No Blanket Bar On Judicial Review Of Decisions Made By Election Authority: JKL High Court
The Jammu and Kashmir and Ladakh High Court recently ruled that there is no blanket bar to the judicial review of decisions made by an Election Authority but it is only those decisions which have the effect of retarding, interrupting, protracting or stalling the completion of the election process that can be challenged in the writ jurisdiction.
A bench comprising Justice Sanjay Dhar observed,
"Anything done towards completion of election process cannot be challenged before the High Court and it is only if it is shown that the Election Authority has exercised its power arbitrarily and such action has the effect of stalling the election process, the same can be challenged by way of a writ petition".
The remarks were made while hearing a plea in terms of which the petitioner had challenged a Notification issued by the State Election Commission to for conducting re-poll of DDC constituency Hajin-A on 5th December. The notification was issued after the Authority declared the initial poll as void after finding that one of the contesting candidates was not an Indian citizen.
The Petitioner argued that improper acceptance of nomination paper of one of the candidates and her disqualification cannot vitiate the whole election. He sought a direction on the Authority to count votes polled in initial election after excluding the disqualified candidate. It was also contended that Election Authority does not have jurisdiction either to declare the polling as void or to direct re-polling.
At the outset, the High Court observed that Section 36 of Panchayati Raj Act makes it amply clear that the power of superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections under the Act vests with the State Election Commission. It observed,
"Since the provisions contained in Section 36(1) of the Panchayati Raj Act are akin to the provisions contained in Article 324 of the Constitution of India, as such, the interpretation given by the Supreme Court to the provisions contained in Article 324 in the aforesaid cases can be conveniently made applicable while tracing the scope and power of State Election Commission in terms of Section 36 of the Panchayati Raj Act. Thus, the State Election Commission is vested with the power to issue all such directions as are necessary for the conduct of elections in a fair and transparent manner. This would certainly include the power to declare a poll void and the power to order re-polling."
Deliberating on the preliminary objection raised by the respondents regarding maintainability of the writ petition on the ground that the same is premature and that the Court does not have power to interfere in the electoral matters, the bench observed even though there is no blanket bar to the judicial review of decisions made by an Election Authority but it is only those decisions which have the effect of retarding, interrupting, protracting or stalling the completion of election process that can be challenged in the writ jurisdiction.
Rejecting the argument of the counsel for the petitioner that the order of the Election Authority whereby polling held to DDC constituency Hajin-A was declared as void, is not in accordance with law and the improper acceptance of nomination of respondent No.4 has materially affected the result of the election without counting of the votes, is based upon conjectures and surmises, Justice Dhar observed that the merits of the aforesaid contention can very well be gone into by the Authority prescribed under Section 3 of the Panchayati Raj Act when the result of the re-poll will be declared, in the event that the petitioner choses to challenge the same before the said Authority.
"Stalling the re-poll by interfering in the election process by this Court in exercise of its writ jurisdiction is not permissible in view of the legal position discussed hereinbefore, as the same would amount to obstruction in the conclusion of the election process", the bench concluded while dismissing the plea.
Case Title : Abida Afzal Vs State Election Commission & Ors.
Citation : 2022 LiveLaw (JKL) 239
Coram : Justice Sanjay Dhar
Counsel For Petitioner : Mr Muzaffar Ahmad Khan, Advocate & Mr. Khursheed Ahmad.
Counsel For Respondent : Mr Hilal Ahmad Wani AAG