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TMI Blog1984 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... y direction in respect of the conduct of election, and (d) where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given. Thus, we allow the appeal, set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a repoll to be held in these 50 polling stations. We, however, do not touch or disturb the results of the votes secured in the other 34 polling stations which was done in accordance with law, viz., the use of ballot papers. After the repoll, the result of the election would be announced afresh after taking into account the votes already secured by the candidates, including the Respondent. We make no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X ..... y powers flowing directly from Article 324 will prevail over any Act passed by the Parliament or Rules made thereunder. In order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Articles 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Article 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Article 324, otherwise the very object of Article 324 would be defeated. Notice was given by this Court both to the Union of India as also the Commission though in terms of Section 82 of the Act they are not necessary parties and were not before the High Court. 5. This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Article 324 such a wide and uncanalised power, which is entrusted to the Commission as Mr. Jethmalani w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1). 6. While interpreting a constitutional provision we must remember the memorable words of Chief Justice Marshall: We must never forget that it is the Constitution which we are expounding. 7. Another golden rule laid down by this Court on the interpretation of statutes is that we should so interpret the language of a Statute as to suppress the mischief and advance the object. It is true that Article 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ambedkar, or for that matter the founding fathers, intended was that the superintendence, direction and control of the preparation of electoral rolls and of all elections to Parliament and State Legislatures should be left to the Election Commission. This object has been fully carried out by the provisions in Articles 324 to 329. Neither the observations of Dr. Ambedkar nor the provisions of the Constitution could ever have intended to make the Commission an apex body in respect of matters relating to elections, conferring on it legislative powers ignoring the Parliament altogether. 10. Mr. Asoke Sen, appearing for the Commission, speaking in the same strain as Mr. Jethmalani, contended that Article 324 was a Code in itself and was couched in a very plain and simple language which admits of no ambiguity and, if so construed, it gives full powers and authority to the Commission to give any direction in connection with the conduct of elections. It was further submitted that if this interpretation is not given then Articles 325 to 329 would amount to defeating the very object which was sought to be achieved by Article 324. Supporting argument was built up by Mr. Sen by heavily relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elections to the Parliament and State Legislatures and the decision of the Commission pertains to this limited matter. (Emphasis ours) 14. These observations also do not advance the matter any further because it was clearly held that the claim made in respect of symbols pertained only to the limited matter which was being considered by the Commission. The following observations of this Court in that case completely clinch the issue against the appellant: It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and allotment of symbols and the "recognition of political parties in connection therewith. That the Commission should specify symbols for elections in Parliamentary and assembly constituencies has also been, made obligatory by Rule 5 of Conduct of Election Rules. (Emphasis supplied) 15. Thus, it is manifestly apparent from this decision that the rule-making power of the Commission under the Act, with respect to symbols, would have to prevail over any order that it may pass and the words "conduct of elections" would not make the Commission a purely legislative body. 16. Another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' as well as 'conduct' of all elections' are the broadest terms. (Emphasis ours) 18. The observations, extracted above, furnish a complete answer to the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has been clearly held that Article 324 would operate only in areas left unoccupied by legislation, even if the widest possible connotation is given to the language of Article 324. While summarising the propositions, the Court made the following observations: Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provision but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio in Ponnuswami's case. 21. The pointed an pungent observations extracted above, really amount to a Bible of the election law as culled out from an interpretation of the provisions of Articles 324 to 329 of the Constitution, and were referred to with approval even in Mohinder Singh Gill's case (supra). During the last three decades this case has neither been distinguished nor dissented from and still holds the field and with due respect, very rightly. No other case ever made such a dynamic and clear approach to the problem, perhaps due to the fact that no such occasion arose because the Commission has always been following the provisions of the Act and the Rules and had never attempted to arrogate to itself powers which were not meant to belong to it. Indeed, if we were to accept the contention of the respondents it would convert the Commission into an absolute despot in the field of election so as to give directions regarding the mode and manner of elections by passing the provisions of the Act, and the Rules purporting to exercise powers under cover of Article 324. If the Commission is armed with such unlimited and arbitrary powers and if it ever happens that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar method of voting, the Commission could not innovate a new method and contend that use of the mechanical process was not covered by the existing law and, therefore, did not come in conflict with the law in the field. 25. To sum up, therefore, the legal and constitutional position is as follows: (a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections, (b) where there is an Act and express Rules made thereunder it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324, (c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and (d) where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the electoral roll number of the elector as entered in the marked copy of the electoral roll. Rule 27 refers to the return of ballot paper after an elector has recorded his vote or made his declaration. Rule 30, which prescribes the contents of ballot papers, is completely contrary to the concept of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent with the mechanical process but seem to adopt the conventional method. As we have already indicated, these Rules are binding on the Commission and it cannot by an executive fiat either override them or act contrary to the statutory provisions of the Rules. 29. On a proper and detailed analysis of these Rules it is clear that the Act by framing the Rules completely excluded the mechanical process which, if resorted to, would defeat in a large measure the mandatory requirements of the Rules. 30. It is a well settled rule of interpretation of statutes that words, phrase or sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical sense unless such a construction leads to absurdity. Mr. Jethmalani argued that the word 'ballot' is wide enough to incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule making authority was not prepared to switch over to the system of voting by machines, perhaps on account of the legal bar as indicated by us. 34. It is rather unfortunate that the Union of India which is a party to this case, has taken a very neutral stand by neither supporting nor opposing the direction given by the Commission. 35. Having regard to these circumstances, therefore, we are clearly of the opinion that according to the law as it stands at present, the Order of the Commission directing casting of ballot by machines in some of the polling stations, as indicated above, was without jurisdiction and could not have been resorted to. 36. It was further pointed out by the respondent that the process of voting by machines is very useful as it eliminates a number of drawbacks and expedites; to a great extent, the declaration of the result of the election by eliminating the process of counting of votes, from the ballot boxes. On the other hand, the appellant has pointed out a number of defects, some of them being of a vital nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same. 39. For the reasons given above, we allow the appeal, set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a repoll to be held in these 50 polling stations. We, however, do not touch or disturb the results of the votes secured in the other 34 polling stations which was done in accordance with law, viz., the use of ballot papers. After the repoll, the result of the election would be announced afresh after taking into account the votes already secured by the candidates, including the Respondent. We make no order as to costs. 40. In course of argument, Mr. Sen for the Commission informed us that at eleven elections held under the Act, the mechanical device was used and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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