# [1985] Supp. 1 S.C.R. 493

- **Citation:** [1985] Supp. 1 S.C.R. 493
- **Court:** Supreme Court of India
- **Decided:** 1985-05-08
- **Case number:** Civil Appeal No. 739 of 1982
- **Bench:** Chandrachud, D.A. Desai, A.P. Sen, BAHAi.VL II!LAM, i.S. YINbU.li.AWIAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-supp-1-s-c-r-493-9065
- **Pages:** 48

## Headnote

C•nstitution of India 1950.
493
A
B
Artie!~ 226-I61ection prOC4SI-lnt,ftunc• by Hith Court'-Po&tP<m•ment
C
t~f ~ections-lnterim ortl"s •nd lir•ctlona-l'assint of-Caution and re/uc·
t•.,ce-Neceuity of.
Article 324-Elector•l rolls-Preparation of-Election Commiuion not
havint own staff-Central and State Government staff-Enumerators-Objections
ilf Jist-Disposal of-Efficiency and impartia{ity-EmphaJised.
0
Article 329 (b)-Electoral
rol!s-Prtparation and ,ublication ofWhether part of' election process'-Allegations of irregularities in electoral rollsbtterference by High Court in electoral matters-Whether bar to illterferelfce.
The Represelftation Df PeDple Act 1950 Sectitms 14 (b) t1nti 21.
J'lre Represutation "f l'eople .4ct 1951.
Election Commfssion-Givlnr rJ/ directions t• Chief Klectoral O.ffictrsWhether have force of law-Violatiolf of direct/au-Whether creal• rights a11d
"(,ligations under Election Law.
Electoral Roll-Prept~ratlo1f tJnd r•vision-What is·-Spuial revis;,,._
JVIIM arises-'Qualifyillg dote' In regard to electoral rrJII-What is.
Tlf11 Registratitm of El«tors Rules 1960. Rules 10 to 20 a1ftl 2~.
Conduct of Election Rules 1961
'hasie roll of con!tituency'-What is- Voters list-Basis of free tJNd /tJfr
elections-Jnclusion in electoral roll deletion of inelitible person11 wrDngly
included-Rights a/ eligible
Voter-Fee of 10 p. /or challenge-Levy ofWh'!ther unreasonable.
Administrat/Pe Law
Co1utltutio111JI ilutitutio1u tJitd /uNcti(Jnarie$-DisclrtJrge ~f duties byPresumpliDif of existence of bottttlde&-Preferve (Jifd fTt?t~ct i11territy of b•TM·
E
F
G
H
A
8
c
D
E
F
G
H
494
SUPREME COURT REPORTS
[1985J SUPPL. S.C.R.
fides-Preserve and pretec/ integrity of constitutional institutions-Duty of
courts.
A writ petition was filed in the Calcutta High Court claiming the
following reliefs : (I) That the Chief Election Commissioner and the Chief
Electoral Officer be restrained from acting, either by themselves or through
their subordinates, in pursuance of the instructions or directions issued by
them from time to time ; (ii) that they should be restrained from scoring out
any names from the electoral rolls which were finally published ; (iii) that they
!ihould be restrained from issuing or publishing any notification under s. 15 (2)
of the Representation of People Act of 1951 without preparing the electoral
rolls de novo, after the disposal of the appeals against orders whereby claims
and objections were decided; and (iv) that they should be restrained from
holding elections to the West Bengal Legislative Assembly until the disposal
of all the claims, objections and appeals under the Representation of People
Acts of 1950 and 1951,
The writ petitioners who were eight in number were enrolled as voters
in the electoral roll of the West Bengal Legislative Assembly. Some of them
were office-bearers of political parties like the West Bengal State Muslim
League, West Bengal Unit of the Janta Party, All India Christian Democrate
Party and West Bengal Congress Legislative Party. It was contended in the
writ petition that the guidelines or instru.::tions issued by the Chief Flectoral
Officer by circular dated March 12, 1981 asking all the District Officers and the
Sub-Divisional Officers to make a de novo intensive revision of the electoral
rolls for the general election to the Legislative Assembly, West Bengal. without
reference to the then existing electoral rolls are vague, unreasonable and
arbitrary as a result of which it would not be possible to hold fre.! and fair
elections on the basis of those rolls,and that the guidelines or instructions
issued were blatantly violated in certain cases, and that the exact extent of the
polling areas was not demoarcated clearly, no house-to· house visits were made
and the names of the members of each household who had attained the age
of 21 year on tb.e prescribed date were not recorded in several cases. By a
Memorandum dated May 12, 1981 which was after the work of the intensive
revision of the ele

## Text

_Characters 0–38,716 of 118,883. This is a partial read: ask again with offset=38716 for what follows._

LAKSHMI CHARAN SEN AND ORS ETC.
'·
A.K.M. HASSAN UZZAMAN AND ORS. ETC.
May 8, 1985/lanuary 12, 1983/March 30, 1981.
[Y.Y, CHANDRACHUD, C.l., D.A. DESAI, A.P. SEN, BAHAi.VL
II!LAM AND i.S. YINbU.li.AWIAH, JJ.]
C•nstitution of India 1950.
493
A
B
Artie!~ 226-I61ection prOC4SI-lnt,ftunc• by Hith Court'-Po&tP<m•ment
C
t~f ~ections-lnterim ortl"s •nd lir•ctlona-l'assint of-Caution and re/uc·
t•.,ce-Neceuity of.
Article 324-Elector•l rolls-Preparation of-Election Commiuion not
havint own staff-Central and State Government staff-Enumerators-Objections
ilf Jist-Disposal of-Efficiency and impartia{ity-EmphaJised.
0
Article 329 (b)-Electoral
rol!s-Prtparation and ,ublication ofWhether part of' election process'-Allegations of irregularities in electoral rollsbtterference by High Court in electoral matters-Whether bar to illterferelfce.
The Represelftation Df PeDple Act 1950 Sectitms 14 (b) t1nti 21.
J'lre Represutation "f l'eople .4ct 1951.
Election Commfssion-Givlnr rJ/ directions t• Chief Klectoral O.ffictrsWhether have force of law-Violatiolf of direct/au-Whether creal• rights a11d
"(,ligations under Election Law.
Electoral Roll-Prept~ratlo1f tJnd r•vision-What is·-Spuial revis;,,._
JVIIM arises-'Qualifyillg dote' In regard to electoral rrJII-What is.
Tlf11 Registratitm of El«tors Rules 1960. Rules 10 to 20 a1ftl 2~.
Conduct of Election Rules 1961
'hasie roll of con!tituency'-What is- Voters list-Basis of free tJNd /tJfr
elections-Jnclusion in electoral roll deletion of inelitible person11 wrDngly
included-Rights a/ eligible
Voter-Fee of 10 p. /or challenge-Levy ofWh'!ther unreasonable.
Administrat/Pe Law
Co1utltutio111JI ilutitutio1u tJitd /uNcti(Jnarie$-DisclrtJrge ~f duties byPresumpliDif of existence of bottttlde&-Preferve (Jifd fTt?t~ct i11territy of b•TM·
E
F
G
H
A
8
c
D
E
F
G
H
494
SUPREME COURT REPORTS
[1985J SUPPL. S.C.R.
fides-Preserve and pretec/ integrity of constitutional institutions-Duty of
courts.
A writ petition was filed in the Calcutta High Court claiming the
following reliefs : (I) That the Chief Election Commissioner and the Chief
Electoral Officer be restrained from acting, either by themselves or through
their subordinates, in pursuance of the instructions or directions issued by
them from time to time ; (ii) that they should be restrained from scoring out
any names from the electoral rolls which were finally published ; (iii) that they
!ihould be restrained from issuing or publishing any notification under s. 15 (2)
of the Representation of People Act of 1951 without preparing the electoral
rolls de novo, after the disposal of the appeals against orders whereby claims
and objections were decided; and (iv) that they should be restrained from
holding elections to the West Bengal Legislative Assembly until the disposal
of all the claims, objections and appeals under the Representation of People
Acts of 1950 and 1951,
The writ petitioners who were eight in number were enrolled as voters
in the electoral roll of the West Bengal Legislative Assembly. Some of them
were office-bearers of political parties like the West Bengal State Muslim
League, West Bengal Unit of the Janta Party, All India Christian Democrate
Party and West Bengal Congress Legislative Party. It was contended in the
writ petition that the guidelines or instru.::tions issued by the Chief Flectoral
Officer by circular dated March 12, 1981 asking all the District Officers and the
Sub-Divisional Officers to make a de novo intensive revision of the electoral
rolls for the general election to the Legislative Assembly, West Bengal. without
reference to the then existing electoral rolls are vague, unreasonable and
arbitrary as a result of which it would not be possible to hold fre.! and fair
elections on the basis of those rolls,and that the guidelines or instructions
issued were blatantly violated in certain cases, and that the exact extent of the
polling areas was not demoarcated clearly, no house-to· house visits were made
and the names of the members of each household who had attained the age
of 21 year on tb.e prescribed date were not recorded in several cases. By a
Memorandum dated May 12, 1981 which was after the work of the intensive
revision of the electoral rolls had begun, the Election Commission of India
informed the Chief Electoral Officers of all the States and the Union Territories
that its attention was drawn to certain irregulatities in the matter of revision
of electoral rolls and that in many cases lists pertaining to certain polling
booths were found to be defective. The Draft Elt:ctoral Roll which was
published in September 1981 were manipulated by including therein not only
Bangladesh Nationals but minors, dead persons and refugees from Assam who
have living in refugee camps. These manipulations in the electoral roll became
possible because of the deliberate infiltration of the CPJ (M) members of the
Government staff in the election machinery as enumerators. The infirmities
in the electoral rolls were of such a basic and inherent character that unless a
further de novo revision of the electoral rolls was undertaken, it would be
unfair to allow the elections to be held on the ba~is of the said electoral rolls.
Complaints relating to individual cases were sent to the Election Commission
but no attention was paid to them. The scheme of the Election Law and the
rules framed thereunder are so designed that unless aU the objections were::
...
L.C. SEN V. A.II.M.H. UZZAMAN
495
decided by the appellate authority and the Registration Officer and the
electoral rolls are correspondingly amended especially when a de novo revision
of the electoral rolls is directed to be made it is impermissible to issue a
notification under s. 15 (2) of the Act of 1951. It was further alleged that
nearly 8 lakhs complaints were filed in regard to the voters' lists but no notice
was issued to the concerned persons while deciding those complaints. Jn a
few cases where notices were sent not enough time was given to the complainants to appear before the concerned authorities to make their contentions.
Article 329 was no bar to the filina the writ petition under Articl1 226 as the
petitioners were not challenain& the 'commencement of pollin;'.
On February 12, 1982 a single judae of the Hiah Court issued a rule on
the writ petition and grante<i the ad-interim relief prayed for. The writ
petition was directed to be listed on February 19, 1982 when, after some
A
B
arguments, the matter was adjourned to February 25, 1982. Thereafter four
C
5pecialleave petitions were filed in this Court a11ainst the ad-interim orders
passed by the Single Judge. On Febuary 23, 1982 certain directions were issued
in one of those special leave petitions and it was la~er ordered that the sinal•
judge of the High Court should proceed to hear the matter.
The writ petition was beard by the Single Judge on February 25, 1982,
who directed the respondents to the writ petition to take certain steps before
D
is~uance of the notification under section 15 (2) of the Act of 1951, in effect,
confirming the ad-interim order dated February 12, 1982.
Tn the four appeals to this Court, the Mit petitioners who succeeded in
obtaining interim orders from the High Court are in the array of respondents.
Three of those appeals were filed by persons who contended that the High
F.
Court ought not to have interfered with the election process which was
imminent. The fourth appeal was filed by the Election Commission of India,
the Chief Election Commissioner, and the Chief Electoral Officer who con ten.
ded that the High Court had no jurisdiction to entertain the writ petition by
reason of Article 329 (b) of the Constitution, that the election process which
had already begun should not have been interfered with by the High Court
F
and that the recommendation made to the Governor of West Bengal by tl.e
Election Commission under s. 15 (2) of the Act of 1951 was being thwarted by
frivolous and baseless objections raised by the writ petitioners. ln their
counter-affidavits to the writ petition it was c ntended that the electoral roll~
whichwere prepared de. novo after house to house enumeration in 198 1 and
which were intensively revised in all the 294 assembly constituencies were
finally published with the supplements on December 31,1981. On January 1,
G
1982 the finally published electoral rolls with the supplements were published
in draft in the respective polling areas. Claims and objections were specifically
invited in the prescribed forms under the iaw. It was further alleged that the
petitioners were espousing the cause of unnamed and undisclosed persons
through a writ petition, which does not claim to possess a representative
capacity and that the upshot of the petition is that some three crores of voters
B
were being deprived of an opportunity to exercise their franchise in order that
an investigation should be mad.;: as to whether the names of some 5 lakhs
~rsons should be included in or excluded from the electoral roll.
A
8
c
D
E
F
G
H
496
SUPREME COURT RBPORTS
(1985) SUPPL, S.C.R.
HELD:
[By th4 Court]
The Writ Petition under
Article
226 of the Constitution field
before the Calcutta High Court and transferred for disposal to this Court
be dismissed. All orders including stay, and the interim order aranted by
the High Court vacated and set aside. The four Civil Appeals will stand
disposed of in the liaht of the dismissal of the writ patition. [525 G-H]
[Per Majoril Chandrachud, CJ., Desai, Sen, Venkataramiah JJ.]
l. (a) The High Court acted within its jurisdiction in entertainina the
writ petition and in issuing a Rule Nisi upon it, since the petition questioned
the vires of the laws of election. But, it was not justified in passing the
interim orders dated February 12, and 19, 1982 and in confirming those orders
by ita judgment dated February 25, 1982. Firstly, the High Court had no
material before it to warrant the pas~in~ of those orders. The allegations in
tho Writ Petition are of a vague and general nature, on the basis of which no
relief could be granted. Secondly, though the High Court did not lack the
jurisdiction to entertain the Writ Petition and to issue appropriate directions
therein, no High Court in the exercise of its power under Article 226 of the
Constitution should pass any orders, interim or otherwise, which has the
tendency or effect of postponing an election. which is reasonably imminent and
in relation to which its writ jurisdiction is invoked
{522 F-H]
(b) The High Courts must observe a self-imposed limitation on their
power to act under Article 226, by refusing to pass orders or given directions
which will inevitably result in an indefinite postponement of elections to
legislative bodies, which are the very essence of the democratic foundation and
functioning of our Constitution. That limitation ought to be observed irrespec·
tive of the fact whether the preparation and publication of electoral rolls arc
& part of the process of'election' within the meaning of Article 329 (b) of the
Constitution. [523 C-D]
2. (a) The Election Commission, or the Chief Electoral Officer or th•
Electoral Registration Officers have not in any manner acted in violation of the
Constitution. the Representation of the People Acts of 1950 and 1951, or th•
Registration of Electors Rules, 1960.
The Election Commission issued th•
v&rious directives ex debito justiae as steps·in-aid of a fair election. They are
bein& observed faithfully and honestly, and shall be so observed until th•
deadline mentioned in section 23 (3) of the Act of 1950.
The manner in which
the directives are being implemented cannot be regarded as unreasonable.
[523 F-G]
(b) It takes years to build up public confidence in the functioning of
constitutional institutions, and a single court hearing, perhaps, to sully their
image by casting aspersions upon them. It is the duty of the courts to prote<:t
and preserve the integrity of all constitutional institutions, which are devised to
foster democracy. And when the method of their functioning is questioned,
which it is open to the citi:z:en to do, courts must examine the allegations with
moe. than ordinary care. [523 H; 524 A· B)
L.C. SEN V. A.K!.M.H. UZZAMAN
497
(c) The Election Commission, the Chief Electoral Officer and the
flectoral Registration Officers will not generate a feeling in the minds of the
public that the elections held hiterto in our country over the past thirty years
under the superintendence, direction and control of successive Election
Commissions have been a pretense and a facade.
The public ought not to
carry any such impression and the voters must go to the ballot-box undeterred
by the sense of frustration which the petitioners' charges are likely to create in
their minds. There is no substame in the accusation that the voters' lists have
been rigged by the election authorities with the !1elp of enumerators belonging
to any particular political party. Fnumerators are mostly drawn from amongst
teachers and Government servants and it is difficult to imagine that thirty-five
years after independence, they are totally colour-blind. They are the same in
every State and every constituency. The safeguard lies in the efficiency and
impartiality of the higher officers who have to decide objections filed in
relation to the voters' lists. TJ1at safeguard is not shown to have failed in the
instant case. [524 D-G]
(d) There is no voter in our country who does not have or cannot raise
a sum of ten paise to ventilate his objection to the voters' Jist. [525 D]
3. Even assuming, that the preparation and publication of electoral
rolls are not a part of the process of 'election' within the meaning of Article
329 (b), the High Court ought not to have passed the impugned interim orders,
where by it not only assumed control over the e1.ection process but. as a result
of which, the election to the Legislative Assembly stood the risk of being postponed indefinitely. [520 D-E]
4. Very often, the e:'\ercisc of jurisdiction, especially the writ jurisdiction, involves questions of property rather than of power. The fact that the
Court has the power to do a ce:tain thing does not mean that it must exercise
that power regardless of the consequences. (520 F]
5.
Holding the elections to legislatures and holding them according to
law are both matters of raramount importance. On the one hand is the
individual's statutory right of franchise, on the other is the constitutional
obligation imposed by Article 168. [513 A)
6.
Preparation and revision of electoral rolls is a continuous process
not connected with any particular election. (513 q
7. The right to be included in the electoral roll or to challenge the
inclusion of any name in the roll is a right conferred upon an individual and
not upon any political party. [513 FJ
A
B
c
D
E
F
G
N.P. Ponnuswa"!i v. ~etu,ning Officer Namakkal Constituency, [1952]
H
SCR 218. Rampakav1 Ravappa Be/agali v. B.D. Jalli
[1970] 3 SC ~ 14
Moh'
~ s· h G'll
Ch' ·"
'
L.
7·
m, er Ing
l v.
te1 Election Commissioner, New Delhi
[1978] 2 SCR
mre~~~
·
A
8
c
.E
F
Jl
498
SUl'RBMB COURT RJ!POllTIJ .
[1985] SUPPL. S.C,Jt, .
· (Pu Balrarul Islam J. dlutntlnK)
1. It cannot bo said in the Instant case, that in the revlSJon of the
electoral roll, all possible care os enjoined by the letter and spirit of the
Constitution and tbo statutes was taken. [S39 E)
2. A political party is not eotilled to, under the law, to receive any
notice but in the background of the illilerncy and ignorance and lack or
political consciousness of D large &cCtiOD Of the eleClOrote, it is but proper and
in consonance with the "spirit of the Constitution and the Election Lows that
notices bo given to the leaders of political parties who file complaints or
omnibus complaints and claims nod objections. [537 G·H]
. 3 •. No persons who are members or a political party or of an association
nff•liated to a polilical party should be appointed to be enumerators of voters
&o that there may not be ony foul piny or rigging in tl1e preparation of the
electoral roll. Enumarators should be porsons who ore not affiliated, either
directly or lndireclly loony political party, whether in power or not; for this
purpose, it is de~irable that only Go,·emment officers Including teachers or
Government &ehools and colleges m•1 t:e appointed enUQlerotors and not or
non-government organ(z.Jtions or lnslltutiona, unless their rules debar theit
employees to be members of political partie&. [539 C·D]
4. The ba~lc needs of a citizen or any civilized country are food,
clothing. education and health services. A citizen of ony modern democratic
State hat also an additionaloeed, which is a political right. It is the right of
participation in the aovernance or the .:ountry directly or indirectly. This
participation or an adult clt!z,o of our country starts with the right to vote for
a cand'date and elect a repr<1<'nt3th-.:. of hls choice to the leaislatures end
other self-covernina lnst(lutlons. This right to vote presuppose• a rlaht to bo
enrolled u an elector provided, he bas the requisite quoliOcatlons prescribed
by the Con•titutlon and the elect"H>O laws and other stat~tes and he has none of
the di!qu•lillcatioOJ enumerated in those laws. (527 C·D)
S.(l) The basi• or election oo adult franchise &nd the right to be reaistered
as a voter at an election of a penon with the requisite qualifications and havina
no di$Qualifications are coottitutlooal DlJDdate1. (II) Puli•ment has made provldons for tho purpose or tho prtP<Jrarlvn u/lh• ~/fctoral rolls ond mauen
connected therewith In tbe Ropresentatlon or People Act 19SO and tbo
Registration or Electors Rulet 1960. Por tho purpose or conduct of election
to the Houses of Parliament and to the .Houses or State Legislatures and to
mellen relatlna to such elect loot In the R~presentatlon or People Act, 19SI
tacit he Conduct or I!Jectlon Rule. 1961. [~27 0-H; 528 A)
6. The basis of a free and fair election Is the voters' list prepared In
acc.ordance with the 19.10 Act and the 19GO Rules. 1f this Is not so done, thl
electoral rollt will ha•o no ~octily and the consequent election will also Ml
intpirc confid(nce of the !)fflple. ['29 q
: :
L.C. SBN v. A.K.M.H. UZZAMAN
499
7. Article 314 shows that for the purpose of preparing the electoral
rolls for the purpose of conductio& the elections, the Election Commission,
although a very high and independent constitutional functionary, does not
have a staff of its own appointed and removable by it. The staff made available
to the Election Commission for the aboye purposes are the employees of a
State or the Central Government. They are not independent like the Election
Commission, itself, but are liable to be influenced by the concerned Executive
Government. lllegal omission of the names of persons who were qualified
from the electoral roll or inclusion of the names of persons who are not
qualified or who have disqualifications has for reaching consequences. (528D·E)
8. Section 21 of the 1950 Act provides for the preparation and revision
of electoral rolls. Qualifying date bas been defined under Section 14 (b) as the
" 1st day of January of the year in which it is so prepared or revised" in
relation to the preparation or revision of every electoral roll under Part III.
It is not permissible in normal circumstances to hold a general or bye-election
on an electoral roll unless it is revised under sub-section (1) of section 21.
[530 A-B; 531 Gj
9. The Elections Rules 1960 by Rules 10 and 11 provide for the publication of the draft roll and further publicity of the roll and the notice in Form
5, A combined reading of Rules 18, 19 and 20 show that they are based on
the principle of natural justice keeping in view the right of an eligible voter to
be included in the electoral roll and the right of any person to see that the
names of a persons not so eligible, but wrongly included earlier, be delated
from the electoral roll. Rule 21 gives suo moto power to the registration
officer to include names inadvertently omitted. Rule 21 (A) gives suo n:oto
power to the registration officer to delete the names of dead electors or of
persons who have ceased to be or are not ordinarily residents in the
constituency. Rule 22 is very important. It gives power to the registration
officer to prepare a li;t, after compliance of Rules 18, 21 and 21A and publish
the rol! together with the list of amendments by making a complete copy
thereof available for inspection and displaying a notice in Form 16 at his
office. Under sub-rule (2} of Rule 22, on such publication, the roll together
with the list of amendments. ' 'shaH be the electoral roll of the constituency",
Under sub-rule (3), this roll s\1all be the " basic roll" for the constituency.
Rule 23 provides for appeal from the decision of the registration officer under
Rules 20, 21 or 21A to an appropriate authority. These provisions disclose the
importance to be given to the preparation of an electoral roll.
(532 C; 533 F-H; 534 A)
10. A perfect electoral roll is not possible. But at the same time, it
must be remembered that the name of any eligible voter should not be omitted
or the name of any disqualified person should not be included in the electoral
roll, in violation of any constitutional or statutory provisions. The ~rcor,
A
B
c
D
E
G
when pointed out, has to be removed. It must also be remembered that a large
H
section of the electorate of our country consist of illiterate people and not
politically so conscious as to see that their names arc in the electoral roll. A
duty is cast on the political parties to educate the el~ctorate and take steps
that the names of elisible persons are included in the electoral rolls and that
A
B
c
D
E
F
500
SUPREMB COURT RBPORTS
(1985) SUPPL. S.C.R.
names of ineligible persons are deleted. Erroneous inclusion or omJssJon of
the names of a few persons
may not be of much consequence. But if a.
considerable number of the names of such persoons are either wrongly included
in, or excluded from, the electoral roll, it will be of great consequence to a
particular party ;ither or in the opposition. The electoral registration officer,
therefore, cannot be fastidious as to whether the claims and objections are
strictly in prescribed forms. Even. when there are omnibus objections by a
political party or political parties, as in this case, filing claims and or
objections, such claims and objections have to be inquired into and necessary
action taken so that the correct opinion of the electorate may be relected ift
the result of the election. [534 B-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 739 of
1982.
From the Judgment and Order dated February 12 and 19, 1982
of the Calcutta High Court in Civil Rule No. Nil of 1982.
AND
Civil Appeal No. 740 of 19~2
From the Judgment and Order dated February 12, 1982 of the
Calcutta High Court in Civil Rule No. (W) of 1982.
AND
Civil Appeal No. 741 of 1982
From the Judgment and Order dated February 25, 1982 of the
Calcutta High Court in Civil Rule No. (W) of 1982.
AND
Civil Appeal No. 742 of 1982
From the Judgment and Order dated February 12, 1982 and
G
February 25, 1982 of the Calcutta High Court in Civil Writ No. (W)
of 1982.
H
AND
Transferred Case No. 3 of 1982
K.K. Venugopal, S.N. Kacker, N.N. Gooptu, Soli J. Sorobjee,
Somnath Chatterjee, R.K. Garg, F.S. Nariltfan, Pronab Kumar
L.c. SEN .,, A.K.M.H. uz.iAMAN (Chandrachud, C.J.)
501
Chatterjee, H.K. Puri, Miss Radha Rangaswamy, N.K. Chakravarthy
and B. V. Desai for the appearing Appellants.
A.K. Sen, S.S. Ray, BN. Sen, B.P. Banerji, M. Mezumdar.
Kapil Sibal, Ashok Ganguly, L K. Gupta, U.N. Bannerjee, Parijat Sinha
and P.R. Seetharaman for the Petit1oners, and for the Respondents
I, 8 and 14 in C.A. No. 739·41 of 1982 and for Respondent No.6 in
742 of 1982.
L.N. Sinha Att. Gen., K. Parasaran, Solicitor General, Milan
Kumar Banerjee, Addl. Solicitor General, K.S. Gurumoorthy, Miss
A. Subhashini, Ajit Panja and Mrs. Mithu chvkravarti for the
Respondents.
M.C. Bhandare, P.R. Mridul, Mrs. S. Bhandare, A.N. Karkhanis,
Miss C.K. Sucharita, T. Sridharan and Vindet Kumar, for the
Respondents.
P.H. Parekh, R.N. Karanjawala for the Interveners in C.A. No.
739 of 1982. Indian Express News Papers (Bombay)
Mt31 Rani l1thma/ani for the Intervener. (Bar Council)
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R.C. Kaushik for the Intervener in C.A. No. 742 of 1982.
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(Democratic Society).
The followini Judgments were delivered
CHANDRACHUD, C.J. : There are four appeals and a Transferred
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Case before us. The appeals arise out of interim orders passed by a
learned Single Judge of the Calcutta High Court on February 12 and
19, 1982 which were confirmed by him on February 25, 1982. Those
orders were passed in a Writ Petition filed under Article 226 of the
Constitution ask:ini for the writs of mandamus and certiorari,
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directing that the instructions issued by the Election Commission
should not be implemented by the Chief Electoral Officer and others;
that the revision of electoral rolls be undertaken de nora; that claims,
objections and appeals in regard to the electoral roll be heard and
disposed of in accordance with the rules; and that, no notification be
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issued under section 15(2) of the Repmentation of the People Act,
1951 calling for election to the West Bengal Legislative Assembly,
until the roJJs were duly revised.
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Transferred Case No. 3 of 1982 is that very writ petition. It was
withdrawn for hearing and final disposal to this Court by an order
dated March 4, 1982. That writ petition was filed by eight persons
against the Union of India. The Election Commission, the Chief
Election Commissioner and the Chief Electoral Officer, West Bengal.
The writ petitioners, who succeeded in obtaining interm orders from
the High Court are in the array of respondents in the four appeals.
Three out of those appeals are filed by persons who contend that the
High Court ought not to have interfered with the election process
which was imminent. The fourth appeal No. 742 of 1982, is filed by
the Election Commission of India, the Chief Election Commissioner
and the Chief Electoral Officer, West Bengal. Their contention is
that the High Court had no jurisdiction to entertain the writ petition
by reason of Article 329(b) of the Constitution, that tbe election
process which had already begun should not have been interfered
with by the High Court and that the recommendation made to the
Governor of West Bengal by the Election Commission under section
15(2) of the Act of 1951 was being thwarted by 'frivolous and baseless' objections raised by the writ petitioners.
The writ petitioners are enrolled as voters in the electoral roll
of the West Bengal Legislative Assembly. The validity of several
provisions of the Representation of the People Act, 1950, the Representation of the People Act, 1951, the Registration of Electors Rules,
1960, and the Conduct of Election Rules, 1961 was challenged in the
writ petition but, it is unnecessary to spend any time over that matter
since, the validity of none of those provisions was questioned before
us. Shorn of that challenge, it is doubtful whether the High Court
would have passed the impugned orders. Be that as it may, what is
to be noted is that the points which are raised for our consideration
do not involve the validity of any law and are restricted to illegalities
and irregularities alleged to have been committed by the Chief
Electoral Officer, West Bengal, and by the officers subordinate to him
in regard to the preparation of the electoral rolls which would be used
for the purposes of election to the West Bengal Legislative Assembly.
The Chief Electoral Officer, by a Circular dated March 12.
1981t asked all the District Officers and the Su~Divisional Officers
under him to make a de novo intensive revision of the electoral rolls
for the general election to the Legislative Assembly, West Bengal,
without reference to the then existing electoral rolls. The grievance
of the writ petitioners is that the guidelines or instructions issued by
l.c. iBN li" A.C.M.H. UZZAMAN (Chandrachud, C.J.)
503
the Chief Electoral Officer were not only not adhered to by the
subordinate officers but were blatantly violated in certain cases. It is
alleged, for example, that the exact extent of the polling areas was not
demarcated clearly, no house-to-house visits were made and, the
names of the members of each household who had attained the age
of 21 years on the prescribed date were not recorded in several cases.
According to them, the guidelines issued by the Chief Electoral
Officer for a de novo intensive revision of the electoral rolls are vague,
unreasonable and arbitrary, as a result of which, it would not be
possible to hold free and fair elections on the basis of those rolls.
By a Memorandum dated May 12, 1981, which was after the
work of the intensive revision of the electoral rolls had begun, the
Election Commission of India informed the Chief Electoral Officers of
all the States and the Union territories that its attention was drawn to
certain irregularities in the matter of revision of electoral rolls and
that in many cases, lists pertaining to certain polling booths were
found to be defective. For example. the polling areas covered by the
polling booths were not clearly demarcated, the polling booths were
not compact, care was not taken to ensure that voters belonging to
weaker sections or minority communities would be able to reach the
polling booth£ and that the Commission's instructions that polling
booths should be set U:J in colonies inhabited by Harijans and other
weaker sections of the society, even though the number of voters may
be les~ than 500. were not carried out appropriately. According
to the petitioners, the instructions issued by the Election Commission
were not carried out in the State of West Bengal. They also contend
that the instructions issued by the Chief Election Commissioner in the
Circular dated May 12, 1981 were at variance with the instructions
issued by the Chief Electoral Officer, West Bengal on March 12, 1981,
thereby making it difficult for the Electoral Officers to carry out their
duly appointed duties. The petitioners have then referred in the writ
petition to radiogrammes dated June 21 and July 4, 1981 issued by
the Election Commission. It is contended that the directions issued
in those radio&rammes are arbitrary and illegal for various reasons.
The further grievance made by the petitioners in the writ petition is that the preparation of electoral rolls on the basis of polling
stations was made arbitrarily and improperly in that, the total number
of voters in ~everal constituencies, after the house-to-house enumerll-!
tion, differed in material particulars from the total number of voters
in the Draft Electoral Roll which wa~ published in the month of
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September 1981. It is alleged that the Draft Electoral Rolls were
manipulated by including therein not only Bangladesh Nationals but
minors, dead persons and refugees from Assam who were still living
in refugee camps. According to the petitioners, these infirmities in the
electoral rolls were of such a basic and inherent character that unless
a further de no11o revision of the electoral rolls was undertaken, it
would be unfair to allow the elections to be held on the basis of the
revised electoral rolls. The revision work of the electoral rolls which
was undertaken in West Bengal could not possibly be finished within
the time prescribed since, so the petitioners say, the State was passing
through a difficult period, particularly in the matter of law and order
and because of natural calamities. The infirmities in the revised
electoral rolls which are pointed out by the petitioners may be
summed up as the inclusion of teenagers and aliens therein, exclusion
of persons who are qualified to be enrolled as voters, the incorporation of fictitious entries and, mistakes and distortions in names and
surnames. One of the grievances of the petitioners is that these
manipulations in the electoral ro Jls became ·possible because of the
deliberate infiltration of the CPI(M) members of the Government
staff in the election machinery. It is alleged that complaints relating
to individual cases were sent to the Election Commission but, no
attt>ntion was paid to them.
According to the petitioners, the scheme of the Election law
and the rules framed thereunder is so designed that unless all the
objections are decided by the appellate authority and the Registration
officer and the electoral rolls are correspondingly amended, especially
when a de navo revision of the electoral rolls is directed to be made,
it is impermissible to issue a notification under section 15(2) of the
Act of 1951.
Yet another grievance of the petitioners is that nearly 8 lakhs
complaints were filed in regard to the voter's lists but, no notice was
issued to the concerned persons while deciding those complaints. In
a few cases where notices were sent, not enough time was given to the
complainants to appear before the concerned authorities to make
their contentions. Indeed, the petitioners so contend, the claim of
the Election Commission that it had already looked into most of the
complaints was, on the face of it. exaggerated.
Nearly 8 lakhs com·
plaints arc alleged to have been filed by the Indian National Congress
by way of a sample survey which related to 100 out of 294
constituencies in the State of West Bengal.
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t.C. StlN v. A.Kt.M.H. UZZAMAN (Chandrachud, C.J.)
505
The petitioners wind up the writ petition by asserting that the
ban imposed by Article 329 of the Constitution cannot prevent them
from filing the writ petition under Article 226 since, they were not
challenging the 'commencement of polling'. Their cha11enge was to
the constitutionality of the law relating to elections and the arbitrary
actions on the part of the Election Commission. The writ petition
contains exactly 100 grounds on the basis of which the holding of the
impending elections to the West Bengal Legislative Assembly was
challenged. The Election Commission had declared on February
9 1982 in a Press Conference that the final voters' lists would be pub-
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lished on March 1, 1982 and that the elections may be held at any
time between April and June 24, 1982.
We have set out the case of the petitioners at some length
became their writ petition was withdrawn for disposal by this Court.
The merits of the petition are being considered for the first time here,
which makes it necessary to know the state of pleadings and the
nature of the relief claimed in the petition.
By their writ petition, the petitioners ask for the following
reliefs : (i) That the Chief Election Commissioner and the Chief
Electoral Officer be restrained from acting, either by themselves or
through their subordinates, in pursuance of the instructions or directions issued by them from time to time; (ii) that they should be
restrained from scoring out any names from the electoral rolls which
were finally published, (iii) that they should be restrained from issuing
or publishing any notification under section 15(2) of tbe Act of 1951
without preparing the electoral rolls de no1•o, after the disposal of the
appeals against orders whereby claims and objections were decided;
and (iv) that they should be restrained from holding elections to the
West Bengal Legislative Assembly until the disposal of all th~ claims,
objections and appeals under the Acts of 1950 and 1951.
On February 12, 1982, the learned single Judge of the Calcutta
High Court issued a rule on the writ petition and granted ad-interim
relief to the petitioners as prayed for by them. The writ petition was
directed to be listed on February 19, 1982 when, after some argu•
ments, the matter was adjourned to February 25.
Some time later,
four special leave petitions were filed in this Court against the adinterim orders passed by the learned Judge. On February 23, 1982
certain directions were issued in one of these special leave petitions
by a Bench consisting of three of us, namely, D.A. Desai J,
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.P. Sen J. and Baharul Islam J. It was directed that, since the High
Court was seized of the writ petition and in view of the comity
amongst judicial functionaries, it was better that the High Court
completed the hearing by February 25, 1982. The order proceeded
to say : 'It is requested that the writ petition shall be placed on the
Board of the learned Judge on Wednesday, 24th February, 1982 and
shall be heard and hearing completed and order pronounced before
the expiry of Thursday, 25th February, 1982 ....... The learned Judge
should proceed to hear the matter without considering any direction
about production of the documents by the Election Commission or by
any parties as that part of the order is stayed at the instance of
Election Commission. The parties are precluded from maldng any
requests o~ adjournment ...
The writ petition was called out for hearing before the learned
Judge on February 25, wllen he directed the respondents to the writ
petition to take certain steps before the issuance of the notification
under section 15(2) of the Act of 1951.
In effect, he confirmed the
ad-interim order passed on February 12, 1982.
We will deal witll the legal contentions presently but, before
doing so, we would like to demomtrate that the grievance made by
the petitioners against the Election Commission, the Chief Electoral
Officer and their subordinates is wholly imaginary and unjustified.
We were taken through the counter-affidavits filed by Shri Narayanan
Krishnamurthi, Chief Electoral Officer, West Bengal, and Shri
K. Oanesan, Secretary to the Election Commission, in answer to the
writ petition. The fact~ stated therein, which are beyond the pale of
controversy, afford a complete answer to the petitioners' contentions.
. The following position emerges from the affidavit filed by the Chief
Electoral Officer :
Steps taken with regard to the intensive de novo
revision of electoral rolls tn 1981 under section 21 of th11
Representation of the People Act,1950 read with Rule 25
of the Registration of Elector3 Rules 1960 and Rules 4 to
!3 of the said Rules.
(1) The general elections to the Lok Sabha were held in
early 1980. The electoral rolls in the State of West Bengal for all
the 294 assembly constituencies were revised intensively in 1979,
along with the revision of rolls in all other States and Union
territoric!l, for the purpose of holding that election.
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