West Bengal Panchayat Elections Act, 2003 – Panchayat elections – Electoral process – Filing of nominations electronically – As regards, panchayat elections in the State of West Bengal, issuance of directions by the Division Bench of the High Court to accept nominations submitted in the electronic form – Names of those candidates to be published in the list of candidates contesting the panchayat elections – Challenge to – Held: High Court erred in issuing directions for the acceptance of nominations in the electronic form – Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations in the electronic form – Any reform of the electoral process to permit the filing of nominations electronically would have to be carried out by a legislative amendment – Moreover, the election process had already been initiated and the last date for the filing of nominations was over – Also the said directions issued by the High Court contrary to the principle of self-restraint which governs the exercise of the jurisdiction u/Art. 226 once the election process commences as also the direction contrary to the provisions of Art. 243 O – In view thereof, order of the High Court directing the acceptance of nominations in the electronic form set aside – Constitution of India – Arts. 226 and 243-O – Election Laws. Pursuant to the notification issued by the State Government for holding panchayat elections in West Bengal, the election process commenced. The election notification led to various litigations. Before the Division Bench of the High Court, issue arose as regards acceptance of nomination already filed in the electronic form by the State Election Commission. The Division Bench directed the State Election Commission to accept nominations in the electronic form of those candidates who had filed and submitted them electronically to the panchayat returning officers by the specified time. The names of such candidates were directed to be published in the list of candidates contesting the panchayat elections. Hence the present appeal.
Allowing the appeals, the Court
HELD: 1.1 While the Division Bench of the High Court may have been guided by a desire to ensure a free and fair election, the direction to accept nominations in the election form has clearly transgressed the permissible area within which the jurisdiction under Article 226 could have been exercised. The jurisdiction under Article 226 has to be exercised in a manner consistent with law. The Panchayat Elections Act contains detailed provisions in Part VI for the conduct of elections. Chapter VII contains provisions for the nomination of candidates. Sub sections 1 and 2 of Section 46 require that nominations have to be delivered in person by the candidate or through the proposer. Chapter I of Part IV of the West Bengal Panchayat Elections Rules, 2006 contains supplementary provisions inter alia for the nomination of candidates. [Para 16, 17] [113-H; 114-A-B; 115-E]
1.2 The provisions contained in the Panchayat Elections Act and rules constitute a complete code in regard to the conduct of the election, including in the matter of filing of nominations. Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations in the electronic form. Any reform of the electoral process to permit the filing of nominations electronically would have to be carried out by a legislative amendment. The High Court ought not to have issued a mandatory direction of this nature in the face of the specific provisions contained in the Panchayat Elections Act and Rules. Moreover, the election process had already been initiated. The last date for the filing of nominations was over. The directions issued by the High Court are in the teeth of the settled principle of self-restraint which governs the exercise of the jurisdiction under Article 226 once the election process commences. Moreover, such a direction would be contrary to the provisions of Article 243 O of the Constitution. In this view of the matter, the High Court was in error in issuing directions for the acceptance of nominations in the electronic form. [Paras 18, 19] [115-F-H; 116-A-B]
1.3 While issuing notice in these proceedings, this Court directed that the election which was scheduled to take place on 14th May 2018 shall proceed in accordance with law and upon its conclusion, the results would be notified. However, the State Election Commission was directed not to notify the results in respect of constituencies where there was no contest, without the leave of the Court. An affidavit has been filed setting out the data in relation to uncontested seats, on behalf of the State Election Commission. The data placed on the record indicates that out of a total of 58,692 seats combined for Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seats have been uncontested. 3,096 seats out of the 16,860 seats representing 36.1 per cent of the total seats for Gram Panchayats have been uncontested. In the case of the Panchayat Samitis, 33.5 percent of seats were uncontested while 24.6 percent seats for Zilla Parishads were uncontested. [Para 20] [116-B-F]
1.4 Any dispute regarding the election has to be pursued in the manner which is provided in Part VII of the Panchayat Election Act. The Panchayat Elections Act is a complete code in regard to the conduct of the poll and for the resolution of disputes concerning the validity of the election. Article 243K entrusts the superintendence, direction and control over the conduct of all elections to the panchayats in the State Election Commission. The discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. [Paras 25-27] [118-B, F-G; 119-A-B] Boddula Krishnaiah v State Election Commissioner, A.P. (1996) 3 SCC 416 : [1996] 3 SCR 687 ; NP Ponnuswami v Returning Officer, Namakkal Constituency
[1952] SCR 218 ; Lakshmi Charan Sen v AKM Hassan Uzzaman (1985) 4 SCC 689 : [1985] 1 Suppl. SCR
493 – referred to.
1.5 It would be inappropriate for this Court to exercise its jurisdiction to interdict the declaration of results of the uncontested seats. First and foremost, it is necessary for the Court to notice that no specific relief was claimed before the High Court in regard to those seats where there was no contest. Neither were there adequate pleadings nor indeed were specific prayers set up before the High Court when its jurisdiction under Article
226 was invoked. The proceedings before the High Court were brought by several political parties, each of whom would have been well aware of the situation on the ground and the need to formulate an adequate basis in fact to invoke the jurisdiction of the High Court. Absent such a factual foundation, the High Court dealt with the only issue which had been addressed, which was the plea that nominations should be allowed to be filed in the electronic form. No other plea was raised. The second important consideration which must weigh with the Court is that if the above submission is accepted, election results to over 20,000 seats will be set at naught in the absence of the affected parties before the Court. Thirdly, once the election process has commenced, it is trite law that it should not be interdicted mid stage. The electoral process is afforded sanctity in a democracy. That is the reason why in a consistent line of precedent, this Court has insisted upon the discipline of the law being followed so that any challenge to the validity of an election has to be addressed by adopting the remedy of an election petition provided under the governing statute. For this Court to set aside elections to over 20,000 seats would be to prejudge the basic issue as to whether in each of those constituencies, the election stands vitiated by obstruction having been caused to candidates from filing their nominations. A general assumption of this nature cannot be made. Ultimately whether this is correct would depend upon the evidence adduced in the facts of individual cases where such a grievance has been made in an election petition. The Court has been apprised that approximately 1,700 complaints were filed and about 168 election petitions have been instituted. Any challenge to the election must take place in a manner which is known to law. [Para 29] [120-D-H; 121-A-B]
1.6 Under Section 79(1) a period of 30 days is prescribed for instituting an election petition, where a dispute arises as to the validity of an election. The period of 30 days commences after the date of the declaration of the results of the election. The pendency of these proceedings may have dissuaded aggrieved individuals from seeking recourse to the remedy of an election petition, particularly after the interim order of this Court restraining the State Election Commission from notifying the results of the constituencies where there was no contest. While the validity of the elections must be tested in election petitions under Section 79(1), the question as to whether there was a large scale obstruction from filing nominations is a serious matter which needs to be resolved. This is particularly because even the Election Commission, had proceeded to take notice of the grim situation while extending the date for the filing of nominations. Having regard to the seriousness of the allegations and bearing in mind the fact that these proceedings were pending, it would be necessary to exercise the power under Article 142 of the Constitution to extend the period of 30 days for the filing of election petitions in respect of the uncontested seats. [Para 30] [121-C-E]
1.7 The challenges in regard to the validity of the elections to the uncontested seats in the panchayats, panchayat samitis and zilla parishads must also be pursued in election petitions under Section 79(1) of the Panchayat Elections Act. It is left open to any person aggrieved to raise a dispute in the form of an election petition in accordance with the provisions contained in the Panchayat Elections Act. In exercise of the power conferred by Article 142, it is directed that the period of 30 days for filing election petitions in respect of the uncontested seats shall commence from the date of the publication of the results in the Official Gazette. Thus, the judgment and order of the High Court directing the acceptance of nominations in the electronic form is set aside. [Para 31, 32] [121-F-H; 122-A-B]
Mohinder Singh Gill v The Chief Election Commissioner, New Delhi (1998) 1 SCC 405 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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