Research › Browse › Judgment

Gauhati High Court · body

1985 DIGILAW 46 (GAU)

A. F. Golam Osmani v. Election Commission of India, New Delhi & Others

1985-11-25

K.N.SAIKIA, P.C.REDDI

body1985
Saikia, J. - The writ petitioner herein, claiming to have been authorised to represent a Committee named and styled as "Co­ordination Committee of Minority Organisations of Assam'', hav­ing five constituent minority organisations of about 60 lakhs people, challenges the validity of the Orders, Circulars and Gui­delines/Instructions, Annexure B, B-1, B-2 to the petition, issued by the Election Commission of India either by it.-elf or through its instrumentalities for revision of electoral rolls in the State of Assam, on the grounds of those being violative of Rules 10 to 28 of the Registration of Electors Rules, 1960 and of Articles 14 and 21 of the Constitution of India; and he seeks a writ of mandamus and/or any other appropriate writ commanding that the circu­lars dated 4.7.85 (Annexture B-1 to the petition), and dated 30.7.85 (Annexure B-2 to the petition) and para 32 of the Conso­lidated Guidelines/Instructions dated 18.9.85 (Annexure B to the petition) hereinafter compendiously referred to as 'the guidelines', be withdrawn or cancelled; and he also prays that pending prepa­ration of the "fair and legal Electoral Roll" the Election Co­mmission of India (hereinafter referred to as 'the Election Co­mmission') be restrained from issuing or publishing any notifica­tion under Sections 14(2) and 15 of the Representation of the Peo­ple Act, 1951. 2. The petition was moved on 7.11.85 before the Vacation Bench and as directed by the Hon'ble Vacation Judge it has come up for admission before this Bench. Meanwhile the respondent No. 3, the Chief Electoral Officer, Assam and the respondent No. 5, the Chief Secretary, Government of Assam have appeared. 3. Mr. 2. The petition was moved on 7.11.85 before the Vacation Bench and as directed by the Hon'ble Vacation Judge it has come up for admission before this Bench. Meanwhile the respondent No. 3, the Chief Electoral Officer, Assam and the respondent No. 5, the Chief Secretary, Government of Assam have appeared. 3. Mr. B. K. Das, the learned counsel for the petitioner submits, inter alia that this petition is in the nature of a pub­lic interest litigation; that the petitioner represents the sixty lakhs strong Co-ordination Committee which has five constitu­ent organisations, namely, (1) The Assam State Jamiat (2) Citizens Right Preservation Committee, Assarr, (3) Alt Assam Minority Students Union, (4) All Assam Minority Forum and (5) All Assam Minority Juba Parishad, formed by religious linguistic and ethnic minority groups, which apprehend collu­sive deletion of names of voters of Indian origin from the electoral rolls in consequence of the impugned guidelines in the process of revision of electoral rolls in the State of Assam; that in the background of the last agitation in the State culminating in the signing of the Assam Accord and the decision of the Hon'ble Supreme Court in Indrajit Barua and others vs. Election Co­mmission and others, the revision of electoral roll is being undertaken in Assam in accordance with the guidelines issued by the Election Commission of India from time to time and as a result of the aforesaid impugned guidelines the names of "26 lakhs of Electors" have been rejected and/in deleted in 37 con­stituencies; that thus there has been deletion of about 40% of the names of electors belonging to the aforesaid minority groups as stated in paras 15 to 19 of the petition; that there has been wide scale anomalies and misuse of power in entertaining unauthorised objections in unspecified applications and issuing notices on basis thereof; that as a result of mass scale objections even to the names of every old settlers of Gauhati town belonging to mino­rity groups notices were issued and they had to produce proof of their citizenship and the names of these who failed to do so were deleted; that their individual appeals under the Registra­tion of Electors Rules, 1960 (hereinafter referred to as the Rules) would amount to appeals from "Caesar to Caesar's wife", and hence without making any endeavour to prefer individual appeals which would run in millions, the petitioner being authorised by the Co-ordination Committee is perusing this public interest li­tigation to vindicate the rule of law and fair play inaction as envisaged under Articles 14 and 21 of the Constitution of India. Mr. Das further submits that the preparation of the draft elec­toral roll in two parts viz. in List I and List II is not envisaged by any election laws and rules and the Election Commission discriminated by introducing this system of arranging persons in two groups, one whose citizenship is not doubted according to its own exparte presumptions and the other whose citizenship it doubted, ail the Election Commission has acted illegally and in excess of its jurisdiction in issuing circulars to that effect and also the consolidated circular, more particularly para 32 of that circular, which is in starvation of Rule 13 which specifies forms (VI, VII and VIII) for the purposes of claims and objections; and that the said circular having been acted upon in rejecting and/or deleting names of about 26 lakhs of electors in 37 constituencies the same must be set aside and quashed, and the intensive revision so made as to prepare a "fair and legal Electoral Roll". 4. Mr. 4. Mr. S. N. Bhuyan, the learned Advocate General, Assam appearing for respondent No. 5, demurs submitting, inter alia,, that Rule 23 of the Rules having provided for appeals and the persons claimed to have been represented by the petitioner having not availed of that remedy this writ petition is not maintainable for vindicating their individual rights; that the petitioner's name has not been deleted from the electoral roll; that the petitioner has not named or described the 26 lakhs of persons whose names are alleged to have been deleted or rejec­ted, that the impugned circulars and guidelines are not violative of any of the provisions of the Representation of the People Acts of 1950 and 1951 or the Rules framed there under as the Election Commissioner has the jurisdiction to issue them and they are also not discriminatory and hence cannot be assailed in this writ petition; that this petition cannot be treated as a public interest litigation and the petitioner has no locus standi', that under sub-section (3) of Section 23 of the Representation of the People Act, 1950 after the last date for making nomi­nations for election there could be no amendment, transposition or deletion or inclusion of a name in the electoral roll of a constituency, and, as such, even if the petition is entertain able it has become in fructuous as the last date for making nomina­tion is expiring on 22.11.85; and that the petition is barred under Article 329 (b) of the Constitution of India. 5. Mr. D. N. Choudhury, the learned Additional Advocate General, Assam, appearing for respondent No. 3, submits, inter alia, that the stay petition has become in fructuous as the noti­fications under Sections 14 (2) and 15 of the Representation of the People Act, 1951 have already been issued and the election process has already begun; that this writ petition is barred under Article 329 (b) of the Constitution of India; and that the petitioner has no locus standi. On the basis of the affidavit filed by the Chief Electoral Officer, Assam, Mr. On the basis of the affidavit filed by the Chief Electoral Officer, Assam, Mr. Choudbury states that the final publication of the Electoral Rolls in all the constituencies in Assam was made on 7th November, 1985 and after the aforesaid final publication notifications were made under Sections 14(2) and 15 of the Representation of the People Act, 1951 calling upon all 14 Parliamentary Constituencies in the State of Assam to elect members to the House of People and also on all the 126 Assembly Constituencies to elect members to the Legislative Assembly of Assam in accordance with the provision of the Representation of the People Act, 1951 and of the Rules and Orders made there under; and that the notifications so made were also republished for general informa­tion in the Assam Gazette, Extraordinary No. 206 dated 15th November, 1985 copies whereof have been annexed to the said affidavit. 6. As my Lord the Chief Justice observed at hearing, this Court has jurisdiction to deal with legal questions only and not with political questions. Thus analysed, we find three legal questions required to be judicially determined, namely, (1) Whe­ther the petitioner has locus standi to file this petition which he claims to be a public interest litigation; (2) whether the petition is barred under Article 329 (b) of the Constitution of India; and (3) whether the circulars and guidelines impugned in the petition have vitiated the intensive revision of the elec­toral rolls so as to merit interference in this writ petition. We proceed to examine these questions. 7. To decide the question of locus standi it is necessary first to determine the nature and orbit of the right of a citi­zen for getting his name registered or enrolled under the pro­visions of the Rules. We proceed to examine these questions. 7. To decide the question of locus standi it is necessary first to determine the nature and orbit of the right of a citi­zen for getting his name registered or enrolled under the pro­visions of the Rules. Under Article 325 of the Constitution of India there shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and under Article 326 every person who is a ctitizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appro­priate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. Under Article 325 no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constitu­ency on grounds only of religion, race, caste, sex or any of them. Thus it is clear that citizenship is a pre-requisite for enrolment in an electoral roll. Under Section 13D of the Representation of the People Act, 1950 the electoral roll for every parliamentary constituency shall consist of the electoral rolls for all the assembly constituencies comprised within that parli­amentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamen­tary constituency. Under section 15 for every constituency there shall be an electoral roll which shall be prepared in accordance with the provision of the Act under the superin­tendence, direction and control of the Election Commission. Under Section 16 a person shall be disqualified for registration in an electoral roll if he - (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Under sub-sec­tion (2) of Section 16 the name of any person who becomes so disqualified after registration shall forthwith be struck off the elect­oral roll in which it is included; provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal. Under Section 19 subject to the foregoing provisions every person who - (a) is not less than twenty-one years of age on the qualifying date, and (b) is ordinarily resi­dent in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 21 deals with preparation and revision of electoral rolls and Section 22 deals with correction of entries in electoral rolls. Under this section if the Electoral Registration Officer for a constituency, on appl­ication made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency (a) is erroneous or defective in any particular, (b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or (c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinary resident in the constituency or is otherwise not entitled to be registered in that roll, the Electoral Registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry : provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinary resident in the constituency or that he is otherwise not entitled to be registe­red in the electoral roll of that constituency, the Electoral Registration Officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Under sub-section (1) of Sect­ion 23 any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for the inclusion of his name in that roll. Under sub section (2) the Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein. Under sub-section (3) no amendment, transposition or deletion of any entry shall be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that ejection. Section 24 provides for appeals and an appeal shall lie within such time and in such manner as may be prescribed. 8. The Registration of Electors Rules, 1960 prescribes the whole procedure for registration of electors. Rules 10 and 11 provide for publication of roll and Rule 12 provides that every claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of thirty days from the date of publication of the roll in draft under rule 10, or such shorter period of not less than fifteen days as may be fixed by the Election Commission in this behalf. Rules 13, 14, 15 and 16 prescribe the form, the manner, and the procedure of lodg­ing and deciding claims. Rule 17 provides that any claim or objection which is not lodged within the period, or in the form and manner, therein specified, shall be rejected by the regis­tration officer. Under Rule 18 if the registration officer is satis­fied he may allow a claim without further inquiry under cer­tain circumstances. Rule 19 provides for issuance of notice of bearing claims and objections and Rule 20 provides for holding summary inquiry in respect of which notice has been given un­der Rule 19 while Rule 21 provides for inclusion of name in­advertently omitted and Rule 21A with deletion of names of dead electors etc. Rule 19 provides for issuance of notice of bearing claims and objections and Rule 20 provides for holding summary inquiry in respect of which notice has been given un­der Rule 19 while Rule 21 provides for inclusion of name in­advertently omitted and Rule 21A with deletion of names of dead electors etc. Rule 22 provides for final publication of the rolls Rule 23 provides for appeals from orders deciding claims and objections to the appellate officer : Provided that an appeal shall not lie where the person desiring to appeal has not avai­led himself of his right to be heard by, or to make represen­tations to, the registration officer on the matter which is the subject of appeal. Every decision of the appellate officer shall be final. 9. From the foregoing provisions there is no doubt that the question whether a person is entitled to be registered or enrolled must depend on his own facts and circumstances. It is settled law that the right of a citizen to be enrolled as au elector is an individual right. In Lakshmi Charon Sen vs. A.K.M. Hassan Uzzaman, AIR 1985 SC 1233 it was ruled that " The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party''. While a re­presentative petition as a public interest litigation may not be thrown out as not maintainable the decision on individual claim or objection has to be given on the individual facts and cir­cumstances and as such it would not be possible to decide numerous cases in a representative petition without individual facts and circumstances being furnished to the court. In the instant case the petitioner has neither named nor described the 26 lakhs of persons whose names have allegedly been deleted/rejected. The petitioner's own name has not been alleged to have been deleted or rejected. In paras 15 to 19 he gives number of ins­tances of names of persons being excluded from the draft elec­toral roll of 1985 at Barkhetri, Baghbar, Gaufaati, Tamulpur, Nagaor, Barpeta and Tinsukia but nothing has been stated as to whether those persons submitted their claims/ objections in accordance with the procedure prescribed under the Rules nor has the petitioner given the facts and circumstances pertaining to each of those individuals. In Lakshmi Charon Sen (Supra) under such circumstances their Lordships of the Supreme Court observed that though the individual had a statutory right of franchise, it was somewhat odd that in that case the indivi­duals whose rights alleged to have been violated had not come 4o the Court at all but those who came to the Court were members of a political party who claimed to represent them. Their Lordships emphasised that election law; did not recognize political parties except in Rule 11 (c) of the Registration of Electors Rules, 1960, the Election Symbols (Reservation and Allotment) Order, 1968 and Explanation 1 to Section 77 (1) of the Representation of the People Act, 1951; that the right to be included in the electoral roll was a right conferred upon an individual and not upon any political party: and that the petitioners in that case were espousing the cause of unnamed and undisclosed persons through a writ petition. This observa­tion squarely applies to the facts of the instant case. The peti­tioner nowhere referred to the final publication of the elec­toral roll. The fact that the final publication was made on 7th November, 1985 is not denied by the petitioner. He has also not stated whether the 26 lakhs of people have or have not availed of their rights to be heard by, or to make represen­tation to, the Registration officer on the matter which could be subject of their appeal under Rule 23 of the Rules. In the absence of individual facts and circumstances of the 26 lakhs of people whose names have allegedly been deleted/rejected and in the absence of any information as to whether they sought remedies under the Rules it is neither possible nor permissible to decide their individual cases in this petition, which is accor­dingly liable to be rejected. 10. Proceeding to the next question we find that under Article 329 (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 to such authority and in such manger as may be provi­ded for by or under any law by the appropriate Legislature. This provision excludes or ousts jurisdiction of all courts in regard to election to either House of Parliament or to the House or either House of the Legislature of a State, and it lays down that the only mode in which an election can be called in ques­tion is by an election petition. In Lakshmi Charan Sen (Supra) their Lordships of the Supreme Court expressed the view that preparation and revision of electoral rolls is a continuous pro­cess, not connected with any particular election and that it would be difficult to bold that preparation and revision of electoral soil is a part of the 'election' within the meaning of Arti­cle 329 (b). 11. The 26 lakhs of people whose names have allegedly been deleted or rejected would not be electors. As denned in Section 2(e) of the Representation of the People Act, 1951, 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950. As denned in section 79(d) of the same Act 'electoral ri­ght' means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote for or refrain from voting at on election. Thus a citizen who is not an elector shall have no electoral right and shall have no-right to challenge an election. In Lakshmi Charon Sen (Supra) their Lordships recalled that in N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 , it was held that the word 'election' is used in Article 329 (b) in the wide sense of covering the entire proc­ess culminating in the election of the candidate. In Pampakavi Rayappa. Belagali v. B.D. Jatti, AIR 1971 SC 1348 , it was held that the scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by the Act and not in any other manner or before any other forum unless, some question of violation of the provisions of the Constitution is involved. In Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR “78 SC 851, Krishna Iyer J. speak­ing for the Constitution Bench quoted : "The rainbow of ope­rations covered by the compendious expression 'election', thus commences from the initial notification and culminates in the declaration of the return of a candidate''. Their Lordships accor­dingly held on the basis of the passage extracted from Hals-bury in Ponnuswami (Supra) that "the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the elec­tion process in that case. In that event, it would be difficult to formulate a proposition which will apply to all cases alike". No definite rule can, therefore, be laid down as to the time when an election begins, which must be considered with respect to its own facts. When the Legislature has not fixed any definite period it may not be reasonable for the Court to lay down a general definition which the Legislature has carefully avoided doing. An election process may be said to have commenced at diffe­rent times for deciding different questions relating to it. In Eng­land, as a general rule, an election commences, within the mean­ing of the Representation of the People Act as soon as the can­didate begins to take measures to promote his election, as by announcing his intention to present himself as a candidate, whe­ther the election is imminent or not. The words 'an election' do not refer to an election which is in nubbins, but to a definite election within the knowledge and contemplation of the parties; and thus although the time at which a corrupt act is done is immaterial if it be still operative on the election in question, and although a corrupt act committed before the election with a view to influence a voter at the ensuing election, whether it is one, two or even six years before, is just as much bribery or treating as if it were committed on the day of election, it seems that a narro­wer rule applies with respect to defection expenses, and that the limit of time to which the Court has to apply its mind is a period commencing from the time when it was first known that the candid­ate announced his intention to present himself for election at the next ensuing election. There can, however, be no doubt that an ele­ction process definitely commences with the Notifications under Sec­tion 14 (2) and 15 of the Representation of the People Act, 1951. In the instant case the notifications under sections 14(2) and 15 were duly published and were also re-published in the Assam Gazette Ex­traordinary dated 15th November, 1985. According to those Noti­fications the Election Commission of India appointed with respect to each of the elections - (a) the 22nd November, 1985 (Friday), as the last date for making nominations; (b) the 23rd November 1985(Saturday), as the date for scrutiny of nominations; (c) the 25th November, 1985 (Monday), as the last date for withdrawal of candidature; (d) the 16th December, 1985 (Monday), as the date on which the poll shall, if necessary be taken; and (e) the 20th December, 1985 (Friday), as the date before which the election shall be completed. There can, therefore, be no doubt that the process of election has already commenced. 12. In Indrajit Barua & Ors vs. Election Commission of India, AIR 1984 SC 1912, their Lordships of the Supreme Court ruled that once the final electoral rolls are published and elections are held on the basis of such electoral rolls it is not open to any one to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. The finality of the electoral rolls cannot be assailed in a pro­ceeding challenging the validity of election held on the basis of such electoral rolls vide Kabul Singh vs. Kuldan Singh, (1970) 1 SCK 845, AIR 1970 SC 340 . Article 329(b), in their Lord­ships' opinion, clearly bars any writ petition challenging the elections on the ground that the electoral rolls were defective, In the reasons given, as reported in 1985 (2) Scale 81 recalling observations in Jagan Nath vs. Jaswant Singh & Ors, 1954 SCR 892 , Hari Vushan Kamath vs. Syed Ahmed Ishaq & Ors, 1955 SCR 1104 , Durga Shankar Mehta vs. Thakur Raghraj Singh & Ors, 1955 SCR 267 their Lordships reiterated that an election, can be challenged only in the manner prescribed by the Act and writ petition under Article 225 challenging those elections to the State Legislature were not maintainable and election petitions under Section 81 of the Act had to be filed in the High Court. The instant writ application to the extent it seeks to affect and halt the election process must therefore be held to be barred under Article 329(b). Again, as was ruled in-Lakshmi Charan Sen (supra), whether or not a revision of an electoral roll is undertaken or completed or not, the electoral roll for the time being in force must hold the field and elect­ions cannot be postponed for the reasons that certain object­ions and claims have been pending. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. In fact, in this case, there is no allegation that claims and objections are pending. 13. As regards the validity of the orders, circulars, and' guidelines/instructions, the petitioner has not shown the effects of Annexures B, B1 and B2, In fact, the final electoral roll has not even been referred to in the petition. Mr. Das submits that he challenges the guidelines on ground of their intrinsic defects irrespective of their consequences. It is submitted that the guidelines/instructions are discriminatory as para 32 of the consolidated guidelines envisages the receiving of objections to the inclusion of any name or names in any part through a letter from any individual or political party or any organisation other­wise than in Form No. 7, and deletion of names on the basis of such objections under Rule 21A of the Rules; the direction of the Election Commission for publication of list in two parts as stated in Annexure B-1; and the directions that while disposing of claim petitions the Assistant Electoral Registration Officers are to decide in respect of persons who are not tribal or of Assamese origin in the light of materials which show conclusively that he is a citizen and for this purpose (1) citizen­ship certificate (2) copies of NRC issued by the competent autho­rity or any other documents which are free from doubt may be relied upon. These are challenged as discriminatory. How­ever, the petitioner has not shown that those have not been issued for the purpose of ascertaining or determining qualifica­tions or eligibility for registration of electors. It has also not been shown that those included in Part I of the List have been given different electoral rights from those included in Part II of the List. No discriminatory result is shown. It has also not been shown that those included in Part I of the List have been given different electoral rights from those included in Part II of the List. No discriminatory result is shown. Without being informed of discriminatory consequences of the above guide­lines, it is difficult to hold that they are intrinsically discri­minatory and violative of Articles 14 and 21 of the Constitution of India. We reiterate that we have jurisdiction to deal with the legal questions only and not with the political questions. We, therefore, do not hold that the guidelines are intrinsically discriminatory. As regards the submission that those are viola­tive of the Rules, in the absence of any material to show how they are contrary to the procedure prescribed, and whether the persons claimed to be represented by the petitioner, availed them­selves of their rights to be heard by or to make representa­tion to the Registration officer on the matter which could be subject of their appeal, we are not inclined to hold that they are intrinsically violative of the Rules. Admittedly they did not prefer appeals under Rule 23 of the Rules. Again, the last date for making nominations for election having already been appointed as 22nd November, 1985 under sub-section (3) of Sec­tion 23 of the Representation of the People Act, 1950 no amend­ment, transposition or deletion of any entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given after that date. Consequently, the prayer for restraining the respondent No.1 from issuing or publishing any notification under Sections 14 (2) and 15 of the Representation of the People Act, 1951 and the pra­yer for making intensive revision after setting aside the impug­ned guidelines have become in fructuous and, therefore, liable to be rejected. 14. In the result this petition is found to be devoid of merit and it is dismissed. The connected Misc. Case No. 1210 of 1985 is also consequently dismissed.