# ' MOHINDER SINGH GILL & ANR v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS

- **Citation:** [1978] 2 S.C.R. 272
- **Court:** Supreme Court of India
- **Decided:** 1977-12-02
- **Case number:** ; Civil Appeal No. 1297 of 1977
- **Bench:** M. H. Beg, P. N. Bhagwati, V. R. Krishna Iyer, K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohinder-singh-gill-anr-v-the-chief-election-commissioner-new-delhi-ors-7377
- **Pages:** 66

## Headnote

Constitution o1 India, 1950-Arts. 324 and 329(b)-Scope of --Counting'
of votes in n1any segments of the constituency cornpleted-Before declaration
of final result ballot papers and ballot boxes of some segments destroyed in
mob _violence-~le_ction_ Comn1ission ordered repoll of the entire constituencyElectzon Commission, if competent to order 11epoll of entire constituency.
Article 226-Election Commi'ssion's order for fresh poll in enti're consti·
tu~ncy-lf could be challenged in a writ petition.
Representation of the
People
Act,
1950-Ss. 80 and 100(1)(d)(iv)-
Scope of.
Natural justice-Issue of notice to affected parties and opportunity to hear
before pas<sing an order under Art. 329(b)-If necessary-Notioe, if shoufd
be given to the whole constituency.
Words and phrases-"Civil
consequence"-Election
"called in questioli'
meaning of.
Article 329 (b) of the Constitution provides that notwithstanding anything
in the Constitution no election to eiher House of Parliament or to the House
or either House of the Legislature of a State shall be called in question except
by an election petition presented to such authority and in such manner as may
be provided for by or under any law made by the appropriate legislature.
Section lOO(l)(d)(iv) of the
Representation of the
People
Act, 1951
provides that if the High Court is of the opinion that the result of the election
so far as it concerns a returned candidate has been materially affected by any
non·compliance with the provisions of the Constitution or of this Act or of
any rules or orders made under this Act the High Court shall declare the
election of the returned candid.ate to be void.
The appellant and the third
respondent were candidates
for election in
a Parliamentary constituency. The appellant
alleged that when at the last
hour of counting it appeared that he had all
but won the election, at the
instance of respondenjt no. 3 mob violence broke out and postal ballot papers!
and ballot boxes from certain Assembly
segments, while being
brought for
counting, were destroyed and the Returning officer was forced to postpone the
declaration of the result. The Returning Officer reported the happening by
wireless to the Chief Election Commissioner. An officer of the Election Commission who was deputed to be an observer at the
counting stage gave
a
written report to the Commission in
addition to an oral
report about the
incidents which marred the last stages of the counting. The appellant met
the Chief Election
Com.missioner and
requested him to
declare the result.
EventuaUy, however, the Chief Election
Com.missioner issued a
notification
stating that the counting in the constituency was seriously disturbed by violence
and that ballot papers of some of the assembly segments had been destroyed
by violence, as a consequence of which it was not possible to complete the
counting of votes in the constituency and declare the result with any degree
of certainty. The notification further stated that takine all circumstances into
account, the Commission was satisfied that th-~ poil had been vitiated to such
an extent as to affect the result of the
election. In exercise of the
powers
under Art. 324 of the Constitution it cancelled
the poll
already held
and
ordered a re·poll in the entire constituency.
In a petition under Art. 226 of the Constitution the appellant alJeged that
the action of the Chief Election Commissioner in ordering repoll in the whole
constituency was arbitrary and violative of any vestige of fairness.
The re~·
pendents in reply urged that the High Court had no iurisdiction to entertain
the writ petition in view of Art. 329(b) and that the Commission's action was
well within its powers under Art. 324.
M. S. GILL v. C.E.C.
273
The High Court dismissed the writ petition holding that it had~ no jurisdiction to entertain the writ petition. Yet on merits it held that Art. 324 goes
not impose any limitation on the function contemplated under that article;
that principles of natural justice

## Text

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MOHINDER SINGH GILL & ANR.
v.
THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS.
December 2, 1977
[M. H. BEG, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER, p, K.
GOSWAMI AND P. N. SHINGHAL, JJ.]
Constitution o1 India, 1950-Arts. 324 and 329(b)-Scope of --Counting'
of votes in n1any segments of the constituency cornpleted-Before declaration
of final result ballot papers and ballot boxes of some segments destroyed in
mob _violence-~le_ction_ Comn1ission ordered repoll of the entire constituencyElectzon Commission, if competent to order 11epoll of entire constituency.
Article 226-Election Commi'ssion's order for fresh poll in enti're consti·
tu~ncy-lf could be challenged in a writ petition.
Representation of the
People
Act,
1950-Ss. 80 and 100(1)(d)(iv)-
Scope of.
Natural justice-Issue of notice to affected parties and opportunity to hear
before pas<sing an order under Art. 329(b)-If necessary-Notioe, if shoufd
be given to the whole constituency.
Words and phrases-"Civil
consequence"-Election
"called in questioli'
meaning of.
Article 329 (b) of the Constitution provides that notwithstanding anything
in the Constitution no election to eiher House of Parliament or to the House
or either House of the Legislature of a State shall be called in question except
by an election petition presented to such authority and in such manner as may
be provided for by or under any law made by the appropriate legislature.
Section lOO(l)(d)(iv) of the
Representation of the
People
Act, 1951
provides that if the High Court is of the opinion that the result of the election
so far as it concerns a returned candidate has been materially affected by any
non·compliance with the provisions of the Constitution or of this Act or of
any rules or orders made under this Act the High Court shall declare the
election of the returned candid.ate to be void.
The appellant and the third
respondent were candidates
for election in
a Parliamentary constituency. The appellant
alleged that when at the last
hour of counting it appeared that he had all
but won the election, at the
instance of respondenjt no. 3 mob violence broke out and postal ballot papers!
and ballot boxes from certain Assembly
segments, while being
brought for
counting, were destroyed and the Returning officer was forced to postpone the
declaration of the result. The Returning Officer reported the happening by
wireless to the Chief Election Commissioner. An officer of the Election Commission who was deputed to be an observer at the
counting stage gave
a
written report to the Commission in
addition to an oral
report about the
incidents which marred the last stages of the counting. The appellant met
the Chief Election
Com.missioner and
requested him to
declare the result.
EventuaUy, however, the Chief Election
Com.missioner issued a
notification
stating that the counting in the constituency was seriously disturbed by violence
and that ballot papers of some of the assembly segments had been destroyed
by violence, as a consequence of which it was not possible to complete the
counting of votes in the constituency and declare the result with any degree
of certainty. The notification further stated that takine all circumstances into
account, the Commission was satisfied that th-~ poil had been vitiated to such
an extent as to affect the result of the
election. In exercise of the
powers
under Art. 324 of the Constitution it cancelled
the poll
already held
and
ordered a re·poll in the entire constituency.
In a petition under Art. 226 of the Constitution the appellant alJeged that
the action of the Chief Election Commissioner in ordering repoll in the whole
constituency was arbitrary and violative of any vestige of fairness.
The re~·
pendents in reply urged that the High Court had no iurisdiction to entertain
the writ petition in view of Art. 329(b) and that the Commission's action was
well within its powers under Art. 324.
M. S. GILL v. C.E.C.
273
The High Court dismissed the writ petition holding that it had~ no jurisdiction to entertain the writ petition. Yet on merits it held that Art. 324 goes
not impose any limitation on the function contemplated under that article;
that principles of natural justice were
not specifically provided for in that
article but were totally excluded while passing the impugned order and 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
of the notification but in any case after the notification.
In the repoll the appellant did not participate though his name appeared
on the ballot and respondent no. 3 was declared elected.
On the question of application of principles of natural justice it was contended on behalf of the
respondents that the tardy process of notice
and
hearing would thwart the conducting of elections with speed that unless civil
consequences ensued, hearing was not necessary and th.at the right accrues to
a candidate only when he is \k:clared elected and lastly the decision of the
Election Co1nn1ission is only provisional and that it is he the election court which
is the final authority on the subject.
Disn1issing the appeal (per Beg, CJ., Bhagwati & Krishna Iyer, JJ)
I-IELD : The catch-all jurisdiction under Art. 226 caw.tnot consider the correctness, legality or otherwise of the direction for cancella.tion integrated with repo1l.
,
[269 DJ
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J(a) Article 329(b) is a blanket ban on litigative challenge to electoral
steps taken by the Election Commission for carrying forward the process of
election to its culmination in the formal declaration of the result.
[322 DJ
D
(b) The sole remedy for an aggrieved party, if he wants to challenge any
election, is an election petition. This exclusion of all other remedies includes
constitutional remedies like Art. 226 because of the non-obstante clause in
Art. 329(b). If what is impugned is an election the ban operates provided
the proceeding "calls it in question'' or puts it in issue : not otherwise.
[289 E-F]
(c) Part XV of the Constitution is a Code in itself, providing the entire
E
groundwork for enacting the appropriate laws and setting up suitable machinery
for the conduct of elections.
Articles 327 and 328 take care of the set ot
laws and rules making provisions with respect to· all matters relating to or in
connection with elections. Election disputes are also to be provided for by
laws made under Art. 327. The Representation of the People Act, 1951 is
a self-contained
enactment so far as
elections are
concerned.
Section
80
which speaks substantially the same language as Art. 329(b) provides that no
election shall be called in question except by an election petition presented
in accordance with the provisions of Part IV of the Act. The Act provides
F
for only one remedy and that remedy being by an election petition to be
presented after the election is over, there is no remedy provided at any of
the intermediate stages.
[292 C-D; F-G 293 B-C]
Smt. Indira Gandhi v. Ra; Narain [1976] 2 SCR 347, 504-505 referred to.
( d) The compendious expression "election"
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 Art. 329(b)
G
and the· Representation of the People Act, 1951 necessitates the reading of the
Constitution and the Act
together as an integral
scheme. The reason
for
postponment of election litigation to the post-election stage is that elections
shall not unduly be protracted or obstructed.
[294 D-E]
(e) No litigative enterprise in the High Court or other court should be
allowed t? hold up the on:going electoral process because the parliamentary
representa1tve for the constituency should be chosen promptly.
Article 329
therefore covers "electoral matters".
[294 F]
H
(f) The plenary bar of Art.
~29(~) rests on two principles: (!)
the
pere~ptory urgency of pr~mpt e~g1neenng of the whole election process without mtermedrate mterruptrons by way of legal proceedings challenging the
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SUPREME COURT REPORTS
[1978] 2 S.C.R.
steps and stages
in
between
the commencement and the conclusion; and
(2) the provision of a
special
jurisdiction which
can be
invoked by
an
aggrieved party at the end of the election excludes other forms, the right and
remedy being cre&tures of statutes and controlled by the Constitution.
[295 H, 296 A]
Durga Shankar Mehta [1955] l SCR 267 referred to.
(g) If the regular poll for some reasons has failed to reach the goal of
choosing by plurality the returned candidates and to achieve this object a fresh
poll (not a new election) is needed, it may. still be a step in the election.
[296 E-F]
(h) A writ petition
challenging -the cancellation
coupled with
repoll
amounts to calling in question a step in 'election' and is, therefore, barred by
Art. 329(b). [296 G]
(i) Knowing the supreme significance of speedy elections in our system
the framers of the Constitution have, by implication, postponed all election
disputes to election petitions and
tribunals. In harmony with this
scheme
s. 100 has been designedly drafted to
embrace all
conceivable
infirmities
which may be urged. To make the project fool-proof s. 100(1 )(d)(iv) bas
been added to absolve· everything left over. Section 100 is exhaustive of all
grievances regarding an election.. What is banned is not anything whatsoever
done or d'rected by the Election Commissioner
but everything
he does or
directs in furtherance of the election, not contrarywise.
[297 B, C, DJ
(j) It is perfectly permissible for the Election Court to decide the question
as one falling under s. l 00 ( l )( d )(iv). The Election Court bas all the powers
necessary to grant all or only any of the reliefs set out in s. 98 and to direct
the Commissioner to take such ancillary steps as will render complete justice
to the appellant.
[319 C, EJ
(k) It is within the powers of the Election Court to direct a repoll
of
particular polling stations to be conducted by the specialised agency under the
Election Commission and report the results and ballots to the Court.
Even
a repoll of postal ballots can be ordered. In view of the wide ranging scope
of implied powers of the Court, the appellant's claims are within the Courts
powers to grant.
[322 A-Bl
2(a) Article 324 does not exalt the Election Commission into a la'v unto
itself. The Article is wide enough to supplement the powers under the
Act
subject to the several conditions on its exercise.
[300 A.-B1
(b) The Election Commissioner's functions are subject to the norms
of
fairness and he cannot act arbitrarily. The Constitution has made comprehensive prov:sion in Art. 324 to take care of surprise situations. That power
has to be exercised in keeping with the guidelines of the rule of law without
stultitying the Presidential notification or existing legislation.
It operates in
areas left unoccup;ed by legislation and the words "Superintendence, direction
and control'' as well as "conduct of all elections'' are in the broadest terms.
[299 A, B-<..1
( c) If imparting the right to be heard will paralyse the process, the law
wi11 exclude it.
In any case it is untenable ·heresy to lockjaw the victim or
act behind his back by invoking urgency, unless the clearest case of public
injurv flowing from the least delay is evident.
The Election Commission is
an institution of central importance and enjoys far-reaching powers and the
greater the power to affect other's rights or liabilities the more necessary is
the need to hear.
[304 D, G-H. 305 B-CJ
(d} It is well-established that when a high functionary like the Commiss;oner is vested with wide nowers, the law expects him to act fairly and lega11y.
Discretion vest-::!d in a high functionary may be reasonably trusted to be used
pronerlv, not perverselv.
If it is misused certainly the Court has power to
strike down the act.
[299 D-EJ
Virendra [1958] SCR 308 and Harishankar [1955] l 1104 SCR referred to.
( e) Article 324 vests vas1 functions which may be powers or duties, essentially admieistrative and marginally even judicative or legislative.
[302 H]
.
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M. S. GILL V. · C.E.C.
275
(f) The dichct0r.1y
between administrative
and quasi-judicial
functions
A
vis a vis the dC'Ctri.:11 .. of natural justice is presumably obsolescent after Kraipak
which marks the water-s!ied in the application of natural justice to ad.minis- ·
trative proceedings. The rules of natural justice are rooted in all legal systems, and are not any "new theology". Tuey are manifested
in tho
twin
principles .of nemo judex in sua causa and audi alteram partem. It has been
pointed out that the aim of natural justice is to secure justice, or,_ to put it
negatively to prevent miscarriage of justice. These rights can operate only
in areas not covered by any law validly made; they do not supplant the law
of the land but supplement it. The rules of natural justice are not embodied
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rules.
Wbat~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 inquiry 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 has
been contravened the court has to decide wheth'!r the observation of that rule
was necessary for a just decision on tP.e facts of that case. Further, .even if
a power is given to a body without specifying that rules of natural
justice
C
should be observed in exercising it. the nature of the power would call for_
its observance. [300 F-0, 301 B-D, 303-Dl
Kraipak (19701 I SCR 457, In re: H.K. (an infanJ) [19671 2 Q.B. 617
and Ridge v. Baldwin [19641 AC 40 referred to. _
(g) Even where the decision has to be reached by a ~y-~aCting judicially,
there must be a balance between the need for expedition and the need to give
full opportunity to the defendant to see the material agaiinst him. There might
be exceptional cases where to decide a case exparte ·would be unfair and it
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would be the. duty of th6-Tribunal to take appropriate steps to eliminate unfairness.. , Evb so no doctrinaire approach is desirable but the court must bo
anxious to salvage the cardinal rule to the extent permissible in a given cas~.
·
[307 D, El
3(a) Civl consequences cover infraction of not mer-ely 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 inftlcts a civil consequence. The interest of a candidate at an election to
E
Parliament regulated by the Constitution and the laws comes within its gravitational orbit.
A democratic right, if denied inflicts civil consequences.
Ev~ry
Indian has a right to elect and he elected and this is a constitutional as distinguished from a common law rig-ht. and is entitled to cognizance by courts
subject to statutory regulation. [308 F, 309 C, El ~~
··
'(b) A ve~ted interest in the
prescribed . process is a
processual
right,
actionable if breached. The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice.
F .
So natural justice cannot be stumped out on the score. In the region of public law
locus standi and penon aggrieved, right a.nd interest ha\'e a broader import.
[309 G, HJ
(c) rn the instant 'case the Election Commission claims that a hearing had
been given but the appellant re'8orts that all that he had w<1s vacuou, meeting
v;·here nothing v;as disclosed. But in law degrees of difference may at a, substantial stage spell difference in kind or dimensions. [309 IL. 310 A]
(d) The case of Subha.sh Chander in which this Court held that it was
G
not necessary to give an opportunity to the candidates for an examination as .
to why the whole examination should not be cance11ed because the examination -
was vitiated by adoption of unfair means on a mass scale. But- the ratio of
that decision has no application
to this case. The candidates in an election
who have acqu!red a very vital stake in the polling going on praperly stand
on a different f<X>ting from the electorate in
general. The interest of the
electorate i'i too remote and recondite. too feeble and attenuate to be taken
not~ of in. a cancellation proceeding. What really marks the difference is the
diffusion and dilution. The candidates in an election are really the spearheads,
H
the combatants. ·They have set themselves up as nominated candidates organi~d the campaign and ga]vanised the e-Jectorate for the pol1ing and countin~.
Their interest and claim are not indifferent but immediate. They are the
5-'-lll4SCI 77
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SUPREME COURT REPORTS
[1978] 2 S.C.R.
parties in the electoral dispute. In this sense they stand on a better footing
and cannot be denied the right to be heard. In Ghanshyamdas Gupta in
which the examination result of
three candidates was
cancelled this Court
imported principles of natural justice. This case may have a parallel in electoral situations.
If the Election Commission cancelled the poll it was because
it was sat stied that the
procedure adopted had gone
awry on a wholesale
basis.
Therefore, it all dependis on the circumstances and is incaμable
of
generalisation.
In a situation like
the present it is a far cry from natural
justice to argue that the whole constituency must be given a hearing:.
[310 F, H, 311 G-H, 312 A, D, E,]
Col. Singh [1971] 1 SCR 791, Binapanl [1967] 2 SCR 625, Ram Copa/
[19701 1 SCR 472; Subhas!i Chander Singh j 19701 3 SCR 963 held inappltcable.
Gl1a1u!iya111 Das Gupta [1962] Supp. 3 SCR 36 followed.
4(a) Whether the action of the Election Commission in ordering rePoll
beyond certain segment~ of the constituency where the ballot boxes were destroyed wao; really necessary or not is for the Election Court to assess when
judging whether the impugned order was arbitrary, whimsical or was arrived
at by extraneous considerations.
[316 H, 317 A-B]
(b) 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.
[317 BJ
(c) The philosophy behind natural justice is participatory justice in the
process of democratic rule of law. In the vital area of election where people's
faith in the democratic process is
hypersensitive it is realism to keep alive
audi alteran1 even in emergencies. Hearing need not be an elaborate ritual.
Jn situations of quick despatch, it may b~ minimal, even formal.
Fair hearing is a postulate of decision making, although fair abridgement of that process is ncrmissible. It can be fair without the rules of evidence or forms of
trial.
[316 D-F]
( d) The silence of a stah1te has no exclusionary effect except where it flows
fron1
'!eces~ary intplication,
Article 324 vest<; a wide power ~'•nd where some
direct consequence on candidates
emanates from its
exercise this functional
obligation must be read into it.
[316 Fl
Obsen·ations
(a) When a statutory functionary makes an order based on cet1ain grounds,
its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shaoe of affidavit or otherwise. Otherwise.
an order bad in the beginning may, by the time it comes to court on account
of a challenge, gets validated by additional grounds later brought out.
[283 B-C]
(b) An obiter binds none, not even the author and obliteration of findings
rendered in supererogation
must allay the
appe1Iant's
apprehensions. The
High Court should have abstained from its generosity.
[284 C]
(~er Goswami and Shinghal, JJ. concurring)
(1) The appellants' argument that since Art. 324(6) refers to "functions"
and not "powers", there can be no question of the Election Commi~sion exercising any power under that Article, is without force.
The term "functions"
includes pov:ers as well a·3 duties.
It is incomprehensible that a person 0r
hody can discharge any functions
without exercising
pO\\'ers.
Powers and
duties are integrated with functions.
[330 D-E]
2(a) It is well-established that an express statutory grant of power er the
Jmnosition of a definite dutv carries with it by imolication, in the absence of
;i limitation. authority to employ all the means that are usually emuloyed and
that ar" nece<;.:;nrv to the exercise of the nower nr the oerformanr,e of the
Outv.
That which is c1ear1y implied is as much a part of a law as that vlhich
is expressed.
[331 E-FJ
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M. S. GILL V. C.E.C.
277
(b) In a democratic set up power has to be exercised in accordance with
A
'law. Since the conduct of all elections is vested under Art. 324(1) in the
_Election Con1n1ission, the framers of the
Constitution took care to leaving
scope for exercise of residuary power
by the Election Commission, in
the
intinite variety of situations that may emerge from time to time.
Yet, every
contingency could not b~ foreseen and
provided for with
precision. The
. Commission may be required to cope with some situation, which may not be
providei:I for in the enacted laws and rules.
The Election Commission, which
ls a high-powered and independent body, cannot exercise its functions or perB
torm its d.uties unless it has an amplitude of powers. Where a law is abserit,
the Commission is not to look
to ~ny external
authority for the grant of
·powers to deal with the situation but must exercise its
power independently
and see that the election process is
oompleted in a free and
fair manner.
·Moreover, the power has to be exercised with promptitude.
(330 G, H, 331 A-B, C-E, G]
N. P. Ponnuswan1i v. Returning Officer, Nanakkal Constituency and Others,
[1952] SCR 218 followed.
(c) Section 19A of the Act, in terms, refers to the
functions not only
·under the Representation cf the People Act, 1950 and Representation of the
People Act, 1951 or the rules made thereunder, but also under the Constitution. Apart from the several functions envisaged by the two Acts and the
rules, the Commission is entitled to exercise certain powers under Art. 324
it~elf on its own right in an area not covered by the Acts and rules. D32 A-Bl
(d) Whether an order passed is wrong, arbitrary or is otherwise invalid,
relates to the mode of exercising the power and does not touch upon
the
existence of the power in an authoritv·if it is there either under the Act or
1he rules or under Art. 324(1).
(331 Gl
3 (a) The contention that the Election Commission had no oower to make
·the impugned order for a repoll in the entire constituency, is without substance.
[332 HJ
(b) Both under s. 58 and under s. 64A, the
poll that was taken
on a
·particular oolling station can be voided and a fresh poll can be ordered by
c
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the Commission. These sections cannot be said to be exhaustive.
It cannot
E
be said thJ.t they rule out the making of an order to deal with a similar
situation if it arises in several polling stations or sometimes as a general feature
in a substantially large area. Although these two sections mentiori "a polling
station" or "a place fixed for the po11" it may, where· necessfl.TY embrace multiple polling stations.
(332 G-H]
(c) The Election Commission is competent, in an appropriate case,
to
order repoll of an entire constituency. If it does that 4 will be an exercise
of power within the ambit of its functions under Art. 324.
Although in exercise of powers under Art. 324(1) the Election Commission cannot do something impinging upon
the power of the President in
making a
notification
under s. 14 of the Act, after the notification has been issued by the President,
the entire electoral process is in the charge of the Commission. The Commission is exclusively responsible for the
conduct of the
election
without
-reference to any outside agency.
There are no limitations under Art. 324 ( 1).
(333 C-EJ
4. The writ petition is not
maintainable. Since the
election covers the
,entire process· from the issue of the notification under s. 14 to the· declaration
of the result under s. 66 of the Act. when a poll that has :ilready taken place
·has been cancelied and a fresh poll has been ordered, the order is passed as
an integral part of the electoral process. The imougned
order
ha.c1
been
nassed in exercise of the pow-er under Art.
324(1) and s. 153 of the Act.
·such an order cannot be questioned except by an_ election petition under the
Act.
[333 G'H, 334 A]
5(a) There is no foundation for a grievance that the anpellants will be
·without any remedv. if their writ aopti.cation is dismissed. If during the urocess of election at an ·intermediate or final
stage~ the entire polJ has heen
wrongly c:incelled and a fresh polJ h?lil been wrO'l1gly orrlered, that is a n11tter
·which can ·be agitated after the declaration of the result on the. basis of the
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fresh poll, by questioning the election in the appropriate forum. _ The appel~
lants. will not be without a remetl,y to question every step in the electoral pr<>-'
cess and every order that has been passed in the process of the election inch.1~
ing the counter111a~1ding of the earlier poll. The Court will be able to entertatn
their objection v:ith regard to the order of the· Election Commission countermanding the earlier poll and the whole matter will be at large.
[334 B-F]
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(b) The Election Com.mission has passed the order professedly under Art.
324 and s. 153 of the Act.. If there is any illegality in the exercise of the
power under this Article or under any provision of the Act, there is no reason
why s. lOO(l)(d)(iv) should not be attracted. .If exercise of power is competent either under the provisions of the Constitution or under any other provision of law, any infirmity in the exercise of that power is on account of noncompliance with the provisions of law, since law demands exercise of power
by its repository in a proper, regular, fair and reasonable manner.
[335 B-D]
Durga Shankar Mehta v. Thakur Raghurai Singh and othus, [1955] I SCR
267 referred to.
(c) The writ petition is barred under Art. 329(b) of the Constitution and
the High Court has rightly dismissed it on that ground.
Both Art. 3 29 (b)
and s. 80 of the Act provide that no election shall
be called in question
except by an election petition.
All reliefs claimed by the
appellant in the
\\Tit petition can be claimed in the election petition and the High Court is
competent_ to give all appropriate reliefs to do complete justice between the
parties. 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.
[335 D-GJ
6. It will not be correct for this Court, in this appeal, to pronounce its
judgment finally on
merits either on law or on
facts. The
pre-eminent
position conferred by the Constitution on this Court under Article 141 of the
Constitution does not envisage that this Court should lay down the law, in an
appeal like this, on any matter which is required to be decided by the election court on a full trial of the election petition, without the benefit of the
opinion of the Punjab and
Haryana High Court which hac; the
exclusive
E
jurisdiction under s. SOA of the Act to try the election petition. [335 H, 36J Aj
CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1297 of 1977.
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Appeal by Special Leave from the Judgment and Order dated 25th
of April 1977 of the Delhi High Court in Civil Writ Petition No. 245
of 1977.
P. P. Rao, A. K. Ganguli and Ashwani Kumar for the appellant.
Soli !. Sorabjee, Additional Solicitor General, E. C.
Agarwala,
B. N. Kripal and Girish Chandra for Respondent No. 1.
M. N. Phadke, S. S. Bindra, Hardev Singh & R. S. Sodhi for
Respondent No. 3.
The following Judgments of the Court were delivered by
KRISHNA IYER, J.-What troubles us in this. appeal, coming before
a Bench of 5 Judges on a reference under Article 145 ( 3) of the
Constitution, is not the profusion of controversial facts nor the thorny
bunch of lesser law, but the possible confusion about a few constitutional fundamentals, finer administrative normae and
jurisdictional
limitations bearing upon elections. What are those fundamentals and
limitations? We will state them, after mentioning briefly what the
writ petition, from which this appeal, by special leave, has arisen, is.
about.
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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 Churchill 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."
11 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 Jaw 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 ol Power best expressed by Benjamin Dizreeli :
"I repeat .... that all power is a trust-that we are accountable for its exerciser-that, from the peaple and for the
people, all springs, and all must exist."
(Vivien Grey, BK. VI. Ch. 7)_
Aside from these is yet another, bearings on the play of natural justice,
its nuances, non-applications, contours, colour and content. Natural
Justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm
of a civilised justice-system and minimum of good government--crystallised clearly in our jurisprudence by a catena of cases here and
elsewhere.
The conspectus of facts
The historic elections to Parliament, recently held across
the
'country, included a constituency in Punjab called 13-Ferozepore Parliamentary constituency. It consisted of nine assembly segments and
the polling took place on March 16, 1977. According to the calendar notified by the Election Commission, the counting took place in
respect of five assembly segments on March 20, 1977 and the, remaining four on the next day.
The appellant and the third respondent were
the principal contestants. It is stated by the appellant that when counting in all the assembly segments was c~pleted at the respective segment headquarters, copies of the results were given to the candidates
and the local tally telephonically communicated to the returning officer
(respondent 2). According to the scheme the postal ballots are to
arrive at the returning officer's headquarters at Ferozepore where they
.are to be counted.
The final tally is made when the ballot boxes
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[1978] 2 s.ox
and the returns duly reach tht'l Ferozepore headquarters from the various segment headquarters.
The poll proceeded as ordained, almost
to the very last stages, but the completion of the counting at the constituency headquarters in Ferozepore was aborted at the final hour as
the postal ballots were being counted-thanks to mob violence allegedly mobilised at the instance of the third respondent. The appellant's
version is that he had all but won on the total count by a margin of
nearly 2000 votes when the panicked opposite party havoced and
halted the consummation by muscle tactics.
The postal ballot papers
were destroyed.
The ballot boxes from the Fazilka segment were als<>·
done away with en route, and the returning officer was terrified into
postponing the declaration of the result.
On account of an earlier
complaint that the returning officer was a relation of the appellant, the
Ele,;.tion 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 rereturning 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 narrati<>n of the untoward events
which marred what would otherwise have been a smooth finish t<>
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 C<>mmissioner (i.e. the Commission) at about
10.30 A.M. on March 22nd, with the request that be should direct
the returning officer to declare the result of the election.
Later in
the day, the Commission issued an order which has been characterised by the appellant as a law-less and precedentless cancellation
of the whole poll, acting by hasty hunch and without rational appraisal of facts.
By the 22nd of March, when the Election Commission
made the impugned order, the bulk of the electoral results in
the
country had beamed in.
The gravamen of the grievance of the
appellant is that while he had, in all probability, won the poll, he
has been deprived of this valuable and hard-won victory by
the
arbitrary action of the Commission going contrarv to fairplay and in
negati<>n of the basic canons of natural justice.
Of course, the Commission did not stop with the cancellation but followed it up a few
days later with a direction to hold a fresh poll for the whole constituency, involving all the nine segments, although there were no complaints about the polling in any of the constituencies and the ballot
papers of eight constituencies were available intact with the returning officer and only Fazilka segment ballot papers were destroyed
or demanded on the way, (pins the postal ballots). It must als<>
be mentioned here that a demand was made, according to the version
of the third respondent, for recount in one segment whkh was,
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M. s. GILL v. C.E.C. (Krishna Iyer, J.)
281
unreasonably, turned
down.
The
observer,
in his report to the
Election Commission, also menticmed that in two polling stations
divergent practices were adopted in regard to testing valid and invalid votes.
To be more pracise, Shri IKK Menon mentioned in
his report that at polling station no. 8, the presiding officer's seal on
the tag as well as the paper seal of one box was broken. But the
ballot papers contained in that box were below 300 and would not
have affected the result in the normal course.
In another case in
Jalalabad assembly segment, the assistant returning officer had rejected a number of ballot papers of a polling station ,on the score that
they were 110t signed by the presiding officer. In yet another case
it was reported that the ballot papers were neither signed nor stamped but were accepted by the assistant returning officer as valid, although the factum was not varified by Shri Menon with the assistant
returning officer.
Shri Menon, in his report, seems to have broadly
authenticated the story of the mob creating a tense situation leading
to the military being summoned.
According 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 reportwe need not probe the reasons for the hurry-the Commission issued
the order cancelling the poll. The Chief Election Commissioner has
filed a laconic affidavit leaving to the Secretary of the Commission
to go into the details of the facts, although the Chief Election Commissioner must himself have had them within his personal ken. This
aspect also need not be examined by us and indeed cannot be, for
reasons which we will presently set out.
Be that as it may, the Chief Election Commissioner admitted in
his affidavit that the appellant met him in his office on the morning
of March 22, 1977 with the request that the returning officer be
directed to declare the result.
He agreed to consider and told him
him off, and eventually passed an order as mentioned above.
The
then Chief Election Commissioner has mentioned in his affidavit that
the observer Shri Menon had apprised him of "the various incidents
and developments regarding the counting of votes in the constituency"
and . also had submitted a written report. He has also admitted the
receipt of the wireless message of the returning officer. He concludes
his affidavits 'that after taking all these circumstances and information inciuding the oral representation of the 1st petitioner into account
on '.!2nd March, 1977 . itself I passed the order cancelling the poll
in the said Parliamentary constituency.
In my view this was the only
proper course to adopt in the circumstances of the case and with a
view to ensuring fair and free elections, partkularly when even a recount
had been rendered impossible by reason of the destruction of ballot
Papers.' The order of the Election Commission, resulting in the demolition of t11e poll already held, may be read at this stage.
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"ELECTION COMMISSION OF INDIA
New Delhi
Dated 22 March, 1977
Chaitra 1, 1899 (SAKA)
NOTIFICATION
S.0.-Whereas the Elect;on Commission has received reports from
the Returning Officer of 13-Ferozepore Parliamentary
Constituency
that the counting on 21 March, 1977 was seriously disturbed by
violence; that the hallo• papers of some of the assembly segments of
the Parliamentary constituency have been destroyed 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 Comm'ssion is satisfied that taking all circumstances 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 the poll already taken in the constituency and extends
the time for the completion of the election up to 30 April, 1977 by
amending its notification No. 464/77, dated 25 February, 1977 in
respect of the. above election as follows :-
In clause (d) of item (i) of the said notification relating to the completion of election-
( a) in the existing item (i).