CASE COMMENT: ELECTION COMMISSION OF INDIA v.

ASHOK
KUMAR (AIR 2000 SC 2979)

4.2 CONSTITUTIONAL VISION OF JUSTICING AND THEORIES

OF JUSTICE

Submitted by

Jaiverdhan Singh

UID- UGJ21-19

B.A.LL.B. (Honours in Adjudication and Justicing)

Semester-IV

Academic Session – 2022-23

Submitted to

Dr. Divita Pagey

(Assistant Professor of Law)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 Table of Contents

Sr. No. Topics Page No.

i. List of Abbreviations 1
ii. List of Cases 2
iii. List of Statutes 3
1. Introduction
2. Research Design
2.1. Aim
2.2. Objective
2.3. Research questions
2.4. Scope of the Research
2.5. Research Methodology
2.5. Hypothesis
3.
4.
5.
6.
7.
8. Analysis:
9. Conclusion
iv. Bibliography
 INTRODUCTION

FACTS OF THE CASE

 The President of India dissolved the 12th Lok Sabha on April 26, 1999, and
subsequently, the Election Commission of India announced the schedule for the
general elections that would elect the 13th Lok Sabha. In accordance with this, voting
in the State of Kerala took place on October 11, 1999 and on 6.10.1999, there was
supposed to be a vote count.
 The Election Commission of India issued a notification, that was published in the
Kerala Gazette Extraordinary on October 1, 1999. The notification was issued in
accordance with the power granted by Rule 59A of the Conduct of Election
Regulations, 1961.
 The notification directed that the ballots taken out of all of the ballot boxes used in
each of the parliamentary constituencies in the State of Kerala be mixed together
before being counted, as opposed to being counted polling station-wise, with the
exception of the Ernakulam and Trivandrum Parliamentary Constituencies where
voting was conducted with the help of electronic voting machines. This was deemed
necessary in light of the situation that existed in Kerala, in the interest of a free and
fair election, as well as for voter safety and security and in an effort to prevent voter
intimidation and victimisation in that State.
 After the issuance of the aforementioned notification, two writ petitions were filed on
April 10, 1999, questioning the legality of the aforementioned notification. In both the
writ petitions it was said that in the matter of counting, the Election Commission of
India issued guidelines on 22-9-1999 which directed - "all the ballot boxes of one
polling station will be assigned to one table for counting the ballot papers". From the
date of the aforementioned rules, nothing has changed, but on September 28, 1999,
the Election Commission of India still issued the impugned notification.
 Both the writ petitioners contended that if the votes were counted in accordance with
the notification issued on September 28, 1999, important pieces of evidence would be
lost because the allegations of booth capturing would be better supported if the votes
were counted station-by-station rather than by combining votes from different booths.
Both writ petitioners requested a temporary restraining order to suspend the
notification dated September 28, 1999. The High Court ruled that the votes needed to
be counted booth-by-booth so that the accuracy of the claims could be determined in
an election petition that would be filed later, on the basis of the numerous allegations
of booth capturing (without stating that such allegations were true).
 The High Court also accepted the claim made in the affidavits submitted in support of
the stay applications that the officers had received training on how to tally ballots
booth-wise, with or without mixing. The counting process will take longer and
involve more officers if votes from different booths are mixed together. Before the
High Court, the government leader was unable to show that the notification dated 28
September 1999 had been published in the official gazette. The High Court ordered
the Election Commission and the Chief Electoral Officer to provide instructions so
that the counting was done booth wise in accordance with the rules dated 22-9-1999
as a result of the availability of these circumstances.
 The Kerala High Court's order was stayed as a result of the Election Commission of
India's filing of SLPs before the Supreme Court. At the final hearing, the bar admitted
that the counting had occurred in compliance with the Election Commission of India's
notification of 28 September 1999 because the Supreme Court had stayed the High
Court's contested judgement. These later occurrences could be regarded to have
rendered the appeals infructuous. However, the appellant's lawyer argued that the
matter be taken up for decision as that several writ petitions have been filed before the
High Courts asking for temporary injunctions to obstruct the election process. As a
result, it would be in the public interest for the Supreme Court to rule on the merits of
the matter up for decision in these appeals. As a result, the appeals had merit.

ISSUES BEFORE THE COURT

The question of whether the High Court has the authority to consider petitions under Article
226 and to provide interim directives following the beginning of the electoral process arose in
these cases.

JUDGMENT
The use of judicial remedies must be delayed until after the conclusion of election
proceedings if an election is to be called into question and the questioning may have the
effect of interrupting, obstructing, or otherwise delaying election proceedings in any way.
The term "election" is broadly interpreted to include all steps and the entire proceedings
beginning from the date of notification of election until the date of result declaration. Any
decision requested or given will not be considered "calling in doubt an election" if it aids the
election's progress and makes it easier for it to be concluded. Nothing that is done to
complete or advance electoral processes can be referred to as calling into doubt the results of
the election. Subject to the aforementioned, the actions taken or orders issued by the Election
Commission are open to judicial review when a case of mala fide or arbitrary exercise of
power is established or the statutory body is proved to have violated the law. If assistance
from the Court has been requested to merely correct or smooth the progress of the election
proceedings, to remove obstacles therein, or to preserve a crucial piece of evidence if the
same would be lost, destroyed, or rendered irretrievable by the time the results are
announced, judicial intervention is available. When considering any election dispute that is
brought before the Court while election proceedings are still ongoing and is not barred by
Article 329(b), the Court shall exercise with extreme prudence and circumspection.
The Court shall take precautions to prevent any attempts to delay, obstruct, prolong, or stop
the electoral process. It must be carefully ensured that no attempt is made to take advantage
of the court's leniency by submitting a petition that appears innocent but is actually a ruse or
pretext for obtaining a secret or concealed goal. The Court would act reluctantly given the
circumstances and would only do so if a compelling argument had been made for its
involvement by bringing up the issue at hand.

NOTE- DETAILED ANALYSIS WOULD BE INCLUDED IN THE

FINAL DRAFT