This Judgment will dispose of election petition No. 1 of 1984, election petition No. 2 of 1984 and election petition No. 3 of 1984. Election petitions Nos. 1 and 3 of 1984 have been filed by the defeated candidates while election petition No. 2 of 1984 has been filed by an elector. The main question, which requires consideration in all these petitions, is whether the Notifications issued under S.12 of the Representation of the People Act by the President to fill in two different vacancies which arose by reason of retirement in 1980 and 1982 contravene the provisions of Art.80(1) of the Constitution and Ss.12 and 27(h) of the Representation of the People Act.

2. The facts are not in dispute. It is alleged that on 1-11-1983, the President of India issued a Notification under S.12 of the Representation of the People Act 1951 (here in after referred to as “the Act”) calling upon the Members of the Metropolitan Council of Delhi to elect a Member for the seat in the Council of States which fell vacant on 15-4-1980 due to the retirement of Shri. Khurshid Alam Khan on the expiry of his term in the office. On the same day, the President issued another Notification under S.12 of the Act calling upon the Members of the Metropolitan Council of Delhi to elect another member to the Council of States for the seat which fell vacant due to the retirement of Shri Charanjit Channa on 2-4-1982. In pursuance of these Notifications the Election Commission issued Notifications also on 1-11-1983 which gave time-table for the completion of the election purpose. It is not disputed that both the vacancies in the Council of States were regular vacancies where the Members elected were to enjoy the full term of six years in office. It is alleged that Arts.80(4) and 80(5) of the Constitution read with S.27-H of the Act lays down that the election to the seats allotted to each Union Territory in the Council of States shall be filled in by the persons elected by the Members of Electoral College for that territory in accordance with the system of proportional representation by means of a single transferable vote. According to the petitioners the constitutional mandate of proportional representation requires that the system of election as far as possible should be so as to allow each group in the Electoral College to elect Members to the Council of States in proportion to their strength in the Electoral College. This constitutional mandate could only be fulfilled by holding joint elections for two seats which were vacant at the time of Notifications calling for the impugned elections.

3. It is further alleged that the Bhartiya Janata Party made a representation to the Election Commission against the said separate elections on the ground that they would be unconstitutional and bad in law. The Election Commission, after notice to the Congress (I) Party and the nominated candidates, heard representations of the Bhartiya Janata Party and finally rejected the same mainly on the ground that since the vacancies had arisen on different dates separate elections could be held to fill those vacancies. Thereafter separate elections were held to fill in the two vacancies on 18-11-1983 which resulted in the Congress (I) Party candidates getting both the seats. The Congress (I) candidates got 31 votes each and both the Bhartiya Janata Party candidates got 22 votes each. According to the allegations in the petition if a joint election had been held to fill both the seats, according to the system of proportional representation by means of a single transferable vote, the Bhartiya Janata Party would have got one seat and the Congress (I) would have got the other. The election has been challenged on the ground that the manner in which the elections have been held i.e issue of two separate Notifications, the same is violative of the requirements imposed by Art.80(5) of the Constitution and S.27-H of the Act.

4. The petition was contested by the returned candidate. In the written statement, it is alleged that as preliminary objection, the petition was liable to be dismissed for non-compliance of the mandatory requirements of S.83 and other relevant provisions of the Act. Under the provisions of S.100(1)(d)(iv) the essential legislative ingredient is that the election of the concerned candidate should be materially affected and apart from a bald statement made in the petition in ground I, there is no material to show that the election has been materially affected. The Election Commissioner of India is vested with plenary powers with regard to the superintendence, direction and control of the elections, and the said Election Commission having rejected the objections of the petitioner, the order operates as res judicata.

5. On merits, it is pleaded that the two notifications under S.12 of the Act, were issued by the President after the recommendations of the Election Commission of India made in that behalf. The notifications were rightly issued and it is open to the President to issue one or more Notifications for the purposes of calling upon the elected Members of the Constituency concerned to elect Members. The President issued two Notifications because the vacancies which were created and which were the subject matter of the said two Notifications were two distinct and separate vacancies. In the circumstances, it is alleged that there was no violation of any of the provisions of the Constitution or the Act. It is further stated in the written statement that the Metropolitan Council of State was dissolved in March 1980 and was reconstituted in February 1983 after the elections to the same were held. It is for this reason that the two vacancies were lying vacant from different dates i.e one from 15-4-1980 and the other from 2-4-1982. The seats which fell vacant had been originally filled through two separate biennial elections in respect of which notifications had been issued by the President in 1974 and 1976 under S.12 of the Act. The system of proportional representation by means of single transferable vote is effectively applicable where only one seat is to be filled, and in fact the system of proportional representation by means of a single transferable vote is only a method of election. The said system is applicable to the election of President and Vice-President of India also. It has been denied that the system of proportional representation should be so as to allow each group in the electoral college to elect members to the Council of States in proportion of their strength in the electoral college and it is pleaded that there is no such mandate either in the Constitution or in the Act. It has further been denied that the elections having been held jointly have in any way material effect on the result of the election.

6. On the pleadings of the parties, the following issues were framed :—

1. Whether the election petition is misconceived and not maintainable as alleged in para (1) sub-paras (a) to (c) of the preliminary objection of the written statement?

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2. Whether the election petition does not contain the requisite material facts with particulars with regard to the result of election having been materially affected by alleged non-compliance with the provisions of law? If so, what is its effect?

3. Whether the order dt. 1-11-1983 passed by the Election Commission of India has become final and binding upon the parties and all claims and contentions now raised by the petitioner are barred by the principle of res judicata or principles analogous thereto as alleged in para 7 of the written statement?

4. Whether the allegations made in the Election petition would sustain any claim postulated by the provisions of S.100 of the Representation of the People Act for the reasons mentioned in para 2 of the preliminary objections?

5. Whether this Hon'ble Court has got the jurisdiction to go into the question of the validity or otherwise of the two notifications dt. 1-11-1983 issued by the President of India under S.12 of the Act as alleged in para 3 of the preliminary objections?

6. Whether there is a non-compliance of the provisions of the Constitution and the Representation of the People Act?

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7. If issue No. 6 is proved whether it has materially affected the result of the election so far as it concerns the returned candidates?

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8. Relief.

7. It was agreed by the counsel for the parties that issues only are legal and do not require any evidence. Accordingly the counsel for the parties only addressed arguments and led no evidence.

8. Before dealing with the arguments addressed by the counsel for the parties, it is necessary to notice the settled law as laid down by their Lordships of the Supreme Court in which the Supreme Court has consistently taken the view that elections and election disputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity. The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. The entire law on the subject has been considered in the latest case of Dr. P. Nalla Thampy Thera v. B.L Shanker AIR 1984 SC 135. It will be useful to reproduce para 8 of the said report which is, as under :—

“This Court has consistently taken the view that elections and election disputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity. As early as 1952 when the first election under the Constitution took place, a Constitution Bench of this Court in N.P Ponnuswami v. Returning Officer Namakkal Constituency, 1952 SCR .218 : AIR 1952 SC 64, observed (para 18).

“The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it, while dealing with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C.J speaking for a Constitution Bench of this Court stated in Jagan Nath v. Jaswant Singh & Others, 1954 SCR 892 at p. 895 : AIR 1954 SC 210 at p. 212.

“The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.” In Charan Lal Sahu v. Nandkishore Bhatt (1974) 1 SCR 294 at p. 296 : AIR 1973 SC 2464 at p. 2466 this Court observed :

“The right conferred being a statutory right, the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This Court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or Special law and must be subject to the limitation imposed by it.”

In N.P Ponnuswami's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal and entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. In Jyoti Basu v. Debi Ghosal, (1982) 3 SCR 318 at pp. 326-327 : AIR 1982 SC 983 at p. 986 this Court said :—

“A right to elect fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act-1951, different stages of the process being dealt with by different provisions of the Act.”

That view has been endorsed in Arun Kumar Bose v. Mohd. Furkan Ansari, C.A No. 2618/83 decided on Sept. 28, 1983, reported in AIR 1983 SC 1311, where two of us were parties to the decision.”

9. Now I shall deal with the contentions of the learned counsel, for the parties, advanced before me in the light of the observations of their Lordships of the Supreme Court reproduced above. The agruments, before me, were mainly confined to issues Nos. 6 and 7. Mr. Mridul however, half-heartedly argued issue No. 3 also but did not press the said issue in view of the decision in Mohinder Singh Gill v. Chief Election Commr, New Delhi, AIR 1978 SC 851 wherein it was held :—

“The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as predicated in Art.329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission, or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.”

10. As regards issue No. 6, the contention of Shri Shanti Bhushan, learned counsel, for the petitioner was that when there are two or more regular and not casual vacancies at the time of the issue of the notification, no separate elections would be legally or constitutionally permissible. The basic principle both under the Constitution and the Act of 1951 is that if the regular vacancies are existing at the time when the election is held it should be held together so that the system of proportional representation by means of a single transferable vote can be applied to those elections. In this connection he referred to Encyclopaedia Britannica Vol. VIII page 242 for the true meaning of proportional representation by a single transferable vote. Emphasis was laid on the following passage from the said Encyclopaedia:—

“Proportional representation, electoral device based on the principle that the distribution of seats in a representative assembly should reflect as exactly as possible the distribution of the electors' votes among the competing parties or contending candidates.

To its advocates the case for proportional representation is fundamentally the same as that for representative Government; only if an assembly represents the full “Veracity of opinion within a Nation” can its decision be regarded as the decisions of the Nation itself. Holding an election is like holding census of opinions as to how the nation shall be governed. Most importantly, through the system of proportional representation, minority groups get inadequate or no representation under the plurality or simple majority system of election would be ensured a measure of representation proportionate to their number. The system is also suggested as a means of redressing the possible anomaly rising under majority system of election whereby parties or candidates may get more seats but fewer popular votes than their opponents.

The principle of proportional representation was formulated systematically in the middle of Nineteenth Century by C.C.G. Andrae in Denmark and Thomas Hare and John Stuart Mill in Britain. Since then several methods for applying it have been devised; the best known are the single-transferable-vote method and the “list system.”

All forms of proportional representation necessitate multi-member constituencies. Under the single-transfer-vote method, voters No. the names of candidate on the ballot paper in order of preference; that is, 1. before the first choice, 2. before the second, and so on. The election is based on a quota determined under the so-called Droot formula, named after its deviser, the Belgian H.R Droot. Total number of valid votes cast is divided by the number of seats to be filled plus one, and one is added to the result. Thus for example if the number of seats to be filled is nine and the total votes cast is 2,00,000, the latter figure is divided by ten and one added to the quotient 20,000, giving a quota of 20,001. Any candidate who obtains the quota on the basis of the first preference votes is declared elected. When a quota is exceeded, all the votes of a successful candidate are transferred to the second preferences. Any surplus amongst subsequently successful candidates is similarly transferred and so on, if necessary. If any seats are still vacant the candidate with the least votes is eliminated, and all his ballots transferred to second preferences until all seats are filled by candidates obtaining a quota. In this way, the results reflect accurately preferences on the electors and, therefore, their support both for the individuals and for parties.

Under the “List system” the elector votes for a list of candidate that if normally put up by a party organisation. Each party gets a share of the seats proportionate to its share of the votes. There are various alternative mathematical rules for achieving this. The two principal ones are the largest remainder rule (whereby any seats still remaining after the quota has been filled go to the party with the largest remainder of votes) and the highest average rule (often referred to as the d'Hondt rule from its deviser, the Belgian Victor d'Hondt), whereby the average number of seats required to win one seat is the same for each party. The seats that a party wins are allocated to its candidates in the order in which they are named in its list. The principle of the list system is carried to its logical conclusion when a whole country is used as a constituency, as in the Gabon Republic and Republic of Togo in 1961.

The two systems of proportional representation discussed above, and variations of them were adopted in the Workers Republic in Germany (1919-33) the Fourth Republic in France (1946-58), and in Belgium, Dermark, Norway, Sweden, Greece, Italy, Finland, Ireland, Luxembourg, Switzerland, and the Netherlands. Proportional representation is thought to be superfluous in countries where the two party system operates effectively.

Proportional representation is opposed on grounds of both principle and expediency. Its opponents hold that in an election a nation is making a decision, a choice and that the function of the electoral system is to achieve a consensus rather than a census of opinions. Further to make it possible for small parties to be represented is to encourage the formation of splinter parties, the mutual bargaining of which may lead to weak Government.

electoral vote counting processes 6;530g Sweden election results and purpose 17:852c.”

11. It is true that the system, as explained above, means that it is a system evolved mainly for ensuring that in multi-member constituency even small parties or minority parties which would otherwise not be able to get any member of their own elected in the system of election by majority vote are thereby unable to get some members elected to representative capacity. The number of members that each party or group would be able to elect, would be in proportion to their strength in the college of electors. This was the precise argument advanced by various speakers in the debates of the Constituent Assembly. The question, however, is whether it was accepted by our Constitution makers. The principle of proportional representation by means of a single-transfer-vote is articulated in identical expression in the three Articles, i.e Arts.33, 66 and 80 of the Constitution. Arts.55 and 56 certainly do not relate to multi-member constituencies as only one President and one Vice-President has to be elected but the system still works. It was also not disputed that in case of casual vacancies which have to be filled up in the manner laid down in S.147 of the Act they have not to be filled up by a single bye-election and separate election for each of such vacancies has to take place. In spite of that the election has to be held by the same system i.e by proportional representation by means of single-transferable-vote. The system can, therefore, work even if one vacancy has to be filled.

12. In the present case it was a coincidence that the vacancy which occurred in 1980 could not be filled in immediately because electoral college i.e the Metropolitan Council stood dissolved. If the Metropolitan Council was in existence, the election to fill up that single seat would have been held in 1980 and by the same system and similar would have been the case for the vacancy which occurred in 1982.

13. The system of proportional representation really points to the method of election. What appears to be intended by the system is to give a choice to each elector of as many preferences as there are candidates in the field so that members of electoral college can have free and full choice as against majority system which restricts the choice to one of the contesting candidates.

14. Mr. Shanti Bhushan further contended that if the President or the Election Commission is given free hand to issue one or more notification it may result in abuse of power in as much as the majority party will always be able to arrange the matters in such a way that it gets the maximum seats. There is some force in this contention but it is not open to the Court to usurp the functions of the Legislature. After giving my careful consideration to the provisions of Article 80 of the Constitution and the relevant provisions of the Representation of the People Act including S.12 of the Act, I am unable to find any express or even implied provision which prohibits the holding of two separate elections for two separate vacancies. Neither the language of Art.80 nor any of the provisions of the Act or the Rules framed thereunder require that the filling of two different or separate vacancies should also be done by holding elections jointly and simultaneously. Election being a right created by the statute, there is no scope for deciding upon any other basis which would be called extraneous.

15. Such a situation has probably arisen in this country, for the first time. The only case which has some relevance is Shridhar Mahadev Joshi v. R.P Nathoji (1957) 13 ELR 430. Their Lordships of the Bombay High Court in that case were concerned with filling up of casual vacancies. However, while dealing with the system of proportional representation it was observed :—

“Therefore, as far as possible, a bye-election should be approximate to a general election, and if it is possible to have the system of the proportional representation in a bye-election then looking to Art.80 of the Constitution and also S.147 of the Representation of the People Act we think that the mode of election should be proportional representation. The learned District Judge has taken the view that if there is one vacancy then it is not possible to apply the system of proportional representation. We see no difficulty. If there is one vacancy and there are various contestants there is no reason why the person who gets the larger number of votes amongst the contestant should not be elected, although he may only represent the minority of the constituency. It is possible to use the method of single-transferable-vote even in the case where there is only one vacancy, provided there are candidates contesting the election.”.

16. Mr. Shanti Bhushan, learned counsel, for the petitioner referred to Mewa Ram Arya v. Delhi Administration Civil Writ Petn. No. 1523 of 1983 decided by a Bench of this Court on Dec. 6, 1983 reported in AIR 1984 Delhi 123. In that case under S.36 of the Delhi Development Act three representatives from the Metropolitan Council had to be elected by the members of the Council from amongst themselves to the Delhi Development Authority. S.36(f) of the Act is, as under :—

“S.36(f) As and when the Metropolitan Council for the Union Territory of Delhi is constituted through representatives of that Council to be elected by the Members of the Council from amongst themselves and until that Council is constituted three representatives of the Interim Metropolitan Council to be elected by the Members of the Interim Metropolitan Council from amongst themselves.”

17. The Division Bench of this Court relying on the previous conventions for the said election and giving the meaning to the proportional representation as given in the Encyclopaedia Britannica reproduced above came to the conclusion that the election had to be on that basis so that the minority party may get representation. This decision, in my opinion, is of no help to the learned counsel, for the simple reason that the statute does not provide for the system to be adopted in such an election and the Bench had gone on the basis of previous convention and giving the meaning of proportional representation which is generally known to law and not what has been accepted by our constitution makers. In any case, it was not disputed that the judgment is under appeal before the Supreme Court and the operation of the judgment has been stayed by their Lordships of the Supreme Court. In view of the matter, I do not find any alternative but to decide issue No. 6 against the petitioners and in favour of the respondents.

18. In view of my findings under issue No. 6 issue No. 7 does not arise.

19. For the reasons recorded above, all the three election petitions are hereby dismissed with costs. The costs are quantified at Rs. 1000/- in each petition.

Petitions dismissed.