This judgement is given here, because it paved way for 1295 doctors, who had written the exams in October 2005 to be recruited immediately by TNPSC
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/03/2006
CORAM
THE HON'BLE MR. JUSTICE P.K. MISRA
AND
THE HON'BLE MR. JUSTICE F.M. IBRAHIM KALIFULLA
WRIT PETITION No.7720 OF 2006
and WRIT PETITION NOS., 7736, 7782, 8032 & 8126 OF 2006
and
WPMP.NOs.8489, 8503, 8594, 8595, 8939,
8940 and 8941 OF 2006
W.P.NO.7720 of 2006
Pon Paramaguru
Director General of Police (Retd.)
No.12, Balaji Avenue,
Thirumalai Road, T.Nagar,
Chennai 600 017. .. Petitioner
-Vs-
1. State of Tamil Nadu,
Rep. by its Chief Secretary,
Fort St. George,
Chennai 600 009.
2. The Chief Election Commissioner,
Election Commission of India,
New Delhi. .. Respondents
3. A. Raja,
S/o. Andimuthu,
2A, Motilal Nehru Marg,
New Delhi.
(Respondent No.3 impleaded as
per order of Court dt.22.3.06
in WPMP.No.9041/06) .. Intervenor / Respondent
W.P.NO.7736 of 2006
Walter I. Davaram
S/o.T.N. Davaram,
61/14, Buckingam Terrace,
Macnichol Road, Chetput,
Chennai 600 031. .. Petitioner
Vs.
1. The Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi 110 001.
2. The State of Tamil Nadu,
Rep. by its Chief Secretary
to Government,
Fort St. George,
Chennai 600 009.
3. R. Nataraj, IPS
Commissioner of Police,
Greater Chennai City,
Egmore, Chennai 600 008. .. Respondents
4. A. Raja,
S/o. Andimuthu,
2A, Motilal Nehru Marg,
New Delhi.
5. P. Rathinam,
Advocate
183, II Floor, Thambu Chetty Street,
Chennai 600 001.
(Respondents 4 & 5 impleaded as
per order of Court dt.22.3.06
in WPMP.Nos.8974 & 9020/06) .. Intervenors /
Respondents
W.P.NO.7782 of 2006
State of Tamil Nadu,
Rep. by its Home Secretary,
Secretariat, Fort St. George,
Chennai 600 009. .. Petitioner
Vs.
1. The Election Commission of India
rep. by the Chief Election Commissioner,
Nirvachan Sadan,
Ashoka Road,
New Delhi.
2. The Chief Electoral Officer,
Public (Elections) Department,
Secretariat,
Chennai 600 009. .. Respondents
3. K. Nagaimugan
S/o. Karuppaiah
No.2, Alwar Thiru Nagar Annexe,
Chennai 600 087.
4. A. Raja,
S/o. Andimuthu,
2A, Motilal Nehru Marg,
New Delhi.
(Respondent No.3 impleaded as
per order of Court dt.22.3.06
in WPMP.Nos.8828 & 8829/06)
W.P.NO.8032 of 2006
V.R. Lakshminarayanan,
S/o.V.V. Rama Iyer,
Director General of Police (Retired)
U-91, 3rd Floor, 3rd Main Road,
Anna Nagar, Chennai 600 040. .. Petitioner
Vs.
1. The Election Commission of India
rep. by the Chief Election Commissioner,
Nirvachan Sadan,
Ashoka Road,
New Delhi.
2. The State of Tamil Nadu,
Rep. by its Chief Secretary,
Fort St. George,
Chennai 600 009.
3. R. Nataraj, IPS
Commissioner of Police,
Greater Chennai,
Egmore, Chennai 600 008. .. Respondents
W.P.NO.8126 of 2006
A. Adaikalam
HIG-982, Mogappair Erey Scheme,
Mogappair, Chennai. .. Petitioner
Vs.
1. The Election Commission of India
Nirvachan Sadan,
Ashoka Road,
New Delhi 110 001.
2. The State of Tamil Nadu,
Rep. by its Chief Secretary to Govt.,
Fort St. George,
Chennai 600 009.
3. R. Nataraj, IPS
Commissioner of Police,
Greater Chennai City,
Egmore, Chennai 600 008.
4. A. Raja,
Union Minister of Environment
and Forest, New Delhi. .. Respondents
W.P.NO.7720 of 2006 has been filed under Article 226 of the
Constitution of India for the issuance of writ of mandamus forbearing the
respondents from transferring R. Nataraj, the Commissioner of Police, Greater
Chennai to a non-election related post in the guise of conducting a free and
fair election, assuming and usurping powers.
W.P.No.7736 of 2006 has been filed under Article 226 of the
Constitution of India for the issuance of writ of mandamus for a direction
restraining the respondents 1 and 2 from giving effect to the directions
issued by the 1st respondent to transfer the 3rd respondent from the post of
Commissioner of Police, Greater Chennai.
W.P.NO.7782 of 2006 has been filed under Article 226 of the
Constitution of India for the issuance of writ of Certiorari to call for the
records pertaining to the directions of the Election Commission of India in
its fax message D.O.No.PS/AK/2006 dated 14.3.2006, wherein the Election
Commission of India had transferred the Commissioner of Police, Greater
Chennai so as to quash the same.
W.P.NO.8032 of 2006 has been filed under Article 226 of the
Constitution of India for the issuance of writ of Certiorari to call for the
records of the first respondent relating to its fax message D.O.No.
PS/AK/2006 dated 14.3.2006 and quash the same.
W.P.NO.8126 of 2006 has been filed under Article 226 of the
Constitution of India for the issuance of writ of mandamus directing the
second respondent to implement the order of transfer of the 1st respondent
relating to fax message D.O.No.PS/AK/2006 dated 14.3.2006 against the third
respondent.
!For Petitioner in
WP.7720/2006 : Mr.S.R. Rajagopal
For Petitioner in
WP.No.7736/2006 : Mr. Vijay Narayan
Senior Counsel for
Mrs. Narmadha Sampath
For Petitioner in
WP.No.8032/2006 : Mr.N. Jothi for
Mr.L.P. Shanmugasundaram
For Petitioner in
WP.No.8126/2006 : Mr.V. Srikanth
For Petitioner in
WP.No.7782/2006 and : Mr.N.R. Chandran
for the State Advocate General
Assisted by
Mr.D. Krishnakumar, Spl.G.P
Mr.S. Venkatesh, Spl.G.P.
Mr.E. Sampath Kumar, G.A.,
^For Respondent-2
in WP.No.7736/2006 : Mr.A.L. Somayaji
Addl. Advocate General
Assisted by
Mr.S. Venkatesh, Spl.G.P.,
Mr.R. Vijayakumar, G.A.,
For Election
Commission : Mr.G. Rajagopalan
Senior Advocate for
M/s.G.R. Associates
For Intervenor : Mr. Shanthi Bhusan
(A. Raja) Senior Advocate for
Mr.J. Ravindran
For Respondent-4 in
W.P.No.8126/2006: Mr.R. Viduthalai,
Senior Counsel for
Mr.J. Ravindran
(Mr.P. Rathinam): Mr.P. Rathinam
Party-in-person
(K. Nagaimugan) : Mr. Elephant G. Rajendran
:COMMON JUDGMENT
P.K. MISRA, J
The factual background as culled out from various writ
petitions and the counter affidavit is as follows :-
Mr.R. Nataraj has been functioning as the Commissioner of Police,
Chennai, since 18.9.2004. It seems for publication in Chennai Chronicle a
supplement of the Newspaper Deccan Chroncile on 8.3.2006, which was being
observed as International Womens Day, R. Nataraj was contacted by a
representative of such newspaper to give his opinion regarding an ideal woman.
As per the newspaper report, R. Nataraj has stated :
An ideal woman is someone who manages both her personal and
professional life well. In this respect, I think our chief minister J.
Jayalalitha is the perfect example of the ideal woman.
I think she is an icon and every woman should look up to her.
Thereafter, publication of such comment in the newspaper appears to
have been brought to the notice of the Election Commission. (It is claimed by
Mr.A. Raja, a Minister in the Union Government, that it is he who brought it
to the notice of the Commission, whereas according to the Commission, even
before Mr.A. Raja brought it to the notice of the Commission, a copy of the
Chennai Chronicle dated 8.3.2006 was received by the Commission on 13.3.2006).
On 14.3.2006, the Deputy Election Commissioner wrote the following letter
D.O.No.PS/AK/2006 dated 14.3.2006 to the Chief Secretary to the Government of
Tamil Nadu :-
... The Commission has desired that Shri R. Nataraj, Commissioner
of Police, Chennai may be transferred from his present post immediately. He
may be given any post that does not entail election related duties. ...
Such letter dated 14.3.2006 was faxed to the Chief Secretary.
Thereafter, the Chief Secretary of the Tamil Nadu Government wrote letter
dated 14.3.2006, a copy whereof has been filed by the State Government as a
typed set. The letter is as follows :-
... I have received your D.O. Letter dated 14.3.2006 indicating
that Thiru R. Nataraj, I.P.S., Commissioner of Police, Greater Chennai may be
transferred from his present post immediately and posted to any post that does
not entail election related duties.
Thiru R. Nataraj joined as Commissioner of Police, Greater Chennai
only on 18.9.2004. The Commissioner of Police, Greater Chennai is a key
position of tremendous public importance. The post of Commissioner of Police,
Greater Chennai, with a population of over 75 lakhs is a difficult and
sensitive assignment. Law and Order management in Greater Chennai takes
number one priority given the myriad issues that come up on a daily basis.
Adroit management is absolutely essential and only an experienced person
capable of long hours of work with clear application of mind can handle this
sensitive charge. It is well accepted that Thiru R. Nataraj has done
outstanding work in impartially maintaining law and order in an admittedly
difficult and complex charge. This is not to extol his virtues but the
genuine impression all around is that as a senior Police Officer he has
effectively maintained law and order in the City enabling Chennai to be ranked
at the very top in efficient law and order management.
As a regular recruit senior I.P.S. Officer of the 1975 Batch, he is
very well regarded for his integrity and honesty. There is not even a whiff
of a complaint against him on this score. This is an outstanding feature,
which has instilled great confidence amidst the general public. This has in
no small measure contributed significantly to the enhanced image of the Police
Force at Chennai.
As you are aware, the directions of the Election Commission to change
officers who have completed three years in the same Revenue District have
meant that several officers have been moved and new officers are in the
process of taking over. Suddenly shifting the Commissioner of Police at this
juncture will disrupt the preparations being made to handle the elections.
Without a proper leader, law and order management at the time of elections in
Greater Chennai could be extremely problematic.
While I am not completely aware of the background of this decision to
shift him, it would seem that the remarks made by him and reported in the
press are in response to a reporter telephonically asking for a comment on the
occasion of International Womens Day. It is not a speech made on any public
platform. It is cle arly not related to any outstanding public issue. What
seems to have transpired was just an instant comment on a telephonic query.
There seems to be no intention whatsoever to misuse his position.
We have a serious problem in the efficient management of law and order
in Greater Chennai during elections considering the surcharged nature of these
elections. Greater Chennai definitely needs a seasoned officer who is fully
familiar with the entire metropolitan area along with the officers and men to
be able to efficiently and competently manage law and order in the context of
the forthcoming elections.
While not in any way attempting to differ with the directions of the
Election Commission, I would like to submit my sincere assessment of the
position, particularly in the context of the oncoming elections. Thiru R.
Nataraj, is well recognized as a competent officer of integrity and shifting
him at this stage does jeopardize our preparations for the smooth conduct of
the elections. Taking all aspects into account, the balance of advantage
would be to retain him at Greater Chennai as Commissioner of Police. This
assessment may kindly be considered by the Election Commission of India.
2. The reply to such communication was given by the Deputy
Election Commissioner on behalf of the Election Commission on 16.3.2006 in the
following words :-
"... Kindly refer to your letter dated 14.3.2006 requesting the
Commission to reconsider its decision on shifting of Shri R. Nataraj,
Commissioner of Police, Greater Chennai.
The Commission has gone through the contents of your letter and has
decided not to change its earlier decision. In view, the State Government of
Tamil Nadu is requested to transfer Shri R. Nataraj, Commissioner of Police,
Greater Chennai to any post that does not entail election related duties with
immediate effect and forward a panel of three officers by 5.00 p.m. tomorrow
(17.03.2006) to enable the Commission select a suitable officer for the post
of Commissioner of Police, Greater Chennai. ..."
3. On 17.3.2006, three writ petitions were filed, namely,
W.P.Nos.7 720, 7736 and 7782 of 2006, first two by two former Directors
General of Police and the third one by the State Government challenging the
direction of the Commission regarding transfer of the Commissioner of Police,
Chennai. On being mentioned before the Honble the Chief Justice, the matters
were placed for admission after Lunch Break on 17.3.2006. At that stage, the
Election Commission had entered appearance through Mr.G. Rajagopalan, Senior
Counsel. After the three writ petitions were entertained and the matter
relating to grant of stay was argued, learned Senior Counsel appearing for the
Election Commission made a statement that the Election Commission shall not
insist upon compliance of the letter dated 16.3.2006 till 23.3.2006. The
matters were directed to be taken up on 22.3.2006. By 22.3.2006, another writ
petition, W.P.No.8032 of 2006, was filed by another retired Director General
of Police seeking to quash the communication of the Election Commission dated
14.3.2006. Similarly, W.P.No.8126 of 2006 has been filed by a retired police
official seeking for a direction regarding enforcement of such decision of the
Election Commission. Intervention Petitions have been filed on behalf of
three persons, including A. Raja, opposing the prayer made by the State
Government and supporting the stand of the Election Commission. Such
applicants have been added as intervenors. Learned counsels appearing for
such intervenors made statement that their petitions can be considered as
statement in opposition to the writ petitions filed on behalf of the State
Government and the former Directors General of Police and there was no
necessity for them to file any formal counter affidavit. Accordingly, hearing
of the matter continued after recess on 22.3.2006, 23.3.200 6, 24.3.2006 and
ultimately the hearing was concluded on 27.3.2006.
4. The main contentions raised in the writ petitions filed by
the State and the three former Director General of Police challenging the
order of the Election Commission are as follows :-
(1) The Election Commission has no jurisdiction to issue such
direction to the State Government regarding transfer of any particular
officer, more particularly when notification as contemplated under Section 15
of the Representation of the People Act, 1951 is yet to be issued.
(2) The principles of natural justice have not been followed by the
Election Commission and the order has been passed without seeking for any
clarification either from the State Government or from the police officer
concerned and the subsequent clarification sent by the Chief Secretary to the
Government has been completely ignored.
(3) The order has been passed by the Election Commission arbitrarily
without any basis and without any justification.
5. The Election Commission in its counter in W.P.No.7782 of
2006 has indicated that the Election Commission has ample jurisdiction under
Article 324 of the Constitution as well as Section 13CC of the Representation
of the People Act, 1950 to pass the order, which has been passed with a view
to ensure free and fair election. The Election Commission has also raised the
question of locus standi of the former Directors General of Police to file
such Public Interest Litigation.
6. The three intervenors as well as the writ petitioner in
W.P.No.8 126 of 2006 have more or less supported such a stand of the Election
Commission.
7. We have heard the learned Advocate General for the
petitioner/ State in W.P.No.7782 of 2006 and Mr.A.L. Somayaji, Additional
Advocate General for the Respondent State in W.P.No.7736 of 2006, Mr. Vijay
Narayan, Senior Counsel, for the petitioner in W.P.No.7736 of 2006, Mr.S.R.
Rajagopal for the petitioner in W.P.No.7720 of 2006, Mr.N. Jothi for the
petitioner in W.P.No.8032 of 2006 and Mr.R. Viduthalai, Senior Counsel, for
Respondent No.4 in W.P.No.8126 of 2006, Mr. Santhi Bhusan, Senior Counsel for
the intervenor, namely, A. Raja, Intervenor, Mr.P. Rathinam, who has
appeared in person in W.P.No.7736 of 2006, Mr.G. Rajendran for the
intervenor, namely Mr. Nagaimugan, and Mr.V. Srikanth in W.P.No.8126 of
2006, who has supp orted the Election Commission.
8. The first and foremost question which crops up for
decision is the jurisdiction of the Election Commission to direct the State
regarding transfer of any particular officer. The Election Commission in its
counter has banked upon the the provisions contained in Article 32 4(1) and
(6) as well as Section 13CC of the Representation of the People Act, 1950 to
justify the direction issued.
9. Since much of the disputes relate to jurisdiction of the
Election Commission and since the Election Commission is banking upon Article
324(1) and (6) of the Constitution, it is necessary to extract such
provisions.
324. Superintendence, direction and control of elections to be
vested in an Election Commission.-
(1) The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament and
to the Legislature of every State and of elections to the offices of President
and Vice-President held under this Constitution shall be vested in a
Commission (referred to in this Constitution as Election Commission).
...
(6) The President, or the Governor of a State, shall, when so
requested by the Election Commission, make available to the Election
Commission or to a Regional Commission such staff as may be necessary for the
discharge of the functions conferred on the Election Commission by clause(1).
10. It is contended by the learned counsels appearing for the
petitioners, who are challenging the order passed by the Election Commission,
that the jurisdiction of the Commission under Article 324(1) cannot be
considered to be unbridled and since specific provisions are available under
Section 13CC of the Representation of the People Act, 1 950 and Section 28A
and Section 129 of the Representation of the People Act, 1951, the Election
Commission cannot claim unrestricted right to transfer any person on the
pretext of purity of election process and cannot impinge upon the authority of
the State Government to post officers according to its own discretion. It is
contended by them that when specific provisions are available, there is no
question of falling back upon the residuary power under Article 324.
11. The scope of Article 324 and other allied provisions has
been considered by the Supreme Court on various occasions. In AIR 1978 SC 851
(MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW
DELHI AND OTHERS), it was observed :-
"38. Article 324, which we have set out earlier, is a plenary
provision vesting the whole responsibility for national and State elections
and, therefore, the necessary powers to discharge that function. It is true
that Art.324 has to be read in the light of the constitutional scheme and the
1950 Act and the 1951 Act. Sri Rao is right to the extent he insists that if
competent legislation is enacted as visualised in Art.327 the Commission
cannot shake himself free from the enacted prescriptions. After all, as
Mathew, J. has observed in Indira Gandhi (AIR 1975 SC 2299):
"In our opinion of some of the judges constituting the majority in
Bharati's case (AIR 1973 SC 1461) (supra) rule of law is a basic structure of
the Constitution apart from democracy.
The rule of law postulates the pervasiveness of the spirit of law
throughout the whole range of government in the sense of excluding arbitrary
official action in any sphere." (p.523 of SCR): (at p.2384 of AIR).
And the supermacy of valid law over the Commission argues itself. No
one is an imperium in imperio in our constitutional order. It is reasonable
to hold that the Commissioner cannot defy the law armed by Art.324. Likewise,
his functions are subject to the norms of fairness and he cannot act
arbitrarily. Unchecked power is alien to our system.
39. Even so, situations may arise which enacted law has not provided
for. Legislators are not prophets but pragmatists. So it is that the
Constitution has made comprehensive provision in Art.324 to take care of
surprise situations. That power itself has to be exercised, not mindlessly
nor mala fide, not arbitrarily nor with partiality but in keeping with the
guidelines of the rule of law and not stultifying the Presidential
notification nor existing legislation. More is not necessary to specify; less
is insufficient to leave unsaid. Article 324, in our view, operates in areas
left unoccupied by legislation and the words 'superintendence, direction and
control' as well as ' conduct of all elections' are the broadest terms.
(Emphasis supplied)
The Court further held :
"41. Our conclusion on this limb of the contention is that Article 3
24 is wide enough to supplement the powers under the Act, as here, but subject
to the several conditions on its exercise we have set out."
The Court also held in (in para 77) thus :
"77. We have been told that wherever Parliament has intended a
hearing it has said so in the Act and the rules and inferentially where it has
not specificated it is otiose. There is no such sequitur. The silence of a
statute has no exclusionary effect except where it flows from necessary
implication. Article 324 vests a wide power and where some direct consequence
on candidates emanates from its exercise we must read this functional
obligation."
(emphasis supplied)
In the concluding portion of paragraph 92, the Court inter alia
observed thus (SCC p.452)
"(1)(a) ...
(b) Election, in this context, has a very wide connotation commencing
from the Presidential notification calling upon the electorate to elect and
culminating in the final declaration of the returned candidate.
(2)(a) The Constitution contemplates a free and fair election and
vests comprehensive responsibilities of superintendence, direction and control
of the conduct of elections in the Election Commission. This responsibility
may cover powers, duties and functions of many sorts, administrative or other,
depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the
exercise thereof. Firstly, when Parliament or any State Legislature has made
valid law relating to or in connection with elections, the Commission shall
act in conformity with, not in violation of such provisions but where such law
is silent Article 324 is a reservoir of power to act for the avowed purpose
of, not divorced from pushing forward a free and fair election with
expedition."
(emphasis suplied)
Goswami, J in his concurring decision observed (in para 113) thus :
"Since the conduct of all elections to the various legislative bodies
and to the offices of the President and the Vice-President is vested under
Article 324(1) in the Election Commission, the framers of the Constitution
took care to leaving scope for exercise of residuary power by the Commission,
in its own right, as a creature of the Constitution, in the infinite variety
of situations that may emerge from time to time in such a large democracy as
ours. Every contingency could not be foreseen, or anticipated with precision.
That is why there is no hedging in Article 324. The Commission maybe required
to cope with some situation which may not be provided for in the enacted laws
and the rules." (emphasis supplied)
119. It is true that in exercise of powers under Article 324(1) the
Election Commission cannot do something impinging upon the power of the
President in making the notification under Sec.14 of the Act. But after the
notification has been issued by the President, the entire electoral process is
in the charge of the Election Commission and the Commission is exclusively
responsible for the conduct of the election without reference to any outside
agency. We do not find any limitation in Art.324(1) from which it can be held
that where the law made under Art.327 or the relevant rules made thereunder do
not provide for the mechanism of dealing with a certain extraordinary
situation, the hands of the Election Commission are tied and it cannot
independently decide for itself what to do in a matter relating to an
election. We are clearly of opinion that the Election Commission is competent
in an appropriate case to order re-poll of an entire constituency where
necessary. It will be an exercise of power within the ambit of its functions
under Article 324. The submission that there is complete lack of power to
make the impugned order under Art.324 is devoid of substance.
...
121. As already pointed out, it is well-settled that election covers
the entire process from the issue of the notification under Section 14 to the
declaration of the result under Sfec.66 of the Act. When a poll that has
already taken place has been cancelled and a fresh poll has been ordered, the
order therefor, with the amended date, is passed as an integral part of the
electoral process. We are not concerned with the question whether the
impugned order is right or wrong or invalid on any account. Even if it is a
wrong order it does not cease to be an order passed by a competent authority
charged with the conduct of elections with the aim and object of completing
the elections. Although that is not always decisive, the impugned order
itself shows that it has been passed in the exercise of power under Art.324(1)
and Section 153 of the Act. That is also the correct position. Such an
order, relating, as it does, to election within the width of the expression as
interpreted by this Court, cannot be questioned except by an election petition
under the Act." (Emphasis supplied)
12. observations made by the Supreme Court in the aforesaid
case have more or less formed the bed-rock of the opinion expressed by the
Supreme Court in the subsequent cases, upon which reliance has been placed by
the Counsels for both sides.
13. The decision reported in AIR 1984 SC 921 (A.C. JOSE v.
SIVAN PILLAI AND OTHERS), is, however, required to be extracted in detail as
the Counsels appearing for various petitioners have placed strong reliance
upon it, whereas the Senior Counsel appearing for the Election Commission and
other Counsels supporting the stand of the Election Commission have used
rather strong words while contending that such decision cannot be followed as
it is contrary to the decision of the Supreme Court in Mohinder Singh Gill's
case.
14. In A.C. Joses case, the question was related to
validity of the election of the respondent in the said case, which had been
challenged in an Election Petition before the High Court. The main contention
of the unsuccessful candidate was relating to legality of the use of
electronic voting machine. The Election Dispute having been dismissed by the
High Court, the matter was taken to the Supreme Court. It was contended
before the Supreme Court by the successful candidate as well as the Election
Commission, which has been impleaded as a party at the appellate stage, that
in view of the plenary jurisdiction available under Article 324(1), the
direction issued by the Election Commission regarding use of electronic voting
machines cannot be considered as an illegality for which the election of a
successful candidate can be challenged in the election dispute. The Supreme
Court, while setting aside such election in respect of those 50 polling
stations where electronic voting machines were used and directing re-poll, had
occasion to examine the scope of Article 324. Paragraph 4 reflects the
contention of the Election Commission which is extracted hereunder :-
"4. Art.324 of the Constitution gives full powers to the Commission
in matters of superintendence, direction and control of the preparation of
electoral rolls and also for the conduct of elections to the Parliament and
State Legislatures. It was argued that the Commission being a creature of the
Constitution itself, its plenary powers flowing directly from Art.324 will
prevail over any Act passed by the Parliament or Rules made thereunder. In
order to buttress this argument, it was contended that the manner of voting
was a matter coming within the ambit of Arts.324 and 327 which empowered the
Parliament to make laws in respect of matters relating to or in connection
with the elections to the Parliament or the State Legislatures and would be
deemed to be subsidiary to the power contained in Art.324 and if there was any
conflict between a law enacted by the Parliament and the powers given to the
Commission regarding regulating the conduct of elections to Parliament that
law must yield to Art.324, otherwise the very object of Art.324 would be
defeated."
Such submission was repelled in the following words in paragraph 5 :-
"5. This is a very attractive argument but on a closer scrutiny and
deeper deliberation on this aspect of the matter, it is not possible to read
into Art.324 such a wide and uncanalised power, which is entrusted to the
Commission as Mr. Jethmalani would have us believe. Part XV of the
Constitution contains Arts.324 to 328 which relate to the manner in which
elections are to be held, the rights of persons who are entitled to vote,
preparation of electoral rolls, delimitation of constituencies, etc., but this
is merely the storehouse of the powers and the actual exercise of these powers
is left to Parliament under Arts.325 to 329. In other words, Art.324 has to
be read in harmony with, and not in isolation of Arts.326 to 329. ...
7. Another golden rule laid down by this Court on the interpretation
of statutes is that we should so interpret the language of a Statute as to
suppress the mischief and advance the object. It is true that Art.324 does
authorise the Commission to exercise powers of superintendence, direction and
control of preparation of electoral rolls and the conduct of elections to
Parliament and State legislatures but then the Article has to be read
harmoniously with the Articles that follow and the powers that are given to
the Legislatures under entry No.7 2 in the Union List and entry No.37 of the
State List of the Seventh Schedule to the Constitution. The Commission in the
garb of passing orders for regulating the conduct of elections cannot take
upon itself a purely legislative activity which has been reserved under the
scheme of the Constitution only to Parliament and the State legislatures. By
no standards can it be said that the Commission is a third Chamber in the
legislative process within the scheme of the Constitution. Merely being a
creature of the Constitution will not give it plenary and absolute power to
legislate as it likes without reference to the law enacted by the
legislatures."
(Emphasis supplied)
After referring to the debate in the Constituent Assembly, it was
further observed :-
"9. These observations merely show that the intention of the founding
fathers of our Constitution was to make the Commission a separate and
independent body so that the election machinery may be outside the control of
the executive Government. What Dr. Ambedkar, or for that matter the founding
fathers, intended was that the superintendence, direction and control of the
preparation of electoral rolls and of all elections to Parliament and State
Legislatures should be left to the Election Commission. This object has been
fully carried out by the provisions in Arts.324 to 329. Neither the
observations of Dr. Ambedkar nor the provisions of the Constitution could
ever have intended to make the Commission an apex body in respect of matters
relating to elections, conferring on it legislative powers ignoring the
Parliament altogether."
After referring to the observations of Justice Krishna Iyer in
Mohinder Singh Gill's case, it was further observed:-
"18. The observations, extracted above, furnish a complete answer to
the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has been clearly
held that Art.324 would operate only in areas left unoccupied by legislation,
even if the widest possible connotation is given to the language of Art.324.
While summarising the propositions, the Court made the following observations:
"Two limitations at least are laid on its plenary character in the
exercise thereof. Firstly, when Parliament or any State Legislature has made
valid law relating to or in connection with elections, the Commission shall
act in conformity with, not in violation of such provisions but where such law
is silent Article 324 is a reservoir of power to act for the avowed purpose
of, not divorced from pushing forward a free and fair election with
expedition. Secondly the Commission shall be responsible to the rule of law,
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 fairplayin-action in a most important area of the constitutional order,
viz., elections."
15. Even though it is submitted by Mr.G. Rajagopalan, Senior
Counsel, appearing for the Election Commission that the observations made by
the Supreme Court in A.C. Jose case are based on the misreading of the
decision of the Constitution Bench in Mohinder Singh Gill's case and the
observations made in the said decision have been altogether lost sight of, we
do not find any conflict between these two decisions. It is to be noticed
that even in all subsequent decisions reliance has been placed by the Supreme
Court upon the observations made in A.C. Jose case.
16. In AIR 1986 SC 111 (KANHIYA LAL OMAR v. R.K. TRIVEDI
AND OTHERS), it was observed :-
"9. ... The superintendence, direction and control of the conduct of
elections referred to in Art.324(1) of the Constitution are entrusted to the
Commission. The words 'superintendence', 'direction and ' control' are wide
enough to include all powers necessary for the smooth conduct of elections.
It is, however, seen that Parliament has been vested with the power to make
law under Art.327 of the Constitution read with Entry 72 of List I of the
Seventh Schedule to the Constitution with respect to all matters relating to
the elections to either House of Parliament or to the House or either House of
the Legislature of a State subject to the provisions of the Constitution.
Subject to the provisions of the Constitution and any law made in that behalf
any Parliament the Legislature of a State may under Art.328 read with Entry 37
of List II of the Seventh Schedule to the Constitution make law relating to
the elections to the House or Houses of Legislature of that State. The
general powers of superintendence, direction and control of the elections
vested in the Commission under Art.324(1) naturally are subject to any law
made either under Art.327 or under Art.328 of the Constitution. The word
'election' in Art.324 is used in a wide sense so as to include the entire
process of election which consists of several stages and it embraces many
steps some of which ma have an important bearing on the result of the process.
...
16. Even if for any reason it is held that any of the provisions
contained in the Symbols Order are not traceable to the Act or the Rules, the
power of the Commission under Article 324(1) of the Constitution which is
plenary in character can encompass all such provisions. Article 324 of the
Constitution operates in areas left unoccupied by legislation and the words
'superintendence', 'direction' and 'control' as well as 'conduct of all
elections are the broadest terms which would include the power to make all
such provisions. See Mohinder Singh Gill v. Chief Election Commissioner, New
Delhi (1978) 2 SCR 272 : (AIR 1978 SC 851) and A.C. Jose v. Sivan Pillai
(1984) 3 SCR 74 : ( AIR 1984 SC 921).
17. ... While construing the expression 'superintendence direction
and control' in Article 324(1), one has to remember that every norm which lays
down a rule of conduct cannot possibly be elevated to the position of
legislation or delegated legislation. There are some authorities or persons
in certain grey areas who may be sources of rules of conduct and who at the
same time cannot be equated to authorities or persons who can make law, in the
strict sense in which it is understood in jurisprudence. A direction may mean
an order issued to a particular individual or a precept which many may have to
follow. It may be a specific or a general order. One has also to remember
that the source of power in this case is the Constitution, the highest law of
the land, which is the repository and source of all legal powers and any power
granted by the Constitution for a specific purpose should be construed
liberally so that the object for which the power is granted is effectively
achieved,. Viewed from this angle it cannot be said that any of the
provisions of the Symbols Order suffer from want of authority on the part of
the Commission, which has issued it." ( emphasis supplied)
17. In (2002) 5 SCC 294 (UNION OF INDIA v. ASSOCIATION FOR
DEMOCRATIC REFORMS AND ANOTHER), while considering the question whether the
Election Commission is empowered to issue directions regarding filing of
affidavit requiring the disclosure of certain aspects by the candidates as per
the direction of the Delhi High Court, the observations made in Mohinder Singh
Gill's case were copiously extracted and after referring to the decision of
A.C. Jose's case and Kanhiya Lal Omar' s case as well as (1996) 2 SCC 752
(COMMON CAUSE (A REGISTERED SOCIETY) v. UNION OF INDIA AND OTHERS) relating
to the authority of the Election Commission to issue direction requiring the
political parties to submit details of expenditure, the following observations
from the Common Cause case were extracted :-
"26. Superintendence and control over the conduct of elections by the
Election Commission include the scrutiny of all expenses incurred by a
political party, a candidate or any other association or body of persons or by
any individual in the course of the election. The expression 'Conduct of
election' is wide enough to include in its sweep, the power to issue
directions in the process of the conduct of an election to the effect that
the political parties shall submit to the Election Commission, for its
scrutiny, the details of the expenditure incurred or authorised by the parties
in connection with the election of their respective candidates."
Ultimately the conclusions were summarised in paragraph 46. The
relevant extracats are as follows:-
"46. To sum up the legal and constitutional position which emerges
from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to
include all powers necessary for smooth conduct of elections and the word
"elections" is used in a wide sense to include the entire process of election
which consists of several stages and embraces many steps.
2. The limitation of plenary character of power is when Parliament or
State Legislature has made a valid law relating to or in connection with
elections, the Commission is required to act in conformity with the said
provisions. In case where law is silent, Article 324 is a reservoir of power
to act for the avowed purpose of having free and fair election. The
Constitution has taken care of leaving scope for exercise of residuary power
by the Commission in its own right as a creature of the Constitution in the
infinite variety of situations that may emerge from time to time in a large
democracy, as every contingency could not be foreseen or anticipated by the
enacted laws or the rules. By issuing necessary directions, the Commission
can fill the vaccum till there is legislation on the subject. In Kanhiya Lal
Omar case the Court construed the expression "superintendence, direction and
control" in Article 324(1) and held that a direction may mean an order issued
to a particular individual or a precept which many may have to follow and it
may be a specific or a general order and such phrase should be construed
liberally empowering the Election Commission to issue such orders.
3. The word "elections" includes the entire process of election which
consists of several stages and it embraces many steps, some of which may have
an important bearing on the process of choosing a candidate. Fair election
contemplates disclosure by the candidate of his past including the assets held
by him so as to give a proper choice to the candidate according to his
thinking and opinion. As stated earlier, in Common Cause case the Court dealt
with a contention that elections in the country are fought with the help of
money power which is gathered from black sources and once elected to power, it
becomes easy to collect tons of black money, which is used for retaining power
and for re-election. If on an affidavit a candidate is required to disclose
the assets held by him at the time of election, the voter can decide whether
he could be re-elected even in case where he has collected tons of money.
..."
18. In (2002) 8 SCC 237 (IN THE MATTER OF SPECIAL REFERENCE
NO.1 OF 2002 [GUJARAT ASSEMBLY ELECTION MATTER]), decided by the Supreme Court
on a Presidential Reference under Article 143 of the Constitution, it was
observed :-
"76. ... In this view of the matter, the general power of
superintendence, direction, control and conduct of election although vested in
the Election Commission under Article 324(1), yet it is subject to any law
either made by Parliament or State Legislature, as the case may be, which is
also subject to the provisions of the Constitution. The word "election" has
been interpreted to include all the steps necessary for holding election. In
Mohinder Singh Gill v. Chief Elkection Commissioner, A.C. Jose v. Sivan
Pillai and Kanhiya Lal Omar v. R.K. Trivedi it has been consistently held
that Article 324 operates in the area left unoccupied by legislation and the
words " superintendence", "control", "direction" as well as "conduct of all
elections" are the broadest of the terms. Therefore, it is no more in doubt
that the power of superintendence, direction and control are subject to law
made by either Parliament or by the State Legislature, as the case may be,
provided the same does not encroach upon the plenary powers of the Election
Commission under Article 324.
...
Regarding the question relating to inter-link between Articles 174(1 )
and 324, it was observed :-
"... In that view of the matter Articles 174(1) and 324 operate on
different field and neither Article 174(1) is subject to Article 324 nor
Article 324 is subject to Article 174(1) of the Constitution."
19. From a conjoint reading of all these decisions, it can be
summarised as :
(1) The provisions contained in Article 324 cannot be read in
isolation and such provisions are to be read conjointly with other provisions
such as Articles 325, 326, 327, 328 and 329 and also the provisions contained
in the Representation of the People Act, 1950 and the Representation of the
People Act, 1951.
(2) Article 324 operates in areas left unoccupied by the legislation.
(3) Article 324 is wide enough to supplement the power under the
Representation of the People Act and the Commission is empowered to cope with
any surprise situation which may not be provided for in the enacted laws and
the Rules by issuing necessary orders.
(4) The word 'election' in Article 324 is used in a wide sense so as
to include the entire process of election which consists of several stages and
it embraces many steps which may have some important bearing in the result of
the process (see AIR 1986 SC 111 : (1985) 4 SCC 6 28).
(5) The purity of the election is fundamental to democracy and the
Election Commission can issue suitable directions under Article 324 to
maintain purity of the election and in particular to bring transparency in the
process of election by directing the political parties to submit the details
of expenditure (See (1996) 2 SCC 752).
20. These propositions, which have been culled out from the
observations made by the Supreme Court in different decisions are, by and
large not disputed by any of the Counsel. The divergence of opinion is not on
the source of the authority of the Election Commission. According to the
petitioners, who are challenging the direction of the Election Commission,
various powers relating to control of the Election Commission over any
particular civil servant are covered by various provisions contained in the
Representation of the People Act, 1950 and the Representation of the People
Act, 1951 and other statutory Rules and the Election Commission can exercise
its authority only within t
