Facts

An election appeal was filed by the appellant, who was a candidate for election to Number Seventy Parur Assembly Constituency in Kerala but was not elected. Six candidates contested the said election out of which the first respondent was a candidate of the Communist Party of India, and the appellant were the two principal contestants.

The first respondent was declared elected having secured 30,450 votes as against 30,327 votes secured by the appellant. Thus, the first respondents secured one hundred and twenty three more votes than the appellant. Of the 30,450 votes, 11,286 were vast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 made under the Representation of The People Act, 1951 and 19,182 votes were cast by means of electronic machines. This was done in pursuance of the direction issued by the Election Commission of India by virtue of a notification published in the Kerala Gazette.

The said notification was purported to have been made under Article 324 of the Constitution of India. Prior to issuing the notification the Commission had sought the sanction of the Government of India which was refused.

Judgment

Article 324 of the Constitution gave full power to the Commission in matters of superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and State Legislatures. The Commission was a formation of the Constitution and its plenary powers came directly from Article 324 and would prevail over any Act passed by the Parliament or Rules made.

It was contended that the manner of voting was a matter coming within the ambit of Articles 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be subsidiary to the power contained in Article 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections of Parliament that law must yield to Article 324, otherwise its very object would be defeated.

Notice was given by the Court to the Union of India and the Commission that they were not necessary parties.

It was found impossible to read into Article 324 such a wide and unanalysed power, which was entrusted to the Commission. Part XV of the Constitution contained Articles 324 to 328 which related to the manner in which elections were to be held, the rights of persons who were entitled to vote, preparation of electoral rolls, delimitation of constituencies, etc., but this was merely the storehouse of the powers and the actual exercise of these powers was left to Parliament under Article 325 to 329. In other words, Article 324 had to be read with Articles 326 to 329.

Thus, the trial Court upheld the validity of voting by machine and held that the respondent was duly elected to the Assembly seat.

By LawZ Bureau