TMI Blog1984 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Of the 30450 votes, 11268. were cast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 (for short, to be referred to as the 'Rules') made under the Representation of the People Act, 1951 (hereinafter to be referred to as the 'Act'), and 19182 votes were cast by means of electronic machines (for short, to be referred to as 'voting machines'). This was done in pursuance of the direction issued by the Election Commission of India (for facility, to be referred to as the 'Commission') by virtue of a notification published in the Kerala Gazette on 13.5.82. The said notification was purported to have been made under Article 324 of the Constitution of India, and has been extracted on pages 3 to 5 of the judgment of the High Court and it is not necessary for us to repeat the same having regard to the point of law that we have to decide in the instant case. 2. It may be mentioned that prior to issuing the notification the commission had sought the sanction of the Government of India which was however refused. As mentioned above, the votes by the mechanical process were cast in 50 out of the 85 polling stations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation 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 this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures. 8. It was further argued that this power was necessary in order to make the Commission an independent body and in this connection our attention was drawn to a speech of Dr. Ambedkar in the Constituent Assembly when the question of making the Election Commission an independent body was being debated, At page 905, Constituent Assembly Debates (Vol.8), Dr. Ambedkar observed thus: But the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing Articles 289, 290 and so on, Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What Article 289 does is to carry out that part of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the States and all elections to the offices of President and Vice-President held under the Constitution shall be vested in the Commission.... Without prejudice to the generality of the foregoing power, Sub-section (2) enumerates some of the matters for which provision may be made in the rules. Sub-section (3) requires that the rules framed should be laid before each House of Parliament. Conduct of Election Rules, 1961 were thereafter framed by the Central Government. Rule 5 of those Rules requires the Commission to specify the symbols that may be chosen by candidates at elections in Parliamentary and Assembly elections and the restrictions to which that choice shall be subject. Rule 10 makes provision for allotment of symbols to the contesting candidates by the Returning Officer subject to general or special directions issued by the Commission, 12. The first part of the above observations merely repeats the language of Article 324 but the second part clearly shows that the power under Article 324 is conditioned by the Rules made by the Central Government for the conduct of all elections. These Observations, therefore, do not appear to us to be of any assistance to the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sections 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 ? 17. The learned Judge while answering the question observed thus: 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 Article 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 extent he insists that if competent legislation is enacted as visualized in Article 327 the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. [1952]1SCR218 where Fazl Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the position thus: Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with 'disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite. The other two articles in Part XV, viz., Articles 325 and 326, deal with two matters of principle to which the Constitution framers have attached much importance. They are:-(1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion race, caste, sex or any of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent, would be far from attaining the goal of purity and sanctity of the electoral process. Hence, we must construe Articles 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Articles 324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Article 324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers. In other words, the legislative power of Parliament or of the legislature of a State being made subject to Article 324 only means that no law made by Parliament under Article 327 or by a State legislature under Article 328 can take away or deprive the Commission of the executive power in regard to matters entrusted to it, viz. superintendence, direction and control of elections. The right to file an election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules. Reliance was, however, placed by the appellant on Section 59 of the Act which runs thus: 59. Manner of voting at elections- At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy. 27. It is obvious that Section 59 uses the words ballot in such manner as may be prescribed , which means prescribed by the Rules made under the Act. A reference to Section 61 of the Act would show that Parliament intended use of ballot paper only for casting of votes. This takes us to Rule 49, the relevant part of which may be extracted thus: 49. Voting by ballot at notified polling stations- (1) Notwithstanding any thing contained in the preceding provisions of this Part, the Election Commission may, by notification published in the Official Gazette at least 15 days before the date, or the first of the dates, of poll appointed for an election, direct that the method of voting by ballot shall be followed in that election at such polling stations as may be specified in the notification. 28. It was submitted that having regard to the modern and changing conditions of the society a dynam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... votes recorded-all ballot papers put into the ballot boxes by the electors (p. 3239) . Stroud therefore, does not subscribe to the view of casting of vote through a voting machine and we agree with, this view because casting of votes by machine is a mechanical process, which has come into existence long after the Act was passed and is not generally invoked in most of the democratic countries of the world. Concise Oxford dictionary defines the word 'ballot' thus: (usu. secret) voting, small ball, ticket or paper used in voting; votes so recorded; lot-drawing. 32. In Webster's Third New International Dictionary (Vol. I) at page 168 'ballot' is defined thus: to obtain a vote from (a body of voters) (the men on the proposal), to select by ballot or by the drawing of lots. 33. It may be mentioned here that the word 'ballot' has been derived from the word 'ballota' which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the voter has cast votes in more than one booth in the same constituency [Section 62(2)], (f) where the voter has cast two votes in two constituencies [Section 63(3)], (g) where the voter is disqualified under Section 16 of the Act [Section 62(4)], (h) where an elector marks a ballot paper wrongly for a candidate, he loses the right to get a fresh ballot paper for casting his vote correctly (Rule 41). The provisions of Section 100(1)(d) and more so Section 101(a) and (b) under which by excluding the void votes or votes cast as a result of corrupt practices any other candidate can be declared duly elected as the true representative of the constituency. 37. On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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