2007 Supreme(P&H) 1387

PUNJAB & HARYANA HIGH COURT
Vijender Jain, M.M.Kumar, Jasbir Singh, Rajive Bhalla and Rajesh Bindal JJ.
Prithvi Raj
Versus
State Election Commission, Punjab
Civil Writ Petition No. 3575 of 2003,
Decided On : JULY 25, 2007

IMPORTANT POINT
Election Matters-Bar to interference by Courts-Judicial review-Challenge to an election though not barred, judicial review there of would be postponed to the post election stage-This exercise of judicial restraint cannot be equated with lack of or bar or jurisdiction.
Election petition--High Court would, in the exercise of judicial restraint, postpone judicial review to a stage after the Election Tribunal adjudicates the election petition. The power of a High Court, under Article 226 of the Constitution of India would, however, be available, where exercise of the said power subserves the progress of the election, facilitates its completion and is exercised to further the election process.
Election to a Municipality-Once an election has been notified under Section 13-A(2) of the Municipal Act, an "election", as defined in Section 3(4-c) thereof, can only be called into question, by way of an election petition, filed in accordance with the provisions, and the mode and manner, as set out in the Election Commission Act.
Election to a Municipality-A petition that "calls into question" an "election", during the period of the "election", would not be entertained, under Article 226 of the Constitution of India.

Headnote:(A) Punjab State Election Commission Act, 1994, Section 74-Constitution of India, 1950, Article 243(ZG), 226 and 329-Election Matters-Bar to interference by Courts-Judicial review-Paramount need in democracy to ensure an expeditious conclusion of elections-Challenge is to an election though not barred, judicial review there of would be postponed to the post election stage-This exercise of judicial restraint cannot be equated with lack of or bar or jurisdiction. (Paras 21 and 27)

       (B) Constitution of India, 1950, Article 226-Writ jurisdiction-Basic structure of Constitution-Judicial review-High Courts power to issue writs, directions or order including writ in the nature of habeas corpus, mandamus, prohibtion, quo warranto and certiorari-Enforcement of rights conferred by Part III of the Constitution and for any other purpose-Held; Interalia,

       (i) A High Courts jurisdiction to issue rule nisi, thus, flows from Article 226 of the Constitution.

       (ii) The power of judicial review is neither arbitrary nor unbridled.

       (iii) High Courts, while upholding their jurisdiction to issue writs, orders or directions have generally, declined to exercise jurisdiction where an alternative and efficacious remedy is available, the cause suffers from unexplained delay and laches, or involves adjudication of disputed questions of facts, and relevant to the present case, in election matters, where the process of election has commenced.

       (iv) Restraints, that a High Court, places, on exercise of the power of judicial review, cannot be equated with a lack of jurisdiction or an assertion that the High Court lacks powers to entertain a writ petition.

       (v) One of the pillars that supports the edifice of the Constitution is the power of judicial review which is integral to and an inalienable part of the basic structure of the Constitution.

       (vi) Article 226 of the Constitution of India, is integral to the scheme of judicial review, and thus to the basic structure of the Constitution.

       (vii) Without Article 226, the Constitution, would be an empty shell, lacking substance, and a mere piece of paper, devoid of any means to protect and enforce its lofty ideals. (Para 9 to 11)

       (C) Constitution of India, 1950, Articles 243 Z(b), 226-Punjab Municipal Act, 1911, Section 3 (4C), 13-A-Election to a Municipality-Judicial review-Held; Article 243ZG(b) of the Constitution, cannot be read down or held to be ultra vires of the provisions of Article 226 of the Constitution of India. The provisions of Article 243ZG(b) of the Constitution have to be read in the light of the principles of law. (Para 31)

       (D) Punjab Municipal Act, 1911, Section 3(4c), 13-A-Constitution of India, 1950, Articles 243 K, 243-ZA, 243 ZG, 243 O and 226-Punjab State Election Commission Act, 1994-Election to a Municipality-Judicial review-Jurisdiction of the High Court under Article 226 of the Constitution qua Article 243 ZG-Term "Election" as defined in Section 3(4C) of the Municipal Act-It takes within it ambit the period commencing from the issuance of a notification calling for an election, to the declaration of the result-The election is to be conducted by the Election Commission, duly constituted under the Election Commission Act-Inter alia held;- That the High Court would not entertain a challenge "calling in question" an "election." Challenge to an election, would be postponed, to a time and stage after the conclusion of the "election" and then also by an election petition, a High Court would, in the exercise of judicial restraint, postpone judicial review to a stage after the Election Tribunal adjudicates the election petition. The power of a High Court, under Article 226 of the Constitution of India would, however, be available, where exercise of the said power subserves the progress of the election, facilitates its completion and is exercised to further the election process. (Para1 7 and 31)

       (E) Punjab State Election Commission Act, 1994, Section 73, 89 (1), 74, 108-Punjab Municipal Act, 1911, Section 3(4c), 13 A(2)-Constitution of India, 1950, Article 243 2G, 226-Election to a Municipality-Election-Bar to interference by Courts in electoral matters-Judicial review-Jurisdiction of the High Court under Article 226 of the Constitution qua Article 243 ZG-

       (i) That once an election has been notified under Section 13-A(2) of the Municipal Act, an "election", as defined in Section 3(4-c) thereof, can only be called into question, by way of an election petition, filed in accordance with the provisions, and the mode and manner, as set out in the Election Commission Act.

       (ii) Where the cause placed before a High Court calls into question an "election," the High Court would in the exercise of judicial restraint, desist from exercising jurisdiction,

       (iii) A Court shall not entertain a petition "calling in question", an "election," once the "election" has been notified.

       (iv) A petition that "calls into question" an "election", during the period of the "election", would not be entertained, under Article 226 of the Constitution of India.

       (v) Redress to any such grievance, would have to await the outcome of the election and then also would be urged, by filing an election petition, under the provisions of the Election Commission Act.

       (v) A High Courts power of judicial review is merely postponed, to a time and a stage, after the conclusion of the election and then also to a judicial appraisal of any judgment or order that may be passed by an Election Tribunal, duly constituted, in terms of Section 73 of Election Commission Act.

       (vi) However the High Courts jurisdiction to issue an appropriate writ, order or direction to further the cause of an election would not be affected, in any manner, as, such a petition does not call into question an election.

       (vii) If the grievance put forth, falls within any of the grounds enumerated, for the filing of an election petition under Sections 89 and 108 of the Election Commission Act, Article 243 ZG(b) of the Constitution would come into play, and the grievance urged, would have to be redressed by filing an election petition after the conclusion of the election.

       (viii) The High Court, would in the exercise of judicial restraint, relegate such a petitioner to his remedy of an election petition.

       (ix) This exercise of judicial restraint cannot be equated with lack of or bar of jurisdiction.

       (x) Once the electoral process commences, with the issuance of a notification, under the Municipal Act, any grievance, touching upon an "election" would be justiciable, only by way of an election petition.