Kerala High Court
Krishna Kumar.M vs The Chief Election Commission on 29 April, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 3RD DAY OF MAY 2016/13TH VAISAKHA, 1938
WP(C).No. 16936 of 2016 (N)
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PETITIONER:
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KRISHNA KUMAR.M,
S/O.MURALEEDHARAN NAIR, MANOJ BHAVAN,
KODUMAN,ADOOR,PATHANAMTHITTA.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENTS:
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1. THE CHIEF ELECTION COMMISSION,
NIRVAJAN SADAN,ASOKA ROAD,NEW DELHI-110001.
2. THE CHIEF ELECTORAL OFFICER,(KERALA),
THIRUVANANTHAPURAM-695033.
3. THE DISTRICT COLLECTOR,
PATHANAMTHITTA-689645.
4. THE DEPUTY COLLECTOR,(GENERAL),
COLLECTORATE,PATHANAMTHITTA-689645.
5. THE ASSISTANT RETURNING OFFICER AND
BLOCK DEVELOPMENT OFFICER,
114 KONNI,LAC,PATHANAMTHITTA DISTRICT-689691.
BY GOVERNMENT PLEADER SRI. S. JAMAL
BY SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-05-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 16936 of 2016 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE NOMINATION PAPERS SUBMITTED BY THE
PETITIONER BEFORE THE DEPUTY COLLECTOR,
COLLECTORATE, PATHANAMTHITTA ON 29/4/2016
P2 TRUE COPY OF THE CHELAN DATED 29/4/2016
P3 TRUE COPY OF THE NOTICE DATED 29/4/2016 ISSUED BY THE
ASSISTANT RETURNING OFFICER
P4 TRUE COPY OF THE RECEIPT OF NOMINATION PAPER AND
NOTICE OF SCRUTINY ISSUED BY THE ASSISTANT RETURNING
OFFICER
P5 TRUE COPY OF THE NOTICE DATED NIL.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.S. TO JUDGE
JJJ
ALEXANDER THOMAS, J.
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W.P.(C).No. 16936 of 2016
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Dated this the 3rd day of May, 2016
J U D G M E N T
According to the petitioner, he aspired to contest the forthcoming State assembly elections scheduled to be conducted on 16.5.2016 from the Konni constituency. That when he went to submit Ext.P-1 nomination papers on 29.4.2016, certain defects were noted by the 5th respondent and the petitioner was instructed to resubmit his nominations after curing the defects on 30.4.2016, it is alleged. That when the petitioner went on 30.4.2016 to re-submit his nomination papers after curing the defects, the 4th respondent refused to accept the same on the ground that the last date for receiving the nominations has expired on 29.4.2016.
According to the petitioner, the stand taken by the respondents in not accepting his nomination papers is illegal and unjust. In the light of these facts and circumstances, the petitioner has chosen to file the instant Writ Petition (Civil) with the following prayers;
"i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to accept Ext.P1;
W.P.(C)16936/16 - : 2 :-
ii. Issue a writ of mandamus or any other appropriate writ, order
or direction directing the respondents to permit the petitioner to contest the election to the Assembly to the Kerala State to be held on 16.05.2016 from Konni constituency. iii. Issue an interim direction directing the respondents to accept Ext.P1 and permit the petitioner to contest the election, until the disposal of the Writ Petition.
iv. Award costs and
v. Any other relief this Hon'ble Court deems fit."
2. Sri.Murali Purushothaman, the learned Standing Counsel for the Election Commission of India appearing on behalf of the respondent Electoral authorities has filed a statement dated 3.5.2016 in this case, which reads as follows:
"STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT
1. The above Writ Petition is filed challenging the non-acceptance of the nomination of the Petitioner.
2. It is submitted that the Writ Petition under Article 226 of the Constitution of India is not maintainable in view of the provisions contained under Article 329(b) of the Constitution of India.
3. in viewItofisthe following decisions;
submitted that the above Writ Petition is not maintainable i. N.P.Ponnuswami v. Returning Officer, Namakhal Constituency (AIR 1952 SC 64) (Constitution Bench) ii. Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others (AIR 1978 SC 851). iii. Lakshmi Charan Sen v. A.K.M. Hassan Uzaman (AIR 1985 SC 1233).
iv. Anugrah Narain Singh v. State of UP ((1996) 6 SCC 303). v. C. Subrahmanyam v. K. Ramanjaneyullu and others ((1998) 8 SCC 703).
vi. Election Commission of India v. Ashok Kumar ((2000) 8 SCC
216).
vii. Manda Jaganath v. K.S. Rathnam (AIR 2004 SC 3600). viii. Harnek Singh v. Charanjith Singh ((2005) 8 SCC 383).
W.P.(C)16936/16 - : 3 :-
ix. Raja Ram Pal v. Hon'ble Speaker (2007) 3 SCC 194. x. Kurapati Maria Das v. Dr. Ambedkar Seva Samajam (2009) 7 SCC 387) xi. Renjith T.C. v. State Election Commissioner and others (2016 1 KLT 157) xii Adv. Joice George v. Election Commissioner of India and others (2014 (2) KLT 230)
4. The list of contesting Candidates was published after 3 p.m. on 02.05.2016. Symbols were allotted to contesting candidates after 3.00 pm on 02.05.2016. The postal ballot papers have to be send to service electors and as soon as the list of contesting candidates is drawn up the postal ballot papers for service voters have to be printed and the printing has to be completed within 24 hours after the last hour for withdrawal of candidatures and their dispatch to service voters are to be completed within the next 24 hours. The postal ballot papers are in the process of printing and the election process has reached an advanced stage and any interference at this stage will interrupt, obstruct and delay the progress of the election and stall the election process.
dismissInthe Writ Petition as not maintainable view of the above, this Hon'ble Court may be pleased to
3. Heard Sri.B.Krishna Mani, learned counsel appearing for the petitioner and Sri.Murali Purushothaman, learned Standing Counsel for the Election Commission of India appearing on behalf of the Electoral authorities concerned.
4. Article 329 of the Constitution of India provides as follows:
"Art.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 W.P.(C)16936/16 - : 4 :-
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."
5. The question as to whether there is any conflict between the jurisdiction conferred on the High Courts by Art.226 of the Constitution and the embargos engrafted by Art.329 of the Constitution and the question as to the co-existence of these provisions, came up for consideration before a Constitution Bench of the Apex Court in the celebrated case in N.P.Ponnuswami v.
Returning Officer, Namakhal Constituency, reported in AIR 1952 SC 64. The legal position settled in Ponnuswami's case supra was subsequently extensively dealt with and amplified by yet another Constitution Bench of the Supreme Court in the celebrated ruling in Mohinder Singh Gill v. Chief Election Commissioner, reported in AIR 1978 SC 851 = (1978) 1 SCC 405. The effect of these decisions was subsequently considered by a three-Judge Bench of the Supreme Court in the case Election Commission of India v. Ashok Kumar & Ors. reported in (2000) 8 SCC 216. In para 18 to 21 thereof, their Lordships of the Supreme Court had held as follows:
"18. ..... The plenary power of Article 329 has been stated by the Constitution Bench to be founded on two principles:
W.P.(C)16936/16 - : 5 :-
(1) the peremptory 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 provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution.
On these principles the conclusions arrived at in Ponnuswami case [AIR 1952 SC 64] were so stated in Mohinder Singh Gill case [(1978) 1 SCC 405] (SCC p. 426, para 26) "(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised 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.
(2) In conformity with this principle, the scheme of the 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' and 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, the Constitution Bench in Mohinder Singh Gill case [(1978) 1 SCC 405] could not resist commenting on Ponnuswami case (AIR 1952 SC 64) 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 situations pointed out at, but left unexplored in Ponnuswami case (AIR 1952 SC 64).
20. Vide para 29 in Mohinder Singh Gill case [(1978) 1 SCC 405]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 [(1978) 1 SCC 405] points out that there may be a few controversies which may not attract the W.P.(C)16936/16 - : 6 :-
wrath of Article 329(b). To wit:
(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 objectivity 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 far 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 [(1978) 1 SCC 405] 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 visualise. 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 of 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 progress of election. So also there may be 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 of such aberrations as can be taken care of only at that moment failing which the flowing 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 W.P.(C)16936/16 - : 7 :-
the facts and circumstances be such that the wrong done shall not be undone after the result of the 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.
6. Therefore, in the light of the principles laid down by the Apex Court in the aforementioned cases, the question is that if this Court permits its intervention in this matter, whether such intervention of this Court will have the effect of interrupting, obstructing or protracting the election proceedings, etc. and if the answer to this question is in the affirmative, then the judicial remedy should be postponed till after the completion of such proceedings.
7. Going by the prayers in this Writ Petition, as the election process has already been set in motion and the election to the State Assembly is now scheduled to be held on 16.5.2016, there is no doubt for this Court to conclusively say that if the intervention of this Court is permitted by allowing the payers in this Writ Petition, then it will certainly have the effect of interrupting and protracting the election proceedings already set in motion and therefore, it is for the petitioner to take recourse to the remedies, if any, as provided in Sec.100(1)(c) of the Representation of People Act, 1951 W.P.(C)16936/16 - : 8 :-
immediately after the completion of the election process. In this view of the matter, this Court is of the considered opinion that entertainment of this Writ Petition is clearly barred by the embargo created by Art.329(b) of the Constitution of India and Sec.23(3) of the Representation of People Act, 1951. However, it is made clear that the petitioner will be at liberty to take recourse to the remedies, if any, provided as in Sec.100(1)(c) of the Representation of People Act, 1951, immediately after the completion of the election process.
In the light of these aspects, the Writ Petition (Civil) stands dismissed as not maintainable.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True copy///
P.S. To Judge.