this Court in
numerous cases. In paragraph 14 of the judgment in the case of Dr. P.N.
H Thampy Terah v. Union of India, (1985) Suppl. SCC 189, the Constitution
RAMA KANT v. U.OJ. [SHARMA, Cl.] 793

Bench observed thus :- A
"It is the political parties which sponsor candidates, that
are in a position to incur large election expenses which
often run into astronomical figures. We do not consider
that preferring political parties for exclusion from the
sweep of monetary limits on election expenses, is so un- B
reasonable or arbitrary as to justify the preference being
struck down upon that gournd."
~-
In D.M.L. Agarwal v. Rajiv Gandhi, [1987] Suppl. SCC 93 a Division
Bench of this Court took note of and emphasized the vital role of political
parties in a parliamentary form of democracy and anxiety was expressed C
about the growing numb.er of independent candidates.

11. For the reasons indicated above, we do not find any substance in
the argument of the learned counsel for the petitioner challenging the
constitutional validity of the impugned amendment of section 52. The D
argument against the reduction of the period of 20 days to 14 days in
section 30 is equally without any merit. The learned counsel could not
suggest any good reason for holding that the period of 14 days would be
inadequate or inappropriate, especially in the changed circumstances
which are prevailing in the country. Consequently, this writ petition is
dismissed with costs assessed at Rs. 2,500 payable to the respondent Union E
of India.

N.V.K. Petition dismissed.