Public Interest Litigation seeking postponement of Maharashtra Legislative Assembly elections due to Swine Flu pandemic and drought. Court held that Article 329(b) bars judicial intervention to interrupt imminent elections based on hypothetical grounds.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.176 OF 2009
Shri Moreshwar V. Ghaisas ) Aged 52 years, Occupation: Social Worker ) Residing at Ved Bhavan, survey No.77/1-2 ) Kothrud, Paud Road, Pune-411 038. )..Petitioner.
v/s.
Mr.A.M.Joshi for Petitioner.
Mr. A.I.Patel, AGP for Respondents.
CORAM:- A.M.KHANWILKAR, AND R.G.KETKAR, JJ
DATE :- SEPTEMBER 7, 2009
P.C.(Per A.M.Khanwilkar,J):
direction against the Respondents to postpone the elections to the legislative Assembly of State of Maharashtra on the ground that it may not be possible
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to hold free and fair elections on account of the Pandemic of Swine Flu, which has set in in the entire State of Maharashtra and in particular, city of Pune, which is severely affected.
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held in the State of Maharashtra on 13th October, 2009. The Model Code of Conduct has become applicable in Maharashtra. The apprehension expressed by the Petitioner has not been echoed by any political party in Maharashtra or for that matter any organization of responsible group of citizens in Maharashtra. By now it is well established that the term “Election” is widely interpreted so as to include all steps and proceedings commencing from the date of notification of election till the date of declaration of result. Once the notification is issued by virtue of Article 329(b) of the Constitution of India, the Election can be called in question only by way of election petition and it is not open to the Court to pass order that may have the effect of interrupting, obstructing or protracting the election program in any manner. It is not open to the Court to direct postponement of the Election. For the rule is to ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postponed the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any
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controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination. (See Election Commission of India v/s. Ashok Kumar [(2000) 8 SCC 216]). By
virtue of Article 329(b) there is complete and absolute bar in considering the matter relating to election on any ground whatsoever after publication of the notification for holding such election. It is well settled that if the election is imminent or well under way, the Court should not intervene to stop the election process. The Apex Court in the case of Anurag Narayansing v/s. State of U.P.[1996(6) SCC 303, while considering the scope of jurisdiction to entertain the Writ Petitions challenging the election to Municipal Council has expounded that if holding of elections is allowed to be stalled on the complaint of a few individuals, then grave injustice will be done to crores of other voters, who have a right to elect their representatives to the local bodies. The Apex Court further observed that the Court should not intervene even when the elections were imminent.
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Constitution and the Representation of the Peoples Act, 1951, if read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless two-pronged attack on anything done during the election proceedings is to be avoided- one during the course of the election proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy. It went on to observe that the Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. It is further observed that care has to be taken to see that there is no attempt to utilise the court’s indulgence achieving an ulterior or hidden end.
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no hesitation in taking the view that no interference is warranted on the grounds put forth by the Petitioner in the present Petition. We have no reason to doubt that the Election Commission must have taken an informed Judgment consistent with its perception of its law and order situation and of the ensurement of the requisite precautionary and remedial measures to accomplish free and fair election. According to the Petitioner however, the proportion of Pandemic of Swine Flu is so significant that it is bound to affect the participation of voter population atleast to the extent of 5% to 10% in the ensuing election. This, in our view, is an hypothetical argument. The ground reality which is prevailing as of now does not persuade us to entertain such apprehension. Inasmuch as, notwithstanding the situation projected in Maharashtra on account of swine flu virus, life in the entire State including in the city of Pune is quite normal except the initial knee jerk reactions. As a matter of fact, it is common knowledge that the entire State of Maharashtra celebrated the recent Ganpati Festival for 10 long days with usual fervour and gaiety. There were large congregations in all the cities throughout Maharashtra, including at Pune and Mumbai. Similarly, the congregations in large numbers on account of Ramazan month to offer prayers atleast five times in a day are underway as usual. This clearly belies the apprehension of the Petitioner. Suffice it to
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observe that Court’s intervention on the basis of such apprehension cannot be countenanced.
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the Constitution. He has relied on the observations of the Apex Court that there are no unreviewable discretions under the constitutional authorities dispensation. The Apex Court in the said decision has at the outset mentioned that the Writ Petition was brought by the Election Commission of India before the Apex Court under certain extraordinary circumstances. The Commission invited 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. The Apex Court in paragraph-8 of the same Judgment has unambiguously held that 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. The Petitioner has also pressed into service the decision of the Apex Court in the case of Digvijay Mote v/s. Union of India & Ors.[(1993) 4 Supreme Court Cases 175]. Even in this decision, the Apex Court relying on the observations of N.P.Ponnuswami v. Returning Officer, Namakkal Constituency[AIR 1952 SC 64] and Mohinder Singh Gill v. Chief Election Commissioner[(1978) 1 SCC 405 took the view that the conduct of election
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is in the hands of Election Commission which has the power of superintendence, direction and control of elections vested in it as per Article 324 of the Constitution. It further held that if the Election Commission is of the opinion that having regarding to the disturbed conditions of a State or a part thereof, free and fair elections could not be held it may postpone the same. The Apex Court further went on to observe that the exercise of power under Article 324 is not altogether unreviewable and that the review will depend on the fact and circumstances of each case. However, we have already observed that the grounds on which the Petitioner has invoked the jurisdiction of this Court praying for postponement of the ensuing elections to the Maharashtra Legislative Assembly, the same are founded on mere apprehension that it would affect the free and fair election process. That cannot be countenanced.
A.M.KHANWILKAR, J
R.G.KETKAR,J
3 issues framed by the court
Whether the High Court can intervene to postpone elections due to apprehensions of Swine Flu pandemic.
Whether Article 329(b) bars court intervention in election matters after notification is issued.
Whether mere apprehension of voter population affecting elections justifies judicial interference.
Colour shows how this judgement treated each authority
Election Commission of India v. Ashok KumarExplained¶21
Election Commission of India v/s. Ashok Kumar [(2000) 8 SCC 216] · Who else cites this
Anurag Narayansing v. State of U.P.Explained¶24
Anurag Narayansing v/s. State of U.P.[1996(6) SCC 303] · Who else cites this
Election Commission of India v. Union of India & Ors.Relied on¶34
Election Commission of India V/s. Union of India & Ors. [1995 Supp(3) SCC 643] · Who else cites this
Digvijay Mote v. Union of India & Ors.Relied on¶36
Digvijay Mote v/s. Union of India & Ors.[(1993) 4 Supreme Court Cases 175]
N.P.Ponnuswami v. Returning Officer, Namakkal ConstituencyRelied on¶36
N.P.Ponnuswami v. Returning Officer, Namakkal Constituency[AIR 1952 SC 64] · Who else cites this
Mohinder Singh Gill v. Chief Election CommissionerRelied on¶36
Mohinder Singh Gill v. Chief Election Commissioner[(1978) 1 SCC 405 · Who else cites this
3 provisions across 1 enactments
Shri Moreshwar V. Ghaisas
State of Maharashtra
The Chief Electoral Officer
The Chief Election Commission
A.M.KHANWILKAR
R.G.KETKAR
As recorded by the court registry
Litigation brought on behalf of the public interest rather than a personal grievance, relaxing the usual rule of locus standi.
Judgements on the same questions, provisions and authorities, from every court
