Election
Commission of India Through Secretary Vs. Ashok Kumar
& Ors [2000] INSC 459 (30 August 2000)
CJI ,
R.C. Lahoti & K G Balakrishnan
R.C. Lahoti,
J.
L.I.T.J
An interim order passed by the High Court in exercise of its writ jurisdiction
under Article 226 of the Constitution, during the currency of the process of
election, whereby the High Court has stayed the Notification issued by the
Election Commission of India containing direction as to the manner of counting
votes and has made directions of its own on the subject, has been put in issue
by the Election Commission of India filing these appeals by special leave under
Article 136 of the Constitution.
The
facts in brief. The 12th Lok Sabha having been dissolved by the President of
India on 26.4.1999, the Election Commission of India announced the programme
for the General Election to constitute the 13th Lok Sabha. Pursuant thereof,
the polling in the State of Kerala took
place on 11.9.1999. The counting of votes was scheduled to take place on
6.10.1999.
In
exercise of the powers conferred by Rule 59A of the Conduct of Election Rules,
1961, the Election Commission of India issued a notification published in Kerala
Gazette Extra-ordinary dt. 1st October, 1999 which reads as under:-
NOTIFICATION No.470/99/JUD-II(H.P.) -- WHEREAS, rule 59A of the Conduct of
Elections Rules, 1961 provides that where the Election Commission apprehends
intimidation and victimisation of electors in any constituency and it is of the
opinion that it is absolutely necessary that ballot papers taken out of all
ballot boxes used in that constituency should be mixed before counting, instead
of being counted polling stationwise, it may, by notification in the Official
Gazette, specify such constituency;
2. AND
WHEREAS, on such specification under the said rule 59A of the Conduct of
Election Rules, 1961, the ballot papers of the specified constituency shall be
counted by being mixed instead of being counted polling stationwise.
3. AND
WHEREAS, the Election Commission has carefully considered the matter and has
decided that in the light of the prevailing situation in the State of Kerala,
and in the interests of free and fair election and also for safety and security
of electors and with a view to preventing intimidation and victimisation of
electors in that State, each of the Parliamentary Constituencies in the State
except 11-Ernakulam and 20-Trivandrum Parliamentary Constituencies, may be
specified under the said rule 59A for the purposes of counting votes at the
General Election to the House of the People, 1999 now in progress;
4.
NOW, THEREFORE, the Election Commission hereby specifies each of the said
Parliamentary Constituencies except 11-Ernakulam and 20-Trivandrum
Parliamentary Constituencies in the State of Kerala, as the constituencies to
which the provisions of rule 59A of the Conduct of Elections Rules, 1961 shall
apply for the purposes of counting of votes at the current General Election to
the House of the People.
BY
ORDER Sd/- (K.J. RAO) Secretary, Election Commission of India In Ernakulam and Trivandrum constituencies electronic voting
machines were employed for polling. In all other constituencies of Kerala
voting was through ballot papers.
On
4.10.1999, two writ petitions were filed respectively by the respondents No.1
& 2 herein, laying challenge to the validity of the above notification. In
O.P. No.24444/1999 filed by respondent No.2, who was a candidate in the
election and has been a member of the dissolved Lok Sabha having also held the
office of a Minister in the Cabinet, it was alleged that large scale booth
capturing had taken place in the Lok Sabha election at Kannur, Allappuzha and Kasaragod
constituencies. Similar allegations of both capturing were made as to polling
stations throughout the State. At such polling stations, the polling agents of
Congress party and their allies were not allowed to sit in the polling booths.
In 70 booths polling was above 90%, in 25 booths the percentage of polling was
more than 92% and in 5 booths it was 95% and above. The presiding officers and
the electoral officers did not take any action on the complaints made to them
and they were siding with the ruling party (Left Democratic Front or the LDF).
At some places the representatives of the Congress party were ordered to be
given police protection by the Court but no effective police protection was
given. There are other polling booths where the percentage of polling has been
very low, as less as 7.8% in booth No.21 at Manivara Government School. No polling was recorded in booth No.182. In 27 booths
polling was 26%.
Complaints
were also made to the Chief Election Commissioner. Under Section 135A of the
Representation of the People Act, 1951, booth capturing is an offence.
O.P.
No.24516/1999 was filed by respondent No.1, who contested from the Allapuzha
constituency as an independent candidate, alleging more or less similar facts
as were alleged in O.P. No.24444/1999.
In
both the writ petitions it is alleged that in the matter of counting the
Election Commission of India issued guidelines on 22nd September, 1999 which
directed ___ All the ballot boxes of one Polling Station will be distributed to
one table for counting the ballot papers. There was no change in the
circumstances ever since the date of the above-said guidelines and yet on
28.9.1999 the Election Commission of India issued the impugned notification.
According
to both the writ petitioners, if counting took place in accordance with the
directions issued on 28.9.1999, valuable piece of evidence would be lost as the
allegations as to booth capturing could best be substantiated if the counting
of votes took place polling stationwise and not by mixing of votes from the
various booths. An interim relief was sought for by both the writ petitioners
seeking suspension of the notification dated 28.9.1999.
Notice
of the writ petition and applications seeking interim relief was served on the
standing counsel for the State Government and the Government Pleader who
represented the Chief Electoral Officer. Paucity of time and the urgency
required for hearing the matter did not allow time enough for service of notice
on the parties individually.
The
prayer for the grant of interim relief was opposed by the learned counsel
appearing for the respondents before the High Court by placing reliance on
Article 329(b) of the Constitution. According to the writ petitioners before
the High Court, the normal rule was to count votes boothwise unless exceptional
circumstances were shown to exist whereupon Rule 59A could be invoked.
According to the learned counsel for the respondents before the High Court, in Ernakulam
and Trivandrum parliamentary constituencies,
polling was done with the aid of voting machines and hence excepting these two
constituencies the Election Commission of India formed an opinion for invoking
Rule 59A which the Election Commission of India was justified, well within its
power to do. In the opinion of the High Court, in view of large number of
allegations of booth capturing (without saying that such allegations were
correct) it was necessary to have the votes counted boothwise so that the
correctness of the allegations could be found out in an election petition which
would be filed later, on declaration of the results. The High Court also believed
the averment made in the affidavits filed in support of the stay petitions
wherein it was stated that training was given to the officers for counting the
votes boothwise, i.e. with mixing or without mixing. Mixing of votes of all
booths will take more time in counting and require engagement of more officers.
The learned Government Pleader was not able to demonstrate before the High
Court if the notification dated 28.9.1999 was published in the official
gazette. On a cumulative effect of the availability of such circumstances, the
High Court by its impugned order dated 4th October, 1999 directed the Election
Commission and Chief Electoral Officer to make directions in such a way that
counting was conducted boothwise consistently with the guidelines dated
22.9.1999.
On
5.10.1999 the Election Commission of India filed the special leave petitions
before this court which were taken up for hearing upon motion made on behalf of
the petitioner-appellant. A copy of the official gazette dated 1st October, 1999 wherein the notification dated
28.9.1999 was published, was also produced for the perusal of this court on the
affidavit of Shri K.J. Rao, Secretary, Election Commission of India. This court
directed notices to be issued and in the meanwhile operation of the order of
the Kerala High Court was also directed to be stayed.
When
the matter came up for hearing after notice, leave was granted for filing the
appeals and interim direction dated 5.10.1999 was confirmed to remain in
operation till the disposal of appeals. At the final hearing it was admitted at
the Bar that in view of the impugned order of the High Court having been stayed
by this court, the counting had taken place in accordance with the Notification
dated 28.9.1999 made by the Election Commission of India.
In
view of these subsequent events, the appeals could be said to have been
rendered infructuous. However, the learned counsel for the appellant submitted
that the issue arising for decision in these appeals is of wide significance in
as much as several writ petitions are filed before the High Courts seeking
interim directions interfering with the election proceedings and therefore it
would be in public interest if this court may pronounce upon the merits of the
issue arising for decision in these appeals. We have found substance in the
submission so made and, therefore, the appeals have been heard on merits.
The
issue arising for decision in these appeals is the jurisdiction of the High
Court to entertain petitions under Article 226 of the Constitution of India and
to issue interim directions after commencement of the electoral process.
Article
324 of the Constitution contemplates constitution of the Election Commission in
which shall vest the superintendence, direction and control of the preparation
of the electoral rolls for, and the conduct of, all elections to Parliament and
to the Legislature of every State and of elections to the offices of President
and Vice-President held under the Constitution. The words superintendence,
direction and control have a wide connotation so as to include therein such
powers which though not specifically provided but are necessary to be exercised
for effectively accomplishing the task of holding the elections to their
completion. Article 329 of the Constitution provides as under:- 329. Bar to
interference by courts in electoral matters.- Notwithstanding anything in this
Constitution (a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies, made or purporting
to be made under article 327 or article 328, shall not be called in question in
any court;
(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 by such authority and in such manner as may be provided for by or
under any law made by the appropriate Legislature.
The
term election as occurring in Article 329 has been held to mean and include the
entire process from the issue of the Notification under Section 14 of the
Representation of the People Act, 1951 to the declaration of the result under
Section 66 of the Act.
The
constitutional status of the High Courts and the nature of the jurisdiction
exercised by them came up for the Harwan Investment and Trading Pvt.Ltd., Goa -
1993 Supp (2) SCC 433. It was held that the High Courts in India are superior courts of record. They
have original and appellate jurisdiction. They have inherent and supplementary
powers.
Unless
expressly or impliedly barred and subject to the appellate or discretionary
jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction
including the jurisdiction to determine their own powers. The following
statement of law from Halsburys Laws of England, [4th Edn., Vol.10, para 713]
was quoted with approval:- Prima facie, no matter is deemed to be beyond the
jurisdiction of a superior court unless it is expressly shown to be so, while
nothing is within the jurisdiction of an inferior court unless it is expressly
shown on the face of the proceedings that the particular matter is within the cognisance
of the particular court.
This
Court observed that the jurisdiction of courts is carved out of sovereign power
of the State. People of free India are the
sovereign and the exercise of judicial power is articulated in the provisions
of the Constitution to be exercised by courts under the Constitution and the
laws thereunder. It cannot be confined to the provisions of imperial statutes
of a bygone age. Access to court which is an important right vested in every
citizen implies the existence of the power of the Court to render justice
according to law. Where Statute is silent and judicial intervention is
required, Courts strive to redress grievances according to what is perceived to
be principles of justice, equity and good conscience.
That
the power of judicial review is a basic structure of Constitution ___ is a
concept which is no longer in@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ issue.@@ JJJJJJ Is there
any conflict between the jurisdiction conferred on the High Courts by Article
226 of the Constitution and the embargoes created by Article 329 and if so how
would they co-exist came up for the consideration of a Returning Officer, Namakkal
Constituency & Ors. - AIR 1952 SC 64. The law enunciated in Ponnuswami was
extensively dealt with, also amplified, by another Constitution Bench in
Commissioner, New Delhi and Ors. - AIR 1978 SC 851. The
plenary power of Article 329 has been stated by the Constitution Bench to be
founded 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 steps and stages in between the commencement and
the conclusion; (2) The provision of a special jurisdiction which can be
invoked by an aggrieved party at the end of the election excludes other form,
the right and remedy being creatures of statutes and controlled by the
Constitution. On these principles the conclusions arrived at in Ponnuswamis
case were so stated in Mohinder Singh Gills case:- (1) Having regard to the
important functions which the legislatures have to perform in democratic
countries, it has always been recognised to be a matter of first importance
that elections should be concluded as early as possible according to time
schedule and all controversial matters and all disputes arising out of
elections should be postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or protracted.
(2) In
conformity with this principle, the scheme of the election law in this country
as well as in England is that no sigificance should be attached to anything
which does not affect the election; and if any irregularities are committed
while it is in progress and they belong to the category or class which under
the law by which elections are governed, would have the effect of vitiating the
election and enable the person affected to call it in question, they should be
brought up before a special tribunal by means of an election petition and not
be made the subject of a dispute before any court while the election is in
progress.
However,
the Constitution Bench in Mohinder Singh Gills case could not resist commenting
on Ponnuswamis case by@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ observing (vide para
25) that the non-obstante clause in Article 329 pushes out Article 226 where
the dispute takes the form of calling in question an election, except in
special situations pointed out at, but left unexplored in Ponnuswami.
Vide para
29 in Mohinder Singh Gills case, the Constitution Bench noticed two types of
decisions and two types of challenges : The first relating to proceedings which
interfere with the progress of the election and the second which accelerate the
completion of the election and acts in furtherance of an election. A reading of
Mohinder Singh Gills case points out that there may be a few controversies
which may not attract the wrath of Article 329 (b). To wit : (i) power vested
in a functionary like the Election Commission is a trust and in view of the
same having been vested in high functionary can be expected to be discharged
reasonably, with objectivity and independence and in accordance with law. The
possibility however cannot be ruled out where the repository of power may act
in breach of law or arbitrarily or malafide. (ii) A dispute raised may not
amount to calling in question an election if it subserves the progress of the
election and facilitates the completion of the election. The Election
Commission may pass an order which far from accomplishing and completing the
process of election may thwart the course of the election and such a step may
be wholly unwarranted by the Constitution and wholly unsustainable under the
law. In Mohinder Singh Gills case, this Court gives an example (vide para 34).
Say after the President notifies the nation on the holding of elections under
Section 15 and the Commissioner publishes the calendar for the poll under Section
30 if the latter orders returning officers to accept only one nomination or
only those which come from one party as distinguished from other parties or
independents, which order would have the effect of preventing an election and
not promoting it, the Courts intervention in such a case will facilitate the
flow and not stop the election stream.
A
third category is not far to visualise. Under Section 81 of the Representation
of the People Act, 1951 an election petition cannot be filed before the date of
election, i.e., the date on which the returned candidate is declared elected.
During the process of election something may have happened which would provide
a good ground for the election being set aside. Purity of election process has
to be preserved. One of the means for achieving this end is to deprive a
returned candidate of the success secured by him by resorting to means and
methods falling foul of the law of elections. But by the time the election
petition may be filed and judicial assistance secured material evidence may be
lost. Before the result of the election is declared assistance of Court may be
urgently and immediately needed to preserve the evidence without in any manner
intermeddling with or thwarting the progress of election. So also there may be
cases where the relief sought for may not interfere or intermeddle with the
process of the election but the jurisdiction of the Court is sought to be
invoked for correcting the process of election taking care of such aberrations
as can be taken care of only at that moment failing which the flowing stream of
election process may either stop or break its bounds and spill over. The relief
sought for is to let the election process proceed in conformity with law and
the facts and circumstances be such that the wrong done shall not be undone
after the result of the election has been announced subject to overriding
consideration that the Courts intervention shall not interrupt, delay or
postpone the ongoing election proceedings. The facts of the case at hand
provide one such illustration with which we shall deal with a little later.
We
proceed to refer a few other decided cases of this court cited at the Bar.
1985
SC 1233) writ petitions under Article 226 of the Constitution were filed before
the High Court asking for the writs of mandamus and certiorari, directing that
the instructions issued by the Election Commission should not be implemented by
the Chief Electoral Officer and others; that the revision of electoral rolls be
undertaken de novo; that claims, objections and appeals in regard to the
electoral roll be heard and disposed of in accordance with the rules;
and
that, no notification be issued under S.15(2) of the Representation of the
People Act, 1951 calling for election to the West Bengal Legislative Assembly,
until the rolls were duly revised. The High Court entertained the petitions and
gave interim orders. The writ petitioners had also laid challenge to validity
of several provisions of Acts and Rules, which challenge was given up before
the Supreme Court. The Constitution Bench held though the High Court was
justified in entertaining the writ petition and issuing a rule therein since,
the writ petition apparently contained a challenge to several provisions of
Election Laws, it was not justified in passing any order which would have the
effect of postponing the elections which were then imminent.
Even
assuming, therefore, that the preparation and publication of electoral rolls
are not a part of the process of election within the meaning of Article 329(b),
we must reiterate our view that the High Court ought not to have passed the
impugned interim orders, whereby it not only assumed control over the election
process but, as a result of which, the election to the Legislative Assembly
stood the risk of being postponed indefinitely.
AIR
1984 SC 1406 the Election Commission fixed the date of election and proposed to
issue the requisite notification.
The
Government of Haryana filed a writ petition in the High Court and secured an
ex-parte order staying the issuance and publication of the notification by the
Election Commission of India under Sections 30, 56 and 150 of the
Representation of the People Act, 1951. This Court deprecated granting of such
ex-parte orders. During the course of its judgment (vide para 8) the majority
speaking through the Chief Justice observed that it was not suggested that the
Election Commission could exercise its discretion in an arbitrary or mala fide
manner; arbitrariness and mala fide destroy the validity and efficacy of all
orders passed by public authorities. The minority view was recorded by M.P.
Thakkar,
J. quoting the following extract from A.K.M.
Hassan
Uzzaman (1982) 2 SCC 218 :- The imminence of the electoral process is a factor
which must guide and govern the passing of orders in the exercise of the High
Courts writ jurisdiction. The more imminent such process, the greater ought to
be the reluctance of the High Court to do anything, or direct anything to be
done, which will postpone that process indefinitely by creating a situation in
which, the Government of a State cannot be carried on in accordance with the
provisions of the Constitution.
and
held that even according to Hassans case the Court has the power to issue an
interim order which has the effect of postponing an election but it must be
exercised sparingly (with reluctance) particularly when the result of the order
would be to postpone the installation of a democractic elected popular
Government.
SCC
175 this Court has held that the powers conferred on the Election Commission
are not unbridled; judicial review will be permissible over the statutory body,
i.e., the Election Commission exercising its functions affecting public law
rights though the review will depend upon the facts and circumstances of each
case; the power conferred on the Election Commission by Article 324 has to be
exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but
in keeping with the guidelines of the rule of law and not stultifying the
Presidential notification nor existing legislation.
Ors. -
1996 (6) SCC 303 is a case relating to municipal elections in the State of Uttar Pradesh. Barely one week before the voting
was scheduled to commence, in the writ petitions complaining of defects in the
electoral rolls and de-limitation of constituencies and arbitrary reservation
of constituencies for scheduled castes, scheduled tribes and backward classes
the High Court passed interim order stopping the election process. This Court
quashed such interim orders and observed that if the election is imminent or
well under way, the Court should not intervene to stop the election process. If
this is allowed to be done, no election will ever take place because some one
or the other will always find some excuse to move the Court and stall the
elections. The importance of holding elections at regular intervals cannot be
over- emphasised. If holding of elections is allowed to stall on the complaint
of a few individuals, then grave injustice will be done to crores of other
voters who have a right to elect their representatives to the democratic
bodies.
(1998)
8 SCC 703 this Court has held that non-compliance of a provision of the Act
governing the elections being a ground for an election petition, the writ
petition under Article 226 of the Constitution of India should not have been
entertained.
In Mohinder
Singh Gills case (supra) the Election Commission had cancelled a poll and
directed a re-polling.
The
Constitution Bench held that a writ petition challenging the cancellation
coupled with repoll amounted to calling in question a step in election and is
therefore barred by Article 329 (b). However, vide para 32, it has been
observed that had it been a case of mere cancellation without an order for repoll,
the course of election would have been thwarted (by the Election Commission
itself) and different considerations would have come into play.
Election
disputes are not just private civil disputes between two parties. Though there
is an individual or a few individuals arrayed as parties before the Court but
the stakes of the constituency as a whole are on trial.
Whichever
way the lis terminates it affects the fate of the constituency and the citizens
generally. A conscientious approach with overriding consideration for welfare
of the constituency and strengthening the democracy is called for.
Neither
turning a blind eye to the controversies which have arisen nor assuming a role
of over- enthusiastic activist would do. The two extremes have to be avoided in
dealing with election disputes.
Section
100 of the Representation of the People Act, 1951 needs to be read with Article
329 (b), the former being a product of the later. The sweep of Section 100
spelling out the legislative intent would assist us in determining the span of
Article 329 (b) though the fact remains that any legislative enactment cannot
curtail or override the operation of a provision contained in the Constitution.
Section
100 is the only provision within the scope of which an attack on the validity
of the election must fall so as to be a ground available for avoiding an
election and depriving the successful candidate of his victory at the polls.
The Constitution Bench in Mohinder Singh Gills case (vide para 33) asks us to
read Section 100 widely as covering the whole basket of grievances of the
candidates. Sub-clause (iv) of clause (d) of sub-section (1) of Section 100 is
a residual catch-all clause. Whenever there has been non-compliance with the
provisions of the Constitution or of the Representation of the People Act, 1951
or of any rules or orders made thereunder if not specifically covered by any
other preceding clause or sub-clause of the Section it shall be covered by
sub-clause (iv). The result of the election insofar as it concerns a returned
candidate shall be set aside for any such non-compliance as abovesaid subject
to such non-compliance also satisfying the requirement of the result of the
election having been shown to have been materially affected insofar as a
returned candidate is concerned. The conclusions which inevitably follow are:
in the field of election jurisprudence, ignore such things as do not materially
affect the result of the election unless the requirement of satisfying the test
of material effect has been dispensed with by the law; even if the law has been
breached and such breach satisfies the test of material effect on the result of
the election of the returned candidate yet postpone the adjudication of such
dispute till the election proceedings are over so as to achieve, in larger
public interest, the goal of constituting a democratic body without
interruption or delay on account of any controversy confined to an individual
or group of individuals or single constituency having arisen and demanding
judicial determination.
To
what extent Article 329 (b) has an overriding effect on Article 226 of the
Constitution? The two Constitution Benches have held that Representation of the
People Act, 1951 provides for only one remedy; that remedy being by an election
petition to be presented after the election is over and there is no remedy
provided at any intermediate stage.
The
non-obstante clause with which Article 329 opens pushes out Article 226 where
the dispute takes the form of calling in question an election (see para 25 of Mohinder
Singh Gills case, supra). The provisions of the Constitution and the Act read
together do not totally exclude the right of a citizen to approach the Court so
as to have the wrong done remedied by invoking the judicial forum; nevertheless
the lesson is that the election rights and remedies are statutory, ignore the
trifles even if there are irregularities or illegalities, and knock the doors
of the courts when the election proceedings in question are over.
Two-pronged
attack on anything done during the election proceedings is to be avoided ___
one during the course of the proceedings and the other at its termination, for
such two-pronged attack, if allowed, would unduly protract or obstruct the
functioning of democracy.
The
founding fathers of the Constitution have consciously employed use of the words
no election shall be called in question in the body of Section 329 (b) and
these words provide the determinative test for attracting applicability of
Article 329 (b). If the petition presented to the Court calls in question an
election the bar of Article 329 (b) is attracted. Else it is not.
For
convenience sake we would now generally sum up our conclusions by partly
restating what the two Constitution Benches have already said and then adding
by clarifying what follows therefrom in view of the analysis made by us
hereinabove:- 1) If an election, (the term election being widely interpreted so
as to include all steps and entire proceedings commencing from the date of
notification of election till the date of declaration of result) is to be called
in question and which questioning may have the effect of interrupting,
obstructing or protracting the election proceedings in any manner, the invoking
of judicial remedy has to be postponed till after the completing of proceedings
in elections.
2) Any
decision sought and rendered will not amount to calling in question an election
if it subserves the progress of the election and facilitates the completion of
the election. Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the election.
3)
Subject to the above, the action taken or orders issued by Election Commission
are open to judicial review on the well-settled parameters which enable
judicial review of decisions of statutory bodies such as on a case of mala fide
or arbitrary exercise of power being made out or the statutory body being shown
to have acted in breach of law.
4)
Without interrupting, obstructing or delaying the progress of the election
proceedings, judicial intervention is available if assistance of the Court has
been sought for merely to correct or smoothen the progress of the election
proceedings, to remove the obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or rendered irretrievable by
the time the results are declared and stage is set for invoking the
jurisdiction of the Court.
5) The
Court must be very circumspect and act with caution while entertaining any
election dispute though not hit by the bar of Article 329(b) but brought to it
during the pendency of election proceedings. The Court must guard against any
attempt at retarding, interrupting, protracting or stalling of the election
proceedings. Care has to be taken to see that there is no attempt to utilise
the courts indulgence by filing a petition outwardly innocuous but essentially
a subterfuge or pretext for achieving an ulterior or hidden end. Needless to
say that in the very nature of the things the Court would act with reluctance
and shall not act except on a clear and strong case for its intervention having
been made out by raising the pleas with particulars and precision and
supporting the same by necessary material.
These
conclusions, however, should not be construed as a summary of our judgment.
These have to be read alongwith the earlier part of our judgment wherein the
conclusions have been elaborately stated with reasons.
Coming
back to the case at hand it is not disputed that the Election Commission does
have power to supervise and direct the manner of counting of votes. Till 22nd September, 1999 the Election Commission was of the
opinion that all the ballot boxes of one polling station will be distributed to
one table for counting the ballot papers and that would be the manner of
counting of votes. On 28.9.1999 a notification under Rule 59A came to be
issued. It is not disputed that the Commission does have power to issue such
notification. What is alleged is that the exercise of power was mala fide as
the ruling party was responsible for large scale booth capturing and it was
likely to lose the success of its candidates secured by committing an election
offence if material piece of evidence was collected and preserved by holding
polling stationwise counting and such date being then made available to the
Election Tribunal. Such a dispute could have been raised before and decided by
the High Court if the dual test was satisfied : (i) the order sought from the
Court did not have the effect of retarding, interrupting, protracting or
stalling the counting of votes and the declaration of the results as only that
much part of the election proceedings had remained to be completed at that
stage, (ii) a clear case of mala fides on the part of Election Commission
inviting intervention of the Court was made out, that being the only ground
taken in the petition.
A
perusal of the order of the High Court shows that one of the main factors which
prevailed with the High Court for passing the impugned order was that the
learned Government Advocate who appeared before the High Court on a short
notice, and without notice to the parties individually, was unable to tell the
High Court if the notification was published in the Government Gazette. The
power vested in the Election Commission under Rule 59A can be exercised only by
means of issuing notification in the official gazette.
However,
the factum of such notification having been published was brought to the notice
of this Court by producing a copy of the notification. Main pillar of the
foundation of the High Courts order thus collapsed. In the petitions filed
before the High Court there is a bald assertion of mala fides. The averments
made in the petition do not travel beyond a mere ipsi dixit of the two
petitioners that the Election Commission was motivated to oblige the ruling
party in the State. From such bald assertion an inference as to mala fides
could not have been drawn even prima facie. On the pleadings and material made
available to the High Court at the hearing held on a short notice we have no
reason to doubt the statement made by the Election Commission and contained in
its impugned notification that the Election Commission had carefully considered
the matter and then decided that in the light of the prevailing situation in
the State and in the interests of free and fair election and also for safety
and security of electors and with a view to preventing intimidation and victimisation
of electors in the State, a case for direction attracting applicability of Rule
59A for counting of votes in the constituencies of the State, excepting the two
constituencies where electronic voting machines were employed, was made out.
Thus, we find that the two petitioners before the High Court had failed to make
out a case for intervention by the High Court amidst the progress of election
proceedings and hence the High Court ought not to have made the interim order
under appeal though the impugned order did not have the effect of retarding,
protracting, delaying or stalling the counting of votes or the progress of the
election proceedings. The High Court was perhaps inclined to intervene so as to
take care of an alleged aberration and maintain the flow of election stream
within its permissible bounds.
The
learned counsel for the Election Commission submitted that in spite of the
ballot papers having been mixed and counting of votes having taken place in
accordance with Rule 59A it would not be difficult for the learned Designated
Election Judge to order a re-count of polls and find out polling-wise break-up
of the ballots if the election- petitioner may make out a case for directing a
re-count by the Court. In his submission the grievance raised before the High
Court was fully capable of being taken care of at the trial of the election
petition to be filed after the declaration of the results and so the bar of
Article 329(b) was attracted. In this connection he invited our attention to Chaper
XIV-B Counting of Votes of Handbook for Returning Officers (1998) issued by
Election Commission of India. This is an aspect of the case on which we would
not like to express any opinion as the requisite pleadings and material are not
available before us.
For
the foregoing reasons, the appeals are allowed. The impugned orders of the High
Court are set aside. No order as to the costs.
We
make it clear that anything said in this order shall not prejudice any plea
raised or any issue arising for decision in any election petition which has
been filed or may be filed and the same shall be decided on its own merits
un-obsessed by any observation made herein.
Back