Art 329A necessarily involved as a condition precedent to the making of the
declaration found at the end of it, the performance of a quasi-judicial or
judicial function. But, I do not think that we could go so far as that. 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 having
been invoked by the Original Respondent as well as by the election petitioner
and the operation of the Hight Court's order having been suspended, the
positin 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 this Court. I do not think, that despite the impression
created by the terms of the declaration at the end of clause (4) of Article 329A
and the opening statement of the counsel for the original respondent we can
assume that Parliament took over the case into its own hands to decide it and
to incorporate the result in the form of Article 329A(4) so that this may take
the place of a possible judgment of this Court. Parliament could not be
deemed to be unaware of the bar created by Article 329 (b) and the 1951 Act.
601. At one stage, counsel supporting the 39th amendment said that the
norms of the Act of 1951 together with the amendment of the Act in 1974 and
the very recent ones of 1975 must have been present in the minds of members
of Parliament and applied to the facts of the case. Such a contention, apart
from overlooking the effect of the bar of Art 329 (b) which operated against
the case being taken up in Parliament directly until at least 10--8-1975, just
as Section 107 of the British Representation of People Act, 1949, operates
against the adoptin of such a course in England, overlooked the legal effect of
the deeming provision which, if valid would repeal such a submission of
counsel supporting the 39th amendment. The deeming provision appeared to
be quite sweeping. It said :
"No law made by Parliament before the commencement of the
Constitution (Thirtyninth Amendment) Act. 1975, in so far as it relates to
eletion petitions and matters connected therewith shall apply or shal be
deemed ever to have applied to or in relation to the election of any such
person as is referred to in clause (1) to either House of Parliament"
602. The effect of such a provision is thus stated in the oft quoted passage
from East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC
109;
“If you are bidden to treat an imaginary state of affairs as real, you must
surely, unless prohibited from doing so, also imagine as real the consequences
and incidents which, if the putative state of affairs had in fact existed, must
inevitably have flowed from or accompanied it ............. The statute says that
you must imagine a certain state of affairs, it does not say that having done
so, you must cause or permit your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs.”
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