No Acts & Articles mentioned in this case
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PETITIONER:
RAJ KRUSHNA BOSE
Vs.
RESPONDENT:
BINOD KANUNGO AND OTHERS.
DATE OF JUDGMENT:
04/02/1954
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
BOSE, VIVIAN
HASAN, GHULAM
CITATION:
1954 AIR 202 1954 SCR 913
CITATOR INFO :
F 1954 SC 587 (12)
F 1955 SC 425 (12)
R 1976 SC1207 (565)
ACT:
Constitution of India, arts. 136 and 226-Representation of
the People Act, 1951 (Act XLIII of 1951), ss. 33(2), 99,
105, 123 (8)-Order of the tribunal under s. 105 declared as
final and conclusive-Whether affects discretionary powers of
Supreme Court and High Courts under arts. 136 and 226-
Elected candidate nominated or seconded by Government
servant-Legal effect thereof Orders of tribunal, contents
of.
HEADNOTE:
(1) The unfettered discretionary powers conferred on the
Supreme Court and the High Courts by arts. 136 and 226 of
the Constitution respectively cannot be taken away or
whittled down by the legislature and therefore s. 105 of the
Representation of the People Act, 1951, which provides that
every order of the tribunal under the Act shall be final and
conclusive did not affect such powers.
(2) In view of the provisions of s. 16 of the
Representation of the People Act, 1950, and the provisions
of ss. 33 (2) and 123 (8) of the Representation of the
People Act, 1951, an election to a State Legislative
Assembly is not invalidated when the elected member is
either nominated or seconded or both by a Government servant
or servants.
(3) The Supreme Court recorded its disapproval of the way
in which the Election Tribunal shirked its duty and tried to
take a short cut in deciding only two of the twelve issues
framed and thus acted against the provisions of s. 99 of the
Act.
JUDGMENT:
CIVIL APPELLANTE JURISDICTION: Civil Appeal No. 239 of 1953.
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Appeal by special leave from the Order and Judgment dated
the 5th September, 1953, of the Election Tribunal, Cuttack,
in Election Case No. 5 of 1952.
S. B. Jathar for the appellant.
S. P. Sinha (R. Patnaik, with him) for the respondent.
1954. February 4. The Judgment of Mahajan C.J. Mukherjea,
Das and Ghulam Hasan JJ. was delivered' by Das J. Vivian
Bose J. delivered a separate judgment.
DAS J.-The question here is whether an election to
a State Legislative Assembly is invalidated when the
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914
member's nomination was either proposed or seconded, or
both, by a Government servant or servants.
The appellant was a minister in the State of Orissa. He was
nominated as a candidate for the Orissa Legislative Assembly
and was later declared to have been elected. One of his
rivals was the 1st respondent who filed an election petition
challenging the election on a number of grounds, among them,
the following.
The appellant had filed about two dozen nomination papers.
In five of them the proposer was a Government servant and in
four the seconder. The 1st respondent stated that this was
the first step in a scheme to get the assistance of
Government officers in furtherance of the appellant's
election and to "use and utilse" them "for the purposes of
the election." There were also other allegations Which we
need not consider here.
The appellant made counter allegations against the 1st
respondent, whom he had defeated, but they do not concern us
either.
The Election Tribunal framed twelve issues and examined 101
witnesses, but when it came to make its order it proceeded
to decide only two issues instead of deciding the whole
case. It held that as the proposers and seconders referred
to above were admittedly Government servants that
constituted a major corrupt practice and so invalidated the
election under section 123 (8) of the Representation of the
People Act, 1951 (No. XLIII of 1951). The other of the two
decided issues does not concern this appeal.
The appellant thereupon petitioned the High Court for a writ
of certiorari Under article 226 of the Constitution. The
High Court refused to interfere. The learned Judges held
that there was no want of jurisdiction in the tribunal and
that the tribunal's view of the law was a possible and
reasonable one , accordingly, as the High Court was not a
court of appeal from the tribunal, they were not called upon
to decide the question as a court of appeal.
The appellant was granted special leave to appeal by this
court against the order Of the Election Tribunal.
915
A question of 'great public importance affecting Government
servants is involved and we deem it right to examine the
question under our special jurisdiction under article 136.
The only sections we are called upon to consider are
sections 33 (2) and 123 (8). The former provides that-
"Any person whose name is registered in the electoral roll
of the constituency and who is not subject to any
disqualification mentioned in section 16 of the
Representation of the People Act, 1950 (XLIII of 1950) may
subscribe as proposer or seconder as man nomination papers.
as there are vacancies to be filled...
According to the latter-
"The obtaining or procuring or abetting...... by a candidate
or his agent or, by any other person with the 'connivance of
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a candidate or his agent, any assistance for the furtherance
of the prospects of the candidate's election from any person
serving under the Government of India or the Government of
any State other than the giving of vote by such person"
shall be deemed to be a major corrupt practice for the
purposes of the Act. A corrupt practice of this kind
entails disqualification for membership (section 140).
Section 33 (2) is general and confers the privilege of
proposing or seconding a candidate for election on every
person who is registered in the electoral roll provided be
is not disqualified under section 16 of the Act of 1950.
That section excludes three classes of persons but not
Government servants, unless of course they happen to fall
within those classes. Therefore, so far as section 33 (2)
is concerned, a Government servant is entitled to nominate
or second a candidate for election unless he happens to fall
in one of the three excluded categories. The question is
whether section 123 (8) takes away from Government servants
that which section 33 (2) gives to them. We do not think it
does.
Viewing the question as a plain matter of construetion, we
find that when section 33(2) was framed those
916
who passed it had in mind the desirability of excluding
certain classes of persons from its scope and they chose to
limit those classes to three. Therefore, in the absence of
express provision to the contrary elsewhere, or unless it
follows by necessary implication, the section must be
construed to mean that those not. expressly excluded are
intended to be included. As Government servants are not in
the excluded categories it follows that so far as this
section is concerned they are not disqualified from
proposing and seconding a candidate's nomination.
Now, does section 123 (8) contain express provision to the
contrary or can such provision be inferred by necessary
implication? It is usual, when one section of an Act takes
away what another confers, to use a non obstante clause and
say that "notwithstanding anything contained in section so
and so, this or that will happen", otherwise, if both
sections are clear, there is a head-on clash. It is the
duty of courts to avoid that and, whenever it is possible to
do so, to construe provisions which appear to conflict so
that they harmonise.
What exactly does section 123 (8) forbid? It is the
obtaining or procuring etc., of "any assistance.........
other than the giving of vote by such person." Therefore, it
is permissible for a candidate to canvass Government
servants for their votes and if a Government servant chooses
to reveal his hand it would be permissible for the candidate
to disclose the fact and use it in furtherance of his
election, for the law imposes no secrecy on the intentions
of those who, of their own free will, choose to say how they
intend to vote. They cannot be compelled to disclose the
fact and any improper attempt to obtain such information
would be a corrupt practice, but equally, they are not
completed to keep the fact secret if they do not wish to do
so; nor is the candidate. If therefore the law permits
this, we find it difficult to see how in the same breath it
can be said to have taken away the right expressly conferred
by section 33(2). The policy of the law is to keep
Government servants aloof from politics and also to protect
them from being imposed on, by those with
917
influence or in positions of authority and power, and to
prevent the machinery of Government from being used in
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furtherance of a candidate's return. But at the same time
it is not the policy of the law to disenfranchise them or to
denude them altogether of their rights as ordinary citizens
of the land. The balance between the two has, in our
opinion, been struck in the manner indicated above.
But though it is permissible for a candidate to go that far,
he cannot go further and if the procurement of Government
servants to propose and second a nomination is part of a
plan to procure their assistance for the furtherance of the
candidate's prospects in other ways than by vote, then
section 123(8) is attracted, for in that case, the plan, and
its fulfillment, must be viewed as a connected whole and the
acts of proposing or seconding which are innocent in
themselves cannot be separated from the rest.
Our conclusion on the preliminary issue may also be
supported on another ground. The major corrupt practice
referred to in clause (8) of section 123 consists in
obtaining or procuring or abetting or attempt to obtain or
procure by a candidate or his agent etc., any assistance for
the furtherance of the prospects of the candidate's election
from any person serving under the Government of India or the
Government of any State other than the giving of vote by
such person. In order, therefore, to bring a case within
the mischief of that clause the assistance must be for the
furtherance of the prospects of the candidate's election.
Section 79(b) defines a candidate as meaning
" a person who has been or claims to have been nominated as
a candidate at any election, 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 hold himself out as a
prospective candidate."
Unless, therefore, a case falls within the latter half of
the definition a person becomes a candidate under the first
part of the definition only when he has been duly nominated
as a candidate and the furtherance of
918
the prospects of a candidate's election must, therefore, in
such a case commence from after that stage. Although
evidence was adduced on both sides, there has been no
finding so far on questions of fact which may or may not
bring the case within the second part of the definition. In
the absence of such a finding the case must be regarded, for
the purpose of the preliminary issue, as governed by the
first part of the definition and as such the proposing and
seconding by a Government servant cannot be regarded as
"assistance for the furtherance of the prospects of the
candidate's election." In this view of the matter also, the
judgment of the Election Tribunal cannot be sustained.
We set aside the order of the tribunal and remit the case to
the Election Commission with directions to it to
reconstitute the tribunal which tried this case and to
direct the tribunal to give its findings on all the issues
raised and to make a fresh order.
Our power to make such an order was not questioned but it
was said that when the legislature states that the orders of
a tribunal under an Act like the one here shall be
conclusive and final (section 105), then we should not
interfere. It is sufficient to say that the powers
conferred on us by article 136 of the Constitution and on
the High Courts under article 226 cannot be taken away or
whittled down by the legislature. So long as these powers
remain, our discretion and that of the High Courts is
unfettered.
We wish to record our disapproval of the way in which this
tribunal shirked its work and tried to take a short cut. It
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is essential that these tribunals should do their work in
full. They are ad hoc bodies to which remands cannot easily
be made as in ordinary courts of law. Their duty under
section 99 is,
" where any charge is made in the petition of any corrupt or
illegal practice having been committed at the election"
to record
" a finding whether any corrupt or illegal practice has or
has not been proved to have been committed...and the,nature
of that corrupt or illegal practice."
919
Also,
" to give the names of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt or
illegal practice and the nature of that practice."
Their duty does not end by declaring an election to be void
or not because section 99 provides that in addition to that
" at the time of making an order under section 98the
tribunal shall also make an order etc........"
A number of allegations were made in the petition about
corruption and illegal practices, undue influence and
bribery. It was the duty of the tribunal not only to
enquire into those allegations, as it did, but also to
complete the enquiry by recording findings about those
allegations and either condemn or clear the candidate of the
charges made.
We make no order about costs.
Bose J.-I agree on all but one point. I have some doubt
about the reason given by my learned brother which is based
on the definition' of "candidate" in the Act. I prefer not
to express any opinion that one point.
Case remanded.
Agent for the appellant: Ratnaparkhi Anant Govind.
Agent for respondent No. 1 A. D. Mathur.
This analysis of Raj Krushna Bose v. Binod Kanungo delves into the intricate balance between the Representation of the People Act, 1951, and what constitutes corrupt election practices. This seminal 1954 Supreme Court judgment, now fully accessible on CaseOn, clarifies the legality of a Government servant proposing or seconding a candidate's nomination, a question of immense public importance that continues to resonate in Indian election law.
The case revolved around the election of Raj Krushna Bose to the Orissa Legislative Assembly. His victory was challenged by a rival, Binod Kanungo, before an Election Tribunal. The core of the challenge was that several of Bose's nomination papers were proposed or seconded by Government servants. The respondent argued that this amounted to obtaining assistance from government officials, a major corrupt practice under the election law.
The Election Tribunal, despite framing twelve distinct issues and examining over a hundred witnesses, took a 'short cut'. It decided only two issues, concluding that the involvement of Government servants in the nomination process was indeed a major corrupt practice under Section 123(8) of the Representation of the People Act, 1951. Consequently, it declared the election void. The appellant's subsequent writ petition to the High Court was dismissed, leading to this appeal before the Supreme Court of India by special leave.
The central legal question before the Supreme Court was: Is the mere act of a Government servant proposing or seconding a candidate's nomination form, in itself, a “major corrupt practice” under Section 123(8) of the Representation of the People Act, 1951, sufficient to invalidate an election?
The Court's decision hinged on the interpretation and harmonization of several key legal provisions:
The Supreme Court undertook a meticulous analysis to resolve the apparent conflict between the right granted under Section 33(2) and the prohibition under Section 123(8).
Firstly, the Court addressed the finality clause in Section 105 of the RPA, 1951. It held unequivocally that such a clause in a legislative act cannot take away or whittle down the unfettered discretionary powers conferred upon the Supreme Court and High Courts by the Constitution under Articles 136 and 226, respectively. This re-established the principle of constitutional supremacy over ordinary legislation.
The core of the analysis involved applying the principle of harmonious construction. The Court reasoned that Section 33(2) is a general provision conferring a specific right on every elector, including Government servants, to participate in the formal nomination process. Section 123(8), on the other hand, is a prohibitory provision aimed at preventing the misuse of the government machinery and the influence of officials to unfairly sway an election. The policy of the law is to keep Government servants aloof from politics in their official capacity, not to disenfranchise them or strip them of their basic rights as ordinary citizens.
The Court drew a fine line: the act of proposing or seconding is a formal, statutory act. It is not, in and of itself, the kind of “assistance for the furtherance of the prospects of the candidate's election” that Section 123(8) seeks to prohibit. Canvassing for votes is permissible, and if a Government servant chooses to reveal their voting intention, that is not a corrupt practice. Similarly, the formal act of nomination was deemed to fall outside the scope of the prohibited assistance.
However, the Court added a critical caveat. While an isolated act of proposing or seconding by a Government servant is innocent, it would be considered a corrupt practice if it were part of a larger, connected plan to procure the general assistance of Government servants for the election campaign. The act itself is not tainted, but the context and scheme behind it could be. Since the Tribunal had failed to examine the other ten issues, there was no finding of fact on whether such a larger scheme existed.
Analyzing such nuanced judicial reasoning can be complex. For legal professionals on the go, CaseOn.in offers 2-minute audio briefs that distill the core arguments and rulings of cases like this, making it easier to grasp key legal precedents.
Finally, the Supreme Court recorded its strong disapproval of the Election Tribunal's conduct. By deciding only two of the twelve issues, the Tribunal had shirked its statutory duty under Section 99 to give a finding on all alleged corrupt practices. This failure to conduct a full inquiry was deemed a dereliction of duty.
The Supreme Court concluded that an election is not invalidated merely because the elected member was nominated or seconded by a Government servant. Such an act is not, per se, a major corrupt practice under Section 123(8) of the RPA, 1951. The Court set aside the order of the Election Tribunal and remanded the case back to the Election Commission with directions to reconstitute the tribunal and decide all the original issues on their merits.
In essence, the Supreme Court's judgment established that the right of a Government servant to act as a proposer or seconder, granted under Section 33(2), is not automatically nullified by the prohibition against seeking assistance in Section 123(8). The Court harmonized these provisions, clarifying that only when such an act is part of a broader scheme to leverage official influence does it become a corrupt practice. The ruling also firmly established the supremacy of the constitutional powers of the higher courts over legislative finality clauses and criticized the Tribunal for its incomplete adjudication.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. For advice on any legal issue, please consult with a qualified legal professional.
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