Delhi High Court
Viplav Sharma vs Union Of India (Uoi) And Anr. on 23 May, 2005
Equivalent citations: 122(2005)DLT696, 2005(83)DRJ665
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT B.C. Patel, C.J.
1. This writ petition is filed by the petitioner, a practicing lawyer, inter alia, praying for the reliefs as under:-
(a) declare sections 61A and 58(aa) of the Representation of People Act, 1951 and Rules 49A to 49X contained in Chapter II of Part IV of the Conduct of Elections Rules to be ultra vires the constitution and void;
(b) issue a direction, order or a writ of certiorari or a writ in the like nature quashing impugned decision of Respondent No. 2 to hold election of 14th Lok Sabha in all Parliamentary constituencies by use of EVMs;
(c) issue a direction, order or a writ of mandamus or a writ in the like nature commanding respondent No. 2 to hold all elections only through ballot paper system;
(d) stay the effect and operation of the impugned decision of Respondent No. 2 to hold elections of the 14th Lok Sabha in all Parliamentary constituencies in the country by use of EVMs; and
(e) pass such other or further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. This petition is filed in public interest and is styled as a public interest litigation. Our attention is drawn by the learned counsel for the Election Commission of India that the issue involved in the instant petition has been examined by the High Court of Judicature at Madras in its decision in the Writ Petition Nos. 3346, 3633, 4417, 4454, 4466, 4945, 5077, 6038 and 6039 of 2001. It appears that in all nine petitions were filed by different political parties and individuals, inter alia, challenging the provisions contained in Section 61A of the Representation of the People Act,1951 (hereinafter referred to as 'the Act'). By a well reasoned and detailed judgment running into 68 pages, the High Court of Madras held that the provisions are not ultra vires. The matter did not end there. We find from the papers supplied by the learned counsel for the Election Commission of India that the matter was carried before the Apex Court by filing Special Leave Petition (C) Nos. 2824-2825/2001 titled All India Anna Dravida Munnetra Kazhagam v. Chief Election Commissioner and Anr.. On 23.4.2001 the Apex Court dismissed the Special Leave Petitions by passing the following order:-
"Permission to file S.L.P. is granted.
We have heard the learned counsel for the petitioner. We do not understand the impugned judgment to mean that the law declared in A.C. Jose v. Sivan Pillai and Ors. 1983(3) SCR 74, is incorrect. The observations made in the impugned judgment are clear. Articles 326 and 327 cannot be so interpreted as to enable the taking away the jurisdiction or to abridge the powers of the Election Commission under Article 324.
A.C. Jose's case does not apply to the facts of the present case for the simple reason that in A.C. Jose's case, it was by an Executive order that Electronic Voting Machines were sought to be used which was not permissible being contrary to the Rules. Now that Section 61A has been inserted in the Representation of People Act, 1951 in 1989, the aforesaid decision cannot be of any assistance to the petitioner.
While considering the validity of the said Section we are in agreement with the decision of the High Court that the said Section is valid. The Special Leave Petitions are dismissed."
3. It is required to be noted that the decision of the High Court of Judicature at Madras as well as the decision of the Apex Court were not brought to our notice by the petitioner and the petitioner states that he was not aware of those decisions as the same were not reported nor was he a party in those proceedings and therefore, he was not aware of them.
4. When a public interest litigation is filed by a person, obviously, he being not interested in the matter, but claiming to be interested to protect the interest of public at large, a duty is cast upon the petitioner. It is not simplicitor to file a petition, but one has to investigate and has to point out all the pros and cons of the matter. The petitioner, particularly, being a lawyer, ought to have investigated the matter to find out whether any High Court had an occasion to examine the issue or whether the Supreme Court had an occasion to examine the issue raised herein. The High Court judgment is also reported in Scale. However, it is stated by the petitioner that he came to know about those decisions only after the same were produced before this Court by the learned counsel for the Election Commission of India. It is in this background the Court has to examine this public interest litigation.
5. The notification dated 1.4.2004,issued by the Election Commission of India and published by the Government of India in the Gazette of India Extraordinary, reads as under:-
"O.N.60(E),-- In exercise of the powers conferred by Section 61A of the Representation of People Act, 1951, the Election Commission of India hereby specifies each of the 543 Parliamentary Constituencies at the current General Election to the House of the People, 2004, as per the election schedule announced by the Commission on 29th February,2004, as the constituencies in which votes shall be given and recorded by means of Electronic Voting Machines in the prescribed manner."
6. A perusal of the notification makes it clear that it was issued for the elections which were held in 2004, as per the election schedule announced by the Election Commission of India. It is during those elections electronic voting machines were used as indicated in the notification. Elections were held and elected Members of Parliament completed one year and it is thereafter that we have to decide this petition. It was contended that Section 61A of the Act refers to such constituency and each constituency is required to be notified. Section 61A of the Act refers to 'constituency' or 'constituencies' as the Election Commission may having regard to the circumstances of each case specify. Relying on the language of the Section, the petitioner contended that the Election Commission is required to notify the reasons for the use of electronic voting machines for each constituency.
7. In view of the fact that the notification is acted upon and the results have been declared much earlier and the notification refers to all the constituencies, we see no reason to entertain this public interest litigation, especially in view of the decision of the High Court of Madras which is affirmed by the Apex Court.
8. In view of the aforesaid order made by the Apex Court, wherein the decision of the High Court of Madras has been upheld, specifically agreeing with the decision of the High Court that the said Section is valid, it is not open to this Court to examine that aspect again, and that too, in a public interest litigation. In view of this, we are not inclined to entertain this petition. Petitioner in person submits that all his submissions in respect of vires of Section should be considered by this Court. It is not necessary to consider all the submissions made by the petitioner.
9. In view of the discussion hereinabove, we decline to entertain the petition. Hence, the writ petition is dismissed.
10. The petitioner submitted that he should be given a certificate under Article 134A of the Constitution of India. We are of the opinion that no such certificate is required to be issued by this Court in the present case.