By Pooja Meena, National Law University, Jodhpur.



  • A.N. Ray (CJ)
  • H.R. Khanna
  • M.H. Beg
  • K.K. Mathew


This is a case regarding Election Disputes involving the Prime Minister and the purpose of passing the 39th Amendment of the Constitution.

FACTS OF THE CASE                        

In the General Parliamentary Elections of 1971, the appellant was declared as a successful candidate from the Rae Bareli Constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes over her nearest rival Sri Rai Narain. Sri Raj Narain, respondent No. 1, who was sponsored by the Samyukta Socialist Party filed an election petition u/s 80 r/w S.100 of the Representation of the People Act, 1951 to challenge the election of the successful candidate. A learned single judge of the Allahabad High Court upheld the challenge on two grounds rejecting the other grounds of challenge. The learned judge also granted an absolute 20 days’ stay. The appellant moved to the Supreme Court, challenging the ‘unseating’ verdict against her by the High Court.



  1. Whether or not Clause 4 of Article 329 A of the Constitution of India, was constitutionally valid?
  2. Whether or not, Representation of the People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975, was constitutionally valid?
  3. Whether or not, the election of Indira Gandhi was void?


The Honourable Supreme Court applied the basic structure doctrine laid down in the Kesavananda Bharati v. State of Kerala.[1] It stated that Clause (4) of Article 329-A is liable to be struck down on the ground that it violates the principle of free and fair elections which is a part of the basic structure of the Constitution. It abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and it extinguishes both the right and the remedy to challenge the validity of the aforesaid election. As per Article 329 (b) election disputes are to be presented to such an authority as the legislature may by law provide. The nature of the dispute raised in an election petition is such that it can only be resolved by a judicial process. Clause 4 of Article 329 A takes away these rights and should therefore be struck down.

The court held that the constitutional validity of a statute depends entirely on the existence of the legislative power, and apart from the limitation laid down in Article 13 there is no other prohibition on the Legislature. According to Article 368 It is within the powers of Parliament to frame laws with regard to elections.

Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of service. Parliament has power to state what can be considered to be office of profit. Parliament has power to state as to what will and what will not constitute corrupt practice. Parliament has power to enact what will be the ground for disqualification. Parliament has power to define “candidate.” These are all legislative policies, and legislative policies do not come under basic structure. Similarly, given retrospective effect to legislative amendment is accepted to be valid exercise of legislative power. Retrospective operation of any law would cause hardship to some persons or other. This inevitable; but that is no reason to deny to the legislature the power to enact retrospective law. In the case of a law which has retrospective effect, the theory is that the law was actually in operation in the past and if the provision of the Acts and general in their operation, there can be no challenge to them on the ground of discrimination or unfairness merely because of their retrospective effect.

She obtained the assistance of Gazetted Officers of the Uttar Pradesh government, namely, the District Magistrate, the Superintendent of Police, the Executive Engineer, Public Works, and Engineer, Hydel, for the construction of rostrums and arrangement of supply of power for loudspeakers in the meetings addressed by her during her election campaign. She spent more than the prescribed amount of money, during her election campaigns. The Supreme Court held that the word “candidate” in Section 123(7) of The People’s Representative (Amendment) Act, 1975, was defined as a person who filed the nomination papers. It was then held that Indira Gandhi filed her nomination papers on 1st February 1971 and therefore any help that she took from Government officers before that date could not be held to be a corrupt practice.

As per Section 83(1)(b) and 123(6) of The People’s Representative Act, 1951, Voluntary expenditure by friends, relations, or sympathisers and expenditure incurred by a candidate’s party without any request or authorisation by the candidate has never been deemed to be expenditure by the candidate himself. The Court also held that as per Section 77 of The People’s Representative Act, 1951, Expenditure incurred by a political party in connection with the election of the candidates of the party is not a part of the election expenses of the candidate. Similarly participation in the programme of activity organised by a political party will not fall within the election expenses of the candidate of the party.

So, the five judge bench of the Supreme Court gave its orders regarding the above mentioned issues, in accordance with the reasons mentioned above in the Application Section.

  • It was held that clause ‘4’ and ‘5’ of Article 329 A was unconstitutional as being violative of the basic structure of the Indian Constitution.
  • Representation of People’s (Amendment) Act, 1974 & Election Laws (Amendment) Act, 1975 were considered to be legal, perfectly constitutional and free from all infirmities.
  • Election of Indira Gandhi, from her constituency Rae Bareli, was considered to be valid.

The Supreme Court set aside the judgment given by the Allahabad High Court, it removed all corrupt charges levied against Indira Gandhi and acquitted her, thereby making her election valid.


After thorough examination of the rationale given by the Judges in this particular case, and after going through the background history of this case, I personally feel that the Judgement although was academically and theoretically correct, but in practicality and on the grounds of Justice, Equity and Good Conscience it was a failed judgment.

Indira Gandhi had taken assistance by Government Officers in her election campaign, she also availed services from the army and the air force, during her election campaigns. The Allahabad High Court, very righteously found her guilty of corrupt practices as mentioned in Section 123(7) of The People’s Representative Act, 1951, and hence made her election void, it also barred her from contesting any elections for the next 6 years.

Indira Gandhi took an unconditional stay order from Justice Jagmohan lal Sinha, and then appealed to the Supreme Court, meanwhile she very artfully imposed emergency on the nation and then got many of her opposition members arrested under preventive detention, by doing this she was able to pass the Thirty-ninth Amendment Act of the Constitution with little difficulty. She also passed the People’s Representative (Amendment) Act,1974 and the Election Laws (Amendment)Act 1975, (will now be referred to as Amendment Acts 1974, 1975).

These three major amendments were clearly made to remove all grounds on which she was found guilty in the Allahabad High Court. The Supreme Court in its judgement held that Amendment Acts 1974, 1975, were constitutionally valid as they were legislative rules and the parliament had powers to amend them, but the Judges should have noticed that these amendments were made for the sole purpose of removal of all kinds of charges from Indira Gandhi’s head.

Also at the time of passing of these amendments most of the opposition members were under preventive detention, without any cause, this prevented them from giving their opinions and votes for or against that legislation. The Supreme Court very ignorantly said that, that was a matter of the Parliament and the Supreme Court could not do anything about it. The duty of the Supreme Court is to uphold the constitution, it is considered as the guardian, the watchdog of the constitution, and here the constitution was being tampered with in an illegal manner, and all that we heard from the Supreme Court Judges was that it was out of their jurisdiction and hence they would not go into that matter.

[1] (1973) 4 SCC 225