4.

WHETHER THE ELECTION PROCESS IN THE STATE OF VRIHADH PRADESH CAN BE

It is most humbly submitted before the Hon’ble Supreme Court that the Election Process in
the State of Vrihadh Pradesh cann’t be postponed on the basis of prevailing pandemic. The
Petitioners to this extent would seek to establish that, (A)Regular election is a part of Basic
Structure and is based on free and fair Democratic principles, (B)Article 324 &Article 329 of
the Constitution bars interference of Courts directly in any electoral matters,(C)The Election
Commission has not yet taken a final call on poll dates andCovid can’t be a valid ground for
postponing polls, (D)Right to Dispute Elections is a Statutory rather than Constitutional
Right, (E) the postponement of Election would exceptionally result burdening the economic
sphere of the nation, and (F)the High Court would satisfactorilydirect the Election
Commission to improve or in monitoring the election processes and to make sure that the
Model Code of Conduct is followed properly. 

(A) Regular election is a part of Basic Structure and is based on free and fair
Democratic principles.

It is humbly contended before this Hon’ble Court that there is no doubt that democracy is a
part of the basic structure of the Constitution and periodical, free and fair election is the
substratum of democracy.1 If there is no free and fair periodic election, it is the end of
democracy and the same was recognized in M.S. Gill v. Chief Election Commissioner2 that:

“12. A free and fair election based on universal adult franchise is the basic, the regulatory
procedures vis-Ã -vis the repositories of functions and the distribution of legislative,
executive and judicative roles in the total scheme, directed towards the holding of free
elections, are the specifics. …. The super authority is the Election Commission, the kingpin is
the Returning Officer, the minions are the presiding officers in the polling stations and the
electoral engineering is in conformity with the elaborate legislative provisions.”

Your Lordship, it is well established undisputedly free and fair elections are a fundamental
right of every citizen of this country. In the case of Indira Nehru Gandhi v. Raj Narayan 3 the
Constitution Bench of Hon’ble the Apex Court held that free and fair elections form is an
1
People's Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors.AIR2003SC2363.
2
M.S. Gill v. Chief Election Commissioner, 1978 AIR 851 (p. 419, para 12).
3
Indira Nehru Gandhi v. Raj Narayan, (1975) Supp SCC 1.
essential feature of any democracy and therefore forms part of the basic structure of the
Constitution. Further, The Constitution contemplates a free and fair election and vests
comprehensive responsibilities of superintendence, direction and control of the conduct of
elections in the Election Commission. This, responsibility may cover powers, duties and
functions of many sorts, administrative or other, depending on the circumstances.

(B) Article 324 & Article 329 of the Constitution bars interference of Courts directly
in any electoral matters.

Your Lordship, Article 324 of the Constitution 4 vests the exclusive superintendence, direction
and control of elections in the Election Commission. It is a settled position of law that the
Election Commission has exclusive authority with respect to framing laws regarding the
conduct of elections and where there is no law to cope with some situation within the enacted
rules, the Commission has plenary powers to exercise their discretion. 5In the case of Election
Commission of India v. State of Haryana 6the Hon’ble Supreme Court held that although it is
not suggested that the Election Commission can exercise its discretion in an arbitrary or mala
fide manner, the ultimate decision as to whether it is possible and expedient to hold the
elections at any given point of time must rest with the Election Commission.

Further, it is trite law that Article 3297 bars interference of Courts in ‘elections’ starting from
the notification of elections till their conclusion.8 However, along with that multiple
constitution benches of the Hon’ble Apex Court have also categorically held that the High
Courts in the exercise of its powers under Article 226 of the Constitution should not pass any
orders which have the tendency or effect of postponing an election, even where they may not
be expressly barred from doing so under Article 329 of the Constitution. 9However, to this
extent, the Hon’ble Supreme Court in Mohinder Singh Gill10 held that:

"39. Even so, situations may arise which enacted law has not provided for. Legislators are
not prophets but pragmatists. So it is that the Constitution has made comprehensive

4
INDIAN CONSTI; Article 324.
5
Badri Narayan Singh and Ors. v. The Ministry of Home Affairs (MHA) Government of India and
Ors.2020(5)BLJ552.
6
Election Commission of India v. State of Haryana,1984 (Supp) SCC 104
7
INDIAN CONSTI, Article 329.
8
Election Commission of India v. State of Haryana1984 AIR 1406.
9
A.K.M. Hassan Uzzaman v. Union of India, (1982)2SCC218, Lakshmi Charan Sen v. A.K.M. HassanUzzaman,
1985 AIR 1233.
10
Id 2.
provision in Article 324 to take care of surprise situations. That power itself has to be
exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with
the guidelines of the rule of law and not stultifying the Presidential notification nor existing
legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324,
in our view, operates in areas left unoccupied by legislation and the words ‘superintendence,
direction and control’ as well as ‘conduct of all elections’ are the broadest terms. ... It has
been argued that this will create a constitutional despot beyond the pale of accountability; a
Frankenstein’s monster who may manipulate the system into elected despotism-instances of
such phenomena are the tears of history. To that the retort may be that the judicial branch, at
the appropriate stage, with the potency of its benignant power and within the leading strings
of legal guidelines, can call the bluff, quash the action and bring order into the process.
Whether we make a triumph or travesty of democracy depends on the man as much as on the
Great National Parchment.

Secondly,the Commission shall be responsible to the rule of law, act bona fide and be
amenable to the norms of natural justice in so far as conformance to such canons can
reasonably and realistically be required of it as fair play-in-action in a most important area
of the constitutional order, viz., elections. Fairness does import an obligation to see that no
wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt natural
justice enlivens and applies to the specific case of order for total repoll although not in full
panoply but inflexible practicability. Whether it has been complied with is left open for the
Tribunal adjudication.”11

However, your lordship, there is nothing on the record to show that the Election Commission
is/would be unable to ascertain these fundamental rights to the voters. In N.P. Ponnuswami
and Ors. v. Returning Officer, Namakkal Constituency 12 the question of interpretation of
Article 329 came before the Apex Court.A six-judge bench of the Hon’ble, the Apex Court
adjudicated of the scope of Art. 329 and interpreted the meaning of ‘election’ under Article
329, holding that “the word “election” could be and had been properly used with respect to
the entire process which consisted of several stages and embraced many steps some of which
might have an important bearing on the result of the process" and, therefore, held that in view
of the provisions of Art. 329 (b) of the Constitution and s. 80 of the Representation of the
People Act, 1951, the High Court had no jurisdiction to interfere with the order of the
11
M.S. Gill v. Chief Election Commissioner, 1978 AIR 851 (para 39).
12
N.P. Ponnuswami and Ors. v. Returning Officer, Namakkal Constituency, [1952] SCR 218.
Returning Officer under Art. 226.The only way such an order could be called in question was
as laid down in Art. 329 (b) of the Constitution and Sec. 80 of the Representation of the
People Act, 1951this could be done only by an election petition presented before the Election
Tribunal after the entire process of election culminating in a candidate being declared elected
had been gone through.

Therefore, it is clear that although the commission has exclusive supervision of the conduct
of elections and that there is a bar on the courts in interference in election matters- which
even otherwise the courts must refrain themselves from interference that would have the
effect of postponing elections, the Courts are still adequately armed with the power of review
in cases where the decisions of the tribunal are malafide, arbitrary or capricious or mindless.13

(C) The Election Commission is yet to take a final call on poll dates and Covid can’t
be a valid ground for postponing polls.

Your Lordship, in 2002, Special Ref. by President (Gujarat Assembly) 14 another constitution
bench of the Hon’ble the Apex Court clarified that fixing the schedule of the election was
within the exclusive domain of the Hon’ble Election Commission only.So far as the framing
of the schedule or calendar for election of the Legislative Assembly is concerned, the same is
in the exclusive domain of the Election Commission, which is not subject to any law framed
by the Parliament. The Parliament is empowered to frame law as regards conduct of elections
but conducting elections is the sole responsibility of the Election Commission. As a matter of
law, the plenary powers of the Election Commission cannot be taken away by law framed by
Parliament. If Parliament makes any such law, it would repugnant to Article 324. ......."

Your Lordship, further in March 2020, this Hon'ble the Apex Court in State of Andhra
Pradesh v. the Andhra Pradesh State Election Commission 15 declined to interfere in the
decision of the Election Commission in postponing the elections due to Covid-19.

Moreover, on 28 August 2020, a three-judge bench of Hon'ble the Apex Court inAvinash
Thakur v. Chief Election Commissioner & Ors.16 refused to grant relief on writ petition
before it seeking to defer the Bihar assembly elections.

13
Jai Vardhan Narayan, Advocate vs The Election Commission of India, CWJC No. 7294 of 2020.
14
Special Ref. by President (Gujarat Assembly), (2002) 8 SCC 237.
15
State of Andhra Pradesh v. Andhra Pradesh State Election Commission, W.P. (Civil) No. 437/2020.
16
Avinash Thakur v. Chief Election Commissioner & Ors.Writ Petition(s) (Civil) No. 875/2020.
Similarly, this Court in Vijay Kumar Singh v. The Election Commission of India & Ors, 17
dismissed the petition by observing as under, “The reasons assigned seeking a postponement,
to our mind, do not warrant interference, particularly when the record is conspicuously
silent indicating non-application of mind by the appropriate authorities. Further, there is
nothing on record indicating that the relevant authorities are not likely to account for all
factors in determining the feasibility of conducting the elections to the Legislative Assembly
of the State of Bihar.”

Your Lordship, it must be taken note of that Vidhan Sabha elections for the State of
VrihadhPradesh were scheduled to take place in September 2021 18 but yet the Election
Commission is yet to take a final call on poll dates, it could not be assumed that the
Commission has turned a blind eye on the prevailing situation in taking its decision. The
presumption of the courts would always be the existence of bona fides in the discharge of
constitutional and statutory functions and until that presumption is displaced.19

(D) Right to Dispute Elections is a Statutory rather than Constitutional Right.

Your Lordship, it has been well established that Right to dispute election is a statutory right
rather than a Constitutional Right, hence the plea of granting a Writ Petition under Article 32
of Constitution would not sustain anymore before this Hon’ble Court. This Hon’ble Court
itself in Jyoti Basu and Ors. v. Debi Ghosal and Ors. 20, had clarified that the right to elect and
question and dispute elections is a statutory right and therefore only amenable to the special
jurisdiction of the Election Commission under the scheme of the Act. It is pure and simple, a
statutory right.So is the right to dispute an election is outside of statute, there is no right to
elect, no right to be elected and no right to dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation.

Further, an Election petition is not an action at Common Law, nor in equity. It is a statutory
proceeding to which neither the Common Law nor the principles of Equity apply but only
those rules which the statute makes and applies. It is a special jurisdiction, and a special
jurisdiction has always to be exercised in accordance with the statute creating it. Concepts
familiar to Common Law and Equity must remain strangers to Election Law unless statutorily

17
Vijay Kumar Singh Vs. The Election Commission of India & Ors, CWJC No. 7308 of 2020.
18
Moot Proposition, Page 3.
19
Id 6.
20
 Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983.
embodied.A Court has no right to resort to them on considerations of alleged policy because
policy in such matters as those, relating to the trial of election disputes, is what the statute
lays down. In the trial of election disputes, Court is put in a strait jacket. 21 Thus the entire
election process commencing from the issuance of the notification calling upon a
constituency to elect a member or members right up to the final resolution of the dispute, if
any, concerning the election is regulated by the Representation of the People Act, 1951,
different stages of the process being dealt with by different provisions of the Act.22

Further, if an election, (the term election being widely interpreted so as to include all steps
and entire proceedings commencing from the date of notification of election till the date of
declaration of result) is to be called in question and which questioning may have the effect of
interrupting, obstructing or protracting the election proceedings in any manner, the invoking
of judicial remedy has to be postponed till after the completing of proceedings in elections.23

(E) Postponement of Election would exceptionally result burdening the economic

Your Lordship, it is further contended that the postponement of elections will bring
financialchallenges for the electoral management body.These could include the sunk costs
involved in preparingfor the election such as staff and the hire ofpremises which might not be
refundable. Shouldthey be refundable, then there is an ethical question for electoral
management bodies because claiming refunds might have a knock-on consequence for others
who might already be experiencing financialhardship. In the event of postponement
theremight be future challenges involved in securingsufficient funds to run the election.
Public sectorfinances are likely to be stretched because of increasedspending on health care
business support packages, or other wider response to the emergency.

(F)High Court would satisfactorily monitor the election processes and make sure that
the Model Code of Conduct is followed properly.

It is humbly contended before this Hon’ble Court that the High Court in a much better way
candirect the Election Commission to improve, or in monitoring the election processes and in
also assuring that the Model Code of Conduct is followed properly. The same is held by this

21
Chandra Prakash v. The State of Bihar, Civil Writ Jurisdiction Case No.1072 of 2020.
22
Pashupati Nath Singh v. Harihar Prasad Singh, 1968 AIR 1064.
23
Id 20.
Hon’ble Court in A.K.M. Hassan Uzzaman v. Union of India 24that the imminence of the
electoral process is an important factor which must guide and govern the passing of orders in
the exercise of the High Court’s and that, the more imminent such process, the greater ought
to be the reluctance of the High Court to take any step which will result in the postponement
of the elections.25

Later in the case of Mohd. Yunus v. Shiv Kumar Shastri26it was held that to review the
decision as to the expediency of holding the poll on the notified date. In fact, not only would
it be open to him to reconsider his decision to hold the poll as notified, it is plainly his duty
and obligation to keep the situation under constant scrutiny so as to adjust the decision to the
realities of the situation. All the facts and circumstances, past and present, which bear upon
the question of the advisability of holding the poll on the notified date have to be taken into
account and kept under vigil. That is a continuing process which can only cease after the poll
is held.

Until then, the Election Commission has the locus, for good reasons, to alter its decision. The
law and order situation in the State, or in any part of it, or in a neighbouring State, is a
consideration of vital importance for deciding the question of expediency or possibility of
holding an election at any particular point of time.

Hence, it is humbly submitted before the Hon’ble Court that the decision upon Election
Process in the State of Vrihadh Pradesh must be rest with Election Commission only without
any interference of Court.

24
A.K.M. Hassan Uzzaman v. Union of India, (1982)2SCC218.
25
Id 6.
26
Mohd. Yunus v. Shiv Kumar Shastri, [1974]3SCR738.