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PETITIONER: LAKSHMI CHARAN SEN AND ORS ETC.

       Vs.

RESPONDENT: A.K.M. HASSAN UZZAMAN AND ORS. ETC.

DATE OF JUDGMENT08/05/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) DESAI, D.A. SEN, A.P. (J) VENKATARAMIAH, E.S. (J) ISLAM, BAHARUL (J)

CITATION:  1985 AIR 1233            1985 SCR  Supl. (1) 493  1985 SCC  (4) 689        1985 SCALE  (2)384  CITATOR INFO :  F          1986 SC 103  (12)  R          1988 SC  61  (6)

ACT:      Constitution of India 1950      Article  226-Election   process-Interference  by   High Court-Postponement of elections-Interim orders and direction Passing of-Caution and reluctance-Necessity of      Article  324-Electoral   rolls-Preparation  of-Election Commission not having own staff-Central and State Government staff-Enumerators-Objections in  list-Disposal of-Efficiency and impartiality - Emphasised.      Article  329  (b)  -  Electoral  rolls-Preparation  and publication of-Whether  part of election process-Allegations of irregularities  in electoral  rolls-Interference by  High Court in electoral matters-Whether bar to interference.      The Representation  of People  Act 1950  Section  14(b) and 21.      The Representation of People Act 1951.      Election  Commission-Giving   of  directions  to  Chief Electoral Officers-Whether  have force  of law-Violation  of directions-Whether  create   rights  and  obligations  under Election Law.      Electoral Roll-Preparation and revision-What is-Special revision- When arises-Qualifying date in regard to electoral roll-What is      The Registration  of Electors Rules 1960 Rules 10 to 20 and 26.      Conduct of Election Rules 1961      ’basic roll  of constituency-What  is-Voters list-Basis of free  and  fair  elections-Inclusion  in  electoral  roll deletion of  ineligible persons  wrongly included-Rights  of eligible Voter-Fee  of 10  p. for  challenge Levy of-Whether unreasonable      Administrative Law      Constitutional institutions and functionaries Discharge of duties by-presumption of existence of bonafide - Preserve and protect integrity of bona- 494 fides -  Preserve and  protect Integrity  of  constitutional institutions-Duty of  courts.

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HEADNOTE:      A writ  petition was  filed in  the Calcutta High Court claiming the  following reliefs: (1) That the Chief Election Commissioner and  the Chief  Electoral Officer be restrained from  acting,   either  by   themselves  or   through  their subordinates, in pursuance of the instructions or directions issued by  them from  time to time; (ii) that they should be restrained from  scoring out  any names  from the  electoral rolls which  were finally  published; (iii) that they should be restrained  from issuing  or publishing  any notification under s.  15 (2) of the Representation of People Act of 1951 without preparing  the electoral  rolls de  novo  after  the disposal of  the appeals  against orders  whereby claims and objections were  decided;  and  (iv)  that  they  should  be restrained  from   holding  elections  to  the  West  Bengal Legislative Assembly  until the  disposal of all the claims, objections and  appeals under  the Representation  of People Acts of 1950 and 1951,      The writ  petitioners who  were eight  in  number  were enrolled as  voters in the electoral roll of the West Bengal Legislative Assembly.  Some of  them were  office-bearers of political parties  like the West Bengal State Muslim League, West Bengal  Unit of  the Janta  Party, All  India Christian Demarcate Party  and West Bengal Congress Legislative Party. It was contended in the writ petition that the guidelines or instructions  issued  by  the  Chief  Electoral  Officer  by circular dated  March  12,  1981  asking  all  the  District Officers and he sub - Divisional Officers to make a de novo intensive revision  of the  electoral rolls  for the general election to  the Legislative  Assembly, West Bengal, without reference to  the then  existing electoral  rolls are vague, unreasonable and arbitrary as a result of which it would not be possible  to hold free and fair elections on the basis of those rolls,  and that the guidelines or instructions issued were blatantly  violated in,  certain cases,  and  that  the exact  extent  of  the  polling  areas  was  not  demarcated clearly, no house-to-house visits were made and the names of the members of each household who had attained the age of 21 year on  the prescribed  date were  not recorded  in several cases By a Memorandum dated May 12, 1981 which was after the work of  the intensive  revision of  the electoral rolls had begun, the  Election Commission  of India informed the Chief Electoral  Officers   of  all   the  States  and  the  Union Territories  that   its  attention   was  drawn  to  certain irregularities in  the matter of revision of electoral rolls and that  in many  cases lists pertaining to certain polling booths were  found to be defective. The Draft Electoral Roll which was  published in  September 1981  were manipulated by including therein  not only Bangladesh Nationals but minors, dead persons  and refugees  from Assam  who have  living  in refugee camps.  These manipulations  in the  electoral  roll became possible  because of  the deliberate  infiltration of the CPI  (M) members of the Government staff in the election machinery as  enumerators. The  infirmities in the electoral rolls were  of such  a basic  and  inherent  character  that unless a further de novo revision of the electoral rolls was undertaken, it  would be unfair to allow the elections to be held on  the basis  of the  said electoral rolls. Complaints relating to  individual cases  were  sent  to  the  Election Commission but  no attention was paid to them. The scheme of the Election  Law and  the rules  framed thereunder  are  so designed that unless all the objections were

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495 decided by  the appellate  authority  and  the  Registration Officer and  the electoral rolls are correspondingly amended especially when  a de novo revision A of the electoral rolls is directed  to be  made it  is  impermissible  to  issue  a notification under  s. 15  (2) of  the Act  of 1951.  It was further alleged that nearly 8 lakhs complaints were filed in regard to  the voters’ lists but no notice was issued to the concerned persons  while deciding those complaints. In a few cases where  notices were  sent not enough time was given to the complaints to appear before the concerned authorities to make their contentions. Article 329 was no bar to the filing the writ  petition under Article 226 as the petitioners were not challenging the ’commencement of polling’.      On February  12, 1982  a single judge of the High Court issued a  rule on  the writ  petition and  granted  the  ad- interim relief prayed for. The writ petition was directed to be listed  on February  19, 1982 when, after some arguments, the matter  was adjourned  to February  25, 1982. Thereafter four special  leave  petitions  were  filed  in  this  Court against the ad-interim orders passed by the Single Judge. On February 23,  1982 certain  directions were issued in one of those special  leave petitions and it was later ordered that the single  judge of  the High  Court should proceed to hear the matter.      The writ  petition was  heard by  the Single  Judge  on February 25,  1982, who directed the respondents to the writ petition to  take  certain  steps  before  issuance  of  the notification under  section 15  (2) of  the Act  of 195], in effect, confirming  the ad-interim  order dated February 12, 1982.      In the four appeals to this Court, the writ petitioners who succeeded  in obtaining  interim orders  from  the  High Court are  in the  array  of  respondents.  Three  of  those appeals were  filed by  persons who  contended that the High Court ought not to have interfered with the election process which was  imminent. The  fourth appeal  was  filed  by  the Election   Commission   of   India,   the   Chief   Election Commissioner, and  the Chief Electoral Officer who contended that the  High Court  had no  jurisdiction to  entertain the writ  petition   by  reason   of  Article  329  (b)  of  the Constitution, that  the election  process which  had already begun should not have been interfered with by the High Court and that  the recommendation  made to  the Governor  of West Bengal by the Election Commission under s. 15 (2) of the Act of  1951  was  being  thwarted  by  frivolous  and  baseless objections raised  by the writ petitioners. In their counter - affidavits  to the writ petition it was contended that the electoral rolls  which were  prepared de novo after house to house enumeration  in  198  1  and  which  were  intensively revised in  all the 294 assembly constituencies were finally published with  the supplements  on December  31,  1981.  On January 1,  1982 the  finally published electoral rolls with the supplements  were published  in draft  in the respective polling  areas.  Claims  and  objections  were  specifically invited in  the prescribed  forms  under  the  law.  It  was further alleged  that the  petitioners  were  espousing  the cause of  unnamed and  undisclosed persons  through  a  writ petition, which  does not  claim to possess a representative capacity and  that the  upshot of  the petition is that some three crores of voters were being deprived of an opportunity to exercise  their franchise  in order that an investigation should be  made as  to whether  the names  of some  5  lakhs persons should be included in or excluded from the electoral roll.

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496 ^      HELD:      [By the Court]      The Writ Petition under Article 226 of the Constitution field before  the Calcutta  High Court  and transferred  for disposal to  this Court  be dismissed.  All orders including stay, and  the interim  order  granted  by  the  High  Court vacated and  set aside.  The four  Civil Appeals  will stand disposed of  in the  light of  the  dismissal  of  the  writ petition. [525 G-H]      [Per   Majority    Chandrachud,   CJ.,    Desai,   Sen, Venkataramlah JJ.]      1.(a) 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, 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 tho 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 tho  jurisdiction to entertain the Writ Petition  and to  issue appropriate directions therein, no High Court in the exercise of its power 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 1522 F-H]      (b)  The   High  Courts  must  observe  a  self-imposed limitation on  their power  to act  under  Article  226,  by refusing to  pass orders  or  given  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. That limitation  ought to  be observed  irrespective of  the fact whether  the preparation  and publication  of electoral rolls are  a part  of the  process of  ’election’ within the meaning of Article 329 (b) of the Constitution. [523 C-D]      2. (a)  The Election Commission, or the Chief Electoral Officer or  the Electoral  Registration Officers have not in any manner  acted in  violation  of  the  Constitution,  the Representation of  the People  Acts of 1950 and 1951, or the Registration of Electors Rules 1960. The Election Commission issued the various directives ex debito justiae as steps-in- aid of  a fair  election. They are being observed faithfully and honestly,  and shall  be so  observed until the deadline mentioned in  section 23  (3) of the Act of 1950. The manner in which  the directives  are being  implemented  cannot  be regarded as unreasonable. [523 F-G]      (b) It takes years to build up public confidence in the functioning of  constitutional institutions,  and  a  single court hearing,  perhaps, to  sully their  image  by  casting aspersions upon  them. It  is the  duty  of  the  courts  to protect and  preserve the  integrity of  all  constitutional institutions, which  are devised  to foster  democracy.  And when the method of their functioning is questioned, which it is open  to the  citizen to  do,  courts  must  examine  the allegations with more than ordinary care. [523 H; 524 A-B] 497      (c)  The   Election  Commission,  the  Chief  Electoral Officer and  the Electoral  Registration Officers  will  not generate a  feeling in  the minds  of the  public  that  the elections held  hitherto in our country over the past thirty

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years under  the superintendence,  direction and  control of successive Election  Commissions have  been a pretense and a facade. The  public ought  not to  carry any such impression and the  voters must  go to the ballot-box undeterred by the sense of  frustration which  the  petitioners’  charges  are likely to  create in  their minds.  There is no substance in the accusation  that the  voters’ lists  have been rigged by the  election  authorities  with  the  help  of  enumerators belonging to any particular political party. Enumerators are mostly drawn  from amongst  teachers and Government servants and it  is difficult to imagine that thirty five years after independence, they  are totally colour - blind. They are the same in  every State  and every  constituency. The safeguard lies in  the  efficiency  and  impartiality  of  the  higher officers who  have to decide objections filed in relation to the voters’  lists. That  safeguard is  not  shown  to  have failed in the instant case. [524 D-G]      (d) There  is no voter in our country who does not have or cannot  raise sum of ten paise to ventilate his objection to the voters’ list. 1525 D]      3. Even  assuming, that the preparation and publication of electoral  rolls  are  not  a  part  of  the  process  of ’election’ within  the meaning  of Article 329 (b), the High Court ought  not to have passed the impugned interim orders, where by  it not  only assumed  control  over  the  election process but,  as a  result of  which, the  election  to  the Legislative Assembly  stood  the  risk  of  being  postponed indefinitely. [520 D-E]      4. Very often, the exercise of jurisdiction, especially the writ jurisdiction, involves questions of property rather than of Power. The fact that the Court has the power to do a certain thing does not mean that it must exercise that power regardless of the consequences. [520 F]      5. Holding  the elections  to legislatures  and holding them  according   to  law  are  both  matters  of  paramount importance. On  the one  hand is  the individual’s statutory right of  franchise, on  the  other  is  the  constitutional obligation imposed by Article 168. [513 A]      6. Preparation  and revision  of electoral  rolls is  a continuous  process   not  connected   with  any  particular election. [513 C]      7. The right to be included in the electoral roll or to challenge the  inclusion of  any name in the roll is a right conferred upon  an individual  and not  upon  any  political party. 1513 F]      NP   Ponnuswami    v.   Returning    Officer   Namakkal Constituency [1952]  SCR 218.  Rampakavi Ravappa  Belagali v Jatti [1970] 3 SCC 147. Mohinder Singh Gill v Chief Election Commissioner New Delhi [1978] 2 SCR 272. referred to. 498      [Per Baharul Islam J. dissenting]      1. It  cannot be  said in the instant case, that in the revision  of  the  electoral  roll,  all  possible  care  as enjoined by  the letter  and spirit  of the Constitution and the statutes was taken. [539 E]      2. A political party is not entitled to, under the law, to  receive   any  notice  but  in  the  background  of  the illiteracy and ignorance and lack of political consciousness of a  large section  of the electorate, it is but proper and in consonance  with the  spirit of  the Constitution and the Election Laws  that notices  be  given  to  the  leaders  of political parties  who file complaints or omnibus complaints and claims and objections. [537 G-H]      3. No  persons who  are members of a political party or of an  association affiliated to a political party should be

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appointed to  be enumerators of voters so that there may not be any  foul play  or rigging  in  the  preparation  of  the electoral roll.  Enumarators should  be persons  who are not affiliated, either  directly or  indirectly to any political party, whether  in power  or not;  for this  purpose, it  is desirable that  only Government  officers including teachers of  Government   schools  and   colleges  may  be  appointed enumerators  and  not  of  non-government  organizations  or institutions, unless their rules debar their employees to be members of political parties. [539 C-D]      4. The  basic needs  of  a  citizen  of  any  civilized country are food, clothing. education and health services. A citizen  of   any  modern   democratic  State  has  also  an additional need, which is a political right. It is the right of participation  in the  governance of the country directly or indirectly. This participation of an adult citizen of our country starts  with the  right to  vote for a candidate and elect a representative of his choice to the legislatures and other  self-governing   institutions.  This  right  to  vote presupposes a  right to  be enrolled as an elector provided, he  has  the  requisite  qualifications  prescribed  by  the Constitution and the election laws and other statutes and he has none  of the disqualifications enumerated in those laws. [527 C-D]      5.(i) The  basis of election on adult franchise and the right to be registered as a voter at an election of a person with   the    requisite   qualifications   and   having   no disqualifications   are    constitutional   mandates.   (ii) Parliament has  made pro  visions for  the  purpose  of  the preparation of  the electoral  rolls and  matters  connected therewith in  the Representation  of People Act 1950 and the Registration of  Electors Rules  1960. For  the  purpose  of conduct of  election to  the Houses of Parliament and to the Houses of State Legislatures and to matters relating to such elections in  the Representation of People Act, 1951 and the Conduct of Election Rules 1961. [527 G-H; 528 A]      6. The basis of a free and fair election is the voters’ list prepared  in accordance  with the 1950 Act and the 1960 Rules. If this is not so done, the electoral rolls will have no sanctity  and  the  consequent  election  will  also  not inspire confidence of the people. 1529 C] 499      7. Article  324 shows that for the purpose of preparing the electoral  rolls  for  the  purpose  of  conducting  the elections, the  Election Commission,  A although a very high and independent  constitutional functionary, does not have a staff of  its own  appointed and  removable by it. The staff made available  to the  Election Commission  for  the  above purposes are  the  employees  of  a  State  or  the  Central Government. They  are  not  independent  like  the  Election Commission, itself,  but are  liable to be influenced by the concerned Executive  Government.  Illegal  omission  of  the names of  persons who were qualified from the electoral roll or inclusion  of the  names of persons who are not qualified or who have disqualifications has for reaching consequences. [528D-E]      8.  Section  21  of  the  1950  Act  provides  for  the preparation and revision of electoral rolls. Qualifying date has been  defined under  Section 14  (b) as  the "1st day of January of  the year  in which it is so prepared or revised" in  relation   to  the  preparation  or  revision  of  every electoral roll  under Part  III. It  is not  permissible  in normal circumstances to hold a general or bye-election on an electoral roll unless it is revised under sub-section (1) of section 21.

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                                           [530 A-B; 531 G]      9. The  Elections Rules 1960 by Rules 10 and 11 provide for the  publication of the draft roll and further publicity of the  roll and the notice in Form 5. A combined reading of Rules 18,  19 and  20  show  that  they  are  based  on  the principle of natural justice keeping in view the right of an eligible voter  to be included in the electoral roll and the right of  any person  to see that the names of a persons not so eligible,  but wrongly  included earlier, be deleted from the electoral  roll. Rule  21 gives  suo moto  power to  the registration officer to include names inadvertently omitted. Rule 21 (A) gives suo moto power to the registration officer to delete  the names of dead electors or of persons who have ceased  to  be  or  are  not  ordinarily  residents  in  the constituency. Rule  22 is  very important. It gives power to the registration officer to prepare a list, after compliance of Rules  18, 21  and 21A and publish the roll together with the list  of amendments  by making  a complete  copy thereof available for  inspection and displaying a notice in Form 16 at his  office. Under  sub-rule (2)  of  Rule  22,  on  such publication, the  roll together  with the list of amendments shall be  the electoral roll of the consistency". Under sub- rule (3)  this roll  shall  be  the  ’basic  roll"  for  the constituency. Rule  23 provides for appeal from the decision of the registration officer under Rules 20, 21 and 21A to an appropriate  authority.   These  provisions   disclose   the importance to  be given  to the  preparation of an electoral roll.                                      [532 C; 533 F-H; 534 A]      10. A  perfect electoral  roll is  not possible. But at the same  time, it  must be  remembered that the name of any eligible voter  should not  be omitted  or the  name of  any disqualified person  should not be included in the electoral roll,  in  violation  of  any  constitutional  or  statutory provisions. The  error, when pointed out, has to be removed. It must  also be  remembered that  a large  section  of  the electorate of  our country  consist of illiterate people and not politically  so conscious as to see that their names are in the  electoral roll.  A duty  is cast  on  the  political parties to  educate the  electorate and  take steps that the names of  eligible persons  are included  in  the  electoral rolls and that 500 names of ineligible persons are deleted. Erroneous inclusion or omission of the names of a few persons may not be of much consequence. But  if a  considerable number  of the names of such persons  are either  wrongly included  in, or  excluded from, the electoral roll, it will be of great consequence to a  particular   party  either  or  in  the  opposition.  The electoral  registration   officer,  therefore,   cannot   be fastidious as  to whether  the  claims  and  objections  are strictly in  prescribed forms.  Even when  there are omnibus objections by  a political party or political parties, as in this case,  filing claims and or objections, such claims and objections have  to be  inquired into  and necessary  action taken so  that the  correct opinion of the electorate may be reflected in the result of the election. [534 B-G]

JUDGMENT:      C[VIL APPELLATE  JURISDICTION: Civil  Appeal No. 739 of 1982.      From the  Judgment and  Order dated February 12 and 19, 1982 of  the Calcutta  High Court  in Civil  Rule No. Nil of

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1982.                              AND                 Civil Appeal No. 740 of 1982      From the  Judgment and Order dated February 12, 1982 of the Calcutta High Court in Civil Rule No. (W) of 1982.                              AND                 Civil Appeal No. 741 of 1982      From the  Judgment and Order dated February 25, 1982 of the Calcutta High Court in Civil Rule No. (W) of 1982.                             AND                 Civil Appeal No. 742 of 1982      From the Judgment and Order dated February 12, 1982 and February 25,  1982 of  the Calcutta High Court in Civil Writ No. (W) of 1982.                              AND                Transferred Case No. 3 of 1982              RR Venugopal, S.N. Kacker, N.N. Gooptu, Soli J. Sorabjee,  Somnath  Chatterjee,  R.K.  Garg,  F.S.  Nariman, Pronab Kumar 501 Chatterjee,  H.K.   Puri,  Miss   Radha   Rangaswamy,   N.K. Chakravarthy and B. V. Desai for the appearing Appellants.      A.K. Sen,  S.S. Ray, N. Sen. B.P. Banerji, M. Mezumdar, Kapil Sibal,  Ashok Ganguly,  L  K  Gupta,  U.N.  Bannerjee, Parijat Sinha  and P.R. Seetharaman for the Petitioners, and for the  Respondents 1,  8 and 14 in C.A. No. 739-41 of 1982 and for Respondent No. 6 in 742 of 1982.      L.N. Sinha  Att. Gen., K. Parasaran, Solicitor General, Milan  Kumar   Banerjee,  Addl.   Solicitor  General,   K.S. Gurumoorthy, Miss  A. Subhashini,  Ajit Panja and Mrs. Mithu chakravarti for the Respondents.      M.C. Bhandare,  P.R. Mridul,  Mrs.  S.  Bhandare,  A.N. Karkhanis, Miss  C.K  Sucharita,  T.  Sridharan  and  Vindet Kumar, for the Respondents.      P.H. Parekh,  R.N. Karanjawala  for the  Interveners in C.A. No. 739 of 1982. Indian Express News Papers (Bombay)      Miss Rani Jethmalani for the Intervener. (Bar Council)      R.C. Kaushik  for the  Intervener in  C.A. No.  742  of 1982. (Democratic Society).      The following Judgments were delivered      CHANDRACHUD,  C.J.:   There  are  four  appeals  and  a Transferred Case before us. The appeals arise out of interim orders passed by a learned Single Judge of the Calcutta High Court on  February 12  and 19,  1982 which were confirmed by him on February 25, 1982. Those orders were passed in a Writ Petition filed  under Article 226 of the Constitution asking for the writs of mandamus and certiorari, directing that the instructions issued by the Election Commission should not be implemented by  the Chief Electoral Officer and others; that the revision  of electoral rolls be undertaken de novo; that claims, objections  and appeals  in regard  to the electoral roll be  heard and disposed of in accordance with the rules; and that,  no notification  be issued under section 15(2) of the Representation  of the  People  Act,  1951  calling  for election to  the West Bengal Legislative Assembly, until the rolls were duly revised. 502      Transferred Case  No. 3  of  1982  is  that  very  writ petition. It  was   withdrawn for hearing and final disposal to this  Court by  an order  dated March  4, 1982. That writ petition was  filed by  eight persons  against the  Union of India.  The   Election  Commission,   the   Chief   Election Commissioner and  the Chief  Electoral Officer, West Bengal. The writ  petitioners, who  succeeded  in  obtaining  interm orders from  the High  Court are in the array of respondents

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in the four appeals. Three out of those appeals are filed by persons who  contend that  the High  Court ought not to have interfered with the election process which was imminent. The fourth appeal  No. 742  of 1982,  is filed  by ’the Election Commission of India, the Chief Election Commissioner and the Chief Electoral  Officer, West  Bengal. Their  contention is that the  High Court  had no  jurisdiction to  entertain the writ  petition   by  reason   of  Article   329(b)  of   the Constitution, that  the election  process which  had already begun should not have been interfered with by the High Court and that  the recommendation  made to  the Governor  of West Bengal by the Election Commission under section 15(2) of the Act of  1951 was being thwarted by ’frivolous and base less’ objections raised by the writ petitioners.      The writ  petitioners are  enrolled as  voters  in  the electoral roll  of the West Bengal Legislative Assembly. The validity of  several provisions of the Representation of the People Act,  1950, the  Representation of  the  People  Act, 1951, the  Registration of  Electors Rules,  1960,  and  the Conduct of  Election Rules,  1961 was challenged in the writ petition but,  it is unnecessary to spend any time over that matter since,  the validity  of none of those provisions was questioned  before  us.  Shorn  of  that  challenge,  it  is doubtful whether  the  High  Court  would  have  passed  the impugned orders.  Be that  as it may, what is to be noted is that the  points which  are raised  for our consideration do not involve  the validity  of any  law and are restricted to illegalities  and   irregularities  alleged   to  have  been committed by  the Chief  Electoral Officer, West Bengal, and by  the  officers  subordinate  to  him  in  regard  to  the preparation of  the electoral  rolls which would be used for the purposes  of election  to the  West  Bengal  Legislative Assembly.      The Chief  Electoral Officer, by a Circular dated March 12. 1981,  asked all  the District  Officers  and  the  Sub- Divisional Officers  under him  to make  a de novo intensive revision of  the electoral rolls for the general election to the Legislative  Assembly, West Bengal, without reference to the then existing electoral rolls. The grievance of the writ petitioners is that the guidelines or instructions issued by 503 the Chief  Electoral Officer were not only not adhered to by the subordinate  officers but  were  blatantly  violated  in certain cases.  It is   alleged, for example, that the exact extent of  the polling  areas was not demarcated clearly, no house-to-house visits  were  made  and,  the  names  of  the members of  each household  who had  attained the  age of 21 years on  the prescribed  date were  not recorded in several cases. According to them, the guidelines issued by the Chief Electoral   Officer for  a de novo intensive revision of the electoral rolls  are vague, unreasonable and arbitrary, as a result of  which, it  would not be possible to hold free and fair elections on the basis of those rolls.      By a Memorandum dated May 12, 1981, which was after the work of  the intensive  revision of  the electoral rolls had begun, the  Election Commission  of India informed the Chief Electoral  Officers   of  all   the  States  and  the  Union territories  that   its  attention   was  drawn  to  certain irregularities in  the matter of revision of electoral rolls and that  in many cases, lists pertaining to certain polling booths were found to be, defective. For example, the polling areas covered  by the    polling  booths  were  not  clearly demarcated, the  polling booths  were not  compact, care was not taken to ensure that voters belonging to weaker sections or minority  communities would  be able to reach the polling

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booths and  that the  Commission’s instructions that polling booths should  be set  up in  colonies inhabited by Harijans and other  weaker sections  of the  society, even though the number of  voters may be less than 500, were not carried out appropriately.   According    to   the    petitioners,   the instructions issued  by the  Election  Commission  were  not carried out  in the  State of West Bengal. They also contend that  the   instructions  issued   by  the   Chief  Election Commissioner in  the Circular  dated May  12, 1981  were  at variance with the instructions issued by the Chief Electoral Officer, West  Bengal on  March 12,  1981, thereby making it difficult for the Electoral Officers to carry out their duly appointed duties.  The petitioners have then referred in the writ petition to radiogrammes dated June 21 and July 4, 1981 issued by  the Election Commission. It is contended that the directions issued  in those  radiogrammes are  arbitrary and illegal for various reasons.      The further  grievance made  by the  petitioners in the writ petition  is that the preparation of electoral rolls on the basis  of polling  stations  was  made  arbitrarily  and improperly in  that, the  total number  of voters in several constituencies,  after   the   house-to-house   enumeration, differed in  material particulars  from the  total number of voters in  the Draft  Electoral Roll  which was published in the month of 504 September 1981. It is alleged that the Draft Electoral Rolls were manipulated  by including  therein not  only Bangladesh Nationals but  minors, dead  persons and refugees from Assam who were  still living  in refugee  camps. According  to the petitioners, these  infirmities in  the electoral rolls were of such a basic and inherent character that unless a further de novo  revision of  the electoral rolls was undertaken, it would be  unfair to  allow the  elections to  be held on the basis of  the revised  electoral rolls. The revision work of the electoral  rolls which  was undertaken  in  West  Bengal could not  possibly be  finished within  the time prescribed since, so the petitioners say, the State was passing through a difficult  period, particularly  in the  matter of law and order and  because of natural calamities. The infirmities in the revised  electoral rolls  which are  pointed out  by the petitioners may  be summed  up as the inclusion of teenagers and aliens  therein, exclusion  of persons who are qualified to be  enrolled as  voters, the  incorporation of fictitious entries and, mistakes and distortions in names and surnames. One of  the grievances  of the  petitioners  is  that  these manipulations in the electoral rolls became possible because of the  deliberate infiltration of the CPI(M) members of the Government staff  in the  election machinery.  It is alleged that complaints  relating to  individual cases  were sent to the Election Commission but, no attention was paid to them.      According  to   the  petitioners,  the  scheme  of  the Election law  and the rules framed thereunder is so designed that unless  all the objections are decided by the appellate authority and  the Registration  officer and  the  electoral rolls are correspondingly amended, especially when a de novo revision of  the electoral  rolls is directed to be made, it is impermissible to issue a notification under section 15(2) of the Act of 1951.      Yet another grievance of the petitioners is that nearly 8 lakhs complaints were filed in regard to the voter’s lists but, no  notice was  issued to  the concerned  persons while deciding those complaints. In a few cases where notices were sent, not  enough time  was given  to  the  complainants  to appear  before  the  concerned  authorities  to  make  their

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contentions. Indeed,  the petitioners  so contend, the claim of the  Election Commission  that it had already looked into most of  the complaints was, on the face of it, exaggerated. Nearly 8  lakhs complaints are alleged to have been filed by the lndian National Congress by way of a sample survey which related to  100 out  of 294  constituencies in  the State of West Bengal. 505      The petitioners  wind up the writ petition by asserting that the  ban imposed  by Article  329 of  the  Constitution cannot prevent  them   from filing  the writ  petition under Article  226   since,  they   were   not   challenging   the ’commencement  of  polling’.  Their  challenge  was  to  the constitutionality of  the law  relating to elections and the arbitrary actions  on the  part of  the Election Commission. The writ  petition contains exactly 100 grounds on the basis of which  the holding of the impending elections to the West Bengal Legislative  Assembly was  challenged.  The  Election Commission had  declared on  February 9,  1982  in  a  Press Conference that  the final  voters’ lists would be published on March  1, 1982  and that the elections may be held at any time between April and June 24, 1982.      We have  set out  the case  of the  petitioners at some length  because   their  writ  petition  was  withdrawn  for disposal by this Court. The merits of the petition are being considered for the first time here, which makes it necessary to know  the state of pleadings and the nature of the relief claimed in the petition. D      By their  writ petition,  the petitioners  ask for  the following reliefs:  (i) That the Chief Election Commissioner and the  Chief Electoral  Officer be restrained from acting, either by  themselves  or  through  their  subordinates,  in pursuance of  the instructions  or directions issued by them from time  to time; (ii) that they should be restrained from scoring out  any names  from the  electoral rolls which were finally published, (iii) that they should be restrained from issuing or  publishing any  notification under section 15(2) of the  Act of 1951 without preparing the electoral rolls de novo, after  the disposal  of  the  appeals  against  orders whereby claims  and objections  were decided;  and (iv) that they should be restrained from holding elections to the West Bengal Legislative  Assembly until  the disposal  of all the claims, objections  and appeals  under the  Acts of 1950 and 1951.      On February  12, 1982,  the learned single Judge of the Calcutta High  Court issued  a rule on the writ petition and granted ad-interim  relief to  the petitioners as prayed for by them.  The writ  petition was  directed to  be listed  on February 19, 1982 when, after some arguments, the matter was adjourned to  February 25.  Some time  later,  four  special leave  petitions  were  filed  in  this  Court  against  the adinterim orders  passed by  the learned  Judge. On February 23, 1982  certain directions  were issued  in one  of  these special leave  petitions by  a Bench  consisting of three of us, namely, D.A. Desai J., 506 A.P. Sen J. and Baharul Islam J. It was directed that, since the High   Court was seized of the writ petition and in view of the  comity amongst judicial functionaries, it was better that the  High Court completed the hearing by February 25, l 982. The  order proceeded  to say: ’It is requested that the writ petition  shall be  placed on  the Board of the learned Judge on  Wednesday, 24th  February, 1982 and shall be heard and hearing completed and order pronounced before the expiry of Thursday,  25th February,  1982.  ..  The  learned  Judge

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should proceed  to hear  the matter  without considering any direction about  production of the documents by the Election Commission or  by any  parties as  that part of the order is stayed at  the instance  of Election Commission. The parties are precluded from making any requests for adjournment."      The writ petition was called out for hearing before the learned  Judge   on  February   25,  when  he  directed  the respondents to  the writ  petition  to  take  certain  steps before the  issuance of the notification under section 15(2) of the  Act of  1951. In effect, he confirmed the ad-interim order passed on February 12, 1982.      We will  deal with the legal contentions presently but, before doing  so, we  would like  to  demonstrate  that  the grievance made  by  the  petitioners  against  the  Election Commission,  the   Chief   Electoral   Officer   and   their subordinates is  wholly imaginary  and unjustified.  We were taken through the counter-affidavits filed by Shri Narayanan Krishnamurthi, Chief  Electoral Officer,  West  Bengal,  and Shri K.  Ganesan, Secretary  to the  Election Commission, in answer to the writ petition. The facts stated therein, which are beyond the pale of controversy, afford a complete answer to the  petitioners’  contentions.  The  following  position emerges from  the affidavit  filed by  the  Chief  Electoral Officer:           Steps taken  with regard  to the intensive de novo      revision of electoral rolls in 1981 under section 21 of      the Representation  of the  People Act,  1950 read with      Rule 25  of the Registration of Electors Rules 1960 and      Rules 4 to 23 of the said Rules.      (1) The  general election to the Lok Sabha were held in early 1980.  The electoral rolls in the State of West Bengal for  all   the  294  assembly  constituencies  were  revised intensively in 1979, along with the revision of rolls in all other States  and Union  territories,  for  the  purpose  of holding that election. 507      (2) After  the said  general election to the Lok Sabha, and the  general elections to certain State Assemblies which were held  in June   1980,  the electoral rolls were revised summarily by way of special revision throughout the country, under the  new scheme  of  preparation  of  electoral  rolls polling-stationwise,  thereby   making  every  part  of  the electoral roll  compact for  a well-defined polling area and making them  as far as possible co-terminus with the polling stations which  then existed After the said special revision of the  electoral rolls,  the same were finally published by 31st December, 1980.      (3)  As   the  general   election  to  the  Legislative Assemblies of  the States  of Haryana,  Himachal Pradesh and West Bengal  were due  in 1982,  the Election  Commission of India directed  that the rolls in the aforesaid three States for all  the constituencies  should be  intensively  revised with reference  to the  qualifying date,  which  was  to  be January 1, 1981.      (4) The  Commission directed  that the  widest possible publicity should  be given  to the  programme of revision of rolls through  mass  media  and  that  a  meeting  with  the representatives  of  State  units  of  recognised  political parties should  be held  to apprise  them  of  the  revision schedule and to seek their active cooperation. E      (5) The  following programme,  as modified  later,  was approved  by  the  Election  Commission  for  the  intensive revision of electoral rolls in the State of West Bengal:      (a)  For 274  assembly constituencies,  house to  house      enumeration was  to be  completed by  June 30, 1981 and

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    for the  20 constituencies  by August  31, 1981.  Draft      publication of printed electoral rolls for 274 assembly      constituencies was  to be  made on 7.9.1981 and for the      remaining 20 constituencies on 22.10.1981.      (b)  The period  for lodging  claims and objections was      fixed between  7.9.1981 and 21.9.1981 in respect of 274      assembly  constituencies  and  between  22.10.1981  and      12.11.1981   in    respect   of    the   remining    20      constituencies. 508      (c)  Final publication  of the  electoral  rolls  after      disposal A  of claims  and objections was to be made on      31.12.1981.      (6) The  Chief  Electoral  Officer,  according  to  the instructions of  the Election  Commission, issued  orders to the  Electoral   Registration  Officers   of   21   assembly constituencies in  Calcutta where house to house enumeration was first  taken up, that 2 copies of the electoral rolls as finally published should be supplied by December 31, 1980 to recognised political  parties for  the purpose  of intensive revision. Similar  directions were issued to the officers of the remaining  constituencies for  the supply of 2 copies of the electoral  rolls, where  the house  to house enumeration was taken up later.      (7) Press releases and advertisements in all dailies of West  Bengal  were  issued  on  the  question  of  intensive revision of  electoral rolls in respect of 21 constituencies in Calcutta,  seeking  cooperation  from  all  citizens  and political parties,  with special reference to house to house enumeration.  In  June  1981,  similar  advertisements  were issued in the dailies of West Bengal regarding the intensive revision  of   electoral   rolls   in   respect   of   other constituencies.      (8) Communications  were sent  between January and July 1981 by the Chief Electoral Officer to all political parties regarding the  intensive  revision  of  electoral  rolls  in respect of  the assembly constituencies in Calcutta, seeking their cooperation  in the  task of  complete revision of the electoral rolls.      (9)  After   the  Election  Commission  issued  revised condensed instructions  for  the  enumeration  of  electoral rolls in  the State  of West  Bengal,  the  Chief  Electoral Officer communicated those instructions to all the Electoral Registration Officers  in the  State, together  with his own directions regarding  the programme of enumeration, checking and supervision.      (10) On  March 19,  1981 a  press release was issued in all the  dailies of  West Bengal,  giving the details of the programme of enumeration, of the publication of the rolls in draft, inviting  claims for  inclusion of names in the rolls and objections  to the  inclusion of names, if any, and also inviting objections to the particulars in respect of entries in the  draft roll so published. The press release explained the procedure for filling up the enumeration cards. 509      (11)  In  terms  of  the  instructions  issued  by  the Election Commission  on May  13, 1981, corresponding details instructions   were issued  by the  C.E.O. to  the  District Election  Officers   and  Electoral   Registration  Officers regarding the  preparation and  finalisation of  the list of polling stations.      (12) On June 29, 1981 the Presidents and Secretaries of all political  parties were informed by a communication that a meeting  will be held at the Writers’ Building in Calcutta on 8.7.1981 at 11.00 A.M. in regard to the de novo intensive

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revision of  electoral rolls with 1.1.1981 as the qualifying date and requesting them to make it convenient to attend.      (13)  On  July  7,  1981  a  press  release  and  press advertisement were  issued in  all dailies  of  West  Bengal regarding the  programme of  revision of electoral rolls and the preparation  and finalisation  of the  list  of  polling stations.      (14) On  July 8,  1981 a meeting with political parties was held  under the  chairmanship of  the C.E.O.  in  which, representatives of different political parties participated. In that  meeting, the  programme and procedure governing the remaining stages of intensive revision were explained to the participants. They  were requested to bring to the notice of the concerned Electoral Registration Officers the complaints and defects,  if any, regarding the enumeration work and the electoral rolls  that were  scheduled for  publication in  a draft form in September-October 1981.      (15) On  July 8,  1981, letters  were addressed  to the political parties  by the  C.E.O. regarding the programme of intensive revision  and finalisation of polling stations. In those letters, it was specifically stated that "as this is a very gigantic  exercise involving  intensive field  work and spot enquiry  and careful  and laborious  office work,  your cooperation is solicited to make this operation a success".      (16) In  September  and  October  1981,  printed  draft electoral  rolls  were  published  in  the  offices  of  the Electoral Registration  Officers and in the polling areas of each constitutency  concerned for  the  convenience  of  the public so  that they  could inspect the rolls and file their claims and  objections near  their places of residence. Such draft electoral  rolls were published on 7.9.1981 in respect of 274 Assembly constitutencies and on 22.10.1981 in respect of the 510 remaining 20  Assembly constituencies.  The draft rolls were kept for A Public inspection for 21 days.      (17)  On   September  7,   1981   yet   another   press advertisement in  all dailies of West Bengal was issued, not only reaffirming  the draft  publication of  rolls regarding 274 Assembly constituencies on 7.9.1981, but also indicating the procedure  for filing  claims and  objections under  the law.      (18) On October 9, 1981 a communication was sent by the C.E.O.  to   all  the   political  parties  regarding  draft publication of  the  electoral  roll  of  the  remaining  20 constituencies on  22.10.1981 indicating again the procedure for filing claims and objections.      (19) In  early December  1981, Shri Ajit Kumar Panja of the Indian  National Congress made a complaint regarding the non inclusion  and wrong inclusion of certain entries in the electoral roll  of  158-Burtola  Assembly  constitutency.  A special check  was made and remedial action taken in respect of 6000  entries before  the finalisation of the intensively revised rolls  of  31.12.1981.  The  Electoral  Registration Officer, who  is the Collector of Calcutta, made a report in that behalf,  a copy  of which  is annexed  to the  counter- affidavit of Shri Krishnamurthi.      (20)  The  final  publication  of  intensively  revised electoral rolls  which were  prepared de  novo during  1981, after a  house to  house enumeration in all the 294 Assembly constituencies,  was   made  with   printed  supplements  on 31.12.1981. The  revision was  made with  reference  to  the qualifying date  as 1.1.1981.  With  this,  the  process  of intensive revision  which was  commenced on  1.1.1981 in the State of West Bengal was completed.

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    (21)  The  total  number  of  claims  received  in  the prescribed form  No. 6,  and those  admitted, and  the total number of objections filed in the prescribed from No. 7, and those allowed, were as follows:      Total number of claims field in Prescribed ....   4,17,                                                           23      Form No. 6      Total number of claims admitted ... 3,05,072      Total number of objections filed      in prescribed form No. 7 ... 1,09,865      Total number of objections allowed ... 65,430. 511           Steps with  regard  to  summary  revision  of  the      electoral rolls  undertaken in 1982 under section 21 of      the Representation  of the  People Act,  1950 read with      rule 25  and rules  9 to  23  of  the  Registration  of      Electors Rules, 1960 so as to bring the Electoral Rolls      up-to-date i.e.  with reference  to the qualifying date      as 1.1.1982. B      (1)  On  December  9,  1981,  the  Election  Commission directed the Chief Electoral Officers of all State and Union Territories  (except   Assam,  Andhra   Pradesh,  Karnataka, Meghalaya,  Nagaland   and  Tripura)  to  undertake  summary revision of  electoral  rolls  in  1982  with  reference  to 1.1.1982 as  the qualifying date and chalked out a programme for the same.      (2) On  December 14, 1981 the Commission wrote a letter to all  political parties  at their Head-quarters giving the details of  the above  programme for the summary revision of electoral rolls and soliciting their cooperation.      (3) A press release and an advertisement were issued in all the  dailies of  West Bengal on 23.12.1981 informing the public about  the draft  publication of the electoral rolls, in the  course of  summary revision of rolls in 1982. A copy of this  release was  also endorsed to all political parties on 23.12.1981.      (4) A  circular letter  was addressed  to  the  General Secretaries and  Presidents of all political parties in West Bengal by  the C.B.O.  giving details  of the  programme  of summary revision  of electoral  rolls in 1982 and soliciting their cooperation.  By this  letter, political  parties were also informed  that 2 copies of the supplements to the draft electoral rolls, being intensively revised then and, due for publication  on   31.12.1981,  would  be  supplied  to  each political party free of cost.      (5) The  electoral rolls  which were  prepared de  novo after house  to house  enumeration in  1981 and  which  were intensively revised  in all  the 294 assembly constituencies in the  State were finally published with the supplements on December 31, 1981 .      (6) On  January l, 1982 the finally published electoral rolls with  the supplements  were published  in draft in the respective 512 polling areas by all the Electoral Registration Officers for the A purpose of summary revision undertaken in 1982. Claims and objections  were specially  invited  in  the  prescribed forms under the law.      (7) Due  to the  internal misunderstanding between Shri Ajit Kumar  Panja and  Shri Anand  Gopal  Mukherjee  of  the Indian National  Congress, the  authorities were  unable for some little  time to  discover who,  between those  two, was entitled to receive copies of the electoral rolls. The rolls were supplied after the position was clarified.      (8) On  January 4,  1982 an advertisement was issued in

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all dailies  of West  Bengal informing  the public as to the exact contents  of Forms  6, 7  and 8 of the Registration of Electors Rules,  1960 and  also intimating  to them  that no fees will  be required  to be  paid for submitting claims or objections in these forms.      (9) The  draft rolls were kept for public inspection in the respective  polling areas  and in  the  offices  of  the Electoral  Registration   Officers  concerned.   Claims  and objections were  asked to be presented either to the officer designated for the purpose under the law or to the Electoral Registration Officer concerned.      (10) The  following Table  shows the position regarding the claims  and objections  made in  the prescribed form and accepted:             Claims in     Objections in  Objections to             Form No. 6.   Form No. 7     particulars in                                             Form No. 8      Filed    3,34,993;      1,49,548;        89,300      Accepted 2,31,583;      80,592;          80,798      These facts  establish in  an ample  measure  that  the grievances made by the petitioners are unsupported by facts. It is  significant that  none of  the petitioners  has  been denied a place in the electoral roll nor were the objections raised by  any one  of them  dismissed. As  we  have  stated earlier, none  of the  four persons who forwarded he omnibus complaints even  filed an  affidavit  in  support  of  those complaints. 513      Holding the  elections to legislatures and holding them according to  law are  both matters of paramount importance. On the  one hand  is the  individual’s  statutory  right  of franchise, on  the other  is the  constitutional  obligation imposed by  Article 168 that "For every State there shall be a Legislature..."  We find  it somewhat  odd  that,  in  the instant case,  individuals whose  rights are alleged to have been violated have not come to the Court at all. Not one out of the  eight lakhs.  Persons who have come to the Court are members of  a political  party who  claim to represent them. While we  are on  this question,  it must be emphasized that Election laws  do not  recognise political parties except in rule 11 (c) of the Registration of Electors Rules, 1960. The Election Symbols  (Reservation and Allotment) a Order, 1968, and Explanation  I to section 77 (1) of the Act of 1951. The right to  be included  in the electoral roll or to challenge the inclusion  of any  name in the roll is a right conferred upon an  individual and  not upon  any political  party. The petitioners  are   espousing  the   cause  of   unnamed  and undisclosed persons  through a writ petition, which does not even claim  to possess a representative capacity. The upshot of the  petition filed  by them  is that  some 3  crores  of voters were  being deprived  of an  opportunity to  exercise their franchise  in order  that an  investigation should  be made as to whether the names of some 5 lakhs and odd persons should be included in or excluded from the electoral roll.      The fundamental  error from  which  the  writ  petition suffers is  this: The  fact that  the revision  of electoral rolls, either  intensive or  summary, is  undertaken by  the Election Commission  does not have the effect of putting the electoral roll  last published in cold storage. The revision of electoral  rolls is  a continuous process which has to go on, elections  or no elections. For example, the revision of electoral rolls has to be undertaken under section 21 of the Act of  1950, whether  or not an election is impending. Sub- section (1)  of section 21 provides that the "electoral roll for each  constituency shall  be prepared  in the prescribed

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manner by  reference to  the qualifying  date and shall come into  force   immediately  upon  its  final  publication  in accordance with  the rules  made under this Act." Subsection (2) of section 21 provides for the revision of the electoral roll prepared  under sub-section  (1). The proviso, which is important, says  that if  the electoral roll "is not revised as aforesaid",  the validity  or continued  operation of the "said" electoral roll shall not be affected. The controversy whether the  proviso governs  clause (b)  of section  21 (2) only or whether, it applies to clause (a) of that section 514 also is  futile, though it may be interesting from the point of view   of  a text-book  writer on  the ’Interpretation of Statutes’. The  crux of  the matter  is that if an electoral roll is  not revised,  its validity  and continued operation remain unaffected,  at least  is  a  class  of  cases.  That exemplifies an important principle which applies in the case of electoral rolls.      Section 21  (3) of  the Act  of 1950  confers upon  the Election Commission  the power  to direct a special revision of the  electoral roll. The proviso to that sub-section also says that  until the  completion of  the special revision so directed, the  electoral roll  for the  time being  in force shall continue  to be  in force. That proves  the point that Election laws abhor a vacuum. Insofar as the electoral rolls are concerned,  there is  never a  moment in  the life  of a political community when some electoral roll or the other is not in force.      Section 23  (3) of  the Act  of 1950 also points in the same  direction.   Under  that   provision   no   amendment, transposition or  deletion of  an entry  can be  made  under section 22  and no  direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date  for making  nomination for  an  election  in  the particular constituency.  The election has to be held on the basis of  the electoral  roll which  is in force on the last date for  making nominations.  If  that  were  not  so,  the easiest expedient which could be resorted to for the purpose of postponing  an election  to the  legislature would  be to file complaints  and objections, omnibus or otherwise, which would take  days and  months to  decide. It is not suggested that claims  and objections  filed in  the  prescribed  form should not  be decided  promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if  undertaken, whether  or not  it is  completed,  the electoral roll  for the  time being  in force  must hold the field. Elections  cannot be  postponed for  the reason  that certain claims  and objections  have still  remained  to  be disposed of.  Then, claimants and objectors could even evade the acceptance  of notices and thereby postpone indefinitely the decision  thereon.  The  holding  of  elections  to  the legislatures, which  is a  constitutional mandate, cannot be made to depend upon the volition of interested parties.      According  to   sub-rule  (3)   of  rule   23  Or   the Registration of  Electors Rules,  1960, the "presentation of an appeal under this rule 515 shall not  have the  effect of  staying  or  postponing  any action to  be taken  by the Registration Officer under rules 22". Rule  22 imposes  A upon  the Registration  Officer the obligation to  publish the  electoral roll  which,  together with the  list of  amendments, becomes the electoral roll of the constituency.  Thus, the  fact that an appeal is pending under rule  23 (1)  against the  decision of  a Registration

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Officer under  rule 20,  21 or  21A does  not constitute  an impediment to  the publication  of the roll and to the roll, upon such  publication, coming  into force. Rule 20 provides for inquiry into claims and objections; rule 21 provides for inclusion of  names which  are left out of the roll owing to inadvertence or  error; while,  rule 21A  provides  for  the deletion of  names of  dead persons and of persons who cease to be,  or are  not, ordinary  residents of  the  particular constituency.  Notwithstanding   the  fact   that  the  roll contains  these   errors  and   they  have  remained  to  be corrected, or  that the appeals in respect thereof are still pending, the  Registration Officer is under an obligation to publish the roll by virtue of rule 22.      As a result of this discussion, it must follow that the fact that  certain claims  and objections  are  not  finally disposed of, even assuming that they are filed in accordance with law,  cannot arrest  the process  of  election  to  the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.      One of the questions which was debated before us and to which we  must now  turn, is whether the directions given by the Election Commission to the Chief Electoral Officers have the force  of law  under the Acts of 1950 and 1951. There is no provision in either of these Acts which would justify the proposition  that  the  directions  given  by  the  Election Commission have  the force  of law.  Election Laws are self- contained codes.  One must  look to them for identifying the rights and  obligations of  the parties,  whether  they  are private citizens  or  public  officials  Therefore,  in  the absence of  a provision  to that  effect, it  would  not  be correct to  equate with  law, the  directions given  by  the Election Commission  to the  Chief Electoral  Officers.  The Election Commission is, of course, entitled to act ex debito justitiae, in  the sense  that, it  can take steps or direct that steps  be taken  over and above those which it is under an obligation  to take  under the  law.  It  is,  therefore, entitled  to   issue  directions   to  the  Chief  Electoral Officers. Such  directions are  binding upon the latter but, their violation cannot create rights and 516 obligations unknown  to the  Election Law.  To take a simple example, if  the Election Commission issues a directive to a Chief Electoral  Officer  to  invite  leaders  of  political parties  for   a  meeting   to  consider   their  grievances pertaining to the electoral roll, the failure to hold such a meeting cannot  be equated  with the  failure to comply with the provision  of a  law. Leaders  of political  parties who were asked  to be  invited by the Election Commission cannot challenge the  process of  election on  the ground  that the directive issued  by the Election Commission was violated by the Chief Electoral Officer. The question is not whether the directions issued  by the  Election Commission  have  to  be carried out  by the Chief Electoral Officers and are binding upon them. The plain answer is that such directions ought to be carried  out. The question is whether, the failure on the part of  the Chief  Electoral Officer  to  comply  with  the directions issued  by the  Election Commission furnishes any case of  action to  any other  person, like  a  voter  or  a candidate, to complain of it. We are of the opinion that the directions issued by the Election Commission, though binding upon the  Chief Electoral  Officers, cannot be treated as if they are  law, the  violation of  which could  result in the invalidation  of   the  election,   either   generally,   or specifically in  the case  of an  individual. In the instant

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case, the Chief electoral Officer carried out faithfully the directions issued  by the  Election Commission. But, even if he had not, he could not be accused of disobeying a law.      We have  already adverted to the various steps taken by the Election  Commission and the Chief Electoral Officer for removing the  apprehensions of  the petitioners  and  a  few others. The following narration of events will complete that picture. The  facts stated  below  appear  in  the  countet- affidavit  of   the  Chief   Electoral  Officer,   Shri   N. Krishnamurthi.           Steps taken by the Chief Electoral Officer, in the      exercise of  his suo motu powers under rules 21 and 21A      of the  Registration  of  Electors  Rules,  1960,  with      regard to inquiries into omnibus complaints.      1. In  late December  1981 and early January 1982, Shri Bhola Nath  Sen and  Shri Ajit  Kumar Panja  of  the  Indian National Congress  wrote letters  to the Election Commission complaining of rigging of electoral rolls. Replies were sent to them stating specifically that, under the law? claims and objections were required 517 to be  lodged before the Electoral Registration Officers who were statutorily  charged with  the duty  of deciding  those claims and  A objections. They were further informed that if any Electoral Registration Officer failed to deal with those claims and  objections in  accordance with  law,  complaints could be  lodged with the Election Commission and the C.E.O. in order  to enable them to investigate into them. They were also assured that, in the mean- time, the lists forwarded by them were  being looked  into. Similar  replies were sent to other complainants.      2. Shri Anand Gopal Mukherjee, President of the Pradesh Committee of the Indian National Congress, West Bengal, Shri Bhola Nath  Sen, Leader  of the  Legislature  Party  of  the Indian National Congress, West Bengal, Shri Priya Ranjan Das Munshi, Shri Sougat Roy and Shri Pradip Bhattacharya met the Chief Election  Commissioner and  brought to his notice That the rolls  in West  Bengal had  been manipulated  to a large extent by  inclusion of under-aged persons, dead persons and temporary residents.  They were  requested  to  examine  the rolls as  finally published  on December  31,  1981.  It  is significant  that  none  of  these  persons  has  filed  any affidavits in  the present  proceedings in  support of their complaint.      3. In reply to a letter dated January 7, 1982 from Shri A.K. Sen, the Commission advised him also that the Electoral Registration Officers  were constituted  as  authorities  to prepare and  bring the  rolls upto  date and, therefore, all claims and objections should be filed with them      4. On  January 15,  1982 Shri  A.K. Panja  made several complaints to  the Chief  Election Commissioner and alleged, particularly, that  the electoral machinery of the State was influenced by  the Co-ordination  Committee of CPI (M) It is noteworthy that  none of the omnibus complaints made by Shri Panja bore  the signature  of any person, though the printed form contains a column for the signature of the complainant.      5. The omnibus complaints made by Shri Panja and by Dr. Gopal Das  Nag were  referred  to  the  concerned  Electoral Registration Officers,  even though  they were  not  in  the prescribed form.  The District  Election Officers  submitted detailed reports to the C.E.O. controverting the allegations with the help of facts and figures. 518      6.  The   authorised  representatives   of  the  Indian National Congress  in the  various constituencies were given

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copies of the intensively revised electoral rolls.      7. Between  January 22  and January  25, 1982 radiogram messages  were   sent  by   the  C.E.O.   to  the  Electoral Registration Officers  stating that they could use their sou motu powers even on the basis of unsigned complaints, if the complaints appeared to be genuine.      8. On January 22, 1982 the Election Commission of India decided to  send a  Team of  its Officers  to West Bengal to look into  the complaints  regarding large  scale errors and omissions  in  the  electoral  rolls.  On  January  27,  the Commission’s Team  of Officers  went  to  Calcutta  for  the purpose of  making a  sample survey  of the work done in the matter of revision of electoral rolls.      9. In  order to  facilitate a  proper inquiry  into the omnibus complaints,  the date of official publication of the electoral roll  was  postponed  with  the  approval  of  the Election Commission of India.      10. Radiogram  messages were sent on January 28 and 29, 1982 to  the District  Election Officers  and the  Electoral Registration Officers,  explaining the  procedure which they should adopt  under rules  21 and 21A of the 1960 Rules, for correcting the electoral rolls.      11. These  messages  were  sent  in  pursuance  of  the specific request made by Shri Anand Gopal Mukherjee and Shri Abdul Sattar  to the Secretary of the Election Commission on February 2,  1982. They  had  also  asked  that  notices  of hearing of cases under rules 21 and 21A of the 1960 Rules on the basis  of the omnibus complaints should be served on the local representatives  of the  parties. Notices were delayed in certain  cases, as  in case  of Shri  A.K. Panja  who had given his  address at  Calcutta, without mentioning the name and address of his local representative.      12. The  Team  of  Officers  deputed  by  the  Election Commission visited  various places in Calcutta and conducted an on-the-spot  verification of  complaints on  a  selective basis. It  examined documents,  reports  and  the  electoral rolls and it met various 519 leaders of  the  Indian  National  Congress.  On  a  careful inquiry, it found that the allegations made by them were not borne out by the facts.      13. On the basis of the report submitted by the team of officers deputed  by the Election Commission, it was decided on  February   9,  1982  that  no  case  was  made  out  for undertaking a  further de  novo revision  of  the  electoral rolls, especially since the percentage of errors was far too small.      14.  The   work  of   investigation  into  the  omnibus complaints was  intercepted as  a result  of the  ad-interim injunction granted  by the  Calcutta High  Court on February 12, 1982.  It was only after the orders passed by this Court on March 4, 1982 that further investigation into the omnibus complaints could be undertaken.      We need  no greater proof than this of two things: one, that the  Chief Electoral  Officer, West Bengal, carried out the directions of the Election Commission as, indeed, he was bound to,  and two,  that  there  is  no  substance  in  the grievance of the petitioners in regard to the preparation or revision of the electoral roll.      It is  unnecessary to refer to the counter-affidavit of Shri K.  Ganesan, Secretary  to the  Election Commission  of India since  counsel for  the petitioners, particularly Shri A.K. Sen,  stated before  us that  there was no complaint to make against the Election Commission.      The only  question which remains outstanding is whether

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the preparation  and publication  of electoral  rolls are  a part of  the process  of ’election’  within the  meaning  of Article 329 (b) of the Constitution. That Article provides:           "Bar  to   interference  by  courts  in  electoral      matters.-    Notwithstanding     anything    in    this      Constitution.           (a)             xxx     xxx             xxx           (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 520      under any law made by the appropriate Legislature." On the  conclusion of  arguments in this case, we had passed an order on March 30, 1982 by which we had indicated that we will pronounce  upon the  question above stated later in our judgment. In the light of the conclusion recorded by us that the petitioners  have not made out any case for the grant of relief claimed  by them,  it is unnecessary for us to decide the question  whether the expression ’election’ which occurs in  Article   329  (b),   comprehends  the  preparation  and publication of  electoral rolls. Besides, as indicated by us in the order dated March 30,1982, the view which we took was that though the High Court was justified in entertaining the writ petition  and issuing  a rule  therein since,  the writ petition  apparently   contained  a   challenge  to  several provisions of Election laws, it was not justified in passing any order  which would  have the  effect of  postponing  the elections  which   were  then   imminent.   Even   assuming, therefore, that the preparation and publication of electoral rolls are  not a  part of  the process of ’election’’ within the meaning  of Article  329 (b), we must reiterate our view that the  High Court  ought not  to have passed the impugned interim orders, whereby it not only assumed control over the election process  but, as a result of which, the election to the Legislative  Assembly stood  the risk of being postponed indefinitely. The  order dated  March 30, 1982 which we will presently reproduce, contains our reasons in support of this conclusion.  Very   often,  the  exercise  of  jurisdiction, especially the  writ  jurisdiction,  involves  questions  of propriety rather  than of power. The fact that the Court has the power  to do  a certain thing does not mean that it must exercise that  power  regardless  of  the  consequences.  As observed by  a Constitution  Bench of  this  Court  in  N.P. Ponnuswami v. Returning Officer, Namakkal Constituency(1):           "Having regard  to the  important functions  which      the  legislatures   have  to   perform  in   democratic      countries, it has always been recognised to be a matter      of first  importance that elections should be concluded      as early as possible according to time schedule and all      controversial matters  and all  disputes arising out of      elections should  be postponed till after the elections      are over,  so that  the election proceedings may not be      unduly retarded or protracted." (p. 234).      (1) [1952] S.C.R. 218. 521      On the  question as  to the  connotation  of  the  word ’election’   in Article  329(b),  we  may  point  out  three decisions of  this Court,  one of  which is  N.P. Ponnuswami referred to  above, the  other two  being Rampakavi  Rayappa Belagali v.  B.D. Jatti  and Mohinder  Singh Gill  v.  Chief Election Commissioner,  New Delhi. It was held in Ponnuswami that the  word ’election’  is used  in Article 329(b) in the

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wide sense of covering the entire process culminating in the election of  the candidate.  Fazal Ali J., who spoke for the court in  that case, has referred to a passage in Halsbury’s Laws of England to the following effect:           "It is  a question  of fact  in each  case when an      election begins  in such  a way  as to make the parties      concerned responsible for breaches of election law, the      test  being   whether  the   contest   is   "reasonably      imminent". Neither  the  issue  of  the  writ  nor  the      publication of  the notice of election can be looked to      as fixing  the date  when an  election begins from this      point of  view. Nor,  again, does  the  nomination  day      afford any criterion." (p. 227). In Rampakavi  Rayappa Belagali,  it was held that the scheme of the  Act of 1950 and the amplitude of its provisions show that the  entries made in a electoral roll of a constituency can only  be challenged  in accordance  with  the  machinery provided by  the Act  and not  in any other manner or before any other  forum unless,  some question  of violation of the provisions of  the Constitution  is involved  (p.  150).  In Mohinder Singh  Gill, Krishna  Iyer  J.,  speaking  for  the Constitution Bench, has considered at great length the scone and  meaning   of  Article   329(b)  of   the  Constitution. Describing that  Article as  the "Great  wall of China", the learned  Judge   posed  the   question  whether   it  is  so impregnable that  it cannot be bypassed even by Article 226. Observing that "every step from start to finish of the total process constitutes ’election’, not merely the conclusion or culmination" the judgment concludes thus:           "The  rainbow   of  operations,   covered  by  the      compendious expression  ’election’, thus commences from      the  initial   notification  and   culminates  in   the      declaration of the return of a candidate." 522      We  have   expressed  the  view  that  preparation  and revision of  electoral rolls  is a  continuous process,  not connected with  any particular election. It may be difficult consistently with  that view,  to hold  that preparation and revision of  electoral rolls  is a  part of  the  ’election’ within the  meaning of Article 329(b). Perhaps, as stated in Halsbury in  the passage  extracted in Ponnuswami, the facts of each  individual case  may  have  to  be  considered  for determining the question whether any particular stage can be a part  of the election process in that case. In that event, it would  be difficult to formulate a proposition which will apply to all cases alike.      The  delay  in  pronouncing  this  judgment  is  to  be regretted. A  large number of factors have contributed to it but, no more about them.      The order  dated March  30, 1982,  passed by  us  reads thus:      "The Transferred Case and the Appeals connected with it raise  important  questions  which  require  a  careful  and dispassionate consideration.  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 order, to  state our  conclusions  on  some  of  the  points involved in the controversy:      (1)  The High  Court acted  within its  jurisdiction in           entraining the Writ Petition and in issuing a Rule           Nisi upon  it, since  the petition  questioned the           vires of  the laws of election. But, 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,

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         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, 523           The imminence  of  the  electoral  processs  is  a           factor which  must guide and govern the passing of           orders in  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  of   the   Courts   the   use   of   wise           statesmanship in  the  exercise  of  their  extra-           ordinary 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  order  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.  That limitation           ought to  be observed  irrespective  of  the  fact           whether  the   preparation  and   publication   of           electoral rolls  are a  part  of  the  process  of           ’election’ within the meaning of article 329(b) of           the Constitution.  We  will  pronounce  upon  that           question later in our judgment.      (2)   We are  unable to accept the argument advanced on           behalf  of   the  petitioners  that  the  Election           Commission, or  the Chief Electoral Officer or the           Electoral Registration Officers have in any manner           acted  in   violation  of  the  Constitution,  the           Representation of  the People  Acts  of  1950  and           1951, or the Registration of Electors Rules, 1960.           The  Election   Commission  issued   the   various           directives ex  dabito justie, as steps-in aid of a           fair election.  They are being observed faithfully           and honesty,  and shall  be so  observed until the           deadline mentioned  in section 23(3) of the Act of           1950. The manner in which the directives are being           implemented cannot be regarded as unreasonable, in           the circumstances of the case.                It takes  years to build up public confidence           in the functioning of constitutional institutions,           and a 524           single court  hearing,  perhaps,  to  sully  their           image by   casting aspersions upon them. It is the           duty  of   the  courts  to  protect  and  preserve           integrity  of   all  constitutional  institutions,

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         which are  devised to  foster democracy.  And when           the method  of their  functioning  is  questioned,           which it  is open  to the  citizens to  do, courts           must  examine   the  allegations  with  more  than           ordinary care.  The presumption, be it remembered,           is always  of the  existence of  bonafides in  the           discharge   of    constitutional   and   statutory           functions. Until that presumption is displaced, it           is not  just or  proper  to  act  on  preconceived           notions and  to prevent  public  authorities  from           discharging functions  which clothed upon them. We           hope and  trust that  the charges  levelled by the           petitioners against  the Election  Commission, the           Chief  Electoral   Officer   and   the   Electoral           Registration Officers  will not generate a feeling           in the minds of the public that the elections held           hitherto in our country over the part thirty years           under the  superintendence, direction  and control           of successive  Election Commissions  have  been  a           pretense and  a facade.  The public  ought not  to           carry any  such impression  and the voters must go           to the  ballot-box  undeterred  by  the  sense  of           frustration which  the  petitioners’  charges  are           likely  to  create  in  their  minds.  We  see  no           substance in the accusation that the voters’ lists           have been  rigged by the election authorities with           the  help   of  enumerators   belonging   to   any           particular political party. Enumerators are mostly           drawn  from   amongst  teachers   and   Government           servants and  it  is  difficult  to  imagine  that           thirty-five years  after  independence,  they  are           totally colour-blind.  They are  the same in every           State and  every constituency.  The safeguard lies           in the  efficiency and  impartiality of the higher           officers who  have to  decide objections  filed in           relation to  the voters’  lists. That safeguard is           not shown to have failed in the instant case.      (3)  Surprisingly, though rightly, no argument was made           before us  on behalf  of the  petitioners  on  the           question of  the constitutional validity of any of           the 525           provisions of  the Acts  of 1950  and 1951  or the           Rules. ’Surprisingly’,  because, the major part of           the writ petition is devoted to the adumbration of           a challenge to some of those provisions and yet no           argument was  urged before  us in  support of that           challenge.  ’Rightly’,   because,  there   is   no           substance whatsoever in that challenge and counsel           exercised their judgment fairly and judiciously in           refusing  to  waste  the  time  of  the  Court  in           pursuing an untenable contention. Only one learned           counsel, Shri  Bhola Nath Sen, complained that the           fee of  ten paise  prescribed by  Rule 26  of  the           Rules of  1960 is  unreasonable since,  there  are           many voters  who cannot  afford to  pay ten paise.           The argument  must be  rejected  out  of  hand  as           devoid of substance and as lacking in awareness of           Indian Economics. There is no voter in our country           who does  not have  or cannot  raise a  sum of ten           paise to  ventilate his  objection to  the  votes’           list. Counsel  should not  grudge  at  least  that           modest achievement  to our  successive Governments           which have  been fighting a relentless war against           poverty. The  reason for  our  mentioning  that  a

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         large part  of the  writ petition  is devoted to a           statement of  constitutional challenge to election           laws, is,  that it  is upon  a  petition  of  this           nature that  the  High  Court’s  jurisdiction  was           invoked.   The   petition   is   dressed   up   in           constitutional attire  but, before  us, no counsel           tried even  to have  the feel  of it,  except Shri           Bhola  Nath   Sen.  We   will  have   occasion  to           demonstrate how,  in a petition of this nature, no           interim  relief  was  permissible,  especially  in           terms of  prayer clause  (f), by  which the entire           election process was brought to a stand still.      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 here by 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. There will be no order as to costs". 526      Our learned  Brother Baharul Islam J. passed a separate order which reads thus:                "I regret  my inability  to associate  myself           with some  of the  observations made  by Lord, the           Chief  Justice,  in  para  2  of  the  order  just           pronounced. While  I do  not have any doubt in the           integrity  and   impartiality  of   the   Election           Commission,  I  am  not  satisfied  that  all  the           Electoral Registration  Officers concerned and all           the staff working under them, were beyond reproach           in their  conduct  in  implementing  the  relevant           provisions    of     the     Constitution,     the           Representation of  People Acts  of 1950  and 1951,           the Electoral  Registration Rules,  1960  and  the           directions given  by Election  Commission  in  the           preparation of  the electoral  rolls. I,  however,           agree that  the writ Petition under Article 226 of           the Constitution  filed before  the Calcutta  High           Court and  transferred to  this Court be dismissed           and the  stay orders  granted by the High Court be           vacated, for reasons to be given in my judgment to           follow.                Mr Nariman,  learned counsel for the Election           Commission told us at the time of hearing that the           claims and  objections already filed had been, and           were being,  looked into.  It is hoped that claims           and objections,  if any  outstanding yet,  will be           disposed of,  and names included, in the electoral           rolls still  the last  date of making nominations,           as  permissible   under  Section   23(3)  of   the           Representation of People Act, 1950."      We order accordingly.      BAHARUL ISLAM, J. The Constitution of India envisages a Sovereign, Socialist,  Secular, Democratic Republic. Each of the terms  ’Sovereign’ ’Socialist’,  ’Secular’, ’Democratic’ and ’Republic’  is significant  and  pregnant  with  meaning deeper than  the apparent. Unless their true significance if properly realized,  no provision  of the Constitution or any other statute  can be  interpreted in  its true perspective. Republic connotes  the existence  of a President. The Indian Constitution has provided for a democratically elected 527 President. The  Constitution also has provided for a form of Government by  the People’s  representatives  democratically

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elected on  the basis  of adult  franchise  irrespective  of caste, creed,  race or  sex. The  term  ’Secular’  has  been incorporated in  the Preamble  by the  Constitution  (Forty- Second Amendment) Act, 1976 and is effective from January 3, 1977. The  addition of  the term ’Socialist’ is not for mere ornamentation,  but   with  a   definite  object.  The  term ’Socialist’ has  both an  economic as  well as  a  political content. The  basic needs  of a  citizen  of  any  civilized country with  any form  of Government  are  food,  clothing, education and  health services.  A  citizen  of  any  modern democratic State  has also  an additional  need, which  is a political right.  It is  the right  of participation  in the governance of  the  country  directly  or  indirectly.  This participation of an adult citizen of our country starts with the right to vote for a candidate and elect a representative of his  choice to  the legislatures and other self-governing institutions. This  right to  vote presupposes a right to be enrolled as  an elector  provided, of  course,  he  has  the requisite qualifications  prescribed by the Constitution and the election  laws and  other statutes  and has  none of the disqualifications enumerated in those laws.      2.  Chapter   XV  of   the  Constitution  provides  for Elections to the House of People and the Legislatures of the States.  Article   326  of  the  Constitution  provides  for elections to  the House  of People  or  to  the  Legislative Assemblies of  the States  on the  basis of  adult-suffrage: that is  to say,  every person who is a citizen of India and who is  not less  than 21  years of age on a particular date and is  not otherwise disqualified under the Constitution or any law  on the  ground of  non-residence and unsoundness of mind, crime,  corrupt or  illegal practice  shall be entered into the  register as  voter for such election. The basis of election on  adult franchise  and the right to be registered as a  voter at  an election  of a  person with the requisite qualifications   and   having   no   disqualifications   are constitutional mandates.  By virtue  of powers  given  under Article 327  of the Constitution, the Parliament has already made  provisions,   inter  alia,  for  the  purpose  of  the preparation of  the electoral  rolls and  matters  connected therewith  in   the  Representation   of  People  Act,  1950 (hereinafter  referred   to  as  ’the  1950  Act’)  and  the Registration of  Electors  Rules,  1960,  (hereinafter  ’the Electors Rules,  1960’) and  for the  purpose of  conduct of election to  the Houses  of Parliament  and to the Houses of State Legislatures and to matters relating to such elections in the Representation of People Act, 1951 (hereinafter 528 referred to  as ’the  1951 Act’) and the Conduct of Election Rules, 1961 (hereinafter referred to as the ’Election Rules, 1961’).      Article  324   (1)  of   the  Constitution   vests  the superintendence, direction and control of the preparation of electoral  rolls   for  the  conduct  of  all  elections  to Parliament  and  to  the  Legislature  of  a  State  and  of elections to  the offices of President and Vice-President on the  Election  Commission,  the  Constitution  of  which  is provided for under Article 324 (2). Sub-Article 6 of Article 324 provides  that the  President or the Governor of a State shall, when  so requested  by the  Election Commission, make available to the Election Commission as may be necessary for the discharge  of the  functions conferred  on the  Election Commission under  Clause 1  of Article  324. This shows that for the  purpose of  preparing the  electoral rolls  for the purpose of  conducting elections,  the Election  Commission, although  a   very  high   and  independent   constitutional

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functionary, does  not have a staff of its own appointed and removeable by  it. The  staff made available to the Election Commission for  the above  purposes are  the employees  of a State or  the Central  Government. In  other words,  as  the staff working for the preparation of the electoral rolls and the conduct  of the  elections are  not  the  staff  of  the Election Commission,  they  are  not  independent  like  the Election Commission, itself, but are liable to be influenced by the  concerned Executive Government. This is an important thing to  be remembered,  and I  shall have  to refer  to it later.      3. Article  325 of the Constitution provides that 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 Legislature of a State and no person  shall be  ineligible for  inclusion in  any State electoral roll  or claim  to  be  included  in  any  special electoral roll  for any such constituency on grounds only of religion, caste, sex or any of them. In other words, so long as an adult citizen of India has requisite qualifications to be registered  as an elector and has no disqualifications to be registered  as such,  he has a constitutional right to be registered as  an elector.  Illegal omission of the names of persons who  were  qualified  from  the  electoral  roll  or inclusion of  the names  of persons who are not qualified or who have  disqualifications has  far reaching  consequences. Let us  take a  hypothetical illustration. Suppose, in India or in  a State  of India,  there are  two political parties, A &  B with  near equal  strength. Let  us also suppose that Party A is in power either 529 at the  Centre or in the States or both and suppose Party is in opposition  either in  the Centre  or in the States or in both. Unless  the electoral  roll is  prepared  strictly  in accordance with  the provisions of the 1950 Act and the 1960 Rules, the  electoral roll  will have  no sanctity,  and the election conducted  on such  defective electoral  roll  will tilt the  balance of  power. On  the other hand, if names of foreigners who  are sure  to support  a particular party are included in  the voters’  list, or names of eligible persons who will  not vote  for a  particular  party  and  vote  for another particular party, the result is obvious.      4. The basis of a free and fair election is the voters’ list prepared  in accordance  with the 1950 Act and the 1960 Rules. If this is not so done, the electoral rolls will have no sanctity  and  the  consequent  election  will  also  not inspire confidence of the people.      5. The  next question  is whether  the objection to the inclusion of  wrong names or claims to inclusion of eligible names in  the electoral  rolls can  be taken  in an election petition under  Section 100  of the  1951 Act. It cannot be. Mr. Nariman,  counsel appearing for the Election Commission, submits that  a qualified citizen has a right to be enrolled in the  electoral roll,  but he  has no  right to  vote in a particular election.  He is  apparently-and only apparently- right. For Article 326 itself, says that an eligible citizen "shall be  entitled to  be registered as a voter at any such election." But the enrollment of the name of a person in the electoral roll  is absolutely meaningless unless he can also exercise his  vote. If  before the  claims and objections of above eight  lakhs voters,  as  alleged  in  this  case  are disposed of,  the election  be held,  the result  would be a farce and  will not  reflect the  will of the people. It has been argued  by Mr.  Nariman that  eight lakhs are voters of the State  and the  claims and  objections in  a  particular

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constituency may  be about  a few  thousands.  Even  in  the counter-affidavit,  filed   on  behalf   of   the   Election Commission, it  has been  stated that  the error may be 2 or 2.1/2 per cent. This percentage, though looks small, is very material in  an election fought by multiplicity of political parties and  independent candidates  as is  notoriously  the case in India.      6.  The   statutory   provisions   dealing   with   the preparation   of    the   electoral   rolls   for   Assembly Constituencies are  Part III  of 1950  Act that  deals  with "Electoral Rolls for Assembly Constituencies" 530 and Part  II of 1960 Rules that provides for the preparation of  the  A  electoral  rolls  for  Assembly  Constituencies. Section 21  of the 1950 Act provides for the preparation and revision of electoral rolls. Sub-section (1) of this section provides that the electoral roll for each constituency shall be prepared  in the  prescribed manner  by reference  to the qualifying date  and shall  come into force immediately upon its final  publication in  accordance with  the  rules  made under this  Act. Qualifying  date  has  been  defined  under Section 14 (b) of the 1950 Act as the "1st day of January of the year in which it is so prepared or revised" "in relation to the  preparation or  revision of  every  electoral  roll" under  Part   III.  Section   15  provides  that  for  every constituency there shall be an electoral roll which shall be prepared in  accordance with  the provisions of the Act. The preparation  has  to  be  made  under  the  superintendence, direction and control of the Election Commission. Section 16 provides that  a person  who is  not a  citizen of  India, a person of  unsound mind,  a person who is found to be guilty of corrupt  practices and  other offences in connection with the elections  shall not be registered as electors. Sections 15 and  21 are  mandatory. Sub  section (2)  of  Section  21 provides that  the aforesaid electoral roll shall be revised in the  prescribed manner  with reference  to the qualifying date (1)  before the  general election  to  the  Legislative Assembly of  a State  or the  House of  the People  and (ii) before each  bye-election to fill a casual vacancy in a seat allotted to  the constituency,  unless otherwise directed by the Election  Commission  for  reasons  to  be  recorded  in writing. In  other words, revision before a general election or a bye-election of the electoral roll is the rule and non- revision is the exception which is permissible only when the Election Commission  directs for  reasons to  be recorded in writing. Clause  (b) of  sub-section (ii)  provides that the electoral  roll   shall  be  revised  in  any  year  in  the prescribed manner  by reference  to the  qualifying date  if such revision  has been directed by the Election Commission. In other  words, the  Election Commission may direct that an electoral roll  be revised in any year although there may be no ensuing general or bye-election. There is a proviso added after clause (b). It is in the following terms:           "If  the   electoral  roll   is  not   revised  as      aforesaid, the  validity or  continued operation of the      said electoral roll shall not be affected." 531      There is  a controversy  in the  interpretation of  the proviso. One  argument is that this proviso governs both the clauses (a)  and (b)  of sub-section (2). The other argument is that the proviso controls only clause (b). In my opinion, the proviso controls clause (b) only and not clause (a); for after the  word "shall",  clause  (a)  starts  with  "unless otherwise directed by the Election Commission for reasons to be recorded  in writing".  In  clause  (b)  also  "that  the

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revision shall  be made  in any  year if  such  revision  is directed by the Election Commission". In other words, either in the  entire State  or in a particular constituency of the State, there is no general or bye-election during the period of five years, the electoral roll may not have to be revised but the  existing roll  will  be  a  valid  roll  for  other purposes. For example, if some elector wants to show for the purpose of  election either  to the Council of States or for any other  purpose, other than election in the constituency, the entry  in the  existing electoral  roll will  be  proof- enough for  that purpose.  But the  unrevised electoral roll will not  be valid  for the  purpose of holding general or a bye-election. The  reasons are  obvious. For  example, if an electoral roll  is  prepared  before  a  particular  general election to  a Legislative  Assembly but  there has  been no revision for  one reason or the other, say, for four or five years, or  for a  longer period, no general election call be held on  the basis  of the  electoral roll prepared earlier. The reasons  again arc  obvious; for,  during this period of four or  five years  or a  longer period,  a large number of young people  have become  adults, And  a number  of persons whose names  were registered in the existing electoral rolls must have died or left the constituency. As the election has to be  held on  adult franchise  under the  mandate  of  the Constitution, those  who were  below 21 years before four or five years have now a constitutional right to be enrolled as voters. And  if the names of the dead persons or the persons who have  migrated from  the constituency  are not  deleted, there is  the possibility  of bogus  voting in  the names of those persons.  Therefore, it  is not  permissible in normal circumstances to  hold  a  general  or  bye-election  on  an electoral roll  unless it  is revised as directed under sub- section (1)  of Section  21.  The  above  interpretation  is consistent with  the basic  objective of  election indicated above.      7. Section  22 of  1950 Act provides for the correction of entries  in the electoral rolls. Section 23 is important. It deals with the inclusion of names in the electoral rolls. Sub-section (1) of 532 Section 23  provides that  any  person  whose  name  is  not included in  the electoral  roll of a constituency may apply to the  electoral registration  officer for the inclusion of his name in that roll. Subsection (2) of Section 23 provides that the  electoral registration officer shall, if satisfied that the  applicant is  entitled to  be  registered  in  the electoral roll,  direct his  name  to  be  included  therein subject to the proviso to Section 23 (2). Sub-section (3) of Section 23  enjoins that  after the  last  date  for  making nominations for an election in a particular constituency, no amendment,  transposition   or  deletion  of  any  entry  is permissible. Section  24 provides  for appeals  against  the orders of an electoral registration officer under Section 22 or 23  to the  Chief Electoral  Officer  in  the  prescribed manner.      Let us now turn to Part II of the Electors Rules, 1960. Rules 10  and 11  provide for  the publication  of the draft roll and  further publicity  of the  roll and  the notice in Form 5.  Rule 12  provides for lodging claims and objections within a  period of thirty days from the date of publication of the roll in draft under Rule 10 for inclusion or deletion of names.  Rule 13  provides that  the  claims  have  to  be preferred in Form 6; objections have to be preferred in Form 7 and  objections to a particular or particulars in an entry have to be made in Form 8. There are other restrictions also

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in lodging  claims and/or  objections in  Forms 6,  7 and 8. Rule 14  provides that  every claim  or objection  shall  be presented to  the registration  officer or any other officer designated by  him in this behalf. Rule 15 provides that the officer mentioned  in Rule  14 shall maintain in duplicate a list of  claims in  Form 9,  a list  of  objections  to  the inclusion of  names in  Form 10  and a list of objections to particulars in  Form 11  and keep exhibited one copy of each such lists  on a  notice board  in his  office. Rule  15  is mandatory. After complying with sub-rule (1) of Rule 15, the designated officer  after complying  with the requirement of sub-rule (1)  forward with  his remarks, if any, the list of claims  and  objections  in  Forms  9,  10  and  11  to  the appropriate  registration   officer.  Under   Rule  16,  the registration officer  also shall  maintain in  duplicate the three lists  in Forms  9, 10  and 11,  entering thereon  the particulars of  every claim  or objection  as and when it is received by  him, whether directly under Rule 14 or on being forwarded to  him under Rule 15; and keep exhibited one copy of such  list on  a notice  board in  his office. Rule 16 is also mandatory.      The registration  officer, under Rule 17, has the power to reject  any claim or objection which is lodged within the prescribed time or 533 in the  prescribed form  and manner.  Under Rule  18, if the registration officer  is satisfied as to the validity of any claim or  objection, he may allow it without further inquiry after the  expiry of  one week  from the date on which it is entered in  the list  exhibited by  him under  clause (b) of Rule 16.  There is,  however, a  restriction on the power of the registration  officer under the proviso to Rule 18. That restriction is  that if  there be  a demand  for inquiry  in writing to  the registration  officer by  any person against the  acceptance   of  claim  or  objection,  such  claim  or objection shall not be allowed without further inquiry. Rule 19 provides  that where  a claim or objection is not allowed under Rule  17 or  18, the  registration officer  shall give notice of hearing of the claim and objection. Under Sub-rule (2) of  Rule 19 that the notice mentioned in sub-rule (1) of Rule 19 may be given either personally or by registered post or by  affixing it  to the  person’s residence or last known residence within  the constituency.  Rule 20  gives power to the registration  officer to  hold a  summary  inquiry  into claim and  objection under  Rule 19.  Under sub-rule  (2) to Rule 20, the hearing of the claimant or the objector and the person objected  to and any other person who, in the opinion of the  registration officer,  is likely to be of assistance to him,  shall be  entitled to appear and be heard. Sub-rule (3) to  Rule 20  gives  a  discretion  to  the  registration officer to  require any  claimant or  objector or any person objected to appear in person before him, or require that the evidence tendered  by any  person shall be given on oath and administer an oath for the purpose.      A combined  reading of  Rules 18,  19 and  20 show that they are  based on  the principle of natural justice keeping in view the right of an eligible voter to be included in the electoral roll  and the  right of any person to see that the names of  persons not  so  eligible,  but  wrongly  included earlier be  deleted from  the electoral  roll. Rule 21 gives suo moto  power to the registration officer to include names inadvertently omitted.  Rule 21  (A) give  suo moto power to the registration officer to delete the name of dead electors of persons  who have  ceased to  be or  are  not  ordinarily residents in the constituency. Rule 22 is very important. It

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gives power  to the  registration officer to prepare a list, after compliance of Rules 18, 20, 21 and 21A and publish the roll together  with the  list  of  amendments  by  making  a complete  copy   thereof  available   for   inspection   and displaying a notice in From 16 at his office. Under sub-rule (2) of  Rule 22, on such publication, the roll together with the list of 534 amendments   "shall   be   the   electoral   roll   of   the constituency". Under  sub rule  (3), this  roll shall be the "basic roll"  for the  constituency. Rule  23  provides  for appeal from  the decision  of the registration officer under Rules 20,  21 or  21A to  an  appropriate  authority.  These provisions disclose  the  importance  to  be  given  to  the preparation of an electoral roll.      8. It  is true,  as submitted on behalf of the Election Commission, that  a perfect  electoral roll is not possible. But at the same time, it must be remembered that the name of any eligible  voter should not be omitted or the name of any disqualified person  should not be included in the electoral roll,  in  violation  of  any  constitutional  or  statutory provisions. The  error, when pointed out, has to be removed. It must  also be  remembered that  a large  section  of  the electorate of  our country  consist of illiterate people and not politically  so conscious as to see that their names are in the  electoral roll.  Needless to  say  that  ours  is  a democratic country  with a  parliamentary from of government that is  run on  party  basis.  The  parliamentary  form  of government depends on political parties. A duty therefore is east on  the political parties to educate the electorate and take steps  that the  names of eligible persons are included in the  electoral rolls and that names of ineligible persons are deleted. Erroneous inclusion or omission of the names of a few  persons may  not be  of much  consequence. But  if  a considerable number  of the names of such persons are either wrongly, included  in, or excluded from, the electoral roll, it will be of great consequence to a particular party either in power  or in  the opposition.  The electoral registration officer, therefore,  cannot be  fastidious as to whether the claims and objections are strictly in prescribed forms. Even when there  are omnibus  objections by  a political party or political parties,  as in  this case,  filing claims  and/or objections, such  claims and  objections have to be inquired into and  necessary action  taken so that correct opinion of the electorate  may  be  reflected  in  the  result  of  the election.      9. In  the instant case, it must be said in fairness to the Election  Commission, on  receipt of  omnibus complaints and objections  on behalf  of a large number of persons, the Election   Commission    directed   the    Chief   Electoral Registration Officer  of West  Bengal to  inquire into these claims and  objections and  take appropriate  action. But it does not  appear or  there is nothing on record to show that those 535 claims and  objections. albeit omnibus, may be sometimes not strictly in  the prescribed  forms, were  disposed of by the Electoral Registration  Officer after  issue of  notices  as required by the rules. The affidavits filed on behalf of the Election Commission by Mr. Krishnamurthi, and Mr. Ganesh. In vaguely state that they were "duly" disposed of.      In para  46 of  the affidavit  of Mr. N. Krishnamurthi, the Chief  Electoral Officer  of West  Bengal, it  has been, inter alia,  stated, "Similarly, as regards the letter dated January 17,  1982 of  Shri Bholanath  Sen  addressed  to  me

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regarding his  complaints in  respect of the Bhatar Assembly Constituency I say that all specific complaints contained in his letter  have been  duly looked  into  by  the  Electoral Registration Officer  and I  have also  examined the same. I crave leave  to refer  to the  reports in this regard at the time of  hearing" (emphasis  added). It  has not been stated that the  complaints  were  inquired  into  after  issue  of notices as required by law.      In clause  (z) of  Part I of another affidavit filed by Mr. Krishnamurthi, it has been stated:           "In early  December, 1981, Shri Ajit Panja, Leader      of Indian National Congress, made a complaint regarding      the  non-inclusion   and  wrong  inclusion  of  certain      entries  in  the  electoral  roll  of  158  of  Burtola      Assembly constituency.  A special  check was  made  and      remedial action taken in respect of 6000 entries out of      89,000  entries   before  the   finalisation   of   the      intensively revised  rolls of 31.12.1981. A copy of the      report of the Electoral Registration Officer who is the      Collector of Calcutta is annexed as Annexure 19".      The second part on page 4 of Annexure 19 reads:           "At  the  time  of  house  to  house  enumeration,      enumerators  approached  the  head  of  households  and      handed over  to them  their electoral cards under their      signature. At  this time,  the Supervisors  also signed      both the  copies of  the  electoral  cards.  After  the      electoral cards  were  deposited  in  our  office,  the      Supervisors made  a test  check of  about  30%  of  the      electoral cards. Myself alongwith 536      my Assistant  E.R.Os made a test check of about 10%. On      such test case, large number of voters were included in      the draft  roll. In  particular, in  Burtolla  Assembly      Constituency, more  than 6000  voters were  included by      the Assistant E.R.Os at the time of their test check. A      test check  of about  5 to 10% was conducted in respect      of the  decreases  in  number  of  voters  in  all  the      constituencies by  special squads. In Burtolla Assembly      Constituency such  test checks were conducted by Sr. A.      Roy Chaudhury,  Addl. Treasury  Officer  and  Assistant      E.R.O..."      It has not been stated as to what happened to, and what remedial measures were taken in respect of, the other 83,000 entries. It  has also  been stated in this affidavit that in Form 6,  (1) total  number of  claims received was 4,17,231; (2) total  number of claims allowed was 3,05,072. It has not been explained  as to  what was  done to the other claims of 1,12,159, or  that these  cases rejected  after  hearing  as required by  law. It  has also  been stated in the affidavit that the  total number  of objections  received Form  7  was 1,09,865 and  the total  number of  objections  allowed  was 65,430. It  has not  been explained  as to  what was done in respect of the difference of 44,435 objections or that these objections were  rejected after  hearing as enjoined by law. What has  been stated  in para  (o)  at  page  26-A  of  the affidavit is  "All the  above claims and objections in Forms 6, 7  and 8  were to  be ’duly dealt with and disposed of by the Electoral  Registration Officers  by that  date". But it has not  been stated  that they were disposed of as required by law.  It must  be said  in fairness  to Mr. Krishnamurthi that as  Dr. Gopal Das Nag had intimated to him that he (Dr. Nag) had  not been able to file his specific complaints with the concerned Electoral Registration Officers before January 16,1982 which  was the  dead-line date, and as these omnibus complaints had  been given  to him  prior to  16.1.1982, "in

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order not  to be  too technical (though in law the complaint and objections  had to be in the prescribed forms and had to be  submitted   to  the  respective  Electoral  Registration Officers within  the  prescribed  time)  by  a  radiogram  I requested the  concerned Electoral  Registration Officers of 16 constituencies in respect of which the omnibus complaints were made by the complainant in question, to accept them and promptly enquire  into them  and take  remedial action under rules 21  and 21A of 1960 rules 80 that the enquiry could be completed with the utmost promp- 537 titude and  to report  back with  respect  to  the  remedial action taken".  But  there  is  nothing  to  show  that  his directions  were  in  fact  carried  out  by  the  Electoral Registration Officers in accordance with the relevant Rules.      It has  been stated  in clause  (p) at  page 38  of the affidavit that  "pursuant to the various radiogram messages, the District Election Officers had take the following action and were continuing to take the following actions:-      (i) In  respect of  complaints in Forms 6,7 and 8, they were being dealt with and disposed of.      (ii) In  respect  of  the  specific  cases  in  omnibus complaints, they  were being  enquired into  and treated  as information for  action under rules 21 and 21A of 1960 Rules after due  investigations  mostly  with  100%  on  the  spot verification. Proformas  indicating the  manner in which the omnibus complaints  were accepted or rejected or disposed of were duly filled in after determination and forwarded to the Chief Electoral Officer".      With regard  to the  complaint that  notices  were  not received  by  the  claimants  and  objectors,  it  has  been admitted that  "due to  postal delay, the intimation neither reached Shri  Ajit  Kumar  Panja  or  his  agent  about  the hearing. In fact, the law does not require any intimation to be given  to any  representative  of  political  parties  in connection with enquiries under rules 21 and 21A except that reasonable opportunity  should  be  given  to  the  affected person whose  names for  deletion is  included in  the  list under rule  21A of  the 1960 Rules. The procedure set out on 2nd February,  1982 was  only to  facilitate an  expeditious disposal of the complaint if found to be genuine".      Technically,  Mr.   Krishnamurthi  is   right  that   a political party  is not  entitled  to,  under  the  law,  to receive any  notice but  in the background of the illiteracy and ignorance and lack of political consciousness of a large section  of   the  electorate,  it  is  but  proper  and  in consonance with  the spirit  of  the  Constitution  and  the Election laws  that notices  be  given  to  the  leaders  of political parties  who file complaints or omnibus complaints and claims  and objections.  It has also been stated in para (r) at  page 41  of the  affidavit that,  "The team  visited various places in Calcutta and in the districts of Hooghly 538 24-Parganas,   Midnapore    and   Malda    for   on-the-spot verification of  complaints on  selective basis".  There  is nothing to  show that  these on-the-spot  verifications were made with  prior notice to the complainants/objectors and/or their representatives.  Obviously, a  thorough enquiry  into the complaints/objections  were not  made, "inasmuch  as the percentage of  errors, with  reference to the total electors was too  low and  below normal", as pleaded on behalf of the Election Commission. But it must be remembered that the fate of a  political party is decided by small margin of votes in our Country  as the  political forces  have  not  yet  fully crystalised and  as there  are too many political parties in

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our country, and the elections are multi-cornered.      There may  be another reason for a Registration Officer for  not   strictly  following  the  provisions  of  law  in disposing the claims/objections inasmuch as "the proceedings under rules  21 and  21A of 1960 Rules are summary in nature having regard  to the  necessity of  expeditious revision of electoral rolls within a time bound programme", as contended on behalf of the Election Commission in their affidavits. It has also  been asserted  in  para  27  at  page  64  of  the affidavit that  the decision  in disposing of the claims and objections under  rules 21  and  21A  of  1960  Rules,  "The Electoral  Registration   Officer   is   not   required   to communicate his  decision to  any person  making claims  and objections when  taking decision  under rules  21 and 21A of 1960 Rules  as the  proceedings under  rules 21  and 21A are taken under his suo moto power".      10. The  Writ Petition  has been  filed by  eight  writ petitioners of  whom  Petitioner  No.  (1)  is  the  General Secretary of  the West  Bengal State  Muslim League and also member of  the National  Executive of  Indian  Union  Muslim League and  a member  of existing  West  Bengal  Legislative Assembly, No. (2) is a member of the Polti Bureau of the all India Communist  Party, No.  (3) is the President of the all India Christian  Democratic Party,  No.  (4)  is  the  Vice- President of  the West  Bengal Unit  of the  Janta Party and Executive Member  of National  Committee of  Janta Party and ex-M.P., No.  (5) is  a member  of the  All  India  Congress Committee (Socialist)  and an  ex-M.P., No. (6) is a sitting member  of   the  existing  West  Bengal  State  Legislative Assembly and  Secretary of  the Congress  Legislative Party, West Bengal  Assembly, No. (7) is a member of the Republican Party of  India, and  No. (8)  is the  Vice-President of All India, Forward Block Central Committee. 539      The petition contains 98 paragraphs of which paras 3 to 70 refer  to the  provisions of  law, para 73 to the alleged anomalies in the voters’ lists. Paras 86, 93 and 95 refer to the alleged illegal inclusion omission of the names of about 8,00,000 voters.  It has been stated in paragraph 72 that 14 constituencies  were   affected  by   cyclones   and   other calamities, about  1000 to  5000 teenagers  were included in the voters’ lists, a large number of aliens were included in the voters,  list, a  large number  of bona fide voters were excluded, fictitious  entries were  made and distorted names were recorded.  It was also alleged that CPI (M) enumerators having allegiance  to the party in power in West Bengal were appointed for  the preparation  of the  voters’  lists.  The answer on  behalf of  the Election  Commission is  that  the enumerators were  teachers who  are  normally  appointed  as enumerators. In  my opinion, no persons who are members of a political  party  or  of  an  association  affiliated  to  a political party  should be  appointed to  be enumerators  of victors so that there may not be any foul play or rigging in the preparation of the electoral roll. Enumerators should be persons  who   are  not   affiliated,  either   directly  or indirectly to  any political party, whether in power or not; for this  purpose, it  is  desirable  that  only  Government officers  including   teachers  of  Government  schools  and colleges may  be appointed  enumerators,  and  not  of  non- government organization  or institutions  unless their rules debar their employees to be members of political parties.      It, therefore,  cannot be  said that in the revision of the electoral  roll, all  possible care  as enjoined  by the letter and  spirit of  the Constitution  and the statues was taken in this case.

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    11. Now  about reliefs,  in this case, however, reliefs prayed for,  are not  possible to  be granted. It is not the petitioners, case  that the  electoral rolls  in all the 294 constituencies in  West Bengal  have  not  been  revised  in accordance with  law. They  have made  allegations only with respect of  constituencies and omnibus complaints were filed only in  respect of  two constituencies namely, Bartolla and Bhatar.  Although  there  no  electoral  rolls  prepared  in accordance with  law for  Bartolla and Bhatar constituencies the general  election of the entire state cannot be held up. as electoral  rolls are prepared and published constituency- wise. It is, therefore, not possible to hold up the election in respect  of all  the constituencies unless a case is made out that  no election  can be  held in  any of  all the  294 constituencies. Secondly, no concrete name of persons have 540 been mentioned  in the  Writ Petitions  and  so  it  is  not possible to  issue any  rite of  Mandamus to  the  electoral registration officers  for the inclusion or exclusion of the names of  those persons,  as the case may be, in or from the electoral   rolls.   Thirdly,   the   authorities   actually responsible for  inclusion or  exclusion of  names  are  the electoral registration  officers but they have not been made parties to  the petition  and so  writ of  Mandamus  can  be issued against  them; and  it is  not possible  to make them parties so late. N.V.K. 541