STATE OF GOA & ANR. v. FOUZIYA IMTIAZ SHAIKH & ANR.

p. 814 Copy page pinpoint

37Copy pinpoint37. Leaving open what the powers of this court and the High Courts under Articles 226, 227 and 136 are after an Election Tribunal decides a dispute before it, this Court held: “It should be mentioned here that the question as to what the powers of the High Court under Articles 226 and 227 and of this court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.” (at page 237)

38Copy pinpoint38. What was left open in Ponnuswami’s case as to the powers of this Court under Article 136 after an election tribunal had decided an election petition before it was decided by this Court in Durga Shankar Mehta v. Thakur Raghuraj Singh, (supra). This judgment described the reach of the non-obstante clause contained in Article 329(b) as follows: “As has been said already, the non obstante clause in Article 329 D prohibits challenge to an election either to Parliament or any State Legislature, except in the manner laid down in clause (2) of the article. But there is no prohibition of the exercise of its powers by the Supreme Court in proper cases under Article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other Judicial Tribunals comes within the E purview of the article. It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive so that the constitution of the legislature may be distinctly and speedily known. But the powers under Article 136 are exercisable only under exceptional circumstances. The F article does not create any general right of appeal from decisions of all tribunals. As regards the decision of this court in Ponnuswami v. Returning Officer, Namakkal Constituency [1952 SCR 218] to which reference has been made by the learned counsel, we would only desire to point out that all that this case decided was that the High Court had no jurisdiction, under Article 226 of the G Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate. It was held that the word “election” in Article 329(b) of the Constitution had been used in the wide sense to connote the entire process, culminating H in a candidate’s being declared elected and that the scheme of

p. 815 Copy page pinpoint

[R. F. NARIMAN, J]

Part XV of the Constitution was that all matters which had the A effect of vitiating election should be brought up only after the election was over and by way of an election petition. The particular point, which arises for consideration here, was not decided in that case and was expressly left open.” (at pages 274,275) B

39Copy pinpoint39. Likewise, a discussion on the reach of Article 329(b) and Article 226 of the Constitution after an election petition has been decided by an election tribunal was then discussed in Hari Vishnu Kamath v. Syed Ahmad Ishaque, (supra): “Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 329(b). On a plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [1952 SCR 218] it was held by this court that the word “election” in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a E candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(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 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. There being no dispute that they are subject to the supervisory jurisdiction of the High Courts under Article 226, a writ of certiorari under that article will be competent against decisions of the Election Tribunals also. 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 H

p. 816 Copy page pinpoint

A 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. If he applies under Article 226 for a writ to set aside the order of the Tribunal, he cannot in any sense be said to call in question the election; on the other hand, he seeks to maintain it. His application could not, therefore, be barred by Article 329(b). And if the contention of the first respondent is well-founded, the result will be that proceedings under Article 226 will be competent in one event and not in another and at the instance of one party and not the other. Learned counsel for the first respondent was unable to give any reason why this differentiation should be made. We cannot accept a construction which leads to results so anomalous.” (at pages 1111,1112)

40Copy pinpoint40. In Narayan Bhaskar Khare (Dr) v. Election Commission of India (supra), a 7-Judge Bench dealt with elections to the President D and the Vice President of India contained under Article 71. The Court held: “As already indicated, Article 71(1) confers jurisdiction and power on this court to inquire into and decide “all doubts and disputes arising out of or in connection with the election of a President or E Vice-President”. The question is: Is there in this Article or in any other part of the Constitution or anywhere else any indication as to the time when such inquiry is to be held? In the first place, Article 71 postulates an “election of the President or Vice- President” and provides for inquiry into doubts and disputes arising out of or in connection with such an election. What is the meaning to be given to the word “election” as used in this Article? If we give to the word “election” occurring in Article 71(1) the same wide meaning as comprising the entire election process culminating in a candidate being declared elected, then clearly the inquiry is to be made after such completed election i.e. after a candidate is declared to be elected as President or Vice-President as the case may be. We see no reason why this accepted meaning should not be given to the critical word. In the second place, under clause 3 of Article 71, subject to the provisions of this Constitution, Parliament may by law regulate any matter “relating to or connected with the election” of a President or Vice-President.

p. 817 Copy page pinpoint

[R. F. NARIMAN, J]

The words here also are similar to those used in Article 327 and are equally wide enough to cover matters relating to or connected with any stage of the entire election process. In exercise of powers conferred on it by Article 71(3), Parliament has enacted the Presidential and Vice-Presidential Election Act, 1952 (31 of 1952) to regulate certain matters relating to or connected with elections to the office of President and Vice-President of India. A glance through the provisions of this Act will indicate that in the view of Parliament the time for the exercise of jurisdiction by this court to inquire into and decide doubts and disputes arising out of or in connection with the Presidential election is after the entire election process is completed.” C (at pages 1088,1089) “The above stated interpretation appears to us to be in consonance with the other provisions of the Constitution and with good sense. If doubt or dispute arising out of or in connection with the election of a President or Vice-President can be brought before this court before the whole election process is concluded then conceivably the entire election may be held up till after the expiry of the five years’ term which will involve a non-compliance with the mandatory provisions of Article 62. The well recognised principle of election law, Indian and English, is that elections should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people, which requires that elections should be gone through according to the time schedule. It is, therefore, in consonance both with the provisions of Article 62 and with good sense to hold that the word “election” used in Article 71 means the entire process of election. “ (at page 1090)

41Copy pinpoint41. The judgment of Krishna Iyer,J. contained in Mohinder Singh Gill v. Chief Election Commr. (supra), is of great importance and delineates not only the parameters of Article 329(b) qua writ petitions filed under Articles 226 and 227 of the Constitution of India but also speaks of the powers of the Election Commission in supervising and conducting the entire election process. This Court made a distinction between challenges under Article 226 while the election process is on which interfere with the progress of the election as against approaching H

p. 818 Copy page pinpoint

A a writ court to accelerate the completion of the election and to act in furtherance of the election. The Court put it thus: “28. What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to “calling in question” an election if it subserves B the progress of the election and facilitates the completion of the election. We should not slur over the quite essential observation “Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election.” Likewise, it is fallacious to treat “a single step taken in furtherance of an election” as equivalent to election. C

29. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from D Ponnuswami is as to whether the order for re-poll of the Chief Election Commissioner is “anything done towards the completion of the election proceeding” and whether the proceedings before the High Court fecilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in E the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is “part of election” and challenging it is “calling it in question”.

30. The plenary bar of Article 329(b) rests on two principles: (1) F The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy G being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court’s overall power to interfere under Article 136 springs into action. In Hari Vishnu H this court upheld the rule in Ponnuswami excluding any proceeding,

p. 819 Copy page pinpoint

[R. F. NARIMAN, J]

including one under Article 226, during the on-going process of A election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Article 329(b) does not bind. xxx xxx xxx B 34.…But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrarywise. For example, after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the court’s review of that order will facilitate the flow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality, monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner’s act, he holds no election at all.”

42Copy pinpoint42. Dealing with the power of the Election Commission under E Article 324 of the Constitution and judicial review of such power, in an important passage Krishna Iyer,J. stated: “38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Article 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the extent he insists that if competent legislation is enacted as visualised in Article 327 the Commission cannot shake itself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi: “In the opinion of some of the Judges constituting the majority in Bharati’s case [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.] rule of law is a basic structure of the Constitution apart from democracy. H

p. 820 Copy page pinpoint

A The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of Government in the sense of excluding arbitrary official action in any sphere.” And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.

39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. D More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words “superintendence, direction and control, as well as ‘conduct of all elections’, are the broadest terms”. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein’s monster who may manipulate the system into elected despotism — instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order into the process.”

43Copy pinpoint43. Finally, the court summarized its conclusions as follows:

G “92. Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion in a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings: H

p. 821 Copy page pinpoint

[R. F. NARIMAN, J]

“(1)(a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate. (2)(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. C This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the D Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal’s adjudication. (3) The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election H

p. 822 Copy page pinpoint

A Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.”

44Copy pinpoint44. In Boddula Krishnaiah and Another v. State Election B Commissioner, A.P. & Ors., (1996) 3 SCC 416, a Gram Panchayat election notification had been issued, subsequent to which the High Court, by interim orders directed 94 persons to participate in the election. By subsequent interim orders, the claims of various respondents were to be ascertained, and ultimately, the Revenue Divisional Officer found 20 persons to be eligible to be included in the voters list, as a result of which the High Court directed that these persons should be allowed to participate in the election. This Court held: “11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.

12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.”

45Copy pinpoint45. In Election Commission of India v. Ashok Kumar (supra), a 3-Judge Bench of this Court reviewed the entire case law relating to Article 329(b) and Article 226 holding: “28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals

p. 823 Copy page pinpoint

[R. F. NARIMAN, J]

arrayed as parties before the court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.” A useful summary of conclusions based on the case law was then set out by the court as follows: C “31. The founding fathers of the Constitution have consciously employed use of the words “no election shall be called in question” in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the court “calls in question an election” the bar of Article 329(b) is attracted. Else it is not. D

32. For convenience’s sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: E (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the F invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. G Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- H

p. 824 Copy page pinpoint

A settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless E to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.”

46Copy pinpoint46. In Kurapati Maria Das v. Dr. Ambedkar Seva Samajan, (2009) 7 SCC 387, the validity of a caste certificate came up for determination in a writ petition that was filed which challenged municipal elections made to a reserved constituency. In this context, this court held: G “18. Regarding the bar of jurisdiction under Article 243-ZG(b), learned counsel Shri Gagan Gupta submitted that the decision relied upon by the High Court as K. Venkatachalam v. A. Swamickan [(1999) 4 SCC 526] was applicable and, therefore, it could not be said that there was a bar to the entertainment of the writ petition under Article 226. Learned counsel supported the H factual findings recorded by the High Court to the effect that the

p. 825 Copy page pinpoint

[R. F. NARIMAN, J]

appellant was a Christian and, therefore, could not claim the status A of a person belonging to the Scheduled Caste, more particularly, caste “Mala”.

19. In the first place, it would be better to consider as to whether the bar under Article 243-ZG(b) is an absolute bar. The article reads thus: B “243-ZG. (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State.” At least from the language of clause (b), it is clear that the bar is C absolute. Normally, where such a bar is expressed in a negative language as is the case here, it has to be held that the tone of clause (b) is mandatory and the bar created therein is absolute.

20. This Court in its recent decisions has held the bar to be absolute. First such decision is Jaspal Singh Arora v. State of M.P. [(1998) D 9 SCC 594]. In this case the election of the petitioner as the President of the Municipal Council was challenged by a writ petition under Article 226, which was allowed setting aside the election of the petitioner. In para 3 of this judgment, the Court observed: E “3. … it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition….”

21. The second such decision is Gurdeep Singh Dhillon v. Satpal [(2006) 10 SCC 616]. In that decision, after quoting Article 243-ZG(b) the Court observed that the shortcut of filing the writ petition and invoking constitutional jurisdiction of the High Court under Articles 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute. H

p. 826 Copy page pinpoint

A 22. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, specifically provides for challenging the election of Councillor or Chairman. It was tried to be feebly argued that this was a petition for quo warranto and not only for challenging the election of the appellant herein. This contention is clearly incorrect. When we B see the writ petition filed before the High Court, it clearly suggests that what is challenged is the election. In fact the Prayer clauses (b) and (c) are very clear to suggest that it is the election of the appellant which is in challenge.”

47Copy pinpoint47. In W.B. State Election Commission v. Communist Party of C India (Marxist) (supra), the West Bengal State Commission issued certain directions extending the last date for submitting nominations by one day, after which the said order was recalled on the next day. A learned single Judge of the High Court delivered a judgment in which the order cancelling the extension was quashed and the commission D was directed to issue a fresh notification extending the date for filing nomination. In obedience to this order, the SEC issued a notification extending the date for filing of nominations on 21.04.2018. Writ petitions were then filed which were dismissed by a learned Single Judge, who declined to interfere with the election process. Ultimately, after fresh writ petitions were moved before a single Judge of the Calcutta High E Court, the single Judge declined to give any further directions, more particularly, that the SEC be made to accept nominations already filed in electronic forms. The Division Bench, while disposing of the appeal, directed the SEC to accept nominations in electronic forms by those candidates who had submitted them on or before 3.00 p.m. on 23.04.2018. F After setting out the relevant provisions of the Panchayat Elections Act, this Court held: “28. The Panchayat Elections Act is a complete code in regard to the conduct of the poll and for the resolution of disputes concerning the validity of the election. Article 243-K entrusts the G superintendence, direction and control over the conduct of all elections to the panchayats in the State Election Commission. Clause (b) of Article 243-O stipulates thus: “243-O. Bar to interference by courts in electoral matters.— Notwithstanding anything in this Constitution— H ***

p. 827 Copy page pinpoint

[R. F. NARIMAN, J]

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State.”

29. There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling State law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law, namely, through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. This principle has been consistently adhered to in decisions of this court. In C Boddula Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC 416, a three-Judge Bench adverted to the decisions of the Constitution Bench in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689. After D referring to Ponnuswami, it was observed: “8. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency a Constitution Bench of this court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time- schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the “election”; and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the “election”; and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.” The binding principle must be followed. xxx xxx xxx H

p. 828 Copy page pinpoint

A 33. For these reasons, we are of the view that challenges in regard to the validity of the elections to the uncontested seats in the panchayats, Panchayat Samitis and Zila Parishads must also be pursued in election petitions under Section 79(1) of the Panchayat Elections Act. We leave it open to any person aggrieved to raise a dispute in the form of an election petition in accordance with the B provisions contained in the Panchayat Elections Act. In exercise of the power conferred by Article 142, we direct that the period of 30 days for filing election petitions in respect of the uncontested seats shall commence from the date of the publication of the results in the Official Gazette.”

48Copy pinpoint48. A recent judgment of 3 learned Judges in Laxmibai v. Collector, (supra), comes nearer home when it deals with municipal elections, and holds as follows: “42. This court again examined the question in respect of raising a dispute relating to an election of a local body before the High D Court by way of a writ petition under Article 226 of the Constitution of India in a judgment reported as Harnek Singh v. Charanjit Singh [Harnek Singh v. Charanjit Singh, (2005) 8 SCC 383]. It was held as under: “15. Prayers (b) and (c) aforementioned, evidently, could not E have been granted [Charanjit Singh v. State of Punjab, 2003 SCC OnLine P&H 1226] in favour of the petitioner by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of F India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view the fact that an efficacious alternative remedy is available therefor. (See Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. (2005) 8 SCC 242 )

16. Article 243-O of the Constitution of India mandates that all G election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question. H

p. 829 Copy page pinpoint

[R. F. NARIMAN, J]

17. In C. Subrahmanyam [C. Subrahmanyam v. K. A Ramanjaneyullu, (1998) 8 SCC 703], a three-Judge Bench of this court observed that a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance with the provisions of the Act which was one of the grounds for an election petition in terms of B Rule 12 framed under the Act.”

43. Section 10-A of the 1959 Act and Section 9-A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election C petition in view of the bar created under Section 15-A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of D India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.” Powers of the State Election Commission under Article 243K r/w 243ZA

49Copy pinpoint49. In Election Commission of India v. Shivaji, (supra), this court after referring to Ponnuswami’s case then referred to the powers of the Election Commission under Article 324 as follows: “6. ………... If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of H

p. 830 Copy page pinpoint

A the Constitution as decided in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405] and to see that the election process was completed in a fair manner.”

50Copy pinpoint50. Similarly, in Digvijay Mote v. Union of India, (1993) 4 SCC 175, this court referred to the powers of the Election Commission under B Article 324 of the Constitution as follows: “8. The conduct of election is in the hands of the Election Commission which has the power of superintendence, direction and control of elections vested in it as per Article 324 of the Constitution. Consequently, if the Election Commission is of the C opinion that having regard to the disturbed conditions of a State or a part thereof, free and fair elections could not be held it may postpone the same. Accordingly, on account of unsettled conditions, the elections in the States of Assam & Jammu and Kashmir could be postponed.

9. However, it has to be stated this power is not unbridled. Judicial D review will still be permissible, over the statutory body exercising its functions affecting public law rights. xxx xxx xxx

14. The resultant position is that it cannot be stated that the exercise of power under Article 324 is not altogether unreviewable. The E review will depend upon the facts and circumstances of each case.”

51Copy pinpoint51. In Kishansing Tomar v. Municipal Corpn., Ahmedabad (supra), a Constitution Bench of this Court clearly set out the powers of the State Election Commissions under the Constitution as follows: F “22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably G added to the Constitution. In this direction, it is necessary for all the State Governments to recognise the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India H during the elections for Parliament and the State Legislatures. In

p. 831 Copy page pinpoint

[R. F. NARIMAN, J]

fact, in the domain of elections to the panchayats and the municipal A bodies under Part IX and Part IX-A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India.

23. In terms of Article 243-K and Article 243-ZA(1) the same powers are vested in the State Election Commission as the Election B Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.

24. The words, “superintendence, direction and control” as well as “conduct of elections” have been held in the “broadest of terms” by this court in several decisions including Special Reference No. C 1 of 2002, In re [Special Reference No. 1 of 2002, In re, (2002) 8 SCC 237] and Mohinder Singh Gill case [Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405] and the question is whether this is equally relevant in respect of the powers of the State Election Commission as well. D

25. From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said E Election Commissions.

26. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the panchayats and municipalities.

27. Article 243-K(3) also recognises the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission “such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1)”. It is accordingly to be noted that in the matter of the conduct of elections, the Government concerned shall have to render full assistance and cooperation to the State Election Commission and respect the latter’s assessment of the needs in order to ensure that free and fair elections are conducted. H

p. 832 Copy page pinpoint

A 28. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the B High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandate.”

52Copy pinpoint52. Given the fact that the scheme contained in Part XV is bodily lifted into the provisions contained in Part IX-A, the powers exercised by the SEC under Article 243ZA(1) are the same as those vested in the Election Commission of India under Article 324 of the Constitution of India. As has been pointed out in Mohinder Singh Gill (supra) and the D aforesaid decisions, the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections. The power thus conferred by the Constitution is a power given to the SEC E not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election. The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf. Bar contained in Articles 243ZG(a) / 329(a).

53Copy pinpoint53. So far as delimitation and allocation of seats is concerned, the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Article 329(a) of the Constitution. In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (supra), Chandrachud,CJ. speaking for the majority of a Constitution Bench of this court, held that the H

p. 833 Copy page pinpoint

[R. F. NARIMAN, J]

delimitation process and the making of electoral rolls is independent of the process of any particular election and thus held: “27. …In Rampakavi Rayappa Belagali [(1970) 3 SCC 147], it was held that the scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by the Act and not in any other manner or before any other forum unless, some question of violation of the provisions of the Constitution is involved. In Mohinder Singh Gill [(1978) 1 SCC 405], Krishna Iyer, J., speaking for the Constitution Bench, has considered at great length the scope and meaning of Article 329(b) of the Constitution. Describing that article as the C “Great Wall of China”, the learned Judge posed the question whether it is so impregnable that it cannot be bypassed even by Article 226. Observing that “every step from start to finish of the total process constitutes ‘election’, not merely the conclusion or culmination”, the judgment concludes thus: D “The rainbow of operations, covered by the compendious expression ‘election’, thus commences from the initial notification and culminates in the declaration of the return of a candidate.”

28. We have expressed the view that preparation and revision of electoral rolls is a continuous process, not connected with any particular election. It may be difficult, consistently with that view, to hold that preparation and revision of electoral rolls is a part of the “election” within the meaning of Article 329(b). Perhaps, as stated in Halsbury in the passage extracted in Ponnuswami [AIR 1952 SC 64], the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case. In that event, it would be difficult to formulate a proposition which will apply to all cases alike.”

54Copy pinpoint54. This judgment was followed by another Constitution Bench in G Indrajit Barua v. Election Commission of India (supra), the Court holding: “12. …We are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observations of Chandrachud, C.J. in Lakshmi H

p. 834 Copy page pinpoint

A Charan Sen case [AIR 1957 SC 304] that “it may be difficult, consistently with that 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 electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswami case [(1985) 4 SCC B 689]. 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 elections have to be held also in accordance with a time bound programme contemplated C in the Constitution and the Act. The proviso added in Section 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 to be attacked as invalid.” D

55Copy pinpoint55. In Meghraj Kothari v. Delimitation Commission (supra), this court dealt with Sections 8, 9 and 10 of the Delimitation Commission Act, 1962, and the bar contained in Article 329(a) as follows: “In this case we are not, faced with that difficulty because the Constitution itself provides under Article 329(a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Article 327 shall not be called in question in any court. Therefore an order under Section 8 or 9 and published under Section 10(1) would not be saved merely because of the use of the expression “shall not be called in question in any court”. But if by the publication of the order in the Gazette of India it is to be treated as law made under Article 327, Article 329 would prevent any investigation by any court of law.” (at page 408) xxx xxx xxx G “In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission under Sections 8 and 9 were published in the Gazette of India and in the Official Gazettes of the States H concerned, these matters could no longer be reagitated in a

p. 835 Copy page pinpoint

[R. F. NARIMAN, J]

court of law. There seems to be very good reason behind such a provision. If the orders made under Sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Section 10(2) of the Act clearly demonstrates the intention of the Legislature that the orders under Sections 8 and 9 published under Section 10(1) were to be treated as law which was not to be questioned in any court. It is true that an order under Section 8 or 9 published under Section 10(1) is not part of an Act of Parliament, but its effect is to be the same.” C (at pages 410,411) xxx xxx xxx “In the instant case the provision of Section 10(4) of the Act puts orders under Sections 8 and 9 as published under Section 10(1) in the same street as a law made by D Parliament itself which, as we have already said, could only be done under Article 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to.” (at page 415) E

56Copy pinpoint56. This judgment was followed in Assn. of Residents of Mhow (ROM) v. Delimitation Commission of India, (2009) 5 SCC 404, which dealt with Sections 9 and 10 of the Delimitation Act, 2002. The Court held: “35. This court in Pradhan [1995 Supp (2) SCC 305] was not considering any similar issue as the one that has arisen for our consideration in the present case. This court did not take any view that the proposals in respect of each constituency shall have to be treated as an independent proposal and the Commission’s power to determine delimitation of the constituencies is with reference to each constituency. The objections and/or suggestions, as the case may be, are required to be taken into consideration treating the proposals as for the whole of the State and delimitation of the constituencies with reference to a State as a unit.

36. In Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR 400] a Constitution Bench of this court while interpreting Sections H

p. 836 Copy page pinpoint

A 8, 9 and 10 of the Delimitation Commission Act, 1962 which are in pari materia with the provisions of the present Act, observed: “19. In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the B Commission under Sections 8 and 9 were published in the Gazette of India and in the Official Gazettes of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very good reason behind such a provision. If the orders made under Sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Section 10(2) of the Act clearly demonstrates the intention of the legislature that the orders under Sections 8 and 9 published under Section 10(1) were to be treated as law which was not to be questioned in any court.

20. It is true that an order under Section 8 or 9 published under Section 10(1) is not part of an Act of Parliament, but its effect is to be the same.”

37. The Constitution Bench went to the extent of saying that: E (Meghraj Kothari case [(1967) 1 SCR 400] “18. An examination of Sections 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court of law. … ***

F 32. … the provision of Section 10(4) of the Act puts orders under Sections 8 and 9 as published under Section 10(1) in the same street as a law made by Parliament itself which, … could only be done under Article 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to.” G Conclusion

38. In the present case, the Commission finally determined the delimitation of parliamentary constituencies in the State of Madhya Pradesh after considering all the objections and suggestions received by it before the specified date and got published its orders H in the Gazette of India and in the Official Gazette of the State as

p. 837 Copy page pinpoint

[R. F. NARIMAN, J]

is required under Section 10(1) of the Act. The orders so published A puts them “in the same street as a law made by Parliament itself”. Consequently that notification is to be treated as law and required to be given effect to.”

57Copy pinpoint57. In Rampakavi Rayappa Belagali v. B.D. Jatti, (1970) 3 SCC 147, the Court dealt with the scheme of the Representation of B People Act, 1950 and its inter-relation with Article 329(a) as follows: “7. …The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. …..

8. The other provisions relating to election are contained in Part XV of the Constitution. Article 324 deals with the superintendence, direction and control of elections which are vested in the Election Commission. Article 325 declares that no person shall be ineligible for inclusion in an Electoral Roll on account only of religion, race, caste, sex or any of them. Article 326 says that the elections to the House of People and the Legislative Assemblies of State shall be on the basis of adult franchise. Article 327 gives power to the Parliament to make provisions with respect to elections to Legislatures. Article 329 bars the interference of courts in electoral matters. By virtue of that Article no election shall be called in question except by an election petition. It is abundantly clear that in the present case the question whether Respondent 1 was ordinarily resident in Jamkhandi Constituency during the material period and was entitled to be registered in the Electoral Roll could not be the subject- matter of enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in Section 100 of the Act. Clause (d) is “that the result of the election, insofar as it concerns a returned candidate, has been materially affected—(2) ……………… (i)……..….................... (ii) .................................. (iii) …………….. (iv) by any non-compliance with the H

p. 838 Copy page pinpoint

A provisions of the Constitution or of this Act or of any rules or orders made under this Act”. Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any election on the ground of non-compliance with the provisions of the Act of 1950 or of any rules made thereunder with the exception of B Section 16.”

58Copy pinpoint58. However, in State of U.P. v. Pradhan Sangh Kshettra Samiti, 1995 Supp (2) SCC 305, a division bench of this Court delineated the scope of interference so far as delimitation of Panchayat areas is concerned, as follows: C “44. It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in D conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. xxx

45. What is more objectionable in the approach of the High court is that although clause (a) of Article 243-O of the E Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this court in Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR 400]. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such

p. 839 Copy page pinpoint

[R. F. NARIMAN, J]

constituencies made under Article 327 of the Constitution, A and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and B 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of C an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and D 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994.”

59Copy pinpoint59. The judgment in Anugrah Narain Singh v. State of U.P., (1996) 6 SCC 303 is instructive in that it deals with a local law namely the U.P. Nagar Maha Palika Adhiniyam, 1959, in the context of challenges made to orders under that Act. Meghraj’s case was distinguished by this court as follows: “24. The validity of Sections 6-A, 31, 32 and 33 of the U.P. Act dealing with delimitation of wards cannot be questioned in a court of law because of the express bar imposed by Article 243-ZG of the Constitution. Section 7 contains rules for allotment of seats to H

p. 840 Copy page pinpoint

A the Scheduled Castes, the Scheduled Tribes and the Backward Class people. The validity of that section cannot also be challenged. That apart, in the instant case, when the delimitation of the wards was made, such delimitation was not challenged on the ground of colourable exercise of power or on any other ground of arbitrariness. Any such challenge should have been made as soon as the final order was published in the Gazette after objections to the draft order were considered and not after the notification for holding of the elections was issued. As was pointed out in Lakshmi Charan Sen case [(1985) 4 SCC 689], that the fact that certain claims and objections had not been disposed of before the final order was passed, cannot arrest the process of election.

25. In this connection, it may be necessary to mention that there is one feature to be found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act. Section 10 of the Act of 1962 provided that the Commission shall cause each of its order made under Sections 8 and 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned. Upon publication in the Gazette of India every such order shall have the force of law and shall not be called in question in any court. Because of these specific provisions of the Delimitation Commission Act, 1962, in the case of Meghraj Kothari v. E Delimitation Commission [AIR 1967 SC 669], this court held that notification of orders passed under Sections 8 and 9 of that Act had the force of law and therefore, could not be assailed in any court of law because of the bar imposed by Article 329. The U.P. Act of 1959, however, merely provides that the draft order F of delimitation of municipal areas shall be published in the Official Gazette for objections for a period of not less than seven days. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any court of law. G For this reason, it may not be possible to say that such an order made under Section 32 of the U.P. Act has the force of law and is beyond challenge by virtue of Article 243-ZG. But any such challenge should be made soon after the final order is published…”

60Copy pinpoint60. In Dravida Munnetra Kazhagam v. State of T.N. (supra), H this Court dealt with certain interlocutory applications that were filed

p. 841 Copy page pinpoint

[R. F. NARIMAN, J]

seeking directions for compliance with the constitutional mandate concerning elections to local bodies. This Court dealt with contentions raised by the parties before it as follows: “10. It, thus, emerges that before the election process could begin as per the State Election Commission’s Press Release dated 2- 12-2019, the State of Tamil Nadu increased the number of districts from 31 to 39 and also restructured various talukas. However, with regard to posts of Chairman and Vice-Chairman of District Panchayat Councils, elections are still sought to be held only for 31 posts. This resultant incongruity has prompted the appellants to file these applications with prayers to strike down the Notification dated 2-12-2019; hold elections for the entire State C comprising all 39 revenue districts; and conduct such local body elections only after completion of all legal formalities i.e. after delimitation of the newly carved districts. A specific direction has also been prayed for, to compel the respondents to first carry out delimitation, reservation, rotation processes and fulfil all other legal requirements before notifying or conducting elections of any panchayat at the village, intermediate or district level.

11. Having heard the learned counsel for the parties at a considerable length and after an in-depth analysis of various statutory provisions as well as the constitutional scheme under Part IX which envisages democratisation of grass-root level administration, we are of the view that, as per Article 243-B, panchayats have to mandatorily be constituted in a State at the village, intermediate and district levels. Article 243-C requires the State, as far as is practicable, to maintain a similar ratio between the population residing within the territory of a particular panchayat and the number of seats allocated to it, across all panchayats in the State. Further, each panchayat must be divided into territorial constituencies and per Article 243-D, seats in proportion to their population must be reserved for Scheduled Castes and Scheduled Tribes in each panchayat. G

12. It is, thus, clear that the constitutional object of Part IX cannot be effectively achieved unless the delimitation exercise for constitution of local bodies at all levels is properly undertaken. Such exercise in the State of Tamil Nadu must keep in view the criteria for delimitation of wards prescribed under the Tamil Nadu Local Bodies Delimitation Regulations, 2017 (formulated under H

p. 842 Copy page pinpoint

A the Tamil Nadu Delimitation Commission Act, 2017), which criteria must itself not be contrary to Article 243-C read with Article 243- B(1) of the Constitution.

13. Noticing how at the completion of the delimitation process there were only 31 revenue districts, but despite a subsequent B increase in number of districts to 39, no fresh delimitation exercise has been undertaken, it is clear that the State Government cannot fulfil the aforestated constitutional mandate. There is no identified data elucidating population proportions and, hence, requisite reservation for Scheduled Castes and Scheduled Tribes cannot be provided for, both in re village panchayat wards or Chairman/ C Vice-Chairman of District bodies. We, hence, have no doubt that the election process as notified by the State Election Commission on 2-12-2019, in respect of the newly constituted nine districts cannot be held unless fresh delimitation exercise in respect thereto is first completed. The State Government cannot justify holding D local body elections of these nine districts by relying upon this Court’s order dated 18-11-2019 [C.R. Jayasukin v. T.N. State Election Commission, 2019 SCC OnLine SC 1664] as the said order itself mandates notification of elections only after completing “all legal formalities”.

E 14. The contention of the respondents that the present proceedings amount to “calling in question an election” and hence not being maintainable in view of the express constitutional embargos of Articles 243-O and 243-ZG does not impress us for the present proceedings are only to further the expeditious completion of prerequisites of a fair election. Hence, the following ratio of a F coordinate Bench in Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216 squarely applies to the present case: “32. … (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. G Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- H settled parameters which enable judicial review of decisions

p. 843 Copy page pinpoint

[R. F. NARIMAN, J]

of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.” C

61Copy pinpoint61. Accordingly, directions were issued ordering the respondents, including the Delimitation Commission, to delimit 9 newly constituted districts in accordance with law and only thereafter hold elections for their Panchayats at the village, intermediate and district levels within a period of 4 months. D

62Copy pinpoint62. Shri Tushar Mehta, learned Solicitor General has exhorted us to hold that this judgment is per incuriam in that it flies in the face of the earlier decisions of this Court. We find nothing in this judgment as flying in the face of the earlier judgments of this court. On the contrary, the Court extracts the ratio in Ashok Kumar’s case (supra) and thereafter issues directions to the authorities concerned. E

63Copy pinpoint63. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results. I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced. H

p. 844 Copy page pinpoint

A II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner. III. The non-obstante clause contained in Article 243ZG does B not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG C operates only during the process of election. IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. F This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason. G V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates H the progress of the election.

p. 845 Copy page pinpoint

[R. F. NARIMAN, J]

VI. Article 243ZA(2) makes it clear that the law made by the A legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats. B VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. C The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision. D VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and E allotment of seats to such constituencies. IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. F X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional G duty as delineated in the said proposition.

64Copy pinpoint64. Applying the law to the facts of the present case, the first important thing to be noted is that the constitutional bar contained in Article 243ZG(a) does not apply to the facts of this case. As has correctly been pointed out by Shri Laud, the judgment in Anugrah Narain Singh H

p. 846 Copy page pinpoint

A v. State of U.P. (supra) would apply as the Goa Municipalities Act does not contain any provision akin to Section 10(2) or 10(4) of the Delimitation Commission Act, 1962 that was highlighted in Meghraj’s case (supra), providing that orders of the Delimitation Commission have the force of law. This being the case, the first and foremost roadblock that has been put forward by the learned Solicitor General has been cleared. No fault B can be found with the Division Bench of the High Court in ignoring any constitutional bar in arriving at the conclusion that the 04.02.2021 order is illegal and ultra vires the provisions of Article 243T of the Constitution of India read with Sections 9 and 10 of the Goa Municipalities Act. On merits, it is important to note that Shri Tushar Mehta, learned Solicitor C General, did not advance any argument that the reservation of seats for women and OBCs was in accord with the provisions of the Constitution and the Goa Municipalities Act. Indeed, even otherwise, we do not find fault with the Division Bench judgment in its conclusion that a fraction has to be worked upwards whatever that fraction be, given the mandatory D language of Article 243T of the Constitution which provides for reservation for women which shall not be less than one-third. Also, the findings of the High Court on OBC reservation not complying with the mandate of Section 9(2)(bb) in that in several councils it was below 27% cannot be faulted. The same goes for observations made on the 1 ST seat in Sanguem and non-application of the principle of rotation.

65Copy pinpoint65. However, there can be no doubt that Shri Tushar Mehta is right in stating that assurances given by the Advocate General that the State Government would not raise the bar of Article 243ZG(b), but would instead argue that since the election programme was “imminent” and that therefore, the High Court ought not intervene, cannot alter the position F in law. There can be no doubt that no concession by counsel can operate against a constitutional bar.

66Copy pinpoint66. However, on the peculiar facts of these cases, this Court is constrained not to interfere with the impugned judgment under Article 136 of the Constitution of India. This is because of the following special features of the facts of these cases: G (i) First and foremost, it is important to note that the State Election Commissioner is none other than the Law Secretary to the Government of Goa. The whole process of these elections is, therefore, faulted at the start so to speak as the SEC is not, in the facts of these cases, an independent body H as is mandated by Article 243K.

p. 847 Copy page pinpoint

[R. F. NARIMAN, J]

(ii) It is important to note that the SEC had itself postponed the A municipal elections twice due to the COVID-19 pandemic raging throughout the State. On the second occasion, by the notification dated 14.01.2021, the SEC had itself postponed these elections till April 2021 or the election date which may be determined by the State Election Commission. B Obviously, the expression “or the election date which may be determined by the Commission” would indicate a date beyond April, 2021, given the situation in which the State of Goa finds itself due to the COVID-19 pandemic. It is important to note that the High Court in its direction contained in paragraph 81(e) directs the SEC to act in accordance with this notification so that elections are held by 15.04.2021. (iii) In Dnyaneshwar Narso Naik’s case (supra) and Sujay S. Lotlikar’s case (supra), solemn assurances were made by the Advocate General that orders of reservation in wards of Municipal Councils will be made at least three weeks before the election programme is announced. The State Government instead of acting upon these statements, inserted an amendment by adding a proviso to Section 10 of the Goa Municipalities Act in which a lesser period was mentioned i.e., a period of at least one week. E (iv) The Law Secretary’s letter dated 05.02.2021, calling upon the Director, Urban Development, to issue a reservation order under Section 10 of the Goa Municipalities Act was to do so “at an early date”. The Director, by an order passed one day before this communication i.e., on 04.02.2021, with F lightning speed provided for reservation in all 11 Municipal Councils of women/SCs/STs and OBCs prompting the High Court to observe that due application of mind could not have been bestowed before issuing such an order. (v) All the writ petitions in the present cases were filed between G 9th and 12th February, 2021 immediately challenging the Director’s order dated 04.02.2021. None of these writ petitions contained a prayer that would hold up any election programme. The only prayer was to strike down the aforesaid order so that the Director in issuing a fresh order would have to truly and faithfully carry out the constitutional H

p. 848 Copy page pinpoint

A mandate of Article 243T of the Constitution of India and the statutory mandate contained in Section 9 of the Goa Municipalities Act. (vi) When the High Court issued notice on 15.02.2021 for final hearing on 22.02.2021, the SEC did not inform the High B Court that vide a note of 05.02.2021 (disclosed for the first time by an affidavit filed in this Court on 08.03.2021), elections were proposed to be held on 20.03.2021. (vii) In a clear attempt to overreach the High Court, the State Election Commissioner, who is none other than the Law Secretary of the State of Goa, issues an election notification C at 9:00 a.m. on 22.02.2021, even before the Government offices open at 9:30 a.m. in order to forestall the hearing of the writ petitions filed before the High Court, which commences hearing the writ petitions at 9.00 a.m.1 (viii) After the judgment was pronounced by the Division Bench D of the High Court on 01.03.2021 and no stay granted, this court, “issued notice” on 04.03.2021 and stayed the impugned judgment, the effect of which was to revive the election programme that was notified on 22.02.2021. Despite this, the State Election Commission, on this very day i.e., E 04.03.2021, amended the aforesaid notification by extending the time period for filing of nomination for 5 Municipal Councils from 04.03.2021 till 06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore, rescheduled the election. 1 It is well settled that actions of the State with oblique or indirect object will be attributed to “malice in law”. This Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors (2010) 9 SCC 437 has summarised this as follows: “25. The State is under obligation to act fairly without ill will or malice— in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521], S.R. Venkataraman v. Union of India [(1979) 2 SCC 491], State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739], BPL Ltd. v. S.P. H Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568])”

p. 849 Copy page pinpoint

[R. F. NARIMAN, J]

67Copy pinpoint67. Given the aforesaid, the order of the High Court contained in A paragraph 81 of the impugned judgment will be observed with two changes. In paragraph 81(c), it is clarified that the period of 10 days in which the Director, Urban Development is to issue a fresh order will be 10 days from the date of this judgment. Also, instead of “15th April” occurring in paragraph 81(e), the words “30th April” be substituted. All B the other directions will remain undisturbed.

68Copy pinpoint68. The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state C qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a D High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future. H

p. 850 Copy page pinpoint

69Copy pinpoint69. The appeals are disposed of accordingly. Writ Petition (Civil) No. 309/2021

1. This writ petition has been filed under Article 32 of the Constitution of India by a resident of Margao, Goa, challenging the reservation order dated 04.02.2021 issued by the Director of Municipal B Administration, Goa, and the notification dated 04.03.2021 which was issued by the Goa SEC altering the original schedule of elections.

2. Given our judgment in the aforesaid appeals, in view of the fact that the reservation order dated 04.02.2021 has been set aside and that a fresh election schedule will have to be notified, the writ petition is C allowed and the notification dated 04.03.2021 is also struck down.

Nidhi Jain Appeals disposed and petition allowed.