Satya Dev Bushahri vs Padam Dev And Others

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

Court: Supreme Court of India

Case Number: Civil Miscellaneous Petition No. 641 of 1954

Decision Date: 18 October 1954

Coram: B.K. Mukherjea, Vivian Bose, T.L. Venkatarama Ayyar

In the matter of Satya Dev Bushahri versus Padam Dev and others, the Supreme Court delivered its judgment on 18 October 1954. The bench consisted of Justice B.K. Mukherjea and Justice Vivian Bose, with Justice Ayyar T. L. Venkatarama also participating. The petition was filed by Satya Dev Bushahri against the respondents Padam Dev and others. The case is reported with the citations 1955 AIR 5, 1955 SCR (1) 561 and appears in the citator records as F 1956 SC 315 (2) and F 1956 SC 335 (1). The statutes relied upon included the Representation of the People Act (XLIII of 1961), sections 7(8) and 9; the General Clauses Act (X of 1897), section 3(8); and the Government of Part C States Act (XLIX of 1951), section 17. The headnote of the judgment states that, modifying the view of law taken in Civil Appeal No. 52 of 1954, section 3(8) of the General Clauses Act, 1897, makes a contract with the Chief Commissioner of a Part C State—here the Himachal Pradesh Chief Commissioner—equivalent to a contract with the Central Government, thereby disqualifying a person from election to the Legislative Assembly of that State under section 17 of Act XLIX of 1951 read with section 7(d) of Act XLIII of 1951.

The present application sought a review of the Court’s earlier judgment in Civil Appeal No. 52 of 1954, which itself was an appeal against an order of the Himachal Pradesh Election Tribunal in Simla that had dismissed a petition challenging the election of the respondent to the Himachal Pradesh Legislative Assembly from the Rohru constituency. The petitioner was represented by counsel appearing with G. C. Mathur, while the respondent’s counsel was assisted by S. K. Kapoor and Naunit Lal. Two principal questions were raised before the Court: first, whether the respondent was disqualified from election under section 17 of Act No. XLIX of 1951, in conjunction with section 7(d) of Act No. XLIII of 1951, because he held interests in contracts for supplying Ayurvedic medicines to the Himachal Pradesh Government; and second, whether the appointment of government servants as polling agents by the respondent violated section 123(8) of Act No. XLIII of 1951. On the first issue, the Court examined the true construction of section 17 and concluded that any disqualification that would apply to election to either House of Parliament under article 102 would, by that provision, also disqualify a person from election to the Legislatures of Part C States. Consequently, a disqualification under section 7(d) of the Representation of the People Act would operate as a disqualification under section 17 of the Government of Part C States Act.

In this matter, the respondent contended that even if section 7(d) of Act No. XLIII of 1951 were read into section 17 of Act No. XLIX of 1951, the provision would not operate as a disqualification because section 17 spoke of disqualification from election to either House of Parliament, and under sections 7 and 9 of Act No. XLIII of 1951 a contract that disqualified a person for election to Parliament had to be with the Central Government, whereas the contracts in question were executed with the Government of Himachal Pradesh. The petitioner responded that article 239 placed the administration of Part C States in the President, acting through the Chief Commissioner or Lieutenant‑Governor, and therefore the contracts entered into with the Chief Commissioner of Himachal Pradesh should be regarded as contracts with the Central Government. The Court rejected this submission, holding that article 239 did not merge the States with the Union Government nor convert State contracts into Central contracts. Counsel for the petitioner then urged the Court to examine the definition of “Central Government” contained in section 3(8)(b)(ii) of the General Clauses Act, which stated that, for any act done after the commencement of the Constitution, “Central Government” meant the President and, in relation to the administration of a Part C State, included the Chief Commissioner, the Lieutenant‑Governor, the Government of a neighboring State or any other authority exercising powers conferred by article 239 or article 243. On the basis of this definition, counsel argued that a contract with the Chief Commissioner of Himachal Pradesh must be treated as a contract with the Central Government, and consequently the respondent should be disqualified under section 17 of Act No. XLIX of 1951 read with section 7(d) of Act No. XLIII of 1951. In contrast, counsel for the respondent relied upon the definition of “State Government” in section 3(60)(b) of the General Clauses Act, which specified that, after the Constitution commenced, the term meant the Governor in a Part A State, the Rajpramukh in a Part B State, and the Central Government in a Part C State. The respondent argued that the Constitution maintained a fundamental distinction between the Union Government and the Governments of the States, and that section 3(8) should therefore be interpreted so as not to erode that distinction. Accordingly, relying on the definition of “State” in section 3(60), the respondent submitted that the Central Government’s role in administering Part C States did not transform contracts with the Chief Commissioner into contracts with the Union Government.

In this case, the Court observed that the Constitution provides that the President administers Part C States under article 239 and that, for that purpose, these States possess the character of State Governments. The Court stated that it could not accept the view that section 3(8) of the General Clauses Act eliminates the status of Part C States as independent units that are separate from the Union Government. Rather, the Court explained that section 3(8) merely acknowledges that Part C States are centrally administered through the President pursuant to article 239, and that the expression “Central Government” must be understood to include the Chief Commissioner who administers a Part C State under the authority conferred by article 239. The Court further clarified that section 3(8) does not alter the distinct identity of Part C States, which continue to have their own legislatures and judiciaries as set out in articles 239 and 240. To illustrate the true scope of the provision, the Court suggested that, if the words “Central Government” in section 9 of Act No XLIII of 1951 were replaced by the words “the Chief Commissioner acting within the scope of the authority given to him under article 239,” the resulting interpretation would be consistent with section 3(8). Under that construction, a contract with the Chief Commissioner would, read with section 3(8) of the General Clauses Act, be treated as a contract with the Central Government.

The Court then examined the consequences of such a contract for electoral disqualification. It held that, because the contract would be deemed a contract with the Central Government, it would trigger disqualification from election to either House of Parliament under sections 7(d) and 9 of Act No XLIII of 1951, and it would also cause disqualification from election to the Legislative Assembly of the State under section 17 of Act No XLIX of 1951. The respondent argued that this result created an anomaly: in Part A and Part B States a contract with the State leads to disqualification only for State Legislature elections, whereas in Part C States the same contract would disqualify a candidate for both the State Legislature and Parliament. The Court acknowledged the existence of this anomaly but noted that the opposite conclusion would also produce an anomaly, namely that a contract with a Part C State Government would not disqualify a candidate for the State Legislature, contrary to the rule in Parts A and B. Concluding that the statute’s plain language must prevail, the Court held that, in view of section 3(8), a contract with the Chief Commissioner in a Part C State is a contract with the Central Government and therefore disqualifies a person from election to the Legislative Assembly under section 17 of Act No XLIX of 1951 read with section 7(8) of Act No XLIII of 1951. However, the Court observed that this conclusion did not benefit the petitioner because the Election Tribunal had already found that no contracts with the Himachal Pradesh Government existed during the relevant period. That finding, the Court said, was not open to challenge on appeal and was sufficient to resolve the objection regarding disqualification under section 17.

The appeal raised two principal objections. First, the respondent was alleged to have been disqualified under section 17. Second, the respondent was said to have appointed certain Government servants to act as polling agents, thereby committing a major corrupt practice under section 123(8) of Act No. XLIII of 1951. In rejecting the second contention, the Court observed that, as an abstract proposition of law, “the mere appointment of a Government servant as a polling agent in itself and without more” does not constitute an infringement of section 123(8). This conclusion was subsequently challenged by the counsel for the respondent, who argued that, considering the nature of the duties of a polling agent as laid down by the Rules and further explained in the Election Manual issued by the Government, a polling agent must be regarded as being interested in the candidate for whom he acts. Consequently, the counsel submitted that the appointment of a Government servant as a polling agent should attract the prohibition of section 123(8). In examining the duties of a polling agent under the Rules and the Election Manual, the Court identified three distinct categories of responsibilities. The first category concerns the period before any votes are recorded. At this stage, the polling agent must verify that the ballot boxes are empty, that the names of the candidates and their symbols are correctly displayed on the boxes, that the slits in the boxes are in an open position, that the knobs of the slits are properly secured, and that the boxes are appropriately bolted and sealed. These duties are also imposed on the presiding officer and the polling officers, and because they are performed before any voting commences, it is difficult to argue that they advance the election prospects of any particular candidate more than those of any other candidate. The second category relates to the period when polling is actually in progress. During this phase, the polling agent is required to identify voters. Rule 27 provides that when there is doubt about a voter’s identity, the presiding officer may interrogate the voter, and the presiding officer must do so if requested by a polling agent. Rule 30 authorises the polling agent to challenge any voter on the ground that the person is not the one whose name appears on the electoral roll, and upon such a challenge the presiding officer must conduct an enquiry and issue an order. The purpose of these Rules is to prevent personation, and this duty is equally cast upon the presiding officer. Rule 24 further empowers the presiding officer to employ, at the polling station, any persons he thinks fit to assist him or any polling officer in identifying electors. The work of the polling agent under Rules 27 and 30 is of the same character and cannot be said to further the election prospects of any particular candidate. The third category arises after the polling has concluded. At this stage, the boxes are examined to ensure that the slits remain open and the seals are intact, a measure intended to confirm that the ballot boxes were not tampered with during polling. Unused ballot papers, tendered ballot papers, and other material documents must be placed in separate packages, and the polling agents have the right to seal all of them. Performing these duties does not advance the election prospects of the candidate, as they pertain to a stage after voting has finished. Accordingly, the Court concluded that the duties of a polling agent, whether at the first, second, or third stage, are not covered by section 123(8) and therefore do not constitute a corrupt practice.

In this case the Court observed that the duties of a polling agent prescribed under Rules 27 and 30 are of the same nature throughout the electoral process and do not, by themselves, advance the electoral prospects of any particular candidate. After the polling has concluded, the Court noted that the boxes are examined to verify that the slits remain open and the seals are intact, a precaution intended to ensure that the ballot boxes were not tampered with during the polling period. The Court explained that the unused ballot papers, the tendered ballot papers and other related documents must be placed in separate packages, and that the polling agents have the authority to seal each of these packages. The Court held that performing these duties after the polling has ended cannot be said to further a candidate’s election prospects, because the tasks relate solely to post‑polling verification. Accordingly, the Court stated that the work of the polling agent in both the initial stage and the final stage is similar in character and does not contravene section 123(8). Regarding the middle stage, the Court reiterated that the polling agent’s sole function is to identify a voter, and that such identification, without additional conduct, cannot be said to further the election prospects of a candidate. The Court referred to a passage cited by counsel from the fifth edition of Parker’s Election Agent and Returning Officer, page 20, which described how polling agents appointed for the same candidate may meet under the candidate’s or his election agent’s presidency before the poll opens for mutual discussion and cooperation. The Court clarified that this passage merely suggests that, because the duties at various polling stations are of the same character, it is desirable for the agents to be assembled and briefed; it does not imply that the duties inherently promote the candidate’s election prospects. The Court also cited a more pertinent passage on page 18 of the same work, which listed the categories of persons who may be appointed as polling agents, emphasizing that any competent person, whether an elector or not, may be appointed provided he is not the returning officer, the acting or deputy acting returning officer, an officer or clerk appointed under the relevant rules, or a partner or clerk of any of them. The Court further observed that, although section 41 of the 1951 Act prohibits certain persons from being appointed as election agents, there is no analogous prohibition concerning the appointment of polling agents under section 46 of the Act. Consequently, the Court concluded that declaring all government servants disqualified as a class from acting as polling agents would create a statutory exception that does not exist, and therefore affirmed that the appointment of a government servant as a polling agent does not, by itself, violate section 123(8).

The Court observed that to treat the appointment of a government servant as a polling agent as creating an exception to the statutory provision would be to introduce a rule that the statute itself does not contain. Accordingly, the Court reaffirmed its earlier view that, by itself, the appointment of a government servant to act as a polling agent does not automatically violate section 123(8) of the Act. The Court further noted that it is hardly necessary to repeat the point made in the original judgment, namely that if it is established that a candidate or the candidate’s agent has misused the authority to name a government servant as a polling agent in order to advance the candidate’s electoral prospects, such misuse may be dealt with as a breach of section 123(8). After considering the submissions and the factual record, the Court concluded that no such misuse was demonstrated in the present case. Consequently, the petition was dismissed. The dismissal was ordered without the imposition of costs, reflecting the circumstances of the case. The final order therefore comprised a dismissal of the petition, without any order for costs.