9911796707
TMI Blog1977 (12) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... y significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchi U vivified in matchless words : "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point." If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you. The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Dizreeli: "I repeat that all power is a trust-that we are accountable for its exercise-that, from the people and for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred to as Commission) had: deputed an officer of the Commission-Shri IKK Menon-as observer of the poll process in the constituency. He was present as the returning officer who under compulsion had postponed the concluding 3 p.m. onwards. Thus the returning officer had the company of the observer with him during the crucial stages and controversial eruptions in the afternoon of March 21. Shortly after sunset, presumably, the returning officer who under compulsion had postponed the concluding part of the election, reported the happenings by wireless massage to the Election Commission. The observer also reached Delhi and gave a written account and perhaps an oral narration of the untoward events which marred what would otherwise have been a smooth finish Lo, the election. Disturbed by the disruption of the declaratory part of the election, the appellant, along with a former Minister of the State, met the Chief Election Commissioner (i.e. the Commission) at about 10.30 A.M. on March 22nd, with the request that he should direct the returning officer to declare the result of the election. Later in the day, the Commission issued an order which has been characterised by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven regarding Fazilka, the result-sheet had arrived. So, far as Zira assembly segment was concerned, some documents (not the, ballot papers) had been snatched away by hooligans. The observer had asked the returning officer to send a detailed report over and above the wireless message. That report, dated March 21, reached the Commission on March 23, but, without waiting for the, report we need not probe the reasons for the hurry-the Commission issued the order cancelling the poll. The Chief Election Commissioner has filed a laconic affidavit leaving to the Secretary of the Commission to go into the details of the facts, although the Chief Election Commissioner must himself have had them within his personal ken. This aspect also need not be examined by us and indeed cannot be, for reasons which we will presently set out. Be that as it may, the Chief Election Commissioner admitted in his affidavit that the appellant met him in his office on the morning of March 22, 1977 with the request that the returning officer be directed to declare the result. He agreed to consider and told him him off,, and eventually passed an order as mentioned above. The then Chief Election Commissioner has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Punjab" shall be inserted; and (b) The existing item (ii) shall be renumbered as item (iii), and before the item (iii) as so renumbered, the following item shall be inserted, namely :- "(iii) 30 April 1977 (Saturday) as the date before which the election shall be completed in "13Ferozepur Parliamentary constituency in the State of Punjab." [464/77] By order Sd/A. N. Sen, Secretary The Commission declined to reconsider his decision when the appellant pleaded for it. Shocked by the liquidation of the entire poll, the latter moved the High Court under Article 226 and sought to void the order as without jurisdiction and otherwise arbitrary and violative of any vestige of fairness. He was met by the objection, successfully urged by the respondents 1 and 3, that the High Court -had no jurisdiction in view of Article 329(b) of the Constitution and the Commission had acted within its wide power under Article 324 and fairly. Holding that it had no jurisdiction to entertain the writ petition. the High Court never-the-less ]proceeded to enter verdicts on.the merits of all the issues virtually exercising even the entire ,jurisdiction which exclusively belonged to the Election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce upon the factual complex or the lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo. in Article329(b). We should not,except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contradicting its own holding that it had no jurisdiction even to entertain the petition. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (see N. P. Ponnuswami v. Returning Officer, Nanmakkal Constituency & Ors. 1952 SCR 218, 229). Article 329 (b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by law, prescribe. A law relating to election should contain the requisite qualifications for candidates, the method of voting, definition of corrupt practices by the candidates and their election agents, the forum for adjudication of election disputes and other cognate matters. It is on the basis of this law that the question determined by the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, several stages of the election (Section 30). The assembly line operations then begin. An administrative machinery and technology to execute these enormous and diverse jobs is fabricated by the Act, creating officers, powers and duties, delegation of functions and location of polling stations. The precise exercise following upon the calendar for the poll, commencing from presentation of nomination papers, polling drill and telling of votes,, culminating in the declaration and report of results are covered by specific prescriptions in the Act and the rules. The secrecy of the ballot, the authenticity of the voting paper and its later identifiability with reference to particular polling stations, have been thoughtfully provided for. Myriad other matters necessary for smooth elections have been taken care of by several provisions of the Act. The wide canvas so spread need not engage us sensitively, since such diffusion may weaken concentration on the few essential points concerned in this case. One such aspect relates to repoll. Adjournment of the poll at any polling station in certain emergencies is sanctioned by section 57 and fresh poll in specified vitiating contingencies is au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his own prejudices exists; and so, notwithstanding his powers of initiative, the parties' role in the formulation of the issues and in the presentation of evidence and argument should be substantially maintained andcare has to be taken that the circle does not become a vicious one, as pointed out by J.A. Jolowicz in. 'Public Interest Parties and the Active Role of the Judge in Civil Litigation' (ss. p. 276). Therefore, it is essential that courts, adjudicating upon election controversies, must play a verily active role, conscious all the time that every decision rendered by the Judge transcends private rights and defends the constituency and the democracy of the country. Secondly, the pregnant problem of power and its responsible exercise is one of the perennial riddles of many a modern constitutional order. Similarly, the periodical process of free and fair elections. uninfluenced by the caprice, cowardices or partisanship of hierarchical authority holding it and unintimidated by the threat, tantrum or vandalism of strong-arm tactics, exacts the embarrassing price of vigilant monitoring. Democracy digs its grave where passions, tensions and violence, on an overpowering spree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and unaccountable for his action even before the Election Court ? The juridical aspect of these triple questions alone can attract judicial jurisdiction. However. even if we confine ourselves to legal problematics, eschewing the political overtones, the words of Justice Holmes will haunt the Court : "We are quiet here, but it is the quiet of a storm centre." The judicature must, however. be illumined in its approach by a legal sociological guidelines and a principled-pragmatic insight in resolving, with jural tool and techniques s ,ind techniques. 'the various crises of human affairs' as they reach the forensic stage and seek disputeresolution in terms of the rule of law. Justice Cordozo felicitously set the perspective "The great generalities of the Constitution have at content and significance that vary from age to age." Chief Justice Hidayatullah perceptively articulated the insight "One must, of course, take note of the synthesized authoritative content or the moral meaning of the underlying' principle of the, prescriptions of law, but not ignored the historic revolution of the, law itself or how it was connected in its changing moods with social requirements of a particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill presently be explained, section 100 (1 ) (d) (iv) of the Act will take care of the, situation present here, being broad enough, as a residual provision, to accommodate, in expression 'non-compliance', every excess, transgression, breach or omission. And the spen of the, ban under Art. 329(b) is measured by the sweep of s. 100 of the Act. We have to proceed heuristically now. Article 329(b) reads Notwithstanding anything in this Constitution "(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be Provided for by or under any law made by the appropriate Legislature." Let us break down the prohibitory provision into its components. The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. And this exclusion of all other remedies includes constitutional remedies like Art. 226 because of the nonobstante clause. If what is impugned is an election the ban operates provided the proceeding 'calls it in question' or puts it in issue: not otherwise. What is the high policy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complex issue projected before us. 'The election philosophy and the principle in Ponnuswami Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So. we have adult franchise and general elections as constitutional compulsions. 'The right of election is the very essence of the constitution' (Junius). It needs little argument to hold that the heart of the Parliamentary system is free, and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more. Ponnuswami is a landmark case in election laws and deals with the scope, amplitude, rationale and limitations of Art. 329(b). its ratio has been consistently followed by this Court in several rulings through Durga Shankar Mehta ([1955] 1 S. C. R. 267) and Hari Vishnu Kamath and Khare ([1955 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an 'intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to Call the election in question. Article 329(b) was apparently enacted to describe the manner in which end the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this Act in connection with an election. " There have been amendments to these provisions but the profile remains substantially the same. After pointing out that the Act,in section 80, and the Constitution, in article 329(b), speak substantially the same language and inhibit other remedies for election grievances except through the election tribunal, the Court observed "That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage." There is a non-obstante clause in Article 329 and, therefore, Article 22.6 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami. The heart of the matter is contained in the conclusions summarised by the Court thus : "(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 elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses dealing with the matter, one of the questions mooted is, when the election begins. The rainbow of operations, covered by the compendious expression election, thus commences from the initial notification and culminates in the declaration of the return of a candidate,. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 329 (b) and the Representation of the People Act, 1951, compels us to read, as Fazal Ali, J. did in Pannuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to. the post-election stage is that elections poll not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in thelegislative bodies is the real reason suggested in the course of judgment. Thus for everything is clear. No litigative enterprise in the High Court or other court should be allowed to hold up the on-going electoral process because the parliamentary representative for the constituence should be chosen promptly. Article 329 therefore covers "electoral matters". One interesting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on if it subserves the progress of the election and facilitates the completion of the election. 'Ale should not slur over the quite essential observation "-Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. Likewise, it is fallacious to treat 'a single step taken in furtherance of an election as equivalent to election'. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding' and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in, the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election.The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter. On the assumption, but leaving the question of the validity of the direction for re-poll soon for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election! and is there, fore barred by Art. 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case. Our conclusion is not a matter of textual interpretation only but a substantial assurance of justice by reading s. 100 of the Act as covering the whole basket of grievances of the candidates. Sri P. P. Rao contended that the Court should not deny reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion during this period, provided the act possesses the prerequisites of 'election' in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to. or thwarts or taints the course of the election. Having held against the maintainability of the writ petition, we should have parted with the case finally. But counsel for both the candidates and, more particularly, the learned Additional Solicitor General, appearing for the Election Commission, submitted that the breadth, applitude and implications, the direction and depth of Article 324 and, equally important, the question of natural justice raised under Article 324 are of such public importance and largely fallow field going by prior pronouncements, and so strategic for our democracy and its power process that this Court must decide the issue here and now. Article 141 empowers and obligates this Court to declare the law for the country when the occasion asks for it. Counsel, otherwise opposing one another, insistently concurred in their request that for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein's monster who may manipulate the system into elected despotism--instances of such phenomena are the tears of history. To that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion's duty to function within the leading strings of natural justice. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of Authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam-and of Kautilya's Arthasastra-the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the, roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. The dichotomy between administrative and quasi-judicial functions vis a vis the doctrine of natural justice is presumably obsolescent after Kraipak ([1970] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview Vol. 53 p. 899). Natural justice is being given access to the United Nations (See American Journal of International Law Vol. 67 p. 479). It-is no-table that Mathew, J. observed in Indira Gandhi (supra) "If the amending body really exercised judicial power that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be, observed in exercising it, the nature of the, power would call for its observance." (p. 513) Lord Morris of Borthy-Gest in his address before the Bentham :club concluded : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying those principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctions which may be powers or duties, essentially administrative and marginally even judicative or legislative. All Party Hill Leaders Conference, Shillong v. Capt. W. A. Satigma Ors.( [1978] 1 S.C.R. 393). We are not fascinated by the logo-machic exercise suggested by Sri P. P. Rao, reading 'functions' in contradistinction to 'powers' nor by the trichotomy of diversion of powers, fundamentally sound but flawsome in several situations if rigidly applied. These submissions merely serve to draw the red-herring across the trial. We will now zero-in on the crucial issue of natural justice vis a vis Article 324 where the function is so exercised that a candidate is substantially prejudiced even if be has not acquired a legal right nor suffered 'civil consequence', whatever that may mean. We proceed on the assumption that even if the cancellation of the poll in this case were an administrative act, that per se does not repel the application of the natural justice principle. Kraipak nails the contrary argument. Nor did the learned Additional Solicitor General contend that way, taking his stand all through, not on technicalities, easy victories or pleas for reconsideration of the good a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s penumbral areas it is only for improving the quality of government by injecting fairplay into its wheels. The learned Additional Solicitor General welcomed the dramatic pace of enlargement in the application of natural justice. But he argued for inhibiting its spread into forbidden spaces lost the basic values of Art. 329 be nullified. In short, his point is that where utmost promptitude is needed-and that is the raison d'etre of exclusion of intermediate legal proceedings in election mattersnatural justice may be impractical and may paralyse, thus balking the object of expeditious completion. He drew further inspiration from another factor to validate the exclusion of natural justice from the Commission's actions, except where specifically stipulated by statutes. He pointed out what we have earlier mentioned-that an election litigation is one in which the whole constituency of several lakhs of people is involved and, if the Election Commission were under an obligation to hear affected parties it may, logically, have to give notice to lakhs of people and not merely to candidates. This will make an ass of the law and, therefore, that is not the law. This reductio ad absurdum also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is untenable heresy, in our view, to look jaw the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public injury flowing from the least delay is selfevident. Even in such cases a remedial hearing as soon as urgent action has been taken is the next best. Our objection is not to circumscription dictated by circumstances, but to annihilation as an easy escape from a benignant, albeit inconvenient obligation. The procedural pre-condition of fair hearing, however minimal, even postdecisional, has relevance to administrative and judicial gentlemanliness. The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect others' right or liabilities the more necessary the need to hear. We may not be taken to say that situational modifications to notice and hearing are altogether impermissible. They are, as the learned Additional Solicitor General rightly stressed. The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs, doctors remedies to suit the patient promotes, not freezes. Life's processes, if we may mix metaphors. Tuc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 Court had the last word on every objectionable order and so the Commission's order was more or less provisional. So no natural justice. Thirdly, he took up the position that no candidate could claim anything more than an expectation or apes and no right having crystallised till official declaration of the result, there was no room for complaint of civil consequence. WI-tat was condemned was the poll, not any candidate. So no natural justice. Finally, he reminded us of the far-flung futility of giving a hearing to a numerous constituency which too was interested in proper elections like the candidates. So no natural justice. Schmidt was relied on and Wisemen ([1967] 3 All E.R. 1945) as well as Pearlberg ([1971] 1 W.L.R. 728) were cited in support of these propositions. We may add to these weighty rulings the decision of the House of Lords in Pearlberg. The decision of this Court in the ruling in Bihar School Examination Board v. Subhas Chandra Sinha & Ors. (3), where a whole university examinations was cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isticated methodology of a formalised hearing may be injurious to promptitude no essential in ,in election under way. Even so, natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. To burke it altogether may not be a stroke of fairness except in very exceptional circumstances. Even in Wiseman where all that was sought to be done was to see if there was a prima facie case to proceed with a tax case where, inevitably, a fuller bearing would be extended at a later stage of the proceedings, Lord Reid. Lord Morris of BorthyGest and Lord Wilborforce suggested "that there might he exceptional cases where to decide upon it ex-parte would be unfair, and it would be the duty of the tribunal to take appropriate steps to eliminate unfairness "(Lord Denning M. R., in Manward v. Bornenam([1974] 3 W.L.R. 660) summarised the observations of the law Lords in this form). No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case. After all, it is not obligatory that counsel should be allowed to appear nor is it compulsory that oral evidence should be add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. Civil is defined by Black (Law Dictionary 4th Edn.)at p.311. "Ordinally, pertaining or appropriate to a member of a civitas of free political community; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a state. The word is derived from the Latin civilie, a citizen. In law, it has various significations." 'Civil Rights' are such as belong to every citizen of the State or country, or, in a wider senes, to all its inhabitants, and are not connected with the organisation or administration of government. They include the rights of property, marriage protection by the laws, freedom of contract, trial by jury, etc. Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a state or community. Rights capable or being enforced or redressed in a civil action. Also a term applied to certain righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 Commission contends that a hearing has been given although the appellant retorts that a vacuous mecting where nothing was disclosed and he was summarily told off would be strange electoral justice. We express no opinion on the factum or adequacy of the hearing but hold that where a candidate has reached the end of the battle and the whole poll is upset, he has a right to notice and to be heard, the quantum and quality being conditioned by the concatenation of circumstances. The rulings cited, bearing on the touchstone of civil consequences, do not contradict the view we have propounded. Col. Sinha merely holds-and we respectfully agree-that the lowering of retirement age does not deprive a government servant's rights, it being clear that every servant has to quit on the prescribed age being attained. Even Binapani ([1967] 2 S.C.R. 625) concedes that the State has the authority to retire a servant on superannuation. The situation here is different. We are not in the province of substantive rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to, go. " (967-968) x x x x x If at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter. It cannot hold a detailed quasijudicial inquiry with, a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If there is sufficient materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of persons, the committee should frame proper regulations for the conduct of such enquiries but not deny the opportunity. That case was distinguished in Subhash Chander the differentia being that in one case the right exercised was of the examining body to cancel its own examinations since it was satisfied that the examination was not properly conducted. It may be a parallel in electoral situations if the Election Commission cancels a poll because it is satisfied that the procedure adopted has gone away on a wholesale basis. Supposing wrong ballot papers in large numbers have been supplied or it has come to the notice of the Commission that in the constituency counterfeit ballots had been copiously current and used on a large scale, then without reference to who among the candidates was more prejudiced, the poll might have been set aside. It all depends on the circumstances and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; "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 side, as in the case of an interim injunction or a stay of execution the court will make the order straight away. We do it every day, we are always ready, of course, to hear the other side if they apply to discharge the order. But still the order is made exparte without bearing them. It is a prima facie decision. I agree that before some other tribunal a prima facie decision may be a little different. The party affected by it may not be able to apply to set it aside,. The case must go forward to a final decision. Here, again, I think the tribunal itself is under what Lord Wilberforce described as a residual duty of fairness." (1971 A-C. 297, 320) When Pearlberg ((1972) 1 W.L.R. 534) reached the House of Lords the Law Lords considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the accused." (p. 550) Indeed, in Malloch ((1971) 1 W.L.R. 1570, 1598) E. Lord Wilberforce observed : "A limited right of appeal on the merits affords no argument against the existence of a right to a precedent hearing, and, if that is denied, to have the. decision declared void." (Foot note 30, Public Law Spring 1975 Stevens p. 50 from Natural Justice Substance and Shadow by D. H. Clark). After all, the Election Court can exercise only a limited power of review and must give regard to the Commission's discretion. And the trouble and cost of instituting such proceedings would de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts 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 people's faith in the democratic process is hypersensitive it is republican realism to keep alive audi alteram even in emergencies, 'even amidst the clash of arms'. Its protsan shades apart we recognise that 'hearing' need not be an elaborate ritual and may, in situations of quick despatch, be minimal, even formal, nevertheless real. In this light, the Election Court will approach the problem. To scuttle the ship is not to save the cargo; to jettison may be. Fair hearing is thus a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible. It can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. 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 in fact be one to clear the way to a free, and fair verdict of the electorate. It depends. Taking the Election Commission at his word (the Election Court has the power to examine the validity of his word), we proceed on the prima facie view that writ petition is not sustainable. If it turned out that the, Election Commission acted bizarre fashion or in indiscreet haste, it forebodes ill for the Republic. For if the salt lose their savour, wherewith shall they be salted ? Alan Barth in his 'Prophets with Honor', quotes Justice Felix Frankfurter regarding the standard for a judicial decision thus : & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays '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 underlying duties. Such a mal-exercise clearly tantamounts to non-adherence to the norms and limitations of Art. 324 and, if true, it is a noncompliance with that provision of the Constitution. It falls within s. 100(1) (d) (iv). A generous, purposeoriented, literally informed statutory interpretation spreads the wings of 'noncompliance' wide enough to bring in all contraventions, excesses, breaches and subversions. We derive support for this approach from Durga Mehta. The Court there considered the same words, in the same sections, in the same statute. Section 100(2) (c) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 candidate whose return is challenged has a case invalidating the challenger's election he may set it up subject to the provision in sec. 97. Then comes the finale in sec. 98. The High Court has three options by way of conclusive determinations. It may (a) dismiss the petition (b) declare the election void; and (c) go further to declare the petitioner duly elected. Side-stepping certain species of orders that may be passed under s. 99 we have to explore the gamut of implied powers when the grant of power is wide and needs incidental exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obligation to grant full relief has to be undertaken or ordered to be done by the election machinery, all that is within the orbit of the Election Court's power. Black's Law Dictionary explains the proposition thus "Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant. (p. 1334 Black's Legal Dictionary 4th Edn.) This understanding accords with j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 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. Diffusion, even more elaborate discussion, tends to blur t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 spea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the Akali Party, who secured 1,94,095 votes, excluding postal ballots. The margin of votes between the appellant and respondent No. 3 at that stage was 1921. There were 769 postal ballots,. As per programme, counting of postal ballot papers was started by the Returning Officer (respondent No. 2) at 3.00 P.M. on March 21. 248 ballot papers out of 769 were rejected in the counting. At this stage, it is said, respondent No. 3 and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; "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 instructions from the Election Commission 'and the result will be announced thereafter'. Counting adjourned and result postponed till receipt of further instructions from Election Commission. Incident happened in the presence of Observer at Ferozepore. Mob also destroyed the ballot papers and other election material and steel trunks of Fazilka Assembly segment at Ferozepore after the counting part of election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, 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 to 3 with regard to the maintainability of the writ 'application on the ground that Article 329(b) of the Constitution was a bar to the High Courts entertaining it. Another objectionwas taken that the writ petition was not maintainable in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. 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 last Article to close the' chapter. Elections supply the visa viva to a democracy. It was, therefore, deliberately and advisedly thought to be of paramount importance that the high 'and independent office of the Election Commission should be created und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to call it in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as duties (see Stroud's Judicial Dictionary, p. 1196). It is incomprehensible, that a person or body can discharge any functions without exercising 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power. Although section 58 and section 64A mention "a polling station" or "a place fixed for the poll" it may, where necessary, embrace 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 responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the result under section 66 of the Act. When a Poll that has already taken place has been cancelled and a fresh poll has been ordered, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utela, in the High Court of Punjab and Haryana, challenging the election which has since been completed on the basis of a fresh poll ordered 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order of the High Court in that proceeding, to enter into any other controversy, on the merits, either on law or on facts, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 electio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
