Full Judgment Text
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PETITIONER:
VIRJI RAM SUTARIA
Vs.
RESPONDENT:
NATHALAL PREMJI BHANVADIA AND ORS.
DATE OF JUDGMENT:
04/11/1968
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
HEGDE, K.S.
CITATION:
1970 AIR 765 1969 SCR (2) 507
1969 SCC (1) 77
CITATOR INFO :
F 1990 SC 528 (4)
ACT:
Constitution of India Art. 173---Oath to be taken by
candidate for election to the Legislature--Form of oath
prescribed in Third Schedule-- Oath taken in Gujarati
language--Use of expression ’Rajya Sabha’ for
’Legislative Assembly’--Oath whether taken in proper
form--Effect on election--Directory or mandatory.
HEADNOTE:
The returned candidate ’at an election to the Gujarat
Legislative Assembly held in February 1967 had taken his
oath as prescribed by Art. 173 of the Constitution in
the Gujarati version of the relevant form set out in
the Third Schedule to the Constitution. In the said version
the term "Legislative Assembly" was translated as "Rajya
Sabha". In an election petition it was urged that the term
"Raiya Sabha" was equivalent not to "Legislative Assembly"
but to "Legislative Council", ’and there fore the oath was
not taken by the returned candidate in the proper form and
his election was liable to be set aside. The High Court
having decided against the election petitioner appeal
against its judgment was filed in this Court.
HELD: (i) The word ’sabha’ means a gathering or a
meeting or an assembly of persons for a definite purpose.
Giving the word ’sabha’ the said meaning in the word ’Raiya
Sabha’ it would not be possible to hold that the oath was
not in compliance with the form prescribed in Art. 173(a)
of the Constitution. No doubt by common parlance in many
of the States in Northern India the expression ’Rajya Sabha’
has come to mean the Legislative Council of a State while
the State Legislative Assembly is known as Rajya Vidhan
Sabha. But in the absence of any authoritative translation
of the expression "State Legislative Assembly" in Gujarati
the popular meaning of the expression could not give proper
guidance. The State of Gujarat has no Legislative Council of
the State. The Legislature consists of one house only,
namely, the State Legislative. Assembly. There could
therefore be no misapprehension either in the person taking
the oath or in the Returning Officer when he was accepting
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the nomination paper with the oath in Gujarati form that the
candidate who afterwards won the election was being
nominated as a candidate to fill a seat in the Legislative
Council of the State and not in the Legislative Assembly.
[630 D--G]
As the essential requirements of the oath given in the
form in the Third Schedule were not deviated from in the
Gujarati form used in this case it could not be held that
the oath subscribed in this case was not in compliance with
Art. 173 merely because of the popular meaning of the word
"Rajya Sabha".
(ii) Non,-compliance with the provisions of a statute
or Constitution will not necessarily render a proceeding
invalid if by considering its nature, its design and the
consequences which follow from its non-observance one is not
led to the conclusion that the legislature or the
Constitution-makers intended that there should be no
departure from the strict words used, [633 G--H]
628
In the present case the essential requirement of Art.
173 read with Form VII-A was that the person taking the oath
or making the affirmation would bear true faith and
allegiance to the Constitution and would uphold the
sovereignty and integrity of India. The words which precede
this portion are merely descriptive of the person and of his
nomination as a candidate. It is reasonable to think that a
mere misprint in the form of the oath or a mere inaccuracy
in rendering the expression "Legislative Assembly" in
Gujarati would not be fatal to the election of the
candidate, if otherwise valid. [634 A]
Kamaraja Nadar v. Kunju Thevar, [1959] S.C.R. 583,
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore,
[1964] 3 S.C.R. 573; Ch. Subbarao v. Member, Election
Tribunal, Hyderabad, [1964] 6 S.C.R. 213; State of U.P. v.
Manbodhan Lal Srivastava, [1958] S.C.R. 533 and State if
Punjab v. Sat Pal Dang and State of Punjab v. Dr. Bolder
Prakash & Ors., [1969] 1 S.C.R. 478, applied.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1180 of 1968.
Appeal under s. 116A of the Representation of the People
Act, 1951 from the judgment and order dated January 17, 18,
1968 of the Gujarat High Court in Election Petition No. 2 of
1967.
Shyamala Pappu and Vineet Kumar, for the appellant.
Bishan Narain and D.N. Misra, for the respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J. The only question raised in this appeal from
a judgment and order of the High Court of Gujarat dismissing
an election petition is, whether the returned candidate was
not qualified to be chosen to fill a seat of the State
Legislative Assembly inasmuch as he did not subscribe to an
oath or affirmation according to the form set out for the
purpose in the Third Schedule to the Constitution as
prescribed under Art. 173 thereof.
’The relevant facts may be stated as follows:
The notification of the Governor of Gujarat under s. 15(2)
of the Representation of the People Act of 1951 for
the purpose of elections to the Gujarat State Legislative
Assembly was issued on January 13, 1967. Nomination papers
were filed by several persons including the returned
candidate and the scrutiny thereof was made on January 21,
1967. The poll took place on February 18, 1967 and the
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result declared on February 27. 1967 showing the returned
candidate winning comfortably by a margin exceeding 3800
votes over his nearest rival. One of the grounds taken in
the election petition was that immediately after the
scrutiny of the nomination papers, the third respondent to
the election petition had filed a written objection before
the Returning Officer contending that the returned candidate
had not taken oath
629
properly and on the same ground he along with respondents 2
and 4 were not qualified to be chosen and their nomination
papers should be rejected. This contention was returned
down by the Returning Officer and was also negatived by the
learned Judge who heard the election petition and in this
appeal the unsuccessful petitioner has only pressed this
ground.
The relevant portion of Art. 173 of the Constitution
reads as follows :--
"A person shall not be qualified to be
chosen to fill a seat in the Legislature of a
State unless he--
(a) is a citizen of India, and makes and
subscribes be,fore some person authorised in
that behalf by the Election Commission an oath
or affirmation according to the form set out
for the purpose in the Third Schedule;
(b) and(c) ."
The Third Schedule contains various forms of oath or
affirmation. From VII-A the relevant form for the present
purpose is, as follows:
"Form of oath or affirmation to be made
by a candidate for election to the Legislature
of a State :--
"1, A.B., having been nominated as a
candidate to fill a seat in the Le
gislative
Assembly (or Legislative Council), do swear in
the name of-God that I will
solemnly affirm bear true
faith and allegiance to the Constitution of
India as by law established *and that I will
uphold the sovereignty and integrity of
India."
The returned candidate had filed three nomination
papers with three different proposers on January 20,
1967. Each of the three nomination papers clearly
mentioned that he was a candidate for election to fill a
seat in the Vidhan Sabha for the Gujarat State i.e.
Legislative Assembly of the State. The nomination paper of
the returned candidate contained a form of oath or
affirmation which was both in Gujarati as well as in
English. The English form followed word for word Form No.
VII as set out in the Third Schedule, to the Constitution
and the Gujarati form purported to set out the Gujarati
translation of the form of oath or affirmation. The relevant
difference for the purpose of this appeal between the two
,forms lay in this that the words-"Legislative Assembly" in
the form in English were translated in Gujarati form as
"Rajya Sabha" and the appellant’s contention-before-the High
Court and before us rested
630
solely on the use of this word which according to learned
counsel went to show that the oath that was taken was for
the purposes of filling a seat not in the legislative
assembly of the State but in the Legislative Council of
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the State. At the hearing of the petition be,fore the
High Court the returned candidate gave evidence to the
effect that he had taken the oath not according to the words
in the Gujarati form but ’according to the translation of
the words in the English form rendered by the Returning
Officer. The Returning Officer was merely called to produce
some documents but he was not put on oath nor was he asked
any question to corroborate the testimony of the returned
candidate. The High Court did not accept this testimony and
we see no reason to come to any different conclusion.
We must therefore proceed on the basis that the
returned candidate took the oath according to the words of
the Gujarati form. It was argued before us that ’Rajya
Sabha’ means the Legislative Council of the State *and not
the Legislative Assembly of the State and consequently the
oath taken did not fulfill the requirements of Art. 173(a)
of the Constitution. We were not referred to any official
translation of the expression "Legislative Assembly" in
Gujarati. The word "sabha" means a gathering or a meeting
or an assembly of persons for a definite purpose. Giving the
word "sabha" the said meaning in the expression ’Rajya
Sabha’ it would not be possible to hold that the oath was
not in compliance with the form prescribed in Art. 173(a) of
the Constitution. No doubt by common parlance in many of
the States in Northern India the expression ’Rajya Sabha’
has come to mean the Legislative Council of a State while
the State Legislative Assembly is generally known as Rajya
Vidhan Sabha. But in the absence of any authoritative
translation of the expression "State Legislative Assembly"
in Gujarati we cannot guide ourselves by the popular
rendering of the expression. In this connection it is
necessary to mention that in the State of Gujarat there is
no Legislative Council of the State. The legislature
consists of one house only, namely, the State Legislative
Assembly. There could therefore be no misapprehension
either in the person taking the oath or in the Returning
Officer when he was accepting the nomination paper with the
oath in Gujarati form that the candidate who afterwards won
the election was being nominated as a candidate to fill a
seat in the Legislative Council of the State and not in the
Legislative Assembly.
The High Court held that there was substantial
compliance with the requirements of Art. 173(a) of the
Constitution in the circumstances surrounding the making and
the subscribing of the oath even if the compliance was not
literal. We are in full agreement with that view. The
essential requirement of Art. 173(a) of the Constitution for
our present purpose is that in order to be
631
qualified to be chosen to fill a seat in the Legislature of
a State a person (i) must be a citizen of, India and (ii)
must make and subscribe before a person duly authorised an
oath or affirmation according to the form set out for the
purpose in the Third Schedule. Form VII-A contains the
following essential requirements:
(1) The person taking the oath or making the
affirmation must have been nominated as a candidate to fill
a seat in the Legislative Assembly or Legislative Council;
(2) That he will bear true faith and allegiance to the
Constitution of India as by law established; and
(3) That he will uphold the sovereignty ,and integrity
of India.
The vital requirements, therefore, are (a) the securing of a
nomination, and (b) declaration of beating true faith and
allegiance to the Constitution and a promise to uphold the
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sovereignty and integrity of India. The securing of a
nomination precedes the making of a declaration. The real
purpose of the oath is that the person concerned must give
an undertaking to bear true faith and ’allegiance to the
Constitution and uphold the sovereignty and integrity of
India. This is brought out by the statement of objects and
reasons to the Bill No. 1 of 1963 seeking to amend Arts. 19,
84 and 173 of the Constitution. The statement of objects
and reasons notes the recommendation of the Committee on
National Integration and Regionalism and its view "that
every candidate for the membership of a State Legislative or
Parliament, and every aspirant to, and incumbent of, public
office should pledge himself to uphold the Constitution and
to preserve the integrity and sovereignty of the Union and
that forms of oath in the Third Schedule to the Constitution
should be suitably amended for the purpose". The Bill
proposed to give effect to the recommendation by amending
clauses (2), (3) and (4) of Art. 19 as also Arts. 84 and 173
and the forms of oath in the Third Schedule. The words in
the form of oath in Form VII-A.
"I will uphold the sovereignty and integrity of India"
were inserted by the Constitution Fifteenth Amendment
Act 1963 giving effect to the view of the said committee.
As the essential requirements of the oath given in the
form in the Third Schedule were not deviated from in the
Gujarati form used in this case, we cannot hold that the
oath subscribed in this case was not in compliance with Art.
173 merely because of the popular meaning of the expression
’Rajya Sabha’.
The real question is, whether the deviation, if any,
from the form of oath in English as contained in the Third
Schedule is so
632,
vital as to lead to the conclusion that no proper oath was
taken by the returned candidate. There have been many
instances where this Court has held that a substantial
compliance with the statute or with the rules framed
thereunder is enough even if there be no literal compliance
and in our view there is no reason to adopt a different line
of reasoning in the construction and interpretation of the
Constitution. In all such cases, one must consider the real
purpose of the provision whether statutory or
constitutional, to find out whether notwithstanding the
apparently mandatory form of the words used any deviation
therefrom was to be struck down.
One of the questions which came up for consideration in
Kamaraja Nadar v. Kunju Thevar(1) was whether the election
petition ought to have been rejected merely because the
deposit provided for under s. 117 of the Representation of
the People Act was made in favour of the Election Commission
and not in favour of the Secretary to the Election
Commission as provided for in the said section. Turning
down the argument advanced for rejecting the election
petition it was observed:
"What is of the essence of the
provision contained in s. 117 is that the
petitioner should furnish security for the
costs of the petition, and should enclose
along with the petition a’ Government Treasury
receipt showing that a deposit of one thousand
rupees has been made by him either in a
Government Treasury or in the Reserve Bank of
India, is at the disposal of the Election
Commission to be utilised by it in the
manner authorised by law .........
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" .
In Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore(2) one of the points urged against the petitioner
was that there was non-compliance with the provisions of s.
81 (3) of the Representation of the People Act because the
copy of the election petition served on the appellant was
not a true copy of the original filed before the Election
Commission. Rejecting the said contention it was said:
" .... the word "copy" in sub-s. (3)
of s. 81 does not mean an absolutely exact
copy, but means that the copy shall be so true
that nobody can by any possibility
misunderstand it."
To the similar effect is the judgment in Ch. Subbarao v.
Member, Election Tribunal, Hyderabad(3).
In State of U.P.v. Manbodhan Lal Srivastava(4) one of
the contentions urged on behalf of the respondent who was
reduced
(1) [1959] S.C.R. 583. (2) [1964] 3 S.C.R.
573.
[1964] 6S,C.R,213, (4) [1958]S.C.R.533.
633
in rank after departmental enquiry, was that ’the order of
the Government was invalid for non-compliance with the
provisions of Art. 320(3)(c) of the Constitution which read
literally made it obligatory for the Government of India or
a Government of a State to consult the Union Public Service
Commission or the State Public Service Commission on all
disciplinary matters affecting a person in service of the
State. In turning down the above it was observed by this
Court:
" .... the use of the word shall m a
statute, though generally taken in ’a
mandatory sense, does not necessarily mean
that in every case it shall have that effect,
that is to say, that unless the words of the
statute are punctiliously followed, the
proceeding, or the outcome of the proceeding,
would be invalid."
In State of Punjab v. Sat Pal Dang and State of Punjab
v. Dr. Baldev Prakash & Ors.(1) one of the points canvassed
before this Court was, whether the certificate by the Deputy
Speaker on a Money Bill was sufficient compliance with Art.
199(4) of the Constitution which provides that:
"There shall be endorsed on every Money
Bill when it is transmitted to the
,Legislative Council under article 198 and
when it is presented to the Governor for
assent under ,article 200, the certificate of
the Speaker of the Legislative Assembly signed
by him that it is a Money Bill."
It was contended that the provisions of the above clause
were mandatory and only the Speaker of the Legislative
Assembly could sign the Money Bill. It was pointed out by
this Court that the Speaker was not present when the Bills
were passed and under Art. 180(2) the Deputy Speaker could
act as the Speaker when the latter was absent. This Court
proceeded to examine the several tests to determine when the
provisions of statute might be treated as mandatory ,and
when not, and emphasis was laid on one of the distinctions,
namely, in cases where strict compliance was necessary to be
a condition precedent to the validity of the act itself, the
neglect to perform it as indicated was .fatal.
The above cases are sufficient to show that non-
compliance with the provisions of a statute or Constitution
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will not necessarily render a proceeding invalid if by
considering its nature, its design and the consequences
which follow from its non-observance one is not led to the
conclusion that the legislature or the Constitutionmakers
intended that there should be no departure from the strict
words used.
(1) [1969] 1 S.C.R. 478.
634
In this case, as we have already noted, the essential
requirement of Art. 173 read with Form VII-A was that the
person taking the oath or making the affirmation would bear
true faith and allegiance to the Constitution and uphold the
sovereignty and integrity of India. The words which
precede this portion are merely descriptive of the person
and of his nomination as a candidate. It is reasonable to
think that a mere misprint in the form of the oath or a mere
inaccuracy in rendering the expression "Legislative
Assembly" in Gujarati would not be fatal to the election of
the candidate, if otherwise valid.
In the result, the appeal fails and is dismissed with costs.
G.C. Appeal dismissed
635