Bar Against Hearing Of Election Disputes By Courts U/A 329 Prevails Over High Court's Powers U/A 226 Of Constitution: Andhra Pradesh High Court

The observation has been made by a Division Bench comprising of Justice Joymalya Bagchi and Justice M. Ganga Rao in a writ petition seeking to countermand the polling conducted in the Tirupati District on April 17, on the ground of fraudulent polling and booth capturing.

Refusing to interfere in the election process, the Bench observed,

"Bar for entertaining an election dispute under Article 226 of the Constitution of India is not a self-imposed restriction like existence of alternate statutory remedy. It is a constitutional bar engrafted under Article 329(b) of the Constitution which is prefaced with a non obstante clause. Hence, Article 329(b) of the Constitution prevails over the powers of the High Court under Article 226 of the Constitution of India."

Article 329(b) states that elections to the Parliament or to the Legislature of any State shall not be called in question before a Court of Law except by an election petition presented to such authority and in such manner as may be provided for in the law.

The Petitioner in this case had argued that the bar under Article 329 (b) of the Constitution of India is not an absolute one and in exceptional cases where the election process has degenerated into a travesty of democracy due to use of high-handed muscle power and inaction of the Election authorities, the Court is not powerless to intervene and issue appropriate directions to activate the authorities concerned and salvage the election process.

Rejecting this argument, the Division Bench held that it would not be prudent for the Court to jump into the fray by presuming superiority of Article 226 of the Constitution over the 'constitutional bar' envisaged under Article 329 (b).

The Bench also took note of provisions of the Representation of People Act, 1951. Section 80 of the said Act provides that no election shall be called in question before the Court except by way of an election petition.

Accordingly, it observed,

"Democracy is a basic feature of the Constitution and elections conducted at regular prescribed intervals is essential to the democratic system envisaged in the Constitution. Superintendence, direction and control of elections are vested in the Election Commission constituted under Article 324 of the Constitution of India. Article 329 of the Constitution of India bars interference by Courts in election matters."

The aforesaid constitutional scheme read with the provisions of the Act of 1951 makes it amply clear that any dispute relating to election would be amenable to adjudication by way of an Election Petition instituted under the provisions of the Act of 1951 and not otherwise."

Reliance was also placed on Mohindar Singh Gill v. The Chief Election Commissioner, New Delhi, where the Supreme Court had held that Article 329 may be described as the "Great Wall of China" which no Court would ordinarily breach.

Significantly, during the course of pendency of the petition, the Election Commission turned down the representation made by the Petitioner for re-polling in the said constituency.

In this backdrop, the Petitioner had argued that the decision of the Election Commission not to go for re-poll is subject to judicial review and such exercise is not hindered by the bar under Article 329 (b) of the Constitution of India.

However, the Division Bench observed that the Petitioner's argument is fallacious inasmuch as the decision of the Election Commission not to hold a re-poll is clearly a part of its "superintendence of the election process" and falls within the expression 'election' under Article 329 of the Constitution of India.

"The decision of the Election Commission not to hold re-poll under Section 58A(2)(b) of the Act of 1951 is a part of the election process as defined under Article 329 (b) of the Constitution and can be assailed only upon the conclusion of the election process in the manner as contemplated by the procedure established by law.

Whether the Election Commission was justified in declining to act on the representations of the writ petitioners, in our considered opinion, would fall within the domain of an election dispute amenable to adjudication in an Election Petition and not otherwise," it was held.

Background

The Petitioner had alleged that a large number of people had been transported into the Tirupati parliamentary constituency and they were utilized to indulge in large scale fake voting at 322 polling booths.

It was contended that these proxy voters had been supplied with fake voter identity cards and when they were confronted by officers of the Election Commission and election agents of the Petitioner, they became afraid and hurriedly left the spot without casting their votes.

The Petitioner further alleged that the administrative machinery of the State acted in a partisan manner and despite lodging of FIRs against members of the ruling party, instead of arresting the fake voters they allowed them to escape from the spot.

The Election Commission on the other hand submitted that all steps were taken to ensure free, fair and impartial election in Tirupathi parliamentary constituency.

It argued that the election process is nearing completion with the publication of results scheduled on May 2 and that the concerns of the Petitioners were duly addressed and upon an objective assessment of all materials on record decision was taken not to hold a re-poll.

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