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2005 DIGILAW 848 (PAT)

Ajit Sharma v. Union Of India

2005-09-19

J.N.BHATT, SHASHANK KR.SINGH

body2005
Judgment J.N.Bhatt, J. 1. The only question which has come to the surface in this Public Interest Litigation (PIL) is as to whether the fixity of dates and the preparing of the schedule for the ensuing Assembly Election in the State of Bihar by the Election Commission of India (respondent No. 2) in its constitutional prerogative jurisdiction in terms of the provisions of Art. 324 read with Art. 329 contained in part XV of the Constitution of India pertaining to the process of the Elections, could be said to be, in any way, vulnerable or whether requiring interference of this Court on the grounds arid premises of there being local as well as multireligious festivals in course of said schedule, in exercise of its plenary, discretionary and extraordinary writ jurisdiction under the provisions of Art. 226 of the Constitution of India. 2. We have heard learned Counsels appearing for the parties and have been taken through the relevant and requisite materials in course of the marathon submissions before us. We have, also, considered the relevant material and constitutional provisions pertaining to the powers of holding Elections in general and Art. 324 and 329 in particular of the Constitution, as well as, other statutory provisions of the Representation of Peoples Act. 3. This Court, on the day of admission while passing an order, on 9.9.2005, did direct the Election Commission of India to highlight and explain as to whether the grievances voiced and raised in this petition have been taken into consideration by it before finalising the schedule and fixity of dates for holding polls for ensuing General Assembly Election of the State of Bihar after its premature dissolution, to which the counter affidavit has been filed highlighting the aspects, details and the actions considered and taken for the fixity of the dates while drafting and finalising the Entire Schedule for the General Assembly Election of the State of Bihar. We have, also, dispassionately, examined and evaluated the counter-affidavit and the detailed articulation of facts and steps taken by the respondent No. 2 (ECI) while considering and deciding the Election Schedule exercise. 4. We have, also, dispassionately, examined and evaluated the counter-affidavit and the detailed articulation of facts and steps taken by the respondent No. 2 (ECI) while considering and deciding the Election Schedule exercise. 4. In Short, the intention behind the grievance of the petitioner in this Public Interest Litigation has been, that the Election Commission of India be directed to make suitable changes in the Election Schedule and the dates of voting in the wake of Ramazan of Muslims, Dessehara, Diwali and Chath festivals of Hindus, which are falling just before or during the process of Elections. 5. It has been, specifically, stated in the counter-affidavit, filed by the Secretary to the Election Commission of India, New Delhi, on behalf of the Election Commission of India, that the Election Commission has taken into account the aspects of various religious festivals while deciding the Election Schedule for the ensuing General Assembly Election of the State of Bihar. It is, also, manifested from the affidavit, in reply, that the Election Commission has duly considered all relevant aspects including the aspect of religious festivals falling in the months of September to November, 2005, while deciding the entire Election Schedule with a view to see and ensure free and fair holding of ensuing General Assembly Elections of the State of Bihar including safety, security and peaceful holding of Elections. 6. In this connection, it may be further, also, highlighted at this juncture that the counter affidavit, also, states, unambiguously, that while announcing the Assembly Election, the Election Commission had also issued a "Press-Note" on September 3, 2005, a copy, whereof, has been placed on the record, which forms part of the affidavit filed by the Secretary to the Election Commission of India. 7. We have considered and examined the detailed note and various factors and facets taken into consideration by the Election Commission of India before finalising the Election Schedule including the fixity of the dates for the ensuing Bihar Legislative Election. 8. 7. We have considered and examined the detailed note and various factors and facets taken into consideration by the Election Commission of India before finalising the Election Schedule including the fixity of the dates for the ensuing Bihar Legislative Election. 8. It is apparent from the affidavit and the detailed note, which forms part of the affidavit, that the Election Commission has given anxious consideration to the "following aspects" while fixing the Election Schedule and the fixity of the date :- (1) The last Legislative Assembly of Bihar was dissolved by the President of India in exercise of the powers conferred by Sub-clause (b) of Clause 2 of Art. 174 of the Constitution, read with Clause (a) of the Proclamation Number G.S.R. 162 (E), dated the 7th March, 2005 issued under Art. 356 of the Constitution on the 23rd May, 2005. (2) By virture of its powers, duties and functions under Art. 324 read with Art. 172(1) of the Constitution of India and sec. 15 of Representation of the People Act, 1951 and following the principle laid down by the Hon ble Supreme Court of India in Reference Case No. 1 of 2002 (Reference by the President under Art. 143 relating to General Elections to the Gujarat Legislative Assembly on its premature dissolution), the Commission is under mandate to hold elections to constitute the new Legislative Assembly in the State of Bihar within six months from the date of dissolution of the last Bihar Legislative Assembly, i.e., by the 22nd November, 2005. (3) There are 243 Assembly Constituencies in Bihar, out of which 39 are reserved for the Scheduled Castes. The number of electors as per the roll with reference to 1.1.2005 as the qualifying date is about 5.27 crores. At the last General Elections to Bihar Legislative Assembly held earlier this year, 50,063 polling booths were set up. ELECTORAL ROLL (4) The electoral roll in the State of Bihar with reference to 1.1.2005 as qualifying date was finally published on 3.1.2005. In respect of this roll, the Commission has initiated an exercise to delete the names of dead and duplicate electors after due verification. The Commission has given strict instructions that no name would be deleted from the electoral roll without proper verification and death certificate in respect of dead electors and without proper enquiry and giving due notice in case of duplicate voters. The Commission has given strict instructions that no name would be deleted from the electoral roll without proper verification and death certificate in respect of dead electors and without proper enquiry and giving due notice in case of duplicate voters. All entries where fifteen or more names have been enlisted in the electoral roll against any house number, are also being checked in order to ensure that the names of eligible electors only find place in the electoral roll. ELECTORS PHOTO IDENTITY CARDS (EPIC) (5) Identification of voters at the Polling Booth at the time of poll will be mandatory. Since the middle of July, special campaign has been launched in the State to provide Electors Photo Identity Cards to all residual electors. When the compaign was launched the coverage of voters under EPIC was only 57%. As of date the percentage coverage of electors under EPIC programme has already reached 67%. Efforts are being made to maximize the coverage and the progress made in various districts is closely being monitored. ELECTRONIC VOTING MACHINES (EVMs) (6) As in the last Assembly elections, EVMs will be used in the forthcoming elections also. LAW & ORDER AND DEPLOYMENT OF FORCES (7) The Commission had issued instructions to the State Government of Bihar as early as 18.6.2005 to expedite execution of all pending non-bailable warrants especially against criminals and to launch special drives to unearth illegal arms, ammunitions and explosives. The State was also asked to prepare district-wise lists and habitual offenders and anti-social elements for taking proper preventive action at the time of elections. As per the report submitted by the State Government, 76,471 non-bailable warrants including permanent warrants against proclaimed offenders/absconders were pending execution in the State of Bihar as on 31.8.2005. (8) The Commission on 5.8.2005 had asked the State Government to furnish the details of all those persons against whom non-bailable warrants are pending for more than six months to the Chief Electoral Officer, Bihar 19.8.2005. The State Government furnished the details of 52,686 such persons to the Chief Electoral Officer, Bihar. The Electoral Registration Officers have been asked to issue notices to all such persons as per law in order to verify whether they are "ordinarily residing" at their given address. The State Government furnished the details of 52,686 such persons to the Chief Electoral Officer, Bihar. The Electoral Registration Officers have been asked to issue notices to all such persons as per law in order to verify whether they are "ordinarily residing" at their given address. In case they are found to be not residing at the address give, EROs will take necessary action for deletion of their names from the electoral rolls in accordance with the provisions of law. (9) Central Para Military Forces (CPMFs) in sufficient numbers will be provided to the State for maintaining law and order for the security of electors, candidates, polling personnel and EVMs. The forces will be deployed in various constituencies in consultation with the observers. (10) The District Magistrates will make detailed review for assessment of all licensed arm holders, and if considered necessary, shall get their arms deposited in the District Armoury for the period of elections. RETURNING OFFICERS (11) Unlike in the past when once officer acted as Returning Officer for more than one constituency, sometimes even for 3-4 constituencies, this time one officer will act as Returning Officer in respect of only one constituency. The Officers who will act as Returning Officer for each of the 243 constituencies have already been notified by the Commission. OBSERVERS (12) One General Observer in each assembly constituency and at least one Expenditure Observer in each district will be deployed to supervise the conduct of elections. CONDUCT OF OFFICIALS (13) The Commission expects all officials engaged in the conduct of elections to discharge their duties in an impartial manner without any fear. Several instructions have been issued from time to time to ensure impartiality of officials who are engaged in conduct of elections and their non-involvement in the electoral politics. In spite of such instructions, the Commission received several complaints during the previous elections regarding bias and partisan behaviour of certain officials. The Commission desires to make it clear in no uncertain terms, that the conduct of all government officials who have been entrusted with election related responsibilities and duties would remain under its constant scrutiny and strict action shall be taken against those officials who are found wanting on any account. (14) The Commission has already given instructions that no election related official or Police Officer of the rank of Sub-Inspector and above shall be allowed to continue in his home district. (14) The Commission has already given instructions that no election related official or Police Officer of the rank of Sub-Inspector and above shall be allowed to continue in his home district. Instructions have already been issued that these officials will not be allowed to continue in the same district if they have completed three years in that district during last four years. The posts of Sergeant Major and sergeant who are responsible for deployment of forces have also been convered for transfer under these instructions. The State Government has also been asked to transfer all those officers against whom the Commission has recommended disciplinary action or who have been charged for any lapse during previous elections or for any election related work from the posts entailing election work. (15) The State Government has been instructed to ensure that those who stand transferred should move out physically of their last place of posting and not remain there on any pretext including leave. (16) The Commission has decided to open auxiliary polling stations in the same building for booths where number of electors exceeds 1400 and provide an additional polling personnel at polling stations where number of electors is between 1200 and 1400. As stated above, for the last Assembly elections, 50.063 Polling Booths were set up in the State. In addition to this number, it is estimated that about 7300 more auxiliary polling stations will be set up for the forthcoming election. POLLING PARTIES AND RANDOMIZATION (17) The polling parties shall be prepared through the process of randomization utilizing a common software programme. The Central Government employees will be deployed to the extent possible. COMMUNICATION SYSTEM (18) The District Election Officers in the State of Bihar have been asked to set up a comprehensive communication system to facilitate quick complaint redressal on the day of poll. They have also been asked to open Helplines/Control Rooms in each constituency for the convenience of electors. VIDEOGRAPHY (19) The Commission has issued detailed guidelines for Videography of critical events during the election process and polling at sensitive/hypersensitive polling booths on the poll day. The District Election Officers have been asked to follow these instructions scrupulously. PROTECTION TO SC/ST ELECTORS (20) As per sec. VIDEOGRAPHY (19) The Commission has issued detailed guidelines for Videography of critical events during the election process and polling at sensitive/hypersensitive polling booths on the poll day. The District Election Officers have been asked to follow these instructions scrupulously. PROTECTION TO SC/ST ELECTORS (20) As per sec. 3(1)(vii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, whoever, not being a member of Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law; shall be punishable with imprisonment of a term which shall not be less than six months but which may extent to five years and with fine. The Commission has asked the State Government to bring these provisions to the notice of all concerned for prompt action. CITIZENS, MEDIA AND NON-GOVERNMENTAL ORGANISATIONS (21) The Commission urges all electors, candidates, political parties, media and non-governmental organisations to perform an active and responsible role in the forthcoming elections. MODEL CODE OF CONDUCT (22) The Model Code of Conduct comes into effect immediately from now onwards. The Code will apply to the whole of the State of Bihar and will be applicable to all Political parties, the State Government of Bihar and the Union Government in so far as the State of Bihar is concerned. 9. It is, also, very much evident and explicit from the affidavit and the detailed note that the Election Schedule and the phasing of elections have been finalised by the Election Commission having taken into consideration the relevant aspects, such as, availability of Para-Military Forces (CPMFs), the prevailing law and order situational reality of the State of Bihar including very burning problem posed by the Naxalite, existing communication systems and conditions of roads for movement of poll personnel, poll materials and the security forces. 10. It is also reiterated by the Election Commission that the number of festivals and their importance for this State, like, Dussehra, Diwali, Eid, Shri Guru Nanaks Birthday and festival of Chhath, which are falling in the months of October & November 2005 have, also, been considered. So, there is no doubt that, precisely, the same grievances, which are voiced in this petition, have been given serious considerations and taken into account by the Election Commission of India sincerely for the purpose of drawing the schedule and phasing of the Elections. So, there is no doubt that, precisely, the same grievances, which are voiced in this petition, have been given serious considerations and taken into account by the Election Commission of India sincerely for the purpose of drawing the schedule and phasing of the Elections. It is, also averred, as well as, emphasised, in course of the submissions by learned Counsels for the Election Commission of India, that in order to have optimum services of Central Para Military Forces, the Election Commission has taken into account their complete deployment and other attending necessary circumstances. 11. The Election Commission (respondent No. 2) herein came to a decision to recommend to the Governor of the State of Bihar to issue notification for the proposed General Election for the Bihar Legislative Assembly in terms of constitutional, as well as, statutory provisions contained in the Representation of the People Act, 1951, in "Four Phased Programmes" including fixity of dates for polls. 12. The submissions raised by learned Counsels appearing for the Election Commission are also reiterated and supported by the learned Advocate General, Bihar. 13. The only submission, which is, repeatedly, emphasised by learned Counsel for the petitioner Mr. Basant Kumar Chaudhary, is the phraseology implied in the affidavit in reply and the press note material relied on in the affidavit and it has been contended, that there is no, as such, any mandate that Election in case of premature dissolution of the House should invariably be held within a period of six months, which is countenance by the learned Counsels appearing for the Election Commission supported by learned Advocate General, Bihar, appearing for the State. 14. In fact, the perception conceived by learned Counsel for the petitioner out of the some words implied in the affidavit in reply, does not, in any way, detain us in adjudication of the merits of the petition on hand. 14. In fact, the perception conceived by learned Counsel for the petitioner out of the some words implied in the affidavit in reply, does not, in any way, detain us in adjudication of the merits of the petition on hand. As such this submission is based on perception and interpretation, which is not at al relevant for the, purpose of consideration of the constitutional prerogative and the exercise of discretion and wisdom considering the necessary all relevant facts and circumstances in finalizing the Election Schedule in phase-wise including the fixity of dates for polls, let it be stated that it is always jurisprudentially, as well as, from the point of view of law and, also, under the Constitution of India that upon premature dissolution of the House, the Election is, undoubtedly, desired expeditiously. 15. However, the Hon ble Apex Court in Special Reference No. 1 of 2002, D/-28.10.2002 under Art. 143(1) of the Constitution, AIR 2003 SC 87 , has, in clear term, propounded a proposition that the Election Commission is required to initiate immediate steps for holding Elections on first occasion and, in any case, within six months of premature dissolution. Upon correct appraisal and intrepretation of provisions of Articles 324, 174, 85 & 329 and the provisions of Secs. 14 & 15 of the Representation of the People Act, 1951, We find that this sole submission does not carry the petitioner any further. It is without recognisable and cognisable proposition. 16. After having taken into account and consideration of the relevant facts and circumstances, the grievances highlighted in the petition and the points and aspects duly considered, by the Election Commission of India while deciding Four Phased Election Schedule, for the State of Bihar Legislative Assembly, it cannot be said, even for a moment, that the constitutional prerogative exercise and wisdom in fixity of schedule and the dates for the General Election is, in any way, required to be inteferred with for the changes of the dates or the schedule. 17. The only point, which has been agitated, as well as, emerged from the petition is, therefore, answered accordingly. No other point is raised. The petition, consequently, shall stand dismissed. Notice shall stand discharged. No order as to costs. 18. In view of our adjudication of the main petition on merits, I.A. No. 4672 of 2005 filed by Mr. 17. The only point, which has been agitated, as well as, emerged from the petition is, therefore, answered accordingly. No other point is raised. The petition, consequently, shall stand dismissed. Notice shall stand discharged. No order as to costs. 18. In view of our adjudication of the main petition on merits, I.A. No. 4672 of 2005 filed by Mr. M.P. Gupta, Advocate, obviously, shall not assume any survival value.