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TMI Blog2000 (8) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... e place on 6.10.1999. 3. In exercise of the powers conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published in Kerala Gazette Extra-ordinary dt. 1st October, 1999 which reads as under: NOTIFICATION No. 470/99/JUD-II(H.P.) -- WHEREAS, Rule 59A of the Conduct of Elections Rules, 1961 provides that where the Election Commission apprehends intimidation and victimisation of electors in any constituency and it is of the opinion that it is absolutely necessary that ballot papers taken out of all ballot boxes used in that constituency should be mixed before counting, instead of being counted polling station wise, it may, by notification in the Official Gazette specify such constituency; 2. AND WHEREAS, on such specification under the said Rule 59A of the Conduct of Election Rules, 1961, the ballot papers of the specified constituency shall be counted by being mixed instead of being counted polling station wise. 3. AND WHEREAS, the Election Commission has carefully considered the matter and has decided that in the light of the prevailing situation in the State of Kerala, and in the interests of free and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment School. No polling was recorded in booth No. 182. In 27 booths polling was 26%. Complaints were also made to the Chief Election Commissioner. Under Section 135A of the Representation of the People Act, 1951, booth capturing is an offence. 6. O.P. No. 24516/1999 was filed by respondent No. 1, who contested from the Allappuzha constituency as an independent candidate, alleging more or less similar facts as were alleged in O.P. No. 24444/1999. 7. In both the writ petitions it is alleged that in the matter of counting the Election Commission of India issued guidelines on 22nd September, 1999 which directed-- All the ballot boxes of one Polling Station will be distributed to one table for counting the ballot papers. There was no change in the circumstances ever since the date of the above-said guidelines and yet on 28.9.1999 the Election Commission of India issued the impugned notification. According to both the writ petitioners, if counting took place in accordance with the directions issued on 28.9.1999, valuable piece of evidence would be lost as the allegations as to booth capturing could best be substantiated if the counting of votes took place polling station wise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with the guidelines dated 22.9.1999. 10. On 5.10.1999 the Election Commission of India filed the special leave petitions before this court which were taken up for hearing upon motion made on behalf of the petitioner-appellant. A copy of the official gazette dated 1st October, 1999 wherein the notification dated 28.9.1999 was published, was also produced for the perusal of this court on the affidavit of Shri K.J. Rao, Secretary, Election Commission of India. This court directed notices to be issued and in the meanwhile operation of the order of the Kerala High Court was also directed to be stayed. 11. When the matter came up for hearing after notice, leave was granted for filing the appeals and interim direction dated 5.10.1999 was confirmed to remain in operation till the disposal of appeals. At the final hearing it was admitted at the Bar that in view of the impugned order of the High Court having been stayed by this court, the counting had taken place in accordance with the Notification dated 28.9.1999 made by the Election Commission of India. In view of these subsequent events, the appeals could be said to have been rendered infructuous. However, the learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the nature of the jurisdiction exercised by them came up for the consideration of this Court in M.V. Elisabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd., Goa [1992]1SCR1003 . It was held that the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and supplementary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. The following statement of law from Halsbury's Laws of England, [4th Edn., Vol. 10, para 713] was quoted with approval: Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. 16. This Court observed that the jurisdiction of courts is carved out of sovereign power of the State. People of free India are the sovereign and the exercise of judicial power is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple, 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 question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress. 19. However, the Constitution Bench in Mohinder Singh Gill's case could not resist commenting on Ponnuswami's case by observing (vide para 25) that the non-obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election, except in special situations pointed out at, but left unexplored in Ponnuswami. 20. Vide para 29 in Mohinder Singh Gill's case, the Constitution Bench noticed two types of decisions and two types of challenges: The first relating to proceedings which interfere with the progress of the election a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment falling which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this court cited at the Bar. 22. In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985)4SCC689 writ petitions under Article 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity and efficacy of all orders passed by public authorities. The minority view was recorded by M.P. Thakkar, J. quoting the following extract from A.K.M. Hassan Uzzaman (1982)2SCC218 : The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. and held that even according to Hassan's case the Court has the power to issue an interim order which has the effect of postponing an election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democratic elected popular Government. 24. In Digvijay Mote v. Union of India and Ors. (1993)4SCC175 this Court has held that the powers conferred on the Election Commission are not unbridled; judicial review will be permissible over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerations would have come into play. 28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over-enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes. 29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329(b), the former being a product of the later. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy. 31. The founding fathers of the Constitution have consciously employed use of the words 'no election shall be called in question' in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court 'calls in question an election' the bar of Article 329(b) is attracted. Else it is not. 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. 33. These conclusions, however, should not be construed as a summary of our judgment, these have to be read alongwith the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons. 34. Coming back to the case at hand it is not disputed that the Election Commission does have power to supervise and direct the manner of counting of votes. Till 22nd September, 1999 the Election Commission was of the opinion that all the ballot boxes of one polling station will be distributed to one table for counting the ballot papers and that would be the manner of counting of votes. On 28.9.1999 a notification under Rule 59A came to be issued. It is not disputed that the Commission does have power to issue such notification. What is alleged is that the exercise of power was mala fide as the ruling party was responsible for large scale booth capturing and it was likely to lose the success of its candidates secured by committing an election offence if material piece of evidence was collected and preserved by holding p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two constituencies where electronic voting machines were employed, was made out. Thus, we find that the two petitioners before the High Court had failed to make out a case for intervention by the High Court amidst the progress of election proceedings and hence the High Court ought not to have made the interim order under appeal though the impugned order did not have the effect of retarding, protracting, delaying or stalling the counting of votes or the progress of the election proceedings. The High Court was perhaps inclined to intervene so as to take care of an alleged aberration and maintain the flow of election stream within its permissible bounds. 35. The learned Counsel for the Election Commission submitted that in spite of the ballot papers having been mixed and counting of votes having taken place in accordance with Rule 59A it would not be difficult for the learned Designated Election Judge to order a re-count of polls and find out polling-wise break-up of the ballots if the election-petitioner may make out a case for directing a re-count by the Court In his submission the grievance raised before the High Court was fully capable of being taken care of at the trial o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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