Holding

No person who is not a candidate may be joined as a party to an election petition except as expressly provided by Sections 82 and 86(4) of the Representation of the People Act, 1951.

Summary

The case arose from an election petition filed by Debi Ghosal challenging the Lok Sabha election of Mohd Ismail from the 19‑Barrackpore constituency. The petition impleaded the Chief Minister of West Bengal, Jyoti Basu, and two other state ministers, alleging they colluded with the returned candidate to commit corrupt practices. The ministers sought to have their names struck out, contending that only candidates could be joined as respondents under the Representation of the People Act, 1951. The Calcutta High Court rejected the application, holding they were proper parties. On appeal, the Supreme Court examined Sections 82 and 86(4) of the Act and held that the concept of "proper parties" is alien to election law; only candidates (or a candidate who applies under 86(4)) may be joined as respondents. Consequently, the appellants’ names were ordered to be struck out and the appeal was allowed with costs.

Issues considered

Whether a person who is not a candidate at the election can be joined as a respondent in an election petition under the Representation of the People Act, 1951.
Whether the doctrine of "proper parties" under the Code of Civil Procedure applies to election petitions.
Whether provisions of the CPC can be invoked to override the statutory limitations of the Representation of the People Act, 1951.

Legislation cited

Code of Civil Procedure, 1908
Constitution of Indias. Art. 324, s. Art. 325, s. Art. 326, s. Art. 327, s. Art. 328, s. Art. 329
Representation of the People Act, 1951s. 100, s. 123, s. 81, s. 82, s. 86(4), s. 87(1), s. 99

Subjects

election petitioncorrupt practiceproper partiesRepresentation of the People Actstatutory interpretationCivil Procedure Codecandidaterespondent

Judgment

A 318

JYOTI BASU & OTHERS.
-
....
v.

R DEBI GHOSAL & OTHERS.

February 26, 1982

(R.S. PATHAK AND 0. CHINNAPPA REDDY, JJ.]

Representation of the Pepople Act 1951, Ss. 82 and 86 (4) Election Petition-
c Parties to-Who are-Corrupt practice alleged against person who is not a candi-
date-Such person whether can be impleaded as respondent.

Election Law-Right to elect-Neither fundamtntal right nor Common Law
right-Statutory right subject to statutory limitations.

n Code of Civil Procedure 1908 Or. Ir. JO-Concept of'proper parties'-
Applicability of to election petitions.

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 elec1or of the cons.tituency, and by none ~Jse. Section 82 dause (a)
provides that the retitioner in an election petition shall join as respondents to the
E petition the returned candidates if the relief claimed is confined to a di~claration
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 candi·
date not already a respondent to be joined as respondent.
F y
The first appeltant 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 Ccurt qu£stioni11g the election of the
second respondent to the House of the People. It was averred in the election peti·
tion that the Chief Ministers and the State ministers who Were impleaded as parties
G to the election petition had colluded and conspired with the returned candidate
to commit 'various alleged corrupt practices. The Chief Minister and th~ 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 tQ.e High Court to strike out their names from the array of
•
H parties in the election petition. It was dismissed on the ground that the ·appel-
lants were proper parties to the election petitiqn and therefore their names could
pot be st~~ O"?t of the array of parties\ · · . '" , , . , ..
•
JYOTI BASU V. DEBI GHOSAL :119

In the appeal to this Court, it was contended on behalf of the appellants A
that the concept of a proper p8.rty was not relevant in election law and that only
those persons could be implcaded as parties who were expressly directed to be so
implcaded 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 resPOn,
• dent it was submitted that the appellants were proper parties to the electiori
petition and their presence was necessary for a coi,n.plete, final and expeditiouS
decision on the questions involved in the action. B
Allowing the Appeal,

HELD : I. No one can be joined as a party to an election petition other·
wise 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] c
~

--1. In the instant case the names of the appeIJants and the 7th ·respondent in·
the appeal are directed to be struck out from the array of parties in the election
petition. [331 DJ

2. A right to elect, fundamental though it is to democracy, is, anomalously 1· D
neither a fundamental right nor a Common Law Ri~bt. It is a statutory right.
So is the right to be elected, and the right to dispute an election. Outside of
sta1ute, 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 Cornmoo Law, nor in equity.
It is a statutory proceeding to which 1leither the Common Law nor the principles
of Equity apply but only those rules which. the statute makes and applies. It is E
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 pol.icy because
policy io 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 stl.'aight
jacket. [326 F-H; 327 A-BJ

3. The ·contest of the election petition is designed to be confined to the
the candidates. at the ele-;;.tion. All others are excluded. The ring is c!c.sed to all
F

except the petitioner and the candidates at the election. Such is the design of the
statute. [328 C]

G
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 pet_ition, it does not obJige 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 undor section 86 (4), any H
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-CJ
'.•
••
326 SUPREME c6Uit REPORTS it982J 3 s.c.ii.
A 5. The concept of •proper parties' is and niust 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 DJ •
B 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 Repres~tation
of the People Act 1951 and any rules 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-Cl
c Mohan Raj v. Su7'ndra Kumar Taparia & Ors. [1961] I SCR and
.R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi & Ors. [1969) I 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
D one guilty of a corrupt practice. Parliament, however, has not thought fit to
expressly provide for bis 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 allega·
tiona 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
9
not be 'named The right does not extend to participation at all stages and in
E •

all matters, a right which he would ha·ve if he is joined as a 'party' at the com-
mencement. [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 triaJ of an
election petition with all its intricacies and ramificatio_ns. [329-Gj

(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 spitefulJy
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,
G without even prima facie proof an allegation which may ultimately be found to be
unfounded, can c~use needless vexation to sush pe°rsonage and prevent him from
the effective discharge of his public duties. It would be against the public
interest to do so. The ultimate award o.f co;,ts would be no panacea in such cases,
since the Public mischi.ef cannot be repaired. Public Policy and legislative wis-
dooi both p~iot to an interpretation that the provisions of the Representation of
ff the PeoJ)le Act 1951 does not permit the joining, at parties of persons other than
those mention~ in sections 82 and 86 (4). [329 H; 330 A-DJ
I

. JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy,j.) 32i

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 J?.Otice to a person
not a party to the proceedings to show cause why he should not be rnamed' is a
sufficient clarificatiOn of the.legislative intent ihat such person may not be permit·
ted to be joined as a party to the election petition. (330 E-F]
•
9 (ii) If a person who 1s not a candidate but against whom allegations of
any corrupt practice are made is joined as a party he would also be entitled to B
'recriminate' under section 97. Suctt 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-BJ
c
CIVIL APPELLA1E JURISD1c:r10N : 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. D
Somnath Chatterjee, Rathin Das and Aninda Mitter· for the
Appellants.

Sidhartha Shankar Ray, R.K. Lala and T. V.S.N. Chari fot
Respondent No. I.

The Judgmeat of the Court was delivered by
CHINNAPPA REDDY, J. The first appellant, Jyoti llasu, 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 Parlia-
mentary 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
G
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 fited an election petition in the High Court of
' '
( '
322 SUPREME COURT REPORtS [1982j 3 s.c.i.

A Calcutta questioning the election of the second respondent Mohd.
Ismail on various grounds. He impleaded the returned candidate
as the first respoudent, and tbe other three unsuccessful candidates
respondents 2, 3 and 4 to the election petition. Besides the candi-
_dates at the election, he impleaded several others as respondents. •
B ·The District Magistrate and Returning Officer was impleaded as the
fifth respondent, Buddhadeb Bhattachar}a, the Minister for Informa-
tion and Publicity, Government of West Bengal as the sixth res-
pondent. 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·
c Minister of the Legislative and the Judicial Department as the ninth
respondent and the Electoral Registration Officer as the tenth res-
pondent. It was averred in the election petition that the Chief
Minister and the other Ministers of the Government of West Bengal
who were im pleaded as parties to the election petition had colluded
and conspired with the returned candidate to commit various alleged
D · 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 petiti~
ner was not entitled to implead them as parties to the election peti-
tion. They claimed that as they were not candidates at the election
they could not be impleaded as parties to the election petition. The
E Chief Minister and two of the other Ministers, Hashim Abdul
Halim and and Buddhadeb Bhattacharya file\! an application
before the High Court of Calcutta to strike out ··their names from
the array of parties in the elcctign petition. The application was
dismissed by the Calcutta High Court on the ground that the appli-
cants (appellants) were proper parties to the election petition and,
F 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.

Sbri Somnath Chatterjee, learned counsel for the appellant
G t submitted that the concept of a proper party was not relevant in elec-
tion law and that only those persons could be impleaded as parties
who were expressly directed to be so impleaded by the Representa-
tion of the People Act, 1951. He claimed that in any case such
persons were entitled to be struck out from the array of parties.
H On the other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala,
learned counsel for the first respondent submitted that the appellan.\s
were proper parties to the election petition and their presence was
JvOTl BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 323

A
necessary for a complete, final and expeditious decision on the ques-
tions involved in the action.

To properly appreciate the rival contentions it i$ ·necessary to
refer to the relevant provisions of the Constitution of India and
the two Representation of the People Acts of 1950 and 1951. B

First the Constitution. Part lXV deals with elections. Art. 324
vests in the l'le•:tiqn 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 c
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 Legh;lature of a State, if Parliament has not made such
legislation, to make laws with respect to all matters relating to elec-
tions to the Houses of the Legislature of the State. Art. 329 bars
interference by Courts in electoral matters and clause (b), in parti-
cular, provides that no election to either House of Parliament or to E
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
F
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
G
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 elec- H
tion, 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 SUPREME COURT REPORTS (i982j 3S.C.R.

A 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 jurisdic-
tion to try an election petition. Sec. 81 provides for the presenta-
tion of an election petition on one or more of the grounds specified
B in Sec. 100 (I) and Sec. IOI 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 respon-
c dents 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 declara·
tion that he himself or any other candidate has
\ D 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
E any corrupt practice are made in the petition".

Sec. 83 prescribes the contents of the petition. 1 Sec. 84 pro-
vides that a petitioner may, in addition to clair;ning a declaration
that the election of the returned ·candidate is void, claim a further
declaration that he himself or any other candidate bas been duly
F elected. Sec. 86 deals with trial of ~Iection petition.s. Sub-Sec. (4)
provides for an application by a candidate who is not already a res-
pondent to be joined as a respondent. It is in these terms:

"(4) Any candidate not already a respondent shall,
npon application made by him to the High Court within
G 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".
H
Sec. 87 is concerned with the procedure before the High Court and
'it is as follows:
frcrri BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 325
A
"87 (I) 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;
8
Provided that the High Court shall have the dis-
cretion 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
witn"esses is not material for the decision of the peti-
tion or that the p11rty tendering such witness or
c
witnesses is doing so on frivolous grounds or with a
view to delay. the proceedings.

(2) The provisitf'ns of the Indian Evidence Act, 1872, shait,
subject to Ille provisions of this Act, be deemed to D
apply in all respects to the trial of an election
petition".

Sec. 90 enables the returned candidate or any other party to 'recri-
minate' in cases where in the election petition a declaration that a
candidate other than the returned candidate has been elected is E
0
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 d ismlssing 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
F
Court to make, at the time of making order under Sec. 98, an order
recording a finding whether any corrupt practice h11s 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 poved at the trial to have been guilty of corrupt practice and
the nature of that practice. The proviso to Sec. 99 (I), however,
prescribes that no person who is not a party to the petition shall be
named in t,he order unless he had been given notice to ·appear before
the High Court to show cause why he should not be so llamed and

r 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
.
'.
H

'

,.-~:, _ ,~-1ilt~ :~SJ Ji::.-·
326 SUPREME ·COURT REPORTS (J9szj J S.C.R.
1
A 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 candi-
date void .in cases where corrupt practices are proved, where suph
corrupt practice has been committed by a returned candidate or his •
election agent or by any other person with the consent of the
B returned candidate or his election agent. Where the corrupt prac-
tice 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 heeh materially affected. Sec. IOI prescribes the grounds for
which a candidate, other than the returned candidate may be declared
c 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 fo the Court to he substituted as
a petitioner in place of the {>arty withdrawing. Sec. 112 (3) pro-
vides for the continuance of the election petition on the death of the ·
D sole petitioner in an election petition or of tac survivor of several
petitioners, by any person who might himself haYe been a petitioner
and who applies for substitution within the stipulat~d period.

The nature of the right to elect, the right to be elected and the
E 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.,(') and Jagan Nath v. Jaswant
Singh.(') We proceed to state what we have gleaned from what
has been said, so much as necessary for this case.
F I .

A right to elect, fundamental though it is to democracy, is,
anomalously enough, nei~her a fundamental right nor a Common
I
, Law Right.· It is·pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute_!ln election. Outside of
statute, there is no right to elect, no right to be elected and no right
G
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
H
(I l [1952) 1 S.C.R 218.
(2) A.I.R. 1954 SC 210.
JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 327

only those rules which the statute makes and applies. It is a 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
B
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 ./
elecr ion 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,
c
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 195 l and again, no such election may be questioned except in
the manner provided by the Representation of the People Act. So D
the Representation of the People Act has been held to be a com-
plete 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 . ..:fhe 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 E
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
dqes the Act say?

F
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 .G
of the returned candidates is void and all ·the contesting candidates
if a further declaration is sought that he him~elf or any other can-
didate 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 110 other provision dealinll wit!\
H
-··. .~

328
''
SUPREME COURT REPORTS (1982) 3 S.C,R. •.
·---~--- ---~~---:

A . question as to who may be joined as respondents .. It is significant
that while clause (b) of Sec. 82 obliges 'the· petitioner to joiri as a·
respondent any candidate.against whom 'allegations of any corrupt
practice are made in the petition, it does not oblige· the.petitioner to
a
join as respondent any other person against 'whom allegations of
any corrupt practice are made. ' It is equally significant that while
B · any candidat.e 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. agains't him.'
It is dear thai the contest of the election petition is designed t~. be
c 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 th.e picture at all ? ·We think thai the: con-
cept of 'proper parties' is and must remain alien to an election ·'dis··
pute under the Represeiiiation of the People· Act,. J951 ,· -· Only ·those
D may be joined as respondents to' an· election petition who ·are men-
tioned. in Sec. 82 an·d Sec. 86 (4) and no others. However desirable ·
and expedient it may appear to lie, none else shall be joined._.as
.. ·. ' - -
I
respondents. ' .

E " Code .applies lo the trial, of
It is said, the Civil Procedure·
election petitions and so proper parties whose presenco 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

.F
Civil Procedure Code applies because it undoubtedly does, but only
'as far as may be' and subject to the provisions of the Representa·
tion of the People Act, 1951 and the. rules made _thereunder.
_J
Sec. 87 (I) exepressly says so. The question is whether . the provi-
sions .;-f 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 cannof be.~so invoked ..• In
G Mohan Raj 1' Surendra Kuma~ Taparia & Ors.,(1) _this Court held
ihat the undoubted power of the Court (i.e. the Election Court) to
permit an amendment of the petition i:anno't be uied to stiike ·out
allegations agairisi a candidate not joined as ll respondent so as to '.
save the election petition from dismissal for non·joinder of necessary ·
H
(I) (1969].l SCR 630.•
\.: ·.\ . _\ .
- JYOTI BA_SU v:_DEEl GHOSAL (Chinmppa Reddy, J.) ---329 -

A
parties. It. was said, uThe Court can order an·_ amendment and
e'l'en strike out a party who is not necessary. Bui, where the Act
niakes a person a necessary _party _and -provides that the petition
shall be dismissed_ if such a party is not joined, the-_ power of
ame~ddient or to strike -out parties_ cannot be used at all. The -
Civil Procedure Co-de appiies subj~ct to the provisions ~Ube Repre' 8
s~ntation of th'e Pe~ple Act and any ruies made ihereunder: When
tlie Act enjoins_tlie penalty of dismissal of the petition for non-
a
joinder of party the "provisions of 'ihe Civil Procedure Code
cannot be used asacurative means tci sa~e the petition."dAgain, in
K.' VenkatesH·ara _Rao &. Anr.' v. Bekkam Narasimha -Reddi and _-
Ors.,(1) it was o.bserVed : c
"With regard . to the additi~n ~f parties - which
- is possible in the case of a· suit under tho· provisions of
0.1.r. 10 subject to the added party right •_to contend
that the suit a_s against· l.im -was - barred by limitation_
\ D
when he was added, no addition of parties is possible in
the case of an election petition · except under the -provi-
. sions__ of Sub-sec. (4) of Section 86".. -

The matter may be looked at froni another angle. · The
Parliament has expressly provided that an ·opportunity- should be E
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

.-J party to the election petition either by the election-petitioner or·- at -
the instance of the very person against _whom the· allegations or' a_
corrupt prac'.ice are 'made. The right given to the latter is limited to
show cause &gainst 'named' and that right opens up for exercise when, -
ai the end of the trial of the e'iection petition notice is given to him
- .
to show_catise 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.
Conversaly the election petitioner cannot by joini~g as a· respondent G
a person who is not a candidate at the electior. subject him ·to a
prolonged trial of aQ election petition with all its intricacies and
ramifications.'> One· may· well imagine h~w ni'ischievous minded
persons may harass public per:sonages like the Prime MinisJer of,

(I) [1977] I SCR 679.

...
'
- ! ••-

SUPREME COURT REPORTS (1982) 3 S.C.R.
A the country, the Chief Miilister 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 tnith. Evecyone is familiar with
B . S'!Ch allegations. To permit such _.a. public 'Personage . to,. be
impleaded as a party to an electiciu. petiti6n on the basis ~fa mere
aiiegation, "without ,even prime facie proof,~ an' allegation which
· "'may ultimately be found 10 be unfounded; can cause needless · vexa~
.. tion to such personage and prevent him from the effective discharge
of his public duties .. It would be against the public" interest to do
c so. . The ultimate award of costs would be n"o 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,~. parties,•of persons other than those men-
tioned in, Sections 82 and 86 (4). It is not as i(a person guilty of a
D 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 •
. 1n· our view the legislative provision contained in Sec. 99 which
E . enables the Court, towards the end of tht> trial of an election petition,
to issue a notice to a person not a party to the proceeding to sh9w
cause why he should not be 'named' is sufficient clarification of the .
legislative intent that such person may not be permitied to be joined·
as a party to the election petit!on:
,
F -G
· There is yet another view-point.· When in an election petition
_in addition to the declaration that the election of the returned can- ..
date 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' le. to give
G ..... evidence to· prove that the e\ectia"n of such candidate would have
. beell ~oid 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 c·orrupt practice are
made is joined as a party to the petition then, by virtue of his posi-
H tion as a party, he would also be entitled to 'recriminate' under
sec. 97. ·Surely such a construction of the statute would. throw the_
!loors of an election petiti~n wide open and convert the petition into
JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 331

a 'free for all' fight. A necessary consequence would be an unending,
A
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 B
•
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 opmton that ·C
no one may be joined as a party to aii election petition otherwise
than as provided by Sections 82 and 86 (4) of the Act. It follows
that a person who is not a candidlije may not be joined as a res-
pondent to the election petition. The appeal is therefore, allowed
wirh costs and the names of the appellants and the seventh· respon-
dent in the appeal are directed to be struck out from the array of D
parties in the election petition. We may mention that in arriving at
our conclusion we have also considered the followi~g decisions .•
cited before us: S.B. Adityen .& Anr. v. S. Kandaswam{& Ors.,(')
Dwijendra Lal Sen (Jupta v. H~rekrishna Koner,( 2 ) H.R. Gokhale v.
Bharucha Noshir C. & Ors., (8) and S. Iqbal Singh v. S. Gurdas Singh /
Badal & Ors.(4 ) E
.N.V.K. Appeal allowed

(1) AIR 1958 Mad. 171.
(2),A.l.R. 1963 Cat. 218.
(3) A.l.R. 1969 Bom. 177.
(4) A.l.R. 1973 P & H 163.