513. Counsel for both sides are agreed that, for the purposes of the case
before us, we need not consider the constitutional validity of Clauses (1) to (3)
of the newly introduced Article 329-A of the Constitution. I will, therefore,
concern myself only with the constitutional validity of clause (4) of Article
329-A of the Constitution.
514. Learned Counsel of the election-petitioner contended that the
constituent or amending power contained in Article 368 of our Constitution
had been misused to achieve some purpose which was either outside the
Article or which struck at the roots of the ‘‘basic structure’’ or ‘‘the essential
features’’ of our Constitution. It was submitted that the amendment is invalid
on an application of the tests laid down by a majority of the 13 Judges who
indicated certain basic and inviolable principles of our Constitution in
Kesavananda Bharati’s case AIR 1973 SC 1461 (supra). It was contended
that the newly added Article 329-A (4) of the Constitution, far from
constituting a Constitutional law, which alone could be made under Article
368, did not even satisfy the tests of law, in as much as it did not lay down
any general rule applicable to all cases of a particular class but was really
designed to decide one particular election case, which is now before us for
hearing, in a particular way. According to learned Counsel, the amending
bodies had, under the guise of an exercise of constituent power, really decided
a particular election dispute arbitrarily without following the elementary
principles of judicial procedure or applying any intelligible norms or
principles of justice either as a Court of law would have done or as any body
of persons entrusted with the duty to decide a matter justly or quasijudicially could possibly have done. The assumption underlying this
argument was that setting aside the results of a judicially recorded judgment
and order by declaring it void and the validation of an election held by a
Court of law to be invalid necessarily involves the adoption of a judicial or a
quasi-judicial procedure if the results are to appear just and not violative of
the basic principles of natural justice which must be held to be parts of the
Rule of law envisaged by our Constitution. What had been done by Clause (4)
according to the learned Counsel for the election petitioner, was nothing
short of lifting and placing the elections of the first four dignitaries of State
outside the range of questionability before any authority whatsoever either in
the past, present or future. As the only election out of these dignitaries still in
dispute at the time of the passing of the 39th Amendment was the election of
the Prime Minister to the House of the People, now under consideration in
the appeals before us, it was suggested that all this was done, wholly and
solely, though indirectly, with the object of validating the Prime Minister’s
election as a Member of the House of Representatives in 1971. It sought to
place the Prime Minister and the Speaker in a separate class by themselves
as candidates at a general election for the membership of the House of
Representatives. It was urged that there could be no reasonable or logical
nexus between the alleged objects of such a classification and the results of
the amendment made. It was urged that, in as much as a Prime Minister
holds the pivotal position in the governance of the country, there could not be
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