IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31-03-2006 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA WRIT PETITION Nos.7720, 7736, 7782, 8032 & 8126 OF 2006 and WPMP.NOs.8489, 8503, 8594, 8595, 8939, 8940 and 8941 OF 2006 W.P.NO.7720 of 2006 Pon Paramaguru Director General of Police (Retd.) No.12, Balaji Avenue, Thirumalai Road, T.Nagar, Chennai 600 017. .. Petitioner Vs. 1. State of Tamil Nadu, Rep. by its Chief Secretary, Fort St. George, Chennai 600 009. 2. The Chief Election Commissioner, Election Commission of India, New Delhi. .. Respondents 3. A. Raja, S/o. Andimuthu, 2A, Motilal Nehru Marg, New Delhi. (Respondent No.3 impleaded as per order of Court dt.22.3.06 in WPMP.No.9041/06) .. Intervenor / Respondent W.P.NO.7736 of 2006 Walter I. Davaram S/o.T.N. Davaram, 61/14, Buckingam Terrace, Macnichol Road, Chetput, Chennai 600 031. .. Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. The Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi 110 001. 2. The State of Tamil Nadu, Rep. by its Chief Secretary to Government, Fort St. George, Chennai 600 009. 3. R. Nataraj, IPS Commissioner of Police, Greater Chennai City, Egmore, Chennai 600 008. .. Respondents 4. A. Raja, S/o. Andimuthu, 2A, Motilal Nehru Marg, New Delhi. 5. P. Rathinam, Advocate 183, II Floor, Thambu Chetty Street, Chennai 600 001. (Respondents 4 & 5 impleaded as per order of Court dt.22.3.06 in WPMP.Nos.8974 & 9020/06) .. Intervenors / Respondents W.P.NO.7782 of 2006 State of Tamil Nadu, Rep. by its Home Secretary, Secretariat, Fort St. George, Chennai 600 009. .. Petitioner Vs. 1. The Election Commission of India rep. by the Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 2. The Chief Electoral Officer, Public (Elections) Department, Secretariat, Chennai 600 009. .. Respondents 3. K. Nagaimugan S/o. Karuppaiah No.2, Alwar Thiru Nagar Annexe, Chennai 600 087. 4. A. Raja, S/o. Andimuthu, 2A, Motilal Nehru Marg, New Delhi. (Respondent No.3 impleaded as per order of Court dt.22.3.06 in WPMP.Nos.8828 & 8829/06) ..Intervenors / Respondents. W.P.NO.8032 of 2006 V.R. Lakshminarayanan, S/o.V.V. Rama Iyer, Director General of Police (Retired) U-91, 3rd Floor, 3rd Main Road, Anna Nagar, Chennai 600 040. .. Petitioner Vs. 1. The Election Commission of India rep. by the Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi. 2. The State of Tamil Nadu, Rep. by its Chief Secretary, Fort St. George, Chennai 600 009. 3. R. Nataraj, IPS Commissioner of Police, Greater Chennai, Egmore, Chennai 600 008. .. Respondents W.P.NO.8126 of 2006 A. Adaikalam HIG-982, Mogappair Erey Scheme, Mogappair, Chennai. .. Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Election Commission of India Nirvachan Sadan, Ashoka Road, New Delhi 110 001. 2. The State of Tamil Nadu, Rep. by its Chief Secretary to Govt., Fort St. George, Chennai 600 009. 3. R. Nataraj, IPS Commissioner of Police, Greater Chennai City, Egmore, Chennai 600 008. 4. A. Raja, Union Minister of Environment and Forest, New Delhi. .. Respondents W.P.NO.7720 of 2006 has been filed under Article 226 of the Constitution of India for the issuance of writ of mandamus forbearing the respondents from transferring R. Nataraj, the Commissioner of Police, Greater Chennai to a non-election related post in the guise of conducting a free and fair election, assuming and usurping powers. W.P.No.7736 of 2006 has been filed under Article 226 of the Constitution of India for the issuance of writ of mandamus for a direction restraining the respondents 1 and 2 from giving effect to the directions issued by the 1st respondent to transfer the 3rd respondent from the post of Commissioner of Police, Greater Chennai. W.P.NO.7782 of 2006 has been filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records pertaining to the directions of the Election Commission of India in its fax message D.O.No.PS/AK/2006 dated 14.3.2006, wherein the Election Commission of India had transferred the Commissioner of Police, Greater Chennai so as to quash the same. W.P.NO.8032 of 2006 has been filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records of the first respondent relating to its fax message D.O.No.PS/AK/2006 dated 14.3.2006 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.8126 of 2006 has been filed under Article 226 of the Constitution of India for the issuance of writ of mandamus directing the second respondent to implement the order of transfer of the 1st respondent relating to fax message D.O.No.PS/AK/2006 dated 14.3.2006 against the third respondent. For Petitioner in WP.7720/2006 : Mr.S.R. Rajagopal For Petitioner in WP.No.7736/2006 : Mr. Vijay Narayan Senior Counsel for Mrs. Narmadha Sampath For Petitioner in WP.No.8032/2006 : Mr.N. Jothi for Mr.L.P. Shanmugasundaram For Petitioner in WP.No.8126/2006 : Mr.V. Srikanth For Petitioner in WP.No.7782/2006 and : Mr.N.R. Chandran for the State Advocate General Assisted by Mr.D. Krishnakumar, Spl.G.P Mr.S. Venkatesh, Spl.G.P. Mr.E. Sampath Kumar, G.A., WP.No.7720/06: Respondent 1 : Mr.N.R.Chandran A.G. For Mr.Krishna Kumar Spl. GP., & Mr.E.Sampath Kumar, G.A. Respondent 2 : Mr.G.Rajagopal, S.C. For M/s.G.R.Associates. Respondent 3 : Mr.Shanthi Bhusan, S.C. For Mr.J.Ravindran. WP.No.7736/06: Respondent 1 : Mr.G.Rajagopalan S.C. For M/s.G.R.Associates. Respondent 2 : Mr.A.L.Somayaji Addl. A.G. Assisted by For S.Venkatesh Spl. GP, Mr.R.Vijayakumar, G.A. https://hcservices.ecourts.gov.in/hcservices/ Respondent 4 : Mr.Shanthi Bhushan S.C. For Mr.J.Ravindran. Respondent 5 : Mr.P.Rathinam, Advocate Party in person. WP.No.7782/06: Respondent Nos.1 and 2 : Mr.G.Rajagopalan, S.C. For M/s.G.R.Associates. Respondent No.3 : Mr.Elephant G.Rajendran Respondent No.4 : Mr.Shanthi Bhushan, S.C. For Mr.J.Ravindran. WP.No.8032/06: Respondent No.1 : Mr.G.Rajagopalan, SC for Mr.G.R.Associates. Respondent No.2 : Mr.N.R.Chandran AG for Mr.D.Krishakumar, Spl.G.P. And Mr.E.Sampath Kumar,G.A. WP.No.8126/2006: Respondent No.1 : Mr.G.Rajagopalan SC for M/s.G.R.Associates. Respondent No.2 : Mr.N.R.Chandran, A.G. For Mr.S.Venkatesh, Spl. GP. Respondent No.4 : Mr.R.Vidhuthalai S.C. For Mr.J.Ravindran. COMMON JUDGMENT P.K. MISRA, J The factual background as culled out from various writ petitions and the counter affidavit is as follows :- Mr.R. Nataraj has been functioning as the Commissioner of Police, Chennai, since 18.9.2004. It seems for publication in Chennai Chronicle – a supplement of the Newspaper Deccan Chroncile on 8.3.2006, which was being observed as International Women’s Day, R. Nataraj was contacted by a representative of such newspaper to give his opinion regarding an ideal woman. As per the newspaper report, R. Nataraj has stated : “An ideal woman is someone who manages both her personal and professional life well. In this respect, I think our chief minister J. Jayalalitha is the perfect example of the ideal woman. I think she is an icon and every woman should look up to https://hcservices.ecourts.gov.in/hcservices/ her.” Thereafter, publication of such comment in the newspaper appears to have been brought to the notice of the Election Commission. (It is claimed by Mr.A. Raja, a Minister in the Union Government, that it is he who brought it to the notice of the Commission, whereas according to the Commission, even before Mr.A. Raja brought it to the notice of the Commission, a copy of the Chennai Chronicle dated 8.3.2006 was received by the Commission on 13.3.2006). On 14.3.2006, the Deputy Election Commissioner wrote the following letter D.O.No.PS/AK/2006 dated 14.3.2006 to the Chief Secretary to the Government of Tamil Nadu :- “... The Commission has desired that Shri R. Nataraj, Commissioner of Police, Chennai may be transferred from his present post immediately. He may be given any post that does not entail election related duties. ...” Such letter dated 14.3.2006 was faxed to the Chief Secretary. Thereafter, the Chief Secretary of the Tamil Nadu Government wrote letter dated 14.3.2006, a copy whereof has been filed by the State Government as a typed set. The letter is as follows :- “... I have received your D.O. Letter dated 14.3.2006 indicating that Thiru R. Nataraj, I.P.S., Commissioner of Police, Greater Chennai may be transferred from his present post immediately and posted to any post that does not entail election related duties. Thiru R. Nataraj joined as Commissioner of Police, Greater Chennai only on 18.9.2004. The Commissioner of Police, Greater Chennai is a key position of tremendous public importance. The post of Commissioner of Police, Greater Chennai, with a population of over 75 lakhs is a difficult and sensitive assignment. Law and Order management in Greater Chennai takes number one priority given the myriad issues that come up on a daily basis. Adroit management is absolutely essential and only an experienced person capable of long hours of work with clear application of mind can handle this sensitive charge. It is well accepted that Thiru R. Nataraj has done outstanding work in impartially maintaining law and order in an admittedly difficult and complex charge. This is not to extol his virtues but the genuine impression all around is that as a senior Police Officer he has effectively maintained law and order in the City enabling Chennai to be ranked at the very top in efficient law and order management. As a regular recruit senior I.P.S. Officer of the 1975 Batch, he is very well regarded for his integrity and honesty. There is not even a whiff of a complaint against him on this score. This is an outstanding feature, which has instilled great confidence amidst the general public. This has in no small measure contributed significantly to the enhanced image of the Police Force at Chennai. As you are aware, the directions of the Election Commission https://hcservices.ecourts.gov.in/hcservices/ to change officers who have completed three years in the same Revenue District have meant that several officers have been moved and new officers are in the process of taking over. Suddenly shifting the Commissioner of Police at this juncture will disrupt the preparations being made to handle the elections. Without a proper leader, law and order management at the time of elections in Greater Chennai could be extremely problematic. While I am not completely aware of the background of this decision to shift him, it would seem that the remarks made by him and reported in the press are in response to a reporter telephonically asking for a comment on the occasion of International Women’s Day. It is not a speech made on any public platform. It is clearly not related to any outstanding public issue. What seems to have transpired was just an instant comment on a telephonic query. There seems to be no intention whatsoever to misuse his position. We have a serious problem in the efficient management of law and order in Greater Chennai during elections considering the surcharged nature of these elections. Greater Chennai definitely needs a seasoned officer who is fully familiar with the entire metropolitan area along with the officers and men to be able to efficiently and competently manage law and order in the context of the forthcoming elections. While not in any way attempting to differ with the directions of the Election Commission, I would like to submit my sincere assessment of the position, particularly in the context of the oncoming elections. Thiru R. Nataraj, is well recognized as a competent officer of integrity and shifting him at this stage does jeopardize our preparations for the smooth conduct of the elections. Taking all aspects into account, the balance of advantage would be to retain him at Greater Chennai as Commissioner of Police. This assessment may kindly be considered by the Election Commission of India.” 2. The reply to such communication was given by the Deputy Election Commissioner on behalf of the Election Commission on 16.3.2006 in the following words :- "... Kindly refer to your letter dated 14.3.2006 requesting the Commission to reconsider its decision on shifting of Shri R. Nataraj, Commissioner of Police, Greater Chennai. The Commission has gone through the contents of your letter and has decided not to change its earlier decision. In view, the State Government of Tamil Nadu is requested to transfer Shri R. Nataraj, Commissioner of Police, Greater Chennai to any post that does not entail election related duties with immediate effect and forward a panel of three officers by 5.00 p.m. tomorrow (17.03.2006) to enable the Commission select a suitable officer for the post of Commissioner of Police, Greater Chennai. ..." https://hcservices.ecourts.gov.in/hcservices/ 3. On 17.3.2006, three writ petitions were filed, namely, W.P.Nos.7720, 7736 and 7782 of 2006, first two by two former Directors General of Police and the third one by the State Government challenging the direction of the Commission regarding transfer of the Commissioner of Police, Chennai. On being mentioned before the Hon’ble the Chief Justice, the matters were placed for admission after Lunch Break on 17.3.2006. At that stage, the Election Commission had entered appearance through Mr.G. Rajagopalan, Senior Counsel. After the three writ petitions were entertained and the matter relating to grant of stay was argued, learned Senior Counsel appearing for the Election Commission made a statement that the Election Commission shall not insist upon compliance of the letter dated 16.3.2006 till 23.3.2006. The matters were directed to be taken up on 22.3.2006. By 22.3.2006, another writ petition, W.P.No.8032 of 2006, was filed by another retired Director General of Police seeking to quash the communication of the Election Commission dated 14.3.2006. Similarly, W.P.No.8126 of 2006 has been filed by a retired police official seeking for a direction regarding enforcement of such decision of the Election Commission. Intervention Petitions have been filed on behalf of three persons, including A. Raja, opposing the prayer made by the State Government and supporting the stand of the Election Commission. Such applicants have been added as intervenors. Learned counsels appearing for such intervenors made statement that their petitions can be considered as statement in opposition to the writ petitions filed on behalf of the State Government and the former Directors General of Police and there was no necessity for them to file any formal counter affidavit. Accordingly, hearing of the matter continued after recess on 22.3.2006, 23.3.2006, 24.3.2006 and ultimately the hearing was concluded on 27.3.2006. 4. The main contentions raised in the writ petitions filed by the State and the three former Director General of Police challenging the order of the Election Commission are as follows :- (1) The Election Commission has no jurisdiction to issue such direction to the State Government regarding transfer of any particular officer, more particularly when notification as contemplated under Section 15 of the Representation of the People Act, 1951 is yet to be issued. (2) The principles of natural justice have not been followed by the Election Commission and the order has been passed without seeking for any clarification either from the State Government or from the police officer concerned and the subsequent clarification sent by the Chief Secretary to the Government has been completely ignored. (3) The order has been passed by the Election Commission arbitrarily without any basis and without any justification. 5. The Election Commission in its counter in W.P.No.7782 of 2006 has indicated that the Election Commission has ample jurisdiction under Article 324 of the Constitution as well as Section 13CC of the Representation of the People Act, 1950 to pass the order, which has been passed with a view to ensure free and fair election. The Election https://hcservices.ecourts.gov.in/hcservices/ Commission has also raised the question of locus standi of the former Directors General of Police to file such Public Interest Litigation. 6. The three intervenors as well as the writ petitioner in W.P.No.8126 of 2006 have more or less supported such a stand of the Election Commission. 7. We have heard the learned Advocate General for the petitioner/State in W.P.No.7782 of 2006 and Mr.A.L. Somayaji, Additional Advocate General for the Respondent State in W.P.No.7736 of 2006, Mr. Vijay Narayan, Senior Counsel, for the petitioner in W.P.No.7736 of 2006, Mr.S.R. Rajagopal for the petitioner in W.P.No.7720 of 2006, Mr.N. Jothi for the petitioner in W.P.No.8032 of 2006 and Mr.R. Viduthalai, Senior Counsel, for Respondent No.4 in W.P.No.8126 of 2006, Mr. Santhi Bhusan, Senior Counsel for the intervenor, namely, A. Raja, Intervenor, Mr.P. Rathinam, who has appeared in person in W.P.No.7736 of 2006, Mr.G. Rajendran for the intervenor, namely Mr. Nagaimugan, and Mr.V. Srikanth in W.P.No.8126 of 2006, who has supported the Election Commission. 8. The first and foremost question which crops up for decision is the jurisdiction of the Election Commission to direct the State regarding transfer of any particular officer. The Election Commission in its counter has banked upon the the provisions contained in Article 324(1) and (6) as well as Section 13CC of the Representation of the People Act, 1950 to justify the direction issued. 9. Since much of the disputes relate to jurisdiction of the Election Commission and since the Election Commission is banking upon Article 324(1) and (6) of the Constitution, it is necessary to extract such provisions. “324. Superintendence, direction and control of elections to be vested in an Election Commission.- (1) 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 President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as Election Commission). ... (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commission such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause(1).” 10. It is contended by the learned counsels appearing for the petitioners, who are challenging the order passed by the Election Commission, that the jurisdiction of the Commission under Article 324(1) https://hcservices.ecourts.gov.in/hcservices/ cannot be considered to be unbridled and since specific provisions are available under Section 13CC of the Representation of the People Act, 1950 and Section 28A and Section 129 of the Representation of the People Act, 1951, the Election Commission cannot claim unrestricted right to transfer any person on the pretext of purity of election process and cannot impinge upon the authority of the State Government to post officers according to its own discretion. It is contended by them that when specific provisions are available, there is no question of falling back upon the residuary power under Article 324. 11. The scope of Article 324 and other allied provisions has been considered by the Supreme Court on various occasions. In AIR 1978 SC 851 (MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS), it was observed :- "38. 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 Art.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 extent he insists that if competent legislation is enacted as visualised in Art.327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi (AIR 1975 SC 2299): "In our opinion of some of the judges constituting the majority in Bharati's case (AIR 1973 SC 1461) (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 of SCR): (at p.2384 of AIR). And the supermacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art.324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system. 39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art.324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, not 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 https://hcservices.ecourts.gov.in/hcservices/ legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. (Emphasis supplied) The Court further held : "41. Our conclusion on this limb of the contention is that Article 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." The Court also held in (in para 77) thus : "77. We have been told that wherever 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." (emphasis supplied) In the concluding portion of paragraph 92, the Court inter alia observed thus (SCC p.452) "(1)(a) ... (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. (2)(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." (emphasis suplied) Goswami, J in his concurring decision observed (in para 113) thus : "Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving https://hcservices.ecourts.gov.in/hcservices/ 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 maybe required to cope with some situation which may not be provided for in the enacted laws and the rules." (emphasis supplied) 119. It is true that in exercise of powers under Article 324 (1) the Election Commission cannot do something impinging upon the power of the President in making the notification under Sec.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 Art.324(1) from which it can be held that where the law made under Art.327 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 re-poll of an entire constituency where necessary. It will be