Indian Kanoon - Search engine for Indian Law

21. A third category is not far to visualise. Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance, secured material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment (33 of 65) [CW-2509/2020] failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this court cited at the Bar.

12.12 The answer to all the aforesaid questions lies in Article 226 which uses the expression ".......and for any other purpose." This expression reveals the plenary nature of power. The Constitution makers consciously used this expression so as to prevent any illegality to escape the scrutiny of the High Court notwithstanding any constitutional [ Art. 243-O(b)] or statutory (election petition) bar from coming in way of exercise of power of judicial review. However the High Court ought to be circumspect while (44 of 65) [CW-2509/2020] exercising this power when statutory remedy is available. This does not mean that the High Court should close the doors of justice to the litigant. The High Court is only required to be cautious and careful while considering the issue raised and not balk away. If the circumstances disclose apparent illegality to have polluted the election process turning it to be an eyewash it would be prudent to exercise the power of judicial review in larger public interest by ignoring the unavailed statutory remedy of election petition. 12.13 This kind of an approach in larger public interest while dealing with elections, is necessary in the fast degrading moral standards where contesting elections at any level of governance is being treated by more and more as a business venture rather than selfless public service. To catch up with the changing times the exceptions to the power of judicial review need to be proportionately liberalized so that unscrupulous elements do not take shelter behind and thrive due to the meandering and time consuming judicial process. 12.14 Thus relegating the appellant to the remedy of election petition would not have been justified in the given facts and circumstances. Moreso, dismissal of the petition and asking the petitioner to avail the remedy of filing of election petition would have led to a scenario where an election infested with violence, rioting and hooliganism would have prevailed thereby eroding the very foundation of the democratic setup recognized by the Constitution. 12.15 Every office filled by election is required to be preceded by democratic process of free and fair election. If the election process itself is polluted by violence, rioting and hooliganism then the election is a mere farce. The concept of democratic republic is recognized by the Constitution as part of basic structure which is required to be zealously protected and preserved to ensure prevalence of rule of law. Any nefarious attempt making inroads into the pristine nature of democratic republic deserves to be nipped in the bud for which the most suitable and efficacious remedy is the power of judicial review. As such, this court unhesitatingly holds that the learned Single Judge has rightly invoked its writ jurisdiction to prevent democracy from turning into mobocracy."

(Emphasis supplied.)

46. This Court, in its all humility, finds that the judgment which was passed by the Apex Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) was referred in a subsequent judgment of the Apex Court in the case of Boddula Krishnaiah & Anr. Vs. State Election Commissioner reported in AIR 1996 SC 1595 (3 Judge Bench). The Apex Court after quoting the judgment passed in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) in para-10 of the judgment, held that if election process is set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise, inasmuch as such dispute is covered by an election dispute and remedy is thus, available at law for redressal. The Apex Court also held that direction in that case of not declaring the result of election or to conduct fresh poll was not correct but the writ petition was (55 of 65) [CW-2509/2020] maintainable before the High Court under Article 226 of the Constitution of India. The relevant paragraphs 11 and 12 of the judgment are quoted hereunder:-

"11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.