Narayan Bhaskar Khare vs The Election Commission Of India

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

Court: Supreme Court of India

Case Number: Petitions Nos. 63 and 64 of 1957

Decision Date: 3 May 1957

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam, S.K. Das, J.L. Kapur, P.B. Gajendragadkar, A.K. Sarkar

In the matter titled Narayan Bhaskar Khare versus The Election Commission of India, the Supreme Court delivered its judgment on 3 May 1957. The bench that heard the case comprised Justices Natwarlal H. Bhagwati, Syed Jaffer Imam, S. K. Das, J. L. Kapur, P. B. Gajendragadkar and A. K. Sarkar, with Chief Justice S. U. Ranjan Das presiding. The petitioner, Narayan Bhaskar Khare, challenged the conduct of the presidential election that was scheduled for 6 May 1957, invoking the jurisdiction and power of the Supreme Court under Article 71(1) of the Constitution of India. The petitioner argued that the presidential election was being held before the general elections throughout the entire territory of India had been completed, specifically pointing to pending elections in the Union Territory of Himachal Pradesh and two Lok Sabha constituencies in the State of Punjab. He sought a restraining order to prevent the Election Commission from proceeding with the presidential poll until those unfinished general elections were concluded. The petitioner further raised two separate grievances: first, that he was a prospective candidate for the presidential election and that the interval between receipt of his nomination paper and the prescribed filing date was unreasonably short, thereby impeding his ability to file a nomination in time; second, that another petitioner, a prospective Lok Sabha candidate from one of the Punjab constituencies where the election had not yet taken place, would be denied the opportunity to vote in the presidential election. The Court examined the scope of Article 71(1) together with Section 14 of the Presidential and Vice‑Presidential Election Act, 1952, and held that the Supreme Court’s jurisdiction to inquire into doubts and disputes concerning a presidential election arises only after a candidate has been declared elected and an election petition has been filed under the said statutory provision. Consequently, the Court concluded that the petitions before it were premature, as no election result had been declared, and therefore dismissed them. The decision emphasized that “election” in Article 71 is intended in its broader sense to include the entire electoral process up to the declaration of a winner, and that any doubts or disputes must pertain to that complete process.

Hence, disputes relating to any specific stage of the election process are covered by the same provision. The Court referred to the earlier decision in N. P. Ponnuswamy v. Returning Officer, Namakkal Constituency, reported in 1952 S.C.R. 218. It is a well‑recognised principle of election law that an election cannot be delayed merely to allow individual grievances to be aired when such a delay would be detrimental to the general public interest. Article 62 of the Constitution, which obliges that the election of the President be completed within the time fixed therein, was framed to serve that public interest and therefore carries a mandatory character. The present matter was listed as an original jurisdiction case titled Petitions Nos. 63 and 64 of 1957, both filed under Article 71(1) of the Constitution of India seeking clarification of doubts arising in connection with the presidential election. Counsel R. V. S. Mani and I. R. V. Sastri appeared for the petitioner in Petition No. 63 of 1957, while counsel R. Patnaik represented the petitioner in Petition No. 64 of 1957. For the respondents, identified as caveators, counsel M. C. Setalvad, the Attorney‑General for India, together with G. N. Joshi, Porus A. Mehta and R. H. Dhebar, appeared. The judgment was dated 3 May 1957 and was delivered by the Chief Justice, Das.

The petitioners requested that this Court exercise the jurisdiction and power conferred by Article 71(1) to examine a matter described as a “grave doubt” concerning the presidential election and to issue an order directing the Election Commission not to proceed with the polling scheduled for 6 May 1957. The petitioners asked that the presidential poll be postponed until after the completion of all Lok Sabha elections and the elections to State Legislatures throughout the Indian Union, including the Union Territory. The first main petition was presented on 26 April 1957 and the second on 29 April 1957; each was accompanied by a Civil Miscellaneous Petition seeking a stay of the presidential polling on 6 May 1957. In the first petition the Returning Officer was not made a party, whereas in the second petition he was impleaded as a respondent. The learned Attorney‑General appeared on behalf of the Election Commission and waived service of notice, permitting the Court to dispose of all the petitions together. There was no dispute over the material facts, which could be summarised as follows: after the general elections had been concluded in all States and Union territories except the Union Territory of Himachal Pradesh (which was to return four members to the Lok Sabha) and two constituencies in Punjab, the outgoing Lok Sabha was dissolved on 4 April 1957. The new Lok Sabha was constituted on 5 April 1957 under section 73 of the Representation of the People Act (XLIII of 1951). In accordance with section 4 of the Presidential and Vice‑Presidential Election Act, 1952, the subsequent steps for the presidential election were to be taken.

The Election Commission, exercising the authority granted by provision XXXI of 1952, issued a notification in the official Gazette that fixed a detailed timetable for the Presidential election. The notification appointed 16 April 1957 as the last date for filing nominations; 17 April 1957 as the date on which nominations would be scrutinised; 20 April 1957 as the final date for withdrawal of candidatures; 6 May 1957 as the polling day; and 10 May 1957 as the day for counting the votes and declaring the result. The term of the incumbent President was scheduled to expire at midnight on 12 May 1957, and the timetable was clearly intended to ensure that the Presidential election would be completed before that expiration. After the announcement that the new Lok Sabha had been constituted was published in the press on 7 April 1957, the petitioner in the first petition applied to the Election Commission for the supply of nomination papers. He received those papers at Nagpur on the afternoon of 10 April 1957, which left only a five‑day period for submitting his nomination to the Returning Officer in New Delhi. The petitioner argued that the five‑day window was unduly short and that he was prevented from filing his nomination because of insufficient time. He filed the petition in his capacity as a citizen of India and as an “intending candidate” for the Presidential election. The petitioner in the second petition is a member of the Hindu Mahasabha and is contesting the Lok Sabha election as an independent candidate from the Kangra Parliamentary constituency in the State of Punjab. He had filed his nomination on 28 January 1957 when the original polling date for that constituency was set for 24 February 1957. That polling has subsequently been postponed to 2 June 1957. He filed the petition as a citizen of India and as a prospective member of the Lok Sabha, contending that if the Presidential election were held on 6 May 1957 he would be deprived of his right to vote for the President of the Union. He also alleged discrimination violating Article 14 of the Constitution. Under Article 56 of the Constitution, the President holds office for a term of five years measured from the date on which he enters office. The present incumbent entered office on 12 May 1952, and consequently his term is due to expire at midnight on 12 May 1957. Article 62(1) imposes a mandatory requirement that the election to fill the vacancy caused by the expiration of the President’s term must be completed before the term expires. This clear constitutional mandate must be borne in mind. To determine the procedure for electing the President, reference must be made to Article 54, which provides: “54. The President shall be elected by”.

The Court observed that Article 54 of the Constitution provides that the President shall be elected by an electoral college consisting of (a) the elected members of both Houses of Parliament and (b) the elected members of the Legislative Assemblies of the States. One line of argument held that the electoral college must be formed of those members who are elected at the decisive moment, namely the date on which the presidential election is to be held. According to this view, even if the President’s term expires during the existing tenure of a Parliament, as contemplated by Article 62(2), and even if there are vacancies in Parliament or in the legislatures of one or more States, the election required by Article 62(1) must proceed before the expiration of the incumbent’s term without waiting for those vacancies to be filled. The opposite argument, advanced by the petitioners, contended that the electoral college should be constituted only after all elections in the States and Union territories have been completed, so that it includes every elected member falling within both categories. The petitioners pointed out that elections had not yet been held in Himachal Pradesh and in two constituencies of Punjab, and therefore the electoral college could not be fully formed until those members were also elected.

The petitioners further warned that, although the present deficiency involved only four members from Himachal Pradesh and two from Punjab, disregarding their objection could enable a party in power to manipulate future presidential elections by postponing elections in several States where it anticipated not obtaining a majority, thereby installing its own nominee. They referred to a discussion raised on 28 March 1957 in the Lok Sabha, wherein members expressed concern about the impropriety of holding the presidential election before the completion of elections throughout the nation. Both petitioners maintained that a “grave doubt” had arisen regarding the proper conduct of the presidential election, and that, under Article 71, such a doubt must be examined and resolved by this Court. They argued that the Court’s duty to inquire does not depend on whether the doubt is ultimately found to be well‑founded, good, bad, or indifferent; the mere emergence of a doubt before the Court obliges it to investigate and decide promptly. For the purposes of the present case, the Court noted that it need not express an opinion on the merits of the competing contentions, as the petitions might be disposed of on a narrower, preliminary ground, but it reiterated that Article 71(1) unquestionably confers jurisdiction on the Court to inquire into and decide all doubts and disputes arising out of or in connection with the election of the President or Vice‑President.

In this matter the Court observed that Articles 71(1) and 324 of the Constitution both refer to “doubts and disputes arising out of or in connection with” elections, whether for President, Vice‑President or any other elective office, and that the Constitution therefore requires the Court to examine and resolve such doubts and disputes. The Court then considered whether the Constitution itself specifies the timing and the procedure for inquiring into and deciding those doubts and disputes. Article 324 confers upon the Election Commission the superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to Parliament, to the Legislatures of the States and to the offices of President and Vice‑President, including the power to appoint election tribunals for the settlement of doubts and disputes that arise in connection with those elections. The Court highlighted that the very same wording—“doubts and disputes arising out of or in connection with elections”—appears in Article 71(1). Under Article 327 Parliament is empowered to make provisions relating to any matter “relating to or in connection with elections” for Parliament or State Legislatures. Article 329 further provides, inter alia, that notwithstanding any other constitutional provision, no election to either House of Parliament or to a State Legislature may be called into question except by an election petition filed with the appropriate authority and in the manner prescribed by law made by the competent legislature. Acting on this authority, Parliament enacted the Representation of the People Act, 1951, which lays down the manner in which elections are to be conducted and the grounds on which they may be challenged. That Act also created a special forum called the Election Tribunal to decide “doubts and disputes arising out of or in connection with such elections.” The Court then referred to the earlier decision in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, where the Returning Officer had rejected the appellant’s nomination paper. The appellant sought a writ of certiorari under Article 226 of the Constitution from the High Court of Madras to set aside that order and to compel the Returning Officer to list his name among the valid nominations. The High Court dismissed the petition, and the appellant appealed to this Court. The Full Court, relying on Article 329(b) of the Constitution and section 80 of the Representation of the People Act, 1951, held that the High Court lacked jurisdiction to interfere with the Returning Officer’s order. The principal issue in that appeal, the Court noted, was the interpretation of the phrase “no election shall be called in question except by an election petition” contained in Article 329(b).

The Court identified the principal issue as determining the meaning of the word “election” in Article 329(b). It explained that, through long usage in democratic processes, the term has acquired both a broad and a narrow sense. In its narrow sense, the term denotes the final selection of a candidate, which may be the result of a poll when voting occurs or the declaration of a candidate returned unopposed when no poll is held. In its broader sense, the term signifies the entire sequence of events that culminates in a candidate being declared elected. The Court referred to the earlier decisions in Srinivasalu v. Kuppuswami (1) and Sat Narain v. Hanuman Prasad (2) and also cited a passage from Halsbury’s Laws of England, second edition, volume 12, page 237, to support its view. It concluded that the word “election” may properly be applied to the whole process, which consists of several stages and includes many steps, some of which can have a material effect on the outcome. Consequently, the Court held that, in view of Article 329(b) of the Constitution and section 80 of the Representation of the People Act, 1951, the High Court possessed no jurisdiction to interfere with the Returning Officer’s order under Article 226. The Court explained that such an order could be challenged only in the manner prescribed by Article 329(b) and section 80, namely by filing an election petition before the Election Tribunal after the complete election process, ending in a candidate being declared elected, had been completed. Upon the filing of such a petition, the Election Tribunal would be obliged to examine and resolve all doubts and disputes arising out of or in connection with the election, regardless of the particular stage of the process to which those doubts pertained. The Court then turned to the interpretation of Article 71, noting that Article 71(1) grants it jurisdiction to inquire into and decide all doubts and disputes arising out of or in connection with the election of a President or Vice‑President. The Court posed the question of whether Article 71 or any other constitutional provision indicates the timing at which such an inquiry should be conducted. It observed that Article 71 assumes an “election of the President or Vice‑President” and provides for inquiry into doubts and disputes arising out of that election, thereby requiring clarification of the meaning to be given to the term “election” in this context.

In this case, the Court examined the meaning of the term “election” as it appears in Article 71(1). The Court concluded that if the word “election” were given a broad definition that includes the whole electoral process up to the point where a candidate is formally declared elected, then the jurisdiction to inquire into doubts and disputes must arise only after that entire process has been completed. The Court saw no reason to adopt a narrower interpretation of the critical term. The Court also noted that clause three of Article 71 authorises Parliament, subject to the Constitution, to enact laws regulating any matter that is “relating to or connected with the election” of a President or Vice‑President. The language of this clause mirrors that of Article 327 and is likewise broad enough to encompass every stage of the election process. Acting under the power conferred by Article 71(3), Parliament passed the Presidential and Vice‑Presidential Election Act, 1952 (Act XXXI of 1952). A review of the provisions of that Act revealed that Parliament intended the Supreme Court’s jurisdiction to be exercised only after the whole election process had been concluded.

The Court then turned to the specific provisions of the 1952 Act. Section 14, which parallels Section 80 of the Representation of the People Act, 1951, provides that no election – meaning the election of the President or Vice‑President – may be questioned except by an election petition filed in the Supreme Court pursuant to Part III of the Act and the rules framed by the Court under Article 145. Section 18 enumerates the grounds on which the Supreme Court may declare the election of a returned candidate void. The statutory language states: “If the Supreme Court is of opinion— (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or (b) that the result of the election has been materially affected— (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance; or (ii) by the improper reception or refusal of a vote, or (iii) by the non‑compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act; or (c) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate or of any other candidate who has not withdrawn his candidature has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void.” The Court observed that these provisions make clear that any irregularity, including improper handling of votes, failure to comply with constitutional or statutory requirements, or erroneous acceptance or rejection of nominations, may serve as a basis for challenging the election. Consequently, the Court affirmed that doubts and disputes concerning every stage of the election process must be addressed through an election petition filed after the election, understood in its broad sense, has been concluded.

In this matter, the Court observed that the provision authorises a declaration that the election of a returned candidate shall be held void. For the purpose of that provision, the offences of bribery and undue influence committed in the context of an election are to be understood in the same manner as they are defined in Chapter IX‑A of the Indian Penal Code, Act XLV of 1860. The Court found that the language of the section makes it clear that any improper acceptance or refusal of a vote, any failure to comply with the Constitution, the Act, or any rules or orders made under the Act, and any improper acceptance or rejection of a nomination paper may all constitute grounds for challenging the election. From this interpretation, the Court concluded that every doubt or dispute relating to any stage of the whole election process must be examined by an election petition filed before this Court after the election, understood in its broad sense, has been concluded. The Court considered this interpretation to be consistent with other constitutional provisions and with common sense. The Court further noted that if a doubt or dispute concerning the election of the President or Vice‑President could be presented to the Court before the entire election process was finished, the whole election could be delayed until after the expiry of the five‑year term, thereby breaching the mandatory requirement of Article 62. The Court referred to the well‑recognised principle of election law, both Indian and English, that elections must not be postponed and that an aggrieved individual should not be allowed to pursue personal interests at the expense of the public interest, which requires that elections proceed according to the prescribed timetable. Accordingly, the Court held that, in harmony with Article 62 and common sense, the term “election” in Article 71 signifies the entire election process. This understanding, the Court said, reflects Parliament’s intention as shown by the Presidential and Vice‑Presidential Election Act, 1952. Moreover, the Court pointed out that the rules framed under Article 145 also indicate that all doubts and disputes arising out of or in connection with the election of a President or Vice‑President must be brought before the Court after the result of the whole election is declared, that is, after a candidate has been declared elected to the office. The Court further observed that if petitioners are required to wait until the complete election process is finished before filing election petitions, they will have to demonstrate that the result of the election was materially affected, as required by section 18 of the Presidential and Vice‑Presidential Election Act, 1952. The petitioners contended that imposing this additional burden, which is not stipulated by Article 71, creates an unnecessary hardship.

In addressing the petitions, the Court said that it was unnecessary for the purpose of disposing of the petitions to express any view on whether section 18 of the Presidential and Vice‑Presidential Election Act, 1952, is valid, and consequently the Court did not do so. The Court further held that the allegation of hardship caused by the operation of section 18 could not change the true meaning and effect of Article 71. According to the Court, Article 71 envisions an election, and the term “election” in that article refers to the whole electoral process that ends with a candidate being declared elected; any doubts or disputes arising out of or connected with any stage of that completed election must be examined and decided by this Court, which necessarily has to occur after the entire process, commonly called the election, has been concluded. Counsel appearing for the petitioner in the second petition raised an additional argument that the Election Commission, by fixing the presidential election for 6 May 1957, had arbitrarily deprived members representing territorial constituencies such as Kangra and Himachal Pradesh of their right to enjoy other parliamentary privileges. The Court observed that this argument was raised in a half‑hearted manner at the very end of the respondent’s reply and was not seriously pursued. Moreover, the petitioner failed to advance any cogent reasoning showing how the alleged deprivation violated the principle of equal protection of the law. The Court explained that elections must be conducted in many constituencies, and different dates are fixed for holding polls in different constituencies because of the various local exigencies affecting each area. No satisfactory ground was established to show that any discrimination, prohibited by Article 14 of the Constitution, had occurred. Even if an alleged discrimination, to the extent that it breaches the equal‑protection clause, could be said to raise a doubt concerning the presidential election, such a matter would at most constitute a non‑compliance with constitutional provisions, which might—or might not—be taken up as a ground under section 18 after the whole election is over. The Court therefore stated that it need not formulate any final opinion on that point at this stage. Without expressing any view on the merits of the controversies between the parties, the Court concluded that, for the reasons set out above, the present petitions were premature and could not be entertained. Consequently, the Court dismissed petitions numbered 63 and 64 of 1957, and also dismissed Civil Miscellaneous Petitions numbers 563 and 564 of 1957. All the petitions were therefore dismissed.