N.P. Ponnuswami vs Returning Officer, Namakkal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 21 January 1952

Coram: Mehr Chand Mahajan, Chandrasekhara Aiyar, Fazl Ali

In the matter of N.P. Ponnuswami versus the Returning Officer, Namakkal, the Supreme Court of India recorded the judgment on 21 January 1952. The bench for this decision was headed by Chief Justice Mehr Chand Mahajan, with Justice Chandrasekhara Aiyar and Justice Fazl Ali, J., delivering the judgment. The case arose as an appeal against an order of the Madras High Court that had dismissed the appellant’s petition for a writ of certiorari. The appellant, N.P. Ponnuswami, had been one of the candidates who filed nomination papers to contest the election to the Madras Legislative Assembly from the Namakkal constituency in Salem district. On 28 November 1951, the Returning Officer of that constituency examined the nomination papers submitted by all aspirants and, on the same day, rejected the appellant’s nomination on certain grounds. The specific reasons for rejection were not set out in the judgment because they were deemed irrelevant to the issue before the Supreme Court. Following the rejection, the appellant approached the Madras High Court under article 226 of the Constitution, seeking a writ of certiorari to annul the Returning Officer’s order and to compel the inclusion of his name in the list of valid nominations to be published. The High Court refused the relief, holding that it lacked jurisdiction to interfere with the Returning Officer’s decision due to the provisions of article 329 of the Constitution. The appellant contested this view, arguing that the High Court’s interpretation of article 329(b) was erroneous and that, in the circumstances, a writ of certiorari should have been available.

The appellant’s challenge to the High Court’s decision was based on two principal arguments. The first argument concerned the proper construction of article 329(b) of the Constitution, questioning whether the language of that article, read either in isolation or in conjunction with the other provisions of Part XV, precluded judicial review of the Returning Officer’s order. The second argument asserted that the legal consequences that would follow if the High Court’s construction of article 329(b) were accepted would lead to surprising and severe results, which the courts should avoid by favoring the appellant’s interpretation. While the first argument required careful analysis of the constitutional text, the second could be addressed briefly. The Court noted that what the appellant described as an “anomaly” was more accurately characterized as hardship or prejudice. This view was reinforced by Justice Wallace J. in the earlier case of Sarvothama Rao v. Chairman Municipal Council, Saidapet (1924) I.L.R. 47 Mad. 585 at 600, where he stated that any post-election remedy would be wholly inadequate to provide the relief sought by a petitioner whose nomination had been rejected. Justice Wallace emphasized that a stay of the election, pending the restoration of the rejected nomination, was essential, and that merely allowing the election to proceed and then seeking a fresh election later would not suffice. He warned that courts could not permit the wrong they were asked to prevent to be consummated while the suit was pending. The Court thus recognized that the hardship contemplated by the appellant warranted serious consideration when interpreting the scope of article 329(b).

In the earlier ruling the Court explained that a candidate whose nomination has been improperly rejected cannot be satisfied by the mere possibility of contesting another election, nor by the prospect of waiting until after the contested election to challenge its result. The Court emphasized that telling the aggrieved person that he may stand in a future poll or that the election could later be set aside by a petition does not provide the appropriate remedy, because a fresh election might be conducted under entirely different circumstances and could involve a new set of candidates. Consequently, the only effective relief for the petitioner is to secure an injunction that stays the election until his rejected nomination is restored. The Court observed that, unless the relief sought is denied at the threshold, an injunction is indispensable. While acknowledging that the aggrieved party often faces practical difficulties in obtaining relief before the alleged wrong is consummated, the Court warned that once the suit is timely filed, the judiciary must not allow the very wrong it is tasked to prevent to occur while the case is being heard.

In a later decision the Court presented the opposite viewpoint. It noted that the petitioner does possess a remedy in the form of an election petition, which the petitioner had already filed. The Court observed that the remedy of setting aside an election after it has taken place is arguably less effective than stopping the election beforehand, but it questioned whether the mere fact that the petitioner cannot obtain an immediate injunction automatically confers a right to such a writ. The Court further clarified that the earlier observations on injunctions were made in the context of civil suits, not election disputes, and that they reflected a time when individuals rarely sought to halt elections for personal interests. The Court warned that granting injunctions could unduly disrupt public administration, noting that in the present case the election for the elective seats in the Union had been delayed since 31st May, leaving the electorate without representation and the Board operating, if at all, with only a nominated fraction of its total strength. The Court highlighted the inconvenience to the public that arises when elections are stalled by personal grievances, suggesting that the balance between individual hardship and the public’s right to timely representation must be carefully considered.

The Court observed that the Board was operating with only a small nominated portion of its total members, and the petitioner intended that this situation should persist until his personal grievance was resolved. The Court noted that the earlier remarks concerning elections to Local Boards become even more significant when applied to elections for legislative bodies. It was emphasized that in a democratic country where legislatures have a crucial function, undue delay or obstruction of elections would have serious consequences. For the present discussion, the Court stated two points. First, in England the inconvenience or hardship experienced by an individual candidate has never been considered important enough for Parliament to create a provision for immediate relief; consequently, a candidate who is dissatisfied with the rejection of his nomination must wait until after the election to challenge that decision. Second, the issue of hardship or inconvenience is secondary, because if the High Court’s interpretation of article 329(b) of the Constitution is upheld, any resulting hardship becomes irrelevant.

Article 329, the final provision in Part XV of the Constitution, which is headed “Elections,” reads as follows: “Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, 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 interpreting this article, both parties referred to the other articles within the same part, namely articles 324, 325, 326, 327 and 328. Article 324 establishes the Election Commissioner and assigns him the duty to supervise, direct and control elections to the legislatures. Article 325 prohibits discrimination against voters on the basis of religion, race, caste or sex. Article 326 guarantees adult suffrage. Article 327 authorises Parliament to enact laws concerning all matters relating to elections to the legislatures, subject to the Constitution. Article 328 similarly empowers a State Legislature to legislate on all matters relating to elections to the State Legislature. The Court highlighted a noteworthy difference in the wording of articles 327 and 328 compared with article 329: while the former begin with the words “subject to the provisions of this Constitution,” article 329 begins with “notwithstanding anything in this Constitution.” This distinction was acknowledged as indicating that, unlike the powers conferred by articles 327 and 328, the jurisdiction of the High Court under article 226 is excluded with respect to matters covered by article 329.

The Court observed that a distinction exists in the introductory language of the constitutional provisions under discussion. While articles 327 and 328 commence with the phrase “subject to the provisions of this Constitution,” article 329 starts with the words “not with standing anything in this Constitution.” It was conceded by counsel that this variation in wording produces a legal effect: any law enacted by Parliament pursuant to article 327, or by a State Legislature pursuant to article 328, cannot oust the jurisdiction of the High Court under article 226 of the Constitution; conversely, the jurisdiction conferred by article 226 is excluded with respect to matters covered by article 329. The principal controversy in the present appeal revolves around the interpretation of the expression “no election shall be called in question except by an election petition” found in article 329(b). The issue to be resolved is whether a challenge to the Returning Officer’s decision to reject a nomination paper falls within the scope of the phrase “no election shall be called in question.” The appellant contended that a grievance concerning an act that occurs before a candidate is formally declared elected does not amount to questioning an election. To support this construction, the appellant advanced four points. First, the word “election” in article 329(b) should be understood in its ordinary and etymological sense, that is, the result of polling or the final selection of a candidate. Second, the fact that an election petition may be instituted only after polling has concluded or after a candidate has been declared elected, and that such petitions ordinarily contest the final result, reinforces the view that “election” in article 329(b) cannot be given any meaning other than the result of polling or the final selection of a candidate. Third, the phrasing “arising out of or in connection with” employed in article 324(1) and the expression “with respect to all matters relating to, or in connection with” used in articles 327 and 328 demonstrate that the framers deliberately employed different language to refer respectively to matters occurring before and after the poll result; had they intended to bring the rejection of nomination papers within the prohibition of article 329(b), they would have used comparable terminology in that article. Fourth, the appellant argued that the Returning Officer’s act of rejecting a nomination paper may be challenged before the High Court under article 226 because the scrutiny of nomination papers and the power to reject them are provided for in section 36 of the Representation of the People Act, 1951. Parliament enacted that provision by exercising the powers granted to it by article 327, which is itself “subject to the provisions of the Constitution.” Consequently, the appellant maintained that the Returning Officer’s action is subject to the extraordinary jurisdiction of the High Court under article 226.

The Court observed that, although the arguments presented initially seemed quite persuasive, there existed, in its view, more substantial and fundamentally important reasons supporting the position adopted by the High Court. The central issue that required resolution was the definition to be given to the term “election” as it appears in article 329(b). The Court noted that, through long usage in the context of selecting representatives in a democratic system, the word has acquired both a narrow and a wide meaning. In its narrow sense, “election” refers to the final selection of a candidate, an understanding that may include the result of a poll where voting takes place, or the return of a candidate who is elected unopposed where no poll is conducted. In its broader sense, however, the term is employed to denote the entire process that culminates in a candidate being declared elected. The Court referred to the decision in Srinivasalu v. Kuppuswami ((1928) A.I.R. Mad. 253 at 255), in which the learned judges of the Madras High Court, after examining the question, expressed the opinion that the term “election” may be understood to embrace the whole procedure whereby an “elected member” is returned, whether or not a poll is deemed necessary. The Court further observed that Mahajan J, in Sat Narain v. Hanuman Prasad ((1945) A.I.R. Lah. 85), concurred with that view, and the Court itself found agreement with this interpretation. Consequently, the Court concluded that the Constitution’s Part XV employs the word “election” in its expansive sense, meaning the complete series of steps required to return a candidate to the legislature. The expression “conduct of elections” in article 324, the Court explained, expressly points to this wide meaning, and that interpretation can consistently be read into the other provisions of Part XV, including article 329(b).

The Court then turned to the broader doctrinal literature to support the proposition that “election” is commonly understood in a democratic country as covering the entire process consisting of multiple stages and numerous steps, some of which can significantly affect the outcome. It cited the observation that most textbooks on electoral law and several judicial decisions raise the question of when an election actually begins. To illustrate this point, the Court quoted a passage from Halsbury’s Laws of England under the heading “Commencement of the Election,” which explained that although the issuance of the writ is the first formal step in any election, the election may be considered, for certain purposes, to start at an earlier date. The passage emphasized that determining the precise moment when an election begins is a factual question in each case, and that the test for responsibility under election law is whether the contest is “reasonably imminent.” Accordingly, neither the issuance of the writ nor the publication of the notice of election can be regarded as fixing the commencement date, and the nomination day likewise does not provide a definitive criterion. The passage further observed that, in practice, the election will usually be deemed to have begun at a point at least earlier than the issuance of the writ. By referencing this authority, the Court highlighted that the notion of a wide-ranging definition of “election” is well-established and that the start of the electoral process may precede formal procedural milestones, thereby supporting the view that the term in article 329(b) should be read in its expansive sense.

The Court emphasized that determining the moment when an election begins must be clearly separated from determining the moment when “the conduct and management of” an election may be said to commence, and it also noted that the point at which an individual becomes a candidate must be decided on a case-by-case basis. In the discussion referenced as paragraph twelve, the Court explained that the term “election” is properly understood to refer to the whole process, which is composed of several distinct stages and includes many steps, some of which can have a material impact on the ultimate result of the election. The Court then turned to the next significant issue, identified in paragraph thirteen, namely the meaning of the expression “no election shall be called in question”. It observed that a review of any English treatise on elections would reveal that an election in England may be challenged only on a very limited set of grounds, one such ground being the improper rejection of a nomination paper. The Court found that the law applicable in the present case is not substantially different, because section 100 of the Representation of the People Act, 1951 likewise lists the improper rejection of a nomination paper as one of the grounds on which an election may be declared void. In paragraph fourteen the Court considered whether the electoral law of this country envisions two separate avenues of attack on matters relating to election proceedings: one while the election is still in progress, 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 the election has concluded, through an election petition. The Court expressed the view that accepting such a dual-track approach would be inconsistent with the design of Part XV of the Constitution and the Representation of the People Act, which, as the Court indicated it would explain later, appears to require that any issue capable of invalidating an election be raised only at the appropriate stage, in the appropriate manner, before a special tribunal, and not at an intermediate stage before any other court. According to the Court’s reasoning, the only significance attached to the rejection of a nomination paper under election law is that it furnishes a ground upon which the election may be called into question. The Court observed that article 329(b) was enacted specifically to prescribe the manner and the stage at which this ground, together with any other grounds provided by law for challenging an election, may be raised. By necessary implication, the Court held that those grounds cannot be raised in any other form, at any other time, and before any other court. The Court warned that if the grounds for questioning an election were permitted to be raised at an earlier stage and any errors corrected thereafter, the purpose of enacting article 329(b) and establishing a special tribunal would be rendered meaningless.

It was observed that the Constitution required the establishment of a special election tribunal, and that any other interpretation of the wording of article 329(b) would create inconsistencies that the Constitution could not have intended. One such inconsistency would be the possibility of the High Court expressing a view on an election dispute at the pre-polling stage, while an independent election tribunal could express a conflicting view when the same matter was later presented before it. The Court considered that a concise review of the structure of Part XV of the Constitution together with the Representation of the People Act, 1951, demonstrated that the interpretation it advanced was the appropriate one. In general terms, before the electoral machinery could be set in motion, three conditions had to be satisfied: first, a body of laws and rules had to exist that covered every aspect of elections and there had to be a method for formulating those laws and rules; second, an executive authority had to be entrusted with ensuring that elections were conducted properly; and third, a judicial tribunal had to be available to resolve any disputes arising out of or connected with elections. Article 327 and Article 328 dealt with the first condition, Article 324 dealt with the second, and Article 329 dealt with the third. The remaining two articles in Part XV, namely Article 325 and Article 326, addressed two fundamental principles that the framers of the Constitution regarded as essential: the prohibition of discrimination in preparing or qualifying electors for inclusion in electoral rolls on the basis of religion, race, caste, sex or any combination thereof, and the principle of adult suffrage. Consequently, Part XV functioned as a comprehensive code that laid down the foundation for enacting suitable legislation and establishing the necessary machinery for conducting elections.

The Court then examined the Representation of the People Act, 1951, which Parliament enacted under the authority of Article 327 of the Constitution. The Act provided detailed rules covering every matter and every stage associated with elections to the various legislatures of the country. It was organized into eleven parts, each addressing a distinct area of electoral law. Part II dealt with qualifications and disqualifications for membership; Part III concerned the notification of general elections; Part IV established the administrative machinery required for conducting elections; and Part V set out the substantive conduct of elections, including the presentation of nomination papers, the criteria for a valid nomination, the scrutiny of nominations, and the procedures for polling and counting votes. Part VI was dedicated to the resolution of electoral disputes, specifying the manner in which election petitions could be presented, the composition of election tribunals, and the procedure for trying such petitions. Part VII outlined the various corrupt and illegal practices that could affect elections and defined electoral offences. The Court noted that, taken together, the Act constituted a self-contained legislative framework for all electoral matters, meaning that any question concerning the conduct of an election required reference solely to the provisions of the Act and the rules made thereunder.

The Court observed that the Representation of the People Act, 1951, is the sole source of law for determining any question that arises in connection with elections, and that the Act and the rules made thereunder must be consulted for the true position on such matters. It pointed out that the provisions of the Act which are material to the present case are sections 80, 100, 105 and 170, together with the provisions of Chapter II of Part IV that prescribe the form of election petitions, their contents and the reliefs that may be sought therein. Section 80, drafted in language almost identical to article 329(b) of the Constitution, provides that “no election shall be called in question except by an election petition presented in accordance with the provisions of this part.” Section 100, as previously examined, enumerates the grounds on which an election may be called in question, one of those grounds being the improper rejection of a nomination paper. Section 105 declares 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 election.” The Court noted that these provisions constitute the principal statutory framework for judicially dealing with election matters and emphasized that nowhere in the Act is there any provision allowing a question about an election to be raised at an intermediate stage before the final election result.

The Court then turned to the well-recognised principle that when a statute creates a right or liability and also provides a special remedy for enforcing it, the remedy prescribed by the statute must be the one pursued. It quoted with great clarity the passage of Willes J. in Wolverhampton New Water Works Co. v. Hawkesford (6 C.B. (N.S.) 336, 356), which explained three classes of cases. The first class involves a liability that existed at common law and is affirmed by a statute that offers a special form of remedy; unless the statute expressly excludes the common-law remedy, the party may choose either. The second class covers statutes that merely give a right to sue without specifying a remedy, where the party proceeds at common law. The third class, however, concerns a liability that does not exist at common law but is created by a statute that simultaneously provides a special and particular remedy for its enforcement. In that third class, the Court stated, “the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.” The Court emphasized that the form of remedy set out by the statute must be adopted and adhered to.

The Court explained that once a statute prescribes a particular form of remedy, that form must be followed without deviation. The principle articulated in that passage received approval from the House of Lords in Neville v. London Express News Paper Limited (1919) A.C. 368, and it was subsequently reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordons Grant & Co. (1935) A.C. 532 as well as in Secretary of State v. Mask & Co. (1940) 44 C.W.N. 709. Moreover, the same rule has been held to apply equally to the enforcement of rights, for example in Hurdutrai v. Official Assignee of Calcutta (1948) 52 C.W.N. 343, 349. Applying this established doctrine, the Court inferred from the language of the Representation of the People Act that the statute creates only a single avenue of relief. That sole avenue is the filing of an election petition after the conclusion of the election, and the Act contains no provision for any intermediate remedy before the election is finished.

The Court then addressed the contention that, because the Representation of the People Act is enacted subject to the Constitution, it cannot preclude the High Court from exercising its jurisdiction under article 226 of the Constitution to issue a writ. The Court rejected that contention, stating that a proper reading of the Act together with article 329(b) defeats the argument. The language of article 329(b) is virtually identical to the language of section 80 of the Act, the only difference being that article 329(b) is prefixed by the words “notwithstanding anything in this Constitution.” The Court observed that those prefatory words are clearly intended to bar the High Court from entertaining any matter that arises while an election is in progress. It further noted that section 107(1) of the Representation of People Act, 1949 (12 & 13 Geo. 6, c. 68) in England is framed in almost the same terms as article 329(b). That section provides: “No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return … presented in accordance with this Part of this Act.” The Court pointed out that similar wording has appeared in earlier statutes and that English courts have never allowed the improper rejection of a nomination paper to be challenged by a writ of certiorari or mandamus. Instead, such disputes have always been raised before the appropriate tribunal through an election petition after the election has ended. Although there is no direct English decision expressly stating that the statutory language excludes the High Court’s jurisdiction to issue prerogative writs at an intermediate stage of the election, the Court concluded that the complete absence of any such authority indicates that the provisions are understood to preclude such jurisdiction.

The Court observed that rule 13 of the rules attached to the Ballot Act of 1872, and a comparable provision in the Parliamentary Elections Rules of 1949, both provided that a Returning Officer’s decision to reject an objection to a nomination paper was final, whereas a decision to allow such an objection could be reversed by a petition challenging the election or the return. The Court noted that these procedural rules did not alter the principal argument under consideration. The Court then stated that it could be legitimately argued that, because expressions similar to those in article 329(b) have consistently been interpreted in England as language intended to exclude the jurisdiction of the courts, including the High Court, the same interpretation must follow from the wording of article 329(b) of the Constitution. The phrase “notwithstanding anything in this Constitution” was held to give that article a sweeping and binding effect comparable to a statute enacted by a sovereign legislature such as the English Parliament. The Court further explained that article 329(b) must be read in harmony with clause (a) of the same article, which bars court jurisdiction over laws made under articles 327 and 328 concerning the delimitation of constituencies and the allocation of seats. It was conceded that article 329(b) removes court jurisdiction over matters arising from the commencement of polling to the final selection. The Court questioned why the legislature would have allowed only nomination-related matters to fall within the High Court’s jurisdiction under article 226, when Part XV of the Constitution operates as a self-contained code that creates rights and provides for their enforcement by a special tribunal, excluding all courts. Consequently, there was no reason to assume that the Constitution intended to carve out a narrow portion of the electoral process for adjudication by the High Courts, thereby disturbing the electoral timetable. The more reasonable interpretation, the Court concluded, was that article 329 encompasses all “electoral matters.”

The Court then summarized its conclusions. First, it emphasized that in democratic societies the legislature’s paramount function includes ensuring that elections are concluded as early as possible in accordance with the prescribed schedule, and that any controversial issues or disputes arising from elections should be deferred until after the election is finished so as not to unduly delay or prolong the electoral process. Second, aligning with this principle, the Court observed that the scheme of election law in this country, as well as in England, mandates that no importance be attached to matters that do not affect the election itself. Accordingly, if any irregularities occur during the conduct of an election but belong to a category that, under the applicable electoral statutes, would not vitiate the election or give the aggrieved party a right to challenge it, such matters should be presented before a special tribunal via an election petition rather than being made the subject of a court dispute while the election is still in progress.

According to the Court, any irregularities that occur while an election is still in progress and that fall within the class of offences which, under the statutes governing elections, would have the effect of nullifying the election and would permit the aggrieved party to question the result, must be presented before a special tribunal through an election petition. Such matters were not to be turned into a dispute before any ordinary court during the course of the election, because the law required that issues capable of vitiating the election be dealt with by the body specially created for election petitions, so that the election process itself would not be unduly delayed or disrupted by litigation in ordinary courts.

To illustrate this principle, the Court referred to the decision of the Privy Council in Theberge v. Laudry, reported in 1876 2 App. Cas. 102. In that case the petitioner had been declared duly elected as a member of the Legislative Assembly of the Province of Quebec. Subsequently, on a petition, the Superior Court, applying the Quebec Controverted Elections Act of 1875, set aside his election and declared him guilty of corrupt practices both personally and through his agents. The petitioner then sought special leave to appeal to Her Majesty in Council, but the Privy Council refused the application. The Council reasoned that a proper construction of the Acts of 1875 and the earlier Act of 1872 indicated that the legislature intended to establish a dedicated tribunal for hearing election petitions, whose decisions were to be final and not subject to appeal by the Crown’s prerogative. In delivering the judgment, Lord Cairns explained that the two Acts created a new and previously unknown jurisdiction in a particular court, transferring from the Legislative Assembly the authority to decide election petitions and to determine the status of those claiming membership of the Assembly. He emphasized that such a jurisdiction was extremely special and that, as a necessary consequence, its decisions ought to become conclusive as quickly as possible so that the composition of the Legislative Assembly could be known definitively and without delay. Following this analysis, the Lord Chancellor added further observations, noting that the subject matter was exceptionally peculiar because it concerned the rights and privileges of electors and of the Legislative Assembly to which they elected members, and that these rights and privileges had historically been zealously protected by the Assembly, independent of the Crown.

The Court observed that in every colony, following the example of the mother country, the Legislative Assembly had always jealously protected and guarded its privileges. The Court noted that these privileges were regarded as rights belonging exclusively to the Legislative Assembly, independent of the Crown to the extent that they properly existed. The Court considered it would be surprising and contrary to the overall scheme of the legislation if, with respect to such rights and privileges, the ultimate determination no longer rested with the Legislative Assembly or with the superior court that the Assembly had established, but instead rested with the Crown in Council, acting on advice from the Crown’s advisers at home, without reference to either the judgment of the Legislative Assembly or that of the substituted court.

The Court then listed the principles that emerged from the decision. First, it held that the right to vote or to stand as a candidate for election is not a civil right but a creature of statute or special law and therefore must be subject to the limitations imposed by that law. Second, the Court stated that, strictly speaking, the exclusive right of the Legislature is to examine and determine all matters relating to the election of its own members; if the Legislature transfers that function to a special tribunal with a new and unfamiliar jurisdiction, that tribunal must exercise its jurisdiction in accordance with the law that created it.

The Court mentioned that the question of the powers of the High Court under articles 226 and 227 of the Constitution, and of this Court under article 136, is a matter that will need to be decided on a proper occasion. The Court then addressed an argument raised on behalf of the appellant that relied on the language of article 71(1) of the Constitution, which provides that 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 decision shall be final.

The Court explained that the argument pointed out a marked contrast between the language of article 71(1) and that of article 329(b). The argument asserted that the difference in phraseology suggested that the two provisions were not intended to have the same meaning and scope regarding the matters to be brought before the tribunals they each address. The argument further contended that if the framers of the Constitution had intended article 329(b) to include all possible disputes connected with elections to the legislature, including disputes over nominations, they would have employed language similar to that found in article 71(1).

In discussing article 71(1) the Court observed that identical language is not required in every constitutional provision, and that alternative expressions could convey the meaning intended for article 329(b) more clearly. The Court noted that once it is accepted that the same idea may be expressed in different words and that uniform phraseology is unnecessary, the earlier argument loses much of its persuasive force. Nevertheless, the Court indicated that there is a satisfactory explanation for the manner in which article 329(b) was drafted.

The Court then referred to the election rules that were made under the Government of India Acts of 1919 and 1935, pointing out that the wording of those rules on the subject was almost identical to the language of article 239(b). The rule that corresponded to the 1919 Act was rule 31 of the electoral rules, which stated: “No election shall be called in question, except by an election petition presented in accordance with the provisions of this Part.” The Court emphasized that this rule appeared in Part VII, whose heading read “The final decision of doubts and disputes as to the validity of an election,” thereby illuminating the function of the election tribunal as contemplated by the rule. The Court further observed that the learned counsel for the appellant had relied on these words to explain the intended meaning of article 329(b).

Continuing its analysis, the Court noted that the same scheme was adopted in the election rules framed under the Government of India Act, 1935, which are contained in “The Government of India (Provincial Elections) (Corrupt Practice and Election Petitions) Order, 1936,” dated 3 July 1936. In that Order, the rule corresponding to rule 31 of the earlier Act read: “No election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the Order.” This rule was situated in Part III of the Order, whose heading was “Decision of doubts and disputes as to validity of an election and disqualifications for corrupt practices.”

The Court observed that the rules referred to were apparently modeled on the corresponding provisions of the British Acts of 1868 and 1872, and that they were intended to cover the same matters as the English provisions had for many years. Considering this historical background, the Court concluded that it should not be difficult to understand why the framers of the Constitution chose to formulate article 329(b) in its present form, employing language that had consistently been used in earlier legislative enactments and that had withstood the test of time.

Finally, the Court turned to the question of why negative language was employed in article 329(b). The Court suggested that there is a reason for the negative phrasing, which it was about to explain.

The Court noted that there was a significant distinction between article 71(1) and article 329(b). Article 71(1) required affirmative wording because it granted a special jurisdiction to the Supreme Court that the Court could not have exercised without that provision. In contrast, article 329(b) was primarily intended to exclude or oust the jurisdiction of all courts in matters relating to elections and to prescribe the sole manner in which an election could be challenged. Consequently, a negative formulation was more suitable, and it was unsurprising that the drafters chose to follow the earlier pattern that also employed negative language.

Before concluding, the Court referred to an argument that had been forcefully presented by counsel for the appellant and reproduced by a High Court judge. The argument stated: “It was next contented that if nomination is part of election, a dispute 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 jurisdiction to decide that matter, and it was further argued that section 36 of Act XLIII of 1951 would be ultra vires inasmuch as it confers on the Returning Officer a jurisdiction which article 329(b) confers on a Tribunal to be appointed in accordance with the article.” The Court considered this argument to display considerable dialectical skill, yet it held that the argument did not affect the result of the appeal and could be answered succinctly.

Under section 36 of the Representation of the People Act, 1951, the Returning Officer was charged with scrutinising nomination papers to verify their compliance with the Act and with deciding any objections to a nomination. The Court emphasized that without proper discharge of this statutory duty, numerous candidates might stand for election without meeting the legal requirements, leading to considerable confusion. In performing this statutory duty, the Returning Officer was not questioning an election; rather, the scrutiny of nomination papers constituted an essential stage of the electoral process, a prerequisite that had to be completed before an election could be finalised. The Court observed that it was a mistake to treat a single procedural step taken in furtherance of an election as equivalent to the election itself.

Finally, the Court clarified that the decision of the appeal did not hinge on the interpretation of the isolated word “election.” Instead, the focus was on the broader expression “no election shall be called in question,” examined in its full context and with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. The Court concluded that the argument presented by the appellant had no bearing on this approach to the question raised in the appeal.

The Court observed that the contention raised by the petitioner did not relate to the constitutional provisions or to the Representation of the People Act, 1951, and therefore had no bearing on the manner in which the question presented to the Court should be approached. In the Court’s view, the method of approach adopted in the appeal was the only correct one for determining the issue. The Court further noted that, apart from the decision of the Madras High Court, seven other State High Courts have held that they lack jurisdiction under article 226 of the Constitution to entertain petitions challenging the improper rejection of nomination papers. The Court considered this position to be legally sound and affirmed that view. Consequently, the Court held that the appeal could not succeed and directed that it be dismissed. In view of the significance and importance of the matters raised in the appeal, the Court decided that no order as to costs should be made. The Chief Justice, Patanjali Sastri, recorded his agreement with the judgment. Justice Mehr Chand Mahajan also expressed his agreement. Justice Mukherjea agreed with the findings. Justice Das recorded his agreement as well. Justice Chandrasekhara Aiyar likewise agreed. Finally, the Court formally dismissed the appeal.