TaxTMI 
TaxTMI 
1977 (12) TMI 138
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.... has arisen, is about, The basics Every 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 ....
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....mplaint that the returning officer was a relation of the appellant, the Election Commission (hereinafter referred to as Commission) had: deputed an officer of the Commission-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 t....
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....rding to him only the ballot papers of Fazilka assembly segment were destroyed, not of the. Other segments. Even regarding Fazilka, the result-sheet had arrived. So, far as Zira 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 t....
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....ation, relating to the completion of election- (a) in the existing item (i), after the words "State of Jammu and Kashmir", the words "and 13-Ferozepur Parliamentary constituency in the State of Punjab" shall be inserted; and (b) The existing 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....
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....whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older: A Caveat. We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the 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 sho....
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....ng the pattern adopted by Fazal Ali, J. in Ponnuswami. 1952 SCR 218. He explained : "The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which 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....
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....lectoral rolls, to choose their representatives to the Lok Sabha. The constitutionally appointed authority, the Election Commission, takes over the whole conduct and supervision of the mammoth enterprise involving a plethora of details and variety of activities, and starts off with the notification of the time table for the, several stages of the election (Section 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 s....
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....his species of cases collective litigation where judicial activism assures justice to the constituency, guardians the purity of the system and decides the rights of the candidates. In this class of cases, where the common law tradition is partly departed from, the danger that the active judge may become, to some extent, the prisoner of his own prejudices exists; and so, 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 periodica....
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....itutionally vested capacity tinder Art. 324 to direct re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first occasion ? Or, is the Election Commission immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his 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 ....
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.... poll in the entire constituency was not covered by s. 1 00 of the Act. Many subsidiary pleas also were put forward but we will focus on the two inter-related submissions bearing on Art. 329(b) and s. 100 and search for a solution. The problem may seem prickly but an imaginative application of principles and liberal interpretation of the constitution and the Act will avoid anomalies and assure justice. if we may anticipate our view which will presently be 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 Legisl....
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....e cancellation of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, non-step or anti-step setting at nought the process and, therefore, not a step towards the goal and hence liberated from the coils of Art. 329(b) ? And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do 9 This takes us to the enquiry about the ambit of S. 100 of the Act and the object of Art. 329 (b) read with Art. 324. Such is the outline of the 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 constitu....
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....templates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of-the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to. be that any matter which has the effect of vitiating an election should 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....
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....t the same language as article 329(b) provides that,no election shall be called in question except by an election petition presented in accordance with the provisions of this Part'. Section 1 00, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper, Section 105 says that 'every order of the Tribunal made under this Act shall be final and conclusive. Section 170 provides that 'no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under 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....
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....narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide, sense, the word is used to connote the entire process culminating in a candidate being declared elected. it seems to me that the word "election " has been used in Part XV of the Constitution in the wide sense, that to say to connote the entire procedure, to be gone through to return a candidate to the legislature. That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out bythe fact that in most of the books on the subject and in several cases 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, ....
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....a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression-no election shall be called in question" in this context and setting with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no, bearing on this method of approach to the question posed in this appeal, which appears to me the only correct method." What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to 'calling in question' an election 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 deci....
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....ppeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed Poll process and to, complete it through the salvationary effort of a repoll. Whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or it many polling stations for good reasons, is lawful. This shows that re-poll in many or all segments, all-pervasive or isolated, can be lawful. We are not considering whether the act was bad for 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 a....
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.... the courts review of that order will facilitate the flow, not stop the stream. Election, Wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all. A poll is part-a vital part-of the election but with the end of the poll the whole election IS not over. Ballots have to be assembled, scrutinised, counted recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector's choice only when processed, screened and sanctified, every escalatory step upto the formalised finish being unified in purpose, forward in movement, fair and free in its temper. Article 329(b) halts judicial intervention 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 ....
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....tent be insists that if competent legislative is enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi : (supra) "In the opinion of some of the judges constituting the majority in Bharati's case (supra), Rule of Law is a basic structure of the Constitution apart from democracy. The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere." (p. 523) And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject 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 t....
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....l for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Aft. 324-provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao's broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself. Broad authority 3 does not bar scrutiny into specific validity of the particular order. Our conclusion on this limb of the contention is that Art, 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out. Now we move on to a close-up of the last submission bearing on the Commission's duty to 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,....
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....by this Court in Suresh Koshy George v. The University of Kerala ([1969] 1 S.C.R. 317) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever,. a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." (p. 469) It is an interesting sidelight that in America it has been held to be 'but fundamental fairness that the tight to an administrative hearing is given. (See Boston University Law Review Vol. 53 p. 899). Natural justice is being given access to the 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 jus....
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.... to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the commonsense of the situation. Let us look at the jurisprudential aspects of natural justice, limited to the needs of the present case, as the doctrine has developed in the Indo-Anglian systems. We may state that the question of nullity does not arise here because we are on the construction of a constitutional clause. Even otherwise, the rule of natural justice bears upon construction where a statute is silent save in that category where a legislation is charged with the vice of unreasonableness and consequential voidness. Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or 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 '....
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.... Let us study how far the situation on hand can coexist with canons of natural justice. When natural justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings. Ridge v. Baldwin ([1964] A.C. 40) is a leading case which restored light to an area 'benighted by the narrow conceptualism of the previous decade to borrow Professor Clark's expression. (Natural Justice; Substance and Shadow-'Public Law' JoumalSpring 1975). Good administration demands fairplay in action and this simple desideratum is the fount of natural justice. We have already said that the classification of functions as judicial' or 'administrative' is a stultifying shibboleth, discarded in India as in England. Today, in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fairplay into its wheels. The learned Additional Solicitor General welcomed the dramatic pace of enlargement in the application of natural justice. But he argued for inhib....
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....y thinking 'the judge was biased'."We may adapt it to the audi alteram situation by the altered statement : "Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'noconfidence' will be heard to say, 'that man had no chance to defend his stance'." That is why Tuckor LJ in Russol v. Duke of Norfolk [(1949) 1 All E.R. 109,118]. emphasised that 'whatever standard of natural justice is adopted, one A, essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is 'in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando(1) observed that 'while great urgency may rightly limit such opportunity timeously : perhaps severely there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy, in our view, to look jaw the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public injury flowing from the least de....
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....ts informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report." Courts must be tempered by the thought while compromise on principle is unprincipled, applied administrative law in modern complexities of government must realistic, not academic. The myriad maybes and the diverse urgencies are live factors. Natural justice should not destroy administrative order by insisting on the impossible. This general discussion takes its to four specific submissions made by the learned Additional Solicitor General. He argued that the Election Commission, a high constitutional functionary, was charged with conducting elections with celerity to bring the new House into being and the tardy process of notice and hearing would thwart this imperative. So no natural justice. Secondly, be submitted that there was no final determination to the prejudice of any party by directing a re-poll since the Election Court had the last word on every objectionable order and so the Commiss....
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....e halted. Therefore, think twice before obligating a hearing at a critical stage when a quick repoll is the call. The point is well taken. A fair hearing with fun notice to both or others may surely protract; and notice does mean communication of materials since no one can meet an unknown ground. Otherwise hearing becomes hollow, the right becomes a ritual. Should the cardinal principle of 'hearing' as condition for decision-making be martyred for the cause of administrative, immediacy ? We think not. The full panoply may not be there but a manageable minimum may make-do. In Wiseman v. Bornenwn ([1967] 3 All F.R. 1945) there was a hint of the competitive claims of hurry and hearing. Lord Reid said : 'Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give fall opportunity to the defendant to see material against him (emphasis added). We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude no essential in,in election under way. Even so, natural justice is pragmatically flexible and is amenable to capsulation under the....
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....Solicitor General urged that even assuming that under ordinary circumstances hearing should be granted, in the scheme of Art. 324 and in the situation of urgency confronting the Election Commission it was not necessary. Here we must demur. Reasons follow. It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Rain Gopal ([1970] 1 S.C.R. 472) and Col. Sinha ([1971] 1 S.C.R. 791). Of course, we agree that if only spiritual censure is the penalty, temporal laws may not take cognisance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves,; by passing verbal boobytraps ? 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts....
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....in our view, is legicidal sophistry. Our system of 'ordered' rights cannot disclaim cognizance of orderly processes as the right means to a right end. Our jurisprudence is not so jejune as to ignore the concern with the means as with the end with the journey as with the destination. Every candidate, to put it cryptically, has an interest or right to fair and free and legally run election. To draw lots and decide who wins, if announced as the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a processual right actionable if breached, the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream. It is a subtle fallacy to confuse between the two. Victory is still an expectation qua mwde is a right to the statutory procedure. The appellant has a right to have the election conducted nor according to humour or hubris but according to lay and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import. But. in the present case, the Election Commi....
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....ed the plea of natural justice when a whole examination was cancelled by the concerned university authorities. The reasons given are instructive. The learned Judge said that "the mention of fairplay does not come very well from the respondents who were grossly guilty of breach of fairplay themselves at the examinations." The court examined the grounds for cancellation of examinations and satisfied itself that there was undoubted abundance of evidence that students generally bad outside assistance in answering questions. The teamed Judge went on further to say : "This is not a case of any particular individual who is being charged with, adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging anyone individually with unfair means but to condemn the examination as ineffective for the purpose it was hold, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfai....
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....d a very vital stake in polling going on properly to a prompt conclusion. And when that is upset there may be a vicarious concern for the constituency, why, for that matter, for the entire country, since the success of democracy depends on country-wide elections being held periodically and properly. Such interest is too remote and recondite, too feeble and attenuated. to be taken note of in a cancellation proceeding. What really marks the difference is the diffusion and dilution. The candidates. on the other hand, are the spearheads, the combatants, the claimants to victory. They have set themselves up as nominated candidate organised the campaign and galvanised the electorate for the crown inevent of polling and counting. Their interest and claim are not indifferent but immediate, not weak but vital. They are more than the members of the public. They are parties to the electoral dispute. In this sense, they stand on a better footing and cannot be denied the right to be heard or noticed. Even in the case of university examinations it is not a universal rule that notice need not be given. Ghanshyam Das Gupta's ([1962] Supp 3 S.C.R. 236) case illustrates this aspect. Even there, ....
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...." (PP.-737-738) Buckley, L.J. made the point about natural justice and administrative action. "I do not forget the fact that it has been said, that the rules of natural justice may apply to cases where the act in question is more properly described as administrative than or quasi-judicial : See Ridge v. Baldwin ((1964) A.C. 40) and t v. Secretary of State for Home Affairs." (p. 747) The Indian parallel would be an argument for notice and hearing from a police officer when he investigated and proceeded to lay a chargesheet because he thought that a case to be tried by the court had been made out. The present case stands on a totally different footing. What the Election Commission does is not the ascertain whether a prima facie case exists or an ex parte order, subject to modification by him is to be made. If that were so Pearlberg would have been an effective answer. For, Lord Denning luminously illustrates the effect "I would go so far with him as to say that in reaching a prima facie decision, there is a duty on any tribunal to act fairly; but fairness depends on the task in hand. Take an application to a court by statute, or by the rules, or, as a m....
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....t be said that the rules of natural justice do not apply to a judicial determination of the question whether there is a prima facie case, but I do not think they apply with the same force or as much force as they do to decide decisions which determine the rights of persons." (p. 546) Lord Pearson's comment ran thus "A tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required, to apply those principles in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required, although, as 'Parliament' not to be presumed to act unfairly', the courts, may be able in suitable cases (perhaps always) to imply an obligation to act with fairness. Fairness, however, does not necessarily require a plurality of bearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be ....
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....x post facto judicial review. The essential mission of the law in this field is to win acceptance by administrators of the principle that to hear a men before he is penalised is an integral part of the decision-making process. A measure of the importance of resisting the incipient abnegation by the courts of the firm rule that branch of audi alteram partem invalidates, is that if it gains ground the mission of the law is doomed to fail to the detriment of all." (P. 60 : Public Law Spring 1975 Stevens--Natural Justice : Substance and shadow) Our constitutional order pays more than lip-service to the rule of reasonable administrative process. Our people-are not yet conscious of their rights; our administrative apparatus has a hard of-hearing heritage. Therefore a creative play of fairplay, irksome to some but good in the long run, must be accepted as part of our administrative law. Lord Hailsham L.C. in Pearlbeg presaged : "The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and (the House of Lords) in particular, have advanced its frontiers considerably. But at the same time they have taken an incre....
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....-poll is not a joke. It is almost an irreparable punishment to the constituency and the candidates. The sound and fury, the mammoth campaigns and rallies, the whistle-story, speeches and frenzy of slogans, the white-heat of tantrums, the expensiveness of the human resources and a hundred other traumatic consequences must be remembered before an easy re-poll is directed, urges Shri Rao. We note the point but leave its impact open for the Election Court to assess when judging whether the, impugned orders was scary, arbitrary, whimsical or arrived at by omitting material considerations. Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing. If two views are possible, the Court cannot interpose its view. If no view is possible the Court must strike down. We have projected the panorama of administrative law at this length so that the area may not be befogged at the trial before the Election Court and for action in future by the Election Commission. We have held that Art. 329(b) is a bar for intermediate legal proceedings calling in question the....
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.... may be likened to a drama, with a solemn script and responsible actors, officials and popular, each playing his part, with roles for heroes but not for villains, save where the text is travestied and unscheduled anti-heroes intervene turning the promising project for the smooth registration of the collective will of the people into a tragic plot against it. Every corrupt practice, partisan official action, basic breach of rules or deviance from the fundamental of electoral fairplay is a danger signal for the nation's democratic destiny. We view this case with the seriousness of John Adams' warning : "'Remember', said John Adams, 'remember', democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide." (Quoted from M. Hidayatullah in "Democracy in India and the Judicial Process" Lajpat Rai Memorial Lectures : P. 16) Only one issue remains. Is, the provision in S. 100 read with s. 90 sufficient to afford full relief to the appellant if the finding is in violation or mat-exercise of, powers under Art. 324 ? Sri Rao says 'NO' while the opposition says 'YES'. L....
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....ory construction. We hold that it is perfectly permissible for the Election Court to decide the question as one falling under s.100 ( 1 ) (d) (iv) A presumatic view of the Act and Art. 324 helps discern an organic synthesis. Law sustains, not fails. A kindred matter viz., the scope of sec. 100 and sec. 98 has to be examined, parties having expressed anxious difference on the implied powers of the Election Court. Indeed, it is a necessary part of our decision but we may deal with it even here. Sri Rao's consternation is that, if his writ petition is dismissed as not maintainable and his election petition is dismissed on the ground that the Election Court had no power to examine the cancellation of poll now that a fresh poll has taken place, he will be in the unhappy position of having to forfeit a nearvictory because a gross illegality triumphs irremediably. If this were true the hopes of the rule of law turn into dupes of the people. We have given careful thought to this tragic possibility and are convincedindeed, the learned Solicitor General has argued for upholding, not subverting the rule of law and agrees-that the Election Court has all the powers necessary to grant all....
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....rger jurisdiction under sec. 98. Law transcends legalism when life is baffled by surprise situations. In this larger view end in accordance with the well-established doctrine of implied powers we think the Court contend if justified, shall-do, by its command, all that is necessary to repair the injury and make the remedy realisable. Courts are not luminous angels beating by their golden wings in the void but operational authority sanctioning everything to fulfill the trust of the rule of law. That the less is the inarticulate part of the larger is the jurisprudence of power. Both Sri Sorabjee and Sri Phadke agree to this proposition and Sri Rao, in the light of the election petition filed and is pending, cannot but assent to it. By way of abundant caution or otherwise, the appellant has challenged, in his election petition, the declaration of the 3rd respondent as the returned candidate. He has also rayed for his being declared the duly elected candidate. There is no disputethere cannot be.--that the cornerstone of the second constituency-wide poll High Court for any good reason then the second poll falls and the 3rd respondent too with it. This question of the soundness of the can....
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....s of minor detail are frequently omitted from legislative enactments, and "if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the legislature likely to be defeated. The rule whereby a statute,, is by necessary implication extended has been most frequently applied in the construction of laws relegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience. x x x x x A municipality, empowered, by statute to construct sewers for the preservation of the public health, interest and convenience, was permitted to construct a protecting wall and pumping plant which were necessary for the proper working of the sewer. but were essential to public health. A country school superintendent, who was by statute given general supervisory power over a special election, was permitted to issue absentee, ballots. The power to arrest ....
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....ts 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 provisions but where such law is silent Art. 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 sofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his ownwrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total repoll, although. not in full penoply but in full penoply but in flexible practicability. Whether it has been compiled with is left open for the Tribunal's adjudication. 3. The conspectus of provisions bearing on the subject of elections ....
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....missing the writ application of the appellant under Article 226 of the Constitution. By a notification of February 10, 1977, made under section 14 of the Representation of the People Act, 1951, (briefly the Act), the President called upon the Parliamentary Constituencies to elect members to the House of the People, in accordance with the provisions of the Act and the rules and orders made thereunder. Simultaneously, a notification was issued by the Chief Election Commissioner with a calendar of dates for different Parliamentary Constituencies in the country. In this appeal we are concerned with No. 13-Ferozepore Parliamentary Constituency in the State of Punjab where the poll was scheduled to be held on March 16, 1977, and March 23 was fixed as the date before which the election shall be completed. Counting, according to the schedule, was to commence on March, 20, 1977 and it actually continued on March 21, 1977. This Parliamentary Constituency consisted of nine Assembly Constituencies including the Fazilka and Zira Assembly segments. We may now briefly state the appellants' case so far as it is material : The poll in the entire Parliamentary Constituency was pea....
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....ated in the office of the Returning Officer, be was prevented from ascertaining the result of the postal ballot papers and declaring the result of the election. He was made to sign a written report about the happenings to the Chief Election Commissioner (respondent No. 1). The above, briefly, is the version of the appellant. Deputy Commissioners are usually appointed'as Returning Officers and originally Shri G. B. S. Gosal, who was the Deputy Commissioner, was nominated as the Returning Officer of the aforesaid constituency, as per notification dated January 29, 1977. It appear s on February 8, 1977, Shri Gosal was transferred and Shri Gurbachan Singh, a close relation of the appellant, was appointed as the Deputy Commissioner in place of Shri Gosal. Shri Gurbachan Singh (respondent No. 2) thus became the Returning Officer. There were complaints and allegations against him and after being apprised of the same the Chief Election Commissioner of (respondent No. 1) appointed Shri I. K. K. Menon, Under Secretary, Election Commission, as an Observer to be present at Ferozepore from March 16 till March 21 on which date the result was expected to be declared. On March 22, 1977, ....
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.... by violence, that as a consequence it is not possible to complete the counting of the votes in the constituency and the declaration of the result cannot be made with any degree of certainty; And whereas the Commission is satisfied that taking all circum'stances into account, the poll in the constituency has been vitiated to such an extent as to effect the result of the election; Now, therefore, the Commission, in exercise of the powers vested in it under article 324 of the Constitution, Section 153 of the Representation of the People Act, 1951 and all other powers enabling it so. to do, cancels poll already taken in the constituency and extends the time for the completion of the election upto 30 April, 1977...... x x x x x The appellant approached the Chief Election Commissioner to revoke the impugned order and to declare the result of the election, but without success. That led to the writ application in the High Court with prayer to issue (1) a writ of certiorari calling forth the recor....
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....63 of the Conduct of Election Rules, 1961, and after going into the facts observed that "it became impossible for the Returning Officer to comply with the provisions of rules 63(2) to 63(6)". Repelling the contention of the appellant that the Commission could not travel beyond the Act and the rules by simply relying on its powers under the Constitution, the High Court observed "that calling upon of the parliamentary constituencies to elect members has to be in accordance with the provisions of the Act and the Rules but it does not mean that the conduct of elections by the Commission has to be held only under the Act or the Rules. The Election Commission who is vested with the power of conducting the elections has still to hold the elections in accordance with the Act and the Rules as well as under the Constitution". The High Court further held that the principles of natural justice were not specifically provided for in Article 324 but were "totally excluded while passing the impugned order". The High Court further observed that even if the principles of natural justice were impliedly to be observed before passing the impugned order the appellant was "heard not only before the issue....
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....es 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". Further below this Court observed as follows "Obviously, the Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any-matter connected with elections, we have only to look at the Act and the rules made thereunder". Lower down this Court further observed "It is now well-recognised that there a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of". x x x x x 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". Ponnuswami's case (s....
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....; x x x x If the grounds on which an election can be called in question could be raised at an earlier stage and efforts, 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 the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it." The above decision in locus-classicus on the subject and the parties before us seek to derives support from it for their contentions. The important question that arises for consideration is as to the amplitude of powers and the width of the functions which the Election Commission may exercise under Article 324 of the Constitution. According to Mr. Rao, appearing on behalf of the appellants, there is no question of exercising any pow....
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....and rules in exercising its powers and performing its manifold-duties for the conduct of free and fair elections. The Election Commission is a high-powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President. The Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections-of course in accordance with the exising laws. But where these are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, ....
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....tc. of ballet papers before counting. Counsel submits that while law has provided for situations specified in section 58 with regard to loss or destruction of ballot boxes and under section 64A with regard to loss and destruction of ballot papers before counting of votes, no provision has been made for such an unusual exercise of power as the cancellation of the poll in the entire constituency after it has already been completed peacefully. It is therefore has argued that this is a case of complete lack of power of the Commission to pass the impugned order. It is clear even from section 58 and section 64A that the legislature envisaged the necessity for the cancellation of poll and ordering of re-poll in particular polling stations where situation may warrant such a course. When provision is made in the Act to deal with situations arising in a particular polling stage it cannot be said that if a general situation arises whereby numerous polling stations may witness serious mal-practices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision. The fact that a particular Chief Election Commissioner may take....
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....r the notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the, election without reference to any outside agency. We do not find any limitation in Article 324(1) from which it can be held that where the law made under Article 32 / or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. We are clearly of opinion that the Election Commission is competent in an appropriate case to order repoll of an entire constituency where necessary. it will be an exercise of power within the ambit of its functions tinder Article 324, The submission that there is complete lack of power to make the impugned order under Article 324 is devoid of substance. The ancillary question which arises for consideration is that when the Election Commission amended its notification and extended the time for completion of the election by ordering a fresh poll, is it an order durin....
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.... an election petition in accordance with law. The appellants, then, will not be without a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll. In other words, when the appellants question the election after declaration of the result on the basis of the fresh poll, the election court will be able to entertain their objection with regard to the order of the Election Commission countermanding the earlier poll, and the whole matter will be at large. If, for example, the election court comes to the conclusion that the earlier poll has been wrongly cancelled, or the impugned order of the Election Commission is otherwise invalid, it will be entitled to set aside the election on the basis of the fresh Poll and will have power to breathe life into the countermanded poll and to make appropriate directions and orders in accordance with law. There is, therefore, no foundation for a grievance that the appellants will be without any remedy if their writ application is dismissed. It has in fact been fairly conceded by counsel for the other side that the election court will be ab....
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....e 329(b) provides that,.notwithstanding anything in this Constitution no election to either house of Parliament 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." It is undisputed that an election can be challenged only under the provisions of the Act. Indeed section 80 of the Act provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of" Part VI of the Act. We find that all the substantial reliefs which the appellants seek in the writ application, including the declaration of the election to be void and the declaration of appellant No. 1 to be duly elected, can be claimed in the election petition. It will be within the power of the High Court. as the election court, to give all appropriate reliefs to do complete justice between the parties. In doing so it will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. The writ application is therefore barred under Article 329(b) of the Constituti....
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....trial. That High Court will thus be free to decide the petition according to the law. We would also like to make it quite clear, with all respect to the learned Judges who have delivered a separate judgment, that we may not be taken to have agreed with the views expressed therein about the applicability of audi alteram partem or on the applicability of the guidelines in sections 58 and 64A to the facts and circumstances of this case, or the desirability of ordering a re-poll in the whole constituency, or the ordering of a repoll of postal ballots etc. Election, is a long, elaborate and complicated process and, as far as we can see, the rule of audi alteram partem, which is in itself a fluid rule, cannot be placed in a strait-jacket for purposes of the instant case. It has also to be remembered that the impugned order of the Election Commission could not be said to be a final pronouncement on the rights of the parties as it was in the nature of an order covering an unforeseen eventuality which bad arisen at one stage of the election. The aggrieved party had all along a statutory right to call the entire election in question, including the Commission's order, by an election petit....