NIRMAL KUMAR SIKDAR Vs. CHIEF ELECTORAL OFFICER

JUDGEMENT

(1.) These are three applications which have been heard together and will be disposed of by one judgment. They are all directed against the ensuing by-election in the South West Calcutta Parliamentary Constituency, which has been fixed to be held on the 1st May 1960. In the first matter, viz., C. R. 969 of 1960, the petitioner is Nirmal Kumar Sikdar residing at 64 Satyen Roy Road, Behala. He claims to be a voter duly entered in the electoral Rolls of the said constituency. The applicant in the second application, viz., C. R. No. 970 of 1960, is Sm. Angur Poroi, also residing at No. 64 Satyen Roy Road, Behala, she being the sister of the petitioner in the first application. She also claims to be a voter duly entered in the electoral Rolls of said constituency. She is a Hindu lady and states that she is a "pardanashin" woman and it is against her religion to be photographed at all, I shall presently enumerate how the question of being photographed arises. In the third application, viz., C. R. No. 971 of 1960, the petitioner is Sm. Jaibunnessa residing at Bustee No. Q 543 Simpukur Lane, Matiabruz. She also claims to be a voter duly entered in the electoral Rolls of the said constituency. She is a muslim lady and states that she is a "Purdanasin" woman and it is against her religion to be photographed at all. With regard to this petition, I might mention that the original petition was neither signed nor verified by the lady concerned, but this having been pointed out at the hearing, a supplementary affidavit has been filed by her adopting the statement made in the original petition. In the first petition, the petitioner, after stating that he was a citizen of India, and a voter in the said constituency, whose name appears in the electoral roll, mentions that recently a circular and/or order has been issued on behalf of the respondents or any of them whereby the petitioner and/or all other voters were required to be [photographed before they could exercise their right of franchise. The relevant copies of the circular and/or order are annexed to the petition and marked with the letter "A". It is necessary here to mention that there are five respondents in each of, these applications. The first respondent is the Chief Electoral Officer, who has his office at Writers' Buildings Calcutta. The second respondent is "The Union of India" through the Secretary, Election Commission, New Delhi. The third respondent is the Election Commission of India, New Delhi. The fourth respondent is the Deputy Chief Electoral Officer and Deputy Secretary (ex-officio) Government of West Bengal, Home Department (Constitution and Elections, Writers'. Buildings, Calcutta. Annexure "A" to the petition is a letter addressed by the respondent No. 4 to the Secretary, Communist Party of India, West Bengal, enclosing two documents, one purporting to be a notice issued by the Electoral' Registration Officer, Calcutta, without date, and the other being a copy of the press-note issued by the respondent No. 1 dated the 14th March 1960, The first document states that it was notified for information of those voters of the said constituency who could not be contacted during the house-to-house visits by the photographers that a number of centres will remain open from March ,16, to March 31st, 1960 where they could get themselves photographed on production of evidence of identity. There are altogether 14 centres mentioned. The second document is a press note issued by the Chief Electoral Officer dated 14-3-60 which states that in spite of repeated attempts by photographers a considerable number of voters of the said constituency could not be contacted at their place of residence and as such still remain to be photographed. With a view to offering these voters their last chance, arrangements had been made to open centres where, upon production of evidence of identity, their photographs will be taken. It was also pointed out that if they did not get themselves photographed, they would forfeit their right to vote in the bye-election. Then there is an enumeration of the centres, which are altogether 14 in number. These are the documents which are challenged in all these three applications. I shall presently deal with the question as to whether there are at all effective applications, that is to say whether any relief can be granted on the strength oi a challenge thrown against, these two orders only it they can be called orders at all. I shall now come to the grounds made out in these three applications. In the first application, there are three grounds stated, after mentioning Article 326 of the Constitution. The first ground made is that there is no provision in the Constitution and/or Article 326, whereby there could be any restriction on the right to exercise the franchise, when the name of the voter appears in the electoral roll. The second ground is that, from the very nature of the regulations and the action taken thereunder, it was evident that the same was being done with a purpose which is beyond the ambit of the Constitution and/or the Representation of the People Act. The third ground taken is that from the very nature of the facts of the case, it would be evident that the alleged regulation (relating to photography) was impossible of performance. In the second application made by the Hindu lady, as well as in the third application made by the Muslim lady, two identical grounds have been taken. The first is that the right to vote of the petitioners could not be restrained by an act of the respondents, except in terms of Article 326 or the Constitution. Secondly, that, the procedure of being photographed in connection with election was not in force anywhere in India, meaning thereby anywhere else, and that the procedure adopted was ultra vires of the Constitution. On these grounds the petitioners in all these three applications pray that the impending bye-election be stayed, and for an injunction restraining the respondents from taking any steps to complete the same. It is necessary at this stage to recapitulate the legal rights that are claimed and the provisions of law that have been relied upon. The subject of election appears in Part XV of the Constitution, Article 324 creates an Election Commission, which is entrusted with the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislatures of States. Article 825 lays down that there shall be one general electoral roll for every territorial constituency for election to either House of Parliament and no person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, or sex. Article 326 relates to the method of election to the House of the People, and to the Legislative Assemblies of the States, which are to be based on adult suffrage and every citizen of India who is not less than twenty one years of age shall be entitled to vote unless disqualified under the constitution or any law made by the appropriate Legislature, on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice. Article 327 lays down that subject to the provision of the Constitution, Parliament may from time to time, by law, make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Article 329 is very important and creates a constitutional bar to interference by courts in certain election matters. It lays down that notwithstanding anything in the Constitution, the validity of any law relating to the delimitation of constituencies or the allotment of seats, made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court. Consequently, this article is of the greatest importance to us in this case. It lays down that no election to either House of Parliament shall be called in question except by an election petition presented to such authority, and hi such manner, as may be provided for, by or under any law made by the appropriate Legislature. Pursuant to the power given under Article 327, two statutes have been enacted by Parliament, the first of which is the Representation of People Act, 1950 (being Central Act, 43 of 1950). This Act deals with the question of delimitation of constituencies, qualification of voters, preparation of electoral rolls and matters connected therewith. Section 28 of this Act, confers rule making powers upon the Central Government. Sub-Section (3) lays down that all rules made under this Act shall, as soon as may be after they are made, be laid for not less than thirty days before both Houses of Parliament, and shall be subject to such modifications as Parliament may make. Next, we have the Representation of the People Act, 1951 (being Central Act, 43 of 1951). This is an Act which provides for the conduct of elections, inter alia to the Houses of Parliament, qualifications and disqualifications for membership, corrupt practices and other offences, and for adjudication of doubts and disputes arising out of such an election. Section 61 of this Act deals with certain, special procedure laid down for preventing personation of electors. The relevant part thereof runs as follows :

(2.) Rules have been framed in exercise of powers given under Section 28 of Act, 43 of 1950 known as the Representation of the People (Preparation of Electoral Rolls) Rules 1956. The relevant rule is Rule 27-A, the operative part whereof runs as follows ;

(3.) What happened thereafter is as follows: On 8th June, 1959, the Election Commission issued Notification No. 3/91/58 made under Rule 27-A of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956 which was published in an extra-ordinary number of the Calcutta Gazette dated 11-6-59. By this Notification, the Election Commission declared that the provisions of the said rules would apply to certain Assembly Constituencies which correspond to the Calcutta South-West Parliamentary Constituency. This constituency consists of Chowringhee, Alipore, Kalighat, Ekbalpur, Fort, Garden Reach and Behala. On the 17th June, [1959 a press note was issued through the Director of Publicity, West Bengal, informing the general public that photographers would make a house-to-house visit during specified hours, for photographing the voters in the said constituency, commencing from 21-6-1959, Advertisements were issued in the leading newspapers requesting all electors in the said constituency to get themselves photographed for the purpose of obtaining identity cards. This was followed by a radio talk, in which the Chief Electoral Officer, West Bengal, summarised the salient points of the scheme for the benefit Of the intending voters. During the first round of photography, it was found that a substantial number of electors had left their respective premises against which their names and addresses were included in the electoral roll, and a similar number of new people had, come in, whose names were excluded. In view of this position, the Election Commission decided that a special revision under Sec; 21(3) of the Act, 1950 should be undertaken. A press note was accordingly issued on 6-8-1959 informing the electors that the special revision would- begin on 7-8-1959. This was followed by various press notes from time to time. The printing of the revised electoral roll was completed by the end of October, 1959. Thereafter, photography commenced again from 3-11-59. Several press notes were thereafter issued in respect of different part of the constituency, as the work proceeded, upto the middle of January, 1960. From 20th January, 1960 the photographers again went round the constituencies. From the 16th March, 1960 two centres were opened in each of the seven assembly constituencies, for taking photographs of electors who could not be contacted by the photographers at their places of residence. By a press note, those who had not yet taken their photographs were invited to attend various centres and to get themselves photographed for the purpose of obtaining identity cards, which would enable them to vote at the ensuing bye-election. Centres were kept open upto 31st March, 1960 and thereafter the period was extended upto April 10, 1960 and yet another extension upto April 17, 1960 was announced. On the 17th April. 1960 another notice was issued by the Electoral Registration Officer, Calcutta and advertised in all the newspapers of Calcutta, giving further opportunity to the voters to get themselves photographed in the E. R. O.'s office even after the 17th April, 1960. These announcements were publicised widely through the press, publicity vans, radio announcements, posters, cinema slides and leaflets. The exact position to-day has been frankly stated by the learned Advocate General, who upon information said that the total number of voters in the electoral roll in the constituency is three lakhs and forty one thousand, of whom, two lakhs fifteen thousand have been photographed upto date.