Full Judgment Text
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PETITIONER:
ELECTION COMMISSION OF INDIA
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT25/04/1984
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
PATHAK, R.S.
MADON, D.P.
THAKKAR, M.P. (J)
CITATION:
1984 AIR 1406 1984 SCR (3) 554
1984 SCALE (1)670
ACT:
Practice & Procedure-Passing of Ex-parte orders, by the
Courts as sought for by the parties when they give prior
intimation of the proposed proceedings to the opposite side
without much inconvenience or prejudice disapproved.
Constitution of India 1950 Article 136-Interference by
the Supreme Court against an ad interim order passed by the
High Court.
HEADNOTE:
To fill in the vacancy arising from the setting aside
of the election of the returned candidate from the 59-Taoru
Assembly Constituency in Haryana, by the Supreme Court, the
appellant Commission sent a message and programme on April
6, 1984 to the Chief Electoral officer for the State of
Haryana. According to that programme, the notification under
section 150 of the Representation of the People Act, 1951
was to be issued on April 18, 1984, the last date for filing
nominations was April 25, 1984 while the date of poll was
May 20, 1984 The Election Commission fixed an identical
programme for filling 23 other vacancies in the legislative
assemblies of Andhra Pradesh, Karnataka and West Bengal. On
April 7, 1984, the Election Commission was requested by the
Haryana Government to hold the proposed by-election
alongwith the general elections to the Lok Sabha, due later
in the year. On April 11, 1984, the Chief Secretary wrote a
letter to the Election Commissioner renewing the request to
defer the by election. On April 12, 1984 the Election
Commissioner informed the Chief Election officers by a telex
message that it had decided to adhere to the programme of
by-elections to all the 24 constituencies and copies of
notifications to be published on April 18, 1984 were sent to
the Chief Electoral officer, Haryana. A Press not was issued
to that effect after informing all the political parties.
The Chief Secretary, Haryana met the Chief Election
Commissioner on April 14, 1984 and explained to him
personally why it was neither advisable nor possible to hold
the by-election to the Taoru seat as proposed by the latter.
On April 16, 1984, the Chief Secretary wrote a letter
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reiterating the view of the Government to the Chief Election
Commissioner. On April 17, 1984, the Chief Commissioner
replied to the letter of April 16, 1984 by saying that the
Commission had taken the decision to hold the by-election
after taking the Punjab situation and taking into
consideration all factors including the fact of non fact
that the political parties were not opposed to the proposed
byelection. On the same day the Government of Haryana filed
a writ petition in the High Court of Punjab and Haryana and
obtained an ex parte order staying the issuance and
publication of the
555
notification by the Election Commission under ss. 30, 56 and
150 of the Representation of the People Act, 1951. Hence the
appeal by special leave of the Court.
Allowing the appeal, the Court.
^
HELD : (Per-Majority)
Per-Chandrachud C.J.
1 : 1. The widely prevalent practice of partices
obtaining ex parte orders when they can give prior
intimation of the proposed proceedings to the opposite side,
without much inconvenience or prejudice has often been
disapproved by this Court. When the public authorities do so
it is all the more open to disapprobation. [561D-E]
1 : 2. The Government of Haryana obtained an ex parte
order from the High Court when it could easily have given
prior intimation of the intended proceedings to the Election
Commission of India. The letter is constitutionally
identifiable, conveniently accessible and easily available
for being contacted on the most modern systems of
communication. The Election Commission of India, too rushed
to this Court on the 18th without informing the Government
of Haryana that it proposes to challenge the order of the
High Court and to ask for stay of that order. The Government
of Haryana is also identifiable and accessible with the same
amount of case. Were it not for the fact that this matter
brooked no delay the Supreme Court would have hesitated to
pass any interim order without the appellant giving prior
intimation of its proposed action to the respondent.
[561E-G]
1 : 3. Despite the guideline indicated by the Supreme
Court in the West Bengal poll case, A.K.M. Hassan Uzzaman v.
Union of India, [1982] 2 S.C.C. 218, regarding the passing
of orders by the High Courts in exercise of their writ
jurisdiction, the High Court of Punjab & Haryana far from
showing any reluctance to interfere with the programme of
the proposed election, the High Court has only too readily
passed the interim order which would have had the effect of
postponing the election indefinitely. Considering that the
election process was just round the corner, the High Court
ought not to have interfered with it. The nonspeaking order
passed by it affords no assistance on the question whether
there were exceptional circumstances to justify that order.
[562A-C]
2. The Government of Haryana is undoubtedly in the best
position to assess the situation of law and order in areas
within its jurisdiction and under its control. But the
ultimate decision as to whether it is possible and expedient
to hold the elections at any given point of time must rest
with the Election Commission Arbitrariness and mala fides
destroy the validity and efficacy of all orders passed by
public authorities. It is therefore necessary that on an
issue like the present, which concerns a situation of law
and order, the Election Commission must consider the views
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of the State Government and all other concerned bodies of
authorities before coming to the conclusion that there is no
objection to the holding of the
556
elections at this point of time. Hence the Election
Commission came to its decision after bearing in mind the
pros and cons of the whole situation. It had the data before
it. It cannot be assumed that it turned a blind eye to it.
In these circumstances, it was not in the power of the High
Court to decide whether the law and order situation in the
State of Punjab and Haryana is such as not to warrant or
permit the holding of the by-election. It is precisely in a
situation like this that the ratio of the Bengal Poll case
would apply in its full rigor. [562E-H, 563A-B]
3 : 1. However, it would be open to the Chief Election
Commissioner to review his decision as to the expediency of
holding the poll on the notified date. In fact, not only
would it be open to him to reconsider his decision to hold
the poll as notified, it is plainly his duty and obligation
to keep the situation under constant scrutiny so as to
adjust the decision to the realities of the situation. All
the facts and circumstances, past and present, which bear
upon the question of the advisability of holding the poll on
the notified date have to be taken into account and kept
under vigil. That is to continuing process which can only
cease after the poll is shield. Until then, the Election
Commission has the locus, for good reasons to alter its
decision The law and order situation in the State, or in any
art of it, or in a neighboring State, is a consideration of
vital importance for deciding the question of expediency or
possibility of holding an election at any particular point
of time. If he considers it necessary, he should held
further discussions with the Chief Electoral officer of
Haryana and consult, once again, leaders of the various
political parties on the question whether it is feasible to
hold the poll on the due date. On an important issue such as
the holding of an election, which is of great and immediate
concern to the entire political community, there can be no
question of any public official standing on prestige, an
apprehension which was faintly projected in the State’s
arguments. A sense of realism, objectively and noa-alignment
must inform the decision of the election Commission on that
issue. [563D-H]
Mohd. Yunus Saleem v. Shiv Kumar Shastri. [1974] 3
S.C.R. 738 @ 743-44; followed.
3 : 2. Indeed, every citizen of this country who has
some degree of political awareness, would have a fair idea
of the situation in Punjab and its impact on the even flow
of life in the neighbouring State of Haryana. But the
circumstance that the High Court has the knowledge of a fact
will not justify the substitution by it of its own opinion
for that of an authority duly appointed for a specific
purpose by the law and the Constitution. Different people
hold different views on public issues, which are often
widely divergent. Even the Judges. A Judge is entitled to
his views on public issues but he cannot project his
personal views on the decision of a question like the
situation of law and order in a particular area at a
particular period of time and hold that the Election
Commission is in error in its appraisal of that situation.
[564D-F]
Per Thakkar, J. (Contra) :
The exact parameters of the decision in Hassan’s case
and the true
557
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ratio cannot be known till the judgment containing reasons
is born. As on today no one can predict what exactly will be
decided by the Court in Hassan’s case when the Judgment
eventually comes to be pronounced (who can make a guess
about the colour or shade of the eyes of a child which is
yet to be born ?). But it can be reasonably said that
Hassan’s case does not enjoin that an interim order of such
a nature can never be passed in any situation. If that were
not so, the court would not have said (1) that imminence of
electoral process is a factor which must guide and govern
the passing of orders (meaning thereby that while such order
scan be passed this factor must be accorded due
consideration) and (2) that "more imminent such process, the
greater ought to be the reluctance of the High Court to do
anything or direct anything to be done which will postpone
that process indefinitely" (which means it must be done only
with reluctance when elections are imminent). In other words
the power must be exercised sparingly (with reluctance)
particularly when the order would be to postpone the
installation of a democratically elected popular Government.
These observations were made by the Court in Hassan’s case
in the context of the expiry of the term of legislature as
envisioned by Article 172 of the Constitution of India and
consequential general elections for such legislature as is
evident from the elusion to "imminence of elections" and
"indefinite postponement of elections to legislative bodies
which are the essence of democratic functions of the
Constitution." This must be so because the legislature would
stand dissolved on the expiry of the term, and a new
legislature has to be elected. It is in this context
(presumably) that a reference is made to "imminence of
elections". [567D-E-H; 568A-F]
For a By-election like the present one, to fill a
single vacancy . there can be no question of "imminence" or
"indefinite postponement of elections" which would stall the
installation of a democratically elected government. It is
nobody’s case that the party position was such that the
result of the election to this vacant seat would have tilted
the majority one way or other. No oblique motive has even
been hinted at. The High Court was therefore not unjustified
in proceeding on the assumption that it had such a power.
[568F-G]
The High Court cannot be faulted for passing the
impugned order faced as it was by an unprecedented situation
like the present. If the High Court had not granted the
order and the Election Commission had not chosen to appear
on or before April 18, 1984 the High Court would have
perhaps become powerless to pass any other order, whatever
be the justification for it, as the "electoral-process"
would have actually commenced. The High Court was prima-
facie satisfied that the Election Commission had failed to
take into account vital matters, appeared to have acted on
non-consequential considerations, and had acted arbitrarily
in turning down the request of the State Government as also
the Chief Election Officer of Haryana. The High Court was
therefore entitled to grant a stay. [569A-B]
The Supreme Court in exercise of the jurisdiction under
Article 136 of the Constitution of India should not
interfere with the ad-interim order passed by the High Court
in such a fact situation. On the one hand the Election
Commission appeared to have been altogether oblivious to the
dimension as regards the bonafide apprehension pertaining to
the life and
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security of the National leaders who might address public
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meetings, the Candidates the officers engaged in election
work, and the voters. The danger was further aggrevated in
the face of open threats held but to the lives of the
National leaders of different political parties. What is
more, the Election Commission has shown total unawareness of
the circumstance that public meetings were prohibited under
s. 144 of the Cr. P. C. in the constituency going to the
polls. On the other hand the only consequence of granting a
stay would have been to postpone the election programme by a
few days in the event of the Election Commission commission
not choosing to appear in the Court (to show cause why the
ad-interim order should no be made absolute) on or before
April 18, 1984 which was the scheduled date for issuance of
the notification announcing the election programme The
Election Commission could have appeared before the High
Court and got the stay vacated in time instead of
approaching this Court by way of the present appeal by
Special Leave. The Election Commission could not have failed
to refraise that no serious consequence would have flowed
from the impugned order even if stay was vacated, not
immediately, but a few days later, for, it was only a by-
election to one single seat of no significance which would
not have resulted in postponement of the installation of an
elected government. Worse come to worse, the by-election
could not have been held along with by-elections in other
states on the ’same day’. [569B-G]
More so when the Election Commission has not been able
to show what possible detriment would have been suffered if
the by election could not have been so held on that
particular day. How and by what process of ratiocination did
the Election Commission convinced itself that free elections
could be held in a situation where the Candidates would
consider it hazardous to contest or to indulge in election
propaganda, and even voters would be afraid to vote, even to
this court. [569G-H, 570A]
It is no doubt true that theoretically the Election
Commission can still postpone the polling, if it is so
minded. But the Court should not remain a passive spectator
in this extraordinary situation and leave the Nation to the
mercy of an individual, however high be his office, when it
is evident that he has secluded himself in his ivory tower
and has shut his eyes to the realities of the situation and
closed his mind to the prognosis of this matter. The Court
can certainly satisfy itself whether the Election
Commissioner had kept his eyes, ears and mind open, and
whether he was able to show that all relevant factors
including the consideration as to what advantage was to be
secured as against the risk to be faces, entered into his
reckoning. If this is not shown to have been done, as in the
present case, his decision is vitiated and the Court need
not feel helpless. The High Court was therefore fully
justified in passing the impugned order, and the Supreme
Court should not upture it. [571B-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2182 of
1984.
Appeal by Special leave from the Judgment and Order
dated the 17th April, 1984 of the Punjab and Haryana High
Court in W.P. No. Nil of 1984
559
S.S. Ray and Krishnamurthi Swami for the Appellant.
K.G. Bhagat Addl. Sol. General, A.K. Sen, H.B. Singh
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Advocate of Harayana, A. Subbha Rao, CV. and R.N. Poddar,
for Respondent. General,
The following Judgments were delivered
CHANDRACHUD, C.J. We had passed an interim order on
April 18, suspending the operation of the order passed by
the High Court of Punjab & Haryana, on April 17, 1984. The
High Court, by its aforesaid order, had stayed the issuance
and publication of the notifications by the Election
Commission of India under sections 30, 56 and 150 of the
Representation of People Act, 1951. We had directed that the
special leave petition should be listed before us the next
day for considering whether the interim order should be
confirmed.
On February 28, 1984, this Court gave a judgment in
Civil Appeal No.5501 of 1983, setting aside the election of
the returned candidate from the 59-Taoru Assembly
Constituency in Haryana. As a result of that judgment, a
vacancy arose in the Legislative Assembly of the State of
Haryana from that Constituency. On April 6, 1984, the
Election Commission of India sent a message to the Chief
Secretary, Haryana, who is the Chief Electoral Officer for
the State of Haryana, informing him that the Commission had
fixed a certain programme for holding the by-election to the
Taoru Constituency. According to that programme, the
notification under section 150 of the Representation of the
People Act, 1951, was to be issued on April 18, 1984, the
last date for filing nominations is April 25,1984, while the
date of poll is May 20, 1984. The Election Commission fixed
an identical programme for filling 23 other vacancies in the
legislative assemblies of Andhra Pradesh, Karnataka and West
Bengal.
On April 7, 1984, the Election Commission received a
telex message from the Chief Secretary, Government of
Haryana, conveying the request of the Haryana Government
that the proposed by election should be held along with the
general elections to the Lok Sabha which are due later this
year. On April 11, 1984, the Chief Secretary wrote a letter
to the Chief Election Commissioner renewing the aforesaid
request for two reasons:
560
(1) The next general election to the Haryana Vidhan
Sabha is due in May, 1987 and since the Taoru
vacancy had occurred recently on February 28,
1984, there was no immediate necessity to fill it;
and
(2) deferring the by-election would save time, labour
and expense.
On April 12, 1984, the Election Commission informed the
Chief Electoral Officers by a telex message that it had
decided to adhere to the programme of by-election to 24
vacancies in their respective jurisdictions. The telex
message mentioned specifically that the Commission had taken
into consideration the replies received by it from various
State Government and their Chief Electoral Officers on the
question of holding the elections as proposed. On the same
date i.e. April 12, 1984 copies of notifications to be
published on April 18, 1984 in the Haryana Gazette were sent
to the Chief Electoral Officer of Haryana. By a separate
communication of the same date, the Commission informed all
the political parties about the programme fixed by it for
holding the by-elections. A press note was also issued to
the same effect on the same date.
The Chief Secretary, Haryana, met the Chief Election
Commissioner on April 14 and explained to him personally why
it was neither advisable nor possible to hold the by-
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election to the Taoru seat as proposed by the latter. On
April 16, the Chief Secretary wrote a letter to the Chief
Election Commissioner reiterating the view of his
Government. He added in that letter that it would not be
possible to hold the election during the proposed period
because, the neighbouring State of Punjab was going through
a serious problem of law and order, that there was a dispute
regarding territorial adjustment and division of waters
between the State of Haryana and the Akali Party in Punjab,
that the said dispute was used by the Akali Party for
stepping up terrorist activities, that the terrorists had
attacked persons occupying high public offices, that there
was a serious threat to the lives of many important persons
in Haryana, that public meetings had been banned by the
District Magistrate under section 144 of the Criminal
Procedure Code and that the situation in the State was such
that it would not be possible to hold public meetings for
election purposes for a few months. On April 17, the Chief
Election Commissioner replied to the Chief Secretary’s
letter of April 16 by saying that the Commission had taken
the decision to hold the by-election after taking into
consideration all
561
factors, that it was not clear how the Constituency of Taoru
in Gurgaon, which is about 35 kilometers from Delhi, and
which is quite far away from Punjab would have any fall-out
of the Punjab situation and that the political parties who
were duly informed of the proposed election programme had
not opposed the holding of by election at this point of
time. On the same date that the Chief Election Commissioner
wrote the aforesaid letter, the Government of Haryana filed
a writ petition in the High Court of Punjab and Haryana and
obtained an ex-parte order, which is impugned in this
special leave petition.
We passed the interim order on April 18 after hearing a
fairly long and exhaustive argument from Shri Siddhartha
Shankar Ray who appeared on behalf of the appellant, the
Election Commission of India, and the learned Additional
Solicitor General who appeared on behalf of respondent, the
’State of Haryana’ We heard further arguments of the parties
on the 19th, Shri Asoke Sen appearing for the respondent.
Since the matter raises questions of general public
importance, we grant special leave to appeal to the
petitioner.
We often express our disapproval of the widely
prevalent practice of parties obtaining ex parte orders when
they can give prior intimation of the proposed proceedings
to the opposite side, without much inconvenience or
prejudice. When the public authorities do so, it is all the
more open to disapprobation. But here, the parties have
taken a tooth for a tooth. The Government of Haryana
obtained an ex porte order from the High Court when it could
easily have been given prior intimation of the intended
proceeding to the Election Commission of India. The latter
is constitutionally identifiable, conveniently accessible
and easily available for being contacted on the most modern
systems of communication. The Election Commission of India,
too, rushed to this Court on the 18th without informing the
Government of Haryana that it proposes to challenge the
order of the High Court and to ask for stay of that order.
The Government of Haryana is also identifiable and
accessible with the same amount of case. We do hope that the
smaller litigants will not form the belief that the bigger
ones can get away with such lapses. Were it not for the fact
that this matter brooked no delay, we would have hesitated
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to pass any interim order without the appellant giving prior
intimation of its proposed action to the respondent.
As stated earlier notifications setting the election
process in motion were to be issued on April 18. One day
before that, the State
562
Government approached the High Court in a hurry, asking it
to stay the election process, which the High Court has done.
This Court held in the West Bengal poll case, A.K.M. Hassan
Uzzaman v. Union of India,(1) that the imminence of the
electoral process is an important factor which must guide
and govern the passing of orders in the exercise of the High
Court’s writ jurisdiction and that, the more imminent such
process, the greater ought to be the reluctance of the High
Court to take any step which will result in the postponement
of the elections. We regret to find that far from showing
any reluctance to interfere with the programme of the
proposed election, the High Court has only too readily
passed the interim order which would have had the effect of
postponing the election indefinitely. Considering that the
election process was just round the corner, the High Court
ought not to have interfered with it. The non-speaking order
passed by it affords no assistance on the question whether
there were exceptional circumstances to justify that order.
The fact that the election process was imminent is only
one reason for our saying that the High Court should have
refused its assistance in the matter. The other reason for
the view which we are taking is provided by the very nature
of the controversy which is involved herein. The difference
between the Government of Haryana and the Chief Election
Commission centres round the question as to whether the
position of law and order in the State of Haryana is such as
to make it inexpedient or undesirable to hold the proposed
by-election at this point of time. The Government of Haryana
is undoubtedly in the best position to assess the situation
of law and order in areas within its jurisdiction and under
its control. But the ultimate decision as to whether it is
possible and expedient to hold the elections at any given
point of time must rest with the Election Commission. It is
not suggested that the Election Commission can exercise its
discretion in an arbitrary or mala fide manner.
Arbitrariness and mala fide destroy the validity and
efficacy of all orders passed by public authorities. It is
therefore necessary that on an issue like the present, which
concerns a situation of law and order, the Election
Commission must consider the views of the State Government
and all other concerned bodies or authorities before coming
to the conclusion that there is no objection to the holding
of the elections at this point of time. On this aspect of
the matter, the correspondence between the Chief Secretary
of Haryana and the Chief Election Commissioner shows that
the latter had taken all the
563
relevant facts and circumstances into account while taking
the decision to hold the by-election to the Taoru
Constituency in accordance with the proposed programme. The
situation of law and order in Punjab and, to some extent, in
Haryana is a fact so notorious that it would be naive to
hold that the Election Commission is not aware of it. Apart
from the means to the knowledge of the situation of law and
order in Punjab and Haryana, which the Election Commission
would have, the Chief Secretary of Haryana had personally
apprised the Chief Election Commissioner as to why the State
Government was of the view that the elections should be
postponed until the Parliamentary elections. We see no doubt
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that the Election Commission came to its decision after
bearing in mind the pros and cons of the whole situation. It
had the data before it. It cannot be assumed that it turned
a blind eye to it. In these circumstances, it was not in the
power of the High Court to decide whether the law and order
situation in the State of Punjab and Haryana is such as not
to warrant or permit the holding of the by-election. It is
precisely in a situation like this that the ratio of the
West Bengal Poll case would apply in its full rigor.
We must add that it would be open to the Chief Election
Commissioner, as held in Mohd. Yunus v. Shiv Kumar
Shastri,(1) to review his decision as to the expediency of
holding the poll on the notified date. In fact, not only
would it be open to him to reconsider his decision to hold
the poll as notified, it is plainly his duty and obligation
to keep the situation under constant scrutiny so as to
adjust the decision to the realities of the situation. All
the facts and circumstances, past and present, which bear
upon the question of the advisability of holding the poll on
the notified date have to be taken into account and kept
under vigil. That is a continuing process which can only
cease after the poll is held. Until then, the Election
Commission has the focus, for good reasons, to alter its
decision. The law and order situation in the State, or in
any part of it, or in a neighbouring State, is a
consideration of vital importance for deciding the question
of expediency or possibility of holding an election at any
particular point of time. We are confident that the Chief
Election Commissioner, who is vested with important duties
and obligations by the Constitution, will discharge those
duties and obligations with a high sense of responsibility,
worthy of the high office which he holds. If he considers it
necessary, he
564
should hold further discussions with the Chief Election
Officer of Haryana and consult, once again, leaders of the
various political parties on the question whether it is
feasible to hold the poll on the due date. One as important
issue such as the holding of an election, which is of great
and immediate concern of the entire political community,
there can be no question of any public official standing on
prestige, an apprehension which was faintly projected in the
State’s arguments. A sense of realism, objectivity and
nonalignment must inform the decision of the Election
Commission on that issue.
It was urged that the High Court of Punjab and Haryana
would have a fair and clear understanding of the happenings
in Punjab and their repercussions in Haryana which would
justify its interference with the decision of the Election
Commission to hold the by-election now. The first part of
this argument need not be disputed and may even be accepted
as correct. Indeed, every citizen of this country who has
some degree of political awareness, would have a fair idea
of the situation in Punjab and its impact on the even flow
in the neighbouring State of Haryana. But the second part of
the argument is untenable. The circumstance that the High
Court has knowledge of a fact will not justify the
substitution by it of its own opinion for that of an
authority duly appointed for a specific purpose by the law
and the Constitution. Different people hold different views
on public issues, which are often widely divergent. Even the
judges. A Judge is entitled to his views on public issues
but the question is whether he can project his personal
views on the decision of a question like the situation of
law and order in a particular area at a particular period of
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time hold that the Election Commission is in error in its
appraisal of that situation. We suppose not.
For these reasons, we confirm the interim order which
was passed by us on April 18, allow this appeal and set
aside the High Court’s order of April 17. Unless otherwise
directed by the Chief Election Commissioner, the election
programme will have to go through as already notified.
There will be no order as to costs.
THAKKAR, J. Holding of a by-election to fill even a
single vacancy at the earliest date is an extremely
desirable end in a democratic framework. Even so if such
circumstances exist, and a
565
reasonable progrosis can be bonafide made, that holding the
by-election for filling up that vacancy, is fraught with
grave danger, not only to the lives of election officers,
candidates as also political leaders addressing election
meetings, as also of voters, and poses a grave danger which
altogether outweighs the advantage of holding the election
along with the by-elections in other States, should the
matter not engage very serious attention of the Election
Commission ? Not even when it is shown that with regard to
the sensitive and explosive situation it was likely to
worsen a situation which was already worse ? More is when
all that was to be gained by holding the by-election as
proposed was to be able to hold it along with other by-
elections on the same day as in other States which had by
itself no significance or virtue. And if the Election
Commission without due deliberation summarily turns down the
request to defer the election programme for that by-election
even by a few days in such circumstances, can the High Court
be faulted for passing an ad-interim order, which has the
result of postponing the election, not for an indefinite
period, but for a few days till the parties are heard ? Is
the order passed by the High Court in such circumstances so
gross that instead of allowing the High Court to confirm it
or vacate it, upon the other side showing cause, this Court
should invoke the jurisdiction under Article 136 of the
Constitution of India to set it aside ? More particularly
when the consequence would be no more serious than this,
namely, that the by-election cannot be held (there is no
virtue in doing so) on the same day along with other by-
elections.
That the High Court has the power to issue a direction
or order which has the effect of postponing an election if
the situation so demands would appear to be the law declared
by a five-judge Constitution Bench presided over by the
learned Chief Justice who presides over this Bench as well.
In A.K.M. Hassan Uzzaman and other v. Union of India and
others and Lakshmi Charan Sen and others v. A.K.M. Hassan
Uzzaman and others the conclusions are recorded in the
operative order dated March 30, 1982, reading as under:
"1. The transferred case and the appeals connected
with it raise important questions which require a
careful and dispassionate considerations. The hearing
of these matters was concluded four days ago, on
Friday, the 26th. Since the judgment will take some
time to prepare, we propose, by this
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Order, to state our conclusions on some of the points
involved in controversy:
(1) 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,
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with respect, 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 the 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 the jurisdiction to
entertain the writ petition and to issue
appropriate directions therein, no High Court in
the exercise of its powers 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. The imminence of the
electoral process is a factor which must guide and
govern the passing of orders in the exercise of
the High Court’s writ jurisdiction. The more
imminent such process, the greater ought to be the
reluctance of the High Court to do anything, or
direct anything to be done, which will postpone
that process indefinitely by creating a situation
in which, the Government of a State cannot be
carried on in accordance with the provisions of
the Constitution. India is an oasis of democracy,
a fact of contemporary history which demands the
courts the use of wise statesmanship in the
exercise of their extraordinary powers under the
Constitution. The High Courts must observe a self-
imposed limitation on their power to act under
Article 226, by refusing to pass orders or give
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. The limitation ought to be observed
irrespective of the fact whether the preparation
add publication of electoral rolls are a part of
the process of ’election’ within the meaning of
Article 329 (b) of the
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Constitution. We will pronounce upon that question
later in our judgment.
(2) X X X X
(3) X X X X
2. For these reasons and those which we will give
in our judgment later, we dismiss the writ petition
filed in the Calcutta High Court which was transferred
for disposal to this Court. All orders, including
interim orders, passed by the Calcutta High Court are
hereby set aside. Civil Appeals 739 to 742 of 1982 will
stand disposed of in the light of the dismissal of the
writ petition, out of which they arise.
3. X X X X
4. X X X X
Does Hassan’s case enjoin that no such interim order
can ever be passed by the High Court ?
The relevant extract from the conclusion recorded in
Hassan’s case has been reproduced hereinabove. Of course,
the exact parameters of the decision and the true ratio
cannot be known till the judgment containing reasons is
born. As on today no one can predict what exactly will be
decided by the Court in Hassan’s case when the judgment
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eventually comes to be pronounced (who can make a guess
about the colour or shade of the eyes of a child which is
yet to be born ?). But it can be reasonably said that the
following: extract.
"The imminence of the electoral process is a
factor which must guide and govern the passing of
orders in the exercise of the High Court’s writ
jurisdiction. The more imminent such process, the
greater ought to be the reluctance of the High Court to
do anything, or direct anything to be done, which will
postpone that process indefinitely by creating a
situation in which, the Government of a State cannot be
carried on in accordance with the provisions of the
Constitution."
warrants the view that Hassan’s case does not enjoin that an
interim order of such a nature can never be passed in any
situation. If that
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were not so, the Court would not have said (1) that
imminence of electoral process is a factor which must guide
and govern the passing of orders (meaning thereby that while
such orders can be passed this factor must be accorded due
consideration) and (2) that "more imminent such process, the
greater ought to be the reluctance of the High Court to do
anything or direct anything to be done which will postpone
the process indefinitely" (which means it must be done only
with reluctance when elections are imminent.) The aforesaid
statement of law made in the context of "general elections"
does not warrant the view that Hassan’s case enjoins that an
election programme cannot be postponed even for a few days
even in the case of a by-election, whatever be the
situation, and whatever be the circumstances, in which the
High Court is called upon to exercise its jurisdiction. It
is therefore not unreasonable to proceed on the premise that
even according to Hassan’s case the Court has the power to
issue an interim order which has the effect of postponing an
election but it must be exercised sparingly (with
reluctance) particularly when the result of the order would
be to postpone the installation of a democratically elected
popular government. The portion extracted from the operative
order in Hassan’s case brought into focus a short while ago
which adverts to "imminence of elections" and to "directions
which will inevitably result in indefinite postponement of
elections to legislative bodies which are the very essence
of the democratic functions of our Constitution" leaves no
room for doubt that the observations were being made in the
context of the expiry of the term of legislature as
envisioned by Article 172 of the Constitution of India and
consequential general elections for such legislature. This
must be so because the legislature would stand dissolved on
the expiry of the term, and a new legislature has to be
elected. It is in this context (presumably) that a reference
is made to "imminence of elections". For a by-election like
the one we are concerned with, there can be no question of
"imminence" or "indefinite postponement of elections" which
would stall the installation of a democratically elected
government. It is no body’s case that the party position was
such that the result of the election to this vacant seat
would have tilted the majority one way or other. No oblique
motive has even been hinted at. The High Court was therefore
not unjustified in proceeding on the assumption that it had
such a power.
Does the ad-interim order passed by the High Court
merit being upturned in exercise of the jurisdiction under
Art. 136 of the Constitution of India ?
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The only question which arises is whether the presence
was a case where the High Court could not have granted the
ad-interim order. Be it realized that if the High Court had
not granted the order and the Election Commission had not
chosen to appear on or before April 18, 1984 the High Court
would have perhaps become powerless to pass any order,
whatever be the justification for it, as the "electoral-
process" would have ’actually’ commenced. Can the High Court
then be faulted for passing the impugned order faced as it
was by an unprecedented situation like the present? On the
one hand the Election Commission appeared to have been
altogether oblivious to the dimension as regards the
bonafide apprehension pertaining to the life and security of
the National leaders who might address public meetings, the
candidates, the officers engaged in election work, and the
voters. The danger was further aggravated in the face of
open threats held out to the lives of the National leaders
of different political parties. What is more, the Election
Commission has shown total unawareness of the circumstance
that public meetings were prohibited under Section 144 of
the Code of Criminal Procedure in the constituency going to
the polls. On the other hand the only consequence of
granting a stay would have been to postpone the election
programme by a few days in the event of the Election
Commission not choosing to appear in the Court (to show
cause why the ad-interim order should not be made absolute)
on or before April 18, 1984 which was the scheduled date for
issuance of the notification announcing the election
programme. The Election Commission could have appeared
before the High Court and got the stay vacated in time
instead of approaching this Court by way of the present
appeal by Special Leave. The Election Commission could not
have failed to realise that no serious consequence would
have flowed from the impugned order even if stay was
vacated, not immediately, but a few days later, for, it was
only a by-election to one single seat of no significance
which would not have resulted in postponement of the
installation of an elected government. Worse come to worse,
the by-election could not have been held along with by-
elections in other States on the ’same’ day. The Election
Commission has not been able to show what possible detriment
would have been suffered if the by-election could not have
been so held on that particular day. If the High Court was
prima facie satisfied that the Election Commission had
failed to take into account vital matters and appeared to
have acted on non-consequential considerations, and had
acted arbitrarily in turning down the request of the State
Government as also the Chief Election Officer of
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Haryana, why could the High Court not grant a stay? And
should this Court interfere in such a fact-situation?
Learned Counsel for the Election Commission, though
repeatedly requested, is unable to point out either from the
affidavit filed on 18th, or from the additional affidavit
filed on the 19th, that the aforesaid factors were taken
into reckoning by the Commission. It is not stated that
these factors do not exist or have been invented by the
State Government with any oblique motive. The contents of
the affidavits filed by the Election Commission reveal that
it was altogether oblivious to all the relevant factors
recounted earlier. There is nothing to show that a single
factor was present on its mental screen. The Election
Commission has not apprised the Court as to how and why any
or all of these factors were considered to be immaterial. No
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inkling is given as to how the Election Commission thought
that the problems could be overcome. By what process of
self-hypnotism did the Election Commission convince itself
that free and fair elections could be held even when public
meetings were banned in the constituency? How, and by what
process of ratiocination did the Election Commission
convince itself that free elections could be held in a
situation where the candidates would consider it hazardous
to contest or to indulge in election propaganda, and even
voters would be afraid to vote? If the Election Commission
had any idea as to how the hurdles could be crossed and
problem resolved, it has chosen not to reveal its perception
of the matter. The Election Commission perhaps has good
answers. But silence is the only answer which has been given
by the Commission as also its counsel on this aspect. "I
know my-job-and-it-is-none-of-the-business-of-the-Courts"
seems to be the attitude. All that has been stated by the
learned counsel for the Commission is that everything was
considered (without even disclosing the content of the
expression ’everything’). Counsel has of course set up an
alibi by saying that affidavits had to be prepared by
burning mid-night oil. But in that case the concentration
would have been on everything of importance and what was the
essence of the matter could not have been overlooked or
forgotten. And if it has escaped attention, the conclusion
is inevitable that the Election Commission had not attached
due importance and weightage to the basic problem and had
not applied itself seriously to a serious problem.
The fact is established that the Chief Secretary and
the Chief Election Officer of Haryana, had personally
apprised the Chief Election Commissioner of the prevailing
situation sometime before 14th April, 1984. The Election
Commission has not even disclosed
571
this fact in the petition or in the additional affidavit.
Nor has the Election Commission apprised us as to what
transpired at the meeting. The Election Commission has been
less than candid even to this Court. No doubt the Chief
Election Commissioner is holding a responsible post. But
that does not make him infallible or render his decision or
act any the less arbitrary if he has failed to inform
himself of all the relevant factors and has failed to direct
his attention to the core problem. It is no doubt true that
theoretically the Election Commission can still postpone the
polling, if it is so minded. But should the Court remain a
passive spectator in this extraordinary situation and leave
the Nation to the mercy of an individual, however high be
his office, when it is evident that he has secluded himself
in his ivory tower and has shut his eyes to the realities of
the situation and closed his mind to the progrrosis of the
matter. The Court can certainly satisfy itself whether the
Election Commissioner had kept his eyes, ears and mind open,
and whether he was able to show that all relevant factors
including the consideration as to what advantage was to be
secured as against the risk to be faced, entered into his
reckoning. If this is not shown to have been done, as in the
present case, his decision is vitiated and the Court need
not feel helpless. The High Court was therefore fully
justified in passing the impugned order.
Appeal is accordingly dismissed.
S.R. Appeal allowed.
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