Bombay High Court
Rajabhau (Parag) Prakash Waje vs Manikrao Shivajirao Kokate And 9 Ors on 11 December, 2020
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
1-aep-5207-2020.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
AEPL NO.5207 OF 2020
IN
ELECTION PETITION NO.22 OF 2019
Chief Electoral Officer and others. ] Applicant
IN THE MATTER BETWEEN:
Rajabjai (Parag) Prakash Waje ] Petitioner
Vs.
Manikrao Shivaji Kokate and others. ] Respondents
.....
Mr. Shreehari Aney, Senior Advocate a/w Mr. Viraj Nair a/w Ms.
Anupama Powar, Ms. Nivedita Mullerpattan i/b M/s. Volant Legal, for
Petitioner in E.P. No.22 of 2019 and for Applicant in AEPL No.3615 of
2020.
Mr. S.S. Deshmukh, for Respondent No.1.
Ms. Akanksha Helaskar, for Respondent No.6.
Ms. Jyoti Chavan, A.G.P, for State.
Mr. Pradeep Rajgopal a/w Ms. Drishti Shah, for Respondents No.9 and
10 and for Applicant in AEPL No.5207 of 2020.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 25TH NOVEMBER, 2020.
PRONOUNCED ON : 11th DECEMBER, 2020.
(THROUGH VIDEO CONFERENCING)
Digitally signed by 1/25
Shailaja S. Shailaja S. Halkude
Halkude Date: 2020.12.11
16:57:20 +0530
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P.C:
By this application, Election Commission of India and the
Chief Electoral Officer who are respondents No.9 and 10 in the
Election Petition have prayed for deletion of their names from the
array of the respondents in view of the provisions of Section 82 of the
Representation of People Act, 1951 (for short 'Act').
2. Facts necessary for disposal of this application can be
summarized as follows;
An Election Petition is filed by the petitioner under the
provisions of section 100 (1) (d) (iii) and (iv) r/w Section 62 (2) (3)
and (4) r/w the provisions of the Constitution of India and the
Conduct of Election Rules, 1961. The petitioner has sought a
declaration that the Legislative Assembly Election dated 24 th October,
2019 held in the constituency of Sinnar/Nashik as void. Election is
sought to be set aside, inter alia, as according to the petitioner, there
have been a large number of double votes (void votes) cast by the
same persons in the constituency which is in violation of Section 62
(4) of the Act.
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3. Heard Mr. Rajgopal, learned Counsel appearing for the
applicants/original respondents No.9 and 10 and Mr. Aney, learned
Senior Counsel for the petitioner.
4. According to Mr. Rajgopal, the Chief Electoral Officer i.e
respondent No.10 and the Election Commission of India-respondent
No.9 are all acting under the superintendence and control of the
Election Commission of India under the Act of 1951 who are neither
necessary nor proper parties in the Election Petition which is against
the provisions of Section 82 of the said Act.
5. In support of his contention, Mr. Rajgopal has pressed into
service following judgments;
[a] Jyoti Basu and others Vs. Debi Ghosal and others,
AIR 1982 Supreme Court 983;
[b] B. Sundara Rami Reddy Vs. Commission of India
and others, 1991 Supp (2) Supreme Court Cases
624;
[c] Michael B. Fernandes Vs. C.K. Jaffer Sharief and
others, AIR 2002 SUPREME COURT 1041.
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6. According to Mr. Rajgopal, the Hon'ble Supreme Court in
the above judgments unequivocally observed that the right to elect or
to be elected or a dispute regarding election are neither fundamental
rights nor common law rights but are confined to the provisions of the
Act. The rules made therein and consequently, the rights and
remedies are limited to those provided by the statutory provisions. He
contends that while dealing with questions of joinder of the parties
referred to in Sections 82 and 86 (4) of the Act, it has been held that
the contest of the Election Petition is designed to be confined to the
candidates at the Election and all other are excluded. Thus, only
those can be joined as respondents to Election Petition who are
mentioned in Sections 82 and 86 (4) and none others.
7. Thus, according to Mr. Rajgopal, in view of the ratio laid
down by the Hon'ble Supreme Court in the aforesaid judgments vis-a-
vis the provisions contained in Sections 82 and 86 (4) of the Act,
names of respondents No.9 and 10 be struck off from the array of the
respondents in the Election Petition.
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8. Mr. Aney, the learned Senior Counsel appearing for the
petitioner, on the other hand, stresses that respondents No.9 and 10
are not only necessary but proper and relevant parties to the Election
Petition. According to the learned Senior Counsel, judgments relied
upon on behalf of respondents No.9 and 10 in respect of section 82 of
the Act cannot be made applicable in the present case as section 82 of
the Act cannot be read in isolation in case pertaining to challenge in
preparation of electoral rolls under Article 324 of the Constitution of
India. Mr. Aney emphasized that section 82 of the Act can only be
interpreted to the candidates who should be added or not added like
in cases where the allegations pertain to the provisions of Section 123
namely corrupt practices. Similarly, section 82 can also be used to
interpret where Election Commission is necessary or proper party
when Election Commission's orders are challenged.
9. It is submitted that in the present case even on a bare
reading of the Election Petition, it is apparent that the preparation of
the Electoral Roll and/or voters list is sought to be impugned under
Article 324 of the Constitution. Article 324 of the Constitution vests
with the Election Commission who is respondent No.9 and respondent
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No.10 is it's officer. As such, according to Mr. Aney, respondents No.9
and 10 are necessary and proper parties in the Petition. Mr. Aney, the
learned Senior Counsel would argue that the interpretation and
reading of section 82 of the Act cannot eschew into the provisions of
Article 324 of the Constitution, as that would require the application
of the repugnance principle, and in any event, it appears that such
facts as applicable in the present case had not come before and
considered in any of the judgments. Thus, he contends that the said
contention of the petitioner is res integra.
10. Mr. Aney, the learned Senior Counsel has placed reliance
upon the following judgments;
[a] Mohinder Singh Gill and others Vs. The Chief Election
Commissioner, New Delhi and others, AIR 1978
Supreme Court 851;
[b] Neelalohithadasan Nadar Vs. George Mascrene and
others, 1994 AIR SCW, 2198 and
[c] Rekha Rana Vs. Jaipal Sharma and others, AIR 2009
Supreme Court 2946.
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11. The Hon'ble Supreme Court in case of Jyoti Basu and
others Vs. Debi Ghosal and others, AIR 1982 Supreme Court 983 , has
elaborately discussed the scope of section 82 and 86 (4) of the Act
which even has considered the provisions of Article 324 of the
Constitution. I am afraid, I cannot buy the argument of Mr. Aney, the
learned Senior Counsel that interpretation and reading of section 82
of the Act cannot eschew in Article 324 of the Constitution as,
according to Mr. Aney, such facts, as applicable in the present case had
not come before and considered in any of the judgments. Having
considered the judgment in case of Jyoti Basu (supra), I feel that the
said principle has been considered and is no more res integra.
12. Mr. Rajgopal has drawn my attention to paragraphs 11, 12
and 13 of the decision in the case of Jyoti Basu (supra) which read
thus;
"11. The matter may be looked at from another angle. The
Parliament has expressly provided that an opportunity should be
given to a person who is not a candidate to show cause against
being 'named' as one guilty of a corrupt practice. Parliament,
however, has not thought fit to expressly provide for his being
joined as a party to the election petition either by the election-
petitioner or at the instance of the very person against whom the
allegations of a corrupt practice are made. The right given to the
latter is limited to show cause against being 'named' and that
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right opens up for exercise when, at the end of the trial of the
election petition notice is given to him to show cause why he
should not be 'named'. The right does not extend to participation
at all stages and in all matters, a right which he would have if he
is joined as a party at the commencement. Conversely the
election petitioner cannot by joining as a respondent a person
who is not a candidate at the election subject him to a prolonged
trial of an election petition with all its intricacies and
ramifications. One may well imagine how mischievous minded
persons may harass public personages like the Prime Minister
of the country, the Chief Minister of a State or a political leader
of a national dimension by impleading him as a party to election
petitions, all the country over. All that would be necessary is a
seemingly plausible allegation, casually or spitefully made, with
but a facade of truth. Everyone is familiar with such allegations.
To permit such public personage to be impleaded as a party to
an election petition on the basis of a mere allegation, without
even prime facie proof, an allegation which may ultimately
be found to be unfounded, can cause needless vexation to such
personage and prevent him from the effective discharge of his
public duties. It would be against the public interest to do so.
The ultimate award of costs would be no panacea in such cases,
since the public mischief cannot be repaired. That is why public
Policy and legislative wisdom both seem to point to an
interpretation of the provisions of the Representation of the
People Act which does not permit the joining, as parties, of
persons other than those mentioned in Sections 82 and 86 (4). It
is not as if a person guilty of a corrupt practice can get away
with it. Where at the concluding stage of the trial of an election
petition, after evidence has been given, the Court finds that
there is sufficient material to hold a person guilty of a corrupt
practice, the Court may then issue a notice to him to show cause
under Section 99 and proceed with further action. In our view
the legislative provision contained in Section 99 which enables
the Court, towards the end of the trial of an election petition, to
issue a notice to a person not a party to the proceeding to show
cause why he should not be 'named' is sufficient clarification of
the legislative intent that such person may not be permitted to
be joined as a party to the election petition.
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12. There is yet another viewpoint. When in an
election petition in addition to the declaration that the
election of the returned candidate is void a further
declaration is sought that any candidate other than the
returned candidate has been duly elected, sec. 97 enables the
returned candidate or any other party to 'recriminate' i.e. to
give evidence to prove that the election of such candidate
would have been void if he had been a returned candidate
and a petition had been presented to question his election. If
a person who is not a candidate but against whom allegations
of any corrupt practice are made is joined as a party to the
petition then, by virtue of his position as a party, he would
also be entitled to 'recriminate' under sec. 97. Surely such a
construction of the statute would throw the doors of an
election petition wide open and convert the petition into a
'free for all' fight. A necessary consequence would be an
unending, disorderly election dispute with no hope of
achieving the goal contemplated by Sec. 86(6) of the Act that
the trial of the election petition should be concluded in six
months. It is just as well to remember that 'corrupt practice' as
at present defined by Sec. 123 of the Act is not confined to
the giving of a bribe but extends to the taking of a bribe too
and, therefore, the number of persons who may be alleged to
be guilty of a corrupt practice may indeed be very large, with
the consequence that all of them may possibly be joined as
respondents.
13. In view of the foregoing discussion we are of the
opinion that no one may be joined as a party to an election
petition otherwise than as provided by Sections
82 and 86(4) of the Act. It follows that a person who is not
a candidate may not be joined as a respondent to the election
petition. The appeal is therefore, allowed with costs and the
names of the appellants and the seventh respondent in the
appeal are directed to be struck out from the array of parties
in the election petition. We may mention that in arriving at
our conclusion we have also considered the following
decisions cited before us: S.B. Adityan & Anr. v. S.
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Kandaswami & Ors., AIR 1958 Mad 171; Dwijendra Lal Sen
Gupta v. Harekrishna Konar, AIR 1963 Cal 218; H.R. Gokhale
v. Bharucha Noshir C.AIR 1969 Bom. 177 and S. Iqbal Singh v.
S. Gurdas Singh BadalAIR 1973 Punj & Har 163 (fb),
Appeal allowed".
13. Mr. Rajgopal relied upon the decision in the case of B.
Sundara Rami Reddy (supra), relevant paras of which read as under;
"3. After hearing learned counsel for the petitioner we
do not find any merit in the petition. Section 82 of the
Representation of the People Act, 1951 specifies the
persons who are required to be joined as respondents to
an election petition. Under this provision the returned
candidate is a necessary party as a respondent and
where relief for a declaration is claimed that the election
petitioner, or any other candidate be duly elected, all the
contesting candidates are necessary to be impleaded as
respondents to the petition. No other person or
authority except as aforesaid is required to be impleaded
as a respondent to an election petition under the Act.
The Election Commission of India is therefore not a
necessary party to an election petition.
4. Learned Counsel for the petitioner urged that
even if the Election Commission may not be a necessary
party, it was a proper party since its orders have been
challenged in the election petition. He further urged
that since Civil Procedure Code, 1908 is applicable to
trial of an election petition the concept of proper party is
applicable to the trial of election petition. We find no
merit in the contention. Section 87 of the Act lays down
that subject to the provisions of the Act and any rules
made thereunder; every election petition shall be tried
by the High Court, as nearly as may be in accordance
with the procedure applicable under the Code of Civil
Procedure, 1908 to the trial of suits. Provisions of the
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Civil Procedure Code have thus been made applicable to
the trial of an election petition to a limited extent as
would appear from the expression "subject to the
provisions of this Act". Since Section 82 designates the
persons who are to be joined as respondents to the
petition, provisions of the Civil Procedure Code, 1908
relating to the joinder of parties stands excluded. Under
the Code even if a party is not necessary party, he is
required to be joined as a party to a suit or proceedings
if such person is a proper party, but the Representation
of the People Act, 1951 does not provide for joinder of a
proper party to an election petition. The concept of
joining a proper party to an election petition is ruled out
by the provisions of the Act. The concept of joinder of a
proper party to a suit or proceeding underlying Order 1
of the Civil Procedure Code cannot be imported to the
trial of election petition, in view of the express
provisions of Sections 82 and 87 of the Act. The Act is a
self-contained Code which does not contemplates
joinder of a person or authority to an election petition
on the ground of proper party. In K. Venkateswara Rao
v. Bekkam Narasinha Reddi, AIR 1969 Supreme Court
872 this Court while discussing the application of Order
1 Rule 10 of the Civil Procedure to an election petition
held that there could not be any addition of parties in
the case of an election petition except under the
provisions of sub-section (4) of Section 86 of the Act.
Again in Jyoti Basu V. Debi Ghosal, (1982) 1 SCC 691
this Court held that the concept of 'proper party' is an
must remain alien to an election dispute under the
Representation of the People Act, 1951. Only those may
be joined as respondents to an election petition who are
mentioned in Section 82 and Section 86 (4) and no
others. However, desirable and expedient it may appear
to be, none else shall be joined as respondents".
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Thus, it has been held that Election Commission of India is, therefore,
not a necessary party to an Election Petition.
14. Mr. Rajgopal contends that the judgment in case of
Mohinder Singh Gill and another Vs. The Chief Election
Commissioner, New Delhi and others, AIR 1978 Supreme Court 851 is
altogether on different aspect and the said ratio cannot be made
applicable in the present set of facts since it was not a ruling under
the Election Petition. This being statutory Court and not a writ Court,
ratio laid down therein cannot be considered in the present set of
facts at this stage.
15. Mr. Rajgopal submits that similar view has been taken by
the Hon'ble Supreme Court in case of Michael B. Fernandes Vs. C.K.
Jaffer Sharief and others, (2002) 3 Supreme Court Cases 521. The
Hon'ble Supreme Court has also considered the ratio laid down by the
five Judges Bench of the Hon'ble Supreme Court in the case of
Moinder Singh Gill Vs. Election Commission of India. He has drawn
my attention to the relevant portion of the judgment in case of
Michael B. Fernandes (supra) which can can be quoted for
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advantage;
"We are not in a position to accept the submission of Mr.
Venkataramani inasmuch as in Gill's case, an order of the
Election Commissioner was under challenge by filing a writ
petition and it was not an election petition under the
provisions of the Representation of the People Act. There is
no dispute with the proposition that a free and fair electoral
process is the foundation of our democracy, but the question
for consideration is, whether by indicating in the Act as to
who shall be arrayed as party, the Court would be justified in
allowing some others as parties to an election petition. For
the aforesaid proposition, Gill's case is no authority. Mr.
Venkataramani then relied upon the decision of Calcutta High
Court in Dwijendra Lal Sen Gupta vs. Hare Krishna Konar,
A.I.R. 1963 Calcutta 218, where the question came up for
consideration directly and the Calcutta High Court did
observe that the Returning Officer may nevertheless in an
appropriate case be a "proper party" who may be added as
party to the election petition and undoubtedly, the aforesaid
observation supports the contention of Mr. Venkararamani.
Following the aforesaid decision, a learned Single Judge of
the Bombay High Court in the case of H.R. Gokhale vs.
Bharucha Noshir C. and Others., A.I.R. 1969 Bombay 177,
had also observed that the observations of Shah, J in Ram
Sewak Yadav's case, AIR 1964 SC 1249 in paragraph (6) is
not intended to lay down that the Returning Officer can in no
event be a proper party to an election petition. But both these
aforesaid decisions of the Calcutta High Court and Bombay
High Court had been considered by this Court in Jyoti Basu
case and the Court took the view that the public policy and
legislative wisdom both seem to point to an interpretation of
the provisions of the Representation of the People Act which
does not permit the joining, as parties, of persons other than
those mentioned in Sections 82 and 86(4). The Court also in
paragraph (12) considered the consequences if persons other
than those mentioned in Section 82 are permitted to be
added as parties and held that the necessary consequences
would be an unending, disorderly election dispute with no
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hope of achieving the goal contemplated by Section 86(6) of
the Act. In the aforesaid premises, we reiterate the views
taken by this Court in Jyoti Basu's case and reaffirmed in the
latter case in B. Sundara Rami Reddy and we see no infirmity
with the impugned judgment, requiring our interference
under Article 136 of the Constitution. This appeal accordingly
fails and is dismissed".
16. In so far as ratio in Mohinder Singh Gill's (supra) case is
concerned, an order of Election Commission was challenged through
a Writ Petition and it was not an Election Petition under the provisions
of the Representation of the People Act. There is no dispute with the
proposition that a free and fair electoral process is the foundation of
our democracy, but the question for consideration is, whether by
indicating in the Act as to who shall be arrayed as party, the Court
would be justified in allowing some others as parties to an election
petition.
17. In Jyoti Basu's case, the Hon'ble Supreme Court took a
view that Public Policy and legislative wisdom both point to an
interpretation that the provisions of the Representation of the People
Act 1951 does not permit the joining, as parties of persons other
than those mentioned in sections 82 and 86 (4). A view taken by the
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Hon'ble Supreme Court in case of Jyoti Basu (supra) has been
reiterated and re-affirmed in case of Michael Fernandes (supra) as
well as in case of Sundara Rami Reddy (supra). Thus, the ratio in
Mohinder Singh Gill's case can be distinguished accordingly.
18. Mr. Aney has drawn my attention to the relevant
paragraphs of the judgment in case of Mohinder Singh Gill (supra)
which read as under;
"13. The wide canvas so spread need not engage us
sensitively, since such diffusion may weaken concentration on
the few essential points concerned in this case. One such
aspect relates to repoll. Adjournment of the poll at any
polling station in certain emergencies is sanctioned by section
57 and fresh poll in specified vitiating contingencies is
authorised by section 58. The rules run into more particulars.
After the votes are cast comes their counting. Since the
simple plurality of votes clinches the verdict, as the critical
moment approaches, the situation is apt to hot up,
disturbances erupt and destruction of ballots disrupt. If
disturbance or destruction demolishes the prospect of
counting the total votes, the number secured by each
candidate and the ascertainment of the will of the majority, a
re-poll confined to disrupted polling stations is provided for.
Section 64A chalks out the conditions for and course of such
repoll, spells out the power, and repository thereof and
provides for kindred matters. At this stage we may make a
closer study of the provisions regarding repoll systematically
and stagewise arranged in the Act. It is not the case of either
side that a total repoll of an entire constituency is
specificated in the sections or the rules. Reliance is placed for
this wider power upon Article 324 of the Constitution by the
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Commission in its order, by the first respondent in his
affidavit, by the learned Additional Solicitor General in his
argument and by the third respondent through his counsel.
We may therefore have to study the scheme of. Article 324
and the provisions of the Act together since they are integral
to each other. Indeed, if we may mix metaphors for emphasis,
the legislation made pursuant to Article 327 and that part of
the Constitution specially devoted to elections must be
viewed as one whole picture, must be heard as an
orchestrated piece and must be interpreted as one package of
provisions regulating perhaps the most stressful and strategic
aspect of democracy-in-action so dear to the nation and so
essential for its survival.
The lis and the issues
14. Two prefatory points need to be mentioned as
some reference was made to them at the bar. Firstly, an
election dispute is not like an ordinary lis between private
parties. The entire electorate is vicariously, not inertly, before
the court. MANU/SC/0097/1958: 1959 SCR 611. We may,
perhaps, call this species of cases collective litigation where
judicial activism assures justice to the constituency, guardians
the purity of the system and decides the rights of the
candidates. In this class of cases, where the common law
tradition is partly departed from, the danger that the active
judge may become, to some extent, the prisoner of his own
prejudices exists; and so, notwithstanding his powers of
initiative, the parties' role in the formulation of the issues and
in the presentation of evidence and argument should be
substantially maintained and- care has to be taken that the
circle does not become a vicious one, as pointed out by J.A.
Jolowicz in. 'Public Interest Parties and the Active Role of the
Judge in Civil Litigation' (ss. p. 276). Therefore, it is essential
that courts, adjudicating upon election controversies, must
play a verily active role, conscious all the time that every
decision rendered by the Judge transcends private rights and
defends the constituency and the democracy of the country.
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20. Right at the forefront stands in the way of the
appellant's progress the broad-spectrum ban of Article
329(b)which, it is claimed for the respondents, is imperative
and goal- oriented. Is this Great Wall of China, set up as a
preliminary bar, so impregnable that it cannot be by passed
even by Art. 226 ?That, in a sense, is the key question that
governs the fate of this appeal. Shri P. P. Rao for the appellant
contended that, however, wide Art. 329(b)may be, it does not
debar proceedings challenging, not the steps promoting
election but dismantling it, taken by the Commission without
the backing of legality. He also urged that his client, who had
been nearly successful in the poll and had been deprived of it
by an illegal cancellation by the Commission, would be left in
the cold without any remedy since the challenge to
cancellation of the completed poll in the entire constituency
was not covered by S.100 of the Act. Many subsidiary pleas
also were put forward but we will focus on the two inter-
related submissions bearing on Article 329(b)and S.100 and
search for a solution. The problem may seem prickly but an
imaginative application of principles and liberal
interpretation of the constitution and the Act will avoid
anomalies and assure justice. If we may anticipate our view
which will presently be explained, section 100(1 ) (d) (iv) of
the Act will take care of the, situation present here, being
broad enough, as a residual provision, to accommodate, in
expression 'non-compliance', every excess, transgression,
breach or omission. And the span of the, ban under Article
329(b)is measured by the sweep of S. 100 of the Act.
35. This dilemma does not arise in the wider view we take
of s. 100(1) (d) (iv) of the Act. Sri Rao's attack on the order
impugned is in substance based on alleged non-compliance
with a provision of the Constitution viz.,Article 324 but is
neatly covered by the widely-worded, residual catch-all
clause of section 100 knowing the supreme significance of
speedy elections in our system the framers of the Constitution
have, by implication, postponed all election disputes to
election petitions and tribunals. In harmony with this scheme
section 100 of the Act has been designedly drafted to
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embrace all conceivable infirmities which may be urged. To
make the project fool-proof Section 100(1)(d) (iv) has been
added to absolve everything left over. The Court has in earlier
rulings pointed out that Section 100 is exhaustive of all
grievances regarding an election 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 contrary wise. For example, after the President
notifies the nation on the holding of elections under S. 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 courts 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.
36. A poll is part-a vital part-of the election but with the
end of the poll the whole election is not over. Ballots have to
be assembled, scrutinised, counted recount claims considered
and result declared. The declaration determines the election.
The conduct of the election thus ripens into the elector's
choice only when processed, screened and sanctified, every
escalatory step upto the formalised finish being unified in
purpose, forward in movement, fair and free in its temper.
Article 329(b) halts judicial intervention during this period,
provided the act possesses the pre-requisites of 'election' in its
semantic sweep. That is to say, immunity is conferred only if
the act impeached is done for the apparent object of
furthering a free and fair election and the protective armour
drops down if the act challenged is either unrelated to. or
thwarts or taints the course of the election.
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60. Normally, natural justice involves the irritating
inconvenience for men in authority, of having to hear both
sides since notice and opportunity are its very marrow. And
this principle is so integral to good government, the onus is
on him who urges exclusion to make out why. Lord Denning
expressed the paramout policy consideratlon behind this rule
of public law (while dealing with the nemo judex aspect)
with expressiveness. "Justice must be rooted in confidence:
and confidence is destroyed when right-minded people go
away thinking 'the judge was biased'."We may adapt it to the
audi alteram situation by the altered statement : "Justice
must be felt to be just by the community if democratic
legality is to animate the rule of law. And if the invisible
audience sees a man's case disposed of unheard, a chorus of
'noconfidence' will be heard to say, 'that man had no chance
to defend his stance'." That is why Tuckor LJ in Russol v. Duke
of Norfolk(1) (1) (1949) 1 All E.R. 109,118 emphasised that
'whatever standard of natural justice is adopted, one A,
essential is that the person concerned should have a
reasonable opportunity of presenting his case'. What is
reasonable in given circumstances is 'in the domain of
practicability; not formalised rigidity. Lord Upjohn in
Fernando[1967] 2 A.C 337 observed that 'while great
urgency may rightly limit such opportunity timeously :
perhaps severely there can never be a denial of that
opportunity if the principles of natural justice are applicable'.
It is untenable heresy, in our view, to look jaw the victim or
act behind his back by tempting invocation of urgency, unless
the clearest case of public injury flowing from the least delay
is self evident. Even in such cases a remedial hearing as soon
as urgent action has been taken is the next best. Our
objection is not to circumscription dictated by circumstances,
but to annihilation as an easy escape from a benignant, albeit
inconvenient obligation. The procedural pre-condition of fair
hearing, however minimal, even post- decisional, has
relevance to administrative and judicial gentlemanliness. The
Election Commission is an institution of central importance
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and enjoys far-reaching powers and the greater the power to
affect others' right or liabilities the more necessary the need
to hear.
82. We have been told that wherever the Parliament
has intended a hearing it has said so in the Act and the rules
and inferentially where it has not specificated it is otiose.
There is no such sequitur. The silence of a statute has no
exclusionary effect except where it flows from necessary
implication. Article 324 vests a wide power and where some
direct consequence on candidates emanates from its exercise,
we must read this functional obligation.
91. A kindred matter viz., the scope of section 100
and section 98 has to be examined, parties having expressed
anxious difference on the implied powers of the Election
Court. Indeed, it is a necessary part of our decision but we
may deal with it even here. Sri Rao's consternation is that, if
his writ petition is dismissed as not maintainable and his
election petition is dismissed on the ground that the Election
Court had no power to examine the cancellation of poll, now
that a fresh poll has taken place, he will be in the unhappy
position of having to forfeit a near-victory because a gross
illegality triumphs irremediably. If this were true the hopes of
the rule of law turn into dupes of the people. We have given
careful thought to this tragic possibility and are convinced
indeed, the learned Solicitor General has argued for
upholding, not subverting the rule of law and agrees that the
Election Court has all the powers necessary to grant all or
any of the reliefs set out in section 98 and to direct the
Commissioner to take such ancillary steps as will render
complete justice to the appellant".
19. Mr. Aney has relied upon the judgment in the case of
Neelalohithadasan Nadar Vs. George Mascrene and others, 1994 AIR
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SCW 2198. Relevant portion of this judgment reads thus;
"10. The existence of the principle of "secrecy of ballot"
cannot be denied. It undoubtedly is an indispensable
adjunct of free and fair elections. The Act statutorily assures
a voter that he would not be compelled by any authority to
disclose as to for whom he has voted, so that he may vote
without fear or favour and free from any apprehension of its
disclosure against his will from his own lips. See in this
connection Raghbir Singh Gill v. Gurcharan Singh (1980) 3
SCR 1302. But this right of the voter is not absolute. It must
yield to the principle of "purity of election" in larger public
interest. The exercise of extrication of void votes under
Section 62(4)of the Act would not in any manner impinge
on the secrecy of ballot especially when void votes are those
which have to be treated as no votes at all. "Secrecy of
ballot" principle presupposes a validly cast vote, the sanctity
and sacrosancy of which must in all events be preserved.
When it is talked of ensuring free and fair elections it is
meant elections held on the fundamental foundation of
purity and the "secrecy of ballot" as an allied vital principle.
It was observed by this Court in Raghbir Singh case' as
follows (SCR p. 1320: SCC p. 68, para 23) "Secrecy of ballot
though undoubtedly a vital principle for ensuring free and
fair elections, it was enshrined in law to subserve the larger
public interest, namely, purity of election for ensuring free
and fair election. The principle of secrecy of ballot cannot
stand aloof or in isolation and in confrontation to the
foundation of free and fair elections, viz., purity of election.
They can coexist but as stated earlier, where one is used to
destroy the other, the first one must yield to principle of
purity of election in larger public interest. In fact secrecy of
ballot, a privilege of the voter, is not inviolable and may be
waived by him as a responsible citizen of this country to
ensure free and fair election and to unravel foul play."
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20. Mr. Aney has relied upon the judgment in the case of
Rekha Rana Vs. Jaipal Sharma and others, AIR 2009 SC 2946.
Relevant paragraphs in this case read as under;
"9. Section 94 of the Act provides that except in a case of
voting by open ballot, no witness or other person shall be
required to state for whom he has voted. The underlying
object of the provision is to assure a voter that he would not
be compelled, directly or indirectly, by any authority to
disclose as to for whom he has voted, so that he may vote
without fear or favour and is free from any apprehension of
its disclosure against his will from his own lips. The Section
confers a privilege on the voter to protect him both in the
Court when he is styled as a witness and outside the Court
when he may be questioned about how he voted. This
precisely is the principle of "secrecy of ballot". The "secrecy of
ballot" has always been the hallmark of the concept of free
and fair election, so very essential in the democratic
principles adopted by our polity. It undoubtedly is an
indispensable adjunct of free and fair elections".
13. As already noted above, the case of the election
petitioner, pleaded in the election petition, is that a number of
votes had been cast by impersonating electors, who were
either not available in the constituency on the date of election
or had died much prior to the date of election or were serving
jail sentences or were abroad on the relevant date. The
factum of casting of votes by a particular elector could be
proved only on the basis of marked electoral rolls. More so,
when the names of the voters who were alleged to have
double voted or have died etc., were specifically mentioned in
the election petition. From a marked electoral rolls, it is only
possible to ascertain whether or not a vote had been cast in
the name of a voter from a particular polling booth but it is
never possible to decipher therefrom as to who is the
beneficiary of the said vote as there is no indication on the
electoral roll showing for whom the voter had cast his vote. It
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is to be borne in mind that the marked electoral roll is
maintained primarily for the purpose of identifying the elector
and as such, we fail to see how its production would impair
the "secrecy of ballot" principle. Accordingly, we reject the
contention of learned counsel for the appellant on this
aspect".
21. Mr. Rajgopal has also placed reliance upon a few
judgments of this Court;
[1] Sachin Damodar Shingda Vs. Election Commissioner
of India and others, Election Petition No.2 of 2019
(Coram: R.D. Dhanuka, J.) delivered on 27 th August,
2019.
[2] Aslam Badshahji Sayyed Vs. The Election Commission
of India and others, Election Petition No.16 of 2019
a/w Application (L) No.6 of 2019 in Election Petition
No.16 of 2019 (The Election Commission of India and
Returning Officer, Applicants in the matter between
Aslam Badshahji Sayyed Vs. The Election Commission
of India and others) (Coram: R.I. Chagla, J.) delivered
on 16th January, 2020.
[3] Navanath Vishnu Padalkar Vs. The Election
Commission of India and others, Election Petition
No.13 of 2019 with Interim Application No.1 of 2019
in Election Petition No.13 of 2019 with Application
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(L) No.2 of 2019 in Election Petition No.13 of 2019
(Returning Officer and others; in the matter between
Navanath Vishnu Padalkar Vs. The Election
Commission of India and others) (Coram: M.S.
Karnik, J.) delivered on 5th February, 2020.
[4] The Election Commission of India and another; In the
matter between Rahul Ragunath Ovhal Vs. The
Election Commission of India and others, Application
(L) No.3 of 2019 in Election Petition No.9 of 2019
(Coram: G.S. Kulkarni) decided on 4th March, 2020.
22. Having considered the judgments hereinabove, the legal
position, as enumerated in all the decisions, more particularly in the
case of Jyoti Basu (supra) which has further been considered in case
of Sundara Rami Reddy (supra) and Michael Fernandes (supra),
neither Election Commission of India nor Chief Electoral Officer or
Returning Officer can be necessary parties to the Election Petition.
Thus, prayer of the applicants/original respondents No.9 and 10
needs to be granted.
23. In the light of the observations made hereinabove,
following order is expedient;
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:ORDER:
1. The petitioner is directed to effect necessary amendment in the Petition, thereby, deleting the names of respondents No.9 and 10 from the array of the parties with consequential amendments in the body and prayer of the Petition.
2. The amendment shall be carried out within a period of six weeks from the date of passing of this order.
3. In the circumstances, there is no order as to costs.
24. This order will be digitally signed by the Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
[PRITHVIRAJ K. CHAVAN, J.] 25/25