Karnataka High Court
Rizwan Arshad vs Election Commission Of India on 5 April, 2023
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7025 OF 2023 (GM - RES)
BETWEEN:
1 . RIZWAN ARSHAD
S/O SRI R.Q.ARSHAD
AGED ABOUT 42 YEARS,
R/AT NO.24,
SRI VATREVU APARTMENTS
FLAT NO.G2, BENSON CROSS ROAD
BENSON TOWN
BENGALURU - 560 001.
2 . BIBI HAJIRA
S/O MOHAMMED JABBER
AGED ABOUT 30 YEARS
R/AT NO.11/1, COOKS ROAD
18 NEHRUPURAM, SHIVAJINAGAR
BENGALURU NORTH, BANGALORE GPO
BENGALURU - 560 001.
3 . ABDUL LATEEF
S/O ABDUL AZEEZ
AGED ABOUT 52 YEARS
R/AT NO.9, COOKS ROAD
1B BHARATHINAGAR,
SHIVAJINAGAR,
BENGALURU - 560 001.
2
4 . MEHNAZ
D/O S.K.ASLAM
AGED ABOUT 24 YEARS
R/AT NO.17, K NO.5TH STREET
SEEPINGS ROAD
SHIVAJINAGAR,
BENGALURU NORTH
H.K.P ROAD
BENGALURU - 560 001.
5 . SHOAIB KHAN
S/O ABDUL SATTAR
AGED ABOUT 41 YEARS
R/AT 89E, THIMMAIAH ROAD,
NEHRUPURAM, SHIVAJINAGAR,
BENGALURU NORTH
BENGALURU - 560 001.
6 . SYED AMEEN
S/O S.K.ASLAM
AGED ABOUT 26 YEARS
R/AT NO.SEPPINGS ROAD,
SHIVAJINAGAR,
BENGALURU NORTH
BENGALURU - 560 001.
7 . AYISHA SULTHAN
W/O S.K.ASLAM
AGED ABOUT 47 YEARS
R/AT 17B K.NO.5TH STREET
NEHRUPURAM,
BHARTHINAGAR,
BENGALURU
BENGALURU - 560 001.
8 . SEEMA KHANUM
W/O SHOAIB KHAN
AGED ABOUT 33 YEARS
3
NO 89E, THIMMA THIMMAIAH ROAD,
NEHRUPURAM
SHIVAJINAGAR,
BENGALURU NORTH
BENGALURU - 560 001.
9 . SADIYA BANO
D/O NISAR S.K.,
AGED ABOUT 36 YEARS
NO.4/1 GROUND FLOOR
MUTHAYALAMMA B STREET
SEEPINGS ROAD CROSS
BENGALURU NORTH
BENGALURU - 560 001.
10 . H.RIYAZ AHMED
S/O R.ABDUL AHMED
AGED ABOUT 63 YEARS
R/AT 15 E NO.3RD STREET
SHIVAJINAGAR,
BENGALURU - 560 001.
11 . A. ASHRAF PASHA
S/O ABDULLA
AGED ABOUT 55 YEARS
NO.3, HKP ROAD CROSS
SHIVAJINAGAR,
BENGALURU - 560 001.
12 . AQIL FARUQI
S/O ABDUL KHALIQ
AGED ABOUT 56 YEARS
R/AT 5.E NO.5TH STREET
SHIVAJINAGAR,
BENGALURU - 560 001.
13 . A FARIAN TAJ
D/O ASHRAF PASHA
4
AGED ABOUT 33 YEARS
HKP ROAD CROSS,
SHIVAJINAGAR,
BENGALURU - 560 051.
14 . YASMEEN BEGUM
D/O FIDHA HUSSAIN
AGED ABOUT 21 YEARS
1, SLATAR HOUSE C ROAD
SHIVAJINAGAR, BENGALURU
BENGALURU - 560 051.
15 . SAYEEDA BEGUM
W/O FIDA HUSSAIN
AGED ABOUT 63 YEARS
5C STREET, H.K.P ROAD
SHIVAJINAGAR,
BENGALURU - 560 051.
16 . ABDUL KHADEER KHAN
S/O IMADULLAH KHAN
AGED ABOUT 41 YEARS
NO.4, SLOUGHTER HOUSE
C STREET, HKP ROAD,
SHIVAJINAGAR
BENGALURU - 560 051.
17 . SYED NAUSHAD PASHA
S/O SYED AMEER PASHA
AGED ABOUT 45 YEARS
NO.10, SLOUGHTER HOUSE
B STREET, SHIVAJINAGAR,
BENGALURU - 560 051.
18 . S.SHUAIB AHMED
S/O N.SAGEER AHMED
AGED ABOUT 21 YEARS
NO.22 E NO 7TH STREET
5
HKP ROAD CROSS
SHIVAJINAGAR,
BENGALURU - 560 051.
19 . ABDUL JABBAR
S/O ABDUL REHMAN
AGED ABOUT 51 YEARS
NO.38, COCK BURN ROAD
SHIVAJINAGAR,
BENGALURU NORTH
BENGALURU - 560 051.
20 . MAQBOOL JAN
W/O BASEER AHMED
AGED ABOUT 79 YEARS
NO.14/1 COOKS ROAD,
2ND CROSS, THIMMAIAH ROAD
SHIVAJINAGAR,
BENGALURU - 560 051.
21 . NISAR AHMED
S/O ABDUL KHADER
AGED ABOUT 69 YEARS
NO.7/8, E NO 4TH STREET
SHIVAJINAGAR,
BENGALURU - 560 051.
... PETITIONERS
(BY SRI K.SHASHIKIRAN SHETTY, SR. ADVOCATE FOR
SRI KIRAN J., ADVOCATE)
AND:
1. ELECTION COMMISSION OF INDIA
NIRVACHANA SADAN
ASHOKA ROAD, NEW DELHI - 110 001
6
REPRESENTED BY SECRETARY.
2. THE CHIEF ELECTORAL OFFICER
NIRVACHANA NILAYA SHESHADRI ROAD
BENGALURU - 560 009.
3. ELECTORAL REGISTRATION OFFICER
SHIVAJINAGAR ASSEMBLY CONSTUTUENCY
BBMP BUILDING, QUEENS ROAD
SHIVAJI NAGAR
BENGALURU 560 051.
... RESPONDENTS
(BY SRI S.R.DODAWAD, CGC FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE PAPER
PUBLICATION DATED 22.03.2023 PUBLISHED IN THE ENGLISH
NEWSPAPER THE NEW INDIAN EXPRESS AS HIGHLY ARBITRARY,
ILLEGAL AND IN CONTRAVENTION OF REPRESENTATION OF
PEOPLES ACT 1950, REGISTRATION OF ELECTORAL RULES 1960,
INSTRUCTIONS AND CIRCULARS ISSUED BY THE ELECTION
COMMISSIONER OF INDIA(ANNEXURE-A) AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.03.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The 1st petitioner, a sitting Member of Legislative Assembly of
Shivajinagar Constituency, along with others, are, all knocking at
the doors of this Court seeking quashment of a paper publication as
published contending that it is in contravention of the
Representation of the People Act, 1950 ('the Act' for short),
Registration of Electors Rules, 1960 and Instructions and Circulars
issued by the Election Commission of India.
2. Heard Sri K.Shashikiran Shetty, learned senior counsel
appearing for the petitioners and Sri S.R.Dodawad, learned Central
Government Council appearing for respondent No.1.
3. Facts adumbrated are as follows:-
To consider the challenge now raised by the petitioners, a
little walk to the recent past is necessary. The 1st petitioner
belongs to Shivajinagar Constituency. Certain booth level officers of
Shivajinagar and Shanthinagar Constituencies had knocked at the
doors of this Court in Writ Petition Nos. 3592 of 2023 c/w Writ
Petition No.2632 of 2023. This Court by its order dated 14.03.2023
considering respective submissions had passed the following order:
".... .... ....
IN W.P.No.2632/2023
2. The petitioner, in the subject petition, is a political
party represented by its General Secretary, is knocking at the
doors of this Court seeking consideration of their
representations submitted on 30.11.2022 and 23.01.2023 for
corrective measures to be taken in the electoral roll concerning
Shivajinagar Assembly Constituency of the State of Karnataka.
What drives the petitioner to submit those representations is
required to be noticed. The process for conduct of a pre-
election procedure is initiated by the Election Commission of
India ('Commission' for short). In furtherance of the said
conduct of pre-election procedure, the Election Commission of
India started preparation of electoral roll and published a draft
electoral roll calling for objections from all stake holders on 13-
01-2022, whereby a revised electoral roll was published by the
Commission. On 04-10-2022 periodical revision of the electoral
roll was done and was updated which forms the last of the
updates. An integrated draft electoral roll was published on
09-11-2022. Representations had been submitted between
04-10-2022 and 09-11-2022 regarding certain discrepancies in
the electoral roll. It is claimed that there were several
complaints regarding the voter data submitted before the
Commission. Owing to certain complaints even after publication
of the integrated draft electoral roll, the Commissioner initiates
certain proceedings on 25-11-2022 by directing the Government
of Karnataka to collect the voter data. After the notification of
the integrated draft electoral roll, insofar as it concerns
Shivajinagar constituency, the petitioner in the subject petition
had submitted a representation on 30-11-2022 bringing it to its
notice that there were certain discrepancies in the electoral roll
and sought consideration of it. On 15-01-2023 the final electoral
roll was notified by the Commission for Shivajinagar Assemby
Constituency. After the said notification again the petitioner
submits another representation bringing out the very
discrepancy. Non-consideration of those representations has
driven the petitioner to this Court in the subject petition
concerning Shivajingar assembly constituency.
3. The learned senior counsel Sri.Vivek.S.Reddy
appearing for the petitioner would contend that the Commission
has not carried out any exercise in accordance with law, so as to
identify the voters, that are either dead, or have shifted and
even duplication of voters. He would admit that duplication
inter-constituency cannot be done at this stage, but intra
constituency has to be done to identify duplication of votes. It
is his further contention that the Block Level Agents ('BLA' for
short) have identified 26000 names of voters, who are either
dead or have shifted from the constituency and that list was
submitted to the Commission who have not acted upon the said
complaint. It is therefore the representations were submitted,
both before the publication of the final electoral roll and the
other after its publication. He would seek a direction to consider
those representations.
4. Sri. S.R. Dodwad, learned counsel appearing for
the Commission of India would refute the submissions seeking
to contend that after receipt of the objections, on publication of
the draft list, the Commission of India, has on the basis of the
list given by the BLA's, the Booth Level Officer ('BLO' for short)
has conducted inspection, an enquiry and have drawn up a list
of 11000 such names in the electoral roll who are either dead or
have shifted residence. He would submit that insofar as the
shifting voters are concerned, notices have been issued to all of
them and in cases where the voters have died, information is
sought from the Registrar of Births and Deaths in order to
conclude the process prior to the notification of elections. He
would contend that those 11000 names in the electoral rolls for
the purpose of deletion would be taken to its logical end strictly
in consonance with the Act, the Rules, the Circulars and the
guidelines issued by the Election Commission of India from time
to time concerning the issue.
5. Sri. K. Shashikiran Shetty, learned senior
counsel appearing for the impleading applicant in both
these cases and the petitioner in the third petition has
taken this Court through the rules and regulations to
contend that the deletion of a voter after the publication
of the final voters list is impermissible in law in terms of
Rule 21A of the Rules. It is his contention that any
deletion could be done of individual cases only if the
complaints are registered through Form No.7 with
evidence that those voters are either died or have shifted
residence. If that information is available, the
Commission can take appropriate steps based upon such
information.
6. I have given my anxious consideration to the
submissions made by the respective learned Senior counsel and
have perused the material available on record.
7. The afore-narrated facts are not in dispute. The
issue in the lis lies in a narrow compass. The process of
preparation of electoral roll began on 13-01-2022 and resulted
in several proceedings being taken up and also ends up in
receipt of several complaints. On 11-10-2022 representation is
given by the petitioner to rectify the defects in the revised
electoral roll itself. Taking note of the objections, a draft
electoral roll was published on 09-11-2022 calling for objections
from all stake holders. Objections galore, so the
representations. Objections appear to have been filed by all
BLA's. Certain objections were in the form of representations
and certain in the nature of complaints. Two of which, are
submitted by the petitioner in the form of representation. One
on 30-11-2022 before the publication of the final electoral roll,
the other on 23-01-2023 immediately after publication of the
electoral roll. Both these in unison is to the effect that there are
serious discrepancies in the electoral roll concerning
Shivajinagar assembly constituency.
8. It is the submission now, even before in the
representation that there are 26000 voters in the
constituency who are either read or have shifted
residence. The representations were considered by the
BLO of the Commission after conducting an enquiry, in
detail, have found 11000 such voters to be either dead or
shifted residence in Shivajingar Constituency alone. The
identification by the Commission is not in dispute.
Therefore, it is an admitted fact that 11000 voters are
either dead or shifted residence from the constituency.
The division by the Commission goes this way. According
to them, out of 11000 names, 9195 are the names of
voters who have shifted and the remainder have died.
Insofar as voters who have died, information is sought
from the Registrar of Births and Deaths to declare them
deleted from the voters list. Insofar as shifted voters are
concerned, notices have been issued to them. The
admission of such submission forms a part of the
statement of objections, which reads as follows:
"It is submitted that, the in response to the
Show Cause Notices issued to the 9195 voters,
914 voters have replied and submitted documents
regarding their continuance of their residence in
the given address. After, hearing the proposal for
deletion of those 914 persons were dropped and
their names are continued in the Electoral Roll of
Shivajinagar Assembly Constituency."
The notices that had been issued to 9195 voters
have generated reply of 914 voters confirming that they
are staying in the constituency and those 914 names are
continued in the electoral roll. Therefore, what remains
as an action to be taken is 8281 names in the electoral
roll, as it is admitted that insofar as 8281 names of voters
in the electoral roll are concenned, the Commission is yet
to take to its logical end. It is now submitted that if
breathing time is granted, identification of 8281 voters
would be taken to its logical end, in terms of the Act, the
Rules i.e. the Representation of the People Act 1950,
1951 and the Rules framed there under and the
guidelines/circulars/official memoranda issued by the
Election Commission of India from time to time, as also
the circulars issued by Election Commission of India for
the said purpose. This submission is placed on record.
9. Therefore, it would suffice, if a direction is
issued to the Commission to begin to act swiftly;
beginning today and undertake the exercise that they
have undertaken to perform supra and take the issue to
its logical conclusion, as according to the Commissioner,
what remains is action to be taken qua 8281 voters who
have been already identified by the BLO's as shifted
voters and 1847 voters who are dead, whose names find
place in the final electoral roll. Therefore the said action
of taking it to its logical conclusion, which shall be in
consonance with the Act, the Rules, guidelines and
circulars with particular reference to Rule 21A of the
Representation of the People Act and Rules, 1950/1951.
10. As observed hereinabove, the Election
Commission is required to begin to act swiftly; beginning
today and in view of the paucity of time and the
impending urgency, the Commission shall conclude the
aforesaid exercise on or before 26.03.2023, for which,
the Commission is at liberty to regulate the procedure in
compliance with the aforesaid direction."
(Emphasis supplied)
The contention of booth level officers in the aforesaid petition was
that the Election Commission had identified about 11,000 names in
the electoral rolls finally, either to have shifted residence or have
died and insofar as voters in the electoral rolls who had shifted
residence had been issued show cause notices seeking their reply
for consideration of their cases for deletion from the electoral rolls.
This Court noted the submission that 9195 names of voters who
had been shifted had been included in the list and the remaining
were the ones who died. On issuance of show cause notices to
9195 voters, 914 voters had submitted their reply and it was
indicated that action would be taken qua 8281 voters in the
electoral rolls. While passing the said order this very petitioner who
sought to implead himself into the proceedings was heard. After
hearing all the parties the aforesaid order was passed.
4. The Election Commission, in furtherance of the order
passed, had issued a paper publication indicating the names of
persons or voters who have shifted their residences or have died
and also issued certain notices to all those persons who have
shifted residences. The first petitioner, a sitting MLA was one of
those who was issued a notice of shift of residence. Making that as
the foundation of the present petition, the petitioner now knocks at
the doors of this court contending that once the electoral roll is
finalized, there can be no change in the voters list. What the
Election Manual would provide is for drawing up of a separate list of
Absentee, Shifted and Dead - ASD list. It is the emphatic
submission of the learned senior counsel representing the
petitioners that this absentee, shifted and dead list was in fact
implemented in a by-election in the State of Tamil Nadu. He would
submit that this is a better move to avoid arbitrariness seeping into
the election process. The learned senior counsel would contend that
this Court in the order supra has clearly indicated that steps have to
be taken by the Election Commission strictly in consonance with the
Act, Rules, Guidelines or Circulars with particular reference to Rule
21A of the Rules. Therefore, he would contend that the
Commission has no power to alter the voters list that is already
finalized and has to prepare an ASD list which would be a separate
list at the time of polling.
5. On the other hand, the learned counsel appearing for the
1st respondent/Election Commission of India would contend that
voters list does not freeze on the date of its publication, but it is an
ongoing process till the last date of filing of nomination as inclusion
and exclusion, will always be there into the voters list. Once
nominations are over, the list then would freeze as no alteration
can be made later. He would submit that in furtherance of the order
passed by this Court, the Election Commission took the step of
issuing paper publication apart from issuing notices. The notices are
issued to everyone, some replied with necessary documents and
those names are retained in the places as they are. Insofar as the
1st petitioner is concerned, he would admit that it was a mistake
that notice was sent and the Election Commission has rectified the
mistake and the name of the petitioner is deleted from the list. He
would submit that defects in the names of most of the petitioners
have all been rectified. Therefore, he would contend that the
petition be rejected and the Commission be permitted to continue
to act in accordance with law.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. Certain Booth Level Officers, as observed hereinabove,
were before this Court and the order passed is quoted supra. This
Court directed the Commission to act swiftly in the light of
impending urgency and conclude the exercise of rectification of
voters list within 26-03-2023. It is, therefore, a paper publication
issued by the Commission. The issue now would be whether the
voter list would freeze on the date of final publication or it is still an
ongoing process till the date of nomination. Section 22 of the Act
reads as follows:
"22. Correction of entries in electoral rolls.--If the
electoral registration officer for a constituency, on application
made to him or on his own motion, is satisfied after such inquiry
as he thinks fit, that any entry in the electoral roll of the
constituency--
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the
roll on the ground that the person concerned
has changed his place of ordinary residence
within the constituency, or
(c) should be deleted on the ground that the person
concerned is dead or has ceased to be ordinarily
resident in the constituency or is otherwise not
entitled to be registered in that roll,
the electoral registration officer shall, subject to such general or
special directions, if any, as may be given by the Election
Commission in this behalf, amend, transpose or delete the
entry after proper verification of the facts in such manner as
may be prescribed:
Provided that before taking any action on any
ground under clause (a) or clause (b) or any action under
clause (c) on the ground that the person concerned has
ceased to be ordinarily resident in the constituency or
that he is otherwise not entitled to be registered in the
electoral roll of that constituency, the electoral
registration officer shall give the person concerned a
reasonable opportunity of being heard in respect of the
action proposed to be taken in relation to him after
proper verification of facts in such manner as may be
prescribed."
(Emphasis supplied)
Section 22 deals with correction of entries in the electoral rolls.
Section 23 reads as follows:
"23. Inclusion of names in electoral rolls.--(1) Any
person whose name is not included in the electoral roll of a
constituency may apply to the electoral registration officer for
the inclusion of his name in that roll.
(2) The electoral registration officer shall, if
satisfied that the applicant is entitled to be registered in
the electoral roll, direct his name to be included
therein after proper verification of facts in such manner
as may be prescribed:
Provided that if the applicant is registered in the
electoral roll of any other constituency, the electoral
registration officer shall inform the electoral registration
officer of that other constituency and that officer shall, on
receipt of the information, strike off the applicant's name
from that roll after proper verification of facts in such
manner as may be prescribed.
(3) No amendment, transposition or deletion of any
entry shall be made under Section 22 and no direction for
the inclusion of name in the electoral roll of a
constituency shall be given under this section, after the
last date for making nominations for an election in that
constituency or in the parliamentary constituency within
which that constituency is comprised and before the
completion of that election.
(4) The electoral registration officer may for the purpose
of establishing the identity of any person require that such
person may furnish the Aadhaar number given by the Unique
Identification Authority of India as per the provisions of the
Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Act, 2016 (18 of 2016):
Provided that the electoral registration officer may also
require the Aadhaar number from persons already included in
the electoral roll for the purposes of authentication of entries in
electoral roll and to identify registration of name of the same
person in the electoral roll of more than one constituency or
more than once in the same constituency.
(5) Every person whose name is included in the electoral
roll may intimate his Aadhaar number to such authority in such
form and manner as may be prescribed, on or before a date to
be notified by the Central Government in the Official Gazette.
(6) No application for inclusion of name in the electoral
roll shall be denied and no entries in the electoral roll shall be
deleted for inability of an individual to furnish or intimate
Aadhaar number due to such sufficient cause as may be
prescribed:
Provided that such individual may be allowed to furnish
such other alternate documents as may be prescribed.
Explanation.--For the purposes of this section, the
expression "Aadhaar number" shall have the same meaning as
assigned to it in clause (a) of Section 2 of the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016 (18 of 2016)."
(Emphasis supplied)
Section 23 deals with inclusion of names in electoral rolls. Section
23 empowers the Electoral Registration Officer to include any
person whose name is not included, on an application being made
by the said person, for inclusion of his name. Sub-section (3)
mandates that no amendment, transposition or deletion of any
voter shall be made under Section 22 and no direction for inclusion
of a name in the electoral roll of a constituency shall be given under
Section 22 or Section 23 after the last date for making nominations
for an election in that constituency or in a parliamentary
constituency. What would unmistakably emerge from Section 23 is
a person whose name is left out can always submit for inclusion of
his name before the Registration Officer up to the last date of
making nominations in a particular constituency and such
transposition, deletion or amendment to the electoral roll can take
place. What is necessary is strict adherence to the procedure. Rule
21A of the Registration of Electoral Rules deals with deletion of
names. It reads as follows:
"21-A. Deletion of names.--(1) If it appears to the
registration officer at any time before the final
publication of the roll that owing to inadvertence or error
or otherwise, the names of dead persons or of persons
who have ceased to be, or are not, ordinarily residents in
the constituency or of persons who are otherwise not
entitled to be registered in that roll, have been included
in the roll and that remedial action should be taken under
this rule, the registration officer, shall--
(a) prepare a list of the names and other details
of such electors;
(b) exhibit on the notice board of his office a copy
of the list together with a notice as to the
time and place at which the question of
deletion of these names from the roll will be
considered, and also publish the list and the
notice in such other manner as he may think
fit; and
(c) after considering any verbal or written
objections that may be preferred, decide
whether all or any of the names should be
deleted from the roll:
Provided that before taking any action under this
rule in respect of any person on the ground that he has
ceased to be, or is not, ordinarily resident in the
constituency, or is otherwise not entitled to be registered
in that roll, the registration officer shall make every
endeavour to give him a reasonable opportunity to show
cause why the action proposed should not be taken in
relation to him."
(Emphasis supplied)
If it appears to the registration officer at any time before the final
publication of the roll that owing to inadvertence or error the names
of dead persons or persons who have ceased to be residents in the
constituency are included correction is available. Taking cue from
Rule 21A, the learned senior counsel submits that once the final
publication of the roll happens it cannot be tinkered and that will be
the electoral roll for the purpose of conduct of elections. I decline
to accept the same as Section 23 itself permits any correction in the
entry till the last date of making of nomination. If section provides
so, the procedure stipulated for implementation under the Rules
cannot mean that the electoral roll cannot be tinkered with after it
is finally published, a caveat it cannot be made use in an arbitrary
manner. The Commission should have adequate reasons to tinker
with the list after the publication of the electoral roll. In the case at
hand, after the publication of the electoral roll representations were
made by several booth level agents bringing it to the notice of the
Commission that there has been gross irregularities in the
preparation of the list as in two constituencies - Shivajinagar and
Shanthinagar - the names of dead persons were found in the
electoral rolls and therefore, it took up the exercise under Sections
22 and 23 of the Act read with Rule 21A of the Rules.
8. Reference being made to the judgment of the Constitution
Bench of the Apex Court in the case of LAKSHMI CHARAN SEN
AND OTHERS v. A.K.M. HASSAN UZZAMAN AND OTHERS1, in
the circumstances is apposite. The Apex Court was considering the
very issue of failure to revise the electoral roll. The Apex Court has
held as follows:
"16. Holding the elections to Legislatures and holding
them according to law are both matters of paramount
importance. On the one hand is the individual's statutory right
of franchise, on the other is the constitutional obligation
imposed by Article 168 that "For every State there shall be a
Legislature...". We find it somewhat odd that, in the instant
case, individuals whose rights are alleged to have been violated
have not come to the Court at all. Not one out of the eight lacs.
Persons who have come to the Court are members of a political
party who claim to represent them. While we are on this
question, it must be emphasized that election laws do not
recognise political parties except in Rule 11(c) of the
Registration of Electors Rules, 1960, the Election Symbols
(Reservation and Allotment) Order, 1968, and Explanation 1 to
Section 77(1) of the Act of 1951. The right to be included in the
electoral roll or to challenge the inclusion of any name in the roll
is a right conferred upon an individual and not upon any political
(1985) 4 SCC 689
party. The petitioners are espousing the cause of unnamed and
undisclosed persons through a writ petition, which does not
even claim to possess a representative capacity. The upshot of
the petition filed by them is that some 3 crores of voters were
being deprived of an opportunity to exercise their franchise in
order that an investigation should be made as to whether the
names of some 5 lacs and odd persons should be included in or
excluded from the electoral roll.
17. The fundamental error from which the writ petition
suffers is this: The fact that the revision of electoral rolls, either
intensive or summary, is undertaken by the Election
Commission does not have the effect of putting the electoral roll
last published in cold storage. The revision of electoral rolls is a
continuous process which has to go on, elections or no elections.
For example, the revision of electoral rolls has to be undertaken
under Section 21 of the Act of 1950, whether or not an election
is impending. Sub-section (1) of Section 21 provides that the
"electoral roll for each constituency shall be prepared in the
prescribed manner by reference to the qualifying date and shall
come into force immediately upon its final publication in
accordance with the rules made under this Act". Sub-section (2)
of Section 21 provides for the revision of the electoral roll
prepared under sub-section (1). The proviso, which is
important, says that if the electoral roll "is not revised as
aforesaid", the validity or continued operation of the 'said'
electoral roll shall not be affected. The controversy whether the
proviso governs clause (b) of Section 21(2) only or whether, it
applies to clause (a) of that section also is futile, though it may
be interesting from the point of view of a textbook writer on the
"Interpretation of Statutes". The crux of the matter is that if an
electoral roll is not revised, its validity and continued operation
remain unaffected, at least in a class of cases. That exemplifies
an important principle which applies in the case of electoral
rolls.
18. Section 21(3) of the Act of 1950 confers upon the
Election Commission the power to direct a special revision of the
electoral roll. The proviso to that sub-section also says that until
the completion of the special revision so directed, the electoral
roll for the time being in force shall continue to be in force. That
proves the point that election laws abhor a vacuum. Insofar as
the electoral rolls are concerned, there is never a moment in the
life of a political community when some electoral roll or the
other is not in force.
19. Section 23(3) of the Act of 1950 also points in
the same direction. Under that provision, no amendment,
transposition or deletion of an entry can be made under
Section 22 and no direction for the inclusion of a name in
the electoral roll of a constituency can be given, after the
last date for making nomination for an election in the
particular constituency. The election has to be held on the
basis of the electoral roll which is in force on the last date
for making nominations. If that were not so, the easiest
expedient which could be resorted to for the purpose of
postponing an election to the Legislature would be to file
complaints and objections, omnibus or otherwise, which
would take days and months to decide. It is not
suggested that claims and objections filed in the
prescribed form should not be decided promptly and in
accordance with law. But, the important point which must
be borne in mind is that whether or not a revision of an
electoral roll is undertaken and, if undertaken, whether
or not it is completed, the electoral roll for the time being
in force must hold the field. Elections cannot be
postponed for the reason that certain claims and
objections have still remained to be disposed of. Then,
claimants and objectors could even evade the acceptance
of notices and thereby postpone indefinitely the decision
thereon. The holding of elections to the Legislatures,
which is a constitutional mandate, cannot be made to
depend upon the volition of interested parties.
20. According to sub-rule (3) of Rule 23 of the
Registration of Electors Rules, 1960, the "presentation of
an appeal under this rule shall not have the effect of
staying or postponing any action to be taken by the
Registration Officer under Rule 22". Rule 22 imposes
upon the Registration Officer the obligation to publish the
electoral roll which, together with the list of
amendments, becomes the electoral roll of the
constituency. Thus, the fact that an appeal is pending
under Rule 23(1) against the decision of a Registration
Officer under Rule 20, 21 or 21-A does not constitute an
impediment to the publication of the roll and to the roll,
upon such publication, coming into force. Rule 20
provides for inquiry into claims and objections; Rule 21
provides for inclusion of names which are left out of the
roll owing to inadvertence or error; while, Rule 21-A
provides for the deletion of names of dead persons and of
persons who cease to be, or are not, ordinary residents of
the particular constituency. Notwithstanding the fact that
the roll contains these errors and they have remained to
be corrected, or that the appeals in respect thereof are
still pending, the Registration Officer is under an
obligation to publish the roll by virtue of Rule 22.
21. As a result of this discussion, it must follow that
the fact that certain claims and objections are not finally
disposed of, even assuming that they are filed in
accordance with law, cannot arrest the process of
election to the Legislature. The election has to be held on
the basis of the electoral roll which is in force on the last
date for making nominations.
22. One of the questions which was debated before us
and to which we must now turn, is whether the directions given
by the Election Commission to the Chief Electoral Officers have
the force of law under the Acts of 1950 and 1951. There is no
provision in either of these Acts which would justify the
proposition that the directions given by the Election Commission
have the force of law. Election laws are self-contained codes.
One must look to them for identifying the rights and obligations
of the parties, whether they are private citizens or public
officials. Therefore, in the absence of a provision to that effect,
it would not be correct to equate with law, the directions given
by the Election Commission to the Chief Electoral Officers. The
Election Commission is, of course, entitled to act ex debito
justitiae, in the sense that, it can take steps or direct that steps
be taken over and above those which it is under an obligation to
take under the law. It is, therefore, entitled to issue directions
to the Chief Electoral Officers. Such directions are binding upon
the latter but, their violation cannot create rights and
obligations unknown to the election law. To take a simple
example, if the Election Commission issues a directive to a Chief
Electoral Officer to invite leaders of political parties for a
meeting to consider their grievances pertaining to the electoral
roll, the failure to hold such a meeting cannot be equated with
the failure to comply with the provision of a law. Leaders of
political parties who were asked to be invited by the Election
Commission cannot challenge the process of election on the
ground that the directive issued by the Election Commission was
violated by the Chief Electoral Officer. The question is not
whether the directions issued by the Election Commission have
to be carried out by the Chief Electoral Officers and are binding
upon them. The plain answer is that such directions ought to be
carried out. The question is whether, the failure on the part of
the Chief Electoral Officer to comply with the directions issued
by the Election Commission furnishes any cause of action to any
other person, like a voter or a candidate, to complain of it. We
are of the opinion that the directions issued by the Election
Commission, though binding upon the Chief Electoral Officers,
cannot be treated as if they are law, the violation of which could
result in the invalidation of the election, either generally, or
specifically in the case of an individual. In the instant case, the
Chief Electoral Officer carried out faithfully the directions issued
by the Election Commission. But, even if he had not, he could
not be accused of disobeying a law."
(Emphasis supplied)
The Apex Court in the case of P.T.RAJAN v. T.P.M. SAHIR AND
OTHERS2 interpreting sub-section (3) of Section 23 has held as
follows:
"29. In terms of the 1950 Act, the Central Government
made the Registration of Electors Rules, 1960 (hereinafter
referred to as "the 1960 Rules"). In terms of the 1960 Rules any
person whose name has been deleted from the published draft
roll will have to file an application for inclusion of his name.
... ... ....
Principles as to whether a statute is mandatory or
directory
45. A statute as is well known must be read in the text
and context thereof. Whether a statute is directory or
(2003) 8 SCC 498
mandatory would not be dependent on the user of the words
"shall" or "may". Such a question must be posed and answered
having regard to the purpose and object it seeks to achieve.
46. What is mandatory is the requirement of sub-
section (3) of Section 23 of the 1950 Act and not the
ministerial action of actual publication of Form 16.
47. The construction of a statute will depend on the
purport and object for which the same had been used. In
the instant case the 1960 Rules do not fix any time for
publication of the electoral rolls. On the other hand
Section 23(3) of the 1950 Act categorically mandates that
direction can be issued for revision in the electoral roll by
way of amendment in inclusion and deletion from the
electoral roll till the date specified for filing nomination.
The electoral roll as revised by reason of such directions
can therefore be amended only thereafter. On the basis of
direction issued by the competent authority in relation to
an application filed for inclusion of a voter's name, a
nomination can be filed. The person concerned, therefore,
would not be inconvenienced or in any way be prejudiced
only because the revised electoral roll in Form 16 is
published a few hours later. The result of filing of such
nomination would become known to the parties
concerned also after 3.00 p.m.
48. Furthermore, even if the statute specifies a time
for publication of the electoral roll, the same by itself
could not have been held to be mandatory. Such a
provision would be directory in nature. It is a well-settled
principle of law that where a statutory functionary is
asked to perform a statutory duty within the time
prescribed therefor, the same would be directory and not
mandatory. (See Shiveshwar Prasad Sinha v. District
Magistrate of Monghyr [AIR 1966 Pat 144: ILR 45 Pat 436
(FB)] , Nomita Chowdhury v. State of W.B. [(1999) 2 Cal
LJ 21] and Garbari Union Coop. Agricultural Credit
Society Ltd. v. Swapan Kumar Jana [(1997) 1 CHN 189].)
49. Furthermore, a provision in a statute which is
procedural in nature although employs the word "shall" may not
be held to be mandatory if thereby no prejudice is caused.
(See Raza Buland Sugar Co. Ltd. v. Municipal Board,
Rampur [AIR 1965 SC 895: (1965) 1 SCR 970], State Bank of
Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S)
717] , Venkataswamappa v. Special Dy. Commr.
(Revenue) [(1997) 9 SCC 128] and Rai Vimal Krishna v. State of
Bihar [(2003) 6 SCC 401].)
50. The Court cannot, it is trite, supply casus omissus.
Reference in this regard may be made to Baliram Waman Hiray
(Dr) v. Justice B. Lentin [(1988) 4 SCC 419 : 1988 SCC (Cri)
941 : AIR 1988 SC 2267] wherein it was observed: (SCC p. 443,
para 27)
"27. Law must be definite, and certain. If any of
the features of the law can usefully be regarded as
normative, it is such basic postulates as the requirement
of consistency in judicial decision-making. It is this
requirement of consistency that gives to the law much of
its rigour. At the same time, there is need for flexibility.
Professor H.L.A. Hart regarded as one of the leading
thinkers of our time observes in his influential book 'The
Concept of Law', depicting the difficult task of a judge to
strike a balance between certainty and flexibility:
'Where there is obscurity in the language of a
statute, it results in confusion and disorder. No doubt the
courts so frame their judgments as to give the impression
that their decisions are the necessary consequence of
predetermined rules. In very simple cases it may be so;
but in the vast majority of cases that trouble the courts,
neither statute nor precedents in which the rules are
legitimately contained allow of only one result. In most
important cases there is always a choice. The judge has
to choose between alternative meanings to be given to
the words of a statute or between rival interpretations of
what a precedent amounts to. It is only the tradition that
judges 'find' and do not 'make' law that conceals this, and
presents their decisions as if they were deductions
smoothly made from clear pre-existing rules without
intrusion of the judge's choice.' "
(See also Kanta Devi v. Union of India [(2003) 4 SCC 753 :
2003 SCC (L&S) 592].)
51. In Tarulata Shyam v. CIT [(1977) 3 SCC 305: 1977
SCC (Tax) 445] it was held that if there be a casus omissus, the
defect can be remedied only by legislation and not by judicial
interpretation.
52. Rule 22(1)(b) of the 1960 Rules cannot, therefore, be
interpreted to mean that publication of the electoral roll must
take place before the time of filing nomination and not
thereafter."
(Emphasis supplied)
The Apex Court considers the very issue and answers
interpreting Section 23 of the Act.
9. Insofar as preparation of ASD list is concerned, the learned
counsel for the 1st respondent would submit that preparation of
ASD list in a constituency for a by-election in Tamil Nadu resulted in
huge furore as it generated lot of obfuscation at the time of conduct
of elections. Even otherwise, preparation of ASD list is not to be
done today, it is to be at the time when the elections are to be
held. The learned counsel would take this court to the hand book
for the Returning Officer and refer to clause 10.6.2 which reads as
follows:
"10.6.2. In addition to the working copies of
Electoral Rolls, after distribution of Voters Slips to the
Voters, A.S.D. (Absentees, Shifted and Dead) list has to
be prepared by the BLOs. The said list is also to be
furnished to the residing Oficer along with Voters list to
avert bogus voting.
Further, in order to prevent impersonation at the
time of poll, the below noted special measures in respect
of Absentee, Shifted and Dead electors, are to be
followed:
(i) List of ASD voters should be prepared polling
station wise and it should be ensured that each
Presiding Officer is provided with a separate list of
Absentee, Shifted and Dead electors (ASD List).
(ii) On the day of poll, every elector, whose name
appears in such a list, shall have to produce EPIC
for his/her identification or any one of the
alternative photo identity documents permitted by
the Commission. The Presiding Officer shall verify
the identification document personally and the
details should be properly registered by the Polling
Officer concerned in the register of voters in Form
17A.
(iii) The First Polling Officer shall inform the Polling
Agents about the ASD elector who has come to vote
by reading out his/her name loudly.
(iv) Thumb impression of such electors shall also be
obtained in addition to signature against the
column of "Signature/thumb impression" of
Register of voters (Form 17A). The thumb
impression shall be in addition to the signature
even in the case of an elector who is a literate and
can sign.
(v) A declaration shall also be obtained from the ASD
electors in the format given below:
... ... ..."
(Emphasis supplied)
The aforesaid clause clearly indicates that in addition to working
copies of electoral rolls after distribution of voters slips to the
voters, ASD list has to be prepared by the Booth Level Officers and
the said list is to be furnished to the Presiding Officer along with the
voters list to avoid bogus voting. It is at the time of poll to prevent
impersonation the special measures like ASD could be adopted. It is
for the election Commission to device the procedure in terms of the
hand book or guidelines or circular. This Court would not direct the
manner of conduct of elections to the Election Commission unless
the preparation and conduct is shown to be arbitrary, illegal or
contrary to the Act or the Rules, which I do not find in the case at
hand.
10. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition stands rejected.
(ii) The corrective measures taken by the
respondent/Commission in favour of the 1st
petitioner shall be taken to its logical conclusion and
not create an impression of deleting the name of the
very sitting MLA from the voters list of the
constituency from which he is elected.
(iii) The Commission shall act with care in all such cases
and not generate scope for any allegation.
Consequently, I.A.No.1 of 2023 also stands disposed.
Sd/-
JUDGE
bkp
CT:MJ
