1977 (12) TMI 138 - SC - Indian Laws

Maintainability of the writ application - Election petition - 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 - Jurisdiction to entertain the writ application under Article 226 of the Constitution - doctrine of natural justice - procedural fairness - interpretation of statutes - principle of nemo judex - Whether there may not be sufficient justification to negative the existence of any implied duty on the part of the Commission at that stage to hear any party before taking its decision to order or not to order a report? HELD THAT - Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers 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 since those names are known can be ordered taking care to preserve the secrecy of the vote. The Court may if necessary after setting aside the election of R. 3 (if there are good grounds therefore keep the case pending issue directions for getting available votes order recount and or partial re-poll keep the election petition pending and pass final orders holding the appellant elected if-only if-valid grounds are established. Such being the wide ranging scope of implied powers we are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court s powers to grant and Sri Rao s alarm is unfounded. For this limited purpose we set down our holdings 1 (a) Art. 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election in this context has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.. (a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers duties and functions of many sorts administrative or other depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly when Parliament or any State Legislature has made valid law relating to or in connection with elections the Commission shall act in conformity with not in violation of such provisions but where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of not divorced from pushing forward a free and fair election with expedition. Secondly the Commission shall be responsible to the rule of law act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt natural justice enlivens and applies to the specific case of order for total repoll although. not in full penoply but in full penoply but in flexible practicability. Whether it has been compiled with is left open for the Tribunal s adjudication. 3. The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the postelection stage and procedure as predicated in Art. 329(b) and the 1951 Act. The Election Tribunal has under the various provisions of the Act large enough powers to give relief to an injured candidates if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law. In sum a pragmatic modus vivendi between the Commission s paramount constitutional responsibility vis-a-vis elections and the rule of law vibrant with fair acting by every authority and remedy for every right breached is reached. We conclude stating that the bar of Art. 329(b) is as wide as the door of. s. 100 read with s. 98. The writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach. On this view of the law ubi jus ibi remeditum is vindicated election injustice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down we dismiss the appeal.

Summary

The judgment addresses three principal constitutional and legal issues arising from the cancellation of a parliamentary election poll by the Election Commission after polling and partial counting had been completed but before the formal declaration of results. The core legal questions considered are:

1. Whether Article 329(b) of the Constitution operates as a complete bar on judicial interference, including writ petitions under Article 226, in election matters arising between the notification of election and the declaration of results, and whether Section 100 of the Representation of the People Act, 1951 (the Act) comprehensively covers all grounds for challenging an election, including cancellation of a poll.

2. Whether the Election Commission, under its constitutional power vested by Article 324, can cancel an entire poll after it has been conducted but before declaration of results, and order a fresh poll for the whole constituency without strict adherence to statutory provisions such as Sections 58 and 64A of the Act, and whether such power is exercisable solely on subjective satisfaction or subject to judicial review based on objective criteria.

3. Whether the Election Commission's exercise of power under Article 324 is subject to the principles of natural justice, particularly the right to a hearing, or whether natural justice is excluded or limited in election matters due to the urgency and public interest in completing elections expeditiously.

Issue-wise Detailed Analysis

1. Scope and Effect of Article 329(b) and Section 100 of the Act

The Court examined Article 329(b), which provides that no election to Parliament or State Legislatures shall be called in question except by an election petition presented in the manner prescribed by law. This provision contains a non-obstante clause, effectively excluding other remedies, including writ petitions under Article 226, during the election process.

The Court relied heavily on the landmark precedent interpreting Article 329(b), which held that the term "election" is to be understood in a wide sense, encompassing the entire process from notification to declaration of results. The rationale is to prevent undue delay or obstruction in the election process, ensuring prompt constitution of the legislature. The Court emphasized that any challenge to election-related matters during the process should be deferred to the election petition stage after the election is complete.

Section 100(1)(d)(iv) of the Act was interpreted as a broad residual provision covering all forms of "non-compliance" with constitutional or statutory provisions affecting an election. The Court held that this section is sufficiently wide to encompass challenges to the Election Commission's orders under Article 324, including cancellation of polls, as any illegal or arbitrary exercise of power constitutes "non-compliance."

The Court clarified that the bar under Article 329(b) is as broad as the reliefs available under Section 100 and Section 98 of the Act. Thus, challenges to electoral steps taken in furtherance of the election process, including cancellation and ordering of repolls, are barred from judicial interference during the election process and must be raised only through election petitions.

However, the Court distinguished between acts done to further the election process and acts that thwart or prevent it. The former are protected by Article 329(b), while the latter may be subject to judicial review.

2. Powers of the Election Commission under Article 324 to Cancel Polls and Order Repolls

The Court examined the scope of Article 324, which vests the Election Commission with superintendence, direction, and control of elections. It recognized that while the Commission must act in conformity with existing laws and rules, Article 324 also confers plenary powers to deal with unforeseen or extraordinary situations not expressly provided for in legislation.

The Court rejected the argument that the Commission lacked power to cancel an entire poll after it had been conducted peacefully. It held that Sections 58 and 64A of the Act, which provide for adjournment or repoll at specific polling stations, are not exhaustive and do not preclude the Commission from ordering a repoll of the entire constituency if circumstances so warrant.

The Court emphasized that the existence of power is distinct from the mode of its exercise. Even if the Commission's order is arbitrary or illegal, the power to act exists. The validity and legality of the exercise of power are matters for judicial scrutiny, but the power itself is constitutionally conferred.

The Court further explained that the cancellation of the poll and ordering of a fresh poll are steps within the wide ambit of the election process, and thus protected by Article 329(b) from intermediate judicial interference.

Moreover, the Court noted that the President's notification calling the election is not immutable and that after notification, the conduct and completion of the election lie exclusively with the Election Commission.

3. Application of Natural Justice to Election Commission's Orders under Article 324

The Court undertook an extensive analysis of the doctrine of natural justice, emphasizing its fundamental role as "fair play in action" and its pervasive application in administrative law. It rejected the notion that natural justice is excluded in election matters or that the Election Commission is immune from its requirements.

However, the Court acknowledged the practical difficulties in applying full procedural fairness in the time-sensitive and complex context of elections. It recognized that the content and extent of natural justice are flexible and depend on the circumstances, the nature of the function, and the urgency involved.

The Court held that while the Election Commission is not required to conduct elaborate hearings or follow formal trial procedures, it must afford a reasonable opportunity to affected candidates to present their case, even if minimally or post-decisional. The principle of audi alteram partem applies, albeit in a pragmatic and situationally adapted manner.

The Court rejected arguments that the Commission's order did not affect any civil rights or that the multiplicity of voters made notice and hearing impracticable. It distinguished candidates, who have a direct and vital stake in the election process, from the general electorate. Candidates must be afforded procedural fairness.

The Court also considered comparative jurisprudence and administrative law principles, concluding that natural justice is a necessary check on the exercise of the Commission's wide powers to prevent arbitrary or mala fide action.

4. Jurisdiction of Courts and Election Tribunals

The Court held that writ petitions under Article 226 challenging election steps during the election process are barred by Article 329(b). The High Courts and the Supreme Court have jurisdiction to entertain election petitions after the election is complete, as provided by the Act.

The Court criticized the High Court for proceeding to decide merits of the writ petition despite holding it lacked jurisdiction. It clarified that the Election Tribunal has exclusive jurisdiction to decide election disputes, including challenges to the Commission's orders, and may grant all necessary reliefs, including setting aside election results, ordering recounts, or directing fresh polls.

The Court emphasized the doctrine of implied powers vested in the Election Tribunal to enable it to grant complete and effective relief, including ancillary orders to the Election Commission or other agencies to conduct polls or recounts as necessary.

5. Application of Law to the Facts of the Case

The Court refrained from deciding factual controversies, such as the extent of destruction of ballot papers or the conduct of the mob violence, recognizing that these are matters for the Election Tribunal to determine after trial.

It noted that the Election Commission acted on reports of violence and destruction of ballot papers, which justified, prima facie, the cancellation and ordering of a fresh poll. However, whether the Commission acted arbitrarily, capriciously, or in violation of natural justice is a matter for the Tribunal.

The Court held that the writ petition challenging the cancellation and repoll order amounted to "calling in question" a step in the election process and was therefore barred by Article 329(b).

6. Treatment of Competing Arguments

The appellant argued that the Commission lacked power to cancel the entire poll and that the writ petition was maintainable. The Court rejected these contentions, holding that the Commission's power under Article 324 is plenary and that the writ petition was barred by Article 329(b).

The respondents and the Commission contended for a broad interpretation of Article 324 and a strict bar under Article 329(b). The Court accepted the broad power of the Commission but imposed the limitation that it must act bona fide, within law, and subject to natural justice.

The Court also rejected the argument that natural justice was excluded due to urgency or impracticability, holding that minimal procedural fairness must be observed.

Significant Holdings

"Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result."

"The word 'election' in this context has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate."

"The Election Commission's plenary power under Article 324 includes the power to cancel a poll and order a fresh poll for the entire constituency if circumstances so require, even if not explicitly provided for under the Act."

"The Election Commission must act in conformity with existing laws, bona fide, and subject to the rule of law and natural justice, which requires at least a minimal opportunity of hearing to affected candidates before passing orders prejudicial to them."

"Writ petitions under Article 226 challenging election steps during the election process are barred by Article 329(b); the exclusive remedy lies in election petitions under the Act after the election is complete."

"The Election Tribunal has wide powers under Sections 98 and 100 of the Act, including implied powers, to grant complete relief and to direct the Election Commission to take necessary steps to effectuate justice."

"The bar of Article 329(b) is as wide as the door of Section 100 read with Section 98 of the Act; this ensures that election injustice is avoided and the constituency's voice is effectively heard."

"Fair hearing is a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible. It cannot be fair if apprising the affected and appraising the representations is absent."

"The Election Commission is not an imperium in imperio and is amenable to judicial review for arbitrary or mala fide exercise of power."

"The Election Commission's order cancelling the poll and ordering a fresh poll is a step in the election process and is protected from interim judicial interference, but its legality can be challenged in an election petition."

The Court dismissed the appeal, affirming the High Court's dismissal of the writ petition on jurisdictional grounds, but clarified that the appellant's rights and grievances can be fully adjudicated in the pending election petition. The Court emphasized the delicate balance between the need for expeditious, uninterrupted elections and the imperative of fairness, legality, and judicial oversight to uphold democratic principles.