Article 329(b) Bars Mid-Election Writs, but Commission Must Hear Candidates Before Cancelling a Whole Poll: Supreme Court

For the appellant. Article 329(b) did not bar a challenge to an order that dismantled the election instead of promoting it, and section 100 did not cover the cancellation of a completed poll, so the appellant would have no remedy (para 16). Article 324 was confined to what the Act conferred; sections 58 and 64A allowed a fresh poll only at particular polling stations, and only the President could alter the notification (para 31; concurring, paras 94, 97). The order was arbitrary and made without a hearing (paras 66, 71).

For the respondents. Article 329(b) ousted the High Court's jurisdiction, and the Commission had acted fairly within Article 324, a plenary power usable where specific legislation is absent (paras 5, 31). Natural justice did not apply: elections need speed, the order was provisional because the election court had the last word, no candidate had a right before the declaration, and a hearing would have to reach the whole constituency (para 49). A hearing had in fact been given (para 56).

Article 329(b) bars the writ petition

Article 329(b) leaves an election petition as the sole remedy and excludes every other, Article 226 included, whenever a proceeding calls an election in question (para 17). Election, in its wide sense, covers every step from the Presidential notification to the declaration of the result (paras 20, 74). Following Ponnuswami, the Court separated proceedings that interfere with the progress of an election from those that further it; immunity attaches only to acts done to further a free and fair election (paras 21-22, 28). A writ petition against the cancellation coupled with a re-poll called a step in the election in question and was barred; a bare cancellation without a re-poll would have stood differently (para 25).

Article 324 fills gaps, within limits

Article 324 vests the whole responsibility for elections in the Commission, but where valid law exists the Commission must act in conformity with it; the Article operates in areas left unoccupied by legislation (paras 30-31, 74). It is a reservoir of power to push forward a free and fair election, used bona fide and under the rule of law (paras 31, 74). A re-poll of a whole constituency could be saved by Article 324 if it was bona fide necessary to vindicate the electorate's free verdict, while the particular order stayed open to scrutiny (para 31).

Natural justice applies, flexibly

After Kraipak, calling the cancellation administrative does not exclude natural justice (paras 36, 41). Urgency may shrink the hearing but not abolish it: a short hearing, an urgent meeting or a hearing immediately after the action may do (paras 46, 52-53). Civil consequences cover everything that affects a citizen in his civil life, so a candidate who has reached the end of the battle and sees the whole poll upset must get notice and a hearing (paras 55-56). Only the candidates, not the voters at large, need be heard, and the order was no mere prima facie step (paras 59-61). Whether a hearing was given was left to the election court (paras 56, 74).

Reasons cannot be supplied later

When a statutory functionary makes an order on certain grounds, its validity must be judged by the reasons so mentioned; they cannot be supplemented by fresh reasons in an affidavit or otherwise, or an order bad at the start could be validated by grounds brought out later. The Court relied on Bose J. in Gordhandas Bhanji that public orders must be construed objectively from their own language (para 7).

Full relief lies before the election court

A mal-exercise of power under Article 324 is a non-compliance with that provision and falls within section 100(1)(d)(iv), a residuary clause, as Durga Shankar Mehta had read its predecessor (paras 71-72). Under section 98 and the doctrine of implied powers, the election court can direct a re-poll of particular polling stations or of postal ballots, order a recount and, on valid grounds, declare the appellant elected (para 73). The bar of Article 329(b) is as wide as the door of section 100 read with section 98 (para 75).