Constitution of India, 1950-Arts. 324 and 329(b)-Scope of Counting of votes in many segments of the constituency completed-Before declaration of final result ballot papers and ballot boxes of some segments destroyed in mob violence-Election Commission ordered repoll of the entire constituency-Election Commission, if competent to order repoll of entire constituency.
Article 226-Election Commission's order for fresh poll in entire constituency-If could be challenged in a writ petition.
Representation of the People Act, 1950 ss. 80 and 100(1)(d) (iv) - Scope of.
Natural justice-Issue of notice to affected parties and opportunity to hear before passing an order under Art. 329(b)-If necessary-Notice, if should be given to the whole constituency.
Words and phrases "Civil consequence"-Election "called in question" meaning of.
Article 329 (b) of the Constitution provides that notwithstanding anything in the Constitution 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 manner as may be provided for by or under any law made by the appropriate legislature.
Section 100(1) (d) (iv) of the Representation of the People Act, 1951 provides that if the High Court is of the opinion that the result of the election so far as it concerns a returned candidate has been materially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void.
The appellant and the third respondent were candidates for election in a Parliamentary constituency. The appellant alleged that when at the last hour of counting it appeared that he had all but won the election, at the instance of respondent no. 3 mob violence broke out and postal ballot papers and ballot boxes from certain Assembly segments, while being brought for counting, were destroyed and the Returning officer was forced to postpone the declaration of the result. The Returning Officer reported the happening by wireless to the Chief Election Commissioner. An officer of the Election Com- mission who was deputed to be an observer at the counting stage gave a written report to the Commission in addition to an oral report about the incidents which marred the last stages of the counting. The appellant met the Chief Election Commissioner and requested him to declare the result. Eventually, however, the Chief Election Commissioner issued a notification stating that the counting in the constituency was seriously disturbed by violence and that ballot papers of some of the assembly segments had been destroyed by violence, as a consequence of which it was not possible to complete the counting of votes in the constituency and declare the result with any degree of certainty. The notification further stated that taking all circumstances into account, the Commission was satisfied that the poll had been vitiated to such an extent as to affect the result of the election. In exercise of the powers under Art. 324 of the Constitution it cancelled the poll already held and ordered a re-poll in the entire constituency.
In a petition under Art. 226 of the Constitution the appellant alleged that the action of the Chief Election Commissioner in ordering repoll in the whole constituency was arbitrary and violative of any vestige of fairness. The respondents in reply urged that the High Court had no jurisdiction to entertain the writ petition in view of Art. 329(b) and that the Commission's action well within its powers under Art. 324.
The High Court dismissed the writ petition holding that it had no jurisdiction to entertain the writ petition. Yet on merits it held that Art. 324 does not impose any limitation on the function contemplated under that article; that principles of natural justice were not specifically provided for in that article but were totally excluded while passing the impugned order and that even if the principles of natural justice were impliedly to be observed before passing the impugned order the appellant was heard not only before the issue of the notification but in any case after the notification.
In the repoll the appellant did not participate though his name appeared on the ballot and respondent no. 3 was declared elected.
On the question of application of principles of natural justice it was contended on behalf of the respondents that the tardy process of notice and hearing would thwart the conducting of elections with speed that unless civil consequences ensued, hearing was not necessary and that the right accrues to a candidate only when he is declared elected and lastly the decision of the Election Commission is only provisional and that it is he the election court which is the final authority on the subject.
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