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PETITIONER: ELECTION COMMISSION OF INDIA

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT25/04/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) TULZAPURKAR, V.D. PATHAK, R.S. MADON, D.P. THAKKAR, M.P. (J)

CITATION:  1984 AIR 1406            1984 SCR  (3) 554  1984 SCALE  (1)670

ACT:      Practice & Procedure-Passing of Ex-parte orders, by the Courts as  sought for  by the  parties when  they give prior intimation of  the proposed proceedings to the opposite side without much inconvenience or prejudice disapproved.      Constitution of  India 1950 Article 136-Interference by the Supreme  Court against an ad interim order passed by the High Court.

HEADNOTE:      To fill  in the  vacancy arising from the setting aside of the  election of the returned candidate from the 59-Taoru Assembly Constituency  in Haryana, by the Supreme Court, the appellant Commission  sent a  message and programme on April 6, 1984  to the  Chief Electoral  officer for  the State  of Haryana. According to that programme, the notification under section 150  of the  Representation of  the People Act, 1951 was to be issued on April 18, 1984, the last date for filing nominations was  April 25,  1984 while  the date of poll was May 20,  1984 The  Election Commission  fixed  an  identical programme for  filling 23 other vacancies in the legislative assemblies of  Andhra Pradesh, Karnataka and West Bengal. On April 7,  1984, the Election Commission was requested by the Haryana  Government   to  hold   the  proposed   by-election alongwith the  general elections to the Lok Sabha, due later in the  year. On April 11, 1984, the Chief Secretary wrote a letter to  the Election Commissioner renewing the request to defer the  by election.  On  April  12,  1984  the  Election Commissioner informed the Chief Election officers by a telex message that  it had  decided to  adhere to the programme of by-elections to  all the  24 constituencies  and  copies  of notifications to be published on April 18, 1984 were sent to the Chief Electoral officer, Haryana. A Press not was issued to that effect after informing all the political parties.      The Chief  Secretary, Haryana  met the  Chief  Election Commissioner  on   April  14,  1984  and  explained  to  him personally why it was neither advisable nor possible to hold the by-election to the Taoru seat as proposed by the latter. On April  16, 1984,  the  Chief  Secretary  wrote  a  letter

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reiterating the view of the Government to the Chief Election Commissioner. On  April 17,  1984,  the  Chief  Commissioner replied to  the letter  of April 16, 1984 by saying that the Commission had  taken the  decision to  hold the by-election after  taking   the  Punjab   situation  and   taking   into consideration all  factors including  the fact  of non  fact that the  political parties were not opposed to the proposed byelection. On  the same day the Government of Haryana filed a writ  petition in the High Court of Punjab and Haryana and obtained  an   ex  parte  order  staying  the  issuance  and publication of the 555 notification by the Election Commission under ss. 30, 56 and 150 of the Representation of the People Act, 1951. Hence the appeal by special leave of the Court.      Allowing the appeal, the Court. ^      HELD : (Per-Majority)      Per-Chandrachud C.J.      1 :  1.  The  widely  prevalent  practice  of  partices obtaining  ex   parte  orders   when  they  can  give  prior intimation of the proposed proceedings to the opposite side, without much  inconvenience  or  prejudice  has  often  been disapproved by this Court. When the public authorities do so it is all the more open to disapprobation. [561D-E]      1 :  2. The  Government of Haryana obtained an ex parte order from  the High  Court when  it could easily have given prior intimation of the intended proceedings to the Election Commission  of   India.  The   letter  is   constitutionally identifiable, conveniently  accessible and  easily available for  being   contacted  on   the  most   modern  systems  of communication. The  Election Commission of India, too rushed to this  Court on  the 18th without informing the Government of Haryana  that it  proposes to  challenge the order of the High Court and to ask for stay of that order. The Government of Haryana is also identifiable and accessible with the same amount of  case. Were  it not  for the fact that this matter brooked no  delay the  Supreme Court would have hesitated to pass any  interim order  without the  appellant giving prior intimation of its proposed action to the respondent.                                                     [561E-G]      1 :  3. Despite  the guideline indicated by the Supreme Court in the West Bengal poll case, A.K.M. Hassan Uzzaman v. Union of  India, [1982]  2 S.C.C. 218, regarding the passing of orders  by the  High Courts  in exercise  of  their  writ jurisdiction, the  High Court  of Punjab  & Haryana far from showing any  reluctance to  interfere with  the programme of the proposed  election, the  High Court has only too readily passed the  interim order which would have had the effect of postponing the  election indefinitely.  Considering that the election process  was just  round the corner, the High Court ought not  to have interfered with it. The nonspeaking order passed by  it affords  no assistance on the question whether there were  exceptional circumstances to justify that order. [562A-C]      2. The Government of Haryana is undoubtedly in the best position to  assess the  situation of law and order in areas within its  jurisdiction and  under  its  control.  But  the ultimate decision as to whether it is possible and expedient to hold  the elections  at any given point of time must rest with the  Election Commission  Arbitrariness and  mala fides destroy the  validity and  efficacy of  all orders passed by public authorities.  It is  therefore necessary  that on  an issue like  the present,  which concerns  a situation of law and order,  the Election  Commission must consider the views

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of the  State Government  and all  other concerned bodies of authorities before coming to the conclusion that there is no objection to the holding of the 556 elections  at   this  point  of  time.  Hence  the  Election Commission came  to its  decision after  bearing in mind the pros and cons of the whole situation. It had the data before it. It  cannot be  assumed that it turned a blind eye to it. In these  circumstances, it was not in the power of the High Court to  decide whether  the law and order situation in the State of  Punjab and  Haryana is  such as  not to warrant or permit the  holding of the by-election. It is precisely in a situation like  this that  the ratio of the Bengal Poll case would apply in its full rigor. [562E-H, 563A-B]      3 :  1. However, it would be open to the Chief Election Commissioner to  review his decision as to the expediency of holding the  poll on  the notified  date. In  fact, not only would it  be open  to him to reconsider his decision to hold the poll  as notified, it is plainly his duty and obligation to keep  the situation  under constant  scrutiny  so  as  to adjust the  decision to  the realities of the situation. All the facts  and circumstances,  past and  present, which bear upon the question of the advisability of holding the poll on the notified  date have  to be  taken into  account and kept under vigil.  That is  to continuing  process which can only cease after  the poll  is shield.  Until then,  the Election Commission has  the locus,  for good  reasons to  alter  its decision The law and order situation in the State, or in any art of  it, or in a neighboring State, is a consideration of vital importance  for deciding the question of expediency or possibility of  holding an  election at any particular point of time.  If he  considers  it  necessary,  he  should  held further discussions  with the  Chief  Electoral  officer  of Haryana and  consult, once  again, leaders  of  the  various political parties  on the question whether it is feasible to hold the poll on the due date. On an important issue such as the holding  of an election, which is of great and immediate concern to  the entire  political community, there can be no question of  any public  official standing  on prestige,  an apprehension which  was faintly  projected  in  the  State’s arguments. A sense of realism, objectively and noa-alignment must inform  the decision of the election Commission on that issue. [563D-H]      Mohd. Yunus  Saleem v.  Shiv Kumar  Shastri.  [1974]  3 S.C.R. 738 @ 743-44; followed.      3 :  2. Indeed,  every citizen  of this country who has some degree  of political  awareness, would have a fair idea of the  situation in  Punjab and its impact on the even flow of life  in the  neighbouring  State  of  Haryana.  But  the circumstance that the High Court has the knowledge of a fact will not  justify the  substitution by it of its own opinion for that  of an  authority duly  appointed  for  a  specific purpose by  the law  and the  Constitution. Different people hold different  views on  public  issues,  which  are  often widely divergent.  Even the  Judges. A  Judge is entitled to his views  on  public  issues  but  he  cannot  project  his personal views  on the  decision  of  a  question  like  the situation of  law and  order  in  a  particular  area  at  a particular  period  of  time  and  hold  that  the  Election Commission is  in error  in its appraisal of that situation. [564D-F] Per Thakkar, J. (Contra) :      The exact  parameters of  the decision in Hassan’s case and the true 557

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ratio cannot  be known  till the judgment containing reasons is born. As on today no one can predict what exactly will be decided by  the Court  in Hassan’s  case when  the  Judgment eventually comes  to be  pronounced (who  can make  a  guess about the  colour or  shade of  the eyes of a child which is yet to  be born  ?). But  it can  be  reasonably  said  that Hassan’s case  does not enjoin that an interim order of such a nature  can never be passed in any situation. If that were not so,  the court would not have said (1) that imminence of electoral process  is a  factor which  must guide and govern the passing of orders (meaning thereby that while such order scan  be   passed  this   factor  must   be   accorded   due consideration) and (2) that "more imminent such process, the greater ought  to be  the reluctance of the High Court to do anything or  direct anything  to be done which will postpone that process indefinitely" (which means it must be done only with reluctance when elections are imminent). In other words the power  must be  exercised  sparingly  (with  reluctance) particularly  when  the  order  would  be  to  postpone  the installation of a democratically elected popular Government. These observations  were made  by the Court in Hassan’s case in the  context of  the expiry of the term of legislature as envisioned by  Article 172  of the Constitution of India and consequential general  elections for  such legislature as is evident from  the elusion  to "imminence  of elections"  and "indefinite postponement  of elections to legislative bodies which  are  the  essence  of  democratic  functions  of  the Constitution." This must be so because the legislature would stand dissolved  on the  expiry  of  the  term,  and  a  new legislature has  to  be  elected.  It  is  in  this  context (presumably) that  a reference  is  made  to  "imminence  of elections". [567D-E-H; 568A-F]      For a  By-election like  the present  one,  to  fill  a single vacancy  . there can be no question of "imminence" or "indefinite postponement of elections" which would stall the installation of  a democratically  elected government. It is nobody’s case  that the  party position  was such  that  the result of the election to this vacant seat would have tilted the majority  one way  or other.  No oblique motive has even been hinted at. The High Court was therefore not unjustified in proceeding on the assumption that it had such a power.                                                     [568F-G]      The High  Court  cannot  be  faulted  for  passing  the impugned order faced as it was by an unprecedented situation like the  present. If  the High  Court had  not granted  the order and  the Election  Commission had not chosen to appear on or  before April  18, 1984  the  High  Court  would  have perhaps become  powerless to  pass any other order, whatever be the  justification for  it,  as  the  "electoral-process" would have  actually commenced.  The High  Court was  prima- facie satisfied  that the  Election Commission had failed to take into  account vital  matters, appeared to have acted on non-consequential considerations,  and had acted arbitrarily in turning  down the request of the State Government as also the Chief  Election Officer  of Haryana.  The High Court was therefore entitled to grant a stay. [569A-B]      The Supreme Court in exercise of the jurisdiction under Article  136   of  the  Constitution  of  India  should  not interfere with the ad-interim order passed by the High Court in such  a fact  situation. On  the one  hand  the  Election Commission appeared to have been altogether oblivious to the dimension as regards the bonafide apprehension pertaining to the life and 558 security of  the National  leaders who  might address public

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meetings, the  Candidates the  officers engaged  in election work, and  the voters.  The danger was further aggrevated in the face  of open  threats held  but to  the  lives  of  the National leaders  of different  political parties.  What  is more, the Election Commission has shown total unawareness of the circumstance  that public meetings were prohibited under s. 144  of the  Cr. P.  C. in  the constituency going to the polls. On  the other hand the only consequence of granting a stay would have been to postpone the election programme by a few days  in the event of the Election Commission commission not choosing  to appear  in the Court (to show cause why the ad-interim order  should no  be made  absolute) on or before April 18,  1984 which was the scheduled date for issuance of the  notification  announcing  the  election  programme  The Election Commission  could have  appeared  before  the  High Court  and   got  the   stay  vacated  in  time  instead  of approaching this  Court by  way of  the  present  appeal  by Special Leave. The Election Commission could not have failed to refraise  that no  serious consequence  would have flowed from the  impugned order  even  if  stay  was  vacated,  not immediately, but  a few  days later,  for, it was only a by- election to  one single  seat of no significance which would not have  resulted in postponement of the installation of an elected government.  Worse come  to worse,  the  by-election could not  have been  held along  with by-elections in other states on the ’same day’. [569B-G]      More so  when the Election Commission has not been able to show  what possible detriment would have been suffered if the by  election  could  not  have  been  so  held  on  that particular day. How and by what process of ratiocination did the Election Commission convinced itself that free elections could be  held in  a situation  where the  Candidates  would consider it  hazardous to  contest or to indulge in election propaganda, and even voters would be afraid to vote, even to this court. [569G-H, 570A]      It is  no doubt  true that  theoretically the  Election Commission can  still postpone  the polling,  if  it  is  so minded. But  the Court should not remain a passive spectator in this  extraordinary situation and leave the Nation to the mercy of  an individual, however high be his office, when it is evident  that he  has secluded himself in his ivory tower and has  shut his eyes to the realities of the situation and closed his  mind to  the prognosis of this matter. The Court can  certainly   satisfy   itself   whether   the   Election Commissioner had  kept his  eyes, ears  and mind  open,  and whether he  was able  to  show  that  all  relevant  factors including the  consideration as  to what advantage was to be secured as  against the  risk to  be faces, entered into his reckoning. If this is not shown to have been done, as in the present case,  his decision  is vitiated  and the Court need not feel  helpless.  The  High  Court  was  therefore  fully justified in  passing the  impugned order,  and the  Supreme Court should not upture it. [571B-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2182 of 1984.      Appeal by  Special leave  from the  Judgment and  Order dated the  17th April,  1984 of  the Punjab and Haryana High Court in W.P. No. Nil of 1984 559      S.S. Ray and Krishnamurthi Swami for the Appellant.      K.G. Bhagat  Addl. Sol.  General, A.K.  Sen, H.B. Singh

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Advocate of  Harayana, A.  Subbha Rao,  CV. and R.N. Poddar, for Respondent. General,      The following Judgments were delivered      CHANDRACHUD, C.J.  We had  passed an  interim order  on April 18,  suspending the  operation of  the order passed by the High  Court of  Punjab & Haryana, on April 17, 1984. The High Court,  by its aforesaid order, had stayed the issuance and  publication   of  the  notifications  by  the  Election Commission of  India under  sections 30,  56 and  150 of the Representation of People Act, 1951. We had directed that the special leave  petition should  be listed before us the next day for  considering whether  the interim  order  should  be confirmed.      On February  28, 1984,  this Court  gave a  judgment in Civil Appeal  No.5501 of 1983, setting aside the election of the  returned   candidate   from   the   59-Taoru   Assembly Constituency in  Haryana. As  a result  of that  judgment, a vacancy arose  in the  Legislative Assembly  of the State of Haryana from  that  Constituency.  On  April  6,  1984,  the Election Commission  of India  sent a  message to  the Chief Secretary, Haryana,  who is  the Chief Electoral Officer for the State  of Haryana, informing him that the Commission had fixed a certain programme for holding the by-election to the Taoru  Constituency.   According  to   that  programme,  the notification under  section 150 of the Representation of the People Act,  1951, was  to be  issued on April 18, 1984, the last date for filing nominations is April 25,1984, while the date of  poll is May 20, 1984. The Election Commission fixed an identical programme for filling 23 other vacancies in the legislative assemblies of Andhra Pradesh, Karnataka and West Bengal.      On April  7, 1984,  the Election  Commission received a telex  message  from  the  Chief  Secretary,  Government  of Haryana, conveying  the request  of the  Haryana  Government that the  proposed by election should be held along with the general elections  to the Lok Sabha which are due later this year. On  April 11, 1984, the Chief Secretary wrote a letter to the  Chief Election  Commissioner renewing  the aforesaid request for two reasons: 560      (1)  The next  general election  to the  Haryana Vidhan           Sabha is  due in  May, 1987  and since  the  Taoru           vacancy had  occurred  recently  on  February  28,           1984, there was no immediate necessity to fill it;           and      (2)  deferring the  by-election would save time, labour           and expense.      On April 12, 1984, the Election Commission informed the Chief Electoral  Officers by  a telex  message that  it  had decided to  adhere to  the programme  of by-election  to  24 vacancies  in  their  respective  jurisdictions.  The  telex message mentioned specifically that the Commission had taken into consideration  the replies  received by it from various State Government  and their  Chief Electoral Officers on the question of  holding the  elections as proposed. On the same date i.e.  April 12,  1984 copies  of  notifications  to  be published on April 18, 1984 in the Haryana Gazette were sent to the  Chief Electoral  Officer of  Haryana. By  a separate communication of  the same date, the Commission informed all the political  parties about  the programme  fixed by it for holding the  by-elections. A  press note  was also issued to the same effect on the same date.      The Chief  Secretary, Haryana,  met the  Chief Election Commissioner on April 14 and explained to him personally why it was  neither advisable  nor  possible  to  hold  the  by-

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election to  the Taoru  seat as  proposed by  the latter. On April 16,  the Chief  Secretary wrote  a letter to the Chief Election  Commissioner   reiterating   the   view   of   his Government. He  added in  that letter  that it  would not be possible to  hold the  election during  the proposed  period because, the  neighbouring State of Punjab was going through a serious problem of law and order, that there was a dispute regarding territorial  adjustment  and  division  of  waters between the  State of Haryana and the Akali Party in Punjab, that the  said dispute  was used  by  the  Akali  Party  for stepping up  terrorist activities,  that the  terrorists had attacked persons  occupying high  public offices, that there was a  serious threat to the lives of many important persons in Haryana,  that public  meetings had  been banned  by  the District  Magistrate  under  section  144  of  the  Criminal Procedure Code  and that the situation in the State was such that it  would not  be possible  to hold public meetings for election purposes  for a  few months. On April 17, the Chief Election  Commissioner  replied  to  the  Chief  Secretary’s letter of  April 16  by saying that the Commission had taken the decision  to hold  the  by-election  after  taking  into consideration all 561 factors, that it was not clear how the Constituency of Taoru in Gurgaon,  which is  about 35  kilometers from  Delhi, and which is  quite far away from Punjab would have any fall-out of the  Punjab situation  and that the political parties who were duly  informed of  the proposed  election programme had not opposed  the holding  of by  election at  this point  of time. On  the same date that the Chief Election Commissioner wrote the  aforesaid letter, the Government of Haryana filed a writ  petition in the High Court of Punjab and Haryana and obtained an  ex-parte  order,  which  is  impugned  in  this special leave petition.      We passed the interim order on April 18 after hearing a fairly long  and exhaustive  argument from  Shri  Siddhartha Shankar Ray  who appeared  on behalf  of the  appellant, the Election Commission  of India,  and the  learned  Additional Solicitor General  who appeared on behalf of respondent, the ’State of Haryana’ We heard further arguments of the parties on the  19th, Shri  Asoke Sen  appearing for the respondent. Since  the   matter  raises   questions  of  general  public importance,  we   grant  special  leave  to  appeal  to  the petitioner.      We  often   express  our   disapproval  of  the  widely prevalent practice of parties obtaining ex parte orders when they can  give prior  intimation of the proposed proceedings to  the   opposite  side,   without  much  inconvenience  or prejudice. When  the public authorities do so, it is all the more open  to disapprobation.  But here,  the  parties  have taken a  tooth  for  a  tooth.  The  Government  of  Haryana obtained an ex porte order from the High Court when it could easily have  been given  prior intimation  of  the  intended proceeding to  the Election  Commission of India. The latter is constitutionally  identifiable,  conveniently  accessible and easily  available for being contacted on the most modern systems of  communication. The Election Commission of India, too, rushed  to this Court on the 18th without informing the Government of  Haryana that  it proposes  to  challenge  the order of  the High  Court and to ask for stay of that order. The  Government   of  Haryana   is  also   identifiable  and accessible with the same amount of case. We do hope that the smaller litigants  will not  form the belief that the bigger ones can get away with such lapses. Were it not for the fact that this  matter brooked  no delay, we would have hesitated

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to pass any interim order without the appellant giving prior intimation of its proposed action to the respondent.      As stated  earlier notifications  setting the  election process in  motion were  to be  issued on  April 18. One day before that, the State 562 Government approached  the High  Court in a hurry, asking it to stay the election process, which the High Court has done. This Court  held in the West Bengal poll case, A.K.M. Hassan Uzzaman v.  Union of  India,(1) that  the imminence  of  the electoral process  is an  important factor  which must guide and govern the passing of orders in the exercise of the High Court’s writ  jurisdiction and  that, the more imminent such process, the  greater ought to be the reluctance of the High Court to take any step which will result in the postponement of the  elections. We  regret to  find that far from showing any reluctance  to  interfere  with  the  programme  of  the proposed election,  the High  Court  has  only  too  readily passed the  interim order which would have had the effect of postponing the  election indefinitely.  Considering that the election process  was just  round the corner, the High Court ought not to have interfered with it. The non-speaking order passed by  it affords  no assistance on the question whether there were exceptional circumstances to justify that order.      The fact that the election process was imminent is only one reason  for our  saying that  the High Court should have refused its  assistance in  the matter. The other reason for the view  which we are taking is provided by the very nature of the  controversy which is involved herein. The difference between the  Government of  Haryana and  the Chief  Election Commission centres  round the  question as  to  whether  the position of law and order in the State of Haryana is such as to make  it inexpedient  or undesirable to hold the proposed by-election at this point of time. The Government of Haryana is undoubtedly  in the best position to assess the situation of law  and order in areas within its jurisdiction and under its control.  But the  ultimate decision as to whether it is possible and  expedient to  hold the  elections at any given point of  time must rest with the Election Commission. It is not suggested  that the Election Commission can exercise its discretion  in   an   arbitrary   or   mala   fide   manner. Arbitrariness  and   mala  fide  destroy  the  validity  and efficacy of  all orders  passed by public authorities. It is therefore necessary that on an issue like the present, which concerns  a   situation  of  law  and  order,  the  Election Commission must  consider the  views of the State Government and all  other concerned bodies or authorities before coming to the  conclusion that there is no objection to the holding of the  elections at  this point  of time. On this aspect of the matter,  the correspondence  between the Chief Secretary of Haryana  and the  Chief Election  Commissioner shows that the latter had taken all the 563 relevant facts  and circumstances  into account while taking the  decision   to  hold   the  by-election   to  the  Taoru Constituency in  accordance with the proposed programme. The situation of law and order in Punjab and, to some extent, in Haryana is  a fact  so notorious  that it  would be naive to hold that  the Election Commission is not aware of it. Apart from the  means to the knowledge of the situation of law and order in  Punjab and  Haryana, which the Election Commission would have,  the Chief  Secretary of  Haryana had personally apprised the Chief Election Commissioner as to why the State Government was  of the  view that  the elections  should  be postponed until the Parliamentary elections. We see no doubt

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that the  Election Commission  came to  its  decision  after bearing in mind the pros and cons of the whole situation. It had the  data before it. It cannot be assumed that it turned a blind eye to it. In these circumstances, it was not in the power of  the High Court to decide whether the law and order situation in  the State of Punjab and Haryana is such as not to warrant  or permit  the holding of the by-election. It is precisely in  a situation  like this  that the  ratio of the West Bengal Poll case would apply in its full rigor.      We must add that it would be open to the Chief Election Commissioner,  as   held  in   Mohd.  Yunus  v.  Shiv  Kumar Shastri,(1) to  review his  decision as to the expediency of holding the  poll on  the notified  date. In  fact, not only would it  be open  to him to reconsider his decision to hold the poll  as notified, it is plainly his duty and obligation to keep  the situation  under constant  scrutiny  so  as  to adjust the  decision to  the realities of the situation. All the facts  and circumstances,  past and  present, which bear upon the question of the advisability of holding the poll on the notified  date have  to be  taken into  account and kept under vigil.  That is  a continuing  process which  can only cease after  the poll  is held.  Until  then,  the  Election Commission has  the focus,  for good  reasons, to  alter its decision. The  law and  order situation  in the State, or in any  part   of  it,   or  in  a  neighbouring  State,  is  a consideration of  vital importance for deciding the question of expediency  or possibility  of holding an election at any particular point  of time.  We are  confident that the Chief Election Commissioner,  who is  vested with important duties and obligations  by the  Constitution, will  discharge those duties and  obligations with a high sense of responsibility, worthy of the high office which he holds. If he considers it necessary, he 564 should hold  further discussions  with  the  Chief  Election Officer of  Haryana and  consult, once again, leaders of the various political  parties on  the question  whether  it  is feasible to  hold the poll on the due date. One as important issue such  as the holding of an election, which is of great and immediate  concern of  the entire  political  community, there can  be no question of any public official standing on prestige, an apprehension which was faintly projected in the State’s arguments.  A  sense  of  realism,  objectivity  and nonalignment  must  inform  the  decision  of  the  Election Commission on that issue.      It was  urged that the High Court of Punjab and Haryana would have  a fair and clear understanding of the happenings in Punjab  and their  repercussions in  Haryana which  would justify its  interference with  the decision of the Election Commission to  hold the  by-election now.  The first part of this argument  need not be disputed and may even be accepted as correct.  Indeed, every  citizen of  this country who has some degree  of political  awareness, would have a fair idea of the  situation in  Punjab and its impact on the even flow in the neighbouring State of Haryana. But the second part of the argument  is untenable.  The circumstance  that the High Court  has   knowledge  of  a  fact  will  not  justify  the substitution by  it of  its  own  opinion  for  that  of  an authority duly  appointed for  a specific purpose by the law and the  Constitution. Different people hold different views on public issues, which are often widely divergent. Even the judges. A  Judge is  entitled to  his views on public issues but the  question is  whether he  can project  his  personal views on  the decision  of a  question like the situation of law and order in a particular area at a particular period of

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time hold  that the  Election Commission  is in error in its appraisal of that situation. We suppose not.      For these  reasons, we  confirm the interim order which was passed  by us  on April  18, allow  this appeal  and set aside the  High Court’s  order of April 17. Unless otherwise directed by  the Chief  Election Commissioner,  the election programme will have to go through as already notified.      There will be no order as to costs.      THAKKAR, J.  Holding of  a by-election  to fill  even a single  vacancy   at  the  earliest  date  is  an  extremely desirable end  in a  democratic framework.  Even so  if such circumstances exist, and a 565 reasonable progrosis  can be bonafide made, that holding the by-election for  filling up  that vacancy,  is fraught  with grave danger,  not only  to the  lives of election officers, candidates as  also political  leaders  addressing  election meetings, as  also of voters, and poses a grave danger which altogether outweighs  the advantage  of holding the election along with  the by-elections  in other  States,  should  the matter not  engage very  serious attention  of the  Election Commission ?  Not even  when it is shown that with regard to the sensitive  and explosive  situation  it  was  likely  to worsen a  situation which  was already  worse ? More is when all that  was to  be gained  by holding  the by-election  as proposed was  to be  able to  hold it  along with  other by- elections on  the same  day as  in other States which had by itself no  significance  or  virtue.  And  if  the  Election Commission without due deliberation summarily turns down the request to defer the election programme for that by-election even by a few days in such circumstances, can the High Court be faulted  for passing  an ad-interim  order, which has the result of  postponing the  election, not  for an  indefinite period, but  for a  few days till the parties are heard ? Is the order  passed by the High Court in such circumstances so gross that  instead of allowing the High Court to confirm it or vacate  it, upon the other side showing cause, this Court should invoke  the jurisdiction  under Article  136  of  the Constitution of  India to  set it  aside ? More particularly when the  consequence would  be no  more serious  than this, namely, that  the by-election  cannot be  held (there  is no virtue in  doing so)  on the  same day  along with other by- elections.      That the  High Court has the power to issue a direction or order  which has  the effect of postponing an election if the situation so demands would appear to be the law declared by a  five-judge Constitution  Bench presided  over  by  the learned Chief  Justice who presides over this Bench as well. In A.K.M.  Hassan Uzzaman  and other  v. Union  of India and others and  Lakshmi Charan  Sen and  others v. A.K.M. Hassan Uzzaman and  others the  conclusions  are  recorded  in  the operative order dated March 30, 1982, reading as under:           "1. The transferred case and the appeals connected      with it  raise  important  questions  which  require  a      careful and  dispassionate considerations.  The hearing      of these  matters  was  concluded  four  days  ago,  on      Friday, the  26th. Since  the judgment  will take  some      time to prepare, we propose, by this 566      Order, to  state our  conclusions on some of the points      involved in controversy:                (1)  The   High  Court   acted   within   its           jurisdiction in entertaining the writ petition and           in issuing a rule nisi upon it, since the petition           questioned the vires of the laws of election. But,

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         with respect,  it was not justified in passing the           interim orders  dated February 12 and 19, 1982 and           in confirming  those orders  by its judgment dated           February 25,  1982. Firstly, the High Court had no           material before it to warrant the passing of those           orders. The  allegations in  the writ petition are           of a  vague and  general nature,  on the  basis of           which no relief could be granted. Secondly, though           the High  Court did  not lack  the jurisdiction to           entertain  the   writ  petition   and   to   issue           appropriate directions  therein, no  High Court in           the exercise  of its  powers under  Article 226 of           the Constitution  should pass  any orders, interim           or otherwise,  which has the tendency or effect of           postponing  an   election,  which   is  reasonably           imminent  and   in  relation  to  which  its  writ           jurisdiction is  invoked.  The  imminence  of  the           electoral process is a factor which must guide and           govern the  passing of  orders in  the exercise of           the  High  Court’s  writ  jurisdiction.  The  more           imminent such process, the greater ought to be the           reluctance of  the High  Court to  do anything, or           direct anything  to be  done, which  will postpone           that process  indefinitely by creating a situation           in which,  the Government  of a  State  cannot  be           carried on  in accordance  with the  provisions of           the Constitution.  India is an oasis of democracy,           a fact  of contemporary  history which demands the           courts  the  use  of  wise  statesmanship  in  the           exercise of  their extraordinary  powers under the           Constitution. The High Courts must observe a self-           imposed limitation  on their  power to  act  under           Article 226,  by refusing  to pass  orders or give           directions which  will  inevitably  result  in  an           indefinite   postponement    of    elections    to           legislative bodies  which are  the very essence of           the democratic  foundation and  functioning of our           constitution. The  limitation ought to be observed           irrespective of  the fact  whether the preparation           add publication  of electoral  rolls are a part of           the process  of ’election’  within the  meaning of           Article 329 (b) of the 567           Constitution. We will pronounce upon that question           later in our judgment.                (2) X   X   X   X                (3) X   X   X   X           2. For  these reasons and those which we will give      in our  judgment later,  we dismiss  the writ  petition      filed in  the Calcutta High Court which was transferred      for disposal  to  this  Court.  All  orders,  including      interim orders,  passed by  the Calcutta High Court are      hereby set aside. Civil Appeals 739 to 742 of 1982 will      stand disposed  of in the light of the dismissal of the      writ petition, out of which they arise.           3.  X    X    X    X           4.  X    X    X    X      Does Hassan’s  case enjoin  that no  such interim order can ever be passed by the High Court ?      The relevant  extract from  the conclusion  recorded in Hassan’s case  has been  reproduced hereinabove.  Of course, the exact  parameters of  the decision  and the  true  ratio cannot be  known till  the judgment  containing  reasons  is born. As  on today  no one  can predict what exactly will be decided by  the Court  in Hassan’s  case when  the  judgment

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eventually comes  to be  pronounced (who  can make  a  guess about the  colour or  shade of  the eyes of a child which is yet to  be born  ?). But  it can be reasonably said that the following: extract.           "The imminence  of  the  electoral  process  is  a      factor which  must guide  and  govern  the  passing  of      orders  in  the  exercise  of  the  High  Court’s  writ      jurisdiction.  The  more  imminent  such  process,  the      greater ought to be the reluctance of the High Court to      do anything,  or direct anything to be done, which will      postpone  that   process  indefinitely  by  creating  a      situation in which, the Government of a State cannot be      carried on  in accordance  with the  provisions of  the      Constitution." warrants the view that Hassan’s case does not enjoin that an interim order  of such  a nature  can never be passed in any situation. If that 568 were not  so,  the  Court  would  not  have  said  (1)  that imminence of  electoral process is a factor which must guide and govern the passing of orders (meaning thereby that while such orders  can be  passed this factor must be accorded due consideration) and (2) that "more imminent such process, the greater ought  to be  the reluctance of the High Court to do anything or  direct anything  to be done which will postpone the process  indefinitely" (which means it must be done only with reluctance  when elections are imminent.) The aforesaid statement of  law made in the context of "general elections" does not warrant the view that Hassan’s case enjoins that an election programme  cannot be  postponed even for a few days even  in   the  case  of  a  by-election,  whatever  be  the situation, and  whatever be  the circumstances, in which the High Court  is called  upon to exercise its jurisdiction. It is therefore not unreasonable to proceed on the premise that even according  to Hassan’s  case the Court has the power to issue an interim order which has the effect of postponing an election  but   it  must   be  exercised   sparingly   (with reluctance) particularly  when the result of the order would be to  postpone the installation of a democratically elected popular government. The portion extracted from the operative order in  Hassan’s case brought into focus a short while ago which adverts to "imminence of elections" and to "directions which will  inevitably result  in indefinite postponement of elections to  legislative bodies  which are the very essence of the  democratic functions  of our Constitution" leaves no room for  doubt that the observations were being made in the context  of  the  expiry  of  the  term  of  legislature  as envisioned by  Article 172  of the Constitution of India and consequential general  elections for  such legislature. This must be  so because the legislature would stand dissolved on the expiry  of the  term, and  a new  legislature has  to be elected. It is in this context (presumably) that a reference is made  to "imminence of elections". For a by-election like the one  we are  concerned with, there can be no question of "imminence" or  "indefinite postponement of elections" which would stall  the installation  of a  democratically  elected government. It is no body’s case that the party position was such that  the result  of the  election to  this vacant seat would have  tilted the majority one way or other. No oblique motive has even been hinted at. The High Court was therefore not unjustified  in proceeding on the assumption that it had such a power.      Does the  ad-interim order  passed by  the  High  Court merit being  upturned in  exercise of the jurisdiction under Art. 136 of the Constitution of India ?

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569      The only  question which arises is whether the presence was a  case where  the High Court could not have granted the ad-interim order.  Be it realized that if the High Court had not granted  the order  and the  Election Commission had not chosen to  appear on or before April 18, 1984 the High Court would have  perhaps become  powerless  to  pass  any  order, whatever be  the justification  for it,  as the  "electoral- process" would have ’actually’ commenced. Can the High Court then be  faulted for  passing the impugned order faced as it was by  an unprecedented  situation like the present? On the one hand  the Election  Commission  appeared  to  have  been altogether  oblivious   to  the  dimension  as  regards  the bonafide apprehension pertaining to the life and security of the National  leaders who might address public meetings, the candidates, the  officers engaged  in election work, and the voters. The  danger was  further aggravated  in the  face of open threats  held out  to the lives of the National leaders of different  political parties.  What is more, the Election Commission has  shown total  unawareness of the circumstance that public  meetings were  prohibited under  Section 144 of the Code  of Criminal Procedure in the constituency going to the polls.  On  the  other  hand  the  only  consequence  of granting a  stay would  have been  to postpone  the election programme by  a few  days  in  the  event  of  the  Election Commission not  choosing to  appear in  the Court  (to  show cause why  the ad-interim order should not be made absolute) on or before April 18, 1984 which was the scheduled date for issuance  of   the  notification   announcing  the  election programme.  The  Election  Commission  could  have  appeared before the  High Court  and got  the stay  vacated  in  time instead of  approaching this  Court by  way of  the  present appeal by  Special Leave.  The Election Commission could not have failed  to realise  that no  serious consequence  would have flowed  from  the  impugned  order  even  if  stay  was vacated, not  immediately, but a few days later, for, it was only a  by-election to  one single  seat of  no significance which  would  not  have  resulted  in  postponement  of  the installation of  an elected government. Worse come to worse, the by-election  could not  have been  held along  with  by- elections in  other States  on the  ’same’ day. The Election Commission has not been able to show what possible detriment would have  been suffered  if the by-election could not have been so  held on  that particular day. If the High Court was prima facie  satisfied  that  the  Election  Commission  had failed to  take into  account vital  matters and appeared to have acted  on  non-consequential  considerations,  and  had acted arbitrarily  in turning  down the request of the State Government as also the Chief Election Officer of 570 Haryana, why  could the  High Court  not grant  a stay?  And should  this  Court  interfere  in  such  a  fact-situation? Learned  Counsel   for  the   Election  Commission,   though repeatedly requested, is unable to point out either from the affidavit filed  on 18th,  or from  the additional affidavit filed on  the 19th,  that the  aforesaid factors  were taken into reckoning  by the  Commission. It  is not  stated  that these factors  do not  exist or  have been  invented by  the State Government  with any  oblique motive.  The contents of the affidavits  filed by the Election Commission reveal that it was  altogether oblivious  to all  the  relevant  factors recounted earlier.  There is  nothing to  show that a single factor was  present  on  its  mental  screen.  The  Election Commission has  not apprised the Court as to how and why any or all of these factors were considered to be immaterial. No

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inkling is  given as  to how the Election Commission thought that the  problems could  be overcome.  By what  process  of self-hypnotism did  the Election  Commission convince itself that free  and fair elections could be held even when public meetings were  banned in  the constituency? How, and by what process  of   ratiocination  did   the  Election  Commission convince itself  that free  elections could  be  held  in  a situation where  the candidates  would consider it hazardous to contest  or to  indulge in  election propaganda, and even voters would  be afraid  to vote? If the Election Commission had any  idea as  to how  the hurdles  could be  crossed and problem resolved, it has chosen not to reveal its perception of the  matter. The  Election Commission  perhaps  has  good answers. But silence is the only answer which has been given by the  Commission as  also its  counsel on  this aspect. "I know    my-job-and-it-is-none-of-the-business-of-the-Courts" seems to  be the  attitude. All  that has been stated by the learned counsel  for the  Commission is  that everything was considered (without  even  disclosing  the  content  of  the expression ’everything’).  Counsel has  of course  set up an alibi by  saying that  affidavits  had  to  be  prepared  by burning mid-night  oil. But  in that  case the concentration would have been on everything of importance and what was the essence of  the matter  could not  have been  overlooked  or forgotten. And  if it  has escaped attention, the conclusion is inevitable  that the Election Commission had not attached due importance  and weightage  to the  basic problem and had not applied itself seriously to a serious problem.      The fact  is established  that the  Chief Secretary and the  Chief  Election  Officer  of  Haryana,  had  personally apprised the  Chief Election  Commissioner of the prevailing situation sometime  before 14th  April, 1984.  The  Election Commission has not even disclosed 571 this fact  in the  petition or  in the additional affidavit. Nor has  the Election  Commission apprised  us  as  to  what transpired at  the meeting. The Election Commission has been less than  candid even  to this  Court. No  doubt the  Chief Election Commissioner  is holding  a responsible  post.  But that does  not make him infallible or render his decision or act any  the less  arbitrary if  he  has  failed  to  inform himself of all the relevant factors and has failed to direct his attention  to the core problem. It is no doubt true that theoretically the Election Commission can still postpone the polling, if  it is  so minded. But should the Court remain a passive spectator  in this extraordinary situation and leave the Nation  to the  mercy of  an individual, however high be his office,  when it is evident that he has secluded himself in his ivory tower and has shut his eyes to the realities of the situation  and closed  his mind to the progrrosis of the matter. The  Court can  certainly satisfy itself whether the Election Commissioner had kept his eyes, ears and mind open, and whether  he was  able to  show that all relevant factors including the  consideration as  to what advantage was to be secured as  against the  risk to  be faced, entered into his reckoning. If this is not shown to have been done, as in the present case,  his decision  is vitiated  and the Court need not feel  helpless.  The  High  Court  was  therefore  fully justified in passing the impugned order.      Appeal is accordingly dismissed. S.R.                                         Appeal allowed. 572