SUPREME COURT OF INDIA* Civil Appeals Nos. 887 and 909 of 1975$ (Decision dated 7-11-1975) In C.A. No. 887 of 1975 Smt. Indira Nehru Gandhi ..Appellant Vs. Shri Raj Narain ..Respondent In C.A. No. 909 of 1975 Shri Raj Narain ..Appellant Vs. Smt. Indira Nehru Gandhi ..Respondent SUMMARY OF THE CASE Smt.Indira Nehru Gandhi was elected to the House of the People from Rae Bareli Parliamentary Constituency in March, 1971. Her election was challenged by one of the rival candidates Shri Raj Narain, before the Allahabad High Court by an election petition. The High Court, by its judgment and order dated 12.6.1975, allowed the election petition and declared the election of Smt. Indira Nehru Gandhi as void. The High Court held that Smt. Gandhi had procured assistance of Shri Yashpal Kapoor, a Gazetted Officer of the Government of India, the District Magistrate and Superintendent of Police, Rae Bareli, the Executive Engineer, PWD, and the Engineer, Hydel Department, for her election campaign and had thus committed corrupt practices under Section 123 (7) of the Representation of the People Act, 1951. Aggrieved by the order of the Allahabad High Court, Smt. Indira Nehru Gandhi filed the present appeal before the Supreme Court. A cross-appeal was also filed by Shri Raj Narain. During the pendency of these appeals, Parliament passed the Election Laws (Amendment) Act, 1975. By this Amendment Act, several provisions of the Representation of the People Act, 1951 were amended retrospectively. Further, Parliament also passed the Constitution (Thirty-ninth Amendment) Act, 1975. By this Amendment Act, a new Article 329-A was inserted into the Constitution to provide, inter alia, that the election to Parliament of a person, who holds office of Prime Minister or Speaker of the Lok Sabha at the time of such election or is appointed as Prime Minister or Speaker after such election, shall be called in question only before a specially prescribed authority [and not before the High Court under Article 329 (b) of the Constitution]. Furthermore, by the said Amendment Act, Parliament also validated the election of Smt. Indira Nehru Gandhi. The validity of the above mentioned two Amending Acts also became subject matter of the present appeals. One of the grounds of attack on the validity of these Acts was that many members of Parliament were subjected to preventive detention after the Proclamation of Emergency in June, 1975 and, therefore, these Acts had not been validly passed by Parliament in their absence. The Supreme Court, in the present appeals, upheld the validity of the Election Laws (Amendment) Act, 1975 and also the validity of the Constitution (Thirty-ninth Amendment) Act, 1975, except that part of the latter Act whereby Parliament had validated the election of Smt. Indira Nehru Gandhi. Applying the law, as amended retrospectively by the aforesaid Election Laws (Amendment) Act, 1975, the Supreme Court upheld the election of Smt. Indira Gandhi to the House of the People, allowing her appeal, and rejecting the cross–appeal of Shri Raj Narain. (A) Election Laws (Amendment) Act 40 of 1975), Pre. – Constitution (Thirty-ninth Amendment) Act (1975), Pre. – constitutional validity of – cannot be challenged on ground that a number of Members of Parliament were in detention –(Constitution of India, Arts. 85 and 122). Per Ray, C.J. : – The constitution of the House which passed the Constitution (Thirty-ninth Amendment) Act is not illegal on the ground that a number of members of Parliament of the two Houses were detained by executive order after 26 June, 1975. It has also to be stated that it is not open to challenge the orders of detention collaterally. The principle is that what is directly forbidden cannot be indirectly achieved. (Paras 69, 74, 75, 76, 82, 86, 87) Per Khanna, J : – The constitutional validity of the Constitution Amendment Act and the 1975 Act amending the Representation of the People Act cannot be assailed on the ground that some members of Parliament were prevented because of their detention from attending and participating in the proceedings of the respective Houses of Parliament. (Para 184) The contention that the sittings of the two Houses of Parliament in which the impugned Acts were passed were not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not constitutionally valid because some members of those Houses were prevented from attending and participating in the discussions in those Houses. (Para 180) The act of detaining a person is normally that of an outside agency and not that of the House of Parliament. It would certainly look anomalous if the act of an outside agency which might ultimately turn out to be not legal could affect the validity of the proceedings of the House of Parliament or could prevent that House from assembling and functioning. (Para 182) Per Mathew J. : – The detention of members of Parliament was by statutory authorities in the purported exercise of their statutory power. It would be strange if a statutory authority, by an order which turns out to be illegal, could prevent the Houses of Parliament from meeting as enjoined by Article 85. If a statutory authority passes an illegal Order of detention and thus prevents a member of Parliament for attending the House, how can the proceedings of Parliament become illegal for that reason ? It is the privilege of parliament to secure the attendance of persons illegally detained. But if the privilege is not exercised by parliament the proceedings of parliament would not become illegal for that reason. (Para 378) The President, in performing his constitutional function under Articles 352, 359 has not authorised the illegal detention of any person let alone any member of Parliament or unconstitutionally prevented the release from custody of any member. He has only discharged his constitutional functions. If this be so, it is difficult to hold that the session in which the amendments were passed was illegally convened. The challenge to the validity of the amendments on this score must be overruled. (Para 379) Per Beg, J. : – Constitutional validity of the impugned Acts cannot be challenged on the ground that as a number of members of Parliament belonging to the opposite parties were in detention, under the Preventive detention laws, which could not be questioned before Courts of law, because of the declaration of the emergency by the President, there was a procedural defect in making the impurgned enactments. Such an objection is directly covered by the terms of Article 122 which debars every Court from examining the propriety of proceedings ‘‘in Parliament’’. If any privileges of Members of Parliament were involved, it was open to them to have the question raised ‘‘in Parliament.’’ (Para 509) As regards the validity of the detentions of the Members of Parliament, that cannot be questioned automatically or on the bare statement by counsel that certain Members of Parliament are illegally detained with some ulterior object. The enforcement of fundamental rights is regulated by Articles 32 and 226 of the Constitution and the suspension of remedies under these articles is also governed by appropriate constitutional provisions. (Para 511) Per chandrachud. J. : – There is no merit in the contention that the constitutional amendment is bad because it was passed when some members of the Parliament were in detention. The legality of the detention orders cannot be canvassed collaterally. And from a practical point of view, the presence of 21 members of the Lok Sabha and 10 members of the Rajya Sabha who were in detention could not have made a difference to the passing of the Amendment. (Para 696) (B) Constitution of India. Art. 329-A (4) and (5) as inserted by Constitution (Thirty-ninth Amendment) Act 1975 – Validation of election – Constitutional Validity – (Pre and Arts. 14. 105 (3), 329 (b) and 368) – (Interpretation of Statutes) – (Representation of The People Act (1951), S. 116-A). Per Majority – (Khanna, Mathew and Chandrachud, JJ.) : – Clause (4) of Article 329-A as introduced by the Constitution 39th Amendment Act of 1975 is unconstitutional. (Paras 213, 345 and 682) Per Khanna, J. : – Clause (4) of Article 329-A is liable to be struck down on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election. (Para 213) Per Mathew, J. : – Our Constitution, by Article 329 (b) visualizes the resolution of an election dispute on the basis of a petition presented to such authority and in such manner as the appropriate legislature may, by law, provide. The nature of the dispute raised in an election petition is such that it cannot be resolved except by judicial process, namely, by ascertaining the facts relating to the election and applying the preexisting law: when the amending body held that the election of the appellant was valid, it could not have done so except by ascertaining the facts by judicial process and by applying the law.