VIJENDER JAIN, C.J. - (1.) BY this writ petition, the petitioner prays for the issuance of a writ, directing the Election Commission of India, to conduct elections in Beas Assembly Constituency of the State of Punjab, prior to 27.2.2007, the date fixed for declaration of results.
(2.) THE short point, that has been agitated in this petition, and has been argued by counsel for the parties is vital to the conduct of free and fair elections. In a democracy, elections and their purity are essential to sustain democratic institutions. Article 324 of the Constitution of India clothes the Election Commission of India with powers to conduct free and fair elections. The Hon'ble Supreme Court from N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 and Mohinder Singh Gill v. Chief Election Commissioner, 1978(1) SCC 405 and till today has upheld the primacy of the Election Commission regarding conduct of elections. The controversy in the present case is whether this Court in the exercise of jurisdiction under Article 226 of the Constitution of India, can direct the Election Commission, to prepone the election to a date, prior to the date, fixed for announcement of the results in the State of Punjab. This question would have to be answered in the light of the powers conferred on the Election Commission under Article 324 etc. as also in the light of the bar contained in Article 329(b) of the Constitution of India. Article 329(b) of the Constitution of India bars the calling into question, except by way of an election petition, any election to either house of parliament or to the house or either house of the legislature of a State. On the basis of Article 329(b), counsel for the Election Commission has vehemently contended that this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, cannot issue any direction to the Election Commission. In order to appreciate the aforementioned arguments, reference would have to be made to Mohinder Singh Gill's case (supra). Paras 28, 29, 30, 31 and 32 are reproduced hereunder :- "28. What emerges from this perspicacious reasoning, if we may say so with great respect, is that 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. We should not slur over the quite essential observation "Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election". Likewise, it is fallacious to treat ' a single step taken in furtherance of an election' as equivalent to election. 29. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re- poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is 'part of election' and challenging it is 'calling it in question'. 30. The plenary bar of Article 329(b) rests on two principles : (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta (supra) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court's overall power to interfere under Article 136 springs into action. In Hari Vishnu (supra) this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Article 226, during the ongoing process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Article 329(b) does not bind. 31. If 'election' bears the larger connotation, if 'calling in question' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all-pervasive or isolated, can be lawful. We are not concerned only to say that if the regular poll, for some reason, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter attack. Wise or valid, is another matter. 32. On the assumption, but leaving the question of the validity of the direction for re-poll open for determination by the Election Tribunal, we hold that 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). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case." A perusal of the aforementioned judgment leaves no manner of doubt that where a decision subserves the progress of election and facilitates its completion, it cannot be said to call into question the election and therefore, anything done towards the completion of the election cannot be described as questioning the election in terms of Article 329(b) of the Constitution of India. It would also be necessary to notice certain other judgements, as regards the power of judicial review. After referring to the judgments in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 and Mohinder Singh Gill v. Chief Election Commissioner, 1978(1) SCC 405, it was held as follows in Digvijay Mote v. Union of India and others 1993(4) Supreme Court Cases, 175 :- (9) "However, it has to be stated this power is not unbridled. Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights. We may, at this stage, usefully quote Judicial Remedies in Public Law-Clive Lewis, page 70 : "The term 'public law, has, in the past, been used in at least two senses. First, it may refer to the substantive principles of public law governing the exercise of public law powers, and which form the grounds for alleging that a public body is acting unlawfully. These are the familiar Wednesbury principles. A public law 'right' in this sense could be described as right to ensure that a public body acts lawfully in exercising its public law powers. The rights could be described in relation to the individual heads of challenge, for example, the right to ensure that natural justice is observed, or to ensure that the decision is based on relevant not irrelevant considerations, or is taken for a purpose authorised by statute, or is not Wednesbury unreasonable. Secondly, ' public law' may refer to the remedies that an individual may obtain to negative an unlawful exercise of power. These are essentially remedies used to set aside unlawful decisions, or prevent the doing of unlawful acts, or compel the performance of public duties. These remedies now include the prerogative remedies of certiorari, mandamus and prohibition, and the ordinary remedies of declarations and injunctions when used for a public law purpose involving the supervisory jurisdiction of the Courts over public bodies." (14) "The resultant position is that it cannot be stated that the exercise of power under Article 324 is not altogether unreviewable. The review will depend upon the facts and circumstances of each case." In A.C. Jose v. Sivan Pillai and others, 1984(2) SCC 656, the Apex Court while relying upon Mohinder Singh Gill's case (SCC p. 452, para 92) held that the Commission shall be responsible to the rule of law to act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in- action in a most important area of the constitutional order, viz., elections. Thus, a conjoint reading of the aforementioned judgements, leads us to a conclusion that the power under Section 329(b) of the constitution of India, would come into play only where a petitioner calls into question an election.
(3.) ONE cannot loose sight of what has been succinctly held by the Apex Court and in prophetic words of Y.K. Sabharwal, C.J.I. (as his Lordship then was), in case I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu and Ors., 2007(2) SCC 292, who spoke for the Court as follows :- "130. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary." ;