measures taken to protect the person of the holder of the office when
electioneering as though the Prime Minister and the candidate were two
different persons. He was unable to see that so long as the person was the
same the distinction between the two capacities or personae for the purposes
for which facilities were given and protection provided, was both factually as
well as legally impossible and quite immaterial.
468. I also think that the learned Judge erred in holding that such a case
could be one of solication of official aid and assistance at all. It is a case in
which certain precautions are taken and arrangements made almost
"automatically", if one may use this word here by officers of the State as a
matter of duty towards the office held by a candidate who undoubtedly enjoys
certain advantages which an ordinary candidate cannot have. It is as futile to
complain of such a distinction made as it is to complain that a candidate
possesses certain advantages at an election because of the personal services
rendered to the country or distinctions achieved by the candidate. Again,
there are advantages which attach themselves to a candidate because of that
candidate's personal qualities, qualifications, capacities or background. The
appurtenances of office or distinctions achieved are in my opinion,
comparable to such personal advantages in so far as they are not enjoyed
because they are "obtained" or "procured". If such a result in law in unfair, it
is not for Courts to find a remedy by accepting the argument advanced before
us also : that those who enjoy the benefits of office must be made to realize
and suffer some of its handicaps. This clearly means the benefit which law
gives, without solicitation by the candidate must be converted, by a judicial
fiat, into a disadvantage and a handicap. It is for Parliament to step in and
change the law if an alteration of it is considered necessary by it. The only
change that need be made in the law if that could be the legislative intent is
to provide that the holder of any office for the time being would not be
qualified to stand at an election. In that event holders of all Ministerial
Offices will have to resign before they offer themselves as candidates. But
such is not our law found in the 1951 Act or anywhere else. I think that it
would be extending the scope of S. 123(7) too wide to hold that the facilities
automatically provided by the State to the Prime Minister by virtue of his or
her office are also struck by a provision directed against soliciation of official
aid and assistance by candidates.
469. The learned Judge had mentioned a Division Bench decision of the
Allahabad High Court in Motilal v. Mangla Prasad AIR 1958 All 794 at P.
797 where it was laid down :
"We think that the word 'obtain' in Section 123(7) has been used in the
essence of the meaning which connotes purpose behind the action of the
candidate. The word has not been used in the sub-section in the sense of a
mere passive receipt of assistance without the candidate even being conscious
of the fact that the assistance has been rendered. In order to bring the case
under sub-section (7), it must be shown that the candidate did make some
effort or perform some purposeful act in order to get the assistance."
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