TMI Blog1977 (12) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... rt will not make the task of the election court difficult and embarrassing by suggesting guidelines in a rather twilight zone. - Civil Appeal No. 1297 of 1977. - - - Dated:- 2-12-1977 - KRISHNAIYER, V.R., BEG, M. HAMEEDULLAH, BHAGWATI, P.N., GOSWAMI, P.K. AND SHINGAL, P.N., JJ. For the Appellant.: P. P. Rao, A. K. Ganguli and Ashwani Kumar For the Respondent: Soli J. Sorabjee, Additional Solicitor General, E. C. Agarwala, B. N. Kripal, Girish Chandra , M.N. Phadke, S. S. Bindra, Hardev Singh and R. S. Sodhi JUDGMENT: KRISHNA IYER, J.- What troubles us in this appeal, coming before a Bench of 5 Judges on a reference under Article 145(3) of the Constitution, is not the profusion of controversial facts nor the thorny bunch of lesser law, but the possible confusion about a few constitutional fundamentals, finer administrative normae and jurisdictional limitations bearing upon elections. What are those fundamentals and limitations? We will state them, after mentioning briefly what the writ petition, from which this appeal, by special leave, has arisen, is about, The basics Every significant case has an unwritten legend and indelible lesson. This appeal is no e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (respondent 2). According to the scheme the postal ballots are to arrive at the returning officer's headquarters at Ferozepore where they are to be counted. The final tally is made when the ballot boxes and the returns duly reach the Ferozepore headquarters front the various segment headquarters. The poll proceeded as ordained, almost to the very last stages, but the completion of the counting at the constituency headquarters in Ferozepore was aborted at the final hour as the postal ballots were being counted-thanks to mob violence allegedly mobilised at the instance of the third respondent., The appellant's version is that he had all but won on the total count by a margin of nearly 2000 votes when the panicked opposite party havoced and halted the consummation by muscle tactics. The postal ballot papers were destroyed. The, ballot boxes from the Fazilka segment were also done away with en route, and the returning officer was terrified into postponing the declaration of the result. On account of an earlier complaint that the returning officer was a relation of the appellant, the Election Commission (hereinafter referred to as Commission) had: deputed an officer of the Commission- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned that in two polling stations divergent practices were adopted in regard to testing valid and invalid votes. To be more pracise, Shri IKK Menon mentioned' in his report that at polling station no. 8, the presiding officer's seal on the tag as well as the paper seal of one box was broken. But the ballot papers contained in that box were below 300 and would not have affected the result in the normal course. In another case in Jalalabad assembly segment, the assistant returning officer had rejected a number of ballot papers of a polling station on the score that they were not signed by the presiding officer. In yet another case it was reported that the ballot papers were neither signed nor stamped but were accepted by the assistant returning officer as valid, although the factum was not varified by Shri Menon with the assistant returning officer. Shri Menon, in his report, seems to have broadly authenticated the story of the mob creating a tense situation leading to the military being summoned. According to him only the ballot papers of Fazilka assembly segment were destroyed, not of the. Other segments. Even regarding Fazilka, the result-sheet had arrived. So, far as Zira assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly segments of the Parliamentary constituency have been destroyed by violence; that as a consequence it is not possible to complete the counting of the votes in the constituency and the declaration of the result cannot be made with any degree of certainty: And whereas the Commission is satisfied that taking all circumstances into account, the poll in the constituency has been vitiated to such an extent as to effect the result of the election; Now, therefore, the Commission, in exercise of the powers vested in it under Article 324 of the Constitution, Section 153 of the, Representation of the People Act, 1951 and all other powers enabling it so to do, cancels the poll already taken in the constituency and extends the time for the completion of the election up to 30 April, 1977 by amending its notification No. 464/77, dated 25 February, 1977 in respect of the above election as follows :- In clause (d) of item (i) of the said notification, relating to the completion of election- (a) in the existing item (i), after the words "State of Jammu and Kashmir", the words "and 13-Ferozepur Parliamentary constituency in the State of Punjab" shall be inserted; and (b) The existing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji A.I.T. 1952 S.C. 16 "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older: A Caveat. We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certain circumstances, to declare the law by virtue of its position under Article 141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly. The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later. Operation Election Before we proceed further, we had better have a full glimpse of tie, constitutional scheme of elections in our system and the legislative follow-up regulating the process of election. Shri Justice Mathew in lndira Nehru Gandhi [1976] 2 S.C.R. 347 summarised skeletal fashion, this scheme following the pattern adopted by Fazal Ali, J. in Ponnuswami. 1952 SCR 218. He explained : "The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding of free elections, are the specifics. Part XV of the Constitution plus the Representation of the People Act, 1950 (for short, the 1950 Act) and the Representation of the People Act, 1951 (for short, the Act), Rules framed there under, instructions issued and exercises prescribed, constitute the package of electoral law governing the parliamentary and assembly elections in the country. The super-authority is the Election Commission, the kingpin is the returning officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions. The scheme is this. The President of India (Under Section 14) ignites the general elections across the nation by calling upon the People, divided into several constituencies and registered in the electoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise involving a plethora of details and variety of activities, and starts off with the notification of the time table for the, several stages of the election (Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 324 and the provisions of the, Act together since they are integral to each other. Indeed, if we may mix metaphors for emphasis, the legislation made pursuant to Article 327 and that part of the Constitution specially devoted to elections must be viewed as one whole picture, must be heard as an orchestrated piece and must be interpreted as one package of provisions regulating perhaps the most stressful and strategic aspect of democracy-in-action so dear to the nation and so essential for its survival. The lis and the issues Two prefatory points need to be mentioned as some reference was made to them at the bar. Firstly, an election dispute is not like an ordinary lis between private parties. The entire electorate is vicariously, not inertly, before the court. (See 1959 SCR 611, 616, 622). We may, perhaps, call this species of cases collective litigation where judicial activism assures justice to the constituency, guardians the purity of the system and decides the rights of the candidates. In this class of cases, where the common law tradition is partly departed from, the danger that the active judge may become, to some extent, the prisoner of his own prejudices exists; and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Election Commission, clothed with the comprehensive functions under Article 324 of the Constitution, cancel the whole poll of a constituency after it has been held, but before the formal declaration of the result has been made, and direct a fresh poll without reference to the guidelines under ss. 58 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary power exists, is it exercisable on the basis of his inscrutable 'subjective satisfaction' or only on a reviewable objective assessment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and directions of a fresh poll not merely of particular polling stations but of the total constituency ? 3. Assuming a constitutionally vested capacity tinder Art. 324 to direct re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first occasion ? Or, is the Election Commission immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the respondents, is imperative and goaloriented. Is this Great Wall of China, set up as a preliminary bar, so impregnable that it cannot be by passed even by Art. 226 ? That, in a sense, is the key question that governs the fate of this appeal. Shri P. P. Rao for the appellant contended that, however, wide Art. 329(b) may be, it does not debar proceedings challenging, not the steps promoting election but dismantling it, taken by the Commission without the backing of legality. He also urged that his client, who had been nearly successful in the poll and had been deprived of it by an illegal cancellation by the Commission, would be left in the cold without any remedy since the challenge to cancellation of the completed poll in the entire constituency was not covered by s. 1 00 of the Act. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Art. 329(b) and s. 100 and search for a solution. The problem may seem prickly but an imaginative application of principles and liberal interpretation of the constitution and the Act will avoid anomalies and assure justice. if we may anticipate our view which will presently be explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance' holds in its fold a teleologic signification which resolves the riddle of this case in, a way. So we will address, ourselves to the meaning of meanings the values within the words and the 'project unfolded'. This will be taken up one after the other. At the first blush we get the comprehensive impression that every calling in question of an election save, at the end, by an election petition, is forbidden. What, then, is an election ? What is 'calling in question ? Every step from start to finish of the total process constitutes 'election', not merely the conclusion or culmination. Can the cancellation of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, non-step or anti-step setting at nought the process and, therefore, not a step towards the goal and hence liberated from the coils of Art. 329(b) ? And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do 9 This takes us to the enquiry about the ambit of S. 100 of the Act and the object of Art. 329 (b) read with Art. 324. Such is the outline of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the legislatures have to play a very important role, it will lead to serious consequences if the elections are unduly protracted or obstructed.' In the view of the, learned Judge, immediate individual relief at an intermediate stage when the process of election is under way has to be sacrificed for the paramount public good of promoting the completion of elections. Fazal Ali, J. ratiocinated on the ineptness of. interlocutory legal bold-ups. He posed the issue and answered it thus : "The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of-the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to. be that any matter which has the effect of vitiating an election sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously, the Act is selfcontained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected made thereunder. The provisions of the Act which are material to the present discussion are sections 60, 100, 105 and with elections, we have only to look at the Act and the rules 170, and the provisions of Chapter 11 of Part IV dealing with the form of election petitions , their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as article 329(b) provides that ,no election shall be called in question except by an election petition presented in accordance with the provisions of this Part'. Section 1 00, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper, Section 105 says that 'every order of the Tribunal made under this Act shall be final and conclusive. Section 170 provides that 'no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which bad stood the test of time." Likewise the Court discussed the, connotation , of the expression election' in Article 329 and observed: "That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide, sense, the word is used to connote the entire process culminating in a candidate being declared elected. it seems to me that the word "election " has been used in Part XV of the Constitution in the wide sense, that to say to connote the entire procedure, to be gone through to return a candidate to the legislature. That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out bythe fact that in most of the books on the subject an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression-no election shall be called in question" in this context and setting with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no, bearing on this method of approach to the question posed in this appeal, which appears to me the only correct method." What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to 'calling in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329(b) does not bind. If 'election' bears the larger connotation, if 'callinng in question' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting the conclusion is irresistible' even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed Poll process and to, complete it through the salvationary effort of a repoll. Whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or it many polling stations for good reasons, is lawful. This shows that re-poll in many or all segments, all-pervasive or isolated, can be lawful. We are not considering w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the holding of elections under s. 15 and the Commissioner publishes the calendar for the poll under s. 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, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the courts review of that order will facilitate the flow, not stop the stream. Election, Wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all. A poll is part-a vital part-of the election but with the end of the poll the whole election IS not over. Ballots have to be assembled, scrutinised, counted recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector's choice only when processed, screened and sanctified, every escalatory step upto the formalised finish being unified in purpose, forward in movement, fair and free in its temper. Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with natural justice ? Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the ex-tent be insists that if competent legislative is enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi : (supra) "In the opinion of some of the judges constituting the majority in Bharati's case (supra), Rule of Law is a basic structure of the Constitution apart from democracy. The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere." (p. 523) And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6] 2 S.C.R. 347 at 657).The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which have held that Art. 324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Aft. 324-provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao's broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself. Broad authority 3 does not bar scrutiny into specific validity of the particular order. Our conclusion on this limb of the contention is that Art, 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out. Now we move on to a close-up of the last submission bearing on the Commission's duty to functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala ([1969] 1 S.C.R. 317) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever,. a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." (p. 469) It is an interesting sidelight that in America it has been held to be 'but fundamental fairness that the tight to an administrative hearing is given. (See Boston University Law Review Vol. 53 p. 899). Natural justice is being given access to the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng morebut nothing less. The 'exceptions' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation. Let us look at the jurisprudential aspects of natural justice, limited to the needs of the present case, as the doctrine has developed in the Indo-Anglian systems. We may state that the question of nullity does not arise here because we are on the construction of a constitutional clause. Even otherwise, the rule of natural justice bears upon construction where a statute is silent save in that category where a legislation is charged with the vice of unreasonableness and consequential voidness. Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old every functionary who effects others' right to it. The audi alteram partem rule has a few facets two of which are (a) notice of the case to be met; and (b) opportunity to explain. Let us study how far the situation on hand can coexist with canons of natural justice. When natural justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings. Ridge v. Baldwin ([1964] A.C. 40) is a leading case which restored light to an area 'benighted by the narrow conceptualism of the previous decade to borrow Professor Clark's expression. (Natural Justice; Substance and Shadow-'Public Law' JoumalSpring 1975). Good administration demands fairplay in action and this simple desideratum is the fount of natural justice. We have already said that the classification of functions as judicial' or 'administrative' is a stultifying shibboleth, discarded in India as in England. Today, in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fairplay into its w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mo judex aspect) with expressiveness. "Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the judge was biased'."We may adapt it to the audi alteram situation by the altered statement : "Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'noconfidence' will be heard to say, 'that man had no chance to defend his stance'." That is why Tuckor LJ in Russol v. Duke of Norfolk [(1949) 1 All E.R. 109,118]. emphasised that 'whatever standard of natural justice is adopted, one A, essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is 'in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando(1) observed that 'while great urgency may rightly limit such opportunity timeously : perhaps severely there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy, in our view, to look jaw the victim or act behind his back by tempting inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst a man. Suffice it if the broad grounds are given. It neednot name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report." Courts must be tempered by the thought while compromise on principle is unprincipled, applied administrative law in modern complexities of government must realistic, not academic. The myriad maybes and the diverse urgencies are live factors. Natural justice should not destroy administrative order by insisting on the impossible. This general discussion takes its to four specific submissions made by the learned Additional Solicitor General. He argued that the Election Commission, a high constitutional functionary, was charged with conducting elections with celerity to bring the new House into being and the tardy process of notice and hearing would thwart this imperative. So no natural justice. Secondly, be submitted that there was no final determination to the prejudice of any party by directing a re-poll since the Election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the early constitution of an elected parliament may be halted. Therefore, think twice before obligating a hearing at a critical stage when a quick repoll is the call. The point is well taken. A fair hearing with fun notice to both or others may surely protract; and notice does mean communication of materials since no one can meet an unknown ground. Otherwise hearing becomes hollow, the right becomes a ritual. Should the cardinal principle of 'hearing' as condition for decision-making be martyred for the cause of administrative, immediacy ? We think not. The full panoply may not be there but a manageable minimum may make-do. In Wiseman v. Bornenwn ([1967] 3 All F.R. 1945) there was a hint of the competitive claims of hurry and hearing. Lord Reid said : 'Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give fall opportunity to the defendant to see material against him (emphasis added). We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude no essential in ,in election under way. Even so, natural justice is pragmatically fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, not an easy casualty. The learned Additional Solicitor General urged that even assuming that under ordinary circumstances hearing should be granted, in the scheme of Art. 324 and in the situation of urgency confronting the Election Commission it was not necessary. Here we must demur. Reasons follow. It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Rain Gopal ([1970] 1 S.C.R. 472) and Col. Sinha ([1971] 1 S.C.R. 791). Of course, we agree that if only spiritual censure is the penalty, temporal laws may not take cognisance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves,; by passing verbal boobytraps ? 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s too, in our view, is legicidal sophistry. Our system of 'ordered' rights cannot disclaim cognizance of orderly processes as the right means to a right end. Our jurisprudence is not so jejune as to ignore the concern with the means as with the end with the journey as with the destination. Every candidate, to put it cryptically, has an interest or right to fair and free and legally run election. To draw lots and decide who wins, if announced as the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a processual right actionable if breached, the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream. It is a subtle fallacy to confuse between the two. Victory is still an expectation qua mwde is a right to the statutory procedure. The appellant has a right to have the election conducted nor according to humour or hubris but according to lay and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import. But. in the present case, the Election Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea of natural justice when a whole examination was cancelled by the concerned university authorities. The reasons given are instructive. The learned Judge said that "the mention of fairplay does not come very well from the respondents who were grossly guilty of breach of fairplay themselves at the examinations." The court examined the grounds for cancellation of examinations and satisfied itself that there was undoubted abundance of evidence that students generally bad outside assistance in answering questions. The teamed Judge went on further to say : "This is not a case of any particular individual who is being charged with, adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging anyone individually with unfair means but to condemn the examination as ineffective for the purpose it was hold, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that matter, for the entire country, since the success of democracy depends on country-wide elections being held periodically and properly. Such interest is too remote and recondite, too feeble and attenuated. to be taken note of in a cancellation proceeding. What really marks the difference is the diffusion and dilution. The candidates. on the other hand, are the spearheads, the combatants, the claimants to victory. They have set themselves up as nominated candidate organised the campaign and galvanised the electorate for the crown inevent of polling and counting. Their interest and claim are not indifferent but immediate, not weak but vital. They are more than the members of the public. They are parties to the electoral dispute. In this sense, they stand on a better footing and cannot be denied the right to be heard or noticed. Even in the case of university examinations it is not a universal rule that notice need not be given. Ghanshyam Das Gupta's ([1962] Supp 3 S.C.R. 236) case illustrates this aspect. Even there, when an examination result of three candidates was cancelled the, Court imported natural justice. It was said that even if the enquiry involved a large number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice may apply to cases where the act in question is more properly described as administrative than or quasi-judicial : See Ridge v. Baldwin ((1964) A.C. 40) and t v. Secretary of State for Home Affairs." (p. 747) The Indian parallel would be an argument for notice and hearing from a police officer when he investigated and proceeded to lay a chargesheet because he thought that a case to be tried by the court had been made out. The present case stands on a totally different footing. What the Election Commission does is not the ascertain whether a prima facie case exists or an ex parte order, subject to modification by him is to be made. If that were so Pearlberg would have been an effective answer. For, Lord Denning luminously illustrates the effect "I would go so far with him as to say that in reaching a prima facie decision, there is a duty on any tribunal to act fairly; but fairness depends on the task in hand. Take an application to a court by statute, or by the rules, or, as a matter of practice, is made ex parte. The Court itself is a custodian of fairness. If the matter is so urgent that an order should be made forthwith, before hearing the other si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or quasi-judicial functions are entrusted is held to be required, to apply those principles in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required, although, as 'Parliament' not to be presumed to act unfairly', the courts, may be able in suitable cases (perhaps always) to imply an obligation to act with fairness. Fairness, however, does not necessarily require a plurality of bearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed. The disadvantage of a plurality of hearings even in the judicial sphere was cogently pointed out in the majority judgment in Cozens v. North Doven Hospital Management Committee((1966) 2 Q.B. 330, 343, 346-347). (p. 547) Lord Salmon put the matter pithily "No one suggests that it is unfair to launch a criminal prosecution without first hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detriment of all." (P. 60 : Public Law Spring 1975 Stevens--Natural Justice : Substance and shadow) Our constitutional order pays more than lip-service to the rule of reasonable administrative process. Our people-are not yet conscious of their rights; our administrative apparatus has a hard of-hearing heritage. Therefore a creative play of fairplay, irksome to some but good in the long run, must be accepted as part of our administrative law. Lord Hailsham L.C. in Pearlbeg presaged : "The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and (the House of Lords) in particular, have advanced its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what is required in individual cases. (P. 63, Public Law Spring 1975 supra) And in India this case is neither the inaugural nor thevaledictory of natural justice. Moreover, Sri Rao's plea that when the Commission cancels, viz., declares the poll void it is performing more than an administrative function merits, attention, although we do not pause to decide it. We consider that in the vital area of elections where the peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , impugned orders was scary, arbitrary, whimsical or arrived at by omitting material considerations. Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing. If two views are possible, the Court cannot interpose its view. If no view is possible the Court must strike down. We have projected the panorama of administrative law at this length so that the area may not be befogged at the trial before the Election Court and for action in future by the Election Commission. We have held that Art. 329(b) is a bar for intermediate legal proceedings calling in question the steps in the election outside the machinery for deciding election disputes. We have further held that Art. 226 also suffers such eclipse. Before the notification under s. 14 and beyond the declaration under r. 64 of Conduct of Election Rules, 1961 are not forbidden ground. In betweenis, provided, the step challenged is taken in furtherance of not to halt or hamper the progress of the election. We have clarified that what may seem to be counter to the match of the election process may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratic destiny. We view this case with the seriousness of John Adams' warning : "'Remember', said John Adams, 'remember', democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide." (Quoted from M. Hidayatullah in "Democracy in India and the Judicial Process" Lajpat Rai Memorial Lectures : P. 16) Only one issue remains. Is, the provision in S. 100 read with s. 90 sufficient to afford full relief to the appellant if the finding is in violation or mat-exercise of, powers under Art. 324 ? Sri Rao says 'NO' while the opposition says 'YES'. Lot us follow the appellant's apprehension for a while to test its tenability. He says that the Commissioner has no power to cancel the election to a whole constituency. Therefore, the impugned order is beyond his authority and in excess of his functions under Art. 324. Moreover, even if such power exists it has been exercised illegally, arbitrarily and in violation of the implied obligation of audi alteran partem. In substance, his complaint is that under guise of Art. 324 the Commissioner has acted beyond its boundaries, in breach of its content and oblivious of its under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s election petition is dismissed on the ground that the Election Court had no power to examine the cancellation of poll now that a fresh poll has taken place, he will be in the unhappy position of having to forfeit a nearvictory because a gross illegality triumphs irremediably. If this were true the hopes of the rule of law turn into dupes of the people. We have given careful thought to this tragic possibility and are convincedindeed, the learned Solicitor General has argued for upholding, not subverting the rule of law and agrees-that the Election Court has all the powers necessary to grant all or any of the reliefs set out in sec. 98 and to direct the Commissioner to take such ancillary steps as will render complete justice to the appellant. Section 98, which we have read earlier, contemplates three possibilities when an election petition is tried. Part VI of the Act deals with the complex of provisions calculated to resolve election disputes. A match past this Part discloses the need to file an election petition (S. 60) the jurisdiction to try which is vested in the High Court (80A). Regulatory of the further processes on presentation of a petition are sees. 81 to 96. If a can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dke agree to this proposition and Sri Rao, in the light of the election petition filed and is pending, cannot but assent to it. By way of abundant caution or otherwise, the appellant has challenged, in his election petition, the declaration of the 3rd respondent as the returned candidate. He has also rayed for his being declared the duly elected candidate. There is no disputethere cannot be.--that the cornerstone of the second constituency-wide poll High Court for any good reason then the second poll falls and the 3rd respondent too with it. This question of the soundness of the cancellation of the entire poll is within the court,s power under s. 98 of the Act. All are agreed on this.In that eventuality, what are the follow-up steps? Everything necessary to resurrect reconstruct and lead on to a consummation of the original process. Maybe, to give effective relief by-way of completion of the broken election the Commissioner may have to be directed to hold fresh poll and report back together with the ballots. A recount of all or some may perhaps be required. Other steps suggested by other developments may be desired. If anything integrally linked up with and necessitated by the obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preservation of the public health, interest and convenience, was permitted to construct a protecting wall and pumping plant which were necessary for the proper working of the sewer. but were essential to public health. A country school superintendent, who was by statute given general supervisory power over a special election, was permitted to issue absentee, ballots. The power to arrest has been held to include the power to take finger prints, and take into custody non-residents who were exempted from the provisions of a licensing statute." 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 20, 1977 and it actually continued on March 21, 1977. This Parliamentary Constituency consisted of nine Assembly Constituencies including the Fazilka and Zira Assembly segments. We may now briefly state the appellants' case so far as it is material : The poll in the entire Parliamentary Constituency was peacefully over on March 16, 1977. Counting in five Assembly segments was completed on March 20, 1977, and in the remaining four it was completed on March 21. The Assistant Returning Officers made entries in the result sheets in form 20 and announced the number of votes received by each candidate in the Assembly segments. No recounting was asked for by any candidate or his polling agent in any segment. Copies of the result sheets in Form 20 were handed over to the candidates or to their polling agents. The ballot papers and the result sheets of all the nine Assembly segments were transmitted by the Assistant Returning Officers concerned to the Returning Officer at the Headquarters. According to the result sheets the appellant, who was the Congress candidate, secured 1,96,016 votes, excluding postal ballots, as 'against his nearest rival candidate respondent No. 3, belonging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er being apprised of the same the Chief Election Commissioner of (respondent No. 1) appointed Shri I. K. K. Menon, Under Secretary, Election Commission, as an Observer to be present at Ferozepore from March 16 till March 21 on which date the result was expected to be declared. On March 22, 1977, the Chief Election Commissioner received a wireless message from the Returning Officer which may be quoted "Mob about sixteen thousand by over powering the police attacked the counting hall where postal ballot papers were being counted. Police could not control the mob being out numbered. Part of postal ballot papers excepting partly rejected ballot papers and other election material destroyed by the mob. Lot of damage to property done. 'The undersigned was forced under duress to give in writing the following : 'The counting of 13 Parliamentary Ferozepore Constituency has been adjourned due to certain circumstances which have been mentioned in the application presented by Shri Mohinder Singh Sayanwala regarding repoll of the constituency and on the polling station in which the ballot boxes have been r to be tampered with. This will be finally decided on receipt of instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court with prayer to issue (1) a writ of certiorari calling forth the records for the purpose of quashing the impugned order; and (2) 'a writ of mandamus directing the Chief Election Commissioner and the Returning Officer to declare the result of the election; (3) alternatively, a writ of mandamus directing the Chief Election Commissioner to act strictly in accordance with the provision of section 64A(2) thus confining its directions in regard to postal ballot papers only. The appellant made three contentions before the High Court. Firstly, that the Election Commission had no jurisdiction to order re-poll of the entire Parliamentary Constituency. Secondly, the impugned order was violative of the principles of natural justice as no opportunity of a hearing was afforded to the appellant before passing the order. Thirdly,' that the High Court under Article 226 of the Constitution was competent to go into the matter notwithstanding the provisions of Article 329(b) of the Constitution. The application was resisted by the Chief Election Commissioner (respondent No. 1) and respondent No 3, the rival candidate. A preliminary objection was raised by respondents 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was "heard not only before the issue of the notification but in any case after the notification". The High Court also 'held that it bad no jurisdiction to entertain the writ petition in view. of the bar contained in Article 329(b) of the Constitution. This appeal has come up for hearing before this' Constitution Bench on a reference by a Two-Judge Bench as substantial questions of law have arisen as to the, interpretation of the Constitution, in particular Article 324 and Article 329(b) of the Constitution. We should,. therefore, immediately address ourselves to that aspect of the matter. What is the scope and ambit of Article 324 of the Constitution ? The Constitution of our country ushered in a Democratic Republic for the free people of India. The founders of the Constitution took solemn care to devote a special chapter to Elections niched safely in Part XV of the Constitution. Originally there were only six articles in this Part opening with Article 324. The penultimate Article in the chapter, as it stands, is Article 329 which puts a ban on interference by courts in electoral matters. We are not concerned in this appeal with the newly added Article 329A which is the las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution which the High Court bad dismissed. With regard to the construction of Article 329(b) it was held that "the more reasonable view seems to be that article 329 covers all electoral matters"'. This Court put forth its conclusions in that decision as follows :- "(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 significance 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing powers. Powers and duties are integrated with function. Article 324(1) vests in the Election Commission 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 the President and Vice-President held under the Constitution. Article 324(1) is thus pattern of our polity, isto be exercised in accordance with law. That is why Articles 327 and328 provide for making of provisions with respect to all matters relating to or in connected with elections for the Union Legislatures and for the State Legislatures respectively. When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder. Even so, both Articles 327 and 328 are "subject to the provisions" of the Constitution which include Article 324 and Article 329. Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the duty. That which is clearly implied is as much a part of a law as that which is expressed."(1) The Chief Election commissioner has thus to pass appropriate orders on receipt of reports from the returning officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders. Moreover, the power has to be exercised with promptitude. Whether an order passed is wrong. arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Act or the rules made in that behalf, or under Article 324(1). Apart from the several functions envisaged by the two Acts and the rules made thereunder, where the Election Commission is required to make necessary orders or directions, are there any other functions or the Commission ? Even if the answer to the question may be found elsewhere, reference may be, made to section 19A of the Act which, in terms, refers to functions not only under the Representation of the People Act, 1950 and the Representation of the People Act, 1951, or under the rules made thereunder, but also under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... multiple polling stations. Both under section 58 and under section 64A the poll that was taken at a particular polling station can be voided and fresh poll can be ordered by the Commission. These two sections naturally envisage a particular situation in a polling station or a place fixed for the poll and cannot be said to be exhaustive. The provisions in sections 5 8 and 64A cannot therefore be said to rule out the making of an order to deal with a similar situation if it arises in several polling stations or even sometimes as a general feature in a substantially large area. It is, therefore, not possible to accept the contention that the Election Commission has no power to make the impugned order for a re-poll in the entire constituency. Mr. Rao submits that once the Presidential notification has been made, it is left to the President alone to amend or alter the notification and power, in an appropriate case, may be exercised by the President in which case the action of the President will be on the advice of the Cabinet which will be responsible to the Legislature. He submits that it was not the intention of the Constitution makers in the entire scheme of the electoral provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, the order therefor, with the amended date is passed as an integral part of the electoral process. We are not concerned with the question whether the impugned order is right or wrong or invalid on any account. Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections. Although that is not always decisive, the impugned order itself shows that it has been passed in the exercise of power under Article 324 (1) and section 153 of the Act. That is also the correct position. Such an order, relating, as it does, to election within the width of the expression as interpreted by this Court, cannot be questioned except by an election petition under the Act. What do the appellants seek in the writ application ? One of their prayers is for declaration of the result on the basis of thePoll which has been cancelled. This is nothing short of seeking to establish the validity of a very important stage in the election process, namely, the poll which has taken place, and which was countermanded by the impugned order. If the appellants succeed, the result may, if possible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered by the Election Commission. The High Court of Punjab and Haryana will therefore be free to decide that petition in accordance with law. It is submitted by Mr. Rao that in Ponnuswami (supra) the question was of improper rejection of nomination paper which is clearly covered by section 100(1)(c) of the Act. Counsel submits' that the only ground which can be said to be raised in the election petition, in the, present case, is section 100(1) (d) (iv), namely, non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951, or of any rules or orders made under that Act. According to counsel, there is no non-compliance with Article 324 of the Constitution as the Election Commission has no power whatsoever to pass the impugned order under Article 324 of the Constitution. That, according to him, is not "non-compliance with the provisions of the Constitution" within the meaning of section 100(1)(d)(iv). We are unable to accept this submission for the reasons already given. We Election Commission has passed the order professedly under Article 324 and section 153 of the Act. We have already held that the order is within the scope and ambit of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and to pronounce finally on the same. The pre-eminent position conferred by the Constitution on this Court under Article 141 of the Constitution does not envisage that this Court should lay down the law, in an appeal like this, on any matter which is required to be decided by the election court on a full trial of the election petition, without the benefit of the opinion of the Punjab and Haryana, High Court which has the exclusive jurisdiction under section 80A of the Act to try the election petition. Moreover, a statutory right to appeal to this Court has been provided under section 1 1 6A, on any question, whether of law or fact, from every order made by the High Court in the dispute. So, in view of the scheme, of Part VI of the Act, the Delhi High Court could not have embarked upon an enquiry on any part of the merits of the dispute. Thus it could not have examined the question whether the impugned order was made by the Election Commission in breach of a rule of natural justice. That is a matter relating to the merits of the controversy and it is appropriately for the election court to try and decide it after recording any evidence that may be led at the trial. It may be tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party before taking its decision to order or not to order a report. We do not therefore think it necessary or desirable to foreclose a controversy like this by any general observations and will leave any issue that may arise from it for trial and adjudication by the election court. Being not altogether certain of all the facts and circumstances that may be made available, in the appropriate forum, it may be a premature exercise by this Court even to lay down guidelines when there is no hide-bo and formula of rules of natural justice to operate in all cases and at all times when a decision has to be made. Justice and fair play have often to be harmonised with exigencies of situations in the light of accumulated totality of circumstances in a given case having regard to the question of prejudice not to the mere combatants in an electoral contest but to the real and larger issue of completion of free and fair election with rigorous promptitude. Not being adequately informed of all the facts and circumstances, this Court will not make the task of the election court difficult and embarrassing by suggesting guidelines in a rather twilight zone. As we find no merit in this appeal, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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