B.K. Behera, J.
1. The petitioners call in question the Explanations & added to Section 77, Representation of the People Act, 1951 (for short, 'the Act'), by the Representation of the People (Amendment) Act, 1974 (Act 58 of 1974), to be described hereinafter as the Amendment Act, which came into force on and from October 19, 1974, as being illegal and invalid, by defeating the very purpose of the Act providing for a free and fair election and being opposed to the invaluable doctrines of equality before the law and equal protection of the laws enshrined in Article 14 of the Constitution and for having encouraged corrupt practices and eroding all norms embodied in the Act.
2. Section 77 of the Act, as it stood prior to the addition of the Explanations by the Amendment Act, would read:
'77. Account of election expenses and maximum thereof.--(1) Every candidate at an election shall, either be himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
(2) The account shall contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed.'
The following Explanations were added by the Amendment Act:--
'Explanation.--Notwithstanding any judgment, order or decision of any Court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not even be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section:--
Provided that nothing contained in this Explanation shall affect:--
(a) any judgment, order or decision of the Supreme Court where the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974;
(b) any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance if no appeal has been preferred to the Supreme Court against such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.
Explanation 2.--For the purposes of Explanation 1, 'political party' shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force.'
3. Appearing on behalf of the petitioners, Mr. Das has contended that the Explanation 1 to Section 77 of the Act is in conflict with and has enlarged the scope and purport of Section 77 of the Act and is invalid owing to the grounds referred to above. Mr. Das has invited our attention to extracts from Parker's Conduct of Parliamentary Elections and Erskine May's Parliamentary Practice besides the laws relating to elections in the United States of America to bring home his point that elections must be free and fair which would be apparent from the stringent laws and conventions of those countries relating to elections. With regard to violation of Article 14 of the Constitution, Mr. Das has placed reliance on the principles laid down by the Supreme Court in AIR 1953 SC 215 Ram Prasad Narayan Sam v. The State of Bihar. He has relied on the observations made by Hon'ble P.N. Bhagwati, J. in AIR 1975 SC 308 Kanwar Lal Gupta v. Amarnath Chawla. Reliance has also been placed on the principles laid down in some other decisions of the Supreme Court with regard to the intention of the Parliament in embodying the doctrine of equality before the law in Article 14 of the Constitution.
4. No counter-affidavit has been put in by the opposite parties. Mr. C.V. Murty, the learned Standing Counsel for the Central Government, has placed reliance on the observations made by the Supreme Court in AIR 1970 SC 110 Rani Dayal v. Brijraj Singh and AIR 1971 SC 1295, Magraj Patodia v. R.K. Birla and has submitted before us that what has now been incorporated in the Explanation added to Section 77 is in accord with the observations made by the Supreme Court in the aforesaid two decisions and to make clear what the Legislature had embodied in Section 77 in view of some observations made by Hon'ble P.N. Bhagwati, J. in AIR 1975 SC 308 (supra).
5. Before the impugned amendments came into force, the Supreme Court had occasion to deal with Section 77 of the Act as it originally stood in AIR 1S70 SC 110 and AIR 1971 SC 1295 (supra).
In the first mentioned case, the Supreme Court held (at p. 1.17):--
'Unless it is established that the expenditure was incurred in connection with the election by the candidate or by his election agent or was authorised by him it is not liable to be included under Section 77, Representation of the People Act. We agree with the High Court that under Section 77(1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without anything more need not be included in the account or return, as such incurring of expenditure would be purely voluntary. Assuming that expenditure was incurred by the. Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be included in the account of the election expenses.'
In the latter case, it has been laid down that the expenses incurred by a political party to advance the prospects of the candidates put up by it without more do not fall within Section 77. Their Lordships have laid down :
'In Mubarak Mazdoor v Lal Bahadur, (1958) 20 Elc LR 176 (All) the Allahabad High Court held that the expenditure voluntarily incurred by the friends and supporters of the returned candidate does not come within Section 123(3) even, though the returned candidate was aware of the fact at the time of election itself that his friends and sympathisers were incurring expenditure in connection with his election. That is also the effect of the decision in Rananjaya Singh's case, 1955 SCR 671 : (AIR 1954 SC 749) (supra). This Court as well as the High Courts have taken the view that the expenses incurred by a political party to advance the prospects of the candidates put up by it, without more do not fall within Section 77. That position in law was not disputed before us.........'
As rightly submitted by Mr. Murty for the opposite parties, what has now been incorporated in the amendments is oa the lines of the observations made and the views taken in these two reported cases.
6. In AIR 1975 SC 303 (supra), Hon'ble P. N. Bhagwati, J., speaking for the Supreme Court, observed (Para 11):--
'Now, if a candidate were to be subject to the limitation of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing the ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Premble of the Constitution would remain merely a distant dream eluding out grasp. The legislators could never have intended that what the individual candidate cannot do, the political party sponsoring him or his friends and supporters should be free to do. That is why the legislators wisely interdicted not only the incurring but also the authorising of excessive expenditure by a candidate. When the political. party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure but his political, party has done so. A party candidate does not stand apart from his political party and if the political party does hot want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also, hold good in case of expenditure incurred, by Mends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money......'
In this case, the Supreme Court did refer to the two earlier decisions reported in AIR 1970 SC 110 and AIR 1971 SC 1295 (supra) and the principles laid down therein and observed:
'.........The question, therefore, in cases of this kind always is whether there is something more which may legitimately give rise to an inference or implied authorisation by a candidate. What could be that something more is indicated by us in the proposition formulated above, though we must confess that by its very nature it is not possible to lay down the exhaustive enumeration of the circumstances in which that something more may be inferred.'
In order to explain as fo what the Parliament had intended by making the provision in Section 77 of the Act as it originally stood, the Parliament effected the impugned amendments in accordance with the interpretation made by the Supreme Court in AIR 1970 SC 110, and AIR 1971 SC 1295 (supra). The Explanations have not enlarged the scope of the main provision and are only explanatory in nature. The provisions now made in the Explanations are clear and unambiguous. What led the Parliament to add the Explanations would be clear from the Statement of Objects and Reasons appended to the Bill (Bill No. 104 of 1974) for effecting the impugned amendments. It reads as follows:--
'Section 77. Representation of the People Act, 1951, provides that the total of the expenditure ia connection with an election incurred or authorized by the candidate or his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof shall not exceed such amount as may be prescribed. Rule 90, Conduct of Elections Rules, 1961, seeks to lay down the maximum election expenses for a parliamentary constituency and an Assembly constituency in respect of various States and the Union territories. Clause (6) of Section 123, Representation of the People Act has specifically included the incurring or authorizing of expenditure in contravention of Section 77 as a corrupt practice, which, if established, would not only vitiate the election, but also result in disqualifying the candidate for a period of six years under S. 8A of the said Act.
In the Election Law, the emphasis has been on imposing a curb on an individual incurring expenditure in connection with his election in excess of the prescribed limit. The provision contained in Section 77 of the Act is very specific in this respect and the intention that the curb is on the expenditure incurred or authorized by the candidate has found support in the judicial pronouncements on the point. The expression incurred or authorized had not been construed so as to bring within its purview the expenditure incurred by a political party in its campaign or by any person other than the candidate unless incurred by such third person as the candidate's agent. In other words, the provisions of Section 77 and Clause (6) of Section 123 have been intended and understood to be restraints on the candidate's election expenditure and not on the expenditure of a political party.
However, in the recent case of Kanwar Lal Gupta v. A N. Chawla (Civil Appeal No. 1549 of 1972 decided on 3rd October, 1974) (Reported in AIR 1975 SC 308) the Supreme Court has interpreted the aforementioned expression 'incurred or authorized' as including within its scope expenses incurred by a political party or other persons referred to above. In view of the effect which such interpretation might have particularly with reference to the candidates against whom election petitions are pending, it became urgently necessary to clarify the intention underlying the provisions contained in Section 77, Representation of the People Act, 1951, namely, that in computing the maximum amount under that section any expenditure incurred or authorized by any other person or body of persons or political parties should not be taken into account. As Parliament was not in Session, the President promulgated on 19th October, 1974, the Representation of the People (Amendment) Ordinance, 1974.'
7. The legality and validity of the Explanations added by the Amendment Act, now under challenge, had been challenged in the case of Smt. Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299, before a Bench of five Hon'ble Judges of the Supreme Court. Mr. Das for the petitioners has invited our attention to the observations made by Hon'ble H. R. Khanna, J. in para 249 of the judgment that it was not necessary to express any opinion about the view taken in AIR 1975 SC 308 (supra) because even after applying the rule laid down in that case, the total election expenses of the appellant had not been shown to exceed the prescribed limit. It had also been observed that the question of invoking and going into the validity of the Amendment Ant did not arise. The Hon'ble Chief Justice and the other Hon'ble Judges have, however, in clear and categorical terms, held the Amendment Act to be valid.
8. Hon'ble A. N. Ray, C. J., has observed and held (para 119);
'.........Expenditure incurred by A political party in connection with the election of the candidates of the party is not a part of the election expenses of the candidate. Similarly, participation in the programme of activity organised by a political party will not fall within the election expenses of the candidate of the party. A candidate is not required to disavow or denounce the expenditure incurred or authorised by the political party because the expenditure is neither incurred nor authorised by the candidate. One can disavow what would be ascribed to be incurred or authorised by one. In the case of expenses of a political party there is no question of disavowing expenditure incurred or authorised by the political party.'
The Hon'ble Chief Justice further observed and held (paras. 137 and 138):--
'The constitutional validity of a statute depends entirely on the existence of the legislative power and the express provision in Article 13. Apart from the limitation the legislature is not subject to any other prohibition. The amendment made to the 1951 Act by the Amendment Ads, 1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain views departed from or otherwise to clarify the original intention. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of service. Parliament has power to state what can be considered to be office of profit. Parliament has power to state as to what will and what will not constitute corrupt practice. Parliament has power to enact what will be the ground for disqualification. Parliament has power to define 'candidate'. Parliament has power to state what symbols will be allotted to candidates at election. These are all legislative policies.
The conclusive evidence or conclusive proof clause is an accepted legislative measure. Similarly, giving retrospective effect to legislative amendment is accepted to be valid exercise of legislative power. The well-known pattern of all Validation Acts by which the basis of judgments or orders of competent Courts and Tribunals is changed and the judgments and orders are made ineffective is to be found in M.P.V. Sundaramier & Co. v. The State of Andhra Pradesh, 1658 SCR 1422 : (AIR 1958 SC 468). The power of the legislature to pass a law includes a power to pass it retrospectively. An important illustration with reference to retrospective legislation in regard to election is the decision of this Court in Kanta Kathuria's case (AIR 1970 SC 694) (supra). Kanta Kathuria was disqualified by reason of holding an office of profit. First the Ordinance and later the Act was passed to nullify the decision of the High Court. The Ordinance as well as the Act stated that notwithstanding any judgment or order of any Court or Tribunal, the officer shall not be disqualified or shall be deemed never to have disqualified the holders thereof as a member of the Legislative Assembly. The rendering of a judgment ineffective by changing the basis by legislative enactment is not encroachment on judicial power because the legislation is within the competence of the legislature.'
9. Repelling the contentions raised on behalf of the respondent regarding the validity of this amending law including the retrospective operation of the Amendment Act, Hon'ble K.K. Mathew, J., observed and held (Paras 362 and 363):
'Retrospective operation of law in the field of election has been upheld by this Court (see Kanta Kathuria v. Manak Chand (AIR 1970 SC 694). Retrospective operation of any law would cause hardship to some person or other. This is inevitable; but that is no reason to deny to the legislature the power to enact retrospective law. In the case of a law which has retrospective effect, the theory is that the law was actually in operation in the past and if the provisions of the Act are general in their operation, there can be no challenge to them on the ground of discrimination or unfairness merely because of their retrospective effect. In other words, if an Act cannot be challenged on the ground that its provisions are discriminatory or unreasonable if it is prospective in operation, those provisions cannot be attacked on these grounds merely because the provisions were given retrospective effect, unless there are special circumstances. I see no such special circumstances here.
I therefore hold that these Acts are not liable to be challenged on any of the grounds argued by counsel.'
10. Hon'ble M.H. Beg, J. (as Ms Lordship then was), observed and held in para 498 of the judgment thus :
'The second question which arises for consideration is : if some expenses are shown or admitted to have been incurred by the candidate's party or third persons over the election of the successful candidates, is it possible to separate it from a total expenditure on more than one constituency by some process of estimation and apportionment? Of course, this question can only arise if it is first proved that whatever expenditure was incurred by candidate's party or by some other person, who may be a friend, a relation, or a sympathiser, was incurred in circumstances from which it can be inferred that the successful candidate would reimburse the party or person who incurred it. As I have already held, it is only then that expenditure could be held to be authorised by the candidate. It is not enough that some advantage accrued or expenditure was incurred within the knowledge of the candidate. This was very clearly brought out in Rananjaya Singh v. Baijnath Singh (1955) I SCR 671 : (AIR 1954 SC 749). In this case, the Manager, Assistant Manager, 20 Ziladars and peons of the proprietor of an estate in Uttar Pradesh had carried on election work, after having been given a holiday on full pay by the proprietor of the estate who was the father of the successful candidate. It was contended that inasmuch as these persons were virtually employees of the candidate himself, their salary for the day must be added to the list of election expenses. This Court repelled this contention on the ground that this extra expenditure had not been authorised by the candidate or his agent. Hence, it need not be shown as an item of election expense. Voluntary expenditure by friends, relations, or sympathisers and expenditure incurred by a candidate's party, without any request or authorisation by the candidate, has never been deemed to be expenditure by the candidate himself (See Ram Dayal v. Brijraj Singh, (1670) I SCR 530 : (AIR 1970 SC 110); Magraj Patodia v. R.K. Birla (1971) 2 SCR 118: (AIR 1971 SC 1295)'.)
11. Hon'ble Y.V. Chandrachud, J., (as his Lordship then was) has observed and held (paras 692 to 695):--
'.........The argument regarding the invalidity of the Representation of the People (Amendment) Act 58 of 1974 and the Election Laws (Amendment) Act, 1975 has, however, no substance. The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity. (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter-I, Para XI of the Constitution, and (2) it must not offend against the provisions of Article 13 (1) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features.' This, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.
Shri Shanti Bhushan thought it paradoxical that the higher power should be subject to a limitation which will not operate upon a lower power. There is no paradox, because certain limitations operate upon the higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the Legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations.
No objection can accordingly be taken to the constitutional validity of the two impugned Acts on the ground that they damage or destroy the basic structure. The power to pass these Acts could be exercised retrospectively as much as prospectively.
These Acts effectively put an end to the two appeals before us for they answer the totality of the objections which were raised by Shri Raj Narayan against the election of Smt. Indira Gandhi. The basis of the findings on which the High Court held against the successful candidate is removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments introduced by that Act, the High Court could not have held that the election is vitiated by the two particular corrupt practices. In regard to cross-appeal filed by Sri Raj Narain, Shri Shanti Bhushan thought that a part of it escapes through the crevices in the Act but I see no substance in that contention either. I would like to add that the findings recorded by the High Court in favour of Smt. Indira Gandhi are amply borne out by the evidence to which our attention was drawn briefly by the learned counsel for the parties. The expenses incurred by the political party together with the expenses incurred by her are not shown to exceed the prescribed ceiling. Apart from that Act 58 of 1974 makes that issue academic.'
12. No doubt at the time this decision was taken by the Supreme Court, the Amendment Act had been incorporated in the Ninth Schedule and by a latter amendment, it was taken out of that Schedule, but apart from the question of incompetence to challenge the validity of the Amendment Act because of its incorporation in the Ninth Schedule, the Hon'blc Chief Justice and the other Hon'ble Judges had examined the other aspects with regard to the legislative competence to enact the law and the validity of the provisions thereof and held that the Amendment Act was legal and valid.
13. In the case of Nongthombam Ibomcha Singh v. Leisanglhem Chandramani Singh, AIR 1977 SC 682, it has been held (Para 3):
'......The fact that the legislature is competent to enact such a law with retrospective operation is now well established (see Kanta Kathuria v. Manak Chand Surana, (1970) 2 SCR : (AIR 1970 SC 694) and Smt. Indira Nehru Gandhi v. Shri Raj Narayan, (1976) 2 SCR 347: (AIR 1975 SC 2299))......' '
14. In view of the law laid down by the Supreme Court of the land, the impugned amendments are not open to challenge.
15. In the result, therefore, we would dismiss the writ application, but make no order as to the costs of this proceeding.
R. C. Patnaik, J.
16. Challenge to the vires of the explanations inserted to Section 77, Representation of the People Act, 1951, by the Representation of the People (Amendment) Act, 1974, though attractive on an idealistic plane was given a burial in Indira Gandhi's case, AIR 1975 SC 2299, decided by a Constitution Bench of the Supreme Court and is no more available to be entertained for a forensic bout before this Court.
I agree, therefore, with the order proposed by my learned brother.