ELECTION COMMISSION OF INDIA THROUGH SECRETARY versus ASHOK KUMAR AND ORS.

Citation: [2000] SUPP. 3 S.C.R. 34 · Decided: 30-08-2000 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
ELECTION COMMISSION OF INDIA THROUGH SECRETARY 
B 
c 
D 
v. 
ASHOK KUMAR AND ORS. 
AUGUST 30, 2000 
[DR. A.S. ANAND, CJ., R.C. LAHOTI AND 
K.G. BALAKRISHNAN, JJ.] 
Election Laws: 
Conduct of pections Rules : Rule 59A-Apprehension of intimidation 
and victimization of electors-Notification issued by Election Commission 
under Rule 59A of the Conduct of Election Rules, 196J-For mixing of ballot 
papers before counting instead of being counted polling station-wise-
Jnteiference by High Court on bald assertion of mala fide-Unwarranted 
Constitution of India: Articles 226 & 329(b)-After commencement of 
election process powers of judicial review of orders of Election Commission 
to be exercised only on strong and substantiated allegations of mala fide, 
il/ega/ity or arbitrariness. 
E 
Assistance of Court available to presen•e evidence of irregularities and 
to correct aberrations during elections withotit thwarting or postponing the 
progress of election proceeding. 
Representation of the Peoples Act, J95J: Sections BJ & JOO-Breach 
of law having material effect on result of election-Postponement of 
p adjudication of disputes till conipleiion of election proceedings-In larger 
public interest and conducive to democratic process. 
Words and Phrases : 'Election '-Meaning of-Jn the context of Article 
329 of the Constitution of India. 
G 
The issue arising for decision in these appeals is with regard to the 
scope of the writ jurisdiction of High Courts under Article 226 of the 
Constitution of India to entertain petitions in respect of election matters and 
to issue interim directions after commencement of the electoral process, in 
view of the express bar contained in Article 329. 
H 
The present appeals were filed against an interim order of the High 
34 
' ,. 
ELECTION COMMISSION OF INDIA v. ASH OK KUMAR 
35 
Court, whereby a notification issued by the Election Commission containing A 
directions as to the manner of counting votes, was stayed. Apprehending 
intimidation and victimization of voters in certain constituencies, the Election 
Commission had, in the said notification, directed that ballot papers from all 
ballot boxes used in a constituency be mixed before counting, instead of being 
counted polling station-wise. This notification was challenged on the ground B 
that valuable evidence of booth capturing would be lost. The said notification 
was stayed by the High Court, during the currency of the process of election, 
in exercise of its writ jurisdiction under Article 226 of the Constitution of 
India. 
While issuing notices in the special leave petitions, this Court stayed C 
the impugned order of the High Court. Therefore, counting had already taken 
place in accordance with the notification of the Election Commission thereby 
rendering infructuous the present appeals. However, since a large number of 
writ petitions have been filed before various High Court seeking interim 
directions whid1 interfere with the election proceedings, the issues raised in 
these appeals were heard and decided on merits. 
D 
Allowing the appeals, the Court 
HELD: 1. Any action taken or orders issued by the Election Commission 
are open to judicial review on the well-settled parameters which enable judicial 
review of decisions of statutory bodies such as in a case of ma/a fide or E 
arbitrary exercise of power being made out or the statutory authority being 
shown to have acted in breach of law, subject to certain restrictions. (49-G) 
1.1. The Court ought not to intervene during the election proceedings 
except on a very clear and strong case for its intervention having been made 
out by raising pleas with particulars and precision and supported by necessary F 
material. (50-C) 
1.2. Without interrupting, obstructing or delaying the progress of the 
election proceedings, judicial intervention is available if assistance of the 
Court has been sought to merely correct or smoothen the progress of the G 
election proceedings, to remove the obstacles therein, or to preserve a vital 
piece of evidence if the same would be lost or destroyed or rendered 
irretrievable by the time the results are declared and the stage is set for 
invoking the jurisdiction of the Court. (49-H] 
2. The words 'no election shall be called into question' in the body of H 
36 
SUPREME COURT REPORTS (2000) SUPP. 3 S.C.R. 
.., 
A Article 329(b) provide the determinative test for attracting· applicability of 
Article 329(b). If the petition presented to th

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