Mohinder Singh Gill & ANR Vs. The Chief Election Commissioner, New Delhi & Ors [1977] INSC 227 (2 December 1977)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
BEG, M. HAMEEDULLAH (CJ) BHAGWATI, P.N.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION: 1978 AIR 851 1978 SCR (3) 272 1978 SCC (1) 405
CITATOR INFO:
R 1979 SC1725 (25) R 1979 SC1803 (7) R 1979 SC1918 (14) R 1980 SC 882 (7) R 1980 SC1362 (10A,50) R 1981 SC 136 (7,10) RF 1981 SC 547 (7) R 1981 SC 818 (19,22,28,33,34,39) RF 1981 SC 873 (65) RF 1982 SC1413 (38) E 1984 SC 921 (16,21) R 1985 SC1233 (25) RF 1985 SC1416 (100) R 1986 SC 111 (16) D 1987 SC1109 (26) RF 1988 SC 61 (6) RF 1988 SC 157 (8) F 1989 SC1038 (4) R 1990 SC1402 (23) RF 1991 SC1216 (7) RF 1992 SC2219 (139)
ACT:
Constitution of India, 1950-Arts. 324 and 329(b)-Scope of Counting of votes in many segments of the constituency completed-Before declaration of final result ballot papers and ballot boxes of some segments destroyed in, mob violence--Election Commission ordered repoll of the entire constituency--Election Commission, if competent to order repoll of entire constituency.
Article 226--Election Commission's order for fresh poll in entire constituency--If could be challenged in a writ petition.
Representation of the People Act, 1950-Ss. 80 and 100(1)(d)(iv)--Scope of.
Natural justice--Issue of notice to affected parties and opportunity to hear before passing an order under Art.
329(b)--If necessary--Notice, if should be given to the whole constituency.
Words and phrases--"Civil consequence"--Election "called in question" meaning of.
HEADNOTE:
Article 329(b) of the Constitution provides that notwithstanding anything in the Constitution no election to either House of Parliament or to the House, or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
Section 100(1)(d)(iv) of the Representation of the People Act, 1951 provides that if the High Court is of the opinion that the result of the election so far as it concerns a returned candidate has been materially affected by any noncompliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void.
The appellant and the third respondent were candidates for election in a Parliamentary constituency. The appellant alleged that when at the last hour of counting it appeared that he had all but won the election, at the instance of respondent no. 3 mob violence broke out and postal ballot papers and ballot boxes from certain Assembly segments, while being brought for counting, were destroyed and the Returning officer was forced to postpone the declaration of the result. The Returning Officer reported the happening by wireless to the Chief Election Commissioner. An officer of the Election Commission who was deputed to be an observer at the counting stage gave a written report to the Commission in addition to an oral report about the incidents which marred the last stages of the counting. The appellant met the Chief Election Commissioner and requested him to declare the result. Eventually, however, the Chief Election Commissioner issued a notification stating that the counting in the constituency was seriously disturbed by violence and that ballot papers of some of the assembly segments had been destroyed by violence, as a consequence of which it was not possible to complete the counting of votes in the constituency and declare the result with any degree of certainty. The notification further stated that taking all circumstances into account, the Commission was satisfied that the poll had been vitiated to such an extent as to affect the result of the election. In exercise of the powers under Art. 324 of the Constitution it cancelled the poll already held and ordered a re-poll in the entire constituency.
In a petition under Art. 226 of the Constitution the appellant alleged that the action of the Chief Election Commissioner in ordering re-poll in the whole constituency was arbitrary and violative of any vestige of fairness. The respondents in reply urged that the High Court had no Jurisdiction to entertain the writ petition in view of Art.
329(b) and that the Commission's action was well within its powers under Art. 324.
273 The High Court dismissed the writ petition holding that it had no jurisdiction to entertain the writ petition. Yet on merits it held that Art. 324 does not impose any limitation on the function contemplated under that article; that principles of natural justice were not specifically provided for in that article but were totally excluded while passing the impugned order and that even if the principles of natural justice were impliedly to be observed before passing the impugned order the appellant was heard not only before the issue of the notification but in any case after the notification.
In the repoll the appellant did not participate though his name appeared on the ballot and respondent no. 3 was declared elected.
On the question of application of principles of natural justice it was contended on behalf of the respondents that the tardy process of notice and hearing would thwart the conducting of elections with speed that unless civil consequences ensued, hearing was not necessary and that the right accrues to a candidate only when he is declared elected and lastly the decision of the Election Commission is only provisional and that it is he the election court which is the final authority on the subject.
HELD: The catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. [269 D] 1(a) Article 329(b) is a blanket ban on litigative challenge to electoral steps taken by the Election Commission for carrying forward the process of election to its culmination in the formal declaration of the result. [322 D] (b) The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. This exclusion of all other remedies includes constitutional remedies like Art. 226 because of the non-obstante clause in Art. 329(b). If what is impugned is an election the ban operates provided the proceeding "calls it in question" or puts it 'm issue : not otherwise. [289 E-F] (c)Part XV of the Constitution is a Code in itself, providing the entire groundwork for enacting the appropriate laws and setting up suitable machine for the conduct of elections. Articles 327 and 328 takecare of the set of laws and rules making provisions with respect to all matters relating to or in connection with elections. Election disputes are also to be provided for by laws made under Art.
327. 'Be Representation of the People Act, 1951 is a selfcontained enactment so far as elections are concerned.
Section 80 which speaks substantially the same language as Art. 329(b) provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part IV of the Act. The Act provides for only one remedy and that remedy being by an election petition to be presented after the election is over, there is no remedy provided at any of the intermediate stages. [292 C-D; F-G 293 B-C] Smt. Indira Gandhi v. Raj Narain [1976] 2 SCR 347, 504-505 referred to.
(d)The compendious expression "election" commences from the initial notification and culminates in the declaration of the return of a candidate. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Art.
329(b) and the Representation of the People Act, 1951 necessitates the reading of the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. [294 D-E] (e)No litigative enterprise in the High Court or other court should be allowed to hold up the on-going electoral process because the parliamentary representative for the constituency should be chosen promptly. Article 329 therefore covers "electoral matters". [294 F] (f)The plenary bar of Art. 329(b) rests on two principles : (1) the peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal Proceedings challenging the 274 steps and stages in between the commencement and the conclusion; and (2) the provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other forms, the right and remedy being creatures of statutes and controlled by the Constitution.
[295 H, 296 ] Durga Shankar Mehta [1955] 1 SCR 267 referred to.
(g)If the regular poll for some reasons has failed to reach the goal of choosing by plurality the returned candidates and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election.[296 E-F] (h)A writ petition challenging the cancellation coupled with repoll amounts to calling in question a step in 'election' and is, therefore, barred by Art. 329(b). [296 G] (i)Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project foolproof s. 100(1)(d)(iv) has been added to absolve everything left over. Section 100 is exhaustive of all grievances regarding an election. What is banned is not anything whatsoever ,done or directed by the Election Commissioner but everything he does or directs in furtherance of the election, not contrarywise. [297 B, C, D] (j)It is perfectly permissible for the Election Court to decide the question as one falling under s. 100(1)(d)(iv).
The Election Court has all the powers necessary to grant all or only any of the reliefs set out in s. 98 and to direct the Commissioner to take such ancillary steps as will render complete justice to the appellant. [319 C, E] (k)It is within the powers of the Election Court to direct a re-poll of particular polling stations to be conducted by the specialised agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots can be ordered In view of the wide ranging scope of implied powers of the Court, the appellant's claims are within the Courts powers to grant. [322 A-B] 2(a) Article 324 does not exalt the Election Commission into a law unto itself. The Article is wide enough to supplement the powers under the Act subject to the several conditions on its exercise. [300 A-B] (b)The Election Commissioner's functions are subject to the norms of fairness and he cannot act arbitrarily. The Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power has to be exercised in keeping with the guidelines of the rule of law without stultifying the Presidential notification or existing legislation. It operates in areas left unoccupied by legislation and the words "Superintendence, direction and control" as well as "conduct of all elections" are in the broadest terms.[299 A, B-C] (c)If imparting the right to be heard will paralyse the process, the law will exclude it. In any case it is untenable heresy to lockjaw the victim or act behind his back by invoking urgency, unless the clearest case of public injury flowing from the least delay is evident. The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect other's rights or liabilities the more necessary is the need to hear. [304 D, G-H, 305 B-C] (d)It is well-established that when a high functionary like the Commissioner is vested with wide powers, the law expects him to act fairly and legally. Discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused certainly the Court has power to strike down the act. [299 D-E] Virendra [1958] SCR 308 and Harishankar [1955] 1 1104 SCR referred to.
(e)Article 324 vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or legislative. _ [302 H] 275 (f)The dichotomy between administrative and quasi-judicial functions vis a vis the doctrine of natural justice is presumably obsolescent after Kraipak which marks the watershed in the application of natural justice to administrative proceedings. The rules of natural justice are rooted in all legal sys-tems, and are not any 'new theology. They are manifested in the twin principles of nemo index in sua causa and audi alteram partem. It has been pointed out that the aim of natural justice is to secure justice, or, to put it negatively to prevent miscarriage of justice. These rights can operate only in areas not covered by any law validly made; they do not supplant the law of the land but supplement it. The rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of per-sons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice has been contravened, the court has to decide whether the observation of that rule was necessary for a just decision on the facts of that case. Further, even if a power is given to a body without Specifying that rules of natural justice should be observed in exercising it, the nature of the power would call for its observance. [300 F-G, 301 B-D, 303-D] Kraipak [1970] 1 SCR 457, In re: H.K. (an infant) [1967] 2 Q.B. 617 and Ridge v. Baldwin [1964] AC 40 referred to.
(g)Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him. There might be exceptional cases where to decide a case exparte would be unfair and it would be the duty of the Tribunal to take appropriate steps to eliminate unfairness. Even so no doctrinaire approach is desirable but the court must be anxious to salvage the cardinal rule to the extent permissible in a given case. [307 D, E] 3(a) Civil consequences cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-peciiniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within its gravitational orbit. A democratic right, if denied inflicts civil consequences. Every Indian has a right to elect and he elected and this is a constitutional as distinguished from a common law right, and is entitled to cognizance by courts subject to statutory regulation. [308 F, 309 C, E] (b)A vested interest in the prescribed process is a processual right, actionable if breached. The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice. So natural justice cannot be stumped out on the score. In the region of public, law locus-standi and person aggrieved, right and interest have a broader import. [309 G, H] (c)In the instant case the Election Commission claims that a hearing had. been given but the appellant retorts that all that he had was vacuous meeting where nothing was disclosed.
But in law degrees of difference may at a, substantial stage spell difference in kind or dimensions. [309 H, 310 A] (d)The case of Subhash Chander in which this Court held that it was not necessary to give an opportunity to the candidates for an examination as to why the whole examination should not be cancelled because the examination was vitiated by adoption of unfair means on a mass scale.
But the ratio of that decision has no application to this case. The candidates in an election who have acquired a very vital stake in the polling going on properly stand on a different footing from the electorate in general. The interest of the electorate is too remote and recondite, too feeble and attenuate to be taken note of in a cancellation proceeding. What really marks the difference is the diffusion and dilution. The candidates in an election are really the spearheads, the combatants. They have set themselves up as nominated candidates organised the campaign and galvanised the electorate for the polling and counting.
Their interest and claim are not indifferent but immediate.
They are the 5-1114SCI 77 276 parties in the electoral dispute. In this sense they stand on a better footing and cannot be deniedthe right to be heard. In Ghanshyamdas Gupta in which the examinationresult of three candidates was cancelled this Court imported principles ofnatural justice. This case may have a parallel in electoral situations. if the Election Commission cancelled the poll it was because it was satsfied that the procedure adopted had gone awry on a wholesale basis.
Therefore, it all depends on the circumstances and is incapable of generalisation. In a situation like the present it is a far cry from natural justice to argue that the whole constituency must be given a hearing.
[310 F, H, 311 G-H, 312 A, D, E,] Col. Singhi [1971] 1 SCR 791, Binapani [1967] 2 SCR 625, Ram Gopal [1970] 1 SCR 472; Subhash Chander Singh [1970] 3 SCR 963 field inapplicable.
Ghanshyam Das Gupta [1962] Supp. 3 SCR 36 followed.
4(a) Whether the action of the Election Commission in ordering repoll beyond certain segments of the constituency where the ballot boxes were destroyed was really necessary or not is for the Election Court to assess when judging whether the impugned order was arbitrary, whimsical or was arrived at by extraneous considerations. [316 H, 317 A-B] (b) Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing. If two views are possible, the Court cannot interpose its view. If no view is possible the Court must strike down. [317 B] (c)The philosophy behind natural justice is participatory justice in the process of democratic rule of law. In the vital area of election where people's faith in the, democratic process is hypersensitive it is realism to keep alive audi alteram even in emergencies. Hearing need not be an elaborate ritual. In situations of quick despatch, it may be minimal, even formal. Fair hearing is a postulate of decision making, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. [316 D-F] (d)The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise this functional obligation must be read into it. [316 F] Observations (a)When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. [283 B-C] (b)An obiter binds none, not even the author and obliteration of findings rendered in supererogation must allay the appellant's apprehensions. The High Court should have abstained from its generosity. [284 C] (Per Goswami and Shinghal, JJ. concurring) (1) The appellants' argument that since Art. 324(6) refers to "functions" and not "powers", there can be no question of the Election Commission exerrising any power under that Article, is without force. The term "functions" includes powers as well as duties. It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with functions. [330 D-E] 2(a) It is well-established that an express statutory grant of power or the imposition of a definite duty carriewith it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. [331 EF] 277 (b)In a democratic set up power has to be exercised in accordance with law. Since the conduct of all elections is vested under Art. 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Election Commission, in the infinite variety of situations that may emerge from time to time. Yet, every contingency could not be foreseen and provided for with precision. The Commission may be required to cope with some situation, which may not be provided for in the enacted laws and rules. The Election Commission, which is a high-powered and independent body, cannot exercise its functions or perform its duties unless it has an amplitude of powers. Where a law is absent, the Commission is not to look to any external authority for the grant of powers to deal with the situation but must exercise its power independently and see that the election process is completed in a free and fair manner. Moreover, the power has to be exercised with promptitude.[330 G, H, 331 A-B, CE, G] N.P. Ponnuswami v. Returning Officer, Nanakkal Constituency and Others, [1952] SCR 218 followed.
(c) Section 19A of the Act, in terms, refers to the functions not only under the Representation of the People Act, 1950 and representation of the People Act, 1951 or the rules made thereunder, but also under the Constitution.
Apart from the several functions envisaged by the two Acts and the rules, the Commission is entitled to exercise certain powers under Art. 324 itself on its own right in an area not covered by the Acts and rules. [332 A-B] (d)Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in an authority if it is there either under the Act or the rules or under Art. 324(1). [331 G] 3(a) The contention that the Election Commission had no power to make the impugned order for a repoll in the entire constituency. is without substance. [332 H] (b) Both under s.58 and under s. 64A the poll that was taken on a particular polling station can be voided and a fresh poll can be ordered, by the Commission. These sections cannot be said to be exhaustive. It cannot be said that they rule out the making of an order to deal with a similar situation if it arises in several polling stations or sometimes as a general feature in a substantially large area. Although these two sections mention "a polling station" or "a place fixed for the poll" it may, where necessary embrace multiple polling stations. [332 G-H] (c)The Election Commission is competent, in an appropriate case, to order repoll of an entire constituency. If it does that it will be an exercise of power within the ambit of its functions under Art. 324. Although in cxercise of powers under Art. 324(1) the Election Commission cannot do something impinging upon the power of the President in making a notification under s. 14 of the Act, after the notification has been issued by the President, the entire electoral process is in the charge of the Commission. The Commission is exclusively responsible for the conduct of the election without reference to any outside agency. There are no limitations under Art. 324(1).
J333 C-E] 4.The writ petition is not maintainable. Since the election covers the entireprocess from the issue of the notification under s. 14 to the declaration of theresult under s.66 of the Act, when a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order is passed as an integral part of the electoral process. The impugned order has been passed in exercise of the power under Art. 324(1) and s. 153 of the Act. Such an order cannot be questioned except by an election petition under the Act. [333 G-H, 334 A] 5(a) There is no foundation for a grievance that the appellants will be without any remedy, if their writ application is dismissed. If during the process of election at an intermediate or final stage. the entire poll has been wrongly cancelled and a fresh poll has been wrongly ordered, that is a matter which can be agitated after the declaration of the result on the basis of the 278 fresh poll, by questioning the election in the appropriate, forum. The appellants will not be without a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll. The Court will be able to entertain their objection with regard to the order of the Election Commission countermanding the earlier poll and the whole matter will be at large. [334 B-F] (b)The Election Commission has passed the order professedly under Art. 324 and s. 153 of the Act. If there is any illegality in the exercise of the power under this Article or under any provision of the Act, there is no reason why s. 100(1)(d)(iv) should not be attracted. If exercise of power is competent either under the provisions of the Constitution or under any other provision of law, any infirmity in the exercise of that power is on account of noncompliance with the provisions of law, since law demands exercise, of power by its repository in a proper, regular, fair and reasonable manner. [335 B-D] Durga Shankar Mehra v. Thakur Raghuraj Singh and others, [1955] 1 SCR 267 referred to.
(c)The writ petition is barred under Art. 329 (b) of the Constitution and the High Court has rightly dismissed it on that ground. Both Art. 329(b) and s. 80 of the Act provide that no election shall be called in question except by an election petition. All reliefs claimed by the appellant in the writ petition can be claimed in the election petition and the High Court is competent to give all appropriate reliefs to do complete justice between the parties. It will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. [335 D-G] 6.It will not be correct for this Court, in this appeal, to pronounce its judgment finally on merits either on law or on facts. The pre-eminent position conferred by the Constitution on this Court under Article 141 of the Constitution does not envisage that this Court should lay down the law, in an appeal like this, on any matter which is required to be decided by' the election court on a full trial of the election petition, without the benefit of the opinion of the Punjab and Haryana High Court which has the exclusive jurisdiction under s. 80A of the Act to try the election petition. [335 H, 363 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1297 of 1977.
Appeal by Special Leave from the Judgment and Order dated 25th of April 1977 of the Delhi High Court in Civil Writ Petition No. 245 of 1977.
P. P. Rao, A. K. Ganguli and Ashwani Kumar for the appellant.
Soli J. Sorabjee, Additional Solicitor General, E. C. Agarwala, B. N. Kripal and Girish Chandra for Respondent No. 1.
M.N. Phadke, S. S. Bindra, Hardev Singh & R. S. Sodhi for Respondent No. 3.
The followiug Judgments of the Court were delivered by KRISHNA IYER, J.-What troubles us in this appeal, coming before a Bench of 5 Judges on a reference under Article 145(3) of the Constitution, is not the profusion of controversial facts nor the thorny bunch of lesser law, but the possible confusion about a few constitutional fundamentals, finer administrative normae and jurisdictional limitations bearing upon elections. What are those fundamentals and limitations? We will state them, after mentioning briefly what the writ petition, from which this appeal, by special leave, has arisen, is about, 279 The basics Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston ChurchiU vivified in matchless words :
"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point." If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you.
The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'.
Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Dizreeli:
"I repeat that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist." (Vivien Grey, BK. VI. Ch. 7) Aside from these is yet another, bearings on the, play of natural justice, its nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government-crystallised clearly in our jurisprudence by a catena of cases here and elsewhere.
The conspectus of facts The historic elections to Parliament, recently held across the ,country, included a constituency in Punjab called 13Ferozepore Parliamentary constituency. It consisted of nine assembly segments and the polling took place on March 16, 1977. According to the calendar notified by the Election Commission, the counting took place in respect of five assembly segments on March 20, 1977 and the, remaining four on the next day. The appellant and the third respondent were the principal contestants. It is stated by the appellant that when counting in all the assembly segments was completed at the respective segment headquarters, copies of the results were given to the candidates and the local tally telephonically communicated to the returning officer (respondent 2). According to the scheme the postal ballots are to arrive at the returning officer's headquarters at Ferozepore where they are to be counted. The final tally is made when the ballot boxes 280 and the returns duly reach the Ferozepore headquarters front the various segment headquarters. The poll proceeded as ordained, almost to the very last stages, but the completion of the counting at the constituency headquarters in Ferozepore was aborted at the final hour as the postal ballots were being counted-thanks to mob violence allegedly mobilised at the instance of the third respondent., The appellant's version is that he had all but won on the total count by a margin of nearly 2000 votes when the panicked opposite party havoced and halted the consummation by muscle tactics. The postal ballot papers were destroyed. The, ballot boxes from the Fazilka segment were also done away with en route, and the returning officer was terrified into postponing the declaration of the result. On account of an earlier complaint that the returning officer was a relation of the appellant, the Election Commission (hereinafter referred to as Commission) had: deputed an officer of the Commission-Shri IKK Menon-as observer of the poll process in the constituency. He was present as the returning officer who under compulsion had postponed the concluding 3 p.m.
onwards. Thus the returning officer had the company of the observer with him during the crucial stages and controversial eruptions in the afternoon of March 21.
Shortly after sunset, presumably, the returning officer who under compulsion had postponed the concluding part of the election, reported the happenings by wireless massage to the Election Commission. The observer also reached Delhi and gave a written account and perhaps an oral narration of the untoward events which marred what would otherwise have been a smooth finish Lo, the election.
Disturbed by the disruption of the declaratory part of the election, the appellant, along with a former Minister of the State, met the Chief Election Commissioner (i.e. the Commission) at about 10.30 A.M. on March 22nd, with the request that he should direct the returning officer to declare the result of the election. Later in the day, the Commission issued an order which has been characterised by the appellant as a law-less and precedent less cancellation, of the whole poll, acting by hasty hunch and without rational appraisal of facts. By the 22nd of March, when the Election Commission made the impugned order, the bulk of the electoral results in the country bad beamed in. The gravamen of the grievance of the appellant is that while he had, in all probability, won the poll, he has been deprived of this valuable and hard-won victory by the arbitrary action of the Commission going contrary to fair play and in negation of the basic canons of natural justice. Of course the Commission did not stop with the cancellation but followed it up a few days later with a direction to hold a fresh poll for the whole constituency, involving all the nine segments, although there were no complaints about the polling in any of the constituencies and the ballot papers of eight constituencies were available intact with the returning officer and only Fazilka segment ballot papers were destroyed or demanded on the way, (plus the postal ballots). It must also, be mentioned here that a demand was made, according to the version, of the third respondent, for recount in one segment which was,, 281 unreasonably, turned down. The observer, in his report to the Election Commission, also mentioned that in two polling stations divergent practices were adopted in regard to testing valid and invalid votes. To be more pracise, Shri IKK Menon mentioned' in his report that at polling station no. 8, the presiding officer's seal on the tag as well as the paper seal of one box was broken. But the ballot papers contained in that box were below 300 and would not have affected the result in the normal course. In another case in Jalalabad assembly segment, the assistant returning officer had rejected a number of ballot papers of a polling station on the score that they were not signed by the presiding officer. In yet another case it was reported that the ballot papers were neither signed nor stamped but were accepted by the assistant returning officer as valid, although the factum was not varified by Shri Menon with the assistant returning officer. Shri Menon, in his report, seems to have broadly authenticated the story of the mob creating a tense situation leading to the military being summoned. According to him only the ballot papers of Fazilka assembly segment were destroyed, not of the. other segments. Even regarding Fazilka, the result-sheet had arrived. So, far as Zira assembly segment was concerned, some documents (not the, ballot papers) had been snatched away by hooligans. The observer had asked the returning officer to send a detailed report over and above the wireless message. That report, dated March 21, reached the Commission on March 23, but, without waiting for the, report we need not probe the reasons for the hurry-the Commission issued the order cancelling the poll. The Chief Election Commissioner has filed a laconic affidavit leaving to the Secretary of the Commission to go into the details of the facts, although the Chief Election Commissioner must himself have had them within his personal ken. This aspect also need not be examined by us and indeed cannot be, for reasons which we will presently set out.
Be that as it may, the Chief Election Commissioner admitted in his affidavit that the appellant met him in his office on the morning of March 22, 1977 with the request that the returning officer be directed to declare the result. He agreed to consider and told him off,, and eventually passed an order as mentioned above. The then Chief Election Commissioner has mentioned in his affidavit that the observer Shri Menon had apprised him of "the various incidents and developments regarding the counting of votes in the constituency" and also had submitted a written report. He has also admitted the receipt of the wireless message, of the returning officer. He concludes his affidavits 'that after taking all these circumstances and information including the oral representation of the 1st petitioner into account on "2nd Much, 1977 itself I passed the order cancelling the poll in the said Parliamentary constituency. In my view this was the only proper course to adopt in the circumstances of the case and with a view to ensuring fair and free elections, particularly when even a recount bad been rendered impossible by reason of the destruction of ballot papers.' The order of the Election Commission, resulting in the demolition of the poll already held, may be read at this stage.
282 "ELECTION COMMISSION OF INDIA New Delhi Dated 22 March, 1977 Chaitra 1, 1899 (SAKA) NOTIFICATION S.O.-Whereas the Election Commission has received reports from the Returning Officer of 13-Ferozepore Parliamentary Constituency that the counting on 21 March, 1977 was seriously disturbed by violence; that the ballot papers of some of the assembly segments of the Parliamentary constituency have been destroyed by violence; that as a consequence it is not possible to complete the counting of the votes in the constituency and the declaration of the result cannot be made with any degree of certainty:
And whereas the Commission is satisfied that taking all circumstances into account, the poll in the constituency has been vitiated to such an extent as to effect the result of the election;
Now, therefore, the Commission, in exercise of the powers vested in it under Article 324 of the Constitution, Section 153 of the, Representation of the People Act, 1951 and all other powers enabling it so to do, cancels the poll already taken in the constituency and extends the time for the completion of the election up to 30 April, 1977 by amending its notification No. 464/77, dated 25 February, 1977 in respect of the above election as follows :In clause (d) of item (i) of the said notification, relating to the completion of election(a) in the existing item (i), after the words "State of Jammu and Kashmir", the words "and 13-Ferozepur Parliamentary constituency in the State of Punjab" shall be inserted; and (b) The existing item (ii) shall be renumbered as item (iii), and before the item (iii) as so renumbered, the following item shall be inserted, namely :"(iii) 30 April 1977 (Saturday) as the date before which the election shall be completed in "13Ferozepur Parliamentary constituency in the State of Punjab." [464/77] By order Sd/A. N. Sen, Secretary The Commission declined to reconsider his decision when the appellant pleaded for it. Shocked by the liquidation of the entire poll, the latter moved the High Court under Article 226 and sought to void the order as without jurisdiction and otherwise arbitrary and violative of any vestige of fairness. He was met by the objection, successfully urged by the respondents 1 and 3, that the High Court 283 -had no jurisdiction in view of Article 329(b) of the Constitution and the Commission had acted within its wide power under Article 324 and fairly. Holding that it had no jurisdiction to entertain the writ petition. the High Court never-the-less ]proceeded to enter verdicts on.the merits of all the issues virtually exercising even the entire ,jurisdiction which exclusively belonged to the Election Tribunal. The doubly damnified appellant has come up to this Court in appeal by special leave.
Meanwhile, pursuant to the, Commission's direction, a repoll was held. Although the appellant's name lingered on the ballot he did not participate in the re-poll and respondent 3 won by an easy plurality although numerically those who voted were less than half of the, previous poll.
Of course, if the Commission's order for re-poll fails in law, the second electoral exercise has to be dismissed as a stultifying futility. Two things fall to be mentioned at this stage, but, in passing, it may be stated that the third respondent had complained to the Chief Election Commissioner that the assistant returning officer of Fazilka segment had declined the request for recount unreasonably and that an order for re-poll of the Fazilka assembly part should be made 'after giving personal hearing'. Meanwhile, runs the request of the third respondents 'direct the returning officer to withhold declaration of result of 13 Ferozepore parliament constituency'. We do not stop to make inference from this document but refer to it as a material factor which may be considered by the tribunal which, eventually, has to decide, the factual controversy.
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in My mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older:
A Caveat.
We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce upon the factual complex or the (1) A.I.T. 1952 S.C. 16.
284 lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo. in Article329(b).
We should not,except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contradicting its own holding that it had no jurisdiction even to entertain the petition. The learned Judges observed :
"It is true that the submission at serial No. 3 above in fact relates to the preliminary objection urged on behalf of respondents 1 and 3 and should normally have been dealt with & St but since the contentions of the parties on submission No. 1 are inter-mixed with the interpretation of Article 329(b) of the Constitution, we thought it proper to deal with them in the order in which they have been made." This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench of the High Court, thereby generating apprehensions in the appellant's mind that not only is his petition not maintainable but he has been damned by damaging findings on the merits. We make it unmistakably plain that the election court hearing the dispute on the same subject under section 98 of the R.P. Act, 1951 (for short, the Act) shall not be moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition. An orbiter binds none, not even the author, and obliteration of findings rendered in supererogation must alley the appellant's apprehensions. This Court is in a better position than the High Court, being competent, under certain circumstances, to declare the law by virtue of its position under Article 141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly. The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later.
Operation Election Before we proceed further, we had better have a full glimpse of tie, constitutional scheme of elections in our system and the legislative follow-up regulating the process of election. Shri Justice Mathew in lndira Nehru Gandhi(1) summarised skeletal fashion, this scheme (1) [1976] 2 S.C.R. 347 285 following the pattern adopted by Fazal Ali, J. in Ponnuswami. 1952 SCR 218. He explained :
"The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2). there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the third requisite (see N. P. Ponnuswami v. Returning Officer, Nanmakkal Constituency & Ors. 1952 SCR 218, 229). Article 329 (b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by law, prescribe. A law relating to election should contain the requisite qualifications for candidates, the method of voting, definition of corrupt practices by the candidates and their election agents, the forum for adjudication of election disputes and other cognate matters. It is on the basis of this law that the question determined by the authority to which the petition is presented. And, when a dispute is raised as regards the validity of the election of a particular candidate, the authority entrusted with the task of resolving the dispute must necessarily exercise, a judicial function, for, the process consists of ascertaining the facts relating to the election and applying the law to the facts so ascertained." A short description of the legislative project in some more detail may be pertinent, especially touching on the polling process in the booths and the transmission of ballot boxes from the polling stations to the returning officer's ultimate counting station and the crucial prescriptions regarding annuoncements and recounts and declarations. We do not pronounce upon the issues regarding the stage for and right of recount. the validity of votes or other factual or legal disputes since they fall for decision by the Election Court where the appellant has filed an election petition by way of abundant caution.
A free and fair election based on universal adult franchise is the basic; the regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. Part XV of the Constitution plus the Representation of the People Act, 1950 (for short, the 1950 Act) and the Representation of the People Act, 1951 (for short, the Act), Rules framed there under, instructions issued and exercises prescribed, constitute the package of 286 electoral law governing the parliamentary and assembly elections in the country. The super-authority is the Election Commission, the kingpin is the returning officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions.
The scheme is this. The President of India (Under Section 14) ignites the general elections across the nation by calling upon the People, divided into several constituencies and registered in the electoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise involving a plethora of details and variety of activities, and starts off with the notification of the time table for the, several stages of the election (Section 30). The assembly line operations then begin. An administrative machinery and technology to execute these enormous and diverse jobs is fabricated by the Act, creating officers, powers and duties, delegation of functions and location of polling stations.
The precise exercise following upon the calendar for the poll, commencing from presentation of nomination papers, polling drill and telling of votes,, culminating in the declaration and report of results are covered by specific prescriptions in the Act and the rules. The secrecy of the ballot, the authenticity of the voting paper and its later identifiability with reference to particular polling stations, have been thoughtfully provided for. Myriad other matters necessary for smooth elections have been taken care of by several provisions of the Act.
The wide canvas so spread need not engage us sensitively, since such diffusion may weaken concentration on the few essential points concerned in this case. One such aspect relates to repoll. Adjournment of the poll at any polling station in certain emergencies is sanctioned by section 57 and fresh poll in specified vitiating contingencies is authorised by section 58. The rules run into more particulars. After the votes are cast comes their counting.
Since the simple plurality of votes clinches the verdict, as the critical moment approaches, the situation is apt to hot up, disturbances erupt and destruction of ballots disrupt.
If disturbance or destruction demolishes the prospect of counting the total votes, the number secured by each candidate and the ascertainment of the will of the majority, a re-poll confined to disrupted polling stations is provided for. Section 64A chalks out the conditions for and course of such repoll, spells out the power, and repository thereof and provides for kindred matters. At this stage we may make a closer study of the provisions regarding repoll systematically and stagewise arranged in the Act. It is not the case of either side that a total repoll of an entire constituency is specificated in the sections or the rules.
Reliance is placed for this wider power upon Article 324 of the Constitution-by the Commission in its order, by the first respondent in his affidavit, by the learned Additional Solicitor General in his argument and by the third respondent through his counsel. We may therefore have to study the scheme of. article 324 and the provisions of the, Act together since they are integral to each other. Indeed, if we may mix metaphors for emphasis, the legislation made pursuant to Article 327 and that part of the Constitution specially devoted to elections must be 287 viewed as one whole picture, must be heard as an orchestrated piece and must be interpreted as one package of provisions regulating perhaps the most stressful and strategic aspect of democracy-in-action so dear to the nation and so essential for its survival.
The lis and the issues Two prefatory points need to be mentioned as some reference was made to them at the bar. Firstly, an election dispute is not like an ordinary lis between private parties. The entire electorate is vicariously, not inertly, before the court. (See 1959 SCR 611, 616, 622). We may, perhaps, call this species of cases collective litigation where judicial activism assures justice to the constituency, guardians the purity of the system and decides the rights of the candidates. In this class of cases, where the common law tradition is partly departed from, the danger that the active judge may become, to some extent, the prisoner of his own prejudices exists; and so, notwithstanding his powers of initiative, the parties' role in the formulation of the issues and in the presentation of evidence and argument should be substantially maintained andcare has to be taken that the circle does not become a vicious one, as pointed out by J.A. Jolowicz in. 'Public Interest Parties and the Active Role of the Judge in Civil Litigation' (ss. p. 276).
Therefore, it is essential that courts, adjudicating upon election controversies, must play a verily active role, conscious all the time that every decision rendered by the Judge transcends private rights and defends the constituency and the democracy of the country.
Secondly, the pregnant problem of power and its responsible exercise is one of the perennial riddles of many a modern constitutional order. Similarly, the periodical process of free and fair elections. uninfluenced by the caprice, cowardices or partisanship of hierarchical authority holding it and unintimidated by the threat, tantrum or vandalism of strong-arm tactics, exacts the embarrassing price of vigilant monitoring. Democracy digs its grave where passions, tensions and violence, on an overpowering spree, upset results of peaceful polls, and the law of elections is guilty of sharp practice if it hastens to legitimate the fruits of lawlessness. The judicial branch has a sensitive responsibility her to call to order lawless behaviour.
Forensic non-action may boomerang, for the court and the law are functionally the bodyguards of the People against bumptious power, official or other.
We now enter the constitutional zone relating to the controversy in this case. Although both sides have formulated the plural problems with some divergence, we may compress them into three cardinal questions :
1.Is Art. 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer ? Is Art. 226 also covered by this embargo and. if so, is s. 100 broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an 288 election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief ? 2.Can the Election Commission, clothed with the comprehensive functions under Article 324 of the Constitution, cancel the whole poll of a constituency after it has been held, but before the formal declaration of the result has been made, and direct a fresh poll without reference to the guidelines under ss. 58 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary power exists, is it exercisable on the basis of his inscrutable 'subjective satisfaction' or only on a reviewable objective assessment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and directions of a fresh poll not merely of particular polling stations but of the total constituency ? 3.Assuming a constitutionally vested capacity tinder Art. 324 to direct re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first occasion ? Or, is the Election Commission immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his action even before the Election Court ? The juridical aspect of these triple questions alone can attract judicial jurisdiction. However. even if we confine ourselves to legal problematics, eschewing the political overtones, the words of Justice Holmes will haunt the Court : "We are quiet here, but it is the quiet of a storm centre." The judicature must, however. be illumined in its approach by a legal sociological guidelines and a principled-pragmatic insight in resolving, with jural tool and techniques s ,ind techniques. 'the various crises of human affairs' as they reach the forensic stage and seek disputeresolution in terms of the rule of law. Justice Cordozo felicitously set the perspective "The great generalities of the Constitution have at content and significance that vary from age to age." Chief Justice Hidayatullah perceptively articulated the insight "One must, of course, take note of the synthesized authoritative content or the moral meaning of the underlying' principle of the, prescriptions of law, but not ignored the historic revolution of the, law itself or how it was connected in its changing moods with social requirements of a particular age.
(Judicial Methods, B. N. Rau Memorial Lecture) The old articles of the supreme lex meet new challenges of life, the old legal pillars suffer new stresses. So we have to adopt the law and develop its latent capabilities if novel situations, as here, are encountered. That is why in the reasoning we have adopted and the 289 perspective we have projected, not literal nor lexical but liberal and visional is our interpretation of the Articles of the Constitution and the provisions of the Act. Lord Denning's words are instructive "Law does not stand still. It moves continually. Once; this is recongnised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere, mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect-thinking of the structure as a whole building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends." The invulnerable barrier of Art.329 (b).
Right at the forefront stands in the way of the appellant's progress the broad-spectrum ban of Article 329(b) which, it is claimed for the respondents, is imperative and goaloriented. Is this Great Wall of China, set up as a preliminary bar, so impregnable that it cannot be by passed even by Art. 226 ? That, in a sense, is the key question that governs the fate of this appeal. Shri P. P. Rao for the appellant contended that, however, wide Art. 329(b) may be, it does not debar proceedings challenging, not the steps promoting election but dismantling it, taken by the Commission without the backing of legality. He also urged that his client, who had been nearly successful in the poll and had been deprived of it by an illegal cancellation by the Commission, would be left in the cold without any remedy since the challenge to cancellation of the completed poll in the entire constituency was not covered by s. 1 00 of the Act. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Art. 329(b) and s. 100 and search for a solution. The problem may seem prickly but an imaginative application of principles and liberal interpretation of the constitution and the Act will avoid anomalies and assure justice. if we may anticipate our view which will presently be explained, section 100 (1 ) (d) (iv) of the Act will take care of the, situation present here, being broad enough, as a residual provision, to accommodate, in expression 'non-compliance', every excess, transgression, breach or omission. And the spen of the, ban under Art. 329(b) is measured by the sweep of s. 100 of the Act.
We have to proceed heuristically now. Article 329(b) reads Notwithstanding anything in this Constitution "(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be Provided for by or under any law made by the appropriate Legislature." Let us break down the prohibitory provision into its components. The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition.
And this exclusion of all other remedies 290 includes constitutional remedies like Art. 226 because of the nonobstante clause. If what is impugned is an election the ban operates provided the proceeding 'calls it in question' or puts it in issue: not otherwise. What is the high policy animating this inhibition'? Is there any interpretative alternative which will obviate irreparable injury and permit legal contests in between? How does S. 100 (1) (d) (iv) of the Act integrate into the scheme? Let us read s. 100 here :
"Subject to the provisions of sub-section (2) if the High Court is of opinionx x x (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affectedx x x (iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void.
The companion provision, viz., s. 98 also may be extracted at this,star, :
"At the conclusion of the trial of an election petition the High Court shall make an order(a) dismissing the election petition; or (b) declaring the election all or any of the returned candidates to be void; or (e) declaring the election of all or any of the returned candidates to be vo
