IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 164 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== GIRISH M DAS Versus CHIEF ELECTION COMMISSIONER & ORS.
========================================== =============== Appearance :
MR GIRISH M DAS, party-in-person ========================================== =============== Date : 30/08/2012 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Public Interest Litigation, the writ-petitioner, a practising lawyer of this Court, has prayed for a direction upon the Election Commission of India and the Chief Electoral Officer, Gandhinagar, the respondents No.1 and 2 respectively, to secure to the voters that the Electronic Voting Machines (EVM) are kept hack-proof, tamper-proof and irrigable and also for passing a direction upon the Election Commission of India not to hold any election in the State of Gujarat or in Center till the voters are secured and this Court is assured with regard to functioning of the EVMs as mentioned in the body of the writ-petition. The writ-petitioner has further prayed for a direction upon the Election Commission of India to introduce and install camera and clock in EVMs so that any fraudulent voting can be ascertained and the offending voters as well as the polling staff, if any, can be booked.
2. The case made out by the writ-petitioner may be summed up thus:
2.1 By referring to the decision of the Supreme Court in the case of Mohinder Singh vs. Chief Election Officer reported in AIR 1978 SC 851, the petitioner contends that the international standard that an election has to attain, must be considered free and fair and comprehends:
[i]. The individuals have to be accurately identified as eligible voters who have not already voted;
[ii]. The voters are allowed only one anonymous ballot each, which they can mark in privacy;
[iii]. The ballot box is secure, observed and, during the election, only able to have votes added to it by voters and votes cannot be removed;
[iv]. When the election ends, the ballot box is opened and counted in the presence of observers from all competing parties, without such process revealing how individual voters cast their ballots;
[v]. If the results are in doubt, the ballots can be checked and counted again by a different set of people/machines; and, [vi]. As far as the individual voter is concerned, he must be assured that the candidate he casts his vote for, actually gets that vote.
2.2 According to the petitioner, the object of the present writ- application is to fill up the void in the absence of notification by the Election Commission permitting live video recording by the contestant of the whole election process and for the above purpose, this Court should exercise its jurisdiction under Article 226 of the Constitution of India and direct the Election Commission to permit live video recording to have secured and assured result of the election which otherwise is insecure and unsafe.
2.3 The petitioner further submits that when the Election Commission has not, and even cannot, direct that no one will come with Mobile Phone and no electronic devices will be permitted to be used during election near or inside the polling booths, then the only way out for the assured and secured result of election through EVMs is to permit live videography of the entire process of election and as such, Election Commission should not oppose this PIL in the interest of the nation.
2.4 It is further submitted that even the EVMs can be tampered with by electronic waives through some devices, and as such, it is the duty of the Election Commission to introduce and launch jammers surrounding the polling booths.
2.5 Various other suggestions have also been given in this Public Interest Litigation.
3. The first and the foremost question that arises for determination in this Public Interest Litigation is whether this Court should entertain this writ-application for the purpose of passing various directions upon the Election Commission as prayed for by the writ-petitioner.
4. After hearing Mr. Das, the petitioner-party-in-person and after going through the provisions contained in Part XV of the Constitution of India starting from Article 324 and ending with Article 329, we find that specific provisions have been made in the Constitution thereby vesting power upon the Election Commission relating to conduct of election. Those provisions are quoted below:
“324. Superintendence, direction and control of elections to be vested in an Election Commission.—
(1). The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice- President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2). The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3). When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4). Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5). Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6). The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.— There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.— The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
327. Power of Parliament to make provision with respect to elections to Legislatures.— Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State 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.
328. Power of Legislature of a State to make provision with respect to elections to such Legislature.— Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
329. Bar to interference by courts in electoral matters.— Notwithstanding anything in this Constitution—
(a). the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b). no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.”
5. It is now well-settled law that a person can approach a writ- court for enforcement of any right conferred upon such citizen either by Constitution or by any law, if the same is infringed or impeded by the illegal action or inaction of a 'State' within the meaning of Article 12 of the Constitution of India. This Court, sitting in writ-jurisdiction, has no authority to advise a constitutional authority in the matter of its duty cast upon it by the Constitution. If the writ-petitioner has any suggestions, he can make such suggestions before the Election Commission for consideration but by taking recourse to Article 226 of the Constitution of India, a citizen cannot ask this Court to pass directions upon a constitutional authority in a matter over which it has the exclusive control. As pointed out in Article 329 (b) of the Constitution, election to either House of Parliament or to the House or either House of the Legislature of a State can be called into question only by way of an Election Petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
6. We, therefore, find that in the case before us, the writ-petitioner has failed to point out to us that any action or inaction of any authority has interfered, infringed or impeded with any of the rights of the petitioner so as to interfere in exercise of the writ-jurisdiction of this Court under Article 226 of the Constitution of India. Merely because the election can be conducted in a more wiser way or a more fairer way, for that reason, this Court is not competent to pass any directions upon the Election Commission. What the petitioner wants in this writ-application is a direction upon a constitutional authority, as according to the petitioner, the suggestions given by him is more effective than the procedure adopted by the said constitutional authority. Such course is not permissible within the limited scope of Article 226 of the Constitution of India.
7. The scope of judicial review of a policy taken by a constitutional authority is now well defined. The courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy. The Courts cannot lose sight of the fact that they are not advisers to the other constitutional authorities on the matters of policy, which such competent authorities are entitled to formulate. The scope of judicial review, when examining a policy of the constitutional authority, is to scrutinize whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution of India or to any statutory provisions or is manifestly arbitrary. The Writ-Courts cannot interfere with the policy either on the ground that it is erroneous or that a better, fairer or wiser alternative policy is available. The legality of the policy and not wisdom or soundness of the policy is the subject of judicial review [vide: Asif Hameed v. State of J&K, reported in [1989] Supp. [2] SCC 364; Shri Sitaram Sugar Co. Ltd., v. Union of India, reported in [1990] 3 SCC 223; Khoday Distilleries v. State of Karnataka, reported in [1996] 10 SCC 304; Balko Employees Union v. Union of India, reported in [2002] 2 SCC 333; State of Orissa v. Gopinath Dash, reported in [2005] 13 SCC 495 and; Akhil Bharat Goseva Sangh v. State of Andhra Pradesh, reported in [2006] 4 SCC 164.]
8. We, therefore, find that the prayers made in this writ-application are not tenable within the limited scope of Article 226 of the Constitution of India, and as such, we do not find any reason to entertain this writ-application. The application is, therefore, summarily dismissed on the above ground alone.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]