MORESHWAR V GHAISAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition has been filed as Public Interest Litigation praying for 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 to hold free and fair elections on account of the Pandemic of Swine Flu, which has set in the entire State of Maharashtra and in particular, city of Pune, which is severely affected.

(2.) According to the petitioner, the virus generally known as Swine Flu has spread so extensively that the World Health Organiza tion has officially declared it as a pandemic. Besides the said virus, the State is under severe drought-like situation as vast areas of the State of Maharashtra have received scanty rains during the monsoon period. It is asserted that the impact of Pandemic of Swine Flu is quite severe and there is possibility of its increase and escalation, which may impact substantial number of voter population who are expected to participate in the election process, may render the ensuing election process a mere formality and not a free and fair election as such. According to the petitioner, he has already made representation to the Election Commissioner in this behalf, but has not received any response so far. It is in this backdrop, the petitioner has approached by way of present petition.

(3.) It is not in dispute before us that the Election Commission has already announced that the elections for Maharashtra Legislative Assembly to be 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 controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination. See Election Commission of India Vs. 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 Vs. 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.