INDRAJIT BARIJA & ORS. ETC.versusELECTION COMMLSSION OF INDIA & ORS.

              -                                                      225


                         DlDJAJIT IWllJA & OBS, ETC,
                                      v.
                    ELECTION COMMlSSIOll OF INDIA &OBS.

                            SEPIEJo!BER 30, 1985
      [P.N. BllAGIATI, C,J,, AMARENDRA NAIH SEN, V. BALAl<RISllNA ERADI,
                    RA!iGANP.Xll MISRA AND V, J.(!JALlD, JJ. J

           Constitution of India, 1950 - Article 226 - Writ Petition
     challenging holding of elec tiona - Whether maintainable -
     Election Petition ~ Only remedy •

.i         Article 329 (b) - Electoral rolla - Preparation and
     Publication of - Whether part of 'election process•.

           Representation of the People A.ct, 1951, 1s. 100 and 21 (i)
     and Registration of Electors Rules 1960 - Electoral rolls -
     Preparation and Raviaion of - Whether part of 'election process'
     - Challenge to election of a. candidate o,:i tha around of defective
     elector rolla - Maintainability of.

             Geaaral Election to the A11D Le&ialative A11111Dbly wa1
     notified to be held in re~ 1983. The petitioner• filed writ
     petitiona in the Hi&h Court cont1DC111111 that elactiona 1houlcl not
     be held in the State on the bui1 of defective electoral roll•
     prepared ill 1979 and to defer holdill& of the elactiona on
     &CCOl!Zlt of tha prevailiaa di1t11rbed 1it111tion in tha Stat•• An
     intam order for 1t1y of the elactiona wu al10 1ouaht. The Hi&h
     CcNrt did not 1rant interim •ta:v of tha 1l1ction1 thouah it
     111tartai1111d the writ 1'9titiona. The olactiona were held and the
     r1111lt1 were duly notified,

           Writ petitio111 were tharuftor filed in tha High Court
     chllllaains the haldi111 of tha 1lec tiona on tho bui1 of the
     defective electoral rolla and al10 quaationing the validity of
     ell tha el1ctio1111 to the Leai1lltive Al1Dbly and 111 order waa
     1ouaht for di11olution of the  !lout•·
            At tha i1111tanc1 of the Election Comll111ion tht afor11aid
     CHll were tranaf1rr1d to tha Supreme Court. It wu contended on
     behllf of tha P'!titioner1 that the balding of tha elactione on
     the buil of tha electoral roll• of 1979 wa1 not valid
     becs11111 (1) the olectorll rolle were not reviHd before tha
2:26                 SUPREME COURT REPORTS   [1985] SUPP.3 s.c.R.


elections as required by the provisions of s. 21 sub-s.Z(a) of
the Representation of the People Act, 1950; and (2) that the
Election Colllllission had by  a
                               Press note dated Sept. 18, 1979
erroneously directed the electoral authority in charge of the
revision of electoral rolls not to delete the name of any person
on the ground of lack of qualification of citizenship. It was
further contended that the ban of Article 329(b) does not stand
in the way of maintainability of the writ petitions as the
petitioners were challenging the impugned elections as a whole
and not any individual election, and that the electoral rolls
should be revised before the holding of elections as required by
s. 21(2)(9) of the Act.

        Dismissing all the cases,

      HELD: l(i) The writ petitions under Art.226 challenging the
election to the State Legislature are not maintainable ·and
                                                                      ']
election petitions under s. 81 of the Representation of the
People Act 1951 have to be filed in the High Court. [233 DJ

      (ii) Article 329{b) of the Constitution bars any challenge
to elections by a writ petition under Art. 226 as also on the
ground that the electoral rolls on the basis of which elections
were held were invalid. An election can be challenged only by
filing of an election petition in the manner prescribed by the
Representation of the People Act, 1951. In the Act, there is no
concept of elections as a whole. What the Act contemplates is
elections from each constituency and it is that election which is
liable to be challenged by filing of an election petition. The
proceedings under the Act are quite strict, and clear provisions
have been made as to how an election petition has to be filed and
who should be the parties to such election petition. It 11ay be
that there is a co11100n ground which may vitiate the elections
from all the constituencies, but even so it is the electi9n from
each constituency which has to be challenged though the ground of
challenge may be identical, Even where in form the challenge is
 to    the eleCtions as a whole, in effect and subetauce what is
challenged is election from each constituency. Article 329(b)
1111st, therefore, be held to be attracted in the instant case.
 [230 G-i!; 232 B; 231 B~]

       J"&"ll Nath v. Jaswant Singh & 0rs., (1954] s.c.R. 892, Harl
Visiaiu Iamath v. Syed Alued Isbaq & 0rs., (1955] s.c.R. 1104 at
1111 and Durga Shankar Mehta v. Thakur Ragburai Singh & Ora. ,
 [1955] s.c.R. 267, relied upon.
                 INDARJIT BARUA v. ELECTION COMMISSION           227


       (iii) Once the final electoral rolls are published and
elections are held on the basis of such electoral rolls, it is
 not open to anyone to challenge the election from            any
 constituency or constituencies on the ground that the electoral
 rolls were defective. That is not a ground available for
 challenging an election under s. 100 of the Representation of
 People Act, 1951, The finality of the electoral rolls cannot be
 assailed in a proceeding challenging the validity of an election
 held on the basis of such electoral rolls. [231 E-F]

         Kabul Singh v. Kuudan Singh, [1970] 1 s.c.R. 854, relied
upon.

      In the instant case, it is undoubtedly true that the
electoral rolls were not revised before the elections were held,
but the Election Colllllission dispensed with the revision of the
electoral rolls by an order dated January 7, 1983 msde under s.
21, sub-s. (2) and this order has not been challenged in any of
the writ petitions. Hence the impugned elections cannot be
challenged on the ground that they were without revision of the
electoral rolls. [230 C-E]

         2(i) Part Ill of the 1950 Act makes provision for electoral
 rolls    for Assembly Constituencies. Section 21 deals with
 preparation and revision of electoral .rolls. The proviso to s.
 21(2)(b) makes the position clear beyond doubt that if for some
 re.ison an electoral roll is not revised as required by sub-s.
 (2), the unrevised roll is not affected in any way and continues
 to be the elect<iral roll holding the field. (235 B-C; 236 A]

         In the instant case, it is clear that the Election
'·C"olnmission did not give directions contrary to the requirements ,
  of s. 16 of the Act and the revision of the 1979 electoral rolls
  could not be undertaken for reasons beyond the control of the
  Election Commission. Moreover, there was no dispute to the
  electoral rolls of 1977 nor was any challenge advanced against
  the election of 1978 to the State Legislature held on the basis
  of such rolls. Admittedly, the 1979 rolls were the outcome of
  intensive revision of the rolls of 1977, , That being the position
  and in view of the proviso to sub-s. (2) of s. 21, the electoral
  rolls of 1979 were validly in existence and remained effective
  even though the process contemplated in sub-s. (2) for revision
  had not either been undertaken or completed. The electoral rolls
  of 1979 Dist, therefore be regarded as not suffering from any
  legal infirmity though even if the electoral rolls of 1979 were
            228                  SUPREME COURT REPORTS         [t985] SUPP.3 s.c.R.

 A          invalid, that would not . affect the validity of the impugned
            elections nor would a writ petition under Art. 226 of the
            Constitution    be   maintainable     for   challe"8i"8    the   impugned
            election. [237 E-H; 237 C-D)
                  2 (ii) The preparation of electoral rolls is not a process
  B         of election. In a suitable case challenge to the electoral rolls
            for not complying with the law may. be entertained. But the
            election of a candidate is not open to challenge on the score of
            the electoral roll being defective. (239 C-E]

                   ff,p, l'cllDwnm:d V• lie~ ~fficcr, ll=llal OJnsUtu"""Y
 c          ,·on.., (1952] s.c.R. 218, referred to.
                   Lakslm:l Clara.n Sf:n & Ors. v. A.:t..M. lluGall Uz.zag,.m, & Ora.•
            c,AJ!, 739-741/82 Jecided on 8.5.85, relied upon.
                  3 • The Election Commission is directed to carry out
            revision of tbe electoral rolls in accordance ~-J.th the procedure
            prescribed in the Representation of People Act 1950 and the
 D          Electors Registration Rules 1960. [240 G-H)
                  ORlGINlAL JURISDICTION        Transferred Case Nos. 364. to 382
            of 1984.
                   (Under Article 139A of,the Constitution of India.)
 E
                   V·M· Tarkunde, P.G. llarua, S.N. Medhi, Shanti Bhushan, K.K.
            Venugopal, V.M. Tarkunde, Soli J, Sorabji, Hrishikesh Roy, Mrs. ~
            Mr.- Karanjawala, K. Pablay, Swaraj Kaushal, E.c. · Vidyasagar,
            Sushma Swaraj, N.M. Ghatate, s.v. Deshpande, Lira Goswami, Mrs.
            R. · Swamy, c.s. Vaidyanathan,· p; Choudhary, P.G. llarua, Miss
            Lakshmi Anand Kumar and Ms. N. Rama Kumaran for the Petitioners.
      ,_
           '--.     K. Parasaran, Attorney General, J.<.G. Bhagat, Additional
             Solicitor ·General,. A.K. 'Sen, F.s. Nariman, f;R• Mridul, S.N.
             lihuyan, Advocate General Assam, K. Swamy, Ms. A. Subhashini, S.K.
             Nandy, M.z. Ahmed and Kath Hazarika for the· Respondents,
. G            .        .                        r
                   The Judgmen_t of. the .Court was delivered by
                  RANGANATli MISRA, J. At the conclusion of the hearing, in
            view of. the, urgency of the matter as also the importance of the
 H




                    •
 INDARJIT BARUA v. ELECTION COMMISSION [RANGANATll MISRA, J.]   229


issues involved, we made an order on September 28, 1984, setting
out briefly our conclusions and had indicated that detailed
reasons would be given in the judgment to be delivered later.

      On the 12th January, 1983, election to all the 126 seats of
the Assam Legislative Assembly was notified to be held in
February 1983. Very disturbed conditions had been prevailing in
Assam for a few years prior to this period and one of the issues
lesding to the agitation was the electoral rolls of 1979 prepared
under the Representation of the People Act, 1950 ('1950 Act' for
short). When general election was notified, a set of writ
petitions were filed in the Gauhati High Court being Civil Rules
87 and 228-246 of 1983. The first application asked for a
mandamus to the Election Coomission and the State Govermnent then
under President's rule not to hold elections on the basis of the
defective electoral rolls and to defer holding of elections on
account of the prevailing disfurbed situation in the State. In
·the second group of writ petitions the Court was asked to issue a
mandamus for preparation of fresh electoral rolls according to
law before election could be held and to rest~ain the Coomission
and the State Government from holding elections on the basis of
defective and void electoral rolls. The High Court did not grant
interim order of stay of election though the writ petitions were
entertained.   Consequently,   elections were held   to the State
Legislature and by Notification of February 27, 1983, the results
of the election were duly notified. A number of writ petitions
were then filed in the Gauhati High Court more or less making
similar allegations and substantially, challenging the electoral
rolls of 1979 and questioning the validity of all the elections       •
to the legislative Assembly and praying for dissolution of the
House. In some of these applications relief of quo warranto was
also asked for against named returned candidates. These writ
petitiollS were numbered as Civil Rules 524, 691-693, 695-699,
706-707 694 and 525 of 1983 and were in due course transferred
to this Court at the instance of the Election Connnission for
disposal. They have, therefore, been assigned new· numbers as
Transferred Cases. We have thus two sets of cases, transferred
from the Gauhati High Court - the first set challenging the
electoral rolls of 1979 and the Notification for holding of the
elections and asking for staying of the elections and .the second
set challenging the elections after they were held and notified
on the ground that the holding of elections on the basis of the
void electoral rolls of 1979 was contrary to law and vitiated the
elections.
        230               SUPREME COURT REPORTS     [1985] SUPP.3 s.c.R.


    A
              Our order of September 28, 1984, not only indicated the
        conclusions but also provided brief reasons for the same. We,
        therefore, propose to refer to the relevant portions thereof on
        each issue arising for consideration. Dealing with the challenge
        to the validity of elections to Assam Legislative Assembly, we
        had said :
    B
                  "The principal ground on which the validity of the
                  elections has been challenged is that the electoral
                  rolls were not revised before the elections in
                  contravention of the provisions of section 21,
                  sub-section (2)(a) of the Representation of the People
                  Act, 1950, and the elections were held on the basis of
    c             the electoral rolls of 1979. Now it is undoubtedly
                  true that the electoral rolls were not revised before
                  the impugned elections were held but the Election
                  Commission dispensed with the revision of the
                  electoral rolls by an order dated January 7, 1983,
                  made under the opening part of section 21, sub-section
                  (2) and this order has not been challenged in any of
    D             the writ petitions. Hence the impugned elections
                  cannot be challenged on the ground that they were
                  without revision of the electoral rolls. The
                  petitioners also attacked the validity of the
                  electoral rolls of 1979 on the ground that the
                  Election Comnission had by the Press Note dated
    E
                  September 18, 1979, erroneously directed the electoral
                  authorities in charge of revision of the electoral
•                 rolls not to delete the names of any persons from the     '
                  electoral rolls on the ground of lack of qualification
                  of citizenship since the question of citizenship was
                  not one which could be decided by the electoral
    F
                  authorities and the electoral rolls of 1979 were,
                  therefore, invalid and the impugned elections held on
                  the basis of the electoral rolls of 1979 were void· We
                  do not think there is any substance in this
                  contention.
    G
                   In the first place, Art. 329(b) of the Constitution
                   bars any challenge to the impugned elections by a writ
                   petition under art. 226 as also on the ground that the
                   electoral rolls on the basis of which the impugned
                   elections were held were invalid. The petitioners
                   sought to escape from the ban of Art. 329(b) by
    H
                   contending that they are challenging the impugned
lNllARJlT BARUA v. ELECTION COMMISSION [llANGANATH MISRA, J.J       231

                                                                          A
          el.ections as a whole and not any indlvidual election
          and that the ban of Art. 329(b), therefore, does not
          stand ln the way of the wri.t petitions filed by thern
          challenging the impugned elections. But we do not
          think this escape route is open to the petitioners.
          There is in the Representation of the People Act,               B
          1951, no concept of elections as a whole. What that
          Act contemplates is election from each constituency
          and it is thst election which is liable to be
          chsllenged by filing an election petition. It may be
          that there is a comnon ground which may vitiate the
          elections from all the constituencies, but even so it           c
          is the election from each constituency which hss to be
          challenged though the ground of chsllenge may be
          identical. Even where in form the chsllenge is to the
          elections as a whole, in effect and substance what is
          chsllenged is election from each constituency, and
          Article 329(b) must, therefore, be held to be                   D
          attracted.

          We are of the view that once the final electoral
          rolls are published and elections are held on the
          basis of such electoral rolls, it is not open· to
          anyone to chsllenge the election from any constituency          E
          or constituencies on the ground thst the electoral
          rolls were defective •. Thst ·is not a ground available
          for challenging an eiection under s. 100 of the
          Representation of People Act, 1951. The finality of
          the electoral rolls cannot be assailed in proceeding
          challenging the validity· of an election held on the
          basis of such electoral roll vide Kabul Si.Dab v.               F
          lundan Si.Dab; [1970] l s.c.a. 845. Article 329(b) in
          our opinion clearly bars any writ petition chsllenging
          the impugned election on the ground thst the electoral
          rolls of 1979 on the basis of which the impugned
          elections were held were invalid."
                                                                          G
    Article 329(b) of the Constitution provides

           "Notwithstanding anything in this Constitution:-

           (a)      x                       x                   x

           (b) No election to either House of Parliament or to            H
           the House or either House of the Legislature or a
           State shell be called in question except by ar.
    232                SUPREME COURT REPORTS        [1985] SUPP.3 s.c.R.

A
               election petition presented to such authority and in
               snch manner· as may be provided for by or under any law
               made by the ~ppropriate legislature."

         Therefore, an election can be challenged only by f.Uing of
B   an election petition in the manner prescribed by the
    Representation of the People Act, 1951. A Constitution Bench of
    this Court In Jagan Nath v. Jaswant Singh & Orso:i[1954 J s.c.R.
    892, has said :

               "The general rule is well settled that the statutory
               requirement of election law must be strictly observed       \

c              and that an election contest is not an election at law
               or a suit in equity but is a purely statutory
               proceeding unknown to the co1llll0n law and that the
               Court possesses no cOt11I1on law power."

          In Bari Vishnu Kamath v. Syed Ailliad Ishaq & Ors., [1955]
    S.C.R. 1104 at llll, Venkatarama Ayyar, J, speaking for the Court
D   said:

              " .. Tnese are instances of original proceedings calling
              in question an election, and would be' within the
              prohibition enacted in Article 3i9(b), But when once
              proceedings have been instituted in accordance with
E             Article 329(b) by presentation of an election
              petition, the requirements of that article are fully
              satisfied. Thereafter when the election petition is in
              due course heard by a Tribunal (now the High Court)
              and decided, whether its decision is open to attack,
              and if so, where and to what extent, must be
F             determined by the general law applicable to decisions
              of Tribunals.      .. .The view that Article 329(b) is
              limited in its operation to initiation of proceedings
              for setting aside an election and not to the further
              stages following on the decision of the Tribunal is
              considerably reinforced,       when the question is
G             considered with reference to a candidate whose
              election has been set aside by the Tribunal."

         To the same effect are the observations of another
    Constitution Bench in the case of Durga Sbaokar llebta v. 'l'hakur
    Kaghuraj Singh 6 Ors., [1955] S.C.R. 267, Mukherjea, J. (as he
H   then was) spoke for the Court thus :
INDARJIT BARUA v. ELECTION COMMISSION [RANGANATH MISRA. J • J 233


          "The non obstante clause with which article 329 of the    A
          Constitution begins and upon which the respondent's
          counsel lays so much stress debars us, as it debars
          any other Court in the land, to entertain a suit or a
          proceeding calling in question any election to the
          Parliament or the State Legislature. It is the
          election Tribunal (now the High Court) alone that can     B
          decide such disputes, and the proceeding has to be
          initiated by an election petition and in such manner
          as may be provided by a statute ......

     These are clear authorities and the position has never been
assailed in support of the position that an election can be         c
challenged only in the manner prescribed by the Act. In this view
of the matter, we had concluded that writ petitions under Article
226 challenging the election to the State Legislature were not
maintainable and eL~ction petitions under section 81 of the Act
had to be filed in the High Court. The Act does not contemplate a
challenge to the election to the Legislature as a whole and the     D
scheme of the Act is clear. Election of each of the returned
candidates has to be challenged by filing of a separate election
petition. The proceedings under the Act are quite strict and
clear provisions have been made as to how an election petition
has to be filed and who should be parties to such election
petition. As we have already observed, when election to a           E
Legislature is held it is not one election but there are as many
elections as the Legislature has members. The challenge to the
elections to the Assam Legislative Assembly by filing petitions
under Article 226 of the constitution was, therefore, not tenable
in law.

     It is the admitted case of parties before us that the          F
electoral rolls of all the constituencies excepting one in the
State of Assam were last revised intensively during the year 1979
with reference to January 1, 1979, as the qualifying date. In
the case of No. 114 - Jonai (S.T.) Assembly Constituency only
summary revision was undertaken as_ intensive revision was not
possible for the reason that these areas were submerged heavily     G
by flood water at the relevant time. The general election to the
House of Parliament was held in 1980 on the basis of the said
electoral rolls. An annual revision of the electoral rolls as per
requirement of the law as also the practice obtaining in the rest
of the country could not be undertaken in 1980-81, or 1982 mainly
on account of adverse law and order situation prevailing in the
State.                                                              H
     234                SUPREME COURT REPORTS     [1985] SUPP.3 s.c.R.
A

          The Legislative Assembly of the State of Assam had been
     dissolved by the President acting under Article 356 of the
     Constitution by proclamation dated March 19, 1982, and the
     extended period was due to expire on March 18, 1983. The Election
B    Commission was intimated by the Union Government on January 6,
     1983, that the Presidential proclamation would be revoked by the
     end of February 1983. Holdi"i of election in Assam for
     constituting the Legislative Assembly well before the end of that
     period, therefore, became an immediate necessity. The Election
     Commission had hardly eight weeks' time in its hand to complete
     the process. Without loss of further time the Conmission issued
c    the Notification announcing the election programme on January 12,
     1983, and the election was proposed to be held on the basis of
     the existing electoral rolls of 1979.

          According to the petitioners the electoral rolls of 1979
     without bein., a~~ro~riately revised as required by law were not
     the proper rolls on the basis of which election could have been
D    conducted. It has been pointed out that the process of revision
     had been undertaken but the Election Conmission suddenly stopped
     it and decided that the unrevised and out of date rolls would
     provide the basis for holding of the elections. It is the
     submission of the petitioners on the basis of a decision of this
     Court in Chief Ccmlissioner, A.)ler v. lladhey Sbya Dani, [1957]
E    s.c.R. 68, that it is essential for democratic elections that
     proper electoral rolls should be maintained and in order that the
     same may be available, it is necessary that after the preparation
     of the electoral rolls opportunity should be given to the parties
     concerned to scrutinise whether the persons enrolled as electors
     possess the requisite qualifications. Opportunity should also be
F    given for the revision of the electoral rolls and for the
     adjudication of the claims for being enrolled. Unless these are
     done the obligation cast upon those holding the ele.ctions is not
     discharged and the elections held on such imperfect electoral
     rolls would acquire no sanctity and would be liable to be
     challenged at the instance of the parties concerned. In the case
G    referred to above, validity of wnicipal elections was under
     consideration. Obviously provisions of Article 329(b) of the
     Constitution had no application to such election and this Court
     was dealing with the statutory requirements for holding of the
     elections.
Ii        Challenge to the 1979 electoral rolls is on the basis that
     persons who are not citizens of India have been included in the
     electoral rolls. Infiltration of people from outside India into
 INDARJIT RARUA v. ELECTION COMMISSION [RANGANATH MISRA, J. ] 235


Assam and inclusion of their names in the electoral rolls            A
constl.tuted one of the main grounds for the agitation in Assam.
Section 16 of the 1950 Act clearly provides that a person shall
be disqualified for registration in an electoral roll if he is
not a citizen of India. Detailed provision has been made in the
Registration of Electors Rules to raise objection to the
inclusion of the name of a disqualified person. Part Ill of the      B
+950 Act makes provision for electoral rolls for Assembly
Constituencies. Section 21 deals with preparation and revision of
electoral rolls; section 22 provides for correction of entries in
electoral rolls while section 23 authorises inclusion of names in
electoral rolls. Sec ti on 24 provi~es an appeal to the Chief
Electoral Officer from any order made by the Electoral               c
Registration Officer under s. 22 and 23. Section 21 making
provision for preparation and revision of electoral rolls runs
tlrus:

           "(1) The electoral roll for each constituency shall be
           prepared in the prescribed manner by reference to the     o
           qualifying date and shall come into force iolllediately
           upon its fi!lal publics tion in accordance with the
           rules made under this Act.

           (2) The said electoral roll -
                                                                     E
           (a) shall, unless otherwise directed by the Election
           Col!lnission for reasons to be recorded in writing, be
           revised in the prescribed manner by reference to the
           qualifying date-

           (i) before each general election to the House of
           People or to the Legislative Assembly of a State; and     F

           (ii) before each by-election to fill a casual vacancy
           in a seat allotted to the constituency; and

           (b) shall be revised in any year in the prescribed
           manner by reference to the qualifying date if such        G
           revision has been directed by the Election Commission:

           Provided that if the electoral roll is not revised or
           continued operation of the said electoral roll shall
           not thereby be affected.

           (3)     x      x     x     x      x   x    x     xx"      H
    236                SUPREME COURT REPoRTS     [1985] SUPP.3 s.c.R.

A
    The proviso, therefore, makes the position clear beyond doubt
    that if for some reason an electoral roll ie not revised as
    required by sub-a. (2), the unrevised roll is not affected in any
    way and continues to be the electoral roll holding the field.

B        Dealing with the aspect about the validity of electoral
    rolls of 1979, we have indicated

               "We may also point out that in our opinion the
               electoral 'rolls of 1979 cannot be condemned as
               invalid. The counter/affidavit• of Shri Ganesan,
               Secretary to the Elec>tion Commission and Shri Ashok
c              Kumar Arora, Additional Chief Electoral Officer,
               Assam, clearly show that the procedure prescribed by
               the Representation of the People Act, 1950, for
               revision of the electoral rolls was followed. The
               Press Note dated September 18, 1979, on which
               considerable reliance was placed on bshalf of the
               petitioners nust be reed along with the correspondence
D              exchanged between the Chief Electoral Officer, Assam
               and the Secretary to the Election Commission prior to
               the issue of the Press Note and if all these documents
               are read as a whole, it is clear that no instructions
               were issued by the Election Commission to the Chief
               Electoral Officer not to decide the question of
E              citizenship if any objection to a particular entry in
               the draft electoral rolls was raised on the ground of
               lack of qualification of citizenship. All tilat the
               Election Commission directed the Chief Electoral
               Officer to do was to proceed on the basis that those
               whose names were already included in the previous
F            . electoral rolls and we may point out that the
               electoral rolls of 1977 on the basis of which the
               election to the Assam Legislative Assembly were held
               in 1978 were not at any time challenged by any of the
               petitioners should be prima facie regarded as
               satisfying the qualification of citizenship and if any
G              specific objection to the'inclusion of any particular
               person on the ground of lack of qualification of
               citizenship was raised, i t should be decided by the
               appropriate electoral authorities and the burden of
               showing that such person was not a citizen should be
               on the objector. We are informed and the affidavita
H              also go to show that in fact a large number of
 l!illARJIT &\RUA v,, ELECIION Wf!ISSION (RANGANATH MISRA, ,J, J 237

                         i
               objections lbased on the ground of lack of                 A
             , qualification' of citizenship were disposed of by the
               appropriate    electoral , authorities     after     the
               publication of the draft electoral rolls. So far as
               the inclusion of any new names in the draft electoral
               rolls was concerned, the Election Commission directed
            , that the utmost care should be taken to ensure that         JI
               only citizen,s were enrolled as electors. lie do not
         , '_think that these were in any way in defiance of the
               provisions of the Representation of the' People Act,
               1950, and the Electoral Regiatratioti Rules, 1960 made
               under the Act., The electoral rolls of 1979 llll8t 1
               therefore, be regarded as not suffering from any legal     c
               infirmity, though we may reiterate once, again that
               even if the electoral rolls of 1979 were invalid, that
               would not affect the , valiciity of, the impugned
               elections nor would a writ petition under Article 226
               of: the Conatitution be maintainable for challenging
               the impugned election•" , ,             , .'      ,,       0

       From the materials placed by the, patties and the Election
  Commission, we have come to the conclusion that the Election
  Commission did not give directions contrary to the requirements
  of S• 16 of the Act and the revision of the 1979 electoral rolls
, could not be undertaken for reasons beyo~d the control of the           E
  Election Commission• AS pointed out by us in our order of
  September 28, 1984, ther11 was no dispute to the electoral roll of
  1977 nor was any challenge advanced against the election of 1978
  to the State Legislature held on the , basis of such rolls.,
  Admittedly, the 1979 rolls were the outcome of intensive revision
  of the rolls of 1977, That being the position and in view of the
  proviso to sub-section (2) bf s. 21 which we have extracted above       F
  the electoral rolls of 1979 were validly in existence and
  remained effective even though the process contemplated in sub-••
  (2) for revision had not either been undertaken or completed. tt
  has been indicated by a Constitution Bench decision of this, Court
  in Lalcahni Charan Sen & Ora. v. A.LK. , Hassan Uzz= • Ono
  c.As. 739~741/82 decided on 8.5.85, that preparation and revision
  of electoral rolls is a continuous proces!J'not connected with any
  particular election but when an election, is to be held, the
  electoral roll which exists at the t:lm.l when election is notified
  would form the foundation for oolding of such, election• That is
  why aub-s, (3) of : s, 23 provides for auspension , of iw/ ,
  modification to the electoral roll after the last date of making
  of riominations , for an electi6n and, until c0t1pletion of the          II   •
     238               SUPRL'!E GOL"RT REPORTS     [1985] SllPP.3 s.c.R.

A    election. We had, therefore, co:we to the conclusion that the
     electoral rolls of 1979 were not invc.lid and .could provide the
     basis for holding of the elections in 1983. I.nether preparation
     and publication of the electoral rolls are a part of the process
     of election within the meaning of Article 329(b) of the
     Constitution is the next aspect to be considered. In N.P.
B
     Ponnus-1 v. llet:urniog Officer, Nam•kk•l Constitueocy &
     Ors. [1952] s.c.R. 218, this Court had to decide the amplitude of
     the term "election". Fazal Ali, J, speaking for the constitution
     Bench indicated :

                "It seems to me that the word 'election' has been used
                in Part ~ of the Constitution in the wide sense, that
                is to say, to connote the entire procedure to be go
                through to return a candidate to the legislature. The
                use: of the expression "conduct of elections" in
                article 324 specifically points to the wide meaning,
                and that meaning can also be read consistently into
                the other provisions which occur in Part ~ including
                article 329(b). That the word "election" be'lrs this
D
                wide meaning whenever we talk of elections in a
                democratic country, is borne out by the fact that in
                most of the books on the subject and in several cases
                dealing with the matter, one of the questions mooted
                is, when the election begins. The subject is dealt
                with quite concisely in Halsbury's Laws of England in
E
                the following passage under the heading "Colllllencement
                of the Election":-

                  'Although the first formal step in every election is
                the issue of the writ, the e:J.ec tion is considered for
                some purposes to begin at an earlier date. It is a
F
                question of fact in each case when an election begins
                in such a way as tO· make the parties concerned
                responsible for breaches of election law, the test
                being whether the contest is "reasonably imminent".
                Neither the issue of the writ nor the publication of
                the notice of election can be looked to as fixing the
G
                date when an election begins from this point of view.
                Nor, again · does the nomination day afford any
                criterion. The election will usually begin at least
                ear lier than the issue of the writ. The question when
                the election begins must be carefully distinguished
                from that as to when "the conduct and management of"
ti
INDARJIT BARUA v. ELECTION COMMISSION [RANGANATH MISRA, J. J 239


          an election may be said to begin. Again, the question      A
          as to when a particular person conmences to be a
          candidate is a question to be considered in each
          case.'

          The discussion in this passage makes it clear that the
          word "election" can be and has been appropriately used     B
          with reference to the entire process which consists of
          several stages and embraces many steps, some of which
          may have an important bearing on the result of the
          process."

We are not prepared to take the view that preparation of             C
electoral rolls is also a process of election. We find support
for our view from the observations of Chandrachud, C.J. in
Laksbni Charan Sea's case (supra) that "it may be difficult,
consistently with tr.at view, to hold that preparation and
revision of electoral roll, is a· part of 'election' within the
meaning of Article 329(b)". In a suitable case challenge to the      D
electoral roll for-not complying with the requirements of the law
may be entertained subject to the rule indicated in Poonuswami's
case (supra). But the election of a candidate is not open to
challenge on the score of the electoral roll being defective.
Holding the election to the Legislature and holding them
according to law are both matters of paramount importance. Such      E
elections have .to be held also in accordance with a time bound
programme contemplated in the constitution and the Act. The
proviso added in s.22(2) of the Act of 1950 is intended to extend
cover to the electoral rolls in eventualities which otherwise
might have interfered with the smooth working of the programme.
These are the reasons for which we came to the conclusion that
the electoral roll of 1979 had not been vitiated and was not open    F
to be attacked as invalid.

     Two other brief contentions may now be noticed. In
Transferred Case No.364/84 there was a prayer that the electoral
rolls on the basis of ·which election from Assam would be held
should be revised before the holding of such election as required    G
by ss. 21(2) (a) of the Act> of 1950. This meant an intensive
revision. Counsel appearing for ·the Election Colllllission made a
statement before the Court to the following effect:

           "The Co=ission will carry out revision of the
           elector rolls for all constituencies in Assam in
           accordance with the Act and the. Rules ·and such          H
     240                 SUPREME COURT REPORTS     [1985] SUPP.3 s.c.R.


A               revision shall, as far as praticable be intensive
                revision and wherever it is not prac.ticable to carry
                out intensive revision in any constituency or
                constituencies, the revision shall be sumnary or
                special revision."

B    We indicated in our order of September 28, 1984, that the
     1tatement made on behalf of the Election Comnission lll'JSt allay
     the apprehension of all the petitioners in the case since it made
     it clear that before eletions are held i.n As1am, there would be
     reviaion of the electoral rolls in the manner indicated in the
     statement. Considerable argument was advanced with reference to
     the electoral card. As it appears the Election Commiaeion had
C    introduced a form different from the one preacribed in Form 4
     read with rule 8 of the Electors Registration Rule•· Here again,
     a •tatement was made on behalf of the Comniasion to the following
     effect :

                "For the sake of greater clarity and keeping in view
                the proviliona of a.2(c) of the Repreaentetion of the
D               People Act, 1951, and Form 4 of the Regiatration of
                l!lectora Rules, 1960 1 the word 'citizen' 1hall be
                1ubstituted for the word 'elector' wherever it occur•
                in the electoral card by i11uenco of a direction by
                the Elie tion CommiHion. "

I!   With the adoption of tho buil indieated in tho 1t&temont 1 thl
     obj1ction on that 1cor1 mu1t bfl Uken to have vani1hod·

            Con1id1rable arg\lllllnt had al1c been advanced r1prdina th•
     carryi1111 out of r1vi1ion of al1ctoral roll•· P1tit~oner1 wanted
     that the Election Collllli11ion 1hould do 10 ll10 moto while thl
F    ll:lection Comm111ion pleaded itt inability keeping in view the
     ambit and 1tup1ndou1 proportion of the tuk and plud1d that
     claim or objection 1hould be thl foundation of thl revi1ion.
     Dealing with thl.1 qu11tion, aftor hearing counael at arut length
     WI had lt&ttd I


G               "Th• only direction Which we can 11iv1 to tho Election
                Commi11ion i1 to carry out r1vi1ion of thl 1lactor1l
                rolll in accordance with thl procedure pr11cri bed in
                thl Ropre1entation of P•ople Act, 1950 and thl
                Elector. Regiltration Rulaa, 1960. But 1inca thl
                Election Commi11ion ha• 1tated before u1 that it will
II              carry out revi1ion of the electoral roll• and that
INDARJIT BARUA v, ELECTION COMMISSION [ RANGANATH MISRA, J.]   241
                                                                      A
          such revision shall, as far as practicabie, be
          intensive revision and where it is not so practicable,
          it will be swmnary or special, we do not think it
          necessary to give any further directions to the
          Election Commission. When the draft electoral rolls
          are ready as a result of such revision carried out by       B
          the Election Conmission, it will be open to anyone
          whose name is not included in the draft electoral
          rolls to lodge a claim for inclusion of his name on
          the ~round that he is an eligible elector and if the
          name of any person is erroneously included in the
          draft electoral rolls even though he is not a citizen,      c
          it will be equally open to anyone entitled to object
          to challenge the inclusion of the name of such person
          in the draft electoral rolls by filing an objection in
          accordance with the Electors Registration Rules, 1960.
          It is neither desirable nor proper for us to lay down·
          as to what quantum of proof should be required for the      D
          purpose of suostantiating any such claims or
          objections lodged before the Election Cormnission. It
          would be for the appropriate electoral officer to
          consider and decide in the light of such material as
          may be produced before him by the objector as also by
          the person whose name is sought to be deleted from the      E
          electoral rolls and such further material as may be
          available to him including the electoral rolls of the
          earlier years, whether such person is a citizen or
          not. We may point out that the appropriate electoral
          officer may also on his own, if he has on the material
           available to him including the electoral rolls of the
           earlier years, reason to entertain any doubt,       take   F
           steps to satisfy himself 1.n regard to the citizenship
          of a person whose name is sought to be included or has
          been included in the electoral rolls.

     We take note of the position and with a sense of
satisfaction that with the accord reached aoout Assam the             G
agitation seems to have ended. The Election Connnission is at work
and in compliance with the provisions of the Act and the Rules,.
the electoral rolls are being revised. We hope and trust' that
elections which are indispensable to the democratic process would
be held in accordance with law as expediently as possible and on
the basis of a revised electoral roll in tenus of .the statement
made to the Court by the Election Conmission.                         H



                                      Transferred Cases dismissed.