Madras High Court
Most Rev. Dr. Antony Pappusamy vs The Returning Officer on 22 March, 2019
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.Nos.8090 and 8126 of 2019 and
W.M.P.Nos.8681 and 8713 of 2019
W.P.No.8090 of 2019
Most Rev. Dr. Antony Pappusamy,
Archbishop and President,
Tamil Nadu Bishop's Council,
Madurai. .. Petitioner
v.
1. The Election Commissioner,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi.
2. The Election Commissioner,
Tamil Nadu State Election Commission,
Jawaharlal Nehru Salai,
Jai Nagar, Koyambedu,
Chennai 600 106. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, issuance of a writ of mandamus, directing the respondents to
reschedule the election date, which is scheduled on 18.04.2019 in Tamil
Nadu and Puducherry, to any day other than Maundy Thursday, falling
within the ‘Holy Triduum’, subject to the convenience of the election
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commission and the general public or in the alternative to shift the
election booths located in the schools within the church premises, to any
other places of convenience to the election commission and the general
public.
For Petitioner : Dr.Father Xavier Arulraj,
Senior Counsel
For Respondents : Mr.Niranjan Rajagopal
W.P.No.8126 of 2019
Mr.S.Inigo Irudayaraj,
Managing Trustee,
Christuva Nallena Iyakkam
Chennai. .. Petitioner
v.
Tamil Nadu State Election Commissioner,
Office of the Tamil Nadu State Election Commission,
Jawaharlal Nehru Salai,
Jai Nagar, Koyambedu,
Chennai 600 106. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, issuance of a writ of mandamus, directing the Respondent, The
Tamilnadu State Election Commission, to change in the election date in
the state of Tamil Nadu and Puduchery from 18/04/2019 to any other
date.
For Petitioner : Dr.I.John Arockiadas
For Respondents : Mr.Niranjan Rajagopal
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COMMON ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Most Rev. Dr. Antony Pappusamy has filed W.P.No.8090 of 2019 for a writ of mandamus, directing the respondents to reschedule the election date, which is scheduled on 18.04.2019 in Tamil Nadu and Puducherry, to any day other than Maundy Thursday, falling within the ‘Holy Triduum’, subject to the convenience of the election commission and the general public or in the alternative to shift the election booths located in the schools within the church premises, to any other places of convenience to the election commission and the general public.
2. Mr.S.Inigo Irudayaraj has W.P.No.8126 of 2019 for a writ of mandamus, directing the Respondent, The Tamilnadu State Election Commission, to change in the election date in the state of Tamil Nadu and Puduchery from 18/04/2019 to any other date.
3. As both the writ petitions are for a similar prayer, they are taken up together and disposed of, by a common order.
4. Petitioner in W.P.No.8090 of 2019, has stated that the Election Commissioner, Election Commission of India, New Delhi, 1st respondent http://www.judis.nic.in 4 herein, has notified that the 17th Lok Shaba elections, vide notification dated 10.03.2019 in No.ECI/PN/23/2019. The said elections are scheduled at seven phases from 11th April, 2019 onwards. Counting and the proclamation of results will commence on 23rd May, 2019. In the said notification, the parliamentary elections for the state of Tamil Nadu and Puducherry, along with bye-elections for 18 Assembly constituencies in Tamil Nadu are scheduled on 18.04.2019, in one phase. The scheduled date of 18.04.2019, for the elections in Tamil Nadu and Puducheery, falls on Maundy Thursday, falling in the Holy Week and forming part and parcel of Good Friday.
5. The petitioner has submitted that there are two difficulties faced in this context. That is the timing and venue. Firstly, in most of the churches, in the villages and the towns, there are schools located within the church premises. The Catholic Church is running around 2800 schools. All other schools are aided or partly-aided Tamil Medium schools. Most of these aided schools are traditionally used by the government as election- booths, for any election. When school is notified as an election booth, a specified radius and its perimeter will become a security zone, with restricted movements. Even on the previous day, these premises will be taken over by the security forces and would be under their control. http://www.judis.nic.in 5
6. Writ petitioner in W.P.No.8090 of 2019 has further submitted that there are 22 Catholic dioceses in Tamil Nadu apart from 8 CSI dioceses and other denominational churches. There are thousands of churches in Tamil Nadu and Puducherry. For the Christian community, numbering around 50 lakhs in Tamil Nadu, the Holy Week starts with the Palm Sunday on 14th April and culminates on Easter Sunday. The entire Christian religion revolves around detention, passion and sufferings of Lord Jesus Christ, the way of the cross and the crucifixion on Good Friday and His resurrection on Easter Sunday. The entire week is called Holy Week. On Maundy Thursday, on the eve of crucifixion and death of Jesus on Good Friday, 'The Last Supper’ takes place on Maundy Thursday, wherein Lord Jesus Christ founded the Holy Eucharist. The three days of the Holy Week are called ‘Holy Tridum’ (Holy Three Days) comprised of Maundy Thursday, Good Friday and. Easter. He has further submitted that all the three days are observed in spiritual discipline. Devotees visit churches and pray. It is stated that it would be very difficult, to have the prayers and elections, to go on simultaneously. According to the petitioner, it is not a question of a few hours of prayer. It is stated that prayers are offered throughout night and there is continuous religious activity in the church campus. People will be coming in and going out of the churches, at all times, during these three days. Restriction of any http://www.judis.nic.in 6 movement of the people visiting the churches will be a problem, as it will interfere with the prayers of the devotees. It is stated that in some of the churches, even the entry/exit gate is common. It will be very difficult to totally sanitise the area with fool-proof security arrangements. It will be equally difficult to stop the devotees, coming for special worship and personal prayers. This is not an isolated problem in one or two places and it would be a common issue in thousands of churches, more specifically in the rural areas.
7. It is submitted that Maundy Thursday, Good Friday and Easter, are observed throughout the world. It is submitted that since the polling date, ie., 18.04.2019, falls on Maundy Thursday, which will have the effect of causing disturbance to the christian community, their right under Articles 25 and 26 of the Constitution of India, will be violated.
8. It is the contention of the petitioners that the Government must take all steps to ensure that all people are able to cast their votes, without any impediment. It is stated that voter turnout of the christian community, will be reduced, if polling is held on the Maundy Thursday. That being so, the respondents ought to have considered the Christian religious worship on that day before fixing the day of voting. There will http://www.judis.nic.in 7 be conflict of interest during the election process in church premises. It is stated in the petition that christians are always in the fore-front, contributing to nation building and the democratic process of constitutional governance. Therefore, in the interest of general public and in the interest of Christian community, with a view to reinforce the universal franchise, change of the date for conducting elections in the state of Tamil Nadu and Puducherry, is necessary.
9. Apart from the above averments, Mr.S.Inigo Irudayaraj, Managing Trustee, Christuva Nallena Iyakkam, Chennai, petitioner in W.P.No.8126 of 2019, has submitted that the respondent has announced the Lok sabha Election to be conducted on 18.04.2019, without keeping the fundamental rights of Christians of Freedom of Conscience and free profession of their religion in mind and following the necessary and important festival seasons of the Christian religious community of the state of Tamilnadu, which is contrary and against the provisions of Article 25(1), Article 26, Article 28, and Article 29 (i) of Constitution of India. He further submitted that the Christian Teachers and other Christian staff/ workers used for polling work, would not able to attend religious mandatory service, because the teachers would be engaged in election polling duty for the whole day very early from the morning and very late http://www.judis.nic.in 8 in the evening and also many of the polling stations are organized in schools inside Church Campuses. In this regard, Tamil nadu Bishop Council (TNBC) has given a representation, dated 11.03.2019, to the Election Commission, stating the similar reason to the Election commission, seeking for a change in the election date in the State of Tamilnadu and Union Territory of Puducherry, as it coincides with Maundy Thursday.
10. With the above averments, the petitioners have filed these writ petitions, for a direction to the respondents to reschedule the polling dates in Tamil Nadu and Puducherry, instead of conducting elections on 18.04.2019, falling on Maundy Thursday and within the 'Three Holy Days' or the ‘Holy Triduum’ of utmost religious importance for Christians and essential for Christian faith.
11. The petitioners have also stated that if the polling date cannot be changed, then the election booths located in schools and colleges, where there are churches must be shifted to any other premises convenient for the Government and the general public. It is stated that if the booths are shifted, atleast the problem of venue and that of the movement and security arrangements, would be solved. http://www.judis.nic.in 9
12. Respondents have filed a detailed counter affidavit in both the writ petitions and contended that both the writ petitions are not maintainable, in view of the Constitutional Bar under Art 329(b) of the Constitution of India, wherein it has been provided that notwithstanding anything contained in the Constitution, no election to either House of the Parliament or to the House or either house of the legislature of the 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.
13. Respondents have submitted that writ petitions seeking to change the dates of the election or of the polling booths, directly question the conduct of the election and therefore, barred by virtue of Art 329(b), which starts with a Non-Obstantate clause, “notwithstanding anything contained in the Constitution” and therefore excludes applicability of Art 226 also. The above position of law relating to the constitutional bar on electoral matters is clearly elucidated in the Judgments of N.P. Ponnuswami Vs. The Returning Officer, AIR 1952 SC 64 and Mohinder Singh Gill Vs. Election Commission o f India, AIR 1978 SC 851, both of which are Constitution Bench Judgments. Statutory notification of elections have already been issued on 19.03.2019 fixing the dates for filing nomination, upto date of polling. http://www.judis.nic.in 10
14. The respondents have submitted that the term of the 16th Lok Sabha was to expire in June 2019, and the Election Commissioner, Election Commission of India, 1st respondent herein, being conferred with the Constitutional obligation of conducting free and fair elections, begin making comprehensive preparations to conduct the general elections for the 17th Lok Sabha in a free, fair and peaceful manner.
15. Elections to the world's largest democracy pose immense challenges with respect to logistics, personnel and material management. Consultations with all the stakeholders, invite inputs from all the relevant departments/organizations across the Country have been done. In this direction, the Commission has organized a series of meeting with the Chief Electoral Officers, of all the 36 States and Union Territories to review all aspects of election preparedness and necessary instructions were issued to the Chief Electoral Officers to take necessary steps for ensuring efficient conduct of Elections. The Commission has also held meeting with the Chief Secretaries, Directors General of Police, Home Secretaries, Chief Electoral Officers and Police Nodal Officers of all States and Union Territories on 21st, 22nd and 28th January 2019, to assess the overall Law and Order situation, ascertain State/Union Territory specific, areas of concern, to deliberate the quantum of Central Armed Police http://www.judis.nic.in 11 Forces required in each State/Union Territory and review the overall preparedness of the election machinery. The Commission has also visited different states to review the poll preparedness, and in the course, interacted with Political Parties, enforcement agencies, all the District Officers, SSPs and SPs, Divisional Commissioners, Range IGs and Chief Secretaries, Home Secretaries, DGP’s and other Senior Officers of the States.
16. Respondents have further submitted that as considerable deployment of Central and State Police Forces to ensure peaceful free and fair elections, was found necessary, especially in the vulnerable areas, and mobilization and deployment and disengagement of these forces with minimum criss-cross movements and optimal utilization, including intra-State shifting, involved complex planning and detailed analysis, the Commission carried out several rounds of consultations with the senior officers of the Ministry of Home Affairs/CAPF’s/Police Nodal Officers of the States/Union Territories.
17. Respondents have further submitted that in the interests of students and also the fact that Polling Stations are mostly located in school buildings and teachers are engaged as polling personnel, the http://www.judis.nic.in 12 Commission has consciously factored-in, the examination schedules of various State Boards, Central Board, in the process of finalizing the poll dates. In addition to this, other relevant factors like various holidays and festivals, falling in the months of March, April and May, harvest season in certain parts of the country and inputs obtained from Indian Meteorological Department on the pre-monsoon rainfall, on-set and spread of monsoon and acute hot weather conditions in certain parts of the country have also been taken into consideration. Thus, while deciding on the number of poll days for each State/Union Territory and the composition of the Parliamentary Constituencies that go to Polls on a particular poll day, the Commission to the extent possible has taken all the relevant aspects and information, related thereto.
18. Respondents have further submitted that only after taking into consideration the religious festivals the dates for polling has been drawn. Occurrence of a religious festival or season is annual and common in our country and solely on those grounds, date of elections cannot be changed. It is pertinent to mention that, even festivals like Ramzan, Mahavir Jayanthi and various local festivals etc., also occur during this election season, and for every festival, if elections are to be postponed, it would not be practically possible to conduct elections. http://www.judis.nic.in 13
19. Respondents have further submitted that neither does anyone’s reIigion, during these said festivals prevent them in anyway from participating in elections in any manner affect anyone’s right to worship or visit their place of worship. In fact on receipt of the representations and in view of certain concerns raised, in the meeting held on 18,03.2019, the 1st respondent has already instructed all the District Election Officers across Tamil Nadu to ensure that the worshippers have access to the places of worship without any hindrance, and to work out the modalities of implementation, and report the same. This has also been informed to the general public through media on the same day.
20. Respondents have further submitted that the question of shifting the election dates may not be feasible considering that, the schedule to hold the Elections, has been drawn taking into consideration the conduct of election for the whole of India, including the Assembly Elections for 4 states and bye elections for various assembly constituencies in various states including Tamil Nadu. It is the consensus of the stakeholders involved in conducting the elections that, the postponement or shifting of elections will be detrimental to the smooth conduct of the General Elections in the larger perspective and may have a http://www.judis.nic.in 14 cascading effect, affecting the schedule and logistics, man material management for the further phases of elections and hence it is not advisable at this juncture to shift the election dates as prayed for.
21. Insofar as plea relating to change of polling stations is concerned, respondents have submitted that, the same is done in accordance with the provisions of Representation of People Act 1951 (Section 25) and the comprehensive instructions issued by the Election Commission in this regard. It is submitted that the persons who own the property have not made any objections or are before the Court and the petitioners herein cannot raise such a plea. In any event, selection of polling booths also being part of the election process cannot be questioned in the Court. Further selection of polling booths is a matter of requirement depending upon the population of the area, availability of space and various factors, such as facilities and accessibility etc. and hence is a matter purely in the administrative domain.
22. Respondents have further submitted that the Election Commission of India has experience of over 67 years in conducting elections and is the sole expert body in this regard. Further the Election Commission is vested with the Superintendence, Control and Direction of http://www.judis.nic.in 15 Elections, with powers plenary in nature and hence is competent as the final decision maker in the manner and mode of conduct of elections. Conduct of elections being a solely administrative matter and it cannot be questioned in a Court of law, seeking the Court to substitute its opinion in place of the administrative body’s, be it the Election Commission, or the authorities at the State and District level conducting the Elections.
23. Placing reliance on a decision in Kihoto Hollohon v. Zachilhu and Ors reported in AIR 1993 SC 412, respondents have submitted that the Hon'ble Supreme Court has held that democracy and Parliamentary form of government postulates that the Parliament and State Legislatures are in existence at all times, except where otherwise expressly provided by the Constitution and hence the Commission is under a Constitutional mandate to conduct the election in a fixed time frame so as to enable the new parliament to convene within the constitutionally mandated period. In fact, in N.P.Ponnuswami v. Returning Officer, Nammakal reported in AIR 1952 SC 64 the Hon’ble Supreme Court held that it is a matter of prime importance that elections to legislatures are conducted according to the prescribed time schedule, as the legislatures have to perform important functions in the proper governance of the country. http://www.judis.nic.in 16
24. Referring to a decision in Special Reference No 1 o f2002 (Gujarat Assembly Matter), AIR 2003 SC 87, respondents have further submitted that the Hon'ble Apex Court held that framing of schedule or calendar for election commission is in the exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament. It was further held that plenary powers of the Election Commission cannot be taken away by law framed by the Parliament and if Parliament makes any such law, it would be repugnant to Article 324.
25. Placing reliance on a decision in Election Commission o f India Vs State of Haryana, 1984 (Supp) SCC104, respondents have further submitted that in the reported case, a question arose, as to whether, the High Court can interfere in the matter of fixing the election programmes by the Election Commission. The Hon'ble Supreme Court held that the ultimate decision, as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission. It was also held that it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of bye-election. In a decision in Election Commission of India v. Union of India and Ors, 1995 Supp (3) SCC 643, the Hon’ble Supreme Court held http://www.judis.nic.in 17 that the jurisdiction of courts would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process. Fixing of dates of polling is a matter for the informed judgement of the Election Commission consistent with its perception of law and order situation, ensuring requisite precautionary and remedial measures.
26. Respondents have further submitted that in Ajit Sharma and Ors. v. Union of India and Ors [CWJU.No.11374 of 2005, decided on 19th September, 2005], in the context of general election to the Bihar legislative assembly, it was agitated before the Patna High Court that the campaign period fell during the religious festivals’ period and would interfere with the observance of religious activities by Muslim and Hindu Communities. Patna High Court declined to interfere in the matter on being satisfied that the Commission had already taken the aspect into consideration.
27. In a decision in Chief Election Commissioner of India v. All India Garo Union (Civil Appeal No 552 of 1993), the Hon’ble Supreme http://www.judis.nic.in 18 Court stayed the order of Gauhati High Court holding that to be without jurisdiction, when the High Court had sought to interfere in the matter of fixation of a poll by the Election Commission on a petition by a Christian organisation that the proposed date of poll fell during a period in which some important religious festival was to be celebrated in that area. Further in the case of West Bengal State Election Commission v. State of West Bengal and Ors. [Special Leave to Appeal (C) Nos.19928-19931 of 2013, decided on 2nd July 2013], the Hon’ble Supreme Court refused to change the dates of poll for local body elections in West Bengal, though some petitions were filed praying for such change on the ground that the dates of poll fell during the holy Ramzan month.
28. Respondents have further submitted that the Election Commission of India is conscious of its sacred Constitutional obligation to conduct free and fair elections, especially ensuring maximum voter participation in the process. In fact the entire ecosystem of electoral process is focused on building the voter confidence and thereby ensuring that, they exercise their rights in a free manner. Further as already submitted above, while conducting elections in no manner infringes any one’s right to religion or worship, suitable steps are being taken to ensure that, administrative aspects surrounding elections will be conducted in http://www.judis.nic.in 19 such a manner that without hindrance to access to any place of worship. It is further reiterated that suitable security measures will be taken to manage the situation and see to that elections is conducted peacefully. Stand taken herein is for Union Territory of Puducherry also.
29. Dr.Father Xavier Arulraj, learned senior counsel for the petitioner in W.P.No.8090 of 2016, explained the importance of Maundy Thursday and submitted that polling on 18.04.2019 in thousands of schools run by the diocese, would affect free ingress and egress of several thousands of christians, when voters in the locality also would enter church premises. All the Three Days from Maundy Thursday to Sunday, "Easter" are Holi Days for the Christians and several thousand Christians would visit churches and conducting elections in the schools, where there are churches, would cause security problems and constraint to the workshippers. Christians are not opposed to utilised the places for conducting elections, but 18.04.2019, being Maundy Thursday, the elections scheduled on 18.04.2019, should be postponed or in the alternative, the booths should be shifted.
30. Dehors the above submissions, learned counsel for the petitioner submitted that in the event of this declining the prayer sought http://www.judis.nic.in 20 for, respondents be directed to provide barricades democrating the church and the place intended to be used for election purposes. He also submitted that wherever, there is difficulty, representations made be addressed by the respondents and their officers.
31. Dr.I.John Arockiadas, learned counsel for the petitioner in W.P.No.8126 of 2019, echoed the submission of the learned Senior Counsel appearing for the petitioner in W.P.No.8090 of 2016 and added that the owners of the premises have not granted permission to conduct elections in the polling booths.
32. Inviting the attention of this Court to Article 329 of the Constitution of India, Mr.Niranjan Rajagopal, learned standing counsel for the Election Commission of India submitted that in view of the constitutional bar, both are writ petitions are not maintainable. He further submitted that there is no conflict of religious interest or faith with the conduct of elections.
33. Having regard to the constitutional mandate of the Election Commission of India to conduct a free and transparent elections, both parliamentary in the whole of the country and bye-elections in Tamil http://www.judis.nic.in 21 Nadu, learned standing counsel for the Election Commission of India submitted that several meeting by the Election Commission with the Chief Electoral Officers, of all the 36 States and Union Territories, police and political parties, were held and that the Election Commission of India has taken a decision to conduct elections in Tamil Nadu and Pondicherry on 18.04.2019. He further submitted that sufficiency of the security personnel has been assessed and would be deployed in all the polling booths. Change of election date would ultimately affect the schedule in the country. He also submitted that suitable instructions have already been issued to all the District Election Officers, across Tamil Nadu to ensure access to the worshipers to the place of worship, and to work out the modalities of implementation.
34. Learned standing counsel appearing for the Election Commission of India submitted that all precautionary steps have been taken for the conduct of free and transparent election and the apprehension of the petitioners is not well founded. For the reasons stated in the counter affidavit, he prayed for dismissal of the writ petitions.
http://www.judis.nic.in 22 Heard the learned counsel appearing for the parties and perused the materials available on record.
35. Before adverting to the rival contentions, let us consider the provisions of the Constitution of India, dealing with elections, "324. Superintendence, direction and control of elections to be vested in an Election Commission.
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice- President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the http://www.judis.nic.in People and to the Legislative Assembly of each State, and 23 before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
325. No person to be ineligible for inclusion in, or to http://www.judis.nic.in claim to be included in a special, electoral roll on grounds 24 of religion, race, caste or sex.
There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.
The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, 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 this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
327. Power of Parliament to make provision with respect to elections to Legislatures.
Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, http://www.judis.nic.in elections to either House of Parliament or to the House or 25 either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
328. Power of Legislature of a State to make provision with respect to elections to such Legislature.
Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
329. Bar to interference by courts in electoral matters.
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 327 or article 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. http://www.judis.nic.in 329A. Special provision as to elections to Parliament 26 in the case of Prime Minister and Speaker. Rep. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 36 (w.e.f. 20-6-1979)."
36. Let us consider the decisions of the Hon'ble Supreme Court of India, on the power of the Election Commission to conduct elections and maintainability of the writ petitions, challenging the decisions of the election commission and whether interference can be made by Courts, when code of conduct come into effect and when Election Commission has notified the dates of elections for polling.
(i) N.P.Ponnuswami v. Returning Officer, Nammakal reported in AIR 1952 SC 64, the Hon'ble Supreme Court held as follows:
"Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted."
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(ii) In Mohinder Singh Gill Vs. Election Commission of India 27 reported in AIR 1978 SC 851, the Hon'ble Supreme Court, at Paragraphs 38 and 39, held as follows:
"38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the ex-tent be insists that if competent legislative is enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi : (supra) "In the opinion of some of the judges constituting the majority in Bharati's case (supra), Rule of Law is a basic structure of the Constitution apart from democracy.
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere." (p. 523) And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art.324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.
39. Even so, situations may arise which enacted law http://www.judis.nic.in has not provided for. Legislators are not prophets but 28 pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein's monster who may manipulate the system into elected despotism-- instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the, action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment. Secondly, When a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. http://www.judis.nic.in Moreover, as held in Virendra and Harishankar, discretion 29 vested in a high functionary may be reasonably trusted to be used properly, not. perversely. If it is misused, certainly the Court has power to strike down the act."
(iii) In A.K.M.Hassan Uzzaman v. Union of India reported in 1982 (2) SCC 218, the Hon'ble Apex Court has emphasized that where election is imminent, the High Court must be very cautious and slow to interfere under and to pass orders or directions postponing the election. It was also held that the allegations of irregularities in the electoral rolls, held on facts were vague and general in nature and in absence of material before it, the High Court was not justified in passing orders for postponement of the election. It was further observed that no High Court in exercise of the powers under Article 226 of the Constitution should pass any orders interim or otherwise, which has the tendency of effect of postponement in the election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked and that 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. In the said case, the Hon'ble Supreme Court held that the High Court acted within its jurisdiction in entertaining the writ petition and in issuing the Rule Nisi for the reason that the vires of the particular provisions of the Election http://www.judis.nic.in Law was questioned. At the same time, the Supreme Court found fault 30 with the interim order passed by the High Court which had the effect of postponing the elections to the State Assembly. That was also a case in which the petition under Article 226 was filed challenging the electoral rolls. The Supreme Court observed:
"......Secondly, though the High Court did not lack the jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its power under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the Courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution. The High Court must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite http://www.judis.nic.in 31 postponement of election to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution......."
(iv) In Election Commission of India v. State of Haryana reported in 1984 (Supp) SCC 104, the Hon'ble Supreme Court, while considering the question, "Does A.K.M.Hassan Uzzaman's case enjoin that no such interim order can even be passed by the High Court?", at Paragraph 15, held as follows:
"15. The relevant extract from the conclusion recorded in Hassan's case has been reproduced hereinabove. Of course, the exact parameters of the decision and the true ratio cannot be known till the judgment containing reasons is born. As on today no one can predict what exactly will be decided by the Court in Hassan's case when the judgment eventually comes to be pronounced (who can make a guess about the colour or shade of the eyes of a child which is yet to be born ?). But it can be reasonably said that the following extract, "The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process http://www.judis.nic.in indefinitely by creating a situation in which, the Government 32 of a State cannot be carried on in accordance with the provisions of the Constitution."
warrants the view that Hassan's case does not enjoin that an interim order of such a nature can never be passed in any situation. If that were not so, the Court would not have said (1) that imminence of electoral process is a factor which must guide and govern the passing of orders (meaning thereby that while such orders can be passed this factor must be accorded due consideration) and (2) that "more imminent such process, the greater ought to be the reluctance of the High Court to do anything or direct anything to be done which will postpone the process indefinitely" (which means it must be done only with reluctance when elections are imminent.) The aforesaid statement of law made in the context of "general elections" does not warrant the view that Hassan's case enjoins that an election programme cannot be postponed even for a few days even in the case of a by- election, whatever be the situation, and whatever be the circumstances, in which the High Court is called upon to exercise its jurisdiction. It is therefore not unreasonable to proceed on the premise that even according to Hassan's case the Court has the power to issue an interim order which has the effect of postponing an election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democratically elected popular government. The portion extracted from the operative order in Hassan's case brought http://www.judis.nic.in into focus a short while ago which adverts to "imminence of 33 elections" and to "directions which will inevitably result in indefinite postponement of elections to legislative bodies which are the very essence of the democratic functions of our Constitution" leaves no room for doubt that the observations were being made in the context of the expiry of the term of legislature as envisioned by Article 172 of the Constitution of India and consequential general elections for such legislature. This must be so because the legislature would stand dissolved on the expiry of the term, and a new legislature has to be elected. It is in this context (presumably) that a reference is made to "imminence of elections". For a by-election like the one we are concerned with, there can be no question of "imminence" or "indefinite postponement of elections" which would stall the installation of a democratically elected government. It is no body's case that the party position was such that the result of the election to this vacant seat would have tilted the majority one way or other. No oblique motive has even been hinted at. The High Court was therefore not unjustified in proceeding on the assumption that it had such a power."
(v) In Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman reported in AIR 1985 SC 1233, the Hon'ble Supreme Court held that High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or given directions which will inevitably result in an indefinite postponement of elections to legislative http://www.judis.nic.in 34 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 a part of the process of 'election' within the meaning of Article 329(b) of the Constitution.
(vi) In Anugrah Narain Singh vs. State of U.P reported in 1996 (6) SCC 303, the Hon'ble Supreme Court, at Paragraph 12, held as follows:
"12. The answer must be emphatically in the affirmative. The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZG cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the court and stall the elections."
(vii) In Election Commission of India v. Ashok Kumar reported in 2000 (8) SCC 216, the Hon'ble Supreme Court, at Paragraph 13, held as http://www.judis.nic.in follows:
35
"Article 324 of the Constitution contemplates constitution of the Election Commission in which shall vest the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice- President held under the Constitution. The words superintendence, direction and control have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion."
37. Perusal of the judgments, which has been cited in the earlier portion of the judgments, would show that Article 324(1) is couched in wide terms. Article 324(1) is a plenary provision vesting the whole responsibility of national and state elections, on the Election Commission of India. As stated in the affidavit, the Election Commission has to comprehend the process of election in the entire country, while conducting the elections for the Parliament. It has to taken into account the selection of booths, movement of para-military forces throughout the country and several other factors. Once the election schedule is fixed, it should not be interfered with, unless some event occurs, which was not in the contemplation of the election commission. It is well settled that the http://www.judis.nic.in 36 writ Court should not ordinarily except in rarest of rare cases, interfere with the schedule fixed by the Election Commission of India, while exercising its jurisdiction, under Article 226 of the Constitution of India.
38. Election Commission of India, in the detailed counter affidavit, has explained the steps taken for the smooth and free elections, taking note of the difficulties, presumably felt by the petitioners and given instructions to the District Election Officers to consider the representations, if any made, and to redress the same. Since the polling is fixed on Maundy Thursday, it is expected that the Election Commission will take adequate steps to ensure that people are allowed to pray in the churches, which are situated adjacent to the polling booths, without any hindrance. It is also the duty of every citizen to co-operate in the election process.
39. In the light of the decisions of the Hon'ble Supreme Court and discussion, both the writ petitions are not maintainable and the prayer sought for cannot be granted.
40. In the result, both the writ petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed. http://www.judis.nic.in 37 [S.M.K., J.] [S.P., J.] 22.03.2019 Index: Yes / No Internet: Yes / No dm To
1. The Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi.
2. The Election Commissioner, Tamil Nadu State Election Commission, Jawaharlal Nehru Salai, Jai Nagar, Koyambedu, Chennai 600 106.
http://www.judis.nic.in 38 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
dm W.P.Nos.8090 and 8126 of 2019 and W.M.P.Nos.8681 and 8713 of 2019 22 .03.2019 http://www.judis.nic.in