Mohinder Singh Gill v. Chief Election Commissioner

Supreme Court of India · 2 December 1977 · 5 judges · 1978 AIR 851; 1978 SCR (3) 272; 1978 SCC (1) 405

The Court held that a writ petition under Article 226 challenging the Election Commission's cancellation of a poll and order for a fresh poll was barred by Article 329(b), leaving every relief to be sought in an election petition.

Facts

Polling for the 13-Ferozepore Parliamentary constituency took place on 16 March 1977. During the final counting at Ferozepore, mob violence disrupted the process; postal ballots and the ballot papers of the Fazilka segment were destroyed, and the returning officer postponed the declaration. The appellant claimed he had won by nearly 2000 votes. On 22 March 1977 the Chief Election Commissioner, acting under Article 324 and Section 153 of the Representation of the People Act, 1951, cancelled the whole poll and later directed a fresh poll in all nine segments. The appellant's writ petition in the Delhi High Court was dismissed as barred by Article 329(b), though the High Court also commented on the merits. The re-poll was held and the third respondent won. The appeal was referred to a five-Judge Bench.

Questions before the Court

Whether Article 329(b) bars a writ petition under Article 226 challenging the cancellation of a poll and the direction for a fresh poll before the result is declared.
Whether the Election Commission can, under Article 324, cancel the whole poll of a constituency and order a re-poll, and within what limits.
Whether the Commission must observe natural justice before ordering a total re-poll, and whether an election court can grant full relief.

What the Court held

Both judgments held that 'election' covers the whole process from the Presidential notification to the declaration of the result. An order cancelling a poll and directing a fresh poll is a step in that process, and a writ petition challenging it calls the election in question and is barred by Article 329(b).
Both judgments held that Article 324 vests a wide power in the Commission, to be exercised in conformity with valid laws made by Parliament or the State Legislature; where such law is silent, Article 324 enables the Commission to act to carry forward a free and fair election.
The aggrieved candidate is not without remedy. On an election petition the election court can examine the validity of the Commission's order, set aside the election and grant all appropriate reliefs, including declaring the petitioner elected if grounds are established. Krishna Iyer, J.'s judgment adds that it may direct a re-poll of particular polling stations or a recount.
The High Court, having held it had no jurisdiction, should not have pronounced on the merits; its observations were not to bind the election court. The appeal was dismissed without costs.
Krishna Iyer, J.'s judgment further held that an order must be judged by the reasons stated in it, not by fresh reasons supplied later by affidavit, and that natural justice applies, in flexible form, to an order for total re-poll. Goswami and Shingal, JJ. expressly left the natural justice question to the election court.

Why it matters

The judgment applies Ponnuswami to hold that Article 329(b) bars writ challenges to steps in the electoral process, including cancellation of a poll and a re-poll, while confirming that the election petition provides a full remedy. It explains the scope and limits of the Election Commission's power under Article 324. Krishna Iyer, J.'s judgment also states that a statutory order cannot be supported by reasons supplied later in an affidavit and that natural justice applies to such orders, though the concurring judgment did not join those views.

In the Court's words

Copied from the official judgment; each passage links to its page.

“1 (a) Art. 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. (b) Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate..”

V.R. Krishna Iyer, J.Page 50 of the judgment

“The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out.”

V.R. Krishna Iyer, J.Page 13 of the judgment

“We find that all the substantial reliefs which the appellants seek in the writ application, including the declaration of the election to be void and the declaration of appellant No. 1 to be duly elected, can be claimed in the election petition. It will be within the power of the High Court. as the election court, to give all appropriate reliefs to do complete justice between the parties.”

P.K. Goswami, J.Page 62 of the judgment

“We conclude stating that the bar of Art. 329(b) is as wide as the door of. s. 100 read with s. 98. The writ petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach.”

V.R. Krishna Iyer, J.Page 51 of the judgment

Provisions interpreted

Article 329(b), Constitution
Article 324, Constitution
Article 226, Constitution
Sections 98, 100 and 153, Representation of the People Act, 1951

Related judgments

Follows N.P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952)“So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding'” (page 25)

Case and bench

Parties: Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi
Case: Civil Appeal No. 1297 of 1977
Decided: 2 December 1977
Bench: V.R. Krishna Iyer, M. Hameedullah Beg (CJ), P.N. Bhagwati, P.K. Goswami, P.N. Shingal
Opinions: Two judgments, both dismissing the appeal. V.R. Krishna Iyer, J. delivered one judgment; P.K. Goswami, J. delivered another for himself and P.N. Shingal, J., agreeing that the writ petition was barred by Article 329(b) but declining to endorse the other judgment's views on audi alteram partem and related questions.

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