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JYOTI BASU & OTHERS.

v.

DEBI GHOSAL & OTHERS.

February 26, 1982

(R.S. PATHAK AND 0. CHINNAPPA REDDY, JJ.]

Representation of the Pepople Act 1951, Ss. 82 and 86 (4) Election Petition­

Parties to-Who are-Corrupt practice alleged against person who is not a candi­

date-Such person whether can be impleaded as respondent.

Election Law-Right to elect-Neither fundamtntal right nor Common Law

right-Statutory right subject to statutory limitations.

Code of Civil Procedure 1908 Or. Ir. JO-Concept of'proper parties'­

Applicability of to election petitions.

The Representation of the People Act 1951, by Section 81 prescribes who

may present an election petition. It may

be by any candidate at such election,

by any elec1or of the cons.tituency, and by none

~Jse. Section 82 dause (a)

provides that the retitioner in an election petition shall join as respondents to the

petition the returned candidates if the relief claimed

is confined to a

di~claration

that the election of all or any of . the returned candidates is void and all the

contesting candidates

if a further declaration is sought that he himself or any

other candidate has been duly elected.

·Clause (b) of the section requires the

petitioner to join as respondents any other candidate against whom allegations

of

any corrupt practice are made in the petition.

Section 86 (4) enables any candi·

date not already a respondent to be joined as respondent.

The first appeltant in the appeal

is the Chief Minister and appellants 2 and 3

State Ministers. They had been impleaded by the first respondent as parties to an

election petition filed by him in the High Ccurt qu£stioni11g the election of the

second respondent to the House

of the

People. It was averred in the election peti·

tion that the Chief Ministers and the State ministers who Were impleaded as parties

to the election petition had colluded and conspired with the returned candidate

to commit 'various alleged corrupt practices. The Chief Minister and th~ other

Ministers denied the commission

of the various alleged corrupt practices and

claimed that the election petitioner was not entitled to implead them as parties

to the election petition,

as they were not candidates at the election. They filed

an application before

tQ.e High Court to strike out their names from the array of

parties in the election petition.

It was

dismissed on the ground that the ·appel­

lants were proper parties to the election petitiqn and therefore their names could

pot be st~~ O"?t of the array of parties · · . '" , , . , ..

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JYOTI BASU V. DEBI GHOSAL :119

In the appeal to this Court, it was contended on behalf of the appellants

that the concept of a proper p8.rty was not relevant in election law and that only

those persons could

be implcaded as parties who were

expressly directed to be so

implcaded

by the Representation of the People Act 1951, and that they were

entitled to be struck out from the array of parties.

On behalf of the first resPOn,

dent it was submitted that the appellants were proper parties to the electiori

petition and their presence was necessary for a coi,n.plete, final and expeditiouS

decision on the questions involved in the action.

Allowing the Appeal,

HELD : I. No one can be joined as a party to an election petition other·

wise than as provide by Section 82 and 86 (4) of the Representation of the people

Act 1951. A person who is not a candidate may not be joined as a respondent

to the election petition.

[331 C-D]

--1. In the instant case the names of the appeIJants and the 7th ·respondent in·

'(

the appeal are directed to be struck out from the array of parties in the election

petition.

[331 DJ

2. A right to elect, fundamental though it is to democracy,

is, anomalously 1 ·

neither a fundamental right nor a Common Law Ri~bt. It is a statutory right.

So is the right to be elected, and the right to dispute an election. Outside of

sta1ute, there is no right to elect, no right to be elected, and no right to dispute

an election. Statutory creations they are, and therefore, subject to statutory

limitation. An Election petition is not an action at Cornmoo Law, nor in equity.

It is a statutory proceeding to which 1leither the Common Law nor the principles

of Equity apply but only those rules which. the statute makes and applies. It is

a special jurisdiction, and a special jurisdiction has always to be exercised in

accordance with the statute creating it. Concepts familiar to Common Law and

Equity must remain strangers to Election Law unless statutorily embodied. A

Court has no right to resort to them

on considerations of alleged pol.icy because

policy io such matters, as those, relating to the trial

of

election disputes, is what

the statute lays down. In the trial of election disputes, Court is put in a stl.'aight

jacket. [326 F-H; 327 A-BJ

3. The ·contest of the election petition is designed to be confined to the

the candidates. at the ele-;;.tion. All others are excluded. The ring is c!c.sed to all

except the petitioner and the candidates at the election. Such is the design of the

statute.

[328 C]

4. While clause (b) of section 82

obliges the petitioner in an election

petition to join as a respondent any candidate against whom allegations

of any

corrupt practice

are made in the pet_ition, it does not obJige the petitioner to join

as a respondent any other person against whom allegations of any corrupt

practice are made. While any candidate not already a respondent may seek and,

if he so

seeks, is entitled to be joined as a respondent undor section 86 (4), any

other person cannot, under that provision seek to

be joined as a respondent,

even if

allegations of any corrupt practice are made against him. [328 A-CJ

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326 SUPREME c6Uit REPORTS it982J 3 s.c.ii.

5. The concept of •proper parties' is and niust remain alien to an election

dispute under the Representation of the People Act, 1951. Only those may be

joined as· respondents to an election petition who are mentioned in section 82

and section 86 (4) and no others, However desirable and expedient it may appear

to be, none else shall be joined as respondents. [328 DJ

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permit that which the Representation of the People Act 1951 does not permit.

The Civil Procedure Code applies subject to the provisions of the Repres~tation

of the People Act 1951 and any rules made thereunder. Section 87 (1) expressly

says so. When the Act enjoins

the

penalty of dismissal of the petition for non-

joinder

of a party the provisions of the Civil

Procedure Code cannot be used as a --~

curative means to save the petition. [328 F-H; 329 A-Cl

Mohan Raj v. Su7'ndra Kumar Taparia & Ors. [1961] I SCR and

.R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi & Ors. [1969) I SCR

679, referred to.

7: Parliament has expressly provided that an opportunity should be

given to a person who· is not a candidate to show cause against being 'named' as

one guilty

of a corrupt practice.

Parliament, however, has not thought fit to

expressly provide for bis being joined-as a party to the election petition either by the

election.petitioner or at the instance

of the very person against whom

the allega·

tiona of a corrupt practice are made. The right given to the latter is limited to show

cause against being 'named' and that right opens up for exercise when, at the

end

of the election petition notice is given to him to show cause why

he should

not

be

'named

9

• The right does not extend to participation at all stages and in

all matters, a right which

he would

ha·ve if he is joined as a 'party' at the com-

mencement. [329 E-G] ·

8 (i) The election petitioner cannot by joining as a respondent a person

who

is not a candidate at the election subject him to a prolonged triaJ of an

election petition with all its intricacies and ramificatio_ns. [329-Gj

(ii) Mischievous minded persons may harass public personages like the

Prime Minister

of the country, the Chief

Minister· of a State or a political leader

of a national dimension by impleading him as a party to election petitions. All

that would be necessary is a seemingly plausible allegation, casually or spitefulJy

made, with but a facade

of truth. To permit such a

public personage to be

impleaded as a party to an election petition on the basis of a mere allegation,

without even prima facie proof an allegation which may ultimately be found to be

unfounded, can c~use needless vexation to sush pe°rsonage and prevent him from

the effective discharge

of his public duties. It would be against the public

interest to do so. The ultimate award

o.f

co;,ts would be no panacea in such cases,

since the Public mischi.ef cannot be repaired. Public Policy and legislative wis­

dooi both p~iot to an interpretation that the provisions of the Representation of

the PeoJ)le Act 1951 does not permit the joining, at parties of persons other than

those mention~ in sections 82 and 86 (4). [329 H; 330 A-DJ

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. JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy,j.) 32i

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9 (i) The legislative provisions contained in section 99 enables the Court,. "

. towards the end of the trial of an election petition,_ to issue a J?.Otice to a person

not a party to the proceedings to show cause why he should not be rnamed' is a

sufficient clarificatiOn of the.legislative intent ihat such person may not be permit·

ted to be joined as a party to the election petition. (330 E-F]

9 (ii) If a person who 1s not a candidate but against whom allegations of

any corrupt practice are made is joined as a party he would also be entitled to

'recriminate' under section 97. Suctt a construction of the statute would throw

the doors ·of an election wide open and convert the petition into a 'free for all'

fight. The necessary consequence would be an unending, disorderly election

dispute with no hope of achieving the goal contemplated by sec. 86 (6) of the

Act that the trial of the election petition should be concluded in six months.

(330 H; 331 A-BJ

CIVIL APPELLA1E JURISD1c:r10N : Civil Appeal No. 1553

of 1980.

Appeal by special leave from the judgment and order dated

the 3rd July, 1980 of the Calcutta High Court in Election Petition

Case No. 1 of 1980.

Somnath Chatterjee, Rathin Das and Aninda Mitter· for the

Appellants.

Sidhartha

Shankar Ray, R.K. Lala and T. V.S.N. Chari fot

Respondent No. I.

The Judgmeat of the Court was delivered by

CHINNAPPA REDDY, J. The first appellant, Jyoti llasu, is the

Chief Minister and appellants two and three Budhadeb Bhattacharya

and Hashim Abdul Halim, are two Ministers of the Government of

West Bengal. They .have been impleaded by the first respondent as

parties to an election petition filed by him questioning the election

of the second respondent to the House of the People from the

19-Barrackpore Parliamentary Constituency in the mid-term Parlia­

mentary election held in January, 1980. There were five candidates'

who sought election from the .Constituency. Mod. Ismail, the first

respondent, whose candidature was sponsored by the Communist

Party of India (Marxist) was, elected securing 2,66,698 votes as

against Debi Ghosal, a candidate sponsored by the Indian National

Congress led by Smt. Indira Gandhi who secured 1,62, 770 votes.

The other candidates Ramjit Ram, Robi Shankar Pandey and Bejoy

Narayan Mishra secured 25, 734, 12,271 and 2, 763 votes respectively.

The first respondent

fited an election petition in the High Court of

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322 SUPREME COURT REPORtS [1982j 3 s.c.i.

Calcutta questioning the election of the second respondent Mohd.

Ismail on various grounds. He impleaded the returned candidate

as the first respoudent, and tbe other three unsuccessful candidates

respondents 2, 3 and 4 to the election petition. Besides the candi-

_ dates at the election, he impleaded several others as respondents.

·The District Magistrate and Returning Officer was impleaded as the

fifth respondent, Buddhadeb Bhattachar}a, the Minister for Informa­

tion and Publicity, Government of West Bengal as the sixth res­

pondent. Jyoti Basu, the Chief Minister as the seventh respondent,

Md. Amin, the Minister of the Transport Branch

of the Home

Department

as the eighth respondent, Hashim Abdul Halim,

the·

Minister of the Legislative and the Judicial Department as the ninth

respondent and the Electoral Registration

Officer as the tenth

res­

pondent. It was averred in the election petition that the Chief

Minister and the other Ministers

of the Government of West Bengal

who were

im pleaded as parties to the election petition had colluded

and conspired with the returned candidate to commit various alleged

· corrupt practices. Apart from denying the commission of the

various alleged corrupt practices, the Chief Minister and the other

Ministers claimed in their written statements that the election petiti~­

ner was not entitled to implead them as parties to the election peti­

tion. They claimed that as they were not candidates at the election

they could not

be impleaded as parties to the election petition. The

Chief Minister and two

of the other Ministers, Hashim Abdul

Halim and and Buddhadeb Bhattacharya

file\! an application

before the High Court of Calcutta to strike out ··their names from

the array of parties

in the

elcctign petition. The application was

dismissed by the Calcutta High Court on the ground that the appli­

cants (appellants) were proper parties to the election petition and,

therefore, their names should not be struck out of the array of

parties. The appellants have preferred this appeal after obtaining

special leave

of this Court under Art. 136 of the Constitution.

Sbri Somnath Chatterjee, learned counsel for the appellant

t submitted that the concept of a proper party was not relevant in elec­

tion law and that only those persons could be impleaded as parties

who were expressly directed to be so impleaded by the Representa­

tion of the People Act, 1951. He claimed that in any case such

persons

were entitled to be struck out from the array of parties. On the other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala,

learned counsel for the first respondent submitted that the appellan.\s

were proper parties to the election petition and their presence

was

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JvOTl BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 323

necessary for a complete, final and expeditious decision on the ques­

tions involved in the action.

To properly appreciate the rival contentions it i$ ·necessary to

refer to the relevant provisions of the Constitution of India and

A

the two Representation of the People Acts of 1950 and 1951. B

First the

Constitution. Part lXV deals with elections. Art. 324

vests in the l'le•:tiqn Commission the superintendence, .direction and

control

of the preparation of the Electoral rolls and the conduct of

all elections to Parliament

and to the Legislatures of the States.

Art. 325 provides that there shall be one general electoral roll for

every territorial constituency,.and that no person shall be ineligible

for inclusion in

such rolls on grounds only of religion,

caste, sex or

any

of them. Art. 326 provides that election to the House of the People and to the Legislative Assemblies of States shall be on the

basis of adult franchise. Art.

327 enables Parliament to make

laws

with respect to all matters relating to elections to either House of

Parliament or to the Houses of the Legislature of a State. Art. 328

enables the Legh;lature of a State, if Parliament has not made such

legislation, to make laws with respect to all matters relating to elec­

tions to the Houses of the Legislature of the State. Art. 329 bars

interference

by

Courts in electoral matters and clause (b), in parti­

cular, provides that 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.

Next, the Representation of

People Act, 1950. This Act

provides for the delimitation of the Constituencies for the purpose

of

elections to the House of the people .and the legislatures of States,

the qualification of voters at

such elections,. the preparation of

electoral rolls and other matters connected therewith.

Last, the Representation

of the People Act of 1951,

Part VI

of the Act deals with "Disputes regarding elections". Sec. 79

defines various terms and expressions used in the Parts VI and VII.

Clause (b) defines a 'candidate' as meaning "a person who has been

or claims to have been duly nominated as a candidate at any elec­

tion, and any such person shall be deemed to have been a candidate

as from the

time when,

with the election in prospect, he began to

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SUPREME COURT REPORTS (i982j 3 S.C.R.

hold himself out as a prospective candidate". Sec. 80 imposes a

statutory

ban on an election being called in question except by an

election petition presented

in accordance with the provisions of

Part VI of the, Act. Sec. 80-A vests in the High Court, the jurisdic­

tion to try an election petition. Sec. 81 provides for the presenta­

tion of an election petition on one or more of the grounds specified

in Sec. 100 (I) and Sec. IOI by any candidate at such election or

any elector who

was entitled to vote at the election.

Sec. 82 is

entitled "Parties to the petition" and is as follows :

"82. Parties to the petition-A petitioner shall join as respon­

dents to his petition-

..

(a) Where the petitioner, in addition to claiming a

declaration that the election

of all or any of the

returned candidate

is void claims a further

declara·

tion that he himself or any other candidate has

been duly elected, all the contesting candidates

other than the petitioner, and

where no such further

declaration

is claimed, all the returned candidates;

and

(b) any other candidate against whom allegations of

any corrupt practice are made in

the petition".

Sec. 83 prescribes the contents of the petition. 1 Sec. 84 pro­

vides that a petitioner may, in addition to clair;ning a declaration

that the election

of the returned ·candidate is void, claim a further

declaration that

he himself or any other candidate bas been duly

elected.

Sec. 86 deals with trial of ~Iection petition.s. Sub-Sec. (4)

provides for an application by a candidate who is not already a res­

pondent to be joined as a respondent. It is in these terms:

"(4) Any candidate not already a respondent shall,

npon application made

by him to the High Court within

fourteen days from the

date of commencement of the trial

and subject to any order

as to security for costs which may

be made by the High Court, be entitled to be joined as a

respondent".

Sec. 87 is concerned with the procedure before the High Court and

'it

is

as follows:

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frcrri BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 325

"87 (I) Subject to the provisions of this Act and of any rules

made thereunder, every election petition shall

be tried

by the High Court, as nearly as may be, in accor­

with the procedure applicable under the Code

of Civil

Procedure,

1908 to the trial of suits;

Provided that the High Court shall have the dis­

cretion to refuse, for reasons to

be. recorded in

writing, to examine any witness or witnesses if · it is of the opinion that the evidence of such witness or

witn"esses is not material for the decision of the peti­

tion or that the p11rty tendering such witness or

witnesses

is doing so on frivolous grounds or with a

view to delay. the proceedings.

(2) The

provisitf'ns of the Indian Evidence Act, 1872, shait,

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subject to Ille provisions of this Act, be deemed to D

apply in all respects to the trial of an election

petition".

Sec. 90 enables the returned candidate or any other party to 'recri­

minate'

in

cases where in the election petition a declaration that a

candidate other than the returned candidate has been elected is

claimed.

Sec.

98 prescribes the orders that may be made by the

0

High Court at the conclusion of the trial of an election petition. It

provides that the High Court shall make an order d ismlssing the

election petition or declaring the election

of all or any of the

returned candidates

to· be void and the petitioner or any other

candidate to have been duly elected.

Sec. 99, enables the High

Court to make, at the time of making order under

Sec. 98, an order

recording a finding whether any

corrupt practice h11s or has not been

proved to have been committed at the election, and the nature of

corrupt practice; and the names of all persons, if any, who have

been poved at the trial to have

been guilty of corrupt practice and

the nature of that practice. The proviso to

Sec. 99 (I), however,

prescribes that no person

who is not a party to the petition shall be

named in

t,he order unless he had been given notice to ·appear before

the High Court to

show cause why he should

not be so llamed and

he had also been given an opportunity to cross examine any witness

who had-already been examined

by the High. Court and had given · evidence against him and an opportunity of calling evidence in his

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326 SUPREME ·COURT REPORTS (J9szj J S.C.R.

defence and of being heard. '

1

Sec. 100 enumerates the grounds on

which an election may

be declared void. The High Court, it is said,

among other grounds, shall declare the election

of a returned

candi­

date void .in cases where corrupt practices are proved, where suph

corrupt practice has been committed by a returned candidate or his

election agent or

by any other person with the consent of the

returned candidate

or his election agent. Where the corrupt

prac­

tice has been committed in the interests of the returned candidate by

an agent other than his election agent, the result of the election in

so far as it concerns the returned candidate must also be shown to

have heeh materially affected.

Sec.

IOI prescribes the grounds for

which a candidate, other than the returned candidate may

be declared

to have been elected. Sec.

110 provides for the procedure

when

an application for withdrawal of an election petition is made

to the Court.

Sec.

110 (3) (c) says that a person who might himself

have been a petitioner may apply fo the Court to he substituted as

a petitioner

in place of the

{>arty withdrawing. Sec. 112 (3) pro­

vides for the continuance of the election petition on the death of the ·

sole petitioner in an election petition or of tac survivor of several

petitioners, by any person

who might himself haYe been a petitioner

and who applies for substitution within the

stipulat~d period.

The nature

of the right to elect, the right to be elected and the

right to dispute an election and the scheme of the Constitutional

and statutory provisions

in relation to these rights have been

explained

by the Court in N.P. Ponnuswami v. Returning Officer,

Namakkal Constituency

&

Ors.,(') and Jagan Nath v. Jaswant

Singh.(') We proceed to state what we have gleaned from what

has been said,

so much as necessary for this case.

I .

A right to elect, fundamental though it is to democracy, is,

I

anomalously enough, nei~her a fundamental right nor a Common

, Law Right.· It is·pure and simple, a statutory right. So is the right

to be elected. So is the right to dispute_!ln election. Outside of

statute, there is no right to elect, no right to be elected and no right

to dispute an election. Statutory creations they are, and therefore,

subject to statutory limitation.

An Election petition is not an action

at Common Law, nor

in equity. It is a statutory proceeding to which

neither the Common

Law nor the principles of Equity apply but

(I l [1952) 1 S.C.R 218.

(2) A.I.R. 1954 SC 210.

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JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 327

only those rules which the statute makes and applies. It is a

special jurisdiction, and a special jurisdiction has always to be

exercised in accordance with the statutory creating it. Concepts

familiar to Common Law and Equity must remain strangers

to

Election Law unless statutorily embodied. A

Court has no

right to resort to them on considerations

of alleged policy

because policy

in such matters as those, relating to the trial of

election disputes, is what the statute lays down. In the trial of

election disputes, Court is put in a straight jacket. Thus the entire

./

elecr ion process commencing from the issuance of the notification

calling upon a constitutuency to elect a member

or members right

up to the final resolution

of the dispute, if any, concerning the

. election

is regulated by the Representation of the People Act, 1951,

different stages of the process being dealt with by different provisions

of the Act. There can be no election to Parliament or the

State

Legislature except as provided by the Representation of the People

Act

195 l and again, no such election may be questioned except in

the manner provided

by the Representation of the People Act.

So

the Representation of the People Act has been held to be a com­

plete and self contained code within which must be found any rights

claimed in relation to an election

or an election .dispute. We are

concerned with an election dispute .

..:fhe question is who are parties

to an election dispute and who may_ be impleaded as parties to an

election petition. We have already referred to the Scheme of the

Act.

We have noticed the necessity to rid ourselves of notions

based

on Common Law or Equity. We see that we must seek an

answer to the question within the four corners

of the statute. What

dqes the Act say?

Sec. 81 prescribes who may present an election petition. It

may be any candidate at such election; it may be any elector of the

constituency; it may

be none else.

Sec. 82 is headed "Parties to the

petition" and clause (a) provides that the petitioner shall join as

respondents to the petition the returned candidates

if the relief

claimed is confined to a declaration that the election

of all or any

of the returned candidates is void and all

·the contesting candidates

if a further declaration is sought that he him~elf or any other can­

didate has been duly elected. Clause (b) of Sec. 82 requires the

petitioner to join

as respondent any other candidate against whom

allegations

of any corrupt practice are made in the petition.

Sec. 86 (4) enables any candidate not already a respondent to be

joined as a respondent, There is 110 other provision dealinll wit!

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328 SUPREME COURT REPORTS (1982) 3 S.C,R. •.

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. question as to who may be joined as respondents .. It is significant

that while clause

(b) of

Sec. 82 obliges 'the· petitioner to joiri as a·

respondent any candidate.against whom 'allegations of any corrupt

practice are made in the petition, it does not oblige· the.petitioner to

join as a respondent any other person against 'whom allegations of

any corrupt practice are made. ' It is equally significant that while

· any candidat.e not already a respondent may seek and, if he so seeks,

is entitled to. be joined as a respondent under Sec.· 86 (4), any other.

person cannot; under .that provision seek to be joined as respondent,

even

if allegations of

any corrupt practice are made. agains't him.'

It is dear thai the contest of the election petition is designed t~. be

confined to the candidates at the election. All •.. others are excluded:

The ring

is closed to. all except the petitioner

and the candidates . at

· the election.. If such is the design ·of the statute, how can the notion

of 'proper parties' enter th.e picture at all ? ·We think thai the: con­

cept of 'proper parties' is and must remain alien to an election ·'dis··

pute under the Represeiiiation of the People· Act,. J951 ,· -· Only ·those

may be joined as respondents to' an· election petition who ·are men­

tioned. in Sec. 82 an·d Sec. 86 (4) and no others. However desirable ·

and expedient it may appear to lie, none else shall be joined._.as

.. ·. ' - -

respondents. ' .

"

It is said, the Civil Procedure· Code . applies lo the trial, of

election petitions and so proper parties whose presenco may be

necessary in order to enable the Court' 'effectually and completely

to adjudicate upon and settle all questions involved' may' be joined

as respondents to the petitions .. The questions is not whether' the

Civil Procedure Code applies because it undoubtedly does, but only

'as far as may be' and subject to the provisions

of the

Representa·

tion of the People Act, 1951 and the. rules made _thereunder.

Sec. 87 (I) exepressly says so. The question is whether . the provi­

sions

.;-f

the Civil Procedure Code can be invoked to permit that

which ·the Representation of the People Act does not .. Quite

obviously the provisions

of the Code cannof

be.~so invoked .. • In

Mohan Raj 1' Surendra Kuma~ Taparia & Ors.,(

1

) _this Court held

ihat the undoubted power

of the

Court (i.e. the Election Court) to

permit an amendment

of the petition

i:anno't be uied to stiike ·out

allegations agairisi a candidate not joined as ll respondent so as to '.

save the election petition from dismissal for non·joinder of necessary ·

(I) (1969].l SCR 630 .•

L---~-~~---~-------

.~

I

_J

.-J

\.: ·. . _ .

-JYOTI BA_SU v:_DEEl GHOSAL (Chinmppa Reddy, J.) ---329 --

parties. It. was said, uThe Court can order an·_ amendment and

e'l'en strike out a party who is not necessary. Bui, where the Act

niakes a person a necessary _party _and -provides that the petition

shall be dismissed_ if such a party is not joined, the-_ power of

ame~ddient or to strike -out parties_ cannot be used at all. The -

Civil Procedure Co-de appiies subj~ct to the provisions ~Ube Repre'

s~ntation of th'e Pe~ple Act and any ruies made ihereunder: When

tlie Act enjoins_tlie penalty of dismissal of the petition for non­

joinder of a party the "provisions of 'ihe Civil Procedure Code

cannot be used asacurative means tci sa~e the petition."dAgain, in

K.' VenkatesH·ara _Rao &. Anr.' v. Bekkam Narasimha -Reddi and _­

Ors.,(1) it was o.bserVed :

"With regard . to the additi~n ~f parties -which

-is possible in the case of a· suit under tho· provisions of

0.1.r. 10 subject to the added party right •_to contend

that the suit a_s against· l.im -was -barred by limitation_

when he was added, no addition

of parties is possible in

the case of an election petition

· except under the -provi-

. sions __ of Sub-sec. (4) of Section 86".. -

The matter may be looked at froni another angle. · The

Parliament has expressly provided that an ·opportunity-should be

given to a person who is not a candidate "to -show cause against being

'named'. as

_one guilty of a

corrupt -practice. -Parliament however,

has not thought fit to expressly provide for his being joined as a

party to the election petition either by the election-petitioner or·-at -

the instance

of the very person against _whom

the· allegations or' a_

corrupt prac'.ice are 'made. The right given to the latter is limited to

show cause &gainst 'named' and that right opens up for exercise when, -

ai the end of the trial of the e'iection petition notice is given to him

to show_catise why he should not be 'named'. The right does not

extend to participation at all stages and

in all matters, a right which

he would have.

if he

is· joined as a party at the commencement.

Conversaly the election petitioner cannot by joini~g as a· respondent

a person who

is not a candidate at the

electior. subject him ·to a

prolonged trial

of

aQ election petition with all its intricacies and

ramifications.'> One· may· well imagine h~w ni'ischievous minded

persons may harass public per:sonages like the Prime MinisJer of,

(I) [1977] I SCR 679.

A

8

c

D

E

-.

G

' ...

A

B

c

D

E

F

-

! •• -

SUPREME COURT REPORTS (1982) 3 S.C.R.

the country, the Chief Miilister of a State or a political leader of_ a

national dimension by_· impleading :him as 'a party to election

petitions, all the country over, . All that would be_ necessary

is a · seemingly · · plausible . allegation, casually . ·or · · spitefully

made.-with"_ but a facade of tnith. Evecyone is familiar with

. S'!Ch allegations. To permit such _.a. public 'Personage . to,. be

impleaded as a party to an electiciu. petiti6n on the basis ~fa mere

aiiegation, "without ,even prime facie proof,~ an' allegation which

· "'may ultimately be found 10 be unfounded; can cause needless · vexa~

.. tion to such personage and prevent him from the effective discharge

of his public duties .. It would be against the public" interest to do

so .. The ultimate award of costs would be n"o panacea in such cases,

since the public mischief cannot be repaired. That is why · public

Policy and legislative wisdom both seem

to_ point

to an interpretation

of the provisions of the Representation of the People Act which does

not permit the joining,~. parties,•of persons other than those men­

tioned in, Sections 82 and 86 (4). It is not as i(a person guilty of a

corrupt practice can get away with· it. Where at the concluding

stage

of the trial of an election. petition, after evidence has

been

given, the Court finds that there is sufficient ·material to hold a

. person guilty

of a corrupt practice, the Court may then issue a notice

to him to show cause under

Sec. 99 and proceed with further action •

. 1n· our view the legislative provision contained in Sec. 99 which

. enables the Court, towards the end of tht> trial of an election petition,

to issue a notice to a person not a party to the proceeding to sh9w

cause why he should not be 'named' is sufficient clarification of the .

legislative intent that such person may not be permitied to be joined·

as a party to the election petit!on:

,

-G

· There is yet another view-point.· When in an election petition

_in addition to the declaration that the election of the returned can­

date is void a further declaration is sought that any candidate other

than the returned candidate has been duly elected, sec. 97 enables

the returned candidate or any other party to 'recriminate' le. to give

G ..... evidence to· prove that the e\ectia"n of such candidate would have

H

. beell ~oid if he had been a returned candidate and a petition had

been presented to question

his election. If a person who

is· not a

candidate but against whom allegations · of any c·orrupt practice are

made

is joined as a party to the petition then, by virtue of his

posi­

tion as a party, he would also be entitled to 'recriminate' under

sec. 97. ·Surely such a construction of the statute would. throw the_

!loors of an election petiti~n wide open and convert the petition into

..

JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 331

a 'free for all' fight. A necessary consequence would be an unending,

disorderly election dispute with no hope

of achieving the goal

contemplated

by

Sec .. 86 (6) of the Act that the trial of the election

petition should

be concluded in six months. It is just as well to

remember that 'corrupt practice'

as at present defined by

Sec. 123 of

the Act is not confined to the giving of a bribe but extends to the

taking

of a bribe too and, therefore, the number of persons who

may

be alleged to be guilty of a corrupt practice may indeed be very

large, with the consequence that all of them may possibly be joined

as respondents.

A

B

In view of the foregoing discussion we are of the opmton that

· C

no one may be joined as a party to aii election petition otherwise

than

as provided by

Sections 82 and 86 ( 4) of the Act. It follows

that a person

who is not a

candidlije may not be joined as a res­

pondent to the election petition. The appeal is therefore, allowed

wirh costs and the names of the appellants and the seventh· respon-

dent

in the appeal are directed to be struck out from the array of D

parties in the election petition. We may mention that in arriving at

our conclusion

we have also considered the

followi~g decisions . •

cited before us: S.B. Adityen .& Anr. v. S. Kandaswam{& Ors.,(')

Dwijendra Lal Sen (Jupta v. H~rekrishna Koner,(

2

)

H.R. Gokhale v.

Bharucha Noshir

C. & Ors., (

8

)

and S. Iqbal

Singh v. S. Gurdas Singh /

Badal & Ors.(

4

) E

.N.V.K.

(1) AIR 1958 Mad. 171.

(2),A.l.R. 1963 Cat. 218.

(3) A.l.R. 1969 Bom. 177.

(4) A.l.R. 1973 P & H 163.

Appeal allowed

•