BENGAL STATE ELECTION COMMISSION AND ORS. versus COMMUNIST PARTY OF INDIA (MARXIST) AND ORS. on 24 August 2018

[2018] 10 S.C.R.

AWEST BENGAL STATE ELECTION COMMISSION AND ORS.

v.

COMMUNIST PARTY OF INDIA (MARXIST) AND ORS.

(Civil Appeal No. 8515 of 2018)

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AUGUST 24, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

West Bengal Panchayat Elections Act, 2003 – Panchayatelections – Electoral process – Filing of nominations electronicallyC– As regards, panchayat elections in the State of West Bengal,issuance of directions by the Division Bench of the High Court toaccept nominations submitted in the electronic form – Names ofthose candidates to be published in the list of candidates contestingthe panchayat elections – Challenge to – Held: High Court erred inDissuing directions for the acceptance of nominations in the electronicform – Neither the Panchayat Elections Act nor the Rules contemplatethe filing of nominations in the electronic form – Any reform of theelectoral process to permit the filing of nominations electronicallywould have to be carried out by a legislative amendment – Moreover,the election process had already been initiated and the last date forEthe filing of nominations was over – Also the said directions issuedby the High Court contrary to the principle of self-restraint whichgoverns the exercise of the jurisdiction u/Art. 226 once the electionprocess commences as also the direction contrary to the provisionsof Art. 243 O – In view thereof, order of the High Court directingFthe 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 Governmentfor holding panchayat elections in West Bengal, the electionprocess commenced. The election notification led to variousGlitigations. Before the Division Bench of the High Court, issuearose as regards acceptance of nomination already filed in theelectronic form by the State Election Commission. The DivisionBench directed the State Election Commission to acceptnominations in the electronic form of those candidates who hadfiled and submitted them electronically to the panchayat returningH

WEST BENGAL STATE ELECTION COMMISSION v. COMMUNISTPARTY OF INDIA (MARXIST)

officers by the specified time. The names of such candidates weredirected to be published in the list of candidates contesting thepanchayat elections. Hence the present appeal.

Allowing the appeals, the Court

HELD: 1.1 While the Division Bench of the High Courtmay have been guided by a desire to ensure a free and fair election,the direction to accept nominations in the election form has clearlytransgressed the permissible area within which the jurisdictionunder Article 226 could have been exercised. The jurisdictionunder Article 226 has to be exercised in a manner consistentwith law. The Panchayat Elections Act contains detailed provisionsin Part VI for the conduct of elections. Chapter VII containsprovisions for the nomination of candidates. Sub sections 1 and 2of Section 46 require that nominations have to be delivered inperson by the candidate or through the proposer. Chapter I ofPart IV of the West Bengal Panchayat Elections Rules, 2006contains supplementary provisions inter alia for the nominationof candidates. [Para 16, 17] [113-H; 114-A-B; 115-E]

1.2 The provisions contained in the Panchayat ElectionsAct and rules constitute a complete code in regard to the conductof the election, including in the matter of filing of nominations.Neither the Panchayat Elections Act nor the Rules contemplatethe filing of nominations in the electronic form. Any reform of theelectoral process to permit the filing of nominations electronicallywould have to be carried out by a legislative amendment. TheHigh Court ought not to have issued a mandatory direction ofthis nature in the face of the specific provisions contained in thePanchayat Elections Act and Rules. Moreover, the electionprocess had already been initiated. The last date for the filing ofnominations was over. The directions issued by the High Courtare in the teeth of the settled principle of self-restraint whichgoverns the exercise of the jurisdiction under Article 226 oncethe election process commences. Moreover, such a directionwould be contrary to the provisions of Article 243 O of theConstitution. In this view of the matter, the High Court was inerror in issuing directions for the acceptance of nominations inthe electronic form. [Paras 18, 19] [115-F-H; 116-A-B]

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A1.3 While issuing notice in these proceedings, this Courtdirected that the election which was scheduled to take place on14[th] May 2018 shall proceed in accordance with law and upon itsconclusion, the results would be notified. However, the StateElection Commission was directed not to notify the results inrespect of constituencies where there was no contest, withoutBthe leave of the Court. An affidavit has been filed setting out thedata in relation to uncontested seats, on behalf of the State ElectionCommission. The data placed on the record indicates that out ofa total of 58,692 seats combined for Gram Panchayats, PanchayatSamiti and Zila Parishads, 20,159 seats have been uncontested.C3,096 seats out of the 16,860 seats representing 36.1 per cent ofthe total seats for Gram Panchayats have been uncontested. Inthe case of the Panchayat Samitis, 33.5 percent of seats wereuncontested while 24.6 percent seats for Zilla Parishads wereuncontested. [Para 20] [116-B-F]

D1.4 Any dispute regarding the election has to be pursuedin the manner which is provided in Part VII of the PanchayatElection Act. The Panchayat Elections Act is a complete code inregard to the conduct of the poll and for the resolution of disputesconcerning the validity of the election. Article 243K entrusts thesuperintendence, direction and control over the conduct of allEelections to the panchayats in the State Election Commission.The discipline which is mandated by the provisions of theConstitution and enforced by the enabling state law on the subjectmust be maintained. Any dispute in regard to the validity of theelection has to be espoused by adopting a remedy which is knownFto law namely through an election petition. It is at the trial of anelection petition that factual disputes can be resolved on the basisof 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 PonnuswamiGv Returning Officer, Namakkal Constituency[1952] SCR 218 ; Lakshmi Charan Sen v AKM HassanUzzaman (1985) 4 SCC 689 : [1985] 1 Suppl. SCR493 – referred to.

WEST BENGAL STATE ELECTION COMMISSION v. COMMUNISTPARTY OF INDIA (MARXIST)

1.5 It would be inappropriate for this Court to exercise itsjurisdiction to interdict the declaration of results of theuncontested seats. First and foremost, it is necessary for the Courtto notice that no specific relief was claimed before the High Courtin regard to those seats where there was no contest. Neitherwere there adequate pleadings nor indeed were specific prayersset up before the High Court when its jurisdiction under Article226 was invoked. The proceedings before the High Court werebrought by several political parties, each of whom would havebeen well aware of the situation on the ground and the need toformulate an adequate basis in fact to invoke the jurisdiction ofthe High Court. Absent such a factual foundation, the High Courtdealt with the only issue which had been addressed, which wasthe plea that nominations should be allowed to be filed in theelectronic form. No other plea was raised. The second importantconsideration which must weigh with the Court is that if the abovesubmission is accepted, election results to over 20,000 seats willbe set at naught in the absence of the affected parties before theCourt. Thirdly, once the election process has commenced, it istrite law that it should not be interdicted mid stage. The electoralprocess is afforded sanctity in a democracy. That is the reasonwhy in a consistent line of precedent, this Court has insisted uponthe discipline of the law being followed so that any challenge tothe validity of an election has to be addressed by adopting theremedy of an election petition provided under the governingstatute. For this Court to set aside elections to over 20,000 seatswould be to prejudge the basic issue as to whether in each ofthose constituencies, the election stands vitiated by obstructionhaving been caused to candidates from filing their nominations.A general assumption of this nature cannot be made. Ultimatelywhether this is correct would depend upon the evidence adducedin the facts of individual cases where such a grievance has beenmade in an election petition. The Court has been apprised thatapproximately 1,700 complaints were filed and about 168 electionpetitions have been instituted. Any challenge to the election musttake 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 prescribedfor instituting an election petition, where a dispute arises as to

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Athe validity of an election. The period of 30 days commencesafter the date of the declaration of the results of the election.The pendency of these proceedings may have dissuadedaggrieved individuals from seeking recourse to the remedy of anelection petition, particularly after the interim order of this Courtrestraining the State Election Commission from notifying theBresults of the constituencies where there was no contest. Whilethe validity of the elections must be tested in election petitionsunder Section 79(1), the question as to whether there was a largescale obstruction from filing nominations is a serious matter whichneeds to be resolved. This is particularly because even theCElection Commission, had proceeded to take notice of the grimsituation while extending the date for the filing of nominations.Having regard to the seriousness of the allegations and bearingin mind the fact that these proceedings were pending, it wouldbe necessary to exercise the power under Article 142 of theConstitution to extend the period of 30 days for the filing ofDelection petitions in respect of the uncontested seats.[Para 30] [121-C-E]

1.7 The challenges in regard to the validity of the electionsto the uncontested seats in the panchayats, panchayat samitisand zilla parishads must also be pursued in election petitionsEunder Section 79(1) of the Panchayat Elections Act. It is left opento any person aggrieved to raise a dispute in the form of anelection petition in accordance with the provisions contained inthe Panchayat Elections Act. In exercise of the power conferredby Article 142, it is directed that the period of 30 days for filingFelection petitions in respect of the uncontested seats shallcommence from the date of the publication of the results in theOfficial Gazette. Thus, the judgment and order of the High Courtdirecting the acceptance of nominations in the electronic form isset aside. [Para 31, 32] [121-F-H; 122-A-B]

GMohinder Singh Gill v The Chief Election Commissioner,New Delhi (1998) 1 SCC 405 – referred to.

Case Law Reference

WEST BENGAL STATE ELECTION COMMISSION v. COMMUNISTPARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8515of 2018.

From the Judgment and Order dated 08.05.2018 of the High Courtat Calcutta in MAT No. 371 of 2018

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Civil Appeal No. 8516 of 2018.

Amarendar Sharan, Shyam Divan, Bikas Ranjan Bhattacharya,P.S. Patwalia, Vikas Singh, Sidharth Luthra, Kalyan Bandopadhyay,Sanjay Singhvi, Sr. Advs., Kunal Chatterji, Subhasish Bhowmick, ShamimAhmed, Ms.Divya Sejwar, A.K.Mishra, Ms. Aishwarya Bhati, KabirBose, Ms. Natasha Dalmia, Ms.Sukanya Bose, Nachiketa Joshi, UjjavalKumar, Suhaan Mukerji, Ms.Astha Sharma, Harsh Gursahani,Abhishek M., Ms. Kajal Dalal (for M/s PLR Chambers and Co.),Chanchal Kr. Ganguli, Ms. Aparna Bhat, Santi Ranjan Das, AnindoMukherjee, Ms. Sarla Chandra, Bijan Kumar Ghosh, Advs. for theappearing parties.

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Ms. Maitrayee Banerjee, Petitioner-in-person.

The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J. 1. Leavegranted.

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2. After the process commenced in the State of West Bengal forelections to the panchayats, a Division Bench of the Calcutta High Courtissued directions on 8 May 2018 to the State Election Commission toaccept nominations submitted in the electronic form. The names of thosecandidates were directed to be published in the list of candidatesGcontesting the panchayat elections of 2018. In issuing these directions,the High Court was conscious of the fact that the provisions of theInformation Technology Act 2000 did not apply to the West Bengal State H

AElection Commission, which is a constitutional authority. Nonetheless,the High Court held that the provisions of the Information TechnologyAct 2000 shall be deemed to be read into the provisions of the WestBengal Elections Act 2003. Holding that such a construction would furtherthe democratic process and facilitate a fair and free election, the HighCourt issued directions for the acceptance of nominations in the electronicBform. The judgment of the High Court has been challenged in theseproceedings by the West Bengal State Election Commission.3. Notice was issued by this Court on 10 May 2018 and thefollowing interim directions were issued:C“(i) There shall be a stay of the impugned judgment and oderdated 8.5.2018 passed by the Division Bench of the High Cout;

(ii) The Panchayat election scheduled to be held on 14.5.2018,shall proceed as per law;

(iii) The petitioners i.e. the West Bengal State Election CommissionDand its functionaries shall see to it that the election which isscheduled for 14.5.2018 is held in absolute fairness, keeping inview the concept of purity of an election in a democracy;

(iv) The election process in respect of the constituencies shall becompleted in all aspects and the results of the election can beEnotified as per law; and

(v) The petitioners shall not notify the result in respect of theconstituencies where there has been no contest, without the leaveof this Court.”

4. Arrayed as respondents to these proceedings are the CommunistFParty of India (Marxist), the State of West Bengal through the Secretary,Department of Home, the Secretary in the Department of Panchayatand Rural Development, the All India Trinamool Congress, Ananda BazarPatrika, Times of India and the Bharatiya Janata Party, West Bengalthrough its Vice President. We have heard learned counsel for the parties.GWe have also heard a large number of intervenors in these proceedings.

5. A reference to the salient events will facilitate an understandingof the controversy. On 31 March 2018, the State government issued anotification for holding panchayat elections in West Bengal on 1,3 and 5May 2018. The State Election Commission announced a schedule for H

the ensuing panchayat elections, exercising power under Sections 42and 43 of the West Bengal Panchayat Elections Act 2003 (“PanchayatElections Act”). The first notification issued by the State ElectionCommission in respect of twelve districts stipulated the election schedulefor gram panchayats, panchayat samitis and zilla parishads governed bythe West Bengal Panchayat Act 1973. The last date for makingnominations was 9 April 2018; scrutiny of nominations was to take placeon 11 April 2018; the last date for withdrawal of candidatures was 16April 2018; and the poll, if necessary, was to be concluded on 1 May2018. By two other notifications also of 2 April 2018, the election schedulewas announced respectively for two districts and six districts. The electionprogramme was the same, save and except for the dates of polling whichwere 3 and 5 May 2018.

6. On 6 April 2018, a public interest litigation was moved beforethe Calcutta High Court by a person - Adhir Ranjan Chowdhury of theIndian National Congress for challenging the election notification.Simultaneously a writ petition[1] under Article 32 of the Constitution wasinstituted before this Court by the Bharatiya Janta Party (BJP) in whichinter alia there was a specific prayer (extracted below) for a directionto accept nomination papers through e-mail:

“b. issue an appropriate writ, order or direction in the nature ofmandamus directing the Respondent No 6 to take immediate stepsto make arrangements for submission of nomination papers forthe West Bengal State Panchayat Elections 2018 through email:”

The writ petition was disposed by a two Judge bench of this Courton 9 April 2018. A grievance was made before this Court, based onnewspaper reports, that candidates who wished to contest the panchayatelections were not being allowed to collect and submit their nominationforms as a result of the violent actions of the supporters of the rulingparty in the State. This submission was recorded by the Court:

“Relying upon the newspaper reports which appeared in the Timesof India, Kolkata edition dated 03.04.2018 and 04.04.2018, theStatesman, Kolkata edition dated 04.04.2018 and the Telegraphe-paper preview, the learned senior counsels for the petitionersubmitted that the petitioner’s candidates who want to contestelection for the panchayat which is to be held in the State of West A

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ABengal are not allowed to collect the nominations forms and tosubmit the same on account of violent resistance being put by thesupporters of the ruling party.”

This Court declined to interfere, since the election process hadcommenced and relied on the judgment in Boddula Krishnaiah v StateBElection Commissioner, A.P.[2]. The Court however took notice ofthe grievance that candidates had been prevented from submitting theirnominations:

“However, the fact remains that according to the newspaper reportsfiled along with writ petition which has been referred to by theClearned senior counsel for the petitioner incidence of violence hastaken place when the candidates have gone to obtain and filetheir nomination papers. This also stands fortified with thenotification dated 05.04.2018 issued by the West Bengal StateElection Commission where the State Election Commission hadprovided additional venue for filing the nomination papers.”D

This grievance, in the view of the Court, was for the State ElectionCommission to consider at the behest of any political party or a candidatewho desired to contest the election. Liberty was accordingly granted tothem to approach the State Election Commissioner who was directed toensure the disposal of the grievances in accordance with law, forthwith.EThis Court expressed the hope that in order to ensure free and fairelections to the panchayats, the State Election Commission shall takeappropriate steps to remove the apprehensions of intending candidates.The petitions were accordingly disposed of.

7. The State Election Commission issued directions on 9 AprilF2018, in exercise of its power under Section 46(2) of the PanchayatElections Act, extending the last date for submitting nominations by oneday, that is until 10 April 2018. In issuing this direction, the State ElectionCommission indicated the following reasons:

“Whereas, information has been received through complaints,Gdeputation etc. that intending candidates and proposers are beingobstructed or prevented from making nomination; and Whereas, many intending candidates could not file their nomination papers due to the above disruption; and Whereas, along with complaints made by the Political Parties somenomination papers that they allegedly could not submit before thePanchayat Returning Officers, have been annexed.”

8. The order of the State Election Commission extending the periodfor filing of nominations was recalled immediately on the next day – 10April 2018. The BJP filed a writ petition[3] before the Calcutta HighCourt inter alia seeking directions for the acceptance of nominationsand police assistance. By a supplementary affidavit, the validity of theorder dated 10 April 2018 was questioned. The Calcutta High Courtissued an interim direction suspending the operation of the notification ofthe State Election Commission dated 10 April 2018. On 11 April 2018this Court was also moved in a Miscellaneous Application by the BJP.This Court granted liberty to move the Calcutta High Court whereproceedings were pending. On 12 April 2018, the High Court directedthe State Election Commission that before proceeding further with theelectoral exercise, it shall inform the Court on affidavit of the steps takenin terms of its direction of 10 April 2018 and the order of this Court dated9 April 2018. An intra-court appeal against the order was dismissed on16 April 2018, though with a request to the learned Single Judge to disposeof the pending proceedings.

9. The learned single Judge of the High Court delivered judgmenton 20 April 2018 in which the following directions were issued:

“I) The order cancelling the extension of the day/date for filingnominations as issued by the Commission dated 10[th] April, 2018stands quashed;

II) The Commission is directed, upon consultation with the Stateand the major collective stake holders, to issue a fresh Notificationextending the day/date for filing nominations;

III) The Commission shall then reschedule the further dates inthe election process as per statutory framework;

IV) The Commission shall then carry forward the electoral processfrom the extended day/date of filing nominations as directed by(II)above; A

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AV) The cost of Rs.5,00,000/- (Rupees five lakhs only) as directedto be deposited by the petitioners in AST 9 of 2018 by order of12[th] April, 2018 and, so deposited shall be forwarded by the learnedRegistrar General, High Court at Calcutta to the account of theCommission towards part of its secretariat costs.”

B10. On 21 April 2018, the State Election Commission issued anotification extending the date for the filing of nominations to 23 April2018; fixed 25 April 2018 as the date for scrutiny and 28 April 2018 asthe last date for the withdrawal of candidature. On 23 April 2018, theHigh Court, upon being moved by some of the intending candidates,directed the State Election Commission to ensure the acceptance ofCnomination forms. Three writ petitions were moved before the HighCourt. By a judgment dated 24 April 2018, the learned Single Judgedeclined to interfere with the election process observing that:

“This Court cannot be further unmindful of the fact that the orderof 20[th] April, 2018 has been accepted and acted upon. TheDparticipation of the major stake holders, including the INC, asreflected from the documents filed by the Commission in Courttoday, disclose that each of their views have been noticed prior tothe Commission exercising its prerogative in consultation with theState Government to re-extend the nomination date.

EIn view of the above movement of events this Court does not findthe argument of Mr Ghosal to the effect that the Commissionacted in hot haste to be acceptable.

Accordingly, this Court does not intend to interrupt the electoralexercise further and does not intervene by passing any directionFin this petition.”

Writ Petition 4887 (W) of 2018 filed by the BJP and Writ Petition4886 (W) of 2018 filed by the Party for Democratic Socialism were alsodisposed of.

11. On 25 April 2018, the CPI (M) moved a writ petition[4] underGArticle 226 seeking inter alia, directions for (i) setting aside the entireelection process; (ii) removal of the State Election Commissioner; (iii)permission to file nominations in the electronic form; (iv) deployment ofsecurity personnel other than those under the control of the state 4AST 11 of 2018H

government; (v) appointment of special officers responsible to the Court;and (vi) recording video footage of the entire process. During the courseof the hearing before the learned Single Judge on 25 April 2018, the onlyrelief which was pressed on behalf of CPI (M) was that the State ElectionCommission must accept nominations already filed, in the electronic form.The learned Single Judge of the High Court declined to entertain thewrit petition.

12. On 26 April 2018, polling dates were announced for 14 May2018 by the State Election Commission. On 1 May 2018, fresh writpetitions were moved before the learned Single Judge of the CalcuttaHigh Court. The High Court declined to issue any further directionshaving regard to its earlier orders. The CPI (M) filed an appeal beforethe Division Bench against the orders of the learned Single Judge. TheDivision Bench, while disposing of the appeal, directed the State ElectionCommission to accept nominations in the electronic form of thosecandidates who had filed and submitted them electronically to thepanchayat returning officers by 3.00pm on 23 April 2018. The names ofsuch candidates were directed to be published in the list of candidatescontesting the Panchayat elections of 2018.

13. Appearing on behalf of the State Election Commission,Mr Amarendra Sharan, learned senior counsel submitted that (i) thedirections issued by the High Court, after the last date of nominationsand scrutiny, to accept nominations submitted electronically is contraryto the clear mandate of Section 46(1) of the Panchayat Elections Act;(ii) though this relief had been specifically sought in proceedings underArticle 32 before this Court in Writ Petition (C) 302 of 2018, it had beendeclined; (iii) the directions issued by the High Court are contrary to themandate of Article 243 K of the Constitution since the provisionscontained in the Panchayat Elections Act constitute a complete coderegarding the filing of nominations; (iv) the High Court was manifestly inerror in holding that the Information Technology Act 2000 shall be deemedto be a part of the Panchayat Elections Act 2003.

14. On the other hand, it has been urged on behalf of the firstrespondent that the High Court had been constrained to issue a directionfor the acceptance of nominations in the electronic form after sufficientmaterial was placed before it indicating that candidates had beenprevented from filing their nominations. It was urged that as a result of A

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Athe violent activities of the supporters of the ruling party in the state, asituation had arisen where it was not possible to file nominations personallyand hence the directions which were issued by the High Court sub-serve the cause of a free and fair election.

Section 6 of the Information Technology Act 2000 provides asBfollows:

“6. Use of electronic records and [electronic signatures] inGovernment and its agencies. - (1) Where any law providesfor- (a) the filing of any form, application or any other document withCany office, authority, body or agency owned or controlled by theappropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approvalby whatever name called in a particular manner; D(c) the receipt or payment of money in a particular manner, then,notwithstanding anything contained in any other law for the timebeing in force, such requirement shall be deemed to have beensatisfied if such filing, issue, grant, receipt or payment, as thecase may be, is effected by means of such electronic form asmay be prescribed by the appropriate Government.

E(2) The appropriate Government may, for the purpose of sub-section (1), by rules, prescribe - (a) the manner and format in which such electronic records shallbe filed, created or issued; (b) the manner or method of payment of any fee or charges forfiling, creation or issue any electronic record under clause (a).”

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Article 243K provides thus:

243K. (1) The superintendence, direction and control of thepreparation of electoral rolls for, and the conduct of, all electionsGto the Panchayats shall be vested in a State Election Commissionconsisting of a State Election Commissioner to be appointed bythe Governor.

(2) Subject to the provisions of any law made by the Legislatureof a State, the conditions of service and tenure of office of the H

State Election Commissioner shall be such as the Governor mayby rule determine:

Provided that the State Election Commissioner shall not be removedfrom his office except in like manner and on the like grounds as aJudge of a High Court and the conditions of service of the StateElection Commissioner shall not be varied to his disadvantageafter his appointment.

(3) The Governor of a State shall, when so requested by the StateElection Commission, make available to the State ElectionCommission such staff as may be necessary for the discharge ofthe functions conferred on the State Election Commission by clause(1).

(4) Subject to the provisions of this Constitution, the Legislatureof a State may, by law, make provision with respect to all mattersrelating to, or in connection with, elections to the Panchayats.”

15. The State Election Commission has been constituted pursuantto Article 243 K. It is entrusted inter alia with superintendence, directionand control over the electoral process. The State Election Commissionhas been established pursuant to the above constitutional dispensationunder the provisions of Section 3 of the West Bengal State ElectionCommission Act 1994. The High Court was cognizant of the fact thatthe State Election Commission does not fall within the ambit of Section6(1)(a) of the IT Act 2000. Indeed, the High Court noticed this positionin its following observations:

“The State Election Commission has been constituted underSection 3 of the West Bengal State Election Commission Act,1994 (hereinafter referred to as the Act of 1994) with Constitutionalsanction. It therefore does not strictly come within the ambit ofSection 6(1)(a) of 2000 to be a body or agency owned or controlledby the appropriate Government. Similarly, the State Governmentis not called upon to make rules in terms of section 90 of the Actof 2000 in respect of filing of nomination forms through e-mail.”

16. Despite having noticed the above position in law, in our viewcorrectly, the High Court proceeded to issue a mandamus directing theState Election Commission to accept nominations in the electronic form.While the Division Bench of the High Court may have been guided by a A

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Adesire to ensure a free and fair election, the direction to acceptnominations in the election form has clearly transgressed the permissiblearea within which the jurisdiction under Article 226 could have beenexercised. The jurisdiction under Article 226 has to be exercised in amanner consistent with law. The Panchayat Elections Act containsdetailed provisions in Part VI for the conduct of elections. Chapter VIIBcontains provisions for the nomination of candidates. Sub sections 1 and2 of Section 46 require that nominations have to be delivered in personby the candidate or through the proposer:

“46. (1) On or before the date appointed under clause (a) of section43 each candidate shall, either in person or by his proposer,Cbetween the hours as may be prescribed, deliver, to the PanchayatReturning Officer at the place specified in this behalf in the noticeissued under section 44, a nomination paper completed in theprescribed form and signed by the candidate and by a voter of theconstituency as proposer:

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Provided that no nomination paper shall be delivered to thePanchayat Returning Officer on a day which is a public holiday.

(2) Without prejudice to the generality of the provisions containedin sub-section (1), if the Commission, on receipt of complaintsfrom the intending candidates or the recognize/ed political parties,either from or through the District Panchayat Election Officer orits own machinery or any other agency, is satisfied that there isreasonable apprehension of prevention of, or obstruction to, theintending candidates from making nominations at the place orbefore the authority for the Gram Panchayat and Panchayat Samiticonstituencies specified in the notice under section 44, theCommission may, by order, issue a direction to the PanchayatReturning Officer appointed for any Block, to depute one AssistantPanchayat Returning Officer at the office of the Sub-DivisionalOfficer having jurisdiction, for receiving nomination papers withinthe specified date and hour from the intending candidates for oneor more Gram Panchayat or Panchayat Samiti constituencies, asthe case may be:

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Provided that the Commission may also, by the said order, extendthe last date for making nomination for one day and also direct WEST BENGAL STATE ELECTION COMMISSION v. COMMUNISTPARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

that all the nomination papers received under sub-sections (1)and (2) for any Gram Panchayat or Panchayat Samiti constituency,as the case may be, shall be taken up by the Panchayat ReturningOfficer for scrutiny of all such nomination papers, at one sitting,one after another, in terms of the notice under section 44:

Provided further that on receipt of such order of the Commission,the Panchayat Returning Officer shall arrange to display a noticeaccordingly in his office and in the office of the subdivisional officerand District Panchayat Election Officer and shall also arrangefor wide publicity within the polling area.”

17. Section 47 stipulates that in order to be declared nominatedfor election from a constituency, a candidate must deposit or cause to bedeposited in cash with the Panchayat returning officer, the amounts asstipulated in the provision. Under Section 48, the Panchayat returningofficer, on receiving a nomination paper under Section 46(1), is requiredto inform the person delivering the nomination of the date, time andplace fixed for scrutiny. Thereafter, a scrutiny takes place under Section49. Section 50 provides for withdrawal of nominations and Section 51for the preparation of a list of contesting candidates and the allotment ofsymbols. Section 52, thereafter provides for the publication of a list ofcontesting candidates. Chapter I of Part IV of the West BengalPanchayat Elections Rules 2006 contains supplementary provisions interalia for the nomination of candidates.

18. The provisions contained in the Panchayat Elections Act andrules constitute a complete code in regard to the conduct of the election,including in the matter of filing of nominations. Neither the PanchayatElections Act nor the Rules contemplate the filing of nominations in theelectronic form. Any reform of the electoral process to permit the filingof nominations electronically would have to be carried out by a legislativeamendment. The High Court ought not to have issued a mandatorydirection of this nature in the face of the specific provisions contained inthe Panchayat Elections Act and Rules.

19. Moreover, the election process had already been initiated.The last date for the filing of nominations was over. The directions issuedby the High Court are in the teeth of the settled principle of self-restraintwhich governs the exercise of the jurisdiction under Article 226 once the

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Aelection process commences. Moreover, such a direction would becontrary to the provisions of Article 243 O of the Constitution. In thisview of the matter, we are of the view that the High Court was in errorin issuing directions for the acceptance of nominations in the electronicform. The judgement of the High Court would accordingly have to beset aside.B

20. While issuing notice in these proceedings on 10 May 2018,this Court directed that the election which was scheduled to take placeon 14 May 2018 shall proceed in accordance with law and upon itsconclusion, the results would be notified. However, the State ElectionCommission was directed not to notify the results in respect ofCconstituencies where there was no contest, without the leave of theCourt. On 3 July 2018, when the proceedings were taken up, this Courtwas informed by Mr P S Patwalia, learned Senior Counsel appearing onbehalf of the BJP – West Bengal Unit that at the Panchayat level asmany as 16,860 seats have remained uncontested out of a total of 48,650Dseats; for the Panchayat Samitis, 3,096 seats out of the 9,217 wereuncontested while in the Zila Parishads 203 out of the 825 seats wereuncontested. An affidavit has been filed setting out the data in relation touncontested seats, on behalf of the State Election Commission. The dataplaced on the record indicates that out of a total of 58,692 seats combinedfor Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seatsEhave been uncontested. 3,096 seats out of the 16,860 seats representing36.1 per cent of the total seats for Gram Panchayats have beenuncontested. In the case of the Panchayat Samitis, 33.5 percent of seatswere uncontested while 24.6 percent seats for Zilla Parishads wereuncontested.F21. As regards the uncontested seats, the following submissionshave been urged before this Court on behalf of the State ElectionCommission:

(i) The State Election Commission has been alive to the need toconduct a free and fair election and after the election took placeGon 14 May 2018, it ordered a re-poll in 572 booths whereproblems had occurred;

(ii) The State Election Commission had received only 1770complaints and, as such, it would be incorrect to postulate that H

the elections of all the 20,159 uncontested seats have beenvitiated.

22. These submissions have been supplemented on behalf of theState government by Mr Vikas Singh, learned senior counsel who urgedthat : (i) this Court should not exercise its jurisdiction to interfere withthe declaration of the results of uncontested seats, once the process hasbeen completed; (ii) under the provisions of Section 7 of the West BengalPanchayat Act 1973 the term of the panchayats is only five years afterwhich no extension is permissible; (iii) if the declaration of results to theuncontested seats are not allowed to be effected, it would be impossibleto constitute the panchayats, resulting in a failure of allocation of fundsfor constitutional purposes;(iv) in the absence of any cogent complaintof obstruction in the filing of nominations a generalised presumption cannotbe made in respect of each one of the nearly 20,000 seats. It has beensubmitted that as many as 3,170 panchayats are non-functional as aresult of the stay on the declaration of results.

23. Mr Kalyan Bandopadhyay, learned senior counsel appearingon behalf of the All India Trinamool Congress submitted that: (i) theuncontested seats were not the subject matter of the writ petition beforethe Hon’ble High Court; neither were there any pleadings, nor werethere any prayers; (ii) interference of this Court in regard to theuncontested seats will result in setting the election process at naught inthe absence of the affected parties; (iii) once the election process hascommenced, it cannot be arrested and the only remedy is to challengethe outcome of the election by filing an election petition and (iv) underthe provisions of Article 243 E, the term of every panchayat is five yearsand no longer. Article 243 O imposes a bar on the interference by theCourt. At this stage, any interference would seriously impede theconstitutional process of constituting the panchayats.

24. Section 64 of the Panchayat Elections Act lays down theprocedure to be followed in the case by contested and uncontestedelections. If at any election of a gram panchayat, panchayat samiti orzilla parishad, the number of contesting candidates is less than the numberof seats to be filled in a constituency, the panchayat returning officershall forthwith declare all such candidates to be duly elected. UnderSection 77, as soon as may be, after the result of an election has beendeclared, the panchayat returning officer must report the result to the A

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ADistrict Panchayat Election Officer; to the Director of Panchayats andRural Development and to the Commission. The Director is under aduty to cause the declarations of the names of the elected candidates tobe published in the Official Gazette.

25. Any dispute regarding the election has to be pursued in theBmanner which is provided in Part VII of the Panchayat Election Act.

Under Section 79(1):

“79. (1) If any dispute arises as to the validity of an election underthis Act, any person entitled to vote at such election may, withinthirty days after the date of declaration of the results of suchCelection, file a petition, calling in question such election on one ormore of the grounds specified in sub-section (1) of section 93 andsection 94 –

(a) before the Civil Judge having jurisdiction where suchelection is in respect of a Gram Panchayat or a PanchayatDSamiti, (b) before the District Judge of the district, where suchelection is in respect of a Zilla Parishad or the SiliguriMahakuma Parishad.”

Section 80 stipulates that no election to a panchayat shall be calledEinto question except by an election petition presented in accordance withPart VII. In fact, Section 84 (1) also stipulates that the Court shall dismissan election petition which does not comply with the provisions of Section79 or Section 80.

26. The Panchayat Elections Act is a complete code in regard toFthe conduct of the poll and for the resolution of disputes concerning thevalidity of the election. Article 243K entrusts the superintendence,direction and control over the conduct of all elections to the panchayatsin the State Election Commission. Clause (b) of Article 243 O stipulatesthus:G“243-O. Notwithstanding anything in this Constitution—

(b) no election to any Panchayat shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any law made by theLegislature of a State.”

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27. There is merit in the submission that the discipline which ismandated by the provisions of the Constitution and enforced by theenabling state law on the subject must be maintained. Any dispute inregard to the validity of the election has to be espoused by adopting aremedy which is known to law namely through an election petition. It isat the trial of an election petition that factual disputes can be resolved onthe basis of evidence. This principle has been consistently adhered to indecisions of this Court. In Boddula Krishnaiah (supra), a three Judgebench, adverted to the decisions of the Constitution Bench in NPPonnuswami v Returning Officer, Namakkal Constituency[5] and inLakshmi Charan Sen v AKM Hassan Uzzaman[6]. After referring toPonnuswamy, it was observed:

“In NP Ponnuswamy v Returning Officer, Namakkal Constituencya Constitution Bench of this Court had held that having regard tothe important functions which the legislatures have to perform indemocratic countries, it has always been recognised to be a matterof first importance that elections should be concluded as early aspossible according to time schedule and all controversial mattersand all disputes arising out of elections should be postponed tillafter the elections are over so that the election proceedings maynot be unduly retarded or protracted. In conformity with theprinciple, the scheme of the election law is that no significanceshould be attached to anything which does not affect the ‘election’;and if any irregularities are committed, while it is in progress andthey belong to the category or class which under the law by whichelections are governed, would have the effect of vitiating the‘election; and enable the person affected to call it in question,they should be brought up before a special tribunal by means ofan election petition and not be made the subject of a dispute beforeany court while the election is in progress.”

The binding principle must be followed.

28. The intervention of this Court has been sought on the basisthat free and fair elections are a part of the basic feature of theConstitution. Mr Patwalia urged, the entire electorate vicariously is aparty to the contest. Exercise of the jurisdiction by this Court has beensought on the ground that the process of election was polluted, there 5 1952 SCR 218

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Ahaving occurred large scale obstructions to the filing of nomination papersby candidates. The submission is that as many as 20,159 seats havegone uncontested and an overwhelmingly large majority of them havebeen bagged by candidates supported by the ruling dispensation in theState of West Bengal. Mr Patwialia urged that there is contemporaneousmaterial to indicate that as a result of obstruction and violence, candidatesBwere prevented from filing their nominations. Mr Patwalia invoked theobservations contained in the judgment of this Court in Mohinder SinghGill v The Chief Election Commissioner, New Delhi[7], emphasisingthe need to maintain the purity of the election process.

29. Having given our anxious consideration to the rival submissionsCwhich have been urged at the bar, we find that there are several reasonswhy it would be inappropriate for this Court to exercise its jurisdiction tointerdict the declaration of results of the uncontested seats. First andforemost, it is necessary for the Court to notice that no specific reliefwas claimed before the High Court in regard to those seats where thereDwas no contest. Neither were there adequate pleadings nor indeed werespecific prayers set up before the High Court when its jurisdiction underArticle 226 was invoked. The proceedings before the High Court werebrought by several political parties, each of whom would have been wellaware of the situation on the ground and the need to formulate anadequate basis in fact to invoke the jurisdiction of the High Court. AbsentEsuch a factual foundation, the High Court dealt with the only issue whichhad been addressed, which was the plea that nominations should beallowed to be filed in the electronic form. No other plea was raised.The second important consideration which must weigh with the Court isthat if the above submission is accepted, election results to over 20,000Fseats will be set at naught in the absence of the affected parties beforethe Court. Thirdly, once the election process has commenced, it is tritelaw that it should not be interdicted mid stage. The electoral process isafforded sanctity in a democracy. That is the reason why in a consistentline 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 toGbe addressed by adopting the remedy of an election petition providedunder the governing statute. For this Court to set aside elections to over20,000 seats would be to prejudge the basic issue as to whether in eachof those constituencies, the election stands vitiated by obstruction having 7 (1998) 1 SCC 405H

been caused to candidates from filing their nominations. A generalassumption of this nature cannot be made. Ultimately whether this iscorrect would depend upon the evidence adduced in the facts of individualcases where such a grievance has been made in an election petition.The Court has been apprised that approximately 1,700 complaints werefiled and about 168 election petitions have been instituted. We areemphatically of the view that any challenge to the election must takeplace in a manner which is known to law.

30. Under Section 79(1) a period of 30 days is prescribed forinstituting an election petition, where a dispute arises as to the validity ofan election. The period of 30 days commences after the date of thedeclaration of the results of the election. The pendency of theseproceedings may have dissuaded aggrieved individuals from seekingrecourse to the remedy of an election petition, particularly after the interimorder of this Court restraining the State Election Commission fromnotifying the results of the constituencies where there was no contest.While we are of the view that the validity of the elections must be testedin election petitions under Section 79(1), the question as to whether therewas a large scale obstruction from filing nominations is a serious matterwhich needs to be resolved. This is particularly because even the ElectionCommission, as we have seen, had proceeded to take notice of the grimsituation while extending the date for the filing of nominations. Havingregard to the seriousness of the allegations and bearing in mind the factthat these proceedings were pending, we are of the view that it wouldbe necessary to exercise the power under Article 142 of the Constitutionto extend the period of 30 days for the filing of election petitions inrespect of the uncontested seats.

31. For these reasons, we are of the view that challenges in regardto the validity of the elections to the uncontested seats in the panchayats,panchayat samitis and zilla parishads must also be pursued in electionpetitions under Section 79(1) of the Panchayat Elections Act. We leaveit open to any person aggrieved to raise a dispute in the form of anelection petition in accordance with the provisions contained in thePanchayat Elections Act. In exercise of the power conferred by Article142, we direct that the period of 30 days for filing election petitions inrespect of the uncontested seats shall commence from the date of thepublication of the results in the Official Gazette.

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[2018] 10 S.C.R.

A32. For the reasons indicated earlier, we allow the appeals and setaside the impugned judgment and order of the Calcutta High Courtdirecting the acceptance of nominations in the electronic form. Pendingapplications, if any, are also disposed of. There shall be no order as tocosts.

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Nidhi Jain

Appeals allowed.

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