Indira Gandhi v. Raj Narain

JNDIRA NEHRU GANDHI (SMT.) _v._ RAJ NARAIN & ANR. _June_ 24, 1975 (V. R. KRISHNA IYER, VACATION )UDGE] _Representation of the Peuple Act,_ 1951, S.116B(2)-Stay _of_ _t'lectio1l_ _Judg-_ _ment_ _and_ _order-Judge-Power-Din1ensions_ _of_ _Judge power to_ _stay-Differ-_ _£·nce_ _between ext:cutive discrerion and judlcial_ _disc.:rt'tion,_ explained-·Cogni~a­ _bility of non-legal arguments in such cases-Equity and ground_ _of_ _"unclean_ luuul~"--Cuurts _cannot go into the_ _nierit,s·_ _of_ _the case at the stage_ _of_ _1.tranti11g_ _stay-Balance_ _of_ _convenience, public justice etc._ _are_ _relevant con:,iderations-_ _Precedents_ _of_ _pre-1966 Election law ure_ _of_ _no value to post-1966 cases_ _of_ _condi-_ _tional !.tay--/llature_ _of_ _"type design" stay orders and their_ _value-Legal_ _effect_ _of a stay order in general and in particular, in the instant_ _case,_ _as_ _a Minister or_ _Pri111e_ _Minister-Power to ask for a review of provisional orders._ In the General Parliamentary Elections of 1971, the appe1lant was declared as a successful candidate from the Rae Bareli Constituency in LTttar Pradesh. She won the election by a margin of 1,11,810 votes over her nearest rival Sri A B c Raj Narain. Sri Raj Narain, respondent No. I, who was sponsored by the Samyukta Socialist Party filed an election petition _u/s_ 80 r/w S.100 of the Representation of the People Act, 1951 to challenge the election of the success- D' ful candidate. A learned single judge of the Al1ahabad High Court upheld the challenge on two grounds rejecting the other grounds of challenge. The learned judge also granted an absolute 20 days' stay. The appellant moved this Court, challenging the 'unseating' verdict against her by the High Court. The appel lant <l'!so sought "absolute stay" of the judgment and order under appeal. Respondent No. I filed cross-appeals against the said judgment rejecting the grounds of challenge, except n.vo. ... ##### ., Allowing the petition and granting the stay in terms, the Court E HELD : l. Whi1e the right to appeal is statutory, the power to stay is discretionary. But judicial discretion-indeed, even executive discretion-cannot run riot. The former though plenary, is governed in its e~ercise by sound guidelines and courts look for light, _inter_ _alia,_ from practice and precedent without however being hide-bound mechanically. Judicial power is dynamic, forward looking and socially luscent and aware. (407 H, 408 _A]_ 2. The court decides forensic questions \Vithout getting embroiled in non- F legal disputes working as it does in a sound-proof system of sorts. The Court is the quiet of the storm centre and views with an equal eye, the claims on each side, taking judicial note of the high issues and balance of convenience in the wider context. The judicial approach is to stay away from political thickets and new problems with institutionalised blinkers on, so long as the court methodology remains the same. Arguments about political sentiment, political propriety and moral compulsion though relevant at other levels, fall beyond the conventional judicial orbit and the courts have to discrirninately 5hift them while deciding on the grant of stay pending an appeal. If national crises and G democratic considerations, and not mere balance of convenience and interests of justice, were to be major inputs in the Judge's exercise of discretion, systematic changes and shifts in judicial attitude may perhaps be needed. But sitting in time-honoured forensic surroundings the Supreme Court is constrained to judge the issues before it by canons sanctified by the usage of this Court. [408 C-fi] 3. The preliminary objection of "unclean hands" not entitling the petitioner/ appel1ant to seek the equitable relief of stay is not founded on facts. The stay order does not state that it was to enable the election of a different leader that H time was granted. The petitioner could not be faulted as having played false to the Court since the Congress Parliamentary Party convoked subsequent to the judgment has full-bloodedly plumped in favour of her remaining in office 406 SUPREME COURT REPORTS [!978] 2 S.C.R. A as Prime Minister and guiding the Party as its one and only leader. In such matters one has go by _prima facie_ materials and probabilities. [408 H, 409 A-El B c D E 4. At the stage when the Court is considering whether a stay should be granted or not, it is premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors absurd conclusions or grossly erroneous propositions of law. The High Court's finding, until upset, holds good, however weak it may ultimately prove. The offence of corrupt practice u/s 123 of the Representation of the People .Act, 1951 may be light or grave, which is for the Bench which hears the appeal _in extenso_ to hold, one way or the other. When findings of contravention of the election law is before the Court, this Court cannot take the _prima_ _fac:ie_ view that the justice of the case justifies indifference to those findings. (410 C, 411A, F-G] _5._ Socio-legal considerations such as prior practice of this Court, specii'i circumstances compelling departure. the balance of convenience, dictates ot public justice, the way in which public interest fies, are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event o[ grant. [411 H, 412 A] 6. It was for the first time in 1966, by amending Act LXVII of 1966, that a statutory right of appeal to the Supreme Court was created by S. l: _6:\_ of the Representation of the People Act, 1951 and a plenary power to grant stay. conditional or otherwise was vested in this Court u/s 116 B(2) of the .'\ct, independently of constitutional remedies. The question of an absolute stay or a qualified stay of the unseating verdict did not and could not arise under the pre-1966 law and to rely upon past precedents as tantamount to absolute stay of an order which took effect would be untenable. [413 G. 414 C-El 7. The "type-design" of stay orders made by this Court under the post1966 law has, with marginal variations, acquired a standardized form. This _cursus curiae_ is more persuasive for adoption, unless exceptional legal or other grounds for deviation are made out for grant of absolute stay. The order-~ are dichotomous in character. They are: (a) that "the operation of the judgment and order of the High Court be and is hereby stayed" and (b) the petitioner shall abide by certain enumerated terms _viz._ (i) that he will be entitled to attend the Sessions of the Legislature and si"gn the Register; (ii) he shalt not take part in the vroceedings of the House or vote or draw any remuneration as such member. (414 F-G, 415 A-BJ 8. Section 8A being the necessary follow-up of the judgn1ent u 1 -~ 100 ot the Representation of the People Act, 1951 the legal effect of an order of this Court suspending the application of the judgment and order of the High Court F is that by sheer force of the first limb of this court's stay order, the judgment and order of the High Court is nu11ified for the nonce i.e. till the appeal is disposed of. Consequently the disqualification also _ipso jure_ remains in abeyance. There is a plenary eclipse of the High Court's judgment and order during the ' G H pendency of the anpeal, subject to the feVv· restraints clamped dov;n on the appUcant. [415 C-D, H, 416 A] 9. This appeal relates solely to the Lok Sabha Membership of the applicant and the subject matter of her office _qua_ Prime Minister is not directly before this Court in this litigation. Indeed that office and its functions are re~lated carefully by a separate fasciculus of Articles in the Constitution. There is some link between membership of one of the two Houses of Parliament and Ministership (Art. 75), but once the stay order is $de. the disqualification regarding Membership is in suspended animation and d-oes not operate. Likewise the apnellant's Membership of the Lok Sabha remains in force so long as the stay IastS. However there will be a limitation regarding the appellants' participation in the proceedings of the Lok Sabha _in her capacity as Member_ _thereof,_ but. independently of the Membership, a Minister and _a fortiori_ the Prime Minister. has the right to address both Houses of Parliament (without right to vote. though) and has other functions to fulfil (Arts. 74, 75. '.18 and s8 are Illustrative..) In short the restraintq set out in die usual stay orde:cannot and \Vill not detract from the appelfant being entitled to exercise ~uch 9. This appeal relates solely to the Lok Sabha Membership of the applicant and the subject matter of her office _qua_ Prime Minister is not directly before this Court in this litigation. Indeed that office and its functions are re~lated carefully by a separate fasciculus of Articles in the Constitution. There is some link between membership of one of the two Houses of Parliament and Ministership (Art. 75), but once the stay order is $de. the disqualification regarding Membership is in suspended animation and d-oes not operate. Likewise the apnellant's Membership of the Lok Sabha remains in force so long as the stay IastS. However there will be a limitation regarding the appellants' participation in the proceedings of the Lok Sabha _in her capacity as Member_ _thereof,_ but. independently of the Membership, a Minister and _a fortiori_ the ###### .. r INDIRA GANDHI _v._ RAJ NARAIN _(Krishna Iyer,_ **J.)** 407 **rights** **as** **she has, including addressing Parliament and drawing salary,** _**in**_ _**her**_ **A** _**capacity**_ _**as**_ _**Prime Atfnister.**_ **There** **\Vill** **thus** **be no ]egal embargo** **on** **her** **holdw** **ing** **the** **office** **of** **Prime** **rvlinister.** **[416 D-G}** **[The** **c;ourt** **gave** **liberty to** **the** **parties** **to** **move a Division Bench** **of** **this** **Court,** **if** **justifying considerations appeared necessary later on, to move for** **variations of the conditions** **of** **the instant stay order]** CIVIL APPELLATE )VRISDICT!ON: Civil Appeal No. 887 of 1975. **B** and _Civil Misc. Petition No._ 3557 _of_ 1975 (Application for absolute and unconditional stay witb an exparte, ad interim order). _N._ _A._ _Palkhiva/a_ and _J._ _B._ _Dadachanji_ for the Appellant. **c** _J._ _P._ _Goyal_ for the Respondent. ORDER 1. Right at the beginning, I must record appreciation of the valuable assistance given by counsel on both sides to the Court in **D** olarifying the twilit aspects and unravelling the latent facets of what, viewed in typically isolated legal perspective, unturned to the national wave-length and unclouded by the dust-storms of politics, is a humdrum case. Having reg-drd to the obstroperous environs and mounting tensions surrounding the events following upon tbe judgment of the Allahabad High Court. it must be stated to tbe credit of Shri Palkhivala and Shri Shanti Bhushan that in their suave submissions they **E** have shown how sound and fury only llelp thwart the thought-ways of law and extra-legal tumults can be walled off from the Court hall. The arguments have been largely legal and their merits have to be weighed in judicial scales. What, perhaps in a certain view, are _nat_ strictly pertinent to the stay proceedings have, however, been adverted to at the bar, inevitably and understandably, but within marginal limits, if I may say so, because the proceedings in tbe Halls **F** of Justice must be informed, to some extent, by the great verity that tbe broad sweep of human history is guided by sociological forces beyond the ken of tbe noisy hour or tbe quirk of legal nicety. **Life** is larger than Law. Now I proceed to discuss the merits of the matter. 2. The appellant has moved this Court challenging the 'unseating' **G** verdict against her by tbe High Court. She has also sought 'absolute stay' of the judgment and order under appeal. Entering a caveat, the respondent has also appeared through counsel and opposed the grant of stay. 3. While tbe right to appeal is statutory, the power to stay is <liscretiomrry. But judicial discretion-indeed, even executive dis- **H** cretion-cannot run riot. The former, though plenary, is governed in •Already reported in (1976) 2 S.C.R. P. 347. 408 SUPREME COURT REPORTS (1978] 2 S.C.R. A its exercise by sound guidelines, and courts look for light, _inter aha._ from practice and preced"nt, without however being hide-bound mcchun:.:nlly by the past alone. After all. Judicial power is dynamic, forward-looking and socially luscent and aware. I mention this dime·1sion of 'judge-power' because the industry and ingenuity of bo:h lawyers have unearthed prior instances zigzagging now and then but substantially striking the same note. A few orders from the debris B of old records have been brought up which seem to suggest 'ariatinm in the type of stay granted by th;: higher courts. I shall haw occasion tc dilate on them a little later. Suffice it to nole that the **power** **of** **the court must rise to the** **occasil)Il,** **if** **justice,** **in** **its** **largt:r** ... connotation, is the goal-and it is. **'i** c **D** **E** F **G** **H** 4. Having rogard to the historic power-stakes invohed in this election appeal and stay proceeding, vigorous argumenb, marked bv strokes of heat and flashes of light, have been heard in thi.s application for stay and the time consumed at the bar has been considcrablv more than when like matters have been routinely dealt with b,· this Court. Let it be plainly understood that the Court decides torensic questions without getting embroiled in non-legal disputes working a< **it** **does in a sound-proof system** **of** **sorts.** **Moreover,** notwith~tanding **the unusual. though natural, excitement and** **in1portance** **surroundiag** the case. the Court is the quiet of the storm centre and views, with an equal eye, the claims on each side, taking judicial note of tht: high issues and balance of convenience in the wider context. Argu .. **n1cnts** **about public** **sentiment,** **political** **propriety** **and moral con1pul-** sion, though touched upon at the bar and relevant at other levels fall beyond the conventional judicial orbit and have to be discrimi natefy shifted. Nevertheless, Shri Palkhivala. has pressed before me the propriety and urgency of the Court taking into consideration the **national situation even while exercising its discretionary po\ver.** A~ a counterweight to this submission, Shri Shanti Bhushan l1'1s claimed that no republic can sum,nder its democratic destiny to a single soul without being guilty of ol'erpowering the parliamentary process by a personality cult. This brings to the fore an activist interrogation about the cognisibility of such considerations by a courl. Do the judicial process and its traditional methodology sometimes make the Judicature look archaic, with eyes open on law and closed on society, forgetting the integral yoga of law and society ? If national crises **and democratic considerations,** **and not mere balance** **of** **convenience** **and interests** **of** **'justice', were to be major inputs in the** Judg~.·s **exer-** c;se of discretion. systemic changes and shifts in judicial attitudes may perhaps be needed. Sitting in time-honoured forensic surroundings I am constrained to judge the issues before me by the canons sanctified by the usage of this Court. 5. Now to the points urged before me. More or less by way of preliminary objection, Shri Shanti Bhushan asserted that the petitioner. having come with unclean hands. was not entitled to seek the equitable relief of stay. How were her hands unclean ? Because. the argument runs, her advocate induced the High Court into granting a stay by misrepresenting that if the judgment came into immediate , ' ~. INDIRA GANDHI _v._ RAJ NARAIN _(Krishna Iyer,_ J.) 409 effect, the national government wonld be paralysed for want of a A Prime. Minbtcr and so time was needed for the ruling Party to elect a new leader to head the Government. Taken in by this alleged critical need of the democratic process, the learned Judge granted 20 days' stay. This spell, ingeniously secured, was perverted to consolidate her leadership, not to find a successor. If this version of the respondent wae veracious, the petitioner's conduct were dubious and this Court would not COJldone such 'solemn mockery'. But Shri Shanti B Bhushan's submission loses its sting if Shri Palkhivala were to be heeded. For, according to the latter, all in a hurry a stay was moved by the Allahabad advocate praying for stay stating both the need to elect _a_ _leader_ (not, another leader) and to enable filing of an appeal. The Congress Parliamentary Party was since convoked but there was a thunderously unanimous vote reaffirming faith in the petitioner as leader and Prime Minister. If her Party so full- C bloodedly plumped in favour of her remaining in office as Prime· Minister and guiding the Party as its one and only leader, the petitioner could not be faulted as having played false to the Court. She could only call a meeting of the Party but not coerce the members to elect anyone other than the one they had set their hearts upon. Whether that Party's leadership resources were too inadequate to secure an alternative chief may be an interesting question, but the D Court does not peep into that penumbra! area. Moreover, the stay order does not state that it was to enable the election of a different leader that time was granted. I have no good reason to reject the petitioner's plea that the choice of an alternative leader was left to her Party, that she did what she could in the spirit of the representation to Court and did not what she could not viz., to force her partymen to push her aside for the nonce for the Court's satisfaction. E In these matters one has to go by _prirna_ _facie_ materials and probabilities. I overrule the 'unclean hands' objection. 6. Shri Palkhivala, for the petitioner, contended that an unconditional stay was appropriate and essential because (a) it was Sanctioned by some precedent; (b) there were momentous consequences disastrous to the country if anything less than the total suspension of the order under appeal were made; (c) the adverse holding of the High Court on two counts hardly exceeded, even on its face, technical violations unworthy of being visited· with an _ad_ _interim_ embargo on Parliament Membership during the pendency of the appeal apart from being palpably perverse and (d} the nation was solidly behind the petitioner as Prime Minister. Minimal justice, public interest and balance of convenience concurred in his favour. Shri Shanti Bhushan, on the contrary, joined issue on these pleas and asserted that (a) the appellant must be treated like any other party; (b) that an absolute stay was unprecedented; (c} that the democratic process would take care of itself even if the petitioner stepped aside for a while: (d} the corrupt practices were corrupt in law and fact, fully proved and could not be glossed over by a court of law as technical and ( e) the alleged solid support by party minions meant little since similar phenomena could be organized by any strategist in top office and the rule. of law cannot be drowned by the drums and shouts F G H 410 SUPREME COURT REPORTS [1978) 2 S.C.R. A of numbers. In his submission, public interest aud balance of convenience as also justice to the High Court judgment demanded that an illegally elected Member did not continue longer as Prime Minister under the umbrella of a stay order from this Court, without jeopardizing the credibility of the country abroad. 7. Shri Palkhivala assailed, in his opening submis;ions, the two B findings recorded against the appellant holding her guilty of corrupt practice. Indeed, he was at pains to convince me that his client had #### a strong prima facie case on the merits, in the sense that the judgment, J on its face, was perverse and legally untenable. Although I listened, at some length to these arguments and, tO an extent, to the countersubmissions made by Shri Shanti Bhushan in his endeavour to establish that the holdings were sound, I made it fairly clear in the course C of the bearing that at this stage when I was considering whether a stay should be granted or not, it was premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judg - ment contained grotesque errors, absurd conclusions or grossly erroneous propositions of law. Having considered the submissions on this basis, I do not think I should express any opinion one way or the other on the merits of the findings. Nor do f regard it just for D counsel for the respondent to say that every discrepancy in the petitioner's evidence or other incorrectness in testimony can be called false. Not to accept a witness's evidence may be due to many grounds of probability not always because of unvercity or unreliablity. These aspects will surely be examined at the hearing of the appeal, not now. E F G H 8. Counsel for the petitioner, after dealing with the _ex-facie_ untenability of the judgment under appeal which I have just disposed of, moved on to what he called justice between the parties. This is not an ordinary _lis,_ where even after stepping down from office, the petitioner can, if and after she wins the appeal step back into oilicc. In politic~ 'red in tooth and claw', power lost is not necessarily followed, after legal victory by power regained. The Court cannot in that sense, restore the parties to their original position as in ordinarv cases. However, the respondent suffers no prejudice by the con:inuance of the petitioner as Parliament Member and Prime Minister. To cap it all, there is hardly a run of a little over half-a-year for the full term of this Parliament to expire. So, he pressed for continuance of the _status quo_ which had gone on for a few years now during the pendency of the Election Petition. 9. The respondent's counsel retorted that the question of iustice between two private persons was alien to election litigation and cited a ruling to emphasize what is obvious. In an election case, the whole constituency is, in an invisible but real sense, before the court and justice to the electoral system which is the paramount consideration is , b(:St done by safeguarding the purity of the polls regardless of the little rights of individual combatants. 10. At the first flush I was disposed to prolong the 'absolute stay' granted by the High Court, moved not only by what Shri Piilkhivala ' INDIRA GANDHI _v._ RAJ NARAIN _(Krishna_ _Iyer,_ _J.)_ 411 had urged but by another weighty time factor that the appeal itself, in the light of the directions I have a:lready given yesterday, may well be decided in two or three months. But on fuller reflection _I_ have hesitated to take that course. After all, the High Court's finding, until upset, holds good, however weak it may ultimately prove. The nature of the invalidatory grounds upheld by the High Court, I agree, does not involve the petitioner in any of the graver electoral vices set out in Section 123 of the .Act. May be they are only venial deviations but the law, as it stands, visits a returned candidate with the same consequence of invalidation. Supposing a candidate has transported _one_ voter contrary to the Jega! prohibition and even though he has won by a huge plurality of votes his election is set aside. Draconian Jaws do not cease to be law in court but must alert a wakeful and quick-acting legislature. So it follows that I cannot, at this preliminary stage, lightly dismiss the illegality of the election as held by the High Court. But more importantly, I am disinclined to set store by Shri Palkhivala's 'Private justice' submission (to borrow his own phrase) because the ultimate order I propose to make, if I may even here anticipate, substantially preserves the position of the petitioner as Member of Parliament and does not adversely affect her legal status as Prime Minister. 11. In another facet of the same argument Shri Palkhivala urged that, after all, the petitioner had been held 'technically' guilty of 'corrupt practice' and that the grounds set out by the learned Judge were too flimsy to stand scrutiny at the appellate level. Therefore, the 'justice' of the case demanded continuance of the 'absolute stay' granted by the trial Judge himself. Shri Shanti Bhushan, on the other side, refuted this submission as specious. His argument is this. 'Corrupt practice' could not be dismissed as 'technical' if one had any respect for the Jaw of the land as laid down by Parliament. Once the Jaw has defined 'corrupt practice', commission thereof cannot be condoned as 'technical.' That is definace of the Jaw and challenge to the wisdom of Parliament. It is one thing to amend the law, but it is another to disregard it on a ground unknown to Jaw that is only a nominal deviance. I am afraid it is premature and presumptuous for me, at this stage, to pronounce upon the relative worth of the findings of the High Court. The offence may be light or grave. But that is for the Bench which hears the appeal i11 _extenso_ to hold, one way or the other. Before me are findings of contravention of the election Jaw and I cannot take the _prima_ _facie_ view that the justice of the case justifies indifference to those findings. In short, I am not influenced by this aspect of Shri Palkhivala's argument. 12. Leaving aside the injury to private rights as of lesser consequence in election disputes, Jet me look at the customary factors courts are prone to probe in stay matters where the discretion vests in court. 13. What has been the prior practice of this Court in such cases ? What, if any, are the special circumstances compelling departure in favour of the petitioner ? What is the balance of convenience ? A B c D E F G H A **B** c **D** E **F** G H 412 SUPRE'.VIE COURT REPORTS [1978] 2 S.C.R. What does the public justice of the case dictate ? Which way docs public interest lie ? These are the socio-legal consiJeratiom which arc relevant to the grant or refusal of stay and the terms to be imposeJ on the petitioner in the event of grant. Stay pending appeal has been usually granted but hemmed in by conditions. The respondent himsdf has filed a sheaf of orders of conditional stay granted by this Court. **suggesting** **by** **iinp-1.ication** **that those conditions** ~houlJ **be** attach~d **to** any stay the Court may be inclined to issue. The terms in which such limited stay orders have been couched, the legal implications thereof. the right sun;ving under them and the impact thereof on the office of Prime Minister of the petitioner will be scanned more closdy later in this order. Suffice it to say for the present that for arom;d two decades there has rarely been what Shri Palkhivala calls an ·absolute stay' issued by this Court in election cases where a Member has bet'll unseated by foe High Court for corrupt practice. 14. There was reference at the bar to political compubion' like the swell of the tidal wave in favour of the petitioner which, even if true (though controverted by the other side), cannot breach the legal dykes to force a stay where precedentially it has not been grantcJ. Nor can the national crisis, conjured up by counsel for the petitioner, in the event of her exit from office, be a valid legal consideration, even if it may perhaps have weight in other spheres. Shri Shanti Bhushan urges that moreover one cannot readily accept that the nation will come to a grindin~ halt it one person is not available to fill the office of Pr;me **Minister.** **l make no comments on these rival presentations** **for** **it** **is** difficult for the Judge to guage with his traditional court roon apparatus the reality and extent of the circumstances of national magnitude the parties have dwelt upon. 15. So w·o come to the next criterion which is commonplace in this jurisdiction viz., the balance of convenience. Herc. co•1~sel tor the petitioner has addressed an attractive argument (repeating in some measure what, under a different head, he had urged) that if the appea: itself were disposed of early, the continuance of the _status quo_ would gc• a long way ro preserve and promote administrative stability and policY continuity. having regard to the fact that the petitioner in this case wa> more than a Member of Parliament but was the Prime Minister and leader of the ruling Party. In a democracy, the Prime Minister i,; the central figure who decides crucial internal and international policy. **directs** **n1casures** **of** **great** **economic moment** **and** **is** **responsible** **and** accountable to the Parliament and the nation for the performance of the Administration. Of course, collective Cabinet responsibility is of the essence of the democratic process, but the Council of Minister< is virtually chosen by the President in accordance with the wishes of the Pri,ne Minister. The broad guidance of the Party in power notwithstanding. the personality of a Prime Minister has a telling effect on democratic government. If, therefore, the appeal itself will be disposed of in some months, as it is likely to be, the balance of convenience will be in favour of continuance of the same team which is animated by the Presence of the key personality within the Council of Ministers. Again, the short spell of the pendency of the appeal-1 INDIRA GANDHI _v ._ . RAJ NARAIN _(Krishna Iyer,_ J.) 413 case of ttis climactic pitch deserves to be disposed of with quick dispatch and I have already given some directions to facilitate it-is a strong factor for non-disturbance of the petitioner's position, having regard to the traumatic effect on and grievous consequences to the petitioner. ·· Of co~rse, these a.re components of. a wider cpncept of ~al­ ance ·of convemence and not altogether forbidden ground m dealing with discretionary exercise. May be there is some force in the plea that there should be a stay of operation of the judgment and order in such manner that upsetting the Ministry in office should be obviated. Ordinarily. even with·the same Party ruling; when a Prime Minister resigns, the whole team is ushered out leaving it free for the new leader to choose his new set. # _I_ B ## L rl 16. Shri Shanti Bhoshan has countered this argument by reliance on the practice in the parliamentary system where within the ruling C Party a leader is changed or ceases to be available and a new leader is . elected, so that the democratic process finds smooth expression. This, he said, has happened in India, as elsewhere and no plea of balance of convenience can be built on what in fact is a desire to remain in office.· The judicial approach, as already pointed out by me, is to shy away from political thickets and view problems wit!) institutionalised blinkers 'on, so long as the court methodology remains what it is. D So no comments again. But the balance of convenience, widely or limitedly connoted, is reasonably taken care of in the shape of the conditional stay granted at the conclusion of this judgment. 17. Shrl Palkhivala drew iny ·attention. to a few vintage. instan~es of what he calls _absolute stay_ having been granted in election matters by higher Courts. These are cases of Jong ago and the argument E based on them stems from an insufficient comprehension about the . anatomy of the pre-1956 Representation of the People Ac!,.1951 (Act XLIH of 1951). The Court speaks for today, based on current practice and present law. 18. In this context· it is necessary to remember that in the Act as it originally stood, Election Tribunals tried election disputes and F s. 107 provided : 107. _Orders to take effect only on_ _publication-An_ order of the Tribunal under section 98 or section 99 shall - . not take effect until it is published in the Gazette of India under section 106." Indeed, there was no right of appeal provided in th~ Act and the G aggrieved parties had to approach the High Court or the Supreme Court· under the provisions of the Constitution. The higher Courts in such situations merely stayed the publication in the Gazette, the consequence being that the order of the Tribunal did not come into effect at all. The question, therefore, of an absol!Jte stay or a qualified stay of the unseating verdict did not and could not arise. To rely upon H orders passed under the then Jaw merely staying publication of the order of the Tribunal in the Gazette as tantamount to absolute stay of an order which took effect would be untenable . , . _···-,,-_1,: . .,,---:_ ·,,, ,_. ·'. SUPREME COURT REPORTS [1978] 2 S.C.R. ·19. In 1956 a major change in the law was made ·whereby the order of the Election Tribunal appointed under s. 86 ~shall take . - effect as soon as it is pronounced by the Tribunal' ( vide s. 107, as amended by Act XXVII of 1956). By the same amending Act, an appeal was provided from orders of Election Tribunals to the High Court of the State ands. 116A(4) clothed the High Courts with power to stay operation of the order appealed from .and if stay was granted 'the order shall be deemed never to have taken affect'. Of course, against appellate orders of the High Court the disappointe\I party.could come to this Court under the provisions of the Constitutiop (Arts. 133 or 136).. ·· . 20. Still later, by amending Act No. LXVII of 1966, the High Court was conferred original jurisdiction to try• election petitions and_ it was provided in s. 107 that the order of the High Court 'shrul take effect as soon as it is pronounced •..• '. While a limited power_ to stay operation of the order of the High Court was conferred by · · s. 116B(I) on. the High Court itself, the statutory right of appeal to the Supreme Court was provided for by s. 1J6A. However, by virtue of s. 116B(2) it was enacted : . --- . "116B(2). Where an appeal has been preferred against an order made under section 98 or section 99, the Supreme Court may, on sufficient cause being shown and on such terms . and conditions as it may think fit, stay the operation of the order appealed from." ·· ·· - · Thus, for the first time, it was in 1966 that a statutory right of appeal to this Court was created and a plenary power to grant sta,y, conditional or otherwise, was vested in this Court, independently · of **constitutioqal remedies.** - ' -, 21. This narration of the historical background regarding the pre-1966 statutory position is sufficient to distinguish old examples of the pattern of stay. granted by this Court. Today there is no-case of prohibition of publication in the Gazette. Above all, the type-design, if I may use such an expression, of stay orders made by this Court under the present law has, with marginal variations, acquired a standardised **form. Naturally, this** _**cursus curiae**_ **is more persuasive for adoption,** unless exceptional legal or other ·grounds for deviation are made out for grant of absolute stay. 'i ">. A 'i ">. B c D F \ G 22. Even on the basis of the post-1966 law, Shri Palkhivala has argued that taking legitimate cognizance of the peerless position of the appellant as Prime Minister of the country, judicial discretion mnst least disturb not merely her. seat in Pl!rliament but her office in Gp'vernment. 23. T proceed to take a close-up of the 'sample orders' made by H this Court durini the last many years, 'dissect them in the background . of the judgments under appeal where such orders were passed and mould my order deriving support therefrom. So I tnrn the focus OIJ the implications and effect of the stay orders in the cases covered' by INDIRA GANDHI _v._ RAJ NARAIN _(Krishna_ _Iyer,_ J.) 415 Annexure A filed by the respondent which are in consonance with the A usual orders passed by this Court in election appeals. 24. It is evident on its face that the orders are dichotomous in character. The two limbs stand out clearly and they are: (a) that 'the operation of the Judgment and Order of the High Court be and is hereby stayed' and (b) the petitipner shall ·abide by certain enumerated terms _viz.,_ (i) he will _be entitled to attend the Sessions of the Legislature and sign the Register; (ii) he shall not take part in the proceedings of the House or vote or draw any remuneration as such Member. In the instances I have examined, the appeals are against orders 'unseating' the returned candidate on the ground of corrupt practice and disqualifying him for the statutory six-year period prescribed in s. SA. If cprrupt practice is found, disqualification follows, although sometimes the trial Court expressly writes it into the order itself, as in the present case. If the finding of corrupt practice does not come into effect, the sequel of disqualification also does not come into effect. If the biopsy of the stay order inevitably shows that the finding of corrupt practice is suspended and is not operative, the electoral disqualification automatically stands eclipsed. Section SA being the necessary follow-up of the judgment under s. 100, what is the legal effect of an order by this Court suspending the operation of the judgment and order of the High Court ? By sheer force of the first limb of this Court's stay order, the judgment and order of the High Court is nullified for the nonce i.e., till the appeal is disposed of. Consequentially, the disqualification also _ipso_ _iure_ remains in abeyance. 25. What then is the import of the conditions imposed in the stay order ? They inhibit the elected member, who otherwise by virtue of the stay of the judgment, will be entitled to exercise all his rights and privileges as Member, from doing certain things expressly tabooed, _viz.,_ (a) participating in the proceedings; (b) voting or drawing remuneration. For all other purposes, the voiding judgment being suspended, he continues as Member. Indeed, the very direction that he attend the House and sign in the Register as _Member_ to avoid disqualification under Art. 101 of the Constitution postulates that he is a Member and is not disqualified under s. SA of the Act. For, if the disqualification under s. SA operates and he ceases to be a Member, there is no need to veto his drawing remuneration, voting or participating in the proceedings. It would be a curious contradiction to say that a person is disqualified to be chosen as or being a Member and yet be allowed to sign the Register _as_ _Member._ Can the Court, without stultifying itself and usurping power, permit a non-Member to sit in the House instead of or even in the Visitor's gallery, unless it necessarily reads into the order of stay of judgment a suspension of the disqualification also ? There are a number of other privileges for a Member of Parliament which are left untouched by this Court's prior stay orders. Moreover, the specific direction suspending the judgment and order under appeal, read in its plenitude, also suspends the finding of corrupt practice. So much so, the disqualification also shares the fate. I have no doubt that the reasonable effect of a stay c E F G H A **B** c D E F G **H** **416** SUPREME COURT REPORTS [1978] 2 S.C.R. order is that there is a plenary eclipse of the High Court's judgment and order during the pendency of the appeal. subject to the few restraints clamped down on an appellant. Those restraints are the second limb of the stay order and are explicit enough. 26. The essential point to note is that by necessary implication the disqualification imposed on every appellant abo stands suspended in all cases of conditional stay. The stay is complete, but carved out of it are but three limitations. For all other purposes, the appellant, in all such cases, continues a Member. For instance, if he is prevented from entering the Legislature, a breach of privilege arises. l have gone at length into these ramifications to remove recondite doubts. The typical stay restores to the appellant, during its operation, the full status of a Member of a Legislature _minus_ the right to participate in **debates, including voting and drawing of remuneration** us a **legislator.** 27. For these reasons I propose to direct a stay, substantially on the same lines as have been made in earlier similar cases, modified by the compulsive necessities of this case. 28. What would be the legal impact of an order of this type on the Prime Ministership of the petitioner ? The question canvassed about the office of the Prime Minister and its involvement in the present case has exercised counsel on both sides and it is but proper to dissolve the mists of possible misunderstanding by an explicit statement. This appeal, it is plain. relates solely to the Lok Sabha Membership of the appellant and the subject matter of her office _qua_ Prime Minister is not directly before this Court in this litigation. Indeed, that office and its functions are regulated carefully by a separate fasciculus of Articles in the Constitution. There is some link between Membership of one of the tw,d Houses of Parliament and Ministership (Art. 75) but once the stay order is made. as has been indicated above, the disqualification regarding Membership is in suspended animation and does not operate. Likewise, the appellant's Membership of the Lok Sabha remains in force so long as the stay lasts. However, there will be a limitation regarding the appellant's participation in the proceedings of the Lok Sabha _in her_ _capu<"ity_ _as_ _Member thereof,_ but, independently of the Membership, a Minister and, _a fortiori,_ the Prime Minister, has the right to address both Houses of Parliament (without right to vote. though) and has other functions to fulfil (Arts. 74, 75, 78 and 88 are illustrative). In short, the restrictions set out in the usual stay order cannot and will not detract from the appellant being entitled to exercise such rights as she has, including addressing Parliament and drawing salary, _in her capacity_ _as Prime Minister._ There will thus be· no legal embargo on her holding the office of Prime Minister. However, this legal sequitur of the situation arising from the stay of the judgment and order of the High Court, including the suspension al' the disqualification under s. SA, has nothing to do with extra-legal considerations. Legality is within the Court's province to pronounce upon, but canons cf political lNDIRA GANDHI _v._ RAJ NARAIN _(Krishna Iyer,_ _J.)_ 41 7 propriety and democratic _dharma_ are polemical issues on which judi- A cial silence is the golden rule. ,,,.' ### • ' 29. It is true that between an absolute stay as sought and the stay as granted there is practically little difference when the petitioner is a Minister. Moreover when the House is not in session, as now, even the restrictions set out in sub-para III of para 31 of this order hardly have any operation. In this view, the dispute between the parties one asking for an absolute stay (as if it were a magic formula) and the other citing heaps of orders of conditional stay for adoption (as if much difference would be made in practical effect) appears to be shadow-~oxing, as pointed ont by me even during the arguments. B 30. Maybe, brevity which is usual in this Court in orders of stay C of this sort might well have sufficed here also but, the over all desirability to dispel possible ambiguity warrants a hopefully longer speaking order. 31. Let me sum up the terms of the operative order I hereby ~: D I. Subject to para III be~ow, there will be a stay of the operation of the judgment and order of the High Court under appeal. II. Consequentially, the disqualification imposed upon the· appellant as a statutory sequel under s. SA of the Act and E as forming part of the judgment and order impugned will also suspended. That is to say, the petitioner will remain a Member of the Lo'k Sabha for all purposes except to the extent restricted by para III so long as the stay order lasts. III. The appellant-petitioner, _qua_ Lok Sabha Member, will be F entitled to sign the Register kept in the House for that purpose and attend the Sessidns of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration _in her capacity as_ _Member_ _of_ _the_ _Lok Sabha._ IV. Independently of the restrictions under para III on her Membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise to take part in the proceedings of either House of Parliament or a joint sitting of the Houses (without right to vote) and to discbarge other functions such as are laid down in Articles 74, 75, 78, 88 etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected _dr_ detracted from on account of the conditions contained in this stay order. G H A B 418 SUPREME COURT REPORTS [1978] 2 S.C.R. 32. This order, by me sitting single as Vacation Jndge, is being delivered with a sense of hurry, although after careful consideration of arguments head till last evening. Now the Parliament in not in session and the vetp on the right to vote is currently academic. Situa tions may develop, circumstances may change and this order itself, like any interlocutory order, is provisional. If new events like the convening of Parliament take place or fresh considerations crop up warranting tlie review of the restrictions in this stay order, the petitioner-appellant will be at liberty to move a Division Bench of this Court again to modify the restrictions or pray for an unconditional stay. Likewise, the respondent may also, if justifying considerations appear anew move for variation of the conditions in this stay order. S.R. _Petition_ _allowed._ Ll114 SCI/77-2.500--23-6-78-GIPF. / "