Appeal No 1297 of 1977
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 J Sorabjee Additional Solicitor General E C Agarwala B N Kripal and Girish Chandra for Respondent No 1
MN Phadke section section Bindra Hardev Singh  R section Sodhi for Respondent No 3
The followiug 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 1453 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 279 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 ChurchiU 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 trust that we are accountable for its exercise that from the people and for the people all springs and all must exist Vivien Grey BK
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 completed 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 280 and the returns duly reach the Ferozepore headquarters front 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 also 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 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 pm 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 ie the Commission at about 1030 AM on March 22nd with the request that he 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 bad 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 contrary to fairplay and in negation 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 plus the postal ballots
It must also be mentioned here that a demand was made according to the version of the third respondent for recount in one segment which was 281 unreasonably turned down
The observer in his report to the Election Commission also mentioned 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 not 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 al though 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 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 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 including the oral representation of the 1st petitioner into account on 2nd Much 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 particularly when even a recount bad been rendered impossible by reason of the destruction of ballot papers  The order of the Election Commission resulting in the demolition of the poll already held may be read at this stage
282 ELECTION COMMISSION OF INDIA New Delhi Dated 22 March 1977 Chaitra 1 1899 SAKA NOTIFICATION SO
Whereas the Election 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 ballot 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 Commission 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 46477 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 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 46477 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 283 had no jurisdiction in view of Article 329b of the Constitution and the Commission had acted within its wide power under Article 324 and fairly
Holding that it had no jurisdiction to entertain the writ petition
the High Court never the less proceeded to enter verdicts onthe merits of all the issues virtually exercising even the entire jurisdiction which exclusively belonged to the Election Tribunal
The doubly damnified appellant has come up to this Court in appeal by special leave
Meanwhile pursuant to the Commission s direction a re poll was held
Although the appellant s name lingered on the ballot he did not participate in the re poll and respondent 3 won by an easy plurality although numerically those who voted were less than half of the previous poll
Of course if the Commission s order for re poll fails in law the second electoral exercise has to be dismissed as a stultifying futility
Two things fall to be mentioned at this stage but in passing it may be stated that the third respondent had complained to the Chief Election Commissioner that the assistant returning officer of Fazilka segment had declined the request for recount unreasonably and that an order for re poll of the Fazilka assembly part should be made after giving personal hearing 
Meanwhile runs the request of the third respondents direct the returning officer to withhold declaration of result of 13 Ferozepore parliament constituency 
We do not stop to make inference from this document but refer to it as a material factor which may be considered by the tribunal which eventually has to decide the factual controversy
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise
Otherwise an order bad in the beginning may by the time it comes to court on account of a challenge get validated by additional grounds later brought out
We may here draw attention to the observations of Bose J in Gordhandas Bhanji 1 Public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in Ms mind or what he intended to do
Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to 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 329b of the Constitution we do not propose to enquire into or pronounce upon the factual complex or the 1 AIT 284 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 Article329b
We should notexcept 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 should have expected the High Court to have considered the basic jurisdictional issue first and not last as it did and avoided sallying forth into a discussion and decision on the merits self contra dicting its own holding that it had no jurisdiction even to entertain the petition
The learned Judges observed  It is true that the submission at serial No 3 above in fact relates to the preliminary objection urged on behalf of respondents 1 and 3 and should normally have been dealt with  St but since the contentions of the parties on submission No 1 are inter mixed with the interpretation of Article 329b of the Constitution we thought it proper to deal with them in the order in which they have been made
 This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench of the High Court thereby generating apprehensions in the appellant s mind that not only is his petition not maintainable but he has been damned by damaging findings on the merits
We make it unmistakably plain that the election court hearing the dispute on the same subject under section 98 of the RP Act 1951 for short the Act shall not be moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition
An obiter binds none not even the author and obliteration of findings rendered in supererogation must alley the appellant s apprehensions
This Court is in a better position than the High Court being competent under certain circumstances to declare the law by virtue of its position under Article 141
But absent such authority or duty the High Court should have abstained from its generosity
Lest there should be any confusion about possible slants inferred from our synoptic statements we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly
The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later
Operation Election Before we proceed further we had better have a full glimpse of tie constitutional scheme of elections in our system and the legislative follow up regulating the process of election
Shri Justice Mathew in lndira Nehru Gandhi1 summarised skeletal fashion this scheme 1 285 following the pattern adopted by Fazal Ali J in Ponnuswami
 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 vs Returning Officer Nanmakkal Constituency  Ors   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 to election should contain the requisite qualifications for candidates the method of voting definition of corrupt practices by the candidates and their election agents the forum for adjudication of election disputes and other cognate matters
It is on the basis of this law that the question determined by the authority to which the petition is presented
And when a dispute is raised as regards the validity of the election of a particular candidate the authority entrusted with the task of resolving the dispute must necessarily exercise a judicial function for the process consists of ascertaining the facts relating to the election and applying the law to the facts so ascertained
 A short description of the legislative project in some more detail may be pertinent especially touching on the polling process in the booths and the transmission of ballot boxes from the polling stations to the returning officer s ultimate counting station and the crucial prescriptions regarding annuoncements and recounts and declarations
We do not pronounce upon the issues regarding the stage for and right of recount
the validity of votes or other factual or legal disputes since they fall for decision by the Election Court where the appellant has filed an election petition by way of abundant caution
A free and fair election based on universal adult franchise is the basic the regulatory procedures vis a vis the repositories of functions and the distribution of legislative executive and judicative roles in the total scheme directed towards the holding of free elections are the specifics
Part XV of the Constitution plus the Representation of the People Act 1950 for short the 1950 Act and the Representation of the People Act 1951 for short the Act Rules framed there under instructions issued and exercises prescribed constitute the package of 286 electoral law governing the parliamentary and assembly elections in the country
The super authority is the Election Commission the kingpin is the returning officer the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions
The scheme is this
The President of India Under Section 14 ignites the general elections across the nation by calling upon the People divided into several constituencies and registered in the electoral 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 in volving 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 spread need not engage us sensitively since such diffusion may weaken concentration on the few essential points concerned in this case
One such aspect relates to repoll
Adjournment of the poll at any polling station in certain emergencies is sanctioned by section 57 and fresh poll in specified vitiating contingencies is authorised by section 58
The rules run into more particulars
After the votes are cast comes their counting
Since the simple plurality of votes clinches the verdict as the critical moment approaches the situation is apt to hot up disturbances erupt and destruction of ballots disrupt
If disturbance or destruction demolishes the prospect of counting the total votes the number secured by each candidate and the ascertainment of the will of the majority a re poll confined to disrupted polling stations is provided for
Section 64A chalks out the conditions for and course of such repoll spells out the power and repository thereof and provides for kindred matters
At this stage we may make a closer study of the provisions regarding repoll systematically and stagewise arranged in the Act
It is not the case of either side that a total repoll of an entire constituency is specificated in the sections or the rules
Reliance is placed for this wider power upon Article 324 of the Constitution by the Commission in its order by the first respondent in his affidavit by the learned Additional Solicitor General in his argument and by the third respondent through his counsel
We may therefore have to study the scheme of
article 324 and the provisions of the Act together since they are integral to each other
Indeed if we may mix metaphors for emphasis the legislation made pursuant to Article 327 and that part of the Constitution specially devoted to elections must be 287 viewed as one whole picture must be heard as an orchestrated piece and must be interpreted as one package of provisions regulating perhaps the most stressful and strategic aspect of democracy in action so dear to the nation and so essential for its survival
The lis and the issues Two prefatory points need to be mentioned as some reference was made to them at the bar
Firstly an election dispute is not like an ordinary lis between private parties
The entire electorate is vicariously not inertly before the court
See   616 622
We may perhaps call this 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 and care has to be taken that the circle does not become a vicious one as pointed out by JA Jolowicz in Public Interest Parties and the Active Role of the Judge in Civil Litigation  sections 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 periodical process of free and fair elections
uninfluenced by the caprice cowardices or partisanship of hierarchical authority holding it and unintimidated by the threat tantrum or vandalism of strong arm tactics exacts the embarrassing price of vigilant monitoring
Democracy digs its grave where passions tensions and violence on an overpowering spree upset results of peaceful polls and the law of elections is guilty of sharp practice if it hastens to legitimate the fruits of lawlessness
The judicial branch has a sensitive responsibility her to call to order lawless behaviour
Forensic non action may boomerang for the court and the law are functionally the bodyguards of the People against bumptious power official or other
We now enter the constitutional zone relating to the controversy in this case
Although both sides have formulated the plural problems with some divergence we may compress them into three cardinal questions  1Is article 329b a blanket ban on all manner of questions which may have impact on the ultimate result of the election arising between two temporal termini viz the notifi cation by the President calling for the election and the declaration of the result by the returning officer  Is article 226 also covered by this embargo and
if so is section 100 broad enough to accommodate every kind of objection constitutional legal or factual which may have the result of invalidation of an 288 election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief  2Can the Election Commission clothed with the comprehensive functions under Article 324 of the Constitution cancel the whole poll of a constituency after it has been held but before the formal declaration of the result has been made and direct a fresh poll without reference to the guidelines under sections 58 and 64a of the Act or other legal prescription or legislative backing
If such plenary power exists is it exercisable on the basis of his inscrutable subjective satisfaction  or only on a reviewable objective assessment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and directions of a fresh poll not merely of particular polling stations but of the total constituency  3Assuming a constitutionally vested capacity tinder article 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 princi pled 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 dispute resolution in terms of the rule of law
Justice Cordozo felicitously set the perspective The great generalities of the Constitution have at content and significance that vary from age to age Chief Justice Hidayatullah perceptively articulated the insight One must of course take note of the synthesized authoritative content or the moral meaning of the underlying  principle of the prescriptions of law but not ignored the historic revolution of the law itself or how it was connected in its changing moods with social requirements of a particular age
Judicial Methods B N Rau Memorial Lecture The old articles of the supreme lex meet new challenges of life the old legal pillars suffer new stresses
So we have to adopt the law and develop its latent capabilities if novel situations as here are encountered
That is why in the reasoning we have adopted and the 289 perspective we have projected not literal nor lexical but liberal and visional is our interpretation of the Articles of the Constitution and the provisions of the Act
Lord Denning s words are instructive Law does not stand still
It moves continually
Once this is recongnised then the task of the Judge is put on a higher plane
He must consciously seek to mould the law so as to serve the needs of the time
He must not be a mere mechanic a mere working mason laying brick on brick without thought to the overall design
He must be an archi tect thinking of the structure as a whole building for society a system of law which is strong durable and just
It is on his work that civilised society itself depends
 The invulnerable barrier of Art329 b
Right at the forefront stands in the way of the appellant s progress the broad spectrum ban of Article 329b which it is claimed for the respondents is imperative and goal oriented
Is this Great Wall of China set up as a preliminary bar so impregnable that it cannot be by passed even by article 226  That in a sense is the key question that governs the fate of this appeal
Shri P P Rao for the appellant contended that however wide article 329b may be it does not debar proceedings challenging not the steps promoting election but dismantling it taken by the Commission without the backing of legality
He also urged that his client who had been nearly successful in the poll and had been deprived of it by an illegal cancellation by the Commission would be left in the cold without any remedy since the challenge to cancellation of the completed poll in the entire constituency was not covered by section 1 00 of the Act
Many subsidiary pleas also were put forward but we will focus on the two inter related submissions bearing on article 329b and section 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 article 329b is measured by the sweep of section 100 of the Act
We have to proceed heuristically now
Article 329b 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 Legislature
 Let us break down the prohibitory provision into its components
The sole remedy for an aggrieved party if he wants to challenge any election is an election petition
And this exclusion of all other remedies 290 includes constitutional remedies like article 226 because of the nonobstante clause
If what is impugned is an election the ban operates provided the proceeding calls it in question  or puts it in issue not otherwise
What is the high policy animating this inhibition  Is there any interpretative alternative which will obviate irreparable injury and permit legal contests in between How does section 100 1 d iv of the Act integrate into the scheme Let us read section 100 here  Subject to the provisions of sub section 2 if the High Court is of opinion x x x dthat the result of the election in so far as it concerns a returned candidate has been materially affected x x x iv by any non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void
The companion provision viz section 98 also may be extracted at thisstar  At the conclusion of the trial of an election petition the High Court shall make an order a dismissing the election petition or b declaring the election all or any of the returned candidates to be void or e declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected
 Now arises the need to sketch the scheme of section 1 00 in the setting of Art329b
The troublesome word non compliance  holds in its fold a teleologic signification which resolves the riddle of this case in a way
So we will address ourselves to the meaning of meanings the values within the words and the project unfolded 
This will be taken up one after the other
At the first blush we get the comprehensive impression that every calling in question of an election save at the end by an election petition is forbidden
What then is an election  What is calling in question  Every step from start to finish of the total process constitutes election  not merely the conclusion or culmination
Can the cancella tion 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 article 329b  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 section 100 of the Act and the object of article 329 b read with article 324
Such is the outline of the complex issue projected before us
291 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
we have adult franchise and general elections as constitutional compulsions The right of election is the very essence of the constitution  Junius
It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held based on adult franchise although social and economic democracy may demand much more
Ponnuswami is a landmark case in election laws and deals with the scope amplitude rationale and limitations of article 329b
its ratio has been consistently followed by this Court in several rulings through Durga Shankar Mehta 1 and Hari Vishnu Kamath and Khare 2 down to Indira Gandhi3
The factual setting in that case may throw some light on the decision itself
The appellant s nomination for election to the Madras Legislative Assembly was rejected by the Returning Officer and so he hurried to the High Court praying for a writ of certiorari to quash the order of rejection without waiting for the entire elective process to run its full course and at the end of it when the results also were declared to move the election tribunal for setting aside the result of the election conducted without his participation
He thought that if the election proceeded without him irreparable damage would have been caused and therefore sought to intercept the progress of the election by filing a writ petition
The High Court dismissed it as unsustainable thanks to article 329b and this court in appeal affirmed that holding
Fazal Ali J virtually spoke for the Court and explained the principle underlying article 329b
The ambit and spirit of the bar imposed by the Article was elucidated with reference to the principle that it does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role it will lead to serious consequences if the elections are unduly protracted or obstructed  In the view of the learned Judge immediate individual relief at an intermediate stage when the process of election is under way has to be sacrificed for the paramount public good of promoting the completion of elections
Fazal Ali J ratiocinated on the ineptness of
interlocutory legal bold ups
He posed the issue and answered it thus  The question now arises whether the law of elections in this country contemplates 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 1 1955 1 section C R 267 2  3 6 1114SCI77 292 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 329b 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 be urged
I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner at any other stage and before any other court
If the grounds on which an election can be called in question could be raised at an earlier stage and errors if any are rectified there will be no meaning in enacting a provision like Article 329b 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 before it
Having thus explained the raison d etre of the provision the Court proceeded to interpret the concept of election in the scheme of Part XV of the Constitution and the Representation of the People Act 1951
Articles 327 and 328 take care of the act of laws and rules making provisions with respect to all matters relating to or in connection with elections  Election disputes were also to be provided for by laws made under Article 327
The Court emphasised that Part XV of the Constitution was really a code in itself providing the entire ground work for enacting the appropriate laws and setting up suitable machinery for the conduct of elections
The scheme of the Act enacted by Parliament was also set out by Fazal Ali J  Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions the constitution of election tribunals and the trial of election petitions part VII outlines the various corrupt and illegal practises which may affect the elections and electoral offences
Obviously the Act is 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 made thereunder
The provisions of the Act which are material to the present discussion are sections 60 100 105 and with elections we have only to look at the Act and the rules 293 170 and the provisions of Chapter 11 of Part IV dealing with the form of election petitions  their contents and the reliefs which may be sought in them
Section 80 which is drafted in almost the same language as article 329b 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 329b 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 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
 There is a non obstante clause in Article 329 and therefore Article 226 stands pushed out where the dispute takes the form of calling in question an election except in special situations pointed out but left unexplored in Ponnuswami
The heart of the matter is contained in the conclusions summarised by the Court thus  1 Having regard to the important functions which the legislatures have to perform in democratic countries it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted
2In conformity with this principle the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the election and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed would have the effect of vitiating the election and enable the person effected to call it in question they should be brought so before a special tribunal by means of an election petition 294 and not be made the subject of a dispute before any court while the election is in progress
 After elaborately setting out the history in England and in India election legislation vis a vis dispute resolution Fazal Ali J stated If the language used in article 329b is considered against this historical background it should not be difficult to see why the framers of the Constitution framed that provi sion in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which bad stood the test of time Likewise the Court discussed the connotation  of the expression election  in Article 329 and observed  That word has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning
In the 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 wheneverwe 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 1951 compels us to read as Fazal Ali J did in Pannuswami the Constitution and the Act together as an integral scheme
The reason for postponement of election litigation to
the post election stage is that elections poll not unduly be protracted or obstructed
The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment
Thus for everything is clear
No litigative enterprise in the High Court or other court should be allowed to hold up the on going electoral process because the parliamentary representative for the constituence should be chosen promptly
Article 329 therefore covers electoral matters
One interesting argument urged without success in Ponnuswami elicited a reasoning from the Court which has some bearing on the question in the present appeal
That argument was that if nomina 295 tion was part of election a dispute as to the validity of the nomination was a dispute relating to election and could be called in question only after the whole election was over before the election tribunal
This meant that the Returning Officer could have no jurisdiction to decide the validity of a nomination although section 36 of the Act conferred on him that jurisdiction
The learned Judge dismissed this argument as without merit despite the great dailectical ingenuity in the submission
In this connection the learned Judge observed Under section 36 of the Representation of the People Act 1951 it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination
It is clear that unless this duty is discharged properly any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue
In discharging the statutory duty imposed on him the Returning Officer does not call in question any election
Scrutiny of nomination papers is only a stage though an important stage in the election process
It is one of the essential duties to be performed before the election can be completed and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election
The fallacy of the argument lies in treating 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 decisions two types of challenges
The first relates to proceedings which interfere with the progress of the election
The second accelerates the completion of the election and acts in furtherance of an election
So the short question before us in the light of the illumination derived from Ponnuswami is as to whether the order for re poll of the Chief Election Commissioner is anything done towards the completion of the election proceeding  and whether the proceedings before the High Court facilitated the election process or halted its progress
The question immediately arises as to whether 296 the relief sought in the writ petition by the present appellant amounted to calling in question the election
This in turn revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is part of election  and challenging it is calling it in question
The plenary bar of article 329 b rests on two principles  1 The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion
2 The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form the right and remedy being creatures of statutes and controlled by the Constitution
Durga Shankar Mehta1 has affirmed this position and supplemented it by holding that once the Election Tribunal has decided the prohibition is extinguished and the Supreme Court s over all power to interfere under article 136 springs into action
In Hari Vishnu2 this Court upheld the rule in Ponnuswami excluding any proceeding including one under article 226 during the on going process of election understood in the comprehensive sense of notification down to declaration
Beyond the declaration comes the election petition but beyond the decision of the Tribunal the ban of article 329b does not bind
If election  bears the larger connotation if callinng in question  possesses a semantic sweep in plain English if policy and principle are tools for interpretation of statutes language permitting the conclusion is irresistible  even though the argument contra may have emotional impact and ingenious appeal that the catch all jurisdiction under article 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 assumption but leaving the question of the validity of the direction for re poll soon for determination by the Election Tribunal we hold that a writ petition challenging the cancellation coupled with re poll amounts to calling in question a step in election and is there fore barred by article 329b
If no re poll had been directed the legal perspective would have been very different
The mere cancel 1 1955 1 SCR 267
2  297 lation would have then thwarted the course of the election and different considerations would have come into play
We need not chase a hypothetical case
Our conclusion is not a matter of textual interpretation only but a substantial assurance of justice by reading section 100 of the Act as covering the whole basket of grievances of the candidates
Sri P P Rao contended that the Court should not deny relief to a party in the area of elections which are the life breath of democracy and people s power
We agree
This dilemma does not arise in the wider view we take of section 100 1 d iv of the Act
Sri Rao s attack on the order impugned is in substance based on alleged non compliance with a provision of the Constitution viz article 324 but is neatly covered by the widely worded residual catch all clause of section 100
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 section 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged
To make the project fool proof section 1001 d iv has been added to absolve everything left over
The Court has in earlier rulings pointed out that section 100 is exhaustive of all grievances regarding an election
But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election not contrariwise
For example after the President notifies the nation on the holding of elections under section 15 and the Commissioner publishes the calendar for the poll under section 30 if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents is that order immune from immediate attack
We think not
Because the Commissioner is preventing an election not promoting it and 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 329b halts judicial intervention during this period provided the act possesses the pre requisites 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 of the election
Having held against the maintainability of the writ petition we should have parted with the case finally
But counsel for both the 298 candidates and more particularly the learned Additional Solicitor General appearing for the Election Commission submitted that the breadth applitude and implications the direction and depth of Article 324 and equally important the question of natural justice raised under Article 324 are of such public importance and largely fallow field going by prior pronouncements and so strategic for our democracy and itspower process that this Court must decide the issue here and now
Article 141 empowers and obligates this Court to declare the law forthe country when the occasion asks for it
Counsel otherwise opposing one another insistently concurred in their request that for the working of the electoral machinery and understanding of the powers and duties vested in the functionaries constituting the infra structure it is essential to sketch the ambit and import of article 324
This point undoubtedly arises before us even in considering the prohibition under article 329 and has been argued fully
In any view the Election Triburial will be faced with this issue and the law must be laid down so that there may be no future error while disposing of the election petition or when the Commission is called upon to act on later occasion
This is the particular reason for our proceeding to decide what the content and parameters of article 324 are contextually limited to situations analogous to the present
We decide two questions under the relevant article not argued but as substantive pronouncements on the subject
They are  a What in its comprehensive connotation does the conduct  of elections mean or for that matter the superintendence direction and control  of elections  b Since the text of the provision is silent about hearing before acting is it permissible to import into article 3241 an obligation to act in accord with natural justice  Article 324 which we have set out earlier is a plenary provision vesting the whole responsibility for national and State elections and therefore the necessary powers to discharge that function
It is true that article 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act
Sri Rao is right to the ex 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 523 299 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 article 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 article 324 to take care of surprise situations
That power itself has to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation
More is not necessary to specify less is insufficient to leave unsaid
Article 324 in our view operates in areas left unoccupied by legislation and the words superintendence direction and control  as well as conduct of all elections  are the broadest terms
Myriad maybes too mystic to be precisely presaged may call for prompt action to reach the goal of free and fair election
It has been argued that this will create a constitutional despot beyond the pale of accountability a Frankenstein s monster who may manipulate the system into elected despotism instances of such phenomena are the tears of history
To that the retort may be that the judicial branch at the appropriate stage with the potency of its benignant power and within the leading strings of legal guidelines can call the bluff quash the action and bring order into the process
Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment
Secondly When a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally
Article 324 is geared to the accomplishment of free and fair elections expeditiously
Moreover as held in Virendra1 and Harishankar2 discretion vested in a high functionary may be reasonably trusted to be used properly not
perversely
If it is misused certainly the Court has power to strike down the act
This is well established and does not it is useful to remem But the electorate lives in the hope that a sacred power will not so flagrantly be abused and the moving finger of history warns of the consequences that inevitably flow when absolute power has corrupted absolutely
The fear of perversion is no test of power lndira Nehru Gandhi vs Raj Narain3
The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which have held that article 324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation
Ordering a re poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections 1  2 3 at 657
300 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 article 324 as confined to what the Act has conferred we concede that even article 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 it applies when people are affected by acts of Authority
It is the bone of healthy government recognised from earliest times and not a mystic testament of judge made law
Indeed from the legendary days of Adam and of Kautilya s Arthasastra the rule of law has had this stamp of natural justice which makes it social justice
We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled
Today its application must be sustained by current legislation case law or other extant principle not the hoary chords of legend and history
Our jurisprudence has sanctioned its prevalence even like the Anglo American system
The dichotomy between administrative and quasi judicial functions vis a vis the doctrine of natural justice is presumably obsolescent after Kraipak1 in India and Schmit2 in England
Kraipak marks the watershed if we may say so in the application of natural justice to administrative proceedings
Hegde J speaking for a bench of five judges observed quoting for support Lord Parker in In re  HK an infant 3 It is not necessary to examine these decisions as there is a great deal of fresh thinking on the subject
The horizon of natural justice is constantly expanding p 467 The aim of the rules of natural justice is to secure jus tice or to put it negatively to prevent miscarriage of justice
1 2 3  630
301 These rules can operate only in areas not covered by any law validly made
In other words they do not supplant the law of the land but supplement it p 468 The validity of that limitation is not questioned
If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries
Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries
Enquiries which were considered administrative at one time are now being considered as quasi judicial in character
Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries
An unjust decision in an administrative enquiry may have more far reaching effect than a de cision in a quasi judicial enquiry
As observed by this Court in Suresh Koshy George vs The University of Kerala 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 justice of audi alteram partem
Even if a power is given to a body without specifying that the rules of natural justice should be observed in exercising it the nature of the power would call for its observance p 513 Lord Morris of Borthy Gest in his address before the Bentham club concluded  We can I think take pride in what has been done in recent periods and particularly in the field of administrative 1 11969 1 SCR 317
302 law by invoking and by applying those principles which we broadly classify under the designation of natural justice
Many testing problems as to their application yet remain to be solved
But affirm that the area of administrative action is but one area in which the principles are to be deployed
Nor are they to be invoked only when procedural failures are shown
Does natural justice qualify to be described as a majestic conception I believe it does
Is it just a rhetorical but vague phrase which can I be employed when needed to give a gloss of assurance  I believe that it is very much more
If it can be summarised as being fair play in action who could wish that it would ever be out of action  It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled if it lacks more exalted inspiration Current Legal Problems 1973 Vol
26 p 16 It is fair to hold that subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play
Once we understand the soul of the rule as fairplay in action and it is so  We must hold that it extends to both the fields
After all administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice
Nor is there ground to be frightened of delay inconvenience and expense if natural justice gains access
For fairness itself is a flexible pragmatic and relative concept not a rigid ritualistic or sophisticated abstraction
It is not a bull in a china shop nor a bee in one s bonnet
Its essence is good conscience in a given situation nothing more but nothing less
The exceptions  to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity 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 vs Capt
W A Satigma Ors1
We are not fascinated by the logo 1  303 machic exercise suggested by Sri P P Rao reading functions  in contradistinction to powers  nor by the trichotomy of diversion of powers fundamentally sound but flawsome in several situations if rigidly applied
These submissions merely serve to draw the red herring across the trial
We will now zero in on the crucial issue of natural justice vis a vis Article 324 where the function is so exercised that a candidate is substantially prejudiced even if be has not acquired a legal right nor suffered civil consequence  whatever that may mean
We proceed on the assumption that even if the cancellation of the poll in this case were an administrative act that per se does not repel the application of the natural justice principle
Kraipak nails the contrary argument
Nor did the learned Additional Solicitor General contend that way taking his stand all through not on technicalities easy victories or pleas for reconsideration of the good and progressive rules gained through this Court s rulings in administrative law but on the foundational thesis that any construction that we may adopt must promote and be geared to the great goal of expeditious unobstructed despatch of free and fair elections and leaving grievances to Ice fully sorted out and solved later before the election tribunal set out by the Act
To use a telling word familiar in officialese Election Immediate 
So now we are face to face with the naked issue of natural justice and its pro tem exclusion on grounds of necessity and non stultification of the on going election
The Commission claims that a direction for re poll is an emergency  exception
The rules of natural justice are rooted in all legal systems not any new theology  and are manifested in the twin principles of nemo judes in sua caues and audi alteram partem
We are not concerned here with the former since no case of bias has been urged
The grievance ventilated is that being condemned unheard
Sporadic applications or catalogue of instances cannot make for a scientific statement of the law and so we have to weave consistent criteria for application and principles for carving out exceptions
If the rule is sound and not negatived by statute we should not devalue it nor hesitate to hold every functionary who effects others  right to it
The audi alteram partem rule has a few facets two of which are a notice of the case to be met and b opportunity to explain
Let us study how far the situation on hand can co exist 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 vs Baldwin1 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  Joumal Spring 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 1  304 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 inhibiting its spread into forbidden spaces lost the basic values of article 329 be nullified
In short his point is that where utmost promp titude is needed and that is the raison d etre of exclusion of intermediate legal proceedings in election matters natural justice may be impractical and may paralyse thus balking the object of expeditious completion
He drew further inspiration from another factor to validate the exclusion of natural justice from the Commission s actions except where specifically stipulated by statutes
He pointed out what we have earlier mentioned that an election litigation is one in which the whole constituency of several lakhs of people is involved and if the Election Commission were under an obligation to hear affected parties it may logically have to give notice to lakhs of people and not merely to candidates
This will make an ass of the law and therefore that is not the law
This reductio ad absurdum also has to be examined
Law cannot be divorced from life and so it is that the life of the law is not logic but experience
If by the experiential test importing the right to be heard will paralyse the process law will exclude it
It has been said that no army can be commanded by a debating society but it is also true that the House of Commons did debate during the days of debacle and disaster agony and crisis of the Second World War the life and death aspects of the supreme command by the then British Prime Minister to the distress of all our friends and to the delight of all our foes  too historic to be lost on jurisprudence
Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases
If to condemn unheard is wrong it is wrong except where it is overbome by dire social or haphazardsolutions should be eschewed
Normally natural justice involves the irritating inconvenience for men in authority of having to hear both sides since notice and opportunity are its very marrow
And this principle is so integral to good government the onus is on him who urges exclusion to make out why
Lord Denning expressed the paramout policy consideratlon behind this rule of public law while dealing with the nemo judex aspect with expressiveness
Justice must be rooted in confidence and confidence is destroyed when right minded people go away 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 vs Duke of Norfolk1 1 118
305 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 Fernando1 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 delay is selfevident
Even in such cases a remedial hearing as soon as urgent action has been taken is the next best
Our objection is not to circumscription dictated by circumstances but to annihilation as an easy escape from a benignant albeit inconvenient obligation
The procedural pre condition of fair hearing however minimal even post decisional has relevance to administrative and judicial gentlemanliness
The Election Commission is an institution of central importance and enjoys far reaching powers and the greater the power to affect others  right or liabilities the more necessary the need to hear
We may not be taken to say that situational modifications to notice and hearing are altogether impermissible
They are as the learned Additional Solicitor General rightly stressed
The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs doctors remedies to suit the patient promotes not freezes
Life s processes if we may mix metaphors
Tucker LJ drove home this point when he observed in the Duke of Norfolk case supra There are no words which are of universal application to very kind of inquiry
The requirements of natural justice must depend on the circumstances of the case the nature of the inquiry the rules under which the tribunal is acting the subject matter that is being dealth with and so forth
This circumstantial flexibility of fair bearing has been underscored in Wiseman vs Borneman1 by Lord Reid when he said he would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules Lord Denning with lovely realism and principled pragmatism set out the rule in Selvaraien3 The fundamental rule is that if a person may be subjected to pains or penalties or be exposed to prosecution or proceedings
or deprived of remedies or redress or in some such way adversely affected by the investigation and report when he should be told the case made against him and be afforded a fair opportunity of answering it
The investigation body is however the master of its own procedure
It need not 2 3 19
306 hold a hearing
It can do everything in writing
It need not allow lawyers
It need not put every detail of the case against a man
Suffice it if the broad grounds are given
It neednot name its 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 Commission s order was more or less provi sional
So no natural justice
Thirdly he took up the position that no candidate could claim anything more than an expectation or apes and no right having crystallised till official declaration of the result there was no room for complaint of civil consequence
WI tat was condemned was the poll not any candidate
So no natural justice
Finally he reminded us of the far flung futility of giving a hearing to a numerous constituency which too was interested in proper elections like the candidates
So no natural justice
Schmidt was relied on and Wisemen1 as well as Pearlberg2 were cited in support of these propositions
We may add to these weighty rulings the decision of the House of Lords in Pearlberg
The decision of this Court in the ruling in Bihar School Examination Board vs Subhas Chandra Sinha  Ors
3 where a whole university examinations was cancelled without hearing any of the candidates but was up held against the alleged vice of non hearing was relied on
We must admit that the law in certain amber areas of natural justice
 has been unclear
Vagueness haunts this zone but that is no argument to shut down
If it is twilit we must delight
So we will play down the guidelines but guard ourselves against any decision on the facts of this case
That is left for the Election Court in the light of the law applicable
1 2 307 Nobody will deny that the Election Commission in our democratic scheme is a central figure and a high functionary
Discretion vested in him will ordinarily be used wisely not rashly although to echo Lord Camden wide discretion is fraught with tyrannical potential even in high personages absent legal norms and institutional checks and relaxation of legal canalisation on generous VIP  assumptions may boomrang
Natural justice is one such check on exercise of power
But the chemistry of natural justice is confused in certain aspects
 especially in relation to the fourfold exceptions put forward by the respondents
So let us examine them each
Speed in action versus soundness of judgment is the first dilemma
Ponnuswamy has emphasised what is implicit in Article 329b that once the process of election has started it should not be interrupted since the tempo may slow down and the early constitution of an elected parliament may be 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 vs Bornenwn1 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 compulsive pressure of circumstances
To burke it altogether may not be a stroke of fairness except in very exceptional circumstances
Even in Wiseman where all that was sought to be done was to see if there was a prima facie case to proceed with a tax case where inevitably a fuller bearing would be extended at a later stage of the proceedings Lord Reid
Lord Morris of Borthy Gest and Lord Wilborforce suggested that there might he exceptional cases where to decide upon it ex parte would be unfair and it would be the duty of the tribunal to take appropriate steps to eliminate unfairness Lord Denning M R in Manward vs Bornenam2 summarised the observations of the law Lords in this form
No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case
After all it is not obligatory that counsel should be allowed to appear nor is it compulsory that oral evidence should be adduced
Indeed it is not even imperative that written statements should be called for Disclosure of the prominent circumstances and asking for an immediate 1 1967 3 All FR 1945
2 7 1114 SCI77 308 explanation orally or otherwise may in many cases be sufficient compliance
It is even conceivable that an urgent meeting with the concerned parties summoned at an hours notice or in a crisis even a telephone call may suffice
If all that is not possible as in the cue of a fleeing person whose passport has to be impounded lest he should evades the course of justice or a dangerous nuisance needs immediate abatement the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible
It is quite on the cards that the Election Commission if pressed by circumstances may give a short hearing
In any view it is not easy to appreciate whether before further steps got under may he could not have afforded an opportunity of hearing the partiesand revoke the earlier directions
We do not wish to disclose our mind on what in the critical circumstances should have been done for a fair play of fair hearing
This is a matter pre eminently for the elec tion tribunal to judge having before him the vivified totality of all the factors
All that we need emphasize is that the content of natural justice is a dependent variable not an easy casualty
The learned Additional Solicitor General urged that even assuming that under ordinary circumstances hearing should be granted in the scheme of article 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 Gopal1 and Col Sinha 2
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 a civil consequence
Civil is defined by Black Law Dictionary 4th Ednat p311
Ordinally pertaining or appropriate to a member of a civitas of free political community natural or proper to a citizen
Also relating to the community or to the policy and government of the citizens and subjects of a state
The word is derived from the Latin civilie a citizen
In law it has various significations 1  2 1971 1 SCR 791
309 Civil Rights  are such as belong to every citizen of the State or country or in a wider senes to all its inhabitants and are not connected with the organisation or administration of government
They include the rights of property marriage protection by the laws freedom of contract trial by jury etc
Or as otherwise defined civil rights are rights appertaining to a person in virtue of his citizenship in a state or community
Rights capable or being enforced or redressed in a civil action
Also a term applied to certain rights secured to citizens of the United States by the thirteenth and fourteenth amendments to the constitution and by various act  of congress made in pursuance thereof
p 1487 Blacks Legal Dictionary The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within this gravitational orbit
The most valuable right in a democratic policy is the little man s  little pencil marking assenting or dissenting called his vote
A democratic right if denied inflicts civil consequences
Likewise the little man s right in a representative system of government to rise to Prime Ministersbip or Presidentship by use of the right to be candidate cannot be wished away by calling it of no civil moment
If civics mean anything to a self governing citizenry if participatory democracy is not to be scuttled by the law we shall not be captivated by catchwords
The straightforward conclusion is that every Indian has a right to elect and be elected and this is a constitutional as distinguished from a common law right and is entitled to cognizance by courts subject to statutory regulation
We may also notice the further refinement urged that a right accrues to a candidate only when he is declared returned and until then it is incipient inchoate and intangible for legal assertion in the twilight zone of expectancy as it were
This too 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 candi date 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 pro cessual 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 appel lant 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
in the present case the Election Commission contends that a hearing has been given although the appellant retorts that a vacuous mecting where nothing was disclosed and he was summarily told off would be strange electoral justice
We express no opinion on the factum or 310 adequacy of the hearing but hold that where a candidate has reached the end of the battle and the whole poll is upset he has a right to notice and to be heard the quantum and quality being conditioned by the concatenation of circumstances
The rulings cited bearing on the touchstone of civil consequences do not contradict the view we have propounded
Col Sinha merely holds and we respectfully agree that the lowering of retirement age does not deprive a government servant s rights it being clear that every servant has to quit on the prescribed age being attained
Even Binapani1 concedes that the State has the authority to retire a servant on superannuation
The situation here is different
We are not in the province of substantive rights but procedural rights statutorily regulated
Sometimes processual protections are too precious to be negotiable temporised with or whittled down
Ram Gopal for the same reason is inapplicable
A tempoary servant has only a temporary tenure terminable legally without injury
Even he if punished has procedural rights in the zone of natural justice but not when the contract of employment is legally extinguished
Interest and right are generous conceptions in this jurisdiction not narrow orthodoxies as in traditional systems
We move on to a consideration of the argument prolix plurality making hearing impracticable and therefore expendable
Attractively ingenious and seemingly precedented but argumentum ab inconvenienti has its limitations and cannot override established procedure
Maybe argumentum ab impossibili has greater force
But here neither applies for it is a misconception to equate candidates who have fought to the bitter finishwith the hundreds of thousands of voters who are interested in electoral proprieties
In law and life degrees of difference may at a substantial stage spell difference in kind or dimensions
Is there an
impossible plurality which frustrates the feasibility of notice and hearing if candidates alone need be notified  In Subhash Chander Sinha2 Hidayatullah CJ speaking for the Court repelled 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 1  2  311 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 unfair means so that he could claim to defend himself
The examination was vitiated by adoption of unfair means on a mass scale
In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means
The examination as a whole had to go  967 968 x x x x x If at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100 when others at other centres are successful only at an average of 50 it is obvious that the university or the Board must do something in the matter
It cannot hold a detailed quasi judicial inquiry with a right to its alumni to plead and lead evidence etc
before the results are withheld or the examinations cancelled
If there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled than academic standards require that the university s appreciation of the problem must be respected
It would not do for the Court to say that he should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not
To do this would encourage indiscipline if not also perjury 968 969 These propositions are relied on by the learned Additional SolicitorGeneral who seeks to approximate the present situation of cancellation of the poll to the cancellation of an examination
His argument is that one has to launch on a public enquiry allowing a large number of people to participate in the hearing if the cancellation of the poll itself is to be subjected to natural justice
He further said that no candidate was condemned but the poll process was condemned
He continued to find a parallel by stating that like the university being responsible for the good conduct of examinations the Election Commission was responsible for the proper holding of the poll
We do not consider the ratio in Subhash Chander supra as applicable
In fact the candidates concerned stand on a different footing from the electorate in general
They have acquired 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 proceed ing
What really marks the difference is the diffusion and dilution
The 312 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 in event 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 s1 case illustrates this aspect
Even there when an examination result of three candidates was cancelled the Court imported natural justice
It was said that even if the enquiry involved a large number of persons the committee should frame proper regulations for the conduct of such enquiries but not deny the opportunity
That case was distinguished in Subhash Chander the differentia being that in one case the right exercised was of the examining body to cancel its own examinations since it was satisfied that the examination was not properly conducted
It may be a parallel in electoral situations if the Election Commission cancels a poll because it is satisfied that the procedure adopted has gone away on a wholesale basis
Supposing wrong ballot papers in large numbers have been supplied or it has come to the notice of the Commission that in the constituency counterfeit ballots had been copiously current and used on a large scale then without reference to who among the candidates was more prejudiced the poll might have been set aside
It all depends on the circumstances and is incapable of natural justice to argue that the whole constituency must be given a hearing
That is an ineffectual over kill
Lastly it was contended by the learned Additional Solicitor General taking his cue from Wiseman that the Election Commission s direction for a re poll has only a provisional consequence since the election court was the ultimate matter of the destiny of the poll having power to review the decision of the Commission
It is true that Wiseman deals with the assessment of the evidence at a preliminary state merely to ascertain whether there is a prima facie case
The proceeding bad still later stages where the effected party would enjoy a full opportunity
Lord Reid said plainly that there was a difference  It is very unusual for there to be a judicial determination of the question whether there is a prima facie case there is nothing inherently unjust in reaching such a decision ie a prima facie decision in the absence of the other party Lord Wilberforce however took the view that there was a residual duty of fairness 
Lord Denning in Pealberg vs Party2 added in parenthesis Although the tribunal
in determining whether there is a prima facie case is itself the custodian of fairness nevertheless its discretion is open to review PP 737 738 1 1962 Supp 3 SCR 236
2 737
313 Buckley LJ 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 vs Baldwin1 and t vs 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 matter of practice is made ex parte
The Court itself is a custodian of fairness
If the matter is so urgent that an order should be made forthwith before hearing the other side as in the case of an interim injunction or a stay of execution the court will make the order straight away
We do it every day we are always ready of course to hear the other side if they apply to discharge the order
But still the order is made ex parte without bearing them
It is a prima facie decision
I agree that before some other tribunal a prima facie decision may be a little different
The party affected by it may not be able to apply to set it aside
The case must go forward to a final decision
Here again I think the tribunal itself is under what Lord Wilberforce described as a residual duty of fairness 1971 A C 297 320 When Pearlberg3 reached the House of Lords the Law Lords considered the question again
Lord Hailsham of St Marylebone LC observed  The third factor which affects mind is the consideration that the decision once made does not make any final determination of the rights of the taxpayer
It simply enables the inspector to raise an assessment by satisfying the commissioner that there are reasonable grounds for suspecting loss of tax resulting from neglect fraud or wilful default that is 1  2 3 314 that there is a prima facie probability that there has been neglect etc and that the Crown may have lost by it
When the assessment is made the taxpayer can appeal against it and on the appeal may raise any question inter alia which would have been relevant on the application for leave except that the leave given should be discharged p539 x x x x x The doctrine of natural justice has come in for increasing consideration in recent years and the courts generally and your Lordships  House in particular have I think rightly advanced its frontiers considerably
But at the same time they have taken an increasingly sophisticated view of what it requires in individual cases p 540 Viscount Dilhorne observed in that case I agree with Lord Donovan s view Wiseman vs Borneman  316 that it cannot 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 too readily sacrificed
The disadvantage of a plurality of hearings even in the judicial sphere was cogently pointed out in the majority judgment in Cozens vs North Doven Hospital Management Committee1
p 547 1  343 346 347
315 Lord Salmon put the matter pithily No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused p 550 Indeed in Malloch1 E Lord Wilberforce observed  A limited right of appeal on the merits affords no argument against the existence of a right to a precedent hearing and if that is denied to have the decision declared void Foot note 30 Public Law Spring 1975 Stevens p 50 from Natural Justice Substance and Shadow by D H Clark
After all the Election Court can exercise only a limited power of review and must give regard to the Commission s discretion
And the trouble and cost of instituting such proceedings would deter all but the most determined of parties aggrieved and even the latter could derive no help from legal principle in predicting whether at the end of the day the court would not condone their summary treatment on a subjective appraisal of the demerits of the case they had been denied the opportunity to present
The public interest would be ill served by judicially fostered uncertainty as to the value to be set upon procedural fair play as a canon of good administration
And further the Wiseman law Lords regarded the cutting out of hearing  as quite unpalatable but in the circumstances harmless since most of the assessees know the grounds and their declaration was one mode of explanation
We consider it a valid point to insist on observance of natural justice in the area of administrative decision making so as to avoid devaluation of this principle by administrators already alarmingly insensitive to the rationale of audi alteram partem  In his lecture on The Mission of the Law  Professor H W R Wade takes the principle that no man should suffer without being given a hearing as a cardinal example of a principle recognised as being indispensable to justice but which has not yet won complete recognition in the world of administration 
The goal of administrative justice can never be attained by necessarily sporadic and ex 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 1  1598
316 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 LC 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 increasingly sophisticated view of what is required in individual cases
P 63 Public Law Spring 1975 supra And in India this case is neither the inaugural nor the valedictory of natural justice
Moreover Sri Rao s plea that when the Commission cancels viz declares the poll void it is performing more than an administrative function merits attention although we do not pause to decide it
We consider that in the vital area of elections where the people s faith in the democratic process is hypersensitive it is republican realism to keep alive audi alteram even in emergencies even amidst the clash of arms 
Its protsan shades apart we recognise that hearing  need not be an elaborate ritual and may in situations of quick despatch be minimal even formal nevertheless real
In this light the Election Court will approach the problem
To scuttle the ship is not to save the cargo to jettison may be
Fair hearing is thus a postulate of decision making cancelling a poll although fair abridgement of that process is permissible
It can be fair without the rules of evidence or forms of trial
It cannot be fair if apprising the affected and appraising the representations is absent
The philosophy behind natural justice is in one sense participatory justice in the process of democratic rule of law
We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose
There is no such sequitur
The silence of a statute has no exclusionary effect except where it flows from necessary implication
article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation
There was much argument about the guidelines in section 58 and 64A being applicable to an order for constituency wide repoll
It may be wholesome to be guided but it is not illegal not to do so provided homage to natural justice is otherwise paid
Likewise Shri P P Rao pressed that the Chief Election Commissioner  was arbitrary in ordering a re poll beyond Fazilka segment or postal ballots
Even the 3rd respondent had not asked for it not was there any material to warrant it since all the ballots of all the other segments were still available to be sorted out and recounted
A whole re 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 317 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 article 329b is a bar for intermediate legal proceedings calling in question the steps in the election outside the machinery for deciding election disputes
We have further held that article 226 also suffers such eclipse
Before the notification under section 14 and beyond the declaration under r 64 of Conduct of Election Rules 1961 are not forbidden ground
In between is provided the step challenged is taken in furtherance of not to halt or hamper the progress of the election
We have clarified that what may seem to be counter to the match of the election process may in fact be one to clear the way to a free and fair verdict of the electorate
It depends
Taking the Election Commission at his word the Election Court has the power to examine the validity of his word we proceed on the prima facie view that writ petition is not sustainable
If it turned out that the Election Commission acted bizarre fashion or in indiscreet haste it forebodes ill for the Republic
For if the salt lose their savour wherewith shall they be salted  Alan Barth in his Prophets with Honor  quotes Justice Felix Frankfurter regarding the standard for a judicial decision thus  Mr Doolay s the Supreme Court follows the iliction returns  expressed the wit of cynicism not the demand of principle
A Court which yields to the popular will thereby licensee itself to practice despotism for there can be no assurance that it will not on another occasion indulge its own will
Courts can fulfil their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards and rational standards are both impersonal and communicable Quotation from American Federation of Labour vs American Sash and Door Co 335 US of Alan Berth s book published by Light  Life Publishers New Delhi The above observation would equally apply to the Election Commission
Many incidental points were debated but we have ignored those micro questions and confined ourselves to macro determinations
It is for the Election Court not for us to rule on those variegated matters
318 Certain obvious questions will claim the Election Court s attention
Did the Commission violate the election rules or canons of fairness  Was the play in short according to the script or did the dramatis personae act defiantly contrary to the text  After all democratic elections 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 section 100 read with section 90 sufficient to afford full relief to the appellant if the finding is in violation or mat exercise of powers under article 324  Sri Rao says NO  while the opposition says YES 
Lot us follow the appellant s apprehension for a while to test its tenability
He says that the Commissioner has no power to cancel the election to a whole constituency
Therefore the impugned order is beyond his authority and in excess of his functions under article 324
Moreover even if such power exists it has been exercised illegally arbitrarily and in violation of the implied obligation of audi alteran partem
In substance his complaint is that under guise of article 324 the Commissioner has acted beyond its boundaries in breach of its content and oblivious of its underlying duties
Such a mal exercise clearly tantamounts to non adherence to the norms and limitations of article 324 and if true it is a noncompliance with that provision of the Constitution
It falls within section 1001 d iv
A generous purposeoriented literally informed statutory interpretation spreads the wings of non compliance  wide enough to bring in all contraventions excesses breaches and subversions
We derive support for this approach from Durga Mehta
The Court there considered the same words in the same sections in the same statute
Section 1002 c interpreted in that case re incamates as s
1001 d iv later
Everything is identical
And Mukherjee J explained
It is argued on behalf of the respondent that the expression non compliance  as used in sub section 2c would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of qualification
This we think would 319 be a narrow way of looking at the thing
When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election it can be said without impropriety that there has been non compliance with the provisions of the Constitution materially affecting the result of the election
There is no material difference between non compliance and non observance or breach and this item in clause c of sub section 2 may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause
 Lexical significations are not the last work in statutory construction
We hold that it is perfectly permissible for the Election Court to decide the question as one falling under section 1 00  1  d iv A presumatic view of the Act and article 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 or any of the reliefs set out in sec
98 and to direct the Commissioner to take such ancillary steps as will render complete justice to the appellant
Section 98 which we have read earlier contemplates three possibilities when an election petition is tried
Part VI of the Act deals with the complex of provisions calculated to resolve election disputes
A match past this Part discloses the need to file an election petition section 60 the jurisdiction to try which is vested in the High Court 80A
Regulatory of the further processes on presentation of a petition are sees
81 to 96
If a candidate whose return is challenged has a case invalidating the challenger s election he may set it up subject to the provision in sec
Then comes the finale in sec
The High Court has three options by way of conclusive determinations
It may a dismiss the petition b declare the election void and c go further to declare the petitioner duly elected
Side stepping certain species of orders that may be passed under section 99 we have to explore the gamut of implied powers when the grant of power is wide and needs incidental exercises to execute the substantive power
320 A few more sections exist which we may omit as being not germane to the present controversy
What is that controversy  Let us project it with special reference to the present case
Hero the poll proceeded peacefully the counting was almost complete the ballots of most stations are available and postal votes plus the votes of one or two polling stations may alone be missing
Sri P P Rao asks and whenever counsel in court or speaker on a podium asks rhetorical questions be sure he is ready with an answer in his favour  If the court holds that the cancellation by the Commissioner of the whole poll is illegal what relief can it give me since a fresh election based on that demolition has been already held  If the court holds that since most of the ballots are intact repoll at one or two places is enough how can even the court hold such limited repoll
If the Court wants to grant the appellant the relief that lie is duly elected how can the intervening processes lying within the competence of the Commissioner be commandered by the Court  The solution to this disturbing string of interrogations is simple given a creative reading of implied powers writ invisibly yet viably into the larger jurisdiction under sec
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 fulfil 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 dispute there 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 cancellation of the entire poll is within the courts power under section 98 of the Act
All are agreed on this
In that eventuality what are the follow up steps Everything necessary to resurrect reconstruct and lead on to a consummation of the originalprocess
Maybe to give effective relief by way of completion of the broken election the Commissioner may have to be directed to hold fresh poll and report back together with the ballots
A recount of all or some may perhaps be required
Other steps suggested by other developments may be desired
If anything integrally linked up with and necessitated by the obligation to grant full relief has to be undertaken or ordered to be done by the election machinery all that is within the orbit of the Election Court s power
Black s Law Dictionary explains the proposition thus Implied powers are such as are necessary to make available and carry into effect those powers which are expressly 321 granted or conferred and which must therefore be presumed to have been within the intention of the constitutional or legislative grant
p 1334 Black s Legal Dictionary 4th Edn This understanding accords with justice and reason and has the support of Sutherland
The learned Additional Solicitor General also cited the case in Metajog Dobey vs H C Bhari  at p 937 and Commissioner of Commercial taxes Ors vs R section Jhaver  ors
 at p 154155 to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vast incidental powers
Hi illustrated his point by quoting from Sutherland Frank E Horack Jr Vol 3 Necessary implications
Where a statute confers powers or duties in general terms all powers and duties incidental and necessary to make such legislation effective are included by implication
Thus it has been stated An express statutory grant of power or the imposition of a definite duty carries with it by implication in the absence of a limitation authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty 
That which is clearly implied is as much a part of a law as that which is expressed
 The reason behind the rule is to be found in the fact that legislation is enacted to establish broad or general standards
Matters 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 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 has been held to include the power to take finger prints and take into custody non residents who were exempted from the provisions of a licensing statute
 322 Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers to direct a re poll 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 re poll of postal ballots since those names are known can be ordered taking care to preserve the secrecy of the vote
The Court may if necessary after setting aside the election of R 3 if there are good grounds therefore keep the case pending issue directions for getting available votes order recount and or partial re poll keep the election petition pending and pass final orders holding the appellant elected if only if valid grounds are established
Such being the wide ranging scope of implied powers we are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court s powers to grant and Sri Rao s alarm is unfounded
Diffusion even more elaborate discussion tends to blur the precision of the conclusion in a judgment and so it is meet that we synopsize the formulations
Of course the condensed statement we make is for convenience not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation
For this limited purpose we set down our holdings 1 a article 329b is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result
b Election in this context has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate a The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence direction and control of the conduct of elections in the Election Commission
This responsibility may cover powers duties and functions of many sorts administrative or other depending on the circumstances
b Two limitations at least are laid on its plenary character in the exercise thereof
Firstly when Parliament or any State Legislature has made valid law relating to or in connection with elections the Commission shall act in conformity with not in violation of such provisions but where such law is silent article 324 is a reservoir of power to act for the avowed purpose of not divorced from pushing forward a free and fair election with expedition
Secondly the Commission shall be responsible to the rule of law act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay in action in a most important area of the constitutional order viz elections
Fairness does import an obligation to see that no 323 wrongdoer candidate benefits by his own wrong
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
The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as predicated in article 329b and the 1951 Act
The Election Tribunal has under the various provisions of the Act large enough powers to give relief to an injured candidates if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law
In sum a pragmatic modus vivendi between the Commission s paramount constitutional responsibility vis a vis elections and the rule of law vibrant with fair acting by every authority and remedy for every right breached is reached
We conclude stating that the bar of article 329b is as wide as the door of
section 100 read with section 98
The writ petition is dismissible but every relief given factual proof now prayed for in the pending election petition is within reach
On this view of the law ubi jus ibi remeditum is vindicated election injustice is avoided and the constituency is allowed to speak effectively
In the light of and conditioned by the law we have laid down we dismiss the appeal
Where the dispute which spirals to this Court is calculated to get a clarification of tile legal calculus in an area of national moment the parties are the occasion but the people are the beneficiaries and so costs must not be visited on t particular person
Each party Will bear his own costs
A word of mood for counsel
Shri Soli Sorabjee did with imaginative yet emphatic clarity and pragmatic yet persuasive advocacy belight the twilit yet sensitive zones of the electoral law Shri P P Rao did with feeling for justice and wrestling with law drive home the calamities of our system if right did not speak to remedy and Shri Phadke did without overlapping argument but with unsparing vigour bringing out the legal dynamics of quick elections and comprehensive corrections
We record our appreciation to the bar whose help goes a long way for the bench to do justice GOSWAMI J
This appeal by special leave is directed against the judgment of the Delhi High Court dismissing the writ application of the appellant under Article 226 of the Constitution
8 1114SCI77 324 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 peacefully over on March 16 1977
Counting in five Assembly segments was completed on March 20 1977 and in the remaining four it was completed on March 21
The Assistant Returning Officers made entries in the result sheets in form 20 and announced the number of votes received by each candidate in the Assembly segments
No recounting was asked for by any candidate or his polling agent in any segment
Copies of the result sheets in Form 20 were handed over to the candidates or to their polling agents
The ballot papers and the result sheets of all the nine Assembly segments were transmitted by the Assistant Returning Officers concerned to the Returning Officer at the Headquarters
According to the result sheets the appellant who was the Congress candidate secured 196016 votes excluding postal ballots as against his nearest rival candidate respondent No 3 belonging to the Akali Party who secured 194095 votes excluding postal ballots
The margin of votes between the appellant and respondent No 3 at that stage was 1921
There were 769 postal ballots
As per programme counting of postal ballot papers was started by the Returning Officer respondent No 2 at 300 PM on March 21
248 ballot papers out of 769 were rejected in the counting
At this stage it is said respondent No 3 and his son incited an unruly mob of his supporters to raid the office of the Returning Officer as a result of which a grave situation was created in which many officers received injuries The Returning Officer was abused and was threatened that his son and other members of his family would be murdered
All the postal ballot papers except those which had been rejected were destroyed by the mob
Some ballot papers of Fazilka Assembly segment are also said to have been destroyed by the mob in the course of their transit to the office of the Returning Officer
The Assistant Returning Officer of the Zira Assembly segment on his way to the office of the Returning Officer was attacked by the mob and some of the envelopes containing ballot papers paper seal accounts and presiding Officers  diaries were snatched away from him
However the result sheets in Form 20 of all the Assembly segments in which the 325 counting had been completed by March 21 1977 could be preserved and were deposited in Gorvernment Treasury Ferozepore
In view of the violent situation created 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 section 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 the Chief Election Commissioner received a wireless message from the Returning Officer which may be quoted Mob about sixteen thousand by over powering the police attacked the counting hall where postal ballot papers were being counted
Police could not control the mob being out numbered
Part of postal ballot papers excepting partly rejected ballot papers and other election material destroyed by the mob
Lot of damage to property done The undersigned was forced under duress to give in writing the following  The counting of 13 Parliamentary Ferozepore Constituency has been adjourned due to certain circumstances which have been mentioned in the application presented by Shri Mohinder Singh Sayanwala regarding repoll of the constituency and on the polling station in which the ballot boxes have been r to be tampered with
This will be finally decided on receipt of instructions from the Election Commission and the result will be announced thereafter 
Counting adjourned and result postponed till receipt of further instructions from Election Commission
Incident happened in the presence of Observer at Ferozepore
Mob also destroyed the ballot papers and other election material and steel trunks of Fazilka Assembly segment at Ferozepore after the counting part of election material of Zira Assembly segment was also snatched and destroyed by the mob at Ferozepore
On the same day the Chief Election Commissioner received a written report from the Observer
The Observer also orally apprised the Chief Election Commissioner of the various incidents at the time of 326 poll and counting in various Assembly segments
No other report from the Returning Officer was however received on that day
On the materials mentioned above which he could gather on March 22 1977 the Chief Election Commissioner passed the impugned order on the same day
It may even be appropriate to quote the same  Election Commission of India New Delhi Dated 22 March 1977 Chaitra 1 1899 SAKA NOTIFICATION SO
Whereas the Election Commission has received reports from the Returning Officer of 13 Ferozepur Parliamentary Constituency that the counting on 21 March 1977 was seriously disturbed by violence that the ballot 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 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 records for the purpose of quashing the impugned order and 2 a writ of mandamus directing the Chief Election Commissioner and the Returning Officer to declare the result of the election 3 alternatively a writ of mandamus directing the Chief Election Commissioner to act strictly in accordance with the provision of section 64A2 thus confining its directions in regard to postal ballot papers only
The appellant made three contentions before the High Court
Firstly that the Election Commission had no jurisdiction to order 327 re poll of the entire Parliamentary Constituency
Secondly the impugned order was violative of the principles of natural justice as no opportunity of a hearing was afforded to the appellant before passing the order
Thirdly that the High Court under Article 226 of the Constitution was competent to go into the matter notwithstanding the provisions of Article 329b of the Constitution
The application was resisted by the Chief Election Commissioner respondent No 1 and respondent No 3 the rival candidate
A preliminary objection was raised by respondents 1 to 3 with regard to the maintainability of the writ application on the ground that Article 329b of the Constitution was a bar to the High Courts entertaining it
Another objection was taken that the writ petition was not maintainable in view of the amended provisions of Article 226 of the Constitution
The High Court dismissed the writ application
The High Court held that Article 324 confers plenary executive powers on the Election Commission and there were no limitations on the functions contemplated in Article 324
The High Court observed that the law framed under Article 327 or Article 328 was in aid of the plenary powers already conferred on the Election Commission under Article 324 and where the law so made under Article 327 or Article 328 omitted to provide for a contingency or a situation the said plenary executive power relating to conduct of elections conferred upon the Election Commission by Article 3241 of the Constitution would become available to it and the Election Commission would be entitled to pass necessary orders in the interest of free and fair elections
The High Court also held that the Returning Officer could not deprive the candidates of the rights of recount available to them tinder rule 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 632 to 636
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 of the notification but in any case after the notification
The High Court also held that it bad no jurisdiction to entertain the writ petition in view
of the bar contained in Article 329b of the Constitution
This appeal has come up for hearing before this  Constitution Bench on a reference by a Two Judge Bench as substantial questions of 328 law have arisen as to the interpretation of the Constitution in particular Article 324 and Article 329b of the Constitution
We should
therefore immediately address ourselves to that aspect of the matter
What is the scope and ambit of Article 324 of the Constitution  The Constitution of our country ushered in a Democratic Republic for the free people of India
The founders of the Constitution took solemn care to devote a special chapter to Elections niched safely in Part XV of the Constitution
Originally there were only six articles in this Part opening with Article 324
The penultimate Article in the chapter as it stands is Article 329 which puts a ban on interference by courts in electoral matters
We are not concerned in this appeal with the newly added Article 329A which is the last Article to close the  chapter
Elections supply the visa viva to a democracy
It was therefore deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be in complete charge of the entire electoral process commencing with the issue of the notification by the President to the final declaration of the result
We are not concerned with the other duties of the Election Commission in this appeal
Article 324 came to the notice of this Court for the first time in N P Ponnuswami vs Returning Officer Namakkal Constituency and Others1
This Court observed Broadly speaking 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 judical 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
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 11952 SCR 218 329 enforcing it the remedy provided by that statute only must be availed of
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 supra had to deal with a matter arising out of rejection of a nomination paper which was the subject matter of a writ application under Article 226 of the Constitution which the High Court bad dismissed
With regard to the construction of Article 329b it was held that the more reasonable view seems to be that article 329 covers all electoral matters 
This Court put forth its conclusions in that decision as follows  1 Having regard to the important functions which the legislatures have to perform in democratic countries it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted
2 In conformity with this principle the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the election  and if any irregu larities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed would have the effect of vitiating the election  and enable the person affected to call it in question they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress
This Court also explained the connotation of the word election in very wide terms as follows  It seems to me that the word election  has been used in Part XV of the Constitution in the wide sense that is to say to connote the entire procedure to be gone through to return a candidate to the legislature
The use of the expression conduct of election  in article 324 specifically points to the wide meaning and that meaning can also be read consistently into the other provisions which occur in Part XV including article 328b
330 This Court further observed that been appropriately used with reference to the entire process which consists of several stages and embraces many steps
some of which may have an important bearing on the result of the process
x 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 powers under Article 324 of the Constitution which in terms refers to functions  under sub Article 6
We are however unable to accept this submission since functions include powers as well as duties see Stroud s Judicial Dictionary p 1196
It is incomprehensible that a person or body can discharge any functions without exercising powers
Powers and duties are integrated with function
Article 3241 vests in the Election Commission the superintendence direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice President held under the Constitution
Article 3241 is thus pattern of our polity isto be exercised in accordance with law
That is why Articles 327 and328 provide for making of provisions with respect to all matters relating to or in connected with elections for the Union Legislatures and for the State Legislatures respectively
When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislatures the Commission has to act in conformity with those laws and the other legal provisions made thereunder
Even so both Articles 327 and 328 are  subject to the provisions of the Constitution which include Article 324 and Article 329
Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice President is vestedunder Article 3241 in the Election Commission the framers 331 of the Constitution took care to leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in such a large democracy as ours
Every contingency could not be foreseen or anticipated with precision
That is why there is no hedging in Article 324
The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules
That to be the raison d etre for the opening clause in Articles 327 and 328 which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area
There is however no doubt whatsoever that the Election Commission will have to conform to the existing laws 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 and see that the election process is completed properly in a free and fair manner An express statutory grant of power or the imposition of a definite duty carries with it by implica tion in the absence of a limitation authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty
That which is clearly implied is as much a part of a law as that which is expressed
1 The Chief Election commissioner has thus to pass appropriate orders on receipt of reports from the returning officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders
Moreover the power has to be exercised with promptitude
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 him if it is there either under the Act or the rules made in that behalf or under Article 3241
Apart from the several functions envisaged by the two Acts and the rules made thereunder where the Election Commission is required to make necessary orders or directions are there any other functions or the Commission  Even if the answer to the question may be found 332 elsewhere reference may be made to section 19A of the Act which in terms refers to functions not only under the Representation of the People Act 1950 and the Representation of the People Act 1951 or under the rules made thereunder but also under the Constitution
The Commission is therefore entitled to exercise certain powers under Article 324 itself on its own right in an area not covered by the Acts and the rules
Whether the power is exercised in an arbitrary or capricious manner is a completely different question
Mr Rao submits referring to sections 58 and 64A of the Act that the Chief Election Commissioner has no power to cancel the poll in the entire constituency
He submits that this is a case of complete lack of power and not merely illegal or irregular exercise of power
He points out that there is a clear provision under section 58 of the Act for reordering of poll at a polling station
Similarly under section 64A there is provision for declaring the poll at a polling station void when the Election Commission is satisfied that there is destruction or loss etc
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 repoll 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 wit ness 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 certain decisions unlawfully arbitrarily or with ulterior motive or in mala fide exercise of power is not the test in such a case
The question always relates to the existence of power and not the mode of exercise of power
Although section 58 and section 64A mention a polling station or a place fixed for the poll it may where necessary embrace multiple polling stations
Both under section 58 and under section 64A the poll that was taken at a particular polling station can be voided and fresh poll can be ordered by the Commission
These two sections naturally envisage a particular situation in a polling station or a place fixed for the poll and cannot be said to be exhaustive
The provisions in sections 5 8 and 64A cannot therefore be said to rule out the making of an order to deal with a similar situation if it arises in several polling stations or even sometimes as a general feature in a substantially large area
It is therefore not possible to accept the contention that the Election Commission has no power to make the impugned order for a repoll in the entire constituency
333 Mr Rao submits that once the Presidential notification has been made it is left to the President alone to amend or alter the notification and power in an appropriate case may be exercised by the President in which case the action of the President wilt be on the advice of the Cabinet which will be responsible to the Legislature
He submits that it was not the intention of the Constitution makers in the entire scheme of the electoral provisions to entrust such an extraordinary power to the Election Commission
He further submits that in an appropriate case the President may also promulgate an ordinance under Article 123i of the Constitution cancelling the poll in the entire constituency
The contention that the President can revoke alter or amend the notification under section 14 of the Act or that he can promulgate an ordinance in an appropriate case does not however answer the question
The question will have to be decided on the scope and ambit of power under Article 3241 of the Constitution which vests the conduct of elections in the Election Commission
It is true that in exercise of powers under Article 3241 the Election Commission cannot do something impinging upon the power of the President in making the notification under section 14 of the Act
But after 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 3241 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 during the course of the process of election  as that term is understood  As already pointed out it is well settled that election covers the entire process from the issue of the notification under section 14 to the declaration of the result under section 66 of the Act
When a Poll that has already taken place has been cancelled and a fresh poll has been ordered the order therefor with the amended date is passed as an integral part of the electoral process
We are not concerned with the question whether the impugned order is right or wrong or invalid on any account
Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections
Although that is not always decisive the impugned order itself shows that it has been passed in the exercise of power under Article 324 1 and 334 section 153 of the Act
That is also the correct position
Such an order relating as it does to election within the width of the expression as interpreted by this Court cannot be questioned except by an election petition under the Act
What do the appellants seek in the writ application  Oneof their prayers is for declaration of the result on the basis of thePoll which has been cancelled
This is nothing short of seeking to establish the validity of a very important stage in the election process namely the poll which has taken place and which was countermanded by the impugned order
If the appellants succeed the result may if possible be declared on the basis of that poll or some other suitable orders may be passed
If they fail a fresh poll will take place and the election will be declared on the basis of the fresh poll
This is in effect a vital issue which relates to questioning of the election since the election will be complete only after the fresh poll on the basis of which the declaration of the result will be made
In other words there are no two elections as there is only one continuing process of election
If therefore during the process of election at an intermediate or final stage the entire poll has been wrongly cancelled and a fresh poll has been wrongly ordered that is a matter which may be agitated after declaration of the result on the basis of the fresh poll by questioning the election in the appropriate forum by means of 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 includ ing 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 able to grant all appropriate reliefs and that the dismissal of the writ petition will not prejudice the appellants
Indeed it has been brought to our notice that an election petition has been filed by the appellants ex abundanti cautela in the High Court of Punjab and Haryana challenging the election which has since been completed on the basis of a fresh poll ordered by the Election Commis sion
The High Court of Punjab and Haryana will therefore be free to decide that petition in accordance with law
It is submitted by Mr Rao that in Ponnuswami supra the question was of improper rejection of nomination paper which is clearly covered by section 1001c of the Act
Counsel submits  that 335 the only ground which can be said to be raised in the election petition in the present case is section 1001 d iv namely non compliance with the provisions of the Constitution or of the Representation of the People Act 1951 or of any rules or orders made under that Act
Ac cording to counsel there is no non compliance with Article 324 of the Constitution as the Election Commission has no power whatsoever to pass the impugned order under Article 324 of the Constitution
That according to him is not non compliance with the provisions of the Constitution within the meaning of section 1001div
We are unable to accept this submission for the reasons already given
We Election Commission has passed the order professedly under Article 324 and section 153 of the Act
We have already held that the order is within the scope and ambit of Article 324 of the Constitution
It therefore
necessarily follows that if there is any illegality intile exercise of the power under Article 324 or under any provision ofthe Act there is no reason why section 1001div should not be attracted to it
If exercise of a power is competent either underthe provisions of  the Constitution or under any other provision of law any infirmity in the exercise of that power is in truth and substance on account of noncompliance with the provisions of law since law demands of exercise of power by its repository as in a faithful trust in a proper
regular fair reasonable manner
See also Durga Shankar Mehta vs Thakur Raghueraj Singh and Others 1
The above being the legal position Article 329b rules out the maintainability of the writ application
Article 329b 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 329b of the Constitution and the High Court rightly dismissed it on that ground
In view of our conclusion that the High Court had no jurisdiction to entertain the writ application under Article 226 of the Constitution  it will not be correct for us in an appeal against the order of the High Court in that proceeding to enter into any other controversy on the merits either on law or on facts and to pronounce finally on the same
The pre eminent position conferred by the Constitution on 336 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 has the exclusive jurisdiction under section 80A of the Act to try the election petition
Moreover a statutory right to appeal to this Court has been provided under section 1 1 6A on any question whether of law or fact from every order made by the High Court in the dispute
So in view of the scheme of Part VI of the Act the Delhi High Court could not haveembarked upon an enquiry on any part of the merits of the dispute
Thus it could not have examined the question whether the impugnedorder was made by the Election Commission in breach of a rule of natural justice
That is a matter relating to the merits of the controversy and it is appropriately for the election court to try and decide it after recording any evidence that may be led at the trial
It may be that if we pronounce on the question of the applicability of the rule of natural justice the High Court will be relieved of its duty to that extent
But it has to be remembered that even for the purpose of deciding that question the parties may choose to produce evidence oral or documentary in the trial court
We therefore refrain from expressing any opinion in this appeal on the question of the violation of any rule of natural justice by the Election Commission in passing the impugned order
At the same time we would like to make it quite clear that any observation on a question of law or fact made in the impugned judgment of the Delhi High Court bearing on the trial of the election petition pending in the Punjab and Haryana High Court will stand vacatted and will not come in the way of that 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 desirabi lity of ordering a repoll 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 petition under section 80 of the Act for the trial of which an elaborate procedure has been laid down in the Act
Then as has been stated there is also a right of appeal under the scales in considering at the trial of the election petition whether there may not be sufficient justification to negative the existence of 337 any implied duty on the part of the Commission at that stage to hear any party before taking its decision to order or not to order a report
We do not therefore think it necessary or desirable to foreclose a controversy like this by any general observations and will leave any issue that may arise from it for trial and adjudication by the election court
Being not altogether certain of all the facts and circumstances that may be made available in the appropriate forum it may be a premature exercise by this Court even to lay down guidelines when there is no hide boand formula of rules of natural justice to operate in all cases and at all times when a decision has to be made
Justice and fair play have often to be harmonised with exigencies of situations in the light of accumulated totality of circumstances in a given case having regard to the question of prejudice not to the mere combatants in an electoral contest but to the real and larger issue of completion of free and fair election with rigorous promptitude
Not being adequately informed of all the facts and circumstances this Court will not make the task of the election court difficult and embarrassing by suggesting guidelines in a rather twilight zone
As we find no merit in this appeal it is dismissed but in the circumstances of the case there will be no order as to the costs in this Court
PB R Appeal dismissed


Summary:
Article 329b of the Constitution provides that notwithstanding anything in the Constitution 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 legislature
Section 1001div 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 candidate 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 respondent 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 Commissioner and requested him to declare the result
Eventually however the Chief Election Commissioner 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 taking all circumstances into account the Commission was satisfied that the poll had been vitiated to such an extent as to affect the result of the election
In exercise of the powers under article 324 of the Constitution it cancelled the poll already held and ordered a re poll in the entire constituency
In a petition under article 226 of the Constitution the appellant alleged 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 respondents in reply urged that the High Court had no Jurisdiction to entertain the writ petition in view of article 329b and that the Commission s action was well within its powers under article 324
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 article 324 does 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 that the right accrues to a candidate only when he is declared elected and lastly the decision of the Election Commission is only provisional and that it is he the election court which is the final authority on the subject
HELD The catch alljurisdiction under article 226 cannot consider the correctness legality or otherwiseof the direction for cancellation integrated with repoll
269 D 1a Article 329b 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 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 article 226 because of the non obstante clause in article 329b
If what is impugned is an election the ban operates provided the proceeding calls it in question or puts it m issue  not otherwise
289 E F cPart XV of the Constitution is a Code in itself providing the entire groundwork for enacting the appropriate laws and setting up suitable machine for the conduct of elections
Articles 327 and 328 take care of the set of 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 article 327 Be 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 article 329b 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 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 vs Raj Narain  504 505 referred to
dThe 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 article 329b 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 eNo litigative enterprise in the High Court or other court should be allowed to hold up the on going electoral process because the parliamentary representative for the constituency should be chosen promptly
Article 329 therefore covers electoral matters
294 F fThe plenary bar of article 329b rests on two principles  1 the peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal Proceedings challenging the 274 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 creatures of statutes and controlled by the Constitution
295 H 296  Durga Shankar Mehta 1955 1 SCR 267 referred to
gIf 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 election296 E F hA writ petition challenging the cancellation coupled with repoll amounts to calling in question a step in election  and is therefore barred by article 329b
296 G iKnowing 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 section 100 has been designedly drafted to embrace all conceivable infirmities which may be urged
To make the project fool proof section 1001div has 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 directed by the Election Commissioner but everything he does or directs in furtherance of the election not contrarywise
297 B C D jIt is perfectly permissible for the Election Court to decide the question as one falling under section 1001div
The Election Court has all the powers necessary to grant all or only any of the reliefs set out in section 98 and to direct the Commissioner to take such ancillary steps as will render complete justice to the appellant
319 C E kIt 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 B 2a Article 324 does not exalt the Election Commission into a law unto itself
The Article is wide enough to supplement the powers under the Act subject to the several conditions on its exercise
300 A B bThe Election Commissioner s functions are subject to the norms of fairness and he cannot act arbitrarily
The Constitution has made comprehensive provision in article 324 to take care of surprise situations
That power has to be exercised in keeping with the guidelines of the rule of law without stultifying the Presidential notification or existing legislation
It operates in areas left unoccupied by legislation and the words Superintendence direction and control as well as conduct of all elections are in the broadest terms299 A B C cIf imparting the right to be heard will paralyse the process the law will 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 injury 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 C dIt is well established that when a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally
Discretion vested in a high functionary may be reasonably trusted to be used properly not perversely
If it is misused certainly the Court has power to strike down the act
299 D E Virendra  and Harishankar 1955 1 1104 SCR referred to
eArticle 324 vests vast functions which may be powers or duties essentially administrative and marginally even judicative or legislative
_ 302 H 275 fThe dichotomy between administrative and quasi judicial functions vis a vis the doctrine of natural justice is presumably obsolescent after Kraipak which marks the water shed in the application of natural justice to administrative proceedings
The rules of natural justice are rooted in all legal sys tems and are not any new theology
They are manifested in the twin principles of nemo index 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 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 inquiry is held and the constitution of the tribunal or body of per sons 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 whether the observation of that rule was necessary for a just decision on the facts of that case
Further even if a power is given to a body without Specifying that rules of natural justice should be observed in exercising it the nature of the power would call for its observance
300 F G 301 B D 303 D Kraipak  In re HK an infant and Ridge vs Baldwin  referred to
gEven 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 full opportunity to the defendant to see the material against him
There might be exceptional cases where to decide a case exparte would be unfair and it would be the duty of the Tribunal to take appropriate steps to eliminate unfairness
Even so no doctrinaire approach is desirable but the court must be anxious to salvage the cardinal rule to the extent permissible in a given case
307 D E 3a Civil consequences cover infraction of not merely property or personal rights but of civil liberties material deprivations and non peciiniary damages
In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequence
The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within its gravitational orbit
A democratic right if denied inflicts civil consequences
Every Indian has a right to elect and he elected and this is a constitutional as distinguished from a common law right and is entitled to cognizance by courts subject to statutory regulation
C E bA vested 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
So natural justice cannot be stumped out on the score
In the region of public law locus standi and person aggrieved right and interest have a broader import
309 G H cIn the instant case the Election Commission claims that a hearing had
been given but the appellant retorts that all that he had was vacuous meeting where nothing was disclosed
But in law degrees of difference may at a substantial stage spell difference in kind or dimensions
309 H 310 A dThe case of Subhash Chander in which this Court held that it was not necessary to give an opportunity to the candidates for an examination as to why the whole examination should not be cancelled 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 acquired a very vital stake in the polling going on properly stand on a different footing from the electorate in general
The interest of the electorate is too remote and recondite too feeble and attenuate to be taken note of in a cancellation proceeding
What really marks the difference is the diffusion and dilution
The candidates in an election are really the spearheads the combatants
They have set themselves up as nominated candidates organised the campaign and galvanised the electorate for the polling and counting
Their interest and claim are not indifferent but immediate
They are the 5 1114SCI 77 276 parties in the electoral dispute
In this sense they stand on a better footing and cannot be deniedthe right to be heard
In Ghanshyamdas Gupta in which the examinationresult of three candidates was cancelled this Court imported principles ofnatural justice
This case may have a parallel in electoral situations
if the Election Commission cancelled the poll it was because it was satsfied that the procedure adopted had gone awry on a wholesale basis
Therefore it all depends on the circumstances and is incapable 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 Singhi 1971 1 SCR 791 Binapani   Ram Gopal   Subhash Chander Singh  field inapplicable
Ghanshyam Das Gupta 1962 Supp
3 SCR 36 followed
4a Whether the action of the Election Commission in ordering repoll beyond certain segments of the constituency where the ballot boxes were destroyed was 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 B cThe 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 alteram even in emergencies
Hearing need not be an elaborate ritual
In situations of quick despatch it may be minimal even formal
Fair hearing is a postulate of decision making although fair abridgement of that process is permissible
It can be fair without the rules of evidence or forms of trial
316 D F dThe silence of a statute has no exclusionary effect except where it flows from necessary implication
Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise this functional obligation must be read into it
316 F Observations aWhen a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape 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 bAn obiter binds none not even the author and obliteration of findings rendered in supererogation must allay the appellant s apprehensions
The High Court should have abstained from its generosity
284 C Per Goswami and Shinghal JJ
concurring 1 The appellants  argument that since article 3246 refers to functions and not powers there can be no question of the Election Commission exerrising any power under that Article is without force
The term functions includes powers as well as duties
It is incomprehensible that a person or body can discharge any functions without exercising powers
Powers and duties are integrated with functions
330 D E 2a It is well established that an express statutory grant of power or the imposition of a definite duty carrie with it by implication in the absence of a limitation authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty
That which is clearly implied is as much a part of a law as that which is expressed
331 E F 277 bIn a democratic set up power has to be exercised in accordance with law
Since the conduct of all elections is vested under article 3241 in the Election Commission the framers of the Constitution took care to leaving scope for exercise of residuary power by the Election Commission in the infinite variety of situations that may emerge from time to time
Yet every contingency could not be foreseen and provided for with precision
The Commission may be required to cope with some situation which may not be provided for in the enacted laws and rules
The Election Commission which is a high powered and independent body cannot exercise its functions or perform its duties unless it has an amplitude of powers
Where a law is absent the Commission is not to look to any 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 completed in a free and fair manner
Moreover the power has to be exercised with promptitude330 G H 331 A B C E G NP Ponnuswami vs Returning Officer Nanakkal Constituency and Others  followed
c Section 19A of the Act in terms refers to the functions not only under the Representation of 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 article 324 itself on its own right in an area not covered by the Acts and rules
332 A B dWhether 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 authority if it is there either under the Act or the rules or under article 3241
331 G 3a The contention that the Election Commission had no power to make the impugned order for a repoll in the entire constituency
is without substance
332 H b Both under s58 and under section 64A the poll that was taken on a particular polling station can be voided and a fresh poll can be ordered by the Commission
These sections cannot be said to be exhaustive
It cannot be said that 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 mention a polling station or a place fixed for the poll it may where necessary embrace multiple polling stations
332 G H cThe Election Commission is competent in an appropriate case to order repoll of an entire constituency
If it does that it will be an exercise of power within the ambit of its functions under article 324
Although in cxercise of powers under article 3241 the Election Commission cannot do some thing impinging upon the power of the President in making a notification under section 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 article 3241
J333 C E 4The writ petition is not maintainable
Since the election covers the entireprocess from the issue of the notification under section 14 to the declaration of theresult under s66 of the Act when a poll that has already taken place has been cancelled and a fresh poll has been ordered the order is passed as an integral part of the electoral process
The impugned order has been passed in exercise of the power under article 3241 and section 153 of the Act
Such an order cannot be questioned except by an election petition under the Act
333 G H 334 A 5a There is no foundation for a grievance that the appellants will be without any remedy if their writ application is dismissed
If during the process of election at an intermediate or final stage
the entire poll has been wrongly cancelled and a fresh poll has been wrongly ordered that is a matter which can be agitated after the declaration of the result on the basis of the 278 fresh poll by questioning the election in the appropriate forum
The appellants 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 includ ing the countermanding of the earlier poll
The 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
334 B F bThe Election Commission has passed the order professedly under article 324 and section 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 section 1001div 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 Mehra vs Thakur Raghuraj Singh and others 1955 1 SCR 267 referred to
cThe writ petition is barred under article 329 b of the Constitution and the High Court has rightly dismissed it on that ground
Both article 329b and section 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 writ 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 conse quential order to enable it to grant the necessary relief provided under the Act
335 D G 6It 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 has the exclusive jurisdiction under section 80A of the Act to try the election petition
335 H 363 A