Order
1. This writ petition is by the Election Commission of India and is brought before this Court under certain extraordinary circumstances. The Commission feels constrained to seek a judicial declaration as to the extent and exclusivity of its jurisdiction, powers and authority in the discharge of its high constitutional functions for the ensurement of the purity of the electoral process in the country which, in the ultimate analyses, constitutes the very foundation and survival of a democratic polity.
2. Issue rule.
3. Issue notices to all the Advocates General of the States which are not, eo nomine, parties to the writ petition.
4. Interlocutory prayers made in this writ petition overlap similar prayers made in the several transfer petitions and special leave petitions preferred by the Election Commission against the various interlocutory orders of the High Courts. We propose to deal with the interlocutory prayers separately in the SLPs and TPs.
SLPs Nos. 12317, 12469 of 1993 and TP No. 754 of 1993
[Arising out of Writ Petition (C) No. 2943 of 1993 in the High Court of Bombay]
5. It may be recalled that the Election Commission, in its General Order dated 2-8-1993, declared:
“Accordingly, till such time as the present deadlock, which is solely the making of the Government of India, is resolved, the Commission does not find itself in a position to carry out its constitutional obligations in the manner envisaged by the makers of the Constitution, and has accordingly decided that all and every elections under its control, including biennial and bye-elections to the Council of States, bye-elections to the State Legislative Councils, bye-elections to the House of the People and bye-elections to the State Legislative Assemblies, as have been announced or notified or are in progress, shall remain postponed until further orders.
Consequential notifications, wherever necessary, in respect of the elections shown in Annexure XIV are being issued separately.”
6. Those consequential directions postponing the polls pursuant to the electoral process earlier initiated till 18-12-1993 have also come to be issued. This postponement affected the poll scheduled to be held on 3-8-1993 for the Pune Local Authorities Constituency to the Maharashtra State Legislative Assembly. One of the candidates, Shri Sharad Pawar, assailed these orders of the Election Commission in Writ Petition (C) No. 2943 of 1993 before the High Court of Bombay. The High Court passed two interlocutory orders in those proceedings — one dated 2-8-1993, and the other dated 3-8-1993. The effect of these orders was that the poll as scheduled earlier for 3-8-1993 be proceeded with and that the counting of votes should also follow. The poll was held. But, the operation of the latter order as to counting has since been stayed by this Court by the order dated 3-8-1993. The result is that while the poll was taken on 3-8-1993, the counting of votes remains stayed.
7. The matters were argued at some length by learned counsel. Shri Harish Salve, learned Senior Counsel appearing for the writ petitioner in the High Court and Shri K.K Venugopal and Shri Vaidyanathan, learned Senior Counsel appearing for petitioners in the matters arising from cases in the Madras High Court urged that the order of the Election Commission dated 2-8-1993 would stultify the democratic process and that the constitutional jurisdiction of the superior courts was to keep governmental authorities within bounds and that the bar of jurisdiction could be urged to circumvent this constitutional duty of the superior courts.
8. While we reiterate the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not to be interfered with by the courts, we must also indicate that there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2-8-1993 is justiciable on that principle of judicial review is eminently arguable. But one thing seems clear : the jurisdiction of courts would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process. On this aspect we have reservations about the permissibility of the various interlocutory orders of the High Courts which may have the effect and implications of compelling the Election Commission to conduct polls on particular dates and also to follow those events up to their sequential and logical ends. But in the light of the submissions made by Shri G. Ramaswamy, it becomes unnecessary to consider these aspects any further at this stage.
9. Shri G. Ramaswamy, learned Senior Counsel for the Election Commission, submitted that the Commission will reconsider the question of continuance of the embargo imposed by its order dated 2-8-1993, and in all likelihood might withdraw that notification. The effect of this rescission is, it is submitted, that all other notifications issued pursuant to the order of 2-8-1993 postponing the polls in individual elections would also come to an end. However, the Election Commission, it was submitted, would reserve to itself its constitutional function to notify such suitable dates for the polling as the circumstances and exigencies obtaining in the respective constituencies may permit. This stand of the Election Commission is proper and reassuring. The fixing of the dates of polling is a matter for the informed judgment of the Election Commission consistent with its perception of the law and order situation and of the ensurement of the requisite precautionary and remedial measures.
10. Writ Petition (C) No. 2943 of 1993 in the Bombay High Court need not, therefore, be proceeded with. Indeed, on an earlier occasion Shri F.S Nariman, learned Senior Counsel appearing for the candidate-petitioner had fairly stated that his client would unconditionally withdraw the writ petition if the Election Commission even indicated its inclination to reconsider its order dated 2-8-1993. We, accordingly, direct that further proceedings in Writ Petition (C) No. 2943 of 1993 be stayed. We also stay the operation of the interlocutory order dated 2-8-1993, passed by the High Court. Transfer Petition No. 754 of 1993, for withdrawal of Writ Petition No. 2943 of 1993 will be considered, if necessary, depending on the decision that the Election Commission might take pursuant to the submissions now made before us.
Transfer Petition (C) No. 757 of 1993
[Arising from CWJC No. 7750 of 1993 in the Patna High Court]
11. Issue notice on the transfer petition and on the interlocutory application for stay.
12. There will be no interlocutory order as we are told that the High Court has reserved judgment after finally hearing the matter. It is open to the Election Commission to make a submission before the High Court as to the need or otherwise of a pronouncement of judgment in this case, in view of the stand made manifest before us.
Special Leave Petitions (C) Nos. 12655-57 of 1993 and Transfer Petition No. 756 of 1993
[Arising out of WPs Nos. 14690 of 1993 to 14692 of 1993 — High Court of Judicature at Madras]
13. These special leave petitions arise out of and are directed against the interlocutory orders made in three Writ Petitions Nos. 14690-92 of 1993, on the file of the High Court of Judicature at Madras moved by the State of Tamil Nadu. They pertain to the postponement of the polling in the “Palani Parliamentary Constituency” and the “Ranipet Assembly Constituency” respectively.
14. One of the controversies pertains to the authority of the Election Commission to direct deployment of security forces to ensure peaceful, free and fair polling.
15. Issue notices on the transfer petition and on the SLPs to the respondents.
16. There will be interim stay of the operation of the interlocutory orders dated 7-8-1993, in the three writ petitions made on 7-8-1993. Further proceedings in the said writ petitions before the High Court shall also remain stayed until further orders of this Court.
Special Leave Petition (C) No. 12481 of 1993 and Transfer Petition (C) No. 755 of 1993 arising out of the order dated 3-8-1993 in CR No. Nil of 1993 (Rajesh Khaitan v. Election Commission of India) and SLP (C) No. 12721 of 1993 and the unnumbered TP of the Election Commission of India against the order dated 5-8-1993 and 6-8-1993 of the Calcutta High Court in Matter No. (State of W.B v. Election Commission of India)
17. These petitions are moved by the Election Commission against the order dated 3-8-1993, made by the High Court of Calcutta in CR No. Nil of 1993 (Rajesh Khaitan v. Election Commission of India) and the orders dated 5-8-1993 and 6-8-1993 made by the High Court of Calcutta in Matter No. Nil of 1993 (State of W.B v. Election Commission of India).
18. Issue notice. There will be an interim stay of operation of the orders dated 3-8-1993, 5-8-1993 and 6-8-1993 made by the High Court in the aforesaid two writ petitions. The further proceedings of the writ petitions in the High Court shall remain stayed until further orders.
Transfer Petition No. [unnumbered].. of 1993 (Arising out of the order dated 7-8-1993 in SCA No. 7881 of 1993 in the High Court of Gujarat
19. By this transfer petition the Election Commission seeks to have SCA No. 7881 of 1993 on the file of the High Court of Gujarat (Madhu Bhai v. T.N Seshan) withdrawn to this Court.
20. We have perused the orders made by the High Court of Gujarat in the writ petition. The High Court, if we may say so with respect, has acted with great restraint and circumspection. It has requested the Election Commission, in view of its high constitutional position, to resolve the matter in a satisfactory manner. There is an equally reassuring response from the Election Commission that it would endeavour to resolve the matter before 13-8-1993 and make an appropriate submission before the High Court.
21. In view of the way the matter is proceeded with by the High Court, there is no justification for interference with the proceedings before the High Court. Parties may make further submissions in this behalf before the High Court. We dismiss the transfer petition.
22. Parties are at liberty to mention.
Court Masters