Andhra Pradesh High Court - Amravati
Janasena Party vs The State Election Commissioner, on 21 May, 2021
Bench: M.Satyanarayana Murthy
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
+ WRIT PETITION NOs.7847 AND 7778 of 2021
% Dated 21.05.2021
W.P.No.7847 of 2021
#
Janasena Party, a registered Political Party
Rep. by its Secretary
Chillapalli Srinivasa Rao
R/o 8-589, Bhargavapeta
Mangalagiri, Guntur-522 503
..... Petitioner
Vs.
$
The State Election Commissioner,
Andhra Pradesh State Election Commission,
1st Floor, New HOD Building
M.G. Road, Vijayawada-520 010 & two others ......Respondents
W.P.No.7778 of 2021
#
Varla Ramaiah,
s/o Issac, Hindu
Politburo Member and General Secretary of
Telugu Desam Party,
R/o 1-3-174/8, Varka Yugandhar Marg,
Vidyadharapuram, Vijayawada-12 ..... Petitioner
Vs.
$
The State Election Commissioner,
Andhra Pradesh State Election Commission,
1st Floor, New HOD Building
M.G. Road, Vijayawada-520 010 & two others ......Respondents
JUDGMENT PRONOUNCED ON:
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers YES
may be allowed to see the Judgments?
2. Whether the copies of judgment may be YES
marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to YES
see the fair copy of the Judgment?
MSM,J
WP.Nos.7847 and 7778 of 2021
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+ WRIT PETITION NOs.7847 AND 7778 of 2021
% Dated 21.05.2021
W.P.No.7847 of 2021
#
Janasena Party, a registered Political Party
Rep. by its Secretary
Chillapalli Srinivasa Rao
R/o 8-589, Bhargavapeta
Mangalagiri, Guntur-522 503
..... Petitioner
Vs.
$
The State Election Commissioner,
Andhra Pradesh State Election Commission,
1st Floor, New HOD Building
M.G. Road, Vijayawada-520 010 & two others ......Respondents
! Counsel for the petitioner : Sri V. Venugopala Rao
^ Counsel for the respondent :
1. Sri C.V. Mohan Reddy, learned Senior Counsel
2. Learned Advocate General for State of A.P
W.P.No.7778 of 2021
#
Varla Ramaiah,
s/o Issac, Hindu
Politburo Member and General Secretary of
Telugu Desam Party,
R/o 1-3-174/8, Varka Yugandhar Marg,
Vidyadharapuram, Vijayawada-12 ..... Petitioner
Vs.
$
The State Election Commissioner,
Andhra Pradesh State Election Commission,
1st Floor, New HOD Building
M.G. Road, Vijayawada-520 010 & two others ......Respondents
! Counsel for the petitioner : Sri Vedula Venkataramana
MSM,J
WP.Nos.7847 and 7778 of 2021
^ Counsel for the respondent : Sri C.V. Mohan Reddy
Learned Senior Counsel
Advocate General
<GIST:
> HEAD NOTE:
? Cases referred
1. (1995) 4 SCC 611
2. (2013) 10 SCC 1
3. (2016) 2 SCC 445
4. AIR 2000 SC 3266
5. (2013) 3 SCC 526
6. 2003 (2) SCR 180
7. Misc Bench No.9470 of 2014
dated 16.01.2015
8. 2017 (9) ADJ 251
9. 1986 (4) SCC 632
10. 1995 All.L.J 534
11. (1996) 9 SCC 309
12. (2004) 2 SCC 150
13. (2008) 2 SCC 280
14. 2017 (9) ADJ 251
15. AIR 1952 SC 12
16. AIR 1951 SC 41
17. AIR 1977 SC 276
18. (2002) 1 SCC 33
19. 2019 (5) ALT 165
20. AIR 2012 SC 2010
21. AOR 1952 SC 64
22. AIR 1967 SC 669
23. AIR 1985 SC 1746
24. AIR 1978 SC 854
25. AIR 2004 SC 3600
26. (1984) 3 SCR 74
27. (2020) 6 SCC 548
28. 2000 (8) SCC 216
29. 1999 AIR SC 1723
30. (2021) 2 MLJ 603
31. (1967) 2 SCR 762
32. 1981 SCR (1) 206
33. AIR 1997 SC 1125
34. AIR 2007 SC 861
35. AIR 1996 AP 37
36. AIR 1987 SC 386
37. AIR 1987 SC 663
38. AIR 1996 AP 324
39. 2001 (6) ALD 136
40. AIR 1999 P&h 1
41. 1995 Supp. (3) SCC 643
42. (1997) 116(2) PLR 778
43. (2013) 9 SCC 659
44. AIR 1968 SC 647
45. 1901 AC 495
MSM,J
WP.Nos.7847 and 7778 of 2021
46. AIR 1990 AP 171
47. (2002) 3 SCC 496
48. (1951) 2 All. ER 1 (HL)
49. (1971) 1 WLR 1062
50. (1972) 2 WLR 537
51. (2003) 11 SCC 584
52. (2004) 3 SCC 75
53. (2004) 7 SCC 214
54. (2004) 8 SCC 579
55. (2006) 1 SCC 368
56. 1994 (2) SCC 481
MSM,J
WP.Nos.7847 and 7778 of 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NOs.7847 AND 7778 of 2021
COMMON ORDER:
Both these writ petitions are filed under Article 226 of the
Constitution of India, for identical relief, so also, on identical major
grounds. Hence, it is appropriate to decide both the writ petitions
by common order.
W.P.No.7847 of 2021
"Janasena Party", a registered political party, represented
by it's Secretary Chillapalli Srinivasa Rao, Guntur, filed
W.P.No.7847 of 2021 claiming a declaration that the Notification
No 1503/SEC-B1/2021 dated 01.04.2021 of 1st respondent
resuming the election process of Mandal Praja Parishads Territorial
Constituencies (MPTCs) and Zilla Praja Parishads Territorial
Constituencies (ZPTCs) in State of Andhra Pradesh, from the stage
where it was stopped without issuing fresh notification, keeping in
view the earlier report in letter No.221/SEC-PESHI/2020 dated
18.03.2020 addressed to the Home Secretary, Government of India
reporting instances of violence viz., prevention from filing
nominations, forceful withdrawal as bad, illegal, arbitrary and
contrary to Articles l4 and 243-K of Constitution of India and
consequentially, set aside the same by directing the first
respondent to issue fresh notification for filing of fresh
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WP.Nos.7847 and 7778 of 2021
nominations to conduct elections to MPTCs and ZPTCs in State of
Andhra Pradesh by free and fair election process.
W.P.No.7778 of 2021
One Varla Ramaiah, Politburo Member and General
Secretary to Telugu Desam Party (T.D.P) filed W.P.No.7778 of 2021
to declare the action of the first respondent in not imposing the
MCC for a period of four weeks before the notified date of polling as
mandated by the Supreme Court of India in W.P.(Civil) No.437 of
2020 dated 18.03.2020 and preceding to issue the election
Notification No.1503/SEC-B1/2021 dated 01.04.2021 purporting
to conduct the elections for MPTCs and ZPTCs on 08.04.2021 in
violation of the orders of the Supreme Court of India without re-
imposition of the model code of conduct for four weeks prior to the
date of poll is patently arbitrary and illegal, set-aside the said
notification and direct the first respondent to issue a fresh
notification scheduling the date of poll of MPTCs and ZPTCs
elections in the State by re-imposing the Model Code of Conduct
for four weeks from the date of notification till completion of
election process.
The major and common ground raised in W.P.No.7778 of
2021 and in W.P.No.7847 of 2021 is that, when a notification for
conduct of elections for MPTCs and ZPTCs was issued on
07.03.2020, the election process of MPTCs and ZPTCs was
completed upto the stage of publication of list of contesting
candidates. More so, on 15.03.2020, the first respondent issued a
notification withholding/suspending the election process of MPTCs
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/ ZPTCs and Urban local bodies due to threat of pandemic, Covid-
19. It is contended that the second respondent/State of Andhra
Pradesh had filed W.P.(Civil) No.437 of 2020 before the Hon'ble
Supreme Court of India challenging the Notification dated
15.03.2020 issued by the State Election Commission, postponing
the Elections for local bodies such as panchayats and municipal
bodies including MPTCs & ZPTCs by six weeks or any other date
on the ground of threat of Covid-19.
The Hon'ble Supreme Court of India in W.P.(Civil) No.437 of
2020 dated 18.03.2020 issued the following order:
"The petitioner - State of Andhra Pradesh has filed this writ petition
challenging the action of the respondent - Andhra Pradesh State
Election Commission (for short, the 'Election Commission') in issuing
a Notification dated 15.03.2020 postponing the elections for the local
bodies such as Panchayats and Municipal Bodies by six weeks or
any other date on the ground of spread of Corona virus (COVID 19).
We do not see any reason why this Court should interfere with the
decision of the respondent - Election Commission to postpone the
elections particularly since the postponement is due to possible
outbreak of Corona virus (COVID 19) epidemic in the country. We
therefore decline to interfere with the said decision of the Election
Commission. However, it appears that one of the grievances raised
by the petitioner - State needs to be addressed. According to Mr.
ANS Nadkarni, learned Additional Solicitor General appearing for the
State, a large number of developmental activities have been
suspended due to the imposition of the MCC for the aforesaid
Elections in the State of Andhra Pradesh.
Mr. Nadkarni, learned Additional Solicitor General, submits that the
imposition of the MCC would not be justified if the Elections are
postponed. We see much substance in the above submissions of the
learned Additional Solicitor General. We therefore direct that the
Election Commission shall impose the MCC four weeks before
the notified date of polling. Mr. Shekhar Naphade, learned Senior
Counsel appearing for the respondent - Election Commission,
submits that the State of Andhra Pradesh is not entitled to move this
Court by way of filing writ petition under Article 32 of the
Constitution of India. We are not inclined to go into this question in
the present writ petition due to the emergent circumstances in which
the same is filed. The said question is left open for determination in
an appropriate case. Mr. Nadkarni, learned Additional Solicitor
General for the petitioner - State, submits that the Election
Commission was not entitled to postpone the elections without
appropriate consultation with the State Government. He relies upon
the decision of this Court in Kishansing Tomar Vs. Municipal
Corporation of the City of Ahmedabad and Others - (2006) 8 SCC
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WP.Nos.7847 and 7778 of 2021
352. According to Mr. Naphade, learned Senior Counsel for the
respondent - Election Commission, the decision in Kishansing
Tomar (Supra) does not require prior consultation. This is also not a
controversy which we consider appropriate for decision in this case
in view of the order we propose to pass.
We direct that since the Election Commission has already taken the
decision to postpone the Elections, there shall be a post decisional
consultation with the State of Andhra Pradesh before the next date is
notified by the Election Commission. The MCC for the elections
shall be re-imposed four weeks before the date of polling. We
further direct that the present development activities which have
already been undertaken shall not be interrupted till the MCC is re-
imposed. However, if the State Government wishes to undertake any
fresh developmental activities, they shall do so only with the prior
permission of the respondent - Election Commission. In no
circumstance, the State Government shall be prevented from taking
necessary steps to curb the menace of Corona Virus (COVID 19)
epidemic. The instant writ petition is disposed of in the above terms."
In view of the orders passed by the Hon'ble Supreme Court,
the first respondent should re-impose MCC four weeks before the
notified date of polling, which means that during the period of
"Model Code of Conduct" (for short 'MCC') the State Government
shall not take any steps to attract the voters towards it's so called
welfare schemes "Navaratnalu". The restart should be preceded by
re-imposition of MCC, it should be four weeks before the notified
date of polling. Instead of following the directions issued by the
Hon'ble Supreme Court, the first respondent/State Election
Commissioner on 01.04.2021 took charge of her office on
appointment and resumed the election process of MPTCs and
ZPTCs to elect their representative members, except those specified
in the annexure enclosed to the notification.
It is contended that, as per the annexure to the impugned
notification dated 01.04.2021, the issue of notification by the State
Election Commission, resumed the adjourned election process of
MPTCs and ZPTCs on 01.04.2021, proposed to conduct polling
wherever necessary on 08.04.2021, re-poll if any on 09.04.2021,
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WP.Nos.7847 and 7778 of 2021
counting of votes was on 10.04.2021 and declaration of results is
soon after completion of election process.
It is contended that, the first respondent has restricted its
operation of MCC from 01.04.2021 to 08.04.2021 which is a patent
violation of the order of the Hon'ble Supreme Court, since the
Hon'ble Supreme Court directed the State Election Commission to
re-impose MCC for four weeks before the notified date of polling.
By virtue of this notification, the object of imposition of MCC for
four weeks before the notified date of polling is to create an equal
platform to all the political parties to participate in the elections for
obtaining free and transparent verdict of the voters. But, contrary
to the directions issued by the Hon'ble Supreme Court, the
notification was issued and therefore, it is illegal and arbitrary.
The additional grounds raised by "Janasena" Political Party
i.e petitioner in W.P.No.7847 of 2021 are that, during the period
from 07.03.2020 till 14.03.2020, for conduct of elections to MPTCs
and ZPTCs, several instances which never happened in the history
of elections happened in the State of Andhra Pradesh, hackling
democracy, but in pursuance of the said election notification dated
07.03.2020, there was great disturbance, consistently and
systematically undertaken by the ruling party and created
horrendous situation. In several parts of the State, the leaders and
representatives of the ruling party have openly and deliberately
made their efforts preventing the persons from filing nominations
to participate in election process except persons from ruling party.
There are hundreds of instances preventing persons from filing
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WP.Nos.7847 and 7778 of 2021
nominations in pursuance of notified election schedule and there
are thousands of instances of violence, attacks and threats
interrupting the process of filing nominations by the candidates
from all other political parties and independent candidates while
insisting for unanimous elections as dictated by the ruling party
representatives, in some of the incidents official of various
departments of government at the instance of ruling party leaders.
It became a hectic task to file nominations and in some occasions
where the persons from other political parties, except ruling party
were able to reach the centres for filing nominations, they were
threatened and compelled to withdraw nominations, so as to
declare the candidates from ruling party elected unanimously. The
violations and other instances are known to public as to how the
political party in power abused its power, in preventing several
contesting candidates from participating in the elections at one
stage or the other and made them to withdraw their nominations
forcibly. Having no other alternative, the then State Election
Commissioner/first respondent, responded and sent a detailed
report to the Government of India vide letter No.221/SEC-
PESHI/2020 dated 18.03.2020 about the experiences in State of
Andhra Pradesh, particularly the representatives from the ruling
party. Based on those grounds, the petitioner contended that the
election process was totally undemocratic and high-handed acts
lead to postponement of elections, now the first respondent is
taking steps to proceed with election process of MPTCs and ZPTCs
from the stage where it was stopped. In such process, the first
respondent has issued an order No:700/SEB1/2021 dated
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WP.Nos.7847 and 7778 of 2021
18.02.2021 calling report of specific instances of prevention from
filing nominations subject to an enquiry and due satisfaction,
ignoring earlier report dated 18.03.2020, thereby the first
respondent is trying to dilute what had happened earlier, causing
injury, to make the election process as mockery. It is only an
eyewash enquiry sought to be conducted by the first respondent.
It is further contended that, the earlier report of the first
respondent addressed to the Government of India dated
18.03.2020 is self explanatory. But, ignoring the incidents and
without issuing a notification afresh for conducting elections, the
notification impugned in the writ petition is issued to commence
fresh election process from the stage of filing nominations instead
of commencing from the stage, where it was stopped. The
contesting candidates, including the candidates of Janasena party
were deprived of their right to contest in the fair and free elections
of MPTCs and ZPTCs by filing their nominations and the some
were forced to withdraw.
It is the specific contention that, the first respondent took
charge of the office of the first respondent after retirement as Chief
Secretary to the Government of Andhra Pradesh on 01.04.2021
and issued the impugned notification, though the first respondent
is expected to proceed further un-biasedly, basing on the record
available in terms of Articles 243-K of the Constitution of India and
under the relevant provisions of the Andhra Pradesh Panchayat
Raj Act, 1994. Issue of such serendipitous notification without
looking into the situation explained by the predecessor in office of
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the first respondent and denying notification afresh for conducting
elections for MPTCs and ZPTCs is an arbitrary exercise of power by
the first respondent while scuttling the level play field in the
process, in defiance of the directions of the Hon'ble Supreme Court
and thereby, the notification issued by the first respondent
impugned in the writ petition is illegal and arbitrary and sought a
direction, as stated above by the petitioner - Janasena Party in
W.P.No.7847 of 2021 and Sri Varla Ramaiah; petitioner in
W.P.No.7778 of 2021.
The Secretary to the State Election Commission of Andhra
Pradesh filed preliminary counter affidavit on behalf of the first
respondent, raising a preliminary objection regarding
maintainability of W.P.No.7778 of 2021, controverting the
allegations levelled by the petitioner in the affidavit filed in support
of W.P.No.7778 of 2021. It is specifically pointed out that the
W.P.No.7778 of 2021 has been filed by Sri Varla Ramaiah in his
individual capacity, but not as a member of Telugu Desam Party. It
is contended that the petitioner is not a candidate who is
contesting the elections to MPTCs and ZPTCs; the acts alleged are
in violation of the fundamental rights and therefore, in his
individual capacity, he cannot espouse any grievance, questioning
the manner of issuance of the election notification by the first
respondent, as such, the petitioner in W.P.No.7778 of 2021 has no
locus standi to maintain the writ petition and the same is liable to
be dismissed.
MSM,J
WP.Nos.7847 and 7778 of 2021
The Secretary to the State Election Commission of Andhra
Pradesh filed counter affidavits separately in both the writ
petitions. However, the reply to the major grounds regarding issue
of notification in violation of the judgment of Hon'ble Supreme
Court in W.P.(Civil) No.437 of 2020 dated 18.03.2020 is common
in both the counter affidavits. Hence, it is apposite to narrate the
appropriate pleas raised by the respondents in both the petitions
in two separate counter affidavits. The first respondent has denied
the allegations made in the writ affidavits, more particularly, about
violation of direction issued by the Supreme Court in W.P.(Civil)
No.437 of 2020 dated 18.03.2020 and denied the allegations of
violence, forcible withdrawals specifically raised in W.P.No.7847 of
2021.
The sum and substance of the common contentions raised in
both the counter affidavits is that; the first respondent admitted
about issue of notification on 07.03.2020 notifying the election of
MPTCs and ZPTCs along with Urban and Rural Local Bodies,
pausing of process of elections amid Covid-19 and later, carried
the matter to the Hon'ble Supreme Court in W.P.(Civil) No.437 of
2020, it's disposal by the Hon'ble Supreme Court by order dated
18.03.2020 directing the first respondent to remove MCC and later
a notification was issued stopping further process of elections with
a condition to resume the same whenever Covid-19 recedes, in
consultation with the Government. Accordingly, the process was
resumed, issued notification for local bodies, both Urban and
Rural and held elections for the local bodies, but nobody raised
objection regarding non-compliance of the direction to re-impose
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WP.Nos.7847 and 7778 of 2021
MCC four weeks before the notified date of polling. After
completion of elections to local bodies, the erstwhile Election
Commissioner demitted the office, on completion of tenure.
On 01.04.2021, the first respondent reviewed the situation
with the Chief Secretary to Government, Director General of Police,
Principal Finance Secretary, Principal Secretary to Government
(Panchayat Raj), Principal Secretary to Government (Health,
Medical & Family Welfare), Commissioner (Panchayat Raj),
Commissioner (Health & Family Welfare) to ascertain the readiness
of the Government for deployment of staff and police force,
Covid-19 precautions including vaccination to the poll staff and
police personnel and other logistics, in order to facilitate the first
respondent to resume the adjourned election process of the
MPTCs/ZPTCs. Subsequently, the Chief Secretary to Government
vide Letter No. 12/CS/2021, dated 01.04.2021 informed
preparedness for resumption of elections to MPTCs/ZPTCs was
ascertained from the District Administrations and that they are
fully prepared for conduct of elections to MPTCs/ZPTCs. Vide the
said communication, the State Government requested to consider
an early resumption of the halted election process of MPTCs and
ZPTCs. Later, the present notification was issued on 01.04.2021
proposing to hold elections on 08.04.2021 for 9,696 MPTCs
notified for election on 07.03.2020, MPTC Members unanimously
elected were 2,371 and out of 652 ZPTCs notified for elections, 126
were declared elected unanimously (uncontested) on 14.03.2020.
Accordingly, notification was issued due to recession in covid-19
cases. As such, the MCC was in force for a long period and that the
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notification was issued only in consonance with the directions
issued by the Hon'ble Supreme Court, but not otherwise, on the
ground of violations of Hon'ble Supreme Court directions,
notification cannot be set-aside.
In W.P.No.7778 of 2021, the respondents questioned the
very locus standi of the petitioner therein, so also, the "form" of
writ petition, as the allegations made in the writ affidavit are
indicative of espousing public interest, consequently, writ petition
is not maintainable and the petitioner may file appropriate petition
invoking public interest litigation before the Division Bench, but,
this Court consisting of single Judge cannot hear and decide
W.P.No.7778 of 2021, except to dismiss the writ petition. The
respondents raised two different contentions in two different
paragraphs. At one stage, locus standi of the petitioner in
W.P.No.7778 of 2021 was challenged and at another stage, the
"form" of W.P.No.7778 of 2021 was challenged. On these grounds
also, the respondents sought to dismiss the writ petition filed by
one Sri Varla Ramaiah, writ petitioner in W.P.No.7778 f 2021.
Whereas, in W.P.No.7847 of 2021, the respondents
specifically denied the alleged violence, forcible withdrawal of
nominations, prevention of candidates from filing their
nominations etc., while contending that the petitioner therein is
not entitled to claim the relief for issue of fresh notification of
elections to MPTCs and ZPTCs, in view of the order of this Court in
W.P.No.4154 of 2021 & batch, where, this Court by common order
dated 16.03.2021, elaborately dealt with the issue and directed
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WP.Nos.7847 and 7778 of 2021
that the election of such candidates who were elected unanimously
shall be declared immediately and certificates of election be
granted to them as per Rule 16 of the Conduct of Election Rules,
2016 and set-aside the order of the State Election Commission's
Order dated 18.02.2021 passed by the State Election Commission,
which delegated the powers to the District Collectors and District
Election Authorities to review complaints and revive the
candidature of affected candidates, by virtue of plenary powers
vested in it under Article 243-K of the Constitution of India. The
same was not disclosed in the petition. On this ground also, the
petition is sought to be dismissed.
The allegations made in Paragraph Nos. 4,5,6 & 7 of the
affidavit were denied, as the allegation are bald, without any
material or record to substantiate those allegations regarding
violations or prevention from filing nominations or forcible
withdrawal of nominations etc. Therefore, question of issue of a
fresh notification for holding elections to MPTCs and ZPTCs does
not arise, as the elections were already held and the first
respondent became functus officio and prayed to dismiss the writ
petition.
Heard, Sri Vedula Venkataramana, learned Senior Counsel
for the petitioner in W.P.No.7778 of 2021, Sri V. Venugopala Rao,
learned counsel for the petitioner in W.P.No.7847 of 2021; learned
Advocate General representing the State Government and
Sri C.V. Mohan Reddy, learned Senior Counsel for the first
respondent/State Election Commission.
MSM,J
WP.Nos.7847 and 7778 of 2021
Considering rival contentions, perusing the material
available on record, the points that need to be answered by this
Court are as follows:
1. Whether Sri Varla Ramaiah, petitioner in W.P.No.7778
of 2021 espoused any public cause in the writ petition.
If so, whether the writ petition under Article 226 of the
Constitution of India, without invoking the public
interest litigation can be decided by a learned Single
Judge of this Court, in view of Rule 7-A of Writ
Proceeding Rules, 1977 and Public Interest Litigation
Rules, 2015?
2. Whether the State Election Commissioner/first
respondent infringed or invaded the statutory or
constitutional right of Sri Varla Ramaiah, petitioner in
W.P.No.7778 of 2021 by issuing Notification
No.1503/SEC-B1/2021 dated 01.04.2021?
3. Whether Notification No.1503/SEC-B1/2021 dated
01.04.2021 is contrary to the direction issued by the
Hon'ble Supreme Court in W.P.(Civil) No.437 of 2020
dated 18.03.2020?
4. Whether the entire notification for election of MPTCs
and ZPTCs is liable to be set aside in view of the report
submitted by respondent No.1 to the Central
Government as claimed by the petitioner in W.P.No.7847
of 2021? If so, whether the notification No.68/SEC-
B1/2020 dated 07.03.2020 is liable to be struck down
and a direction be issued to respondent No.1 to issue
notification for election to MPTCs and ZPTCs afresh by
following the directions of Hon'ble Supreme Court?
MSM,J
WP.Nos.7847 and 7778 of 2021
P O I N T No.1:
Sri Varla Ramaiah, petitioner in W.P.No.7778 of 2021, a
Politburo Member and General Secretary of Telugu Desam Party
filed W.P.No.7778 of 2021 not representing the political party, but
in his individual capacity. The respondents contended in the
preliminary counter affidavit that this petitioner being an
individual cannot espouse the public cause and he has no locus
standi, since there is no infringement of his individual right either
statutory or constitutional. Based on preliminary counter affidavit,
the learned single Judge of this Court passed an interim order in
I.A.No.1 of 2021 in W.P.No.7778 of 2021 dated 06.04.2021. The
same was carried in W.A.No.224 of 2021 before the Division Bench
of this Court and in-turn, upon hearing both the counsel, the
Division Bench of this Court in W.A.No.224 of 2021 dated
07.04.2021 set-aside the order of the learned single Judge and
observed that, granting of interim stay would amount to
acceptance to the locus standi of this petitioner during pendency of
the writ petition itself and directed the learned single Judge to
dispose off the main writ petition after filing counter affidavit. In
the preliminary counter affidavit, no specific objection was raised
regarding "form" of the writ petition. In the counter affidavit filed
in the main writ petition, in addition to the preliminary objections
raised in the counter affidavit, a specific plea is urged before this
Court that, "form" of the writ petition is in the nature of public
interest litigation, in view of Rule 7-A of the Writ Proceeding Rules
and Public Interest Litigation Rules, the petitioner is not entitled to
espouse the public cause, as an individual and such writ petition
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WP.Nos.7847 and 7778 of 2021
espousing the public cause has to be heard and decided by a
Division Bench as per the Writ Proceeding Rules. Refuting the
same, Sri Vedula Venkataramana, learned Senior Counsel
contended that, the petitioner did not raise such contention
questioning the form of writ petition in the preliminary counter
affidavit, but the learned single Judge passed order in the
interlocutory application and appeal was filed against order in
interlocutory application. He also contended that, when the first
respondent did not raise such plea in the interlocutory application,
the first respondent is deemed to have waived its right to raise
such contention for the first time in the main writ petition,
thereby, the first respondent is estopped to raise such contention
and requested to reject the contention of the respondents.
This contention was seriously disputed by Sri C.V. Mohan
Reddy, learned Senior Counsel appearing for the first respondent
and so also by Sri S. Sriram, the learned Advocate General, on the
ground that estoppel is a principle of evidence and unless
sufficient material is produced before this Court to substantiate
such contention, this Court cannot reject the plea of the
respondents based on observations made by the Division Bench of
this Court.
In view of the above contentions, it is necessary to decide
both, locus standi and form of writ petition. The petitioner in
W.P.No.7778 of 2021 filed the writ petition as an individual citizen
of the country and questioned the action of the first respondent
being an 'elector', contending that the first respondent, in utter
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violation of the direction issued by the Hon'ble Supreme Court in
W.P (Civil) No.437 of 2020, issued the notification impugned in the
writ petition and thereby, the notification totally scuttled the
candidates of their level play field and retarded the process of free
and fair election, no opportunity of campaigning the candidates of
political parties was afforded virtually. The petitioner, who is an
elector, is entitled to question such illegal act which retards free
and fair election, issued in violation of order of Hon'ble Supreme
Court, since the petitioner being an elector, is entitled to elect a
representative of the people in democratic set-up. Hence, in view of
the unfair process of election under the notification issued by the
first respondent, the petitioner in W.P.No.7778 of 2021 is deprived
to elect a representative of his choice in free and fair election.
Therefore, the petitioner being an elector is competent to question
the notification issued for the elections of MPTCs and ZPTCs in the
State of Andhra Pradesh.
A little probe is required to decide the litigational
competency of this petitioner to challenge the notification.
According to Section 81 of the Representation of the People Act,
1951, election petition calling in question any election may be
presented on one or more of the grounds specified in sub-section
(1) of Section 100 and Section 101 to the High Court by any
candidate at such election or any "elector" within forty-five days,
but not earlier than the date of election of the returned candidate,
or if there are more than one returned candidate at the election
and the dates of their election are different, the later of those two
dates. Thus, the intention of the Legislature is clear that the
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elector can challenge the election of the people's representative.
The explanation annexed to Section 81 made it clear that, "elector"
means a person who was entitled to vote at the election to which
the election petition relates, whether he has voted at such election
or not. Any elector/voter who is competent to cast his vote in such
election can file an application and challenge the election of a
People's Representative whether or not, he voted in the said
election, the question of right to exercise of vote by this petitioner
does not arise on the date when the writ petition was filed in the
present case, since the election notification itself was challenged by
this petitioner. When the Legislature permits any elector/voter to
challenge the election of a peoples representative under the
Representation of the People Act, 1951, who is competent to cast
his vote in such election, whether he voted or not in the said
election, the voter or elector can challenge even the notification
when his right to participate through indirect process to elect its
representative is infringed or invaded.
Elections to the house of people and to the legislative
assembles of the State and public bodies like ZPTC, MPTC, Urban
Local Bodies etc is based on "Adult Suffrage", as enunciated
under Article 326 of the Constitution of India. According to it,
Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage. The
elections to the House of the People and to the Legislative
Assembly of every State shall be on the basis of adult suffrage; that
is to say, every person who is a citizen of India and who is not less
than twenty one years of age on such date as may be fixed in that
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behalf by or under any law made by the appropriate legislature
and is not otherwise disqualified under this constitution or any law
made by the appropriate Legislature on the ground of non
residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter at any such
election. Thus, Article 326 of the Constitution of India provides
qualification for being a voter and it has nothing to do with the
right to stand in any of the elections. Therefore, the petitioner in
W.P.No.7778 of 2021 is a qualified voter, entitled to exercise his
vote in the elections.
At the same time, the Universal Declaration of Human
Rights, 1948, to which India is a signatory states that, everyone
has the right to take part in the government of his country, directly
or through freely chosen representatives. It is apposite to extract
Article 21 of the Universal Declaration of Human Rights, 1948 and
Article 25 of the International Covenant on Civil and Political
Rights, 1966.
Article 21 of the "Universal Declaration of Human Rights, 1948".
a) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
b) Everyone has the right of equal access to public service in his country.
c) The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
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Article 25 of the "International Covenant on Civil and Political
Rights, 1966"
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;
b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
c) To have access, on general terms of equality, to public service in his
country.
According to Article 21 of the Universal Declaration of
Human Rights, 1948 and Article 25 of the International Covenant
on Civil and Political Rights, 1966, to which India is a signatory,
the State has to ensure free and fair elections based on equal adult
suffrage and the petitioner being an elector has got a right to elect
a representative in the free and fair elections. When a right
guaranteed under the Constitution of India i.e. right to vote under
Article 19(1) or the human rights guaranteed under Article 21 of
the Universal Declaration of Human Rights, 1948 and Article 25 of
the International Covenant on Civil and Political Rights, 1966, the
petitioner can approach the Court and seek redressal of his
grievance invoking Article 226 of the Constitution of India.
Free and fair elections are foundation of every democracy.
Reaffirming the significance of the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights
which establish that the authority to govern shall be based on the
will of the people as expressed in periodic and genuine elections.
The fundamental principles relating to periodic free and fair
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elections that have been recognized by States in universal and
regional human rights instruments, including the right of everyone
to take part in the government of his or her country directly or
indirectly through freely chosen representatives, to vote in such
elections by secret ballot, to have an equal opportunity to become a
candidate for election, and to put forward his or her political views,
individually or in association with others. Conscious of the fact
that each State has the sovereign right, in accordance with the will
of its people, free to choose and develop its own political, social,
economic and cultural systems without interference by other
States in strict conformity with the United Nations Charter.
Wish to promote the establishment of democratic, pluralist
systems of representative government throughout the world
recognizes the free and fair elections and it is the basis for
democracy.
Free and fair elections can be based on vote and election
rights i.e. adult suffrage, eligibility, Candidature, Party and
Campaign Rights and Responsibilities. That means, everyone has
the right to take part in the government of their country and shall
have an equal opportunity to become a candidate for election. The
criteria for participation in government shall be determined in
accordance with national constitutions and laws and shall not be
inconsistent with the State's international obligations. Everyone
has the right to join, or together with others to establish, a political
party or organization for the purpose of competing in an election.
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Everyone individually and together with others has the right,
to express political opinions without interference; to seek, receive
and impart information and to make an informed choice; to move
freely within the country in order to campaign for election; to
campaign on an equal basis with other political parties, including
the party forming the existing government. When such an
opportunity is denied, the petitioner being an individual elector can
challenge the action of the State and its instrumentalities.
The Preamble of our Constitution proclaims that our
Country is democratic republic. Democracy consists of public
representatives who were elected in free and fair elections,
otherwise, it cannot be called as democracy, since free and fair
election is the foundation of the democracy.
Democracy being the basic feature of our constitutional set
up, there can be no two opinions that free and fair elections to our
legislative bodies alone would guarantee the growth of a healthy
democracy in the country. In order to ensure the purity of the
election process it was thought by our Constitution-makers that
the responsibility to hold free and fair elections in the country
should be entrusted to an independent body which would be
insulated from political and/or executive interference. It is
inherent in a democratic set up that the agency which is entrusted
the task of holding elections to the legislatures should be fully
insulated so that it can function as an independent agency free
from external pressures from the party in power or executive of the
day. This objective is achieved by the setting up of an Election
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Commission, a permanent body, under Article 324(1) of the
Constitution. The superintendence, direction and control of the
entire election process in the country has been vested under the
said clause in a commission called the Election Commission, as
held by the Constitutional Bench of the Supreme Court in T.N.
Seshan v. Union of India1. Even according to the observations
made in the judgment of the Constitutional Bench of the Supreme
Court, free and fair election is the basic foundation to democracy
in India and if, free and fair elections were not conducted, those
elections are nothing but mockery of compliance of constitutional
ritual.
The Three-Judge Bench in People's Union for Civil
Liberties and another v. Union of India and another2, after
dwelling upon many a facet opined that, democracy being the basic
feature of our constitutional set up, there can be no two opinions
that free and fair elections would alone guarantee the growth of a
healthy democracy in the country. The 'Fair' denotes equal
opportunity to all people. Universal adult suffrage conferred on the
citizens of India by the Constitution has made it possible for these
millions of individual voters to go to the polls and thus participate
in the governance of our country. For democracy to survive, it is
essential that the best available men should be chosen as people's
representatives for proper governance of the country. This can be
best achieved through men of high moral and ethical values, who
win the elections on a positive vote.
1 (1995) 4 Supreme Court Cases 611
(2013) 10 SCC 1
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Right to vote and right to elect a representative of their own
choice in free and fair election is a constitutional right guaranteed
under the Constitution, as held by the Supreme Court in Rajabala
& others v. State of Haryana3, where the Supreme Court held
that, the right to vote and right to contest at an election to a
PANCHAYAT are constitutional rights subsequent to the
introduction of Part IX of the Constitution of India. Both the rights
can be regulated/curtailed by the appropriate Legislature directly.
Parliament can indirectly curtail only the right to contest by
prescribing disqualifications for membership of the Legislature of a
State. Therefore, law is settled that, free and fair elections are the
foundation to democracy, right to contest in the election and elect
a representative is a constitutional right. If such right is violated or
infringed, any citizen can approach the Court for redressal.
Turning to the present facts of the case, the first respondent
issued notification on 01.04.2021 proposing to hold elections on
08.04.2021, despite the directions issued by the Supreme Court in
W.P. (Civil) No.437 of 2020 dated 18.03.2020 to re-impose MCC
four weeks before the notified date of polling in utter disobedience
of the directions of the Hon'ble Supreme Court, according to the
petitioner. Such violation amounts to scuttling the role playing
field and retarding the election process. Since the petitioner is an
elector who is competent even to challenge the election of the
peoples representative under the Representation of the People Act,
cannot deny the relief to the petitioner in the present petition, on
the ground that he has no locus standi, since, right to chose
3 (2016) 2 SCC 445
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peoples representatives in the fair and free elections is denied by
the act of the first respondent issuing impugned notification in
clear violation of directives issued by the Hon'ble Supreme Court.
Applying the analogy drawn from Section 81 of the Representation
of the People Act, 1951, the petitioner can be held to have locus
standi to challenge the notification, being a citizen and elector of
the State, when the notification is in violation of the directions
issued by the Hon'ble Supreme Court.
One of the major contentions raised by the first respondent
during hearing is that, the form of writ petition under Article 226
of the Constitution of India is not proper form, as the petitioner is
espousing the public cause raising a specific plea that the decision
taken by the first respondent not aimed to free and fair elections in
the election process. Sri C.V. Mohan Reddy, learned Senior
Counsel drawn attention of this Court to Rule 7-A of the Writ
Proceeding Rules, 1977, in support of his contention. Rule 7-A, is
inserted vide ROC No.137/SO/2010 dt.Oct.93 and A.P. Gazette
No.23 dt.10.06.2010. But, it is not necessary to extract the entire
procedure prescribed under Rule 7-A of the Writ Proceeding Rules,
it runs into several pages. However, notification was issued
notifying the Rules for public interest litigation known as Public
Interest Litigation Rules, 2015. But, here, the petitioner did not
espouse the public cause to conclude that the claim of this
petitioner is in the nature of public interest litigation. While
asserting his right to claim relief, he made certain allegations that
the action of the respondents would impede free and fair election,
which is the basic foundation for democracy. That does not mean
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that the petitioner is totally espousing the public cause, ignoring
his individual claim as 'elector'. Hence, Rule 7-A of the Writ
Proceeding Rules and Public Interest Litigation Rules, 2015, will
have no role in the matter, since the petitioner did not espouse the
public cause. Hence, the contention of the respondents that the
form of writ petition is incorrect is hereby rejected.
Initially, in the preliminary counter affidavit, the first
respondent raised a contention that the petitioner has no locus
standi, but during argument, the first respondent confined to the
form of writ petition while contending that the petitioner is
espousing public cause and not individual cause, thereby, the
petition is liable to be dismissed, as it is in violation of Rule 7-A of
the Writ Proceeding Rules, 1977 and Public Interest Litigation
Rules, 2015. Sri C.V. Mohan Reddy, learned Senior Counsel for
the first respondent relied on judgments of the Supreme Court of
India in M.S. Jayaraj v. Commissioner of Excise, Kerala and
others4, Kavi Raj and others v. State of Jammu and
Kashmir5, Chief Conservator of Forests, Government of
Andhra Pradesh v. Collectors6 and judgments of Allahabad High
Court in Smt. Chawali v. State of Uttar Pradesh7 and Ajit
Singh v. Union of India8. But, the various decisions placed on
record by Sri C.V. Mohan Reddy, learned Senior Counsel for the
first respondent/State Election Commission with regard to locus
AIR 2000 SC 3266
(2013) 3 Supreme Court Cases 526
2003 (2) SCR 180
Misc Bench No.9470 of 2014 dated 16.01.2015
2017 (9) ADJ 251
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standi needs no consideration and they are not necessary for
deciding the present issue.
In view of my foregoing discussion, I hold that the petitioner
has locus standi to maintain the writ petition under Article 226 of
the Constitution of India in the present form of the writ petition,
as filed before this Court, as it is not in contravention of Rule 7-A
of the Writ Proceeding Rules or Public Interest Litigation Rules.
Accordingly, Point No.1 is answered in favour of the petitioner and
against the respondents in W.P.No.7778 of 2021.
P O I N T No.2:
The petitioner in W.P.No.7778 of 2021 challenged the
notification in his individual capacity, on the ground that the first
respondent restricted operation of Model Code of Conduct for the
period from 01.04.2021 to 10.04.2021 is a patent violation of the
order of the Hon'ble Supreme Court in W.P. (Civil) No.437 of 2020
dated 18.03.2020 and filed this petition only in the interest of
conduct of fair and transparent elections to MPTCs and ZPTCs in
the State of Andhra Pradesh (vide Paragraph No.13 of the writ
affidavit).
The petitioner claimed Writ of Mandamus to declare the
action of the first respondent in not imposing MCC for four weeks
before notified date of polling is contrary to the order of the Hon'ble
Supreme Court in W.P. (Civil) No.437 of 2020 dated 18.03.2020
and for consequential directions.
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The first respondent contended that, in the absence of any
pleadings that the legal right of this petitioner, either statutory or
constitutional is infringed or invaded or threatened to be infringed
or invaded, writ of mandamus cannot be granted.
Writ of mandamus is discretionary in nature and such power
of judicial review under Article 226 of the Constitution of India can
be exercised only in certain circumstances. At best, this Court
cannot decide the legality of the order. Yet issuance of Writ of
Mandamus is purely discretionary and the same cannot be issued
as a matter of course.
In "State of Kerala v. A.Lakshmi Kutty9", the Hon'ble
Supreme Court held that a Writ of Mandamus is not a writ of
course or a writ of right but is, as a rule, discretionary. There must
be a judicially enforceable right for the enforcement of which a
mandamus will lie. The legal right to enforce the performance of a
duty must be in the applicant himself. In general, therefore, the
Court will only enforce the performance of statutory duties by
public bodies on application of a person who can show that he has
himself a legal right to insist on such performance. The existence
of a right is the foundation of the jurisdiction of a Court to issue a
writ of Mandamus.
In "Raisa Begum v. State of U.P.10", the Allahabad High
Court has held that certain conditions have to be satisfied before a
writ of mandamus is issued. The petitioner for a writ of mandamus
must show that he has a legal right to compel the respondent to do
1986 (4) SCC 632
1995 All.L.J. 534
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or abstain from doing something. There must be in the petitioner a
right to compel the performance of some duty cast on the
respondents. The duty sought to be enforced must have three
qualities. It must be a duty of public nature created by the
provisions of the Constitution or of a statute or some rule of
common law.
Writ of mandamus cannot be issued merely because, a
person is praying for. One must establish the right first and then
he must seek for the prayer to enforce the said right. If there is
failure of duty by the authorities or inaction, one can approach the
Court for a mandamus. The said position is well settled in a series
of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.11"
the Supreme Court held as follows:
"10. ...Under the Constitution a mandamus can be
issued by the court when the applicant establishes
that he has a legal right to the performance of legal
duty by the party against whom the mandamus is
sought and the said right was subsisting on the
date of the petition."
(Emphasis supplied)
In "Union of India v. S.B. Vohra12" the Supreme Court
considered the said issue and held that 'for issuing a writ of
mandamus in favour of a person, the person claiming, must
establish his legal right in himself. Then only a writ of mandamus
could be issued against a person, who has a legal duty to perform,
but has failed and/or neglected to do so.
(1996) 9 SCC 309
(2004) 2 SCC 150
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In "Oriental Bank of Commerce v. Sunder Lal Jain13" the
Supreme Court held thus:
"The principles on which a writ of mandamus can
be issued have been stated as under in The Law of
Extraordinary Legal Remedies by F.G. Ferris and
F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly
prerogative writ, usually issuing out of the highest
court of general jurisdiction, in the name of the
sovereignty, directed to any natural person,
corporation or inferior court within the jurisdiction,
requiring them to do some particular thing therein
specified, and which appertains to their office or
duty. Generally speaking, it may be said that
mandamus is a summary writ, issuing from the
proper court, commanding the official or board to
which it is addressed to perform some specific legal
duty to which the party applying for the writ is
entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of
a sound judicial discretion, the appropriate remedy
to enforce a plain, positive, specific and ministerial
duty presently existing and imposed by law upon
officers and others who refuse or neglect to
perform such duty, when there is no other
adequate and specific legal remedy and without
which there would be a failure of justice. The chief
function of the writ is to compel the performance of
public duties prescribed by statute, and to keep
subordinate and inferior bodies and tribunals
exercising public functions within their
jurisdictions. It is not necessary, however, that the
duty be imposed by statute; mandamus lies as well
for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its
issuance unquestionably lies in the sound judicial
discretion of the court, subject always to the well
settled principles which have been established by
the courts. An action in mandamus is not governed
by the principles of ordinary litigation where the
matters alleged on one side and not denied on the
other are taken as true, and judgment pronounced
thereon as of course. While mandamus is classed
as a legal remedy, its issuance is largely controlled
by equitable principles. Before granting the writ
the court may, and should, look to the larger
public interest which may be concerned-an interest
which private litigants are apt to overlook when
striving for private ends. The court should act in
view of all the existing facts, and with due regard
to the consequences which will result. It is in every
case a discretion dependent upon all the
surrounding facts and circumstances."
(Emphasis supplied)
(2008) 2 SCC 280
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When a Writ of Mandamus can be issued, has been
summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or
official in whom a discretionary duty is lodged to
proceed to exercise such discretion, but unless
there is peremptory statutory direction that the
duty shall be performed mandamus will not lie to
control or review the exercise of the discretion of
any board, tribunal or officer, when the act
complained of is either judicial or quasi-judicial
unless it clearly appears that there has been an
abuse of discretion on the part of such Court,
board, tribunal or officer, and in accordance with
this rule mandamus may not be invoked to compel
the matter of discretion to be exercised in any
particular way. This principle applies with full
force and effect, however, clearly it may be made to
appear what the decision ought to be, or even
though its conclusion be disputable or, however,
erroneous the conclusion reached may be, and
although there may be no other method of review
or correction provided by law. The discretion must
be exercised according to the established rule
where the action complained has been arbitrary or
capricious, or based on personal, selfish or
fraudulent motives, or on false information, or on
total lack of authority to act, or where it amounts
to an evasion of positive duty, or there has been a
refusal to consider pertinent evidence, hear the
parties where so required, or to entertain any
proper question concerning the exercise of the
discretion, or where the exercise of the discretion is
in a manner entirely futile and known by the
officer to be so and there are other methods which
it adopted, would be effective."
(emphasis supplied)
It is a known fact that the writ petitions are being disposed
of based on undisputed facts pleaded in the writ petition, counter
affidavit and material produced in support of those pleadings. In
the absence of any pleadings, the Court cannot invent a different
case and grant relief to the petitioner.
In view of the law declared by the Hon'ble Supreme Court,
the petitioner must plead and prove that legal right existed either
statutory or constitutional right of this petitioner is infringed or
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invaded or threatened to infringe or invade by the act of the first
respondent. But, the bald allegations made in Paragraph No.13 of
the affidavit that the notification was issued totally in violation of
the directions issued by the Hon'ble Supreme Court without
demonstrating the existence of any right and it's infringement or
it's invasion or threatened infringement or invasion by the
notification issued by the first respondent. In the absence of
establishing the existence of right, it's infringement or invasion or
threatened infringement or invasion, the petitioner is not entitled
to claim writ of mandamus.
The Division Bench of the Allahabad High Court in
Ajit Singh v. Union of India14 while dealing with locus standi of a
person who filed petition under Article 226 of the Constitution of
India, referred the judgments of the Supreme Court to hold that
existence of legal right and its infraction must necessarily be
pleaded and proved, to issue Writ of Mandamus.
In State of Orissa v. Madan Gopal15 Hon'ble Supreme
Court has ruled that the existence of the right is the foundation of
the exercise of jurisdiction of the Court under Article 226 of the
Constitution. In Charanjit Lal Chowdhuri v. Union of India16, it
has been held by the Hon'ble Supreme Court that the legal right
that can be enforced under Article 32 must ordinarily be the right
of the petitioner himself who complains of infraction of such right
and approaches the Court for relief. I do not see any reason why a
2017 (9) ADJ 251
AIR 1952 SC 12
AIR 1951 SC 41
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different principle should apply to the facts of the present case
under Article 226 of the Constitution. The right that can be
enforced under Article 226 also shall ordinarily be the personal or
individual right of the petitioner himself though in the case of some
of the writs like habeas corpus or quo warranto this rule may have
to be relaxed or modified. Thus, Article 226 confers a very wide
power on the High Court to issue directions and writs of the nature
mentioned therein for the enforcement of any of the rights
conferred by Part III or for any other purpose. It is, therefore, clear
that persons other than those claiming fundamental rights can
also approach the Court seeking a relief thereunder. The Article in
terms does not describe the classes of persons entitled to apply
thereunder; but it is implicit in the exercise of the extraordinary
jurisdiction that the relief asked for must be one to enforce a legal
right.
Similarly, in Mani Subrat Jain v. State of Haryana17,
while considering Article 226 of the Constitution, the Hon'ble
Supreme Court in paragraph 9, observed thus:
"...It is elementary though it is to be restated that no
one can ask for a mandamus without a legal right
There must be a judicially enforceable right as well
as a legally protected right before one suffering a
legal grievance can ask for a mandamus. A person
can be said to be aggrieved only when a person is
denied a legal right by someone who has a legal
duty to do something or to abstain from doing
something. (See Halsbury's Laws of England 4th
Ed. Vol I, paragraph 122); State of Haryana v.
Subash Chander, (1974) 1 SCR 165 : (AIR 1973 SC
2216); Jasbhai Motibhai Desai v. Roshan Kumar
Haji Bashir Ahmed, (1976) 3 SCR 58 : (AIR 1976 SC
578) and Ferris Extraordinary Legal Remedies
paragraph 198."
AIR 1977 SC 276
MSM,J
WP.Nos.7847 and 7778 of 2021
(emphasis supplied)
It is well-settled that existence of a legal right of a petitioner
which is alleged to have been violated is the foundation for
invoking the jurisdiction of the High Court under Article 226 of the
Constitution. While reiterating this legal proposition, the Hon'ble
Supreme Court in paragraph 38 of its judgment in Ghulam Qadir
v. Special Tribunal18, held thus:
"38. There is no dispute regarding the legal
proposition that the rights under Article 226 of the
Constitution of India can be enforced only by an
aggrieved person except in the case where the writ
prayed for is for habeas corpus or quo warranto.
Another exception in the general rule is the filing of
a writ petition in public interest. The existence of the
legal right of the petitioner which is alleged to have
been violated is the foundation for invoking the
jurisdiction of the High Court under the aforesaid
Article. The orthodox rule of interpretation regarding
the locus standi of a person to reach the Court has
undergone a sea change with the development of
constitutional law in our country and the
constitutional Courts have been adopting a liberal
approach in dealing with the cases or dislodging the
claim of a litigant merely on hypertechnical grounds.
If a person approaching the Court can satisfy that
the impugned action is likely to adversely affect his
right which is shown to be having source in some
statutory provisions the petition filed by such a
person cannot be rejected on the ground of Ms
having not the locus standi. In other words, if the
person is found to be not merely a stranger having
no right whatsoever to any post or property, he
cannot be non-suited on the ground of his not
having the locus standi."
(emphasis supplied)
In view of the law declared by the Supreme Court and
reiterated by the Division Bench of the Allahabad High Court in the
judgment referred supra, the petitioner must plead and prove that
a legal right vested on him is violated or infringed or threatened to
be infringed to obtain a relief of writ of mandamus. But, in the
(2002) 1 SCC 33
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present writ petition, except alleging that, issue of notification in
violation of the order passed by the Supreme Court in W.P (Civil)
No.437 of 2020 dated 18.03.2020, no other allegation is made
about infringement or violation of his legal right, either statutory or
constitutional, except alleging that the notification was issued to
avoid free and fair elections. These pleadings are insufficient to
prove that there existed a legal right on the petitioner enforceable
in a Court of law, either statutory or constitutional and it's
infringement or invasion or threatened to infringe or invade by the
act of the first respondent. In the absence of pleadings, it is
difficult for me to hold that the petitioner's legal right, either
statutory or constitutional is infringed or invaded by the act of the
first respondent issuing Notification dated 01.04.2021. Though,
this Court held in Point No.1 that the petitioner is entitled to
maintain the writ petition having locus standi, as the right to vote
and right to elect a representative in the governance is a
constitutional right, but still, the petitioner has to plead and prove
that such right is invaded or infringed. Unless the petitioner
established that he is a voter of MPTC or ZPTC constituency to vote
in that election and that their exists a legal right and it's
infringement or invasion or threatened infringement or invasion,
writ of mandamus by exercising power under Article 226 of the
Constitution of India cannot be issued. Thus, the petitioner failed
to plead and prove the requirements for issue of writ of
mandamus, thereby, Sri Varla Ramaiah, the petitioner in
W.P.No.7778 of 2021 is disentitled to claim writ of mandamus.
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Accordingly, the point is answered in favour of the
respondents and against the petitioner in W.P.No.7778 of 2021.
P O I N T No.3:
The basis for claim is that, the first respondent issued
notification without complying the direction issued by the Hon'ble
Supreme Court in W.P. (Civil) No.437 of 2020 dated 18.03.2020,
which amounts to denial of right to campaign and scuttling the
role playing field, retarding the free and fair elections for MPTCs
and ZPTCs and thereby, the proposed elections is not free and fair
to contest in the elections for MPTCs and ZPTCs by the candidates
of the petitioner in W.P.No.7847 of 2021.
Undisputedly, the Hon'ble Supreme Court issued a direction
to re-impose MCC for four weeks prior to the notified date of
polling. But the contention of the respondents is that respondent
No.1 understood that the time frame is outer limit for re-imposing
MCC i.e. maximum period for re-imposing MCC, thereby
respondent No.1 can re-impose MCC for a term of less than four
weeks. Thus, the real controversy is around the understanding of
the judgment of the Hon'ble Supreme Court in W.P. (Civil) No.437
of 2020.
Along with the main petition, I.A.No.01 of 2021 is filed in
both the petitions. Learned single Judge of this Court by order
dated 06.04.2021 granted stay of all further proceedings pursuant
to the notification No.1503/SEC-B1/2021 dated 01.04.2021
issued by the 1st respondent. The order of the learned single Judge
of this Court was challenged before the Division Bench in
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WP.Nos.7847 and 7778 of 2021
W.A.No.224 of 2021. The Division Bench of this Court by order
dated 07.04.2021 set aside the direction issued by the learned
single Judge in I.A.No.01 of 2021. The relevant part of the order of
the Division Bench in W.A.No.224 of 2021 including operative
portion is as follows:
"A perusal of the impugned order of the learned single Judge would go to show
that the learned single Judge, in effect, while granting the interim order, had
virtually allowed the writ petition, though the writ petition is still pending disposal.
That the order has a ring of finality is apparent in view of the direction to the State
Election Commission to issue a fresh notification. Furthermore, the learned single
Judge, during the course of the order, did not consider the aspect relating to elections
held after the order of the Hon'ble Supreme Court in respect of Gram Panchayats,
Municipalities and Municipal Corporations, for which the Model Code of Conduct was
not imposed for a period of four weeks. The learned single Judge also did not
specifically decide the issue of locus standi of the writ petitioner.
We are of the considered opinion that there are contentious issues to be
adjudicated in the writ petition. Considering the matter in its entirety, we set aside
the order of the learned single Judge. Balancing the competing equities, we direct
that the poll can be conducted on 08.04.2021. We, however, direct that counting of
votes shall not take place and consequently, result of elections shall also not be
declared till disposal of the writ petition.
We dispose of this appeal in terms of the above directions. As the learned
single Judge had fixed the writ petition for consideration on 15.04.2021, Registry
will list the writ petition, as directed by the learned single Judge, on that date."
Based on the direction issued by the Division Bench, the
matter was listed before the learned single Judge for disposal, but
after sometime it is listed before this Court due to change in the
roster.
In view of the contentious issues raised in the writ petitions,
little narration of the history of various notifications leading to
filing of these cases is necessary.
Initially, Election Notification No.1503/SEC-B1/2020 dated
07.03.2020 was issued by the State Election Commission
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proposing to conduct the elections for the MPTCs and ZPTCs along
with other local bodies, both urban and rural, in the State of
Andhra Pradesh. After issuing notification, nominations were
received and list of contesting candidates was finalised by the State
Election Commissioner and displayed the names of contesting
candidates. At this stage, by notification No.68/SEC-B1/2020
dated 15.03.2020; the election process for Municipal Corporations,
Municipalities, Nagar Panchayats, MPTCs and ZPTCs was paused.
In the said notification dated 15.03.2020 it is stated that the
election process of MPTCs, ZPTCs and Urban Local Bodies will be
continued after (6) weeks from 15.03.2020 or after the threat of
Covid-19 recedes, whichever is earlier; and the schedules already
announced for Gram Panchayat elections are kept in abeyance
until further orders.
The notification dated 15.03.2020 issued by respondent No.1
was challenged by the State of Andhra Pradesh before the Hon'ble
Supreme Court in W.P. (Civil) No.437 of 2020 and the same was
disposed of on 18.03.2020 with the specific direction. To avoid
repetition, it is condign to extract the relevant direction for better
appreciation.
"We therefore direct that the Election Commission shall
impose the Model Code of Conduct four weeks before the
notified date of polling."
"The Model Code of Conduct for the elections shall be re-
imposed four weeks before the date of polling."
"We further direct that the present development activities
which have already been undertaken shall not be
interrupted till the Model Code of Conduct is re-imposed"
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The Hon'ble Supreme Court directed the State Election
Commissioner while lifting the MCC whenever election is being
conducted, directed respondent No.1 to re-impose MCC for four
weeks prior to the notified date of polling. Later, a Notification
dated 17.11.2020 was issued by the State Election Commission
stating that the Commission had decided to hold elections to the
Gram Panchayats in the month of February, 2021, and that actual
schedule would be finalized after due consultation with the State
Government and thereafter only, the election schedule would be
notified. The Notification dated 17.11.2020 was challenged by the
State of Andhra Pradesh by filing a writ petition No.22900 of 2020
before this Court. The said writ petition was disposed of by an
order dated 29.12.2020 permitting the State Government to submit
a written version of its case enclosing all relevant materials relating
to pleas and the instructions/guidelines issued by the Union of
India pertaining to Covid-19, for consideration of the State Election
Commission and that the State Election Commission, after
undertaking the consultation process and after giving opportunity
to the concerned officials of the State, has to take final decision in
the matter of holding elections.
Thereafter, State Election Commissioner by order dated
08.01.2021 notified elections to the Gram Panchayats contrary to
the request made by the State Government for postponement of the
elections, fixed specific schedule for holding ordinary elections to
the Gram Panchayats in four phases. The same was challenged in
W.P.No.1158 of 2021 and an interim order was passed by the
learned single Judge on 11.01.2021 suspending the notification
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08.01.2021. Ultimately, in W.A.No.24 of 2021 the interim order
was set aside by the Division Bench of this Court. The order of the
Division Bench was challenged before the Hon'ble Supreme Court
in SLP (C).No.1520 of 2021 and the same was dismissed by an
order dated 25.01.2021. Later, elections were conducted for Gram
Panchayats. Similarly, election process was completed to
Municipal Corporations, Municipalities/Nagar Panchayats by
separate notifications despite challenge in various Courts. It is
relevant to decide the effect of raising no objection for holding
those elections in terms of the order of the Supreme Court in
W.P.(Civil) No.437 of 2020 dated 18.03.2020.
Later, respondent No.1 issued notification No.1503/SEC-
B1/2021 dated 01.04.2021, which reads thus:
"Now, therefore, the State Election Commission, in exercise of
powers conferred under Article 243K of the Constitution of India,
Sections 151 (1) and 179(1) of Andhra Pradesh Panchayat Raj Act,
1994 (Act 13 of 1994) the State Election commission, Andhra
Pradesh, hereby, resumes the election process of MPTCs and
ZPTCs from the stage where it was stopped earlier (emphasis
supplied) and calls upon the registered voters of all Territorial
Constituencies of Mandal Praja Parishads (MPTCs) and of all
Territorial Constituencies of Zilla Praja Parishads (ZPTCs) to elect
their respective Members, except those specified in the Annexure
enclosed."
Along with the notification, respondent No.1 issued election
schedule as follows:
1. Issue of Notification by the State Election 01.04.2021
Commission for resumption of adjourned
election process of MPTCs and ZPTCs
2. Conduct of Poll, wherever necessary 08.04.2021
(From 7 AM to 5 PM)
3. Re-poll, if any 09.04.2021
(From 7 AM to 5 PM)
4. Counting of Votes 10.04.2021
(From 8 AM onwards)
5. Declaration of Results Soon after completion of
counting of votes
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Simultaneously, respondent No.1 also issued a press note
dated 01.04.2021 stating that the MCC has come into force with
immediate effect in the rural areas of the entire State and it shall
remain in force till completion of election process, meaning thereby
the MCC will remain in force from 01.04.2021 to 10.04.2021.
Challenging the imposition of MCC for only ten days as against the
direction of the Hon'ble Supreme Court in W.P. (Civil) No.437/2020
directing the Election Commission to re-impose the MCC for four
weeks before the notified date of polling, the instant writ petitions
are filed.
Thus, the issue of various Notifications and challenge thereto
in various Courts and issue of impugned notification fixing
schedule as stated above is not in quarrel.
Undoubtedly, the Supreme Court issued a direction to
respondent No.1 to re-impose MCC for four (4) weeks before the
notified date of polling, when a challenge was made against the
order dated 15.03.2020 pausing the election/stopping the election
process for rural and urban public bodies including MPTC and
ZPTC. Later, elections were conducted for both rural and urban
local bodies by different Notifications except for ZPTC and MPTC.
Those elections for urban and rural local bodies were attained
finality after completion of entire process of election. But no one
raised objection about the non-compliance of direction issued by
the Hon'ble Supreme Court in W.P.(Civil) No.437 of 2020 by order
dated 18.03.2020. Non-challenge to those notifications on any of
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WP.Nos.7847 and 7778 of 2021
the grounds, more particularly, non-compliance of the direction
issued by the Supreme Court in W.P. (Civil) No.437 of 2020, does
not amount to waiver of right by the petitioners herein. Because of
failure to challenge the illegality in holding elections to local
bodies, the relief cannot be negated to the petitioners, if they are
otherwise entitled to claim the same. For the reason that an
illegality was committed by respondent No.1 and it was not
challenged before this Court by anyone, this Court cannot legalize
such illegality, that means the Court cannot perpetuate the
illegality, as held by the Supreme Court in "Goa State
Cooperative Bank Ltd. v. Krishna Nath A. (Dead) through
L.Rs. and Others19", wherein it is held that "the concept of
restitution is a common law principle and it is a remedy against
unjust enrichment or unjust benefit. The Court cannot be used
as a tool by a litigant to perpetuate illegality."
In "A. Shanmugam v. Respondent: Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam Represented by Its President and Others20" the
Supreme Court held as follows:
"In consonance with the principle of equity, justice and good
conscience judges should ensure that the legal process is not
abused by the litigants in any manner. The court should never
permit a litigant to perpetuate illegality by abusing the
legal process. It is the bounden duty of the court to ensure that
dishonesty and any attempt to abuse the legal process must be
effectively curbed and the court must ensure that there is no
wrongful, unauthorized or unjust gain for anyone by the abuse of
the process of the court. One way to curb this tendency is to
impose realistic costs, which the Respondent or the Defendant
has in fact incurred in order to defend himself in the legal
proceedings. The courts would be fully justified even imposing
2019(5)ALT 165
AIR 2012 SC 2010
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punitive costs where legal process has been abused. No one
should be permitted to use the judicial process for earning
undeserved gains or unjust profits. The court must effectively
discourage fraudulent, unscrupulous and dishonest litigation."
(Emphasis supplied)
By applying the principles laid down in the above judgments,
on the ground of failure to challenge those notifications, relief to
the petitioners in the present writ petitions cannot be denied or
refused.
Though the respondents did not challenge the power of this
Court to interfere with the process of election in terms of Article
243-O of the Constitution of India, it is necessary to advert to the
bar created by the Constitutional provision to examine
permissibility of interference in the election process after its
notification. It is undoubtedly true that the jurisdiction of this
Court under Article 226 of the Constitution of India to interfere
with the election process is limited. The Hon'ble Supreme Court in
"N.P. Ponnuswami and others v. Returning Officer, Namakkal
Constituency and others ", "Meghraj Kothari v. Delimitation
Commission and others22", "Krishna Ballabh Prasad Singh v.
Sub-Divisional Officer Hilsa-cum-Returning Officer and
others ", consistently held that the Courts shall not interfere with
the process of election exercising power under Article 226 of the
Constitution of India and such election can be challenged by way
of election petition, in view of bar under Article 329 (b) of the
Constitution of India. In "Mohinder Singh Gill and others v. The
AIR 1952 SC 64
AIR 1967 SC 669
AIR 1985 SC 1746
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WP.Nos.7847 and 7778 of 2021
Chief Election Commissioner, New Delhi and others ", the
challenge before the Hon'ble Supreme Court was the order of
Election Commission to cancel the election and to conduct fresh
poll for whole of the Ferozepur Parliamentary Constituency. The
appellant therein approached the High Court of Delhi with a writ
petition challenging the order of the Election Commissioner.
Respondent No.3 therein objected that the High Court had no
jurisdiction in view of Article 329(b) of the Constitution. The High
Court holding that it had no jurisdiction to entertain the writ
petition, nevertheless proceeded to enter verdicts on the merits of
all the issues. The appellant filed the appeal before the Supreme
Court by special leave. The Supreme Court having considered the
embargo created under Article 329(b) of the Constitution upon the
Courts to entertain the disputes questioning the elections except
by an election petition ultimately held that the Delhi High Court
had no jurisdiction to entertain the writ.
In the above judgment, the Hon'ble Supreme Court has
delineated as to what types of issues for which decisions are
sought from the High Court would amount to calling in question
the election and what issues would not amount so, where the
Court can intervene. It was observed in paragraph No.29 thus:
" What emerges from this perspicacious reasoning, if we may say
so with great respect, is that any decision sought and rendered will
not amount to 'calling in question' an election if it sub-serves the
progress of the election and facilitates the completion of the
election. We should not slur over the quite essential observation
"Anything done towards the completion of the election proceeding
can by no stretch of reasoning be described as questioning the
AIR 1978 SC 851
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WP.Nos.7847 and 7778 of 2021
election". Likewise, it is fallacious to treat 'a single step taken in
furtherance of an election as equivalent to election'.
Thus, there are two types of decisions, two types of challenges.
The first relates to proceedings which interfere with the progress of
the election. The second accelerates the completion of the election
and acts in furtherance of an election. So, the short question before
us, in the light of the illumination derived from Ponnuswami, is as
to whether the order for re-poll of the Chief Election Commissioner
is "anything done towards the completion of the election
proceeding" and whether the proceedings before the High Court
facilitated the election process or halted its progress. The question
immediately arises as to whether the relief sought in the writ
petition by the present appellant amounted to calling in question
the election. This, in turn, revolves round the point as to whether
the cancellation of the poll and the reordering of fresh poll is 'part of
election' and challenging it is 'calling it in question'."
(Emphasis supplied)
In "Manda Jaganath v. K.S.Rathnam and others ", the
Hon'ble Supreme Court has observed that whether the Returning
Officer was justified in rejecting Form-B submitted by the first
respondent therein was not a matter for the High Court to decide
in the exercise of its jurisdiction and the issue could be agitated by
an aggrieved party in an election petition only in view of specific
prohibition created under Article 329(b).
It is pertinent to note that in the above judgment, the
Hon'ble Supreme Court discussed the scope of interference in
election matters, by referring "N.P. Ponnuswami and others v.
Returning Officer, Namakkal Constituency and others" and
"Mohinder Singh Gill and others v. The Chief Election
Commissioner, New Delhi and others" (referred supra). It
observed thus:
"In the very same paragraph this Court, however,
demarcated an area which is available for interference by
the High Court and the same is explained as follows
AIR 2004 SC 3600
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WP.Nos.7847 and 7778 of 2021
"But what is banned is not anything whatsoever done or directed
by the Commissioner but everything he does or directs in
furtherance of the election, not contrarywise. For example, after
the President notifies the nation on the holding of elections under
Section 15 and the Commissioner publishes the calendar for the
poll under Section 30, if the latter orders returning officers to
accept only one nomination or only those which come from one
party as distinguished from other parties or independents, is that
order immune from immediate attack. We think not. Because the
Commissioner is preventing an election, not promoting it and the
Court's review of that order will facilitate the flow, not stop the
stream. Election, wide or narrow be its connotation, means choice
from a possible plurality, monolithic politics not being our genius
or reality, and if that concept is crippled by the Commissioner's
act, he holds no election at all."
Of course, what is stated by this Court herein above is not
exhaustive of a Returning Officer's possible erroneous
actions which are amenable to correction in the writ
jurisdiction of the courts. But the fact remains such errors
should have the effect of interfering in the free flow of the
scheduled election or hinder the progress of the election
which is the paramount consideration (emphasis supplied). If
by an erroneous order conduct of the election is not hindered
then the courts under Article 226 of the Constitution should not
interfere with the orders of the Returning Officers remedy for
which lies in an election petition only."
(Emphasis supplied)
In view of the law declared in the judgments (referred supra),
generally the Courts will not interlope in election matters to
adjudicate upon by exercising the plenary jurisdiction under
Article 226 of the Constitution, particularly when once the election
process begins, in view of the prohibition wielded under Article 329
of the Constitution. The aggrieved party has to move an election
petition before the appropriate authority. However, it is incorrect
to say that the scope of judicial review under Article 226 of the
Constitution in election matters is totally alien. As expounded by
the Hon'ble Supreme Court in "Mohinder Singh Gill and others
v. The Chief Election Commissioner, New Delhi and others"
(referred supra) the Court can intervene in certain circumstances.
For instance, when the Election Commissioner's acts and orders,
prevent fair election and scuttle the level play field or retard the
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WP.Nos.7847 and 7778 of 2021
progress of the election and not promote the election in accordance
with law, the Courts' review will facilitate the flow of election. The
Supreme Court in the above case cleared that the errors of the
Election Commissioner or Returning Officers if tend to have the
effect of interfering in the free flow of the schedule of election or
hinder the progress of the election, the Courts' intervention is
permissible. In the said decision, it was also held that every
challenge will not amount to calling in question an election if it
sub-serves the progress of the election and facilitates the
completion of election. On the other hand, if a challenge is
intended to stall the election, the Court may not exercise its
plenary jurisdiction and leave the petitioner to seek remedy by way
of an election petition. Thus, the law is well settled that this Court
can exercise power if the Election Commissioner proceeding with
the election contrary to the rules, preventing fair election and
scuttle the level play field or retard the progress of the election and
not promoting the election in accordance with law.
In "A.C. Jose v. Sivan Pillai26", the Supreme Court held
that it is true that Article 324 does authorise the commission to
exercise powers of superintendence, direction and control of
preparation of electoral rolls and the conduct of elections to
Parliament and State legislatures but then the Article has to be
read harmoniously with the Articles that follow and the powers
that are given to the Legislatures under entry No. 72 in the Union
List and entry No. 37 of the State List of the Seventh Schedule to
the Constitution. The Commission in the garb of passing orders for
[1984] 3 SCR 74
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WP.Nos.7847 and 7778 of 2021
regulating the conduct of elections cannot take upon itself a purely
legislative activity which has been reserved under the scheme of
the Constitution only to Parliament and the State legislatures. By
no standards can it be said that the Commission is a third
Chamber in the legislative process within the scheme of the
Constitution. Merely being a creature of the Constitution will not
give it plenary and absolute power to legislate as it likes without
reference to the law enacted by the legislatures.
The Supreme Court in the same judgment proceeded to hold
that the intention of the founding fathers of our Constitution was
to make the Commission a separate and independent body so that
the election machinery may be outside the control of the Executive
Government, but the intention was not to make the commission an
Supreme body in respect of matters relating to elections, conferring
on it the legislative powers ignoring the Parliament altogether.
In the same judgment it is stated that no one is an imperium
in imperio in our constitutional order. The Commissioner cannot
defy the law armed by Article 324. Likewise his functions are
subject to the norms of fairness and he cannot act
arbitrarily. Unchecked power is alien to our system.
Recently, the Supreme Court in "Dravida Munnetra
Kazhagam v. Secretary Governors Secretariat27" while dealing
with the issue of delimitation for local body elections, which had
already been notified earlier as per proposal of Delimitation
Commission, accepted by the State Government and notification
(2020) 6 SCC 548
MSM,J
WP.Nos.7847 and 7778 of 2021
was issued in respect of 31 revenue districts, held that the ratio of
a coordinate Bench in "Election Commission of India v. Ashok
Kumar28" squarely applies to the said case. In "Election
Commission of India v. Ashok Kumar" (referred supra) the
Supreme Court held as follows:
(2) Any decision sought and rendered will not amount to "calling in
question an election" if it subserves the progress of the election and
facilitates the completion of the election. Anything done towards
completing or in furtherance of the election proceedings cannot be
described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election
Commission are open to judicial review on the well-settled parameters
which enable judicial review of decisions of statutory bodies such as on a
case of mala fide or arbitrary exercise of power being made out or the
statutory body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the
election proceedings, judicial intervention is available if assistance of the
court has been sought for merely to correct or smoothen the progress of
the election proceedings, to remove the obstacles therein, or to preserve a
vital piece of evidence if the same would be lost or destroyed or rendered
irretrievable by the time the results are declared and stage is set for
invoking the jurisdiction of the court.
While reiterating the above principles, the Supreme Court
in "Dravida Munnetra Kazhagam v. Secretary Governors
Secretariat" (referred supra), issued the following directions:
"a. The Respondent-authorities shall hold elections to all Panchayats at
village, intermediate and district levels, except those in the following nine
reconstituted districts:
(i) Kancheepuram, (ii) Chengalpattu, (iii) Vellore, (iv) Thirupathur, (v)
Ranipet, (vi) Villupuram, (vii) Kallakurichi, (viii) Tirunelveli, (ix) Tenkasi;
b. The Respondents (including the Delimitation Commission) are
directed to delimit the nine newly-constituted districts in accordance with
law and thereafter hold elections for their panchayats at the village,
intermediate and district levels within a period of four months;
c. There shall be no legal impediment against holding elections for
Panchayats at the village, intermediate and district levels for rest of the
districts;
2000 (8) SCC 216
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WP.Nos.7847 and 7778 of 2021
d. State Election Commission shall notify elections for the panchayats
at village, intermediate and district levels in respect of all districts except the
nine re-constituted districts as per the details given in direction 'a' above.;
e. While conducting elections, the Respondents shall provide
proportionate reservation at all levels, in accordance with the Rule 6 of Tamil
Nadu Panchayats (Reservation of Seats and Rotation of Reserved Seats)
Rules, 1995."
The Court interfered with election process on account of
inherent illegality committed by the Election Commissioner in
notifying the elections even without completing the required
exercise before proceeding to issue notification. The powers of the
Courts under Article 226 of the Constitution of India are not totally
taken away and the hands of the Court are not tied when the
Election Commissioner committed an illegality in the process of
election or acting arbitrarily in the process of election without
making any attempt to hold free and fair election, scuttle the level
play field or retard the progress of the election and not conducting
the election in accordance with law.
The Hon'ble Supreme Court had an occasion to deal with
similar situation in "K. Venkatachlam v. A. Swamickan29", In
this matter a person was elected for Tamilnadu Assembly from
Lalguda Constituency and after one year of his election his election
was challenged before High Court under Article 226 of the
Constitution of India, on the ground that his name was not
included in the electoral list of the Constituency. A Division Bench
of High Court in Writ Appeal declared his election void being
disqualification for being a member of state Assembly as
contemplated under Article 173 of the Constitution read with
1999 AIR SC 1723
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WP.Nos.7847 and 7778 of 2021
Section 5 of the Representation of People's Act, which mandated
that a person to be elected from an Assembly constituency has to
be elector of that constituency. While deciding the Appeal Hon'ble
Supreme Court held that in such a situation when no other
remedy remains as the fact of the non inclusion of the name of the
elected Candidate in the list of electorate, came into the knowledge
of the Petitioner after one years of the completion of election
process over, Article 329-b doesn't create any bar from applying
writ Jurisdiction under Article 226, Division Bench observed that:-
"Article 226 of the Constitution is couched in widest possible term
and unless there is clear bar to jurisdiction of the High Court its
powers under Article 226 of the Constitution can be exercised when
there is any act which is against any provision of law or violative of
constitutional provisions and when recourse cannot be had to the
provisions of the Act for the appropriate relief. In circumstances like
the present one bar of Article 329(b) will not come into play when
case falls under Articles 191 and 193 and whole of the election
process is over. Consider the case where the person elected is not a
citizen of India. Would the Court allow a foreign citizen to sit and
vote in the Legislative Assembly and not exercise jurisdiction under
Article 226 of the Constitution?"
In this manner the Court diluted the law laid down in
Ponnuswami Case and further affirmed in various judgments and
even in Mohinder Singh Gill's Case, though left a leeway, finally
held that Jurisdiction of High Court under Article 226 extends to
entertain the Petition related with the election process. But above
discussion is related with the Article 329 (b). Application of those
decisions in the matters of Panchayat elections have been
considered largely based on the principle of pari materia cases.
Certainly Article 243 O is simply application of article 329 (b) in
Panchayat Election Matters, but it create a huge difference in
between, prevents to consider it as pari materia case.
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WP.Nos.7847 and 7778 of 2021
In "State of Goa v. Fouziya Imtiaz Shaikh and others30",
the Hon'ble Supreme Court had an occasion to decide an identical
question with regard to municipal elections with reference to
Article 243-ZG of the Constitution of India. Few facts are necessary
for application of the principle to the present controversy. The Goa
State Election Commission issued notification for conduct of urban
local bodies and later postponed to 11 municipal councils whose
terms were to expire on 04.11.2020. The elections were to be
scheduled 18.10.2020, which were postponed to 18.01.2021 in
view of Covid-19 pandemic situation in the State of Goa. On
03.11.2020, the Governor of Goa appointed the Law Secretary of
Government of Goa, a member of Indian Administrative Service as
State Election Commissioner which duties were to be in addition,
as Law Secretary. By an order dated 05.11.2020, the Municipal
Administrators were appointed by the Department of Urban
Development for all the Municipal Council whose terms had
expired. By another notification dated 14.01.2021, the Goa State
Election Commission further postponed the election for a period of
three months till April, 2021 or the election date which may be
determined by the Commission. While so, Section 10(1) of Goa
Municipalities Act was amended on 04.02.2021, published in the
Official Gazette, by which the time frame for issuance of
notification for reservation of wards was stated as being "at least
seven days" before schedule of dates and events of election. On the
same day, the Director of Municipal Administration issued an
(2021) 2 MLJ 603
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order for reservation of wards for 11 municipal councils in the
State.
Aggrieved by the order dated 04.02.2021, nine writ petitions
were filed and the Division Bench of Goa High Court allowed the
appeals against the State Government. Aggrieved by the order, the
State of Goa preferred Special Leave Petition before the Hon'ble
Supreme Court. One of the contentions before the Supreme Court
was that, in view of the bar under Article 243-ZG of the
Constitution of India, the High Court cannot interfere with the
process of election when the election date is notified. The Full
Bench (Three Judges) of the Supreme Court, after considering
entire law on the subject with reference to Articles 324 and 329
and Articles 243-ZA and 243-ZG of the Constitution of India, held
that, a conspectus of the law laid down in the contest of municipal
elections yield the following results (The relevant principles are
extracted hereunder):
I...............
II. If, however, the assistance of a writ court is required in
subserving the progress of the election and facilitating its
completion, the writ court may issue orders provided that the
election process, once begun, cannot be postponed or protracted in
any manner.
III. The non-obstante Clause contained in Article 243ZG does
not operate as a bar after the election tribunal decides an
election dispute before it. Thus, the jurisdiction of the High
Courts Under Articles 226 and 227 and that of the Supreme
Court Under Article 136 of the Constitution of India is not
affected as the non-obstante Clause in Article 243ZG
operates only during the process of election.
IV.................
V. Judicial review of a State Election Commission's order is
available on grounds of review of administrative orders.
Here again, the writ court must adopt a hands-off policy
while the election process is on and interfere either before
the process commences or after such process is completed
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unless interfering with such order subserves and facilitates
the progress of the election.
VI.................
VII. The bar contained in Article 243ZG(a) mandates that there be a
judicial hands-off of the writ court or any court in questioning the
validity of any law relating to delimitation of constituency or
allotment of seats to such constituency made or purporting to be
made Under Article 243ZA. This is by virtue of the non-obstante
Clause contained in Article 243ZG. The statutory provisions dealing
with delimitation and allotment of seats cannot therefore be
questioned in any court. However, orders made under such
statutory provisions can be questioned in courts provided the
concerned statute does not give such orders the status of a
statutory provision.
VIII. Any challenge to orders relating to delimitation or allotment of
seats including preparation of electoral rolls, not being part of the
election process as delineated above, can also be challenged in the
manner provided by the statutory provisions dealing with
delimitation of constituencies and allotment of seats to such
constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only to courts
and not the State Election Commission, which is to supervise, direct
and control preparation of electoral rolls and conduct elections to
municipalities.
X. The result of this position is that it is the duty of the SEC to
countermand illegal orders made by any authority including the
State Government which delimit constituencies or allot seats to
such constituencies, as is provided in proposition (IV) above. This
may be done by the SEC either before or during the electoral
process, bearing in mind its constitutional duty as delineated in the
said proposition.
However, in the peculiar facts of the above case, the
Supreme Court was constrained not to interfere with the impugned
judgments under Article 136 of the constitution of India, for the
reason that it is important to note that the State Election
Commissioner is none other than the Law Secretary to the
Government of Goa. The whole process of these elections is,
therefore, faulted at the start so to speak as the State Election
Commission is not, in the facts of these cases, an independent
body as is mandated by Article 243K of the Constitution of India.
The second reason is that, State Election Commission had itself
postponed the municipal elections twice due to the COVID-19
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pandemic raging throughout the State. On the second occasion, by
the notification dated 14.01.2021, the State Election Commission
had itself postponed these elections till April 2021 or the election
date which may be determined by the State Election Commission.
Obviously, the expression "or the election date which may be
determined by the Commission" would indicate a date beyond
April, 2021, given the situation in which the State of Goa finds
itself due to the COVID-19 pandemic. It is important to note that
the High Court in its direction contained in paragraph 81(e) directs
the State Election Commission to act in accordance with this
notification so that elections are held by 15.04.2021. The other
reasons are extracted hereunder:
"All the writ petitions in the present cases were filed between 9th
and 12th February, 2021 immediately challenging the Director's
order dated 04.02.2021. None of these writ petitions contained a
prayer that would hold up any election programme. The only
prayer was to strike down the aforesaid order so that the Director
in issuing a fresh order would have to truly and faithfully carry out
the constitutional mandate of Article 243T of the Constitution of
India and the statutory mandate contained in Section 9 of the Goa
Municipalities Act.
When the High Court issued notice on 15.02.2021 for final hearing
on 22.02.2021, the SEC did not inform the High Court that vide a
note of 05.02.2021 (disclosed for the first time by an affidavit filed
in this Court on 08.03.2021), elections were proposed to be held on
20.03.2021.
In a clear attempt to overreach the High Court, the State Election
Commissioner, who is none other than the Law Secretary of the
State of Goa, issues an election notification at 9:00 a.m. on
22.02.2021, even before the Government offices open at 9:30 a.m.
in order to forestall the hearing of the writ petitions filed before the
High Court, which commences hearing the writ petitions at 9.00
a.m.1
After the judgment was pronounced by the Division Bench of the
High Court on 01.03.2021 and no stay granted, this Court, "issued
notice" on 04.03.2021 and stayed the impugned judgment, the
effect of which was to revive the election programme that was
notified on 22.02.2021. Despite this, the State Election
Commission, on this very day i.e., 04.03.2021, amended the
aforesaid notification by extending the time period for filing of
nomination for 5 Municipal Councils from 04.03.2021 till
06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore,
rescheduled the election."
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In view of the law declared by the Supreme Court, the Court
can interfere in the process of election by exercising power under
Article 226 in certain circumstances, more particularly when State
Election Commission issued notification to over-reach the order of
the Courts and when the act of the State Election Commission is
totally contrary to the procedure. Thus, in exceptional
circumstances, the Court can interfere with the election process
when the State Election Commission did not act in accordance
with law and that the power of the High Court is not totally taken
away. The facts of the present case are almost identical to the facts
of the above case, except election to urban and rural local bodies.
However, the principles laid down with reference to Articles 324
and 329 of the Constitution of India have no direct application to
the present facts, as Articles 324 and 329 of the Constitution of
India are part of original Constitution.
The present controversy is with regard to permissibility of
interference of this Court in the election process, in view of the bar
under Article 243-O of the Constitution of India. For better
appreciation, Article 243-O of the Constitution of India is extracted
hereunder:
"Article 243-O Bar to interference by courts in electoral matters:
Notwithstanding anything in this Constitution:-
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies made
or purporting to be made under Article 243K, shall not be called in
question in any court;
(b) no election to any Panchayat shall be called in question except
by an election petition presented to such authority and in such
manner as is provided for by or under any Law made by the
Legislature of a State"
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Though Article 243-O is identical to Article 329 of the
Constitution of India, there is vast difference between two Articles.
Article 329 is a part of original constitution, whereas, Article 243-O
is incorporated in the Constitution by 73rd Amendment Act 1992.
Thus, Article 243-O is not part of original Constitution, but it came
into effect on 24.04.1993. Though Article 329 also fails to pass the
acid test, but it stands in safe zone, as it cannot be examined
based on Doctrine of Basic Structure, being part of original
constitution adopted on 26.11.1949 and enforced with effect from
26.01.1950, but Article 243-O has no such privilege.
In "Golak Nath v. State of Punjab31" and "Minerva Mills
Limited v. Union of India32", the Hon'ble Supreme Court
examined the 'Doctrine of Basic Structure'. In "L. Chandra
Kumar v. Union of India33", the Constitutional Bench (Seven
Judges Bench) held that, the legitimacy of the power of courts
within constitutional democracies to review legislative action has
been questioned since the time it was first conceived. The
Constitution of India, being alive to such criticism, has, while
conferring such power upon the higher judiciary, incorporated
important safeguards. An analysis of the manner in which the
Framers of our Constitution incorporated provisions relating to the
judiciary would indicate that they were very greatly concerned with
securing the independence of the judiciary. These attempts were
directed at ensuring that the judiciary would be capable of
31 (1967) 2 SCR 762
32 1981 SCR (1) 206
33 AIR 1997 SC 1125
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effectively discharging its' wide powers of judicial review. While the
Constitution confers the power to strike down laws upon the High
Courts and the Supreme Court, it also contains elaborate
provisions dealing with the tenure, salaries, allowances, retirement
age of Judges as well as the mechanism for selecting Judges to the
superior courts. The inclusion of such elaborate provisions appears
to have been occasioned by the belief that, armed by such
provisions, the superior courts would be insulated from any
executive or legislative attempts to interfere with the making of
their decisions. The Judges of the superior courts have been
entrusted with the t ask of upholding the Constitution and to this
end, have been conferred the power to interpret it. It is they who
have to ensure that the balance of power envisaged by the
Constitution is maintained and that the legislature and the
executive do not, in the discharge of their functions, transgress
constitutional limitations. It is equally their duty to oversee that
the judicial decisions rendered by those who man the subordinate
courts and tribunals do not fall foul of strict standards of legal
correctness and judicial independence. The constitutional
safeguards which ensure the independence of the Judges of the
superior judiciary, are not available to the Judges of the
subordinate judiciary or to those who man tribunals created by
ordinary legislations. Consequently, Judges of the latter category
can never be considered full and effective substitutes for the
superior judiciary in discharging the function of constitutional
interpretation. The Hon'ble Supreme Court held that the power of
judicial review over legislative action vested in the High
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Courts under Article 226 and in this court under Article 32 of
the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High courts and the
Supreme court to test the constitutional validity of
legislations can never be ousted or excluded.
It is further held that clause 2(d) of Article 323-A and clause
3(d) of Article 323-B, to the extent they exclude the jurisdiction of
the High courts and the Supreme Court under Articles 226/227
and 32 of the Constitution, are unconstitutional. Section 28 of the
Act and the "exclusion of jurisdiction" clauses in all other
legislations enacted under the aegis of Articles 323-A and 323-B
would, to the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the Constitution is a part of
the inviolable basic structure of our Constitution.
Similarly, in concluding Paragraphs, Hon'ble Supreme Court
in "I.R. Colho vs. State of Tamilnadu34" held that:
"(i) A law that abrogates or abridges rights guaranteed by Part III of the
Constitution may violate the basic structure doctrine or it may not. If former
is the consequence of law, whether by amendment of any Article of Part III
or by an insertion in the Ninth Schedule, such law will have to be
invalidated in exercise of judicial review power of the Court. The validity or
invalidity would be tested on the principles laid down in this judgment.
(ii) The majority judgment in Kesavananda Bharati's case read with Indira
Gandhi's case, requires the validity of each new constitutional amendment
to be judged on its own merits. The actual effect and impact of the law on
the rights guaranteed under Part III has to be taken into account for
determining whether or not it destroys basic structure. The impact test
would determine the validity of the challenge.
(iii) All amendments to the Constitution made on or after 24th April, 1973
by which the Ninth Schedule is amended by inclusion of various laws
therein shall have to be tested on the touchstone of the basic or essential
34 AIR 2007 SC 861
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features of the Constitution as reflected in Article 21 read with Article 14,
Article 19, and the principles underlying them. ..............
(iv) Justification for conferring protection, not blanket protection, on the
laws included in the Ninth Schedule by Constitutional Amendments shall
be a matter of Constitutional adjudication by examining the nature and
extent of infraction of a Fundamental Right by a statute, sought to be
Constitutionally protected, and on the touchstone of the basic structure
doctrine as reflected in Article 21 read with Article 14 and Article 19 by
application of the "rights test" and the "essence of the right" test taking the
synoptic view of the Articles in Part III as held in Indira Gandhi's case.
Applying the above tests to the Ninth Schedule laws, if the infraction
affects the basic structure then such a law(s) will not get the protection of
the Ninth Schedule.
(v) If the validity of any Ninth Schedule law has already been upheld by
this Court, it would not be open to challenge such law again on the
principles declared by this judgment. However, if a law held to be violative
of any rights in Part III is subsequently incorporated in the Ninth Schedule
after 24th April, 1973, such a violation/infraction shall be open to
challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article 14, Article 19 and the principles
underlying thereunder.
(vi) Action taken and transactions finalized as a result of the impugned
Acts shall not be open to challenge"
In the light of the above legal proposition, Article 243-O
added by 73rd amendment is subject to judicial review on the
parameter of destruction of basic structure of the Constitutional
power. Article 243-0 takes away the power of the Constitution of
the Court i.e. power of judicial review provided under Article 226 of
the Constitution of India.
A similar question came up before the High Court of Andhra
Pradesh in "S. Fakruddin v. Government of Andhra Pradesh35",
where the Constitutional Bench consisting of Five Judges
examined the issue of taking away the power of judicial review of
High Court by Article 243-O of the Constitution of India with
reference to Minerva Mills case, Golak Nath case, "S.P. Sampath
Kumar v. Union of India36" and "Sambamurthy v. State of
AIR 1996 AP 37
AIR 1987 SC 386
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WP.Nos.7847 and 7778 of 2021
A.P37, Ponnuswamy case, Mohinder Singh Gill case (referred
supra) with reference to Articles 324, 329, 243-K and 243-O of the
Constitution of India, held as follows:
"A constitution amendment which tends to take away the Constitutional Courts'
power that is the power of the High Court under Art. 226 of the Constitution, shall
be invalid. There can be no matter in the hands off the legislature in its function as
the law maker which will be kept out of the scrutiny of the Courts however limited
that scrutiny be. Even the conservative view that if there is an alternative effective
and efficient mechanism for judicial review which is as independent as the High
Court, its power under Art. 226 of the Constitution will not be available leaves scope
for the court to see whether the mechanism is such that the Court should refrain and
not exercise its jurisdiction, court is inclined to extend this principle and hold as
respects the matters which are sought to be excluded from the judicial review
under Art. 243-O of the Constitution which has been brought in by the 73rd
Amendment."
As regards the power of judicial review of High Courts and the Supreme Court, it
was observed:
"The consesus of the opinion is that judicial review is a basic feature except in
respect of matters which are specifically excluded by the Constitution as originally
enacted and that "Courts act as the real interpreters of the real will of the people
...... they perform an essential judicial function .......
The basic features of the Constitution stand projected, for Art. 32, the power of the
Supreme Court, cannot be taken away and its power under Art. 136 can be a proper
safeguard of judicial review of any adjudication by the alternative authority or
forum, provided however it is an effective alternative institutional mechanism or
arrangement of judicial review. It is through the power of judicial review conferred
on an independent institutional authority such as the High Court that the rule of law
is maintained, and every organ of the State is kept within the limits of the law."
(emphasis supplied)
In "Smt. Sk. Khasim Bee v. The State Election
Commissioner38" and "Kayathi Jayapal Reddy v. State
Election Commission39", the Court examined the power of the
High Court to interfere with the election process on the touchstone
of basic structure principle, held that the Court can interfere with
the election process, if the State Election Commission did not act
in accordance with law.
Following the principle laid down in S. Fakruddin case
(referred supra), Punjab and Haryana High Court in "Lalchand v.
AIR 1987 SC 663
AIR 1996 AP 324
2001 (6) ALD 136
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State of Haryana and others40, reiterated the principle laid down
by the Constitutional Bench of High Court of Andhra Pradesh.
In "Election Commission of India v. Union of India41", the
Hon'ble Supreme Court observed that "there are no un-reviewable
discretions under the constitutional dispensation. The overall
constitutional function to ensure that constitutional authorities
function within the sphere of their respective constitutional
authority is that of the courts.
If the bar on jurisdiction of the High Court contained in
Article 243-O of the Constitution of India is absolute, the State
Election Commission may take any decision totally in derogation of
the constitutional or statutory provisions, in the election process.
For instance, in hypothetical situation, State Election Commission
issued notification for conduct of elections without imposing MCC
or fixing date of poll within a week from the date of notification,
though state distributed huge amount in the name of welfare
schemes, luring the voters to vote in favour of the political party in
power, taking advantage of Article 243-O of the constitution of
India, can this Court decline to interfere with the election process
which is not fair? Certainly not, in view of power of judicial review
conferred on the Courts under Article 226 of the Constitution of
India, in view of the law declared by the Hon'ble Supreme Court in
L. Chandra Kumar case (referred supra). Therefore, interdict on
the power of judicial review is allegedly created by Article 243-O of
the Constitution of India is misnomer.
AIR 1999 P&H 1
1995 Supp. (3) SCC 643
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The law declared by Supreme Court in K. Venkatachalam,
L. Chandra Kumar cases (referred supra) and two Constitutional
Benches of High Court of Andhra Pradesh and Punjab and
Haryana High Court is consistent that Article 243-O cannot take
away the power of judicial review of the High Courts. Thus, the bar
under Article 243-O is not an absolute one. The Court can interfere
with the election process when the State Election Commissioner
did not act in accordance with law. Therefore, I hold that the power
of the High Court under Article 226 of the Constitution of India is
not taken away by Article 243-O of the Constitution of India and
that, this Court can interfere with the election process when the
State Election Commission acted in violation of the constitutional
provisions or any statutory provisions.
Before adverting to various contentions with regard to
violation of the directions issued by the Hon'ble Supreme Court in
W.P (Civil) No.437 of 2020 dated 18.03.2020 regarding
re-imposition of MCC, it is necessary to advert to the history of
MCC briefly and it's judicial recognition by the Courts.
Model Code of Conduct for political parties is having lot of
history and it was adopted in the month of February 1960 during
General Elections to State Legislative Assembly of Kerala State.
Later, several States followed the same with certain modifications.
However, it has no statutory basis, but it was recognised judicially
for the first time in "Harbans Singh Jalal v. Union of India42",
where the Punjab and Haryana High Court recognised the MCC. In
42 ( 1997 ) 116(2) PLR 778
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the facts of the judgment, writ petition was filed against the
Election Commissioner's direction to make Model Code applicable
from the date of announcement of programme for General Election
to Punjab Legislative Assembly in December 1996. While upholding
the Election Commission's direction, the High Court in its Order
dated 27th May 1997, maintained that the Election Commission
was entitled to take necessary steps for conduct of a free and fair
election even anterior to date of issuance of notification, i.e., from
the date of announcement of election. The Central Government,
who was a party in the matter, filed a petition for special leave to
appeal in the Supreme Court against the ruling of the Punjab &
Haryana High Court in "Union of India v. Harbans Singh Jalal
(Special Leave Petition (C) No.22724 of 1997", but again no specific
opinion was expressed by the Supreme Court.
From the date of judgment in Harbans Singh Jalal v.
Union of India" (referred supra), the MCC is being followed.
In the month of February 2014, an additional Part VIII was
added to Model Code to regulate the issue of election manifestos by
political parties pursuant to judgement dated 5th July 2013 of the
Supreme Court in "S.Subramaniam Balaji v. The Government
of Tamil Nadu43" Thus, it was judicially recognised though not
enforceable under law and being followed during every election.
Even according to the judgment in Harbans Singh Jalal v.
Union of India" (referred supra)", the MCC comes into operation
right from the time and day, the election schedule is announced by
(2013) 9 SCC 659
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WP.Nos.7847 and 7778 of 2021
the Election Commissioner. Therefore, based on the judgment of
the Punjab and Haryana High Court in Harbans Singh Jalal v.
Union of India" (referred supra), and the judgment of the Supreme
Court in "S.Subramaniam Balaji v. The Government of Tamil
Nadu" (referred supra) all the State Election Commissioners
adopted the MCC and its implementation is not in controversy.
Keeping in view the historical background and importance of
MCC, the Full Bench of the Hon'ble Supreme Court in W.P. (Civil)
No.437 of 2020 issued such direction to re-impose MCC for four
weeks before the notified date of polling.
The main endeavour of Sri E.Venugopal, learned counsel for
the petitioner in W.P.No.7778 of 2021, is that when elections
paused/stopped in view of earlier notification on account of
widespread of Covid-19, State approached the Supreme Court by
filing W.P. (Civil) No.437 of 2020, wherein certain directions were
issued (extracted in the earlier paragraphs). The major direction in
the order is that respondent No.1 shall impose the Model Code of
Conduct for four weeks before the notified date of polling. The first
respondent being the Constitutional Authority at the State Level
has to respect the order of the Highest Constitutional Court, but in
utter disregard issued notification impugned, depriving the party
candidates to campaign, which is not free and fair process of
election, on the lame excuse of the understanding of the State
Election Commission.
The language of the judgment is clear that respondent No.1
herein was directed to re-impose MCC for four weeks before the
notified date of polling. Instead of following the direction,
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respondent No.1 who took charge of the office on 01.04.2021, took
decision to resume election process of MPTC/ZPTC in utmost haste
even without looking into the order passed by the Hon'ble Supreme
Court in W.P. (Civil) No.437 of 2020. The main grievance of the
petitioners is that on account of issue of such election notification
impugned in the writ petition without providing appropriate
opportunity to make preparation campaigning in the elections by
the contesting candidates, more particularly candidates of the
petitioner in W.P.No.7847 of 2021, thereby the procedure adopted
by respondent No.1 did not provide fair opportunity to contest in
the election process to the candidates of the petitioner in
W.P.No.7847 of 2021 and it is in violation of constitutional right,
as held in Rajabala case (referred supra).
Indisputably, a direction was issued by the Supreme Court
for re-imposing MCC for four weeks before the notified polling date.
In fact, MCC is the Code for holding free and fair elections, which
is the basic foundation for democracy. On account of hasty
decision taken by respondent No.1, dishonouring the direction
with scant respect, the petitioners candidates were disabled to take
part in the elections effectively with readiness and the impugned
notification scuttled the level play field to the contesting candidates
of petitioners in W.P.No.7847 of 2021. The sudden narcissistic
decision taken by respondent No.1, without looking into the order
of the Hon'ble Supreme Court, would cause irreversible
consequences and irreparable injury to the candidates of petitioner
in W.P.No.7847 of 2021 to participate in the election process. The
explanation offered in the counter filed by the Secretary of
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respondent No.1 is that the four weeks time is maximum time for
re-imposing MCC and the State Election Commission can reduce
the period of MCC. Therefore, based on the understanding of
respondent No.1, notification impugned in the writ petitions was
issued.
Secretary of respondent No.1 filed the counter. State Election
Commissioner, who is the Constitutional authority, did not file
verified counter for the reasons best known to her, who took a
decision in utmost haste to resume the election process for MPTC
and ZPTC on the day when she took charge of her office after
retirement having enjoyed the extension of service for six months
in the same Government as Chief Secretary. The State Election
Commission did not explain as to how she could understand the
direction of the Hon'ble Supreme Court.
It is well settled law that the judgment can be read in total
and cannot read here and there and interpret the same. The ratio
analysis depends upon facts of different cases. Even the broad
system of legal culture, the components of the Courts, other
culture can be explained in different ways. The importance of
ascertaining the ratio of the case cannot be over-mentioned. When
understanding the ratio and other concepts of authority,
distinguishing, overruling per incuriam are rather meaningless.
Therefore, the Court cannot look into the judgments distinguished,
overruled or held as per incuriam and the ratio alone is to be taken
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WP.Nos.7847 and 7778 of 2021
out from the judgment. While reading judgment of the Court, an
individual understanding or perception is irrelevant, but the exact
ratio is relevant for the purpose of application of the ratio laid
down in the judgment. The Division Bench of Uttarakhand High
Court in "Parshuram v. State of Uttarakhand (Writ Petition
(S/B) No. 168/2017 Decided On: 18.03.2019) made a sincere and
honest attempt to explain as to the width of the judgment, while
analyzing a similar case. A decision is only an authority for what it
actually decides and not every observation found therein nor what
logically follows from the various observations made in it. Every
judgment must be read as applicable to the particular facts proved,
or assume to be proved, since the generality of the expressions
which may be found there are not intended to be expositions of the
whole law, but governed and qualified by the particular facts of the
case in which such expressions are to be found. The case cannot
be quoted for a preposition that may seem to follow logically from
it. It is not a profitable task to extract a sentence here and there
from a judgment and to build up on it. (State of Orissa v.
Sudhansu Sekhar Misra44; Quinn v. Loathem45). Judgments
ought not to be read as statutes. They are an authority for what
they decide. A word here or a word there should not be read out of
context. (Sri Koanaseema Co-operative Central Bank Ltd. v. N.
Seetharama Raju46). Observations of the Courts are not to be
read as Euclid's theorems or as provisions of the statute. These
AIR 1968 SC 647
1901 AC 495
AIR 1990 AP 171
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observations must be read in the context in which they appear. To
interpret words, phrases and provisions of a statute, it may
become necessary for Judges to embark upon lengthy discussions,
but the discussion is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments. They interpret
words of statutes, their words are not to be interpreted as statutes
(vide: Haryana Financial Corporation v. Jagdama Oil Mills47).
In London Graving Dock Co. Ltd. V. Horton48:-
"The matter cannot, of course, be settled merely by treating the
ipsissima verba of Willes, J., as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate
thereto. This is not to detract from the great weight to be given to the
language actually used by that most distinguished Judge."
(emphasis supplied)
Megarry, J. in Shepherd Homes Ltd. v. Sandham49
observed:
"One must not, of course, construe even a reserved judgment of even
Russell, L.J. as if it were an Act of Parliament."
And, in Herrington v. British Railways Board50 Lord
Morris said:
"There is always peril in treating the words of a speech or a judgment
as though they were words in legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case...."
(emphasis supplied)
These observations have been reiterated by the Supreme
Court in "Ashwani Kumar Singh v. U.P. Public Service
(2002) 3 SCC 496
(1951) 2 All ER 1 (HL)
(1971) 1 WLR 1062
(1972) 2 WLR 537
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WP.Nos.7847 and 7778 of 2021
Commission51"; "Union of India v. Amrit Lal Manchanda52";
"Escorts Ltd. v. Commissioner of Central Excise, Delhi II53";
"Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani54"; "Union of
India v. Major Bahadur Singh55".
In the present case, instead of reading the judgment of the
Supreme Court in W.P. (Civil) No.437 of 2020, learned State
Election Commissioner interpreted the judgment on her own and
concluded that the four weeks time prescribed in the order is outer
limit i.e. maximum period of MCC, thereby the State Election
Commissioner can reduce it. Such interpretation by misreading or
misunderstanding of order is totally misplaced and it is nothing
but purposive interpretation, such interpretation cannot be
accepted by any stretch of imagination in view of the law declared
by the Supreme Court in the judgments (referred supra). Therefore,
explanation offered by the Secretary to respondent No.1 in his
counter is unacceptable.
The order passed by the Supreme Court in W.P.(Civil) No.437
of 2020 is clear and categorical. On reading the said order, even a
common man who can read, write and understand the English
language can easily find out the direction issued by the Supreme
Court in the order. But, here the State Election Commissioner,
who worked as Chief Secretary to the State being a senior most
retired IAS Officer, could not understand the simple direction
issued by the Hon'ble Supreme Court in right perspective, which
(2003) 11 SCC 584
(2004) 3 SCC 75
(2004) 7 SCC 214
(2004) 8 SCC 579
(2006) 1 SCC 368
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creates doubt as to her suitability and fitness to the post of
Election Commissioner.
The present State Election Commissioner issued notification
impugned in the writ petition on the day when she took charge of
the office even without looking into the purport of the order issued
by the Supreme Court in W.P.(Civil) No.437 of 2020. It is an
undisputed fact, such understanding of the Election Commissioner
of the State is contrary to the directions issued by the Supreme
Court. Obviously, such notification was issued limiting the MCC
for a minimum period from 01.04.2021 till declaration of results as
per schedule i.e. 10.04.2021, even without looking into the
direction issued by the Supreme Court and such notification would
scuttle the level play field of political parties and their candidates
in the proposed election to be held on 08.04.2021. Such act of
respondent No.1 can be described as democratic backsliding, it is
also known as autocratization and de-democratization. It is a
gradual decline in the quality of democracy and the opposite
of democratization, which may result in the State losing its
democratic qualities, becoming an autocracy or authoritarian
regime. Democratic decline is caused by the state-led weakening
of political institutions that sustain the democratic system, such
as the peaceful transition of power or electoral systems. Although
these political elements are assumed to lead to the onset of
backsliding, other essential components of democracy such as
infringement of individual rights and the freedom of expression
question the health, efficiency and sustainability of democratic
systems over time. One of the reason for such democratic
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backsliding is executive aggrandizement. The most important
feature of executive aggrandizement is that the institutional
changes are made through legal channels, making it seem as if the
elected official has a democratic mandate. Some examples of
executive aggrandizement are the decline of media freedom and the
weakening of the rule of law (i.e., judicial and bureaucratic
restraints on the government), such as when judicial autonomy is
threatened.
Another reason for democratic backsliding is strategic
harassment and manipulation during elections. This form of
democratic backsliding entails the impairment of free and fair
elections through tactics such as blocking media access,
disqualifying opposition leaders, or harassing opponents. This form
of backsliding is done in such a way that the elections do not
appear to be rigged and rarely involves any apparent violations of
the law, making it difficult for the Election observer to observe
these misconducts. As such, the act of the respondents is nothing
but democratic backsliding.
Normally, the IAS officers, who are working and achieved
excellence in the career with their brilliance, were posted in the
rank of Principal Secretary and above to look after the entire
administration in the State and expected to act fairly and freely
without any fear or favour; though worked in particular
Government, they are being appointed in key posts such as State
Election Commissioner since they possessed knowledge vested
with power. Based on such brilliance and knowledge, the State
Election Commissioner could not understand the purport of the
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order passed by the Full Bench of the Hon'ble Supreme Court,
obviously for the reasons best known to the State Election
Commissioner. The present situation is fine example of democratic
backsliding. The understanding of the order of the Full Bench of
the Hon'ble Supreme Court by respondent No.1 or by Secretary to
respondent No.1 is not based on any reasoning, except non-
application of mind by the concerned authority. The State Election
Commissioner did not care even the direction issued by the Full
Bench of the Hon'ble Supreme Court by over-reaching the order,
made the direction lifeless and the direction became redundant.
Hence, the contention of the learned senior counsel for respondent
No.1 is hereby rejected. Accordingly, I hold that the impugned
notification was issued in deliberate and intentional violation of the
direction dated 18.03.2020 issued by the Supreme Court in W.P.
(Civil) No.437 of 2020, which is in the nature of direction issued
under Article 142 of the Constitution of India, and the same is
binding on the State. The first respondent being constitutional
authority is expected to maintain rule of law and act within the
sphere of constitutional authority, but acted in clear defiance of
the directions with almost disrespect to the order of the Hon'ble
Supreme Court. Consequently, the notification impugned in the
writ petitions is liable to be set aside. Accordingly, the point is
answered in favour of the petitioners and against the respondents.
P O I N T No.4:
The petitioner in W.P.No.7847 of 2021 made several serious
allegations about the violence took place both at the time of
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nominations, withdrawals, more particularly forcible withdrawals
and untoward incidents took place in the process of election before
stoppage of election by issuing notification No.68/SEC-B1/2020
dated 15.03.2020 exercising power under Rule 7 of the
A.P.Panchayat Raj (Conduct of Elections) Rules. The petitioner also
relied on the letter addressed by the State Election Commissioner
to the Home Secretary dated 18.03.2020 making serious
allegations like vandalism of the representations of present
political party in power, which is extended to the person of the
then Election Commissioner. The petitioner also relied on earlier
letter, which is not placed on record.
In any view of the matter, notification dated 01.04.2021
fixing the date of polling as 08.04.2021 was issued resuming
election process from where it was stopped, which is impugned in
the writ petition, and the entire election process was completed as
on date.
When the entire election process is completed, the alleged
vandalism in the process of election by the men or supporters of
the political party in power may be a ground to set aside the
election of particular candidate, but it is not a ground to cancel the
entire election process and direct to issue a fresh notification for
elections.
According to Article 243-O of the Constitution of India, the
election cannot be called in question except by election petition on
any of the grounds available to the petitioner, which is identical to
Article 329 of the Constitution of India, but the Court disagreed
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with the bar on jurisdiction of Courts, examining the bar on the
touchstone of basic structure doctrine. However, Section 225 of the
Andhra Pradesh Panchayat Raj Act, 1994 permits fresh election in
case of destruction of ballot boxes etc. at any election and several
circumstances were enumerated in Section 225 of the Andhra
Pradesh Panchayat Raj Act. But none of the contentions urged in
the affidavit filed along with the petition do not fall within the
ambit of Section 225 of the Andhra Pradesh Panchayat Raj Act.
Similar issue came up before this Court in W.P.No.4154 of
2021 and batch, wherein the learned Single Judge declined the
relief. Therefore, the issue involved in the petition is no more res
integra. By applying the principle laid down in the above judgment,
I find that it is not a fit case to direct election for ZPTCs and
MPTCs afresh. However, it is left open to the petitioner in
W.P.No.7847 of 2021 to challenge the election on any of the
available grounds under law by filing election petition. Hence, I
find no ground to grant relief to the petitioner for ordering fresh
election for ZPTCs and MPTCs.
During hearing, learned counsel for respondent No.1 would
contend that the polling was completed and ballot boxes were
preserved in safe place as the Division Bench of this Court directed
not to take up counting of votes and not to declare the result of the
election, consequently the writ petition itself becomes infructuous.
Hence, on this ground, requested to dismiss the writ petition.
No doubt, election process is completed including polling
except counting votes, declaration of results. But the learned single
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Judge in I.A.No.01 of 2021 in W.P.No.7778 of 2021 stayed all
further proceedings in pursuance of the notification No.1503/SEC-
B1/2021 dated 01.04.2021, when it was challenged before the
Division Bench by filing W.A.No.224 of 2021, the Division Bench of
this Court with certain restraint passed such an order not to
undertake counting process and not to declare the results. On
account of the order passed by the Division Bench, the respondent
No.1 could complete the election process.
The candidates of Janasena Party, petitioner in W.P.No.7847
of 2021 were disabled to participate in the election process due to
scuttling of level play field by issuing impugned notification.
Therefore, on the ground of completion of polling based on such
illegal notification, the writ petitions did not become infrutuous.
Consequently, the writ petitions cannot be dismissed as
infructuous.
Yet, another contention of learned senior counsel for
respondent No.1 is that the relief under Article 226 of the
Constitution of India is purely discretionary in nature and the
Court has to balance equities. In support of his contention, he
placed reliance on the judgment of the Supreme Court in "State of
Maharashtra v. Prabhu56". In the said judgment, the Supreme
Court held that the distinction between writs issued as a matter of
right such as habeas corpus and those issued in exercise of
discretion such as certiorari and mandamus are well known and
explained in countless decisions given by the Supreme Court and
1994 (2) SCC 481
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English Courts. It is not necessary to recount them. The High
Courts exercise control over Government functioning and ensure
obedience of rules and law by enforcing proper, fair and just
performance of duty. Where the Government or any authority
passes an order which is contrary to rules or law it becomes
amenable to correction by the courts in exercise of writ
jurisdiction. But one of the principles inherent in it is that the
exercise of power should be for the sake of justice. One of the
yardsticks for it is if the quashing of the order results in greater
harm to the society, then the court may restrain from exercising
the power.
No doubt, the Court has to balance the equities since the
State already spent Rs.160 crores for holding elections as
contended by the learned senior counsel for respondent No.1,
based on such illegal notification. If such equities are balanced on
the basis of spending huge amount, it is nothing but perpetuating
illegality or legalising an illegality on the basis of equity, which is
impermissible under law, since it is the duty of the Constitutional
Court to uphold the right of citizen without sacrificing sobriety. In
fact, when the learned single Judge of this Court passed an order
in I.A.No.01 of 2021 in W.P.No.7778 of 2021, the State in hurry,
moved the Division Bench by way of writ appeal, obtained an
order, and held election in utmost haste. The reason can be
inferred from the circumstances of the case. However, had the
State waited for some time, the State ought to have saved the
amount at least to some extent, which was spent for holding
elections and for preserving ballot boxes, on account of order of
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Division Bench. Because of the hasty act of the State Election
Commissioner, the State was compelled to incur such huge
amount. Hence, based on such principle of balancing equities, the
relief in the writ petition cannot be denied since the amount was
incurred due to utmost haste decision of respondent No.1 both in
issuing notification and approaching the Division Bench against
the order passed by the learned Single Judge in hurry. When the
State incurred such huge expenditure on account of hasty acts of
officials of the State, infringement of rights of the citizen or public
cannot be permitted and such equity cannot outweigh the
statutory rights of the electors and contesting candidates of
Janasena Party in W.P.No.7847 of 2021. Therefore, it is difficult to
accede to the request of the learned senior counsel for respondent
No.1 and the same is hereby rejected.
Accordingly, the point is answered in favour of the
respondents and against the petitioners.
Before concluding the order, the findings recorded by me are
summed-up, as follows:
(1) The petitioner in W.P.No.7778 of 2021 has got litigational
competency and that the writ petition in the present form is
maintainable under Article 226 of the Constitution of India
and single Judge of this Court is competent to decide the
issue, since the petitioner did not espouse the public cause.
(2) The petitioner in W.P.No.7778 of 2021 has failed to establish
existence of legal right in him either statutory or
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constitutional and it's infringement or invasion or threatened
infringement or invasion and thereby, not entitled to claim
writ of mandamus.
(3) Article 243-O of the Constitution of India is not an absolute
bar to interfere with the process of election for MPTCs and
ZPTCs.
(4) The petitioner in W.P.No.7847 of 2021 pleaded and proved that
the right of contesting candidates of the Janasena Party
(political party) is infringed or invaded, thereby entitled to
claim Writ of Mandamus, as the notification was issued in
utter disregard of the direction of the Hon'ble Supreme Court
in W.P (Civil) No.437 of 2020 dated 18.03.2020.
(5) Notification No.1503/SEC-B1/2021 dated 01.04.2021 issued
by the State Election Commissioner is declared as illegal as the
same was issued to scuttle the level play field of candidates of
Janasena Party or retard the progress of free and fair election
and contrary to the direction issued by the Hon'ble Supreme
Court in W.P. (Civil) No.437 of 2020.
In the result,
(a) Writ Petition No.7778 of 2021 is dismissed without costs.
(b) Writ Petition No.7847 of 2021 is allowed-in-part, declaring the
Notification No.1503/SEC-B1/2021 dated 01.04.2021 as illegal,
arbitrary and violative of direction issued by the Hon'ble Supreme
Court in W.P. (Civil) No.437 of 2020, and consequently set-aside the
same, while declining to order election process afresh for MPTCs
and ZPTCs in the State from the stage of nominations.
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(c) The first respondent is directed to issue notification afresh
resuming the election process for MPTCs and ZPTCs from where it
was stopped, re-imposing Model Code of Conduct strictly adhering
to the directions issued by the Hon'ble Supreme Court in W.P. (Civil)
No.437 of 2020 . No costs.
Consequently, miscellaneous petitions pending if any, shall
also stand closed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
21.05.2021
Note: L.R. copy to be marked
B/o
Ksp/sp
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W
LR folder
WRIT PETITION NOs.7847 AND 7778 of 2021
DATE: 21.05.2021
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