R SRIHARI Vs. UNION OF INDIA

JUDGEMENT

(1.) General election for Andhra Pradesh Assembly to be held on 18-9-1999 was notified. On the murder of the Telugu Desam Party candidate on 15-9-1999, election for Sirpur Assembly constituency was postponed. Andhra Pradesh Government issued notification dated 26-11-1999 permitting Telugu Desam Party to nominate its candidate it so advised. Election Commission too, in exercise of its powers under Section 52 the Representation of People Act, 1951 (hereinafter referred to as "the Act of 1951'), asked the Telugu Desam Party to nominate its candidate vide its letter dated 26-11-1999. The dates for filing nomination, scrutiny, withdrawal and holding of election were fixed and notified.

(2.) The petitioner challenged the vires of Section 52 of the Act, of 1951. The notification scheduling the postponed election, and letter of Election Commission was impugned albeit, democracy, within the Constitution, is basic structure. Parts XV and XVI of the Constitution provide for election and its related matters i.e., eligibility conditions to be member of Legislative Assembly by direct election by adult franchise. It is for Parliament to provide eligibility condition to be voter or disqualification for adult franchise. Right to be voter or to be elected to Assembly is a constitutional right. These rights could be limited within the powers conferred by Art. 326 of the Constitution and laws enacted. Parliament could legislate relating to all matters in connection with elections, like electoral rolls, delimitation of constituencies, due constitution of House etc. Prescribing disqualification and restrictions to be registered voters subject to the law made by the Parliament is also the prerogative of the State legislation. Section 52 of the Act of 1951 is alleged to be violative, of Part XV and Art. 326 of the Constitution, of the scheme of the Act of 1951, beyond the Parliament's competence, constitutional right of adult franchise as it denies the right to be elected under the veil of election being regulated. It is contrary to Sections 5, 30 33 and Part II of the Act of 1951. It is discriminatory.

(3.) Respondents demurred it. Election commenced on 21-8-1999, would be complete only upon declaration of the result. It was only postponed on the death of Telugu Desam Party's candidate. The remedy of writ is barred by the Art., 329 of Constitution. Right to elect or to be elected is a statutory right and could be exercised subject to statutory limitations. Constitution merely provides for election based on the adult suffrage, which recognises the right to be registered voter subject to constitutional provisions and the law made by the appropriate Legislature. The Representation of People Act, 1950 (hereinafter referred to as 'Act of 1950') which provides for the number of seats, the delimitation of constituencies, qualification to be registered as the voter and preparation of electoral rolls etc. while the Act of 1951 provides for conduct of elections, disqualifications for a membership, corrupt practices, election related offences and settlement of election disputes in connection with elections. Parliament has unfettered powers to enact laws regarding qualification and disqualification for the members of the Parliament and the State Legislature's right to vote and right to contest. State has a power to similar effect with respect to State Legislature subject to law made by the Parliament and the Constitution. Prior to Ordinance of 1992, which is pari materia with Section 52 of the Act of 1951, death of a candidate used to result in countermanding of election. Election process was to commence de novo. In order to meet changed circumstances resulting in innumerable countermanding of election on account of terrorism, physical violence, candidate of rival political parties being murdered, phenomenal increase in the number of independent candidate, danger of disruption of election process, on the recommendation of the Election Reforms Committee the Ordinance was issued in 1992 which was incorporated in the Act as Section 52. The Supreme Court upheld the vires of Ordinance. In view of the role of the party system in democracy, the right of nobody was negated by the impugned section. Political parties constitute class in themselves. Right to contest and vote has been preserved. It does not provide either qualifications or disqualifications for the candidate or the elector. Providing an opportunity to a recognised political party to nominate its candidate on the death of its candidate in the prescribed form is procedural process, though other requirements for valid nomination have not been tampered with. Union of India averred that right to adult suffrage is not a fundamental right, it is a statutory right, governed by the statute and the Constitution. Powers of the Parliament and the State Legislature to enact laws relating to election are referable to Art. 327 read with the Entry 72 of the Union List of the Seventh Schedule and the Entry 37 of the State List of the Constitution. Power to regulate the adult franchise can be made by Parliament. Impugned provisions confer a right on a political party to nominate its candidate on the death of its candidate. The political party's right to contest cannot be denied for a fault on their part.4 The Counsel for the petitioner formulated question to be answered in verbatim is as under :