Raj Krushna Bose vs Binod Kanungo And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 239 of 1953

Decision Date: 4 February 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Ghulam Hasan, DAS, SUDHI RANJAN

In the matter of Raj Krushna Bose versus Binod Kanungo and others, the Supreme Court of India delivered its judgment on the fourth day of February, 1954. The reported citation for this decision is 1954 AIR 202 and 1954 SCR 913, while subsequent citations include 1954 SC 587 (12), 1955 SC 425 (12) and 1976 SC 1207 (565). The case was heard by a bench composed of Justices Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, and Ghulam Hasan. The petition was presented by Raj Krushna Bose as the petitioner and Binod Kanungo along with other respondents. The judgment references several constitutional provisions, specifically articles 136 and 226 of the Constitution of India, and multiple sections of the Representation of the People Act, 1951 (Act XLIII of 1951), namely sections 33(2), 99, 105, and 123(8). Central to the dispute was whether the declaration in section 105 that every order of the tribunal under the Act shall be final and conclusive impinged upon the discretionary powers granted to the Supreme Court and High Courts by articles 136 and 226, and what legal effect arose when an elected candidate had been nominated or seconded by a government servant.

The headnote of the judgment sets out three principal observations. First, it holds that the broad discretionary authority conferred on the Supreme Court and the High Courts by articles 136 and 226 of the Constitution cannot be curtailed or narrowed by legislative enactments; consequently, section 105 of the Representation of the People Act, 1951, which declares tribunal orders to be final and conclusive, does not diminish those constitutional powers. Second, relying on section 16 of the Representation of the People Act, 1950, together with sections 33(2) and 123(8) of the 1951 Act, the Court concluded that an election to a State Legislative Assembly is not invalidated merely because the elected member was either nominated or seconded, or both, by a government servant or servants. Third, the Court expressed disapproval of the manner in which the Election Tribunal performed its duty, noting that the Tribunal attempted to shortcut its responsibilities by deciding only two of the twelve issues framed, thereby contravening the requirements of section 99 of the Act.

The judgment proceeds under the heading of a civil appeal, identified as Civil Appeal No. 239 of 1953, filed by special leave against the order and judgment dated the fifth of September, 1953, issued by the Election Tribunal in Cuttack in Election Case No. 5 of 1952. Counsel for the appellant was S. B. Jathar, while counsel for the respondent was S. P. Sinha, assisted by R. Patnaik. Delivered on the fourth day of February, 1954, the judgment was authored by Chief Justice Mahajan and Justices Mukherjea, Das and Ghulam Hasan, with a separate opinion contributed by Justice Vivian Bose. Justice Das framed the central question as whether an election to a State Legislative Assembly becomes invalid when the member’s nomination was either proposed or seconded, or both, by a government servant or servants. The appellant, who had served as a minister in the State of Orissa, was nominated as a candidate for the Orissa Legislative Assembly and subsequently declared elected. The first respondent, a rival candidate, filed an election petition challenging the election on numerous grounds, including the allegation that the appellant’s use of government servants as proposers and seconders constituted a corrupt practice under section 123(8) of the Representation of the People Act, 1951.

In the proceedings before the Election Tribunal, the appellant submitted approximately twenty-four nomination papers for the legislative assembly election. In five of those papers the individual who acted as proposer was a servant of the Government, while in four other papers the individual who acted as seconder was also a Government servant. The first respondent alleged that this pattern represented the initial phase of a scheme intended to secure the assistance of Government officers to further the appellant’s electoral prospects and to “use and utilise” those officers for the purposes of the election. The respondent also raised additional allegations, which the Court noted were not part of the issues to be examined in this judgment. Likewise, the appellant advanced counter-allegations against the first respondent, who had been defeated at the polls; the Court observed that those counter-allegations were outside the scope of the present appeal and therefore would not be addressed. The Election Tribunal framed twelve issues for determination and examined a total of one hundred and one witnesses. However, when delivering its final order, the Tribunal limited its decision to merely two of the framed issues, leaving the remaining ten issues undetermined. Concerning the first of the two decided issues, the Tribunal held that the proposers and seconders who were Government servants, as identified above, constituted a “major corrupt practice” under section 123(8) of the Representation of the People Act, 1951 (No. XLIII of 1951). Accordingly, the Tribunal concluded that the election of the appellant was invalid. The second of the two issues decided by the Tribunal did not relate to the matters raised in this appeal and therefore was not considered further. Dissatisfied with the Tribunal’s decision, the appellant filed a petition before the High Court seeking a writ of certiorari under article 226 of the Constitution. The High Court declined to interfere with the Tribunal’s order. The High Court judges observed that the Tribunal possessed jurisdiction over the matter and that its interpretation of the law was a possible and reasonable construction. Because the High Court is not an appellate forum for the Tribunal, the judges held that it was not required to determine the question on appeal. Subsequently, the appellant obtained special leave to appeal to this Court against the order of the Election Tribunal. The Court noted that the question involved a matter of great public importance affecting Government servants, and therefore it was appropriate to examine the issue under the Court’s special jurisdiction conferred by article 136 of the Constitution. The matters under consideration were limited to the interpretation of section 33(2) and section 123(8) of the Representation of the People Act. Section 33(2) provides that any person whose name is entered in the electoral roll of the constituency and who is not disqualified under section 16 of the Representation of the People Act, 1950 (XLIII of 1950) may act as proposer or seconder of a nomination paper where vacancies exist. Section 123(8) declares that any assistance obtained, procured, or abetted by a candidate, his agent, or any other person acting with the connivance of the candidate or his agent, from a person serving under the Government of India or a State Government—other than the act of casting a vote—shall be deemed a “major corrupt practice.” Such a corrupt practice triggers disqualification from membership under section 140. The Court further observed that section 33(2) is a general provision granting the privilege of proposing or seconding a candidate to every person who is registered in the electoral roll, subject only to the specific disqualifications listed in section 16.

In this case the Court examined whether a person who is a government servant may act as proposer or seconder of a candidate’s nomination under section 33(2) of the Representation of the People Act, 1950, and whether that right is curtailed by section 123(8) of the same Act. Section 16 of the Act disqualifies only three specified categories of persons; it does not list government servants as a disqualified class unless a servant falls within one of those three categories. Consequently, for the purposes of section 33(2) a government servant who is not in any of the excluded categories remains eligible to nominate or second a candidate. The Court then considered whether the prohibition contained in section 123(8) removes that entitlement. The Court held that it does not. The interpretation was approached as a pure matter of construction. When Parliament drafted section 33(2) it deliberately limited the excluded classes to three, intending that all others, including government servants, would be covered by the provision unless Parliament expressly said otherwise. In the absence of a clear contrary provision, or a necessary implication to the contrary, the provision must be read to include persons who are not expressly excluded. Because government servants are not among the three excluded categories, they are not disqualified from proposing or seconding a nomination under section 33(2). The Court next asked whether section 123(8) contains an express or implied limitation that would defeat this right. It noted that where one statutory provision seeks to take away a benefit conferred by another, Parliament normally inserts a “notwithstanding” clause to avoid a direct clash. In the absence of such a clause, the courts strive to harmonise the provisions. Section 123(8) forbids the obtaining, procuring or abetting of any assistance from a government servant “other than the giving of a vote by such person.” Consequently, a candidate may canvass government servants for their votes, and if a servant voluntarily discloses his intended vote, the candidate may lawfully use that information. The law does not require the servant to keep his intention secret, nor does it compel the candidate to disclose it. Any coercive effort to obtain that information would constitute a corrupt practice, but the mere disclosure of a voluntary intention is permissible. Since the statute permits such use of disclosed voting intentions, the Court could not conclude that section 123(8) withdraws the right granted by section 33(2). The Court further observed that the legislative policy is to keep government servants at a distance from partisan politics and to protect them from undue influence, while still preserving their ordinary citizenship rights.

The Court observed that the purpose of the law is to keep government servants aloof from politics and to prevent the machinery of Government from being employed to further a candidate’s return, yet the law does not intend to disenfranchise those servants or to strip them of the rights of ordinary citizens. The Court held that this balance has been struck in the manner explained above. It further stated that while a candidate may lawfully canvass government servants for votes, the candidate may not go beyond that. If the procurement of government servants to propose and second a nomination is part of a scheme to obtain their assistance for the candidate’s prospects in ways other than voting, then section 123(8) of the Act is attracted, because the scheme and its execution must be regarded as a single, connected whole, and the acts of proposing or seconding, though innocent in themselves, cannot be severed from the broader plan.

The Court added that this conclusion on the preliminary issue is also supported by another ground. Clause (8) of section 123 defines a major corrupt practice as the act of a candidate or his agent obtaining, procuring, abetting or attempting to obtain or procure any assistance for the furtherance of the candidate’s election prospects from any person serving under the Government of India or a State, other than the giving of a vote by such person. Consequently, for the provision to be invoked, the assistance must be for the furtherance of the candidate’s election prospects. Section 79(b) defines a “candidate” as a person who has been or claims to have been nominated as a candidate at any election, and such a person is deemed to be a candidate from the time, with an election in prospect, he begins to hold himself out as a prospective candidate. Unless a case falls within the latter portion of that definition, a person becomes a candidate only after he has been duly nominated, and the furtherance of the candidate’s prospects must, therefore, commence only after that stage. The Court noted that although evidence was adduced by both sides, no factual finding had yet been made on whether the case falls within the latter half of the definition. In the absence of such a finding, the Court held that, for the purpose of the preliminary issue, the case must be governed by the first part of the definition, and therefore the acts of proposing and seconding by a government servant cannot be characterized as “assistance for the furtherance of the prospects of the candidate’s election.” In this view, the judgment of the Election Tribunal could not be sustained. Accordingly, the Court set aside the tribunal’s order and remitted the matter to the Election Commission with directions to reconstitute the tribunal, to obtain findings on all the issues raised, and to make a fresh order.

The Court directed the tribunal that tried the case to render findings on every issue that had been raised and to issue a fresh order. The Court’s authority to give such a direction was not contested, although it was submitted that, because the legislature declares the orders of a tribunal under the Act to be conclusive and final under section 105, the Court should not interfere. The Court clarified that the constitutional powers granted by article 136 to the Supreme Court and by article 226 to the High Courts cannot be removed or narrowed by legislative enactment, and therefore the Court’s and the High Courts’ discretion remain unrestricted. The Court expressed disappointment with the manner in which the tribunal abandoned its responsibilities and attempted to take a shortcut, emphasizing that these ad-hoc bodies must fulfil their functions completely because remands to them are not as straightforward as in ordinary courts.

The Court reiterated that the tribunal’s duty under section 99 is to record, whenever a petition alleges a corrupt or illegal practice in an election, a finding on whether such practice has been proved and to describe the nature of that practice. The tribunal must also identify any persons proven guilty of the practice and state the nature of their misconduct. The duty does not cease with a declaration that an election is void, as section 99 further requires the tribunal, when making an order under section 98, to issue an accompanying order addressing the findings. The petition contained numerous allegations of corruption, illegal practices, undue influence and bribery, and the tribunal was required not only to investigate those allegations but also to complete its inquiry by recording definitive findings that either condemn or clear the candidate of the charges. No order regarding costs was made. Justice Bose agreed with the majority on all points except one, expressing doubt about the reasoning based on the definition of “candidate” in the Act and declining to give an opinion on that issue. The case was remanded, and the agents for the appellant and respondent No. 1 were identified as Ratnaparkhi Anant Govind and A. D. Mathur respectively.