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2019 DIGILAW 509 (ORI)

Dhruba Charana Paul v. State Of Orissa

2019-08-07

A.K.RATH, BISWAJIT MOHANTY, K.S.JHAVERI

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JUDGMENT : A.K. Rath, J. This Full Bench has been constituted to decide the scope and meaning of Article 243-O of the Constitution of India. 2. A Division Bench of this Court in disagreement with the view taken by another coordinate Bench in the case of Dhruba Charan Pal v. State Election Commission, Orissa (OJC No.2033 of 2002 disposed of on 28.3.2002) has referred the matter to the larger Bench. The Division Bench was of the view that interpretation of Article 243-O of the Constitution of India as given by learned Judges in Dhruba Charan Pal is not consistent with the view taken by the apex Court in the case of Boddula Krishnaiah v. State Election Commissioner, A.P., 1996 (3) SCC 416 . 3. In Dhruba Charan Pal, the writ petition was filed impugning the acceptance of nomination paper of opposite party no.4 by opposite party no.3 on the ground that opposite party no.4 had been convicted in G.R. Case No.102 of 1990 under the Prevention of Corruption Act read with Section 409 of IPC and had been awarded a sentence of rigorous imprisonment for two years. Though opposite party no.4 had filed an appeal against his conviction and had been enlarged on bail, but then he incurred disqualification under Section 33(h) of the Orissa Zilla Parishad Act. Thus the nomination paper of opposite party no.4 should have been rejected. The Division Bench referred to Article 243-O of the Constitution and held that in a case where the acceptance of the nomination of a particular candidate is questioned as distinct from seeking to hold up an election or preventing the holding of an election, this Court is not precluded from exercising its jurisdiction under Article 226 of the Constitution. It further held that when the facts are admitted and the position is clear in the sense that the principles have been expounded by the Supreme Court, it would not be appropriate for this Court to wash its hand off, by asking the petitioner to wait until the elections are over and to approach the Election Tribunal. 4. It further held that when the facts are admitted and the position is clear in the sense that the principles have been expounded by the Supreme Court, it would not be appropriate for this Court to wash its hand off, by asking the petitioner to wait until the elections are over and to approach the Election Tribunal. 4. Article 243-O of the Constitution stipulates thus : "243-O. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243-K, shall not be called in question in any Court; (b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State." 5. N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakhal, Salem, 1952 AIR(SC) 64, is a locus classicus on the subject. The apex Court held that the word 'election' has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The question arose as to whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. It was held that affirming such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act. The Representation of the People Act is a self-contained enactment so far as elections are concerned. Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. The Representation of the People Act provides for only one remedy, that remedy being an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. The Representation of the People Act provides for only one remedy, that remedy being an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. The scheme of the election law in India as well as in England is that no significance should be attached to anything which does not affect the 'election' and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress. The right to vote or stand as a candidate for election is not a civil right, but is a creature of statute or special law and must be subject to the limitations imposed by it. 6. Nanhoo Mal v. Hira Mal, 1975 AIR(SC) 2140, related to election to a local body. The apex Court held that the election to the office of the President could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision in the case of Ponnuswami in its application to the facts of the case. But the conclusions were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect of the provision of law set forth above is taken into account, there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. 7. But once the legal effect of the provision of law set forth above is taken into account, there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. 7. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, 1978 (1) SCC 405 , the Constitution Bench of the apex Court had an occasion to interpret Article 329(b) of the Constitution. Justice Krishna Iyer, speaking for the Bench in his inimitable style, described Article 329(b) as a "Great Wall of China". Learned Judge posed a question whether Article 329(b) so impregnable that it cannot be bypassed even by Article 226? It was held that the rainbow of operations, covered by the compendious expression 'election', commences from the initial notification and culminates in the declaration of the return of a candidate. Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. The sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. And this exclusion of all other remedies includes constitutional remedies like Article 226 because of the non-obstante clause. The plenary bar of Article 329(b) rests on two principles: (1) The peremptory urgency and prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other forms, the right and remedy being creatures of statutes and controlled by the Constitution. A writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by Article 329(b). 8. In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, 1985 (4) SCC 689, the Constitution Bench of the apex Court held that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the Legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. No High Court in exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. 9. In Boddula Krishnaiah v. State Election Commissioner, A.P, 1996 (3) SCC 416 , the apex Court reiterated the earlier view taken in the case of N.P. Ponnuswami and Lakshmi Charan Sen. The apex Court held that Article 243-O of the Constitution envisages bar on interference by courts in election matters. Once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise. 10. 10. In Election Commission of India through Secretary v. Ashok Kumar, 2000 (8) SCC 216 , the apex Court held : "1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount "to calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." 11. In West Bengal State Election Commission v. Communist Party of India (Marxist), 2018 (10) Scale 186 , placing reliance on the earlier decisions in N.P. Ponnuswami and Lakshmi Charan Sen, the apex Court held that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. 12. Much water has since flown under the bridge, but there has been no corrosive effect on the decision of the apex Court in N.P. Ponnuswami, though old, continue to hold the field with regard to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution. To reiterate, there it has been clearly observed that any matter vitiating the election should not be brought up at an intermediate stage before any court. 13. The Orissa Zilla Parishad Act, 1991 is a complete Code in regard to conduct of relevant elections, and for resolution of disputes concerning the validity of election. The only way by which the election of a candidate can be called in question is by means of an election petition presented in accordance with the provisions of the said Act. Thus the jurisdiction to decide the validity of an election has been conferred on the District Judge. The High Court in exercise of its power under Article 226 of the Constitution of India cannot interfere in the matter. 14. Thus the jurisdiction to decide the validity of an election has been conferred on the District Judge. The High Court in exercise of its power under Article 226 of the Constitution of India cannot interfere in the matter. 14. The decisions of the Constitution Bench of the apex Court in the case of N.P. Ponnuswami, Lakshmi Charan Sen, Mohinder Singh Gill and Boddula Krishnaiah have escaped the attention of this Court in Dhruba Charan Pal. 15. In view of the foregoing discussions, we are of consensus ad idem that the view taken in Dhruba Charan Pal is per incuriam. The Registry is directed to place the matter before the assigned Bench.