Gujarat High Court
Natvarsinh Sardarsinh Mahida vs The Gujarat State Election Commission on 19 February, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/2242/2021 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2242 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/
and
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATVARSINH SARDARSINH MAHIDA
Versus
THE GUJARAT STATE ELECTION COMMISSION
================================================================
Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1,2,3
MR MIHIR JOSHI, SR.ADVOCATE with MS ROOPAL R PATEL for the
Respondent(s) No. 1
MS MANISHA LAVKUMKAR SHAH, GOVERNMENT PLEADER with MS
AISHVARYA GUPTA, AGP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 19/02/2021
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(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."
- Sir Winston Churchill The Supreme Court, in the case of Mohinder Singh Gill and others vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851, quoted the aforesaid statement of Sir Winston Churchill with approval and thought fit to add the following to the aforesaid statement :
"If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you'."
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs :
"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or prohibition or any other Page 2 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT appropriate writ, order or direction and to quash and set aside the circular - Annexure-D dated 23.01.2021 bearing No.ELC-C.O.C.-3(7)- 012021-K issued by the Gujarat State Election Commission, so far as it relates to sr.no.8 in the schedule of programme by directing the respondents to keep uniform one date for counting of votes at the elections of the local bodies and/or to keep the date of voting and date of declaration of result as one and the same;
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or prohibition or any other appropriate writ, order or direction and to restrain the respondents, their agents and servants from commencing the counting of votes at the elections of the municipal corporations on 23.02.2021 till and until the elections of the District Panchayats, Taluka Panchayats and Municipalities are over, by an appropriate writ, order or direction;
(C) Pending admission and final disposal of the present petition, be pleased to restrain the respondents, their agents and servants from fixing and keeping the different dates of counting in case of the municipal corporations, and different date of counting in case of the elections of the District Panchayats, Taluka Panchayats and the Municipalities;
(D) That this Hon'ble Court will be pleased to issue interim direction, directing the respondent no.1 to fix the date of counting in election of all the local bodies including the Municipal Corporations, District Panchayats, Taluka Panchayats and the Municipalities to one and uniform date, Page 3 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT by way of interim direction, till and pending hearing and final disposal of this petition;
(E) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. The case put up by the writ-applicants may be summarised as under :
2(1) The three writ-applicants are residents of the Taluka Borsad, District Anand. The writ-applicant no.1 is the former President of the District Panchayat, Anand, and the writ-applicant no.2 is the former President of the Borsad Taluka Panchayat.
2(2) The subject matter of challenge in the present writ-application is the Circular issued by the State Election Commission dated 23rd January 2021, declaring the election programme for the ensuing elections to the 6 Municipal Corporations, 81 Municipalities, 31 District Panchayats and 231 Taluka Panchayats in the State of Gujarat.
2(3) The impugned Circular providing for the election programme reads thus :
"The State Election Commission has, on 23.01.2021, declared that the date of general election to the 6 Municipal Corporations of the State as well as the bye-election of two Page 4 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT seats of the Junagadh Municipality is scheduled on 21.02.2021, whereas the date of general election to the 81 Municipalities, 31 District Panchayats and 231 Taluka Panchayats as well as to the seats remained vacant from time to time is scheduled on 28.02.2021. Therefore, the Code of Conduct for the candidates and for the political parties comes into force from 23.01.2021 for the constituencies under election. The ruling party is also required to follow and implement the Code of Conduct.
"ELECTION PROGRAMME
Sr. Description Election Programme
No.
Municipal District/ Taluka
Corporations Panchayats/
Municipalities
1 Date of declaration of the 23.01.2021 23.01.2021
election
2 Date of issuance of the Circular 01.02.2021 08.02.2021
3 Last date for filing the 06.02.2021 13.02.2021
nomination
4 Date for verification of the 08.02.2021 15.02.2021
nomination
5 Last date for withdrawing the 09.02.2021 16.02.2021
nomination
6 Date of election 21.02.2021 28.02.2021
(Sunday) (Sunday)
From From
7:00 a.m. to 7:00 a.m. to 6:00
6:00 p.m. p.m.
7 Date of re-election (If necessary) 22.02.2021 01.03.2021
8 Date of counting the votes 23.02.2021 02.03.2021
9 Date of completion of the 26.02.2021 05.03.2021
election process
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2(4) It is pointed out by the writ-applicants that the date for the election so far as the six Municipal Corporations is concerned, is scheduled on 21st February 2021, and the counting and declaration of the result is scheduled on 23 rd February 2021. On the other hand, the date for the election so far as the District Panchayats, Taluka Panchayats and Municipalities is concerned, is scheduled on 28th February 2021 and the counting and declaration of the result is scheduled on 2nd May 2021.
2(5) According to the writ-applicants, there should not be two different dates for the declaration of the election result. In other words, the result of the election to the 6 Municipal Corporations, 81 Municipalities, 31 District Panchayats and 231 Taluka Panchayats should be on one particular day and that can be on 2nd March 2021. According to the writ-applicants, if the election results of the six Municipal Corporations are declared prior to the election of the District Panchayats, Taluka Panchayats and Municipalities, then the same may influence the heart and mind of the voters in the rural areas. This, according to the writ-applicants, would hamper the concept of free and fair election.
3. In such circumstances referred to above, the three writ-applicants have come up with the present writ-application.
SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANTS :
4. Mr.Champaneri, the learned counsel appearing for the writ-applicants, at the outset submitted that the present Page 6 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT writ-application has not been filed to postpone the elections. It has not been filed questioning the legality, validity and authority of holding and conducting the election. It is not even filed seeking to quash the election programme. According to Mr.Champaneri, the present writ-application has been filed to ensure free and fair election and to subserve the good for holding and conducting the free and fair election and to provide free, fair and frank exercise of right to vote by all the voters without being influenced in any manner. Mr.Champaneri would submit that the writ-application is restricted only to the fixing of different dates of declaration of result of the election of the Municipal Corporations, and on the other hand, the result of the election of the District Panchayats, Taluka Panchayats and Municipalities.
5. Mr.Champaneri would submit that the State Election Commission has been conferred with plenary powers for the purpose of conducting free and fair election. The election programme referred to above reflects total non-application of mind. According to Mr.Champaneri, the date of counting could not have been a part of the Circular dated 23 rd January 2021, providing for the election programme. In this regard, Mr.Champaneri invited the attention of this Court to Rule 5 of the Bombay Provincial Municipal Corporations (Conduct of Election) Rules, 1994 (for short, 'the Rules 1994'). Rule 5 is with respect to the public notice of the intended election. According to Mr.Champaneri, Rule 5 is silent so far as the date of declaration of the result of the election is concerned. Therefore, according to Mr.Champaneri, the impugned Circular is not in accordance with Rule 5 of the Rules 1994.
Page 7 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT6. Mr.Champaneri, thereafter, invited the attention of this Court to Rule 55 of the Rules 1994. Rule 55 is with respect to the time and place for counting of votes. According to Mr.Champaneri, the date, so far as the declaration of the result of the election is concerned, has to be in accordance with Rule 55 of the Rules 1994.
7. According to Mr.Champaneri, the impugned action suffers from legal malice and/or absolute arbitrariness based on no germane grounds or reasons necessitating fixing the date of counting in case of the election of the Municipal Corporations prior to the date of voting in case of the election of the District Panchayats, Taluka Panchayats and Municipalities. It is argued that the writ-applicants are seriously prejudiced and aggrieved by such arbitrary decision of fixing different dates. According to Mr.Champaneri, the State Election Commission has not acted freely and fairly, thereby failed to discharge its consitutional obligation to ensure free and fair election.
8. Mr.Champaneri brought to the notice of this Court that in the year 2015 the very same issue was raised before this High Court. The matter had reached upto the Supreme Court and the Supreme Court disposed of the Special Leave to Petition along wtih the Intervention Applications vide order dated 29 th October 2015. The order reads thus :
"I.A.No.4/2015 in SLP(C)NO.24950/2015 This application is filed by the petitioner with the prayer as follows:Page 8 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
"a) Stay the operation of the circular dated 23.10.2015 bearing number Sr.No.ELC-COC-3(7)-102015-K issued by State Election Commission, Gujarat for holding elections in six Mahanagarpalikas in Gujarat;
b) Stay the elections to the six Mahanagarpalikas in Gujarat pending adjudication of the present special leave petition;
c) Pass any such order or orders as this Hon'ble Court may deem fit and proper in the interest of justice"
We are not inclined to grant any interim order as prayed for. We only observe that the result of the elections to be held would be subject to the outcome of the instant Special Leave Petition. However, we notice from the Press Note dated 23.10.2015 issued by the State Election Commission that elections to the Municipal Corporations and Municipalities/ Panchayats are scheduled to be held on 22.11.2015 and 29.11.2015 respectively and the dates of counting are given as 26.11.2015 and 2.12.2015 respectively.
The applicant raised certain objections to such process of counting on the ground that announcement of the result of the Municipal Corporation election prior to the holding of elections to the other bodies is likely to have some undesirable impact on the election of such other bodies.
Page 9 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENTWe do not propose to record any conclusion on this controversy but when this matter was heard, Mr.Mihir Thakor, learned senior counsel appearing on behalf of the State Election Commission made a statement that to allay the fears of the applicant, the Election Commission would undertake the counting of the ballots polled at the election of the Municipal Corporations, Municipalities and Panchayats only after the conclusion of the polling of all the bodies.
I.A.No.4/2015 stands disposed of accordingly.
IA No.5/2015 in SLP(C)28979/2015 In view of the order in I.A.No.4/2015 in SLP(C)No.24950/ 2015, I.A.No.5/2015 in SLP(C)No.28979/2015 also stands disposed of.
I.A.No.2 in W.P.(C)No.752/2015 Accepting the reasons stated in the application (I.A.No.2/2015), the application for recall of the order dated 26.10.2015 which was dismissed for non-prosecution, is allowed. The writ petition is restored to its original number."
9. Mr.Champaneri would submit that in the year 2015 a statement was made by the learned senior counsel appearing for the State Election Commission before the Supreme Court that to allay the fears of the applicant, the Election Commission would undertake the counting of the ballots polled at the election of the Page 10 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT Municipal Corporations, Municipalities and Panchayats only after the conclusion of the polling of all the bodies. In view of such statement made before the Supreme Court, the Supreme Court had no occasion to go into this issue on merits.
10. Mr.Champaneri would submit that this time also with a view to allay the fears of the present writ-applicants, the Election Commission should undertake the counting of the ballots polled at the election of the Municipal Corporations, Panchayats and Municipalities only after the conclusion of the polling of all the bodies.
11. In such circumstances referred to above, Mr.Champaneri prays that there being merit in his writ-application, the same be allowed and the reliefs as prayed for may be granted.
SUBMISSIONS ON BEHALF OF THE STATE ELECTION COMMISSION :
12. On the other hand, this writ-application has been vehemently opposed by Mr.Mihir Joshi, the learned senior counsel, assisted by Ms.Roopal Patel, the learned advocate appearing for the State Election Commission. Mr.Joshi, at the outset, submitted that the writ-application is not maintainable in view of the specific bar to interference by courts in the electoral matters as contained in the Constitution of India. According to Mr.Joshi, even if the writ-application is held to be maintainable in law, the writ-applicants have no legal right of any nature to question the election programme. It is argued that Page 11 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT the Corporation, Panchayat and Municipality are three different institutions of local self-government and they operate in three different spheres and are governed by three different enactments.
13. Mr.Joshi would submit that the entire edifice of this writ-application is based on the personal perception of the three writ-applicants that if the results of the election to the six Municipal Corporations are declared prior to the election of the Panchayats and Municipalities, such result may influence the minds of the voters in the rural areas. According to Mr.Joshi, such a fear or perception is absolutely vague and without any basis.
14. Mr.Joshi would submit that there are around 4 crore voters in the State of Gujarat. The three writ-applicants have no reason to believe that the result of the Municipal Corporations may influence the voters in the rural areas. The apprehension is based merely on conjectures and surmises and the same cannot be the basis of bringing a writ-application of the present nature before the High Court.
15. Mr.Joshi would submit that there are no allegations of malafide levelled by the writ-applicants against the State Election Commission in so far as the fixing of the election programme is concerned. The State Election Commission has kept in mind the Covid guidelines and many other asapects while fixing the election programme by way of the impugned Circular.
Page 12 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT16. Mr.Joshi would submit that the imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the writ jurisdiction of the High Court. The more imminent such process, the greater ought to be the reluctance of the Court to do anyting, or direct anything to be done, which may hamper the process in some manner or the other. He would submit that the jurisdiction of this Court would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates and the declaration of the result of such poles on different 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.
17. Mr.Joshi also brought to our notice that in the year 2008 an identical petition seeking similar reliefs was filed in this High Court being the Special Civil Application No.2533 of 2008. A Coordinate Bench of this Court declined to interfere and had rejected the writ-application vide order dated 16 th February 2008.
18. Mr.Joshi, thereafter, invited the attention of this Court to few relevant averments made in the affidavit-in-reply filed on behalf of the State Election Commission. Mr.Joshi laid much emphasis on the averments made in paragraph 11, which reads thus :
Page 13 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT"I further say and submit that, the contentions of the petitioners are hypothetical, pure conjectures and surmises can even be gathered from the fact that, issues of the multiple local authorities as units of self Government would be completely different and distinct. Further they have completely different voters' profile constituency wise. I say and submit that, issues which may concern the voters residing in Municipal Corporation would drastically different from the voters of District/Taluka Panchayats and Municipalities. It may be appraised that, with the passage of time, District/Taluka Panchayats are having almost having similar population/geographical areas with that of Municipalities and therefore, their issues may be of similar kind. To substantiate I may give examples as to how the interest/problems of urban and rural areas are different and distinct. People who are rural voters would like to see that, crop of groundnut may fetch maximum income and as against that, urban voters would like to see that, oil prices do not go up. Same would apply to vegetables and other agriculture produce also. Farmers want maximum price of their produce and seller in the urban areas may like to see that, they can purchase the produce from farmers at the cheapest rate, Similarly so far as water facilities are concerned the rural voters would be concerned about having adequate irrigation facilities, whereas, urban voters would like to ensure regular water supply in their homes directly. Besides, these problems, other issues concerning service providers like BSNL, electricity roads etc. would be different and distinct in rural as well as urban areas. I say and submit that, from this angle also, the bald apprehension of Page 14 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT the petitioners that, voters of other local bodies shall be influenced if the counting of votes in respect of Municipal Corporations takes in prior point of time, is not sustainable and is required to be turned down. And as a matter of fact, this Honourable Court had turned down similar contention vide the said order dated 15/02/2008.
In the premises aforesaid, established long practice in State of Gujarat supported by the order dated 15/02/2008 passed by this Honourable Court, for the counting of votes of Municipal Corporations on one hand and District/Taluka Panchayats and Municipalities on the other hand cannot be faulted for and especially when the petitioner has not substantiated his contentions even tacitly. The present petition therefore is required to the dismissed on the following counts:
(I) Bar of interference in electoral matters as contained in Article 243-O and Article 243ZG of the Constitution of India, (II) Petitioners have no legal and/or fundamental right, (III) Petitioners seems to have resorted to utilize judicial process for their political perceptions, (IV) Petition is based only on conjectures and surmises, (V) Devoid of any merits, (VI) In order to run smooth election process."Page 15 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
19. In the last, Mr.Joshi pointed out that in the elections which had taken place in the years 2005, 2008, 2010 and 2013 respectively, the date of declaration of the results were different.
20. Mr.Joshi, in support of his aforesaid submissions, has placed strong reliance on two decisions of the Supreme Court :
(i) Election Commission of India vs. Union of India and others, 1995 (Supp.) 3 SCC 643;
(ii) A.K.M.Hassan Uzzaman and others vs. Union of India and others, (1982) 2 SCC 218.
21. In such circumstances referred to above, Mr.Joshi prays that there being no merit in the present writ-application, the same may be rejected.
SUBMISSIONS ON BEHALF OF THE STATE OF GUJARAT :
22. Ms.Manisha Lavkumar Shah, the learned Government Pleader, assisted by Ms.Aishvarya Gupta, the learned AGP appearing for the State, has also vehemently opposed the present writ-application. Ms.Shah would submit that the writ-application has been filed keeping in mind the urban voting pattern and the rural voting pattern. The writ-applicants being political leaders affiliated with one political party have a fear in their mind that the results of the six Municipal Corporation may influence the mind of the voters in the rural areas and that may Page 16 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT affect the rural voting pattern. According to Ms.Shah, this can hardly be a ground to come to the High Court with a prayer that the date of the declaration of the result of all the elections should be uniform. According to Ms.Shah, this writ-application deserves to be rejected with heavy costs. Ms.Shah has, by and large, adopted all the submissions as canvassed by Mr.Joshi, the learned senior counsel appearing for the State Election Commission.
ANALYSIS :
23. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the writ-applicants are entitled to any relief as prayed for in the present writ-application.
24. Before adverting to the rival submissions canvassed on either side, we must look into few relevant provisions of law.
(i) Articles 243-O, 243-ZG and 324 respectively of the Constitution of India read thus:
"243-O. 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 Page 17 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT constituencies made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."
"243ZG. 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 243ZF shall not be called in question in any court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
"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 Page 18 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT 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 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 by rule determine:Page 19 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
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 th 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)."
(ii) Rules 15 and 55 respectively of the Gujarat Panchayats Elections Rules, 1994, read thus :
"15. Scrutiny of nomination papers.-- (1) On the date fixed for the scrutiny of nomination under clause (b) of sub rule (2) of rule 9, the candidates, their election agents one proposer, of each candidate and one other person duly authorised in writing by each candidate, but no other person, may stand at such time and place as the returning officer may appoint and the returning officer shall give them Page 20 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT all reasonable facilities for examining the nomination papers of all candidates which have been delivered other than those which have been rejected by the returning officer under the proviso to sub rule (2) or under sub rule (6) of rule
12. (2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary inquiry if any, as he thinks necessary, reject any nomination paper on any of the following grounds, namely :--
(a) on the date fixed for scrutiny of nominations, the candidate is either not qualified or disqualified for being chosen to fill the seat under the Act or any other law for the time being in force; or
(b) that the proposer is disqualified from subscribing a nomination paper; or
(c) that there has been a failure to comply with any of the provisions of rules 12 or 13; or
(d) that the candidate or the proposer or any seconder is not identical with the person whose electoral number is given in the nomination paper as number of such candidate or proposer or a seconder, as the case may be; or Page 21 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
(e) that the signature of the candidate or any proposer or any seconder on the nomination paper is not genuine or has been obtained by fraud.
(3) Nothing contained in clauses (b), (c) or (d) of sub-rule 92 shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.
Explanation.- For the purposes of this sub-rule a failure to complete, or a defect in completing the declaration, as to symbols in nomination paper in Form 4 shall not be deemed to be defect of a substantial character.
(5) The Returning Officer shall hold the scrutiny on the appointed date in this behalf under rule 9 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Page 22 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENTProvided that in case an objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day immediately following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection and supply a certified copy of the order to the candidate as soon as possible after the scrutiny is over, even in the absence of an application from him and without any cost.
(7) For the purposes of this rule, the production of a certified copy of an entry in the list of voters for the time being in force of any electoral division shall be conclusive evidence of the right of any voter named in that entry to contest the election or to subsribe to a nomination paper, as the case may be, unless it is provided that the candidate or, as the case may be, the proposer is disqualified, within the meaning of sub section (2) of section 28 of the Act, to contest the elections.
(8) The decision of the Returning Officer regarding acceptance or rejection of the nomination paper shall be final."Page 23 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
"55. Time and place for counting of votes.-- The returning officer shall, at least one week before the date, or the first of the dates, fixed for the poll, appoint the place where the counting of votes will be done and the date and time at which the counting will commence and shall give notice in Form 24 of the same in writing to each candidate or his election agent:
Provided that if for any reason the returning officer finds it necessary so to do, he may alter the date, time and place so fixed, or any of them, after giving notice of the same in writing to each candidate or his election agent:
Provided that if for any reason the returning officer finds it necessary so to do, he may alter the date, time and place so fixed or any of them, after giving notice of the same in writing to each candidate or his election agent."
25. We may now look into the two judgments upon which reliance has been placed by the learned senior counsel appearing for the State Election Commission.
(i) In A.K.M. Hassan Uzzaman (supra), the Supreme Court (majority judgment) observed as under :
"The High Court acted within its jurisdiction in entertaining the writ petition and in issuing a rule nisi upon it, since the petition questioned the vires of the laws of election. But, with respect, it was not justified in passing the interim Page 24 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT orders dated February 12 and 19, 1982 and in confirming those orders by its judgment dated February 25, 1982. Firstly, the High Court had no material before it to warrant the passing of those orders. The allegations in the writ petition are of a vague and general nature, on the basis of which no relief could be granted. 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 powers 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 Courts 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 postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be Page 25 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT 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."
(ii) In Election Commission of India (supra), the Supreme Court made the following observations in paragraph 8 :
"While we reiterate the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not to be interfered with by the courts, we must also indicate that there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2-8-1993 is justiciable on that principle of judicial review is eminently arguable. But one thing seems clear: 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. On this aspect we have reservations about the permissibility of the various interlocutory orders of the High Courts which Page 26 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT may have the effect and implications of compelling the Election Commission to conduct polls on particular dates and also to follow those events up to their sequential and logical ends."
26. We shall now look into the judgment of this Court rendered in the case of Gujarat Pradesh Congress Committee through General Secretary vs. State of Gujarat (Special Civil Application No.2533 of 2008, decided on 15 th February 2008), upon which significant reliance has been placed by the learned senior counsel appearing for the State Election Commission. The judgment is quoted below :
"1. This petition has been preferred by the petitioner, a political party through its Secretary, seeking a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction holding and declaring that Notifications dated 21.1.2008 and 24.1.2008, fixing the dates of counting of votes qua the elections held for municipalities and the date of voting at elections for Panchayat is ex-facie arbitrary and ultra vires. The petitioner has further prayed for a direction to the State Election Commission to defer counting of votes at Municipal Elections which is scheduled on 19.2.2008 to 21.2.2008.
2. Heard Mr. B.M.Mangukia, learned Advocate, appearing on behalf of the petitioner. The thrust of the principal contention is based on the distinction between Rule-5 and Rule-52 of the Gujarat Municipalities (Conduct of Election) Page 27 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT Rules, 1994. It is submitted that under Rule-5 of the said Rules various dates from filing of nominations till the point of time of holding of Poll have been mandatorily provided for, as against which under Rule-52 of the said Rules the fixing of date, time and place of counting of votes is not statutorily provided except to the extent of one week before the date fixed for the poll. However, Proviso under Rule-52 of the said Rules also carves out an exception permitting the Returning Officer to reschedule the date, time and place of counting of votes for any reason that the Returning Officer thinks it necessary to do so. Referring to the two notifications, first one dated 21.1.2008 relating to elections to municipalities wherein the election schedule stipulates polling on 17.2.2008 and counting of votes on 19.2.2008, and the second notification dated 24.1.2008 relating to elections to Local Self Governments wherein polling is scheduled on 20.2.2008, it was submitted that despite the fact that in both the cases the election schedule prescribes completion of the process by 25.2.2008 the State Election Commission has purposefully fixed the schedule in such a manner that the results of elections to municipalities would have a material bearing on the elections which are to be held on the subsequent day for the Local Self Government Bodies. It is further alleged that this has been done at the instance of the ruling party/State Government. Referring to the constitutional provisions relating to the appointment, status and powers of the Election Commissioner it was submitted that the said Authority is required to be fair and impartial in conduct of polls.Page 28 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
3. Mr. S.N.Shelat, learned Senior Advocate, appearing on behalf of the State Election Commissioner pointed out that the petitioner has sought mandamus which presupposes that a legal right is vested in the petitioner which is not being satisfied. That in fact, the petition was based only on a political perception without there being any basis for the averments made in the petition. That the units going to polls for the municipalities and the Local Self Government bodies are different, located in different parts of the State, and there could be no presumption that voting pattern or the results to the election in case of one unit would affect the voting pattern in another unit. It was, therefore, submitted that the petition was required to be rejected.
4. Mr. N.V.Anjaria, learned Advocate, appearing for respondent No.2, adopted the contentions raised on behalf of the respondent No.3 - Authority and further submitted that once the election process was on this High Court should not undertake any exercise which would either result in disruption or postponement of the schedule fixed.
5. Learned Advocate General, appearing for the respondent No.1, invited attention to the three decisions of the Apex Court, viz. (i) ELECTION COMMISSION OF INDIA vs. ASHOK KUMAR AND OTHERS, reported in (2000) 8 SCC 216; (ii) ELECTION COMMISSION OF INDIA vs. STATE OF HARYANA, reported in 1984 (Supp) SCC 104, and (iii) DIRECTOR OF SETTLEMENT, A.P. & ORS. vs. M.R. APPARAO & ANR., reported in (2002) 4 SCC 638, to point Page 29 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT out that the parameters within which the High Court can intervene in an election process have been laid down and are well settled. The High Court, therefore, was not required to entertain the petition.
6. On a plain reading of Rule-15 and Rule-55 of the Election Rules, 1994, it becomes apparent that in so far as fixing of date for counting of votes is concerned the Returning Officer is under a mandate to see that the date, time and place for counting of votes is fixed and notified at least one week before the date of poll, but beyond that there is no other mandate. Furthermore after having fixed the date, time and place, as aforesaid, the Proviso grants discretion to the Returning Officer to alter the said schedule for the reasons that may weigh with Returning Officer, which would depend on the facts and circumstances in relation to particular unit undergoing poll. However, from the aforesaid provision it is not possible to read any prohibition or any legislative intent which would permit this Court to intervene and direct the Returning officer to alter the schedule for counting of Votes. The provision also does not stipulate any right being vested in any party, namely, a candidate or the election Agent.
7. Hence, it is not possible to come to the conclusion that the respondent-Authority has, while fixing the election schedule, been actuated by any malafides or has acted at the behest of anybody else so as to hold that the said Authority has not acted in a fair and impartial manner.Page 30 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
8. Hence, it is not possible to grant relief as prayed for. The petition is accordingly rejected with no order as to costs. Notice discharged."
27. Thus, the very same issue as sought to be raised in the present writ-application was raised before a Coordinate Bench of this Court and it was argued that despite the fact that the election schedule prescribes completion of the process by a particular date, the State Election Commission had purposefully fixed the schedule in such a manner that the results of elections to the Municipalities would have a material bearing on the elections which were to be held on the subsequent day for the local self-Government bodies.
28. While opposing the writ-application, it was argued by the learned senior counsel appearing for the State Election Commissioner that the petitioner had sought mandamus which presupposes that a legal right was vested in the petitioner which was not being satisfied. It was argued that the petition was based only on a political perception.
29. This Court, while rejecting the writ-application, took the view that in so far as the fixing of date for counting of votes is concerned, the Returning Officer is under a mandate to see that the date, time and place of counting of votes is fixed and notified atleast one week before the date of poll but, beyond that, there is no other mandate. This Court took notice of the fact that there was no prohibition or any legislative intent which would permit Page 31 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT the Court to intervene and direct the Returning Officer to alter the schedule for counting of votes.
30. In the last, this Court observed that the provision also does not stipulate any right being vested in any party, namely, a candidate or an election agent, to get the schedule altered.
31. The concept of free and fair election and the place of the same in our Constitution has been elaborately discussed in the case of Indira Gandhi vs. Raj Narain, reported in 1975 (Supp) SCC 1, wherein the following was observed :
"Democracy postulates that there should be periodical election, 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 representative. 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."
32. The message of Sir Winston Churchill referred to above relates to the pervasive philosophy of democratic election. There is no gainsaying that democracy can indeed function only upon the fact that the 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. Free and fair elections require that the candidates and their agents Page 32 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. The statement of Sir Winston Churchill noted above has been quoted with approval by Justice Krishna Iyer in the case of Mohinder Singh Gill (supra), to point out the importance of a vote and voter who has the power to elect his representative. The right to vote under the Constitution is the trust reposed by the Constitution on a responsible citizen to choose his master and the Constitution has thought it fit not to impose any other restrictions to curtail the thought process of an individual.
33. The entire writ-application is based on a political perception of the three individuals leading a public life that if the result of the election to the six Municipal Corporations is declared first, then such result may have an impact or influence on the minds of the people at large when time comes to cast their vote in the Panchayat and Municipality elections.
34. Let us be practical about the entire matter before us. It appears that the three writ-applicants are affiliated to one particular political party and what is troubling their mind is that if one particular political party gets into power in the six Municipal Corporations, then the entire rural voting pattern may get affected. People hailing from poor and lower strata of society may be influenced by the fact that a particular political party has regained power in all the six Municipal Corporations or in most of the Corporations and, therefore, that particular political party is quite a popular party and, therefore, let us all vote for the candidates of that particular political party. This is the entire edifice of the writ-application. Such edifice is on the premise that Page 33 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT if the mind of the voters are influenced on account of the result of the Municipal Corporation elections, then the concept of free and fair election may get hampered. At this stage, few questions come to our mind : first, whether the three writ-applicants have the locus standi to maintain a litigation of the present nature ? Whose cause are they espousing by way of the present litigation ? Are they concerned about the fairness and transparency in the overall election of the Panchayats and Municipalities ? Is the apprehension expressed by the three writ-applicants a figment of their own imagination or their political perception ?
35. Under Article 226 of the Constitution, a High Court is empowered to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. The words 'any other purpose' have been interpreted by the Supreme Court and by several other High Courts in India to mean 'a legal right'. Therefore, before a Court can issue directions, orders or writs, it must be satisfied that a fundamental right or any other legal right of the petitioner has been infringed.
36. We could have rejected this writ-application on the short ground alone that none of the fundamental rights or any other legal rights of the writ-applicants have been infringed so as to come before this Court by way of a writ-application questioning the schedule fixed by the State Election Commission so far as the election process is concerned. However, we would like to put an end to the main issue raised in the present litigation once and for all. There are few other issues also we would like to Page 34 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT address and, therefore, we do not propose to reject the writ-application outright.
FREE AND FAIR ELECTION :
37. Free and fair elections are the foundation of every healthy democracy, ensuring that Government authority derives from the will of the people. But to have confidence that their elections are truly free and fair, the voters need to be assured of more than just a well-managed day of polling. Features of free and fair elections also include a society that encourages citizens to vote, that provides space for political parties to work and campaign freely and independent media and civil society to flourish, and that has built a judiciary capable of acting with impartiality.
38. 'Free' means that all those entitled to vote have the right to be registered and to vote and must be free to make their choice. In our country, every citizen over the age of 18 years is entitled to vote. An election is considered 'free' when you can decide whether or not to vote and vote freely for the candidate or party of your choice without fear or intimidation. A 'free' election is also one where you are confident that who you vote for remains your secret.
39. 'Fair' means that all the registered political parties have an equal right to contest the elections, campaign for voter support and hold meetings and rallies. This gives them a fair chance to convince voters to vote for them. A fair election is also one in which all voters have an equal opportunity to register, where all Page 35 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT votes are counted, and where the announced results reflect the actual vote totals.
40. The concept of free and fair election includes even the preliminary stages to election such as delimitation of constituencies, preparation, revision or amendment of electoral rolls, etc.
41. In the forefront, the decision of the Supreme Court in the case of Rampakavi Rayappa Belagali vs. B.D.Jatti, reported in 1970 (3) SCC 147, can be referred to in order to highlight the importance of a free and fair poll, which has been described as a foundation of the democracy by the Supreme Court. Paragraph 21 of the said judgment of the Supreme Court is relevant, wherein it is stated as under:
"21. .... Free and fair elections are the very foundation of the democratic institutions and just as it is said that justice must not only be done but must also seem to be done; similarly, the elections should not only be fairly and properly held, but should also seem to be so conducted as to inspire confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our country when the police and the Government officers create even an impression that they are interfering for the benefit of one or the other candidate. ..."Page 36 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
42. In the decision of the Supreme Court in the case of Mohinder Singh (supra), in the concluding part of the decision in paragraphs 91(2)(a) and (b), V.R.Krishna Iyer, J. has stated as under:
"91(2)(a): The Constitution contemplates a free and fair election and vests comprehensive responsibility 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 Art.324 is a reservoir of 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 the natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play in action in a most important area of the constitutional order, viz., elections.
Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong..."
43. Again in the concurring judgment in the above said decision reported in AIR 1978 SC 851, Goswami, J. with regard Page 37 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT to Article 324 of the Constitution, observed in paragraph 113 as under:
"113. ... Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to 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 such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging under Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules."
44. In the decision reported in (2000) 8 SCC 216 (Election Commission of India through Secretary vs. Ashok Kumar), the Supreme Court, after referring to the decisions reported in Mohinder Singh Gill (supra) and N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency and others (AIR 1952 SC 64), has quoted the example cited in Mohinder Singh Gill's case (supra) in paragraph 20 and also suggested that a third category by way of an example where the intervention of the Court other than the Election Tribunal may be required. The statement of law thus made by the Supreme Court is as under in paragraphs 20 and 21:
Page 38 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT"20. .... In Mohinder Singh Gill's 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 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 inter-meddling with or thwarting the progress of election. ..."Page 39 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
45. In the very same decision, the Supreme Court summed up the conclusions in paragraph 32 and set out five principles to be applied, which read as under:
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us herein above:
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completion of proceedings in elections.
2) Any decision sought and rendered will not amount to "calling in question an election" if it sub-serves the progress of the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of malafide Page 40 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
46. In the decision reported in AIR SCW 4670 (Jayrajbhai Jayantibhai Patel vs. Anilbhai Jayantibhai Patel and others), the Supreme Court, while dealing with an election matter, has held Page 41 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT as under in paragraph 18:
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercised the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."
47. In a Constitution Bench decision of the Supreme Court reported in 2006 (7) SCC 1 (Kuldip Nayar vs. Union of India), the Supreme Court has laid stress on free and fair elections in paragraphs 330, 338 and 448, which read as under:
Page 42 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT"330. The learned counsel representing the petitioners, while arguing on the challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats of the representative of the States in the Council of States again referred to the "basic structure" theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair election was a concept inherent in the democratic values adopted by our polity."
338. The following observations in para 198 of the judgment in Indira Nehru Gandhi (India Nehru Gandhi vs. Raj Narain 1975 Supp SCC 1) also need to be noticed as they are relevant in the context of the principle that "free and fair elections" lies at the core of democracy: (SCC p.87) "198. This Court in the case of Kesavananda Bharati (Kesavananda Bharati vs. State of Kerala 1973 (4) SCC 225) 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 Page 43 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT 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. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections."
448. It shows that the right to vote in "free and fair elections" is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to "free and fair elections"; that the right to vote is empty without the right to "free and fair elections". It is the concept of "free and fair elections" in terms of an electoral system which provides content and meaning to the "right to vote". In other words, "right to vote"
is not (sic) an ingredient of the free and fair elections. It is essential but not the necessary ingredient."
48. In the judgment reported in 1995 (4) SCC 611 (T.N.Seshan vs. Union of India), the Supreme Court has held as under in paragraph 10:
"10. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic structure Page 44 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day...."
49. In the decision reported in 2003 (4) SCC 399 (People's Union for Civil Liberties vs. Union of India), the Supreme Court has held as under in paragraphs 94, 96 and 97 :
"94. The trite saying that "democracy is for the people, of the people and by the people" has to be remembered forever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thoms v. Speaker, Lok Sabha (1993 (4) Page 45 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT SCC 234) (SCC pp.236-37, para 2) quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. .... Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant of the right to vote which is the basic postulate of democracy is thus twofold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The first step is complementary to the other. ..... That goal would be accomplished in two ways. It will help the voter who is interested in seeking and receiving information about the candidate to form an opinion according to his or her conscience and best of judgment and secondly, it will facilitate the press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter whether he acquires information directly by keeping track of disclosures or through the press and other channels of communication will be able to fulfill his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values. .....
96. The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by Page 46 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly Debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326 which enjoins that 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 twenty-one years (Now 18 years) of age, and is not otherwise disqualified under the Constitution or law on the ground of non-residence, unsoundness of mind, crime, corrupt or illegal practice shall be entitled to be registered as voter at such election.
97. In Jyoti Basu v. Debi Ghosal (1982 (1) SCC 691 : 1982 (3) SCR 318) this Court again pointed out in no uncertain terms that: (SCC p.696, para 8) "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right.
With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the Page 47 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between the conferment of the right to vote on fulfillment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a Page 48 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT pure and simple statutory right was declared and reiterated, considered the question whether the citizen's freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate. The issues that arose in Ponnuswami case (AIR 1952 SC 64 : 1952 SCR 218) and various cases cited by the learned Solicitor-General fall broadly within the realm of procedural or remedial aspects of challenging the election or the nomination of a candidate. None of these decisions, in my view, go counter to the proposition accepted by us that the fundamental right of freedom of expression sets in when a voter actually casts his vote. I, therefore, find no merit in the submission made by the learned Solicitor-General that these writ petitions have to be referred to a larger Bench in view of the apparent conflict. As already stated, the factual matrix and legal issues involved in those cases were different and the view, we are taking, does not go counter to the actual ratio of the said decisions rendered by the eminent Judges of this Court."
50. A reference to the above decisions discloses that in a democratic set up, holding of elections in a free and fair manner assumes greater importance and that is the responsibility of the constitutional functionary, namely, the Election Commission, to ensure that the elections are held in such a manner that an elector gains absolute confidence in his mind that he can cast his vote out of free will and without any interruption whatsoever.
Page 49 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENTThe Courts have also emphasized that in that area, the Election Commission has been invested with large powers to cover unforeseen circumstances solely with a view to ensure holding of a free and fair poll. While highlighting the importance of free and fair poll, the Supreme Court has also cautioned that a returned candidate who had resorted to foul methods to come out successful in the election, should not be allowed to reap the benefit which he really does not deserve. The Supreme Court has also made it clear that the right to vote which was neither a fundamental right nor a common law right, was purely a statutory right, which had been elevated to the position of a constitutional right. In fact, while deliberating on this, the Supreme Court in the decision reported in (2003) 4 SCC 399 (cited supra) at page 460 in para 97, made it clear as follows:
"97... Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights, such as right to secure information about the candidate which are conducive to the freedom."Page 50 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT
51. Thus, the Supreme Court, while highlighting the fine distinction between the right to vote as a constitutional right and the stage of expression of such a right in a free and fair manner would amount to a right guaranteed under Article 19(1)(a) of the Constitution, has thus made it clear that such a right of a voter while casting his vote assumes greater significance. As such, casting of vote decides the fate of a country, inasmuch as the ruling of it entrusted in the hands of a set of persons in whose hands, in turn the basic feature of the Constitution, namely, protection of the democratic set up, is ultimately invested. Therefore, the Supreme Court has made it clear that even though the right to vote, though ensures under the provisions of the Representation of the People Act, having regard to the fact that such a creation is pursuant to the constitutional mandate as contained in Article 326 of the Constitution, has been elevated to the position of a constitutional right and not merely a statutory right in stricto-sensu.
52. The decision in the case of People's Union for Civil Liberties (supra) has made a distinction between a right to vote and the final act of expressing such a right by means of casting a ballot. While a citizen's right to vote has been described as a constitutional right now, it was originally recognised as a mere statutory right. The Supreme Court has now clarified that once a citizen acquires the said constitutional right, the subsequent act of expressing the said right in an election assumes the character of a fundamental right and thereby attracting Article 19(1)(a) of the Constitution. Therefore, if there is any hurdle faced by a citizen in acquiring his voting right, he will only have the protection and remedies that are available in establishing the Page 51 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT said constitutional right. When once such a voting right is acquired, thereafter, the casting of the said voting right having been recognised as a fundamental right, should have all the protection and safeguards that are available as provided under Chapter-III of the Constitution. Thereafter, infringement of such a right will certainly call for the intervention of this Court in exercise of its extraordinary jurisdiction under the Constitution.
53. Further, in the decision of the Supreme Court reported in (2006) 7 SCC 1 (cited supra), the Supreme Court reiterated the principles set out in 1975 (Supp.) SCC 1 (Indira Nehru Gandhi vs. Raj Narain), wherein, the necessity of a free and fair election has been emphasized in the following words:
" ... 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 nation. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections."
54. While on the one hand, the Supreme Court has highlighted the values of democracy and holding of free and fair elections to achieve the targeted goal, it has also been reminding a note of Page 52 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT caution every now and then to the Courts, in particular, the exercise of writ jurisdiction under Article 226 of the Constitution to be more circumscribe in its exercise. While highlighting such a cautious note, the Supreme Court has also made it clear that the Court should not hesitate to step in wherever and whenever injustice is meted out, that in such a situation, the writ Court has got powers even to determine the questions of fact when they are disputed, that existence of alternative remedy by itself need not deter the Court to exercise its extraordinary jurisdiction or to put in the words of the Supreme Court, if the monstrosity of the situation warrants such interference.
55. A detailed analysis of the above referred to decisions of the Supreme Court in particular, the election cases, shows that the Supreme Court has repeatedly emphasized that the Courts should not interfere in the process of elections in order to ensure that such election process is completed and concluded, right from the date of its commencement till the date of its conclusion. The Supreme Court has also stated that such orders which would enable smooth completion and furtherance of that election process is always permissible. What has been repeatedly emphasized is that there should not be an interference in the election process at the instance of any party who may approach the Court in an outwardly innocuous fashion with a view to stultify the election process, as in the opinion of the Supreme Court, that would interfere with the constitutional mandate of holding of the elections, where the will of the people is ultimately ascertained, which results in the election of the representatives of the people who fill the role of law makers and custodian of the Government.
Page 53 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT56. It is well recognised as apparent from Mohinder Singh Gill's case (supra) that if the Election Commission acts arbitrarily such action can be called in question before the High Court of course within the known and defined parameters. The concept of arbitrary action could obviously include 'arbitrary inaction'. Where a particular authority fails to exercise jurisdiction vested in it and thereby causes public wrong, appropriate direction or writ can be issued.
57. Keeping in view the observations made in Ashok Kumar's case (supra), it can be said that though generally the jurisdiction of the High Court should not be invoked under Article 226 to interfere with any ongoing process of election and should not be invoked directly to interfere with any matter connected to election after the election process was over, it cannot be said that there is an absolute bar to invoke such extraordinary jurisdiction under Article 226. Therefore, it cannot be said that a writ petition is not maintainable in all circumstances; rather it would be more appropriate to say that under special circumstances a writ petition would be maintainable in the matters relating to elections even before completion of the election process and after completion of the election process. What would be the exceptional circumstances in a given case where the extraordinary jurisdiction under Article 226 can be invoked is obviously a matter which would depend upon the facts and circumstances of each case and it is not possible nor desirable to lay down the circumstances in which such jurisdiction can be invoked.
Page 54 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT58. It has been recognised in Kesavananda Bharati's case (supra) by many of the Judges of the Supreme Court forming the majority that democracy is a basic right and free and fair poll has been considered to be an essential part of the democracy. Election is no longer considered as a mere statutory right, but it has been accorded the elevated status of a constitutional right and the actual casting of vote has been considered as a fundamental right of the freedom of expression. The Election Commission being the constitutional repository of the collective confidence reposed by the State representing the entire citizens, is required to ensure free and fair poll so that the basic right is not affected.
59. We are of the view that a citizen should not be considered so weak in his thought process that his mind would get influenced in some way or the other with the declaration of the result of one part of the election first in point of time. There are so many factors which may influence the mind of the voter. It all depends on the strata of the society the voter hails. A poor voter may get influenced by any corrupt practice like money or a pair of new clothes, etc. For such a voter, the election is the only glorious day as he may rest contented with the same for the next five years even if he has to suffer with respect to the other basic and essential amenities. It is just not possible for the State Election Commission to keep all such things in mind when it comes to ensuring free and fair election. Although not very specifically and boldly argued by the learned counsel appearing for the writ-applicants, yet from the tenor of the arguments we could make it out that what is hinted by the writ-applicants is Page 55 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT that the two different dates of counting is nothing but a political strategy. No election is fought without a political strategy. If we were to accept such submission, then we need to believe that the State Election Commission is also a part of such political strategy. The State Election Commission is a constitutional functionary and is an independent body. As such, there is nothing on record to indicate that the election programme declared by the State Election Commission is tainted with malafide or the same has been fixed at the instance of the ruling party in power.
60. If there would have been any credible material on record to indicate that the State Election Commission has not acted independently and that the election programme declared by the Commission is tainted with malafide or the same has been fixed as a part of the political strategy at the instance of the ruling party in power, we would have definitely interfered unhesitatingly. However, it is not permissible for this Court to take a view that the election programme declared by the State Election Commission is tainted with malafide or the same has been fixed at the instance of the ruling party in power merely on the basis of the perception a common man carries in his mind about the independence of the State Election Commission.
61. The State Election Commissioners are appointed by the Government in power and they might feel obliged to the Government or the Government may feel that they should be beholden. In any case, unfortunately, the public perception is that if they have been appointed by a particular Government, Page 56 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT they will be soft towards it. It is this very reason why the suggestions made by the Tarkunde Committee, 1975 and the Goswami Committee, 1990 assumes importance. The suggestions of the two committees may weaken the influence of the Government over the Governor's choice of the Election Commissioners.
62. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted with the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day (See T.N.Sheshan v. Union of India vide paragraph-10). Dr.Rajendra Prasad while explaining the importance of independence of the post of Election Commissioner during the debate in the Constituent Assembly said (vide page 991 of Volume X of the Constituent Assembly Debates Official Report) :
"...We have provided another important authority, i.e., the Election Commissioner whose function it will be to conduct Page 57 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT and supervise the elections to the Legislatures and to take all other necessary action in connection with them. One of the dangers which we have to face arises out of any corruption which parties, candidates or the Government in power may practice. We have had no experience of democratic elections for a long time except during the last few years and now that we have got real power, the danger of corruption is not only imaginary. It is therefore as well that our Constitution guards against this danger and makes provision for an honest and straightforward election by the voters. In the case of the Legislature, the High Courts, the Public Services Commission, the Comptroller and Auditor-General and the Election Commissioner, the Staff which will assist them in their work has also been placed under their control and in most of these cases their appointment, promotion and discipline vest in the particular institution to which they belong thus giving additional safeguards about their independence."
63. During the Constituent Assembly debates it was further highlighted by Dr.Ambedkar that it is absolutely necessary that the new machinery which has been set up, namely, the Election Commission should be irremovable by the executive by a mere fiat and therefore, the Chief Election Commissioner has been given the same status so far as removability is concerned as has been given to the Judges of the Supreme Court (vide page 906 of Volume VIII of the Constituent Assembly Debates Official Report).
Page 58 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT64. In our country, people get enamoured by the celebrities as candidates contesting the election. People at times would blind foldedly vote for them because they love to see them on the theater screen unmindful that such candidates may be good enough to be seen only on the theater screen and not when it comes to serving the people after being elected. It is a hard reality. In other words, what we are trying to convey is that a celebrity as a candidate do influence the mind of the voters in one way or the other. How do you expect the Election Commission to control the mind of the voters being influenced by such factors to ensure free and fair election.
65. The voting behaviour in our country is something which is very complex and unpredictable. Several social factors may be involved in our country that influences the voting behaviour of the voters. This may include factors such as the community, caste, religion, money, language, ideology, etc, which are utilized by the political parties in influencing the election results. Among these social factors, some social factors dominate that influence the psychosocial make up of the voters, who decide on the basis of a rational or habitual choice in casting their vote. A habitual choice could be called a rational choice that is predetermined by a previous rational choice.
66. The first social factor influencing the voting behaviour as noted above is the 'charisma', which denotes an exceptional quality of a factor influencing voting patterns that can override interfering factors through its force of attraction. 'Charisma' may involve attractive leaders revered by voters who can turn the tide in an election.
Page 59 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT67. 'Caste', the second factor, is deep-rooted in the Indian society and is an important determinant of social relations, especially in rural areas, from where the majority of votes are derived.
68. The third important social factor is 'religion', which being among the most pervasive factors in the Indian society, frequently figures in the electoral process as an important factor. Although certain legal restrictions are placed on invoking religion, yet the tacit usage of religion in the voting process is among the most prominent features of influencing the voting behaviour in India.
69. The fourth important social factor is 'language', which becomes important especially because of the linguistic ordering of most Indian States. Even within the States, numerous languages can exist, and these can act as inflexion points in elections.
70. The fifth social factor as stated above is 'money'. India having massive numbers of poor people, access to money or opportunities becomes thus a very important determinant in Indian elections, with many party promises and manifestos based on financial arrangements.
71. 'Sub-nationalism' is the sixth social factor, with India's numerous regional identities being a major factor in influencing intrinsic voter behaviour.
Page 60 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT72. The seventh factor offers among the most rational choices, being 'the performance of the incumbent government'. The performance of the incumbent party in power is a very important determinant of voting behaviour, and often anti-incumbency votes happen that can remove the party in power.
73. The eighth factor remains a major hindrance to rational choice in Indian election, being 'literacy', or often the lack of it, that can affect the rational choice of many voters, such that people may be disposed to vote in terms of social factors other than a studied analysis of who one should vote for.
74. The ninth factor is 'factionalism in politics', which among mainstream parties can disenchant the voters towards local organizations.
75. The tenth and the last factor is 'the status of the candidate', which can greatly influence the voter's associations with voting behaviour in terms of the influence of the legacy that an electoral candidate might have. This is different from 'charisma' in the sense that this provides a more rational basis for voter engagement, as based on the candidate's record of service rather than emotional appeal.
76. Most of the dominant sociological factors influencing Indian voting are not completely rational, and many involve a mix of both rational choices and psychosocial affinity. As such Page 61 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT predicting election results can be difficult, and results can be anticipated on the basis of pre-existing social and political conditions instead of an analysis of pure rational choice. Even then many ambiguities present themselves in that a mix of voter opinion and his pre-existing sociological conditions influence his voting behaviour, although no theoretical supposition can sufficiently account for the final choice of all voters in the election process. (B. Hazarika, 2015).
77. Thus, having regard to the aforesaid, how does one expect the Chief Election Commissioner to control the thought process or the mind of the voters. The paramount duty and function of the Chief Election Commissioner is to ensure that none of the political parties or any of the candidates in the fray indulge in any corrupt practices and thereby influence the mind of the voters. But, it is very difficult to take the view that the result of the election to Corporations may influence the mind of the voters in the second part of the election, i.e. Panchayats and Municipalities, and therefore, with a view to ensure free and fair election, the date of counting and declaration of the results of the election should be uniform. It is possible, and to a certain extent quiet obvious, that the result of one part of the election may have its own influence on the second part of the election, but that by itself would not be sufficient to say that the election is not free and fair. It all depends on the individual voters how they look at it. Democracy contemplates that the election should be free and fair so that the voters may be in a position to vote for the candidates of their choice. Democracy can indeed function only upon the faith that the elections are free and fair and not rigged and manipulated. Free and fair elections require that the Page 62 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. We should also keep in mind that the power of judicial review should not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardized formula, universally applicable to all cases, can be evolved. It goes without saying that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent upon the court to intervene. It is nevertheless right that the scope of judicial review is limited to the deficiency in the decision making process and not the decision.
78. When the Constitution and other governing legislations have already provided a regulatory procedure for conducting a free and fair election, it is not open to think otherwise that by mere declaration of the result of the Corporation election, the same will have an influence on the mind of the voters in the Panchayat and Municipality election. As regards the framing of schedule for holding the election, the matter lies within the exclusive domain of the Election Commission and the same should not ordinarily be interfered with unless exceptional circumstances indicating the influence on free and fair election is demonstrated.
79. The contention as regards the election programme fixed by the State Election Commission being not in accordance with Rule 15 of the Rules, is also without any merit. This issue is no Page 63 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022 C/SCA/2242/2021 CAV JUDGMENT longer res integra in view of the decision of this Court in the case of Gujarat Pradesh Congress Committee (supra).
80. 'Free' and 'fair' are two small and simple words of the English language but the two words are so powerful that the entire democracy of this country is dependent on the same. Therefore, all the actions of the Election Commission must be of such a nature that they should instill confidence in the mind of the people including the poorest of the voters hailing from the most underprivileged and lower strata of society. The State Election Commission, as far as possible, should avoid taking a certificate from any court that 'Rome burned while Nero fiddled'.
81. In the overall view of the matter, we are convinced that no case is made out by the writ-applicants for grant of any relief.
82. In the result, the writ-application fails and is hereby rejected.
(J. B. PARDIWALA, J.) (ILESH J. VORA, J.) /MOINUDDIN Page 64 of 64 Downloaded on : Thu Jan 13 00:49:58 IST 2022