603. When the effect of Art 329(b) and of the deeming provision was
pointed out to learned counsel supporting the 4th clause of Art. 329A they
took up the position that Parliament must have applied its own norms. We,
however, do not know at all and cannot guess what matters were considered
or the norms applied by Parliament. No speeches made in Parliament on the
proposed 39th amendment were cited before or by either side. We only know
that the Objects and Reasons of the 39th Amendment contain the following
statements to show us why Article 329A (4) was believed to be necessary :
"Article 71 of the Constitution provides that disputes arising out of the
election of the President or Vice-President shall be decided by the Supreme
Court. The same article provides that matters relating to their election shall
be regulated by a parliamentary law. So far as the Prime Minister and the
Speaker are concerned matters relating to their election are regulated by the
provisions of the Representation of the People Act 1951. Under this Act the
High Court has jurisdiction to try an election petition presented against
either of them.
2. The President, the Vice President, the Prime Minister and the Speaker
are holders of high offices. The President is not answerable to a Court of law
for anything done, while in office in the exercise of his powers . A fortiori
matters relating to his election should not be brought before a court of law
but should be entrusted to a forum other than a court. The same reasoning
applies equally to the incumbents of the office of Vice-President, Prime
Minster and Speaker. It is accordingly proposed to provide that dispute
relating to the election of the President and Vice-President shall be
determined by a forum as may be determined by a Parliamentary law.
Similar provision is proposed to be made in the case of the election to either
House of Parliament or, as the case may be, to the House of the People of a
person holding the office of Prime Minister or the Speaker. It is further
proposed to render pending proceedings in respect of such election under the
existing law null and void. The Bill also provides that the Parliamentary law
creating a new forum for trial of eletion matters relating to the incumbents of
the high offices above mentioned shall not be called in question in any court."
604. I think that this statement of Objects and Reasons and other reasons
mentioned above by me lend support to the submission to which Mr. Kaushal
confined himself whilst other counsel supporting the validity of Art 329A (4)
offered it only as an alternative submission. This was that the whole
procedure adopted and neded being a law making procedure and nothing
more there was no need to look for norms of for law applied as no judicial or
quasi-judicial proceeding was involved. This approach certainly avoids the
extraordinary anomalies and results involved in the proposition that
"constituent power" embraces some indefinable or "unbroken" power to
overide laws and to withdraw and decide all disputes particularly in election
matters in Parliament itself. As already indicated there is no provision
anywhere for the execise of overriding judicial or quasi-judicial powers by
Parliament. It is difficult to conceive a case being considered by Parliament
and the ratifying legislature as a case on trial. Parliament could not therefore
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