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1975 (6) TMI 56
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....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 not 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 the Halls of Justice must be informed, to some, extent, by the great verity that the broad sweep of human history is guided by sociological forces beyond the ken of the noisy hour or the 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' verdict against her by the 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 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 Already reported in (1976) 2 S.C.R. P. 347. its exercise by sound....
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.... 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 Judge's exercise 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 canon's 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 effect, the national government would be paralyzed for want of a Prime, Minister 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 2....
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....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 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 of numbers. In his submission, public interest and 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 submissions, the two findings recorded against the appellant ho....
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....lection 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 best 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 PalKhivala had urged but by another weighty time factor that the appeal itself, in the light of the directions I have already 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 or 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 legal prohibition and even though he has won by a huge plu....
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....ch cases What, if any, are the special circumstances compelling departure in favour of the petitioner ? What is the balance of convenience ? What does the public justice of the case dictate ? Which way does public interest lie ? These are the socio-legal considerations which are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. Stay pending appeal has been usually granted but hemmed in by conditions. The respondent himself has filed a sheaf of orders of conditional stay granted by this Court, suggesting by implication that those conditions should be attached 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 surviving under them and the impact thereof on the office of Prime Minister of the petitioner will be scanned more closely later in this order. Suffice it to say for the present that for around two decades there has rarely been what Shri Palkhivala calls an 'absolute stay' issued by this Court in election cases where a Member has been unseated by the High Court for corrupt practice. 14. There was reference a....
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....eserves 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 course, these are components of a wider concept of balance of convenience and not altogether forbidden ground in 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. 16. Shri Shanti Bhushan has countered this argument by reliance on the practice in the parliamentary system where within the ruling 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 appro....
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....the High Court the disappointed party could come to this Court under the provisions of the Constitution (Articles 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 Section 107 that the order of the High Court 'shall 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 Section 116B(1) on the High Court itself, the statutory right of appeal to the Supreme Court was provided for by Section 116A. However, by virtue of Section 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 stay, conditional or otherwise, was vested in this Court, independently of Constitutional remedies. 21. This narration of the historical backgr....
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....ded and is not operative, the electoral disqualification automatically stands eclipsed. Section 8A being the necessary follow-up of the judgment under Section 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 jure 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 Article 101 of the Constitution postulates that he is a Member and is not disqualified under Section 8A of....
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.... 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 fascicules of Articles in the Constitution. There is some link between Membership of one of the two Houses of Parliament and Ministers (Article 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 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 (Articles 74, 75, 78 and 88 are illustrative). In short, the restrictions s....