S. NARAYANASWAMI versus G. PANNERSELVAM & ORS.

s. NARA YANASWAMI v. G. PANNERSEL V AM & ORS. April 12, 1972 [S. M. SIKRI, C.J .• A. N. GROVER, A. N. RAY, D. G. PALF.XAil AND M. H. BEG, IJ.J ConstitutioJJ o/Imlia 1950, A.rt.t. 171 to 173 and ReprtsenJction of tht People 4ct (43 of 1951) s. 6-Candidate from Grodualer constit11mcy 1o ulis)ative Council-lj should bt KTDduaJe, The respondent cbalknged the appellant'! cl~ to the Madras Legi.slalivt Council from the Madras District Gr:uluates' Coostitueocy en the grounds, (l) that, the pw-po&e of.Art. 171 of the Constitution waa lo C0!1fa right of ftmclional {!!presentation upon petsoll$ po:ssessina certain educational or other qualifications !0 that the appellant who was not • graduate could not be elected to ·the Legi:slative Council from tbe ,. of GroduaJCS' Cooltltueucy; the ~ of representation (2} that, that it an would individual, be absurd who did and not destructive poee5S the ~ a.- buic qualification of .the electon. Uould be tbeir repre-.' aentatm, aAd (3~ . that. the Con~tiaJtion, beioc an organic inslzwnent. ' must be imapi'eted in 11 broad and liberal ma.aner !0 ae to gM: etrect to the ande~ principi.!S and purpoee& of the system of repte9entation sought to be embodied in it. The ..High Court &el aside the cll:ctiDA. Anowinr the appeal to flm Court, i· HELD: (l)(a) Gradu:rtes are not an occupational or vocati~al I ,· If'~· but ~ly body of. person& with particular ~ducatioool qualifi· ~ It would, therefor.e, n()t be cotTect to describe the additional ~ sought to be given to them in the Legislative Council as an ,. 1l%1cmpt ao tntrodu~ functiooal or vocational representation. [181Bl \• (b) The qualillcati0118 of the elector oomtituting the clectoi'Qt.e, and of .thoec who can repreaent .each ekctorate, contemplated by the ~ ' i tution and supplemented by Parliament, are separately set out fot tach .j ~~ Aa ~pds tbe Legislative Council too qualificationi for the four :i . e-...,..t.es are indi~tcd In Art. 171(3)(a): (b),(.:) and (d). The plain 'I. and ordinary mearung of ~ term "electorate is that it is tilt body of ' \ ~m who e~t. It does not take in the extended notion of body y P_ei"!!IOl5[1 ]el(:(;llnl! representatives from among1r th~m.s~trel. It does . l member not Impose of the electorate. • reqUirement that (177D-FJ the person to be chosen must also be ; ~ ~ ,q ; ; . . .. ~~ tro::C • [1](c) · [6 ]~~hlhtive 'Ille of ~be qualillcatioos .Repre~entation ~embly of should cflll<lidtltes of the also People for be seats un Act, ·elector in 19Si: the in Council While the constituencY are mwber given · tequlrcd to bee stan s, the member of the Legislative Council ia not sO ;)ll ,. , · :· lative Counc;il tht be ao penon to ~tutor for he ~ a~t~ Is :mber ch~: aab~ of [l~J*•IIt7 the ~of e~IOratethe . in All tho Legislative Chat State is. to required Council whoso is ~gis-.tbfJ }I ~ ; : (d) Whatever may have been the_....._ . tioo .;,aket or tho their advisors Sec.ood Cbambet-it is not OUDd P<*ibAc ..._ Co aay .....--• «a ot perusal. the Co!Mbtu 171 of Art. • -!,~.I tbat ~e woere lOIIIQt to provide for fu~

··- ...:...::.:..:._ . -- ..

NARAYANASWAMI v. PAN.NEitSELVAM (Beg, /.) 173

or vocational representation. t\f1 that can be . . repres~tation or wcigbtage was given to rso~n e~ed ~~ that a~dit.ionaJ presentativcs. of knowledge 1bo and concept experience by enabling of such ~epresentation ~m ~s posscssmg 0 elect the~e _spec1al s~i~ types re-further notion that the rep!"esentative must aso oes not cany w1th 1t the 1ications of tbose he represents. The Hi possess the very quaJi. outside the fo1..r c&tters of the statutory gprov·~ err~eously traveUed . . all . .he I JSJOns Wu.;n there wu DO ~b1~1ty at . m an&\! age,. and by rescting to presumed 1e · Jative mtent, 1t added qualificatJon to those expressly iaid · ~ Constitution and otber statutory provisions. (lBOF] own [10 ]e

Davies Jankins & Co. v. Davies, 1967 (2) W.LR. p. 1139 @ 1156, rc!ef"!'d to.

2(a) Article 171 is designed only to give right to choos.e their re-presentatives to those_ who have certain types of presumably valuablo mowledge ~d educalton. I~ ~ pi"c3umptioo of their better competence to elect SWtable (Cpresentahvc IS there, It would be for the members of such constituency themselves to decide whether person who stands for election from their constituency possesses the right type of know-ledge, experience and wisdom. The Constitution makers. acting on such presumption, may have intentionally left the educationa.l quo.Jilications of candid'ltc for election from the Graduates Constituency unspecified.

(b) It couJJ not pos~bly be said that the question to be dealt with was DOt known to the legislators. The p!ovisiOO$ of law show that the qualifications ot the ek:ctors as well as of tha>e ~o be elec~d. v.e.re matters to which the attention of the law makers, both 1n the Constltuent ~m­bly and in Parliament, was specifically directed. Hence. the omJSIIOO must ha\'C been deliberate. [ I81G1

R . v. Cleworrh, (1864) 4 B&S 927 and. Craies on Statute JAw-E 6th ~ 1963 72, referred to. .

(c) Tb~ legislative bistDry of tbe Articl~ also show!. tha!bethe ~= sioo by t.be Constitution m.;~ken or by Parliament. to ..... ~n nstituen<:Y tion u qualification of tbc candidate from the Grod~~::Sdia co(Provinciai was deliberate. Tbt: provisions of the Gove~ent [0 ]u:ilificatioos of Legisla.tive Assemblies) Order, 1936, J{rescri;biDg t ~~ f~ representlltion persoo.s !.11 the Legislative to be chosen from Councils special und..-1" constttuenC'Ies the Gov~hesc 0re India it was Act. 90 intend· 1935. indicate that it was lnva,ri~bly _expressly prov_Jdi!te tor seat W11S that ho ted, that occessary quahficauon of . cand/d! m~mbtr to fill it. Such lbould bo entitled to vot~ fur tfte ~ [01]rfe ~Oft:-[181 H·182.E) • qualification was not left to mere unp cau · . _ _, and

• qualification was not left to mere unp cau · . _ _, and . . hould be inkrpreted ID b,.__. . (3) lt is tru~ that ~omtltulloo . s . .• r "litc:ra1" in~rpretaliO!l itllefOt.ls ipilit, but the rule or "pl:un ~an:~ec~ oi in~rpretation -~-~0 COuld not altDgc:ther be abandoned. c: this object can obviuu-xY dacover ~ .best aclticvcd th.t: intention by tint of look.the lni law at mtho: ake~. ~~t"llteral Ill\ ., used in interpl:etatiOf?, the re~eva~ [11 ]pro-'::! VlS&Ons. logical corolla.cy of ~~ ru case /or ~bi~ provJsiOG rule • ltatute m11y not be extended to m~et· aod an applu:auon pf ~ in clea~ly ~nd undoubrtd/y nor -~en mado; modili~tion of, wor~t 6-0ID ~ly involves that ac.hhllon [10]• ~ible. Courb may ~lory provi!.ions is not ge!Y.!r.illY per· [17501 fbu tulc only to avoid pa~nt absurdtty. ·' Domfxrl, .l.~· Th~ Stale o, Ltd v..CoptaJtt Srl Ritnt Naral11 Mtdill & Ors. v. 1 [nJUranu Co. • 19S9 S.C. 459; British Jr~di11 GeMra

Jtbar Singh & Ors., [1960] 1 S.C.R. 168; R. C. Jacob v. Union of lndic, [1963] 3 S.C.R. 800; State of Madhya Pradesh v. M/s. Azqd Bhar.:zt Finance Co. & Anr. A.l.R. 1967 S.C. 276; Hira Devi "'· Diatrict Board, Shabiahanpur, A.I.R. 1952 S.C. 362 & 365, ~fe~~ to.

From the language as well as the legislative history of Arts. 171 and 173 of the Constitution and s. 6 of the Representation of tbe People Act, 1951, it cq_uld be presumed that the omissiott ~ of tbe qualifica~on that the representative of graduate should also be graduate was delibe~ ra~. By presumin~ such an intention of the law makors, no absurdity results. By adding 'deemed to be ~airy' or 'implied' qualification of rupresentative of the graduates, which the Constitution mak.~rs or Parliament could easily have imposed, t,lle Court would be invading the legislative sp~re. [18~F1

CIVIL APPEI..,LATE JURISDICTION: C.A. No. 189 of 1971.

· Appeal under Section 116-A of the Representation of the People Act, 1951 from the judgment a!lld order dated January 8, 1971 of the Madras aigh Court in Election Petition No. 1 in Election Petition No. 1 of 1970.

aigh Court in Election Petition No. 1 in Election Petition No. 1 . .

. . V. P. Raman and Vineet Kumar, for the appellant.

I agdish Swurup, Socilitor -General of India, B. D. Sharma and · n S. P. Nayar, for the Election Commission of India.

J!. Sen and Sobhag Mal lain, for the Supreme Court Bar Asso-ciation.

The Judgment of the Court was delivered by

Beg, J. This is an appeal under Section 116~A of the Repre-sentation of People Act, 1951. The appellant's election, held on 11-4-1970, to the· Madras Legislative Council from the Madras District Graduates' Constituency was set aside by learned Judg~ of the Madras High Co.!lrt who decided aU the issues except one in favour of the appellant. The only issue decided against the appellant, which is now before us, was framed as follows :

. "Whether the first Respondent was not qualified to stand for election_ to the Graduates Constituency on all or any of the grounds set out by the petitioner in para-graph 7 to. 9 of the election Petition" ?

Paragraphs 7 to 9 of the election petition against ~ apwJlant are lengthy, prolix, and argumentative. The case and the con-tentions of the Respondent G. Panneerselvam, the petitioner before the High Court, .which were accepted by the High Court, may be summarised as follows :

Firstly, the whole purpose of Artfcle 171 of the Constitution was to confer right of "functional representation" upon persons possessing certain educational or otb~r qualifications so that the Appellant Narayanaswami, who had only passed the High School Leaving Examination and wa~ not Graduate, could not be elected

at all to the Legislative Council from the Graduates' Constituency; 'secondly, it would be abiurd and destructive of the very concept of representation of e~pecially qualified persons that an individual who does not possess the essential or basic qualification of the electors should be representative of those who are to be repre-sented because of this _§pecial qualification of theirs; and, thirdly, the Constitution~ being an organic instrument for ,fue governance of the land, must be interpreted in partict;larly broad and liberal manner so as to give effect to the underlying principles and pur-poses of the system of representation sought to be set up by it and not in such way as to defeat them. Hence, the educationnl qua-lification of the electors should be read into the system of represen-c tation se( up by the Constitution for Legislative Councils as necessary qualification _vf candidates in such constituencies.Authorities are certainly not wanting which indicate that Courts should interpret in broad and. generous spirit the document which contains the fundamental law of the land or the basic principles of its Government. Nevertheless, the rule of "plain meaning" or o. "literal" interpretation, described in Maxwell'~ Interpretation. of Statutes as "the primary rule", could not be altogether abandoned today in interpreting any document. Indeed, we find Lord Ever;. shed, M.R., saying: "The length and detail of mooern legislation, has undoubtedly reinforced the claim of literal construction ~ the on1y safe rule". (See : Maxwell on "Interpretation of Statutes" 12th Edition p. 28). It may be that the great maSs of modern legiSlation, large part of which consists of statutory rules, makes· some departute from the literal rule of 'interpretation more easily justifiable today than.it was in the pas1, But, the object of inter-pretation and of "const:rl!ction" (which may be broader than "inter-pretation'') is to.disCover the.intention of the law makers in every case (See: Crawford on "Statutory Construction, 1940 Ed. para ., 157, 1>· 240-242). T@ object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to· only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an el~mentary and basic rule of inter-pretation as well as of construction-processes which, from the point of view ~f prin~iples applied, coalesce and converge towards the common purpose 9f both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under con· sideration have, therefore, to be eXamined before. applying any method of construction at .all. To these provisions we may now · tum.

Article 168 of our Constitution shows that the State LegiS-latures in nine Sfa~ in India, including Madras, were to consist · ·of two Houses = the Legislative Assembly and the Legislative CoWl-

cil. Article 170 lays do'Wn that the Legislative Assembly .-of each State "shall consist of members chosen by direct election ffom ter-ritorial constituen~ies in the State, in such manner as the Par-liament may by law determine". After that, comes Article 171 which may be reproduced in toto here :

"171(1) The total number of members in.the Legis-lative Council of State having such Council shall not exceed one third of the total number of members in the Legislative Assembly of that State :

Provided that the total number of members in the ·Legislative Council of State shall in no case be less than forty.

(2) Until Parliament by law otherwise provides, the composition of the Legislative CQUncil of State shall be as provided in clause (3).

(3) Of the total number of members of the Legis-lative Council of State-

(a) as nearly a~ may be, one-third shall be elected by .electorates consisting of membe~ of municipalities, district boards and such other local. authorities. jn the State as Parliament may by 1aw specify;

(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in tht;; State who have been· for at least three years graduates of any university in the tyrritory of India or have been for at .least three years in.possession of qualifications ptescribed by or under any law made by Parliament· as equivalent to that of gradu~te of any such university;

(c) as nearly as may be, one-twelfth shall be elected by electorates con_sisting of persons who have .been for at least three years engaged in teaching in such educa-. tional institutions within the State, not lower jn stan-. dard than that of secondary school, as may be pres-enDed by or under any law made by Parliament;

(d) as nearly as may ·be. one-third shall be elected by the members of the Legislative Assembly of the State from am.ongst persons who are not members of the Assembly. -

(e) the remainder shall be nominated 1?y the Gover-.nor in accordance with the provisions of clause ( 5).

(4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such ter-ritorial CODSiituenc(ies as may be prescribed by or under any law made by Padiament, and the elections under

tbe said sub-clauses and under sub-clause (d} of the said clause shall be held in accordance with the system of pro-portional representation by means of the single transfer-able vote.

(5) The mem~rs to be nominated by the Governor under sub--clause (2) of clause (3) shall con$ist of persons havin~ special knowledge or practical experience in respect of such matters as the following namely :-

Literature, Science, Art. cooperative movement and social service."

The term "electorate", used in Article 171(3) (a)(b) & (c) has neither been defined by the Constitution nor in any enactment by Parliament. Sec. 2(1)(e) of the Representation of People Act 43 of 1951, however, says:

" 'elector,' in relation to co.nstituency means per-son whose name is entered in the electoral roll of that constituency for th~ time being· in force and who is not subject to any of the disqualificatiOilS mentioned in Sec. 16 of the Representation of the People Act, 1950".

The plain and ordinary meaning of the term "electorate" is confined to the body of persons who elect. · It does not contain, within its ambit, the extended notion of body of persons electing representatives "from amongst themselves". Thus, the use of the· term "electorate", in Article 171 (3) of our Constitution, could n~ by itself, impose limi~ upon the field of cboice of members of the electorate by requiring that the person to be chosen must also be member of the electorate. 1b-e· qualifications of the electors constituting the "electorate" and of those who can represent each "electorate", contemplated by the constitution and then supple-mented by Pa':'liament, are separately set out for each house. We may glance at the p~ions relating to ~gislative Assemblies first.

Section 16 of the Representation of People Act 43 of 1950 lays down the qualifications of an elector negatively by prescribing wbo shall be disqualified for registration in an electoral roll. ·A dis-quatifi.ed -person is one who :

(a) · is not ci~en of India; or

(b) is of unsound mind and stands so declared by competent court; or

_ (c) is for the--time being disqualified from voting un~ the provisions of any law relating to corrupt prac. tices and other offences in connection with eleotions".

Section 19 lays down f!he two conditions for registration on the e1ectoral roll of constituency. The person to be registered must not be less than 21 years of age on· the qualifying date and must

be ordinarily resident in the constituency. The persons so register-., ed, whose names appear on the electoral roll, constitute the elec-tora~ for the legislative Assembly of each State.. Section 5 of the Representation of People Act, 43 of 1951 enacts:

''5. Qualifications for membership of Legislative Assembly:-

person shall not be qualified to be chosen to fill seat_in the Legislative ~bly of State unless-

(a) m the c~ of seat reserved for the Scheduled

Castes or for the Scheduled Tribes of that State, he is . member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly consti-tuency in that State;

(b) in the case of seat reserved for an autonomous di$trict of Assam, pther than seat the constituency for which comprises the cantonment and municipalit;y of. Shillong, he is member of Scheduled Tribe of any autonomous distriqt and is an elector for the Assembly constituency in whicJ:t such seat or any other seat is re-served for that district; and

. (c) in· the case of any other pt, he is an elector for any Assembly constituency in that State";

Conrlqg tO the Legislative Council, we find that the qualifica-tionsforth~four "electorates" are indicated by Art. 171(3)(a)(b)(c) It (d). Arid, the qualificati!Jns of candidates for seats in Legis-lative Coun~il are given _in Section 6, of the Representation of Peo-ple Act 43 OJ; 1951 which lays down:

''6. Qualifications for mem ~rship o! Legislative Council.-

(!) person sllall .not be qualified to be chosen to fill seat in the .LegiSlative Council of State to be filled by election unless he is an elector for any Assembly con-stituency in that State.

(2) person shall not be qualified to be chosen to fill seat in the Legislative Council of &tate to be fille4 by nomination by the Governor unless he is ordinarily resident in the State'• . .

look at Article 171(2), set out above, indicates that the com--position of the Legislative Council of State was matter to be a)SQ -provided for by law made by Parliament. It is evident that the . constitution makers had directed their attention specificaJly towards the methods of election and composition of the legislature

of each State. They themselves prescribed some qual~cations to be possessed by members of each House of the Legislature~ Article 173 lays down :-

"173. ·person shall not be qualified to be ch~en to.fill seat in the Legislature of State unless he-

( a) is citizen of India, and makes and subscribes before some persop authorised in that behalf by the Election Commission an oath or affirmation according to the 1form set out for the purpose in the Thlrd Schedule; Schedule;

1form form set out for the purpose in the Thlrd Schedule; Schedule;

(b) is, in the case of seat in ·the Legislative ~em­bly, not less ~ ~enty-five years of .age and, m the case of seat in the Legislative Council, not less than thirty years of age; and .

(c) possesses such other qualifications as may be ·. prescribed in that behalf by or under any law made by Parliament".

An important and yery noticeable difference between quali-D fications prescribed by P~liament for the membership of Legis-lative Assembly by Secti9n 5 of the Representa~on. of People. Act of 1951 and those for the membership of LegiSlative Council by Section 6 of that Act is that, so far as member .. of the .Legislative Assembly is concerned, he or she has to be an Elector in the Con-stituency from which he or she stands, but member of Legis-E lative Council in State is n'ot, similarly, required to be member of the elec.torate. All that Parliament says, in Section 6 of the Representation of People Act, 1951, is that the person to be chosen as member of the Legislative Council has to Qe "an elec-tor for any Assembly constituency" in the State. to whose legislative Council he was to be chosen. He has to be "ordinarily resident". in the State to qua.lify Jor nomination. No other qualifications, ., apart from those found in Article 173 of the Constitution and Section 6 of the Repre:S.entation of People .Act of 1951, are to be found laid down anywh~re . But, an additional quali6.cation was found, by tbe iudgmellit under appeal before us, Ito exist by resort-ing to presumed legislative ihtent and •then practically adding it to those expressly laid down.

It may be ~sible to Jook ·for legislative intention in materials outs~de the four·co~e~s of statute where its language is really ambiguous or conflicting. But, where no such difficulty arises the mere fact that the intentions of the law . .malers, sought to ~ d~~onstrated by what was s~id .bY some of them or by those ad-VJsmg them when the ConstitutJOn was on the anvil were really differ~nt from ~ r~ult whi.c~ clearly follow~ from the langua~ used m the Legtslatlve proviStons under cons1deration, could not authorise the use of such an exceptional mode of construction. "It is well acc~pted", said Lord Morris (See: Davies Jankins &

Co. v. Davies)\ "that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law".

The judgment· under appeal, after discussing the manner in which Article 171 of the Constitution was framed and the: different views expresseq about the nature of the Second Chambers , to be set UJ> by it in our States, says : "The system of func-B ltional, whic}J is also ·called occupational representation, as dis-tinguished from territorial representation, was borrowed from the Irish C~nstitution and that is the underlying principle in Article 1 71. The opinion of political thinkers and ·statement on the wis-dom of such representation may not be unariimous. Whatever be the divergent views; the accomplished fact in the Constitution is that such representation has been given recognition and it has to · be implemented. In ma [1]dng the Legislative Council as repr~ sentative body, the framers of the Constitution have not made .it exclusively one of elected representatives according to their oc-cupations. It is intended to be hetergenous and more broad based body consisting of perwns of different walks of life, some elected and some nominated, each with ·the experience in his own field of activity". The learned Judge conCluded; "It is with these objects that clauses (a), {b), and (c) of Article 171(3) have been · conceived so that persons in those walks of life could make their contribution to the Legislative functions of the State. Article 171 in fixing the composition of the Legislative Council as functional chamber, has also indirectly laid down certain qualifications and also disqualifications of members to be elected thereunder".

Whatever may haw been the opinions of Constitution makers cr of their advisers, wh9se views are cited in the judgment under appeal, it is not possib]_e to say, on perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States jn India were meant to incorporate the principle of what is known as "functional" or "vocatjonal" representation. which has been advo-cated by Guild-Socialist and Syndicalist Schools of political thought. . Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our Constitutional provisions is that additional representation or weightage was given to persons pos-sessing special type of knowledge and experience by enabling them to elect their sp~ial representatives also for Legislative Councils. The concept of such representation does not carry with it, as necessary consequence, the further notion that the repre-sentative must also possess the very qualifications of those he represents.

In the case of the Graduates' constituency, it is provided in Article 171 (3)(b) that the electors must have held their degr~

(1) 1967 2 W.L.R. p. 1139@ 1156.

NARAYANASWAMI V. PANNERSELVAM (Beg, /.) i'fH

for at least three years before they become qualified-an electors. Thus, in laying down tJ?.e test of competence of voters of such con!itituency, more possession of degrees by them was not consi-dered sufficient. Moreover, graduates are not an occupational or vocational group but mesely body -of persons with an educational qualification. It would, therefore, not be correct to describe the addition~ representation sought to be given to them as an attempt to introduce the "functional" or "vocational'' principle. On the face of it, Article 171 appears to be designed only to give right to choose their representatives to those who have certain types of. presumably valuable ~owledge and education. If the presump-tioa of their better competence to elect suitable tepresentative in there, as we think tha.t there must be, it would be ~ the mem-. hers of such constituency themselves to decide whether person ·who stands for election from their constituency possesses the right type of knowledge,. experience, and wisdom which satisfy certain stan4ards. It may well be that the constitution makers, acting upon . such presuri:tption, had intentionally left the educational qualifications qf candidate for election from the graduates con-D stituency unspecified.

test laid down by Blackburn J. in R. v. Cleworth(l), to determine what the correct presumption, arising from an omission in statute should be~ was whether what was omitted but sought to be brought within the legislative intention was .. "known" to the law makers, and could, therefore, be ''supposed to have been omit-ted intentionally". "It makes no difference", says Craies in "Statute Law''(2) "that the omission on the part of the legislature was mere oversight, and that without doubt the Act would have been drawn otherwise had the attention of the legislature been directed to the oversjght at the time the Act was under discussion", In the case before us, it could not possibly be said that the que:s· ·-F tion to be dealt with ~as .. not "known" to the legislators. It could n:>t even be said that qualifications of the electors as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament was not specially directed at· all or that the omission must . be by mere oversight The provisions discussed above demonstrate amply how legislative. attention was paid to the qualifications of the electors as ":ell a~ of the elected in every case. Hence, the correct presumption, 10 such case, would be that the omission was deliberate. glance at the legislative history lying behind Article 171 also enables us to reach the conclusion that the omission by the Constitution makers or by Parliament to prescribe graduation as

(l) [1864] 4 B&S 927, 9·34

(2) Crains on Statute Law-5th En. 1963 p. 72.

must be deliberate. Sections 60 and 61 of the Government of India ,Act, 1935, deal with composition of Provincial legislatures and of the two Chambers of such legislatures. The Upper Cham-bers in the Provincial Legislatures were to be composed of mem-bers retiring every third year in accordance with provisions of the Fifth Schedule to the Act. R1.1le 10 of ·this Schedule lays down:

"In Province in which any seats are to bd filled by representatives of backward areas or backward tri-bes, representatives of commerce,, industry, mining and planting, repr~entatives of landholders, rep~ta~ves of universities or representatives of labour, persons to fill those seats .•.............. shall be chosen in such manner. as may be prescrib,ed". .

On 30th April, 1936, the Government af India (Provincial' Legis-lative Assemblies) Order of 1936 was issued· by His Majesty in Council. It prescribed the qualifications of persons to be chosen from the ''special cqnstituencies" set up for representatiofl in the Legislative Councils. ·_A glance at the provisions relating to these qualifications, including those for the University seats, indicates that it was invariably e~pressly provided, where it was so intended, that necessary qt~alification of candidate for seat was that he or she should be "entitled to vote for the choice of member to fill it". Hence, legislative history on the subject would also indicate that, whenever any qualification of the candidate was intended to be impose<L this was expressly done and not left to mere implications.

We think that the view contained in the Judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions to the effect that the candidates from graduates' constituencies of Legislative Councils must also possess the qualification' of. having graduated. This J -contravenes the rule of "plain meariing'' or "litera.ll" construction which must ordinarjly prevail. lOgical coroU,ary of that rule is that "a statute may not be extended to meet case for which provision has clearly and undoubtedly not been made" (See : Craies on Statute Law-6th J;dn. p. 70). An application of the rule · . - necessarily involves that addition to or modification of w.ords· used in statutory provisions is not generally permissible (see e.g. Sri Ram Narain Medhi & Ors. v. · The State of Bombaye), British India General Insurance Co. Ltd. v. Captain ltbar Singh & Ors.([1]), R. .. Jacob v. Union of India([8]). Courts may depart from this ruleonly,to avoid patent absurdity (see e.g. State of Madhya. Pradesh v. Mjs. Azad Bharat Finance Co. &Anr.(')._ -In Hira Devi v. District Board, Shahiahanpur([5]), this Court observed : (1) AIR 1959 S.C. 459. (2) [t960j t SCR 1611. (3) [1969] 9 SCR 800. (4) A.f.R. 1967 S.C. 276, (S) A.J.R. 1952 SC 962@ 36.5.

"No doubt it is the duty of the Court to try and har~ monise the various provisions of an Act ·passed by the Legislature. ·But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act".

8 Cases ih which defects in statutory provisions may or may not be supplied by Co~s have been indicated in well known works such as Sutherland's "Statutory Construction" (3rd Edn.(Vol. 2) (Paragraph 4924 at pages 455~558) and in Crawford'~ "tonstrUC-· tion ot Statutes" (1940 Edn.). Only one passage from the last mentioned work need be cited_ here : (p. 269) :

"Where the statute's IQ~ing is clear and explicit, words cannot be interpolated. In the first place, in such case, they are nC)t~needed. If they should be interpolated, the statute would more than likely fair to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They . statute should not would be interpolated thereby be advanced, even though or the remedy more desirable of the or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the languagft of the statute".

We think that the language a~ well as the legislative history of Articles 171 and 173 of the Constitution and Section 6 of tho Represent.ation of People Act, 1951, enable us to pres111DC a· de--liberate omisskm of the qualifi~tion that the representative of the Graduates should also be graduate. In our opinion, no I' [absurdity ][l'Cfiults ][if ][we ][presume such ][an ][intention. ]We cannot ~cr, as the learned lJJdge of the .Madras High Court had done, from the mere ·fact of such an omission and opinions about supposed scheme of "functional representation" underlying Article 171 of our Constitution, that the omission was either unintentional or tltat it leid to. absqrd results. We think that, by adding deemed to be necessary or impli~ qualification of representative of the Graduates which the Constitution makers, or, in. any event, the Puliament, could have easily imposed, the learned Judge had really invaded the I.egislatiye sphere. The defect, if any, in the law could be removed only by law made by Parlianlent.

We conclude, after considering all the relev-ant constitutional and statutory provisions relating to the qualifications of ~ candi· date for election from the Graduates' constituency of the Legisla· tive Council of the MadraS State, that the appellant possesses all the qualifiGa.tiom laid down for such candidate.

[1973] 1 S.C.R.

Therefore, we allow this ~ppeal, set aside the Judgment and order of the Madras !figh Court, and dismiss the Respondent's election petition .. The appellant is entitled to his costs throughout.

Appeal allowed.