Saket S Gokhale v. Election Commission of India and 2 Ors

Order :……… "16A. Power of Commission to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission-Notwithstanding anything in this Order, if the Commission is satisfied on information in its possession that a political party, recognised either as a National party or as a State party under the provisions of this Order, has failed or has refused or is refusing or has shown or is showing defiance by its conduct or otherwise (a) to observe the provisions of the 'Model Code of Conduct for Guidance of Political Parties and Candidates' as issued by the Commission in January, 1991 or as amended by it from time to time, or (b) to follow or carry out the lawful directions and instructions of the Commission given from time to time with a view to furthering the conduct of free, fair and peaceful elections or safeguarding the interests of the general public and the electorate in particular, the Commission may, after taking into account all the available

facts and circumstances of the case and after giving the party reasonable opportunity of showing cause in relation to the action proposed to be taken against it, either suspend, subject to such terms as the Commission may deem appropriate, or withdraw the recognition of such party as the National Party or, as the case be, the State Party."

¶19The non-compliance of Rule 16A, therefore, will come within a wider ambit, which will necessarily include the purport of Article 324 of the Constitution, as also the provisions of the Representation of the People Act, 1951, inasmuch as, the Election Symbols (Reservation and Allotment) Order, 1968 was made by powers conferred by the Constitution and by the Representation of the People Act, 1951. The issue of non-compliance of Rule 16A, an Order made under the powers vested under Article 324, will in turn, be covered by Section 100 (1) (d)

(iv) of the Representation of the People Act, 1951, which is widely worded to include all kinds of infractions which are residual in nature, within the scope of the Representation of the People Act, 1951. Section 100(1)(d)(iv) reads as follows; "100. Grounds for declaring election to be void.-[(1) Subject to the provisions of sub-

section (2) if [the High Court] is of opinion-

(a) …………………..

(b) ………………..

(c) ………………..

(d) ……………….

(i) ……………

(ii) ……………

(iii) …………….

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

2[the High Court] shall declare the election of the returned candidate to be void."

¶20The abovenoted observation is being made, in view of the fact that, the election process has already been set in motion and therefore, apart from a proceeding under the Representation of the People Act, 1951, no other forum can adjudicate in such matters. No special circumstances that, the writ petition has been filed in aid of and in furtherance of the election process, are visible or apparent in any manner, as the petitioner seeks that action be taken against the respondent No. 3, which cannot be said to subserve the election process. Therefore, the decision relied upon by the Senior Counsel for the petitioner that is

Election Commission of India through Secretary Vs. Ashok Kumar (supra) is of no assistance to his case.

¶21On the question of ouster of jurisdiction under Article 226 of the Constitution, and the scheme of Section 100 of the Representation of the People Act, 1951, especially clause (1)(d)(iv), it would be apposite to refer to the judgment of the Supreme Court in the case of Manda Jaganath Vs. K.S. Rathnam & Ors. (2004) 7 SCC 492, wherein to settle the dilemma, with regard to this issue, has held in Paras – 13-16 as follows; "13. It is to be seen that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no forum other than such forum constituted under the RP Act can entertain a complaint against any election.

¶14The word "election" has been judicially defined by various authorities of this Court to mean any and every act taken by the competent authority after the publication of the election notification.

¶15In Ponnuswami this Court held: (AIR p. 68, para 9) The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition.

¶16The above view of this Court in Ponnuswami case has been quoted with approval by the subsequent judgment in M.S. Gill wherein this Court after quoting the passages from the said judgment in Ponnuswami case held that there is a non obstante clause in Article 329 and, therefore, Article 226 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami case. It is while considering the above unexplored situations in Ponnuswami that in M.S. Gill case this Court held thus: (SCC p. 429, para 34) "34. This dilemma does not arise in the wider view we take of Section 100(1)(d)(iv) of the Act. Sri Rao's attack on the order impugned is in substance based on alleged non-compliance with a provision of the Constitution viz. Article 324 but is neatly covered by the widely-worded, residual catch-all clause of Section 100. Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication postponed all election disputes to election petitions and tribunals. In harmony with this scheme Section 100 of the Act has been

designedly drafted to embrace all conceivable infirmities which may be urged. To make the project foolproof Section 100(1)(d)(iv) has been added to absolve everything left over. The Court has in earlier rulings pointed out that Section 100 is exhaustive of all grievances regarding an election." (Emphasis supplied)

¶22The above quoted judgment, having covered any lacunae that, may have existed, in the considered view of this Court, the dispute sought to be raised by the writ petitioner will not be entertainable under Article 226 of the Constitution, more specifically with the electoral process already underway. Further, as submitted by the learned Senior counsel for the respondents No. 1 and 2, the basic issue also no longer survives for adjudication, as it is no longer a case of non-compliance of Rule 16A, but rather a case of delay in complying with the same.

¶23This Court having come to a finding on the maintainability of the writ petition to be barred by Article 329(b) of the Constitution, the other questions and the authorities placed are not gone into or discussed, and this writ petition accordingly stands dismissed, as not maintainable.

Judge Meghalaya

03.02.2023 "D.Thabah-PS"

Serial No. 03 Supplementary List HIGH COURT OF MEGHALAYA AT SHILLONG WP(C) No. 485 of 2022 Date of Decision: 03.02.2023 Shri. Saket S. Gokhale Vs. Election Commission of India & Ors. Coram: Hon'ble Mr. Justice H. S. Thangkhiew, Judge Appearance: For the Petitioner/Appellant(s) :Mr. K. Paul, Sr. Adv. with Mr. S. Chanda, Adv. Mr. F. Askari, Adv. Mr. S.K. Hassan, Adv. For the Respondent(s) : Dr. N. Mozika, Sr. Adv. with Mr. B. Shangrit, Adv. Mr. Philemon Nongbri, Adv. (For R 1 & 2) Mr. S. Sahay, Adv. with Ms. S. Laloo, Adv. (For R 3). i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: Oral: 1. The instant writ petition has been filed by the petitioner, who is a Spokesperson of the All India Trinamool Congress, praying for action to be initiated against the respondent No. 3, by the respondents No. 1 and 2 (Election Commission of India) for violation of electoral rules given in Rule 16A of the Election Symbols (Reservation and Allotment) Order, 1968. 2. When the matter was initially taken up on earlier dates, the respondent No. 3, had raised questions on the maintainability of the writ petition, and on a preliminary hearing, while allowing the parties to complete the pleadings, the matter has been fixed today for admission hearing, on the point of maintainability. 3. Heard learned counsel for the parties. 4. Mr. S. Sahay, learned counsel for the respondent No. 3, has raised the following grounds to question the maintainability of the petition, which are under the following heads; i) Writ petition not maintainable in view of the bar under Article 329(b) of the Constitution of India. ii) Writ petition barred by inordinate delay and laches. iii) Petition under Article 226, not maintainable for failure to make out mandatory pre-conditions for invoking writ jurisdiction. iv) Writ petition liable to be dismissed for concealment of material facts. v) Writ petition is a 'political' interest litigation and petitioner lacks locus. vi) Writ petition unsustainable on merits. 5. Mr. S. Sahay, learned counsel has advanced arguments on the respective heads as noted above, and on the first objection, submits that a constitutional bar exists against interference by Courts in electoral matters and has referred to Article 329(b) of the Constitution, to support this point. He further submits that, the bar to interference includes all matters directly or incidentally connected with the electoral process, which is already under way in the State of Meghalaya, whereby elections to the Legislative Assembly, has been notified on 18.01.2023. Learned counsel in support of his submission, has placed reliance on the case of Election Commission of India through Secretary Vs. Ashok Kumar, (2000) 8 SCC 216. 6. On the point of inordinate delay, learned counsel submits that, the writ petition is hit by inordinate delay and laches, inasmuch as, the filing of election expenditure report relates to 2018, whereas, the writ petitioner has instituted the present writ petition only in 2022, without providing any explanation for the delay in preferring the same. He submits that, the fact that, the writ petition was filed only in December, 2022, clearly shows that the same is actuated by political motive, as it has been filed immediately prior to the 2023 elections, at the behest of the political party, to which the petitioner belongs. Learned counsel has placed the following decisions, in support of his contentions, namely City and Industrial Development Corp. Vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 and Karnataka Power Corp. Ltd. Vs. K. Thangappan, (2006) 4 SCC 322. 7. On the point of failure to meet the pre-conditions for invoking writ jurisdiction under Article 226 of the Constitution, the learned counsel submits that, it is settled law that, there must be a judicially enforceable right, as well as, a legally protected right to seek a mandamus. The petitioner he submits, is seeking a direction from this Court,