Andhra HC (Pre-Telangana)
S. Fakruddin And Others Etc. vs The Govt. Of A. P. And Others Etc. on 26 June, 1995
Equivalent citations: AIR1996AP37, 1995(2)ALT439, AIR 1996 ANDHRA PRADESH 37, (1995) 2 ANDH LT 439, (1995) 2 LS 261, (1995) 2 ANDHWR 1
ORDER
P.S. Mishra, C. J.
1. These peitions under Article 226 of the Constitution of India have travelled through a hearing for admission before a learned single Judge, before a Division Bench, before a Full Bench and the Larger Bench of ours with the speed the Court could manage to generate keeping in view the nature of the cases and the urgency for their disposal the sooner the possible. The Division Bench which heard these petitions for admission noticed the contentions of the learned counsel for the petitioner in Writ Petition No. 11106 of 1995 and that of the learned Government Pleader and also the fact that a batch of writ petitions having a common contention are pending'hearing before a Full Bench. The order dated 13-6-1995 directing the Registry of the Court to place the papers before the Chief Justice for appropriate orders as to posting reads as follows:--
"Mr. M. V. Ramana Reddy, learned counsel for the petitioner, is challenging the method by which Kanekal Gram Panchayat was reserved in favour of Backward Classes by drawal of lots in accordance with what is adumbrated in Rule 8 (iii) of the Andhra Pradesh Panchayat Raj (Reservation of seats of Ward Members and Offices of Sarpanches of Gram Panchayats) Rules, 1995, issued in G.O. Ms. No. 285, Panchayat Raj Rural Development and Relief (Elec. III) Department, dated 20-5-1995.
The learned Government Pleader contends that the validity of the aforesaid Rule cannot be gone into by this Court in exercise of its power under Article 206 of the Constitution of India, in view of the embargo contained in Article 243-O(b) of the Constitution of India, which reads:
"243-0. Bar to interference by courts in electoral matters: Notwithstanding anything in this Constitution,--
(a).....
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
The learned Government Pleader also brought to our notice that notification regarding elections was already issued on 7-6-1995.
If the learned Government Pleader's argument is to be accepted, it is contended by Mr. M. V. Ramana Reddy, learned counsel for the petitioner, it will amount to permitting unconstitutional laws to remain in operation on the basis of which elections can be conducted.
It is brought to our notice that a Full Bench of this Court, presided over by Justice Lingaraja Rath, is hearing a batch of Writ Petitions in which one of the contentions raised relates to the constitutionality of Article 243-O(b). Since that Full Bench is not meeting as the hearing was adjourned and as the elections will take place from 24th of this month Mr. M. V. Ramana Reddy, learned counsel for the petitioner, says that he will make a special mention before the Hon'ble the Chief Justice about the difficulty he is facing.
In the circumstances, the Registry may place the papers before the Hon'ble the Chief Justice for appropriate orders as to posting."
The other cases found their way to the reference for hearing by a larger Bench, viz., for the reason of common contentions raised without enlarging the scope of the hearing of the cases so as to admit any controversy of facts and as involving the extent of the validity of the laws operating in the field and their effect upon the ensuing elections. Since the proceedings before the learned single Judge and the Constitution of the Full Bench followed by the Special Bench which has finally heard the instant petitions about 900 and odd writ petitions have been filed which hoever around the contentions in the instant petitions. In the course of the hearing for admission the issues were enlarged or limited depending upon the facts and law in issue and it was decided that the cases should be heard on issues of law without entering into controversies of facts and thus avoiding any occasion for delays and without any need for the respondents to file their returns to the allegations in the petitions. The Court decided to add the Union of India as a party respondent and ordered accordingly. The State Election Commissioner volunteered appearance and has been added as a party-respondent. The writ petitions have accordingly been heard.
2. The Constitution (Seventy-third Amendment) Act, 1992, has introduced in Part IX thereof for the Constitution of Panchayats and in Part IX A thereof for the Constitution of Municipalities. The level of the village is taken as an unit and the body consisting of persons registered in the electoral roll relating to a village comprised within the area of Panchayat at the village level is defined as Gram Sabha (Article 243(b)). It is left to the Legislature of a State to provide by law powers and functions to be exercised by the Gram Sabha (Article 243A). Panchayat is defined to mean an institution, by whatever name called, for self-government constituted under Article 243-B, which reads as follows :--
"243B. Constitution of Panchayats.-- (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constitued in a State having a population not exceeding twenty lakhs."
Panchayat area is defined to mean the territorial area of a Panchayat, the population means the population as ascertained at the last preceding census of which the relevant figures have been published and the village as a village specified by the Governor by public notification to be a village including group of villages so specified. Intermediate level is defined under Article 243(c) to mean a level between the village and district levels specified by the Governor of a State by public notification. Article 243C of the Constitution provides for the provisions with respect to the composition of Panchayats and for filling the seats in Panchayats by persons chosen by direct election from territorial constituencies in the Panchayat area and for the said purpose for division into territorial constituencies of the Panchayat area in such manner that the ratio between the population of each constituency, so far as practicable, be the same throughout the Panchayat area. It provides for a Chairperson of the Panchayat at the village level to be elected in such manner as the Legislature of a State may by law provide and at the intermediate level or district level to be elected by and from amongst the elected members of the Panchayat. Provisions as to the duration of Panchayat etc., disqualifications for membership, power, authority and responsibility of the Panchayats, power to impose taxes by and funds of the Panchayats, constitution of finance commission to review the financial position of the Panchayats and to make recommendations in this behalf, audit of accounts of Panchayats, application of the provisions of Part IX of this Part (Part IX of the Constitution) to the Union Territories, continuance of existing laws on Panchayats are provided under Articles 243E, 243F, 243G, 243H, 2431, 243J, 243L and 243N of this Part of the Constitution.
3. Three provisions, however, stand out, viz., Article 243D which provides for reservation of seats, Article 243K which provides for elections to the Panchayats and 243-O which bars interference by courts in electoral matters. The first i.e., 243D speaks of reservation of seats for (a) Scheduled Castes and (b) Scheduled Tribes in every Panchayat and the number of seats so reserved to bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. Clause (2) of this provision says, "not less than 1/3rd of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be the Scheduled Tribes." Clause (3) says, "not less than 1/3rd in-
cluding the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats shall be reserved by rotation to different constituencies in a Panchayat." Clauses (4) and (5) together provide for the office of the Chairpersons in the Panchayats at the village or any other level to be reserved for the Scheduled Castes, Scheduled Tribes and Women in such manner as the Legislature of a State by law provide/provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the state: Provided further, that not less than 1/3rd of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women and that the number of offices reserved shall be allotted by rotation to different Panchayats at each level. Clause (6) of this article provides: "Nothing in this part shall prevent the legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens." Article 243K provides (1) the superintendence, direction and control.of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor; (2) subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the Slate Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage of after his appointment; (3) the Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by law; and (4) subject to the provisions of the Constitution the Legislature of a State may by law made provision with respeci to all matters relating to, or in connection with, elections to the Panchayats. The third i.e., Article 243-O provides: "Notwithstanding anything in this Constitution-- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any Court; and. (b), no election to any Pan-chayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
4. The Constitution thus has specifically provided for reservation of seats for the Scheduled Castes and the Scheduled Tribes and for reservation for women in different constituencies in a Panchayat as well as for the offices of the Chairpersons in the Panchayats at the village or any other level and laid down that the number of seats reserved for them shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the Panchayat as the population of Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and also that such seats may be allotted by rotation to different constituencies in a Panchayat. The State Legislature is permitted to provide for the reservation of the Chairpersons in the Panchayats at the village of any other level for the Scheduled Castes, the Scheduled Tribes and Women with the rider that (1) the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State; (2) that not less than 1 / 3rd of the total number of offices of the Chairpersons in the Panchayats at each level shall be reserved for women and (3) that the number of offices reserved for them i.e., Scheduled Castes, Scheduled Tribes and Women, shall be allotted by rotation to different Panchayats at each level. The option to reserve seats in any Panchayat or offices of the Chairpersons in the Panchayats at any level in favour of backward class of citizens is left with the Legislature of a State.
5. The scope of Article 243-O is limited to (1) any law relating to the delimitation of constituencies; (2) any law relating to the allotment of seats to such constituencies made or purporting to be made under Article 243K and (3) as respects election to any Panchayat for which the authority and the manner in which the election shall be called in question is provided for by or under any law made by the Legislature of a State. The delimitation of constituencies are referable to Article 243C under which the Legislature of a State is declared competent to make provisions by law with respect to the composition of Panchayats which also declares that all the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area and for the representation of Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level, of the members of the House of the People and the members of the Legislative Assembly of a State representing constituencies which comprise wholly or partly, a Panchayat area at a level other than the village level and of the members of the Council of States and the members of the Legislative Counct of the State where they are registered as electors within (1) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; and (2) a Panchayat area at the district level in Panchayat at the district level, This also provides for the election of the Chairperson of a Panchayat at the village level in such manner as the Legislature of a State may by law provide and for the Panchayat at the intermediate level or district level, from amongst the elected members thereof. Reference to Art. 243K makes it clear that superintendence, direction and control of the preparation of electoral roll for and the conduct of all elections to the Panchayats is vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
6. Although clause (2) of Article 243C carries the language that each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area, it is obviously not intended to go beyond the determination of the number of seats to each Panchayat area i.e., the territorial area of a Panchayat. The expression "the allotment of seats to such constituencies made for purporting to be made under Article 243K" in clause (a) of Article 243-0 must mean allotments with reference to the reservations under 243D for Scheduled Castes and Scheduled Tribes and women and for backward class of citizens, if it is so provided under a law made by the Legislature of a State. If any other meaning is given to the words "the allotment of seats to such constituencies" in Article 243-O (a) of the Constitution, the words "made or purporting to be made under Article 243K" shall be rendered superfluous.
7. In furtherance of the object of the Constitution of India for constituting Panchayats in every State at the village, intermediate and district levels, the State Legislature has come forward with the Andhfa Pradesh Panchayat Raj Act 13 of 1994 as amended by Act 5 of 1995, and under Sec-
tion 2(2) thereof 'Backward Classes' means any socially and educationally Backward Classes of citizens recognised by the Government for the purpose of clause (4) of Article 15 of the Constitution of India. This has been done because the State Legislature has made provisions by a law for reservation of seats in each Panchayat and offices of Chairpersons in the Panchayats. Besides, the State Election Commissioner, the constitutional authority, is made responsible by clause (1) of Article 243K of the Constitution of India for the preparaton of electoral rolls, for and the conduct of, all elections to the Panchayats. The Commissioner (an authority different from the State Election Commissioner) is an officer, authorised by the Government to exercise any of the powers or discharge any of the duties assigned to him under the Act (Section 2(8)). For purposes specifically assigned to them or to be assigned under the Rules framed under the Act, the Act has contemplated the Executive Authority to mean, in the case of a Gram Panchayat or a group of Gram Panchayats having an Executive Officer, the Executive Officer, and if there is no Executive Officer the Sarpanch of the Gram Panchayat (Section 2( 12)). The Constitution of Gram Panchayats is contemplated under Section 4 of the Act which says, "... the Special Officer appointed under sub-section (1) of Section 143 shall make arrangements for the election of the members and of the Sarpanch of the Gram Panchayats as provided in that Section." Section 143 recognises, however, the existence of a village having a local area and creating for the first time a village under Section 3 of the Act by a notification and has contemplated the appointment of a Special Officer, by the Commissioner to exercise the powers and perform the functions of the Gram Panchayat and its Sarpanch and Executive authority until the members and Sarpanch thereof are duly elected and assume office, and also enjoin that the Special Officer shall cause arrangements for the election of the members of the Gram Panchayat to be made before such date as may be fixed by the Commissioner in the State. Sub-section (2) of Section 143, however, has a proviso, which reads as fol-
lows:--
"Provided that the Commissioner may, from time to time, postpone the date so fixed, if for any reason, the elections cannot be completed before such date."
8. A serious question may arise whether the Commissioner who is an authority appointed under the Act can have any independent authority to fix or postpone the date of election when the superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to the Panchayats is vested in the Stale Election Commission consisting of the State Election Commissioner, as contemplated under clause (1) of Article 243K of the Constitution of India. Section 7 provides lor the total strength of a Gram Panchayat and says that the Gram Panchayat shall consist of such number of elected members inclusive of its Sarpanch as may be notified from time to time by the Commissioner in accordance with the table thereunder. Tested with reference to the corresponding provisions in the Constitution since Article 243C has left the composition of Panchayats to be done by law made by the Legislature of a State, the Commissioner authorised under the Act may be competent to notify the strength of the Gram Panchayat with reference to the number of seats as shown in the table. It will not be wrong to do so as the number of members allotted to each Panchayat is based on the last census (table in Section 7 of the Act says). The Legislature has, however, chosen to use the expression "Ward" and while prescribing for election of members has said that all members of the Gram Panchayat shall be elected by the registered voters in the Ward by the method of secret ballot and in accordance with such rules as may be made in that behalf. The expression "Ward" has not been defined under the Act, but it is not difficult to identify the expression "Ward" with the territorial constituencies in the Panchayat area meaning the territorial area of a Panchayat as contemplated under Article 243C of the Constitution of India and to read in place of the word "Ward" in the Act, the expression "territorial constituencies". Section 9 of the Act provides for reservation of seats of members of Gram Panchayat and prescribes that out of the total strenth of elected members determined under Section 7 i.e., on the strength of population of each Panchayat, the Commissioner shall, prescribe, by a notification reservation for Scheduled Castes and Scheduled Tribes and Women and carries an amendment by Act 5 of 1995, which is as follows:--
"9(1-A) In addition to the reservation of seats under sub-section (1), there shall be reserved for the Backward Classes such a number of seats as may be allocated to them in each Gram Panchayat in the manner prescribed; so however that the number of offices of members of Gram Panchayats in the State reserved for Backward Classes shall not be less than thirty-four per cent of the total number of offices of the members of Gram Panchayats in the State. The number of seats allocated to each Gram Panchayat shall be allotted by rotation to different wards in the Gram Panchayat:
Provided that it shall be competent for the Government to make special provision with regard to the manner and quantum of seats to be reserved for Backward Classes in the Gram Panchayats situated in the Scheduled areas, by rules made in this behalf."
There is a corresponding amendment accordingly envisaging that for the backward classes also not less than 1 / 3rd of the total number of seats shall be reserved and that women and members of the Scheduled Castes, Scheduled Tribes or Backward Classes shall not be prevented from standing for election to the known reserved seals in the Gram Panchayats. The villages as specified by public notification are divided into as many wards as there are seats determined under Section 7 on a territorial basis, subject to such rules as may be prescribed and Section 10 of the Act which makes the prescription in this behalf has reiterated the caution which is found in the proviso to Article 243C of the Constitution of India.
9. Two provisions of the Act which are most relevant and on which learned counsel of the parties have addressed us, however, are Sections 11 and 12 of the Act. The provisions speak of the preparation and publication of electoral roll for a Gram Pan-chayat and rearrangement and republication of electoral rolls and take notice of the presence of the State Election Commissioner for purposes envisaged under clause (1) of Article 243K of the Constitution. The draft of the electoral roll for Gram Panchayat, Section 11(1) provides, is prepared by the person authorised by the State Election Commissioner in such manner by reference to such qualifying date as may be prescribed. It further says, "...... the electoral roll for the Gram Panchayat shall come into force immediately upon its final publication in accordance with the rules made by the Government in this behalf." It mandates, "the draft of the electoral roll for the Gram Panchayat shall consist of such part of the electoral roll for the Assembly Constituency published under the Representation of the People Act, 1950 (Central Act 43 of 50) as revised ov amended under the said Act, up to the qualifying date, as related to the village or any portion thereof. Explanation thereto reads, "Where in the case of any Assembly Constituency there is no distinct part of the electoral roll relating to the village, all persons whose names are entered in such roll under the registration area comprising the village and whose addresses as entered are situated in the village shall be entitled to be included in the electoral roll for the Gram Panchayat prepared for the purposes of this Act". Sub-section (2) of Section 11 provides that the electoral roll for a Gram Panchayat shall, unless otherwise directed by the Government for reasons to be recorded in writing be revised in the prescribed manner by reference to the qualifying date-- (1) before each ordinary election; (2) before each casual election to fill a casual vacancy in the office of the Sarpanch and members of a Gram Panchayat; and shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Government; provided, that if the electoral roll is not revised as aforesaid, the validity, or continued operation of the said electoral roll, shall not thereby be affected. The scheme under these provisions under Section 11 of the Act thus is that a person authorised by the State Election Commissioner shall prepare the draft of the electoral roll for Gram Panchayat by reference to qualifying date in such manner as may be prescribed, the draft of the electoral roll for the Gram Panchayat shall consist of such part of the electoral roll for the Assembly Constituency as revised or amended under the Representation of the People Act, 1950 up to the qualifying date as related to the village or any portion thereof and where in the case of any Assembly Constituency there is no distinct part of the electoral roll relating to the village all persons whose names are entered in such roll under the registration area comprising their village and whose address as entered are situated in the village shall be entitled to be included in the electoral roll in the Gram Panchayat prepared for purposes of the Act. The Government has discretion, for reasons to be recorded in writing, to stop the revision of the electoral roll in the prescribed manner by reference to the qualifying date, but otherwise the electoral roll shall be revised before each ordinary election and before each casual election to fill a casual vacancy in the office of the Sarpanch and members of a Gram Pan-chayat. The electoral roll shall be revised in any year in the prescribed manner by reference to the qualifying date, if so direced by the Government. In case, however, the electoral roll is not revised in any year the validity or continued operation of the electoral roll shall not thereby be affected. Section 11(1) prescribes; ".....the electoral roll for the Gram Panchayat shall come into force immediately upon its publication in accordance with the rules made by the Government in this behalf". Sub-section (3) of Section 11 says "the final electoral roll published under sub-section (1) shall be the electoral roll for the Gram Panchayat and it shall remain in force till a fresh electoral roll for Gram Panchayat is published under this Section". Sub-section (4), however, says, "the electoral roll for the Gram Panchayat shall be divided into as many parts as there are wards so that each part consists of the voters residing in the concerned ward and for this purpose the electoral roll may be rearranged if such rearrangement is found necessary."
10. What follows thus is that the draft of the electoral roll for the Gram Panchayat shall be prepared by the person authorised by the Election Commissioner by reference to the qualifying date in such manner as may be prescribed and it shall be finally published in accordance with the rules made by the Government in this behalf. The electoral roll shall then be divided into as many parts as there are wards i.e., territorial constituencies in the Panchayat area, so that each part consists of the voters residing in the concerned ward or territorial constituency and for this purpose the electoral roll may be rearranged if such rearrangement is found necessary. The Act has clearly demarcated the area of the function of the Commissioner under the Act who is empowered to notify from time to time the number of elected members inclusive of its Sarpanch for a Gram Panchayat and subject to such rules as may be prescribed to divide the village into as many wards or territorial constituencies as there are seats in such a manner that all wards shall have, as far as practicable, equal number of voters and he shall allot not more than one seat for each ward i.e., allotment of one seat to each ward. He shall divide wards in such a manner as far as practicable, that each ward shall have equal number of voters and voters in each ward shall have one member. The person authorised by the Election Commissioner shall prepare the draft of the electoral roll and revise it up to the qualifying date. The final publication of the electoral roll, however, shall be in accordance with the rules made by the Government in this behalf. The answer to the question, who shall divide the electoral roll for the Gram Panchayat into as many parts as there are wards or territorial constituencies and shall rearrange the electoral roll for each ward or territorial constituency is provided by a specific provision in this behalf in Section 12 of the Act. This section provides where after the electoral roll for the Gram Panchayat has been published under subsection (1) of Section 11; and (1) the village is divided into wards for the first time (2) or the division of the village into ward is altered or (3) or the limjts of the village are varied, the person authorised by the Stale Election Commissioner in this behalf shall (1) in order to give effect to the division of the village into wards; (2) or to the alteration of the wards and (3) or to the variation of the limits, as the case may be, effect rearrangement and republica-tion of the electoral roll for the Gram Panchayat or any part of such roll in such manner as the State Election Commissioner may direct. Rearrangement of the electoral roll for purposes of sub-section (4) of Section 11 is to bring the electoral roll to conform to the need of Section 10 of the Act so that not more than one seat for each ward is available in the case of the division of the Panchayat into territorial constituencies. The person authorised by the State Election Commissioner alone is competent and the State Election Commissioner alone is entitled to issue necessary directions in this behalf. A role for an authority called Election Authority appointed by the State Election Commissioner by notification under Section 2 (11) of the Act is envisaged for the first time in Section 13 of the Act which speaks of term of office of members, and provides that save as otherwise provided in the Act the term of office of members elected at ordinary elections shall be five years from the date appointed by the Commissioner for the first meeting of the Gram Panchayat after the ordinary elections. Sub-section (2) of Section 13 says ordinary vacancies in the office of elected members shall be filled at ordinary elections which shall be fixed by the Election Authority to take place on such day or days within three months before the occurrence of the vacancies as he thinks fit, provided that the State Election Commissioner may, for sufficient reasons to be recorded in writing, direct from time to time the postponement or alteration of the date of an ordinary election or any stage thereof within the priod of three months aforesaid and the Election Authority shall give effect to such direction. The law thus gives to the Election Authority appointed by the State Election Commissioner the function to fix day or days of ordinary elections within three months before the occurrence of the vacancies and in case any postponement is needed, the State Election Commissioner for sufficient reasons to be recorded in writing direct the postponement or alteration of the date of the ordinary election or any stage thereof within the period of three months. This provision enjoins the Election Authority to give effect to the directions of the State Election Commissioner.
11. Part V of the Act contains a provision under Section 200 about the Constitution of the State Election Commission and appointment of a person who is holding or who has held an office not less in rank than that of a Principal Secretary to Government as the State Election Commissioner. Section 201 thereof speaks of the powers and functions of the State Election Commissioner. Its 5 subsections state, inter alia, (1) all elections to the Panchayat Raj institutions shall be held under the supervision and control of the State Election Commission and for this purpose it shall have power to give such directions as it may deem necessary to the Commissioner under the Act, to the District Collector or any Officer or Servant of the Government and the Panchayat Raj institutions so as to ensure efficient conduct of the elections under the Act; (2) the preparation of electoral roll for the conduct of all elections under the Act shall be done under the supervision and control of the State Election Commission; (3) for the above purposes the Government shall provide the State Election Commission with such staff as may be necessary; (4) on the request of the State Election Commission the State Government shall place at its disposal such staff of the State Government, Gram Panchayats Mandal Parishads and Zilla Parishads for purpose of conduct of elections under the Act and the State Election Commissioner may, subject to control and revision, delegate his powers to such officers as he may deem necessary. This part of the Act contains Section 202A for Reservation to Backward Classes and states; for the purpose of reserving the offices of Sarpanch, President and Chairman and members of the Gram Panchayats, Mandal Parishad and Zilla Parishads to the members belonging to the Backward Classes under this Act, the population figures of the Backward Classes, gathered in the Socio-Economic Survey conducted by the Andhra Pradesh Backward Clases Co-operative Finance Corporation Limited, Hyderabad, shall be taken as the basis."
We have seen that the Legislature of the State is competent to make law with respect to the composition of Panchayats and a sort of delimitation of the territorial constituencies is contemplated under Article 243C of the Constitution of India. The State Legislature's competence to make laws with respect to matters relating to or in connection with election to the Panchayats is subject to the provisions of the Constitution, as stipulated under clause (4) of Article 243K of the Constitution which obviously means in addition to what has been preserved for it under Art. 243C and not extending to the matters which are left to the exclusive control of the State Election Commission under clause (1) of Article 243K. The provisions of the Act which we have seen so far speak clearly the area which is preserved for the State Election Commissioner, except the power of the Commissioner under the Act (not the State Election Commissioner), to postpone the date of the election, if for any reason the election cannot be completed before the date fixed by him under Section 143 of the Act. Preparation and publication of the electoral roll for Gram Panchayat, division of the electoral roll for the Gram Panchayat into as many parts as there are wards or territorial constituencies and the rearrangement and republication of electoral rolls and conduct of the elections are exclusive to the State Election Commissioner and to the Election Authority appointed by him.
12. The Governor of Andhra Pradesh appointed the State Election Commissioner as contemplated under clause (1) of Article 243K of the Constitution read with subsection (1) of Section 200 of Act 13 of 1994 to, constitute; the State Election Commission vide G.O. Ms No. 361, Panchayat Raj, Rural Development and Relief (Elec. 1) Department, dated 18-6-1994. The Governor appointed the Commissioner, Panchayat Raj to exercise any of the powers or discharge any of the duties of the Commissioner under the Act. The Governor notified Rules relating to conduct of elections of Members and Sar-panch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishad under G.O. Ms. No. 755, Panchayat Raj, Rural Development and Relief (MDL-1) Department, dated 30-11-1994 and amended the same from time to time. Rule 3 of this notification recognises the State Election Commissioner as the Election Authority for the purposes of conduct of elections under the Act and reiterate : "The superintendence, direction, control and conduct of election of Sarpanch and Members of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads in the State, in ordinary vacancies and casual vacancies shall be his responsibility." This Rule however declares, "the Secretary State Election Commission shall be the Deputy Election Authority for purpose of conduct of elections under the Act. the functions of the Election Authority under these rules may also be performed, unless specifically otherwise provided, by the Deputy Elecfion Authority". The Rule has introduced in addition to the State Election Commissioner, the Secretary, State Election Commission as an authority to exercise the powers of the State Election Commissioner and created the Deputy Election Authority and given him powers of the Election Authority unless specifically otherwise provided. The District Collector is introduced as the District Election Authority who also can perform the functions of the Election Authority, unless specifically otherwise provided. The Rules introduce a hierarchy of election authorities and leave to their discretion the power to appoint one or more persons as Election Officer, Assistant Election Officer and other Officers to conduct the elections. The Government has notified a set of Rules for preparation and publication of electoral roll for a Gram Panchayat in G.O. Ms. No. 879, Panchayat Raj, Rural Development and Relief (Elec. 1) Department, dated 3-12-1994 and amended the same from time to time. In these Rules, apart from providing for the publication of the electoral roll as revised or amended up to the qualifying date, the Government has notified in Rule 3, "In cases where the village is divided into wards the first time or where the existing division of the village into wards is altered or where the limits of the village are varied, the District Panchayat Officer shall in order to give effect to the division of the village into wards or to the alteration of the wards or to the variation of the limits, as the case may be, rearrange the electoral roll for the Gram Panchayat or any part of such roll and publish the same as rearranged in the places mentioned in Rule 1".
13. There can be no difficulty in acknowledging the authority of the District Panchayat Officer to publish the electoral roll, but it is difficult to appreciate why and in exercise of which power either under the Constitution or under the Act 13 of 1994 the Government empowered the District Panchayat Officer to rearrange the electoral roll in the Gram Panchayat or any part of such roll. Special provisions in Sections 11 and 12 of the Act for preparation and publication of electoral roll recognise the power of the State Election Commissioner to authorise a person to prepare the draft of the electoral roll for Gram Panchayat by reference to the qualifying date. It is only the manner of the preparation of the electoral roll which the rules can prescribe. The manner of preparing and publishing the electoral roll is fully enacted in sub-section (2) of Section 11 of the Act. Rearrangement and republication of electoral rolls is even for the purpose of sub-section (4) of Section 11 and as provided under Section 12 of the Act is required to be done by the person authorised by the State Election Commissioner. Rule 3A however has been introduced by G.O. Ms. No. 72, dated 4-2-1995 which says as follows:
"The Electoral Registration Officer (Mandal Revenue Officer) in respect of a Gram Panchayat under his jurisdiction may allow an application for inclusion of a name in the Electoral Roll of the Gram Panchayat if he is satisfied that the applicant had a genuine claim for such inclusion, before the date, the issue of a notification by the State Election Commissioner under Rule 4 (2) of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994 for an election in that Gram Panchayat or in the Mandal Parishad or in the Zilla Parishad concerned."
This Rule has introduced the Electoral Registration Officer (Mandal Revenue Officer) as a person who can entertain applications for inclusion of names in the electoral roll of the Gram Panchayat from persons whose names are not included in the electoral roll when it was revised and was finally published and even after final publication, rearranged as contemplated under Section 12 of the Act and before the notification by the State Election Commissioner under Rule 4(2) of the Conduct of Election Rules i.e., G.O. Ms.No. 755, Panchayat Raj, Rural Development and Relief (MDL-1), Department, dated 30-11-1994.
14. Before, however, we enter into the issues how far the Rules are consistent with the provisions of the Act and the Constitution and how the Election Commission and the State Government have acted in the impugned elections, we may deal briefly with a contention which has been coming before the Courts in India including the Supreme Court at regular intervals and has been making Courts to repeat things which appear to have been settled by the Supreme Court of India. A Full Bench of our Court in S. Harinath v. State of A. P., (1993) 2 Andh WR 484 has gone into the question whether the jurisdiction of the constitutional Courts i.e., the Supreme Court and the High Courts can be taken away by incorporation in the Constitution by amendment or otherwise by a law barring interference by the Courts in matters which fall in all respects for judicial review. Relying mainly upon the judgments of the Supreme Court, to which we shall refer a little later, learned Counsel for the petitioners have contended that Article 243-O in so far as it has put embargo upon a person aggrieved to question the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243K and in respect of elections to Panchayats except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legisla-
ture of a State, is unconstitutional and invalid. Learned counsel for the Union of India and learned counsel for the State Election Commission have, on the other hand, contended that the bar applies to the jurisdiction of this Court under Article 226 of the Constitution. While learned counsel for the petitioners emphasise upon the basic feature concept and the need of a judicial review of Legislative and Executive Acts, learned counset for the Union of India and State Election Commission rely upon the financial divisions of the constitutional authorities under the Constitution of India, namely, the Union and the State Legislatures, the Executives and the Courts and other constitutional functionaries and authorities and suggest that elections have been deliberately set apart and kept out of the purview of the Courts including the constitutional courts.
15. We propose to pick up first the 13 Judge Bench judgment of the Supreme Court which considered in the case of Keshava-nanda Bharati v. State of Kerala, AIR 1973 SC 146 the constitutionality of the 24th, 25th and 29th amendments to the Constitution, which is a milestone judgment of the Apex Court of the country and marks a water shade in the constitutional jurisprudence. By a majority of 7 against 6, the Court ruled that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. There was a 7 to 5 opinion, however, in favour of the view that there was no implied limitation on the powers of the Parliament to amend Article 368 of the Constitution and one learned Judge expressed the view that it was not necessary to consider the existence or otherwise of implied or inherent limitations. The majority opined however that the basic structure of the Constitution could not be altered by any constitution amendment. They held in unambiguous terms that one of the basic features is the existence of the constitutional system of judicial review. Mathew J., the learned Judge who fell on the side of the minority view and Baig. J., the learned Judge who was with him also agreed with the view that as an ordinary law derives its validity from its conformity with the Constitution, so also an amendment of the Constitution derives its validity from the Constitution and an amendment to the Constitution can be ultra vires as an ordinary law can be. They held that the validity of an amendment to the Constitution is limited to seeing that the form and the manner of the amendment is properly observed. One of us (M. N. Rao J.) who delivered the judgment of the Full Bench in S. Harinath v. State of A. p.. (1993 (2) Andh WR 484) (supra) has said :
"A study of the separate but concurring judgments of the majority in Keshvananda shows that there is no inconsistency or incongruity in their ratiocination. The underlying theme in the reasoning is the same, although we discern different shades in the articulation. Even in case where for different reasons several judges come to the same conclusions, the decision becomes a precedent and each of the judgments contains a ratio and all the ratios can, cumulatively or separately, be treated as precedents".
And after dealing with the question as to the legal consequence of plurality of judgments, he has concluded as follows:
"From a close examination of the views expressed by the majority in Keshvananda we get a clear picture that the power of parliament under Article 368 to amend the Constitution does not extend to abrogating the basic features of the Constitution. What are . integral to the Constitution cannot be destroyed by Parliament in exercise of its constituent 'power under Article 368. Even though the language employed in Article 368 is wide, the nature of the constituent power confided in Parliament is subject to the aforesaid limitations. It, therefore, follows that not being a sovereign body with unlimited powers, whatever powers are confided in it must be exercised within the specified limitations. What it can do in exercise of its constituent power, it cannot do in exercise of its legislative power. The power of judicial review is a basic feature of the Constitution and an integral part of our constitutional system. The independence of the constitutional Courts the Supreme Court and the High Courts -- is assured by the Constitution and the power of judicial review is vested in them."
We refer next to the judgment of the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain, . A Constitution Bench of five Judges went into the question of the validity of the Constitution (Thirty Ninth Amendment) Act, 1975. The question directly posed in the said judgment was whether judicial power must intervene in the interest of purity of elections and the Court adverted to almost all aspects of the matter and said that there was every justification to say that democracy is an essential feature of the Constitution; and pointed out that the basis of our Constitution is a well-planned legal order the presuppositions of which are accepted by the people as determining the methods by which the functions of the Government will be discharged and the power of the State shall be used. The consensus of the opinion is that judicial review is a basic feature except in respect of matters which are specifically excluded by the Constitution as originally enacted and that "Courts act as the real interpreters of the real will of the people .... they perform an essential judicial function." The third in line is the judgment of the Supreme Court in the case of Minerva Mills Ltd. v. Union of India, . Speaking as to the validity of Sections 4 and 55 of the Constitution 42nd Amendment Act, 1976, the majority opined that insertion of clauses (4) and (5) in Article 368 of the Constitution was void and unconstitutional since it was viola-tive of the basic structure of the Constitution and beyond the amending power of the Parliament. Bhagawati, J., who delivered the dissenting judgment and upheld the constitutionality of the above opined that the Court could examine whether there was connection between the impugned law and the directive principle and if the answer was that the connection was substantial, the law must be sustained. It is aptly stated and so we propose to take out the relevant passage from the judgment in S. Hari Nath (1993 (2) Andh WR 484) (FB) (supra)-
"Speaking for the majority, Chief Justice Chandrachud reiterating the ratio laid down in Keshavananda that limited amending power of Parliament is one of the basic features of the Constitution and that limited power cannot be enlarged into an absolute power, very pertinently observed:
'the power to destroy is not, a power to amend'. That it is the duty of the judges to pronounce upon the validity of laws under our Constitutional set up was highlighted by the majority: 'Our Constitution is founded on a nice balance of power among the three wings of the State viz., the Executive the Legislature and the Judiciary. It is the function of the Judges, nay their duty to pronounce upon the validity of laws. If Courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become un-controlled.' 16-17. The dissenting opinion of Bhag-wati J., in Minerva Mills is adverted to in Harinath (1993 (2) Andh WR 484) (FB) (supra) and the following is stated therein on the interpretation of the Constitution and the laws that the same "would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field ....... and the judiciary is vested with the power of judicial review to determine the legality of the executive action and the validity of the legislation passed by the legislature...... this power of judicial review is conferred on the judiciary by Arts. 32 and 226 of the Constitution", while stating that "The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality."
The learned Judge added a limitation:
"Of course, when I say this, I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament".
The learned Judge again, observed in the next sentence:
"But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic, structure of the Constitution."
This has however given rise to another line of judgments one in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 in P. Sambamurthy v. State of A.P. : (AIR 1987 SC 663). These judgments proceed on the footing that the basic features of the Constitution stand protected for Art. 32, the power of the Supreme Court, cannot be taken away and its power under Art. 136 can be a proper safeguard of judicial review of any adjudication by the alternative authority or forum, provided however it is an effective alternative institutional mechanism or arrangement of judicial review. This view in Sampath Kumar found a fuller expression in P. Sambamurthy (supra). This judgment also emphasises that it is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained, and every organ of the State is kept within the limits of the law and that "Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death knell of the of rule law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet to get away with it." We can conclude, without confining to the limits of the pronouncement in S. Harinath (1993 (2) Andh WR 484) (FB) (supra), that a Constitution amendment which tends to take away the Constitutional courts power, that is the power of the High Courts under Art. 226 of the Constitution shall be invalid. There can be no matter in the hands of the Legislature in its function as the law maker which will be kept out of the scrutiny of the Courts however limited that scrutiny be. Even the conserva-tive view that if there is an alternative effective. and efficient mechanism for judicial review which is as independent as the High Court, its power under Art. 226 of the Constitution will not be available, leaves scope for the Court to see whether the mechanism is such that the Court should refrain and not exercise its jurisdiction. We are inclined to extent this principle and hold as above as respects the matters which are sought to be excluded from the judicial review under Art. 243-O of the Constitution which has been brought in by the 73rd Amendment. We are conscious of the fact that this provision has similarities with what is provided under Art. 329 of the Constitution of India. After the words "but subject to the provisions of Art. 329-A" which had been introduced in Art. 329 i.e., the words figures and letters "but subject to the provisions of Art. 329A" have been omitted since some part of the amendment was held ultra vires in Indira Gandhi (supra). Art. 329 reads as follows:
"Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or puporting to be made under Art. 327 or Art. 328 shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Simultaneously with the Constitution of India which contained in Part XV the provisions as to superintendence, direction and control of elections to be vested in an election commission and the bar to interference by Courts in electroal matters, came the Representation of the People Act, 1950 followed soon by the Representation of the People Act, 1951. There was an attempt to amend Art. 329 itself by making it subject to the provisions of Art. 329A, but the controversy generated finally ended with the 44th amendment, dropping and omitting the amendment therein. The controversy as to the forum for challenge to the election to Lok Sabha which erupted on account of the 42nd amendment led to the verdict of the Supreme Court in Indira Gandhi v. Raj Narain (supra). A contemporaneous legislation for election to the legislative bodies gave reasons for contemplation that election laws under which law makers were elected to their respective houses should be left free of any state control (judiciary is a state) so that no one flirted with the basic features of the democracy and that the election commission alone should deal with all matters relating to the electoral rolls and elections. The earliest test whether the inhibitions under Art. 329 estopped the High Courts as well as the Supreme Court from going into the validity of elections in exercise of their respective constitutional powers is found in the judgment of the Supreme Court in the case of N. P. Ponnuswami v. Returning Officer, Namak-kal, . The judgment of the Court by Fazal Ali J., while dealing with Art. 329(b) of the Constitution considered the question what is meant by the words 'no election shall be called in question', and observed as follows (Para 8):
"A reference to any treatise on elections in England will show that an election processing in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in S. 100, Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of nomination paper."
Proceeding further to consider the question (para 9) "........ whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition."
Fazal Ali J., gave his opinion in these words (at p 68 of AIR):
"In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consisted in the fact that it can be used as a ground to call the election in question. Art. 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the iaw to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated one of them being that conflicting views may be expressed by the High Court ai the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."
Discussion about the scheme of Part XV of the Constitution and the Representation of the People Act, 1951 in the judgment provides the clue for the conclusions of the Court and the observations that follow i.e., where aright or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by the statute must be availed of. The Court has itself made the statement. "It should be mentioned here that the question as to what the powers of the High Court under Arts. 226 and 227 and of this Court under Art. 136 of the Constitution may be, is one that will have to be decided on proper occasion". This indicates that the Court proceeded on the footing that the ordinary jurisdiction of the Courts alone was excluded under Art. 329 and not the extraordinary jurisdiction of the High Courts under Art. 226 of the Constitution or that of the Supreme Court under Art. 136, The Courts apply the bar to their power when remedy is provided under the statute in respect of a right or liability created by it as a rule of prudence. They decline to exercise their extraordinary jurisdiction under Art. 226 of the Constitution as a self-imposed restriction.
18. The issue how and when extraordinary jurisdiction under Art. 226 should be exercised by the Courts has come for consideration in recent judgments of the apex court and its pronouncements on it are available to guide us. Patanjali Saslri, C.J., who presided the Bench which pronounced the judgment in B.P. Ponnuswami (supra) separately spoke about the duty of the constitutional Courts in The State of Madras v. V. G. Row, in the context of the challenge to the validity of Criminal Law Amendment Act (1908) (as amended in Madras by Madras Act 11 of 1950) in these words (at p. 199 of AIR):
"Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted 'due process' clause in the Fifth and Fourteenth Amendments. If, then, the Courts in this country face upto such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as to which this Court has been assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches great weight to the legislative judgments, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the Courts in the new set up are out to seek' clashes with the legislatures in the country."
Though in the minority judgment of the Supreme Court in the course of noticing the evolution of law in this behalf, the Supreme Court has adverted to the above passage and commented in the case of Kihota Hollohon v. Zachilhu, in these words (at pp 459-460 of AIR);
"More recently, Patanjali Shastri, C.J., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out is the State of Madras v. V.G. Row, that the duty of this flows from express provisions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to the 'due process' clause. Sastry C.J., af p 605 (of SCR).: (at p 199 of AIR), spoke thus: .....
We are in respectful agreement with the above statement of Sastry C.J., and wish to add that even though such an obvious statement may have been necessary, soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the present context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch atjurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises."
Majority view in Kihota's case as to the scope of the judicial review and in answer to the question whether the Constitution (52nd amendment) Act, 1985 insofar as it sought to introduce the 10th Schedule was destructive of the basic structure of the . Constitution as it was violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and the question whether under the Indian constitutional scheme, there is any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements is stated after an indepeth study in these words (at p45l'of AIR):
"In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review, under Arts. 136 and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity."
The Court said so on the face of the express language in paragraph 7 of the 10th Schedule of the Constitution introduced by the Constitution (52nd) Amendment Act, 1985 which provides "Bar of jurisdiction of Courts: Notwithstanding anything in this Constitution, no Court shall have any jurisdiction in repsect of any matter connected with the disqualification of a Member of a House under this Schedule".
19. We must record in fairness to the learned Advocate-General that he has expressed his agreement with the view that the provisions as to the exclusion of the jurisdic-tion of the Court introduced from time to time by the Constitution Amendments including Art. 243-O with which we are concerned bar the ordinary jurisdiction of the Courts and not the extraordinary jurisdction of the High Courts and the Supreme Court under Art. 226, 32 or 136 of the Constitution of India. Learned counsel for the Union of India has however drawn our attention to the judgment of the Supreme Court in S.T. Muthusami v. K. Natarajan, to emphasise and reiterated what has always been the refrain of those who support the bar to the jurisdiction of the Constitutional Courts that as in respect of matters falling under Art. 329 of the Constitution, so in respect of matters falling under Art. 243-O thereof the bar applies to the High Court's jurisdiction under Art. 226 of the Constitution. The pronouncement of the Supreme Court in the said case however is not based on any examination of the issue whether by the Constitution Amendment the Court's power under Art. 226 of the Constitution can be taken away. We have on the other hand a clear statement in the judgment of the Supreme Court in the case of Lakshmi Charan Sen v. A.K.M, Hassan Uzzaman, AIR 1985 SC 1233. "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". The Court however in this judgment observed "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 Art. 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 of the Courts the use of wise statements 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 Art. 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. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are part of the process of 'election' within the meaning of Art. 329(b) of the Constitution". Although in the interim order of the Court, the above observations give us the Court's thinking, in the final order in this behalf also as the Court reiterated the same in these words:
"The order dated March 30, 1982 which we will presently reproduce, contains our reasons in support of this conclusion. Very often, the exercise of jurisdiction, especially the writ jurisdiction involves questions of propriety rather than of power. The fact that the Court has the power to do a certain thing does not mean that it must exercise that power regardless of the consequences."
The preponderance of the judicial opinion and the view of the Supreme Court as expressed in various pronouncements leave no doubt in our mind notwithstanding the bar that the bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under Art. 226 of the Constitution and Art. 136 thereof. It is not necessary for us therefore to pronounce that Art. 243(O) is unconstitutional; simply it does not take away the power of this Court under Art. 226 of the Constitution to examine the validity of any law relating to the elections including the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Art. 243K. of the Constitution. As respect challenge to the election or any intermediary stage in case there is an alternative effective and independent mechanism provided, the Court shall abstain to interfere except on jurisdictional errors i.e., when infirmity is based on violation of constitutional mandate, mala fides, non-compliance with Rules of natural justice and perversity. It will be so for the the reason of prudence as well as defence to the legislation by the Parliament in exercise of its constituent power.
20. Adverting to the problems before us, we have good reasons to limit overselves to the issues that appear to impinge upon the independent mechanism and control of the election machinery by State Election Commission. Rules in G.O. Ms. No. 755 aforementioned have changed the nomenclature of the Slate Election Commissioner and divided his functions by creating additional autho-rites to share his powers -- such as the Secretary of the State Election Commission who is designated as the Deputy Election Authority and the District Collector who is designated as the District Election Authority. The Act has not contemplated any role for persons who are not authorised by the State Election Commissioner or who are not notified by him as the election authority under Section 2(11) of the Act in the preparation and publication of electoral roll for a Gram Panchayat under Section 11 of the Act and re-arrangement and re-publication of electoral roll under Section 12 in the three situations envisaged therein. Matters falling under Sections 11 and 12 cannot be entrusted to any person who is not authorised by the State Election Commissioner. Any provisions for conducting elections are required to conform to Section 13 of the Act and the election authority notified by the State Election Commissioner alone is competent to fix the elections subject to the directions of the State Election Commissioner. Rules in G.O.Ms. No. 755 dated 30-11-1994 not only create new authorities for such purposes but take away the discretion of the State Election Commissioner to notify the election authorities. Rules relating to preparation and publication of electoral roll for a Gram Panchayat in G.O. Ms. No. 879 dated 3-12-1994 have introduced the District Panchayat Officer and empowered him to re-arrange the electoral roll for the Gram Panchayat or any part of such roll and publish the same. Any person or authority other than a person authorised by the State Election Commissioner has no role in the preparation and publication of electoral roll and re-arrange as stipulated under Section 11(1), Section 11(4) and Section 12 of the Act. Even a person notified as the election authority under Section 2(11) cannot in the absence of authorisation as contemplated under Section 11(1) and 12 of the Act proceed to re-arrange the electoral roll.
21. It is clear from the scheme of the law that a person whose name is found in the electoral roll of the Assembly Constituency is an eligible voter. A person whose name is included in the revision as contemplated under sub-section (2) of Section 11 is also an eligible voter. The territoral constituency in which he can vote however depends upon the arrangement of the electoral roll and rearrangement. The authority in this behalf thus has to be found in the authorisation by the State Election Commissioner and not by the Government or by any other person under the Rules framed by the State Government. Exclusion or inclusion of the name of a voter in the electoral roll will have a bearing upon the electoral roll for the territorial constituency i.e., the ward under the Act. Such a function can be assigned only to a person authorised by the State Election Commissioner. By naming the District Panchayat Officer as the authority who can re-arrange the electoral roll for the Gram Panchayat or any part of such roll under Rule 3 in G.O.Ms. No. 879 dated 2-12-1994, the Government while exercising its subordinate legislative power have taken away the power of the State Election Commissioner in this behalf and have thus travelled beyond the rule making power. Rule 3, for the said reason, violates Sections 11 and 12 of the Act. They have entered into the domain of the State Election Commission and have assumed a jurisdiction which the law made by the State Legislature has not conferred on them. The theme of the power of the State Legislature to make laws for elections to Panchayats is fixed by Clause (4) of Art. 243(K) of the Constitution. Law making power of the State Legislature with respect to all matters relating to or in connection with elections to the Panchayats is limited by the jurisdiction of the State Election Commission under Clause (1) of Art. 243K of the Constitution. Rule 3 evidently has inherent infirmity of being in excess of the competence of the Government of the State. Rule 3A which is introduced by G.O.Ms. No. 72 dated 4-2-1995 is clearly ultra vires Section 11 of the Act. The Electoral Registation Officer can have no role in the preparation of the electoral roll of the Gram Panchayat and thus any power given to him under the Rules to include any names in the electoral roll of a particular territorial constituency or ward will be without jurisdiction. The person authorised by the State Election Commissioner who alone is competent to re-arrange the electoral roll of a territorial consistuency or ward as well as the State Election Commissioner are rendered incompetent by a rule which has contemplated an altogether independent mechanism for the inclusion of names in the electoral roll. This rule for the said reason and for the reason that it is the District Panchayat Officer who is asked under this Rule to make necessary entries in the electoral roll of the Gram Panchayat on receipt of the orders of the Electoral Registration Officer has to be declared ultra vires the Act and Art. 243K(1) of the Constitution.
22. The State Election Commission has functioned and it seems has done so from its office at M.G. Road, Secunderabad. It has issued notifications and made communications on the subject of the appointment of the elction authorities and for functioning under Section 11 of the Act. Copies of the notifications and some other communications of the State Election Commission are produced before us. Notifications did not bear any number. They are shown on the letter pad of the State Election Commissioner and are signed by the State Election Commissioner. One such notification dated 26-11-1994 issued on 26-11-1994 reads as follows:
"In exercise of the powers vested with the State Election Commissioner under sub-section (i) of Section 201 read with Section 232 of the A.P. Panchayat Raj Act, 1994, all the District Colleciors in the State except Hyderabad (Urban) district are hereby appointed as District Election Authorities as per sub-section (ii) of Section 2 of the said Act. They are also hereby authorised to appoint such authorities by notification as shown in the Annexure appended to this notification in their district, for conduct of the First Ordinary Elections to Panchayat Raj Institutions under Section 278 of the said Act."
If we correct the Roman (ii) to read as Arabic (11) and thus the relevant portion of the sentence to read, "all the District Collectors in the State except Hyderabad (Urban) district are ........ District Election Authorities as per sub-section (11) of Section 2 of the said Act," the Election Commissioner has gone by this notification with Rule 2(a) of the administra-
tive machinery for the conduct of elections under the Rules in G.O.Ms. No. 755 dated 30-11-1994. He has failed to exercise, it seems, altogether the powers which he was required to exercise and besides the delegation of his powers which rules thrust upon him, he has left the choice of the officers shown in the Annexure for being appointed by the District Collectors for conduct of the First Ordinary Elections. He has done so, it seems only in compliance of the Rule and not in exercise of any independent discretion. The other notification of the same date in the same format reads as follows:
"In exercise of the powers vested with the State Election Commissioner under subsection (i) of Section 201 read with Section 232 of the A.P. Panchayat Raj Act, 1994, all the District Panchayat Officers in the State are hereby authorised for preparation and publication of electoral rolls for Gram Panchayats as per the provisions contained in the Act under Section II and for rearrangement and republication of eletoral rolls of the Gram Panchayats as per the provisions contained in Act under Section 12, on behalf of the State Election Commissioner, as shown in the Schedule appended to this Notification, for the purpose of the First Ordinary Elections Gram Panchayat in their respective districts."
He has authorised the District Panchayat Officers for preparation and publication of electoral rolls for Gram Panchayats. The District Panchayat Officer is the person named in Rule 3 of the Rules in G.O.Ms. No. 879 dated 3-12-1994 as the Officer empowered to give effect to the division of the village into wards or to the alteration of the wards or to the variation of the limits, as the case may be, by re-arranging the electoral roll for the Gram Panchayat or any part of such roll and publish the same. In a letter dated 20-5-1994 to the Secretary to Government, Panchayat Raj, the State Election Commissioner has said that the Government have undertaken the re-organisation of the villages into viable units of administration and in the process some Gram Panchayats have been amalgamated and some have been bifurcated and in view of the amalgamation and bifurcation, new Gram Pnachyats have been created, this according to the letter, Government have undertaken on the suggestion of the State Elect ion Commission. The letter further says:
"The Commissioner of Panchayat Raj suggested that by invoking provisions of Section 12 of A.P. Panchayat Raj Act, 1994, the State Election Commission can issue order authorising re-arrangement and re-publication of electoral rolls in the those Gram Panchayats. The State Election Commission, after careful consideration of the suggestion of Commissioner of Panchayat Raj, feels that provisions of Section 12 do not contemplate of issuance of authorisation for re-arrangement and re-publication of the electoral rolls for the villages thus created. The procedure contemplated in G.O.Ms. No. 899 G.O.Ms. No. 930 has to be followed. These two G.Os. provide 10 days statutory period of limitation for filing of appeals and 5 days time for the Appellate Authority to dispose of the appeals."
The State Election Commissioner's perception of the law on the subject has given a sanction of the Rules framed by the State Government and destroyed altogether the independent machinery which the Act has envisaged for the preparation and publication of the electoral roll.
23. Learned counsel for the Election Commissioner as well as the learned Advocate-General have taken pains to explain to the Court why both i.e., the Government and the State Election Commission thought it necessary to introduce a provision in the Rules for inclusion of names of voters.
24. It is not difficult to see the wisdom in providing for a machinery for exclusion and inclusion of names from, the voters list prepared and published by reference to the qualifying the date and also rearranged and republished. All enumerations and prepra-tions of rolls can be accurate only to an extent. It is difficult to make an electoral roll which is complete in all respects. Representation of the People Act, 1950 has besides the revision of the electoral roll, provisions for the exclusion and inclusion of the names of voters. There is an authority to decide whether to exclude or include a name in the voters list and to hear objections, if any, for the Lok Sabha and State Assembly elections. Desire of the law making authorities as well as State Election Commissioner to have similar provisions for the ordinary elections of the Gram Panchayats can easily be termed as genuine and proper. Rule 3A. however is neither a complete provision for the said purpose nor in accordance with the provisions of the Act. It is not difficult to make proper provisions in accordance with the will of the Legislature of the State under Sections 11 and 12 of the Act to provide for exclusion and inclusion of names, hearing of objections and appeal without leaving any scope for arbitrariness. The Government and the State Election Commission have to go for such provisions directly in accordance with the provisions of the Act. Making of a law or issuing directions is an act of serious concern for the authorities endowed with such powers. It is different from a fiat and for a democracy there is no fiat in any authority. Acts of such authorities should not only be fair but appear to be fair. Whether such actions are fair or not is a matter always open to judicial review. It is difficult to sustain the vires of Rule 3A even on the ground of expediency.
25. The next vexing question for us to decide has emerged from the exercise of the . Government of the State of making provisions for reservation of seat in Panchayats and offices of Chairpersons in the Panchayats in favour of backward class of citizens. We have not been addressed and the petitioners before us have not provided us with any materials to go into the correctness or otherwise of the provisions for reservation of seats for backward class of citizens. What has been seriously contended is the method of implementation of the reservation for backward classes in the wards or territorial constituencies and that of the Chairpersons of the Panchayats by a method lottery or drawing of lots for allotment of the seats or reservation of seats for backward class condidates for elections. Lottery can hardly be a scientific method except in exceptional cases where no other method is likely to succeed. Objections in this behalf are on two grounds, It is urged on behalf of the petitioners that the Constitution has left no ambiguity for reservation of seats for Scheduled Castes and Scheduled Tribes, on the basis or the population of the Scheduled Caste or Scheduled Tribes, as the case may be, and allotment of the seats reserved for the Scheduled Castes and Scheduled Tribes by rotation to different constituencies in Panchayat, and similarly for the" reservation of the offices of the Chairperson in the. Panchayats at the village or any other level. The procedure to be followed in such a situation should be to take note of the concentration of the population of Scheduled Castes and Scheduled Tribes in a particular territorial constituency or the Panchayat and rotation should follow the descending order, so that the franchise of the largest group of the eligible voters is not wested or restricted unreasonably. It is pointed out, in support of this contention, that such a method has been resorted to and no problem is posed thus far in elections in any territorial constituency or the Panchayat on account of reservation of seats for the Scheduled Castes and Scheduled Tribes. System of lottery has given rise to the doubts about the intentions of the authorities who are conducting the elections and set in uncertainty in the procedure of allotement of seats for reserved category candidates. It is next contended that lottery may reserve a territorial constituency for a backward class candidate in which territorial constituency there is no eligible backward class voter who can offer himself as a candidate.
26. We see force in the above contentions. Learned Advocate-General has endeavoured, however, to persuade us to ignore the above on grounds of expediency as within the time schedule and the limitation created by some directives of the Central Government to the State Government. It was/ is not possible for the State Government to know exactly the village level population and accordingly to know ward-wise population of the backward classes. He has pointed out that for determining the percentage or reservation and introducing a law in this behalf the Government had/have the figure of the last census of the population of the backward classes which was made upto date by a method that Courts have approved, but they have no materials with them for noting the figures and number of backward class population in the villages and for the Panchayats. He has contended, when there is no infirmity in the reservation for the seats for the backward classes they should not be deprived of the benefit of the reservation only for the reason that the Government and the State Election Commissioner are handicapped in choosing the territorial constituency for allotment to the reserved category of backward classes.
27. Exercise of franchise of the citizens is the main stay of a democratic system. The Constitution of India had contemplated elections to the House of the People and the Legislative Assemblies of States to be on the basis of adult suffrage, that is to say, by the vote of every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice. The Constitution has retained adult suffrage for Panchayats and the Act has left no doubt about it by providing for the adaptation of the electoral roll of the Assembly Constituency. In Section 9 of the Act which provides for reservation of seats of members of Gram Panchayats and in which by an amendment by Andhara Pradesh Act No. 5 of 1995 subsection (1A) has been introduced, a reference is made to Section 7 for the purpose of fixing the number of seats for reserved categories. Sub-section (1A) of this Section has introduced the limit of reservation for the backward classes at 34% of the total number of offices of the members of Gram Panchayats in the State and provided that the number of seats allocated to each Gram Panchayat shall be allotted by rotation to different wards in the Gram Panchayats. Total strength of a Gram Panchayat is determinable on the basis of the population and the reservations for Schedule Castes and Scheduled Tribes as well as Backward Classes have to be and we are informed are based on the population of such classes of people in the State. If population is left from reckoning and a territorial constituency is reserved in which adults eligible to vote are not falling in any reserved catergory, there can be no election at all. Lottery might lead to such uncertainty and in any case it cannot work, except in a situation where representation in a ward or territorial constituency of different communities is almost matching. We are inclined for the said reasons to agree with the learned counsel for the petitioners and hold that lottery is not an appropriate system. Learned Advocate-General has drawn our attention to a judgment of the Madhya Pradesh High Court in Mukund Das v. State, AIR 1992 Madh Pra 177 wherein some wards appear to give the impression that a bench of the Madhya Pradesh Court accepted that lottery can be a proper method to allot to a reserved category a particular Ward or Panchayat. A closer examination, however, of the facts of the case and the law laid down by the Court shows that it approved of lottery in a situation where the population of males and females in different villages had been found to be practically equal in the ratio of 1:1 and, "with a view to give women the due representation for the earlier time consuming process of determining percentage of women in each ward, lot system was applied by rotation." No exception can be taken to the principle laid down in the said judgment. The time consuming process was not resorted to because the population of male and female almost equally matched and it hardly mattered which ward was reserved for women.
28. We have given serious thought, however, how to ensure on the one hand that grass-root democaracy is brought into effect as early as possible and on the other hand elections are held freely and fairly. We have no specific guidance how to react in such a situation and decide whether to interfere and if to interfere to what extent. In a Full judgment of this Court in Satyanarayana Reddy v.State of A.P., 1987 (1) Andh LT 665, while holding that the figures which formed the basis to identify the constituencies or wards for reservation were not correct, the Court held that the schedule elections should not be interfered with but direction should be given so that mistakes are not repeated in future elections. We can adopt this as a method insofar as reservation of the ward for backward class candidates as well as for the office of chairpersons are concerned but adoption of such a method for the other infirmities which we have noticed may not be justifiable. Still we think that without undoing what has been done in the name of Panchayat elections in the State untill now there can be a method to ensure compliance at least with the law for the preparation of the final electoral roll and addition of names of voters as has been alleged by the petitioners in one of the cases before us. A large number of voters have been added and it seems such additions have created doubts about the functions of the authorities in the minds of the petitioners. We . have also examined how far the Government and the State Election Commissioner are correct in claiming that the task of identifying the backward class voters in the wards of the Panchayats is difficult and time consuming. We have figures before us that in a substantial number of wards and Panchayats elections have gone without contest and in addition 24% of the wards are reserved for Scheduled Castes and Scheduled Tribes. We are not using the figures in our judgment because we have no manner of doubt with the number of agencies available with the State Government and the power which the law has given to the State Election Commissioner if sincere attempt is made in a very short period such territorial constituencies can be identified which can be reserved for the Backward Classes.
29. State Election Commissioner has chosen to file an affidavit after the conclusion of the hearing of the cases and after his counsel was heard in full by the Court, in which he has stated certain things which give the impression that he has acted as a desperate litigant who fears the verdict of the Court and adopts methods to somehow escape the inevitable. It deserves no mention in our judgment and we would have ignored it completely had it not come from a person holding a constitutional authority. We, however, reject the affidavit and record our disapproval to the method which the Courts have repeatedly deprecated. A constitutional authority should have the patience of Lord Krishna and the forbearance of Jesus Christ. He should be above suspicion like Ceasor's wife. We have no intentions to issue sermons but to remind ourselves that when occasion demand the Courts should remind themselves of their duty and show the stick to those who defy its authority.
For the reasons as above, we hold :
(1) that rules in G.O.Ms. No. 755 dated 30-11-1994 as amended from time to time insofar as they provide for the administrative machinery for the conduct of elections and introduced authorities to share the powers and functions of the Election Commission, are ultra vires the Act and Articles 243-K(1) and (4) of the Constitution of India. They are however spread in such a way in the scheme of the rules that it is difficult to say that one rule is bad and the other is good insofar as they divide the powers of the State Election Commissioner and create independent authority of course subject to the control and direction of the State Election Commissioner; and (2) that Rules 3 and 3A in G.O.Ms. No. 879 dated 3-12-1994 (the latter inserted by G.O.Ms. No. 72 dated 4-2-1995) are ultra-vires the Act and Article 243K(1) and (4) of the Constitution of India.
Since the above provisions of law have guided the respondent State Government and the State Election Commission and they have proceeded to prepare the electoral roll and conduct the elections accordingly the irresistible conclusion is that elections have suffered serious legal infirmities. Declaring, however, the election void will put the clock back to restart the whole thing, and the ultimate sufferers will be the people, both for the reason of the delay in bringing democratic set up at the village level and the expenditure involved which is from the money belonging to the people and not the persons who have been spending it. We are inclined in such a situation to direct the respondent -- State Election Commissioner to:
(1) identify the territorial constituencies including Panchayats which are reserved for Backward Class candidates and ascertain the population of the Backward Class in the said territorial constituencies. In case the population of the Backward Class in the said constituencies is on an average such that the same could be reserved by reference to the population, to declare the result of the election, and in case it is otherwise to direct for a fresh election by reallotment of seats based on population; and (2) forthwith proceed with verification of the electoral roll of such wards in which names of voters have been added after the final publication of the electoral roll under sub-section (3) of Section 11 ofthe Act and in case he is satisfied that the voter or voters is/are a genuine person/persons, to declare the result of the election. If, however, the additional voters names are added after the publication of the electoral roll as contemplated under sub-section (3) of Section 11 of the Act, are not found genuine direct for a fresh election.
30. It is obvious that the verifications aforementioned shall be confined to only such territorial constituencies which are reserved for Backward Class candidates or in which new voters are added after the final publication of the elect oral roll. Result of elections in other territorial constituencies may not be found affected except in cases where on account of allotment to a Backward Class candidate a particular Ward chairperson's election is rendered invalid. This can be solved by identifying as indicated above the territorial constituency reserved for the Backward Class candidates and the territorial constituencies which ought to have been reserved for the Backward Class candidates on the basis of the population as in the case of Scheduled Castes and Schedule Tribes. The State Election Commissioner is expected to understand the implications of the electoral practices and laws and accordingly approach the problem to keep the verification of such constituencies at the minimum level. As a corollary of the above a direction must go to the State Government to provide to the State Election Commissioners on demand sufficient number of Officers who shall work under the control, superintendence and directions State Election Commissioner. The results of elections in all other territorial constituencies and Panchayats however without waiting, for varification aforementioned shall be published.
31. In the result, the petitions are allowed and ordered as above. Let a Mandamus issue forthwith. On the facts and in the circumstances of the case, there shall be no order as to costs.
32. After the Judgment, learned Standing Counsel for the Union of India, learned Advocate-General for the State and learned counsel for the State Election Commission have sought for a Certificate for appeal to the Supreme Court by an oral application under Article 134A(b) of the Constitution. We have followed, in reaching to our opinion, the pronouncements of the Supreme Court of India as to interpretation of the Constitution and we have found no reason to feel persuaded that the case involves a substantial question of law of general importance and that in our opinion the said question needs to be decided by the Supreme Court. The oral applications for certificate for appeal to the Supreme Court are accordingly rejected.
33. Learned Standing Counsel for the Union of India, learned Advocate General for the State and learned counsel for the State Election Commission have made oral applications to stay or suspend the operation of our judgment to enable their respective parties to move the Supreme Court in appeal. We have considered this inappropriate for the obvious reason that the suspension shall result in the publication of the results of elections and introduced third-party interests in such territorial constituencies and pan-chayats which are inflicted by the infirmities for which specific directions have been issued by us. By the Judgment that we have ' delivered, we have intended to give an opportunity to all concerned to set right the infirmities to the extent possible and remove lurking doubts the genuineness and legality of the election process resorted to by them. The State Election Commission is created for the one and only purpose to ensure the purity and fairness of the election. We have, by our Judgment, given to him the opportunity to rise to the occasion and deliver to the people of the State a decent and fair democracy at the grass-root level. This we have done keeping in view the mandate in Article 243K(1) of the Constitution of India and the provisions of the Andhra Pradesh Panchayat Raj Act 13 of 1994 which enjoin none but the State Election Commission for the said purposes. It is case, in our opinion, in which no stay or suspension of the Judgment is warranted. Any suspension or stay of the Judgment shall render fruitless the efforts of the Court to reach the authorities concerned for rectification of the grievances of the writ petitioners and petitioners in as many as 900 and odd other petitions pending disposal in this Court.
34. Petitions allowed.