FIRST PETITIONER Vs. CHIEF ELECTION COMMISSIONER

JUDGEMENT

(1.) BY order dated 23rd March, 2011, a Bench of this Court took suo motu cognizance of the news item published in the newspaper, namely, The Hindu dated 23rd March, 2011, wherein certain statements made by the Honble Chief Minister of Tamil Nadu alleging excessive restrictions imposed by the Election Commission. The Bench, therefore, formulated certain issues for consideration and directed the Registry to register it as writ petition and again place it before that Bench on 28th March, 2011. Today, as per the direction of the Honble Chief Justice, the matter has been placed before this Bench (presided over by the Chief Justice).

(2.) BEFORE going into the merits of the case, we would like to express our view with regard to the power of the Honble Judges in initiating writ proceeding suo motu. There is no dispute that initiation of writ proceeding suo motu, in public interest, is within the competence of every Honble Judge of this Court, which is the integral part of the constitutional scheme. But, such power is required to be exercised and regulated in accordance with the rules made by the High Court and the norms set keeping in view the administrative instructions issued and roster of sitting prepared by the Chief Justice. While exercising suo motu power of exercising public interest litigation, self-restraint and judicious exercise is expected to be borne in mind. It would be appreciated that as and when any matter of public importance is sought to be brought to the notice of the Court, a reference may be made to the Chief Justice for initiation of action. After such reference is made by any Honble Judge to the Chief Justice for initiation of action, the Chief Justice will examine the matter according to the guidelines formulated by the Supreme Court and after the matter is examined, the same can be placed before the appropriate Bench in accordance with the directive issued in that regard by the Chief Justice for further necessary action. While exercising power of initiating suo motu writ proceeding in public interest, great care and caution should be taken by the Honble Judge, keeping in mind the directions and observations made by the Supreme Court in a catena of decisions. It would not be proper that as and when any news item is published in the newspaper, the Court will take notice of such news item and treat the same as writ petition suo motu in public interest without referring the matter to the Chief Justice.

(3.) THE issue is fully covered by two Constitutional Bench judgments of the Supreme Court, and therefore, the question is no longer res integra. THE first Constitutional Bench judgment is in the case of N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, AIR 1952 SC 64. In that case the nomination paper of a candidate for the Madras Legislative Assembly from Namakkal Constituency was rejected by the Returning Officer after scrutiny. THE said rejection order was challenged by way writ petition under Article 226 of the Constitution. THE High Court dismissed the writ petition on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions contained under Article 329(b) of the Constitution. In the SLP filed by the candidate it was argued that the jurisdiction of the High Court is not affected by Article 329(b) of the Constitution. It was argued that the word election as used in Article 329(b) means what is normally and etymologically means the result of polling for the final selection of the candidate. Hence, the action of the Returning Officer in returning the nomination paper can be questioned before the High Court under Article 226 of the Constitution. Negativing the argument the Constitutional Bench firstly held:- 7. THEse arguments appear at first sight to be quite impressive, but in my opinion there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination is the meaning to be given to the word election in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami,(1928) AIR Mad 253 at 255, the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term election may be taken to embrace the whole procedure whereby an elected member is returned, whether or not it be found necessary to take a poll. With this view, my brother, Mahajan, J. expressed his agreement in Sat Narain v. Hanuman Prasad, (1945) AIR Lah.85; and I also find myself in agreement with it. It seems to me that the word election has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. THE use of the expression conduct of elections in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word election bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. THE subject is dealt with quite concisely in Halsbury Laws of England in the following passage (page 237 of Halsburys Laws of England, 2nd Edn. Vol.12) under the heading Commencement of the Election : Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is reasonably imminent. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. THE election will usually begin at least earlier than the issue of the writ. THE question when the election begins must be carefully distinguished from that as to when the conduct and management of an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case. THE discussion in this passage makes it clear that the word election can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. In paragraph - 18 of the judgement the Constitutional Bench came to the following conclusions:-