T.K. Kodandaram vs The Election Commission of India and Others

S.S. Ahmad, C.J.—The appellant, ShriT.K. Kodandaram, professes himself, in the writ petition, as a leader of the Bahujan Samaj Party who is vitally interested in the proper constitution and functioning of all democratic institutions including the Andhra Pradesh Legislative Assembly.

It is alleged in the writ petition that conduct of free and fair election to Parliament and to the State Legislative Assemblies was of paramount importance for the survival of democracy based on adult franchise. But the elections have all along been plagued with impersonation, rigging, capturing of ballot-boxes and Booths and other forms of violence, with the result that the elections were reduced to a farcical exercise as a vast majority of voters comprising of poor and helpless scheduled castes, scheduled tribes, backward classes and minorities were always excluded from exercising their right of franchise. It is stated that it was in order to meet the above situation mat the Parliament enacted Act No. 58 of 1958 and introduced Section 61 in its present form in tine Representation of People Act, 1951 that identity cards would be issued to voters; but, by making Rule 28 of the Registration of Electors Rules, 1960 and Rule 35(2) as also Rule 37(2) of the Conduct of Election Rules, 1961, the purpose of the requirement of having an identity-card at the election has been defeated. It was in this background, especially as the elections to the Andhra Pradesh Legislative Assembly are proposed to be held soon that the appellant filed a writ petition with a prayer that Rule 28 of the Registration of Electors Rules, as also Rule 35(2) and Rule 37(2) of the Counduct of Election Rules may be declared ultra vires Section 61 of the Representation of People Act, 1951, and the Election Commission of India as also the Union of India and the State of Andhra Pradesh may be directed by a writ of mandamus to provide identity cards to every elector as required by Section 61 of the Act before conducting the election for constituting the next Andhra Pradesh Legislative Assembly.

The petition was filed by way of Public Interest Litigation, and was dismissed by the learned Single Judge by Judgment and order dated 26-7-1994.

In this appeal before us, the questions already canvassed before the learned Single Judge have again been raised.

It is contended by the learned Counsel for the appellant that once Parliament had enacted Section 61 and had made a specific provision for identity cards being provided to every elector, it was not open to the Election Commission of India or to the State Government to make any Rule diluting the rigors of the substantive law and, therefore, the aforesaid Rules are ultra vires Section 61 of the Act.

In order to appreciate the contention raised by the learned Counsel for the appellant, a look at the constitutional provisions as also the provisions contained in the Representation of the People Act, 1950 and Representation of the People Act, 1951, including the Rules made thereunder, is necessary.

Article 79 of the Constitution provides that there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 80 deals with the composition of the Council of States, while Article 81 deals with the composition of the House of the People. This Article inter alia provides that the House of the People shall consist of members chosen by direct election from territorial constituencies in the States.

Similarly, in respect of various States it is provided by Article 168 that for every State there shall be a Legislature. Article 170, inter alia, provides that the Legislative Assembly of each State shall consist of members chosen by direct election from territorial constituencies in the State.

Part XV of the Constitution deals with elections. Article 324 provides that the superintendence, direction and control of the preparation of Electoral Rolls for, and the conduct of all elections to Parliament and to the legislature of every State shall be vested in the Election Commission. Article 326 provides that elections to 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 of age and is not disqualified under the Constitution or any law made by the appropriate Legislature, shall be entitled to be registered as a voter at any such election. Article 327 provides that Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

The Parliamenthas already made the Representation of People Act, 1950 and the Representation of People Act, 1951, which deal with matters connected with elections to tine Parliament and to the State Legislatures.

Representation of People Act, 1950 deals with allocation of seats to the States in the House of the People, and the number of seats in the State Legislative Assemblies. The Act also deals with delimitation of constituencies and preparation of electoral rolls for the Parliamentary and Assembly constituencies, and the revision of such electoral rolls. Section 15 provides that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the Act under the superintendence, direction and control of the Election Commission. Section 19 lays down the conditions of registration of a person as an elector in the electoral roll of the Constituency. Section 16 provides disqualification for registration. Section 23 makes provision for the inclusion of names in the electoral roll by laying down that any person whose name is not included in the electoral roll may apply to the Electoral Registration Officer for the inclusion of his name in that roll, and the Electoral Registration Officer on being satisfied that such person was entitled to be registered in the electoral roll, shall direct his name to be included therein.

Rules known as Registration of Electors Rules, 1960 have been made under this Act. Rule 28 of the said Rules provides as under:-

"Rule 28: Identity cards for electors in notified constituencies:

(1) The Election Commission may, with a view to preventing impersonation of electors and facilitating their identification at the time of poll, by notification in the Official Gazette of the State, direct that the provision of this rule shall apply to any such constituency or part thereof as may be specified in the notification.

(2) The registration officer for such notified constituency shall, as soon as may be, after the issue of the notification under sub-rule (1), arrange for the issue of every elector of an identity card prepared in accordance with the provisions of this rule.

(3) The identity card shall-

(a) be prepared in duplicate;

(b) contain the name, age, residence and such other particulars of the elector as may be specified by the Election Commission;

(c) have affixed to it a photograph of the elector which shall be taken at the expense of the Government; and

(d) bear the facsimile signature of the registration officer:

Provided that if the elector refuses to have his photograph taken, or cannot be found at his residence by the official photographer in spite of repeated attempts, such identity card shall be prepared for the elector and a note of such refusal or evasion or that the elector could not be found at his residence in spite of repeated attempts, shall be made in the copy of the roll maintained by the registration officer.

(4) One copy of the identity card prepared under sub-rule (3) shall be retained by the registration officer and the other copy shall be delivered to the elector to be kept by him for production at the time of poll."

The Rule provides for the issue of identity card to every elector. But the Rule is of limited application, in the sense that it does not universally apply to all constituencies but would apply only to such constituencies as are notified by the Election Commission of India by a notification in the Official Gazette.

Rule 28 contains a mechanism for the prevention of impersonation of electors. Since conduct of election is the exclusive jurisdiction of the Election Commission of India and its supervision vests exclusively in the Commission, the choice of constituencies where the mechanism of identity cards would be employed has been wisely left to the discretion of the Commission by providing that Election Commission may direct by notification in the Official Gazette that the provisions of this Rule shall apply to a particular constituency, or a part thereof. Once a notification is issued, it becomes the duty of the Registration Officer to issue to every elector an identity card.

Representation of the People Act, 1951 has been enacted to provide for the conduct of elections to Parliament and the State Assemblies, the qualifications and disqualifications for membership of those Houses the corrupt practice and offences at, or in connection with such elections, and the decision on disputes arising out of, or in connection with such elections.

Section 2(e) defines "elector" as a person whose name is entered in the electoral roll of the constituency and is not subject to any disqualification. Section 62 gives right of vote to such person by providing that no person who is not, and every person who is, for the time being entered in the electoral roll of any constituency, shall be entitled to vote in that constituency. Section 61 of the 1951 Act on which great emphasis was laid by the learned Counsel for the appellant, provides as under:-

"61. Special procedure for preventing personation of electors:

With a view to preventing personation of electors provision may be made by rule made under this Act:-

(a) for the marking with indelible ink of the thumb or any other finger of every elector who applies for a ballot paper or ballot papers for the purpose of voting at a polling station before delivery of such paper or papers to him;

(b) for the production before the presiding officer or a polling officer of a polling station by every such elector as aforesaid of his identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the Representation of the People Act, 1950 (43 of 1950), electors of the constituency in which the polling station is situated have been supplied with identity cards with or without their respective photographs attached thereto; and

(c) for prohibiting the delivery of any ballot paper to any person for voting at a polling station if at the time such person applies for such paper he has already such a mark on his thumb or any other finger or does not produce on demand his identity card before the presiding officer or a polling officer of the polling station."

The provisions of Section 61 extracted above aim at prevention of impersonation, which may be either by marking with indelible ink, the thumb or any other finger of the elector at the time of his applying for a ballot paper for the purpose of voting at a''polling station, or by production by every such elector an identity card before the delivery of a ballot paper. Both these procedures are to be provided by Rules made under the Act.

Clause (b) of Section 61 requires the production of identity card before the Presiding Officer or the Polling Officer of a polling station, by an elector before the delivery of a ballot paper to him for exercising his vote either at the election to the Parliament or the State Assembly. The requirement to produce identity card would be operative only if the electors of the Constituency in which the polling station is situate, have been supplied with identity cards under Rules made in that behalf under the Act. What is, therefore, contemplated by Section 61 is that, in order to prevent personation at an election, Rules may be made for providing identity cards to the electors of a constituency. Similarly, Rules, may be made for the prevention of personation by marking the thumb or any other finger of an elector by an indelible ink. It is thus apparent that the provisions of Section 61 would not operate unless Rules have been made.

Section 61 also contemplates the choice of two modes, namely, the mode of preventing personation by marking the thumb or any other finger of an elector by indelible ink, or by requiring him to produce his identity card. It is because of the choice of modes that it has been provided in Section 61 that, with a view to prevent personation of electors "provision may be made" by Rules made under the Act for marking with indelible ink or for production of the identity card. The two modes may not be mutually exclusive, and if the Rules so provide, both may have to be adhered to. What however is apparent is that provisions of Section 61 are ''enabling'' in nature. The consequences of finger of an elector being already marked by indelible ink or non-production of identity card by him are indicated in clause (c) of Section 61, which provides that delivery of ballot paper to any such elector may be prohibited by Rules made under the Act.

Conduct of Election Rules, 1961 made by the Central Government in exercise of power u/s 169 of the Act, contain provisions for identification of electors, challenge to the identity of the electors and safeguards against personation.

Rule 35 of the Conduct of Election Rules, 1961 contains provisions regarding identification of electors, while Rule36 provides the manner in which identity of a person claiming to be a particular elector may be challenged. Rule 37 contains provisions relating to safeguards against personation.

In view of the above discussion, the contention of the learned Counsel for the appellant that Rule 28 of the Registration of Electors Rules as also Rule 35(2) and Rule 37(2) of the Conduct of Election Rules are ultra vires Section 61 of the Representation of the People Act, 1951, cannot be accepted.

Learned Counsel for the appellant has contended that the mechanism provided by Rule 28 has already been adopted in many constituencies and/or, for that matter, many States but has not been applied to the State of Andhra Pradesh, with the result that in the elections which are soon to be held for constituting a new Legislative Assembly, impersonation, rigging and booth capturing will continue to take place. It is contended that so far as the State of Andhra Pradesh is concerned, the Commission has adopted a discriminatory attitude which is violative of Article 14 of the Constitution. This argument, in our opinion, is wholly fallacious.

It has already been noticed by us that under the constitutional scheme the power to conduct all elections to Parliament and to the Legislature of any State, vests in the Election Commission of India as provided by Article 324 of the Constitution. Under the Representation of People Act, 1950, as also the Representation of People Act, 1951, the principles enshrined in the Constitution with regard to elections to Parliament and State Assemblies have not been departed from. The primacy of the Commission has been maintained not only under the Act but also under the Rules made under the aforesaid Acts.

Right to contest an election or to vote at any election is neither a fundamental right nor a common law right. The concept of Article 14 cannot normally be invoked in the matter of holding of elections. The Election Commission of India has already started the process of switching over to the ntiechanism of identity card for the prevention of impersonation of electors and, therefore, it has to be left to the wisdom of the Commission to decide the appropriate occasion and time when this mechanism would be adopted or enforced in a particular State, or States.

The prayer made in the writ petition that no election be held in the State of Andhra Pradesh unless identity cards are prepared and distributed to electors cannot be granted.

We have already held that the discretion to introduce identity cards vests exclusively in the Election Commission and, therefore, it would not be possible for this Court to interfere with that discretion, or else the constitutional scheme would be defeated. The imperative is to hold the elections so that, on the expiry of the term of the old Assembly, a new Legislative Assembly may be elected and the democratic process may continue to survive. This constitutional mandate cannot be interfered with by granting relief as prayed in the petition that no election be held unless the identity cards are issued.

For the reasons stated above, we do not find any merit in this appeal which is dismissed at the admission stage.

Immediately after the judgment was pronounced, an oral request was made by the learned Counsel for the appellant that leave may be granted for filing an appeal before the Supreme Court of India.

Since no substantial question of law of general importance arises in this appeal, which requires to be decided by tine Supreme Court of India, leave prayed for is refused.