Supreme Court of India
Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982
Equivalent citations: 1982 AIR 983, 1982 SCR (3) 318, AIR 1982 SUPREME COURT 983, 1982 (1) SCC 691, (1982) 3 SCR 318 (SC), (1982) IJR 57 (SC), 1982 UJ (SC) 186, (1982) 1 SCJ 245
Author: O. Chinnappa Reddy
Bench: O. Chinnappa Reddy, R.S. Pathak
PETITIONER:
JYOTI BASU & OTHERS.
Vs.
RESPONDENT:
DEBI GHOSAL & OTHERS.
DATE OF JUDGMENT26/02/1982
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
PATHAK, R.S.
CITATION:
1982 AIR 983 1982 SCR (3) 318
1982 SCC (1) 691 1982 SCALE (1)115
CITATOR INFO :
F 1983 SC1311 (7,16)
R 1984 SC 135 (8)
RF 1985 SC 150 (26)
E 1985 SC1133 (20)
F 1987 SC1577 (14)
ACT:
Representation of the People Act 1951, Ss. 82 and 86
(4) Election Petition-Parties to-Who are-Corrupt practice
alleged against person who is not a candidate-Such person
whether can be impleaded as respondent.
Election Law-Right to elect-Neither fundamental right
nor Common Law right-Statutory right subject to statutory
limitations.
Code of Civil Procedure 1908 Or.1 r. 10-Concept of
'proper parties'-Applicability of to election petitions.
HEADNOTE:
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 elector of the
constituency, and by none else. Section 82 clause (a)
provides that the petitioner in an election petition 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 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 candidate not
already a respondent to be joined as respondent.
The first appellant 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 Court questioning the
election of the second respondent to the House of the
People. It was averred in the election petition 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 the 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 the High Court to strike out
their names from the array of parties in the election
petition. It was dismissed on the ground that the appellants
were proper parties to the election petition and therefore
their names could not be struck out of the array of parties,
319
In the appeal to this Court, it was contended on behalf
of the appellants that the concept of a proper party was not
relevant in election law and that only those persons could
be impleaded as parties who were expressly directed to be so
impleaded 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 respondent it was submitted
that the appellants were proper parties to the election
petition and their presence was necessary for a complete,
final and expeditious decision on the questions involved in
the action.
Allowing the Appeal,
^
HELD: 1. No one can be joined as a party to an election
petition otherwise 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]
In the instant case the names of the appellants and the
7th respondent in the appeal are directed to be struck out
from the array of parties in the election petition. [331 D]
2. A right to elect, fundamental though it is to
democracy, is, anomalously neither a fundamental right nor a
Common Law Right. It is a statutory right. So is the right
to be elected, and 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. 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 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 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. [326
F-H; 327 A-B]
3. The contest of the election petition is designed to
be confined to the the candidates at the election. All
others are excluded. The ring is closed 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 petition, it does not oblige 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 under
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-C]
320
5. The concept of `proper parties' is and must 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 D]
6. The provisions of the Civil Procedure Code cannot be
invoked to permit that which the Representation of the
People Act 1951 does not permit. The Civil Procedure Code
applies subject to the provisions of the Representation of
the People Act 1951 and any rule 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-C]
Mohan Raj v. Surendra Kumar Taparia & Ors. [1961] 1 SCR
and R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi &
Ors. [1969]1 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 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 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'. 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. [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 trial of an election petition
with all its intricacies and ramifications. [329-G]
(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 spitefully 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 cause needless vexation to sush 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 no panacea in such cases, since the
public mischief cannot be repaired. Public Policy and
legislative wisdom both point to an interpretation that the
provisions of the Representation of the People Act 1951 does
not permit the joining, as parties of persons other than
those mentioned in sections 82 and 86 (4). [329 H; 330 A-D]
321
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 notice to a person not a party
to the proceedings to show cause why he should not be
'named' is a sufficient clarification of the legislative
intent that such person may not be permitted to be joined as
a party to the election petition. [330 E-F]
9 (ii) If a person who is 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. Such 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-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : 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 for Respondent No. 1.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The first appellant, Jyoti Basu, 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 Parliamentary 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 filed an election petition in the High Court of 322 Calcutta questioning the election of the second respondent Mohd. Ismail on various grounds. He impleaded the returned candidate as the first respondent, and the other three unsuccessful candidates respondents 2, 3 and 4 to the election petition. Besides the candidates at the election, he impleaded several others as respondents. The District Magistrate and Returning Officer was impleaded as the fifth respondent, Buddhadeb Bhattacharya, the Minister for Information and Publicity, Government of West Bengal as the sixth respondent. 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 respondent. It was averred in the election petition that the Chief Minister and the other Ministers of the Government of West Bengal who were impleaded 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 petitioner was not entitled to implead them as parties to the election petition. 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 filed an application before the High Court of Calcutta to strike out their names from the array of parties in the election petition. The application was dismissed by the Calcutta High Court on the ground that the applicants (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.
Shri Somnath Chatterjee, learned counsel for the appellant submitted that the concept of a proper party was not relevant in election law and that only those persons could be impleaded as parties who were expressly directed to be so impleaded by the Representation 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 appellants were proper parties to the election petition and their presence was 323 necessary for a complete, final and expeditious decision on the questions involved in the action.
To properly appreciate the rival contentions it is necessary to refer to the relevant provisions of the Constitution of India and the two Representation of the People Acts of 1950 and 1951.
First the Constitution. Part XV deals with elections. Art. 324 vests in the Election 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 Legislature of a State, if Parliament has not made such legislation, to make laws with respect to all matters relating to elections to the Houses of the Legislature of the State. Art. 329 bars interference by Courts in electoral matters and clause (b), in particular, 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 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 324 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 jurisdiction to try an election petition. Sec. 81 provides for the presentation of an election petition on one or more of the grounds specified in Sec. 100 (1) and Sec. 101 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 respondents 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 declaration 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. Sec. 84 provides that a petitioner may, in addition to claiming a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Sec. 86 deals with trial of election petitions. Sub-Sec. (4) provides for an application by a candidate who is not already a respondent to be joined as a respondent. It is in these terms:
"(4) Any candidate not already a respondent shall, upon 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:
325"87 (1) 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 discretion 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 witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition".
Sec. 90 enables the returned candidate or any other party to 'recriminate' 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 High Court at the conclusion of the trial of an election petition. It provides that the High Court shall make an order dismissing 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 has 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 proved at the trial to have been guilty of corrupt practice and the nature of that practice. The proviso to Sec. 99 (1), however, prescribes that no person who is not a party to the petition shall be named in the order unless he had been given notice to appear before the High Court to show cause why he should not be so named 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 326 defence and of being heard. 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 candidate void in cases where corrupt practices are proved, where such 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 practice 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 been materially affected. Sec. 101 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 to the Court to be substituted as a petitioner in place of the party withdrawing. Sec. 112 (3) provides for the continuance of the election petition on the death of the sole petitioner in an election petition or of the survivor of several petitioners, by any person who might himself have been a petitioner and who applies for substitution within the stipulated 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.,(1) and Jagan Nath v. Jaswant Singh.(2) We proceed to state what we have gleaned from what has been said, so much as necessary 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. 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 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 election 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 1951 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 complete 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. The 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 does 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 himself or any other candidate 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 no other provision dealing with 328 question as to who may be joined as respondents. It is significant that while clause (b) of Sec. 82 obliges the petitioner to join 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 candidate 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 against him. It is clear that the contest of the election petition is designed to 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 the picture at all ? We think that the concept of 'proper parties' is and must 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 Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.
It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence 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 Representation of the People Act, 1951 and the rules made thereunder. Sec. 87 (1) expressly says so. The question is whether the provisions of 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 cannot be so invoked. In Mohan Raj v. Surendra Kumar Taparia & Ors.,(1) this Court held that the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non- joinder of necessary 329 parties. It was said, "The Court can order an amendment and even strike out a party who is not necessary. But where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. 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." Again, in K. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi and Ors.,(1) it was observed:
"With regard to the addition of parties which is possible in the case of a suit under the provisions of O.l r. 10 subject to the added party right to contend that the suit as against him was barred by limitation when he was added, no addition of parties is possible in the case of an election petition except under the provisions of Sub-sec. (4) of Section 86".
The matter may be looked at from 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 of a corrupt practice are made. The right given to the latter is limited to show cause against 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause 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. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of 330 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 the country over. All that would be necessary is a seemingly plausible allegation, casually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. 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 prime facie proof, an allegation which may ultimately be found to be unfounded, can cause needless vexation 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 no 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, as parties, of persons other than those mentioned in Sections 82 and 86 (4). It is not as if 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. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.
There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candate 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' i.e. to give evidence to prove that the election of such candidate would have been void 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 corrupt practice are made is joined as a party to the petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert the petition into 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.
In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is therefore, allowed with costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of parties in the election petition. We may mention that in arriving at our conclusion we have also considered the following decisions cited before us: S.B. Adityen & Anr. v. S. Kandaswami & Ors.,(1) Dwijendra Lal Sen Gupta v. Herekrishna Koner,(2) H.R. Gokhale v. Bharucha Noshir C. & Ors.,(3) and S. Iqbal Singh v. S. Gurdas Singh Badal & Ors.(4) N.V.K, Appeal allowed 332