RAMA KANT PANDEY v. UNION OF INDIA

The Judgment of the Court was delivered by B SHARMA, CJ. By the present application under Article 32 of the Constituion of India, the petitioner has challenged the constitutional validity of the Representation of the People (Amendment) Ordinance, 1992 (Ordinance No.1 of 1992) and the Representation of the people (Second Amendment) Ordinance, 1992 (Ordinance No.2 of 1992), on the C grounds of violation of Articles 14, 19 and 21. By the first Ordinance, section 52 of the Representation of the People Act, 1951 (the Act) provid- ing for countermanding elections in certain circumstances has been amended. By the second Ordinance the period of 20 days in section 30 of the Act has been reduced to 14 days. Later, when the Parliament met, the i) amendments were incorporated by an amending Act.

2Copy pinpoint2. The provisions of section 52, as they stood before the amendment, provided for countermanding the election in either of 2 contingencies - (i) if a candidate whose nomination was found valid on scrutiny under section 36 or who has not withdrawn his candidature under section 37 died and a E report of his death was received before the publication of thd list of contesting candidates under section 38, (ii) if a contesting candidate died and a report of his death was received before the commencement of the poll. On countermanding the Returning Officer will have to report the fact to the Election Commission; and all proceedings with reference to the election will have to be commenced de novo in all respects as if for a new election. By the first Ordinance, the area attracting the provisions of contermanding has been narrowed down by confining the provisions only to such cases where a candidate of a recognized political party dies.

3Copy pinpoint3. Section 30 deals with appointment of dates for nomination, scrutiny and the holding of poll, and in clause (d) it is provided that the date of poll shall not be earlier than the twentieth day after the last date for the withdrawal of candidatures. With a view to expedite the whole process the words "twentieth day" have been substituted by the words "fourteenth day" in the said clause by the impugned Ordinace. H

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4Copy pinpoint4. Learned counsel for the petitioner has strenuously contended that the distinction made by the impugned amendment between a candidate set .UP hy a recognised. political party and any other candidate is artificial, inconsistent with the spirit of the election law and discriminatory. The Constitution does not confer on a candidate set up by a registered political B party any special right, and treats all candidates similarly. It does not recognize any ·categorisation. It is, therefore, argued· that tbe difference which is being introduced by the impugned amendment is contrary to the scheme of the Constitution and violative of the equality clause in Article

14. According to the learned counsel, this will also infringe the guarantee under Article 19(1)(a) in respect of freedom of speech and expression. c

5Copy pinpoint5. Elaborating his argument, the learned counsel contended that the right to choose its representative belongs to the voters of a particular constituency, and this should not be whittled down by amendments which have a tendenr,y to undermine this element. Lack of wisdom in giving importance to recognized political parties was emphasised by saying that such parties almost always impose their choice of candidates in tbeir own int.erest and at the cost of the welfare of the constituencies. By introducing this imbalance in the Act, it is slated, the republican character of tbe Constitution is jeopardised. The sum and substance of the argument on behalf of the petitioner is that no distinction can be made between one candidate and another purely depending on recognition as a political party.

6Copy pinpoint6. So far the second Ordinance is concerned, the objection is that the period of 14 days, substituted by the amendment, is too short and the reduction from the period of 20 days is arbitrary and prejudicial to the larger interest for which elections are held.

7Copy pinpoint7. in reply, Mr. Altaf Ahmad, Additional Solicitor General, appear- ing on behalf of the Union of India has strongly relied upon the statements made in the counter affidavit filed on behalf of tbe respondent stating that on account of increase in terrorism and physical violence in several parts of the country combined v,ith the phenomenal increase in the number of independent candidates, the danger of disruption of the ~lection process has been fast growing and the prnblem was, therefore, taken up for serious consideration. The issue was examined by the Electoral Reforms Commit- H tee set up in 1990 under the Chairmanship of the then Minister of law and

RAMA KANT v. U.0.1. [SHARMA, CJ.) 791

Justice, late Dinesh Goswami. After studying the problem deeply and A considering various points of view presented in this regard the· Committee made its recommendation and, accordingly, the impugned amendment was made. Explaining the mgency of introducing the amendment by an Or- dinance (when Parliament was not in session) the counter-affidavit states that it had then been decided to hold the General Ele.ctions to the House of People from the State of Punjab as also the election to the State B Legislature of that State and having regard to the law and order situation prevailing in the State, it was considered essential to curb the danger of disruption of the election process by amending section 52 immediately. With the same object in view, the period of 20 days mentioned in section c - 30 was substituted by 14 days.

8Copy pinpoint8. Before proceeding to examine the merits of the argument ad- dressed on behalf of the petitioner it will be usefui to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right. In England also it has never been recognised as a _common D law right. In this connection, we may usefully refer to the following obser- vations in Jyoti Basu & Others v. Debi Ghosa/ & Others, A.1.R.1982 S.C.983 and 986 which reads as under :

'The nature of the right to ele<;t, 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. Ponnus- wami v. Returning Officer, Namakkal Constituency, [1952) SCR 218 : AIR 1952 SC 64 and Jagan Nath v. Jaswant Singh, AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as neces- sary for this case.

A right to· elect, fundamental though it is to democracy, is, anomalously ·enough, neither 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 an 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." H

792 SUPREME COURT REPORTS (1993) l S.C.R.

A The objection raised by the petitioner, therefore, must be examined in this background.

IJ.. The challenge of the petitioner is directed against the differential treatment which the election law in India gives to candidates set up by political parties. The main thrust of the argument of the learned counsel B is that the party system and the recognition of political parties is itself detrimental to the cause of real democracy. In any event, no additional advantage ought to have been allowed to candidates set up by political parties. This stand runs counter to the constitutional scheme adopted by the nation. It has firmly been established that the Cabinet system of c - Government has been envisaged by our Constitution and that the same is on the British pattern. (See Shamsher Singh v. St<Ue of Punjab, (1975) 1 SCR 814 at 827). In England where democracy has prevailed for longer than in any other country in recent times, the Cabinet system of Govern- ment has been found to be most effective. In the other democratic D countries also the party system has been adopted with success. It has been realised that for a strong vibrant democratic Government, it is necessary ~- to have a parliamentary majority as well as a parliamentary minority, so that the different points of view on controversial issues are brought out and d~bated on the floor of the Parliament. This can be best achieved by the party system, so that the problems of the nation may be discussed, con- E sidered and resolved in a constructive spirit. To abolish or ignore the party system would be to permit a chorus of discordant notes to replace an organised discussion. In his book "Cabinet Government" (2nd Edition page 16) Sir Ivor Jennings has very rightly said. ·'Party warfare is thus essential to the working of the democratic system". It is, therefore, idle to suggest F that for establishing a true democratic society, the party system should be ignored. Our Constitution has clearly recognized the importance of this system, which was further emphasized by the addition of the 10th Schedule .....__ to it. The Election Symbols (Reservation and Allotment) Order is also a step in that very direction.

10Copy pinpoint10. There is also no merit whatsoever in the contention that can- didates set up by political parties should not receive any special treatment. The fact that candidates set up by political parties constitute a class separate from the other candidates has been recognized by this Court in numerous cases. In paragraph 14 of the judgment in the case of Dr. P.N. H Thampy Terah v. Union of India, (1985) Suppl. SCC 189, the Constitution

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Bench observed thus :- A "It is the political parties which sponsor candidates, that are in a position to incur large election expenses which often run into astronomical figures. We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses, is so un- B reasonable or arbitrary as to justify the preference being struck down upon that gournd." ~- In D.M.L. Agarwal v. Rajiv Gandhi, [1987] Suppl. SCC 93 a Division Bench of this Court took note of and emphasized the vital role of political parties in a parliamentary form of democracy and anxiety was expressed C about the growing numb.er of independent candidates.

11Copy pinpoint11. For the reasons indicated above, we do not find any substance in the argument of the learned counsel for the petitioner challenging the constitutional validity of the impugned amendment of section 52. The D argument against the reduction of the period of 20 days to 14 days in section 30 is equally without any merit. The learned counsel could not suggest any good reason for holding that the period of 14 days would be inadequate or inappropriate, especially in the changed circumstances which are prevailing in the country. Consequently, this writ petition is dismissed with costs assessed at Rs. 2,500 payable to the respondent Union E of India.

N.V.K. Petition dismissed.