Holding

The Supreme Court held that High Courts may not intervene in election proceedings unless there is a clear case of mala‑fide, arbitrariness or breach of law, and that orders which facilitate the progress of the election do not fall within the bar of Article 329(b); therefore, the High Court's stay was set aside and the Election Commission's notification upheld.

Summary

During the 1999 Lok Sabha elections in Kerala, the Election Commission issued a notification under Rule 59A of the Conduct of Election Rules, 1961 directing that ballot papers from all ballot boxes in a constituency be mixed before counting to prevent intimidation and victimisation. Two writ petitions were filed in the Kerala High Court challenging the notification, alleging large‑scale booth‑capturing and seeking a stay so that counting could be done booth‑wise. The High Court stayed the notification and issued its own directions for booth‑wise counting. The Election Commission appealed to the Supreme Court, which stayed the High Court order and held that the EC’s notification was valid and that judicial intervention during an ongoing election is permissible only on a clear case of mala‑fide, arbitrariness or breach of law, and only if it does not retard or obstruct the election process. The Court clarified that actions which facilitate the completion of the election do not fall within the bar of Article 329(b), and that the High Court’s stay was not justified. Consequently, the Supreme Court set aside the High Court order and allowed the appeals, while emphasizing the limited scope of judicial review in election matters.

Issues considered

The scope of the High Court's writ jurisdiction under Article 226 to entertain petitions and issue interim directions affecting election proceedings after the commencement of the election, in view of the bar under Article 329(b).
Whether the Election Commission's notification under Rule 59A of the Conduct of Election Rules, 1961 is valid and subject to judicial review.
Whether the High Court's stay of the notification was justified given the alleged allegations of booth‑capturing and the need for preserving evidence.
The parameters governing judicial intervention in election matters, particularly the test of 'calling in question an election' under Article 329(b).

Legislation cited

Conduct of Election Rules, 1961s. Rule 59A
Representation of the People Act, 1951s. 100, s. 135A, s. 66, s. 81

Subjects

Election lawArticle 329(b)Article 226Judicial reviewConduct of Election RulesRule 59ABooth capturingInterim reliefHigh Court jurisdictionElection Commission

Judgment

A ELECTION COMMISSION OF INDIA THROUGH SECRETARY
v.
ASHOK KUMAR AND ORS.

AUGUST 30, 2000

B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND
K.G. BALAKRISHNAN, JJ.]

Election Laws:
c Conduct of pections Rules : Rule 59A-Apprehension of intimidation
and victimization of electors-Notification issued by Election Commission
under Rule 59A of the Conduct of Election Rules, 196J-For mixing of ballot
papers before counting instead of being counted polling station-wise-
Jnteiference by High Court on bald assertion of mala fide-Unwarranted
D Constitution of India: Articles 226 & 329(b)-After commencement of
election process powers ofjudicial review of orders of Election Commission
to be exercised only on strong and substantiated allegations of mala fide,
il/ega/ity or arbitrariness.

E Assistance of Court available to presen•e evidence of irregularities and
to correct aberrations during elections withotit thwarting or postponing the
progress of election proceeding.

Representation of the Peoples Act, J95J: Sections BJ & JOO-Breach
of law having material effect on result of election-Postponement of
p adjudication of disputes till conipleiion of election proceedings-In larger
public interest and conducive to democratic process.

Words and Phrases : 'Election '-Meaning of-Jn the context of Article
329 of the Constitution of India.

G The issue arising for decision in these appeals is with regard to the
scope of the writ jurisdiction of High Courts under Article 226 of the
Constitution of India to entertain petitions in respect of election matters and
to issue interim directions after commencement of the electoral process, in
view of the express bar contained in Article 329.

H The present appeals were filed against an interim order of the High
34
ELECTION COMMISSION OF INDIA v. ASH OK KUMAR 35
Court, whereby a notification issued by the Election Commission containing A
directions as to the manner of counting votes, was stayed. Apprehending
intimidation and victimization of voters in certain constituencies, the Election
Commission had, in the said notification, directed that ballot papers from all
ballot boxes used in a constituency be mixed before counting, instead of being
counted polling station-wise. This notification was challenged on the ground B
that valuable evidence of booth capturing would be lost. The said notification
was stayed by the High Court, during the currency of the process of election,
in exercise of its writ jurisdiction under Article 226 of the Constitution of
India.

While issuing notices in the special leave petitions, this Court stayed C
the impugned order of the High Court. Therefore, counting had already taken
place in accordance with the notification of the Election Commission thereby
rendering infructuous the present appeals. However, since a large number of
writ petitions have been filed before various High Court seeking interim
directions whid1 interfere with the election proceedings, the issues raised in
these appeals were heard and decided on merits. D
Allowing the appeals, the Court

HELD: 1. Any action taken or orders issued by the Election Commission
are open to judicial review on the well-settled parameters which enable judicial
review of decisions of statutory bodies such as in a case of ma/a fide or E
arbitrary exercise of power being made out or the statutory authority being
shown to have acted in breach of law, subject to certain restrictions. (49-G)

1.1. The Court ought not to intervene during the election proceedings
except on a very clear and strong case for its intervention having been made
out by raising pleas with particulars and precision and supported by necessary F
material. (50-C)

1.2. Without interrupting, obstructing or delaying the progress of the
election proceedings, judicial intervention is available if assistance of the
Court has been sought to merely correct or smoothen the progress of the G
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 the stage is set for
invoking the jurisdiction of the Court. (49-H]

2. The words 'no election shall be called into question' in the body of H
36 SUPREME COURT REPORTS (2000) SUPP. 3 S.C.R.
..,
A Article 329(b) provide the determinative test for attracting· applicability of
Article 329(b). If the petition presented to the Court 'calls in question an
election' then only the bar of Article 329(b) is attracted. [49-B]

3. If an election (U1e term 'election' being widely interpreted so as to
include all steps and entire proceedings commencing from the date of
B notification of election till the date of declaration of result) is to be called in
question and which questioning may have the effect of interrupting, obstructing
or protracting the election proceedings in any manner, the invoking of judicial
remedy has to be postponed till after the completion of proceedings in elections.
[49-D)
c 4. 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 completion or in
furtherance of election proceedings cannot be described as questioning the
election. [49-E]

5. While entertaining any election dispute brought to it during the
pendency of the election proceedings the Court must guard against any
attempts to retard, interrupt, protract or stall the election proceedings. Care
has to be taken to see that there is no attempt to utilize the Court's indulgence
~y filing a petition outwardly innocuous but essentially a subterfuge or pretext
E for achieving an ulterior or hidden end. [50-B]

6. In dealing with election disputes a conscientious approach with
overriding consideration for welfare of the constituency and strengthening
democracy is called for. Neither turning a blind eye to controversies nor
F assuming the role of an overenthusiastic activist would do. [47-G]

6.1. In the field of election jurisprudence, such things as do not
materially affect the result of the election are to be ignored. Even if there has
been a breach of law materially affecting the result of the election, the
adjudication of such dispute ought to be postponed till election proceedings
G are over, so as to achieve the goal of constituting a democratic body without
interruption or delay on account of controversy confined to an individual or
group of individuals or single constituency having arisen and demanding
judicial determination. [48-E]

M V. Elisabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd Goa,
H [1993) Supp. 2 sec 433 andDigvijayMotev. Union ofIndia, [1993) 4SCC 175.
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.] · 37

N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency & A
Ors., AIR (1952) SC 64 and Mohinder Singh Gill and Anr. v. The Chief
Election Commissioner, New Delhi and Ors., AIR (1978) SC 851, relied on.

Lakshmi Charan Sen v. A.K.M Hassan Uzzaman, AIR (1985) SC 1233;
Election Commission of India v. State of Haryana, AIR (1984) SC 1406;
Anugrah Narain Singh and Anr. v. State of U.P. and Ors., [1996) 6 SCC 303 B
and C. Subrahmanyam v. K. Ramanjaneyul/u and Ors., [1998) 8 SCC 703,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6843-44 of
1999.
c
From the Judgment and Order dated 4.10.99 of the Kerala High Court
in O.P. Nos. 24516 and 24444of1999.

S. Muralidhar, S.K. Mendiratta and S. Vallinayagam for the Appellant.

V. Sudeer, B. Rama Subba Raju, S.C. Sharma and S. Srinivasan for the D
Respondent No. 2.

G. Prakash for the Respondent Nos. 4-5.

The Judgment ~f the Court was delivered by
E
R.C. LAHOTI, 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 F
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. G
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 H
38 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A as undt:r:-

''NOTIFICATION

No.470/99/JUD-II(H.P.) - WHEREAS, rule 59A of the Conduct of
Elections Rules, 1961 provides that where the Election Commission
B 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;
c
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.
D
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 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,
E each of the Parliamentary Constituencies in the State except I I -
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, I 999 now in
progress;
F
4. NOW, THEREFORE, the Election Commission hereby specifies
each of the said Parliamentary Constituencies except I 1-Emakulam
and 20-Trivaitdrum Parliamentary Constituencies in the State of Kerala,
as the constituencies to which the provisions of rule 59A of the
Conduct of Elections Rules, I 96 I shall apply for the purposes of
G counting of votes at the current General Election to the House of the
People. . .,. _

BY ORDER
Sd/-
(K.J. RAO)
H Secretary, Election Commission of India"
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR (R.C. LAHOTI, J.] 39
In Emakulam and Trivandrum constituencies electronic voting machines A
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. I & 2 herein, laying challenge to the validity of the above B
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 booth
capturing were made as to polling stations throughout the State. At such C
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 D
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 Jess 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 E
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.I, 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. F

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 change in the G
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 el"idence would be
Jost 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 H
40 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A 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
Pleade~ who represented the Chief Electoral Officer. Paucity of time and the
B 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
C 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 Emakulam and Trivandrum parliamentary constituencies, polling
was done with the aid of voting machines and hence excepting these two
D constituencies the Election Commission oflndia 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
E would be filed later, on declaration of the results. The High Court ~lso
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
F 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
G dated22.9.1999.
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
H also produced for the perusal of this court on the affidavit of Shri K.J. Rao,
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.) 41

Secretary, Election Commission of India. This court directed notices to be A
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 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 B
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 C
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
Court 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 D
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 oflndia
and to issue interim directions after commencement of the electoral process. E
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 F
a
"superintendence, direction and control" have 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:-
G
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 H
42 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 Jaw made by
B the appropriatf' 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
C result un<.ler 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. v. Harwan Investment and Trading Pvt. Ltd., Goa,
[1993] Supp 2 SCC 433. It was held that the High Courts in India are sup~rior
D 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 Halsbury's Laws of
E England, [4th Edn., Vol.IO, 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
F 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
G to be exercised by Courts under the Constitution and the Jaws 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,
H equity and good conscience.

)
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.] 43

That the power of judicial review is a basic structure of Constitution- A
is a concept which is no longer in issue.

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 B
of a Constitution Bench of this Court in N. P. Ponnuswami v. The Returning
Officer, Namakkal Constituency and 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. v. 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 C
two principles : (l) 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 D
Constitution. On these principles the conclusions arrived at in Ponnuswami 's
case were so stated in Mohinder Singh Gill's case:-

"(I) Having regard to the important functions which the legislatures
have to perform in democratic countries, it has always been recognised E
to be a matter of first importance that elections should be concluded
as early as possible according to time schedule and all controversial
matters and all disputes arising out of elections should be postponed
till after the elections are over, so that the election proceedings may
not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the election F
law in this country as well as in England is that no significance should
be attached to anything which does not affect the election"; and if
any irregularities are committed while it is in progress and they belong
to the category or class which under the law by which elections are
governed, would have the effect of vitiating the "election" and G
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 Gill's case could H
44 SUPREME COURT REPORTS (2000) SUPP. 3 S.C.R.

A not resist commenting on Ponnuswami's case by observing (vide para 25) that
the non-obstante clause in Article 329 pushes out Article 226 where the
dispute takes the form of calling in question an election, except in special
situations pointed out at, but left unexplored in Ponnuswami.

Vide para 29 in Mohinder Singh Gil/ 's case, the Constitution Bench
B noticed two types of decisions and two types of challenges : The first relating
to proceedings which interfere with the progress of the election and the
second which accelerate the completion of the election and acts in furtherance
of an election. A reading of Mohinder Singh Gill's case points out th~t there
may be a few controversies which may not attract the wrath of Article 329
C (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
D election ifit 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 Jaw. In Mohinder Singh Gill's case, this
E 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,
F the Court's intervention in such a case will facilitate the flow and not stop
the election stream.

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
G 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
H the time the election petition may be filed and judicial assistance secured
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.] · 45

material evidence may be lost. Before the result of the election is declared A
assistance of Court may be urgently and immediately needed to preserve the
evidence without in any manner intenneddling with or thwarting the progress
of election. So also there may be cases where the relief sought for may not
interfere or intenneddle with the process of the election but the jurisdiction
of the Court is sought to be invoked for correcting the process of election B
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 Court's intervention C
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 v. A.K.M Hassan Uzzaman, AIR (1985] SC 1233 D
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 E
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, l 951 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 F
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, G
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 res~lt of which, the election to the Legislative Assembly stood the
'
-=-. risk of being postponed indefinitely'. H
46 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A In Election Commission of India v. 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
B 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 ma/a fide manner; arbitrariness and ma/a fide
destroy the validity and efficacy of all orders passed by public authorities.
C The minority view was recorded by M.P. Thakkar, J. quoting the following
extract from A.KM 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 Court's
writ jurisdiction. The more imminent such process, the greater ought
..
D 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 Hassan 's case the Court has the power to
E 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 democratic elected
popular Government.

In Digvijay Mote v. Union ofIndia & Ors., [1993] 4 SCC 175 this Court
F 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
G not mindlessly nor ma/a 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. v. State of UP. & Ors., [1996]-6 SCC
303 is a case relating to municipal elections in the State of Uttar Pradesh.
H Barely one week before the voting was scheduled to commence, in the writ
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.] 47
petitions complaining of defects in the electoral rolls and de-limitation of A
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
B

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 to the democratic bodies.

In C. Subrahmanyam v. K. Ramanjaneyul/u and Ors., (1998] 8 SCC 703
c
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.
D
In Mohinder Singh Gi/l 's 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, vi de para 32, it has been observed that had it been a case of E
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 F
the Court but the stakes of the constituency as a whole are on trial. Whichever
way the !is 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 G
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, 19 51 needs to be
read with Article 329 (b), the fonner being a product of the later. The sweep
....... of Section l 00 spelling out the legislative intent would assist us in determining H
48 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A 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 atthe polls. The Constitution Bench in Mohinder Singh Gill's case
B (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
C 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 above said 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.
D 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 effect on the result of the election of the
E 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.

F 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
G 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 Gill's 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,
H ignore the trifles even if there are irregularities or illegalities, and knock the
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR (R.C. LAHOTI, J.] 49

doors of the courts when the election proceedings in question are over. Two- A
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 B
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 C
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 D
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. E
(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. F
(3) Subject to the above, the action taken or orders issued by Election
Commission are open to judicial review on the well-settled parameters
which enable judicial review of decisions of statutory bodies such as
on a case of 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
G

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 H
50 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
B must guard against any attempt at retarding, interrupting, protracting or
stalling of the election proceedings. Care has to be taken to see that there
is no attempt to utilise the court's indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving an ulterior or
hidden end. Needless to say that in the very nature of the things the Court
C 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
D 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
E 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
F 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 da_te being then made !1Vailable 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
G 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 ma/a jides 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
H of the main factors which prevailed with the High Court for passing the
ELECTION COMMISSION OF INDIA v. ASHOK KUMAR [R.C. LAHOTI, J.] 51
impugned order was that the learned Government Advocate who appeared A
before the High Court on a short 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 B
was brought to the notice of this Court by producing a copy of the notification.
Main pillar of the foundation of the High Court's order thus collapsed. In the
petitions filed before the High Court there is a bald assertion of mala tides.
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 C
tides 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 D
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 E
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 F
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 G

- 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 H
52 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A bar of Article 329(b) was attracted. In this connection he invited our attention
to "Chapter 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 t
I
and material are not available before us.

B 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

• C
plea raised or any issue arising for decision in any election petition which has
been filed or may be filed and the same shall be decided on its own merits
un-obsessed by any observation made herein.

RC. Appeals allowed.