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- ELECTION COMMISSION OF INDIA STATE OF HARYANA
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4 , "April 25, 1984 tm EF
” TY.V. Canpracuup,’C,J., V.D. TULzaPuRKar, R.S. PaTax, . D.P. MADON AND M.P. THAKKAR, JS] ;
for by the parties when they give prior intimation of the preposed proceedings to thé opposite side without much inconvenience or prejudice disapproy ed. ;
” . Practice & Procedure —Passing of Ex-parte orders, by the’ Courts as sought
Constitution of India 1950 Article 136—Interference by the Supreme Court against an ad interim order passed by the High Court. - 3
To fill in the vacancy arising from the setting aside of the clection of the returned candidate from the $9-Taoru “Assembly Constitaency ip Haryana, by the Suprems Court, the appellant Commission sent ‘a message and programme on April 6, 1984 to the Chief Electoral Officer for the State of Haryana. According to that programme, the notification. under section 150 of the Representation of the People Act, 1951 was to be issued on April 18, 1984, the Jast date for filing nominations was April 25, 1934 while the date cf poll was May 20, 1984 The Election Commission fixed a9 identical programme for filling 23 other vacancies in the legislative assem blies of Andbra Pradesh, Karnataka and West Bengal. Oa April 7, 1984 the Election Commission was requested by the Haryana Government. to - shold the proposed by-election ulorngwith the general ctections to the Lok Subba, duc later in the year. On April L1, 1984, the Chiof Secretary wrote @ letter to tho Election Cow nissioncr renewing the request to dofer the by- election, On April 12, 1984 the Blection Commissioner informed the
Chicf Election Officers by a tetcx messagyu that it had decided to ‘adhere 1 tho- programme of by-elections to all the 24 constituencies and copies of notifications to be published on April 18, 1984 were seat to the Chief Electoral Officer, Warysna.
informing al! the pelitical parties. * .
The Chief Secretary, Huryana met the Chief Election Commissio — on April 14, 1984 and explained to him personally why it was nelt advisable nos possible to hold the by-election to the Tyoru seat as Prop? by the latter, Oa April 16, 1984, the Chief Secretury wrote & let reiterating the view of the Government to the Chief Election Commission? On April 17, 1984, the Chief Commissioner replied to the letter of ee 16, 1984 by saying that the Commission had taken tho decision to ho! the by-election after tuking tho Punjab situation and taking into considerstint all factors including tho fact of non fact that the political . parties were 20
Opposed to the proposed byclection. On the same day the Govemment af i
Haryana filed a writ petition in the High Court of Punjab and gla and obtained an ex parte order staying the issuance and publication
A Press not was issucd to that, effect after , cn ell ie ea te mcmama shania taste Ta ARNON te, OO AL LOL NAA LAAN a, ti
“tod
ELECTION COMMISSION P. HARYANA ae ion Commission under ss, 30, 56 vecttgn by the Election - 30, and 150 of the poses ion ‘of the People Act, 1951. Hence the appeal by special a of the Court
Allowing the appeal, the Court. HELD : (Per Majority) . per-Chandrachud Cu. =a a t:1, The widely prevalent practice of partices obtaining ex parte am when ini ea ee prior intimation of the proposed proceedings to the opposite side, without much incoavenietica or prejudice bas often been disapproved by this Court. When the public authoritics do so it is all the more opéh (0 disapprobation. [561D-E] 1:2, The Government of Haryana obtained an ex- ante. oFaee from the High Court when it could casily have given prior intimation of the intended proceedings to the Election Commission of India. The letter is constitutionally identifiable, conveniently accessible and easily available for being contacted on the most modern systems of communication. The Election Commission. of India, too.rushed to this Court oa the 18:h without informing the Government of Hiryana that it proposes to challenge the order of the High Court and to ask for stay of that order. The Govern ment of Huryana is also identifiable and accessible with the same amount ofcass. Were it not for the fact that this matter brooked no delay the |
Supreme Court would havo hesitated to pass any interim order without the appellant giving prior intimation of Its proposed actlon to the respondent.
1:3. Despite the guideline indicated by the Supreme Court in the - West Bengal poll case, A.K M. Hassan Uzzaman ¥. Union of India, [1982] . 28.CC. 218, regarding the, passing ‘of orders by the High Courts in
Sercite of their writ jurisdiction, the High Court of Punjab & Haryana ‘from showing any reluctance to interfere with. the programme the proposed election, the High Court has only too readily passed the ~ iierin order which would have had the effect of postponing the lection mately. Considering that the election process was just round the
Tuer, the High Court ought not to have interfered with it. The noa-
Waking order passed by it uffords no assistance oa the question whether Were exceptional circumstasces to justify that order, [562A-C]
we 2 The Government of Haryana Is undoubtedly in tho best’ position
V8 the situation of law and order in areas within its jurisdiction acd ted re control, But the ultimate decision as to whether it is possible ~*80tdicnt to hold eilicacy of ull orders : jo autharitiey. It ig therepassed by public au ag an ha “essary that on An Issue like the present, which coaceros situation ao % iy Mate Oder, the Election Commission must consider the views of the
Coming emoMment and ull other concerned bodies of authorities before
~ ° ‘he conclusion that thery is hy objectiva to the holding of the.
[561E-G]
the elections at any given point of time must rest he Lee ey Tillie} 2 *atedny ag ation Commission. Arbitrarivess and mala fides destroy the
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SUPREME COURT REPORTS .
¥ bi ‘se : + elections at this poiat of time. Hence the Elestioa Com nissidn gin” its decision after bearing in mind the pros and cons of the. whoie Pies to It had the data before it. It cannot be assumed that it turneg q blind n F cye
[1984] 3 55 toit. In these circumstances, it was not in the power of the i to decide whether the law and order situttion in the State of pyqi Root Haryana is such as not to warrant oc pecmit the holding of ths bran, fied . It is precisely in a situatioa like this that the ratio of th: We Clog,
: Us Ben case would apply in its full rigor. [5628-H, 5634-B] eal Pott
, 3:1. However, it would be open to the Chief Electiog Commision to review his decision as to the exp:dtency of holding the poll on notified date. In fact, not oaly would it be orzn to him to recotsider big! decision to hold the poll as notified, it is plainly his duty anJ ohh gation fo
". keep the situation under constant scrutiny so as (o adjust the decision to the . realities of the situation. "Al! the facts and circumstances, past and present, which tcar upon the question of the advisability of holding the poll on the notified date have to be taken into account and kept under vigil. That is to cohtizuing prucess which can only cease after the poll is sheld. Ustil thea, the Election Commission has the locus, for good reaons,p to allerits | decision The ‘aw and order situation in the State, or in any art of it, of in a nei_hbouring State, is a consideration of vital importance for deciding the question of cxpediency or possibility of ho'ding an olection at anypurti+ cular point of time. If he considers it necessary, he shou'd held further discussions with the Chief Electoral Officer of Haryans and consult, one again, leaders of the various political parties on the question whether i is feasible to hold the poll on ths due date. On an important issue such a th: hotdiag of aa ‘elzction, whic is of gre.t aad immediste concern to the entirs politicyl community, there can be no qu:stion of any pablic official scanding on prestige, an appreheasion which was faintly projected in the State's argumeats. A sense of realism, objectively and noratigament .must inform the decision of the elcclion Commission rn that issue. [563D-H
Mohd. Yuus Saleem v. Shiv Kamar Shastri. (t974] 3 S.C.R. 138 143—44; followed, , ,
3°2. Indeed, every citizen of this courtry who has some deatee Political awareness, would have a fair idea of the sityitiva in ae its impact on the even flow of life in-tho neighbouring State me wi But the circumstance that the High Court has the knowledge of @ ei hot justify the substitution by it of its own opinion for that of aa mitt duly appointed fora specific purpose by the Jaw and. the Const dell Different people bold diffcreat views on public issues, which are oft uli divergent. Even the Judges, A Judgo is entitled to his views on yesti® oa but he cunot project his personal views on tho decision A sta peti oe sat of law and order in @ particular area at a Paros of id hold that the EL i in error in its shat situation, I564D-F] Election Commission is in ¢
Per Thakkar, 7. (Contra) : the iru “i d The casei Parameters of the decision ia Hassa n’s case an
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« Hasso’ s
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; "ELECTION COMMISSION ¥. HARYANA ’ .
em oe known’ till, the judgment. containing reasons is born, As on
> one can predict what exactly wilt be decided by the Court in yodsy 9 case when the Judgment eventually comes to be proonounced ape make a guess about the colour or sbade of the eyes of a child which : nite that an interim order of sucha nature can never be passed does ape a. If that were sot so, the court would not have said (1) mew ainence of electoral process is a factor which must guide and govern that f orders (meaning thereby that while such order-scan be passed ibis factor must be accorded duc consideration) and (2) that “more jmminent such process, the greater cught to be the reluctance of the H:gh Court to do ecything or direct anything to be done which will postpone that process indefinitely” (which means it must be done only with retuctance when clections ere imminent). In other werds the power must be exercised sparingly (with reluctance) particularly when the order would be to postpone the installation of a. democratically elected popular Government. These observations were made by the Court in Hassan's case in the context of the expity of the term of legislaiure as envisioned by Article 172 of the
Constitution of India and conscquential general elections for such legislature - asisevident from the ellusion to “‘imminence of elections” and “indefinite postponement of elections to legislative todies which are the essence of democratic functions of the Constitution.” This must be so because the kgislature would stand dissolved on the expiry of the term, and © new legislalure has to be elected, It isin this context (presumably) that a reference is made to “immineace of electioas”. [567D-E-H; $68A-F] ,
For a By-gection like the present one, to fill a single vacancy. there sa be no question of “‘imminence” or “indifinite postponcment of elections” which would stall the installation of a democratically elected government. Tt is Bobody’s case that the party position” was such that the result of the tlection to this yacant seat would have tilted the majority: one way or other, No oblique motive has even been hinted at. The High Court was therefore
Sot unjustified in Proceeding on the assumption that it had such a power. ; ; a _ [568F-G]
faced bi ¢ High Court cannot be fuulted for passing the impugned order Court a was by on unprecedented situation like the present. If the High “to ap Hot granted the order and the Election Commission had not chosen Pear on or before April 18, 1984 the High Court would have perhaps Teaver tess to Pass any other order, whatever be the justification for
* Court was pei oral-process”® wotsld havs actually commenced. Leathe . "ke intg Prima-fucie satisfied that the Election Commission had ile fo “ONsiders Account vital matters, appeared to have acted on noa-consequentia & ations, and had acted arbitrarily in turoing down the request of the Coury wae ea as also the Chief Election Officer of Haryana. The High a therefore entitled ta grant a stay. [569A-B]
a under Article 136 of the ad-interim order On the one hand the er oblivious to the ng to the life and eet 4Preme Court in exercise of the jurisdictio y “tion of India should got interfere with tiestion — High Court in such a fact situation. -_ ion SMmission appeared to have been altogethe “* regards the bonafide apprehension pertaini t to be born 2). But it can be reasonably said that Hassan’s case’-
Cc
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SUPREME COURT REPORTS. [1984] 3 S.0.R.
security of the National {feaders. who might . address public -meetings, the Candidates the officers engaged in election work, and the voters. The danger was further aggrevated in the face cf open threats held but to the lives of the National leaders of different political parties. What is more, the Election Commission has shown total unawareness of the circumstance that public meetings were prohibited wader s. 144 of the Cr. P. C. in the constitutency ' going to the polls. On the other hand the only consequence of granting a stay would have been to postpone the election programme by a few days in the
. event of the Election Commission commission not choosing to appear sin the _ Court (to show cause why the ad-interim order should not be made absolute)
on or before April 18, 1984 which.was the scheduled date for issuance of the notification announcing -the election programme. The Election Commission . could have appeared befo.e the High Court and got the stay, vacated in time ‘instead of approaching this Court by way of the present: appeal by Special ‘Leave. The Election Commission could not have failed to refraise that no serious consequence would have flowed from the impugned order even if stay was vacated, not immediately, but a few days later, for, it was only a by-
. election to one’single seat of no siguificance which wouid not have ‘resulted:
in postponement of thé installation of an elected government. Worse come to worse, the by-elestion could not have been held along with by-elections in other states on the.‘same day’. [S69B-G] -
, * aa “More so when the Election Commission has not been able to show what possible detriment would have been suffered if the by-election could not have been so held on that particular day. How “and by what process of ratiocination did the Election Commission convinced itself that free elections could be held in a situation where the Candidates would consider it hazardous. to contest or to-indulge in election propoganda, and even voters would be afraid to vote, even to this court, [569G-H, 570A] .
It is no doubt true that theoretically the Election Commission can still postpone the: polling, if it is so minded. But the Court should sot remain a passive spectator in this extraordinary situation and leave the: _ Nation to the mercy of an individual, however high be his office, when it it ' evident that he has secluded himself in his ivory tower and has shut his eye’ to the realities of the situation and closed his mind to the Progrosis of this matter, The Court can certainly satisfy itself whether the Election CommiS-
‘sioner had kept his eyes, ears and mind open, and whether he was able to’
show that all relevant factors including the consideration as to what adva®~ tage was to be secured as against the risk to be faces, entered into his reckoningg If this is not shown to have been done, as in the present case; his decision is vitiated and the Court neéd not feel helpless. The High Court was therefore fully justified i in passing the impugned order, and tlic Supreme Court should not upture it. ‘[S71B- D]
Cin APPELLATE — : Civil Appeal No. 2182 of 1984.
- Appeal by Special leave from the Jadgment and Order dated the 17th April, 1984 of the Punjab and Mayas High Court in W.P. "Noy Nil of 1984
. ing the aforesaid request for two reasons ;
ELECTION COMMISSION y. HARYANA (Chandrachud, C.J.) 559 |
* S.S. Ray and Krishnamurthi Swami for the Appellant.
K.G..Bhagat Addl. Sol. General,-4.k, Sen, H.B. Singh Adsocate ° of Bacepante A, Subbha Rao, CV. and R.N. Poddar, for ae,
. General,
. The followin Judgments .were , delivered
CHtinpeacu, C.J. We. had passed an ifitercith order on April .
18, suspending the operation of the order passed by the. ‘High Court | of Punjab & Haryana,on April 17, 1984. The High Court, by its | aforesaid order; had stayed the issuance and publication Of the °
- notifications by the Election Commission of India under sections 30, - 56and.-150 ofthe Representation of People Act, 1951. We had ' directed that the special leave petition. should be listed before us.
the next day for considering whether the interim order should be confirmed. 7 On — 28, 1984, this Court gave a judgment in Civil Appeal No. 5501 of 1983, setting aside the election of the returned candidate from the 59-Taoru Assembly’ Constituency in Haryana. As a result ‘of that judgment, a vacancy arose in the. Legislative Assembly of the State of Haryana from that Constituency. On April 6, 1984, the Election Commission of India sent a message to tlie Chief Secretary, Haryana, who is the Chief Electoral Officer for the State of Haryana, informing him that the Conimission had fixed a certain — “programme for holding the by-election to the Taoru Constituency.
. According to that programme, the notification under section 150 of the Representation of the .People Act, 1951, was to be issued on
_ April 18, 1984, the last date for filing nominations is April 25,1984, while the date of poll is May 20, 1984. The Election Commission fixed an identical programme for filling 23 other vacancies-in the legislative assemblies of Andhra ‘Pradesh, Karnataka and West
“ Bengal.
On April 7, 1984, the Election Commission received a telex message from the Chief Secretary, Government of Haryana; convey-.
ing the request of the Haryana Government that the proposed byelection should be held. along with the general elections to the Lok . Sabha which are’due later this year. On April! 11, 1984, the Chief — Secretary wrote a letter to the Chief Election COMNESHONEE renew-
Q bc
» (2) deferring the by-tlection would save time, lahour and
560 _ + SUPREME COURT REPORTS | [1984] 3 s.c.r.
(1) The next weueral election to the Haryana.Vidhan Sabha - Isedue i in May, 1987 and ‘since the Taoru vacancy had ” occurred recently on February 28, 1984, there was no immedidate necessity to fill it 5 and
/ expense.
' On April 12, 1984, the Election Commission informed the Chief Electoral Officers bya telex message that it had decided to adhere to the programme of by-election to 24 vacancies in their respective jurisdictions. The telex message mentioned specifically
_ that the Commission had taken into consideration the replies receiy- ‘ ed by it from various State Government and their Chief Electoral
Officers on the question of holding the elections as proposed, On the same date ie. April. 12, 1984 copies of, Notifications to be |
~ published on April 18, 1984 in the Haryana - Gazette’ were ‘sent to the Chief Electoral Officer of Haryana. By a separate communica-_ tion of the same date,the Commission informed all the political parties about the programme fixed by it for holding the by-elections, A BEA note was also issued to the same <i on the same date.
The Chief Secretary, Haryana, met the Chief ‘tie Commissioner on April 14 and explained to him’ personally why it was
. neither advisable nor possible to hold the by-election to the Taoru seat as proposed by the latter. On April 16, the Chief Secretary
. wrote a letter to the Chief Election Commissioner reiterating the view of his Governnient. He added in that letter that it would not be possible to hold the election during the proposed period because, the neighbouring. State of Punjab was going through ‘a serious problem of law and order, that therewas a dispute regarding territorial adjustment and division of waters between the State of Haryana and the Akali Party in Punjab, that the said dispute was used by the Akali Party for stepping up terrorist activities, that the terrorists had attacked persons occupying high. public offices, that there was a serious threat to the lives of many important persons in
Haryana, that public meetings had been banned by the District Magis- -
‘toate under ‘section 144 of the Criminal Procedure Code and that the
‘situation in the State was such that it would not be possible to hold public meetings for election purposes, for a few months. On April
17, the Chief Election Commissioner replied to the Chief. Secretary’s - .
letter, of April 16 by saying that the Commission had taken the decision to hold the by-election after taking into consideration al]
° om , . 4 ELECTION COMMISSION v¥ HARYANA (Chandrachud, C.J.) 561 factors, that it was not clear how the Constituency of Taoru in ‘Gurgaon, which is about 35 kilometers from Delhi, and which is quite far away from Punjab’ would have any fall-out "oft the Punjab | situation and that the political parties who were duly informed of the proposed election programme had not opposed the holding of
~ by election at this point of time.’ On the same date that the Chief
Election Commissioner wrote the aforesaid letter, the Government of Haryana filed a writ petition in the High Court of Punjab and
- Haryana and obtained an ex-parte order, which i is hapepved f in this, _ Special leave petition.
We passed the interim order on April 18 after hearing a fairly long and exhaustive argument from Shri Siddhartha Shankar Ray
- who appeared on behalf of the appellant, the Election Commission of
India, and the learned Additional Solicitor General who ‘appeared on behalf of. respondent, the ‘State of Haryana’ We heard further argu-
_ ments of the parties on the 19th, Shri Asoke Sen appearing .for the __ respondent. Since thé matter raises questions of general public ’ importance, we grant special leave to appeal to the petitioner.
We often express our disapproval of the widely prevalent
” . practice of parties obtainlng.ex parte orders when they can give prior intimation of the propased proceedings to the opposite side, without
- miuch inconvenience or prejudice. When the public authorities do
: “go, it is allthe more open to disapprobation.’ But here, the parties “have. taken a tooth for a tooth. :The Government of Haryana - obtained an ex parte order from the High Court when it could easily have been given prior intimation of the intended proceeding to the -
Blection. Commission of India. The latter is constitutionally identifi- - able, conveniently.accessible and easily available for being contacted * on. the most modern systems of communication. -The Election ~ Commission of India, too, rushed to this Court on the 18th without — informing the Government of Haryana thatit proposes to challenge
. the order of the Higli Court and to ask for stay of that order. The -Government of Haryana is also-identifiable "and accessible with the
‘s4me amount of case, We do hope that the smaller litigants will ‘not form the belief that the bigger ones can get away with such
“ ‘lapses. Were it not for the fact that this matter brooked no ‘delay, - we would have hesitated to pass any interim order without the appellant giving prior intimation of its proposed. action: to the
= eerie
As stated anitise ‘notitcations setting ‘the election process in
_” Motion were to be issued on April 18: One day before that, the State
. *
562 SUPREME COURT REPORTS 1984} 3scR. ¥
Government approached the High Court in a hurry, asking it to stay -the election progess, which the Hign Court-has done. This Court held in the West Bengal poll case, 4.K.M. Hassan Uzzaman’y. Union
- of India,Q) that the imminence of the electoral process is an important. ‘factor which must guide and govern ;the passing of orders in the -exercise of the High Court’s writ jurisdiction and that, the more imminent such process, the greater ought to be the reluctance of the High Court to take any step which will result _ in the postponement 7 of the elections. We zegret to find that far from showing any reluctance to interfere with the programme of the proposed election, the High Court has only too readily passed thé interim order-which | would have had the effect of postponing the election indefinitely. Considering that the election process was just round the corner, the
High Court ought not to have interfered with it. The non-speaking order passed. by it ‘affords fio assitance on the question whether there were exceptional circumstances to justify that order, ——
_ +The fact that the election process was imminent is only one - reason'for our saying that the High Court should Have refused its assistance in the matter. The other Teason for the view which we are taking is provided by the very nature of the controversy which. is involved therein. - The difference between the Government of Haryana and the Chief Election Gommission centres round the question as‘to whether the position of law and order in the Stateof _. Haryanais such as to make it inexpedient or undesirable to hold » . the proposed by-election at this point of time. The Government of _ Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control. But the ultimate decision as to whether it is possible and expedient _ .. to hold the élections atany given point of time must rest with the ~ Election Commission. It is not suggested that the Election Commission can exercise its discretion in an arbitrary or mala fide manner. , .Arbitrariness and mala fide destory the validity and efficacy ofall . orders passed by public authorities. It is therefore necessary that on ‘an issue like the present, which concerns a situation of.law and order; the Election Commission must consider the views of the State Government and all other concerned bodies or authorities before. - coming to the conclusion that there is io objection to the holding of the elections at this point of time. On this aspect of the matter, the correspondence between the Chief Secretary of Haryana andthe. * | Chief Election Commissioner shows that the latter had taken all the.
(1) (1982) 2 S.C.C. 218, ,
ELECTION COMMISSION ». HARYANA (Chandrachud, C.J.) 563 relevant facts and . circumstances into account while taking the’
decision td hold the by-election to the Taoru Constituency in accrodance with the proposed programme. The situation of law and order _ in Punjab and, to some extent, in Haryana is a fact so notorious _.fhat it would be naive to hold that the Election Commission is not ; aware of it. Apart from the means to the knowledge of the situation of law and order in Punjab and“ Haryana, which the Election Com- ‘mission would have, the Chief Secretary of Haryana had personally
_ apprised the Chief Election Commissioner as to why the State “Government was of the view that the elections . should be postponed until the Parliamentary elections. We see no doubt that the Election
_ Commission came to its decision after bearing in mind the pros and cons of the whole situation. It had the data before it.’ It cannot.
‘be assumed that it turned a blind eye to it. In these circumstances,
. it was not in the power of the High Court to decide whether the
~ Jaw and order situation in the ‘State of Punjab and Haryana is such
. . &$ notto warrant or pérmit ‘the holding of the-by-elction. Tt is " precisely in a situation like this that the ratio of the West Bengal Poll ‘ease would apply in its full rigor.
~ We must add that it would be. open to the Chief Election
* Commissioner, as held in Mohd. Yunus v, Shiv Kumar Shastri, to *, review his decision as to the expediency of holding the poll on the his. decision to hold the poll as notified, it is plainly his duty and ‘obligation to keep the situation under constant scrutiny soas to adjust the decision to the realities of the situation. Ail the facts and circumstances; past and present, which bear upon the question of the advisability of holding the ‘poll on the notified date have to be taken. into account and kept'under vigil. That is a continuing process which can only cease after the poll is held. ‘Until then, the - Election Commission has the locus, for good reasons, to alter its decision: The law and order situation inthe State, or in any part of it, or in a neighbouring State, isa consideration of vital importance for deciding the question of expediency or possibility of holding an election at any particular point of time. We are confident that the Chief Election Commissioner, who is vested with important duties and obligations by the Constitution, - will discharge those duties and obligations with a high sense of responsibility, worthy of the high office which he holds. If he’ considers it necessary, he
2). as S.C.R, 738, 743-744, e
564 SUPREME COURT REPORTS, [1984] 3 s.c.r,
* onlit hold further discussions. with the Chief Election Officer of .
Haryana and consult, once again, leaders of the various political parties on the question whether it is feasible to hold the poll on the due date. On as important issue such as; the holding of an election, which is of great and immediate concern of the entire political community,’there can be no question of any public official
* standing on prestige, an apprehension which was faintly projected in the State’s arguments. A sense of realism, objectivity and nonalignment must inform the decision of the Election Commission on that issue.
. It was urged that the High Court of Punjab and Haryana
Punjab and their respercussions in Haryana which would justify’ its interference with the decision of. the Election Commission to hold - the by-election pow. The first part of this argument need not be
‘would have a fair and clear. understanding of the happenings in- - disputed and ‘may even be. accepted as correct. Indeed, every citizen of this country who has some _ degree of political awareness,
D would have a fair idea of the situation ia Punjab and its impact on
Fo the even flow in the neighbouring State of Haryana. - But the second:
part of the argument is untenable. The circumstance that the High
‘ Court has knowledge of a fact will not justify the substitution by it of its own opinion for that of 4n authority duly appointed fora
» Specific purpose by the law: and the Constitution. Different people hold different views on public issues, . which .are often widely "divergent. Even the judges. A Judge is entitled to his views on public issues but the question _ is whether he can project his personal views
- “on the decision of a question like the situation of faw and order in a particular area at a particular periodjof time hold that the Election - Commission is ‘in error in its appraisal of that situation. We suppose not.
- . For these. reasons, we. nuttin the ‘Saxeciin order which was
_ passed by us on April 18; allow this appeal and set aside the High
- Court’s order of April 17. Unless otherwise directed by the Chief ~
Election Commissioner, the election programme will have — to 80 through as abrcuay's notified. Therg will be: no order as to ‘costs.
THAKKAR,. J. Holding of a tireleation to fill even a single
' vacancy. at the earliest date is an extremely desirable end in a demo- cratic framework. Even so if such circumstances exist, and a
° s
ELECTION COMMISSION Y. HARYANA (Thakkar, J.) 565 reasonable progrosis can be bonafide made, that holding the by- election for filling up that vacancy, is fraught with grave danger,. not
. only to the lives of election officers, candidates as also political leaders addressing election meetings, as also of voters, and poses a grave danger which altogether outweighs the advantage of holding the election along .with the by-elections in other States, should the .
matter not engage very serious attention of the Election Commission ? Not even when it is shown that with regard to the sensitive and explosive situation it was likely to worsen a situation which.
. was already worse ? More is when all that was to be gained by hold- ing the by-election as. proposed was to be able to hold it along with other by-elections on the same day as in other States which had by itself no significance or virtue. And if the Election Commission without due deliberation summarily turns down the request to defer
" .the-election programme for that by-election even by a few days in such circumstances, can the High Court be faulted for passing an.
ad-interim order, which has the result of postponing’ the election, not for an indefinite period, but for a few days till the parties are
' heard ? Is the order passed. by the High Caurt in such circumstances _ +80 gross that instead of allowing the High Court to confirm it or vacate it, upon ‘the othér side showing cause, this Court should invoke. the jurisdiction. under Article 136 of the’-Constitution of ~ . India to set it aside ? More particularly when the consequence would | be no more serious than this, namely, that the by-election cannot be held (there is no virtue in doing so). on. the: same day along with other by-elections.
TH&t the High Court fxg he p power to issue a direction or order which has the effect of postponing an election if the situation so demands would appear. to be the law declared: by a five-judge Constitution Bench presided over by the learned Chief Justice who presides over this Bench as well. In 4.K.M. Hassan Uzzaman and others v. Union of India and others and Lakshmi Charan Sen: and others v..4.K.M. Hassan.Uzzaman and others) the conclusions are recorded i in the operative order aes March 30, a, sending as under :
¥
- ‘1. The tranateread case and the appeals Cited with it raise important questions Which require .a careful and dispassionate considerations. The hearing of these matters was concluded four days ago, on Friday, the 26th. Since the judg- ‘ment will take some time to pleas we Propose, by . this coe
(1) [1982] 2800. 218.
. =f
SUPREME COURT REPORTS . [1984] 35.c:R.
“Order, to state our contlusions on some of the points involved in controversy :
_ in entertaining the writ petition and in issuing a rule nisi, .
(1) The High Court acted within its jurisdiction upon it, since the petition questioned the vires of the laws of election. But, with respect, it was not justified in
. passing the interim orders dated February 12 and 19, -
1982 and in confirming those orders by its judgment dated February 25, 1982. Fifstly, the High Court had no material before it to warrant the passing of those orders..
The allegations in the writ petition are ofa 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. elec- tion, 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 pro-
_cess, the greater ought to be the reluctance of the High
Court todo anything, or direct anything to be dene, 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 the courts the use of wise statesmanship in the exercise of their extraordi- nary 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. The limitation ought to be observed irrespective of the fact whether the preparation add publication of electoral rolls are a part of the process * of ‘election’ within the meaning of Article 329 (b) of the purcTION COMMISSION ¥. HARYANA (Thakkar, J.) $67
; m3 stitution. We will pronounce upon that question later * jn our judgment. @ v our judgment later, we dismiss the writ petition filed in the Calcutta High Court which was transferred for disposal to this Court. All orders, including interim orders, passed by the
* Calcutta High Court are hereby set aside. Civil Appeals 739 to 742 of 1982 will stand disposed of in the light of the dis- missal of the writ petition, out of which they arise, .
“Sx © & & Ax K X*S
_ Does Hassan’s case enjoin that no such interim order can ever be passed by the High Court ? - Se ;
The relevant extract from the conclusion recorded in Hassan's. :
case has been reproduced hereinabove. Of course, the exact para- aelers of the decision and the true ratio cannot be known till the _ judgment containing reasons is born, As on today no.one can pre-
| dict what ‘exactly will’ be decided by the Court in Hussan’s case
Ld (* .. gp we: KR x -x (3) X x xX x ' hy. 2. For these reasons and those which we will give in vhen the judgment eventually comes to be: pronounced (who can make a guess about the colour or shade of the eyes of a child which yet to be born 2). But it can be reasonably said that the following: Citract.(2) = > ;
Mr Must guide and govern the passing of orders in the »
~ nent “= _ the High Court's writ jurisdiction. The more immithe Ef} roe sy the greater ought to be the reluctance of
* Which ae to do anything, or direct anything to be done, Uluation F Postpone: that process indefinitely by creating a ‘which, the Government of .a State cangot be
SAitieg ae : $555 | tun, 9 10 accordance with the provisions of the Consti-
¢
Watran : . i Oder — View that Hassan'’y case does not enjoin that an interim
“ch a nature can never be passed in any situation. If that -
_* CET ora a te . . . The imminence of the electoral process is a factor + P
SN ee ee mri ete y;
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568 - - . SUPREME,COURT REPORTS ‘T1984 3s.c.n, - were not so, the Court would not have said (1) that imminence of
‘electoral process is a factor which must guide and govern the Passing of orders (meaning thereby that while such orders can be passed this
‘factor must be ‘accorded due consideration) and (2) that “more imminent such process, the greater ought to be the reluctance of the ‘High Court to do anything or direct anything to be done which will
. postpone the process indefinitely” (which means it must be done only with reluctance when elections are imminent.) The aforesaid. statement of law made in the context of “general elections’? does not warrant the view’ that Hassan’s case enjoins that an election pro-' gramme cannot be pastponed even for a few days even in the case of a by-election, whatever be the situation, and whatever be the circumstances, in which the High Court is called upon to exercise its jurisdiction, It is therefore not unreasonuble to proceed on the premise that even according to Hassan’s case the Court has the power to issue: an interim order which has the eflect of postponing an election but it must be exercised sparingly (with reluctance)
_ particularly when the result of the order would be to postpone the
‘installation of a democratically efected popular government. The portion extracted from the operative order in Hassan's case brought iato focus a short while ago which adverts to “‘imminence of clections” and to “directions which will inevitably result in indefinite postponement of elections to legiskative bodies which are the very essence of the democratic functions of our Constitution” leaves no room for doubt that the observations were being made in the context of the expiry of the term of legislature as envisioned by Article 172 of the Constitution of India and consequential general élections for such legislature. This must be’ so because the legislature would stand dissolved on the expiry of the term. and a new legislature has to be elected. It is im this context
(presumably) that a reference is made to “imminence of *.
elections’. For a by-clection like the one we are concerned with, there can be no question of “imminence” or “indifinite postpone ment of elections” which would stall the installation of a democratically elected government. It is no body's case that the party position was stich dhat the result of the election to this yacant seat would live tilled the majority one way or other, No oblique motive bas even beewt hinted at. The High Court was therefore not unjusti-. fied in proceeding on the assumption that it had such a power.
.-
Does the ad-interin order passed by the High Court merit being upturned in exercise of the jurisdiction under Art, 136 of the Cons tution of India ? a
~~. a ny af
ELECTION COMMISSION ¥. HARYANA. (Thakkar, J.) 569
The only question which arises.is whether the presence was a case where the High Court could not have granted-the ad-interim order. Be it realized that if the High Court had not granted the order. and the Election Commission had not chosen to appear on or before April 18, 1984 the High Court would have perhaps become power- ° “less to pass any order, whatever. be the justification for-it, as the
“electoral-process” would have ‘actually’ commenced. Can the High Court then be faulted for'passing the impugned order faced as it was. by an unprecedented situation like the present? On the one
« hand the Election Commission appeared to have been altogether © oblivious to the dimension as regards the bonafide apprehension pertaining to the life and security of the National-leaders: who might address public meetings, the candidates; the officers engaged in elec- tion work, and the voters, The danger was further aggravated in the face of-open threats held out to the lives of the National leaders of different political parties. What is more, the Election Commis-
, sion has shown total unawareness of ‘the circumstance that public “meetings were prohibited under Section 144 of the Code of Criminal -
Procedure in the constituency going to the polls. On the other hand
" the only consequence of granting a stay would have been to .post- pone the élection programme by a few days in the event of the Election Commission not choosing to appear in the Court (to show cause why the ad-interim order’should not be made absolute) on or before April 18, 1584 which was the scheduled date for issuante of the notification announcing the election-programme. The Election
_ Commission could have appeared before the High Court and got the stay vacated in time instead of approaching this Court by way of the
-present appeal by Special Leave. The Election Commission could not have failed to ‘realise: that no serious consequence would have
“flowed from the impugned order even if stay was vacated, , not. immediately, but a few days later, for, it. was only a by-election to one single seat of no significance which would not have resulted in postponement of the installation of an elected government. Worse come to worse, the by-election could not have been held along with 7 .
by-elections in other States on the ‘same’ day. The Election Commission has not been able to show what possible deteriment ‘would have been suffered if the by-election could not have been so _ held on that ‘particular day. If the High Court was-prima facie satisfied that the Election Commission Had failed to take into account Vital matters and appeared to have acted on ‘Non-consequential considerations, andshad- acted arbitrarily in turning down the request
-of the State Government as also the Chief Election Officer of,
570 "SUPREME couRT REPORTS
; Bpiyann, why could the High Court not grant a stay? And should this Court interfere in such a fact-situation? Learned Counsel for the Election Commission, though repeatedly requested, is unable to point out either from the affidavit filed on 18th, or from the addi- tional affidavit filed on the 19th, that’ the aforesaid factors were taken all of these factors were considered to be immaterial. No inkling - “is given as to how the Election Commission thought that the problems into reckoning by the Commission. It. is not stated that these factors do not exist or have been invented by the State Government
~ with any oblique motive. The contents pf the affidavits filed by the
Election Commission reveal that it was altogether oblivious to all the relevant factors recounted earlier. There is nothing to show that a single factor was present on its mental screen. The Election Commission has not apprised the Court as to how‘and why any or
- could be overcome. By what process of self-hypnotism did the
Election Commission convince itself that free and fair elections could be held even when public meetings’ were banned in the constituency?
, How, and by.what process of ratiocination did the Election Conimis-
"* gion convince itself that free elections could be held in a situation
" where the candidates would. consider it hazardous to contest or to indulge in election propaganda, and even voters ‘would. be afraid to vote? If the Election Commission had any idea as to how. the hurdless could be crossed ‘and problem resolved, it has chosen not to revéal its perception of.the matter. The Election Commission
; _ perhaps has good answers. But silence is the only answer which has been given by the Commission as alsovits counsel-on this aspect. “I know my-job-and-it-is-none- of-the- business-of-the-Courts” seems to be the attitude. All that has been stated by the learned counsel for ~ the Commission is that everything was considered (without even disclosing the content of the expression ‘everything’), Counsel has of course set up an-alibi by saying that affidavits, had to be prepared by burning mid-night oil. But in that ease the concentration would have been on everything of importance and what was ‘the essence of the matter could not have been overlooked or forgotten. And if it has escaped attention, the conclusion is inevitable that the Election Commission had not attached due’ importance and weight- age to the basic problen’ and had not. applied itself seriously to a serious problem. - og ;
The fact is established that the Chief Secretary and the Chief Election Officer of Haryana, had personally apprised the Chief Election Commissioner of the prevailing situation sometime before. 14th April, 1984. « The Election Commission has not even disclosed
. + y
ARR a neers Oo ( te ee.
” ection COMMISSION ¥, HARYANA (Thakkar, J) . 257
E ris fact in the petition or in ae additional affidavit. Nor has the a Election Commission apprised us as to what transpired at. the : meeting: The Election Commission has’ been less than candid _eyen tO this Court. No doubt the Chief Election Commissioner is __bolding a responsible post. But that does not make him infalliable or” render his decision or act any the less arbitrary if he has failed to. . inform himself of all the relevant factors and has failed to direct his’ | B «attention to the core problem. It is no doubt true that theoretically the Election Commission can still postpone the polling, if it is p so minded. But should the Court remain a passive spectator in this extraordinary situation and leave the’ Nation to the mercy ofan: individual, however high be his office, when it is evident thathe has. +. secluded himself in. his ivory tower and has shut hiseyestothe °C-.realitics of the situation and closed his mind to the progrrosis of the ©.” matter. The Court can certainly satisfy itself whether the Election Commissioner had kept his eyes, ears and mind open, and whether he was able to show that all relevant factors including the considera- .tion as to what advantage was to be secured as against the risk to ; be faced, entered into his reckoning. If this is not shown to have.. -D. been done, as in the present case, his decision is‘vitiated and the” , Court need not feel helpless. The High Court was therefore fully ‘justified in passing the impugned order.
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- Appeal is accordingly dismissed.: > -. « 2 #2
Y ee ‘ . & . Appeal allowed.
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