PETITIONER:
BHIM SINGH, PRESIDENTJAMMU & KASHMIR PANTHERES PARTY
Vs.
RESPONDENT:
THE ELECTION COMMISSIONER OF INDIA & ANR.
DATE OF JUDGMENT: 04/04/1996
BENCH:
RAMASWAMY, K.
BHARUCHA S.P. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1996 SCC (4) 188 JT 1996 (5) 569
1996 SCALE (3)481
ACT
HEADNOTE
JUDGMENT
ORDER
This is a writ petition for a declaration that Section 30 (d) of the Representation of the People Act, 1951, is unconstitutional and ultra vires Article 14 of the Constitution of India "as it does not specify the maximum period for holding the election after the withdrawal of nomination.....", and for a direction to the Election Commission of India to issue a separate notification under Section 30(d) read with Section 153 of the Act for holding elections in the State of Jammu & Kashmir within 20 days from the date for withdrawal of nominations. The writ petition is filed by one Bhmi Singh, who is the President of a political party recognized by the Election Commission, namely, the Jammu & Kashmir Panthers Party. The writ petition contends that the provisions on section 30(d) confer unhridled, unguided and uncontrolled power upon the Election Commission to hold polls upon any subsequent to the date of withdrawal of nominations and fixes no terminal date in this behalf. It is also the case in the writ petition that prospective candidates in the State of Jammu & Kashmir would have to obtain personal security from the State for a period of one month and 24 days and this would be both difficult and expensive.
Having regard to the obvious urgency, notice was issued on 2nd April, 1996, to the Union of India and the Election Commission to file counter affidavits and the writ petition was posted for hearing on 3rd April, 1996.
On 3rd April, 1996 the Election Commission did not file a counter affidavit but relied upon material on record.
The Union of India filed a counter affidavit affirmed by the joint Secretary in the Ministry of Home Affairs. It states that "the Union of India shares the sentiments and the concern expressed by the petitioner". It states that, contrary to past practice and to the period of 20 to 25 days provided for constituencies outside the State of Jammu & Kashmir in the forthcoming Parliamentary elections, the period for canvassing in the State of Jammu & Kashmir is, according to the schedule laid down by the Election Commission, 25 days. The affidavit states that "owing to the prevailing peculiar situation in the state of Jammu & Kashmir, it is no desirable that the time for canvassing in the State should be more than the necessary minimum statutory period, inter-alia, for the following reasons:-
(a) the candidates would require to
obtain personal security from the
State for comparatively a longer
period of 25 days for the polling
on 30.5.96 and 48 days for the
polling on 23.5.96. This is in
contrast with the rest of the
country where the period ranges
from 21 days to 31 days.
(b) It costs a great deal to the
State in terms of resources and
effort to provide security for such
a long period to the candidates,
their family members, their
election agents, their political
workers etc. In this context it
would be relevant to state there
that there is a threat from various
militant outfits from outside the
country to including attempts at
liquidatire the candidates,
(c)..............................."
The aforementioned affidavit annexes copies of correspondence between the Union of India and the Election Commission. By letter dated 25th March, 1996, the Union of India stated:
"4. As regards the announcement of
Parliamentary Elections in Jammu &
Kashmir States, Commission’s
attention is drawn to various
queries raised by the Ministry of
Home Affairs with the Law Ministry,
as contained in the enclosed note
(Annexure,-I). The Law Ministry
have now advised us that it is
permissible to issue different
Notifications with different dates
for polls under Section further
confirmed that the Election
Commission itself has followed such
practice in the past in the context
of the third General Elections and
also for Elections to the Tenth Lok
Sabha. As stated in the MHA Note,
allowing a long gan between the
date of filing nominations and the
date for the poll is bound to
create grave security threats to
the contesting candidates and is
also likely to deter prospective
candidates from contesting in the
elections.
5. At the time of Home
Secretary’s presentation on the
19th March, the need for staggering
State polling dates in Jammu &
Kashmir State taking into account
the requirement of para military
forces, was discussed at length.
The Commission at that time assured
that in case of such a need
arising, the Commission Could
consider revising the dates of the
poll. This matter account the
availability of security forces,
the time required to mobilize the
forces and other considerations, it
is found absolutely essential to
spread the polling in Jammu &
Kashmir State at least on three
dates as follows :-
Phase-I - Jammu & Polling on 7th
Parlia- May (Day 1) ( As
mentary fixed by EC).
Consti-
tuencies.
Phase-II- Baramulla Polling on Day
Anantnag I + 14 days
Parlia-
mentary
Consitut-
encies.
Phase-III-Srinagar Polling on Day
and II + 7 days
Udhampur
Parliame-
ntary
Constitu-
encies
6. It is, therefore, suggested
that Election Commission may kindly
consider this, and recommend to the
President for the present, to issue
a notification under Section 14 of
the RP Act, 1951 for the Parliament
elections in the rest of the
regards Parliament elections in J&K
State, the Commission may recommend
to the President, later on at an
appropriate time for issuing one or
more Notifications for
Parliamentary Elections in Jammuu &
Kashmir according to the above
Schedule. The dates of the
Notifications could be such that
the minimum period for canvassing
is limited to the prescribed period
of PO days for each constituency."
In its reply dated 25th March, 1996, the Election Commission said ;
"6. Taking all factors into account
the Commission is agreeable to have
the polls for Lok Sabha seats in
Jammu & Kashmir, as proposed by
Government of India, namely,
Phase I 4-Ladakh 7th May, 1996
6-Jammu (Tuesday)
Phase II 1-Baramulla 23rd May, 1996
3-Anantng (Thursday)
Phase-III2-Srinagar 30th May, 1996
5-Udhampur (Thursday)
7. The Commission has considered
and decided that it is not
necessary to make revised
recommendations to the President
for the issue of Notifications
under Section 14 of the
Representation of the People Act,
1951 one for Parliamentary
constituencies in the rest of
Parliamentary constituencies in the
rest of the country and another for
those in J&K, for accommodating the
request of re-scheduling of poll in
the State of J&k. The Commission
under its powers, under Section 153
of the representation of the People
Act, 1951, is competent to issue
and revise the schedule of poll,
without separate Notifications for
the State of J&K. The Commission
shall do so et the appropriate
time.
8.Even while initially programming
the dates of poll in the State of
J&K, the Commission had considered
the extended period of compaigning
that would be entailed but had so
decided taking into account the
improvement in the ground situation
in the State and the assurance of
the Government of India that law is
conducive to the holding of free
and fair elections in the State.
9. In the light of the foregoing
the Commission affirms its
recommendations made to the
President, vide its letter
No.464/96/812 dates 20.3.1996 for
issuing a Notification under
Section 14 of the Representation of
the People Act, 1951 calling upon
all the Parliamentary
constituencies in the country to
elect members in accordance with
the provision of the Representation
of the People Act, 1951 and Rules
made thereunder."
At the hearing yesterday the contentions raised in the writ petition were reiterated on behalf of the writ petitioner. The learned Attorney General, appearing for the Union of India, strongly supported the writ petitioner insofar as he pleaded that the period of canvassing in the State of Jammu & Kashmir should not be as large as 55 days. He offered to place before us the latest intelligence reports to support the plea. Mr. G.L. Sanghi, learned counsel for the Election Commission, submitted that the Election Commission had reached its decision after taking into account all relevant factors, including the need for deployment of security personnel at the time of the elections in the rest of the country and in the State of Jammu & Kashmir. He submitted that if candidates in that State apprehended danger to themselves they could curtail the period during which they canvassed for themselves.
We were not impressed by the arguments faintly pressed in regard to the constitutionality of Section 30(d), for reasons which we shall presently state.
We were very concerned that the Union of India shared the perception of the writ petitioner about the possibility of grave consequences of an election campaign spread over 55 days in the Srinagar and Udhampur constituencies. The danger to candidates, we realised, would commence upon the day they announced their candidature and remain until the polls were held, regardless of how long each of them actually campaigned. Since the gravity of the situation could only be assessed upon the basis of secret intelligence and other reports, it was appropriate, we thought, that the date of the poll be pre-poned. This was something that the Election Commission had itself appeared to visualize when it said in its letter dated 25th March, 1996, that it was competent to revise the date of the polls and would do so at the appropriate time. We thought, therefore, that the matter would be best resolved by fresh discussions between the Union of India and the Election Commission and we directed accordingly, adjourning the matter to the next day, that is, today.
The Attorney General has today read out to us a statement signed on behalf of the Election Commission of India and the Government of India which reads thus:
"Pursuant to the Supreme
Court’s Order dated 03.04.1996 in
Writ Petition No.227 of 1996 (Prof.
Bhim Singh vs. Election Commission
of India & Others), officials of
the Union Government and the
Election Commission met on April 3
and April 4, 1996 and thoroughly
discussed the issue.
There was agreement that the
polls in various constituencies of
J&K should be held announced by on
7th, 23rd and 30th May, 1996, as
already announced by the Election
Commission of India There was also
agreement that it would have period
to around the minimum prescribed
period in such of the
constituencies. The possibilities
on reducing the period were
explored and reviewed. In view of
the fact that notifications under
Section 14 and 30 of the
Representation of the People Act,
1951 have already been issued, it
was felt that under the provisions
of the Act it is not possible at
the present stage to change the
dates for filing of nominations,
scrutiny of nominations and
withdrawal of candidatures.
Therefore, it was agreed that we
should continue with the present
schedule announced vide Election
Commission of India‘s Press Note
dated 25.3.1996."
We are not a little surprised that the Union of India, after its statements in the counter affidavit and the submissions on its behalf at the Bar yesterday, should have agreed as it has done. We must assume that overnight, according to the perception of the Union of India, the security position in the State of Jammu & Kashmir has vastly improved and that the apprehensions that the Union of India had yesterday have been allayed. We must act upon the basis that the Union of India and the Election Commission are fully conscious of ached accordingly, Knowing full well where the blame for serious adverse consequences, if there should be any, will lie.
Having due regard to the ground realities, we must emphasis that functionaries in any manner concerned with directing the conduct supervision and control of free, fair and peaceful elections to the House of the People and the Legislative Assemblies on the States need to adopt a realistic, pragmatic and flexible approach to ensure that the country shall be governed in its true, special, socialist democratic perspective.
In the light of the joint statement of the Election Commission and the Union of India aforequoted our intervention would be undalled for. Article 324 of the Constitution of India vests the conduct of elections to Parliament and to the legislature of every State in the Election Commission. Section 30 of the Act, so far as is relevant, reads thus:
"30. Appointment of dates for
nominations, etc. AS soon as the
notification calling upon a
constituency to elect a member or
members it issued, the Election
Commission shall by notification in
the Official Gazette, appoint-
(a) the last date for making
nominations, which shall be the
seventh day after the date of
publication of the first mentioned
notification or, if that day is a
public holiday, the next succeeding
day which is not a public holiday:
(b) the date for the scrutiny of
nominations, which shall be the day
immediately following the last date
for making nominations or, if that
day is a public holiday, the next
succeeding day which is net a
public holiday:
(c) the date or dates on which a
poll shall if necessary, be taken,
which or the first of which shall
be a date not earlier than the
twentieth day after the last date
for the withdrawal of candidatures;
and
(e) the date before which the
election shall be completed.
xxx xxx xxx
Section 14 states that a general election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution. Sub-section (2) of Section 14 reads thus:
"(2) For the said purpose the
President shall, by one or more
notifications published in the
Gazette of India on such date or
dates as may be recommended by the
Election Commission, call upon all
parliamentary constituencies to
elect members in accordance with
the provision of this Act and of
the rules and orders made
thereunder:
There can be little doubt that the aforesaid provisions read together require close consultation between the Union of India and the Election Commission in the matter of fixing the election programme. It is clearly both impossible and undesirable that any outer limit should be placed in Section 30(d) for the date of the poll. The fixation of the date of the poll would depend upon a variety of circumstances, all of which have to be taken into account by the Election Commission acting in consultation with the Government of India, which would have the necessary material in this behalf. We do not, therefore, find Section 30 (d) arbitrary or unconstitutional.
The writ petition is disposed of accordingly.
There shall be no order as to costs.