Mootham, C.J.
1. This is a petition under Article 226 of the Constitution which raises two questions of election law of some importance.
2. The facts are these: Five persons, who are respondents Nos. 5 to 9, were candidates for election to the House of the People from the Luck-now District (Central) Constituency at a bye-election held on the 27th February, 1955. At this election Srimati Sheoraiwati Nehru was declared elected and thereupon Sri Triloki Singh, respondent No. 5, filed an election petition challenging the election of the successful candidate on a number of grounds, it being alleged that corrupt practices had been committed at the election.
3. On the 14th June. 1958, the Election Tribunal constituted to hear the petition served upon the petitioner who is a Minister in the Government of the Uttar Pradesh. a notice under the proviso to Section 99(1) of the Representation of the People Act. 1951. calling upon him to appear before the Tribunal and to show cause why he should not be named as a person who had been proved at the trial to have been guilty of the corrupt practice defined in Section 123 Clause (8) of that Act; namely that as an agent of Srimati Sheoraiwati Nehru he obtained or procured the assistance of a person serving under the State Government for the furtherance of the prospects of Srimati Sheorajwfti Nehru's election.
The petitioner was thereafter represented before the Tribunal which proceeded to record evidence as to whether the petitioner, and another person whom a similar notice had been issued, should be so named. A submission was then made by a learned counsel appearing for the petitioner that, as the latter was a member Of the State legislature, the Tribunal had not. In view of the provisions of Article 192 of the Constitution jurisdiction to proceed with its enquiry under Section 99 of the Representation of the People Act. and that the question whether the petitioner was disqualified for membership of the State Legislative Council was a matter for decision by the Governor to whom the question ought to be referred. The Tribunal rejected this submission by an order dated the 2nd August, 1956, and it is the validity of that order which is the subject of the present petition.
4. The order of the Tribunal has in this Court been attacked on two grounds. The first contention is that which was advanced before the Tribunal, namely that in view of the provisions of Article 192 of the Constitution the Tribunal has no jurisdiction to enquire into the question whether the petitioner has committed a corrupt practice, and the second is that the particulars of the act attributed to the petitioner do not to law amount to a corrupt practice.
5. In order to appreciate the argument en the first of these questions it is necessary to refer to certain provisions of the Representation of the People Act, 1951, as it stood prior, to its amendement by Act 27 of 1956, and of the Constitution Section 98 of the Act enumerates four alternative orders which may be made by an Election Tribunal at the conclusion of an election trial and Section 99 so far as is material, provided that.
'99. (1) At the time of making an order under Section 98 the Tribunal shall also make an order-
(a) Where any charge is made in the petition of any corrupt or illegal practice having been committed at the election, regarding-
(i) a finding whether any corrupt or illegal practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and (ii) 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..........
Provided that no person shall be named in the order under Sub-clause (ii) of Clause (a) unless-
(a) he has been given notice to appear be--fore the Tribunal and to show cause why he should not be so named;,.;....' Section 105 of the Act then provided that every order of the Tribunal made under the Act is to be final and conclusive, although under Section 107 an order under Section 98 or Section 99 shall not take effect until it is published in the Gazette of India. It thus clear that an election tribunal, where the commission of a corrupt or illegal practice is alleged in the petition, has imposed on it by law the duty, inter alia, of recording in its order-the names of all persons who have been proved at the trial guilty of any corrupt practice, and the nature of that practice.
6. Section 7 of the Act enumerates the circumstance upon the occurrence of which a person is disqualified from being chosen as, and for being a member of either House of Parliament or the Legislature of a State; and Clause (a) of this section, so far as is material provides that
'If ..... he has been ...convicted, or has inproceedings for questioning the validity or regularity of an election, been found to have been guilty of any offence or corrupt or illegal practice which has been declared by Section 139 or Section 140 to be an offence or practice entailing disqualification for membership of Parliament and of the Legislature of every State.......'.
Sections 139 and 140 read as follows:--
'139. (1) The following offences shall entail disqualification for membership of Parliament and of the Legislature of every State, namely:--
(a) offences punishable with imprisonment under Section 171E or Section 171F of the Indian Penal Code (Act XLV of 1860), and
(b) offences punishable under Section 135 or Clause (a)of Sub-section (2) of Section 138 of this Act,
(2) the period of such disqualification shall be six years from the date of the conviction for the offence.
'140. (1) The following corrupt or illegal practices relating to elections shall entail disqualification for membership of Parliament and of the Legislature of every State, namely-
(a) corrupt practices specified in Section 123 or Section 124 and
(b) Illegal practices specified in Section- 125.
(2) The period of such disqualification shall be six years in the case of a corrupt practice, and four years in the case of an illegal practice, counting from the date on which the finding of the Election Tribunal as to such practice takes effect under this Act.'
It follows therefore that, under the Act, a person is disqualified from being a member either of Parliament or of a State Legislature if he has been found guilty by an Election Tribunal of the corrupt practice specified in Section 123.
7. I turn now to the Constitution of which Arts. 191 and 192 need to be considered. Article 191(1) provides that a person shall be disqualified for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State -
'(a) If he holds any office of profit under the Government, of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by Law not to disqualify its holder;
(b) If he is of unsound mind and stands so declared bv a competent court:
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment or allegiance or adherence to a foreign State;
(e) If he is so disqualified by or under any law made by Parliament,' Article 192 enacts that
'(1) If any question arises as to whether a member of a House of the Legislautre of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.'
8. There is therefore no doubt that the question whether a member of a House of the Legislature of a State has become subject to any of the specified disqualifications has to be decided by the Governor acting on the opinion of the Election Commission. It is at this point that the first of the two questions we' have to determine arises, for it is the contention of the petitioner that the Governor has. In the case of a member to determine the precise question which, had it not been for Article 192, would have been determined by the Election Tribunal; namely whether it is established on such evidence as is produced that the petitioner is guilty of a corrupt practice. In the case of a member, the petitioner contends, the jurisdiction vested in the Election Tribunal under 6. 99 of the Act is wholly taken away.
9. In my judgment this argument is not well founded, and for reasons that can be stated shortly.
10. The question which the Governor has to decide under Article 192 is whether a member
'has become subject to any of the disqualifications mentioned in Clause (1) of Article 191', and the disqualification with which we are concerned is that mentioned in Clause (e) of Article 191(1), namely that the member is so disqualified by or under any law made by Parliament.'
Now the only Act of Parliament which is relevant is the Representation of the People Act, 1951, and as we have seen a member is not disqualified under Section 7, Clause (a) of that Act unless, in proceedings for questioning the validity or regularity of an election, he has been found to have been guilty of an offence or a corrupt or illegal practice which has been declared to entail disqualification.
In other words a person is disqualified under the Constitution from being chosen as of for being a member of the Legislature of the State if he is disqualified under an Act of parliament. He is not disqualified under the former unless he is disqualified under the latter.
He is disqualified under the Constitution because he is disqualified under the Act; & as his disqualification under the Act does not occur until he has been found guilty of an offence or of a corrupt or illegal practice entailing disqualification, the question of his disqualification under the Constitution does not arise unless and until his guilt has been established by the appropriate tribunal. The only question therefore which the Governor has to decide under Article 192, where the alleged disqualification is under Clause (e) of Article 191(1), is whether the member has been disqualified bv virtue of an order made by a validly constituted Tribunal under Section 99 of the Act.
11. It may be said that on this view of the matter there is nothing left for the Governor to decide. This objection has some force but it is not in my opinion a fatal objection. If the member were to contend, for example, that the Election Tribunal was not validly constituted the question whether its constitution was valid or not would probably be a matter for the Governor to , decide.
But an examination of the grounds mentioned in Article 191(1) upon which a person is disqualified shows that the duty imposed upon the Governor varies widely. If the alleged disqualification is under Clauses (a) or (d) the Governor may have to decide questions of law or fact of some, complexity, but if the disqualification is under Clause (b) or (c) the task imposed upon the Governor is little more than formal.
12. The correctness of the view which I take is, I think, supported by two considerations. Consider, first, the position which will arise if a member is charged, not with the commission of a corrupt practice, but with one of the offences specified in Section 139 of the Act. Who is to determine whether the member is guilty of the alleged offence? The petitioner says that; as a conviction will entail disqualification the question of the member's guilt can be determined only by the Governor under Article 192
The proposition has in my opinion only to be stated to be rejected, An offence specified in Section 139 can be tried only by a criminal court, and even if the Governor had the power to record a conviction it is the conviction which is the ground for disqualification, if there is no conviction there is no disqualification under the Act, and therefore no disqualification under the Constitution.
13. I can see no essential difference between disqualification as 'a consequence of a member's conviction by a magistrate of an offence specified in Section 139 and a consequence of the finding by an Election Tribunal that a member is guilty of a corrupt or illegal practice mentioned in Section 140. Sri Kanhaiyalal Misra has argued that the question of the member's disqualification is not directly before the Magistrate whereas it is before the Election Tribunal. Even if a member is convicted by a magistrate, the Governor, it is contended, can say that there is no disqualification.
I am unable to accede to this argument. Neither the magistrate nor the Tribunal is directly concerned with the question of the disqualification of the member, the former is concerned with the question whether the member is guilty of an offence, the latter with whether he is guilty of a corrupt or illegal practice. In both cases the disqualification follows as a matter of law upon the finding of guilty.
14. The second consideration is that Section 99 of the Act imposes on the Election Tribunal an obligation to make an order recording a 'finding. Under Section 106 the Election Commission is required to cause an order under Section 99 to be published in the Gazette of India, and under Section 107 it is only from the date of publication that such an order will take effect. Under Sub-section (2) of Section 140 the period of disqualification in the case of a corrupt practice is six years from the date upon which the finding of the Election Tribunal as to such practice takes effect -- that is, from the date of its publication in the Gazette.'
How is effect to be given to these provisions if the petitioner's contention be correct? Learned counsel sought to answer this question by saying that it would be the duty of the Governor to send a copy of his finding under Article 192 to the Election Tribunal which would thereupon record a similar finding as its own finding under Section 99 and submit it to the Election Commission under Section 106. I can see nothing in the Act or the Constitution to Justify the view that such was the ' intention of the Legislature.
15. In my judgment the Election Tribunal rightly rejected the first of the submissions made on behalf of the petitioner.
16. The second question is one of some difficulty. Section 123, Clause (8) of the Act designated as a corrupt practice
'the obtaining or procuring or abetting or attempting to obtain or procure by 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.'
I omit the explanation which is not material for the present purpose.
17. Now the allegation against the petitioner is
'That you agent of Smt. Sheorajwati Nehru, respondent No. 1, obtained or procured or attempted to obtain and procure the assistance of your Personal Assistant, Sri Shri Krishna a person serving under the Government of the State of U.P. for the furtherance of Smt. Sheorajwati Nehru's election by getting your appeal (copy of which is Ext. 26) typed, attested and issued to the Press.'
It is not in dispute that the word 'attested' here means authenticated. Evidence was recorded by the Election Tribunal as to the circumstances in which the appeal in question was issued. The petitioner's case is that he wrote the appeal in his own hand and signed it, without however adding his designation or office; that he then gave the paper on which the appeal was Written to an office peon to deliver to his Personal Assistant with instructions to communicate it to the press by telephone; that his Personal Assistant on finding that the press was unwilling to act on the telephone message had typed copies of the appeal made and for purpose of authentication added, after the petitioner's signature the words and figures
'Minister for Finance! & Power, U.P.
Lucknow:
February 19, 1955.
Attested,
Sri Krishna.
and thereafter sent the copies to the Press; andthat in so doing the Personal Assistant acted, onhis own responsibility and without reference tothe petitioner. The correctness of certain ofthese assertions is denied, by respondent No. 5 andthe Tribunal has as yet recorded no finding onthe matter.
18. The policy of the law embodied in Section 123, Clause (8) of the Act is, broadly, to keep Government servants aloof from politics and to prevent the machinery of Government being used in furtherance of a candidate's return; Raj Krushna Bose v. Binod Kanungo, 1954 SCR 913: (AIR 1954 SC 202) (A). It is not every act which is done by a Government servant at the instance of candidate or his agent which comes within the ambit of this clause even though it may result in the furtherance of the former's election, for, were that so a candidate would be unable to utilise the services of the post office to deliver copies of his election, address or of the railway service to travel to a place where he wants to make an election speech.
19. What in my judgment is being struck at by this clause is the furtherance of a candidate's election by the obtaining or procuring the assistance of a Government servant because the latter is a Govt. servant. I do not think that the mere rendering of assistance to a candidate (at the latter's request), by a Government servant, even though that assistance furthers the election prospects of that candidate, necessarily falls within the mischief which this clause is designed to prevent. To take an example; a candidate on his way to the railway station for the purpose of traveiling to a nearby town where he is due to make an important election speech. His car breaks down and he stops the first car which comes along and obtains a lift.
It happens that the driver of the car is, and is known by the candidate to be, a Government servant. Has the candidate been guilty of a major corrupt practice?. If the assistance which he has obtained is merely that of being taken to the station and nothing more I, think the answer must be in the negative, for the candidate's request was in no way motivated by the fact that the driver was a Government servant.
If however the break-down of the candidate's car was a subterfuge and his subsequent arrival at the station in the other vehicle was a part of plan to convey the impression to the public that his candidature had official support, then clearly, in my view, a corrupt practice has been committed. Support for this view is I think to be obtained from Raj Krushna Bose's case (A).
In that case the Supreme Court held that a candidate may obtain the assistance of a Government servant by requesting the latter to propose or second his nomination, that being in itself an innocent act; but if the procurement of a Government servant to propose a nomination is part of a plan to further the candidate's prospects of election in other ways than by the votes of the Government servant, Section 123, Clause (8) will be attracted.
20. If this be the correct way of interpreting Clause (8) the question is whether the petitioner, when he sent the manuscript of his appeal to his Personal Assistant with instructions (as alleged in the charge) to type, authenticate and issue it to the Press, did so because his Personal Assistant was a Government servant; or put in other words, did he do so because he wanted to make capital -- if I may use the expression --out of the fact that the appeal was being sent to the press by a Government servant? Unless that question can be answered in the affirmative I am of opinion that the facts alleged do not amount to the corrupt practice defined or described in Section 123 Clause (8).
21. Now it is not asserted in the affidavit filed on behalf of respondent No. 5 -- the only contesting respondent -- nor has it been suggested in argument, that the petitioner had any such intention. Indeed I think it is not in dispute that the petitioner sent the paper containing the appeal to his Personal Assistant in the normal course of his office practice. I am therefore of the opinion that the question I have formulated must be answered in the negative and in consequence the charge which the petitioner has been called upon to-answer does not amount to a corrupt practice.
21a. I would accordingly allow the petition and direct the issue of a writ of prohibition requiring the Election Tribunal to forbear from proceeding further with the enquiry into the question whether the petitioner was guilty of a corrupt practice as alleged in its notice to the petitioner dated the 14th-June 1956. In the circumstances I would direct the parties to bear their own costs.
Mukherji, J.
22. I have had the advantage of reading the opinion in this case of my Lord the Chief Justice and I am in agreement with his opinion. I also agree with him in regard to the order which should be passed in this case.
23 In this petition two important questions of election law arose for determination. In regard to the first question, namely, whether the Election Tribunal was competent, in view of the provisions of Article 192 of the Constitution, to enquire into the question whether the petitioner had committed a corrupt practice within the meaning of the Representation of the People Act, 1951. I do not think I can usefully add anything to what has already been said by my Lord the Chief Justice in his opinion, but in regard to the second question, namely, whether the particulars of the act attributed to the petitioner do or do not, in law, amount to a corrupt practice, I wish to add a few words of my own.
24. Section 123(8) lays down that the obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the connivance of 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 would amount to a major corrupt practice.
In my opinion the words of the sub-section indicate that the obtaining and procuring of the assistance of the Government servant has to be with the object or with the intention of furthering the prospects of a candidate's election and further that this assistance which is taken of the Government servant must be taken because the individual happens to.be a Government servant, which fact or circumstance was likely, in the opinion of the person who obtained the assistance, to influence the prospects of the election.
25. The intention of the framers of Section 123, Sub-section (8) appears to have been to keep Government servants, in their capacity as such, out or politics and out of, so to speak, electioneering tactics. In my view, unless the assistance of a Government servant is taken because he was a Government servant with the intention of furthering the election prospects in some manner the mere taking of assistance of a Government servant is not enough to attract the provisions of the sub-section.
Every Government servant has a personality apart from his official personality and the intention is not to keep this 'private personality', so to speak, from acting in elections or rendering assistance to candidates in their private capacity without involving in that assistance their official personality in any manner.
26. In the case of 1954 SCR 913 at p. 917: (AIR 1954 SC 202 at pp. 203-204) (A) there is a significant passage which, I think, supports the view that I have taken, namely, that what is penalised by Section 123(8) Is the intention of the candidate or his agent to use governmental machinery or the Government servant's influence in furthering the prospects of an election. The passage on which I rely is in these words;
'But though it is permissible for a candidate to go that far (and that far has been indicated by their Lordships in the preceding paragraph to the one that I am quoting) 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' (the underlining (here into ' ') Is mine) for the furtherance of the candidate's prospects in other way than by vote, then Section 123(8) Is attracted, for in that case the plan, and its fulfilment, 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.'
It is not, therefore, every act which is done by a Government servant at the instance of a candidate or his agent which comes within the mischief of Sub-section (8) of Section 123, even though it may incidentally result in furthering the election of a candidate in some form, for if that were so, then a candidate or his agent would, in my opinion, be unable to utilise the utility services run by Government like the post-offices, or the railways, or the bus transport services.
BY THE COURT:
27. We allow the petition and direct the issue of a writ of prohibition requiring the Election. Tribunal to forbear from proceeding further with the enquiry into the question whether the petitioner was guilty of a corrupt practice as alleged in its notice to the petitioner dated the 14,th June 1956.
28. The parties will bear their own costs.
(Note:-- Judgment was delivered by M. H. Kidwai J. on the 21st. December, 1956 in the absence of the Hon'ble the Chief Justice and the Hon'ble B. Mukerji J.).