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PETITIONER: N.P. PONNUSWAMI

       Vs.

RESPONDENT: RETURNING OFFICER, NAMAKKALCONSTITUENCY and OTHERS.UNION OF

DATE OF JUDGMENT: 21/01/1952

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   64            1952 SCR  218  CITATOR INFO :  RF         1954 SC 520  (6)  R          1955 SC 233  (6)  RF         1957 SC 694  (7)  R          1957 SC 871  (4)  D          1967 SC 669  (17)  MV         1971 SC 530  (373)  R          1973 SC2464  (3)  R          1974 SC 480  (19)  RF         1974 SC1185  (16)  R          1975 SC1708  (11)  R          1975 SC2140  (3,4,5)  RF         1975 SC2299  (268)  E&F        1978 SC 851  (10,22,24,25,26,27,29,30,61  RF         1980 SC1362  (23)  RF         1981 SC 547  (7)  R          1982 SC 983  (7)  R          1983 SC 558  (11)  R          1984 SC 135  (8)  F          1984 SC 921  (19,20)  E&R        1985 SC1233  (24,25,26)  RF         1986 SC 103  (12)  R          1988 SC  61  (6)  RF         1988 SC 616  (6,8,9,10)  RF         1988 SC 915  (9,15)

ACT:     Constitution of India, Arts. 226, 324 to  329--Represen- tation  of  the People Act, 1951, ss.  36,  80--Election  to Legislatures--Rejection of nomination paper--Application  to High  Court for writ of  certiorari--Maintainability--Juris- diction  of  High  Court--Meaning  of "election" and  "ques- tioning  election"--Policy  of Legislature  with  regard  to elections--Special remedies.

HEADNOTE:     Article  329 (b) of the Constitution of  India  provides that  "no election to either House of Parliament or  to  the House or either House of the Legislature of a State shall be

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called in question except by an election petition  presented to such authority and in such manner as may be provided for, by  or under any law made by the appropriate   Legislature." The  Representation  of  the People Act,  1951,  which  made detailed provisions for election to the various Legislatures of  the country also contains a provision (sec. 80) that  no election  shall be called in question except by an  election petition presented in accordance with the provisions of  the Act.     The  appellant, who was a candidate for election to  the Legislative Assembly of the State of Madras and whose  nomi- nation paper was rejected by the Returning Officer,  applied to the High Court of Madras under article 226 of the Consti- tution  for a writ of certiorari to quash the order  of  the Returning  Officer  rejecting his nomination  paper  and  to direct the Returning Officer to include his name in the list of valid nominations to be published:     Held  by  the Full Court (PATANJALI SASTRI,  C.J.,  FAZL ALl,  MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR  JJ.) that  in  view of the provisions of article 329 (b)  of  the Constitution and sec. 80 of the Representation of the People Act,  1951, the High Court had no jurisdiction to  interfere with the order of the Returning Officer.     The word "election" has by long usage in connection with the process of selection of proper representatives in  demo- cratic institutions acquired both a wide and a narrow  mean- ing. In the 219 narrow  sense  it is used to mean the final selection  of  a candidate  which  may embrace the result of  the  poll  when there  is polling, or a particular candidate being  returned unopposed when there is no poll. In the wide sense, the word is  used  to  connote the entire process  culminating  in  a candidate  being  declared elected and it is  in  this  wide sense  that the word is used in Part XV of the  Constitution in which article 329 (b) occurs.     The scheme of Part XV of the Constitution and the Repre- sentation  of  the People Act, 1951, seems to  be  that  any matter which has the effect of vitiating an election  should be brought up only at the appropriate stage in an  appropri- ate  manner  before  a special tribunal and  should  not  be brought up at an intermediate stage before any court.  Under the election law, the only significance which the  rejection of a nomination paper has, consists in the fact that it  can be  used  as  a ground to call  the  election  in  question. Article  329  (b) was apparently enacted  to  prescribe  the manner  in  which and the stage at which  this  ground,  and other grounds which may be raised under the law to call  the election  in question, could be urged. It follows by  neces- sary  implication from the language of this  provision  that those  grounds cannot be urged in any other manner,  at  any other  stage and before any other court. If the  grounds  on which an election can be called in question could be  raised at an earlier stage and errors, if any, are rectified, there will  be  no meaning in enacting a  provision  like  article 329(b)  and  in setting up a special  tribunal.   Any  other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have  contem- plated,  one  of them being that conflicting  views  may  be expressed by the High Court at the pre-polling stage and  by the election tribunal which is to be an independent body, at the  stage when the matter is brought up before it.   There- fore,  questioning  the rejection of a nomination  paper  is "questioning  the  election" within the meaning  of  article ,329 (b) of the Constitution and sec. 80 of the  Representa-

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tion of the People Act, 1951.     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 signif- icance 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 220 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. The  right to vote or stand as a candidate for  election  is not  a civil right but is a creature of statute  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  elec- tion 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.    Where a right or liability is created by a statute  which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.    Wolverhampton New Water Works Co. v. Hawkesford [6 C.B. (N.  S. ) 336], Neville v. London Express Newspaper  Limited [1910] A.C. 368), Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. ([1935] A.C. 532), Secretary of State  v. Mask &  Co.    (44 C.W.N. 709), Hurdutrai v. Offcial Assign- ee  of  Calcutta  (52 C.W.N. 343),  The  berge   v.   Laudry (1876, 2 App. Cas.   102) referred to.    Judgment of the High Court of Madras affirmed.

JUDGMENT:      CIVIL  APPELLATE  JURISDICTION: Case No. 351  of  1951. Appeal under article 132 of the Constitution from the  Judg- ment  and  Order of the High Court of Judicature  at  Madras (Subba  Rao and Venkatarama Ayyar JJ.) dated 11th  December, 1951,  in Writ Petition No. 746 of 1951.  The facts  of  the case  and arguments of the counsel are set out in detail  in the judgment. N. Rajagopal Iyengar, for the appellant. R. Ganapathi Iyer, for the 1st respondent.      M.C. Setalvad, Attorney-General for India (G. N. Joshi, with him) for the Union of India.      K.A. Chitale, Advocate-General of Madhya Bharat (G.  N. Joshi, with him) for the State of Madhya Bharat.      1952.  January 21.  Fazl Ali J. delivered  Judgment  as follows.  Patanjali Sastri C.J., Mahajan, Mukherjea, Das and Chandrasekhara Aiyar JJ. agreed with Fazl Ali 5. 221     FAZL  ALI  J. --This is an appeal from an order  of  the

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Madras  High Court dismissing the petition of the  appellant praying for a writ of certiorari.     The  appellant  was  one of the persons  who  had  filed nomination  papers  for election to the  Madras  Legislative Assembly  from the Namakkal Constituency in Salem  district. On  the 28th November, 1951, the Returning Officer for  that constituency  took  up for scrutiny  the  nomination  papers filed  by  the  various candidates and on the  same  day  he rejected the appellant’s nomination paper on certain grounds which  need not be set out as they are not material  to  the point raised in this appeal.  The appellant thereupon  moved the High Court under article 226 of the Constitution praying for  a writ of of certiorari to quash the order of  the  Re- turning Officer rejecting his nomination paper and to direct the  Returning  Officer to include his name in the  list  of valid nominations to be published.  The High Court dismissed the  appellant’s  application on the ground that it  had  no jurisdiction  to interfere with the order of  the  Returning Officer  by  reason of the provisions of article  329(b)  of the Constitution.  The appellant’s contention in this appeal is that the view expressed by the High Court is not correct, that  the jurisdiction of the High Court is not affected  by article  329 (b) of the Constitution and that he  was  enti- tled  to a writ of certiorari in the circumstances  of   the case.     Broadly  speaking, the arguments on which  the  judgment of the High Court is assailed are two-fold :--     (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  Constitu- tion; and     (2) that the anomalies which will arise if the construc- tion  put by the High Court on article 329 (b) is  accepted, are  so startling that the courts should lean in  favour  of the construction put forward on behalf of the appellant. 29 222      The  first argument which turns on the construction  of article 329 (b) requires serious consideration, but I  think the  second argument can be disposed of briefly at the  out- set. 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 in  forceful  language by Wallace J. in  Sarvothama  Rao  v. Chairman, Municipal Council, Saidapet (1) in these words :--    "I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the petitioner  seeks, namely,  that this election, now published be stayed,  until it can be held with himself as a candidate. It is no  conso- lation  to tell him that he can stand for some  other  elec- tion.   It  is no remedy to tell him that he  must  let  the election  go on and then have it set aside by  petition  and have  a  fresh election ordered. The fresh election  may  be under altogether different conditions and may bring  forward an array of fresh candidates.  The petitioner can only  have his  proper relief if the proposed election without  him  is stayed until his rejected nomination is restored, and  hence an  injunction staying this election was  absolutely  neces- sary,  unless  the  relief asked for was to  be  denied  him altogether  in limine.  In most cases of this kind no  doubt there  will be difficulty for the aggrieved party to get  in his  suit in time before the threatened wrong is  committed; but  when  he has succeeded in so doing,  the  Court  cannot stultify  itself by allowing the wrong which it is asked  to

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prevent  to be actually consummated while it is  engaged  in trying the suit."      These  observations however represent only one side  of the  picture and the same learned Judge presented the  other side  of the picture in a subsequent case [Desi Chettiar  v. Chinnasami Chettiar(2)] in the following passage :-      "The petitioner is not without his remedy.  His  remedy lies  in  an election petition which we  understand  he  has already put in. It is argued for him  (1) (1924) I.L.R. 47 mad. 585 at 600.  (2) (1928) A. I.R. Mad. 1271 at 1272. that  that remedy which merely allows him to have set  aside an election once held is not as efficacious as the one which would enable him to stop the election altogether;and certain observations at p. 600 of Sarvothama Rao v. Chairman, Munic- ipal  Council, Saidapet(1) are quoted.  In the first  place, we  do not see how the mere fact that the petitioner  cannot get the election stopped and has his remedy only after it is over  by an election petition, will in itself confer on  him any  right  to obtain a writ.  In the  second  place,  these observations  were  directed  to the  consideration  of  the propriety  of an injunction in a civil suit, a  matter  with which  we  are not here concerned.  And finally it  may.  be observed  that these remarks were made some years  ago  when the practice of individuals coming forward to stop elections in  order  that their own individual interest may  be  safe- guarded was not so common.  It is clear that there is anoth- er side of the question to be considered, namely, the incon- venience  to the public administration of  having  elections and  the business of Local Boards held up while  individuals prosecute  their individual grievances.  We  understand  the election for the elective seats in this Union has been  held up since 31st May because of this petition, the result being that  the electors have been unable since then to  have  any representation  on the Board, and the Board is  functioning, if indeed it is functioning, with a mere nominated  fraction of  its total strength; and this state of affairs the  peti- tioner  proposes  to have continued until his  own  personal grievance is satisfied."     These  observations which were made in regard  to  elec- tions  to  Local  Boards will apply with  greater  force  to elections to legislatures, because it does not require  much argument to show that in a country with a democratic consti- tution in which the legislatures have to play a very  impor- tant  role,  it will lead to serious  consequences,  if  the elections are unduly proracted or obstructed. To this aspect of the matter I shall have to advert later. but it is suffi- cient for the present purpose (1) (1924) I.L.R. 47 Mad, 585 at 600. 224 to state firstly that in England the hardship and  inconven- ience  which may be suffered by an individual candidate  has not been regarded as of sufficient weight to induce  Parlia- ment  to  make provision for  immediate relief and  the  ag- grieved  candidate has to wait until after the  election  to challenge  the validity     of the rejection of his  nomina- tion  paper, and secondly, that the question of hardship  or inconvenience  is after all only a secondary  question,  be- cause  if the construction put by the High Court on  article 329 (b) of the Constitution is found to be correct, the fact that  such construction will lead to hardship and  inconven- ience becomes irrelevant.      Article  329  is  the last article in Part  XV  of  the Constitution,  the heading of which is "Elections",  and  it runs as follows :--

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   "Notwithstanding anything in this Constitution--     (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constit- uencies, made or purporting to be made under article 327  or article 328, shall not be called in question in any court;      (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition  presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature."      In construing this article, reference was made by  both parties in the course of their arguments to the other  arti- cles  in the same Part, namely, articles 324, 325, 326,  327 and  328.   Article 324 provides for  the  constitution  and appointment  of  an Election  Commissioner  to  superintend, direct  and control ejections to the  legislatures;  article 325 prohibits discrimination against electors on the  ground of  religion, race, caste or sex; article 326  provides  for adult suffrage; article     327 empowers Parliament to  pass laws  making provision with respect to all matters  relating to,  or in connection with, elections to  the  legislatures, subject 225 to the provisions of the Constitution; and article 328 is  a complementary article giving power to the State  Legislature to  make provision with respect to all matters relating  to, or  in connection with, elections to the State  Legislature. A  notable difference in the language used in  articles  327 and  328 on the one hand, and article 329 on the  other,  is that  while  the first’ two articles begin with  the  words" subject  to the provisions of this Constitution"   the  last article  begins with the words "notwithstanding anything  in this  Constitution."   It was conceded at the bar  that  the effect  of this difference in language is that  whereas  any law  made by Parliament under article 327, or by  the  State Legislatures under article 328, cannot exclude the jurisdic- tion  of the High Court under article 226 of  the  Constitu- tion,  that  jurisdiction is excluded in regard  to  matters provided for in article 329.     Now,  the main controversy in this appeal centres  round the  meaning  of the words "no election shall be  called  in question except by an election petition" in article 329 (b), and  the  point  to be decided is  whether  questioning  the action  of the Returning Officer in rejecting  a  nomination paper  can be said to be comprehended within the words,  "no election shall be called in question." The appellant’s  case is  that questioning something which has happened  before  a candidate  is  declared  elected is not the  same  thing  as questioning  an election, and the arguments advanced on  his behalf in support of this construction were these:--     (1) That the word "election" as used in article 329  (b) means what it normally and etymologically means, namely, the result of polling or the final selection of a candidate;     (2)  That the  fact  that  an  election petition can  be filed  only  after polling is over or after a  candidate  is declared  elected, and  what  is normally called in question by such  petition is the final result, bears out the conten- tion  that the word "election "can have no other meaning  in article  (b) than the result of polling or the final  selec- tion of a candidate; 226     (3)  That  the words "arising out of  or  in  connection with" which are used in article 324 (1) and the words  "with respect  to all matters relating to, or in connection  with" which are used in articles 327 and s28, show that the  fram-

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ers  of the Constitution knew that it was necessary  to  use different  language when referring respectively  to  matters which  happen prior to and after the result of polling,  and if  they had intended to include the rejection of a  nomina- tion paper within the ambit of the prohibition contained  in article  S29  (b) they would have used similar  language  in that article and     (4) That the action of the Returning Officer in  reject- ing  a  nomination paper can be questioned before  the  High Court under article 226 of the Constitution for the  follow- ing  reason:--Scrutiny of nomination papers and their rejec- tion are provided for in section 36 of the Representation of the People Act, 1951. Parliament has made this provision  in exercise of the powers conferred on it by article 327 of the Constitution  which  is "subject to the  provisions  of  the Constitution". Therefore, the action of the Returning  Offi- cer is subject to the extraordinary jurisdiction of the High Court under article 226.     These  arguments appear at first sight to be  quite  im- pressive, but in my opinion there are weightier and basical- ly more important arguments in support of the view taken  by the  High Court.  As we have seen, the most important  ques- tion  for determination is the meaning to be  given to   the word  "election" in article 329 (b).  That word has by  long usage in connection with the process of selection of  proper representatives in democratic institutions, acquired both  a wide and a narrow meaning.  In the narrow sense, it is  used to  mean the final selection of a candidate which   may  em- brace   the  result of the poll when there is polling  or  a particular candidate being returned unopposed when there  is no poll.  In the wide sense, the word is used to connote the entire process culminating in a candidate being declared 227 elected. In Srinivasalu v. Kuppuswami(1), the learned Judges of  the  Madras  High Court after  examining  the  question, expressed the opinion that the term "election" may be  taken to  embrace the whole procedure whereby an "elected  member" is returned, whether or not it be found necessary to take  a poll.   With  this view, my brother,  Maimjan  J.  expressed his  agreement  in Sat Narain v. Hanuman Prasad (2);  and  I also find myself in agreement with it.  It seems to me  that the  word  "election"  has  been used  in  Part  XV  of  the Constitution  in the wide sense, that is to say, to  connote the  entire  procedure  to  be  gone  through  to  return  a candidate  to  the legislature.  The use of  the  expression "conduct of elections" in article 324 specifically points to the  wide  meaning,  and  that  meaning  can  also  be  read consistently  into the other provisions which occur in  Part XV  including  article 329 (b).  That  the  word  "election" bears  this wide meaning whenever we talk of elections in  a democratic country, is borne out by the fact that in most of the  books on the subject and in several cases dealing  with the  matter,  one  of  the questions  mooted  is,  when  the election  begins. The subject is dealt with quite  concisely in  Halsbury’s Laws of England in the  following  passage(s) under the heading" Commencement of the Election ":--     "Although the first formal step in every election is the issue  of  the  writ, the election is  considered  for  some purposes  to begin at an earlier date.  It is a question  of fact  in each case when an election begins in such a way  as to  make the parties concerned responsible for  breaches  of election law, the test being whether the contest is "reason- ably imminent". Neither the issue of the writ nor the publi- cation of the notice of election can be looked to as  fixing the  date when an election begins from this point  of  view.

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Nor,  again, does the nomination day afford  any  criterion. The  election will usually begin at least earlier  than  the issue  of  the writ. The question when the  election  begins must be care (1) (1928) A.I.R. Mad. 253 at 255. (2) (1945) A.I.R. Lah. 85. (3)  See  page 237 of Halsbury’s   Laws  of   England,   2nd edition, Volume 12. 228 fully  distinguished from that as to when "the  conduct  and management of" an election may be said to begin. Again,  the question  as to when a particular person commences to  be  a candidate is a question to be considered in each case."     The  discussion in this passage makes it clear that  the word  ’  ’election" can be and has been  appropriately  used with  reference  to  the entire process  which  consists  of several  stages and embraces many steps, some of  which  may have an important bearing on the result of the process.     The next important question to be considered is what  is meant  by the words "no election shall be called  in   ques- tion".  A reference  to any treatise on elections in England will  show  that an election proceeding in that  country  is liable  to be assailed on very limited grounds, one of  them being the improper rejection of a nomination paper.  The law with which we are concerned is not materially different, and we  find  that in section 100 of the Representation  of  the People Act, 1951, one of the grounds for declaring an  elec- tion  to be void is the improper rejection of  a  nomination paper.     The question now arises whether the law of elections  in this  country contemplates that there should be two  attacks on  matters connected with election proceedings,  one  while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary  jurisdiction of the courts having  been  expressly excluded),  and  another after they have been  completed  by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution  and  the  Representation of  the  People  Act, which,  as  I shall point out later, seems to  be  that  any matter which has the effect of vitiating an election  should be brought up only at the appropriate stage in an  appropri- ate  manner  before  a special tribunal and  should  not  be brought  up at an intermediate stage before any  court.   It seems  to me that under the election law, the only  signifi- cance which the rejection of 229 a  nomination paper has consists in the fact that it can  be used as a ground to call the  election  in question.   Arti- cle 329(b)was apparently enacted to prescribe the manner  in which and the stage at which this ground, and other  grounds which may be raised under  the law to  call the election  in question   could be urged.  I think it follows by  necessary implication   from   the  language of this   provision  that those  grounds cannot be urged in any other manner,  at  any other  stage and before any other court. If the  grounds  on which an election can be called in question could be  raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article  329 (b) and in setting up a special tribunal.  Any other meaning ascribed  to  the words used in the article  would  lead  to anomalies, which the Constitution could not have contemplat- ed,  one  of them being that conflicting views  may  be  ex- pressed  by the High Court at the pre-polling stage  and  by the  election tribunal, which is to be an independent  body,

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at the stage when the matter is brought up before it.     I  think that a brief examination of the scheme of  Part XV of the Constitution and the Representation of the  People Act, 1951, will show that the construction I have  suggested is  the correct one.  Broadly speaking, before  an  election machinery  can  be brought into operation, there  are  three requisites  which  require to be attended  to,  namely,  (1) there  should be a set of laws and rules  making  provisions with  respect to all matters relating to, or  in  connection with,  elections, and it should be decided as to  how  these laws and rules are to be made;(2) there should be an  execu- tive  charged with the duty of securing the due  conduct  of elections;  and  (3)there should be a judicial  tribunal  to deal  with  disputes arising out of or  in  connection  with elections. Articles 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the  third  requisite.  The other two articles in  Part  XV, viz, articles 325 and 326, deal with two matters of  princi- ple  to  which the Constitution-framers have  attached  much importance.  They 30 230 are :--(1) prohibition against discrimination in the  prepa- ration  of, or eligibility for  inclusion in, the  electoral rolls,  on grounds of religion, race, caste, sex or  any  of them;  and (2) adult suffrage.  Part XV of the  Constitution is really a code in itself providing the entire  ground-work for  enacting appropriate laws and setting up  suitable  ma- chinery for the conduct of elections.     The  Representation of the People Act, 1951,  which  was passed by Parliament under article 327 of the  Constitution. makes  detailed provisions in regard to all matters and  all stages connected with elections to the various  legislatures in this country.  That Act is divided into II parts, and  it is interesting to see the wide variety of subjects they deal with.  Part Il deals with "the qualifications and  disquali- fications for membership", Part III deals with the notifica- tion of General Elections, Part IV provides for the adminis- trative  machinery for the conduct of elections, and Part  V makes  provisions  for the actual conduct of  elections  and deals  with such matters as presentation of  nomination  pa- pers. requirements of a valid nomination, scrutiny of  nomi- nations,  etc.,  and procedure for polling and  counting  of votes.  Part VI deals with disputes regarding elections  and provides  for  the manner of presentation of election  peti- tions, the constitution of election tribunals and the  trial of  election petitions.  Part VII outlines the various  cor- rupt  and illegal practices which may affect the  elections, and  electoral  offences.  Obviously,  the  Act  is  a  self contained enactment so far as elections are concerned, which means  that whenever we have to ascertain the true  position in  regard to any matter connected with elections,  we  have only  to look at the Act and the rules made thereunder.  The provisions  of  the Act which are material  to  the  present discussion are sections 80, 100, 105 and 170, and the provi- sions  of  Chapter II of Part IV dealing with  the  form  of election petitions, their contents and the reliefs which may be  sought in them. Section 80, which is drafted  in  almost the  same  language as article 329 (b),  provides  that  "no election shall be called in question except by an election 231 petition presented in accordance with the provisions of this Part".  Section 100, as we have already seen,  provides  for the grounds on which an election may be called in  question, one  of  which  is the improper rejection  of  a  nomination

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paper.  Section 105 says that  "every order of the  Tribunal made under this Act shall be final and conclusive".  Section 170  provides that  "no civil court shall have  jurisdiction to  question  the  legality of any action taken  or  of  any decision  given  by the Returning Officer or  by  any  other person appointed under this Act in connection with an  elec- tion."   These  are the main provisions  regarding  election matters being judicially dealt with, and it should be  noted that  there  is  no provision anywhere to  the  effect  that anything  connected with elections can be questioned  at  an intermediate stage. It is now well-recognized that where a right or liability is created  by a statute which gives a special remedy  for  en- forcing it, the remedy provided by that statute only must be availed  of.  This rule was stated with great   clarity   by Willes  J. in Wolverhampton New Water Works Co.  v.  Hawkes- ford(1) in the following passage :-    "There  are three classes of cases in which  a  liability may  be  established founded upon statute.   One  is,  where there  was a liability existing at common law and  that  li- ability  is affirmed by a statute which gives a special  and peculiar  form  of remedy different from  the  remedy  which existed  at  common law;there, unless the  statute  contains words  which expressly or by necessary  implication  exclude the  common law remedy, the party suing has his election  to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to suemerely, but provides no particular form of remedy: there, the  party can  only proceed by action at common law.  But there  is  a third class, viz., where a liability not existing at  common law  is created by a statute which at the same time gives  a special  and particular remedy for enforcing  it............ The remedy provided by the statute must be followed, and  it is not (1) 6 C.B. (N.S.) 336, 356. 232 competent  to the party to pursue the course  applicable  to cases  of the second class.  The form given by  the  statute must be adopted and adhered to."     The rule laid down in this passage was approved  by  the House of Lords in Neville v. London Express Newspaper Limit- ed(1)  and  has  been reaffirmed by  the  Privy  Council  in Attorney-General  of Trinidad and Tobago v. Gordon  Grant  & Co.(2)  and Secretary of State v. Mask & Co.(a); and it  has also  been held to be equally applicable to  enforcement  of rights: see  Hurdutrai v. Official Assignee of  Calcutta(4). That being so, I think it will be a fair inference from  the provisions of the Representation of  the People Act to state that the Act provides for only one remedy, that remedy being by  an election petition to be presented after the  election is over, and there is no remedy provided at any intermediate stage.     It  was  argued  that since the  Representation  of  the People  Act  was enacted subject to the  provisions  of  the Constitution,  it  cannot bar the jurisdiction of  the  High Court to issue writs under article 226 of the  Constitution. This argument however is completely shut out by reading  the Act along with article 329 (b). It will be noticed that  the language  used in that article and in section 80 of the  Act is  almost  identical, with this difference  only  that  the article  is preceded by the words "notwithstanding  anything in  this Constitution".  I think that those words are  quite apt  to exclude the jurisdiction of the High Court  to  deal with  any matter which may arise while the elections are  in progress.

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   It   may   be  stated  that  section   107(1)   of   the Representation  of People Act, 1949 (12 & 13 Geo. 6, c.  68) in England is drafted almost in the same language as article 329(b).  That section runs thus :-     "No  parliamentary election and no return to  Parliament shall  be questioned except by a petition complaining of  an undue election or undue return (hereinafter referred to as a parliamentary  election  petition) presented  in  accordance with this Part of this Act."   (1) [1919] A.C. 368.          (3) (1940) 44 C.W.N. 709.   (2) [1935] A.C. 532.          (4) (1948) 52 C.W.N. 343, 349. 233     It appears that similar language was used in the earlier statutes,  and it is noteworthy that it has never been  held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus.   On the  other hand, it was  conceded at the bar that the  ques- tion of improper rejection of a nomination paper has  always been  brought   up in that country  before  the  appropriate tribunal by means of an election petition after the  conclu- sion  of  the election. It is true that there is  no  direct decision holding that the words used in the relevant  provi- sions  exclude the jurisdiction of the High Court  to  issue appropriate  prerogative writs at an intermediate  stage  of the election, but the total absence of any such decision can be  accounted  for only on the view that the  provisions  in question have been generally understood to have that effect. Our attention was drawn to rule 13 of the rules appended  to the Ballot Act of 1872 and a similar rule in the  Parliamen- tary Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an objection to a  nomina- tion  paper shall be final, but allowing the same  shall  be subject  to reversal on a petition questioning the  election or  return.   These  rules however do not  affect  the  main argument.   I  think it can be legitimately stated  that  if words  similar  to those used in article 329 (b)  have  been consistently treated in England as words apt to exclude  the jurisdiction  of  the courts including the High  Court,  the same consequence must follow from the words used in  article 329  (b) of the Constitution. The   words   "notwithstanding anything   in  this Constitution" give to that  article  the same wide and binding effect as a statute passed by a sover- eign legislature like the English Parliament.     It may be pointed out that article 329 (b) must be  read as  complimentary to clause (a) of that article. Clause  (a) bars the jurisdiction of the courts with regard to such  law as  may be made under articles 327 and 328 relating  to  the delimitation of constituencies or the allotment of seats  to such constituencies.  It was conceded before us that article 329 (b) ousts the jurisdiction of the courts with regard  to matters 234 arising  between  the commencement of the  polling  and  the final selection. The question which has to be asked is  what conceivable  reason the legislature could have had to  leave only  matters  connected  with nominations  subject  to  the jurisdiction  of  the High Court under article  226  of  the Constitution.   If Part XV of the Constitution is a code  by itself,  i.  e., it creates rights and provides   for  their enforcement  by a special tribunal to the exclusion  of  all courts including the High Court, there can be no reason  for assuming  that the Constitution left one small part  of  the election  process to be made the subject-matter  of  contest before  the High Courts and thereby upset the  time-schedule

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of the elections  The more reasonable view seems to be  that article 329 covers all "electoral matters".     The conclusions which I have arrived at may be summed up briefly as follows :--     (1)  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. (2) In conformity with this principle, the scheme the  elec- tion  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 commit- ted while it is in progress and they belong to the  category or  class which, under the law by which elections  are  gov- erned,  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  dis- pute before any court while the election is in progress.     It   will be useful at this stage to refer to the  deci- sion the Privy Council in Theberge v. Laudry(1).  The (1) (1876) 2 App. Cas. 102. 235 petitioner in that case having been declared duly elected  a member to represent an electoral district in the Legislative Assembly of the Province of Quebec, his election was  after- wards,  on petition, declared null and void by  judgment  of the Superior Court, under  the Quebec Controverted Elections Act,  1875, and himself declared guilty of corrupt practices both personally and by his agents. Thereupon, he applied for special  leave to appeal to Her Majesty in Council,  but  it was refused on the ground that the fair construction of  the Act of 1875 and the Act of 1872 which preceded it  providing among  other things that the judgment of the Superior  Court "shall  not  be susceptible of appeal" was that it  was  the intention  of the legislature to create a tribunal  for  the purpose  of  trying  election petitions in  a  manner  which should make its decision final for all purposes, and  should not annex to it the incident of its judgment being  reviewed by  the  Crown  under its prerogative.   In  delivering  the judgment  of  the  Privy Council, Lord  Cairns  observed  as follows :--     "These  two   Acts of Parliament, the Acts of  1872  and 1875,  are Acts peculiar in their character. They   are  not Acts  constituting  or providing for the  decision  of  mere ordinary  civil  rights;  they are Acts creating an entirely new, and up to that time unknown, jurisdiction  in a partic- ular  Court......  for the purpose of taking out,  with  its own  consent,  of the Legislative Assembly, and  vesting  in that  Court,  that very peculiar jurisdiction which,  up  to that time, had existed in the Legislative Assembly of decid- ing election petitions, and determining the: status of those who  claimed to be members of the Legislative  Assembly.   A jurisdiction  of that kind is extremely special, and one  of the obvious incidents or consequences of such a jurisdiction must  be  that the jurisdiction, by whomsoever it is  to  be exercised, should be exercised in a way that should as  soon as  possible become conclusive; and enable the  constitution of  the Legislative Assembly to be distinctly  and  speedily known." 236

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   After  dealing  with  certain other  matters,  the  Lord ChanCellor proceeded to make the following further  observa- tions :--     "Now,  the  subject-matter,  as has been  said,  of  the legislation is extremely peculiar.  It concerns the   rights and privileges of the electors and of the Legislative Assem- bly  to which they elect members.  Those rights  and  privi- leges have always in every colony, following the example  of the mother country, been jealously maintained and guarded by the Legislative Assembly.  Above all, they have been  looked upon as rights and privileges which pertain to the  Legisla- tive Assembly, in complete independence of the Crown, so far as  they properly exist.  And it would be a result  somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of  this kind, it were to be found that in the  last  resort the determination of them no longer belonged to  the  Legis- lative  Assembly, no longer belonged to the  Superior  Court which the Legislative Assembly  had put  in  its place,  but belonged  to  the  Crown  in  Council,  with  the advice  of the advisers of the Crown at home, to be determined  without reference  either to the judgment of the Legislative  Assem- bly,  or  of that Court which the Legislative  Assembly  had substituted  in  its place."     The points which emerge from this decision may be stated as follows :--     (1) The right to vote or stand as a candidate for  elec- tion  is not a civil right but is a creature of  statute  or special  law and must be subject to the limitations  emposed by it.     (2)  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  tribu- nal  an entirely new and unknown jurisdiction, that  special jurisdiction should be exercised in accordance with the  law which creates it. 237     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.     It  is necessary to refer at this stage to  an  argument advanced  before  us on behalf of the  appellant  which  was based on the language of article 71 (1) of the Constitution. That provision runs thus :-     "All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall  be inquired  into and decided by the Supreme Court whose  deci- sion shall be final."     The argument was as follows.  There is a marked contrast between  the  language used in article 71 (1)  and  that  of article 329 (b).  The difference in the phraseology employed in the two provisions suggests that they could not have been intended  to  have  the same meaning and  scope  as  regards matters  to be brought up before the tribunals they  respec- tively  deal with. If the framers of the  Constitution,  who apparently  knew  how  to express  themselves,  intended  to include  within  the ambit of article 329 (b)  all  possible disputes connected with elections to legislatures,   includ- ing disputes as to nominations, they would have used similar words as are to be found in article 71 (1).  It is true that it  is  not  necessary to use identical  language  in  every provision, but one can conceive of various alternative  ways of  expression which would convey more clearly and  properly

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what article 329 (b) is said to convey.     It  seems to me that once it is admitted that  the  same idea can be expressed in different ways and the same phrase- ology need not be employed in every provision, the  argument loses much of its force.  But, however that may be, I  think there  is a good explanation as to why article 329  (b)  was drafted as it stands.     A reference to the election rules made under the Govern- ment  of  India  Acts of 1919 and 1935 will  show  that  the provisions  in them on the subject were almost in  the  same language as article 329 (b).  The 21 238 corresponding  rule made under the Government of India  Act, 1919,  was  rule 31 of the electoral rules, and it  runs  as follows :-     "No  election shall be called in question, except by  an election  petition presented in accordance with  the  provi- sions of this Part."     It  should be noted that this rule occurs in  Part  VII, the  heading of which is "The final decision of  doubts  and disputes  as to the validity of an election".   These  words throw some light on the function which the election tribunal was  to  perform,  and they are the  very  words  which  the learned counsel for the appellant argued, ought to have been used to make the meaning clear.     The  same  scheme  was followed in  the  election  rules framed  under the Government of India Act, 1935,  which  are contained in "The Government of India (Provincial Elections) (Corrupt  Practices  and Election Petitions)  Order,  1936", dated  the 3rd July, 1936.  In that Order, the  rule  corre- sponding to rule 31 under the earlier Act, runs thus :-     "No  election shall be called in question except  by  an election  petition presented in accordance with  the  provi- sions of this Part of the Order."     This  rule is to be found in Part III of the Order,  the heading  of which is "Decision of doubts and disputes as  to validity  of  an election and disqualification  for  corrupt practices."     The  rules  to  which I have  referred  were  apparently framed on the pattern of the corresponding provisions of the British  Acts  of  1868 and 1872, and they  must  have  been intended  to  cover  the same ground as  the  provisions  in England have been understood to cover in that country for so many  years.   If the language used in article  329  (b)  is considered against this historical background, it should not be  difficult  to see why the framers  of  the  Constitution framed  that  provision in its present form  and  chose  the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time. 239     And  now a word as to why negative language was used  in article 829 (b).  It seems to me that there is an  important difference  between  article 71 (1)  and  article  329  (b). Article 71 (1) had to be in an affirmative form, because  it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article.   Arti- cle  329 (b), on the other hand, was primarily  intended  to exclude or oust the jurisdiction of all courts in regard  to electoral matters and to lay down the only mode in which  an election could be challenged.  The negative form was  there- fore  more appropriate, and, that being so, it is  not  sur- prising  that it was decided to follow the preexisting  pat- tern in which also the negative language had been adopted.     Before  concluding, I should refer to an argument  which

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was  strenuously  pressed  by the learned  counsel  for  the appellant  and  which  has been reproduced  by  one  of  the learned  Judges  of the High Court in these  words:-"It  was next  contended that if nomination is part election, a  dis- pute as to the validity of nomination is a dispute  relating to  election  and  that can be called in  question  only  in accordance  with  the provisions of article 329 (b)  by  the presentation  of  an election petition  to  the  appropriate Tribunal and that the Returning Officer would have no juris- diction  to  decide that matter  and it was  further  argued that  section 36 of Act XLIII of 1981 would be  ultra  vires inasmuch as it confers on the Returning Officer a  jurisdic- tion  which,  article 329 (b) confers on a  Tribunal  to  be appointed in accordance with the article."     This argument displays great dialectical ingenuity,  but it  has no bearing on the result of this appeal and I  think it  can be very shortly answered.  Under section 36  of  the Representation.  of the People Act, 1951, 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 be made to any nomination.   It is  clear that unless this duty is discharged properly,  any number of candidates may stand for election without  comply- ing with the provisions of the Act and a great deal of 240 confusion  may  ensue.  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.  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  elec- tion. The fallacy of the argument lies in treating a  single step  taken in furtherance of an election as  equivalent  to election.  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 enter- tain  petitions regarding improper rejection  of  nomination papers.   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. PATANJALI  SASTRI C.J.--I agree. MEHR CHAND MAHAJAN J.--- I agree. MUKHERJEA J.--I agree. DAS J.-I agree. CHANDRASEKHARA AIYAR J.-I agree.                                           Appeal dismissed. Agent for the appellant: S. Subrahmanyam. Agent for the 1st respondent: P.A. Mehta. Agent  for  the Union of India and the  State  of     Madhya Bharat: P.A. Mehta. 241

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