HEADNOTE

Section 77(1) of the Representation of the People Act, 1951 provides that 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 by the Rules framed under the Act. In Kanwarlal Gupta [1975] 2 SCR 259 the Court observed that 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. In order to get over the judgment in Kanwarlal Gupta, the Representation of the People(Amendment) Ordinance, 1974 was issued which was replaced by the Representation of the People (Amendment) Act, 1974. Section 2 of the Amending Act added two Explanations to section 77(1). Explanation 1 provides that notwithstanding any judgment, order or decision of any court to the contrary, any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purpose of sub-Section (1) of Section 77.

In the writ petition under Art. 32 the petitioner challenged the validity of Explanation 1 to section 77(1) of the Representation of the People Act, 1951 on the grounds: (i) that it enables political parties to spend unlimited monies for the election of the candidates sponsored by them, (ii) that this is arbitrary and violative of Art. 14 because it sanctions serious discrimination between one political party or individual and another on the basis of money power,(iii) that it not only permits but encourages and legitimises the influence of big money in the electoral process and thus militates against the fairness and purity of the electoral process, (iv) that it denies to the citizen right to have full and effective participation in the electoral process and (v) that it nullifies the salutary object of imposing a ceiling on a candidate’s expenditure.

On behalf of the respondent-Union of India it was contended: (i) that Explanation 1 to section 77(1) of the Act was introduced to restore the law as expounded in the decisions of this Court prior to the decision in Kanwarlal Gupta, (ii) that the expenditure incurred by political parties in connection with the election of their candidates do not fall within the mischief of section 77(1) read with section 123(6) of the Act, (iii) that Explanation 1 is not violative of Art. 14 and (iv) that legislative policies bearing upon matters governing elections are not open to judicial review.

Dismissing the Writ Petition and C.M.Ps.,

HELD: 1. Explanation 1 to section 77(1) of the Representation of the People Act, 1951 neither suffers from any constitutional infirmity nor it violates Art. 14. Explanation 1 classifies all political parties or associations in one group and confers upon them the same or similar advantage. Political parties or, politically motivated associations or bodies of persons or, individuals interested in political happenings, are characterised by common attribut