The well-recognised rule of construction of statutes, which must apply to
the interpretation of the Constitution as well, is : ‘‘Expressio Unius Est
Exclusio Alterius’’, From this is derived the subsidiary rule that an expressly
laid down mode of doing something necessarily prohibits the doing of that
thing in any other manner. Therefore, what is separately, expressly, and
especially provided for by Article 329 (b) must necessarily fall outside the
purview of Article 105 (3) on the principle stated above. Moreover, Article 105
(3) contained a temporary provision until other provision was made by
Parliament in that behalf. Appropriate provisions were enacted by the Act of
1951 in compliance with Article 329 (b) because that was the proper Article
for it. It would be idle to contend that these provisions suddenly lapsed or
ceased to exist as soon as parliament took up consideration of the issues and
the grounds of the decision on them by the High Court to which reference is
made in Article 329-A (4). Again, a purported exercise of power, in enacting
Article 329-A (4), would only be a law making power and not any other power
which could conceivably fall under Article 105 (3).
(Paras 588, 590)
The Act of 1951, enacted under the provisions of Article 329 (b) of the
Constitution, provided a procedure which could not be circumvented. This
procedure was certainly applicable until 10-8-1975 when the 39th
Amendment received Presidential assent. Rights of appeal under Section 116A of the Act of 1951 having been invoked by the returned candidate, the
Prime Minister as well as by the election petitioner, and the operation of the
High Court’s order having been suspended, the position was, in the eyes of
law, that the election dispute was continued by a proceeding, exclusively
prescribed by Article 329 (b) for the resolution of the dispute, pending in the
Supreme Court Despite the impression created by the terms of the
declaration at the end of clause (4) of Article 329-A, the Court cannot assume
that Parliament took over the case into its own hands to decide it an to
incorporate the result in the form of Article 329-A (4) so that this may take
the place of a possible judgement of the Supreme Court. Parliament could not
be deemed to be unaware of the bar created by Article 329 (b) and the 1951
Act. Parliament could not therefore be assumed to have withdrawn and then
to have decided a particular case in a particular way by applying its own
norms. It is presumed to know the law. Ostensibly, Article 329-A (4) is part of
an amendment of the Constitution for the purposes found in the Statement of
Objects and Reasons. Only the declaration given at the end of it suggests
that, in the course of it, the effect upon the case before the Supreme Court
was considered and dealt with.
(Paras 600, 604)
If the contention that the 39th Amendment bars the jurisdiction to hear
the appeals under Section 116-A of the Act of 1951 on merits is accepted, the
total effect would be that justice would appear to be defeated even if, in fact,
it is not so as a result of the alleged bar to the Court’s jurisdiction if it were