( 1 ) THIS petition under Articles 226 and 227 of the Constitution is directed against an order passed by the Election Tribunal, Gwalior in election petition No, 287 of 1957 on 24th September 1957.

( 2 ) THE petitioner Babulal Sharma is a voter and he had by the election petition challenged the election of the first respondent Brijnarain Brijesh. In the election petition he had alleged in paragraph 6 as follows : "that Shri Brijesh, respondent No. 1, and his supporters made systematic appeal to the voters to vote on the ground of caste and creed. personally the respondent No. 1 had been, appealing systematically for Brahmins' support, he being a Brahmin. For non-Brahmins, he would ask whether they were out to murder (meaning thereby to defeat) a Brahmin as against a cow-killer (meaning a member of Congress, a party which is not banning cow-slaughter in the teeth of opposition ). His begging votes as a Brahmin in the above fashion told upon the simple villagers and materially furthered his prospects. " subsequently, Babulal Sharma applied for an amendment of the petition setting out particulars in relation to the allegations made in a general way in that paragraph. We need not quote the application for amendment in extenso but we set down here one or two out of the numerous paragraphs, which Babulal Sharma sought to be incorporated in the petition as illustrating the nature of the amendments:

"during his election tours the respondent No. 1 between 18th and 25th february 1957 made the above systematic appeal to the voters general in the following villages. " after the quotation, names of village follow. "and in particular Shri Brijesh respondent No. 1 appealed to the following persons among others to vote for him because he was a brahmin, because the Congress were cow-slaughterers and because the hindu religion was in danger at the hands of Congressmen. " here names again follow. 'respondent No. 1 Shri Brijesh at the date and place mentioned below held public meetings during his election campaign and appealed to the voters on the ground of caste and creed. (a) On 17-1-57 in village Maghera, Pargana Pichnore he said that merely by putting on a white cap dishonest people became congressmen ana began to call themselves Parashar (Brahmin ). That the Congressmen were devils who get cows slaughtered in their presence and that is why in Madras Pandit J. L. Nehru was made to wear garland of shoes. '

(b) On 6-2-1957 at Narwar he addressed a public meeting in which he said that the Congressmen putting on white caps were not Hindus as they were getting cows slaughtered, that the Congress people wanted to snatch Hindu religion from them (voters) that the cow was their mother and the Congressmen were butchers. Nehru Government carries on business and commerce by slaughtering cows. "

( 3 ) THE Tribunal, after examining the case for amendment, both under law and in fact, rejected the application of Babulal Sharma, and hence this petition.

( 4 ) THE case for the petitioner was argued by Shri Shivdayal, and the case for brijnarain Brijesh was submitted by Shri P. L. Dubey. We may say that the case on both sides was argued very well and fully.

( 5 ) THE short contention of the petitioner is that the learned Tribunal committed an obvious error of law in thinking that such amendments could not be allowed and that the 5th sub-section of Section 90 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) as amended did not permit such amendments. The learned Tribunal, after giving this opinion, considered the question of amendment on merits, albeit very perfunctorily, and gave its opinion that the amendments could not also be allowed on merits. We are concerned in this order first with the statement of the law, and after expressing our opinion on that part of the case we shall advert to the proposed amendments and the circumstances under which amendments should be allowed.

( 6 ) SUB-SECTION (5) of Section 90 of the Act recastes

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