http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

PETITIONER:

ELECTION COMMISSION OF INDIA THROUGH SECRETARY

Vs.

RESPONDENT:

ASHOK KUMAR & ORS.

DATE OF JUDGMENT: 30/08/2000

BENCH:

CJI , R.C. Lahoti & K G Balakrishnan

JUDGMENT:

R.C. Lahoti, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

An interim order passed by the High Court in exercise of

its writ jurisdiction under Article 226 of the Constitution,

during the currency of the process of election, whereby the

High Court has stayed the Notification issued by the

Election Commission of India containing direction as to the

manner of counting votes and has made directions of its own

on the subject, has been put in issue by the Election

Commission of India filing these appeals by special leave

under Article 136 of the Constitution.

The facts in brief. The 12th Lok Sabha having been

dissolved by the President of India on 26.4.1999, the

Election Commission of India announced the programme for the

General Election to constitute the 13th Lok Sabha. Pursuant

thereof, the polling in the State of Kerala took place on

11.9.1999. The counting of votes was scheduled to take

place on 6.10.1999.

In exercise of the powers conferred by Rule 59A of the

Conduct of Election Rules, 1961, the Election Commission of

India issued a notification published in Kerala Gazette

Extra-ordinary dt. 1st October, 1999 which reads as under:-

NOTIFICATION

No.470/99/JUD-II(H.P.) -- WHEREAS, rule 59A of the

Conduct of Elections Rules, 1961 provides that where the

Election Commission apprehends intimidation and

victimisation of electors in any constituency and it is of

the opinion that it is absolutely necessary that ballot

papers taken out of all ballot boxes used in that

constituency should be mixed before counting, instead of

being counted polling stationwise, it may, by notification

in the Official Gazette, specify such constituency;

2. AND WHEREAS, on such specification under the said

rule 59A of the Conduct of Election Rules, 1961, the ballot

papers of the specified constituency shall be counted by

being mixed instead of being counted polling stationwise.

3. AND WHEREAS, the Election Commission has carefully

considered the matter and has decided that in the light of

the prevailing situation in the State of Kerala, and in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

interests of free and fair election and also for safety and

security of electors and with a view to preventing

intimidation and victimisation of electors in that State,

each of the Parliamentary Constituencies in the State except

11-Ernakulam and 20-Trivandrum Parliamentary Constituencies,

may be specified under the said rule 59A for the purposes of

counting votes at the General Election to the House of the

People, 1999 now in progress;

4. NOW, THEREFORE, the Election Commission hereby

specifies each of the said Parliamentary Constituencies

except 11-Ernakulam and 20-Trivandrum Parliamentary

Constituencies in the State of Kerala, as the constituencies

to which the provisions of rule 59A of the Conduct of

Elections Rules, 1961 shall apply for the purposes of

counting of votes at the current General Election to the

House of the People.

BY ORDER

Sd/- (K.J. RAO) Secretary, Election Commission of

India

In Ernakulam and Trivandrum constituencies electronic

voting machines were employed for polling. In all other

constituencies of Kerala voting was through ballot papers.

On 4.10.1999, two writ petitions were filed respectively

by the respondents No.1 & 2 herein, laying challenge to the

validity of the above notification. In O.P. No.24444/1999

filed by respondent No.2, who was a candidate in the

election and has been a member of the dissolved Lok Sabha

having also held the office of a Minister in the Cabinet, it

was alleged that large scale booth capturing had taken place

in the Lok Sabha election at Kannur, Allappuzha and

Kasaragod constituencies. Similar allegations of both

capturing were made as to polling stations throughout the

State. At such polling stations, the polling agents of

Congress party and their allies were not allowed to sit in

the polling booths. In 70 booths polling was above 90%, in

25 booths the percentage of polling was more than 92% and in

5 booths it was 95% and above. The presiding officers and

the electoral officers did not take any action on the

complaints made to them and they were siding with the ruling

party (Left Democratic Front or the LDF). At some places

the representatives of the Congress party were ordered to be

given police protection by the Court but no effective police

protection was given. There are other polling booths where

the percentage of polling has been very low, as less as 7.8%

in booth No.21 at Manivara Government School. No polling

was recorded in booth No.182. In 27 booths polling was 26%.

Complaints were also made to the Chief Election

Commissioner. Under Section 135A of the Representation of

the People Act, 1951, booth capturing is an offence.

O.P. No.24516/1999 was filed by respondent No.1, who

contested from the Allapuzha constituency as an independent

candidate, alleging more or less similar facts as were

alleged in O.P. No.24444/1999.

In both the writ petitions it is alleged that in the

matter of counting the Election Commission of India issued

guidelines on 22nd September, 1999 which directed ___ All

the ballot boxes of one Polling Station will be distributed

to one table for counting the ballot papers. There was no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

change in the circumstances ever since the date of the

above-said guidelines and yet on 28.9.1999 the Election

Commission of India issued the impugned notification.

According to both the writ petitioners, if counting took

place in accordance with the directions issued on 28.9.1999,

valuable piece of evidence would be lost as the allegations

as to booth capturing could best be substantiated if the

counting of votes took place polling stationwise and not by

mixing of votes from the various booths. An interim relief

was sought for by both the writ petitioners seeking

suspension of the notification dated 28.9.1999.

Notice of the writ petition and applications seeking

interim relief was served on the standing counsel for the

State Government and the Government Pleader who represented

the Chief Electoral Officer. Paucity of time and the

urgency required for hearing the matter did not allow time

enough for service of notice on the parties individually.

The prayer for the grant of interim relief was opposed

by the learned counsel appearing for the respondents before

the High Court by placing reliance on Article 329(b) of the

Constitution. According to the writ petitioners before the

High Court, the normal rule was to count votes boothwise

unless exceptional circumstances were shown to exist

whereupon Rule 59A could be invoked. According to the

learned counsel for the respondents before the High Court,

in Ernakulam and Trivandrum parliamentary constituencies,

polling was done with the aid of voting machines and hence

excepting these two constituencies the Election Commission

of India formed an opinion for invoking Rule 59A which the

Election Commission of India was justified, well within its

power to do. In the opinion of the High Court, in view of

large number of allegations of booth capturing (without

saying that such allegations were correct) it was necessary

to have the votes counted boothwise so that the correctness

of the allegations could be found out in an election

petition which would be filed later, on declaration of the

results. The High Court also believed the averment made in

the affidavits filed in support of the stay petitions

wherein it was stated that training was given to the

officers for counting the votes boothwise, i.e. with mixing

or without mixing. Mixing of votes of all booths will take

more time in counting and require engagement of more

officers. The learned Government Pleader was not able to

demonstrate before the High Court if the notification dated

28.9.1999 was published in the official gazette. On a

cumulative effect of the availability of such circumstances,

the High Court by its impugned order dated 4th October, 1999

directed the Election Commission and Chief Electoral Officer

to make directions in such a way that counting was conducted

boothwise consistently with the guidelines dated 22.9.1999.

On 5.10.1999 the Election Commission of India filed the

special leave petitions before this court which were taken

up for hearing upon motion made on behalf of the

petitioner-appellant. A copy of the official gazette dated

1st October, 1999 wherein the notification dated 28.9.1999

was published, was also produced for the perusal of this

court on the affidavit of Shri K.J. Rao, Secretary,

Election Commission of India. This court directed notices

to be issued and in the meanwhile operation of the order of

the Kerala High Court was also directed to be stayed.

When the matter came up for hearing after notice, leave

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

was granted for filing the appeals and interim direction

dated 5.10.1999 was confirmed to remain in operation till

the disposal of appeals. At the final hearing it was

admitted at the Bar that in view of the impugned order of

the High Court having been stayed by this court, the

counting had taken place in accordance with the Notification

dated 28.9.1999 made by the Election Commission of India.

In view of these subsequent events, the appeals could be

said to have been rendered infructuous. However, the

learned counsel for the appellant submitted that the issue

arising for decision in these appeals is of wide

significance in as much as several writ petitions are filed

before the High Courts seeking interim directions

interfering with the election proceedings and therefore it

would be in public interest if this court may pronounce upon

the merits of the issue arising for decision in these

appeals. We have found substance in the submission so made

and, therefore, the appeals have been heard on merits.

The issue arising for decision in these appeals is the

jurisdiction of the High Court to entertain petitions under

Article 226 of the Constitution of India and to issue

interim directions after commencement of the electoral

process.

Article 324 of the Constitution contemplates

constitution of the Election Commission in which shall vest

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-President held under the Constitution. The words

superintendence, direction and control have a wide

connotation so as to include therein such powers which

though not specifically provided but are necessary to be

exercised for effectively accomplishing the task of holding

the elections to their completion. Article 329 of the

Constitution provides as under:-

329. Bar to interference by courts in electoral

matters.- Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation

of constituencies or the allotment of seats to such

constituencies, made or purporting to be made under article

327 or article 328, shall not be called in question in any

court;

(b) no election to either House of Parliament or to the

House or either House of the Legislature of a State shall be

called in question except by an election petition presented

by such authority and in such manner as may be provided for

by or under any law made by the appropriate Legislature.

The term election as occurring in Article 329 has been

held to mean and include the entire process from the issue

of the Notification under Section 14 of the Representation

of the People Act, 1951 to the declaration of the result

under Section 66 of the Act.

The constitutional status of the High Courts and the

nature of the jurisdiction exercised by them came up for the

consideration of this Court in M.V. Elisabeth and Ors. Vs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

Harwan Investment and Trading Pvt.Ltd., Goa - 1993 Supp (2)

SCC 433. It was held that the High Courts in India are

superior courts of record. They have original and appellate

jurisdiction. They have inherent and supplementary powers.

Unless expressly or impliedly barred and subject to the

appellate or discretionary jurisdiction of Supreme Court,

the High Courts have unlimited jurisdiction including the

jurisdiction to determine their own powers. The following

statement of law from Halsburys Laws of England, [4th Edn.,

Vol.10, para 713] was quoted with approval:- Prima facie,

no matter is deemed to be beyond the jurisdiction of a

superior court unless it is expressly shown to be so, while

nothing is within the jurisdiction of an inferior court

unless it is expressly shown on the face of the proceedings

that the particular matter is within the cognisance of the

particular court.

This Court observed that the jurisdiction of courts is

carved out of sovereign power of the State. People of free

India are the sovereign and the exercise of judicial power

is articulated in the provisions of the Constitution to be

exercised by courts under the Constitution and the laws

thereunder. It cannot be confined to the provisions of

imperial statutes of a bygone age. Access to court which is

an important right vested in every citizen implies the

existence of the power of the Court to render justice

according to law. Where Statute is silent and judicial

intervention is required, Courts strive to redress

grievances according to what is perceived to be principles

of justice, equity and good conscience.

That the power of judicial review is a basic structure

of Constitution ___ is a concept which is no longer in@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

issue.@@

JJJJJJ

Is there any conflict between the jurisdiction conferred

on the High Courts by Article 226 of the Constitution and

the embargoes created by Article 329 and if so how would

they co-exist came up for the consideration of a

Constitution Bench of this Court in N.P.Ponnuswami Vs. The

Returning Officer, Namakkal Constituency & Ors. - AIR 1952

SC 64. The law enunciated in Ponnuswami was extensively

dealt with, also amplified, by another Constitution Bench in

Mohinder Singh Gill and Anr. Vs. The Chief Election

Commissioner, New Delhi and Ors. - AIR 1978 SC 851. The

plenary power of Article 329 has been stated by the

Constitution Bench to be founded on two principles : (1)

The peremptory urgency of prompt engineering of the whole

election process without intermediate interruptions by way

of legal proceedings challenging the steps and stages in

between the commencement and the conclusion; (2) The

provision of a special jurisdiction which can be invoked by

an aggrieved party at the end of the election excludes other

form, the right and remedy being creatures of statutes and

controlled by the Constitution. On these principles the

conclusions arrived at in Ponnuswamis case were so stated

in Mohinder Singh Gills case:-

(1) Having regard to the important functions which the

legislatures have to perform in democratic countries, it has

always been recognised to be a matter of first importance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

that elections should be concluded as early as possible

according to time schedule and all controversial matters and

all disputes arising out of elections should be postponed

till after the elections are over, so that the election

proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the

election law in this country as well as in England is that

no sigificance should be attached to anything which does not

affect the election; and if any irregularities are

committed while it is in progress and they belong to the

category or class which under the law by which elections are

governed, would have the effect of vitiating the election

and enable the person affected to call it in question, they

should be brought up before a special tribunal by means of

an election petition and not be made the subject of a

dispute before any court while the election is in progress.

However, the Constitution Bench in Mohinder Singh Gills

case could not resist commenting on Ponnuswamis case by@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

observing (vide para 25) that the non-obstante clause in

Article 329 pushes out Article 226 where the dispute takes

the form of calling in question an election, except in

special situations pointed out at, but left unexplored in

Ponnuswami.

Vide para 29 in Mohinder Singh Gills case, the

Constitution Bench noticed two types of decisions and two

types of challenges : The first relating to proceedings

which interfere with the progress of the election and the

second which accelerate the completion of the election and

acts in furtherance of an election. A reading of Mohinder

Singh Gills case points out that there may be a few

controversies which may not attract the wrath of Article 329

(b). To wit : (i) power vested in a functionary like the

Election Commission is a trust and in view of the same

having been vested in high functionary can be expected to be

discharged reasonably, with objectivity and independence and

in accordance with law. The possibility however cannot be

ruled out where the repository of power may act in breach of

law or arbitrarily or malafide. (ii) A dispute raised may

not amount to calling in question an election if it

subserves the progress of the election and facilitates the

completion of the election. The Election Commission may

pass an order which far from accomplishing and completing

the process of election may thwart the course of the

election and such a step may be wholly unwarranted by the

Constitution and wholly unsustainable under the law. In

Mohinder Singh Gills 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 Courts intervention in such a case

will facilitate the flow and not stop the election stream.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

A third category is not far to visualise. Under Section

81 of the Representation of the People Act, 1951 an election

petition cannot be filed before the date of election, i.e.,

the date on which the returned candidate is declared

elected. During the process of election something may have

happened which would provide a good ground for the election

being set aside. Purity of election process has to be

preserved. One of the means for achieving this end is to

deprive a returned candidate of the success secured by him

by resorting to means and methods falling foul of the law of

elections. But by the time the election petition may be

filed and judicial assistance secured material evidence may

be lost. Before the result of the election is declared

assistance of Court may be urgently and immediately needed

to preserve the evidence without in any manner intermeddling

with or thwarting the progress of election. So also there

may be cases where the relief sought for may not interfere

or intermeddle with the process of the election but the

jurisdiction of the Court is sought to be invoked for

correcting the process of election taking care of such

aberrations as can be taken care of only at that moment

failing which the flowing stream of election process may

either stop or break its bounds and spill over. The relief

sought for is to let the election process proceed in

conformity with law and 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 Courts 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.

In Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzaman (AIR

1985 SC 1233) writ petitions under Article 226 of the

Constitution were filed before the High Court asking for the

writs of mandamus and certiorari, directing that the

instructions issued by the Election Commission should not be

implemented by the Chief Electoral Officer and others; that

the revision of electoral rolls be undertaken de novo; that

claims, objections and appeals in regard to the electoral

roll be heard and disposed of in accordance with the rules;

and that, no notification be issued under S.15(2) of the

Representation of the People Act, 1951 calling for election

to the West Bengal Legislative Assembly, until the rolls

were duly revised. The High Court entertained the petitions

and gave interim orders. The writ petitioners had also laid

challenge to validity of several provisions of Acts and

Rules, which challenge was given up before the Supreme

Court. The Constitution Bench held though the High Court

was justified in entertaining the writ petition and issuing

a rule therein since, the writ petition apparently contained

a challenge to several provisions of Election Laws, it was

not justified in passing any order which would have the

effect of postponing the elections which were then imminent.

Even assuming, therefore, that the preparation and

publication of electoral rolls are not a part of the process

of election within the meaning of Article 329(b), we must

reiterate our view that the High Court ought not to have

passed the impugned interim orders, whereby it not only

assumed control over the election process but, as a result

of which, the election to the Legislative Assembly stood the

risk of being postponed indefinitely.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

In Election Commission of India Vs. State of Haryana -

AIR 1984 SC 1406 the Election Commission fixed the date of

election and proposed to issue the requisite notification.

The Government of Haryana filed a writ petition in the High

Court and secured an ex-parte order staying the issuance and

publication of the notification by the Election Commission

of India under Sections 30, 56 and 150 of the Representation

of the People Act, 1951. This Court deprecated granting of

such ex-parte orders. During the course of its judgment

(vide para 8) the majority speaking through the Chief

Justice observed that it was not suggested that the Election

Commission could exercise its discretion in an arbitrary or

mala fide manner; arbitrariness and mala fide destroy the

validity and efficacy of all orders passed by public

authorities. The minority view was recorded by M.P.

Thakkar, J. quoting the following extract from A.K.M.

Hassan Uzzaman (1982) 2 SCC 218 :- The imminence of the

electoral process is a factor which must guide and govern

the passing of orders in the exercise of the High Courts

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.

and held that even according to Hassans case the Court

has the power to issue an interim order which has the effect

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 democractic

elected popular Government.

In Digvijay Mote Vs. Union of India & Ors. - (1993) 4

SCC 175 this Court has held that the powers conferred on the

Election Commission are not unbridled; judicial review will

be permissible over the statutory body, i.e., the Election

Commission exercising its functions affecting public law

rights though the review will depend upon the facts and

circumstances of each case; the power conferred on the

Election Commission by Article 324 has to be exercised not

mindlessly nor mala fide nor arbitrarily nor with partiality

but in keeping with the guidelines of the rule of law and

not stultifying the Presidential notification nor existing

legislation.

Anugrah Narain Singh and Anr. Vs. State of U.P. &

Ors. - 1996 (6) SCC 303 is a case relating to municipal

elections in the State of Uttar Pradesh. Barely one week

before the voting was scheduled to commence, in the writ

petitions complaining of defects in the electoral rolls and

de-limitation of constituencies and arbitrary reservation of

constituencies for scheduled castes, scheduled tribes and

backward classes the High Court passed interim order

stopping the election process. This Court quashed such

interim orders and observed that if the election is imminent

or well under way, the Court should not intervene to stop

the election process. If this is allowed to be done, no

election will ever take place because some one or the other

will always find some excuse to move the Court and stall the

elections. The importance of holding elections at regular

intervals cannot be over- emphasised. If holding of

elections is allowed to stall on the complaint of a few

individuals, then grave injustice will be done to crores of

other voters who have a right to elect their representatives

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

to the democratic bodies.

In C. Subrahmanyam Vs. K. Ramanjaneyullu and Ors. -

(1998) 8 SCC 703 this Court has held that non-compliance of

a provision of the Act governing the elections being a

ground for an election petition, the writ petition under

Article 226 of the Constitution of India should not have

been entertained.

In Mohinder Singh Gills case (supra) the Election

Commission had cancelled a poll and directed a re-polling.

The Constitution Bench held that a writ petition challenging

the cancellation coupled with repoll amounted to calling in

question a step in election and is therefore barred by

Article 329 (b). However, vide para 32, it has been

observed that had it been a case of mere cancellation

without an order for repoll, the course of election would

have been thwarted (by the Election Commission itself) and

different considerations would have come into play.

Election disputes are not just private civil disputes

between two parties. Though there is an individual or a few

individuals arrayed as parties before the Court but the

stakes of the constituency as a whole are on trial.

Whichever way the lis terminates it affects the fate of the

constituency and the citizens generally. A conscientious

approach with overriding consideration for welfare of the

constituency and strengthening the democracy is called for.

Neither turning a blind eye to the controversies which have

arisen nor assuming a role of over- enthusiastic activist

would do. The two extremes have to be avoided in dealing

with election disputes.

Section 100 of the Representation of the People Act,

1951 needs to be read with Article 329 (b), the former being

a product of the later. The sweep of Section 100 spelling

out the legislative intent would assist us in determining

the span of Article 329 (b) though the fact remains that any

legislative enactment cannot curtail or override the

operation of a provision contained in the Constitution.

Section 100 is the only provision within the scope of which

an attack on the validity of the election must fall so as to

be a ground available for avoiding an election and depriving

the successful candidate of his victory at the polls. The

Constitution Bench in Mohinder Singh Gills case (vide para

33) asks us to read Section 100 widely as covering the

whole basket of grievances of the candidates. Sub-clause

(iv) of clause (d) of sub-section (1) of Section 100 is a

residual catch-all clause. Whenever there has been

non-compliance with the provisions of the Constitution or of

the Representation of the People Act, 1951 or of any rules

or orders made thereunder if not specifically covered by any

other preceding clause or sub-clause of the Section it shall

be covered by sub-clause (iv). The result of the election

insofar as it concerns a returned candidate shall be set

aside for any such non-compliance as abovesaid subject to

such non-compliance also satisfying the requirement of the

result of the election having been shown to have been

materially affected insofar as a returned candidate is

concerned. The conclusions which inevitably follow are: in

the field of election jurisprudence, ignore such things as

do not materially affect the result of the election unless

the requirement of satisfying the test of material effect

has been dispensed with by the law; even if the law has

been breached and such breach satisfies the test of material

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

effect on the result of the election of the returned

candidate yet postpone the adjudication of such dispute till

the election proceedings are over so as to achieve, in

larger public interest, the goal of constituting a

democratic body without interruption or delay on account of

any controversy confined to an individual or group of

individuals or single constituency having arisen and

demanding judicial determination.

To what extent Article 329 (b) has an overriding effect

on Article 226 of the Constitution? The two Constitution

Benches have held that Representation of the People Act,

1951 provides for only one remedy; that remedy being by an

election petition to be presented after the election is over

and there is no remedy provided at any intermediate stage.

The non-obstante clause with which Article 329 opens pushes

out Article 226 where the dispute takes the form of calling

in question an election (see para 25 of Mohinder Singh

Gills case, supra). The provisions of the Constitution and

the Act read together do not totally exclude the right of a

citizen to approach the Court so as to have the wrong done

remedied by invoking the judicial forum; nevertheless the

lesson is that the election rights and remedies are

statutory, ignore the trifles even if there are

irregularities or illegalities, and knock the doors of the

courts when the election proceedings in question are over.

Two-pronged attack on anything done during the election

proceedings is to be avoided ___ one during the course of

the proceedings and the other at its termination, for such

two-pronged attack, if allowed, would unduly protract or

obstruct the functioning of democracy.

The founding fathers of the Constitution have

consciously employed use of the words no election shall be

called in question in the body of Section 329 (b) and these

words provide the determinative test for attracting

applicability of Article 329 (b). If the petition presented

to the Court calls in question an election the bar of

Article 329 (b) is attracted. Else it is not.

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

hereinabove:-

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 completing of proceedings

in elections.

2) Any decision sought and rendered will not amount to

calling in question an election if it subserves 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

the well-settled parameters which enable judicial review of

decisions of statutory bodies such as on a case of mala fide

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 courts

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.

These conclusions, however, should not be construed as a

summary of our judgment. These have to be read alongwith

the earlier part of our judgment wherein the conclusions

have been elaborately stated with reasons.

Coming back to the case at hand it is not disputed that

the Election Commission does have power to supervise and

direct the manner of counting of votes. Till 22nd

September, 1999 the Election Commission was of the opinion

that all the ballot boxes of one polling station will be

distributed to one table for counting the ballot papers and

that would be the manner of counting of votes. On 28.9.1999

a notification under Rule 59A came to be issued. It is not

disputed that the Commission does have power to issue such

notification. What is alleged is that the exercise of power

was mala fide as the ruling party was responsible for large

scale booth capturing and it was likely to lose the success

of its candidates secured by committing an election offence

if material piece of evidence was collected and preserved by

holding polling stationwise counting and such date being

then made available to the Election Tribunal. Such a

dispute could have been raised before and decided by the

High Court if the dual test was satisfied : (i) the order

sought from the Court did not have the effect of retarding,

interrupting, protracting or stalling the counting of votes

and the declaration of the results as only that much part of

the election proceedings had remained to be completed at

that stage, (ii) a clear case of mala fides on the part of

Election Commission inviting intervention of the Court was

made out, that being the only ground taken in the petition.

A perusal of the order of the High Court shows that one of

the main factors which prevailed with the High Court for

passing the impugned order was that the learned Government

Advocate who appeared before the High Court on a short

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

notice, and without notice to the parties individually, was

unable to tell the High Court if the notification was

published in the Government Gazette. The power vested in

the Election Commission under Rule 59A can be exercised only

by means of issuing notification in the official gazette.

However, the factum of such notification having been

published was brought to the notice of this Court by

producing a copy of the notification. Main pillar of the

foundation of the High Courts order thus collapsed. In the

petitions filed before the High Court there is a bald

assertion of mala fides. The averments made in the petition

do not travel beyond a mere ipsi dixit of the two

petitioners that the Election Commission was motivated to

oblige the ruling party in the State. From such bald

assertion an inference as to mala fides could not have been

drawn even prima facie. On the pleadings and material made

available to the High Court at the hearing held on a short

notice we have no reason to doubt the statement made by the

Election Commission and contained in its impugned

notification that the Election Commission had carefully

considered the matter and then decided that in the light of

the prevailing situation in the State and in the interests

of free and fair election and also for safety and security

of electors and with a view to preventing intimidation and

victimisation of electors in the State, a case for direction

attracting applicability of Rule 59A for counting of votes

in the constituencies of the State, excepting the two

constituencies where electronic voting machines were

employed, was made out. Thus, we find that the two

petitioners before the High Court had failed to make out a

case for intervention by the High Court amidst the progress

of election proceedings and hence the High Court ought not

to have made the interim order under appeal though the

impugned order did not have the effect of retarding,

protracting, delaying or stalling the counting of votes or

the progress of the election proceedings. The High Court

was perhaps inclined to intervene so as to take care of an

alleged aberration and maintain the flow of election stream

within its permissible bounds.

The learned counsel for the Election Commission

submitted that in spite of the ballot papers having been

mixed and counting of votes having taken place in accordance

with Rule 59A it would not be difficult for the learned

Designated Election Judge to order a re-count of polls and

find out polling-wise break-up of the ballots if the

election- petitioner may make out a case for directing a

re-count by the Court. In his submission the grievance

raised before the High Court was fully capable of being

taken care of at the trial of the election petition to be

filed after the declaration of the results and so the bar of

Article 329(b) was attracted. In this connection he invited

our attention to Chaper XIV-B Counting of Votes of

Handbook for Returning Officers (1998) issued by Election

Commission of India. This is an aspect of the case on which

we would not like to express any opinion as the requisite

pleadings and material are not available before us.

For the foregoing reasons, the appeals are allowed. The

impugned orders of the High Court are set aside. No order

as to the costs.

We make it clear that anything said in this order shall

not prejudice any plea raised or any issue arising for

decision in any election petition which has been filed or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

may be filed and the same shall be decided on its own merits

un-obsessed by any observation made herein.