Counsel supporting the amendment, itself meant to convey that, after going
into the disputed questions of fact, the constituent bodies had reached the
conclusion that the order and the findings must have no legal effect. Indeed,
the Solicitor-General went so far as to submit that Parliament must be
deemed to be aware of the contents of the whole record of the proceedings in
the High Court, including the pleadings, the evidence, and the findings in the
judgment of the High Court, as these were all available to it. In other words,
we must imagine and suppose that, whatever may be the actual position.
Parliament had sat in judgment over the whole case as a Court of appeal
would have done. But, the impugned clause (4), if valid, would compel us to
make a contrary assumption in as much as it declares that all laws prior to
the 39th Amendment, relating to election petitions and ‘‘matters connected
therewith’’, which must include the grounds given in Section 100 of the
Representation of the People Act, 1951, were neither to be applied nor ever
deemed to have applied to such a case as the one before us. This surely meant
that they must be ‘‘deemed’’ not to have been applied by Parliament itself,
according to the well-known rule of construction that legal fiction, introduced
by a deeming provision, must be carried to its logical conclusion and we must
not allow our imagination to boggle at the consequences of carrying the
fiction to its logical conclusions (See:East End Dwellings Co. Ltd v. Finsbury
Borough Council, (1952) AC 109).
518. At the same time, it was contended, and, this was especially
emphasised by Mr. Jagnnath Kaushal, that Parliament and the ratifying
legislatures of the State-participating in the constitution making process –
had not applied any pre-existing norms but had merely declared and
registered, almost automatically without any need to consider anything
further or to apply any law whatsoever to any facts, what followed from the
abrogation of all pre-existing law, with its procedure and norms so far as the
election-petition against the original respondent was concerned. This meant
that the constituent bodies, proceeding on the assumption that the High
Court had rightly held the original respondent’s election to be invalid by
applying the provisions of the 1951 Act, had considered it necessary to
validate what really was invalid according to the 1951 Act. In view of what I
have already held on merits, such an assumption, if it was there at all, could
only be based on a misconception.
519. The conflicting points of view, advanced in support of the
amendment, enabled the election-petitioner’s counsel to find support for his
contention that the impugned clause (4) obviously meant that a considered
judgment on, inter alia disputed questions of fact, however, erroneous, had
been swept aside, quite uncemoniously, mechanically, and, without a
semblance of quasi-judicial procedure by a purpoted exercise of constituent
power by the constituent bodies, consisting of the two Houses of Parliament
and the ratifying legislatures of the various States. He urged that the
alternative contentions of Mr. Kaushal constituted an admission that no
procedure whatsoever, which could be considered either reasonable or
appropriate for a judicial or quasi judicial determination of any question of
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