MOHINDER SINGH GILL & ANR. v.

THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS.

December 2, 1977 [M. H. BEG, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER, p, K.

GOSWAMI AND P. N. SHINGHAL, JJ.] Constitution o1 India, 1950-Arts. 324 and 329(b)-Scope of --Counting' of votes in n1any segments of the constituency cornpleted-Before declaration of final result ballot papers and ballot boxes of some segments destroyed in mob _violence-le_ction_ Comn1ission ordered repoll of the entire constituency- Electzon Commission, if competent to order 11epoll of entire constituency.

Article 226-Election Commi'ssion's order for fresh poll in enti're consti

tuncy-lf could be challenged in a writ petition.

Representation of the People Act, 1950-Ss. 80 and 100(1)(d)(iv)- Scope of.

Natural justice-Issue of notice to affected parties and opportunity to hear before pas<sing an order under Art. 329(b)-If necessary-Notioe, if shoufd be given to the whole constituency.

Words and phrases-"Civil consequence"-Election "called in questioli' meaning of.

Article 329 (b) of the Constitution provides that notwithstanding anything in the Constitution no election to eiher House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.

Section lOO(l)(d)(iv) of the Representation of the People Act, 1951 provides that if the High Court is of the opinion that the result of the election so far as it concerns a returned candidate has been materially affected by any noncompliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candid.ate to be void.

The appellant and the third respondent were candidates for election in a Parliamentary constituency. The appellant alleged that when at the last hour of counting it appeared that he had all but won the election, at the instance of respondenjt no. 3 mob violence broke out and postal ballot papers! and ballot boxes from certain Assembly segments, while being brought for counting, were destroyed and the Returning officer was forced to postpone the declaration of the result. The Returning Officer reported the happening by wireless to the Chief Election Commissioner. An officer of the Election Commission who was deputed to be an observer at the counting stage gave a written report to the Commission in addition to an oral report about the incidents which marred the last stages of the counting. The appellant met the Chief Election Com.missioner and requested him to declare the result.

EventuaUy, however, the Chief Election Com.missioner issued a notification stating that the counting in the constituency was seriously disturbed by violence and that ballot papers of some of the assembly segments had been destroyed by violence, as a consequence of which it was not possible to complete the counting of votes in the constituency and declare the result with any degree of certainty. The notification further stated that takine all circumstances into account, the Commission was satisfied that th-~ poil had been vitiated to such an extent as to affect the result of the election. In exercise of the powers under Art. 324 of the Constitution it cancelled the poll already held and ordered a repoll in the entire constituency.

In a petition under Art. 226 of the Constitution the appellant alJeged that the action of the Chief Election Commissioner in ordering repoll in the whole constituency was arbitrary and violative of any vestige of fairness.

The re~· pendents in reply urged that the High Court had no iurisdiction to entertain the writ petition in view of Art. 329(b) and that the Commission's action was well within its powers under Art. 324.

M. S. GILL v. C.E.C. 273

The High Court dismissed the writ petition holding that it had~ no jurisdiction to entertain the writ petition. Yet on merits it held that Art. 324 goes not impose any limitation on the function contemplated under that article; that principles of natural justice were not specifically provided for in that article but were totally excluded while passing the impugned order and that even if the principles of natural justice were impliedly to be observed before passing the impugned order the appellant was heard not only before the issue of the notification but in any case after the notification.

In the repoll the appellant did not participate though his name appeared on the ballot and respondent no. 3 was declared elected.

On the question of application of principles of natural justice it was contended on behalf of the respondents that the tardy process of notice and hearing would thwart the conducting of elections with speed that unless civil consequences ensued, hearing was not necessary and th.at the right accrues to a candidate only when he is \k:clared elected and lastly the decision of the Election Co1nn1ission is only provisional and that it is he the election court which is the final authority on the subject.

Disn1issing the appeal (per Beg, CJ., Bhagwati & Krishna Iyer, JJ) I-IELD : The catch-all jurisdiction under Art. 226 caw.tnot consider the correctness, legality or otherwise of the direction for cancella.tion integrated with repo1l.

[269 DJ

J(a) Article 329(b) is a blanket ban on litigative challenge to electoral steps taken by the Election Commission for carrying forward the process of election to its culmination in the formal declaration of the result.

[322 DJ D

(b) The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. This exclusion of all other remedies includes constitutional remedies like Art. 226 because of the non-obstante clause in Art. 329(b). If what is impugned is an election the ban operates provided the proceeding "calls it in question'' or puts it in issue : not otherwise.

[289 E-F]

(c) Part XV of the Constitution is a Code in itself, providing the entire E groundwork for enacting the appropriate laws and setting up suitable machinery for the conduct of elections.

Articles 327 and 328 take care of the set ot laws and rules making provisions with respect to all matters relating to or in connection with elections. Election disputes are also to be provided for by laws made under Art. 327. The Representation of the People Act, 1951 is a self-contained enactment so far as elections are concerned.

Section 80 which speaks substantially the same language as Art. 329(b) provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part IV of the Act. The Act provides F for only one remedy and that remedy being by an election petition to be presented after the election is over, there is no remedy provided at any of the intermediate stages.

[292 C-D; F-G 293 B-C] Smt. Indira Gandhi v. Ra; Narain [1976] 2 SCR 347, 504-505 referred to. ( d) The compendious expression "election" commences from the initial notification and culminates in the declaration of the return of a candidate.

The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided, for in Art. 329(b) G and the Representation of the People Act, 1951 necessitates the reading of the Constitution and the Act together as an integral scheme. The reason for postponment of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed.

[294 D-E]

(e) No litigative enterprise in the High Court or other court should be allowed t? hold up the on:going electoral process because the parliamentary representa1tve for the constituency should be chosen promptly.

Article 329 therefore covers "electoral matters".

[294 F] H

(f) The plenary bar of Art. ~29(~) rests on two principles: (!) the

pereptory urgency of prmpt eg1neenng of the whole election process without mtermedrate mterruptrons by way of legal proceedings challenging the

steps and stages in between the commencement and the conclusion; and

(2) the provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other forms, the right and remedy being cre&tures of statutes and controlled by the Constitution.

[295 H, 296 A] Durga Shankar Mehta [1955] l SCR 267 referred to.

(g) If the regular poll for some reasons has failed to reach the goal of choosing by plurality the returned candidates and to achieve this object a fresh poll (not a new election) is needed, it may. still be a step in the election.

[296 E-F]

(h) A writ petition challenging -the cancellation coupled with repoll amounts to calling in question a step in 'election' and is, therefore, barred by Art. 329(b). [296 G]

(i) Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project fool-proof s. 100(1 )(d)(iv) bas been added to absolve everything left over. Section 100 is exhaustive of all grievances regarding an election.. What is banned is not anything whatsoever done or d'rected by the Election Commissioner but everything he does or directs in furtherance of the election, not contrarywise.

[297 B, C, DJ

(j) It is perfectly permissible for the Election Court to decide the question as one falling under s. l 00 ( l )( d )(iv). The Election Court bas all the powers necessary to grant all or only any of the reliefs set out in s. 98 and to direct the Commissioner to take such ancillary steps as will render complete justice to the appellant.

[319 C, EJ

(k) It is within the powers of the Election Court to direct a repoll of particular polling stations to be conducted by the specialised agency under the Election Commission and report the results and ballots to the Court.

Even a repoll of postal ballots can be ordered. In view of the wide ranging scope of implied powers of the Court, the appellant's claims are within the Courts powers to grant. [322 A-Bl 2(a) Article 324 does not exalt the Election Commission into a la'v unto itself. The Article is wide enough to supplement the powers under the Act subject to the several conditions on its exercise.

[300 A.-B1

(b) The Election Commissioner's functions are subject to the norms of fairness and he cannot act arbitrarily. The Constitution has made comprehensive prov:sion in Art. 324 to take care of surprise situations. That power has to be exercised in keeping with the guidelines of the rule of law without stultitying the Presidential notification or existing legislation.

It operates in areas left unoccup; ed by legislation and the words "Superintendence, direction and control'' as well as "conduct of all elections'' are in the broadest terms.

[299 A, B-<..1 ( c) If imparting the right to be heard will paralyse the process, the law wi11 exclude it.

In any case it is untenable heresy to lockjaw the victim or act behind his back by invoking urgency, unless the clearest case of public injurv flowing from the least delay is evident.

The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect other's rights or liabilities the more necessary is the need to hear.

[304 D, G-H. 305 B-CJ (d} It is well-established that when a high functionary like the Commiss; oner is vested with wide nowers, the law expects him to act fairly and lega11y.

Discretion vest-::!d in a high functionary may be reasonably trusted to be used pronerlv, not perverselv.

If it is misused certainly the Court has power to strike down the act.

[299 D-EJ

Virendra [1958] SCR 308 and Harishankar [1955] l 1104 SCR referred to. ( e) Article 324 vests vas1 functions which may be powers or duties, essentially admieistrative and marginally even judicative or legislative.

[302 H]

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M. S. GILL V. C.E.C. 275

(f) The dichct0r.1y between administrative and quasi-judicial functions A vis a vis the dC'Ctri.:11 .. of natural justice is presumably obsolescent after Kraipak which marks the water-s!ied in the application of natural justice to ad.minis- trative proceedings. The rules of natural justice are rooted in all legal systems, and are not any "new theology". Tuey are manifested in tho twin principles .of nemo judex in sua causa and audi alteram partem. It has been pointed out that the aim of natural justice is to secure justice, or,_ to put it negatively to prevent miscarriage of justice. These rights can operate only in areas not covered by any law validly made; they do not supplant the law of the land but supplement it. The rules of natural justice are not embodied B rules.

Wbatparticular rule of natural justice should apply to a given case. must depend to a great" extent on the facts and circumstances of that case. theframework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice has been contravened the court has to decide wheth'!r the observation of that rule was necessary for a just decision on tP.e facts of that case. Further, .even if a power is given to a body without specifying that rules of natural justice C should be observed in exercising it. the nature of the power would call for_ its observance. [300 F-0, 301 B-D, 303-Dl

Kraipak (19701 I SCR 457, In re: H.K. (an infanJ) [19671 2 Q.B. 617 and Ridge v. Baldwin [19641 AC 40 referred to. _

(g) Even where the decision has to be reached by a y-aCting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material agaiinst him. There might be exceptional cases where to decide a case exparte would be unfair and it D would be the. duty of th6-Tribunal to take appropriate steps to eliminate unfairness.. , Evb so no doctrinaire approach is desirable but the court must bo

anxious to salvage the cardinal rule to the extent permissible in a given cas~.

 [307 D, El

3(a) Civl consequences cover infraction of not mer-ely property or personal rights. but of civil liberties, material deprivations and non-pecuniarydamages. - In its comprehensive connotation, everything that affects a citizen in his civil life inftlcts a civil consequence. The interest of a candidate at an election to E Parliament regulated by the Constitution and the laws comes within its gravitational orbit.

A democratic right, if denied inflicts civil consequences.

Evry Indian has a right to elect and he elected and this is a constitutional as distinguished from a common law rig-ht. and is entitled to cognizance by courts subject to statutory regulation. [308 F, 309 C, El ~~ ·· '(b) A veted interest in the prescribed . process is a processual right, actionable if breached. The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice.

F .

So natural justice cannot be stumped out on the score. In the region of public law locus standi and penon aggrieved, right a.nd interest ha\'e a broader import.

[309 G, HJ

(c) rn the instant 'case the Election Commission claims that a hearing had been given but the appellant re'8orts that all that he had w<1s vacuou, meeting v; here nothing v; as disclosed. But in law degrees of difference may at a, substantial stage spell difference in kind or dimensions. [309 IL. 310 A]

(d) The case of Subha.sh Chander in which this Court held that it was G not necessary to give an opportunity to the candidates for an examination as . to why the whole examination should not be cance11ed because the examination - was vitiated by adoption of unfair means on a mass scale. Butthe ratio of that decision has no application to this case. The candidates in an election who have acqu!red a very vital stake in the polling going on praperly stand on a different f<X>ting from the electorate in general. The interest of the electorate i'i too remote and recondite. too feeble and attenuate to be taken

not~ of in. a cancellation proceeding. What really marks the difference is the diffusion and dilution. The candidates in an election are really the spearheads, H the combatants. They have set themselves up as nominated candidates organid the campaign and ga]vanised the e-Jectorate for the pol1ing and countin~.

Their interest and claim are not indifferent but immediate. They are the

5-'-lll4SCI 77

parties in the electoral dispute. In this sense they stand on a better footing and cannot be denied the right to be heard. In Ghanshyamdas Gupta in which the examination result of three candidates was cancelled this Court imported principles of natural justice. This case may have a parallel in electoral situations.

If the Election Commission cancelled the poll it was because it was sat stied that the procedure adopted had gone awry on a wholesale basis.

Therefore, it all dependis on the circumstances and is incaµable of generalisation.

In a situation like the present it is a far cry from natural justice to argue that the whole constituency must be given a hearing:.

[310 F, H, 311 G-H, 312 A, D, E,] Col. Singh [1971] 1 SCR 791, Binapanl [1967] 2 SCR 625, Ram Copa/ [19701 1 SCR 472; Subhas!i Chander Singh j 19701 3 SCR 963 held inappltcable.

Gl1a1u!iya111 Das Gupta [1962] Supp. 3 SCR 36 followed. 4(a) Whether the action of the Election Commission in ordering rePoll beyond certain segment~ of the constituency where the ballot boxes were destroyed wao; really necessary or not is for the Election Court to assess when judging whether the impugned order was arbitrary, whimsical or was arrived at by extraneous considerations.

[316 H, 317 A-B]

(b) Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing. If two views are possible, the Court cannot interpose its view. If no view is possible the Court must strike down.

[317 BJ

(c) The philosophy behind natural justice is participatory justice in the process of democratic rule of law. In the vital area of election where people's faith in the democratic process is hypersensitive it is realism to keep alive audi alteran1 even in emergencies. Hearing need not be an elaborate ritual.

Jn situations of quick despatch, it may b~ minimal, even formal.

Fair hearing is a postulate of decision making, although fair abridgement of that process is ncrmissible. It can be fair without the rules of evidence or forms of trial.

[316 D-F] ( d) The silence of a stah1te has no exclusionary effect except where it flows fron1 '!ecesary intplication, Article 324 vest<; a wide power ~'•nd where some direct consequence on candidates emanates from its exercise this functional obligation must be read into it. [316 Fl Obsenations

(a) When a statutory functionary makes an order based on cet1ain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shaoe of affidavit or otherwise. Otherwise. an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out.

[283 B-C]

(b) An obiter binds none, not even the author and obliteration of findings rendered in supererogation must allay the appe1Iant's apprehensions. The High Court should have abstained from its generosity.

[284 C]

(er Goswami and Shinghal, JJ. concurring)

(1) The appellants' argument that since Art. 324(6) refers to "functions" and not "powers", there can be no question of the Election Commision exercising any power under that Article, is without force.

The term "functions" includes pov:ers as well a3 duties.

It is incomprehensible that a person 0r hody can discharge any functions without exercising pO\\'ers.

Powers and duties are integrated with functions.

[330 D-E]

2(a) It is well-established that an express statutory grant of power er the Jmnosition of a definite dutv carries with it by imolication, in the absence of ; i limitation. authority to employ all the means that are usually emuloyed and that ar" nece<;.:; nrv to the exercise of the nower nr the oerformanr, e of the Outv.

That which is c1ear1y implied is as much a part of a law as that vlhich is expressed.

[331 E-FJ

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M. S. GILL V. C.E.C. 277

(b) In a democratic set up power has to be exercised in accordance with A 'law. Since the conduct of all elections is vested under Art. 324(1) in the _Election Con1n1ission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Election Commission, in the intinite variety of situations that may emerge from time to time.

Yet, every contingency could not b~ foreseen and provided for with precision. The . Commission may be required to cope with some situation, which may not be

providei:I for in the enacted laws and rules.

The Election Commission, which ls a high-powered and independent body, cannot exercise its functions or per- B torm its d.uties unless it has an amplitude of powers. Where a law is abserit,

the Commission is not to look to ny external authority for the grant of powers to deal with the situation but must exercise its power independently and see that the election process is oompleted in a free and fair manner. Moreover, the power has to be exercised with promptitude.

(330 G, H, 331 A-B, C-E, G] N. P. Ponnuswan1i v. Returning Officer, Nanakkal Constituency and Others, [1952] SCR 218 followed.

(c) Section 19A of the Act, in terms, refers to the functions not only under the Representation cf the People Act, 1950 and Representation of the People Act, 1951 or the rules made thereunder, but also under the Constitution. Apart from the several functions envisaged by the two Acts and the rules, the Commission is entitled to exercise certain powers under Art. 324

itelf on its own right in an area not covered by the Acts and rules. D32 A-Bl

(d) Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in an authoritvif it is there either under the Act or 1he rules or under Art. 324(1). (331 Gl 3 (a) The contention that the Election Commission had no oower to make the impugned order for a repoll in the entire constituency, is without substance.

[332 HJ

(b) Both under s. 58 and under s. 64A, the poll that was taken on a particular oolling station can be voided and a fresh poll can be ordered by

the Commission. These sections cannot be said to be exhaustive.

It cannot E be said thJ.t they rule out the making of an order to deal with a similar situation if it arises in several polling stations or sometimes as a general feature in a substantially large area. Although these two sections mentiori "a polling station" or "a place fixed for the po11" it may, where necessfl.TY embrace multiple polling stations.

(332 G-H]

(c) The Election Commission is competent, in an appropriate case, to order repoll of an entire constituency. If it does that 4 will be an exercise of power within the ambit of its functions under Art. 324.

Although in exercise of powers under Art. 324(1) the Election Commission cannot do something impinging upon the power of the President in making a notification under s. 14 of the Act, after the notification has been issued by the President, the entire electoral process is in the charge of the Commission. The Commission is exclusively responsible for the conduct of the election without -reference to any outside agency.

There are no limitations under Art. 324 ( 1).

(333 C-EJ

4. The writ petition is not maintainable. Since the election covers the , entire process from the issue of the notification under s. 14 to the declaration

of the result under s. 66 of the Act. when a poll that has :ilready taken place has been cancelied and a fresh poll has been ordered, the order is passed as an integral part of the electoral process. The imougned order ha.c1 been nassed in exercise of the pow-er under Art. 324(1) and s. 153 of the Act. such an order cannot be questioned except by an_ election petition under the Act.

[333 G'H, 334 A] 5(a) There is no foundation for a grievance that the anpellants will be without any remedv. if their writ aopti.cation is dismissed. If during the urocess of election at an intermediate or final stage~ the entire polJ has heen wrongly c:incelled and a fresh polJ h?lil been wrO'l1gly orrlered, that is a n11tter which can be agitated after the declaration of the result on the. basis of the

A fresh poll, by questioning the election in the appropriate forum. _ The appel~ lants. will not be without a remetl, y to question every step in the electoral pr<>-' cess and every order that has been passed in the process of the election inch.1~ ing the counter111a~1ding of the earlier poll. The Court will be able to entertatn their objection v:ith regard to the order of the Election Commission countermanding the earlier poll and the whole matter will be at large.

[334 B-F]

(b) The Election Com.mission has passed the order professedly under Art. 324 and s. 153 of the Act.. If there is any illegality in the exercise of the power under this Article or under any provision of the Act, there is no reason why s. lOO(l)(d)(iv) should not be attracted. .If exercise of power is competent either under the provisions of the Constitution or under any other provision of law, any infirmity in the exercise of that power is on account of noncompliance with the provisions of law, since law demands exercise of power by its repository in a proper, regular, fair and reasonable manner.

[335 B-D]

Durga Shankar Mehta v. Thakur Raghurai Singh and othus, [1955] I SCR 267 referred to.

(c) The writ petition is barred under Art. 329(b) of the Constitution and the High Court has rightly dismissed it on that ground.

Both Art. 3 29 (b) and s. 80 of the Act provide that no election shall be called in question except by an election petition.

All reliefs claimed by the appellant in the \\Tit petition can be claimed in the election petition and the High Court is competent_ to give all appropriate reliefs to do complete justice between the parties. It will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act.

[335 D-GJ

6. It will not be correct for this Court, in this appeal, to pronounce its judgment finally on merits either on law or on facts. The pre-eminent position conferred by the Constitution on this Court under Article 141 of the Constitution does not envisage that this Court should lay down the law, in an appeal like this, on any matter which is required to be decided by the election court on a full trial of the election petition, without the benefit of the opinion of the Punjab and Haryana High Court which hac; the exclusive E jurisdiction under s. SOA of the Act to try the election petition. [335 H, 36J Aj

CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1297 of 1977. ~

Appeal by Special Leave from the Judgment and Order dated 25th of April 1977 of the Delhi High Court in Civil Writ Petition No. 245 of 1977.

P. P. Rao, A. K. Ganguli and Ashwani Kumar for the appellant.

Soli !. Sorabjee, Additional Solicitor General, E. C.

Agarwala, B. N. Kripal and Girish Chandra for Respondent No. 1.

M. N. Phadke, S. S. Bindra, Hardev Singh & R. S. Sodhi for Respondent No. 3.

The following Judgments of the Court were delivered by KRISHNA IYER, J.-What troubles us in this. appeal, coming before a Bench of 5 Judges on a reference under Article 145 ( 3) of the Constitution, is not the profusion of controversial facts nor the thorny bunch of lesser law, but the possible confusion about a few constitutional fundamentals, finer administrative normae and jurisdictional limitations bearing upon elections. What are those fundamentals and limitations? We will state them, after mentioning briefly what the writ petition, from which this appeal, by special leave, has arisen, is. about.

.....

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The basics

Every significant case has an unwritten legend and indelible lesson.

This appeal is no exception, whatever its formal result. The message, .as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :

"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."

11 we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the Jaw is above you'.

The moral may be stated with telling terseness in the words of William Pitt : 'Where laws end, tyranny begins'.

Embracing both these mandates and emphasizing their combined effect is the elemental law and politics ol Power best expressed by Benjamin Dizreeli :

"I repeat .... that all power is a trust-that we are accountable for its exerciser-that, from the peaple and for the people, all springs, and all must exist."

(Vivien Grey, BK. VI. Ch. 7)_

Aside from these is yet another, bearings on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge-made juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government--crystallised clearly in our jurisprudence by a catena of cases here and elsewhere.

The conspectus of facts

The historic elections to Parliament, recently held across the 'country, included a constituency in Punjab called 13-Ferozepore Parliamentary constituency. It consisted of nine assembly segments and the polling took place on March 16, 1977. According to the calendar notified by the Election Commission, the counting took place in respect of five assembly segments on March 20, 1977 and the, remaining four on the next day.

The appellant and the third respondent were the principal contestants. It is stated by the appellant that when counting in all the assembly segments was cpleted 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

and the returns duly reach tht'l Ferozepore headquarters from the various segment headquarters.

The poll proceeded as ordained, almost to the very last stages, but the completion of the counting at the constituency headquarters in Ferozepore was aborted at the final hour as the postal ballots were being counted-thanks to mob violence allegedly mobilised at the instance of the third respondent. The appellant's version is that he had all but won on the total count by a margin of nearly 2000 votes when the panicked opposite party havoced and halted the consummation by muscle tactics.

The postal ballot papers were destroyed.

The ballot boxes from the Fazilka segment were als<>· done away with en route, and the returning officer was terrified into postponing the declaration of the result.

On account of an earlier complaint that the returning officer was a relation of the appellant, the Ele,;.tion Commission (hereinafter referred to as Commission) had deputed an officer of the Commission-Shri IKK Menon-as observer of the poll process in the constituency.

He was present as the rereturning officer who under compulsion had postponed the concluding 3 p.m. onwards.

Thus the returning officer had the company of the observer with him during the crucial stages and controversial eruptions in the afternoon of March 21.

Shortly after sunset, presumably, the returning officer who under compulsion had postponed the concluding part of the election, reported the happenings by wireless massage to the Election Commission.

The observer also reached Delhi and gave a written account and perhaps an oral narrati<>n of the untoward events which marred what would otherwise have been a smooth finish t<> the election.

Disturbed by the disruption of the declaratory part of the election, the appellant, along with a former Minister of the State, met the Chief Election C<>mmissioner (i.e. the Commission) at about

10.30 A.M. on March 22nd, with the request that be should direct the returning officer to declare the result of the election.

Later in the day, the Commission issued an order which has been characterised by the appellant as a law-less and precedentless cancellation of the whole poll, acting by hasty hunch and without rational appraisal of facts.

By the 22nd of March, when the Election Commission made the impugned order, the bulk of the electoral results in the country had beamed in.

The gravamen of the grievance of the appellant is that while he had, in all probability, won the poll, he has been deprived of this valuable and hard-won victory by the arbitrary action of the Commission going contrarv to fairplay and in negati<>n of the basic canons of natural justice.

Of course, the Commission did not stop with the cancellation but followed it up a few days later with a direction to hold a fresh poll for the whole constituency, involving all the nine segments, although there were no complaints about the polling in any of the constituencies and the ballot papers of eight constituencies were available intact with the returning officer and only Fazilka segment ballot papers were destroyed or demanded on the way, (pins the postal ballots). It must als<> be mentioned here that a demand was made, according to the version of the third respondent, for recount in one segment whkh was,

/ ,.. ..

' •

unreasonably, turned down.

The observer, in his report to the Election Commission, also menticmed that in two polling stations divergent practices were adopted in regard to testing valid and invalid votes.

To be more pracise, Shri IKK Menon mentioned in his report that at polling station no. 8, the presiding officer's seal on the tag as well as the paper seal of one box was broken. But the ballot papers contained in that box were below 300 and would not have affected the result in the normal course.

In another case in Jalalabad assembly segment, the assistant returning officer had rejected a number of ballot papers of a polling station , on the score that they were 110t signed by the presiding officer. In yet another case it was reported that the ballot papers were neither signed nor stamped but were accepted by the assistant returning officer as valid, although the factum was not varified by Shri Menon with the assistant returning officer.

Shri Menon, in his report, seems to have broadly authenticated the story of the mob creating a tense situation leading to the military being summoned.

According to him only the ballot papers of Fazilka assembly segment were destroyed, not of the other segments.

Even regarding Fazilka, the result-sheet had arrived. So far as Zira assembly segment was concerned, some documents (not the ballot papers) had been snatched away by hooligans.

The observer had asked the returning officer to send a detailed report over and above the wireless message.

That report, dated March 21, reached the Commission on March 23, but, without waiting for the reportwe need not probe the reasons for the hurry-the Commission issued the order cancelling the poll. The Chief Election Commissioner has filed a laconic affidavit leaving to the Secretary of the Commission to go into the details of the facts, although the Chief Election Commissioner must himself have had them within his personal ken. This aspect also need not be examined by us and indeed cannot be, for reasons which we will presently set out.

Be that as it may, the Chief Election Commissioner admitted in his affidavit that the appellant met him in his office on the morning of March 22, 1977 with the request that the returning officer be directed to declare the result.

He agreed to consider and told him him off, and eventually passed an order as mentioned above.

The then Chief Election Commissioner has mentioned in his affidavit that the observer Shri Menon had apprised him of "the various incidents and developments regarding the counting of votes in the constituency" and . also had submitted a written report. He has also admitted the receipt of the wireless message of the returning officer. He concludes his affidavits 'that after taking all these circumstances and information inciuding the oral representation of the 1st petitioner into account on '.!2nd March, 1977 . itself I passed the order cancelling the poll in the said Parliamentary constituency.

In my view this was the only proper course to adopt in the circumstances of the case and with a view to ensuring fair and free elections, partkularly when even a recount had been rendered impossible by reason of the destruction of ballot Papers.' The order of the Election Commission, resulting in the demolition of t11e poll already held, may be read at this stage.

"ELECTION COMMISSION OF INDIA

New Delhi Dated 22 March, 1977 Chaitra 1, 1899 (SAKA)

NOTIFICATION

S.0.-Whereas the Elect; on Commission has received reports from the Returning Officer of 13-Ferozepore Parliamentary Constituency that the counting on 21 March, 1977 was seriously disturbed by violence; that the hallo• papers of some of the assembly segments of the Parliamentary constituency have been destroyed by violence; that as a consequence it is not possible to complete the counting of the votes in the constituency and the declaration of the result cannot be made with any degree of certainty;

And whereas the Comm'ssion is satisfied that taking all circumstances into account, the poll in the constituency has been vitiated to such an extent as to effect the result of the election;

Now, therefore, the Commission, in exercise of the powers vested in it under Article 324 of the Constitution, Section 153 of the Representation of the People Act, 1951 and all other powers enabling it so to do, cancels the poll already taken in the constituency and extends the time for the completion of the election up to 30 April, 1977 by amending its notification No. 464/77, dated 25 February, 1977 in respect of the. above election as follows :-

In clause (d) of item (i) of the said notification relating to the completion of election- ( a) in the existing item (i). 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 "13- Ferozepur Parliamentary constitnency in the State of Punjab." [464/77] By order Sd/- A. N. Sen, Secretary

The Commission declined to reconsider his decision when the appellant pleaded for it.

Shocked by the liquidation of the entire poll, the latter moved the High Court under Article 226 and sought to void the order as without jurisdiction and otherwise arbitrary and violative of any vestige of fairness.

He was met by the objection, successfully urged by the respondents. I and 3, that the High Court

, 4

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had no jurisdict\on in view of Article '329 (b) of the Constitution and the Commission had acted within its wide power under Article 324 and fairly.

Holding that it had no jurisdiction to entertain the writ petition, the High Court never-the-less proceeded to enter verdicts on the 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 Jess than half of the previous poll. Of course, if the Commission's order for re-poll fails in Jaw, 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 Chiet 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-Ferozeoore 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 (').

"Public orders, publicly made, in exercise of a statutory F authority cannot be construed in the light of explanations subsequently given by theofficer making the order of what he meant, or of what was in his 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 iii G the order itself." -Orders are not like old wine becoming better as they grow older :

A Caveat.

We mnst, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329 (b) of the Constitution-we do not pro- H pose to enquire into or pronounce upon the factual complex or the

(1) A.I.T. 1952 S.C. 16.

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 factual 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 Article 329(b). We shonld not, except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition.

Indeed, we 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-contradicting 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 first bnt since the contentions of the parties on submission N@. 1 are inter-mixed with the interpretation of Article 329(b) 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 R.P. 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 supererol(ation 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 nothmg projected in this iudgrnent is intended to be an expression of our opinion, even indirectly. The facts have been set out only to serve as a peg to hapg three primary constitutional issues which we will formulate a little later.

Operation Election

Before we proceed further, we had better have a full )!!impse of the constitutional scheme of elections in our system and the legislative follow-up regulatinl! the process of election. Shri Justice Mathew in f!ldira Nehru Gandhi(') summarised skeletal fashion, this scheme

(I) [197612 S.C.R. 347

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following the pattern adopted by Fazal Ali, J. in Ponnuswami. 1952 SCR 218. He explained :

"The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and state legislatures by the method ot 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

dections; 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 secpnd and article 329 with the third requisite (see N. P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors. 1952 SCR 218, 229). Article 329(b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by law, prescribe. A law relating to election should contain the requisite qualifications for candidates, the 111ethod of voting, defu1ition 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 ·.hat 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." (Smt. Indira Gandhi v. Raj Narain [1976] 2 SCR 347, 504-505) .

. A short <lescription of the legislative project in some more detail F 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 G 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 ancl 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 H People Act, 1950 (for short, the 1950 Act) and the Representation of the People Act. 1951 (for short, the Act), Rules framed thereunder, instructions issued and exercises prescribed, constitute the package of

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 involving a plethora of details and variety of activities, and starts off with the notification of the time table for the several stages of the election (Section 30). The assembly line operations then begin. An administrati\'e 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, commencin l' 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 takea care of by several provisions of the Act.

The wide canvas so spread need not engage us sCnsitively, 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 re-poll, 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 rcpoll systematically and stagewise arranged in the Act. It is not the case of either side that a tctal 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 throuh 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

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viewed as one whole picture, must be heard as an orchestrated piece A 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 /is 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 /is between private parties. The entire electorate is vicariously, not inertly, before the court. (See 1959 SCR 611, 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 courmon 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 J.A. Jolowicz in 'Public Interest Parties and the Active Role of the Judge in Civil Litigation' (ss. p. 276).

Therefore, it is essential that courts, adjudicating upon election controversies. must play a verily active role, conscious all the time that every decision rendered by the Judge transcends private rights and defends the ccnstituency 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, un- E influenced 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 responsi- F bility her to call to order lawless behaviour. Forensic non-action inay 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 G questions :

. 1. Is_ Art. 329 (b) :: blanket ban on all manner of ques- !Ions which may have rmpact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer ? Is Art. 226 als0

covered by this embargo and, if so, is s. 100 broad enough to H accommodate .every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an

election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief?

2. Can the Election Commission. clothed v.ith 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 resdt has been made, and direct a fresh poll without reference to the guidelines under ss. 58 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenarv 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 vitiatin~ a free and fair election and warrantin!' the stoppage of declaration of the result and directions of a fresh poll not merely of particular polling stations but of the total constituency ?

3. Assuming a constitutionally vested capacity under Art. 324 to direct re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first oocasion? 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 nrinciole 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 l<' 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 " princinled-pra1D11atic insight in resolvin~. with iural tools and techniques, 'the various crises of human affairs' as they reach the for:::nsic stage and seek dispute-resolution in terms of the rule of law.

Justice Cardozo felicitously set the prspective :

"The groat genera:ities of the Constitution have a content and significance that vary from age 'o 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 nrinciplc of the prescriptions of law, but not ignored the historic •ovolution of the law itself or how it W>1s connected in its changing moods with social requirements of a pmicular 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 adent the law and dvelon its latent capabilities if novel situations, as here, are encountered.

That is why in the reasoning we have adopted and the

perspective we have projected, not literal nor J.exical but libera: 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 architect-thinking of the structure as a who:e building for society a system of law which is strong, durable and just. It is on his wmk that civilised society itself depends."

The invulnerable barrier of Art. 329 (b)

Right at the forefront stands in the way of the appellant's progress the broad-spectrum ban of Article 329 (b) 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 Art. 226 ? That, in a sense, is the key question that governs the fate of this appeal.

Shri P. P. Rao for th' appellant contended that, however, wide Art. 329 (b) may be, it does not debar proceedings challenging, not the steps promoting election but dismantling it, taken by the Com_mission without the backing of legality.

He also urged that his client, who had been .nearly successfiil in the poll and had been deprived of it by an illegal cancellation by the Conunission, would be left in the cold without any remedy since the challenge to cancellation of tl1e completed poll in the entire constituency was not covered by s. 100 of the Act.

Many subsidiary pleas also were put forward but we will focus on the two inter-relaTed submissions bearing on Art. 329(b) ands. 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 accommoflate, in expression

1non-com- pliance', every excess, transgression, breach or omission.

And the spen of the ban under Art. 329(b) is measured by the sweep of s. 100 of th>o Act.

We have to proceed houristically now. Article 329 (b) reads : Notwithstandi, ng anything in this Constitution :

"(b) no election to either House of Parliament or to the House or either House of th•e 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 nrovided for by or under any law made by the appropriate Legislature."

Let us break down the nrohibitory provision into its components. The sole remedy for an agwieved narty. if he wants to challene any elec- 'tion, is an election petition.

And this exclusion of all other remedies

includes constitutional remedies like Art. 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 s. lOO(l)(d)(ivJ of the Act integrate into the scheme ? Let us read s. 100 here :

"Subject to the provisions of sub-section (2) if the High Court is of opinionx x x x ( d) that the result of the election, in so far as 1t concerns a returned candidate, has been materially affected- C x 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., s. 98 also may be extracted at this D stag; e :-

"At the conclmion 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 ( c) 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 s. 100 in the setting of Art. 329(b). 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 valaes 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 Oil' the total process constitutes 'election', not merely the conclusion or culmination.

Can the cancellation of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, non-step or anti-step setting at nought the process a11d, therefore, not a step towards the goal and hence liberated from the coils of Art. 329 (b) ?

And, if this act or step were to be shielded by the constitutional procvision, what is an aggiieved party to do? This takes us to the enquiry about the ambit of s. 100 of the Act and the object of Art. 329(b} read with Art. 324.

Such is the outline of the complex issue projected before us.

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"The electibn philosophy and the principle in Po1u1us-,, van'li A

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 B every term for a renewal of confidence.

So we have adult franchise .and general eltions as constitutional compulsions. 'The right of election is the very essence of the constitution' (Junius). It needs little argument to bold that the heart of the Parliamntary 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 Art. 329 (b) . Its ratio has been consistently followed by this Court in several rulings through Durga Sfwnko.r Mehta(') and Hari Vishnu Kamath and Khare(') down to Indira Gandhi('). The factual setting in that case may tlirow somo 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 l1ave 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 Art. 329 (b) and this court in appeal, affirmed that holding.

Fazal Ali, J. virtually spoke for the Court and explained the principle underlying Art. 329(b). The ambit and spirit of the bar impo_sed 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 stae 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 hold-ups. He posed the

isue 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 proceedirigs, one while they are oing on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary

(I) [1955] I S.C.R. 267.

(2) [1955] 1 S.C.R. 1104.

(3) (1976] 2 S.C.R. 347. 6-l l 14SCI/77

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 bfore a special tribunal and should not 'Je, brought up at an intermediate stage before any court. It seems to me that under the election law, th!! only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question.

Article 329(b) was, apparently enacted to describe the manner in which enc.I 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, thre 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 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 1n 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 elections.

The scheme of the A_ct 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 practices which may affect the electious, and electoral offences.

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 'o look at the Act and the rules made thereunder.

The provi ; ions of the Act which are material to the present discussion are sections 60, 100, 105 and

M. s. GILL v. C.E.C. (Krishna Tyer, J.) 293

170, and the provisions of Chapter II 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 329(b) provides that 'no election shall be called in question except by an election petition presented in accordance with the provisions of this Part'.

Section 100, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper, Section 105 says that 'every order of the Tribunal made under this Act shall be final and conclusive. Section 170 provides that 'no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election."

. There have been amendments to these provisions but the profile remains substantially the same.

After pointing out that the Act, in section 80, and the Constitution, in article 329(b), speak substantially the same language and inhibit other remedies for election grievances except through the election tribunal, the Court observed :

"That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to

state that the Act provides for 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 E 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 nrising 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 confonnity with this principle, the scheme of the election law in this country as we!) as in England is that no significance should be attiiched 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 Jaw 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

an<l not be made the subject of a dispute before any court while the elec1ion is in progress."

After elaborately setting out qie history in England and in India of election legislation vis-a-vis dispute-resolution, Fazal Ali J. stated : 'If the language used in article 329(b) is considered againsl 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 had 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 i> no poU.

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 w; dc sense, that to say to connote the entire procedure, to be gone through to return a candidate to the legislature . ....... That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the 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 culminate~ in the declaration of the return of a candidate.

The paramount policy of the Constitution-framers in declaring that no election shaU 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 shall 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 Co!lrt or other court should be allowed to hold up the on-goi<lg electoral process bccanse 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 nominal

,.._

,..

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 Oificer could have no jurisdiction to decide the validijy of a nomination, although section 36 of the Act conferred on h; m tilat 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, ihe 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 el1?ctio11.

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 be 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 progre>' of the election and facilitates the completion of the election.

We 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 sec_ond 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 whethe~

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 Art. 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 chal- !enging the steps and stages in between the commencement and the

- ~Jusion. (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 Shimkar Mehta(') 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 Art. 136 springs mto action.

In Hari Vishnu( 2 ) this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Art. 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 Art. 329 (b) 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 ingenions appeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll.

For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a repoll.

Whether in fact or law, the order is validly made withiu 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 amonnts to calling in question a step in 'election' and is therefore barred by Art. 329(b). If no re-poll lJad been directed the legal perspective would have been very different. The mere cancel-

(!) [1955] I S.CR. 267.

(2) [19551 I S.C.R. 1104.

.·~

lation would have th.en thwarted the course of the election and A <Efferent considerations would have come into play.

We need not chase a hypothetiml case.

Our conclusion is not a matter of textual interpretation only but a substantial assurance of justice by reading s. 100 of the Act as covering the whole basket of grievances of the candidates. Sri P. P.

ao 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 s. 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., Art. 324 but is neatly covered by the widely-worded, residual catch-all clause of s. 100. Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by 1mplication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged.

To make the project fool-proof s. 100(1) (d)

(iv) has been added to absolve everything left over.

The Court has in earlier rulings pointed out that s. l 00 is exhaustive of all grievances regarding an election. But what is banned is not anything whatsoever done or directed by the Comntissioner but everything he does or directs in furtherance of the election, not contrarywise. For example, after the President notifies the nation on the holding of elections under s. 15 and the Commissioner publishes the calendar for the poll under s. 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 court's 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

anctified, every escalatory step upto the formalised finish being unified in purpose, forward in movement, fair and free in its temper. Article 329 (b) halts judicial intervention during this period, provided the act possesses the 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 forthering 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 o_f the writ petition, we 'Should have parted with the case finally.

But counsel for both the

candidate' 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 3 24 are of such public importance and largely fallow field going by prior pronouncements, and so strategic for our dcmocrncy and its pov,; er process that this Court must decldc the issue here an<:.~ now.

Article 141 empowers and obligates this Court to decbre tlw law for the country when the occasion asks for it.

Counsel, otherwise opposing one another, insistently concurred in their rccpest that for the working of the electoral machinery and understanding of the powers and duties vested in the functionaries constituting the infrastructure, it is essential to sketch the ambit and import of Art. 324. This point undoubtedly arises before us even in considering the prohibition under Art. 329 and has been argue_cl fully. In any view, the Election Tribunal 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 Art. 324 are, contextually limited to situatio..vs analogous to the present.

We decide t\Vo questions under the releva_nt article. not arguendo, 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 Art. 324(1) an obligation to act in accord with naturn\ justice ?

Article 324, which we have set out earlier, is a plenary provisiorr 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 constitutio11cl scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the extent he insists that if competent legislation is cnacte'd 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 H of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere."

(p. 523)

.;" ..

··-....

~ 't

f .--'

And the supremacy of valid law over the Commission argues itse'f.1 A No one is an imperium in imperio in our constitutional order.

It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324.

Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily.

Unchecked power is alien to our system. ·

Even so, situations may arise which enacted law has not provided for.

Legislators are not prophets but pragmatists.

So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations.

That power itself has to be exercised, not mindlessly nor ma/a fide, nor arbitrarily nor with partiality but in

keeping with the guidelines of the rule of law and not stultifying the Prtsidential notification nor existing legislation.

More is not necessary to specify; less is insufficient to leave unsaid.

Artiole 324, in our view, operates in areas left unoccupied by legislation and the words 'sup<; rintendence, 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 guideline.s, can call the bluff, quash the action and bring order into the process.

Whether we make a triumph or travesty of democrcy 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 aitd fair elections expeditiously.

Moreover, as held in Virendra(l) and Harishankar( 2 ) 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 need further case law confirmation.

Moreover, it is useful to remember the warning of Chandrachud, J :

"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." Indira Nehru Gandhi v. Raj Narain(').

The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which ha ye. held that Art. 324 was a plenary power which enabled the Comm1ss1on to act even in the absence of specific legislation though not contrary to vaM legislation.

Ordering a re-poll for a whole constituenGY under cpmpulsion of circumstances may be directed for the conduct of elections

... ------

(1) [t958] S.C.R. 308.


(2) 11955] l S.C.R. 380.

and can be saved by Art. 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 becanse it failed to achieve that goal.

While we repel Sri Rao's broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself.

Broad authority 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 new-fangled.

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 Kraipak(') in India and Schmidt( 2 ) in England.

F 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 : H.K. (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 justice or to put it negatively to prevent miscarriage of justice.

(I) [1970] I

S.C.R. 457.

(2) [1969] 2 Ch. 149.

(3) [1967] 2 Q.B. 617, 630.

' j 1 "--fl-

, i

M. s. GILL v. C.E.C. (rishna Iyer, J.) 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 eg_sy 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 decision in a quasi-judicial enquiry. As observed by this Conrt in Suresh Koshy George v. The University of Kera/a('') 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 nf 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 right 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 F American Journal of International Law Vol. 67 p. 479).

It is notable that Mathew, J. observed in Indira Gandhi : (supra)

"If the amending body rea!\ly 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 G hr, observed in e:i:ercising 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 H recent periods and particularly in the field of administrative

(I) [1969J I S.C.R. 317.

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 I aflirm 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 ar, e shown.

Does natural justice qualify to be described as a "n1ajestic" conception?

I believe it does. Is it just a rhetorical but vague phrase \Vhich can be ernploy ed. when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair piay 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 fulfiiled 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 morebut 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 Jaw without, of course, making Jaw 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 consequeritiiir voidness.

Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or legislative.

All Party Hill Leaders Conference, Shillong v.

Capt. W. A. Sangma Ors.('). We are not fascinated by the logo-

_ (l) [1978] l S.C.R. 393.

machic exercise suggested by Sri P. P. Rao, reading 'functions' in con-·

tradistinction to 'powers' nor by the trichotomy of diyersion 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 fuqction is so exercised that a candidate is substantially prejudiced even if he has not acqmred 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 hut 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 be 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'.

D 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 iiudi alteram partem.

We are not concerned here with the former since no E 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 Jaw and so we have to weave consistent criteria for application and principles for carving out exceptions.

If the rule is sound aud 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 F two of which are (a) notice of the case to be met; and (b) opportunity to explain.

Let us study how far the situati<in on hand can co-exist with canons of natural justice.

While natnral justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings.

Ridge v. Baldwin(!) is a leading case which restored light to an G area 'benighted by the narrow conce, Ptualism of the previous decad~ to borrow Professor Clark's express10n. (Natural Justice; Substance and Shadow-'Public Law' Journal-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, dis- H carded in India as in England.

Today, in our jurisprudence, the

(l) [19641 A.C. 40.

adva~es mae by natural justice far exceed old frontiers and if judicial creat1v1ty behghts penumbra! 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 Art. 329 be nullified. In short, his point is that where utmost promptitude 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 expe.ditious 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 be.en 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, E 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 overborne by dire social necessity.

Such is the sensible perspective we should adopt if ad hoc F or haphazard solutions 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 exlusion t'? mak.e out wy.

Lord Denning expressed the paramount policy cons1derat10n beh1!1d G . this rule of public law (while dealing with the nemo judex aspect) wit? ""expressiveness. "Justice mnst be rooted in confidence;. an~ codece is

destroyed when right-minded people go away th1!1km~ the JUOge was biased'."We may adapt it to the audi alteram situation by t?e altered statement: "Justice must be felt to be just by the. comn:lll1;'t.Y if democratic legality is to animate the rule of law.

And 1f the mv1S1ble audience •ees a man's case disposed of unheard, a chorus of 'n~- H confidence' will be heard to say, 'that man had no chance to defend ~Is stance'." That is why Tuckor LJ in Russo! v. Duke of Norfolk( )

(1) (1949) I All E"R. 109, 118.

~.

/'.

emphasised that 'whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is in the domain of practicability; not formalised rigidity. Lord

Upjohn in Fernando(') 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 annhilation as an easy escape from a benignant, albeit inconvenient obligation.

The procedural pre-condition of fair hearing, however lllinimal, even post-decisional, has relevance to administrative and judicial gentlemanliness.

The Election Commission is an institution of central importance and enjoy>

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 nptice 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 L.J. drove home this point when he observed in the Duke of Norfolk case : (supra)

"There are no words which are of universal apJ>lication 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-111atter that is being dealth with, and so forth".

This circumstantial flexibility of fair bearing bas been underscored F in Wiseman v. Borneman(2 ) 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 Selvaraien(8 ) :

"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

(I) [1967] 2 A.C. 337,

(3) [1976] I All E.R. 12, 19.

(2) [1971] A.C. 297.

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 need not 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 aml make its

O\\:n 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 us to four specific submissions made by the learned Additional Solicitor General.

He argued th"t 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 thw<Hl this imperative.

So no natural justice.

Secondly, he submitted thai 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 Co1nmission's order was n1ore or less provisional.

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 \Vas no room for complaint of civil consequence.

What \vas 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 Wisemen(') as well as Pear/berg(') were cited in support of these prop-0sitions.

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 Bilwr School Examination Board

v. Subhas Chandra Sinha & Ors.( 3), where a whole uniwrsity examination was cancelled without hearing any of the candidates but was upheld 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. bt that is no argument to shut down.

Tf it is twilit. we must delight.

So we will lay 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) [1967] 3 A11E.R.1945.

(2) [19711 1 W.L.R. 728.

(3) [19701 3 S.C.R. 973.

' J

-, Nobody will deny that the Election Commission in our democratic A 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 m ·

high personages, absent leglbl 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 iu certain aspects, especially B 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 329(b) 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, C 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 full notice to both or others may surely protract; and notice does mean communication of materials since no \me 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 lice martyred for the cause of administrative, immediacy ? We think not.

D The full panoply.may not be there but a manageable minimum may make-do.

In Wisempn v. Borneman(!) 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 expedUion and the need to give full E 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 an 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 F 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 hearing 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., iu Manward v. Borne- G man( 2 ) summarised the observations of the law Lords in this fonn). No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rnle 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 H

(!) 11967] 3 All E.R. 1945.

(2) 1197413 W.L.R. 660.

7 1114 SCI/77

explanation orally or otherwise may, in many cases be suilicicnt compliance. It is even conceivable that an urgent meeting with the concerned parties summoned at an hour's notice, or in a crisis, even a telephone call, may suffice.

If all that is not possible as in the case 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 Commisltion, 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 parties, and 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 election 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 a hearing should be granted, in the scheme of Art. 324 and in the situation of urgency confronting the Election Commission it was not necessary.

Here we must demur.

Reasons follow.

It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary.

A civil right being adversely affected is a sine qua noit for the invocation of the audi alteram partem

rule. .

This submission was supported by observations in Ram Gopal(I) 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 coonotation, everything that affects a citizen in his civil life inflicts a civ; J consequence.

' Civil is defined by Black (Law Dictionary, 4th Edn.) at p. 311

"Ordina!ly, 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 ..

Jn law, it has various significations."

* * * * •

(1) (1970] I S.C.R. 472.

(2) (1971] 1 S.C.R, 791.

'Civil Rights' arc such as belong to every citizen of the State or country, or, in a wider scnes, 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 hls 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 acts of congress made in pursuance thereof.

(p. 1487-Black's 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 conseqnences. Likewise, the little man's right, in a representative system of government, to rise to Prime Ministership or Presidentship by use of the. right to be candidate, can11ot 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 captivatd 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 lcgicidal sophistry.

Our system of 'ordered' rights cannot disclaim cognizance of oraerly processes as the right means to a right end. Our jurisprudence is not so jejune as to ignore the concern with the means as with the end with the journey as with the destination. Every candidate, to put it crypticaUy, has an interest or right to fair and free and legally run election. To draw lots and decide who wins, if announced as the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a processual right actionable if breached, the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream.

It is a snbtle fallacy to confuse between the two.

Victory is still an expectation qua nwde is a right to the statutory procedure. The appellant has a right to have the election conducted nor accmding to humour or hubris but according to lay and justice. And so natural justice cannot be stumped out on this score, In the region of public law locus standi and person aggrieved, right and interest have a broader import. But. in the present case, the Election Commission contends that a hearing

lias been given although the appellant retorts that a vacuous meeting where nothing was disclosed and he was summarily told off would be strange elettoral justice.

We express no opinion on t11e factum or

adequacy of !he 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 Binapani(1) concedes tbat 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 temporary 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, argun1entun1 ah inconrenientf , 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 finish with the hundreds of thousands of voter~ who arn interested in electoral proprieties. ln law and life, degree' 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 Sinha(") Hidayatullah, CJ, speaking for the Court repelled the plea of natural ju'lice when a whofe 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 tlmt students generally 11ad outside assistance in answering questions. The learned 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 held, must


M. s. GILL v. C.E.C. (Krishna Tyer, J.) 3 11

the Board give an opportnnity 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 daim 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 i1e5e!f 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 l 00%" 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 ri!!ht in its conclusion that the examinations ought to be cancelled than academic standards require t11at the Qniversity'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 ascertainin2 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 Solicitor

General who seeks to '!_pproximatc the present situation of cancellation F of the poll to the cancellation of an examination. His argument isi 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 jnstice.

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 G for the proper holding of the poll.

We do not consider the ratio in Suhhash 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 mav be a vicarious concern for the constituency, why, for tha6 matter, for the entire country, since the success of democracy depends on country-wide elections being held H periodically and properly.

Such interest is too remote and recondite, too feeble and attenuated. to he taken note of in a cancellation proceeding.

What really marks th<' difference is the diffusion and dilution. The

candidates, oti the other hand; are the spearheads, the combatants, th.: claimants to victory. They have set themselves up as nominated candidate organised the campaign and galvanised the electorate for the crowning event of polling and counting.

Their interest and claim are net indifferent but immediate, not weak but vital.

They are more than th: 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. Ghanshyw11 Das Gupta's(') 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 lo cancel its own examinations since it was satisfied that the examination was not properly conducted.

It may be a parnllel 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 generalisation.

In a situation like the present it is a far cry from natural justice to argue that the whole constituency must he 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, havinQ; power to review the decision of the Commission. It is true that Wiseman

deals with the assessment of the evidence at a preliminary stage merely to ascertain whether there is a prima facie case.

The proceeding had 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 determinotion of the question whether there is a prima fade case ... there is nothing mherently unjust in reaching such a decision (i.e .. 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 Pea/berg v. Party(') 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."

(l) [1962] Supp 3 S.C.R. 236.

(2) [19711 l W.L.R. 720, 737.

(pp. 737-738) -

p,. _/

Buckley, L.J. made the point about natural justice and administrative action.

"I do not forget the fact that it has been said that the rules of natural justice may apply to cases where the act in question is more properly decribed as administrative than judicial or quasi-judicial: See Ridge v. Baldwin(') and Schmidt v. Secretary of State for Home Affairs."

(p. 747)

The Indain 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 dilierent 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 Pear/berg 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 exparte without hearing them. It is a prima fade 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."

(1971A.C.297,320)

When Pear/berg(') reached the House of Lords the Law Lords considered the question again.

Lord Hailsham of St. Marylebone L.C. 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) (1964) A.C. 40.

(2) (1969) 2 Ch. 149,

(3) (1912) l W.L.R. ; J4.

that there is a prima facie probability that there has been neglect, etc., and that the Crown may have Jost by it.

When the asoessment is made, the taxpayer can appeal aginst 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."

(p. 539)

x x x x x

"The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generully, and your Lordships' House in particular, have, I think ri2htly, 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 v.

Borneman (1971) A.C. 297, 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' is 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 hearings 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 v. North Daven Hospital Management Committee('). (p. 547)

(1) (1966) 2 Q.ll. 330, 343, 346-347.

l -

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 Malloch(') E. Lord Wilberforce observed :

"A limited right of appeal 011 the merits affords 110 m:gument against the existence of a right to a precedent hearmg, 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 C and cost of instituting such proceedings would deter all but th~ most determined of parties aggrieved, and even the latter could denve no help from legal principle in predicting whether at the end of te day the court would not condone their summary treatment on a sub1ect1vc appraisal of the demerits of the case they had denied th.e ~P?"r: tnnity to present.

The public interest would be Ill-served by 1u~1crnlly fostered uncertainty as to the value to he set upon procedural fair play D as a canon of good administration.

And further the Wiseman law Lords regarde.d' the cutting out of 'hearing' as quite unpalatable but in the circumstances harmless since most of the assessecs 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 adminstrative decision-making so. as to avoid devaluaiion of this principle by 'administrators already alarmingly insensitive to the rationale of audi alterani pc!rtenl' :

"Jn his !ectnre 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

(I) (1971) 1 W.L.R. 1570. I 598 .

their rights; our adminitrative apparatus has a hard-of-hearino heritage.

Therefore a creative play of fairplay, irksome to some but g:J'od in the long run, must be accepted as part of our administrative law.

Lord Hailsham L.C. in Pearlbeg presaged :

"The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and (the House of Lords) in particular, have .... advanced its frontiers considerably.

But at the same time they have taken an 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 c natnral 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 hyper-sensitive it is republican realism to keep o 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. Jn this light, the Election Court will approach the problem.

To scuttle the ship is not to save the cargo; to jettison may be .

E . Fair hearin~ is thus a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible.

It can he fair without the rule• 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 F 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 jmplic:ition.

Art. 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation.

c; There vvas 1nuch argument [\bout the guidelines in s. 58 and 64A being applicable to an order for constituency-wide rcpoll. 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 I'. 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 11 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 irreperable punishment to the constituency and the candidates. The sound and fury, the mammoth campaigns and rallies, the whistle-stop


\ -

speeches and frenzy of slog<lns, thej 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 ; irrived 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 betfore the Election Court and for action in future hy the Election Commission.

We have held that Art. 329(b) 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 Art. 226 also suffers such eclipse.

Before the notification under s. 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 march 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 anotl1er 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 impersnnal and communicable."

(Quotation from American Federation of Labour v.

American Sash and Door Co.' 335 U.S. 538 ( 1949) P. 15 of Alan Berth's book published by Light & Life Publishers, New Delhi)

The above observation would equally apply to the Election Commission.

. Many i?cidental points were. debated but we have ignored those nucro-quest10ns and confined ourselves to macro-determinations. It is for the Election Court, not fo~ us, to rule on those variegated matters.

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, ollicials and popular, each playing his part, with roles !or heroes but not for viUains, 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 oftkial 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 :

' 'Ren1t.:1nber', said John Adan1s, 'ren1c1nber', den1ocracy never lasts long.

Tt soon wastes, exhausts and murders itself. 1·11erc never was a democracy that did not commit suicide."

(Quoted from M. Hidayatullah in "Democracy in India and the Judicial Process" Lajpat Rai Memorial Lectures : P. 16)

Only one issue remains.

Is the provision in s. I 00 read withi s. 90 sufficient to afford full relief to the appellant if the finding is in violation or mal-exercise of powers nnder Art. 324? Sri Rao says 'NO' while the opjiosition says 'YES'.

Let us follow the appeJlant's apprehension for a while to test its tenability.

He says that the Commissioner has no power to cancel the election to a whole constitnency.

Therefore, the impugned order is beyond his authority and in excess of his functions under Art. 324.

Moreover, even if such power exists it has been exercised illegally. arbitrarily and in violation of the implied obligation of audi alteram partem.

In substance,, his complaint is that under guise of ,\rt. 324 the Commissioner has acted beyond its boundaries, in breach o[ its content and oblivious of its underlying duties.

Such a mal-exercise clearly tantamounts to non-adherence to the norms and limitations of Art. 324 and, if true, it is a non-compliance with that provision of the Constitution.

It falls withins. 100(1) (d) (iv). A generous. purp<l'; coriented, 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 100(2) (c) interpreted in that case re-incarnates ass,. 100(1) (d) (iv) later. Everything is identical. And Mukherjee, J. explained.

"It is argued on behalf of tl1e respondent that the expression '.'non-compliance" as used in sub-section (2) (c) woukl suf!gest the idea of not actin~ according to ony rule or command and that the expression is not quite appronriotc in describing .a mere lack of qualification. This, we think, would

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 wit_h the provisions of the Constitution materially affecting the result of the election. There is no material difference between

"'non-con1pliance" 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 tht> 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 s. JOO(l)'(d) (iv).

A presumatic view of the Act and Art. 324 helps discern an organic synthesis.

Law sustains, not fails.

A kindred matter viz., the scope of sec. 100 and sec. 98 has to be examined, parties having expressed anxious difference on the implied powers of the Election. Court.

Indeed, it is a necessary part of our decision but we may deal with it even here. Sri Rao's consternation is that if his writ petition is dismissed as not maintainable and his election petition is dismissed on the ground that the Election Court had no power to examine the cancellation of poll, now that a fresh poll has taken place, he will be in he 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 tum 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 electiO!l petition is tried. Part VI of the Act deals with the complex of provisions calculated to resolve election disputes.

A march past this Part discloses the need to file an election petifiion

(S. 60) the jurisdiction to try which is vested in the High Court (80A).

Regulatory of the further processes on presentation of a petition are secs. 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. 97.

Then comes the finale in sec. 98.

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 s. 99 we nave to explore the RllfilUt of implied powers when the grant of power is wide and needs incidental exercises to execute the substantive power.

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.

Hern the poll proceeded peacefully, the counting was almost complete, the ballots of most stations are availat>le 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 canceUation 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 limiteLl repoll. If the Court wants to grant the appellant the relief that he is duly elected how can thel intervening processei; 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. 98.

Law transcends legalism when li!c is baffled by surprise situations.

In this larger view end in accordance with the well-established doctrine of implied powers we think the Court ca11-end 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 prayed for his being declared the duly elected candidate.

There is no dispute-there cannot be-that the cornerstone of the second constituency-wide poll is the cancellation of the first. If that is set aside as invalid bv the High Court for any good reason then the second poll falls and the 3rd resp<>ndent too with it.

This question of the soundness of the cancellation of the entire poll is within the Court's power under s. 98 of the Act.

All are agreed on this. In that eventuality, what are the followup steps ? Everything necessary to resurrect. reconstruct and lead on to a consummation of the original process.

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 sugirested by other developments may be desired. lf anything integrally linked up with and necessitated by the obliation 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\ 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 arc expressly

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 v. H. C. Bhari [1955] 2 SCR 925 at p. 937 and Commissioner of Commercial Taxes & Ors v. R. S.

Jhaver & ors. etc. (1968] 1 SCR 148 at p. 154/155 to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vast incidental powers. He 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 tl1e 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 tlie 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 F

agencies. 'The powers thus granted involve a multitude of functions that are discoverable only through practical experience.

JI: 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 issoo 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 exemptsd from the provisions of a licensing statute."

Having regard to st'1tutory 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 Conunission 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--{)nly if-valid grounds arc established. Such being the wide ranging scope of implied powen; wc are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court's powers to gT<lnt 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)

(b)

Art. 329(h) is a blanket ban on litigativc challenges to ' electoral steps taken by the Election Commission and its oilicers for carrying for.ward the process of election to its 1 culmination in the formal declaration of the result.

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

2(a)

(b)

of the returned candidate.

I '

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. '

1, vo limitations at least are laid on its p}enary character in the exercise thereof.

Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions but where such law is silent Art. 324 is a reservru of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, .I the Commission shall be responsible to the rule of law, act ;'II 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,

M. S. GILL v. C.E.C. (Goswami, /.) 323

wrong-doer candidate IJe:nefits by his own v.wng. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for tota_l repoll, although not in full penoply but in flexible practicability.

Whether it has been complied with is left open for the Tribunal's adjudication.

3. 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 aJ; though it is postponed to the post election stage and procedure as prediated in Art. 329lb) and the 1951 Act.

The Electi0n Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidates ill 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.

l~ 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 righf breached, is reached. ·

We conclude stating that the bar of Art. 329(b) is as wide as the door of s. 100 read with s. 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 ius ibi remedium 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 the 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 a particular person.

Each party _will bear his own costs.

A word of mood for counsel.

Shri Soli Sorabjee did, with imagina- . tive, yet emphatic, claiity and pragmatic, yet persuasive, advocacy, belight the twilit yet sensitive, zone. 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 Constitntioii. . 8-1114Sd/77

By a notification of February 10, 1977, made under section i4 of the l{eprescntation 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 flie ruleS and orders made thereunder.

Simultaneously, a notification was issued by the Chief Election Commissioner with a calendar of dates for different Parlia!Ilentary 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, accordmg 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 includingi the Fazilka and Zira Asembly 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 segmen!i was completed on March 20, 1977, and in the remaining four it was com- pleted on March 21.

The Assistant Returning Officers made entries in the result sheets in form 20 and announced the number of votes received by e'ach candidate in the Assembly segmes. No recounting l 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 t11e candidates or to their polling agents.

The ballot papers and the result 1 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 1,96,016 votes, excluding postal ballots, as against his nearest rival candidate respondent No. 3, belonging to the Akali Party, who secured 1,94,09~ votes, excluding postal ballots.

The margin of votes between the appellant and respondent No. 3 at that stage was 1921. There were 769 postal ballot£.

As per progralllllle, counting of postal ballot papers was started by the Returning Officer (respondent No. 2) at 3.00 P.M. on March 2l. 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 creat§d 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 presidj ing Officers' diaries were snatched away frpm him.

However tlie result sheets in Form 20 of all the Assembly segments in wbich<tne

M. s. GILL v. C.E.C. (Goswami, J.) 325

cm11,1ting had been completed by March 21, 1977, could be preserved A .and were deposited in Government Treasury, Ferozepore. ln view of the violent ituation created in the office of the Returning Officer, he 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. I). The above, briefly, is the version of the appellant.

Deputy C:ommissioners are usually appointed as Returning Officers and originally Shri G. B. S. Gosa!, who was the Deputy Commissioner, was noJl!inated as the Returning Officer of the aforesaid constituency, as per notification dated January 29, 1977. It appears on

~February 8, 1977, Shri Gosa! was transferred and Shri Gurbachan Singh, a close relation of the appellant, was appointed as the Deputy C ColJllUissioner in place of Shri Gosa!. 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 Io K. K. Menon, Uncter Secretary, Election ColJllUission, as an Observer to be present at Ferozepore from March 16 till March 21 on which <late 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 E numbered.

Part of postal ballot papers excepting partly rejected ballot J)apers 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 counJing of 13 Parliamentary Ferozepore Constituency has been djourned due to certain circumstances which have been mentioned in the application presented by Shri F Mohinder Singh Sayanwala regarding repoll of the constituency and on the polling station in which the ballot boxes have been reported to be tampered with.

This will be finally decided on receipt of instrnctions 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 G 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

Ferozepor~".

On the same day the Chief Election Commissioner received a written

report from the Observer. The Observer also "oni.lly apprised the Chief Election Commissioner of the varions incidents at the 1irne of

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 !h<e same day.

It may even be appropriate to quote the same:

''Election Commission of India

NOTIF!CA TION

New Delhi Dated 22 March, 1977 Chaitra, 1, 1899 (SAKA)

S.O.

Whereas the Election Commi.Ssion 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 liave 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 Constitutian, 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

F 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 64A(2) thus confining its directians in regard to postal ballot papers only.

The appellant made three contentions before the High Court.

Firstly, that the Election Commission bad no jurisdiction to order

M. s. GILL v. c.E.C. (Goswami, J.) 327

re-poll of the entire Parliamentary Constituency. Secondly, the impugn- A ed order was violative of the principles of natural justice as no opportunity of a hearin~ was afforded 1o the appellant before passing the order.

Thirdly, that th-" High Court under Article 226 of the Constitution was competent to go into the matter notwithstanding the provisions of Article 329(b) of the Constitution.

The application was resisted by the Chief Election Commissioner B (rndent 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 329(b) of the Constitution was a bar to the High Court's entertaining it.

Another objection was taken that the writ petition was not maintainable in view of the amended provisions of Article 226 c 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 functiops 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 Comr.1ission under Article 324, and where the law so made under Article D 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 324 (1) of the Constitution would become available to it and the Election Commission would be entitled to pass nece&sary 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 E them under 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 63(2) to 63 ( 6) ". Repelling the contention of the appellant that the Commission could not travel beyond the Act and the rules by simply relying • on its powers under the Constitution, the High Court observed "that calling upon of the parliamentary constituencies to elect members has F to he in accordance with .the provisions of the Act and the Rules but it does not mean that the conduct of elections hy the Commission bas to he 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 G 324 but wete "totally excluded while passing the impugned order".

The High Court further observed that even if the principle's 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 had no jurisdiction to entertain the writ petition in view of the bar contained in Article 329(b) of the Constitution.

This appeal has come up for hearin!! before this Constitution Bench on a reference hy a Two-Judge Bench as subst.antial questions of

law have arisen as to the interpretation of the Constitution, in particular Article 324 and Article 329(b) of the Constitution.

We should, therefore, imme<liately 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 thll, 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 inqependent office of the Election Commission should be created under the Constitution to be in complete, barge of the entife 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 ap1)eal.

Article 324 came to the notice of this Court for the first time in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others(!).

This Court observed :

"Broadly speaking, before an election machinery can be br<lught into operation, there arc three requisites which require to be attended to, namely, (l) 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 fir'st 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 positioo 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

(I) [\952] S.C.R. 218.

M. s. GILL v. C.E.C. (Goswami, J.) 3·29

enforcing it, the remedy provided by that statute only must A be availed of'.

x x x x

" .... 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".

Ponnuswami's case (supra) had to deal with a matter arising out of rejretion of a nomination paper which was the subject matter of a writ application under Article.226 of the Constitution which the High Court had dismissed.

With regard to the construction of Article 329(b) it was held that "the more reasonable view seems to be that article 329 covers all 'electeral 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, D it has always been recognised to be a matter of first importance that elections shoultl be concluded as early as possible according to time schedule and an 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 Engla)ld 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 belo11g to the category or class which, under the law by which elections are governed, would have the effect F 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 bernade 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 G very wide terms as follows:-

"Jt 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 canaidate to the legislature.

The use of the expression 'c?nduct <; if election' in artic!e 324 specifically points to the wme meamng, and that rneanmg can also be read consistently into the other provisions which occur in Part XV ; ncluding article 328(b)". ·


A This Court further observed that-

" ...... it (is) clear that the word 'election' can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many

ster" some of which may have an important bearing on the result of the process.

x x x x x

H 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 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 derive support from it for their contentions.

The important question that arises for consideration is as to the amplitude ol powers and the width of the functions which the Election Commission may exercise under Article 3 24 of the Constitution.

According to Mr. Rao, appearing on behalf of the appellants, there is no question of exercising any powers under Article '.>24 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 we11 as duties (see Stroud's Judicial Dictionary, p. J 196).

It is incomprehensible that a person or body can discharge any functions without exercising powers.

Powers and duties are integrated with function.

Article 324(1) 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 324(1) is thus conched in wide terms.

Power in any democratic set up, as is the pattern of our polity, is to be exercised in accordance with law. That is why Articles 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State Legislatnres 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 kgal provisions made thereunder.

Even so, both Artio!es 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 vested under Article 324(1) in the Election Commission, the fra_mers

' '

M, s. GILL v. C.E.C. (Goswami, J.) 331

of the Constitution took care to leaving scope for exercise of residuary A 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 bedgini; 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 seems to be the raison d'etre for th~ open- B ing clause in Articles 327 and 328 which leaves the exercise of powecs 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 C office i; xcept in accordance wifh 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 anc\ 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 D of powers in the conduct of elections-of course in accordance with the exising la\\s.

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 E the conduct of ele&tions, and see that the election process is completed propedy, in a freeand fair manner. "An express statutory grant oE 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."(l) F

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 courne of an election and power cannot be denied to him to pass appropriate orders.

Moreover, the powoc has to be exercised with promptitude.

Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercis- G ing 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 324(1). ·

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 H the Commission ?

Even if the answer to the question may be found

(1) Sutherland Statutory Construction, 3rd Edition, page 20.

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 .t\r1icle 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 1he 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 MA there is pcovision 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 Jaw 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.

Tt is therefore has argued tha! this is a case of complete Jack of power of the Commission to pass the impugned order.

It is clear even from section 58 and section (i4A 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 orovision is made in the Act to deal with situations arising in a particular polling station, it c'1!lllot be said that if a general situation arises whereby numerous polling stations may witness serious mal-practices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision.

The fact that a particular Chief Election Commissioner may take 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 tp 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 neces>ary, 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 p611 can be ordered by the Commission.

These two sections naturally en"1sage 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 58 and 64A cannot therefore be said to rule out the making of an order to deal with a similar situation if it ariss in several poUing 3tations or even sometimes as a general feature in a substantially lar.e 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.

M. s. GILL v. C.E.C. (Goswami,!.) 333

Mr. Rao subl\1its that once the Presideniial 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 will 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 ur.der Arliicle 123 (1) of the Constitution cancelling the poll in the entire co11Stituency.

The contention that the President can revoke, alter or amend the no!ilication 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 powc1 under Article 324(1) of the Constitution which vests the conduct 0f elections in the Election Commission.

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 notiftcation under section 14 or the Act.

But after the notification has been issued by the President, the entire electoral process is in

- the ch&rge of the Election Commission and the Comrnision is exclusively responsible for the conduct of the election without reference to any outside agency.

We do not find any limitation in Article 324(1) . from which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the_hands of the Blectio11 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 inan appropriate case to order repoll of an entire constituency where necessary.

It will be an exercise of power within the ambit of its functions under 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 G 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.

Vf e 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 H elefltions with the aim and object of completing the elections. Although that is not always decisive, the impugned orqer itself shows that it has been passed in the exercise of power under Article 324 (l) and

.--------

A 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 hy ah election petition under the Act.

What do the appellants seek in the writ application ?

One of their prayers is for declaration of the result on the basis of the poll which has been cancelled.

This is nothing short of c, eeking 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.

Tkis is, in effect, a vital issne 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 fornm by means of an election petition in accordance with Jaw.

The appellants, then, will not be without a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll. In other words, when the appellants question the election after declaration of the result on the basis of the fresh poll, the election court will be able to entertain their objection with regard to the order of the Election Commission countermanding the earlier poll, and the whole matter will be at large. If, for example, the election conrt 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 dismi.sal of the writ petition wiJJ not preiudice 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 "fresh poll ordered by the Election Commission.

The High Court of Punjab and Haryana will therefore be ·.,. free to decide that petition in accordance with Jaw.

It is submitted by Mr. Rao that in Ponnuswami (supra) the question was of improper rejection of nomination paper which is vlearly covered by section 100( 1) ( c) of the Act.

Counsel submits that

M, s. GILL v. c.E.C. (Goswami, !.) 335

the only ground which can be said to be raised in the election petition, A in the present case,. is section 100(1) (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. According 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 . B Constitution" within the meaning of section 100(1) (d) (iv).

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 in the exercise of the power under Article 324 or under any provision of the C Act, there is no reason why section 100(1) (d)(iv) should not be attracted to it.

If exercise of a power is competent either under the provisions o[ the Constitution or under any other provision of la~, any infirmity in the exercise of that power is, in truth and substance, on account of non-compliance 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 I> Slumkar Mehta v. Thakur Raghuraj Singh and Others) (1).

The above being the lega'l position, Article 329 (b) mies out the maintainability of the writ application.

Article 329(b) provides that "notwithstanding anything in this. Constitution ...... no election to either house of Parliament ...... shall be called in question except by an election petition presented to such authority and in such manl\er as E may be provided for by or under any law made by the appropriate Legislature." It is undisputed that an election can be challengea only under the provisions of the Act.

Indeed section 80 of the Act provides that "no election sha1l 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 w!tlch the appellants seek in the writ application, including the declaration of the election to be F 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 ancillry or consequential order to enable it to grant the necessary relief provided under the Act.

The writ applica- . tion is therefore barred under Article 329(b) of the Constitution and G the High Court rightly dismissed it on that ground.

fa 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 th~ High Court in that proceeding, to enter into any other controversy on the merits, either o'! law or ?~ facts, and to pronounce finally on' the H same.

The pre-emment position conferrect by the Constitution on

(l) [1955] (1) S.C.R. 267.

this Court umler Article 141 of the Constitution does not envisage tiial this Court should lay down the Jaw, 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 Haryar.a High Court which has the exclusive junsdiction , 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

l l 6A, on any qu.estion, whether of law or fact, from every order made by the Hig11 Court in the dispute.

So, in view of the scheme of Part VI of the Act, the Delhi High Court could not have embarked upon an enquiry on any part of, the merits of the dispute.

Thus it could not have examined the question whether the impugned order was mde 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. app!icability of the rule of natural justice, the High Court will be reli""ed of its duty to that extent.

But if has to be remembered that even for the purpose of deciding that questian, the parties may choose to produce

evidence, oral or documentary, in the trial court. We thereft:lre 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 tin1e 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 ele"tion petition pending in the Punjab and Haryana High Court, will stand vac;:i.tted 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 judgDJent, that we may not be taken to have agreed with the views expressed therein about the applicability of audi alteram partem or on the applicability of the guidelines in sections 58 and 64A to the facts and circumstances of this case, or the desirability of ordering a 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 midi alteram partem, which is in itself a fluid rule, cannot be placed in a strait-jacket for purposes of the instant case.

It bas 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 had 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 section 116A These anif perhaps other relevant points may enter the scales in considering at the trial of the election petition whether there may not be ufficient justification to negative the existence of

M. s. GILL v. c.E.C. (Goswami, J.) 331

any implied. duty on the part of the Commission, at that stage, to bear A any party before taking its decision to order or not to order a repoll.

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 B may be made available, in the appropriate forum, it may be a premature exercise by this C.ourt even to lay down guidelines when there is no hide-bound formula of rules of natnral 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 reg; ird to the question of prejudice not to the mere combatants in an c electoral contest but to the real and larger issue of completion of free and fair election with rigorous promptitude.

Not bein_\; 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 rathr twilight zone.

As we find uo 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 D Court.

P. B. R.

Appeal dismissed.