The judgment establishes the principle that the jurisdiction of the High Courts to entertain election disputes during the progress of election proceedings should be exercised with caution and reluctance, and only when a clear and strong case for intervention is made out.

Headnote:
Art.226 - Election Commission of India - R.59A of the Conduct of Election Rules, 1961 - The judgment discusses the jurisdiction of the High Court to entertain petitions under Art.226 of the Constitution and to issue interim directions after the commencement of the electoral process. The court also examines the conflict between the jurisdiction conferred on the High Courts by Art.226 and the embargoes created by Art.329. The judgment provides a detailed analysis of the legal principles and precedents related to the jurisdiction of the High Courts and the Election Commission in electoral matters.
Fact of the Case:

The Election Commission of India issued a notification under R.59A of the Conduct of Election Rules, 1961, specifying certain constituencies for counting votes at the General Election to the House of the People, 1999. Two writ petitions were filed challenging the notification, alleging large-scale booth capturing and seeking suspension of the notification. The High Court issued an interim order directing the Election Commission to conduct counting boothwise.
Finding of the Court:

The High Court's interim order was set aside by the Supreme Court, which held that the High Court ought not to have made the interim order as the petitioners failed to make out a case for intervention amidst the progress of election proceedings. The Court also clarified that the impugned order did not have the effect of retarding, protracting, delaying, or stalling the counting of votes or the progress of the election proceedings.
Issues: The main issue was the jurisdiction of the High Court to entertain petitions under Art.226 of the Constitution and to issue interim directions after the commencement of the electoral process, particularly in the context of the embargoes created by Art.329.
Ratio Decidendi: The judgment provides a detailed analysis of the legal principles and precedents related to the jurisdiction of the High Courts and the Election Commission in electoral matters. It emphasizes the need for caution and reluctance in entertaining election disputes during the progress of election proceedings, unless a clear and strong case for intervention is made out.
Final Decision: The appeals were allowed, and the impugned orders of the High Court were set aside. The Court made it clear that anything said in the order shall not prejudice any plea raised or any issue arising for decision in any election petition.

Judgment :-

1. An interim order passed by the High Court in exercise of its writ jurisdiction under Art.226 of the Constitution, during the currency of the process of election, whereby the High Court has stayed the notification issued by the Election Commission of India containing direction as to the manner of counting votes and has made directions of its own on the subject, has been put in issue by the Election Commission of India filing these appeals by special leave under Art.136 of the Constitution.

2. The facts in brief. The 12th Lok Sabha having been dissolved by the President of India on 26.4.1999, the Election Commission of India announced the programme for the General Election to constitute the 13th Lok Sabha. Pursuant thereof, the polling in the State of Kerala took place on 11.9.1999. The counting of votes was scheduled to take place on 6.10.1999.

3. In exercise of the powers conferred by R.59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published in Kerala Gazette Extraordinary, dated, 1st October, 1999 which reads as under:

"NOTIFICATION

No. 470/99/JUD-II(H.P.) - WHEREA S, R.59A the Conduct of Election Rules, 1961 provides that where the Election Commission apprehends intimidation and victimisation of electors in any constituency and it is of the opinion that it is absolutely necessary that ballot papers taken out of all ballot boxes used in that constituency should be mixed before counting, instead of being counted polling stationwise, it may, by notification in the Official Gazette, specify such constituency;

2. AND WHEREAS, on such specification under the said R.59A of the Conduct of Election Rules, 1961, the ballot papers of the specified constituency shall be counted by being mixed instead of being counted polling stationwise.

3. AND WHEREAS, the Election Commission has carefully considered the matter and has decided that in the light of the prevailing situation in the State of Kerala, and in the interests of free and fair election and also for safety and security of electors and with a view to preventing intimidation and victimisation of electors in that State, each of the Parliamentary Constituencies in the State except 11-Ernakulam and 20-Trivandrum Parliamentary Constituencies, may be specified under the said R.59A for the purposes of counting votes at the General Election to the House of the People, 1999 now in progress;

4. NOW, THEREFORE, the Election Commission hereby specifies each of the said Parliamentary Constituencies except 11-Ernakulam and 20-Trivandrum Parliamentary Constituencies in the State of Kerala, as the constituencies to which the provisions of R.59A of the Conduct of Elections Rules, 1961 shall apply for the purposes of counting of votes at the current General Election to the House of the People.

BY ORDER

Sd/

(K.J. RAO)

Secretary, Election Commission of India"

4. In Ernakulam and Trivandrum constituencies electronic voting machines wee employed for polling. In all other constituencies of Kerala voting was through ballot papers.

5. On 4.10.1999, two writ petitions were filed respectively by the respondents No.1 & 2 herein, laying challenge to the validity of the above notification. In O.P. No. 24444/1999 filed by respondent No. 2, who was a candidate in the election and has been a member of the dissolved Lok Sabha having also held the office of a Minister in the Cabinet, it was alleged that large scale booth capturing had taken place in the Lok Sabha election at Kannur, Allappuzha and Kasaragod constituencies. Similar allegations of booth capturing were made as to polling stations throughout the State. At such polling stations, the polling agents of Congress party and their allies were not allowed to sit in the polling booths. In 70 booths polling was above 90%, in 25 booths the percentage of polling was more than 92% and in 5 booths it was 95% and above. The presiding officers and the electoral officers did not take any action of the complaints

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2000 Supreme(Ker) 403

The judgment establishes the principle that the jurisdiction of the High Courts to entertain election disputes during the progress of election proceedings should be exercised with caution and reluctance, and only when a clear and strong case for intervention is made out.

Cases Referred (1)