Lndrajit Barua & Ors Vs. Election
Commission of India & Ors [1985] INSC 213 (30 September 1985)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
(CJ) SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA (J) KHALID, V. (J)
CITATION: 1986 AIR 103 1985 SCR Supl. (3) 225
1985 SCC (4) 722 1985 SCALE (2)678
ACT:
Constitutlon of India , 1950 - Article 226 -
Writ Petition challenging holding of elections - Whether maintainable -
Election Petition - Only remedy.
Article 329 (b) - Electoral rolls -
preparation and Publication of - Whether part of 'election process.'
Representation of the People Act, 1951, ss. 100 and 21 (1) and Registration of
Electors Rules 1960 - Electoral rolls Preparation and Revision of - Whether
part of 'election process' - Challenge to election of a candidate on the ground
of defective elector rolls - Maintainability of.
HEADNOTE:
General Election to the Assam Legislative
Assembly was notified to be held in February 1983. The petitioners filed writ
petitions in the High Court contending that elections should not be held in the
State on the basis of defective electoral rolls prepared in 1979 and to defer
holding of the elections on account of the prevailing disturbed situation in
the state. An interim order for stay of the elections was also sought. The High
Court did not grant interim stay of the elections though it entertained the
writ petitions. The elections were held and the results were duly notified.
Writ petitions were thereafter filed in the
High Court challenging the holding of the elections on the basis of the
defective electoral rolls and also questioning the validity of all the
elections to the Legislative Assembly and an order was sought for dissolution
of the House.
At the instance of the Election Commission
the aforesaid cases were transferred to the Supreme Court. It was contended on
behalf of the petitioners that the holding of the elections on the basis of the
electoral rolls of 1979 was not valid because:(1) the electoral rolls were not
revised before the 226 elections as required by the provisions of s. 21
sub-s.2(a) of the Representation of the People Act, 1950; and (2) that the
Election Commission had by a Press note dated Sept. 18, 1979 erroneously
directed the electoral authority in charge of the revision of electoral rolls
not to delete the name of any person on the ground of lack of qualification of
citizenship. It was further contended that the ban of Article 329(b) does not
stand in the way of maintainability of the writ petitions as the petitioners
were challenging the impugned elections as a whole and not any individual
election, and that the electoral rolls should be revised before the holding of
elections as required by s. 21(2)(9) of the Act.
Dismissing all the cases, ^
HELD: l(i) The writ petitions under Art.226
challenging the election to the State Legislature are not maintainable and
election petitions under s. 81 of the Representation of the People Act 1951
have to be filed in the High Court. [233 D] (ii) Article 329(b) of the
Constitution bars any challenge to elections by a writ petition under Art. 226
as also on the ground that the electoral rolls on the basis of which elections
were held were invalid. An election can be challenged only by filing of an
election petition in the manner prescribed by the Representation of the People
Act, 1951. In the Act, there is no concept of elections as a whole. What the
Act contemplates is elections from each constituency and it is that election
which is liable to be challenged by filing of an election petition. The
proceedings under the Act are quite strict, and clear provisions have been made
as to how an election petition has to be filed and who should be the parties to
such election petition. It nay be that there is a common ground which may
vitiate the elections from all the constituencies, but even so it is the
election from each constituency which has to be challenged though the ground of
challenge may be identical.
Even where in form the challenge is to the
elections as a whole, in effect and substance what is challenged is election
from each constituency. Article 329(b) must,therefore, be held to be attracted
in the instant case.
[230 G-H;232 B; 231 B-D] Jagan Nath v.
Jaswant Singh & Ors., [1954] S.C.R. 892, Hari Vishnu Kamath v. Syed Ahmed
Ishaq & Ors 1955] S.C.R.
1104 at 1111 and Durga Shankar Mehta v.
Thakur Raghurai Singh & Ors., [1955] S.C.R.267, relied upon.
227 (iii) Once the final electoral rolls are
published and elections are held on the basis of such electoral rolls, it is
not open to anyone to challenge the election from any constituency or
constituencies on the ground that the electoral rolls were defective. That is
not a ground available for challenging an election under s. 100 of the
Representation of People Act, 1951. The finality of the electoral rolls cannot
be assailed in a proceeding challenging the validity of an election held on the
basis of such electoral rolls. [231 E-F] Kabul Singh v. Kundan Singh, [1970] 1
S.C.R. 854, relied upon.
In the instant case, it is undoubtedly true
that the electoral rolls were not revised before the elections were held, but
the Election Commission dispensed with the revision of the electoral rolls by
an order dated January 7, 1983 made under s. 21,sub-s. (2) and this order has
not been challenged in any of the writ petitions. Hence the impugned elections
cannot be challenged on the ground that they were without revision of the
electoral rolls. [230 C-E] 2(i) Part III of the 1950 Act makes provision for
electoral rolls for Assembly Constituencies. Section 21 deals with preparation
and revision of electoral rolls. The proviso to s. 21(2)(b) makes the position
clear beyond doubt that if for some reason an electoral roll is not revised as
required by sub-s. (2), the unrevised roll is not affected in any way and
continues to be the electoral roll holding the field. [235 B-C; 236 A] In the
instant case, it is clear that the Election Commission did not give directions
contrary to the requirements of s. 16 of the Act and the revision of the 1979
electoral rolls could not be undertaken for reasons beyond the control of the
Election Commission. Moreover, there was no dispute to the electoral rolls of
1977 nor was any challenge advanced against the election of 1978 to the State
Legislature held on the basis of such rolls.
Admittedly, the 1979 rolls were the outcome
of intensive revision of the rolls of 1977. That being the position and in view
of the proviso to sub-s. (2) of 8. 21, the electoral rolls of 1979 were validly
in existence and remained effective even though the process contemplated in
sub-s. (2) for revision had not either been undertaken or completed.
The electoral rolls of 1979 must, therefore
be regarded as not suffering from any legal infirmity though even if the
electoral rolls of 1979 were 228 invalid, that would not affect the validity of
the impugned elections nor would a writ petition under Art. 226 of the
Constitution be maintainable for challenging the impugned election.[237 E-H;
237 C-D] 2 (11) The preparation of electoral rolls is not a process of
election. In a suitable case challenge to the electoral rolls for not complying
with the law may be entertained. But the election of a candidate is not open to
challenge on the score of the electoral roll being defective. [239 C-E] N.P.
Ponnuswami v. Returning Officer, Namkkal Constituency Ors. [1952] S.C.R. 218,
referred to.
Lakshmi Charan Sen & Ors v. A.K.M Hassan
Uzzaman & Ors.C.As. 739-741/82 decided on 8.5.85, relied upon.
3. The Election Commission is directed to
carry out revision of the electoral rolls in accordance with the procedure
prescribed in the Representation of People Act 1950 and the Electors
Registration Rules 1960. [240 G-H]
ORIGINAL JURISDICTION: Transferred Case Nos.
364 to 382 of 1984.
(Under Article 139A of the Constitution of
India.) V.M. Tarkunde, P.G. Barua, S.N. Medhi, Shanti Bhushan, K.K. Venugopal,
V.M. Tarkunde Soli J. Sorabji, Harishikesh Roy, Mrs. & Mr. Karanjawala, K.
Pablay, Swaraj Kaushal, E.C.
Vidyasagar,Sushma Swaraj, N.M. Ghatate, S.V.
Deshpande, Lira Goswami, Mrs. R. Swamy, C.S. Vaidyanathan, P. Choudhary, P.G.
Barua, Miss Lakshmi Anand Kumar and Ms. N. Rama Kumaran for the Petitioners.
K. Parasaran, Attorney General, K.G. Bhagat,
Additional Solicitor General, A.K. Sen, F.S. Nariman, P.R. Mridul, S.N.
Bhuyan, Advocate General Assam, K. Swamy, Ms.
A. Subhashini, S.K. Nandy, M.Z. Ahmed and Kath Hazarika for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. At the conclusion of the hearing, in view of the urgency of
the matter as also the importance of the 229 issues involved, we made an order
on September 28, 1984, setting out briefly our conclusions and had indicated
that detailed reasons would be given in the judgment to be delivered later. On
the 12th January, 1983, election to all the 126 seats of the Assam Legislative
Assembly was notified to be held in February 1983. Very disturbed conditions
had been prevailing in Assam for a few years prior to this period and one of
the issues leading to the agitation was the electoral rolls of 1979 prepared under
the Representation of the People Act, 1950 ('1950 Act' for short). When general
election was notified, a set of writ petitions were filed in the Gauhati High
Court being Civil Rules 87 and 228-246 of 1983. The first application asked for
a mandamus to the Election Commission and the State Government then under
President's rule not to hold elections on the basis of the defective electoral
rolls and to defer holding of elections on account of the prevailing disturbed
situation in the State. In the second group of writ petitions the Court was
asked to issue a mandamus for preparation of fresh electoral rolls according to
law before election could be held and to restrain the Commission and the state
Government from holding elections on the basis of defective and void electoral
rolls. The High Court did not grant interim order of stay of election though
the writ petitions were entertained. Consequently, elections were held to the
State Legislature and by Notification of February 27, 1983, the results of the
election were duly notified. A number of writ petitions were then filed in the
Gauhati High Court more or less making similar allegations and substantially
challenging the electoral rolls of 1979 and questioning the validity of all the
elections to the legislative Assembly and praying for dissolution of the House.
In some of these applications relief of quo warranto was also asked for against
named returned candidates. These writ petitions were numbered as Civil Rules
524, 691-693, 695-699, 706-707 694 and 525 of 1983 and were in due course
transferred to this Court at the instance of the Election Commission for
disposal. They have, therefore, been assigned new numbers as Transferred Cases.
We have thus two sets of cases, transferred from the Gauhati High Court - the
first set challenging the electoral rolls of 1979 and the Notification for
holding of the elections and asking for staying of the elections and the second
set challenging the elections after they were held and notified on the ground
that the holding of elections on the basis of the void electoral rolls of 1979
was contrary to law and vitiated the elections.
230 Our order of September 28, 1984, not only
indicated the conclusions but also provided brief reasons for the same.
We, therefore, propose to refer to the
relevant portions thereof on each issue arising for consideration. Dealing with
the challenge to the validity of elections to Assam Legislative Assembly, we
had said :
"The principal ground on which the
validity of the elections has been challenged is that the electoral rolls were
not revised before the elections in contravention of the provisions of section
21,sub-section (2)(a) of the Representation of the People Act, 1950,and the
elections were held on the basis of the electoral rolls of 1979. Now it is
undoubtedly true that the electoral rolls were not revised before the impugned
elections were held but the Election Commission dispensed with the revision of
the electoral rolls by an order dated January 7, 1983, made under the opening
part of section 21, sub- section (2) and this order has not been challenged in
any of the writ petitions. Hence the impugned elections cannot be challenged on
the ground that they were without revision of the electoral rolls.
The petitioners also attacked the validity of
the electoral rolls of 1979 on the ground that the Election Commission had by
the Press Note dated September 18, 1979, erroneously directed the electoral
authorities in charge of revision of the electoral rolls not to delete the
names of any persons from the electoral rolls on the ground of lack of
qualification of citizenship since the question of citizenship was not one
which could be decided by the electoral authorities and the electoral rolls of
1979 were, therefore, invalid and the impugned elections held on the basis of
the electoral rolls of 1979 were void. We do not think there is any substance
in this contention.
In the first place, Art. 329(b) of the
Constitution bars any challenge to the impugned elections by a writ petition
under art. 226 as also on the ground that the electoral rolls on the basis of
which the impugned elections were held were invalid. The petitioners sought to
escape from the ban of Art. 329(b) by contending that they are challenging the
impugned 231 elections as a whole and not any individual election and that the
ban of Art. 329(b), therefore, does not stand in the way of the writ petitions
filed by them challenging the impugned elections. But we do not think this
escape route is open to the petitioners. There is in the Representation of the
People Act, 1951, no concept of elections as a whole. What that Act
contemplates is election from each constituency and it is that election which
is liable to be challenged by filing an election petition. It may be that there
is a common ground which may vitiate the elections from all the constituencies,
but even so it is the election from each constituency which has to be
challenged though the ground of challenge may be identical. Even where in form
the challenge is to the elections as a whole, in effect and substance what is
challenged is election from each constituency, and Article 329(b) must, there
fore, be held to be attracted.
We are of the view that once the final
electoral rolls are published and elections are held on the basis of such
electoral rolls, it is not open to anyone to challenge the election from any
constituency or constituencies on the ground that the electoral rolls were
defective. That is not a ground available for challenging an election under s.
100 of the Representation of People Act, 1951.
The finality of the electoral rolls cannot be
assailed in proceeding challenging the validity of an election held on the
basis of such electoral roll vide Kabul Singh v. Kundan Singh,[1970] 1 S.C.R.
845. Article 329(b) in our opinion clearly bars any writ petition challenging
the impugned election on the ground that the electoral rolls of 1979 on the
basis of which the impugned elections were held were invalid." Article
329(b) of the Constitution provides :
"Notwithstanding anything in this
Constitution:- (a) x x x (b) No election to either House of Parliament or to
the House or either House of the Legislature or a State shall be called in
question except by an 232 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." Therefore, an election can be challenged only by filing of
an election petition in the manner prescribed by the Representation of the
People Act, 1951. A Constitution Bench of this Court in Jagan Nath v. Jaswant
Singh & Ors.[1954] S.C.R. 892, has said :
"The general rule is well settled that
the statutory requirement of election law must be strictly observed and that an
election contest is not an election at law or a suit in equity but is a purely
statutory proceeding unknown to the common law and that the Court possesses no
common law power." In Hari Vishnu Kamath v. Syed Ahmad Ishaq & Ors.,
[1955] S.C.R. 1104 At 1111, Venkatarama Ayyar, J. speaking for the Court said:
".. These are instances of original
proceedings calling in question an election, and would be within the
prohibition enacted in Article 329(b).
But when once proceedings have been
instituted in accordance with Article 329(b) by presentation of an election
petition, the requirements of that article are fully satisfied. Thereafter when
the election petition is in due course heard by a Tribunal (now the High Court)
and decided, whether its decision is open to attack, and if so, where and to
what extent, must be determined by the general law applicable to decisions of
Tribunals.
...The view that Article 329(b) is limited in
its operation to initiation of proceedings for setting aside an election and
not to the further stages following on the decision of the Tribunal is
considerably reinforced, when the question is considered with reference to a
candidate whose election has been set aside by the Tribunal." To the same
effect are the observations of another Constitution Bench in the case of Durga
Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955] S.C.R. 267,
Mukherjea, J. (as he then was) spoke for the Court thus :
233 "The non obstante clause with which
article 329 of the Constitution begins and upon which the respondent's counsel
lays so such stress debars us as it debars any other Court in the land, to
entertain a suit or a proceeding calling in question any election to the
Parliament or the State Legislature. It is the election Tribunal (now the High
Court) alone that can decide such disputes, and the proceeding has to be
initiated by an election petition and in such manner as may be provided by a
statute These are clear authorities and the position has never been assailed in
support of the position that an election can be challenged only in the manner prescribed
by the Act.
In this view of the matter, we had concluded
that writ petitions under Article 226 challenging the election to the State
Legislature were not maintainable and election petitions under section 81 of
the Act had to be filed in the High Court. The Act does not contemplate a
challenge to the election to the Legislature as a whole and the scheme of the
Act is clear. Election of each of the returned candidates has to be challenged
by filing of a separate election petition. The proceedings under the Act are
quite strict and clear provisions have been made as to how an election petition
has to be filed and who should be parties to such election petition. As we have
already observed, when election to a Legislature is held it is not one election
but there are as many elections as the Legislature has members.
The challenge to the elections to the Assam
Legislative Assembly by filing petitions under Article 226 of the constitution
was, therefore, not tenable in law.
It is the admitted case of parties before us
that the electoral rolls of all the constituencies excepting one in the State
of Assam were last revised intensively during the year 1979 with reference to
January 1, 1979, as the qualifying date. In the case of No. 114 - Jonai (S.T.)
Assembly Constituency only summary revision was undertaken as intensive
revision was not possible for the reason that these areas were submerged
heavily by flood water at the relevant time. The general election to the House
of Parliament was held in 1980 on the basis of the said electoral rolls. An
annual revision of the electoral rolls as per requirement of the law as also
the practice obtaining in the rest of the country could not be undertaken in
1980- 81, or 1982 mainly on account of adverse law and order situation
prevailing in the State.
234 The Legislative Assembly of the State of
Assam had been dissolved by the President acting under Article 356 of the
Constitution by proclamation dated March 19, 1982, and the extended period was
due to expire on March 18, 1983. The Election Commission was intimated by the
Union Government on January 6, 1983, that the Presidential proclamation would
be revoked by the end of February 1983. Holding of election in Assam for
constituting the Legislative Assembly well before the end of that period,
therefore, became an immediate necessity. The Election Commission had hardly
eight weeks' time in its hand to complete the process. Without loss of further
time the Commission issued the Notification announcing the election programme
on January 12, 1983, and the election was proposed to be held on the basis of
the existing electoral rolls of 1979.
According to the petitioners the electoral
rolls of 1979 without being appropriately revised as required by law were not
the proper rolls on the basis of which election could have been conducted. It
has been pointed out that the process of revision had been undertaken but the
Election Commission suddenly stopped it and decided that the unrevised and out
of date rolls would provide the basis for holding of the elections. It is the
submission of the petitioners on the basis of a decision of this Court in Chief
Commissioner, Ajmer v. Radhey Shyam Dani, [1957] S.C.R. 68, that it is
essential for democratic elections that proper electoral rolls should be
maintained and in order that the same may be available, it is necessary that
after the preparation of the electoral rolls opportunity should be given to the
parties concerned to scrutinise whether the persons enrolled as electors
possess the requisite qualifications. Opportunity should also be given for the
revision of the electoral rolls and for the adjudication of the claims for
being enrolled. Unless these are done the obligation cast upon those holding
the elections is not discharged and the elections held on such imperfect
electoral rolls would acquire no sanctity and would be liable to be challenged
at the instance of the parties concerned. In the case referred to above,
validity of municipal elections was under consideration. Obviously provisions
of Article 329(b) of the Constitution had no application to such election and
this Court was dealing with the statutory requirements for holding of the
elections.
Challenge to the 1979 electoral rolls is on
the basis that persons who are not citizens of India have been included in the
electoral rolls. Infiltration of people from outside India into 235 Assam and
inclusion of their names in the electoral rolls constituted one of the main
grounds for the agitation in Assam. Section 16 of the 1950 Act clearly provides
that a person shall be disqualified for registration in an electoral roll if he
is not a citizen of India. Detailed provision has been made in the Registration
of Electors Rules to raise objection to the inclusion of the name of a
disqualified person. Part III of the 1950 Act makes provision for electoral
rolls for Assembly Constituencies.Section 21 deals with preparation and
revision of electoral rolls; section 22 provides for correction of entries in
electoral rolls while section 23 authorises inclusion of names in electoral
rolls.Section 24 provides an appeal to the Chief Electoral Officer from any
order made by the Electoral Registration Officer under s. 22 and 23. Section 21
making provision for preparation and revision of electoral rolls runs thus:
"(1) 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.
(2) The said electoral roll - (a) shall,
unless otherwise directed by the Election Commission for reasons to be recorded
in writing, be revised in the prescribed manner by reference to the qualifying
date - (i) before each general election to the House of People or to the
Legislative Assembly of a State;
and (ii) before each by-election to fill a
casual vacancy in a seat allotted to the constituency;
and (b) shall be revised in any year in the
prescribed manner by reference to the qualifying date if such revision has been
directed by the Election Commission:
Provided that if the electoral roll is not
revised or continued operation of the said electoral roll shall not thereby be
affected.
(3) x x x x x x x x x " 236 The proviso,
therefore, makes the position clear beyond doubt that if for some reason an
electoral roll is not revised as required by sub-s. (2), the unrevised roll is
not affected in any way and continues to be the electoral roll holding the
field.
Dealing with the aspect about the validity of
electoral rolls of 1979, we have indicated :
"We may also point out that in our
opinion the electoral rolls of 1979 cannot be condemned as invalid. The
counter/affidavits of Shri Ganesan Secretary to the Election Commission and
Shri Ashok Kumar Arora, Additional Chief Electoral Officer, Assam, clearly show
that the procedure prescribed by the Representation of the People Act, 1950,
for revision of the electoral rolls was followed.The Press Note dated September
18, 1979, on which considerable reliance was placed on behalf of the
petitioners must be read along with the correspondence exchanged between the
Chief Electoral Officer, Assam and the Secretary to the Election Commission
prior to the issue of the Press Note and if all these documents are read as a
whole, it is clear that no instructions were issued by the Election Commission
to the Chief Electoral Officer not to decide the question of citizenship if any
objection to a particular entry in the draft electoral rolls was raised on the
ground of lack of qualification of citizenship.
All that the Election Commission directed the
Chief Electoral Officer to do was to proceed on the basis that those whose
names were already included in the previous electoral rolls and we may point
out that the electoral rolls of 1977 on the basis of which the election to the
Assam Legislative Assembly were held in 1978 were not at any time challenged by
any of the petitioners should be prima facie regarded as satisfying the
qualification of citizenship and if any specific objection to the inclusion of
any particular person on the ground of lack of qualification of citizenship was
raised, it should be decided by the appropriate electoral citizen should be on
the objector. We are informed and the affidavits also go to show that in fact a
large number of 237 objections based on the ground of lack of qualification of
citizenship were disposed of by the appropriate electoral authorities after the
publication of the draft electoral rolls. So far as the inclusion of any new
names in the draft electoral rolls was concerned, the Election Commission
directed that the utmost care should be taken to ensure that only citizens were
enrolled as electors. We do not think that these were in any way in defiance of
the provisions of the Representation of the People Act, 1950, and the Electoral
Registration Rules, 1960 made under the Act. The electoral rolls of 1979 must,
therefore, be regarded as not suffering from any legal informity, though we may
reiterate once again that even if the electoral rolls of 1979 were invalid,
that would not affect the validity of the impunged elections nor would a writ
petition under Article 226 of the Constitution be maintainable for challenging
the impugned election." From the materials placed by the parties and the
election Commission,we have come to the conclusion that the Election Commission
did not give directions contrary to the requirements of s. 16 of the Act and
the revision of the 1979 electoral rolls could not be undertaken for reasons
beyond the control of the Election Commission. As pointed out by us in our
order of September 28, 1984, there was no dispute to the electoral roll of 1977
nor was any challenge advanced against the election of 1978 to the State
Legislature held on the basis of such rolls. Admittedly, the 1979 rolls were
the outcome of intensive revision of the rolls of 1977. That being the position
and in view of the proviso to sub-section (2) of s. 21 which we have extracted
above the electoral rolls of 1979 were validly in existence and remained effective
even though the process contemplated in sub-s. (2) for revision had not either
been undertaken or completed. It has been indicated by a Constitution Bench
decision of this Court in Lakshmi Charan Sen & Ors . v.
A.K.M. Hassan Uzzaman & Ors. C.As.
739-741/82 decided on 8.5.85, that preparation and revision of electoral rolls
is a continuous process not connected with any particular election but when an
election is to be held the electoral roll which exists at the time when
election is notified would form the foundation for holding of such election.
That is why sub-s. (3) of s. 23 provides for suspension of any modification to
the electoral roll after the last date of making of nominations for an election
and until completion of the 238 election. We had, therefore, come to the
conclusion that the electoral rolls of 1979 were not invalid and could provide
the basis for holding of the elections in 1983. Whether preparation and
publication of the electoral rolls are a part of the process of election within
the meaning of Article 329(b) of the Constitution is the next aspect to be
considered. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Ors.
[1952] S.C.R.218, this Court had to decide the amplitude of the term
"election". Fazal Ali, J. speaking for the constitution Bench
indicated :
"It seems to me that the word 'election'
has been used in Part XV of the Constitution in the wide sense, that is to say,
to connote the entire procedure to be go through to return a candidate to the
legislature. The use of the expression "conduct of elections" in
article 324 specifically points to the wide meaning, And that meaning can also
be read consistently into the other provisions which occur in Part XV including
article 329(b). That the word "election' bears this wide meaning whenever
we Talk of elections in a democratic country, is borne out by the fact that in
most of the books on the subject and in several cases dealing with the matter,
one of the questions mooted is, when the election begins. The subject is dealt
with quite concisely in Halsbury's Laws of England in the following passage
under the heading "Commencement of the Election :- 'Although the first
formal step in every election is the issue of the writ, the election is
considered for some purposes to begin at an earlier date. It is a question of
fact in each case when an election begins in such a way as to make the parties
concerned responsible for breaches of election law, the test being whether the
contest is reasonably imminent . Neither the issue of the writ nor the
publication of the notice of election can be looked to as fixing the date when
an election begins from this point of view. Nor, again does the nomination day
afford any criterion. The election will usually begin at least earlier than the
issue of the writ. The question when the election begins must be carefully
distinguished from that as to when 'the conduct and management of" 239 an
election may be said to begin. Again, the question as to when a particular
person commences to be a candidate is a question to be considered in each
case.' The discussion in this passage makes it clear that the word
"election" can be and has been appropriately used with reference to
the entire process which consists of several stages and embraces many steps,
some of which may have an important bearing on the result of the process."
We are not prepared to take the view that preparation Of electoral rolls is
also a process of election. We find support for our view from the observations
of Chandrachud, C.J. in Lakshmi Charan Sen's case (supra) that "it may be
difficult, consistently with that view to hold that preparation and revision of
electoral roll, is a part of 'election' within the meaning of Article 329(b)'.
In a suitable case challenge to the electoral roll for not complying with the
requirements of the law may be entertained subject to the rule indicated in
Ponnuswami's case (supra). But the election of a candidate is not open to
challenge on the score of the electoral roll being defective. Holding the
election to the Legislature and holding them according to law are both matters
of paramount importance. Such elections have to be held also in accordance with
a time bound programme contemplated in the Constitution and the Act. The
proviso added in s.22(2) of the Act of 1950 is intended to extend cover to the
electoral rolls .in eventualities which otherwise might have interfered with
the smooth working of the programme. These are the reasons for which we came to
the conclusion that the electoral roll of 1979 had not been vitiated and was
not open F to be attacked as invalid.
Two other brief contentions may now be
noticed. In Transferred Case No.364/84 there wag a prayer that the electoral
rolls on the basis of which election from Assam would be held should be revised
before the holding of such election as required by ss. 21(2) (a,) of the Act of
1950.
This meant an intensive revision. Counsel
appearing for the Election Commission made a statement before the Court to the
following effect:
The Commission will carry out revision of the
elector rolls for all constituencies in Assam in accordance with the Act and
the Rules and such 240 revision shall, as far as practicable be intensive
revision ant wherever it 18 not practicable to carry out intensive revision in
any constituency or constituencies, the revision shall be summary or Special
revision." We indicated in our order of september r 28, 1984, that the
statement made on behalf of the Election Commission must allay the apprehension
of all the petitioners in the case- since it made it clear-ar that before
elections are held in Assam, there would be revision of the electoral rolls in
the manner indicated in the statement. Considerable argument was advanced with
reference to the electoral cart. AS it appears the Election Commission had
introduced a form different-rent from the one prescribed in Form 4 read with
rule 8 of the Electors Registration Rules. Here again, a Statement was made on
behalf of the commission to the following effect :
"For the sake of greater clarity and
keeping in view the provisions of s.2(c) of the Representation of the People
Act, 1951, ant Form 4 of the Registration of Electors Rules, 1960, the word
'citizen' shall be substituted for the word 'elector' wherever it Occurs in the
electoral card by issuance of a direction by the Election Commission."
With the adoption of the basis indicated in the statement, the objection on
that score must be taken to have vanished Considerable argument hat also been
advanced regarding the carrying out of revision of electoral rolls. Petitioners
wanted that the Election Commission should do so suo moto while the Election
Commission pleaded its inability keeping in view the ambit ant stupendous
proportion of the task and pleaded that claim or Objection should be the
foundation of the revision Dealing with this question, aft r hearing counsel at
great length we had stated "The only direction which we can give to the U
action Commission is to carry out revision of the electoral rolls in accordance
with the procedure prescribed in the Representation of People Act, 1950 and the
Electors Registration Rules, 1960.
But since the Election Commission has stated
before us that it will carry out revision of the electoral rolls and that 241
such revision shall, as far as practicable, be intensive revision and where it
is not so practicable, it will be summary or special, we do not think it
necessary to give any further directions to the Election Commission. When the
draft electoral rolls are ready as a result of such revision carried out by the
Election Commission, it will be open to anyone whose name is not included in
the draft electoral rolls to lodge a claim for inclusion of his name on the
ground that he is an eligible elector and if the name of any person is erroneously
included in the draft electoral rolls even though he is not a citizen, it will
be equally open to anyone entitled to object to challenge the inclusion of the
name of such person in the draft electoral rolls by filing an objection in
accordance with the Electors Registration Rules, 1960. It is neither desirable
nor proper for us to lay down as to what quantum of proof should be required
for the purpose of substantiating any such claims or objections lodged before
the Election Commission.
It would be for the appropriate electoral
officer to consider and decide in the light of such material as may be produced
before him by the objector as also by the person whose name is sought to be
deleted from the electoral rolls and such further material as may be available
to him including the electoral rolls of the earlier years, whether such person
is a citizen or not. We may point out that the appropriate electoral officer
may also on his own, if he has on the material available to him including the
electoral rolls of the earlier years, reason to entertain any doubt, take steps
to satisfy himself in regard to the citizenship of a person whose name is
sought to be included or has been included in the electoral rolls.
We take note of the position and with a sense
of satisfaction that with the accord reached about Assam the agitation seems to
have ended. The Election Commission is at work and in compliance with the
provisions of the Act and the Rules, the electoral rolls are being revised. We
hope and trust that elections which are indispensable to the democratic process
would be held in accordance with law as expediently as possible and on the
basis of a revised electoral roll in terms of the statement made to the Court
by the Election Commission.
M.L.A. Transferred Cases dismissed.
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