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High Court Of Delhi
I.K.GUJRAL - Appellant
Versus
ELECTION COMMISSION OF INDIA - Respondent
Civil Writ 2044 of 1991
Decided On : 03/27/1993
The court held that the Election Commission has the power to countermand the election under Section 58a(2)(b) of the Representation of People Act, 1951 (the Act). The court also held that the action of countermanding the election is an integral part of the electoral process and is not a step interfering in the process of election. The court further held that the commencement of fresh proceedings for returning a candidate to the legislature after the countermanding of the election does not amount to a new election but is the same election. The court also held that the word "election" in Article 329(b) of the Constitution connotes the entire procedure to be gone through to return a candidate to the legislature and not just the final selection of a candidate.
Fact of the Case:
The petitioner, a candidate in the parliamentary election, challenged the Election Commission's order countermanding the election in his constituency on the ground that the order was illegal and unconstitutional. The petitioner argued that the Election Commission lacked inherent jurisdiction to countermand the election, that the order was passed in violation of the principles of natural justice, and that Section 58a(2)(b) of the Act was unconstitutional.
Finding of the Court:
The court held that the Election Commission has the power to countermand the election under Section 58a(2)(b) of the Act. The court also held that the action of countermanding the election is an integral part of the electoral process and is not a step interfering in the process of election. The court further held that the commencement of fresh proceedings for returning a candidate to the legislature after the countermanding of the election does not amount to a new election but is the same election. The court also held that the word "election" in Article 329(b) of the Constitution connotes the entire procedure to be gone through to return a candidate to the legislature and not just the final selection of a candidate.
Issues: 1. Whether the Election Commission has the power to countermand the election under Section 58a(2)(b) of the Act? 2. Whether the action of countermanding the election is an integral part of the electoral process or a step interfering in the process of election? 3. Whether the commencement of fresh proceedings for returning a candidate to the legislature after the countermanding of the election amounts to a new election or the same election? 4. Whether the word "election" in Article 329(b) of the Constitution connotes the entire procedure to be gone through to return a candidate to the legislature or just the final selection of a candidate?
Ratio Decidendi: 1. The court held that the Election Commission has the power to countermand the election under Section 58a(2)(b) of the Act because the provision is a valid legislation and the President himself has asked the constituencies to return a candidate to the legislature in accordance with the Act, rules and Orders made thereunder and such an action is within the ambit and scope and functions of the Election Commission. 2. The court held that the action of countermanding the election is an integral part of the electoral process and is not a step interfering in the process of election because it is a step towards the completion of the election and cannot be considered as a step interfering in the process of election. 3. The court held that the commencement of fresh proceedings for returning a candidate to the legislature after the countermanding of the election does not amount to a new election but is the same election because the countermanding of election is held to be a part of the entire procedure to be gone through to return a candidate to the legislature, and admittedly no candidate has yet been returned to the legislature and such step has been taken in the purity of elections and to promote a free and fair elections, procedure to be initiated for holding elections to return a candidate to a legislature cannot be termed as a "new election". 4. The court held that the word "election" in Article 329(b) of the Constitution connotes the entire procedure to be gone through to return a candidate to the legislature and not just the final selection of a candidate because the word "election" has to be interpreted as provided in Article 329 while considering the question of its blanket ban to the entertainment of the writ petition.
Final Decision: The court dismissed the writ petition challenging the Election Commission's order countermanding the election.
( 1 ) THE principal and the preliminary question thatarises for consideration in these writ petitions is whether the High Courthas the jurisdiction to try and entertain the petition under Article 226of the Constitution in view of the blanket ban under Article 329 (b) of theconstitution.
( 2 ) THIS writ petition and other connected writ petitions raise thesame principal question of law above-mentioned and as such can be disposedof by a common judgment. As a matter of fact, in all the writ petitionsthe Election Commission in exercise of the powers under Article 324 ofthe Constitution and Sections 58, 58a,135-A and 153 of the Representation of Peoples Act, 1951 (hereinafter called the 1951 Act ) has passed anorder dated 21. 5. 1991, which is the subject-matter of challenge in thesewrit petitions, whereby he has countermanded the election.
( 3 ) IN order to determine the question above-mentioned, it will besufficient to narrate brief facts as stated in CW 2044/91- I. K. Gujral v. Election Commission.
( 4 ) IN pursuance of the notification issued on 19. 4. 1991 under Section 14 (2) of the Representation of Peoples Act, 1951 (hereinafter calledthe Act), called upon all Parliamentary Constituency (except Parliamentaryconstituencies in the State of J and K) to elect members in accordance withthe provisions of the said Act and of the Rules and order made thereunderwhich included, among others, 35-Patna Parliamentary Constituency inthe State of Bihar. Simultaneously, the Election Commission issued aprogramme notification as required under Section 30 of the 1951 Act fixingthe time table for the general election, namely, 26. 4. 1991 as the last datefor making nominations, 27. 4. 1991 as the date for scrutiny of nominations29. 4. 1991 as the last date for withdrawal of candidatures, and 20. 5. 1991as the date of poll in the said 35-Patna Parliamentary Constituency and31. 5. 1991 as the date before which the election shall be completed.
( 5 ) THE petitioner filed his nomination papers as a candidate ofjanata Dal from 35-Patna Parliamentary Constituency. The nominationpapers of the petitioner were scrutinised and accepted by the Returningofficer. According to the petitioner, the election to the said Constituencywas held on 20/05/1991 peacefully and out of a total electorate of about13 lakhs, about 50% voters exercised their franchise. However, to uttersurprise of the petitioner, he received an order dated 21. 5. 1991 wherebythe Election Commission in exercise of the powers under Article 324 ofthe Constitution and Sections 58. 58a, 135a and 153 of the 1951 Act hadcountermand the election of 35-Patna, Bihar (annexure A) on the groundthat the Commission had received information based on the reports of thestate Government, the Chief Electoral Officer of the State, the Returningofficer, the Observers and other relevant sources of information that onthe date of polling, i. e. , 20. 5. 1991 there had been large scale incidents ofelectoral malpractice involving booth capturing by seizure of polling stations,making polling authorities surrender the ballot papers, making forciblepossession of polling stations and prevention of free access to the votersfor the purpose of voting, threatening electors and preventing them fromgoing to the polling station to cast their vote and that consequently thepolls in the aforesaid constituency have not been free or fair. Itmay be appropriate to quote this order of the Election Commission asunder:
"election COMMISSION OF INDIAORDERWhereas, the Election Commission in its Notification No. 464/91 (1) dated 19/04/1991, issued under Section 30 of the Representation of the Peoples Act, 1951 (43 of 1951) had (i) fixed the 20/05/1991, as the date on which poll shall betaken in the Parliament Constituency of 35 Patna of Bihar and (ii) specified the 31/05/1991, as the date before whichthe election shall be completed in the above constituency:andwhereas, the Election Commission has received information basedon
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