Karnail Singh and Others vs The Election Commission of India and Others

G.S. Singhvi, J.—This petition has been filed primarily for the purpose of frustrating the by-election scheduled to be held on 27.5.1995 for Ambala Parliamentary Constituency and after hearing the learned counsel for the petitioner, we are satisfied that the petition deserves to be dismissed summarily. The reason for this conclusion of ours are set out hereunder.

Election to the Parliamentary Constituency of Ambala was held in 1991, Shri Ram Parkash was elected in that election. Shri Ram Parkash died on 19.4.1995, the Election Commission of India, decided to hold by election for 9 Lok sabha Constituencies - One of which is Ambala Parliamentary Constituency. The petitioners say that under the directions of the Election Commissioner of India, the State of Haryana started revision of the electoral rolls of 90 Assembly Constituencies of Haryana. That process is still going on and the revised electoral rolls have not been finalised so far. Notwithstanding this, the Election Commissioner of India has announced by-election to the Ambala Parliamentary Constituency, resulting in exclusion of a large number of eligible persons from the electoral rolls and, thus, depriving them of their right to exercise their franchise during the forthcoming elections. Petitioners have asserted that various political parties, including the Congress, the Bhartiya Janta Party, the Communist Party of India etc. made representations before the Election Commissioner of India against the holding of the elections but respondent No. 1 has ignored such representation and is taking active steps for issuing notification for the election to be held on 27.5.1995.

Learned Counsel for the petitioners vehemently argued that hundreds to thousands of citizens, who attained majority after 1.1.1991 and who are eligible to exercise their vote in the future Elections will stand deprived of this opportunity because their names have not been included in the electoral rolls. Shri Sibal submitted that when the process for revision of the electoral rolls has already commended, there is no justification for holding the election in May, 1995, because the revised rolls cannot be published by that time. Shri Sibal argued that the electoral rolls prepared as on 1.1.1991 will be utilised for the forthcoming election and a large number of people belonging to the Ambala Parliamentary Constituency will be denied their right to cast vote and this would reduce the entire process of election to farce. Shri Sibal relied on the provisions contained in Section 21 of the Representation of the People Act, 1951. He also invited our attention to the decision of the Supreme Court in Lakshmi Charan Sen v. K.M. Hassan Uzzaman AIR 1985 S.C. 1233

Part XV of the Constitution of India deals with election. Article 324 lays down that 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 shall vest in the Election Commission. Article 325 says that no person shall be ineligible for inclusion in the electoral rolls only on the grounds of religion, race, caste, sex or any one of them. Article 326 speaks of election on the basis of actual suffrage. Article 329 contains a bar to the interference by the Court in the electoral matters.

Article 326 and 329 read as under :-

"Article 326 : The election of the House of the people and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislation and is not otherwise disqualified under this constitution or any law made by the appropriate legislature on the ground of no residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

Article 329 : Notwithstanding any thing in this Constitution:-

(a) the validity of any law relating to the delimitation of constituencies, or the allotment of seats to such constituency, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) 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."

In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , their lordships of the Supreme Court considered the scope of Article 329 of the constitution vis-a-vis Article 226 of the Constitution and observed :-

"If ''election'' bears the larger connotation, if ''calling in good 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 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 repoll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, 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."

In Lakshmi Charan Sen v. K.M. Hassan Uzzaman (supra) on which learned counsel for the petitioners has placed reliance, a constitution Bench of the Supreme Court made observations which cast some doubt on the proposition that preparation and revision of electoral rolls is a part of the election. However, in the same very judgment their lordships made it clear that mere revision of electoral rolls does not have the effect of putting the last electoral rolls in cold storage. Their Lordships of the People Act,1950, and observed :-

The fundamental error from which the writ petition suffers is this; The fact that the revision of electoral rolls, either intensive or summary, is under taken by the Election Commission does not have the effect of putting the electoral rolls last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electoral rolls has to be undertaken u/s 21 of the Act of 1950, whether or not an election is impending. Sub-section (1) of Section 21 provides that the ''electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately "upon its final publication in accordance with the rules made under this Act. '' Sub-Section (2) of Section 21 provides for the revision of the electoral roll prepared under Sub-section (1). The proviso, which is important, says that if the electoral roll " is not revised as aforesaid", the validity or continued operation of the "said" electoral roll shall not be effected. The controversy whether the proviso governs Clause (b) of Section 21(2) only or whether, it applies to Clause (a) of that section also is futile, though it may be interesting from the point of view of a text-book writer on the "interpretation of statutes". The crux of the matter is that if an electoral roll is not revised, its validity and continued operation remain unaffected, at least in a class of cases. That exemplifies an important principal which applies in the case of electoral rolls.

XXX XXX XXX The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electoral roil for the time being in force must hold the field. Election cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon. The holding of elections to the legislatures, which is a constitutional mandate cannot be made to depend upon the volition of interested party."

These observations of the Supreme Court, in our opinion, provide a complete answer to the argument of the learned counsel for the petitioners that by-election to the Ambala parliamentary Constituency cannot be held merely because the revision of the electoral rolls undertaken by the Election Commission has not been completed.

For the reasons mentioned above, the writ petition fails and the same is dismissed.