5

ELECTION LAWS

K.C. Sunny

In a constitutional democracy elections provide an opportunity to

ascertain the popular will regarding the governance of the
country. In ensuring free and fair elections the role of the legal
system is substantial. In India the provisions for ensuring free and
fair elections are generally incorporated in the Constitution itself.
There also exist other elaborate statutory provisions and rules.
The legal provisions prescribe detailed rules regarding the system
of election, delimitation of constituencies, structure, powers and
functions of the authority charged with the duty to conduct
elections, qualifications and disqualifications of electors and
candidates, manner of preparation of the electoral rolls, procedure
for the conduct of election and declaration of results and the
forum and procedure for remedying election-related grievances.
Several controversial issues and disputes have emerged since
the first general elections. Resolving the disputes so as to reflect
the true spirit of democracy was a challenge before the Supreme
Court. The court has made substantial contribution to the
development of election law by giving dynamic interpretation to
the provisions of law. In addition, it has resisted attempts to
amend election laws that would have involved undermining the
democratic values. Some areas of election laws in which the court
has made creative contributions are mentioned in this essay.
 ELECTION LAWS 211

Indira Nehru Gandhi v Raj Narain

The concern of the Supreme Court in ensuring free and fair
elections is visible in its decision in Indira Nehru Gandhi v Raj
Narain.1 The case came up in the form of an appeal against the
decision of the Allahabad High Court setting aside the election of
then Prime Minister Indira Gandhi from the Rae Bareli
constituency. While the appeal was pending before the Supreme
Court, Parliament passed the Constitution (Thirty-Ninth
Amendment) Act. The new article 329-A, introduced through the
amendment, intended to nullify the effect of the decision of the
Allahabad High Court. The article had six clauses, of which the
first three dealt with the future election to Parliament of persons
holding the office of Prime Minister or Speaker at the time of the
election or who were appointed to these offices after their election
to Parliament. These clauses were aimed at depriving the courts
of jurisdiction to try election petitions in which the election of the
Prime Minister or Speaker of the Lok Sabha was challenged.
Clause 4 of the Amendment Act freed the disputed election of the
Prime Minister and the Speaker to Parliament from the restraints
of all election laws since it declared such election as valid
notwithstanding any judgement. According to clause 5 any appeal
or cross-appeal relating to the election of the Prime Minister to
Parliament pending before the Supreme Court should be disposed
of on the assumption that the judgement under appeal was void,
that the findings contained in the judgement had no existence in
the eye of the law and that election declared void by the
judgement should continue to be valid in all respects. Clause 6
provided that article 329-A should have precedence over the rest
of the Constitution.
The validity of the Amendment Act was examined by the
Supreme Court, along with the election appeal. The appeal
petition was disposed of by the court at a point of time when
internal Emergency was in operation and the government in
power was showing authoritarian tendency. But the Supreme
Court was bold enough to declare the Amendment Act null and
void since it would destroy the basic structure of the
l
l975 Supp SCC 1.
212 FIFTY YEARS OF THE SUPREME COURT

Constitution, Out of the five judges on the bench, H.R. Khanna,

K.K. Mathew and Y.B. Chandrachud, JJ, categorically stated that
democracy is the basic feature of the Constitution. Khanna and
Mathew, JJ, pointed out that free and fair elections and an
effective machinery for adjudication of election dispute is an
essential component of democracy. According to the view taken
by Khanna, J:
Democracy can indeed function only upon faith that elections are free
and fair and not rigged and manipulated, that they are effective
instruments of ascertaining popular will both in reality and form and
are not mere rituals calculated to generate illusion of defence to mass
opinion.2
Mathew, J, observed:
It is very difficult to understand, when the amending body expressly
excluded the operation of all laws relating to election petition and
matters connected therewith by the first part of clause (4), what ideal
of free and fair election it had in view in adjudging the validity of the
election of the appellant. I cannot conceive of any pre-existing ideal
norms of election apart from the law enacted by appropriate
Legislatures. If the amending body evolved new norms for
adjudicating the validity of the particular election, it was the exercise
of a despotic power and that would damage the democratic structure
of the Constitution.3
The decision of the court established two facts. First, the court
is not in favour of making any change in the constitutional
scheme for election and adjudication of election disputes in ways
that hamper the concept of free and fair election. Secondly the
court is keen on resisting any attempt to destroy the democratic
system and the court is not bothered about the political
consequences while guarding this basic value of the Constitution.

Money Power in Elections

Money power is a crucial factor in elections since modern devices
of election propaganda arc expensive. The availability of large
funds ordinarily tends to increase the number of votes a candidate

2
Ibid. at 87.
s
Ibid. at 128.
 ELECTION LAWS 213

will receive. The history of election law has witnessed activism

shown by the judiciary in interpreting the provisions of law
relating to election expenses and attempt by the political
leadership to nullify the effect of such activistic approach of the
Supreme Court, by way of amending the provisions of law.
According to section 77(1) of the Representation of the People
Act, 1951 'every candidate at an election shall, either by himself
or his election agent, keep a separate and correct account of all
expenditure in connection with the election incurred or
authorized by him or by his election agent, between the date on
which he has been nominated and the date of declaration of result
thereof, both dates inclusive'. Section 77(3) prescribes that the
total of the amount mentioned in clause (1) shall not exceed such
amount as may be prescribed.
Whether expenditure by a candidate's political party, friends,
and relatives, etc. could be treated as the expenses incurred or
authorized by the candidate was the issue in many election
petitions. The court's earlier view was that expenses incurred by
the political party, friends, etc. to advance the election prospects
of a candidate did not fall within section 77'.* However in Kanwer
Lai v Amarnath5 the court examined the various aspects of the
problem and concluded that 'the availability of disproportionately
larger resources is also likely to lend itself to misuse or abuse to
the political party or individual possessed of such resources,
undue advantage over other political parties or individuals'.
According to the court 'it produces anti-democratic effects in that
a political party or individual backed by affluent or wealthy would
be able to secure a greater representation than a political party or
individual who is without any links with affluence or wealth'. 6
About the evil consequence of the mobilization of money by
political parties through donations the court observed:
It is obvious that pre-election donations would be likely to operate as
post-election promises resulting ultimately in the casualty of the
interest of the common man, not so much ostensibly in the legislative
4
See Rananjaya Singh v Baijinath Singh AIR 1954 SC 749; Karmiji
Rehamanji v A.T. Kundiwala 1964 UJ (SC) 59: Ram Dayal v Brijraj
Singh AIR 1970 SC 110; Maraj Patodia v R.K. Birla AIR 1971 SC
1295; and B.R. Rao v ^¡.G. Ranja AIR 1971 SC 267.
5
AIR 1975 SC 308.
6
Ibid. at 314 (Bhagwati, J, for himself and R.S. Sarkaria, J).
214 FIFTY YEARS OF THE SUPREME COURT

process as in the implementation of laws and administrative or policy

decisions. The small man's chance is the essence of Indian democracy
and that would be stultified if large contributions from rich and
affluent individuals or groups are not divorced from the electoral
process.7
It was rightly held by the court:
... when a political party sponsoring a candidate incurs expenditure in
connection with his election as distinguished from expenditure on general
party propaganda and the candidate knowingly takes advantage of it or
participates in the programme or activity or fails to disavow the
expenditure or consents to it or acquiesces in it, it would be
reasonable to infer save in special circumstances, that he implicitly
authorised the political party to incur such expenditure and he cannot
escape the rigour of the ceiling by saying that he has not incurred the
expenditure but his political party has done so.8
A dynamic interpretation has thus been given to the provision,
mindful of the social and political consequences of the earlier
literal interpretation. The decision reflects the social commitment
of the judiciary and its role of protector of the noble values of
democracy.
However, the amendment introduced in 1974 added an
explanation to section 77 exempting the expenditure incurred or
authorized by a political party or any other association or body
of persons or any individual (other than the candidate or his
election agent) from the purview of the expenditure incurred or
authorized under the section. In effect the amendment legalized
the evil practice of spending enormous amounts in election by
candidates under the pretext that the expenditure had been
incurred by the political party sponsoring them. The creative
contribution of the Supreme Court to purify the election process
had been nullified by the political leadership. However the court
stood its ground. In Gadakh Ύ.Κ. v Balaseh Vikhe Patil,9 the court
emphasized the need to amend the Representation of the People
Act, 1951, so as to repeal the explanation to section 77, pointing
out that the spirit of the provision suffered violation through the

7
Ibid. at 315.
8
Ibid. (emphasis orginal).
9
AIR 1994 SC 678, 691 (J.S. V erma, J, for himself and N.P. Singh and
N. Venkatachaliah, JJ.
 ELECTION LAWS 215

escape route provided by the explanation. In Gajanan Krishnaji

Bapat v Dattaji Rqghobaji Mejjhe,10 A.S. Anand, J, emphasized the
need to prescribe by 'Rules the requirements of maintaining true
and correct accounts of the receipts and expenditure by political
parties by disclosing the sources of receipt as well'. However no
step was taken by the political leadership of the country in this
regard. In Common Cause v Union of India11 the Supreme Court
had shown an activism in preventing the vice of money power in
election by way of interpreting section 77 of die Representation
of the People Act in the background of legal provision relating to
the receipt of donations by political parties. Though section 293-
A of the Companies Act, 1956 legalizes the donation to political
parties by companies and section 13-A of the Income-tax Act,
1961 provides tax exemption to donations received by political
parties, no legal provision exists making it mandatory for political
parties to maintain proper accounts. The court took the view that
the cumulative effect of the above mentioned statutory provisions
is to bring transparency in election funding. Since most political
parties had not been filing returns of income, the court issued
certain directions by way of giving a dynamic interpretation to the
provisions of law relating to fund collection and expenditure of
political parties. It was declared that political parties which had
not been filing returns of income for several years had prima facie
violated the statutory provisions of the Income Tax Act. Since the
income-tax authorities were not performing their statutory duties
the court directed the Secretary, Ministry of Finance, Government
of India to conduct an investigation against each defaulter
political party and to initiate necessary action in accordance with
law. The court declared:

1. That the political parties were under a statutory obligation to

file return of income in respect of each assessment year in
accordance with the provisions of the Income Tax Act.
2. That the income-tax authorities have been wholly remiss in
the performance of their statutory duties under law. The said
authorities have for a long period failed to take appropriate
action against the defaulter political parties.

10
AIR 1995 SC 2284 at 2300.
U
AIR 1996 SC 3081.
216 FIFTY YEARS OF THE SUPREME COURT

3. The Secretary, Ministry of Finance, Department of Revenue,

the Government of India shall have an investigation/inquiry
conducted against each of the defaulter political parties and
initiate necessary action in accordance with law including
action under section 276-CC of the Income Tax Act.
4. The Secretary, Ministry of Finance, Department of Revenue,
Government of India shall appoint an inquiry body to
find out why and in which circumstances the mandatory
provisions of the Income Tax Act regarding filing of return of
income by the political parties were not enforced. Any office/
officers found responsible and remiss in the inquiry be
suitably dealt with in accordance with the rules.
5. A political party which is not maintaining audited and
authenticated, accounts and has not filed the return of income
for the relevant period, cannot ordinarily, be permitted to say
that it has incurred or authorised expenditure in connection
with the election of its candidates in terms of Explanation 1
to section 77 of the Representation of the People Act.
6. The expenditure (including that for which the candidate is
seeking protection under explanation 1 to section 77 of the
Representation of the People Act), in connection with the
election of a candidate—to the knowledge of the candidate or
his election agent—shall be presumed to have been authorised
by the candidate or his election agent. It shall, however be
open to the candidate to rebut the presumption in accordance
with law and to show that part of the expenditure or whole of
it was in fact incurred by the political party to which he
belongs or by any other association or body of persons or by
an individual (other than the candidate or his election agent).
Only when the candidate discharges the burden and rebuts the
pre-sumption would he be entitled to the benefit of Explanation
1 to section 77 of the Representation of the People Act.
7. The expression 'conduct of election' in article 324 of the
Constitution of India is wide enough to include in its sweep,
the power of the Election Commission to issue—in the
process of the conduct of election—directions to the effect
that the political parties shall submit to the Commission for
its scrutiny, the details of the expenditure incurred or
authorised by the political parties in connection with the
election of their respective candidates.12
u
Ibid. at 3090.
 ELECTION LAWS 217

It would appear that the evil consequences of the explanation

to section 17 have been reduced by the decision of the court. The
judicial approach towards the law relating to election expenses
clearly establishes the commitment of the judiciary in maintaining
the purity and sanctity of elections.

Corrupt Practices
While interpreting the provisions of law relating to corrupt
practices in election, the Supreme Court showed its commitment
to ensuring free and fair elections. It had no hesitation in giving
a purposeful interpretation to the words used in the provisions of
election law, rejecting the arguments based on the meaning of the
words given in other branches of law. In Rajendra Prasad v Sheel
Bhadra13 while examining the meaning of the term 'offer' the
court rejected the appellant's argument based on the well-accepted
meaning of the term in the context of law of contract. It was held
that an offer of money without specifying the amount is sufficient
to constitute corrupt practice of bribery. In Om Prabha v Abnash
Chand14 the court set aside the election of a returned candidate
who was a minister on the ground that he had used certain
discretionary grants for soliciting the votes of a section of
electors. In Bhanu Kumar v M. Sukhadia15 the court formulated
certain guiding principles to determine this type of corrupt
practice in the following words:
Ordinarily amelioration of grievances of the public appears to be
innocuous. If, however, there is evidence to indicate that any
candidate at an election abuses his power and position as a Minister
in the Government by utilising public revenues for conferring
advantage or benefit on a particular group of people for the purpose
of obtaining their votes, different considerations will arise. The Oourt
is always vigilant to watch not only the conduct of the candidates and
to protect their character from being defamed but also to see that the
character and conduct of the public is not corroded by corrupt motive
or evil purposes of candidates. The genuine and bona fide aims and
aspirations of candidates have to be protected on the one hand and

13
AIR 1967 SC 1445.
14
AIR 1968 SC 1083.
15
AIR 1971 SC 2025.
218 FIFTY YEARS O F T H E SUPREME C O U R T

mala fide abuse and arrogance of power will have to be censured on

the other. 16
T h e provisions of law relating to the exercise of u n d u e
influence in election were interpreted by the Supreme C o u r t by
way of highlighting the difference between u n d u e influence
exercised by a leader of a religion and a leader of a political party.
An attempt by a religious leader to exercise undue influence over
followers of the religion had always been treated as c o r r u p t
practice. As observed by the court in Ram Dial:
The religious leader has a right to exercise his influence in favour of
any particular candidate by voting for him and by canvassing votes of
others for him. He has a right to express his opinion on the individual
merits of the candidates. Such a course of conduct on his part, will
only be a use of his great influence amongst a particular section of the
voters in the constituency; but it will amount to an abuse of his great
influence if the words he uses in a document, or utters in his speeches,
leave no choice to the persons addressed by him, in the exercise of
their electoral rights. 17

However, in Baburao v Or Zakir Hitssain18 while upholding the

Prime Minister's right to canvass votes in the presidential election
it was held that such canvassing did not a m o u n t t o u n d u e
influence but was proper use of minister's right t o ask the public
to support the candidates belonging to the minister's party. It was
observed:
[S]o long as the Minister only asks the electors to vote for a particular
candidate belonging to his party and puts forward before the public
the merits of his candidate it cannot be said that by merely making
such request to the electorate the Minister exercises undue influence.
The fact that the Minister's request was addressed in the form of what
is called a whip is also immaterial so long as it is clear that there is no
compulsion on the electorate to vote in the manner indicated. 19
T h e court thus clarified the distinction between the role of leaders
of religion and that of political leaders, in the matter of
influencing the free choice of electors.

16
Ibid. at 2039.
17
Ram Dial v Sant Lai AIR 1959 SC 855, 860. See also Kanti Prasad
v Purushottamdas AIR 1969 SC851.
18
AIR 1968 SC 904. See also Bacchan Singh v Prithvi Singh AIR 1975
SC 926.
19
Ibid. at 912-13.
 ELECTION LAWS 219

Provision of law relating to the corrupt practice of appeal on

the ground of religion, caste, etc. is a peculiar feature of Indian
election law. Since the provision was drafted in general terms it
became the duty of the court to determine the crucial question
what sort of appeals should be treated as a religious appeal or
communal appeal. In S.R. Bommai v Union of India,20 the court
pointed out that section 123(3) of the Representation of the
People Act dealing with the corrupt practice of appeal on the
ground of religion is not confined to appeal to the candidate's
religion. In R.T Prabhoo v EK. Kunte2} it was clarified by the
court that for soliciting votes for a candidate, the appeal
prohibited that which is made on the ground of religion of the
candidate for whom votes are sought, and when appeal is to
refrain from voting for any candidate, the prohibition is against
an appeal on ground of religion of that other candidate.22 It was
held that the provision is not violative of either article 25 or
article 19(l)(a) of the Constitution. 23
In Z.B. Bukhari v B.R. Mehra the court examined the role of
religion in the modern world and observed:
Primitive man does practically nothing without making it wear a
religious garb because his understanding of physical world, of human
nature, and of social needs and realities is limited. He surrounds
customary modes of action with an aura of superstitious reverence.
He is fearful of departures from these lest he is visited by Divine
wrath. Modern man, with his greater range of scientific knowledge
and better understanding of his own needs as well as of the nature of
the Universe, attempts to confine religion to its proper sphere—that
where he reaches a satisfying relationship between himself and the
Divinity he believes in so as to get an inner strength and a solace
which enable him to overcome psychological crises or fears when
confronted with disturbing or disrupting events, such as a Death, or
their prospects. He does permit his religion which should be
essentially his individual affair to invade what are properly the spheres
of law, politics, ethics, aesthetics, economics and technology.24

20
AIR 1994 SC 1918.
21
AIR 1996 SC 1113.
22
Ibid. at 1125.
"Ibid, at 1126. See also Subhas Desai v Sharad J. Rao AIR 1994 SC
2277.
24
AIR 1975 SC 1788 at 1800.
220 FIFTY YEARS OF THE SUPREME COURT

While interpreting section 123(3) of the Representation of the

People Act, the Supreme Court took the view that an appeal to
vote for a candidate owing to the reason that he is a member of
the same caste as that of the electors,25 appeal to vote for getting
more representation to a particular caste or religion in the
legislature,26 canvassing for votes of a particular tribe showing
that a candidate belonging to that tribe is contesting in another
constituency under the label of the organization which fielded the
candidate for whom the votes of the tribes are sought, 27 soliciting
the votes of members of a religion stating that a particular
candidate is the best person to protect the interest of that
religion,28 statement by a Muslim candidate that another candi­
date could not be a true Muslim at all since he represented all that
was against Muslim religion and belief,29 publication of a
statement containing the request to vote against a brahmin
candidate, highlighting the exploitation done by that community
in the past 30 and exploiting the religious sentiments of a tribal
group towards a condidate's election symbol31 would come within
the purview of corrupt practice of appeal on the ground of
religion.
The approach of the Supreme Court to the issue whether the
use of the term 'Hindutva' or 'Hinduism' in an election speech
could be treated as an appeal on the ground of religion had
generated some controversy. Though the decision of the court in
R.Y. Pmbhoo11 created an impression, at least among some
sections of society, that the Supreme Court had taken a lenient
approach towards misusing religion for electoral gains, a critical
analysis of the decision clearly establishes a contrary view. The
commitment of the court to preventing the misuse of religion for
electoral gains is evident from the very fact that the appellant's
election was set aside on the ground of committing the corrupt
practices of appeal on the ground of religion and promoting
25
Bishwanth v Sachidanand AIR 1971 SC 1949.
26
Kfmti Prasad v Purshottamdas AIR 1969 SC 851.
27
Lalroukung v Maokho Lai Thangjom 1969 UJ (SC) 12.
2Z
Kultar Singh v Mukhtiar Singh AIR 1965 SC 141.
29
Z.B. Bukhari v B.B. Mehm AIR 1975 SC 1788.
¡0
Ram Swamp Verma v Onkar Nath (1970) 3 SCC 783.
n
Shubnath v Ram Narain AIR 1960 SC 148.
32
Supra, note 21.
 ELECTION LAWS 221

enmity and hatred between different classes of citizens. However

the court took the view that mere reference to any religion in an
election speech would n o t come within the purview of corrupt
practice. It was observed:
It cannot be doubted that a speech with a secular stance alleging
discrimination against any particular religion and promising removal
of the imbalance cannot be treated as an appeal on the ground of
religion as its thrust is for promoting secularism. Instances given in
the speech of discrimination against any religion causing the
imbalance in the professed goal of secularism, the allegation being
against any individual or any political party cannot be called an appeal
on the ground of religion forbidden by sub-section (3). In other
words, mention of religion as such in an election speech is not
forbidden by sub-section (3) so long as it does not amount to an
appeal to vote for a candidate on the ground of his religion. When it
is said that politics and religion do not mix, it merely means that the
religion of a candidate cannot be used for gaining political mileage by
seeking votes on the ground of the candidate's religion or alienating
the electorate against another candidate on the ground of the other
candidate's religion. It also means that the State has no religion and
the State practices the policy of neutrality in the matter of religion.33
Since the words ' H i n d u i s m ' and 'Hindutva' were repeatedly
used in the disputed election speeches which formed the basis of
the cause of action in the election petition, the court made an
attempt t o find out tfie meaning of the words referring to its
earlier decisions and authoritative writings. It was observed.
That it cannot be doubted, particularly in view of the Constitution
Bench decisions of this Court that the words 'Hinduism' and
'Hindutva' are not necessarily to be understood and construed
narrowly, confined only to the strict Hindu religious practices
unrelated to the culture and ethos of the people of India, depicting
the way of life of the Indian people. Unless the context of a speech
indicates a contrary meaning or use, in the abstract these terms are
indicative more of a way of life of the Indian people and are not
confined merely to describe persons practising the Hindu religion as
faith. 34

It m a y be contended that these observations of the court were

n o t necessary for deciding the case and could have been avoided.

Ibid, at 1123.
■Ibid, at 1131.
222 FIFTY YEARS OF THE SUPREME COURT

However, even the critics taking this stance would appreciate the
strict approach of the court towards the misuse of religion for
electoral gains, evident in the following observation:
Considering the terms 'Hinduism' or 'Hindutva' per se as depicting
hostility, enmity or intolerance towards other religious faiths of
professing communalism, proceeds from an improper appreciation
and perception of the true meaning of these expressions emerging
from the detailed discussion in earlier authorities of this Court. Misuse
of these expressions to promote communalism cannot alter the true
meaning of these terms. The mischief resulting from the misuse of the
terms by anyone in his speech has to be checked and not its
permissible use. It is indeed very unfortunate, if in spite of the liberal
and tolerant features of 'Hinduism' recognised in judicial decisions,
these terms are misused by anyone during the elections to gain any
unfair political advantage. Fundamentalism of any colour or kind
must be curbed with a heavy hand to preserve and promote the
secular creed of the nation. Any misuse of these terms must, therefore,
be dealt with strictly.35

Publication of false statements in relation to a candidate's

personal character and conduct is a corrupt practice under section
123(4) of the Representation of the People Act. In deciding
election petitions containing allegation of this corrupt practice the
relevant point is whether the statement is related to the
candidate's personal character and conduct or his public conduct.
In Inder Lai v Lai Singh36 Gajendragadkar, J; took the view that
the English doctrine of 'attack on the man beneath the politician'
is not sufficient to determine the question whether a particular
statement is related to public conduct or personal character and
conduct. It was observed:
In discussing the distinction between the private character and the
public character, sometimes reference is made to the 'man beneath the
politician' and it is said that if a statement of fact affects the man
beneath the politician it touches private character and if it affects the
politician, it does not touch his private character.... But there may be
cases on the borderline where the false statement may affect both the
politician and the man beneath the politician and it is precisely in
dealing with cases on the borderline that difficulties are experienced in
determining whether the impugned false statement constitutes a
corrupt practice or not. If, for instance, it is said that in his public life,
35
Ibid.
36
AIR 1962 SC 1156.
 ELECTION LAWS 223

the candidate has utilised his position for the selfish purpose of
securing jobs for the relations, it may be argued'that it is criticism
against the candidate in his public character and it may also be
suggested that it nevertheless affects his private character.3

The learned judge took the view that false allegation that a
candidate had offered bribe for electoral gains could be treated as
statement relating to personal character and conduct. However
severe criticism of a person's past performance as a representative
of the people 38 could not be treated as a statement coming under
section 123(4). According to the Supreme Court a statement
containing the demand for accounting of the money collected by
a public man could not be treated as a statement coming under
section 123(4). It was pointed out that 'men in public life
particularly those who collect money for public or charitable
purposes ought not to be sensitive when there is a demand
to account for those amounts'. 39 But false statements alleging
misappropriation of the money could be treated as corrupt
practice under section 123(4).
In Ganpfi Ready v Anjaneya Rsddy40 the Supreme Court took the
view that a false allegation affecting a candidate's moral qualities
would attract section 123(4). False allegations which related to his
sexual life would also come within the ambit of the provision41.
False statements of violence 42 or corruption 43 were treated as
corrupt practice even if the statements did not contain specific
instances of corruption or violence. Well-settled principles of law
have thus been formulated by the court to distinguish public
conduct and personal character and conduct. In the formulation of
these principles, objective standards have been adopted by the
court, taking into consideration the true spirit of democracy.
Regarding the corrupt practice of procuring the assistance of
government servants, S.R. Das, J, highlighted the policy of law
in the following words:
37
Ibid. at 1160.
38
Guruji Shrihari Baliram Jivatode v Vithalmo AIR 1970 SC 1841; Ram
Chard v Ha.rd.yal AIR 1986 SC 717.
39
Hara Singh Chavan Mohanty v Surendra AIR 1974 SC 47.
40
22 ELR 261.
Al
Ashok v Madhavfol AIR 1975 SC 1748.
*2Om Prakash v Lai Chand (1969) 2 SCC 533.
*3Kanhaiyalal v Munnalal AIR 976 SC 1886.
226 FIFTY YEARS OF THE SUPREME COURT

Anti-Defection Law
The commitment of the judiciary to the constitutional value of
democracy is visible in its approach towards anti-defection law.
The Tenth Schedule of the Constitution added by the
Constitution (Amendment) Act, 1985 was a subject of criticism
both on political and legal grounds since its enactment. The
action taken by the presiding officers of legislatures in exercise of
the powers conferred by the schedule have been a fertile area for
litigation. The constitutional validity of the schedule itself was
challenged before various high courts and the Supreme Court. In
Kihota HoUohon v Zachilhu50 the Supreme Court has given its final
verdict on the constitutional validity of the Tenth Schedule.
The validity was challenged both on substantial and procedural
grounds. On behalf of the petitioner it was contended that the
schedule was destructive of the basic structure of the Constitution
owing to the following reasons:
1. It was violative of the fundamental principles of parliamentary
democracy since the freedom of speech, right to dissent and
freedom of conscience of the elected representatives had been
curtailed by the Schedule; and
2. The schedule does not provide an impartial and independent
machinery for adjudication of electoral disputes since the
adjudicatory authorities provided by the Schedule, viz. the
Speaker of the House of People, Chairman of the Council of
States and Speakers of the State Legislative Assemblies have
political affiliation.
Regarding the procedural infirmity it was contended that though
the amendment sought to make a change in chapter IV of part V
of the Constitution by way of curtailing the jurisdiction of the
Supreme Court under article 136 and that of the high courts under
article 226, the Bill for the amendment of the Constitution in that
regard had not been ratified by the legislatures of not less than one
half of the states as required by the proviso to article 368(2).
Venkatachaliah, J, who delivered the majority judgement/ 1
rejected the contention that the Tenth Schedule negatived the very
50
AIR 1993 SC 412.
51
For himself and for Jayachandra Reddy and S.C. Agarwal, JJ;
J.S. Verma and Lalit Mohan Sharma, JJ, constituted the minority.
 ELECTION LAWS 227

foundational assumptions of parliamentary democracy, viz.

freedom of speech, right to dissent and freedom of conscience.
According to the learned judge, the role of the political parties in
a parliamentary democracy should be taken into consideration
while determining freedom of the elected representatives of the
people. Referring to the authoritative textbooks it was observed:
But a political party functions on the strength of shared beliefs. Its
own political stability and social utility depends on such shared beliefs
and concerted action of its Members in furtherance of those
commonly held principles. Any freedom of its Members to vote as
they please independently of the political party's declared policies will
not only embarrass its public image and popularity but also
undermine public confidence in it which, in the ultimate analysis, is its
source of sustenance nay, indeed, its very survival. Intra-party debates
are of course a different thing. But a public image of disparate stands
by Members of same political party is not looked upon, in political
tradition, as a desirable state of things.52
The learned judge further pointed out the dual capacity of a
legislator, viz. being a representative, and sponsored by both the
voters and political party, and concluded that anti-defection law
could be justified on the score that it was intended to prevent
unprincipled defection, which was a political and social evil. It
was observed:
People, apparently, have grown distrustful of the emotive political
exultations that such floor-crossing belongs to the sacred area of
freedom of conscience, or of the right to dissent or of intellectual
freedom. The anti-defection law seeks to recognise the practical need
to place the proprieties of political and personal conduct—whose
awkward erosion and grotesque manifestations have been the bane of
the times—above certain theoretical assumptions which in reality have
fallen into a morass of personal and political degradation. We should,
we think, defer to this legislative wisdom and perception. The choices
in constitutional adjudications quite clearly indicate the need for such
deference.53
It seems that the view is correct. In a democracy the will of
the people is the basis for forming the government and the
constitutional scheme provides the device for expressing the
popular will. If the existing constitutional scheme is found
52
Supra, note 50 at 432.
53
Ibid. at 435.
228 FIFTY YEARS OF THE SUPREME COURT

inadequate to reflect the popular will, new mechanisms may be

provided through constitutional amendment. In India unprincipled
defections had made the principle of representation of the people
a mockery. Lack of a mature political culture may be a reason for
this pathetic situation. In such a context constitutional measures
may be adopted to eradicate a political evil.
Regarding the distinction between 'split' and 'defection' provided
by the Tenth Schedule, the court rejected the contention that the
differences on which the distinction rested were indeed outrageous
defiance of logic. It was observed:
The underlying premise in declaring an individual act of defection
as forbidden is that lure of office or money could be presumed
to have prevailed. Legislature has made this presumption on its
own preception and assessment of the extant standards of political
proprieties and morality. At the same time legislature envisaged the
need to provide for such 'floor-crossing' on the basis of honest dissent.
That a particular course of conduct commended itself to a number of
elected representatives might, in itself, lend credence and reassurance
to a presumption of bona fides. The presumptive impropriety of
motives progressively weakens according as the numbers sharing the
action and there is nothing capricious and arbitrary in this legislative
perception of the distinction between 'defection' and 'split'.5
The court was divided on the point whether the Tenth
Schedule was violative of the basic structure of the Constitution
on the ground that it did not provide an independent adjudicatory
machinery for resolution of election disputes. The majority
examined the constitutional position of the Speaker and concluded
that 'it is inappropriate to express distrust in the high office of the
Speaker, to have discharged their functions not in keeping with
the great traditions of that high office'. It was observed:
[Tjhe vesting of adjudicatory functions in the Speakers/Chairmen
would not by itself vitiate the provision on the ground of likelihood
of political bias, is unsound and is rejected. The Speakers/Chairmen
hold a pivotal position in the scheme of Parliamentary democracy and
are guardians of the rights and privileges of the House. They are
expected to and do take far-reaching decisions in the functioning of
Parliamentary democracy. Vestiture of power of (to) adjudicate
questions under Tenth Schedule in such constitutional functionaries
should not be considered exceptionable.55

Ibid.
Ibic. at 453.
 ELECTION LAWS 229

The contention related to procedural infirmity was centred

around paragraphs 6 and 7 of the schedule, which read:
6. Decision on questions as to disqualification on ground of
defection.
1. If any question arises as to whether a member of a House has
become subject to disqualification under this Schedule, the
question shall be referred for the decision of the Chairman or, as
the case may be the Speaker of such House and his decision shall
be final.
2. All proceedings under sub-paragraph (1) of this paragraph in
relation to any question as to disqualification of a member of a
House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of Article 122 or, as the case may
be, proceedings in the legislature of a State within the meaning
of Article 212.
7. Bar of jurisdiction of courts.
Notwithstanding anything in this Constitution, no court shall have
any jurisdiction in respect of any matter connected with the
disqualification of a member of a House under this schedule.
There was unanimity on the bench that para 7 of the schedule
brought about an amendment in provisions of chapter IV of para
V and chapter V of part VI of the Constitution since it ousted the
jurisdiction of courts under articles 136, 226 and 227 of the
Constitution. Hence it was held that the amendment bill should
have been ratified by the majority of state legislatures as provided
in article 368.
The overall effect of the decision appears to be that it provides
ample scope for judicial intervention in decisions taken by
presiding officers of legislatures in this regard. So even if speakers
of the legislative bodies abuse this power there is ample scope for
correcting the mistake by way of judicial review.

Conclusion
The success of democracy depends on the due conduct of
elections so as to ensure the reflection of the true popular will.
Keeping this in view, while interpreting the provisions of law
defining the corrupt practices of bribery, undue influence, appeal
on the ground of religion, publication of false statements and
230 FIFTY YEARS OF THE SUPREME COURT

procuring the assistance of government servants, the Supreme

Court has formulated well-defined guiding principles to determine
whether a particular action could be treated as corrupt practice or
not. While formulating these principles the court has examined
the rationale of treating a particular action as corrupt practice in
election, highlighting the theoretical foundation of various
concepts in election law. In addition to alleviating the evil
consequences of the lethargy of the political leadership, its suspect
actions in introducing law reforms in certain areas like election
expenses have been diluted by the Supreme Court, by way of
judicial activism. The decision of the court in Indira Nehru
Gandhi v Raj Narain56 clelarly establishes that in India the
guardian of democracy is not the legislative wisdom but the
wisdom of the highest court of the land. One may expect that the
Supreme Court will continue to guard our democracy in the
coming century also.

'Supra, note 1.