Special Intensive Revision: As hearing starts, recalling a key case from 1977
The petitioners in the present challenge have questioned the ECI's power to conduct the SIR, as well as the procedure for it. Under Article 326, every citizen above the age of 18 has the right to vote. The SIR has shifted the burden of proof of citizenship on electors in some cases. The ECI has issued a new enumeration form, which is not prescribed in the Representation of the People Act, 1951, which governs the conduct of elections.
The court began hearing the challenge on Thursday.
The 1977 case
The ruling by a five-judge Bench of the Supreme Court (Mohinder Singh Gill v. The Chief Election Commissioner) came after the post-Emergency Lok Sabha election of 1977. Following violence and the destruction of some ballot papers during counting of votes for one segment of the Ferozepore (Firozpur) seat, the ECI cancelled the entire process and ordered a re-election at the seat.
Gill was leading the count at the time, and challenged the decision in Punjab and Haryana High Court under Article 226, which gives HCs the power to issue writs for the enforcement of fundamental rights and provide legal remedies for violations of law.
The court considered three questions: first, whether the ECI is empowered to order a re-poll for the entire constituency; second, whether the ECI's order violated the principles of natural justice; third, whether the HC was competent to intervene under Article 226, given the bar placed by Article 329(b) on judicial interference in election matters.
It upheld the ECI's order and dismissed the petition, saying that it lacked jurisdiction to intervene in electoral matters through a writ petition. On appeal, the Supreme Court too upheld the ECI's decision and clarified the extent of its powers.
The SC's ruling
The SC underlined the ECI's plenary powers over the 'superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of' elections to Parliament and state Assemblies under Article 324.
It said that if laws enacted by Parliament and state Assemblies under Articles 327 and 328 respectively, are silent on any aspect, the ECI must act independently and decisively to ensure free and fair elections.
The court also held that the ECI can take proactive decisions, including ordering a re-poll, if it believes that the integrity of the election has been compromised. While natural justice is an important procedural safeguard, it must be 'pragmatic and flexible', the SC said.
The court underlined that the powers of the ECI are subject to judicial review, but judicial review came into play only after the election was complete. It clarified that Article 329(b) places a 'blanket ban' on courts from intervening during an ongoing election process, although it has 'large enough powers to give relief to an injured candidate' afterward.
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