These two election petitions, namely, Election Petitions Nos. 3 and 4 of 1985, challenge the election of the first respondent Thiru M.G. Ramachandran from Andipatti Assembly Constituency. E.P. No. 3 of 1985 has been filed by one of the unsuccessful candidates who lost his election by a margin of 3148 votes. E. P. No. 4 of 1985 is by one of the voters. By my order dt/- 14th Aug. 1986, Applications Nos. 4559 and 4560 of 1985 were allowed and several paragraphs of the election petitions were struck out, under Order VIR. 16 of the C.P.C. while paragraphs 24 and 30 were struck out under S.83 of the Representation of the People Act, 1951. Consequently, what remained to be examined were the allegations made in para 16, 17 and 18 of the election petitions. They deal with the scope of the notification issued by the Election Commission of India in S.O. 1111 dated 18th March, 1968 in pursuance of Cl.(a) of Arts.84 and 173 of the Constitution of India. The petitioners would contend that in so far as the first respondent was on the relevant date, confined to bed in Broklyn Hospital in New York, it is only para. 2(c) of the notification that would apply. Further, the Election Commission issued a telex message on 19/11/1984 under which it instructed the Ambassador of India or the Consulate General of India in New York as the case may be to authorise one of the Indian Medical Practitioners attending on the first respondent to administer the oath or affirmation to him. Therefore, it was contended, para 2(c) of the notification would exclude the operation of para 2(d) of the notification. In any event, the authorisation under the telex message dt/- 19/11/1984 is not for the Ambassador or the Consulate General of India but only for one of the Indian Medical Practitioners attending on the first respondent. Hence, the acceptance of the nomination would be void. These allegations were countered by the first respondent stating that there is no question of exclusion of one paragraph by the other. Nor again, the telex message would in any way take away the right of the first respondent to make and subscribe the oath or affirmation before the Officer who is empowered under the notification. It was under these circumstances I held in para 105 of my order dt/- 14th Aug. 1986 as follows :-


"But what requires to be noted is, that under the terms of the Telex, which I have already extracted, the authorisation is for the Medical Practitioner and not for the Ambassador or the Consulate Representative. In such a case the question is whether it is para 2(c) or para 2(d) of the notification which would apply. Then again, if on the request of the first respondent a special authorisation has come to be issued, still whether resort could be had to para 2(d). These are issues which require to be relegated to trial." *


Hence an issue was framed on 18/11/1986 to the following effect :


"Whether the nomination of the first respondent is liable to be rejected for having complied with R.2(d) of the Rules and Orders under the Constitution (S.O. 1111 dt/- 18-3-1968) ?" *


2. Mr. N. Ganapathy, learned counsel for the election petitioners refers to Art.173 of the Constitution and contends that the said article while prescribing the qualification of a period to be chosen to fill a seat in the Legislature of a State talks of the following requirements, namely (i) Citizen of India; (ii) Makes and subscribes oath in affirmation; (iii) before some person authorised in that behalf by the Election Commission and (iv) the oath or affirmation should be as set out in the Third Schedule. Therefore this Article confers power on the Election Commission to authorise a person in that behalf this is a power available under S.14 of the General Clauses Act. If the said Section is read with Art.367 of the Constitution, this power could be exercised as often and as is necessary. Merely because a notification, in this case, Notification S.O. 1111 dt/- 18th March, 1968, had come to be issued, that does not mean that the Election Commission is denuded of its power. That is only a general authorisation. Notwithstanding the same, it could still exercise the power of authorisation depending upon the exigencies of the situation. With this background, if one approaches the scope of the notification S.O. 1111 dt/- 18th March, 1968, it could be seen by a reading of the entire notification that para 2 is complementary to para 1 of the notification. That is because, it says

"the Election Commission hereby authorises'. On an analysis of para 2, it would be seen that it refers to candidates belonging to special category; if a candidate falls under anyone of the categories he must satisfy that clause and that clause alone. There is a purpose in qualifying a candidate because the person who is empowered to administer the oath or affirmation will be familiar with the condition of the candidate. In the case on hand, the first respondent being in a foreign country during the relevant time, he was presumed to have been otherwise all the right and hence the diplomatic personnel was prescribed. However, where a candidate is confined to bed in a hospital, there is no scope for applying para 2(d). It is only para 2(c) that would apply. The absence of disjunctive clause makes it clear that each candidate falling under that category will have to make and subscribe the oath or affirmation only under the relevant clause. Therefore, para 2(c) will prevail over para 2(d).


3. The next contention of the learned counsel for the petitioners is that the special authorisation under para 2(e) cannot cover the same. This is because para 2(e) says "for any other reason" which will mean for a reason other than what has been aforesaid. The further contention of Mr. Ganapathy is that para 2(e) says of 'an application made to it'.


Under Ex. P1 in this case a request was made by the Secretary of the AIADMK PARTY to the Election Commission; the Election Commission applied its mind and issued the telex message which contains instruction as to making and subscribing of oath or affirmation. That should prevail over the general authorisation. Section 2(i) of the Representation of the People Act, 1951 defines the word "sign". That says 'in relation to a person unable to write his name means authentication in such manner as may be prescribed.' The prescription is contained in S.2(2) of the Conduct of Elections Rules, 1961. The Section talks of a 'deemed signing'. It is in pursuance of this Ex. R.11, the telex message dt/- 19/11/1984 had come to be issued. Ex. R11 is attested by Mr. Ramdas, Consular Agent. If the telex message is to prevail, certainly there being no authorisation for Ram Dass, it should be held that the oath or affirmation has been made before a person not authorised. Therefore, under S.36 of the Representation of the People Act, 1951 which procedure is also found in the Hand Book of the Returning Officers, the nomination should have been rejected.


4. The telex message being not an authorisation within the scope of para 2(e) of the Notification, it must be held that it is a notification issued under Art.173 of the Constitution. That being a special notification, it will prevail over the general notification. As to what is meant by 'special excluding general' can be gathered from the decision in J.K.C.S. and W. Mills v. State of U.P., 1961 (3) SCR 185, 1961 (2) FLR 529, 1960 (19) FJR 436, 1961 (1) LLJ 540, 1962 (1) SCJ 417, 1960 (19) FLJ 436, 1961 AIR(SC) 1170, 1961 AIR(AC) 1170. The same principle is found in the decision in Waverly Jute Mills v. Raymon and Co. 1963 AIR(SC) 90, 1963 (3) SCR 209, 1970 AIR(Delhi) 19 as well as United States v. Chase, 1889 (135) US 117.


5. If really under the terms of the telex message Ex. R11 the Ambassador or the Consulate General was required to authorise one of the Indian Medical Practitioners, that power cannot be exercised by the Consular General himself. In other words, that power cannot be arrogated to himself contrary to the terms of the telex message. In this connection, the learned counsel for the petitioner would rely on a passage in Administrative Law by Wade and contend that the power must be exercised by him alone. If, therefore, the nomination is liable to be rejected, it would amount to improper acceptance of nomination. In such case, the election of the first respondent is liable to be set aside under S.100(1)(d) of the Representation of the People Act, 1951 as laid down in A.L. Ambalal Patel v. H. Gomanbhai Patel, 1968 AIR(SC) 1455, 1969 (1) SCR 277.


6. Lastly it is urged that attestation is not an empty formality as laid down in Rattan Anmol Singh v. Ch. Atma Ram, 1954 AIR(SC) 510, 1954 SCJ 731, 1955 (1) SCR 481, 1954 (10) ELR 41and Ram Dayal v. Brijraj Singh, 1970 AIR(SC) 110, 1969 (2) SCC 218, 1970 (1) SCR 530, 1970 ALJ 92and that if there has been no proper acceptance the nomination is liable to be rejected.


7. Mr. K.K. Venugopal appearing for Thiru M.G. Ramachandran, the first respondent, first. and foremost conceded that if there has been an improper acceptance of the nomination, certainly the election of the first respondent is liable to set aside. However, he is very assertive in his argument that the question whether the nomination paper of the first respondent has been properly attested or not does not arise at all because that is not the point in issue. After making this preliminary submission, the learned counsel argues that while dealing with the scope of Article 173 of the Constitution, it has to be seen as to what is the purpose of this Article. It prescribes the qualification of a person for being chosen to fill a seat in the Legislature of a State. Originally, under Cl.(a) the condition prescribed was only 'citizen of India.' It was under the 16th amendment in the year 1963, the requirement of making and subscribing an oath or affirmation came to be included. The crux of the requirement is that the candidate should take an oath declaring his allegiance to the sovereignty and integrity of India. The substance is 'oath'. The rest are merely form, irrespective of before whom it is taken; the manner in which it is taken. They are merely incidental or ancillary to the oath taking. In other words, taking of oath alone is mandatory. The object of taking the oath is that if a person refuses to take the oath or affirmation in the form set out in Form 7 of the Third Schedule, even in the stage of nomination his candidature could be rejected. The prescriptions as to oath are traceable to Article 99 and Article 188 of the Constitution in the case of Parliament and Assembly respectively. It may be noted that attestation of the nomination is not required. It is enough if there is an authorised person. While amending Article 19(2), (3) and (4) by incorporating 'sovereignty and integrity of India the prescription in relation to making and subscribing the oath, Articles 84 and 173 were also amended so that the person could manifest his clear and unqualified allegiance to sovereignty and integrity of India. That alone is the real purport of taking the oath. It has been so laid down in V.R. Sutaria v. N.P. Bhanvadia, 1970 AIR(SC) 765. Thus, what is required to be established is that the candidate is a true citizen owing allegiance to the sovereignty and integrity of India. The same view was taken in a case arising under Art.188 of the Constitution, namely, G. Vasantha Pai v. C.K. Ramaswamy, 1978 AIR(Mad) 342. That view was upheld by a Division Bench of this Court in Ramaswamy v. Vasantha Pai, 1979 (1) ILR(Mad) 180 : 1979 AIR(NOC) 149). Here again, the principle of 'substantial compliance' was applied.


8. All these arguments are made without prejudice to the succeeding submission that the statutory order contained in S.O. 1111 dt. 18th Mar., 1968 had been complied with in stages.


9. One thing is certain and that is, the constitutional right of a person to contest an election cannot be taken away by a mere notification. If one were to construe strictly Article 173(a) of the Constitution with reference to the notification alone, the effect of this Article will be rendered nugatory. A careful reading of this Article read with the notification seems to suggest that when the factum of oath is put in issue, the credibility of the person speaking about the oath should be beyond any dispute. It is incorrect to contend that by a mere categorisation of various contingencies one clause is excluded by the other. The classification or categorisation is only for practical convenience. If the construction as sought to be placed by the petitioner is accepted, then even the Election Commissioner cannot administer the oath or affirmation. Therefore, it would merely mean that so long as a person is authorised for the purpose of making or subscribing the oath, it matters very little.


10. The next question is whether it is clauses 2(C) and 2(d) of the notification S.O. 1111 dt. 18th Mar., 1968 that apply or the special authorisation that applies. Under Art.324, the Election Commission is constituted as an independent body for the purpose of conducting all the elections. Vast powers have been conferred on it under the said Article. Clause (6) of that Article even obliges the President or the Governor of a State on a request made by the Election Commission to spare the services of the officers of the Government for the proper conduct of the elections. In the case of a person who is outside India, it is para. 2(d) alone that would apply. Even otherwise, if, as argued by the other side, either para. 2(c) or 2(d) applies, it is enough if either of the two is satisfied. The purpose of the statutory order is to enable a person to take an oath depending upon the situation and not to deprive him of his valuable right to contest.


11. The learned counsel for the first respondent submits that clauses (a), (b) and (c) of the notification do not apply to persons outside India. In respect of persons who are outside India, it is only para. 2(d) that would apply. In any event, the directions contained in the notification are merely directory in nature and not mandatory. Even otherwise, merely because para. 2(a), (b) or (c) applies, there is no possibility of excluding para. 2(d) since there are no specific words of exclusion.


12. The next submission of the learned counsel is concerning the telex message dt. 19/11/1984. This cannot be said to be covered by para. 2(e). A special power alone is covered by para. 2(e). It does not talk of the reason for non-appearance but talks of only the inability of a person to appear or his being prevented by some other reason from appearing. It cannot be urged that even though a person competent under Cl.(d) is available for making or subscribing oath or affirmation, yet, the Election Commission cannot be requested to issue an order under para. 2(e). In other words, the effect of the general notification issued under statutory order S.O. 1111 dated 18th March, 1968 cannot be belittled by the issue of a telex message; nor again can the Election Commission act contrary to the notification. In support of this submission, reliance is placed on a Full Bench ruling of this court in Nagarathnammal v. Ibrahim Saheb, (1955) 2 Mad LJ 49 : 1955 AIR(Mad) 305). Therefore, para. 2(a), (b) and (c) or (d) applies. It cannot add further by issuing a special instruction so as to take away the right available under the earlier clauses. By reading the telex message as a whole if para. 2(d) or para. 2(c) applies, it cannot be brought in under para. 2(e). In any event, this is in addition to the persons mentioned in para. 2(d).


13. The petitioners do not dispute that paragraph 2(d) applies. If two provisions apply by a process of construction could the will of the majority be rendered ineffective, more so, when the first respondent has won the election with a substantial majority of more than 31000 votes. In such a case, to allow the technicalities to prevail will be to thwart the popular will.


14. The election petitions proceed on the basis that the oath was taken in form 7 of schedule 3. The only challenge is to the status of the person who does not fall in the category to which the particular situation applies in that while in hospital, the Consular Representative was not authorised. Lastly it is submitted that no nomination is to be rejected unless the defect in it is of a substantial nature. Unlike Section 86 of the Representation of the People Act, 1951, there is not provision in the Constitution or in the Representation of the People Act as to the consequences of not taking the oath in the prescribed form or before the proper officer.


15. The reply of Mr. Ganapathy is that if law prescribes a particular act to be performed in a particular manner, it has to be performed only that way. Failure to attest vitiates the nomination paper. Just like that, for fulfilling the qualification under Art.173, the oath or the affirmation must be made before the authorised officer. The decision in Sharif-ud-din v. Abdul Gani, 1980 AIR(SC) 303, 1980 (1) SCC 403, 1980 (1) SCR 1177, 1980 UJ 39 is relied on in this regard.


16. I will now proceed to consider the correctness of these submissions. We are dealing with the case of an election to the Assembly. Article 173 of the Constitution prescribes the qualification for membership of the State Legislature. Originally the said Article stated thus :" *


A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -


(a) is a citizen of India;


Therefore, having regard to the use of the words "be chosen to fill a seat", it would apply to a stage of election to the Assembly. After a candidate is chosen, he is required to take the oath or affirmation before taking his seat under Article 188 of the Constitution. In the year 1963 when the 16th amendment to the Constitution was made, it became necessary to incorporate the further requirement as to the taking of oath or affirmation according to Form 7 of the Third Schedule. At the same time, the corresponding Article, namely Article 84 underwent a similar amendment. Besides, the words "sovereignty and integrity of India" came to be incorporated under clauses (2), (3) and (4) of Article 19. This was in accordance with the recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council. The object was to make available adequate powers for the preservation and maintenance of the sovereignty and integrity of the Union in view of the fact that there were some movements which were preaching cessation of some parts of India from the Union. This is evident from the Statement of Objects and Reasons found in the Fort St. George Gazette dt. 13-3-1963.


17. What is the object of taking of oath has now to be determined because it is argued by Mr. Venugopal that the crux of the requirement is taking of oath by a candidate who unequivocally declares his allegiance to the sovereignty and integrity of India. All the rest, namely, as to before whom it is taken and the manner in which it is taken are, according to him, incidental and ancillary.


18. I will now refer to the decision in V.R. Sutaria v. N.P. Bhanvadia, 1970 AIR(SC) 765. In that case it was held as follows :-


"Where a candidate filed nomination paper for election to fill a seat in Gujarat Legislative Assembly and in the form of oath in Gujarati the word Legislative Assembly was translated as "Rajya Sabha" it could not be said that the oath was not in compliance with the form prescribed in Article 173(a) of the Constitution. By common parlance in many of the States in Northern India the expression "Rajya Sabha" has come to mean the Legislative Council of a State while the State Legislative Assembly is generally known as Rajya Vidhan Sabha. But there is no authoritative translation of the expression "State Legislative Assembly" in Gujarati. As in the State of Gujarat there is no Legislative Council of the State, but only the State Legislative Assembly, there can be no misapprehension either in the person taking the oath or in the Returning Officer when accepting the nomination paper with the oath in Gujarati form that the candidate was being nominated as a candidate to fill a seat in the Legislative Council of the State and not in the Legislative Assembly."


The Court held in paragraph 6 as under :-


" The High Court held that there was substantial compliance with the requirements of Article 173(a) of the Constitution in the circumstances surrounding the making and the subscribing of the oath even if the compliance was not literal. We are in full agreement with that view. The essential requirement of Article 173(a) of the Constitution for our present purpose is that in order to be qualified to be chosen to fill a seat in the Legislature of a State a person (i) must be a citizen of India, and (ii) must make and subscribe before a person duly authorised an oath or affirmation according to the form set out for the purpose in the Third Schedule. Form VII-A contains the following essential requirements :


(1) The person taking the oath or making the affirmation must have been nominated as a candidate to fill a seat in the Legislative Assembly or Legislative Council;


(2) That he will bear true faith and allegiance to the Constitution of India as by law established; and


(3) that he will uphold the sovereignty and integrity of India.


The vital requirements, therefore, are (a) the securing of a nomination, and (b) declaration of bearing true faith and allegiance to the Constitution and a promise to uphold the sovereignty and integrity of India. The securing of a nomination precedes the making of a declaration. The real purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. This is brought out by the Statement of Objects and Reasons to the Bill No. 1 of 1963 seeking to amend Articles 19, 84 and 173 of the Constitution. The Statement of Objects and Reasons notes the recommendation of the Committee on National Integration and Regionalism and its view" *


that every candidate for the membership of a State Legislature or Parliament, and every aspirant to, and incumbent of, public office should pledge himself to uphold the Constitution and to preserve the integrity and sovereignty of the Union and that forms of oath in the Third Schedule to the Constitution should be suitably amended for the purpose". The Bill" proposed to give effect to the recommendation by amending Clauses (2), (3) and (4) of Article 19 as also Articles 84 and 173 and the forms of oath in the Third Schedule. The words in the form of oath in Form VII-A.


"I will uphold the sovereignty and integrity of India.


were inserted by the Constitution Fifteenth Amendment Act, 1963 giving effect to the view of the said committee."


The Court further held :


" The real question is, whether the deviation, if any, from the form of oath in English as contained in the Third Schedule is so vital as to lead to the conclusion that no proper oath was taken by the returned candidate. There have been many instances where this court has held that a substantial compliance with the statute or with the rules framed thereunder is enough even if there be no literal compliance and in our view, there is no reason to adopt a different line of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real purpose of the provision whether statutory or constitutional to find out whether notwithstanding the apparently mandatory form of the words used any deviation therefrom was to be struck down." *


Ultimately, in paragraph 11, after referring to the case which arose under Art.320 as well as Article 199(4) of the Constitution, it was concluded as follows :


"The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the Constitution-makers intended that there should be no departure from the strict words used." *


19. In a case, which arose under Art.188 of the Constitution, to which I have made a reference earlier, when one of the members of the Legislative Council was wanting to take the oath before the Governor and not before a person appointed by the Governor in that behalf the said Article, the question arose whether he could take the seat. A learned single Judge of this Court in G. Vasantha Pai v. C.K. Ramaswamy, 1978 AIR(Mad) 342 held in para 15 as under :


"The object or purpose of requiring the member to make and subscribe the oath or affirmation before the Governor or some other authority, is, in my opinion, to evidence or acknowledge that the member had made and subscribed the oath or affirmation before he took a seat in the Assembly or Council as the case may be. In fact, a certificate given by the person before whom the member made and subscribed the oath or affirmation and the decision of the authority that the oath or affirmation has been properly made or not been considered to be final....".


In para 24 it was held as follows :-


" This leads us to the question as to whether the mandate of making and subscribing to the obligation or affirmation before the Governor or some person appointed by him should be strictly, formally and in terms of the Article complied with, or under some justifiable circumstances, a substantial compliance with the provisions of the same may be taken as a compliance with the requirements." *


The word 'oath' means and is normally understood in legal parlance as meaning an oral declaration of a statement in the name of God. The purpose of the Article read with the language used and the form prescribed in the III Schedule also would show that this word has been used in the Constitution in the same sense. The word 'affirmation' also has the same meaning except that the statement or declaration is made in such a case as the solemn affirmation and not in the name of God. The Article further requires that the oath or affirmation should be made and subscribed. The words 'make' and 'subscribe' in the Article indicate that the declaration of the oath shall be reduced to writing and signed in token of acceptance of the same. The word 'subscribe' itself means, to write under something or to give consent to something written by signing one's name underneath. In the decision in Shabbir v. State, 1965 AIR(All) 97, these words used in the context in Article 319 were understood as meaning -


"......In the Concise Oxford Dictionary the following meanings, amongst others, have been given to the word' 'subscribe' -" *


Write one's name or rarely other inscription at foot of document etc. Write one's name at foot of, sign (document, picture etc.).


2. Express one's adhesion to an information or resolution.

"The use of the word 'subscribe' would show that the oath repeated orally should be reduced to writing and be signed by the person taking it in token of his adhesion to what is written. The word 'subscribed' is not correlated with the particular form but with what is said in the oath and what is reproduced in writing. Even if a wrong oath is taken and its reproduction is signed by the person making it, it would still be an act of subscribing though not a correct oath. Consequently, in our judgement, this submission of the learned counsel is unfounded."


In para 25 it was observed as under :-


" thus, the Article requires the declaration to be in the form set out in the III Schedule and should be read before the Governor or some person appointed by him in that behalf. It is enough if the declaration is read by the Member and it was not necessary to administer the oath by any authority to the Member. Wherever the Constitution required that the oath or affirmation has to be administered, it specifically mentions; for instance Article 75(4) requires the oath of office and of secrecy to be administered by the President to a Minister before he enters upon his office. Similarly, Article 164(3) requires the Governor to administer the oath of office and of secrecy in the form set out to every Minister of the State before he enters upon his office. Such requirement of administration of oath is not necessary where a person makes or subscribes to the oath or affirmation under Article 188."


Ultimately in para 27 it has been concluded thus :


" If we analyse the form set out in the III Schedule, it may be seen that the oath or affirmation shall contain words to the effect (i) that the member shall bear true faith and allegiance to the Constitution of India as by law established; (ii) that he shall uphold the sovereignty and integrity of India; (iii) that he will faithfully discharge the duty upon which he was about to enter. In my opinion the inclusion of these three declarations in the oath or affirmation and the signing of the same in acceptance thereof is the most important and substantial part of the requirement of Article 188. Subscribing to the oath before the Governor or a particular person is, in my opinion, required only for the purpose of witnessing the oath being made, so that it could be put as a record and put the question as to whether a Member did take the oath or not beyond the purview of any dispute." *


20. This judgement was affirmed in appeal as seen from the decision in Ramaswamy v. Vasantha Pai, 1979 (1) ILR(Mad) 180 : 1979 AIR(NOC) 149). In para 21 of that judgement it was held as under :


"It is true one of the requirements under Art.188 is presence of the person making and subscribing the oath before the Governor or the nominee at the time of making or subscribing the oath. But, if the appellant had made it impossible for the first respondent to make an oral affirmation before the Governor, then it can be assumed he (first respondent) was prevented from appearing before the Governor in person for making or subscribing the oath before, him. Physical appearance of the first respondent before the Governor was made impossible by the appellant. It should therefore be taken that in the circumstances it was not possible for the first respondent to ensure his presence before the Governor for the purpose of making and subscribing the oath. Only when he found that he cannot go before the Governor to make and subscribe the oath the first respondent subscribed the oath in the form prescribed and sent it to him by post. At this stage, a distinction has to be made between cases where the Governor is to administer the oath and cases where the oath has to be taken by the person himself before the Governor. If the Governor is to administer the oath, then any other person administering the oath cannot be a compliance with the provision at all, but, where the party himself has to make and subscribe the oath before the Governor and it is found that it was not possible for the first respondent to go before the Governor for making and subscribing the oath in view of the stand taken by the appellant or the Government that the first respondent has to make and subscribe the oath only before the nominee and not before the Governor, strict compliance cannot be insisted. When every possible effort had been taken by the first respondent to ensure his presence before the Governor for making and subscribing the oath before him and when all those attempts failed, he had sent the form duly subscribed to the Governor. If the distinction between administration of oath to a person by the Governor and the oath being taken by the party himself before the Governor is borne in mind, the physical presence of the party before the Governor can be said to be merely directory. In these circumstances, we are of the opinion that the principle of substantial compliance can be invoked by the first respondent. As a matter of fact, it has been held by the Supreme Court in Vijri Ram v. Nathalal, 1970 AIR(SC) 765 that noncompliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid, if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the Constitution-makers intended that there should be no departure from the strict words used. In that case the form of oath in Gujarati language made and subscribed by a member of the Gujarat State Legislative Assembly under Art.173 of the Constitution contained a slight deviation from the form prescribed in English. The Supreme Court, notwithstanding the defect in the form actually subscribed by the member, held that, as the essential requirements of the oath given in the form in the Third Schedule were not deviated from the petitioner should be taken to have made and affirmed the oath substantially in accordance with Article 173. In this case the theory of substantial compliance has been accepted by the Supreme Court in the matter of making and affirming the oath under Art.173. In Shabbir v. State, 1964 (1) ILR(All) 620: 1965 AIR(All) 97) the principle of substantial compliance has been applied to the making and subscribing of oath by a Judge of the High Court under Art.219 of the Constitution. In that case it was specifically, found that the general authorisation given by the Governor to the Chief Justice under Art.219 was bad that there should have been a specified authorisation with reference to the persons who were to take oath before the Chief Justice. It was also found that the form of oath taken by the Judge was not the correct form. The Court held that, notwithstanding these irregularities, the oath taken in that case was not vitiated. An oath made and subscribed before a person who had not been duly authorised under Art.219 was held to be not vitiated on the ground that there was substantial compliance with Article 219. We cannot see any reason as to why the principle of these decisions will not apply to this case. If the theory of substantial compliance can be invoked even in respect of a requirement prescribed in a constitutional provision, such as Article 188, then the only question is whether the first respondent has made out a case for invoking the principle of substantial compliance." *


21. These cases clearly lend support to the argument of Mr. K.K. Vanugopal that the taking of oath alone is essential. As was observed by the Supreme Court in V.R. Sutaria v. N.P. Bhanvadia, 1970 AIR(SC) 765, one will have to consider the real purpose. If the object of the oath is to put the matter on record, there seems to be every justification for Mr. K.K. Venugopal to contend that so long as owing of allegiance to the sovereignty and integrity of India is established by oath or affirmation, it would not matter very much with regard to the person before whom the oath is taken or the manner in which it is taken. However, I will not conclude the issue on this finding.


22. The power to issue the notification under consideration, namely, S.O. 1111 dt. 18th Mar. 1968, is traceable to Article 84(a) and Article 173(a) of the Constitution. It is true that as laid down under S.14 of the General Clauses Act when a power is conferred under a statute, such power could be exercised as often as is necessary. Therefore, Mr. Ganapathy is right in his submission that merely because the Election Commission has issued this notification, it is not denuded of its power to authorise some other person in that behalf before whom the oath or affirmation could be made in accordance with Form VII of the Third Schedule. It could still issue such authorisation to meet the exigencies of circumstances.With this background, I will deal with the scope of the notification.


23. In para 1 of the notification, the Election Commission has authorised three categories of persons before whom a person nominated to the Rajya Sabha, Lok Sabha, Legislative Assembly or the Legislative Council has to make and subscribe the oath or affirmation.


24. Para 2 of the notification starts with a non obstante clause. Therefore. it is in addition to the clause mentioned in paragraph 1. That para may now be set out in full.


Officers before whom candidates may make or subscribe oath or affirmation.


1. In pursuance of clause (a) of Article 84 and clause (a) of Article 173 of the Constitution of India and in supersession of its notification No. 3/3/66, dated the 25th April 1967, the Election Commission (hereby authorises -


(i) the returning officer concerned and all the assistant returning officers subordinate to him.


(ii) all stipendiary presidency Magistrates and all stipendiary Magistrates of the first class, and


(iii) all district judges and all persons belonging to the judicial service of a State other than district judges, as the persons) before any one of whom, a person having been nominated as a candidate (hereinafter referred to as the candidate) for election to fill a seat in the Council of States, or in the House of the People, or in the Legislative Assembly of a State (other than Jammu and Kashmir), or in the Legislative Council of a State (other than Jammu and Kashmir) having a Legislative Council shall make and subscribe the oath or affirmation in the form set out for the purpose in the Third Schedule to the Constitution.


2. Notwithstanding anything contained in para 1, in pursuance of clause (a) of the said article 84 and clause (a) of the said article 173, the Election Commission hereby also authorises as the person before whom the candidate may make and subscribe the said oath or affirmation, -


(a) where the candidate is confined in prison, the superintendent of the prison,


(b) where the candidate is under preventive detention, the commandant of the detention camp,


(c) where the candidate is confined to bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent in charge of the hospital or the medical practitioner attending on him,


(d) where the candidate is out of India, the diplomatic or consular representative of India in the country where the candidate happens to be or any person authorised by such diplomatic or consular representative.


(e) where the candidate is for any other reason unable to appear, or prevented from appearing before the returning officer concerned or any assistant returning officer as aforesaid, any other person nominated by the Election Commission on application made to it in this behalf.


Explanation. - In this notification -


(1) the expression "the returning officer concerned" means -


(2) where a person has been nominated as a candidate for election to fill a seat in the House of the People from a parliamentary constituency or a seat in the Legislative Assembly of a State from an Assembly constituency or a seat in the Legislative Council of a State from a council constituency, the returning officer for that constituency.


(b) where a person has been nominated as a candidate for election to fill a seat in the Council of States by the elected members of the Legislative Assembly of a State, the returning Officer for that election.


(c) where a person has been nominated as a candidate for election to fill a seat in the Legislative Council of a State by the members of the Legislative Assembly of that State, the returning officer for that election;


(1A) the expressions "district judge" and "judicial service" shall have the meanings respectively assigned to the main article 236 of the Constitution of India;


(2) the expressions "parliamentary constituency", " assembly constituency"and" council constituency" shall have the meanings respectively assigned to them in the Representation of the People Act, 1950 (43 of 1950).


According to Mr. Ganapathy, the contingencies contemplated under clauses (a), (b) and (c) could happen even to Indian citizens who are abroad while Mr. Venugopal says that these categories will not apply when there is a special category under Cl.(d) referred to supra, which starts with the opening words "Where the candidate is out of India."


But I do not think it is necessary for me to decide the correctness of either of the submissions made in this regard. In this case Ex. R.11 is as follows :-


FORM OF OATH OR AFFIRMATION


(Article 173(a) of the Constitution of India)


I.M.G. RAMACHANDRAN having been nominated as a Candidate to fill a seat in the Tamil Nadu Legislative Assembly do swear in the name of god that I will bear true faith


Solemnly affirm


and allegiance to the Constitution of India as by law established and that I will uphold the bovereignty and integrity of India.


NOV. 23, 1984 L.T.I. of Shri M.G. Ramachandran Attested.


Seal. Sd/- Ram Dass (Signature and name in block letters of the candidate.)


Consular Agent


Consulate General of India, NEW YORK.


Solemnly affirmed by Thiru M.G. RAMACHANDRAN at NEW YORK (Place) at 4.30 p.m. (Hour) this 23rd day of November, 1984.


NOV. 23, 1984. Before me


Seal Sd/- Ram Dass Signature of Authorised Person


CONSULAR AGENT


CONSULATE GENERAL OF INDIA, NEW YORK. (Name and designation)


25. The question, therefore. is whether having complied with clause (d) of para 2 of the Notification S.O. 1111 dt. 18th Mar. 1968 the nomination is liable to be rejected. To my mind, a careful reading of this paragraph suggests that there is no scope for one clause excluding the other. The pigeon-hole which Mr. Ganapathy wants to ascribe to the classification seems to be unwarranted in the absence of specific words to that effect. Para 2 merely contemplates some situations and provides for oath taking. What I mean by this is : Supposing a candidate is confined to bed in his house and is undergoing treatment at the hands of a private Medical Practitioner, what will happen if that Medical Practitioner is not available before the last date of filing of the nomination ? Could it be said that the candidate cannot take the oath or affirmation ? Mr. Ganapathy would state that such a person cannot contest. That will be reducing the right of a person to contest an election to a mockery. Such a right emanates from the provisions of the Constitution read with the provisions of the Representation of the People Act. As rightly urged by Mr. Venugopal, the endeavour of the Court should be to enable a person to take the oath rather than deprive him of the above right. After all, when the factum of oath is put in issue, it must be spoken to by a person whose credibility is beyond challenge, and that is the object of these authorisations. It may be of interest to refer to the following passage from Parker's Conduct of, Parliamentary Elections 1970 Edition.


"Roman Catholics were not disqualified from being elected. but were formerly prevented from sitting by being required to make the declaration against transubstantiation. In 1829 they were enable to sit and vote upon taking the oath prescribed by the Roman Catholic Relief Act, 1829. S.2, for which that in the Promissory Oaths Act, 1868, S.2, is now substituted.


Jews also were not disqualified from being elected, but were formerly prevented from sitting by being required to take the oath "on the true faith of a Christian"(see Salomons v. Miller, (1853) 8 Exch 778). The oath now prescribed by the Promissory Oaths Act, 1868, S.8, does not contain those words. Atheists are not disqualified from being elected, but formerly could not legally sit because they were incapable of taking any oath (Attorney-General v. Bradlaugh, (1885) 14 QBD 667), and were not entitled to substitute an affirmation for an oath (Clarke v. Bradlaugh, (1881) 7 QBD 38). But an affirmation may now be substituted, and the absence of any religious belief no longer affects the validity of an oath (Oaths Act, 1888, Ss.1, 3)." *


26. It cannot be gainsaid that the power of the Election Commission is under Art.173 of the Constitution. If it were to be construed that the category of persons falling in each of the clauses will have to take oath or affirmation only before the persons authorised in such clause failing which they cannot contest the election, then even if the oath or affirmation is taken before the Chief Election Commission of India - the highest dignitary who is a repository of all powers concerning the elections as per Article 324 of the Constitution, such an oath or affirmation would be of no value. As a matter of fact, this construction goes against the arguments of Mr. Ganapathy that the Election Commission is the repository of power notwithstanding the issue of Notification S.O. 1111 dt. 18th Mar. 1968. It is true that when power is given to an authority, he should exercise that power. But that principle has no application here because this is not a conferment of power on an authority but only an authorisation to enable the candidate to unequivocally declare his allegiance to the sovereignty and integrity of India as a true citizen of India.


27. In the instant case, the first respondent, at the relevant point of time, was confined to bed in Brooklyn Hospital in New York. Ex. R.11 is the Form of Oath or Affirmation. The affirmation has been made before Mr. Ram Dass, Consular Agent, Consulate General of India, New York who has stated

"solemnly affirmed by Thiru M. G. Ramachamdran at New York at 4.30 p.m. this 23rd day of Nov. 1984 before him" *


. According to Mr. Ganapathy, in so far as para 2(c) of the Notification applies, the Medical Practitioner attending on him alone would be the proper person before whom the oath or affirmation could have been taken. This argument tends to ignore the positive language of para 2(d) of the Notification which clearly states that where the candidate is out of India, the person authorised would be the diplomatic or consular representative. Mr. Ram Dass being the Consular Agent of the Consulate General of India, would be the proper officer and therefore compliance with paragraph 2(d) seems to be perfectly in order. Even otherwise, if paragraphs 2(c) and 2(d) apply simultaneously there is no justification to hold that paragraph 2(c) will apply overriding paragraph 2(d). By such a construction, Mr. Ganapathy seems to introduce words which are not found in the notification. That will also be doing violence to the option conferred on the candidate as, I said above, that would defeat the very purpose of conferring option. Therefore, looked at from any point of view, the compliance with paragraph 2(d) of the Notification fulfils the requirement of law.


28. Mr. Ganapathy relies on the decision in N.P. Ponnuswami v. Returning Officer, Namakkal, 1952 AIR(SC) 64, 1952 SCR 218, 1 ELR 133, 1952 SCJ 100. In paragraph 18 of the said judgement, it is observed as follows :-


"'The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it." *


Therefore, the procedure set out in each clauses of paragraph 2 of the Notification should be strictly complied with. As has been observed above, in so far as para 2(d) applies in this case, it has been complied with.


29. Turning to the telex message, what happened was that under Ex. P.1 the General Secretary of the A.I.A.D.M.K. Party made a request to the Election Commission to the following effect.


"Chief Election Commissioner - Government Of India, Nirvatchan Sadan Ashok Road New Delhi-110 001.


Sir My Leader Mr. M.G. Ramachandran, Chief Minister of Tamil Nadu wants to contest in the coming Assembly Election in Andipatti Constituency, Madurai District. He is now at Brockly in Hospital, New York stop Request that Indian Diplomatic Officer at New York may be authorised officer to receive his nomination paper and administer oath - P.V. Shanmugam, General Secretary AIADMK." *


In response to this request of the General Secretary of the AIADMK Party, the Election Commission has issued the following telex message.



"Teleprinter/Telex Message.


From


Secretary,


Election Commission of India,


New Delhi.


To, 2. The Consulate General of India, New York-10021.


The Ambassador of India,


Indian Embassy


Massachussetts Avenue,


2107 N. W. Washington D.O. 20008.


No. 464/TN-LA/84. The Commission has been informed that Shri M.G. Ramachandran, Chief Minister of Tamil Nadu who is under the medical treatment in Brocckly in Hospital, New York wants to contest the general election to the Legislative Assembly of Tamil Nadu which is being notified by the Commission on the 20th Nov. 1984. Under Art.84(a) in the case of Lok Sabha and Article 173(a) in the case of a Legislative Assembly, a candidate is required to make and subscribe before an authorised person in that behalf by the Election Commission an oath or affirmation according to the appropriate form set out for the purpose in Third Schedule of the Constitution of India Repeat Third Schedule of the Constitution. In pursuance of the above provisions, the Election Commission has authorised besides the Returning Officer of the constituency, a few other authorities before whom a candidate may make and subscribe the oath or affirmation vide Commission's notification reproduced in current manual of election law. Among the authorities listed are the Diplomatic of Consular Representative of India in the country where the candidate to be or any person authorised by such Diplomatic or Consular Representative. Where a candidate is confined to bed in a hospital or otherwise owing to illness or any other cause, the Medical Superintendent in charge of the hospital or the medical practitioner attending on him is also an authorised officer to administer the oath or affirmation to that candidate. Para. The Commission is also informed that some Indian Medical Practitioner of the Government of Tamil Nadu who have gone with Shri M.G. Ramachandran are attending on him. Para. In view of the reports received from the Chief Electoral Officer of Tamil Nadu in this regard, the Commission instructs the Ambassador of India or the Consulate General of India at New York as the case may be to authorise one of Indian Medical Practitioner attending on him to administer the oath or affirmation to Shri. M.G. Ramachandran Para. Under the law the oath or affirmation should be taken after the candidate or his proposer has filed his nomination paper before the Returning Officer. This may be borne in mind while administering oath or affirmation. Para. It is also learnt that Shri Ramachandran may not be in a position to sign the oath form, under the Conduct of Election Rules, 1961 framed under the Representation of the People Act, 1951 vide Rule 2(2), a candidate shall be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or such other officer as may be specified in this behalf by the Election Commission. The Commission hereby specifies the Medical Practitioner attending on Shri M.G. Ramachandran or any person authorised by the Ambassador of India in U.S.A. or Consulate General of India at New York for the purpose of attesting the mark as being the mark of Shri Ramachandran in any instrument including nomination papers, form or oath etc. In addition if a thumb impression of Shri M.G. Ramachandran is taken on the nomination paper or any paper connected with the oath or affirmation or any paper.


Relating to elections, it may be recorded below such thumb impression that it is the thumb impression of Shri M.G. Ramachandran and the same be also attested. Para. The procedure for administering oath or affirmation is explained in detail both in the hand book for candidate and hand book for the Returning Officer which may be referred to wherever found necessary.


New Delhi, Sd/- ..........


November 19, 1984. (K. Ganesan)


Secretary." *


To this, a further addendum was issued on November 20, 1984, under Ex. P.3. The argument of Mr. Ganapathy in this regard is that the Election Commission applied its mind to the situation and came to issue the telex message Ex. P. 2 by virtue of the power conferred on it under Art.173 of the Constitution and not by virtue of its power under paragraph 2(e) of the Notification. Therefore, this being a special notification in this case, that alone has to prevail. One thing is certain and that is the telex message cannot be said to fall under para 2(e) because the language of that clause is

"where the candidate is for any other reason unable to appear or prevented from appearing...." *


The emphasis is on the inability of the candidate to appear before the concerned Officer as stated in the previous paragraphs of the Notification. Of course, if this is a special authorisation, it would exclude the general as laid down in a case arising under the U.P. Industrial Disputes Act in J.K.C.S. and W. Mills Co. v. State of U.P., 1961 (3) SCR 185, 1961 (2) FLR 529, 1960 (19) FJR 436, 1961 (1) LLJ 540, 1962 (1) SCJ 417, 1960 (19) FLJ 436, 1961 AIR(SC) 1170, 1961 AIR(AC) 1170. In para 9 of the said judgement, it is observed as follows :-


"There will be complete harmony however if we hold instead that Cl.5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pe

nding within the meaning of Cl.23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General. seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provisions in another Act, the rule cannot apply in resolving a conflict between general and special provisions the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provision should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, 1859 (53) ER 1032 quoted in Craies on Statute Law at P. 206, (6th Edition) Romilly, M.R., mentioned the rule thus :-" * The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. "The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon Corpn., 1858 (28) LJ(Ch) 598, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase 1889 (135) US 255 and Carrol v. Greenwich Ins. Co., 1905 (199) US 401." * In United States v. Chase, (1889) 34 Law Ed. 117 at page 119 it is observed as follows :- "It is an old and familiar rule that, where there is, in the same statute, a particular enactment, and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment." * There can be no quarrel about this proposition of law. Notwithstanding this, if as has been already held, para 2(d) applies to this case, it has to be construed that the special authorisation must be in addition to the persons authorised as catalogued in the notification S.O. 1111 dt. 18th Mar. 1968. In other words, this will be in addition to para 2(d). Relying on the decision in Inder Lal v. Lal Singh, 1961 AIR(Raj) 122 it is urged that where a candidate contests on behalf of a political party, such a party could be aptly called the agent of the candidate for election purposes and therefore it was that on a request made by the General Secretary of the AIADMK Party under Ex. P.1, a special authorisation had come to be issued. I am unable to accept this argument because the emphasis, as observed a little earlier, under' paragraph 2(e) is on the inability of a candidate to appear or prevented from appearing. 30. Then again, the Election Commission having issued a notification in general terms under S.O. 1111 dated 18th March, 1968 cannot issue a special notification in derogation to that notification, is the argument is (of) the petitioner. Here is a situation to which para 2(d) of the general notification applies. That has been complied with. Even if it is to be held that special notification also applies, there is nothing to suggest the exclusion of paragraph 2(d). There is, therefore, every justification to hold that the Election Commission having, in exercise of its constitutional power, issued Notification S.O. 1111 dt. 18th Mar. 1968, it could not act contrary to it, by issuing this special notification. The Election Commission is certainly bound by the general notification. Therefore, even in the presence of Exs. P.2 and P.3, para 2(d) of Notification S.O. 1111 dt. 18th Mar. 1968 will be fully operative. 31. The next contention of Mr. Ganapathy is that the authorisation is to one of the Indian Medical Practitioners attending on the first respondent. When such was the instruction, there is no possibility of the Consular Agent himself exercising that power. This stand seems to be not correct. Even though the instruction may be to authorise one of the Indian Medical Practitioners, the power of the Consular Representative is not taken away. Even otherwise, in one sense it could be held that the telex messager falls under para. 2(d) because that says "diplomatic or consular representative of India in the country where the candidate happens to be or any person authorised by such diplomatic or consular representative." * The language of the telex message is that the commission instructs the Ambassador of India or the Consulate General of India at New York as the case may be to authorise one of Indian Medical Practitioner attending on him to administer the oath or affirmation to Shri M.G. Ramachandran' (Emphasis supplied) It is, therefore, possible to hold that the Commission was merely referring to para. 2(d), taken in the context of the earlier wording of the telex, and not making a special authorisation. Hence, I conclude that the compliance with para. 2(d) of the Notification S.O. 1111 dt. 18th Mar. 1968 is perfectly legal and valid. The issue is answered in favour of the first respondent and against the petitioners. In so far as the question of the validity of attestation does not arise nor does it remain an issue to be decided, there is no need to deal with the same. 32. In the result, the Election Petitions, E.P. Nos. 3 and 4 of 1985 will stand dismissed with costs of the first-respondent, in a sum of Rs. 1,000/- in each of the petitions. Petitions dismissed.