Full Judgement
Lakshmi Charan Sen & Ors Vs. A.K.M. Hassan Uzzaman & Ors [1985] INSC 133 (8 May 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) DESAI, D.A.
SEN, A.P. (J) VENKATARAMIAH, E.S. (J) ISLAM, BAHARUL (J)
CITATION: 1985 AIR 1233 1985 SCR Supl. (1) 493 1985 SCC (4) 689 1985 SCALE (2)384
CITATOR INFO: F 1986 SC 103 (12) R 1988 SC 61 (6)
ACT:
Constitution of India 1950 Article 226-Election process-Interference by High Court-Postponement of elections-Interim orders and direction Passing of-Caution and reluctance-Necessity of Article 324-Electoral rolls-Preparation of-Election Commission not having own staff-Central and State Government staff-Enumerators-Objections in list-Disposal of-Efficiency and impartiality - Emphasised.
Article 329 (b) - Electoral rolls-Preparation and publication of-Whether part of election process-Allegations of irregularities in electoral rolls-Interference by High Court in electoral matters-Whether bar to interference.
The Representation of People Act 1950 Section 14(b) and 21.
The Representation of People Act 1951.
Election Commission-Giving of directions to Chief Electoral Officers-Whether have force of law-Violation of directions-Whether create rights and obligations under Election Law.
Electoral Roll-Preparation and revision-What is-Special revision- When arises-Qualifying date in regard to electoral roll-What is The Registration of Electors Rules 1960 Rules 10 to 20 and 26.
Conduct of Election Rules 1961 'basic roll of constituency-What is-Voters list-Basis of free and fair elections-Inclusion in electoral roll deletion of ineligible persons wrongly included-Rights of eligible Voter-Fee of 10 p. for challenge Levy of-Whether unreasonable Administrative Law Constitutional institutions and functionaries Discharge of duties by-presumption of existence of bonafide - Preserve and protect integrity of bona- 494 fides - Preserve and protect Integrity of constitutional institutions-Duty of courts.
HEADNOTE:
A writ petition was filed in the Calcutta High Court claiming the following reliefs: (1) That the Chief Election Commissioner and the Chief Electoral Officer be restrained from acting, either by themselves or through their subordinates, in pursuance of the instructions or directions issued by them from time to time; (ii) that they should be restrained from scoring out any names from the electoral rolls which were finally published; (iii) that they should be restrained from issuing or publishing any notification under s. 15 (2) of the Representation of People Act of 1951 without preparing the electoral rolls de novo after the disposal of the appeals against orders whereby claims and objections were decided; and (iv) that they should be restrained from holding elections to the West Bengal Legislative Assembly until the disposal of all the claims, objections and appeals under the Representation of People Acts of 1950 and 1951, The writ petitioners who were eight in number were enrolled as voters in the electoral roll of the West Bengal Legislative Assembly. Some of them were office-bearers of political parties like the West Bengal State Muslim League, West Bengal Unit of the Janta Party, All India Christian Demarcate Party and West Bengal Congress Legislative Party.
It was contended in the writ petition that the guidelines or instructions issued by the Chief Electoral Officer by circular dated March 12, 1981 asking all the District Officers and he sub - Divisional Officers to make a de novo intensive revision of the electoral rolls for the general election to the Legislative Assembly, West Bengal, without reference to the then existing electoral rolls are vague, unreasonable and arbitrary as a result of which it would not be possible to hold free and fair elections on the basis of those rolls, and that the guidelines or instructions issued were blatantly violated in, certain cases, and that the exact extent of the polling areas was not demarcated clearly, no house-to-house visits were made and the names of the members of each household who had attained the age of 21 year on the prescribed date were not recorded in several cases By a Memorandum dated May 12, 1981 which was after the work of the intensive revision of the electoral rolls had begun, the Election Commission of India informed the Chief Electoral Officers of all the States and the Union Territories that its attention was drawn to certain irregularities in the matter of revision of electoral rolls and that in many cases lists pertaining to certain polling booths were found to be defective. The Draft Electoral Roll which was published in September 1981 were manipulated by including therein not only Bangladesh Nationals but minors, dead persons and refugees from Assam who have living in refugee camps. These manipulations in the electoral roll became possible because of the deliberate infiltration of the CPI (M) members of the Government staff in the election machinery as enumerators. The infirmities in the electoral rolls were of such a basic and inherent character that unless a further de novo revision of the electoral rolls was undertaken, it would be unfair to allow the elections to be held on the basis of the said electoral rolls. Complaints relating to individual cases were sent to the Election Commission but no attention was paid to them. The scheme of the Election Law and the rules framed thereunder are so designed that unless all the objections were 495 decided by the appellate authority and the Registration Officer and the electoral rolls are correspondingly amended especially when a de novo revision A of the electoral rolls is directed to be made it is impermissible to issue a notification under s. 15 (2) of the Act of 1951. It was further alleged that nearly 8 lakhs complaints were filed in regard to the voters' lists but no notice was issued to the concerned persons while deciding those complaints. In a few cases where notices were sent not enough time was given to the complaints to appear before the concerned authorities to make their contentions. Article 329 was no bar to the filing the writ petition under Article 226 as the petitioners were not challenging the 'commencement of polling'.
On February 12, 1982 a single judge of the High Court issued a rule on the writ petition and granted the ad- interim relief prayed for. The writ petition was directed to be listed on February 19, 1982 when, after some arguments, the matter was adjourned to February 25, 1982. Thereafter four special leave petitions were filed in this Court against the ad-interim orders passed by the Single Judge. On February 23, 1982 certain directions were issued in one of those special leave petitions and it was later ordered that the single judge of the High Court should proceed to hear the matter.
The writ petition was heard by the Single Judge on February 25, 1982, who directed the respondents to the writ petition to take certain steps before issuance of the notification under section 15 (2) of the Act of 195], in effect, confirming the ad-interim order dated February 12, 1982.
In the four appeals to this Court, the writ petitioners who succeeded in obtaining interim orders from the High Court are in the array of respondents. Three of those appeals were filed by persons who contended that the High Court ought not to have interfered with the election process which was imminent. The fourth appeal was filed by the Election Commission of India, the Chief Election Commissioner, and the Chief Electoral Officer who contended that the High Court had no jurisdiction to entertain the writ petition by reason of Article 329 (b) of the Constitution, that the election process which had already begun should not have been interfered with by the High Court and that the recommendation made to the Governor of West Bengal by the Election Commission under s. 15 (2) of the Act of 1951 was being thwarted by frivolous and baseless objections raised by the writ petitioners. In their counter - affidavits to the writ petition it was contended that the electoral rolls which were prepared de novo after house to house enumeration in 198 1 and which were intensively revised in all the 294 assembly constituencies were finally published with the supplements on December 31, 1981. On January 1, 1982 the finally published electoral rolls with the supplements were published in draft in the respective polling areas. Claims and objections were specifically invited in the prescribed forms under the law. It was further alleged that the petitioners were espousing the cause of unnamed and undisclosed persons through a writ petition, which does not claim to possess a representative capacity and that the upshot of the petition is that some three crores of voters were being deprived of an opportunity to exercise their franchise in order that an investigation should be made as to whether the names of some 5 lakhs persons should be included in or excluded from the electoral roll.
496 ^ HELD:
[By the Court] The Writ Petition under Article 226 of the Constitution field before the Calcutta High Court and transferred for disposal to this Court be dismissed. All orders including stay, and the interim order granted by the High Court vacated and set aside. The four Civil Appeals will stand disposed of in the light of the dismissal of the writ petition. [525 G-H] [Per Majority Chandrachud, CJ., Desai, Sen, Venkataramlah JJ.] 1.(a) The High Court acted within its jurisdiction in entertaining the writ petition and in issuing a Rule Nisi upon it, since the petition questioned the vires of the laws of election. But, it was not justified in passing 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 material before it to warrant the passing of those orders. The allegations in tho Writ Petition are of a vague and general nature on the basis of which no relief could be granted. Secondly, though the High Court did not lack tho jurisdiction to entertain the Writ Petition and to issue appropriate directions therein, no High Court in the exercise of its power under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election which is reasonably imminent and in relation to which its writ jurisdiction is invoked 1522 F-H] (b) The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or given directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution.
That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of 'election' within the meaning of Article 329 (b) of the Constitution. [523 C-D]
2. (a) The Election Commission, or the Chief Electoral Officer or the Electoral Registration Officers have not in any manner acted in violation of the Constitution, the Representation of the People Acts of 1950 and 1951, or the Registration of Electors Rules 1960. The Election Commission issued the various directives ex debito justiae as steps-in- aid of a fair election. They are being observed faithfully and honestly, and shall be so observed until the deadline mentioned in section 23 (3) of the Act of 1950. The manner in which the directives are being implemented cannot be regarded as unreasonable. [523 F-G] (b) It takes years to build up public confidence in the functioning of constitutional institutions, and a single court hearing, perhaps, to sully their image by casting aspersions upon them. It is the duty of the courts to protect and preserve the integrity of all constitutional institutions, which are devised to foster democracy. And when the method of their functioning is questioned, which it is open to the citizen to do, courts must examine the allegations with more than ordinary care. [523 H; 524 A-B] 497 (c) The Election Commission, the Chief Electoral Officer and the Electoral Registration Officers will not generate a feeling in the minds of the public that the elections held hitherto in our country over the past thirty years under the superintendence, direction and control of successive Election Commissions have been a pretense and a facade. The public ought not to carry any such impression and the voters must go to the ballot-box undeterred by the sense of frustration which the petitioners' charges are likely to create in their minds. There is no substance in the accusation that the voters' lists have been rigged by the election authorities with the help of enumerators belonging to any particular political party. Enumerators are mostly drawn from amongst teachers and Government servants and it is difficult to imagine that thirty five years after independence, they are totally colour - blind. They are the same in every State and every constituency. The safeguard lies in the efficiency and impartiality of the higher officers who have to decide objections filed in relation to the voters' lists. That safeguard is not shown to have failed in the instant case. [524 D-G] (d) There is no voter in our country who does not have or cannot raise sum of ten paise to ventilate his objection to the voters' list. 1525 D]
3. Even assuming, that the preparation and publication of electoral rolls are not a part of the process of 'election' within the meaning of Article 329 (b), the High Court ought not to have passed the impugned interim orders, where by it not only assumed control over the election process but, as a result of which, the election to the Legislative Assembly stood the risk of being postponed indefinitely. [520 D-E]
4. Very often, the exercise of jurisdiction, especially the writ jurisdiction, involves questions of property rather than of Power. The fact that the Court has the power to do a certain thing does not mean that it must exercise that power regardless of the consequences. [520 F]
5. Holding the elections to legislatures and holding them according to law are both matters of paramount importance. On the one hand is the individual's statutory right of franchise, on the other is the constitutional obligation imposed by Article 168. [513 A]
6. Preparation and revision of electoral rolls is a continuous process not connected with any particular election. [513 C]
7. The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. 1513 F] NP Ponnuswami v. Returning Officer Namakkal Constituency [1952] SCR 218. Rampakavi Ravappa Belagali v Jatti [1970] 3 SCC 147. Mohinder Singh Gill v Chief Election Commissioner New Delhi [1978] 2 SCR 272. referred to.
498 [Per Baharul Islam J. dissenting]
1. It cannot be said in the instant case, that in the revision of the electoral roll, all possible care as enjoined by the letter and spirit of the Constitution and the statutes was taken. [539 E]
2. A political party is not entitled to, under the law, to receive any notice but in the background of the illiteracy and ignorance and lack of political consciousness of a large section of the electorate, it is but proper and in consonance with the spirit of the Constitution and the Election Laws that notices be given to the leaders of political parties who file complaints or omnibus complaints and claims and objections. [537 G-H]
3. No persons who are members of a political party or of an association affiliated to a political party should be appointed to be enumerators of voters so that there may not be any foul play or rigging in the preparation of the electoral roll. Enumarators should be persons who are not affiliated, either directly or indirectly to any political party, whether in power or not; for this purpose, it is desirable that only Government officers including teachers of Government schools and colleges may be appointed enumerators and not of non-government organizations or institutions, unless their rules debar their employees to be members of political parties. [539 C-D]
4. The basic needs of a citizen of any civilized country are food, clothing. education and health services. A citizen of any modern democratic State has also an additional need, which is a political right. It is the right of participation in the governance of the country directly or indirectly. This participation of an adult citizen of our country starts with the right to vote for a candidate and elect a representative of his choice to the legislatures and other self-governing institutions. This right to vote presupposes a right to be enrolled as an elector provided, he has the requisite qualifications prescribed by the Constitution and the election laws and other statutes and he has none of the disqualifications enumerated in those laws.
[527 C-D] 5.(i) The basis of election on adult franchise and the right to be registered as a voter at an election of a person with the requisite qualifications and having no disqualifications are constitutional mandates. (ii) Parliament has made pro visions for the purpose of the preparation of the electoral rolls and matters connected therewith in the Representation of People Act 1950 and the Registration of Electors Rules 1960. For the purpose of conduct of election to the Houses of Parliament and to the Houses of State Legislatures and to matters relating to such elections in the Representation of People Act, 1951 and the Conduct of Election Rules 1961. [527 G-H; 528 A]
6. The basis of a free and fair election is the voters' list prepared in accordance with the 1950 Act and the 1960 Rules. If this is not so done, the electoral rolls will have no sanctity and the consequent election will also not inspire confidence of the people. 1529 C] 499
7. Article 324 shows that for the purpose of preparing the electoral rolls for the purpose of conducting the elections, the Election Commission, A although a very high and independent constitutional functionary, does not have a staff of its own appointed and removable by it. The staff made available to the Election Commission for the above purposes are the employees of a State or the Central Government. They are not independent like the Election Commission, itself, but are liable to be influenced by the concerned Executive Government. Illegal omission of the names of persons who were qualified from the electoral roll or inclusion of the names of persons who are not qualified or who have disqualifications has for reaching consequences.
[528D-E]
8. Section 21 of the 1950 Act provides for the preparation and revision of electoral rolls. Qualifying date has been defined under Section 14 (b) as the "1st day of January of the year in which it is so prepared or revised" in relation to the preparation or revision of every electoral roll under Part III. It is not permissible in normal circumstances to hold a general or bye-election on an electoral roll unless it is revised under sub-section (1) of section 21.
[530 A-B; 531 G]
9. The Elections Rules 1960 by Rules 10 and 11 provide for the publication of the draft roll and further publicity of the roll and the notice in Form 5. A combined reading of Rules 18, 19 and 20 show that they are based on the principle of natural justice keeping in view the right of an eligible voter to be included in the electoral roll and the right of any person to see that the names of a persons not so eligible, but wrongly included earlier, be deleted from the electoral roll. Rule 21 gives suo moto power to the registration officer to include names inadvertently omitted.
Rule 21 (A) gives suo moto power to the registration officer to delete the names of dead electors or of persons who have ceased to be or are not ordinarily residents in the constituency. Rule 22 is very important. It gives power to the registration officer to prepare a list, after compliance of Rules 18, 21 and 21A and publish the roll together with the list of amendments by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office. Under sub-rule (2) of Rule 22, on such publication, the roll together with the list of amendments shall be the electoral roll of the consistency". Under sub- rule (3) this roll shall be the 'basic roll" for the constituency. Rule 23 provides for appeal from the decision of the registration officer under Rules 20, 21 and 21A to an appropriate authority. These provisions disclose the importance to be given to the preparation of an electoral roll.
[532 C; 533 F-H; 534 A]
10. A perfect electoral roll is not possible. But at the same time, it must be remembered that the name of any eligible voter should not be omitted or the name of any disqualified person should not be included in the electoral roll, in violation of any constitutional or statutory provisions. The error, when pointed out, has to be removed.
It must also be remembered that a large section of the electorate of our country consist of illiterate people and not politically so conscious as to see that their names are in the electoral roll. A duty is cast on the political parties to educate the electorate and take steps that the names of eligible persons are included in the electoral rolls and that 500 names of ineligible persons are deleted. Erroneous inclusion or omission of the names of a few persons may not be of much consequence. But if a considerable number of the names of such persons are either wrongly included in, or excluded from, the electoral roll, it will be of great consequence to a particular party either or in the opposition. The electoral registration officer, therefore, cannot be fastidious as to whether the claims and objections are strictly in prescribed forms. Even when there are omnibus objections by a political party or political parties, as in this case, filing claims and or objections, such claims and objections have to be inquired into and necessary action taken so that the correct opinion of the electorate may be reflected in the result of the election. [534 B-G]
C[VIL APPELLATE JURISDICTION: Civil Appeal No. 739 of 1982.
From the Judgment and Order dated February 12 and 19, 1982 of the Calcutta High Court in Civil Rule No. Nil of 1982.
AND Civil Appeal No. 740 of 1982 From the Judgment and Order dated February 12, 1982 of the Calcutta High Court in Civil Rule No. (W) of 1982.
AND Civil Appeal No. 741 of 1982 From the Judgment and Order dated February 25, 1982 of the Calcutta High Court in Civil Rule No. (W) of 1982.
AND Civil Appeal No. 742 of 1982 From the Judgment and Order dated February 12, 1982 and February 25, 1982 of the Calcutta High Court in Civil Writ No. (W) of 1982.
AND Transferred Case No. 3 of 1982 RR Venugopal, S.N. Kacker, N.N. Gooptu, Soli J.
Sorabjee, Somnath Chatterjee, R.K. Garg, F.S. Nariman, Pronab Kumar 501 Chatterjee, H.K. Puri, Miss Radha Rangaswamy, N.K. Chakravarthy and B. V. Desai for the appearing Appellants.
A.K. Sen, S.S. Ray, N. Sen. B.P. Banerji, M. Mezumdar, Kapil Sibal, Ashok Ganguly, L K Gupta, U.N. Bannerjee, Parijat Sinha and P.R. Seetharaman for the Petitioners, and for the Respondents 1, 8 and 14 in C.A. No. 739-41 of 1982 and for Respondent No. 6 in 742 of 1982.
L.N. Sinha Att. Gen., K. Parasaran, Solicitor General, Milan Kumar Banerjee, Addl. Solicitor General, K.S.
Gurumoorthy, Miss A. Subhashini, Ajit Panja and Mrs. Mithu chakravarti for the Respondents.
M.C. Bhandare, P.R. Mridul, Mrs. S. Bhandare, A.N.
Karkhanis, Miss C.K Sucharita, T. Sridharan and Vindet Kumar, for the Respondents.
P.H. Parekh, R.N. Karanjawala for the Interveners in C.A. No. 739 of 1982. Indian Express News Papers (Bombay) Miss Rani Jethmalani for the Intervener. (Bar Council) R.C. Kaushik for the Intervener in C.A. No. 742 of 1982. (Democratic Society).
The following Judgments were delivered CHANDRACHUD, C.J.: There are four appeals and a Transferred Case before us. The appeals arise out of interim orders passed by a learned Single Judge of the Calcutta High Court on February 12 and 19, 1982 which were confirmed by him on February 25, 1982. Those orders were passed in a Writ Petition filed under Article 226 of the Constitution asking for the writs of mandamus and certiorari, directing that the instructions issued by the Election Commission should not be implemented by the Chief Electoral Officer and others; that the revision of electoral rolls be undertaken de novo; that claims, objections and appeals in regard to the electoral roll be heard and disposed of in accordance with the rules;
and that, no notification be issued under section 15(2) of the Representation of the People Act, 1951 calling for election to the West Bengal Legislative Assembly, until the rolls were duly revised.
502 Transferred Case No. 3 of 1982 is that very writ petition. It was withdrawn for hearing and final disposal to this Court by an order dated March 4, 1982. That writ petition was filed by eight persons against the Union of India. The Election Commission, the Chief Election Commissioner and the Chief Electoral Officer, West Bengal.
The writ petitioners, who succeeded in obtaining interm orders from the High Court are in the array of respondents in the four appeals. Three out of those appeals are filed by persons who contend that the High Court ought not to have interfered with the election process which was imminent. The fourth appeal No. 742 of 1982, is filed by 'the Election Commission of India, the Chief Election Commissioner and the Chief Electoral Officer, West Bengal. Their contention is that the High Court had no jurisdiction to entertain the writ petition by reason of Article 329(b) of the Constitution, that the election process which had already begun should not have been interfered with by the High Court and that the recommendation made to the Governor of West Bengal by the Election Commission under section 15(2) of the Act of 1951 was being thwarted by 'frivolous and base less' objections raised by the writ petitioners.
The writ petitioners are enrolled as voters in the electoral roll of the West Bengal Legislative Assembly. The validity of several provisions of the Representation of the People Act, 1950, the Representation of the People Act, 1951, the Registration of Electors Rules, 1960, and the Conduct of Election Rules, 1961 was challenged in the writ petition but, it is unnecessary to spend any time over that matter since, the validity of none of those provisions was questioned before us. Shorn of that challenge, it is doubtful whether the High Court would have passed the impugned orders. Be that as it may, what is to be noted is that the points which are raised for our consideration do not involve the validity of any law and are restricted to illegalities and irregularities alleged to have been committed by the Chief Electoral Officer, West Bengal, and by the officers subordinate to him in regard to the preparation of the electoral rolls which would be used for the purposes of election to the West Bengal Legislative Assembly.
The Chief Electoral Officer, by a Circular dated March
12. 1981, asked all the District Officers and the Sub- Divisional Officers under him to make a de novo intensive revision of the electoral rolls for the general election to the Legislative Assembly, West Bengal, without reference to the then existing electoral rolls. The grievance of the writ petitioners is that the guidelines or instructions issued by 503 the Chief Electoral Officer were not only not adhered to by the subordinate officers but were blatantly violated in certain cases. It is alleged, for example, that the exact extent of the polling areas was not demarcated clearly, no house-to-house visits were made and, the names of the members of each household who had attained the age of 21 years on the prescribed date were not recorded in several cases. According to them, the guidelines issued by the Chief Electoral Officer for a de novo intensive revision of the electoral rolls are vague, unreasonable and arbitrary, as a result of which, it would not be possible to hold free and fair elections on the basis of those rolls.
By a Memorandum dated May 12, 1981, which was after the work of the intensive revision of the electoral rolls had begun, the Election Commission of India informed the Chief Electoral Officers of all the States and the Union territories that its attention was drawn to certain irregularities in the matter of revision of electoral rolls and that in many cases, lists pertaining to certain polling booths were found to be, defective. For example, the polling areas covered by the polling booths were not clearly demarcated, the polling booths were not compact, care was not taken to ensure that voters belonging to weaker sections or minority communities would be able to reach the polling booths and that the Commission's instructions that polling booths should be set up in colonies inhabited by Harijans and other weaker sections of the society, even though the number of voters may be less than 500, were not carried out appropriately. According to the petitioners, the instructions issued by the Election Commission were not carried out in the State of West Bengal. They also contend that the instructions issued by the Chief Election Commissioner in the Circular dated May 12, 1981 were at variance with the instructions issued by the Chief Electoral Officer, West Bengal on March 12, 1981, thereby making it difficult for the Electoral Officers to carry out their duly appointed duties. The petitioners have then referred in the writ petition to radiogrammes dated June 21 and July 4, 1981 issued by the Election Commission. It is contended that the directions issued in those radiogrammes are arbitrary and illegal for various reasons.
The further grievance made by the petitioners in the writ petition is that the preparation of electoral rolls on the basis of polling stations was made arbitrarily and improperly in that, the total number of voters in several constituencies, after the house-to-house enumeration, differed in material particulars from the total number of voters in the Draft Electoral Roll which was published in the month of 504 September 1981. It is alleged that the Draft Electoral Rolls were manipulated by including therein not only Bangladesh Nationals but minors, dead persons and refugees from Assam who were still living in refugee camps. According to the petitioners, these infirmities in the electoral rolls were of such a basic and inherent character that unless a further de novo revision of the electoral rolls was undertaken, it would be unfair to allow the elections to be held on the basis of the revised electoral rolls. The revision work of the electoral rolls which was undertaken in West Bengal could not possibly be finished within the time prescribed since, so the petitioners say, the State was passing through a difficult period, particularly in the matter of law and order and because of natural calamities. The infirmities in the revised electoral rolls which are pointed out by the petitioners may be summed up as the inclusion of teenagers and aliens therein, exclusion of persons who are qualified to be enrolled as voters, the incorporation of fictitious entries and, mistakes and distortions in names and surnames.
One of the grievances of the petitioners is that these manipulations in the electoral rolls became possible because of the deliberate infiltration of the CPI(M) members of the Government staff in the election machinery. It is alleged that complaints relating to individual cases were sent to the Election Commission but, no attention was paid to them.
According to the petitioners, the scheme of the Election law and the rules framed thereunder is so designed that unless all the objections are decided by the appellate authority and the Registration officer and the electoral rolls are correspondingly amended, especially when a de novo revision of the electoral rolls is directed to be made, it is impermissible to issue a notification under section 15(2) of the Act of 1951.
Yet another grievance of the petitioners is that nearly 8 lakhs complaints were filed in regard to the voter's lists but, no notice was issued to the concerned persons while deciding those complaints. In a few cases where notices were sent, not enough time was given to the complainants to appear before the concerned authorities to make their contentions. Indeed, the petitioners so contend, the claim of the Election Commission that it had already looked into most of the complaints was, on the face of it, exaggerated.
Nearly 8 lakhs complaints are alleged to have been filed by the lndian National Congress by way of a sample survey which related to 100 out of 294 constituencies in the State of West Bengal.
505 The petitioners wind up the writ petition by asserting that the ban imposed by Article 329 of the Constitution cannot prevent them from filing the writ petition under Article 226 since, they were not challenging the 'commencement of polling'. Their challenge was to the constitutionality of the law relating to elections and the arbitrary actions on the part of the Election Commission.
The writ petition contains exactly 100 grounds on the basis of which the holding of the impending elections to the West Bengal Legislative Assembly was challenged. The Election Commission had declared on February 9, 1982 in a Press Conference that the final voters' lists would be published on March 1, 1982 and that the elections may be held at any time between April and June 24, 1982.
We have set out the case of the petitioners at some length because their writ petition was withdrawn for disposal by this Court. The merits of the petition are being considered for the first time here, which makes it necessary to know the state of pleadings and the nature of the relief claimed in the petition. D By their writ petition, the petitioners ask for the following reliefs: (i) That the Chief Election Commissioner and the Chief Electoral Officer be restrained from acting, either by themselves or through their subordinates, in pursuance of the instructions or directions issued by them from time to time; (ii) that they should be restrained from scoring out any names from the electoral rolls which were finally published, (iii) that they should be restrained from issuing or publishing any notification under section 15(2) of the Act of 1951 without preparing the electoral rolls de novo, after the disposal of the appeals against orders whereby claims and objections were decided; and (iv) that they should be restrained from holding elections to the West Bengal Legislative Assembly until the disposal of all the claims, objections and appeals under the Acts of 1950 and 1951.
On February 12, 1982, the learned single Judge of the Calcutta High Court issued a rule on the writ petition and granted ad-interim relief to the petitioners as prayed for by them. The writ petition was directed to be listed on February 19, 1982 when, after some arguments, the matter was adjourned to February 25. Some time later, four special leave petitions were filed in this Court against the adinterim orders passed by the learned Judge. On February 23, 1982 certain directions were issued in one of these special leave petitions by a Bench consisting of three of us, namely, D.A. Desai J., 506 A.P. Sen J. and Baharul Islam J. It was directed that, since the High Court was seized of the writ petition and in view of the comity amongst judicial functionaries, it was better that the High Court completed the hearing by February 25, l 982. The order proceeded to say: 'It is requested that the writ petition shall be placed on the Board of the learned Judge on Wednesday, 24th February, 1982 and shall be heard and hearing completed and order pronounced before the expiry of Thursday, 25th February, 1982. .. The learned Judge should proceed to hear the matter without considering any direction about production of the documents by the Election Commission or by any parties as that part of the order is stayed at the instance of Election Commission. The parties are precluded from making any requests for adjournment." The writ petition was called out for hearing before the learned Judge on February 25, when he directed the respondents to the writ petition to take certain steps before the issuance of the notification under section 15(2) of the Act of 1951. In effect, he confirmed the ad-interim order passed on February 12, 1982.
We will deal with the legal contentions presently but, before doing so, we would like to demonstrate that the grievance made by the petitioners against the Election Commission, the Chief Electoral Officer and their subordinates is wholly imaginary and unjustified. We were taken through the counter-affidavits filed by Shri Narayanan Krishnamurthi, Chief Electoral Officer, West Bengal, and Shri K. Ganesan, Secretary to the Election Commission, in answer to the writ petition. The facts stated therein, which are beyond the pale of controversy, afford a complete answer to the petitioners' contentions. The following position emerges from the affidavit filed by the Chief Electoral Officer:
Steps taken with regard to the intensive de novo revision of electoral rolls in 1981 under section 21 of the Representation of the People Act, 1950 read with Rule 25 of the Registration of Electors Rules 1960 and Rules 4 to 23 of the said Rules.
(1) The general election to the Lok Sabha were held in early 1980. The electoral rolls in the State of West Bengal for all the 294 assembly constituencies were revised intensively in 1979, along with the revision of rolls in all other States and Union territories, for the purpose of holding that election.
507 (2) After the said general election to the Lok Sabha, and the general elections to certain State Assemblies which were held in June 1980, the electoral rolls were revised summarily by way of special revision throughout the country, under the new scheme of preparation of electoral rolls polling-stationwise, thereby making every part of the electoral roll compact for a well-defined polling area and making them as far as possible co-terminus with the polling stations which then existed After the said special revision of the electoral rolls, the same were finally published by 31st December, 1980.
(3) As the general election to the Legislative Assemblies of the States of Haryana, Himachal Pradesh and West Bengal were due in 1982, the Election Commission of India directed that the rolls in the aforesaid three States for all the constituencies should be intensively revised with reference to the qualifying date, which was to be January 1, 1981.
(4) The Commission directed that the widest possible publicity should be given to the programme of revision of rolls through mass media and that a meeting with the representatives of State units of recognised political parties should be held to apprise them of the revision schedule and to seek their active cooperation. E (5) The following programme, as modified later, was approved by the Election Commission for the intensive revision of electoral rolls in the State of West Bengal:
(a) For 274 assembly constituencies, house to house enumeration was to be completed by June 30, 1981 and for the 20 constituencies by August 31, 1981. Draft publication of printed electoral rolls for 274 assembly constituencies was to be made on 7.9.1981 and for the remaining 20 constituencies on 22.10.1981.
(b) The period for lodging claims and objections was fixed between 7.9.1981 and 21.9.1981 in respect of 274 assembly constituencies and between 22.10.1981 and 12.11.1981 in respect of the remining 20 constituencies.
508 (c) Final publication of the electoral rolls after disposal A of claims and objections was to be made on 31.12.1981.
(6) The Chief Electoral Officer, according to the instructions of the Election Commission, issued orders to the Electoral Registration Officers of 21 assembly constituencies in Calcutta where house to house enumeration was first taken up, that 2 copies of the electoral rolls as finally published should be supplied by December 31, 1980 to recognised political parties for the purpose of intensive revision. Similar directions were issued to the officers of the remaining constituencies for the supply of 2 copies of the electoral rolls, where the house to house enumeration was taken up later.
(7) Press releases and advertisements in all dailies of West Bengal were issued on the question of intensive revision of electoral rolls in respect of 21 constituencies in Calcutta, seeking cooperation from all citizens and political parties, with special reference to house to house enumeration. In June 1981, similar advertisements were issued in the dailies of West Bengal regarding the intensive revision of electoral rolls in respect of other constituencies.
(8) Communications were sent between January and July 1981 by the Chief Electoral Officer to all political parties regarding the intensive revision of electoral rolls in respect of the assembly constituencies in Calcutta, seeking their cooperation in the task of complete revision of the electoral rolls.
(9) After the Election Commission issued revised condensed instructions for the enumeration of electoral rolls in the State of West Bengal, the Chief Electoral Officer communicated those instructions to all the Electoral Registration Officers in the State, together with his own directions regarding the programme of enumeration, checking and supervision.
(10) On March 19, 1981 a press release was issued in all the dailies of West Bengal, giving the details of the programme of enumeration, of the publication of the rolls in draft, inviting claims for inclusion of names in the rolls and objections to the inclusion of names, if any, and also inviting objections to the particulars in respect of entries in the draft roll so published. The press release explained the procedure for filling up the enumeration cards.
509 (11) In terms of the instructions issued by the Election Commission on May 13, 1981, corresponding details instructions were issued by the C.E.O. to the District Election Officers and Electoral Registration Officers regarding the preparation and finalisation of the list of polling stations.
(12) On June 29, 1981 the Presidents and Secretaries of all political parties were informed by a communication that a meeting will be held at the Writers' Building in Calcutta on 8.7.1981 at 11.00 A.M. in regard to the de novo intensive revision of electoral rolls with 1.1.1981 as the qualifying date and requesting them to make it convenient to attend.
(13) On July 7, 1981 a press release and press advertisement were issued in all dailies of West Bengal regarding the programme of revision of electoral rolls and the preparation and finalisation of the list of polling stations.
(14) On July 8, 1981 a meeting with political parties was held under the chairmanship of the C.E.O. in which, representatives of different political parties participated.
In that meeting, the programme and procedure governing the remaining stages of intensive revision were explained to the participants. They were requested to bring to the notice of the concerned Electoral Registration Officers the complaints and defects, if any, regarding the enumeration work and the electoral rolls that were scheduled for publication in a draft form in September-October 1981.
(15) On July 8, 1981, letters were addressed to the political parties by the C.E.O. regarding the programme of intensive revision and finalisation of polling stations. In those letters, it was specifically stated that "as this is a very gigantic exercise involving intensive field work and spot enquiry and careful and laborious office work, your cooperation is solicited to make this operation a success".
(16) In September and October 1981, printed draft electoral rolls were published in the offices of the Electoral Registration Officers and in the polling areas of each constitutency concerned for the convenience of the public so that they could inspect the rolls and file their claims and objections near their places of residence. Such draft electoral rolls were published on 7.9.1981 in respect of 274 Assembly constitutencies and on 22.10.1981 in respect of the 510 remaining 20 Assembly constituencies. The draft rolls were kept for A Public inspection for 21 days.
(17) On September 7, 1981 yet another press advertisement in all dailies of West Bengal was issued, not only reaffirming the draft publication of rolls regarding 274 Assembly constituencies on 7.9.1981, but also indicating the procedure for filing claims and objections under the law.
(18) On October 9, 1981 a communication was sent by the C.E.O. to all the political parties regarding draft publication of the electoral roll of the remaining 20 constituencies on 22.10.1981 indicating again the procedure for filing claims and objections.
(19) In early December 1981, Shri Ajit Kumar Panja of the Indian National Congress made a complaint regarding the non inclusion and wrong inclusion of certain entries in the electoral roll of 158-Burtola Assembly constitutency. A special check was made and remedial action taken in respect of 6000 entries before the finalisation of the intensively revised rolls of 31.12.1981. The Electoral Registration Officer, who is the Collector of Calcutta, made a report in that behalf, a copy of which is annexed to the counter- affidavit of Shri Krishnamurthi.
(20) The final publication of intensively revised electoral rolls which were prepared de novo during 1981, after a house to house enumeration in all the 294 Assembly constituencies, was made with printed supplements on 31.12.1981. The revision was made with reference to the qualifying date as 1.1.1981. With this, the process of intensive revision which was commenced on 1.1.1981 in the State of West Bengal was completed.
(21) The total number of claims received in the prescribed form No. 6, and those admitted, and the total number of objections filed in the prescribed from No. 7, and those allowed, were as follows:
Total number of claims field in Prescribed .... 4,17, 23 Form No. 6 Total number of claims admitted ... 3,05,072 Total number of objections filed in prescribed form No. 7 ... 1,09,865 Total number of objections allowed ... 65,430.
511 Steps with regard to summary revision of the electoral rolls undertaken in 1982 under section 21 of the Representation of the People Act, 1950 read with rule 25 and rules 9 to 23 of the Registration of Electors Rules, 1960 so as to bring the Electoral Rolls up-to-date i.e. with reference to the qualifying date as 1.1.1982. B (1) On December 9, 1981, the Election Commission directed the Chief Electoral Officers of all State and Union Territories (except Assam, Andhra Pradesh, Karnataka, Meghalaya, Nagaland and Tripura) to undertake summary revision of electoral rolls in 1982 with reference to 1.1.1982 as the qualifying date and chalked out a programme for the same.
(2) On December 14, 1981 the Commission wrote a letter to all political parties at their Head-quarters giving the details of the above programme for the summary revision of electoral rolls and soliciting their cooperation.
(3) A press release and an advertisement were issued in all the dailies of West Bengal on 23.12.1981 informing the public about the draft publication of the electoral rolls, in the course of summary revision of rolls in 1982. A copy of this release was also endorsed to all political parties on 23.12.1981.
(4) A circular letter was addressed to the General Secretaries and Presidents of all political parties in West Bengal by the C.B.O. giving details of the programme of summary revision of electoral rolls in 1982 and soliciting their cooperation. By this letter, political parties were also informed that 2 copies of the supplements to the draft electoral rolls, being intensively revised then and, due for publication on 31.12.1981, would be supplied to each political party free of cost.
(5) The electoral rolls which were prepared de novo after house to house enumeration in 1981 and which were intensively revised in all the 294 assembly constituencies in the State were finally published with the supplements on December 31, 1981 .
(6) On January l, 1982 the finally published electoral rolls with the supplements were published in draft in the respective 512 polling areas by all the Electoral Registration Officers for the A purpose of summary revision undertaken in 1982. Claims and objections were specially invited in the prescribed forms under the law.
(7) Due to the internal misunderstanding between Shri Ajit Kumar Panja and Shri Anand Gopal Mukherjee of the Indian National Congress, the authorities were unable for some little time to discover who, between those two, was entitled to receive copies of the electoral rolls. The rolls were supplied after the position was clarified.
(8) On January 4, 1982 an advertisement was issued in all dailies of West Bengal informing the public as to the exact contents of Forms 6, 7 and 8 of the Registration of Electors Rules, 1960 and also intimating to them that no fees will be required to be paid for submitting claims or objections in these forms.
(9) The draft rolls were kept for public inspection in the respective polling areas and in the offices of the Electoral Registration Officers concerned. Claims and objections were asked to be presented either to the officer designated for the purpose under the law or to the Electoral Registration Officer concerned.
(10) The following Table shows the position regarding the claims and objections made in the prescribed form and accepted:
Claims in Objections in Objections to Form No. 6. Form No. 7 particulars in Form No. 8 Filed 3,34,993; 1,49,548; 89,300 Accepted 2,31,583; 80,592; 80,798 These facts establish in an ample measure that the grievances made by the petitioners are unsupported by facts.
It is significant that none of the petitioners has been denied a place in the electoral roll nor were the objections raised by any one of them dismissed. As we have stated earlier, none of the four persons who forwarded he omnibus complaints even filed an affidavit in support of those complaints.
513 Holding the elections to legislatures and holding them according to law are both matters of paramount importance.
On the one hand is the individual's statutory right of franchise, on the other is the constitutional obligation imposed by Article 168 that "For every State there shall be a Legislature..." We find it somewhat odd that, in the instant case, individuals whose rights are alleged to have been violated have not come to the Court at all. Not one out of the eight lakhs. Persons who have come to the Court are members of a political party who claim to represent them.
While we are on this question, it must be emphasized that Election laws do not recognise political parties except in rule 11 (c) of the Registration of Electors Rules, 1960. The Election Symbols (Reservation and Allotment) a Order, 1968, and Explanation I to section 77 (1) of the Act of 1951. The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. The petitioners are espousing the cause of unnamed and undisclosed persons through a writ petition, which does not even claim to possess a representative capacity. The upshot of the petition filed by them is that some 3 crores of voters were being deprived of an opportunity to exercise their franchise in order that an investigation should be made as to whether the names of some 5 lakhs and odd persons should be included in or excluded from the electoral roll.
The fundamental error from which the writ petition suffers is this: The fact that the revision of electoral rolls, either intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electoral rolls has to be undertaken under section 21 of the Act of 1950, whether or not an election is impending. Sub- section (1) of section 21 provides that the "electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act." Subsection (2) of section 21 provides for the revision of the electoral roll prepared under sub-section (1). The proviso, which is important, says that if the electoral roll "is not revised as aforesaid", the validity or continued operation of the "said" electoral roll shall not be affected. The controversy whether the proviso governs clause (b) of section 21 (2) only or whether, it applies to clause (a) of that section 514 also is futile, though it may be interesting from the point of view of a text-book writer on the 'Interpretation of Statutes'. The crux of the matter is that if an electoral roll is not revised, its validity and continued operation remain unaffected, at least is a class of cases. That exemplifies an important principle which applies in the case of electoral rolls.
Section 21 (3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that Election laws abhor a vacuum. Insofar as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is not in force.
Section 23 (3) of the Act of 1950 also points in the same direction. Under that provision no amendment, transposition or deletion of an entry can be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date for making nomination for an election in the particular constituency. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law.
But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electoral roll for the time being in force must hold the field. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon. The holding of elections to the legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties.
According to sub-rule (3) of rule 23 Or the Registration of Electors Rules, 1960, the "presentation of an appeal under this rule 515 shall not have the effect of staying or postponing any action to be taken by the Registration Officer under rules 22". Rule 22 imposes A upon the Registration Officer the obligation to publish the electoral roll which, together with the list of amendments, becomes the electoral roll of the constituency. Thus, the fact that an appeal is pending under rule 23 (1) against the decision of a Registration Officer under rule 20, 21 or 21A does not constitute an impediment to the publication of the roll and to the roll, upon such publication, coming into force. Rule 20 provides for inquiry into claims and objections; rule 21 provides for inclusion of names which are left out of the roll owing to inadvertence or error; while, rule 21A provides for the deletion of names of dead persons and of persons who cease to be, or are not, ordinary residents of the particular constituency. Notwithstanding the fact that the roll contains these errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Registration Officer is under an obligation to publish the roll by virtue of rule 22.
As a result of this discussion, it must follow that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.
One of the questions which was debated before us and to which we must now turn, is whether the directions given by the Election Commission to the Chief Electoral Officers have the force of law under the Acts of 1950 and 1951. There is no provision in either of these Acts which would justify the proposition that the directions given by the Election Commission have the force of law. Election Laws are self- contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and 516 obligations unknown to the Election Law. To take a simple example, if the Election Commission issues a directive to a Chief Electoral Officer to invite leaders of political parties for a meeting to consider their grievances pertaining to the electoral roll, the failure to hold such a meeting cannot be equated with the failure to comply with the provision of a law. Leaders of political parties who were asked to be invited by the Election Commission cannot challenge the process of election on the ground that the directive issued by the Election Commission was violated by the Chief Electoral Officer. The question is not whether the directions issued by the Election Commission have to be carried out by the Chief Electoral Officers and are binding upon them. The plain answer is that such directions ought to be carried out. The question is whether, the failure on the part of the Chief Electoral Officer to comply with the directions issued by the Election Commission furnishes any case of action to any other person, like a voter or a candidate, to complain of it. We are of the opinion that the directions issued by the Election Commission, though binding upon the Chief Electoral Officers, cannot be treated as if they are law, the violation of which could result in the invalidation of the election, either generally, or specifically in the case of an individual. In the instant case, the Chief electoral Officer carried out faithfully the directions issued by the Election Commission. But, even if he had not, he could not be accused of disobeying a law.
We have already adverted to the various steps taken by the Election Commission and the Chief Electoral Officer for removing the apprehensions of the petitioners and a few others. The following narration of events will complete that picture. The facts stated below appear in the countet- affidavit of the Chief Electoral Officer, Shri N. Krishnamurthi.
Steps taken by the Chief Electoral Officer, in the exercise of his suo motu powers under rules 21 and 21A of the Registration of Electors Rules, 1960, with regard to inquiries into omnibus complaints.
1. In late December 1981 and early January 1982, Shri Bhola Nath Sen and Shri Ajit Kumar Panja of the Indian National Congress wrote letters to the Election Commission complaining of rigging of electoral rolls. Replies were sent to them stating specifically that, under the law? claims and objections were required 517 to be lodged before the Electoral Registration Officers who were statutorily charged with the duty of deciding those claims and A objections. They were further informed that if any Electoral Registration Officer failed to deal with those claims and objections in accordance with law, complaints could be lodged with the Election Commission and the C.E.O.
in order to enable them to investigate into them. They were also assured that, in the mean- time, the lists forwarded by them were being looked into. Similar replies were sent to other complainants.
2. Shri Anand Gopal Mukherjee, President of the Pradesh Committee of the Indian National Congress, West Bengal, Shri Bhola Nath Sen, Leader of the Legislature Party of the Indian National Congress, West Bengal, Shri Priya Ranjan Das Munshi, Shri Sougat Roy and Shri Pradip Bhattacharya met the Chief Election Commissioner and brought to his notice That the rolls in West Bengal had been manipulated to a large extent by inclusion of under-aged persons, dead persons and temporary residents. They were requested to examine the rolls as finally published on December 31, 1981. It is significant that none of these persons has filed any affidavits in the present proceedings in support of their complaint.
3. In reply to a letter dated January 7, 1982 from Shri A.K. Sen, the Commission advised him also that the Electoral Registration Officers were constituted as authorities to prepare and bring the rolls upto date and, therefore, all claims and objections should be filed with them
4. On January 15, 1982 Shri A.K. Panja made several complaints to the Chief Election Commissioner and alleged, particularly, that the electoral machinery of the State was influenced by the Co-ordination Committee of CPI (M) It is noteworthy that none of the omnibus complaints made by Shri Panja bore the signature of any person, though the printed form contains a column for the signature of the complainant.
5. The omnibus complaints made by Shri Panja and by Dr. Gopal Das Nag were referred to the concerned Electoral Registration Officers, even though they were not in the prescribed form. The Distr
