Allahabad High Court
Ram Prakat Yadav S/O Late Ram Awadh Yadav ... vs State Of Uttar Pradesh, Through ... on 1 February, 2007
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. Petitioners are members of U.P. Police Force. Election Commission of India, New Delhi on 16.12.2006 addressed letter to the Chief Secretaries to the Governments of Punjab, Chandigarh; Uttar Pradesh, Lucknow & Uttranchal, Dehradun and Chief Electoral Officers of Punjab, Chandigarh, Uttar Pradesh, Lucknow & Uttranchal, Dehradun and subject matter of aforesaid letter was General Elections to the Legislative Assemblies of the States of Punjab, Uttar Pradesh, & Uttranchal, and posting of the Officers. In the said letter it was mentioned that General Elections to the Assemblies of the States of Punjab, Uttar Pradesh, & Uttranchal, is to be held earlier next year and the Commission in the interest of the free and fair elections, has followed the consistent policy to ensure that officers who are connected with the conduct of elections in the States, do not serve in their home districts or places where they have served for long. Commission on the lines of the instructions issued earlier has decided that no officer connected with elections, directly or indirectly, should be allowed to continue in the present district or posting: (a) if she/he is posted in her/his home district (b) If she/he has completed three years in that district during last four years. Said instructions have been made applicable qua officers appointed for specific election duties like District Election Officers, Returning Officers and Assistant Returning Officer but also other district level officers like Additional District Magistrate, Deputy Collectors, Sub Divisional Magistrate, Tehsildars, Block Development Officers. Qua in the Police Department, instructions have been made applicable to range, IGs, DIGs, SPs, and Sub-Divisional Heads of Police, Inspectors, Sub-Inspectors, Sergeant Majors, or equivalent who are responsible for deployment of force in the district election time. Commission desired that a detailed review may, therefore, be undertaken there ensuing election in all districts or districts where incumbents have completed a tenure of three years out of last four years and while moving officers, who have completed three years in a district out of last four years, care should be taken so that they are not posted to their home district. While calculating the period of three years, promotion to a post within the district is to be counted While carrying out this review it has been clarified that these instructions do not apply to officers posted at State Headquarters. The State Government accepted this position that Elections are due as such on 26.12.2006 Special Secretary, Government of Uttar Pradesh issued requisite directions and thereafter Additional Director General of Police (Establishment) has issued order dated 29.12.2006 directing, that if any officer and employee has completed three years service from 15.12.2002 in any district he may not be kept in said district. Pursuant thereto petitioners have been transferred. At this juncture both the writ petitions have been filed.
2. Learned Counsel for the petitioners Sri Yogesh Agrawal and Sri Satish Chaturvedi contended with vehemence that in the present case Legislative Assembly Election till date has not been notified as such it was not at all in the competence and domain of the Election Commission of India to have issued said directives as such in the present case Election Commission of India has totally transgressed and over stepped the its jurisdiction, as such transfer order which have been passed is unsustainable.
3. Sri Shashank Shekher, learned Counsel representing State respondents, as well as Sri P.N. Rai, representing State Election Commission, and Sri B.N. Singh learned Counsel representing Election Commission of India, respondent No. 2 on the other hand contended that undisputed position is that elections are due in the State of Uttar Pradesh and in furtherance of free and fair elections, the Election Commission of India in exercise of its power of superintendence, has given directives and said directives have been faithfully complied with and as far as petitioners are concerned none of their legal rights have been; infringed as petitioners have no vested right to claim their continuance at one particular place as such no interference is warranted.
4. After respective arguments have been advanced Article 324 of Constitution of India is being looked into:
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 of 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 Commission and such number of other Election Commissions, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners, shall be subject to the provisions of any law may in that behalf by Parliament, by 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 People and to the Legislative Assembly of each State, and 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 be rule determine.
Provide 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 Commissioner or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commissioner by Clause (1)
5. Bare perusal of the aforesaid provision as contained in Part-XV of the Constitution of India, Article 324 of the Constitution of the India shows that power of 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 has been vested in Election Commission.
6. Authority of Election Commission, under Article 324 of Constitution of India has been subject matter of consideration by Hon'ble Apex Court and this Court. Hon'ble Apex Court in the case of Mohinder Singh Gill (supra) AIR 1978 SC 851, wherein order of countermanding was passed, concluded that Election Commission in our democratic scheme is a central figure and a high functionary, and discretion vested in it will ordinarily be used wisely, not rashly. Election Commission has power to direct re-poll of a particular polling. Constitution contemplates free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances. The avowed object is to confer the Commission with the authority to push forward free and fair election with expedition and fairness imports in itself that no wrong doer candidate benefits by his own wrong. Relevant extract of the said judgment contained in paragraphs 60, 90, 91 and 93 are being quoted below:
60. Nobody will deny that the Election Commission in our democratic scheme is a central figure and a high functionary. Discretion vested in him will ordinarily be used wisely, not rashly, although to echo Lord Camden. Wide discretion is fraught with tyrennical potential even in high personages, absent legal norms and institutional checks, and relaxation of legal canalisation on generous 'VIP' assumptions may boomerang. Natural justice is confused in certain aspects, especially in relation to the fourfold exceptions but forward by the respondents.
90. Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers to direct a re-poll of particular Polling Stations to be conducted by the specialized agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots, since those names are known can be ordered taking case to preserve the secrecy of the vote. The Court may, if necessary, after setting aside the election of Rule 3(if there are good grounds therefor) keep the case pending, issue directions for getting available votes, order recount and or partial re-poll, keep the election petition pending and pass final order holding the appellant elected if - only if - valid grounds are established. Such being the wide ranging scope of implied powers we are in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Court's powers to grant and Sri Rao's alarm is unfounded.
91 Diffusion, even more elaborate discussion, tends to blur the precision of the conclusion i a judgment and so it is meet that we synopsize the formulations. Of course, the condensed statement we make is for convenience, not for exclusion of the relevance or attenuation of the binding impact of the detailed argumentation. For this limited purpose, we set down our holdings:
1. (a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.
(b) Election in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
2. (a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof, firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the commission, shall act in conformity with not in violation of, such provisions but where such law is silent Article 324 is reservoir or power to act for the avowed purpose of not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance of such cannons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz. elections. fairness, does not import an obligation to see that no Wrong does candidate benefits by his own wrong to put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability, whether it has been complied with is left open for the Tribunal's adjudication.
3. The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as prescribed in Article 329(b) and 1951 Act. the election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfillment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.
93. We conclude stating that the bar of Art. 329(b) is as wide as the door of Section 100 and read with Section 98. the writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach on this view of the law ubi jus ibi remedium is vindicated, election injustice is avoided and the constituency is allowed to speak effectvely. in the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal clauses in an area of national moment, the parties are the occasion by the people are the beneficiaries and so costs must not be visited on a particular person. Each party will bear his own costs.
7. Thereafter in the case of Election Commission of India v. Ashok Kumar and Ors. . Issue was in respect of the area of jurisdiction of High Court under Article 226 of the Constitution after commencement of election process. Article 324 has been noted and it has been concluded that area of "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. The term "election" has been held to mean and include the entire process from the issue of notification to the declaration of the result. Two types of challenge has been noted, the first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. It has also been held that eletion disputes are not just private civil dispute between two parties and therein entire stake of constituency as a whole is involved and a conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy has to be kept in mind. Paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20 21, 30 and 34 being relevant are quoted below:
12. The issue arising for decision in these appeals is the jurisdiction of High Court to entertain petitions under Article 226 of the Constitution and to issue interim directions after commencement of electoral process.
13. Article 324 of the Constitution contemplates constitution of Election Commission in which shall vest the superintendence, direction and control of 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, 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.
Article 329 of the Constitution provides as under:
329. Bar to interference by courts in elector matters.-Bar to interference by courts in electoral matters-Notwithstanding anything contained 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 to 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 appropriative Legislature.
14. The term "election" as occurring in Article 329 has been held to mean and Include the entire process from the issue of notification under Section 14 of the Representation of People Act, 1951 to the declaration of the result under Section 66 of the Act.
15. The constitutional status of the High Courts and the nature of the jurisdiction exercised by them came up for consideration of this Court in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd. It was held that the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and supplementary powers. Unless expressly or implied barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have e unlimited jurisdiction including the jurisdiction to determine their own powers. The following statement of law from Halsbury's Laws of England (4th Edn, Vol. 10 para 713) was quoted with approval:
Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.
16. This court observed that the jurisdiction of courts is carved out of sovereign power of the State. People of free India are sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws thereunder. It cannot be confined to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the court to render justice according to law. Where statute is silent and judicial intervention is required, courts strive to redress grievance according to what is perceived to be principles of justice, equity and good conscience.
17. That the power of judicial review is a basic structure of constitution is a concept which is no longer in issue.
18. Is there any conflict between jurisdiction conferred on the High Court by Article 226 of the constitution and the embargoes created by Article 329 and if so how would they coexist came up for the consideration of a Constitution Bench of this Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency. The enunciated in Ponnuswami was extensively dealt with, also amplified, by another Constitution Bench in Mohinder Singh Gill v. Chief Election Commr. The plenary power of Article 329 has been by the Constitution Bench to be founded on two principles:
(1) the peremtory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion;
(2) the provisions of special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other from, the right and remedy being creatures of statutes and controlled by the Constitution.
On these principles the conclusions arrived at in Ponnuswami case were so stated in Mohinder Singh Gill case (SCC op. 426, para 26) (1) 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 c t of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protected.
(2) In conformity with this principle, the scheme of election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election' and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, Would have the effect of vitiating the "election' an enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
19. However, Constitution Bench in Mohinder Singh Gill case could not resist commenting on Ponriuswami case by observing (vide para 25 that the non obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election, except in special situation s pointed out at, but left unexplored in Ponnuswami case.
20. Vide para 29 in Mohinder Singh Gill case, the Constitution Bench noticed two types of decisions and two types of challenges; the first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. A reading of Mohinder Singh Gill case points out that there maybe a few controversies which may not attract the wrath of Article 329(b). to writ:
(i) power vested in a functionary like the election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objective and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or mala fide.
(ii) A dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which for from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gill case, this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30 if the latter orders returning officers to accept Only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Court's intervention in such a case will facilitate the flow and not stop the election stream.
21. A third category is not far to visualize. Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election i.e. the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate or the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance secured, material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the process of election. So also there maybe cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the court is sought to be invoked for correcting the process of election taking care o such aberrations as can be taken care of only at that moment failing which the following stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in Conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this Court cited at the Bar.
30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that representation of People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case) The provisions of the constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory ignore the trifled even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
34. Coming back to the case at hand, it is not disputed that the Election Commission does have power to supervise and direct the manner of counting of votes. Till 22-9-1999 the Election Commission was of the opinion that all the ballot boxes of one polling station will be distributed to one table for counting the ballot papers and that would be the manner of counting of votes. On 28-9-1999 a notification under Rule 59-A came to be issued. It is not disputed that the Commission does have power to issue such notification. What is alleged is that the exercise of power was mala fide as the ruling party was responsible for large scale booth capturing and it was likely to lose the success of its candidates secured by committing an election offence if material piece of evidence was collected and preserved by holding-polling station wise counting and such date being then made available to the Election Tribunal such a dispute could have been raised before and decided by the High Court if the dual test was satisfied:
(i) the order sought from the Court did no have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of results as only that much part o the election proceedings had remained to be completed at that stage.
(ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition.
A perusal of the order of the High Court shows that one of the main factors which prevailed with the High Court for passing the impugned order was that the learned government Advocate who appeared before the high Court on a short notice, and without notice to the parties individually, was unable to tell the High Court if the notification was published in the Government Gazette. The power vested in the election Commission under Rule 59-A can be exercised only by means of issuing notification in the Official Gazette. However, the facturn of such notification having been published was brought to the notice of this Court by producing a copy of the notification. Main pillar of the foundation of the High court's order thus collapsed. In the petitions filed before the High Court there is a bald assertion of mala fides. The averments made in the petition do not travel beyond a mere ipsi dixit of the two petitioners that the Election Commission was motivated to oblige the ruling party in the State. From such bald assertion an inference as to mala fides could not have been drawn even prima facie. On the pleadings and material made available to the High Court at the hearing held on a short notice we have no reason to doubt the statement made by the Election Commission and contained in its impugned notification that the Election Commission had carefully considered the matter and ten decided that in the light of the prevailing situation in the State and in the interest of free and fair election and also for safety and security of electors and with a view to preventing intimidation and victimization of electors in the State, a case for direction attracting applicability of Rule 59-A for counting of votes in the constituencies of the State, excepting the two constituencies where electronic voting machines were employed, was made out. Thus, we find that the two petitioners before the High Court had failed to make out a case for intervention by the High Court amidst the progress of election proceeding and hence the High court ought not to have made the interim order under appeal though the impugned order did not have the effect of retarding, protracting, delaying or stalling the counting of votes or the progress of the election proceedings. The High Court was perhaps inclined to intervene so as to take care of an alleged aberration and maintain the flow of election stream within its permissible bounds.
8. Hon'ble Apex Court again in the case of Union of India v. Association for Democratic Reforms (2002) 5 SCC page 305, has taken the view that purity of election is fundamental of democracy. Election Commission is empowered to issue direction in respect of candidates in question. Paragraph 46 of the aforesaid judgment being relevant is quoted below:
46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that;
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation of plenary character of power is when Parliament or State legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with thie said provisions In case where law is silent, Article 324 is a reservoir of the power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhaiya Lal Omar v. R.K. Trivedi the Court construed the expression "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.
3. The word "election" includes entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking an opinion. As stated earlier, in Common Cause (A registered Society) v. Union of India , the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to flower, it becomes easy to collect tons of black money, which is for retaining power and for re-election. If on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he could be re-elected even in case where he has collected tons of money.
Presuming, as contended by the learned Senior counsel Mr. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and votes may not elect lawbreakers as law-makers and some flowers of democracy may blossom.
4. To maintain purity of elections and in particular to bring transparency in the process of election, the commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a Strategic role. The little man o this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property maybe enacted.
5. The right to get information n democracy is recognized all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1)(g) and (2) of the International government on Civil and Political Rights, which is as under:
(1) Everyone shall have the right to hold opinions without interference, (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
6. On cumulative reading of a plethora of decisions of this court as referred, to, It is clear that If the field meat for legislature and executive is left unoccupied detrimental to the Public Interest this Court would have ample Jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the executive to subserve public interest.
7. Under the Constitution, Article 19(1)(a) provides for freedom of speech and expression.' Voter's speech of expression in case of election would Include casting of votes, that is to say voter speaks out or expresses by casting vote. For this purpose information about the candidate to be selected is a must. Voter's (little man citizen right to know antecedents including criminal past of his candidate contesting election on for MP or MLA is much more fuudamental and basic for survival, of democracy. The little man may think over before making his choice of electing law breakers as law makers.
9. Hon'ble Apex Court, In the case of Election Commission Re Speclal Reference No. 1 of 2002 2002 (8) SCC 237 has considered the background in which Election Commission was set up and the duties and functions of Election Commission and that conducting of election, is the sole responsibility of Election Commission. Holding periodic, free and fair elections are part pf basic structure of our Constitution. Fixing schedule for elections either for the House of the People or Legislative Assembly's In the excusive domain of Election Commission. Relevant paragraphs 76,77,78,80 and 81 are being quoted below:
76. It Is In light of the aforesaid discussion, Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left In the hands of the Executive, but was entrusted to an autonomous Constitutional, Authority i.e, the Election Commission. It appears that since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of no consequence to provide any period of limitation for holding fresh. election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of VIIth Schedule of the Constitution Parliament, was given power subject to the provisions of the Constitution to make provisions with respect to matters relating to or In connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article 328 read with Entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or In connection with election of either House of Parliament or State Legislature, Including preparation of electoral roll. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested In the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution, The word 'election' has been Interpreted to Include all the steps necessary for holding election. In M. S. Gill v. Chief Election Commissioner (supra) A. C. Jose v. Sivan Plllal @page-SC116 and Ors. and Kanhaiva Lal Omar v. R, K. Trivedi and Ors. , it has been consistently held that Article 324 operates In the area left" unoccupied by legislation and the words "superintendence', 'control', 'direction' as well as 'conduct of all elections' are the broadest of the terms. Therefore, It is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may provided the same does not encroach upon the plenary powers of the Election Commission under Article 324.
77. We find that the Representation of the People Act, 1951 also has not provided any period of limitation for holding election for constituting fresh Assembly election in the event of premature dissolution of former Assembly. In this context, concerns were expressed by learned Counsel for one of the national political parties and one of the States that in the absence of any period provided either in the Constitution or In the Representation of the People Act, the Election Commission may not hold election at all and in that event it would be the end of democracy. It is no doubt true that democracy is a part of the basic structure of the Constitution and periodical, free and fair election in substratum of democracy. If there is no free and fair periodic election, It is end of democracy and the same was recognized in M. S. Gill v. Chief Election Commissioner. thus : (para 12)
12. A free and fair election based on universal adult franchise is the basic, the regulatory procedures vis-avis the repositories of functions and the distribution of the legislative, executive and judicative roles in the total scheme, directed towards, the holding of free elections are the specifics. The super authority is the Election Commission, the kingpin is the Returning Officer, the minions are the Presiding Officers in the Polling Stations and the electoral engineering is In conformity with the elaborate legislative provision.
78. Similar concern was raised in the case of A. C, Jose v, Sivan Filial and Ors. (1984) 2 SCC 656. In that case, It was argued that If the Commission is armed with unlimited arbitrary powers and If it happens that the persons manning the Commission shares or is wedded to a particular Ideology, he could by giving odd directions cause a political havoc or bring about a Constitutional crisis, setting at naught the integrity and Independence of the electoral process, so important and Indispensable to the democratic system. Similar apprehension was also voiced in M. S. Gill v. Chief Election Commissioner (supra). The aforesaid concern was met by this Court by observing that in case such a situation ever arises, the Judiciary, which is a watchdog to see that constitutional provisions; are upheld would step in and that is enough safeguard for preserving democracy in the country. AIR 1984 SC 921
80. So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same Is In the exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament. The Parliament Is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission cannot be taken away by law framed by Parliament. If Parliament makes any such law, it would be repugnant to Article 324. Holding periodic, free and fair elections by the Election Commission are part of the basic structure and the same was reiterated in Indira Nehru Gandhi v. Rai Narain (1975) SuppI 1 SCC 1. which run as under: .
198. This Court In the case of Kesavananda Bharatl (supra) held by majority that the power of amendment of the Constitution contained In Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be, in a position either to re-elect the old representatives or if they so choose, to change the representatives and elect in their place other representatives, Democracy further contemplates that the elections should be free, and fair so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective Instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion....
81. The same is also evident from Sections 14 and 15 of the Representation of People Act, 1951 which provide that the President or the Governor shall fix the date or dates for holding elections on the recommendation of the Election Commission'. It is, therefore, manifest that fixing schedule for elections either for the House of People or Legislative Assembly is in the exclusive domain of the Election Commission (3) Application of Article 356
10. On the touchstone of the judgments quoted above it is well settled and clear that the word "election" used in wide sense includes entire process of election which consists of several stages and it embraces many steps. The limitation on plenary character of power is when Parliament or State Legislature has made law relating to or in connection with the elections; the Election Commission is to act in conformity with said provisions. In case where law is silent. Article 324 is a reservoir of the power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. The term "Election" as occurring in Article 329 has been held to mean and include the entire process from the issue of notification under Section 14 of R.P. Act 1951, to the declaration of result. Holding of free and fair periodic election is bounden duty of Election Commission; which is inclusive of fixing schedule for elections. In furtherance of fulfillment of said objective i.e. holding of free and fair elections, even before election is notified, Election Commission is entitled to take all necessary steps in the direction of holding of free and fair elections. The word "election" has been interpreted to include all the steps necessary for holding election. Article 324 operates in the area left unoccupied by legislation and the the word " superintendence", "control" "direction" as well as "conduct of all elections" are the broadest of terms.
11. Once the authority of the Election Commission is clear, then the facts of the present case are being adverted to. In the present case directives which have been issued on 16.12.2006 is clearly referable to the power of superintendence and power of issuing directives of Election Commission. For exercising and invoking power of superintendence and power of issuing directives it is not necessary that same be exercised only when elections have been notified rather whenever elections are due and preparatory exercise for holdings free and fair elections is to be undertaken even for the said avowed purpose requisite power of superintendence and power of issuance of directives can be exercised. Limiting the said authority to be exercised by Election Commission only after election is notified, would clearly amount to encroaching the plenary powers of Election Commission under Article 324. In context of Article 324(1) the word 'election' has to be understood to include all the steps necessary for holding election, and same would be inclusive of preparatory steps also, whereas in context of Article 329, same would mean and include the entire process from the issuance of notification under Section 14 of R.P. Act 1951 to the declaration of result under Section 66 of R.P. Act -1951. Election Commission of India has full authority and jurisdiction to issue suitable directives for achieving target of free and fair elections. The directives issued on 16.12.2006 is well within the domain of Election Commission of India as said directives clearly is in reference to the context of free and fair election so that these incumbents may not be impediment in holding of free and fair elections.
12. Much reliance has been placed by the petitioners on the judgment of Hon'ble Apex Court in the case of Election Commission of India v. State Bank pf India reported in 1995 Supplementary (2) SCC, for the preposition that Article 324 does not enable the Election Commission to exercise untrammeled powers. The preposition propounded is not disputed, as in the said case Election Commission without any authority of law requisitioned the services of the officers of the Bank, which was not at all provided for under Clause (6) of Article 324 as they were not appointed to service and post under the Central Government or State Government, neither they were employees of local authorities who could be requisitioned in term of Section 159 of R.P. Act 1951 in this background action of Election Commission was held to be without any authority of law.
13. Reliance has also been placed on the Division Bench judgment in the case of Kunwar Raghuraj Pratap Singh v. Chief Election Commission reported in 1999 Allahabad 98 for the preposition that power under Article 324 cannot be exercised contrary to laws, nor should it violate the law. Said preposition is not disputed, however in the said case no written order or direction has been issued either by the Election Commission or the State Government for externment of petitioner, from the District Pratapgarh and further State Government had not passed further order to "operationalize" the direction. Both these judgments are clearly distinguishable on facts whereas In identical set of circumstances, Division Bench of this Court in the case of Laljl Shukla v. Election Commission of India. reported in 2002 (1) E&C (All) has held directive issued by Election Commission of India as Valid and quite reasonable. Relevant paragraphs 3 to 8 of aforementioned judgment is being quoted below:
The petitioners are U.P. Government Servants. Petitioner No. 1 is the S.P. City and petitioner No. 2 is Additional S.P. (Yamuna Paar) Allahabad. Both the petitioners have been posted at Allahabad and more than four years. Petitioner No. 1 jointed as Additional S.P. City on 25.04.1998 and prior to that he was posted In 42 Bn. P.A.C Nainl, Allahabad and he has admittedly completed more than four years in Allahabad District. Similarly petitioner No. 2 was posted as Additional S.P. (Yamuna Paar) Allahabad on 25.04.1998 and prior to that he was posted as Additional S.P. City Allahabad and thus admittedly he has also, completed more than four years at Allahabad.
4. The petitioners are challenging the impugned directives of the Election Commission of India dated 28.12.2001. Paragraphs 3 of the said directive states that the Commission has directed those officers who have completed more than four years of stay in the same district should be moved out of the present district but should not be posted in their home district. In compliance with this directive of the Election Commission of India, the impugned transfer order has been passed.
5. Learned Counsel for the petitioners submits that the impugned directives of the Election Commission of India is arbitrary and beyond the powers vested In It under Article 324 of the Constitution of India. We do not agree with this submission. Article 324(1) of the Constitution states as under
The 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 of 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).
6. A perusal of the said provision shows that the Election Commission is in charge of the superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of all elections of the Parliament and to the State Legislature. The words 'superintendence, direction, control' and the words 'conduct of elections' are very wide words and thus they give power to the Election Commission to do all that is necessary to'ensure free and fair elections so that the will of the people can be expressed thereby. In our opinion, the Impugned directions of the Election Commission are well within the powers conferred to it by Article 324(1) of the Constitution of India.
Learned Counsel for the petitioners submits that the Impugned directives is arbitrary. We do not agree. We have been informed by Sri Mendiratta, learned Counsel for the Election Commission that the reason for issuance of the above directive was that those officer who have completed four years in a particular district may have developed liaison with the politicians and other influential persons of the district and hence it would be conducive for ensuring fair elections that they should be moved out. Sri Mendiratta also stated that the same directives was Issued in the election of 1998 and all elections thereafter which were conducted by the Election Commission. The same directives have also been issued for all other State where elections are being currently held, namely, Uttranchal, Manlpur and Punjab.
7. We are of the opinion that the Impugned directive of the Election Commission is valid as it does not discriminate between different officers but a uniform directive has been Issued for all the officers who have completed four years of stay in the same district, to move out. This directive appears to be quite reasonable. In our opinion this Court does not sit in appeal over such orders of the Election Commission and all that it can see is whether the directive is absolute, whimsical, arbitrary or mala fide. No allegation of malafide has been made in this petition against the Election Commission.
8. That Tata Cellular v. Union of India reported In It has been held by the Supreme Court that the scope of interference in administrative orders by the Court is very limited. In our opinion, the impugned order is not a judicial or quasi-Judicial order but it is purely administrative in nature. Hence, the scope of interference by the Court, in such case is limited, and it can only see whether the order is arbitrary or malafide. We are of the opinion that it does not suffer from any such defect. Merely because this Court could have taken a different view that is not a good reason for interfering with such administrative order. This Court is not testing the wisdom of the Election Commission. The Election Commission is a specialized body which is politically neutral and has experience in conducting elections and ordinarily it is for the Commission to decide what would be conductive for a fair election. Moreover, this Court does not ordinarily' interfere with the policy matters unless the policy is clearly illegal.
14. Moreover in the present case the State of Uttar Pradesh being aware of the fact that elections are due, accepted aforesaid directives which have been issued. Petitioners are members of disciplined force-and once State Government in principle accepted said directives and proceeded to implement the same and petitioners have been thereafter transferred, then petitioners who hold transferable post and transfer order having been passed by the competent authority, then petitioners legitimately can have no grievance on this score, as here policy decision has-been taken for larger good that is for holding free and fair elections which is heart and sole of the democracy. At this juncture the view point of Hon'ble Apex Court qua transfer is being looked into. In the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. reported in 1995 (71) FLR 1011 (SC) the Hon'ble Apex Court held as under:
A Government servant holding a transferable post has no, vested right to remain posted at one place or the other he is liable to be transferred from one place to the other. Transfer order issued by, the competent authority do not violate any of his legal rights. Even If a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked" these aspects In interfering with the transfer orders.
15. In the case of State of U.P. v. Gopardhan Lal reported In 2004 (101) FLR 586 (SC) Hon'ble Apex Court has field as under:
7. it is too late in the day for any government servant to contend that once appointed or posted In a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee Is not only an Incident Inherent in the terms of appointment but also implicit as an essential condition of service In the absence of any specific Indication to the contra in the law governing or conditions of services. Unless the order If transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order or transfer cannot lightly be Interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer polices at the best may afford an opportunity to the office or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place In public Interest and Is found necessitated by exigencies of service as long as the official status Is not affected adversely and there Is no Infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable rights, unless as noticed supra shown to be vitiated by malafide or is made in violation of any statutory provisions.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirement of the situation concerned. This Is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to Inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the. mere making of It or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
9. The very questions involved, as found noticed by the High Court in these case being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspapers reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basis concepts and well-recognised powers and jurisdiction inherent in the various authorities In the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create In ensuring and effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be to seek relief even In relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when property approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties.
16. Hon'ble Apex Court in case of Union of India and Ors. v. Janardhan Debanath and Anr. has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is malafide. Relevant extract is being quoted below:
The High Court while exercising jurisdiction under Article 226 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service. Necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the Interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan .
17. The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal v. Union of India reported, in 2005(107) FLR 37 In following terms.
It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in ; regard to members of armed forces Is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made.
Consequently, in the present case once petitioners are member of disciplined force, petitioners have admittedly stayed for more than three years, transfer order has been passed by competent authority, and no statutory rules and regulations have been violated then there is no scope of interference.
18. Consequently, both the writ petitions are dismissed. Director General of Police is directed to implement the directives issued by the Election Commission of India forthwith.
19. No orders as to cost.