P. Venkatarama Reddi, J.
1. This Writ Appeal is directed against the order passed by our learned Brother, B.Subhashan Reddy, J. in Writ Petition No. 21121 of 1994, dt. 2-12-1994. That Writ Petition under Article 226 of the Constitution of India was filed by Dr. Alladi Raj Kumar, a Member of Parliament by way of public interest litigation. The relief sought for in the Writ Petition is as follows:
'To issue an appropriate writ.........directing the respondents particularly the 1st respondent to forthwith countermand and rescind the elections to the Legislative Assembly constituencies located in the districts of Warangal, Karimnagar, Nizamabad and Adilabad and save the lives of citizens and enforce the right to life guaranteed under Article 21 of the Constitution to the electorate of the four districts'.
2. The Writ Petition was filed on 30-11-1994. It may be noticed that the elections to the Assembly constituencies in the four districts referred to above are scheduled to be held tomorrow on 5-12-1994. The basis on which the Writ Petition was filed is that there has been widespread and large scale violence in the naxalite infested districts of Adilabad, Karimnagar, Nizamabad and Warangal and a call was given by the naxalites to boycott the polls. The recent incidents of some police personnel having been killed in Warangal district in a land mine blast, the death of nine 'naxalites' in the alleged encounters in Karimnagar district, the burning of a railway coach and a bank have been cited in the affidavit filed in support of the Writ Petition. It is also stated that due to fear of naxalites, some of the Sarpanchas belonging to the Congress (I) party have resigned from their offices. Reference has been made to certain newspaper reports regarding threats and violance in some of the areas. It is further averred that the life of the Municipal Administration Minister, Sri M.Narasimha Reddy was in grave danger and he was not in a position to cover even 30% of his constituency for campaigning despite heavy security. It is stated that the same is the case with Sri M. Omkar - a Member of the Legislative Assembly. In short, it is stated that the orgy of violence is of such magnitude that free and fair election is not possible at this juncture in these Districts without risking the lives of several innocent people. With regard to the role of the first respondent viz., the Chief Election Commissioner, it is stated in paragraph (8) as follows:
'The first respondent though very famous for his prompt action, is however in the present context in a helpless condition as he is not fed with the correct and accurate information about the law and order situation in the State especially in the naxalite dominated districts of Adilabad, Karimnagar, Nizamabad and Warangal districts..'
3. By the time the Writ Petition was taken up for hearing on 2-12-1994, a counter-affidavit sworn to by the Inspector General of Police (Law & Order) has been filed on behalf of respondent Nos. 3 and 5 viz., the State Government and the Director General of Police. Inter alia, it is stated in the counter that the acts of violence by left wing extremist group have been going on in the State of Andhra Pradesh for the past 25 years and it is not a new phenomenon and even in the past, there had been several instances of land-mine blasts. It is further stated that the peoples' War Group - a left wing extremist group, gave the call for poll boycott in the earlier elections also. It is then stated that the poll-related violences attributable to the activities of Peoples War Group are comparatively less in the present elections. It is asserted that the two recent incidents of land mine blasts did not in any way disrupt the life of common man. Then, a reference has been made to the precautionary and preparatory measures that are being taken to maintain law and order especially from the point of view of preventing the attacks and intimidatory tactics on the part of the extremist groups. It is also submitted that armed security officers have been provided to the candidates round the clock. It is stated that the Chief Election Commissioner has appointed 20 observers who are highly placed Government Officials to cover these four districts and all these observers have been provided with transport and adequate security. It is finally submitted that the law and order situation in these four districts is not as alarming as is depicted by the writ petitioner, but is conducive for conduct of peaceful elections in general. It is also stated that the elections are being conducted under the supervision and directions of the first respondent whose instructions are being given effect to respondent scrupulously and the first respondent is being informed of the periodical developments in the State.
4. Sri K. Pratap Reddy, senior Counsel, was permitted to intervene on behalf of Sri M. Narasimha Reddy and Sri M. Omkar regarding whom a reference has been made in the Writ Petition. The learned Counsel supported the stand taken by the respondents in the writ petition and he stated that his clients were not for the postponement of the polls and there was no insuperable hindrance for the conduct of free and fair elections notwithstanding the threats of some extremist groups.
5. On 30-11-1994 when the Writ Petition was first taken up for hearing, the learned Judge had called for a report from the Chief Election Commissioner. On 2-12-1994 Sri C.P. Sarathy, the learned Counsel appearing for the Chief Election Commissioner, placed before the learned Judge a fax message sent by the Chief Election Commissioner. In that fax message, while taking an objection that the Writ Petition was barred by Article 329(b) of the Constitution of India and that the opinion or decision of the Election Commission in the matter of conduct of elections cannot be reviewed by the Court, the Chief Election Commissioner has stated as follows with regard to the factual position:-
'The Commission is keeping a close watch on the law and order situation and every related developments in the areas concerned. The Commission has obtained two detailed reports from the State Government through the Chief Electoral Officer, Andhra Pradesh. The copies of these reports may be obtained by you from the Chief Electoral Officer for your use. On the basis of the informations received so far from the State Government and Chief Electoral Officer of Andhra Pradesh, the Commission is of the view that no postponement of polling in any of the Assembly Constituencies in the State of Andhra Pradesh is required at present. The Commission will however, continue to monitor the situation and take appropriate action at appropriate time'.
6. The reports submitted by the Chief Electoral Officer and Principal Secretary to Government on 29-11-1994 and the report of the Chief Secretary to the Government have been placed before the learned single Judge as well as before us.
7. On 2-12-1994 the learned Judge passed a detailed order, pending admission of the Writ Petition. In his order, the learned Judge, more than once, recognised and emphasised the fact that once the election process is on, the election Commission is the sole and exclusive authority in the matter of conduct of elections and that 'the Court may not interdict or interfere in the functions of the Election Commission'. In the penultimate para, the learned Judge observed thus:
'......I am prima facie satisfied that there is a pre-poll violence in some areas. But what is the effect of the same on the elections is to be judged by the Election Commission. If the Election Commission becomes satisfied that on account of some circumstances that have supervened since the original date of polling was fixed, a fair poll cannot be taken, it is the duty of the Commission to fix fresh date for the poll'.
8. Here again the learned Judge has not stated anything which impinges on the power and authority of the Election Commission.
9. However, on the basis of the following observations made in the judgment, the learned Judge felt it right and appropriate in exercise of the jurisdiction under Article 226 of the Constitution of India to monitor the prevailing 'situation and to issue appropriate directions in regard to the postponement of polls or otherwise in the light of the further report of the Election Commission. In paragraph (9) of the judgment it is stated thus:
'But, it is stretching too far to say that this Constitutional Court has got absolutely no say at this juncture only on the ground that the election process had begun and that impliedly under Article 324 and expressly under Article 329(b) of the Constitution, this Court is precluded from considering the complaints made in this writ petition, that too touching on the aspect of democracy and right to life and liberty which is the deeply cherished fundamental right guaranteed under Article 21 of the Constitution of India'.
10. In paragraph (10) of the judgment it is observed thus:
'..........Every citizen enlisted as a voter is entitled to cast his vote according to his choice. No fetters can be placed on the said right. If he is restrained from exercising his franchise either physically or by oppressive methods, the same will be a flagrant violation of the fundamental right enshrined under Article 21 of the Indian Constitution. It is the duty of the Election Commission to see that the said right of the electorate is not fettered, scuttled or frustrated in any manner.......'
11. Having referred to some of the laudable steps taken by the Chief Election Commissioner to ensure free and fair election, the learned Judge observed as follows:
'.......But, such steps for free, fair and smooth elections are not complete and the same will be effective only when the voter is permitted to exercise his franchise freely without any fetters or threats and as the same concerns the democratic process and the fundamental right under Article 21 of the Constitution, there is no constitutional restrained on this Court to direct the Election Commission to take steps to avoid any action which will have the adverse effects on the right to vote by the electorate. The Chief Election Commissioner shall further review the situation at frequent intervals from today till the elections are over and take appropriate decision and before the conduct of elections on 5th December, 1994, he shall finally review the situation and record a finding by the time I re-assemble on 4th December, 1994, as to whether the circumstances are conducive to conduct the election or not..........'
12. At the close of the judgment it was brought to the notice of the learned Judge that the Election Commission had further reviewed the law and order situation and the arrangements made for the conduct of poll in these districts on 2-12-1994 and came to the conclusion that free and fair poll was possible as per schedule in all the Assembly constituencies in those districts. It was further stated in the communication placed before the Court that the Commission would continue to monitor the position. Adverting to this report, the learned Judge observed that in the light of further monitoring and reviewing of the law and order situation by the Election Commission, a decision has to be taken by the Court. The learned Judge therefore directed the Writ Petition to be posted for further hearing and orders on 4-12-1994 at 4.00 pm.
13. It is against this order, the Chief Election Commissioner has filed the Writ Appeal after we granted the permission to the Counsel for the appellant to move a special motion today.
14. We have heard Sri C.P. Sarathy, Counsel for the appellant as also Sri S. Ramachandra Rao, Counsel for respondent No. 1 (writ petitioner), the Advocate-General for Respondent Nos. 2, 3 and 5 and Sri Pratap Reddy, Counsel for the interveners, on the merits of the appeal as on the expiry of two days, the writ petition as also the Writ Appeal, if not decided, will become infructuous.
15. It is the contention of the learned Counsel appearing for the appellant- Chief Election Commissioner and of the learned Advocate-General that this Court should not have entertained the Writ Petition under Article 226 of the Constitution of India and proceeded further in the matter, that the Writ Petition is not maintainable in view of the bar enacted by Article 329(b) of the Constitution of India, that there was no need to give any directions to the Chief Election Commissioner in view of the categorical statement of the Chief Election Commissioner that he has been regularly and constantly taking stock of the situation obtaining in the abovesaid four districts of Andhra Pradesh and that in any case the Court cannot sit in judgment over the decision or steps taken by the Chief Election Commissioner in this regard. It is further contended by the learned Advocate-General and the learned Counsel for the interveners that the writ petitioner is not a voter in any of these four districts and no candidate or elector from those districts has made any complaint before this Court and that the public interest litigation shall not be allowed to be brought out by such person. It is pointed out that elections were peacefully held in almost all the constituencies of some other Telangana districts which are also afflicted with the problem of extremist menace.
16. In reply to these arguments the learned Counsel for the first respondent- writ petitioner contended that the appeal itself is not maintainable under Clause 15 of the Letters Patent, that Article 329(b) does not come in the way of the writ petitioner inasmuch as he is seeking to enforce the fundamental right guaranteed under Article 21 of the Constitution of India and that having regard to the extraordinary situation prevailing in the extremist-dominated districts, it is eminently a fit case where this Court should step in and issue appropriate directions with regard to the postponement or cancellation of poll. The learned Counsel submits that the writ petitioner being a Member of Parliament and familiar with the conditions prevailing in the Telangana districts can file the writ petition by way of public interest litigation.
17. In the light of the above arguments, we shall first take up the question whether the appeal is maintainable.
18. It is true that the Writ Petition is still pending and it has not been disposed of finally. It is also true that it is only against a 'judgment' that an appeal under Clause 15 of the Letters Patent can be filed. But, we are of the view that the views expressed by the learned single Judge regarding the maintainability of the Writ Petition and the amenability of the Election Commission to the supervisory jurisdiction under Article 226 of the Constitution of India are such that could be regarded as a 'judgment' within the meaning of Clause 15 of the Letters Patent. The various observations extracted above would make it fairly clear that the learned Judge was of the definite view that a constitutional Court exercising jurisdiction under Article 226 of the Constitution of India could legitimately subject the actions and steps taken by the Election Commission with regard to the superintendence and conduct of polls to scrutiny and can issue appropriate directions on the subject-matter of holding elections for constituting a new Legislative Assembly. The objection raised, which is in the nature of preliminary objection, on behalf of the appellant has been negatived by the learned Judge in terms of the observations he made especially at paragraph (9) of the judgment.
19. The scope and ambit of the expression 'judgment' for the purpose of Clause 15 of the Letters Patent has been succinctly laid down by the Supreme Court in the leading case of Sham Babulal Khimji v. Jayaben, AIR 1981 SC 1786. The following observations at paragraph 113 dealing with a preliminary judgment are quite apposite in this context:-
'A preliminary judgment - This kind of a judgment may take two forms - (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench'.
20. Applying the above test enunciated by the Supreme Court, it cannot be doubted that the order under appeal is a judgment. It is a judgment because the learned Judge has stretched his jurisdiction to a subject-matter which, if the contention of the appellant is to be accepted, falls beyond the scope of the supervisory jurisdiction of the High Court under Article 226 of the Constitution of India. It may be that the learned Judge has not yet given any directions which have immediate impact on the control and superintendence of the election process by the Election Commission; nevertheless, the learned Judge did, with a view to review and scrutinize the decision of the Election Commission, set down the case for further hearing on the clear assumption that the High Court could exercise such jurisdiction notwithstanding Article 329(b) of the Constitution. The observation made or the views expressed by the learned Judge would, undoubtedly have far-reaching repercussions vis-a-vis the functioning and parameters of the authority of the Election Commission of India. We are, therefore, of the view that the order passed by the learned single Judge is a 'judgment' within the meaning of Clause 15 of the Letters Patent.
21. The next aspect which is of foremost importance is whether the view expressed by the learned Single Judge regarding the powers of High Court under Article 226 to entertain the writ petition and to issue appropriate directions to the Election Commission in the situation pointed out by the learned Judge, is tenable in law. Article 329(b) lays down an embargo against impugning an election to the House of Parliament or to the House of Legislature of a State except by way of an Election Petition, as provided for by law. It is settled law that the word 'election' occurring in clause (b) must be construed in a wide sense so as to connote the entire process culminating in a candidate being declared elected. It is not merely confined to the actual result of the poll if there is a poll, or a candidate being returned unopposed when there is no poll (vide the observations of the Supreme Court in Election Commission of India v. Shivaji, : [1988]1SCR878 ). Cases after cases say in unequivocal terms that in matters relating to the superintendence and conduct of elections fall exclusively within the realm of the Election Commission which has a plenary power to take such steps or decisions as may be needed to facilitate a process of election smooth and fair. It is further ordained in a catena of decisions of Supreme Court that any Court including the High Court has no jurisdiction to interfere with the process of election once commenced. We may in this connection refer to some of the decided cases. In Election Commission of India v. Shivaji, : [1988]1SCR878 the challenge was to the notification fixing a calendar of events for election to Legislative Council. The High Court, after entertaining the writ petition, interfered with the election process by postponing the last date for withdrawal and again by staying the poll. The Supreme Court disapproved the course adopted by the High Court observing as follows:-
'...... .The High Court failed to recall to its mind that it was not its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election. If there was any such error committed in the course of the election process, the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi : [1978]2SCR272 and to see that the election process was completed in a fair manner.....'
It was further observed:
'.......High Court was in error in thinking that it alone had the exclusive power to protect the democracy.............Sometimes the existence of democracy also depends upon the observance of restraint on the part of constitutional functionaries..........'
22. In Inderjit Barua and Ors. v. Election Commission of India, : AIR1984SC1911 the High Court had issued a direction that unless the revision of electoral rolls was complete, election should not be held. In that case, it was contended that the electoral rolls of 1979 were void and the elections ought not to be conducted on the basis of such invalid electoral rolls. The Supreme Court rejected the contention holding as follows:
'............In the first place, Article 329(b) of the Constitution bars any challenge to the impugned elections by a writ petition under Article 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the ban of Article 329(b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the ban of Article 329(b) therefore does not stand in the way of the writ petitions filed by them challenging the impugned elections. But, we do not think this escape route is open to the petitioners........'
Again, at paragraph 4 it was observed:
'.......we may reiterate once again that even if the electoral rolls of 1979 were invalid, that would not affect the validity of the impugned elections nor would a writ petition under Article 226 of the Constitution be maintainable, for challenging the impugned actions........'
Adverting to the contention that the Election Commission should be directed to suo motu carry out an inquiry for the purpose of determining whether any of the persons whose names were included in the electoral rolls of 1979 or earlier electoral rolls were citizens or not, and to delete their names if they were not found to be citizens, the Supreme Court made the following pertinent observations:
'......It is entirely for the Election Commission to decide in the exercise of its discretion whether it should carry out any such revision suo motu under Rule 25 of the Electoral Registration Rules, 1960. We cannot direct the Election Commission to carry out such revision which under the law it may do on its own. The only direction which we own give to the Election Commission is to carry out revision of the electoral rolls in the Representation of the People Act, 1950 and the Electoral Registration Rules, 1960. But since the Election Commission has stated before us that it will carry out revision of the electoral rolls and that such revision shall, as far as practicable, be intensive revision and where it is not so practicable, it will be summary or special, we do not think it necessary to give any further directions to the Election Commission'.
23. The above observations of the Supreme Court are of immediate relevance to the facts of the present case as well. It may be recalled that in the instant case the Chief Election Commissioner stated in categorical terms that he was constantly and continuously monitoring the situation on the basis of the reports obtained from various sources. In view of the clarification given by the appellant it would be inappropriate for this Court either to remind the Election Commission of its duty or to issue an ad hoc direction to the Election Commission to record a finding as to whether the circumstances are conducive to conduct the election or not, and to submit the same to the Court.
24. The next case which deserves notice is the decision of the Supreme Court in Hassan Uzzaman v. Union of India, : (1982)2SCC218 . In that case, the Supreme Court held that the High Court acted within its jurisdiction in entertaining the writ petition and in issuing the Rule Nisi for the reason that the vires of the particular provisions of the Election Law was questioned. At the same time, the Supreme Court found fault with the interim order passed by the High Court which had the effect of postponing the elections to the State Assembly. That was also a case in which the petition under Article 226 was filed challenging the electoral rolls. The Supreme Court observed:
'......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 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. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the Courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution. The High Court must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of election to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution.......'
25. Apart from indicating the limitations on the exercise of power under Article 226 of the Constitution from the stand-point of Article 329, the Supreme Court has enunciated the test of imminence of electoral process as a guiding factor in passing orders in exercise of the writ jurisdiction. If that test is adopted, there is no scope at all to pass any orders either with a view to oversee the functioning of the Election Commission, or to hold up the election process, because the election process has reached the advanced stage and even the electioneering campaign has almost come to a halt by the date of passing of the order by the learned Single Judge. The question as to what appropriate interim orders could be passed at this belated stage is somewhat academic here, inasmuch as the very maintainability of the writ petition is a bar in the instant case.
26. In the present case, it may be noticed that the relief sought for is to countermand and rescind the election to the Assembly Constitutencies located in the four Districts. Thus, the intervention of the Court is sought for in respect of the very subject-matter which has been placed above challenge by a specific constitutional provision enshrined in Article 329(b). The relief sought for squarely falls within the mischief of prohibition laid down in Article 329(b), as interpreted and expounded by various decisions of the Supreme Court including the ones which we have referred to earlier.
27. Faced with this difficulty, learned Counsel for the 1st respondent urges the plea of infringement of personal liberty guaranteed under Article 21 of the Constitution to counter the argument based on Article 329(b) of the Constitution. We find it difficult to accept this contention. It is indisputable that the right to exercise franchise is a statutory right but not a fundamental right. True, if a person is physically prevented from casting his vote by reason of violence or intimidation, it may in one sense affect the right to personal liberty; but the moment a complaint is made that the right to life or personal liberty is being jeopardized in the process of holding election, it is not open to the High Court to extend its arm of supervisory jurisdiction and consider the question whether the election schedule has to be revised or modified. The reason is obvious. Advisedly that jurisdiction has been vested with the Election Commission to the exclusion of all other authorities including Courts. Otherwise, there is no purpose and meaning in Article 329. If a challenge to the on-going election process is to be entertained on grounds of this nature, we are afraid that unintended obstancles may be created in the way of election of candidates to the State Legislature or the Parliament, thereby imperilling the very fabric of democracy. We do not, therefore, endorse the view of the learned Single Judge that, in order to probe into the complaint of violation of the fundamental right guaranteed under Article 21, the High Court has to necessarily exercise its jurisdiction under Article 226 and grant appropriate directions as to how and when the election should be held. That would amount to ignoring the constitutional mandate of Article 329(b), and perhaps encroaching on the powers conferred on the Election commission by the express provisions of the Constitution.
28. No doubt this Court acts as a sentinel quivive to protect and enforce the fundamental rights, more so the right to life and liberty enshrined in Article 21, but in a case of this nature where the postponement or cancellation of poll is sought for on the ground of apprehended threat to personal liberty of the voters in general, this Court cannot do anything which has the effect of postponing or superseding the election schedule. The question of the alleged infringement of personal liberty in the event of a poll being held is not something which can be divorced from the issue of holding the elections. It would have been a different matter if by an executive action the right of personal liberty of the voters has been interfered with and the individuals concerned make a complaint on that count. But, when the elections are sought to be conducted under the auspices of the Election Commission, the situation giving rise to pre-poll violence or apprehended violence preventing persons from exercising their franchise could be looked into by the Election Commission, and the provisions are not lacking in the Representation of the People Act to take care of such situations and to devise remedial measures. In the guise of espousing the cause of unidentified persons on the ground that their liberty might be at stake, it is not open to the petitioner to invite the intervention of this Court contrary to the constitutional scheme under which the Election Commission is vested with all necessary and incidental powers.
29. Learned Counsel for the first-respondent then argued that the constitutional bar under Article 329(b) would come into play in such events or contingencies that are contemplated by the Representation of the People Act (hereinafter referred to as 'the R.P. Act') as affording the right to question the election by way of an election petition order Section 100 of the Act. That takes us to the question whether the non-postponement of the poll on the ground of violence and coercion would be a relevant ground to question the election in an election petition. We are of the view that it does fall within one of the grounds set out in Section 100 of the R.P. Act, 1951. An election can be set aside on the ground of non-compliance of the provisions of the Constitution, or of the R.P. Act, or the Rules or Orders made thereunder, provided, of course, the result of the election has been materially affected. Section 57 provides for adjournment of poll in certain emergencies. If the poll at any Polling Station or place is interrupted or obstructed by any riots or open violence, or if it is not possible to take the poll on account of any natural calamity or any other sufficient cause, the Presiding Officer or the Returning Officer, as the case may be, shall announce adjournment of the poll to a date to be notified later. Thereafter, the Returning Officer shall report the circumstances to the Election Commission and he shall, with the previous approval of the Election Commission, appoint a date on which the poll shall recommence. Section 58 provides for fresh poll in the case of destruction etc. of ballot-boxes. Here again, the Election Commission is invested with the power to declare the poll at the Polling Station, or the place concerned, to be void, and appoint a date for fresh poll. Section 58A provides for adjournment of poll, or countermanding of elections on the ground of booth-capturing. If arty such situation arises, the Returning Officer shall forthwith report the matter to the Election Commission, and the Election Commission shall, on receipt of report from the Returning Officer and after taking all material circumstances into account, declare the poll at the particular Polling Station or place, to be void and appoint a date for taking fresh poll. Where such mal-practices have occurred on a large scale, the election in the entire Constituency could even be countermanded. These provisions contemplate not merely a discretion but a statutory duty to adjourn or countermand the poll, or to direct fresh poll. The failure to discharge such duty, undoubtedly, amounts to non-compliance with the provisions of the R.P. Act and the Rules. Thus, the proposition put forward by the learned Counsel for the first-respondent that it is not possible to file an election petition in case the poll is held or proceeded with despite violence or for other compelling reasons, does not merit acceptance. Thus, viewed from any angle, we are of the view that the writ petition under Article 226 is itself not maintainable and it should have been dismissed in limine.
30. The question whether a petition filed in public interest is maintainable may now be considered.
31. Obviously, if a petition under Article 226 cannot be filed in view of the bar created by Article 329(b), a petition filed in public interest which, incidentally, is also filed under Article 226, will not be maintainable.
32. Let us, however, proceed further to scrutinise the exact nature of the petition. Petitioner is a member of the Telugu Desam Party and is a sitting Member of Rajya Sabha. He, in his capacity as Member of Parliament (Rajya Sabha), is a representative of the people. He is a voter mentioned in the Electoral Roll of Hyderabad. He does not belong, as he does not say so, to any of the four districts, namely, Adilabad, Nizamabad, Karimnagar and Warangal, where polling is to take place on 5th December, 1994. He does not say that he had undertaken election work in those districts. He does not say that he had participated in the election meetings or election canvassing or door to door meetings with the voters. It appears that there are six national parties in the election who have set up their candidates. What is the mood of the voter; to what extent have they been motivated for participation in the election or do they suffer from fear psychosis and, therefore, may not exercise their franchise or may, if they are under threat, cast their vote under duress are factors on which petitioner has not adverted to. Obviously, he having not toured those districts during the period when election campaigning was in full swing is unaware of the ground realities and has merely attempted to move the Court on the basis of Press reports so that one can legitimately question whether this is a public interest litigation or a politically motivated petition. If 66.85 lakhs of voters belonging to 44 Assembly Constituencies, as also the candidates, the workers, the polling agents and staff are determined to participate in the election so as to complete the democratic process, the Court will not, merely at the instance of one individual, intervene in the matter and stall the election process.
33. In the instant case, there is no executive action by which any person is being deprived of his life and liberty. The right to vote is a statutory right and the election law nor any Notification of the Election Commission makes it compulsory for any one to vote at the election. But the fact remains that elections have to be held in a free and fair manner so that every one may exercise his right to vote without any compulsion or duress. It is a job of the Election Commission, which has been given sufficient liberty under the Act as also various provisions of the Constitution to make arrangements for a free poll and if there is any apprehended violence, to adjourn the poll and take other remedial steps. There is, therefore, no infringement of Article 21 involved in the present election process by taking a decision.
34. Lastly, the learned Counsel for the 1st respondent, Sri Ramachandra Rao urged that the reports sent up by the State Government Officials including the Chief Electoral Officer coupled with the averments in the counter-affidavit make it clear that incidents of pre-poll violence have been very much there and even the poll-personnel and the officials are afraid to move freely and in a situation gripped by fear psychosis it is not at all desirable to hold the elections. Here again, we would like to stress that it is for the Election Commission to assess the magnitude and dimensions of the problem created by activities and movements of under-ground extrimist groups and to take appropriate decisions and steps as the situation warrants. In fact, the Chief Election Commissioner made it clear that the Commission was keeping a close watch and it would monitor the situation continuously. In view of such categorical statement by the appellant-which statement has not been doubted by the learned Judge, It was not at all necessary to call upon the appellant to record a finding again as to the situation in the four districts and to report the matter to the Court. We have no reason to think that an independent constitutional functionary such as the Chief Election Commissioner will fail in his duty or he would act in a manner forsaking the safety of the public. While we appreciate the anxiety of our learned brother to contribute in his own way to the purity of democratic process of elections, we are constrained to observe that under the present constitutional scheme, it is not possible for this Court to exercise jurisdiction under Article 226 of the constitution or otherwise to monitor the functioning of the Election Commission in regard to conduct of polls and perform the functions which are confided to another constitutional authority.
35. We may before closing the judgment refer to the Constitution Bench decision of the Supreme Court in Election Commission of India v. State of Haryana, : [1984]3SCR554 .
The question there arose whether the decision taken by the Election Commission to hold the bye-election was proper in view of the law & order situation as sought to be projected by the Government of Haryana. This is what the Supreme Court had to say:
'.......The difference between the Government of Haryana and the Chief Election Commission centres round the question as to whether the position of law and order in the State of Haryana is such as to make it inexpedient or undesirable to hold the proposed bye-election at this point of time. The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control. But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission.......'
The Supreme Court remarked that the correspondence between the Chief Secretary of Haryana and the Chief Election Commissioner shows that the latter had taken all the relevant facts and circumstances into account while taking the decision to hold the bye-election in accordance with the proposed programme. The Supreme Court then observed;
'.....The situation of law and order in Punjab and to some extent in Haryana is a fact so notorious that it would be naive to hold that the Election Commission is not aware of it.........We see no doubt that the Election Commission came to its decision after bearing in mind the pros and cons of the whole situation. It had the data before it. It cannot be assumed that it turned a blind eye to it. In these circumstances, it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of the bye-election.............'
36. The controversy raised before us is very much similar to the one which the Supreme Court had to decide in the aforementioned case. The observations of the Supreme Court apply with equal force to the case on hand.
37. Having regard to the view taken by us that the writ petition itself is not entertainable and this Court cannot, in law, grant directions regarding the method and manner of conducting elections or the postponement or countermanding of the polls, the order of the learned Single Judge is liable to be set aside and, accordingly, we allow the appeal preferred by the Chief Election Commissioner. We make no order as to costs.