JYOTI BASU & OTHERS. versus DEBI GHOSAL & OTHERS.

Citation: [1982] 3 S.C.R. 318 · Decided: 26-02-1982 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Appeal(s) allowed

Cited by 15 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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JYOTI BASU & OTHERS. 
v. 
DEBI GHOSAL & OTHERS. 
February 26, 1982 
(R.S. PATHAK AND 0. CHINNAPPA REDDY, JJ.] 
Representation of the Pepople Act 1951, Ss. 82 and 86 (4) Election Petition-
Parties to-Who are-Corrupt practice alleged against person who is not a candi-
date-Such person whether can be impleaded as respondent. 
Election Law-Right to elect-Neither fundamtntal right nor Common Law 
right-Statutory right subject to statutory limitations. 
Code of Civil Procedure 1908 Or. Ir. JO-Concept of'proper parties'-
Applicability of to election petitions. 
The Representation of the People Act 1951, by Section 81 prescribes who 
may present an election petition. It may be by any candidate at such election, 
by any elec1or of the cons.tituency, and by none ~Jse. Section 82 dause (a) 
provides that the retitioner in an election petition shall join as respondents to the 
petition the returned candidates if the relief claimed is confined to a di~claration 
that the election of all or any of . the returned candidates is void and all the 
contesting candidates if a further declaration is sought that he himself or any 
other candidate has been duly elected. ·Clause (b) of the section requires the 
petitioner to join as respondents any other candidate against whom allegations of 
any corrupt practice are made in the petition. Section 86 (4) enables any candi· 
date not already a respondent to be joined as respondent. 
The first appeltant in the appeal is the Chief Minister and appellants 2 and 3 
State Ministers. They had been impleaded by the first respondent as parties to an 
election petition filed by him in the High Ccurt qu£stioni11g the election of the 
second respondent to the House of the People. It was averred in the election peti· 
tion that the Chief Ministers and the State ministers who Were impleaded as parties 
to the election petition had colluded and conspired with the returned candidate 
to commit 'various alleged corrupt practices. The Chief Minister and th~ other 
Ministers denied the commission of the various alleged corrupt practices and 
claimed that the election petitioner was not entitled to implead them as parties 
to the election petition, as they were not candidates at the election. They filed 
an application before tQ.e High Court to strike out their names from the array of 
parties in the election petition. It was dismissed on the ground that the ·appel-
lants were proper parties to the election petitiqn and therefore their names could 
pot be st~~ O"?t of the array of parties\ · · . 
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JYOTI BASU V. DEBI GHOSAL 
:119 
In the appeal to this Court, it was contended on behalf of the appellants 
that the concept of a proper p8.rty was not relevant in election law and that only 
those persons could be implcaded as parties who were expressly directed to be so 
implcaded by the Representation of the People Act 1951, and that they were 
entitled to be struck out from the array of parties. On behalf of the first resPOn, 
dent it was submitted that the appellants were proper parties to the electiori 
petition and their presence was necessary for a coi,n.plete, final and expeditiouS 
decision on the questions involved in the action. 
Allowing the Appeal, 
HELD : I. No one can be joined as a party to an election petition other· 
wise than as provide by Section 82 and 86 (4) of the Representation of the people 
Act 1951. A person who is not a candidate may not be joined as a respondent 
to the election petition. [331 C-D] 
--1. 
In the instant case the names of the appeIJants and the 7th ·respondent in· 
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the appeal are directed to be struck out from the array of parties in the election 
petition. [331 DJ 
2. A right to elect, fundamental though it is to democracy, is, anomalously 1 · 
neither a fundamental right nor a Common Law Ri~bt. It is a statutory right. 
So is the right to be elected, and the right to dispute an election. Outside of 
sta1ute, there is no right to elect, no right to be elected, and no right to dispute 
an election. Statutory creations they are, and therefore, subject to statutory 
limitation. An Election petition is not an action at Cornmoo Law, nor in equity. 
It is a statutory proceeding to which 1leither the Common Law nor the principles 
of Equity apply but only those rules which. the statute makes and applies. It is 
a special jurisdiction, and a special jurisdiction has always to be exercised in 
accordance wit

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