after the Proclamation of Emergency in June, 1975 and, therefore, these Acts had
not been validly passed by Parliament in their absence.
The Supreme Court, in the present appeals, upheld the validity of the Election
Laws (Amendment) Act, 1975 and also the validity of the Constitution (Thirty-ninth
Amendment) Act, 1975, except that part of the latter Act whereby Parliament had
validated the election of Smt. Indira Nehru Gandhi. Applying the law, as amended
retrospectively by the aforesaid Election Laws (Amendment) Act, 1975, the
Supreme Court upheld the election of Smt. Indira Gandhi to the House of the
People, allowing her appeal, and rejecting the cross–appeal of Shri Raj Narain.
(A) Election Laws (Amendment) Act 40 of 1975), Pre. –
Constitution (Thirty-ninth Amendment) Act (1975), Pre. –
constitutional validity of – cannot be challenged on ground that a
number of Members of Parliament were in detention –(Constitution
of India, Arts. 85 and 122).
Per Ray, C.J. : – The constitution of the House which passed the
Constitution (Thirty-ninth Amendment) Act is not illegal on the ground that
a number of members of Parliament of the two Houses were detained by
executive order after 26 June, 1975. It has also to be stated that it is not open
to challenge the orders of detention collaterally. The principle is that what is
directly forbidden cannot be indirectly achieved.
(Paras 69, 74, 75, 76, 82, 86, 87)
Per Khanna, J : – The constitutional validity of the Constitution
Amendment Act and the 1975 Act amending the Representation of the People
Act cannot be assailed on the ground that some members of Parliament were
prevented because of their detention from attending and participating in the
proceedings of the respective Houses of Parliament.
(Para 184)
The contention that the sittings of the two Houses of Parliament in which
the impugned Acts were passed were not valid essentially relates to the
validity of the proceedings of the two Houses of Parliament. These are
matters which are not justiciable and pertain to the internal domain of the
two Houses. Of course, the courts can go into the question as to whether the
measures passed by Parliament are constitutionally valid. The court cannot,
however, go into the question as to whether the sittings of the Houses of
Parliament were not constitutionally valid because some members of those
Houses were prevented from attending and participating in the discussions in
those Houses.
(Para 180)
The act of detaining a person is normally that of an outside agency and
not that of the House of Parliament. It would certainly look anomalous if the
act of an outside agency which might ultimately turn out to be not legal could
affect the validity of the proceedings of the House of Parliament or could
prevent that House from assembling and functioning.
(Para 182)