DlDJAJIT IWllJA & OBS, ETC,

ELECTION COMMlSSIOll OF INDIA & OBS.

SEPIEJo!BER 30, 1985

[P.N. BllAGIATI, C, J,, AMARENDRA NAIH SEN, V. BALAl<RISllNA ERADI,

RA!iGANP.Xll MISRA AND V, J.(!JALlD, JJ. J

Constitution of India, 1950 - Article 226 - Writ Petition challenging holding of elec tiona - Whether maintainable - Election Petition Only remedy •

.i Article 329 (b) - Electoral rolla - Preparation and Publication of - Whether part of 'election process•.

Representation of the People A.ct, 1951, 1s. 100 and 21 (i) and Registration of Electors Rules 1960 - Electoral rolls - Preparation and Raviaion of - Whether part of 'election process'

- Challenge to election of a. candidate o,:i tha around of defective elector rolla - Maintainability of.

Geaaral Election to the A11D Le&ialative A11111Dbly wa1 notified to be held in re~ 1983. The petitioner• filed writ petitiona in the Hi&h Court cont1DC111111 that elactiona 1houlcl not be held in the State on the bui1 of defective electoral roll• prepared ill 1979 and to defer holdill& of the elactiona on &CCOl!Zlt of tha prevailiaa di1t11rbed 1it111tion in tha Stat•• An intam order for 1t1y of the elactiona wu al10 1ouaht. The Hi&h CcNrt did not 1rant interim •ta:v of tha 1l1ction1 thouah it 111tartai1111d the writ 1'9titiona. The olactiona were held and the r1111lt1 were duly notified,

Writ petitio111 were tharuftor filed in tha High Court chllllaains the haldi111 of tha 1lec tiona on tho bui1 of the defective electoral rolla and al10 quaationing the validity of ell tha el1ctio1111 to the Leai1lltive Al1Dbly and 111 order waa 1ouaht for di11olution of the !lout•·

At tha i1111tanc1 of the Election Comll111ion tht afor11aid CHll were tranaf1rr1d to tha Supreme Court. It wu contended on behllf of tha P'!titioner1 that the balding of tha elactione on

the buil of tha electoral roll• of 1979 wa1 not valid becs11111 (1) the olectorll rolle were not reviHd before tha

elections as required by the provisions of s. 21 sub-s.Z(a) of the Representation of the People Act, 1950; and (2) that the Election Colllllission had by a Press note dated Sept. 18, 1979 erroneously directed the electoral authority in charge of the revision of electoral rolls not to delete the name of any person on the ground of lack of qualification of citizenship. It was further contended that the ban of Article 329(b) does not stand in the way of maintainability of the writ petitions as the petitioners were challenging the impugned elections as a whole and not any individual election, and that the electoral rolls should be revised before the holding of elections as required by s. 21(2)(9) of the Act.

Dismissing all the cases,

HELD: l(i) The writ petitions under Art.226 challenging the election to the State Legislature are not maintainable and election petitions under s. 81 of the Representation of the People Act 1951 have to be filed in the High Court. [233 DJ

(ii) Article 329{b) of the Constitution bars any challenge to elections by a writ petition under Art. 226 as also on the ground that the electoral rolls on the basis of which elections were held were invalid. An election can be challenged only by filing of an election petition in the manner prescribed by the Representation of the People Act, 1951. In the Act, there is no concept of elections as a whole. What the Act contemplates is elections from each constituency and it is that election which is liable to be challenged by filing of an election petition. The proceedings under the Act are quite strict, and clear provisions have been made as to how an election petition has to be filed and who should be the parties to such election petition. It 11ay be that there is a co11100n ground which may vitiate the elections from all the constituencies, but even so it is the electi9n from each constituency which has to be challenged though the ground of challenge may be identical, Even where in form the challenge is to the eleCtions as a whole, in effect and subetauce what is challenged is election from each constituency. Article 329(b) 1111st, therefore, be held to be attracted in the instant case.

[230 G-i!; 232 B; 231 B~]

J"&"ll Nath v. Jaswant Singh & 0rs., (1954] s.c.R. 892, Harl Visiaiu Iamath v. Syed Alued Isbaq & 0rs., (1955] s.c.R. 1104 at 1111 and Durga Shankar Mehta v. Thakur Ragburai Singh & Ora. ,

[1955] s.c.R. 267, relied upon.

INDARJIT BARUA v. ELECTION COMMISSION 227

(iii) Once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under s. 100 of the Representation of People Act, 1951, The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls. [231 E-F]

Kabul Singh v. Kuudan Singh, [1970] 1 s.c.R. 854, relied upon.

In the instant case, it is undoubtedly true that the electoral rolls were not revised before the elections were held, but the Election Colllllission dispensed with the revision of the electoral rolls by an order dated January 7, 1983 msde under s. 21, sub-s. (2) and this order has not been challenged in any of the writ petitions. Hence the impugned elections cannot be challenged on the ground that they were without revision of the electoral rolls. [230 C-E]

2(i) Part Ill of the 1950 Act makes provision for electoral rolls for Assembly Constituencies.

Section 21 deals with preparation and revision of electoral .rolls. The proviso to s. 21(2)(b) makes the position clear beyond doubt that if for some re.ison an electoral roll is not revised as required by sub-s. (2), the unrevised roll is not affected in any way and continues to be the elect<iral roll holding the field. (235 B-C; 236 A]

In the instant case, it is clear that the Election 'C"olnmission did not give directions contrary to the requirements ,

of s. 16 of the Act and the revision of the 1979 electoral rolls could not be undertaken for reasons beyond the control of the Election Commission.

Moreover, there was no dispute to the electoral rolls of 1977 nor was any challenge advanced against the election of 1978 to the State Legislature held on the basis of such rolls. Admittedly, the 1979 rolls were the outcome of intensive revision of the rolls of 1977, , That being the position and in view of the proviso to sub-s. (2) of s. 21, the electoral rolls of 1979 were validly in existence and remained effective even though the process contemplated in sub-s. (2) for revision had not either been undertaken or completed. The electoral rolls of 1979 Dist, therefore be regarded as not suffering from any legal infirmity though even if the electoral rolls of 1979 were

. G

invalid, that would not . affect the validity of the impugned elections nor would a writ petition under Art. 226 of the Constitution be maintainable for challe"8i"8 the impugned election. [237 E-H; 237 C-D)

2 (ii) The preparation of electoral rolls is not a process of election. In a suitable case challenge to the electoral rolls for not complying with the law may. be entertained. But the election of a candidate is not open to challenge on the score of the electoral roll being defective. (239 C-E]

ff, p, l'cllDwnm:d V• lie~ fficcr, ll=llal OJnsUtu"""Y , on.., (1952] s.c.R. 218, referred to.

Lakslm:l Clara.n Sf:n & Ors. v. A.:t..M. lluGall Uz.zag,.m, & Ora.• c, AJ!, 739-741/82 Jecided on 8.5.85, relied upon.

3 • The Election Commission is directed to carry out revision of tbe electoral rolls in accordance ~-J.th the procedure prescribed in the Representation of People Act 1950 and the Electors Registration Rules 1960. [240 G-H)

ORlGINlAL JURISDICTION Transferred Case Nos. 364. to 382 of 1984.

(Under Article 139A of, the Constitution of India.)

V M Tarkunde, P.G. llarua, S.N. Medhi, Shanti Bhushan, K.K.

Venugopal, V.M. Tarkunde, Soli J, Sorabji, Hrishikesh Roy, Mrs. Mr.- Karanjawala, K. Pablay, Swaraj Kaushal, E.c. Vidyasagar,

Sushma Swaraj, N.M. Ghatate, s.v. Deshpande, Lira Goswami, Mrs.

R. Swamy, c.s. Vaidyanathan,· p; Choudhary, P.G. llarua, Miss Lakshmi Anand Kumar and Ms. N. Rama Kumaran for the Petitioners.

'--.

K. Parasaran, Attorney General, J.<.G. Bhagat, Additional Solicitor General,. A.K. 'Sen, F.s. Nariman, f; R• Mridul, S.N. lihuyan, Advocate General Assam, K. Swamy, Ms. A. Subhashini, S.K.

Nandy, M.z. Ahmed and Kath Hazarika for the Respondents, . . r

The Judgmen_t of. the .Court was delivered by

RANGANATli MISRA, J. At the conclusion of the hearing, in view of. the, urgency of the matter as also the importance of the

INDARJIT BARUA v. ELECTION COMMISSION [RANGANATll MISRA, J.] 229

issues involved, we made an order on September 28, 1984, setting out briefly our conclusions and had indicated that detailed reasons would be given in the judgment to be delivered later.

On the 12th January, 1983, election to all the 126 seats of the Assam Legislative Assembly was notified to be held in February 1983. Very disturbed conditions had been prevailing in Assam for a few years prior to this period and one of the issues

lesding to the agitation was the electoral rolls of 1979 prepared under the Representation of the People Act, 1950 ('1950 Act' for short). When general election was notified, a set of writ petitions were filed in the Gauhati High Court being Civil Rules 87 and 228-246 of 1983. The first application asked for a mandamus to the Election Coomission and the State Govermnent then under President's rule not to hold elections on the basis of the defective electoral rolls and to defer holding of elections on account of the prevailing disfurbed situation in the State. In the second group of writ petitions the Court was asked to issue a mandamus for preparation of fresh electoral rolls according to law before election could be held and to restain the Coomission and the State Government from holding elections on the basis of defective and void electoral rolls. The High Court did not grant interim order of stay of election though the writ petitions were entertained. Consequently, elections were held to the State Legislature and by Notification of February 27, 1983, the results of the election were duly notified. A number of writ petitions were then filed in the Gauhati High Court more or less making similar allegations and substantially, challenging the electoral rolls of 1979 and questioning the validity of all the elections to the legislative Assembly and praying for dissolution of the House. In some of these applications relief of quo warranto was also asked for against named returned candidates. These writ petitiollS were numbered as Civil Rules 524, 691-693, 695-699, 706-707 694 and 525 of 1983 and were in due course transferred to this Court at the instance of the Election Connnission for disposal. They have, therefore, been assigned new numbers as Transferred Cases. We have thus two sets of cases, transferred from the Gauhati High Court - the first set challenging the electoral rolls of 1979 and the Notification for holding of the elections and asking for staying of the elections and .the second set challenging the elections after they were held and notified on the ground that the holding of elections on the basis of the void electoral rolls of 1979 was contrary to law and vitiated the elections.

Our order of September 28, 1984, not only indicated the conclusions but also provided brief reasons for the same. We, therefore, propose to refer to the relevant portions thereof on each issue arising for consideration. Dealing with the challenge to the validity of elections to Assam Legislative Assembly, we had said :

"The principal ground on which the validity of the elections has been challenged is that the electoral rolls were not revised before the elections in contravention of the provisions of section 21, sub-section (2)(a) of the Representation of the People Act, 1950, and the elections were held on the basis of the electoral rolls of 1979. Now it is undoubtedly true that the electoral rolls were not revised before the impugned elections were held but the Election Commission dispensed with the revision of the electoral rolls by an order dated January 7, 1983, made under the opening part of section 21, sub-section

(2) and this order has not been challenged in any of the writ petitions. Hence the impugned elections cannot be challenged on the ground that they were without revision of the electoral rolls.

The petitioners also attacked the validity of the electoral rolls of 1979 on the ground that the Election Comnission had by the Press Note dated September 18, 1979, erroneously directed the electoral authorities in charge of revision of the electoral rolls not to delete the names of any persons from the electoral rolls on the ground of lack of qualification of citizenship since the question of citizenship was not one which could be decided by the electoral authorities and the electoral rolls of 1979 were, therefore, invalid and the impugned elections held on the basis of the electoral rolls of 1979 were void We do not think there is any substance in this contention.

In the first place, Art. 329(b) of the Constitution bars any challenge to the impugned elections by a writ petition under art. 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the ban of Art. 329(b) by contending that they are challenging the impugned

lNllARJlT BARUA v. ELECTION COMMISSION [llANGANATH MISRA, J.J 231

el.ections as a whole and not any indlvidual election and that the ban of Art. 329(b), therefore, does not stand ln the way of the wri.t petitions filed by thern challenging the impugned elections. But we do not think this escape route is open to the petitioners.

There is in the Representation of the People Act, B 1951, no concept of elections as a whole. What that Act contemplates is election from each constituency and it is thst election which is liable to be chsllenged by filing an election petition. It may be that there is a comnon ground which may vitiate the elections from all the constituencies, but even so it c is the election from each constituency which hss to be challenged though the ground of chsllenge may be identical. Even where in form the chsllenge is to the elections as a whole, in effect and substance what is chsllenged is election from each constituency, and Article 329(b) must, therefore, be held to be D attracted.

We are of the view that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to chsllenge the election from any constituency E or constituencies on the ground thst the electoral rolls were defective •. Thst is not a ground available for challenging an eiection under s. 100 of the Representation of People Act, 1951. The finality of the electoral rolls cannot be assailed in proceeding challenging the validity of an election held on the basis of such electoral roll vide Kabul Si.Dab v.

F lundan Si.Dab; [1970] l s.c.a. 845. Article 329(b) in our opinion clearly bars any writ petition chsllenging the impugned election on the ground thst the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid."

Article 329(b) of the Constitution provides

"Notwithstanding anything in this Constitution:-

(a) x x x

(b) No election to either House of Parliament or to H the House or either House of the Legislature or a State shell be called in question except by ar.

election petition presented to such authority and in snch manner as may be provided for by or under any law made by the ppropriate legislature."

Therefore, an election can be challenged only by f.Uing of an election petition in the manner prescribed by the Representation of the People Act, 1951. A Constitution Bench of this Court In Jagan Nath v. Jaswant Singh & Orso:i[1954 J s.c.R. 892, has said :

"The general rule is well settled that the statutory requirement of election law must be strictly observed and that an election contest is not an election at law or a suit in equity but is a purely statutory proceeding unknown to the co1llll0n law and that the Court possesses no cOt11I1on law power."

In Bari Vishnu Kamath v. Syed Ailliad Ishaq & Ors., [1955] S.C.R. 1104 at llll, Venkatarama Ayyar, J, speaking for the Court said:

" .. Tnese are instances of original proceedings calling in question an election, and would be' within the prohibition enacted in Article 3i9(b), But when once proceedings have been instituted in accordance with Article 329(b) by presentation of an election petition, the requirements of that article are fully satisfied. Thereafter when the election petition is in due course heard by a Tribunal (now the High Court) and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals. .. .The view that Article 329(b) is limited in its operation to initiation of proceedings for setting aside an election and not to the further stages following on the decision of the Tribunal is considerably reinforced, when the question is considered with reference to a candidate whose election has been set aside by the Tribunal."

To the same effect are the observations of another Constitution Bench in the case of Durga Sbaokar llebta v. 'l'hakur Kaghuraj Singh 6 Ors., [1955] S.C.R. 267, Mukherjea, J. (as he then was) spoke for the Court thus :

INDARJIT BARUA v. ELECTION COMMISSION [RANGANATH MISRA. J • J 233

"The non obstante clause with which article 329 of the Constitution begins and upon which the respondent's counsel lays so much stress debars us, as it debars any other Court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the election Tribunal (now the High Court) alone that can decide such disputes, and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute ......

These are clear authorities and the position has never been assailed in support of the position that an election can be challenged only in the manner prescribed by the Act. In this view of the matter, we had concluded that writ petitions under Article 226 challenging the election to the State Legislature were not maintainable and eLction petitions under section 81 of the Act had to be filed in the High Court. The Act does not contemplate a challenge to the election to the Legislature as a whole and the scheme of the Act is clear. Election of each of the returned candidates has to be challenged by filing of a separate election petition. The proceedings under the Act are quite strict and clear provisions have been made as to how an election petition has to be filed and who should be parties to such election petition.

As we have already observed, when election to a Legislature is held it is not one election but there are as many elections as the Legislature has members. The challenge to the elections to the Assam Legislative Assembly by filing petitions under Article 226 of the constitution was, therefore, not tenable in law.

It is the admitted case of parties before us that the electoral rolls of all the constituencies excepting one in the State of Assam were last revised intensively during the year 1979 with reference to January 1, 1979, as the qualifying date. In the case of No. 114 - Jonai (S.T.) Assembly Constituency only summary revision was undertaken as_ intensive revision was not possible for the reason that these areas were submerged heavily by flood water at the relevant time. The general election to the House of Parliament was held in 1980 on the basis of the said electoral rolls. An annual revision of the electoral rolls as per requirement of the law as also the practice obtaining in the rest of the country could not be undertaken in 1980-81, or 1982 mainly on account of adverse law and order situation prevailing in the State.

The Legislative Assembly of the State of Assam had been dissolved by the President acting under Article 356 of the Constitution by proclamation dated March 19, 1982, and the extended period was due to expire on March 18, 1983. The Election Commission was intimated by the Union Government on January 6, 1983, that the Presidential proclamation would be revoked by the end of February 1983.

Holdi"i of election in Assam for constituting the Legislative Assembly well before the end of that period, therefore, became an immediate necessity. The Election Commission had hardly eight weeks' time in its hand to complete the process. Without loss of further time the Conmission issued the Notification announcing the election programme on January 12, 1983, and the election was proposed to be held on the basis of the existing electoral rolls of 1979.

According to the petitioners the electoral rolls of 1979 without bein., a~roriately revised as required by law were not the proper rolls on the basis of which election could have been conducted. It has been pointed out that the process of revision had been undertaken but the Election Conmission suddenly stopped it and decided that the unrevised and out of date rolls would provide the basis for holding of the elections. It is the submission of the petitioners on the basis of a decision of this Court in Chief Ccmlissioner, A.)ler v. lladhey Sbya Dani, [1957] s.c.R. 68, that it is essential for democratic elections that proper electoral rolls should be maintained and in order that the same may be available, it is necessary that after the preparation of the electoral rolls opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possess the requisite qualifications. Opportunity should also be given for the revision of the electoral rolls and for the adjudication of the claims for being enrolled. Unless these are done the obligation cast upon those holding the ele.ctions is not discharged and the elections held on such imperfect electoral rolls would acquire no sanctity and would be liable to be challenged at the instance of the parties concerned. In the case referred to above, validity of wnicipal elections was under consideration. Obviously provisions of Article 329(b) of the Constitution had no application to such election and this Court was dealing with the statutory requirements for holding of the elections.

Challenge to the 1979 electoral rolls is on the basis that persons who are not citizens of India have been included in the electoral rolls. Infiltration of people from outside India into

INDARJIT RARUA v. ELECTION COMMISSION [RANGANATH MISRA, J. ] 235

Assam and inclusion of their names in the electoral rolls A constl.tuted one of the main grounds for the agitation in Assam.

Section 16 of the 1950 Act clearly provides that a person shall be disqualified for registration in an electoral roll if he is not a citizen of India. Detailed provision has been made in the Registration of Electors Rules to raise objection to the inclusion of the name of a disqualified person. Part Ill of the B +950 Act makes provision for electoral rolls for Assembly Constituencies. Section 21 deals with preparation and revision of electoral rolls; section 22 provides for correction of entries in electoral rolls while section 23 authorises inclusion of names in elector al rolls. Sec ti on 24 provies an appeal to the Chief Electoral Officer from any order made by the Electoral c Registration Officer under s. 22 and 23. Section 21 making provision for preparation and revision of electoral rolls runs tlrus:

"(1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference to the o qualifying date and shall come into force iolllediately upon its fi!lal publics ti on in accordance with the rules made under this Act.

(2) The said electoral roll -

(a) shall, unless otherwise directed by the Election Col!lnission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date-

(i) before each general election to the House of

People or to the Legislative Assembly of a State; and F

(ii) before each by-election to fill a casual vacancy in a seat allotted to the constituency; and

(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such G revision has been directed by the Election Commission:

Provided that if the electoral roll is not revised or continued operation of the said electoral roll shall not thereby be affected.

(3) x x x x x x x xx" H

236 SUPREME COURT REPoRTS [1985] SUPP.3 s.c.R.

The proviso, therefore, makes the position clear beyond doubt that if for some reason an electoral roll ie not revised as required by sub-a. (2), the unrevised roll is not affected in any way and continues to be the electoral roll holding the field.

Dealing with the aspect about the validity of electoral rolls of 1979, we have indicated

"We may also point out that in our opinion the electoral 'rolls of 1979 cannot be condemned as invalid.

The counter/affidavit• of Shri Ganesan, Secretary to the Elec>tion Commission and Shri Ashok Kumar Arora, Additional Chief Electoral Officer, Assam, clearly show that the procedure prescribed by the Representation of the People Act, 1950, for revision of the electoral rolls was followed. The Press Note dated September 18, 1979, on which considerable reliance was placed on bshalf of the petitioners nust be reed along with the correspondence exchanged between the Chief Electoral Officer, Assam and the Secretary to the Election Commission prior to the issue of the Press Note and if all these documents are read as a whole, it is clear that no instructions were issued by the Election Commission to the Chief Electoral Officer not to decide the question of citizenship if any objection to a particular entry in the draft electoral rolls was raised on the ground of lack of qualification of citizenship. All tilat the Election Commission directed the Chief Electoral Officer to do was to proceed on the basis that those whose names were already included in the previous . electoral rolls and we may point out that the electoral rolls of 1977 on the basis of which the election to the Assam Legislative Assembly were held in 1978 were not at any time challenged by any of the petitioners should be prima facie regarded as satisfying the qualification of citizenship and if any specific objection to the'inclusion of any particular person on the ground of lack of qualification of citizenship was raised, it should be decided by the appropriate electoral authorities and the burden of showing that such person was not a citizen should be on the objector. We are informed and the affidavita also go to show that in fact a large number of


l!illARJIT &\RUA v,, ELECIION Wf!ISSION (RANGANATH MISRA, , J, J 237

i objections lbased on the ground of lack of , qualification' of citizenship were disposed of by the appropriate electoral , authorities after the publication of the draft electoral rolls. So far as the inclusion of any new names in the draft electoral rolls was concerned, the Election Commission directed , that the utmost care should be taken to ensure that only citizen, s were enrolled as electors. lie do not , '_think that these were in any way in defiance of the provisions of the Representation of the' People Act, 1950, and the Electoral Regiatratioti Rules, 1960 made under the Act., The electoral rolls of 1979 llll8t 1

therefore, be regarded as not suffering from any legal infirmity, though we may reiterate once, again that even if the electoral rolls of 1979 were invalid, that would not affect the , valiciity of, the impugned elections nor would a writ petition under Article 226 of: the Conatitution be maintainable for challenging the impugned election•" , , , .' ,,

From the materials placed by the, patties and the Election Commission, we have come to the conclusion that the Election Commission did not give directions contrary to the requirements of S• 16 of the Act and the revision of the 1979 electoral rolls , could not be undertaken for reasons beyod the control of the

Election Commission• AS pointed out by us in our order of September 28, 1984, ther11 was no dispute to the electoral roll of 1977 nor was any challenge advanced against the election of 1978 to the State Legislature held on the , basis of such rolls., Admittedly, the 1979 rolls were the outcome of intensive revision of the rolls of 1977, That being the position and in view of the proviso to sub-section (2) bf s. 21 which we have extracted above the electoral rolls of 1979 were validly in existence and remained effective even though the process contemplated in sub-••

(2) for revision had not either been undertaken or completed. tt has been indicated by a Constitution Bench decision of this, Court in Lalcahni Charan Sen & Ora. v. A.LK. , Hassan Uzz= • Ono c.As. 739~741/82 decided on 8.5.85, that preparation and revision of electoral rolls is a continuous proces!J'not connected with any particular election but when an election, is to be held, the electoral roll which exists at the t:lm.l when election is notified would form the foundation for oolding of such, election• That is why aub-s,

(3) of : s, 23 provides for auspension , of iw/ , modification to the electoral roll after the last date of making of riominations , for an electi6n and, until c0t1pletion of the

II •

SUPRL'!E GOL"RT REPORTS [1985] SllPP.3 s.c.R.

election. We had, therefore, co:we to the conclusion that the electoral rolls of 1979 were not invc.lid and .could provide the basis for holding of the elections in 1983. I.nether preparation and publication of the electoral rolls are a part of the process of election within the meaning of Article 329(b) of the Constitution is the next aspect to be considered. In N.P.

Ponnus-1 v. llet:urniog Officer, Nam•kk•l Constitueocy & Ors. [1952] s.c.R. 218, this Court had to decide the amplitude of the term "election". Fazal Ali, J, speaking for the constitution Bench indicated :

"It seems to me that the word 'election' has been used in Part of the Constitution in the wide sense, that is to say, to connote the entire procedure to be go through to return a candidate to the legislature. The use: of the expression "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part including article 329(b). That the word "election" be'lrs 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 subject is dealt with quite concisely in Halsbury's Laws of England in the following passage under the heading "Colllllencement of the Election":-

'Although the first formal step in every election is the issue of the writ, the e:J.ec ti on is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as tO make the parties concerned responsible for breaches of election law, the test being whether the contest is "reasonably imminent".

Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view.

Nor, again does the nomination day afford any criterion. The election will usually begin at least ear lier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when "the conduct and management of"

INDARJIT BARUA v. ELECTION COMMISSION [RANGANATH MISRA, J. J 239

an election may be said to begin. Again, the question A as to when a particular person conmences to be a candidate is a question to be considered in each case.'

The discussion in this passage makes it clear that the word "election" can be and has been appropriately used B with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process."

We are not prepared to take the view that preparation of C electoral rolls is also a process of election. We find support for our view from the observations of Chandrachud, C.J. in Laksbni Charan Sea's case (supra) that "it may be difficult, consistently with tr.at view, to hold that preparation and revision of electoral roll, is a part of 'election' within the meaning of Article 329(b)". In a suitable case challenge to the D electoral roll for-not complying with the requirements of the law may be entertained subject to the rule indicated in Poonuswami's case (supra). But the election of a candidate is not open to challenge on the score of the electoral roll being defective.

Holding the election to the Legislature and holding them according to law are both matters of paramount importance. Such E elections have .to be held also in accordance with a time bound programme contemplated in the constitution and the Act. The proviso added in s.22(2) of the Act of 1950 is intended to extend cover to the electoral rolls in eventualities which otherwise might have interfered with the smooth working of the programme.

These are the reasons for which we came to the conclusion that the electoral roll of 1979 had not been vitiated and was not open F to be attacked as invalid.

Two other brief contentions may now be noticed.

In Transferred Case No.364/84 there was a prayer that the electoral rolls on the basis of which election from Assam would be held should be revised before the holding of such election as required G by ss. 21(2) (a) of the Act> of 1950. This meant an intensive revision. Counsel appearing for the Election Colllllission made a statement before the Court to the following effect:

"The Co=ission will carry out revision of the elector rolls for all constituencies in Assam in accordance with the Act and the. Rules and such H

A revision shall, as far as praticable be intensive revision and wherever it is not prac.ticable to carry out intensive revision in any constituency or constituencies, the revision shall be sumnary or special revision."

B We indicated in our order of September 28, 1984, that the 1tatement made on behalf of the Election Comnission lll'JSt allay the apprehension of all the petitioners in the case since it made it clear that before eletions are held i.n As1am, there would be reviaion of the electoral rolls in the manner indicated in the statement. Considerable argument was advanced with reference to the elector al card. As it appears the Election Commiaeion had C introduced a form different from the one preacribed in Form 4 read with rule 8 of the Electors Registration Rule•· Here again, a •tatement was made on behalf of the Comniasion to the following effect :

"For the sake of greater clarity and keeping in view the proviliona of a.2(c) of the Repreaentetion of the D People Act, 1951, and Form 4 of the Regiatration of l!lectora Rules, 19601 the word 'citizen' 1hall be 1ubstituted for the word 'elector' wherever it occur• in the electoral card by i11uenco of a direction by

the Elie tion CommiHion. "

With the adoption of tho buil indieated in tho 1t&temont1 thl

obj1ction on that 1cor1 mu1t bfl Uken to have vani1hod

Con1id1rable arg\lllllnt had al1c been advanced r1prdina th• carryi1111 out of r1vi1ion of al1ctoral roll•· P1titoner1 wanted

that the Election Collllli11ion 1hould do 10 ll10 moto while thl F ll:lection Comm111ion pleaded itt inability keeping in view the ambit and 1tup1ndou1 proportion of the tuk and plud1d that claim or objection 1hould be thl foundation of thl revi1ion.

Dealing with thl.1 qu11tion, aftor hearing counael at arut length

WI had lt&ttd I

G "Th• only direction Which we can 11iv1 to tho Election Commi11ion i1 to carry out r1vi1ion of thl 1lactor1l rolll in accordance with thl procedure pr11cri bed in

thl Ropre1entation of P•ople Act, 1950 and thl Elector. Regiltration Rulaa,

1960. But 1inca thl Election Commi11ion ha• 1tated before u1 that it will II carry out revi1ion of the electoral roll• and that

INDARJIT BARUA v, ELECTION COMMISSION [ RANGANATH MISRA, J.] 241

such revision shall, as far as practicabie, be intensive revision and where it is not so practicable, it will be swmnary or special, we do not think it necessary to give any further directions to the Election Commission. When the draft electoral rolls are ready as a result of such revision carried out by the Election Conmission, it will be open to anyone whose name is not included in the draft electoral rolls to lodge a claim for inclusion of his name on the round that he is an eligible elector and if the name of any person is erroneously included in the draft electoral rolls even though he is not a citizen, it will be equally open to anyone entitled to object to challenge the inclusion of the name of such person in the draft electoral rolls by filing an objection in accordance with the Electors Registration Rules, 1960.

It is neither desirable nor proper for us to lay down as to what quantum of proof should be required for the purpose of suostantiating any such claims or objections lodged before the Election Cormnission. It would be for the appropriate electoral officer to consider and decide in the light of such material as may be produced before him by the objector as also by the person whose name is sought to be deleted from the electoral rolls and such further material as may be available to him including the electoral rolls of the earlier years, whether such person is a citizen or not. We may point out that the appropriate electoral officer may also on his own, if he has on the material available to him including the electoral rolls of the earlier years, reason to entertain any doubt, take steps to satisfy himself 1.n regard to the citizenship of a person whose name is sought to be included or has been included in the electoral rolls.

We take note of the satisfaction that with the position and with a sense of accord reached aoout Assam the agitation seems to have ended. The Election Connnission is at work and in compliance with the provisions of the Act and the Rules,. the electoral rolls are being revised. We hope and trust' that elections which are indispensable to the democratic process would be held in accordance with law as expediently as possible and on the basis of a revised electoral roll in tenus of . the statement made to the Court by the Election Conmission.

Transferred Cases dismissed.