Chandrachud, C. J. - (1.) The petitioner, Dr. P. Nalla Thampy Thera, is not an intermeddler or a busybody. He is a public-spirited citizen whose motives in filing this petition are to be admired even if his contentions may not merit acceptance. By this petition under Article 32 of the Constitution, he challenges the validity of Explanation 1 to section 77(1) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") which gives a carte blanche to political parties to spend unlimited monies for the election of the candidates sponsored by them. In practice, insofar as our little knowledge of political affairs goes, sky is, the limit for such expenditure:Some call it millions, some call it billions.
(2.) The particular provision of the statute which is under consideration here, has a short, though significant history. A judgment of this Court led to its enactment, That judgment, to which one of us, Bhagwati J., was a party, was delivered on October 3, 1974 in Kanwar Lal Gupta v. Amar Nath Chawla (1975) 2 SCR 259. Section 77(1) of the Act. as it stood then, read thus : "Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent, between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive." Section 77(3) provides that the total of the said expenditure shall not exceed such amount as may be prescribed, that is to say, the amount prescribed by the Rules framed under the Act. The expenditure prescribed for a Parliamentary constituency in the Union Territory of Delhi was Rs. 10,000/-. The question before the Court in Kanwar Lal Gupta was whether the successful candidate, Amar Nath Chawla, had incurred or authorised expenditure in connection with his election exceeding the ceiling of Rs. 10,000/-. Noting that what section 77(1) prohibited was not only the incurring but also the authorising of excessive expenditure and that such authorising may be implied or express, the Court observed: "When the political party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money."
(3.) On November 7, 1974, Bill No. 104 of 1974 was introduced in the Lok Sabha in order to get over the judgment in Kanwar Lal Gupta (supra). The Statement of Objects and Reasons of that Bill reads thus: "Statement of Objects and Reasons Section 77 of the Representation of the People Act, 1951 provides that the total of the expenditure in connection with an election incurred or authorized by the candidate or his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof shall not exceed such amount as may be prescribed. Rule 90 of the Conduct of Elections Rules, 1961, seeks to lay down the maximum election expenses for a parliamentary constituency and an Assembly constituency in respect of various States and the Union Territories. Clause (6) of section 123 of the Representation of the People Act has specifically included the incurring or authorizing of expenditure in contravention of section 77 as a corrupt practice, which, if established, would not only vitiate the election, but also result in disqualifying the candidate for a period of six years under section 8A of the said Act. In the Election Law, the emphasis has been on imposing a curb on an individual incurring, expenditure in connection with his election in excess of the prescribed limit. The provision contained in section 77 of the Act is very specific in this respect and the intention that the curb is on the expenditure incurred or authorized by the candidate has found support in the judicial pronouncements on the point. The expression "incurred or authorized" has not been construed so as to bring within its purview the expenditure incurred by a political party in its campaign or by any person other than the candidate unless incurred by such third person as the candidate's agent. In other words, the provisions of section 77 and clause (6) of section 123 have been intended and understood to be restraints on the candidates election expenditure and not on the. expenditure of a political party. However, in the recent case of Kanwar Lal Gupta v. A. N. Chawla (Civil Appeal No. 1549 of 1972 decided on 3rd October, 1974), the Supreme Court has interpreted the aforementioned expression "incurred or authorized" as including within its scope expenses incurred by a political party or other person referred to above. In view of the effect which such interpretation might have particularly with reference to the candidates against whom election petitions are pending, it became urgently necessary to clarify the intention underlying the provisions contained in section 77 of the Representation of the People Act, 1951, namely, that in computing the maximum amount under that section any expenditure incurred or authorized by any other person or body of persons or political parties should not be taken into account. As Parliament was not in session, the President promulgated on 19th October, 1974, the Representation of the People (Amendment) Ordinance, 1974. The Bill seeks to replace this Ordinance.";