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ELECTION 'co¥MISSlON OF IN'DlA

: v.

STATE OF HARYANA

April 25, 1984

[Y.V. CANDRACHUD; C.J., V.D. TULZAPURKAR, R.S. PATHAK,

D.P. MAD<?N AND M.P. THAKKAR, JJ.] .

• • Practice & Proctdure-PaufiiJr of E; c.parte order3; by tlte' Courll m 3<>11ghi 'lor by tlte parties .. -htn they give prior Intimation of the pre posed proc .. d/110! to thi

opposit~ side without much lnconvellience or prejudice d1sappruv tel.

Cotulilitlio•r o(lndia 1950 Article i36:_lntcr[ernce by the Suprtmt CoMrl against an ad interim order poS1td hy the High Court. . .

to fill i11the v.1c.tncy ari•iog from tbo setting aside or the elociioo of tbc returned candidate from the 59 Taoru Assembly Constituency ilt

Jiaryaoa, by the Supremo Court, the Rppellaot'Commission sent 'a mcssap and programme on April 6, 19 84 to the Chief Elccloral Officer for tbe State

of Haryana.

Accordin1 to that ptogr3mrne, tho notification under section 150 of the Rcpre<eotauon of tho People Act.,19Sl , was'to be issued on April 18, 1984, the last date for filing nomination\ was AprillS, 1984 while the date .cfpoll wao llf,, y 20, 1984 The Election Commission !bed an identical programme for filling 23 other vcauics irt ihe logi.slnuvo asscm blies of Aodhra Pradesh, Karnataka and Wost Bcngl.

Oa April 7, 198~, I he Election Commission was requested by tho Haryana Government. to hold tho proposed byel<ction ulor.gwith the gcnero1l elections to the Lok

sabb~, duo later In tbe x.ear. On .Aprll I 1, 1984, tho Chior Secretory wrote

I lett<r to th' Election Ct>111 ni .. ioacr roncwina the request to defer the by election.

On April 12, 1984 tho Election Commissiuoer informed tho Chid Election Officers by n telex mcs•.ago thlt it bod dectd<d to 'adb•:o to

tho programme or byelcction\ to ollthc 24 constituencies and copies of notificatio"' to be published on April IH, 1984 were sent to tho Cbi<f

Elcctorul Offi:or, liary•na.

A Press out was issued to that effect after informin11 Jll the political parties. •

The Chief Sccrtary, Hary; na met the Chief Elcctiou Co;, missioner on .April 14, ln4 and explained to him pcrsonlly why it wu neil: ndvoaable nor P9SSoble to hold tile by.clcction to tbo Tuuru lt(ll os proP" by tho .fuller. Oa April 16, 1984, tho Chief Sccrotouy wroto a lettct rcl1er3tin1 Jho view or the Guvcrnmont to th~ Cbict Elc<:tiuo Commi;; siooorn On April 17, 1984, the Chief Commissioner replied to tho leiter of APrld

16, 1984 by IDYina thai the Commision hat.! taken tho dc'cisioo to h? the by. election uftcr tuking tho Punjub situation nod toldna into considerJii~ all r •elora in<ludin& tho fact of non fact that I be polil ical . partios wcro oppo-.d In the propo""d bydcction. On the santo d:ty tho Govcrn111t111 '

Haoyapa nkd a writ potition irt the Hi¥b Court or Punjab and H>rY~: and ubliocd ao ; x parte orcla llaylua tbc issuance aoJ pubhcatio>n oft

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llLfCTION COMMISSfON P. HARYANA sss

• ·• 0 by the Election Commission undor ss. 30, S6 and ISO or tbe

10t:~ 1 '3 tioo or tbe Pcoplo Act, 1951. Hence tbc appeal by special

R<P r the Courth . ,,.,-e 0 • • .

Aflowios tbe appeal, the Court.

J{ELD : (.Per .Majority)

p; r.ChQJ!drac/rud C .J. . . . . ' . 1; 1. The wide!~ prcv.lcn~ pactic of putices obiaioing ex parte ll!d<rS when they co.'" g1ve pn~~ mumaton of tho pr?psed proceedings ~0

ppositc side, w•lhout much lnconvtDleuca or preJUdice bas often been :a:rroved by this Court. )Vheo tho public authorilics do so it ia all tho

orcoptb to disapprobJUon. [5610-E] • . .

1 : 2. The Oovrnmeot of Haryana obtained on e~. parte order rrom the High Court when it could eas1ly have given prior intimation of tbe iotend<d procccJings to the Election Commission onndia • . Tbc letter is >OOstilutiJo>lly identifiable, conveniently ncce>siblc and easily aVJilablc

fD< be1ng contact<d on the most modern systems of communication. Tbc

El"lioo Commission of India, too .rushed to this Court oo the I 8th witbou t D ioformios the Govcrnm<nt . o( H 1 ryaoa that it propose.s to cbJiknge tbc order oltbo H1gh Court and to nslc for Sti!Y of tbat order.

Tho Govern•

II<Ol or HJryana is also identifiable and accesstble with the same amount

ofc:t~. Were it not f0r tho fact that this matter brooked no delay the Supreme Court wouhl b*yo hesitated to pass any interim order wit bout the •PP•IIant givlna prior intimation of lis proposed action to the re-spocdcot. ,.

[S6!E-G)'- E

l :. 3. D.:spite 1he guideline indicatr<.l by tbo suprcme Court io tbc ll't>t Btn, al poll case, A.K M. Hauan Uz:amon v. Uuion uf lndio., [!982] 2 S.~:C. 21 ~. regurdtg tlto, passing of orders by the High Courts in acrtlte of tb<ir wdt jurisdiction, the High Court of Punj"b & Harya!l• for frorD abowing any reluctoncu to interfere with. the programme or tho proposed elcct.ion, tho High Court h•u only too readily pssed the . 1'""' order which wouhl hav~ had the effect of postponing the lectioo. ·.

IDitfinlle!,. Clnsidering thnt the electi01t process was just round the

corue~, the High Court ought not to have intorfcrcd with it. Tho non- ~1!1& order passed by it u!Tords no OS$istaoce oo the question wbctbcr

tcrc ccpt!onal drcumta::ccs to justify that onlor. iS62A-C] .

to t The GovernmcQt a( Hryaoa is undoubiedly i~ tho s{ position "<e>a lbo I 1 • d' . d 1 tual on of law and order io nrcas within Its Juns ICIIOD 00

a.~, •r hs. lllrol. But tho uttimuto decision as to wbetbcr it Is possiblo "ili''Pt<lacnt to hoiJ tltil clcclions Ill ouy aivcn point of time must ret ·

•'1a41,~~ Elcclion C<Jtnmission.

Arbitrariness an<.! nlalQ fiJes .tcs.troy the

lor,~ 0~ <tncaty or ull order. PJ>><d by public aulbodti"l• It t~ thc.re~ tf Ia.., t<>l<lrY. I hut on no l.ssuc liku the prc•ent wbi.; h con.:crns 8 situauon •· •od ord 11 • . ' • th ¥i.sws of the ""lc G cr, 1c Elt.:ctton Coanrull.ion must con>~!!<t 0 in& t"'"nment and all other con.:crn<d bo.Ji.:s of uutboritks before . 0 lho <oncluiun that th<"ru b hll objc.:tiou to tbe bold_ing of .ttiC

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SUPREME COI, JRT REPORTS il9S4J3.' S. .

.c.~ tections a; this point of lime.

Honce the Et.ltio.l Com ni .•. . . ' e . . . d h d '•'On ••~ its decision after ben.ng 10 m1n t e pros aq con~ of tho. whole sh "'to I! had the data bforc it. It c_annot be as.sumed th1t it turned a bl~ Ilion, .to it.

Ia !bese Clrcums!ao:es, II WdS no~ IQ !pe ower or tho fligb nd eye

10 decid: whether !he law and order SJtU ll!OO m tho Stale of Puoja; ut Haryaa1 is such as not tow trrJnt or permit !ho holdial or lb~ by. 1 .aad ·

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I'' b' h t ih f 0 001•o• n is procisely in a s tultJO~ 1 .. = t IS t a e rat1o o tb.J Weu Be 1 case wouid apply io its fulf rigor. [S62BH. 563!\, D] • nga Pol/

3:1. However, it would be open to the Chief Etectio~ Comrn~; sioner to review hir decision :u to the exp; d.'ency of bo!din11 the poll 00 th: notifieJ date. In fdcl, not oaly wo•l~ Jt b~ o?:n to h1m to recG1iidor hi! decision to bold the pnll a\ nollficd, tl IS platoly Ius du!y an J o!lilgatioa 1 . ketp the .siruotion under constant scrutiny so as to ad]u\t I be decisio~ 10 th~ . roli!ies of the situation.· All the facts and circurn>tucces, past and. present

whicb !:cor upon the question of the advisability of holding tbe poll on th; aorified dte hao to be taken into account llnd kept under vigil. That ;, to coblir.uiog prucess which can only cease afrcr the poll is sbcld. Uotil theo, the Election Commission has the locus, for ~; ood rcaon<, p to alier its

dcision The taw and order situatioa in 1 he State, or in any art or it, or in a nci_bbouring State, is a c"nsidcr.uion of vital importance for decidiot lbe question of expediency or po;\lbillty of ho'ding an olcclion at anYPJrti cu!ar point or time. If he cunsidera it necessary, he shoud held further di<cu<1ioas witb tho Chief Electoral Officer of llar)'UD.I and cotbult, on-:c apin, lcad•:rs of the v;•rious political putics on the question whether 11 it fea5ible to h.>ld the poll o~ rh' due date.

On un imp)rtJnt ism: such" lb: b<:>!din; of no 'ci>CIIOB, wbic'l is o( grc.t ao:J (IJlmcdute c..>ocern IO tb' eotir: polidcll commu•tily, tb:rc can be no qu!S<ion of any pablic olliml •·•ll<liog OQ prejtig~, an pprebea; ion which WJ& fat, tly p~j,-ctcd in tbe

rlc's t•aumet~. A sense of ralisnt, obj<ctivdy and .oo.t:>. hgnmcn_t • 1 mllll JDf.., rm tltc deci>IOD or the clccllon Comrnl>llOil <'0 that ts>\JC. [56JD H

M, ftd, YuJUI$ Sale<m "· Shlr l<ttmar Slmtrl. {1974! 3 s.c.R. 7n@ p .. 743-44; fallowed. . • .

. . . 3:2: lndc.c.J, every citiz•n r th~ c.lu•ltry who h~ soe dcrc, no;

polucal .n.rcun,, would have a fair ide:l of the 11111111\Jn PI Punt£ ana h• Impact on the even flow of life intho neighbouring Stuto o(.JhrY ill But he circum.tance thd tbc Hl&li Cour1 h; n tho lr; nowlcdgo of a. ~~~~; ill not JUSt try be 6Ubslitutiotl by it of Its owu opiniOII for tbl of un titutioO

dly appoJOted for a lpecific ptarpoiC by tho law and, lhu CoUl idc11.

DI!Tercnt pooplu bold dilferent views on public issues, wl)ich arc of~: ; ubliC dlvcr&<nt. Even I be Judaea.

A Judge Is en lit kd lo biJ .view$ o~•tioG

1~•ues bijl ha caunot proiei:t hi• pemmal view& on tho decisJoD 0.r 11 q ; rtrio4 Joke tile situation ur 4w and order In a particulmr area at a pruculrai!lll rJ or 11111' and hold th•t tb¢ Electloa Cotnmluioo I• in error io its oppr Jlat "tuatloa. {'640 -FJ

l'r '17u!k!car, /. (Co~tru) :

Tho ~A•CI parameters of tbe decision in Haua , •• c~SO 11114 tb• ttl~' ..

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~:u:C'fiON COM~!ISSION v. H.\RYANA

' • be known tin the judgme:tl containing rcHotJs is bo.rn.

As 00 ra•io C3:~ 0~0c .can predict what el!actly will be . decided by the Courl io 1odaf 's c:se when the Judgment eventually comes to be proonounced

f{tJJSOft ke a guess about the colour or shade of the eyes of a child ( bo can 013

 B b b · "'. . 1 to be bor!l ?~. ut tt can c rcasona ly sa1d tht Hasson's c:aso bicb IS ye . ' d f b' " oot enjoin tbat .an ontcnm or cr o sue a tJature can , never be passed

doy situation.

If that were not o. the c_ourt .• would not have said (l)

ID 1 roinence of electoral process IS a factor wbtcb must guide and govern IMt Jllsiog of orders (meuoing thereby that while such order-scan be pased tb• pas d d. d 'd ) d ( • tbis factor must be nccor c uo const eratton an

2) tbat 'more . roineot such process, the greater C'ught to be the rcluctooce of the H:gb

urt to co eoytbing or direct unythig to t-e done which will po>npone tht protcs• inddinitcly:• (\\hich m<ans it mu<t be doo~ only witb rclutance wbcn eJection' rrc tmmmcnt).

In other IH'tds tle power must be exercised

tplt igly (with rclucraocd particularly when the order would be to postrooo tbc io, tlllatioo of a, demo:rat ically elected popuhr Government. These observations were made by the Court io Ha..uon's case in the coat ext or the

piry or the term t>f legislature as cnvfsiooed by Arr; cle J72 of tbe Cqnstitution of Ir.d'ta and conslquc:ntial general eicdions for such lcgilature . u is evident f•om the dlusioo to ·", mmiornce of elections" sod "indefinite postponement of elections io legislative todies which arc the ess.!nco of democratic functions of the Constitution." This rnn•t be so becou<e the kaislaturc would stand di.sohed on tbc expory of the term, and e new legisla lure has to be elected. It is in this context (presumably) that a reference is made to "immioco_cc ofelectioO>". [561DE-H; ~68A-F] • ·

For n Byo; Oc:ction lika the present one, to fill a single vacancy. tero.

ea~ be no Question of "imminence'; or "indifioite postponement of elections" wh!cb 1\'0Uid Stall the in\totlatioo or a dmocratical\y elected government.

It •• nobody'• C11so tbt tho party position was such tb:.t the result or the dectloa to Ibis \acant sent would have tilt(d the majority one way or other.

No ob!ique motive has even been hinted ar:. The High Court was .therefore ttot UOJustillcd in procecxling on the assumptln that it had such a po.ver.

[S68POJ

t~ Tb.e High Court cannot be fuultcxl for . passio~ tb< impugne~ order

Cogt 01 .'t was by on unprecdcntcd situation like the Pto!!cnt. rr the High . to~ had not smnted the order and thb Election Commision h:ld not chosen

~<lr on or be foro April 18 19 84 tho Htgh Court would hove p.:rhaps it, as hp~erless to P:t.ss any o; ber order, what; ver bo the ju>tificnttoo for • Cou o el":toral-l'roccu" would hav~ actually commenc.:d.

Tbo Htijh

ta~:tl was Ptitna.f., ci<: satisfied that the Election Commission b.ad failed .10

. t:oaid~~~ acoun t vital mttcrs, nppearcd to have acted on oonconsequenttal

Stote 0 a to )ns, nnd had acted nrbitrarity in turning down the request of tho , Court ov•rnmcnt ns also tho Chief Election Officer of Haryan:\. The High . "'•s therefore cotitled to grant o stay. [S69AB] ·

lite cho Surcmo Cuun in cxcrcis~ of tho jurisdiction undrrtic:o 136-of td bStltuttan 0( India ahould 110t interfere )"llh th? dtOtenm order

1!.1~11on tho Hi&h Court in such n fact situation.

Oil tht n~ ltaNI t~• 4llt!C!IIi ornmission appeared to have been ultugotber ob!JVous , h> tIde 0 Q aa n to the lof~ an . reaards tho bonnfidc apprch~!lsioo pcrtaour ~

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SUPREME COURT REPORTS . [1984] 3 s.c.R.

security of the National leaders. who might address public , mec; tings, the Candidates the cfficers engaged in' election work, and the voters.

The. danger was further aggrevated in the face cf open thre1ts held but to the lives of the National leaders of different potitical parties. What is more, the Elec. tion Commission has shown total unawareness dr 1he circumstance that public meetings :were prohibited under s. 144 of the Cr. P. C. in the conslitutency going to the polls. 'On the other ltartd the only conseque;1cc of granting a stay would bave been to postpone the election programme by a few days in the . event of the Elect'ion Commision commission not choosin'g to appear , jn the Court (to show cause why 1be adinterim order 'should not be made absolute) on or before April 18, 1984 which.was the scheduled date F.or issuance of.the notification announcing the election progrmme_ The Election Commission.

could hve appeared-bcf, o .e the High Court and got the stay. vacated in ti'me instead of approaching this Court by way of the present appeal by Special Leave. The Election Commission could not have failed -to refraise that no serious consequence would have flowed from the impugned -order even if s.tay was vacated, not immediately, but a few cfays ljiter, for, it was only a .by. election tO one'siOI!lle seat of DO sigoifican~ which WOUld. not have 'resulted

in posH>onement ·.of. the installatin of an elected government. Wor'se come to worse, the by-eletion could not have bben held along with by-elections in

dther states on the!same day'. [569BG]. ·

. More so when the Election Commission has not been able' to show what possible detriment would hve been suffered if the by.election "could not have been so held on that particular day. How and by what process of ratio cination did the Election Commission convinced itselfthat free elections could. be held in a situation where the candidates would consider it hazardous, to conte.st or to indulge. in election propoganda, and even voters would be afraid to vote, even to this coul t. [569GH~ 570A]

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It is no doubt true that theoretically the Election Commission can still postpone the polling, if it. is so minded. lfut the Court should riot remain a passilfe spectator in this extraordinary situJ!, tion and leave the Nation to the mercy of an individual, however high be bis office, when it i 8

1 evident th3t he has secluded himself in his ivory tower and has shut his eye 8 to the realitie~ of the ftituatioo and closed his mind to the progrosis of this mattor. The Court can certainly Sltisfy i.tself whether the Election ComtniS : sioner bad kept his eyes, ears and mind open, and whether he was able to

show that all relevant factors including the consideration as to what advan tage was to. be secured as against the risk to b~ faces, entered into h.is reckoning, If this is nqt shown to have been done, as 'io 1he present case>

his decision is yitiated a'nct the. Court nec!d no~· fel helpless.

The High O>urt was therefore fully justified in passing the impU; lDCd order, and ttie

Suj1ree Gourt should not upture it. [571BD]

CIVIL ~PPELLATE JURISDICTION: Civil Appeal No. 2182 of 1984.

 Appeal by Special leave from the lodgment and Order dated the 17th April, 1984 of the Punjab and Haryape High Court in W.P.

No.- il c;>f l984

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ELECTION COMMISSION v. HARYANA (Chandrachud, C.J:) 559

. . ' S.S. Ray and Krishnamurthi Swami for the Appellant.

K.G. Bhagat Addl. Sol. General, A.K, Sen, H.B. Singh Ad.tocate · of Harayana, A. Subbha Rao, CV. and ltN. Poddar, for Respondent.

General, ·

The following Judgments .were delivere<; l .

CitA?-!DRACHUD, C.J. We had passed an interim order on April 18, suspen4ing the peration of the order passed by the.'High Court of Punjab & aryan a, on April 17, 1984. The High Court,' by its ' aforesaid order; bad stayed the issuance and publication Of the ·

notification~ l?Y the Election Commission oflndia undu sections 30, 56 and 150 of the Representation of People Act, 1951. We had ' . ' djrected that the special leave petition should be listed befbre us . the next day for considering whether the interim order should be confirmed.

On February 28, 1984, this Court gave a judgment in Civil Appeal No. 5501 of 1983, setting aide the election of the returned candidate from the 59-Taoru Assembly Constituency in Hryana.

As a resplt 'of that judgment, a vacancy arosejn the. Lgislative

Assembly 9f the State of Haryana from that Constituency. On April 6, .1984, the Election Commission of India sent a message to the Chief Secretary, Haryana, who is the Chief Electoral Officer for the State of Haryana, informing him that the Conimissio:n had fixed a certain

programme for hoiding the by-election to the Taoru Constituency . . According to that programme, the notification under section I 50 of

the Representation of te .Peopie Act, 1951., was to be issued on Apri118, 1984, the last date for filing nominations is April 25,1984, while the date of poll is May 20, 1984. The Election Commission fixed an identical programme for filling 23 other vacancies-in the legislative assemblies of Andhra P.radesh, Karnahlka' and 'fest Bengal.

On April 7, 1984, tb~ Election Commission receiv~ a telex message from the Chief Secretary, Government of Haryana; convey-

. F

ing the request of the Haryana Government that the proposed' byelection should be 'held along witft the general elections to the Lok

Sahil which are due later this year. 0~ April~ 11, 1984, the Chief . .t.· Secretary wrote a letter to the Chief Election Commissionr rc; newq in.g the aforesaid request for two reasons ;

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(1) The next general e'ection to the Hayana, Vidhan Sabha

.. Is~ due in May, 1~87 nd since. the Taoru vacancy had

occurred ucently on February 28, J 984', there was no

immdidate n_ecessity. to fill it ; and ·

(2) 'deferriRg the by-lection would save time,' labour and

expense.

On April 12, 1984, the Election Commission informed the Chief Elecoral Officers by a telex. mssage -that it bad decided to adhere to the programme of by-election to 24 vacancies in their respective jurisdictions. The telex message mentioned specificalJy that the Commision had :takc:n into consideration the replies receiv ed by it from various State Government and their Chief Electoral 'pfficers on the question of holding the elections as prop_osed. On

the same date. i.e. April 12, 1984 copies of notifications to be

~ published on Aprill8, 1984 in , the Haryana Gazette'were sent to

 the Chief Electoral Officer of Haryana. By a separate communica-

.tiot~ of-the .same dater' the- Commission informed -all the politicar'

parties about the programme fixed by it for holdin:g the by-elections.

A press note was also issued to the same effect on the same dato.

The Chief Secretary, Haryana, me~ the Chief Election Commissioner on April 14 nd e_xplained to him' persoally why it was neither advisable nor possible to hold the by-election to the Taoru seat as proposed by the tatte.r:. On Aprill6, the Chief Secretary wrot-e a Jetter to the Chief Election Commissioner reiterting the view of his Government. He added in that leter tbat it would not be possible to hold the election during the proposed period because, .the neighbouring_ State of Punjab was going through a s.erious problem of law and order, that there ":was a dispute regarding territorial a'dj"ustment and division of waters between the State of . Haryana and the Akati )>arty in _Punja~, that the said dispute was u'ed by the Akali Party for stepping up terrm; ist activities, tha't the terrorists had attacked perons occupying high .public offices, that there was a serious threat io the lives of many impoitimt persons in flaryiuia, that public meetings had been \>anned by the District Magis- .

t1ate 1mdede:ction 144 of the Criminal Procedure Code and that the eiti; Jation in .the State was such that it would not be possible to hold ·. _--~ public meetings for ~Jection purposes. for a few months: On April 17, the Chief Election Commissioner replied to the Chief Secretary's ·. ~. letter. of April 16 by aying that the Commission hl!d taken the

decyision to hold the byelectiop ftr 1aking.into consieratio~ alt

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' factqrs, that it was not clear how the Gonstituency of Taor'u in .Gurgaon, which is about 35 kilometers from Delhi, aQd which is

quite far away from Punjab would have any fallout •o(the Punjab. sifuation and that the political parties who were duly informed of the proposed election programme had not.opposed the \tolding of

by .election at this point of time.· On the same date that. the- Chief Election Commissionr wrote the aforesaid letter; the Government of Haryana filed a writ petition in the High Court of Punjab and Harya:na and obtained an ex-parte order, which is impugned in this. special leave petition.

We passed the interim order on April 18 after hea.ring a fairly long and exhaustive argument from Shri Siddhartha Shankar Ray who appeared on behalf of the appellant, the Election Commission or India, and the learned Additional Solicitor General whoappeared on

behalf of_ res'pondent, the. 'State of Haryana' We heard further argu- . ments of the parties on the 19th, Shrj Asoke Sen appearing. for the .. re$pondent. Since th~ matter raises questions of general public : , jmportance. we grant special leave to appe'al to the petitioner. ·

We often express our disapproval of the widely prevalent

! ' practice of parties obtaining. ex parte orders when thy can give priot

intimation of the proposeq proceedings to the opposite side. without

.· much incO'ltvenience or prejudice. When the public authoiities do ' : so, it is aU the more open to disapprobation.: But here, the parties

', ' bave taken a tooth for a tooth .. 'The Government of Haryana ' obtned an ex parte order fro in the High Court when it could easily

'have been given prior intimation of the intended proceeding to the

Election.Coimhission of India. The latter is constitutionaliy identifi

4 able. conven}efitly.accessible and easily available for being contacted. ., o'nthe most mo<lern systems of commlJnication. The Election Commission oflndia, too, rushed to this Court ori the 18th without informing the Government of Haryana that it proposes to challenge . the order of the HigH Court and to ask for stay of that order. The

Government of Haryana is also. identifiable and accessible with the sa}Ile amount of case: We do Iiope thatthe smaller litiga{!.ts will not form the belief that the bigger ones can get away with such 'lapses. Were it not for the fact that this matter brooked no delay,

we woul.d have hesitated to pass any interim ruder without the

appellant giving prior intimation of its proposed action to the

~oode~. · - As stated earlier notifications setting the election process .in motion were to be issued <;>n Aprill ~; One day bef<;>re that, the State

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SUPREME COURT R.EOORTS ..

[1984}3 S.C.R..

Governmnt approached the Hjgh Court in a hurry, asking it to stay the election prby.ess, which the Hign Court; bas done. This Court held in the West Bengal poll case, 'A..K. M. Hassan Uzzaman v. Union of fndra,(l) that the _imminence qfthe electoral process is an important factor hich must guide and govern.; the passing of orders in the . exer.cise of the Hgh Courts writ juisdiction ahd that, the .more

imminent such process, the greater ought to be th~ r'eluctance of the High Court to take any step which wiU result in the postponement of the elections. We regret to find that far from showing any reluc~ ta!lce t9 interfere with the programme of t, he propos.ed election, the High Court Jlas only too readily passed the interim order which would have had the effect of postponing the election indefinitely ..

Considering that the election process was j1;1st round the corner, the High Court ought not to have interfered with it. The nonspeaking order fassed. by it 'affords no assitance on the questio~ whether there were exceptional circumstances t~ justify that order.· .

. The fact that the lection proeess was imminent is only one reason' for our saying that the Higl) Court should have refused its , Ftssistance in the matter . . The other reason for the view which w•

are taking is provided by the very nature of the controversy wlilch. is involved herein. The difference between the. Govern.inent of Haryana and -the Chief Election <iomniission centre's round the

quetion asto whether the position of law and order in. the State of Haryana is such as to make it inexpedient or undesirable to hold . the proposed byelection at this point of time. The Government of Haryana is undoubtedly in the best position to assess the situatioQ of law and order in areas within its jurisdiction and under its coqtrol.

But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission. It is not suggested that the Election Commis~ . sion can exerCise its discretion in an arbitrary or mala fide manner .. . Arbitrariness and mala .fide destory the validity and efficacy of all orders passe~ by public authorities. It is therefore necessary that on an issue like the present, which concerns a situation ofJaw and order; the Election C.ommisfiOn fl{USt consider the viws of the State Government and all other concerned bodies or authorities befor•

oming to the conclusion that' there is flo objection to the holdina of the elections at this point of time. On this aspect of the matter, the correspondence between the Chief Secretary of Haryana and tbeo ChieF Election Commissioner shows tbat the ltter had taken all th~

(1) (t982l2 s.c.c. 218,.

'ELECTION COMMissioN v. HARYANA (Chandrachud, C.J.) 563

relevant facts and . circumstances into account while taking the deCision to hold the by-election to the Taoru Contituency 'in accro-

-dace with the proposed progrmme. The situation of law and order • j~ Punjab and, -to some extent, in Ifaryana is a fact so notorious . that it would be naive to hold that the Election Cqmmission. is not

aware of it. Apart from the means to the knowledge of the situation ' ·<if law and order in Punjab and : Haryana, which the Election Commission would have, the Chief Secretary of Haryana had personally apprised . the Chief Election Commissioner as to why the State . novemment was of the view that the elections _ shol!ld -be postponed until the Parliamentary elections. We see no doubt that the Election 'Commission came to its decision after bearing in mind tha pros and . - cons of the whole situation. It had the data before it •. It cannot

be asumed that it turned a blind .eye to it. In these circumstances, ; .. it whs not in the power of the High Court to decide whether the -..._ -·- Jaw and.order situation in the State of Punjab and Haryana is such

:as not to warrant or permit the holding of the by-elction. lt is

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 _precisely in a sit)lation like this that the ratio of the West BengalPoll

~ .. COSe W<?Uid apply in its full rigor._ : .

. We _must add. that "it . would be. open to the Chief Election ', Cotnissioner, as held in .Mohd. Yunus v. Shiv Kumar Shastri,(l? to

:·~ -review his decision as to the expediency of holding the poll on the ·,:'htrfified date. In fact, not only.woulq it'be open to i)iUl to reconside-r

~, : .his decision to hold the .poll as notified, it is plainly his duty and .. obligation to keep the situation under con:stant scrutiny so as to ·;. adjusttbc decision to the realities of the situation. All the facts and circumstances; past and present, which bear upon the question of the advisabiiity 'of holding the poll on the notified date have to be taken. ittto account and kept •under vigil. That ts .. a oontimJing process which can only cease after the poll is held. Until then, the Election Comission has the . locus, for good reasons, to alter its -decision: The Jaw and order situation in the State, ()r in any part of it, or in a neighbouring State, is. a consideration of vital importance for deciding the question of ex}?ediency or possibility of holdipg an election atany partiular poin~ of time. W.e are confident that the Chief Election Commissioner, who is vested with important duties and obligations by the Constitution, -will discharge those duties and obligations with _a high sense of responsibility, worthy of the high office which he holds. If he' considers it necessary, he

_. {1) . [1974) 3 S.C.R. 7~8, 74~-~44. ·

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SUPREME COURT REPORTS . [1984] 3 s.c.tt.

should hold further discussions with the Chief Electi(m Officer of .

Haryana and consult, once again, leaders of the various political parties on. the questioQ whether it is feasit?le to hold the poll on

~}le due date .. On as _important issue such as : the hoJding of an election, which is of great and immediate concern of the entire political community;'there. can be no question of any public fficil standing on pre.stige. an apprehension which was faintly projected in i tlie State's arguments. A sense of realism, objeCtivity and itonalignmen~ must inform the de-cision of the Election Commission on . that issue. ·

. It was urged that the High Court of Punjab and Haryana would have a fair and clear. understanding of the happenings in Punjab and their respercussions in Haryana which would justify its interference -with the decision of. the Election Commission to hold 'rl!' the by-election vow. Tlie first part of this argument need. not be - disputed and 'may even be .. accepted as correct.- Indeed, every citizen of this country who has some degree of political awareness . . - . . would have a fair idea of:. the situation in Punjab and its impact on the e:\ren flow .in the neighbouring State of Raryana. But the second part oJ the argument is untenable. The circumstane that the High Court has 'knowledg~ of a fact will not justify the substittion .by it of its own opinion for that of an authority duly appointed for a specific purpose by the law and the Constitution. Diffeent pepplc f hold different views on public issues, which ,.are often -idely divergent. Even the judges. A Judge is entitled to his views on public . issues but the question :is whettier he can project his personal views -on the decision of a question like the situation of f'aw and orde~ in

il particqlar area at a particular periodiof time bold that the Election

Commissin is'in error in 'its appraisal of that sit'l!aion. We SUppOse not.

For these: reasons, we confirm the interim order which was passed by us on April 18; allow this appeal and set aside the High Court's order of-April 17. Unless otherwise directed by the Chief _

Electin Commissioner, the election programme will have to go .• through as already notified.

There. will be no order as to costs.

THAKKAR, J.

Holding of a by-election to fill even a single vacancy at the earliest date is an extremely desirable end in a demortic framewok. Even so if . such circumstances exist, and a

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ELEC!ION COMMISSION v. HARYANA (T.hakkar, J.) 56$

reasonable progrosis can be .Ponafide made, that holding, the byelection fDr filllng Up that vacancy, is fraught with grave danger, !lOt only to the lives of election officers, andidates as also political leaders addressing election meetings, as also of voters, and poses a grave danger which alogethei outweighs the advantage of holdng the ekction along . wit]l the by-elections in other States, should the matter not engage very serious attention of the Election Com~ mission ? Not even when it is shown that with regard to the sensitive and explosive ituation it was likely to worsen a situation which

was already worse? More is when all that was to be gained by holding 'the by-election as-propos-ed was to be able to hold it alqng with

other by-elections on the same day as in other States which bad by itself no significance or virtue. And if the Elction Coll)mission without de deliberntion surn, marily turns down the request to defer .the ele"ti()n programme for that byelection everi by a few days in such circumstances, can .the Higl: Court be faulted for passing an. ap-interim order, which has the ~:esult of potponing the election, not for an indefinite period, but for a few days ill the parties are heard ? Is the order passed QY the Higli Cq.urt in such circumstances , so gross that instead of' allowing the High Court to confirm it o~

vacate it, upon the other side showing cause, this Court should invoke the jurisdic-tion under Article 1.36 of the: -onstitution of India tt;>_ set it aside? More particularly when the consequence would . be no more serious than .this, namely, that the by-election cannot be. held (there is no virtu~ in doing so} on th~ same day . along with otper by-lections. ·

T!At the, High Court has 'the power to issue a direction or order which has the effect of postoning an election if the situation so demands ould appear. to be the law declared by a five-judge Constitution Bench presided over by the learned Chief J4stice who p1:esides over this Benc:h as well. In A.K.M. Hassan Uzzaman and

othrs v. Union of India and others and Lakshmi Charan Senand

oiher~· v. A.K.M. Hassan Uzzaman and others<1> the concJusions are recorded in the operative order dated March 30, 1982, reading as under: ·

, "L The transferred case and the appeals connected with it raise important quetions which require .a careful and dispassionate considerations. The hearing of these matters was conCluded four days ago, on Friday, the 2§th. Since the judg- 'ment will hrke. some time to prepare, we propose, by . this

(1) [1982)2 s.c.c. 218 •.

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SUPREME COURT REPORTS (1984] 3 s.c:tt.

Order, to state our conciusions on some of the points involved in controversy : ·

(1) The High Court acted within its jurisdiction . in entertaining the writ petit-ion and in issuing a rule nisi, uponit, since the petition questioned the vires of the laws of eleclion. But, with rc;!spect, it was not justified in

assing the interim orders dated February 12 and 19, 1982 and in confirming those orders by its judgment dated February 25, 1982. Firstly, the High Court had no

mteial before it to warrant the passing of those orders.·.

The allegations in the writ petition are . of a vague and gene.t:al nature, on the basis of which no relief could be granted. Secondly, though the High Court did not lack the jurisdiction to entertin the writ petition and to isue , appropriate directions. therein, no High Court in the exercise of its powers under Article 226 of the Consti tutio, n should pass' any orders, interim or otherwise~

which has the tendency or effect of postponing an election, which is reasonably iinminent and in relation to which its writ jurisdiction is invoked. The imminnce of ,

the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such pro~ . c.ess, the greater ought to be the reluctance of the _High •

Court to do anything, or direct anything t~ be dene; which will postpone that process indefinitely by creating a situation in which, the.Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an _oasis of democracy, a fact of contemporary history which demands the courts the use of wise statesmanship in the. exercise of their extraordinary powers under the Constitution. The Hi~ Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give . directions which will inevitably result in an indefinite postponement of elections to legislative hodies which are /' the very essence of the democratic foundation and func

tioning of our constitution. The limitation ought to be observed irrespective of the fact whether the-preparation • add publicati6n of electoral rolls are a part of the process . of 'election' within the meaning ofArti9le 329 (b) of the

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... . , . - J!LECtiON COMMISSION •. IIARYANA (Thakkar, J.) . 561 .

. Costitution. We wiU pronounce upon that question later in our judglcnt.

(2) X X

(3) X

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X X .x X

 • 2. For thcs~ reasons ad those . which we ill give in our judgment later, w~ dismiss the writ petition filed in te Calcutta Jligh Court whtch w:ls transferred fur disposal to this Court. All orders, including interim orders, passed by the.

Calcutta High Court are hereby set asid.:. Civil Appeals 739 to 742 of 1982 will stand disposed of in the light of the dis-· missal of the writ petition, out of whih they arise ..

:3. X

4. X X x

X X

X X

Dos Hasan's case ;, join that no such interim order an ever be d by the High Court ?

The relevant ctract from the conclusion. recorded in Hassan's. case has been reproduced hereinabove. Of course, the e:tact para-

IICiers of the decision and the true ratio cannot be known till the judgment containing reasona is born. As on today no.one can predict what eJ(actly will' be decided by th~ Court in Hassan's case • whrn the judgment eventually comes to be pronounced (who can I ale a guess about the colour pf shad.: of the eyes of a chnd which

: a Yet to be born ?) • But it can b~ reasonably said th.lt the following:

extract.(') • . . . . . ' .. ,. . .

. "The imminence of the clectornl process is a factor Wh•ch, must guide and govern the passing of orders in tll.e ' . excrci; c of the i l•gh Court's writ jurisdiction. The more imminent such p . 1 f ) tb. 1 . roccs. t 1c grc.!lcr ought to be the rductauce o • wlc' 1

11&h Court to do anytuing, or dirc:c( anything to be done, , j/'c 1. Wt.ll postpone t!Jat procc:; s indefinitely by creating a

u.hou ID which, the Gov.:rnmcnt of .a Stal.: cannot be earned . . tut.. on tn accordance witu the provisions of the consttton ... • . :

'lrarra · . nt, the · . . · · Ord,1 or Vtcw that Jlussu11•3 case docs not enJOin that an JnteFim . auct, a nature can nvcr be passed in any situation. If that . 2J 2 s.c.c. 219.

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$68 • SUPRE!ol!l:couRT REPORTS

[1984) 3 S.C.R, ·

were not ; o, the court would not jiave said (I) that imminence of 'electoral process is a factor which must guide and govern the passing

of orders (meaning thereby that while such orders can be passed this 'factor must be accorded due consideration) and (2) that more

imminent such process, the greater ought to be the reluctance of the 'High.Court to do anything or direct anything to be done which will

postpone the process indefinitely" (which means it must be done . only with reluctance when elections are imminent.) The aforesaidstatement of law made in the contc;~:.t of "general election's" does not warrant the view" that Hassan's case enjoins that an election pro~ ' gramme cannot be postponed even for a few days even in the case of a by-election, whatever be the situation, and whatever be the circumstances, in which the Hih Court is called upon to exercise its jurisdiction. It is therefore not unreasonable to pro1=eed on the premise that even according to Hassan's case the Court ha~ the power to issue : an interim order which has the e[.:ct of postponing no election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democratically etcctcd popular government. The portion extracted from the operative order in Hassan's case: brought ioto focus a short while ago which adverts to .. imminence of elections" and to "directions which will inevitably result in indefinite postponement of elections to legislative bodies wbich are the very essence of the democr.atic functions of our Constitution" leaves no room for doubt that the observations were being made in the context of the expiry of the term of Jcgilatui-e as envisioned by Article l 72 of the Constitution of India and consequwtial general elections for such Jcgblature. This inust be so because the •1 legi>lature would stand dissolved on the e;~:.piry of the term, . and a new legislature has to be ckcted. 1 t is in this context

(presumably) that u r.:fcrence is made to "imminence of ·: J elections". For 11 by-election like the one we are cncerned with, there can bc no question of "imminence" or "indifinite postpone·

ment of elections" which would stall the inslilllation of a democrllticully ckctcu tnvcrnmcnt. It is no boJy's case that the party JlOiiliHil iYIIK Ml"h I hut lhll rsuJt Of tit¢ dcctil'n tv this yacaot seat wuul-1 huvo ttlttl th11 tnlljurity unc Wll)' or oth.:r. Nv obliqu¢ motive hull tVn IJ,•en hinkd ut. lh11 High (.'ourt ws thcrcTv~ not unjusti.

lkJ lu rrucccdutll on lhc ussumption that it bad su.:n a p.:!wcr.

DocJ the u.l-inralm <Jrd.:r passeJ by th~ High Court merit b.tln~ llptumcd in ~.Ya<'ise of th.: jurisJhthm tmcl.:r Art, 136 of _the CoiJ$/I• tulivn of i!Jt/ia l ·

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ELECTION COMMIS.SION v. ll~YA.NA (Thakkar, J.)

The only question which arises.is whether the presence was a case where. the High Court , could not have granted-the adinterim order. Be i( realized that if the High Court had not granted the order and the .Election Commission had not chosen to appear on or before April 18, 1984 the High Court would have perhaps become power- . less to pass any order, whatevr, be the justification for -it, as the

"electoralpr6cess" would haye 'actually' commenced. Can the High Court then be faulted for"passing the impugned ordet: faced as it was by an unprecedented situation like the present? On the one

"' hand the Election Commission appeared to have been altogether

oblivious to the dimension as regards the bonafide apprehension pertaining-to the life and securlty of the NationaHeades who might address public meetings, the candidates; the officers engaged in elec- .tion work, and the vters. The danger was furtqer. aggravated in

the face of.open threats held out to the lives of the National leaders of different political partie~. What is more, the Election Commis- . sion has shown total unawareness of the circumstance that public r • . . meetings were prohibited under Section 144 of the Code of Criminal Procedure in the constituency going to the polls.

On the other hand the only consequence of granting a stay would have been to ppst pone the election .programme by a few days in the event of the Election Commission not choosing to appear in the Court (to show

cae why the ad-interim order-should not be made abwlute) on or

before April 18,,1584 which was thesclleduled date .for issuant~ of the notification announcing the election programme. The Election . Commission could~ have il(>peared before the High Court and got the stay vacated in time in.stead of approaching th1s Court by way of the _present appeal by Special Leave. The Election Commission could not have failed to realis~ ti1at no serious consequence would. have ·flowed from the .impugned order even if stay w:as vacated, , not immediately, but a few days later, for, it.was only a by-election to one single seat of no significance which would not have resulted .-in postponement of tile installation of an t:lected government. Worse

come 'to wors~. the by-election cou.ld not have been held along with .. by-elections in other States on the 'same' day. The Election Commission has not been able to show what possible deterim-ent 'would have ben suffered .if the by-election could not have been so held on that particular day. If the High Court was prima facie satisfied that the Election Commission nad failed to take into account vital matters and app.eared to have acted on . non:-consequential con's]derations, andad acted arbitrarily. in turning down the request . of the State Government as also th~ Chief Election Officer of

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576 SUPREME COVR T RlWO'R TS [19841 3 s.C.R..

. Haryana, why cou.ld the High Court not grant a stay? And should.

, this Court interfere in such a fact-situation? Learned Counsel for the Election Commission, tb.ough repeatedly requested, is unable to point out eitper from the affidavit filed on 18th, or from the addi- . tiona] affidavjt filed on the 19th, that the. aforesaid factors were taken into reckoning by the Commfssion. It. is not 'stated that these factor's do not exist or have been invented by the State Government . with any oblique motive. The contents pf the affidavits filed by the Election Commission reveal that it was altogether oblivious to all the relevant factors recounted earlier. There is nothing to .show that a

sinle factor was preser1t on its mental . screen. The Election Commissioh has. not apprised the Court as to how~ and why any or all of these factors were considered to be immaterial. No inkling • . , is given as to how the Election Commission thought that the problems.

. c.;>uld be overcome. By what process of self-hypnotism did the Election Commission convince itself that free a-nd fair elections could be held even , when public meeting~ were banned in the constituency?

How, and by. what process of ratiocination did the Election.Conimis- D ·. sion convince itself that free elections co.uld be held in a situation

::where the candidates would. considr it hazardous to contest or to ' inClu1ge in election propaganda, and , even voters y.rould be afraid to vote? If the Election Commission had any idea as to how. the hurdless could be crossed 'and problem resolved, it hs chosen not to reveal -its perception of the matter. The Election Co.mmissio'n

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, perhaps has good answers. But silence is the only answer which has been given by the Commission as aloits counsel on this aspect. 'II know my-joband-it-'i.s-none--of-the-business-of-the-Courts" seems to be. the. ttitttde. All that has been stated by the learned counsel for the Commission is that everytbing was considerl!d (without even disclosing the content 9f the expression 'everything').. Counsel has , of course set up an-alibi by saying that affidavits.. had to be prepared by burning mid-night oil. But in that case the concentration would have been on everything of importai)ce and what was •the essence

f the matter couid not have been overlooked or forgotten. And

if it h; s escaped attention~ ,:'the conclusion is inevitable that the Election Commission had not attached due importance and weight-

.· ,·, age to the , bas!c problem and had not appled itself seriously to a

 serious problem. . ·. ' .. '

The fact is establisbd that tlie Chief Secretary and the Chief Election Officer. of Haryana, had personally apprised the. Chief Election Commissioner of the prevailing situation sometime .before 14th April, 1984. ~The Election Commission has not even disclosed ,- ' . . .• .....

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{·. ' . ~-c:'""" "'""'"'"" ' HARV "'A (7Mko,, J.)--~:-. -1

tlus ract in the petition or in the additional affidavit. Nor has . the , ·.·1

Elecion Co01missio~ apcpriscd. u~ as 1 to what transpired at. the

 A (ng: The Election ommtsston 1as• been less than -candid mee 'to this Court.· No doubt the Chief Election Commissioner is ·. ~:~:io.g a respos!ble post. But that does no~ ma~7 him infalliable or j derhis dectston or act any the less arbttrary tf he has failed to . )

:~orrn himself of all the reiC'Vant .factors and has failed to direct his B ! , attention to the core problem. I~ ts no doubt true that theoretically 1 ) , the Election Commission can sttll postpone the polling, if it is

10 rnindcd.

But should the Court remain a passive spectator in j this clttraordinary sitution and leave thcNation to the mercy of an , I individual, however high be his office, when it is evid.ent that he has. secluded himself in. his ivory tower and has shut his eyes to the

 C realities of the situation and closed his mind to the progrrosis of the matter. The Court can certainly satisfy its_elf w!J.etber the Election Commissioner had kept his' eyes, ears and mind open, and whether •. he was able to show that all relevant factors including the consideration as to what advantage ws to be .securd as against the risk to . . be fuced, entered into his reckoning. If this is not shown to have . . D ·... :- been done, as in the present case, his decision is ' vitiated and the · l Court need not feel helpless. TI1e High Court was therefore fully 'iu.s\ificd in passing the impugned order. . . ·. • • • t • • ·•

. Appeal is acco•dingly dismissed.: E . '

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