BENGAL STATE ELECTION COMMISSION AND ORS.versusCOMMUNIST PARTY OF INDIA (MARXIST) AND ORS.

100                       [2018]
               SUPREME COURT     10 S.C.R. 100
                              REPORTS                      [2018] 10 S.C.R.


A      WEST BENGAL STATE ELECTION COMMISSION AND ORS.
                                        v.
          COMMUNIST PARTY OF INDIA (MARXIST) AND ORS.
                         (Civil Appeal No. 8515 of 2018)
B                              AUGUST 24, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                   DR. D.Y. CHANDRACHUD, JJ.]
             West Bengal Panchayat Elections Act, 2003 – Panchayat
      elections – Electoral process – Filing of nominations electronically
C
      – As regards, panchayat elections in the State of West Bengal,
      issuance of directions by the Division Bench of the High Court to
      accept nominations submitted in the electronic form – Names of
      those candidates to be published in the list of candidates contesting
      the panchayat elections – Challenge to – Held: High Court erred in
D     issuing directions for the acceptance of nominations in the electronic
      form – Neither the Panchayat Elections Act nor the Rules contemplate
      the filing of nominations in the electronic form – Any reform of the
      electoral process to permit the filing of nominations electronically
      would have to be carried out by a legislative amendment – Moreover,
      the election process had already been initiated and the last date for
E
      the filing of nominations was over – Also the said directions issued
      by the High Court contrary to the principle of self-restraint which
      governs the exercise of the jurisdiction u/Art. 226 once the election
      process commences as also the direction contrary to the provisions
      of Art. 243 O – In view thereof, order of the High Court directing
F     the acceptance of nominations in the electronic form set aside –
      Constitution of India – Arts. 226 and 243-O – Election Laws.
             Pursuant to the notification issued by the State Government
      for holding panchayat elections in West Bengal, the election
      process commenced. The election notification led to various
G     litigations. Before the Division Bench of the High Court, issue
      arose as regards acceptance of nomination already filed in the
      electronic form by the State Election Commission. The Division
      Bench directed the State Election Commission to accept
      nominations in the electronic form of those candidates who had
      filed and submitted them electronically to the panchayat returning
H
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                     101
              PARTY OF INDIA (MARXIST)

officers by the specified time. The names of such candidates were      A
directed to be published in the list of candidates contesting the
panchayat elections. Hence the present appeal.
      Allowing the appeals, the Court
      HELD: 1.1 While the Division Bench of the High Court
may have been guided by a desire to ensure a free and fair election,   B
the direction to accept nominations in the election form has clearly
transgressed the permissible area within which the jurisdiction
under Article 226 could have been exercised. The jurisdiction
under Article 226 has to be exercised in a manner consistent
with law. The Panchayat Elections Act contains detailed provisions     C
in Part VI for the conduct of elections. Chapter VII contains
provisions for the nomination of candidates. Sub sections 1 and 2
of Section 46 require that nominations have to be delivered in
person by the candidate or through the proposer. Chapter I of
Part IV of the West Bengal Panchayat Elections Rules, 2006
contains supplementary provisions inter alia for the nomination        D
of candidates. [Para 16, 17] [113-H; 114-A-B; 115-E]
       1.2 The provisions contained in the Panchayat Elections
Act and rules constitute a complete code in regard to the conduct
of the election, including in the matter of filing of nominations.
Neither the Panchayat Elections Act nor the Rules contemplate          E
the filing of nominations in the electronic form. Any reform of the
electoral process to permit the filing of nominations electronically
would have to be carried out by a legislative amendment. The
High Court ought not to have issued a mandatory direction of
this nature in the face of the specific provisions contained in the    F
Panchayat Elections Act and Rules. Moreover, the election
process had already been initiated. The last date for the filing of
nominations was over. The directions issued by the High Court
are in the teeth of the settled principle of self-restraint which
governs the exercise of the jurisdiction under Article 226 once
the election process commences. Moreover, such a direction             G
would be contrary to the provisions of Article 243 O of the
Constitution. In this view of the matter, the High Court was in
error in issuing directions for the acceptance of nominations in
the electronic form. [Paras 18, 19] [115-F-H; 116-A-B]
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102            SUPREME COURT REPORTS                      [2018] 10 S.C.R.


A           1.3 While issuing notice in these proceedings, this Court
      directed that the election which was scheduled to take place on
      14th May 2018 shall proceed in accordance with law and upon its
      conclusion, the results would be notified. However, the State
      Election Commission was directed not to notify the results in
      respect of constituencies where there was no contest, without
B
      the leave of the Court. An affidavit has been filed setting out the
      data in relation to uncontested seats, on behalf of the State Election
      Commission. The data placed on the record indicates that out of
      a total of 58,692 seats combined for Gram Panchayats, Panchayat
      Samiti and Zila Parishads, 20,159 seats have been uncontested.
C     3,096 seats out of the 16,860 seats representing 36.1 per cent of
      the total seats for Gram Panchayats have been uncontested. In
      the case of the Panchayat Samitis, 33.5 percent of seats were
      uncontested while 24.6 percent seats for Zilla Parishads were
      uncontested. [Para 20] [116-B-F]
D            1.4 Any dispute regarding the election has to be pursued
      in the manner which is provided in Part VII of the Panchayat
      Election Act. The Panchayat Elections Act is a complete code in
      regard to the conduct of the poll and for the resolution of disputes
      concerning the validity of the election. Article 243K entrusts the
      superintendence, direction and control over the conduct of all
E     elections to the panchayats in the State Election Commission.
      The discipline which is mandated by the provisions of the
      Constitution and enforced by the enabling state law on the subject
      must be maintained. Any dispute in regard to the validity of the
      election has to be espoused by adopting a remedy which is known
F     to law namely through an election petition. It is at the trial of an
      election petition that factual disputes can be resolved on the basis
      of evidence. [Paras 25-27] [118-B, F-G; 119-A-B]
            Boddula Krishnaiah v State Election Commissioner, A.P.
            (1996) 3 SCC 416 : [1996] 3 SCR 687 ; NP Ponnuswami
G           v Returning Officer, Namakkal Constituency
            [1952] SCR 218 ; Lakshmi Charan Sen v AKM Hassan
            Uzzaman (1985) 4 SCC 689 : [1985] 1 Suppl. SCR
            493 – referred to.


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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                     103
              PARTY OF INDIA (MARXIST)

       1.5 It would be inappropriate for this Court to exercise its    A
jurisdiction to interdict the declaration of results of the
uncontested seats. First and foremost, it is necessary for the Court
to notice that no specific relief was claimed before the High Court
in regard to those seats where there was no contest. Neither
were there adequate pleadings nor indeed were specific prayers
                                                                       B
set up before the High Court when its jurisdiction under Article
226 was invoked. The proceedings before the High Court were
brought by several political parties, each of whom would have
been well aware of the situation on the ground and the need to
formulate an adequate basis in fact to invoke the jurisdiction of
the High Court. Absent such a factual foundation, the High Court       C
dealt with the only issue which had been addressed, which was
the plea that nominations should be allowed to be filed in the
electronic form. No other plea was raised. The second important
consideration which must weigh with the Court is that if the above
submission is accepted, election results to over 20,000 seats will
                                                                       D
be set at naught in the absence of the affected parties before the
Court. Thirdly, once the election process has commenced, it is
trite law that it should not be interdicted mid stage. The electoral
process is afforded sanctity in a democracy. That is the reason
why in a consistent line of precedent, this Court has insisted upon
the discipline of the law being followed so that any challenge to      E
the validity of an election has to be addressed by adopting the
remedy of an election petition provided under the governing
statute. For this Court to set aside elections to over 20,000 seats
would be to prejudge the basic issue as to whether in each of
those constituencies, the election stands vitiated by obstruction
                                                                       F
having been caused to candidates from filing their nominations.
A general assumption of this nature cannot be made. Ultimately
whether this is correct would depend upon the evidence adduced
in the facts of individual cases where such a grievance has been
made in an election petition. The Court has been apprised that
approximately 1,700 complaints were filed and about 168 election       G
petitions have been instituted. Any challenge to the election must
take place in a manner which is known to law. [Para 29]
[120-D-H; 121-A-B]
      1.6 Under Section 79(1) a period of 30 days is prescribed
for instituting an election petition, where a dispute arises as to     H
104            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     the validity of an election. The period of 30 days commences
      after the date of the declaration of the results of the election.
      The pendency of these proceedings may have dissuaded
      aggrieved individuals from seeking recourse to the remedy of an
      election petition, particularly after the interim order of this Court
      restraining the State Election Commission from notifying the
B
      results of the constituencies where there was no contest. While
      the validity of the elections must be tested in election petitions
      under Section 79(1), the question as to whether there was a large
      scale obstruction from filing nominations is a serious matter which
      needs to be resolved. This is particularly because even the
C     Election Commission, had proceeded to take notice of the grim
      situation while extending the date for the filing of nominations.
      Having regard to the seriousness of the allegations and bearing
      in mind the fact that these proceedings were pending, it would
      be necessary to exercise the power under Article 142 of the
      Constitution to extend the period of 30 days for the filing of
D
      election petitions in respect of the uncontested seats.
      [Para 30] [121-C-E]
             1.7 The challenges in regard to the validity of the elections
      to the uncontested seats in the panchayats, panchayat samitis
      and zilla parishads must also be pursued in election petitions
E     under Section 79(1) of the Panchayat Elections Act. It is left open
      to any person aggrieved to raise a dispute in the form of an
      election petition in accordance with the provisions contained in
      the Panchayat Elections Act. In exercise of the power conferred
      by Article 142, it is directed that the period of 30 days for filing
F     election petitions in respect of the uncontested seats shall
      commence from the date of the publication of the results in the
      Official Gazette. Thus, the judgment and order of the High Court
      directing the acceptance of nominations in the electronic form is
      set aside. [Para 31, 32] [121-F-H; 122-A-B]
G           Mohinder Singh Gill v The Chief Election Commissioner,
            New Delhi (1998) 1 SCC 405 – referred to.
                             Case Law Reference



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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                         105
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

      [1996] 3 SCR 687               referred to          Para 27          A
      [1952] SCR 218                 referred to          Para 27
      [1985] 1 Suppl. SCR 493       referred to           Para 27
      (1998) 1 SCC 405               referred to          Para 28
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8515                 B
of 2018.
      From the Judgment and Order dated 08.05.2018 of the High Court
at Calcutta in MAT No. 371 of 2018
                                 WITH
                                                                           C
      Civil Appeal No. 8516 of 2018.
      Amarendar Sharan, Shyam Divan, Bikas Ranjan Bhattacharya,
P.S. Patwalia, Vikas Singh, Sidharth Luthra, Kalyan Bandopadhyay,
Sanjay Singhvi, Sr. Advs., Kunal Chatterji, Subhasish Bhowmick, Shamim
Ahmed, Ms.Divya Sejwar, A.K.Mishra, Ms. Aishwarya Bhati, Kabir             D
Bose, Ms. Natasha Dalmia, Ms.Sukanya Bose, Nachiketa Joshi, Ujjaval
Kumar, Suhaan Mukerji, Ms.Astha Sharma, Harsh Gursahani,
Abhishek M., Ms. Kajal Dalal (for M/s PLR Chambers and Co.),
Chanchal Kr. Ganguli, Ms. Aparna Bhat, Santi Ranjan Das, Anindo
Mukherjee, Ms. Sarla Chandra, Bijan Kumar Ghosh, Advs. for the
                                                                           E
appearing parties.
      Ms. Maitrayee Banerjee, Petitioner-in-person.
      The Judgment of the Court was delivered by
      DR. DHANANJAYA Y. CHANDRACHUD, J. 1. Leave
granted.                                                                   F
       2. After the process commenced in the State of West Bengal for
elections to the panchayats, a Division Bench of the Calcutta High Court
issued directions on 8 May 2018 to the State Election Commission to
accept nominations submitted in the electronic form. The names of those
candidates were directed to be published in the list of candidates         G
contesting the panchayat elections of 2018. In issuing these directions,
the High Court was conscious of the fact that the provisions of the
Information Technology Act 2000 did not apply to the West Bengal State

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106             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     Election Commission, which is a constitutional authority. Nonetheless,
      the High Court held that the provisions of the Information Technology
      Act 2000 shall be deemed to be read into the provisions of the West
      Bengal Elections Act 2003. Holding that such a construction would further
      the democratic process and facilitate a fair and free election, the High
      Court issued directions for the acceptance of nominations in the electronic
B
      form. The judgment of the High Court has been challenged in these
      proceedings by the West Bengal State Election Commission.
            3. Notice was issued by this Court on 10 May 2018 and the
      following interim directions were issued:
C           “(i) There shall be a stay of the impugned judgment and oder
            dated 8.5.2018 passed by the Division Bench of the High Cout;
            (ii) The Panchayat election scheduled to be held on 14.5.2018,
            shall proceed as per law;
            (iii) The petitioners i.e. the West Bengal State Election Commission
D           and its functionaries shall see to it that the election which is
            scheduled for 14.5.2018 is held in absolute fairness, keeping in
            view the concept of purity of an election in a democracy;
            (iv) The election process in respect of the constituencies shall be
            completed in all aspects and the results of the election can be
E           notified as per law; and
            (v) The petitioners shall not notify the result in respect of the
            constituencies where there has been no contest, without the leave
            of this Court.”
             4. Arrayed as respondents to these proceedings are the Communist
F
      Party of India (Marxist), the State of West Bengal through the Secretary,
      Department of Home, the Secretary in the Department of Panchayat
      and Rural Development, the All India Trinamool Congress, Ananda Bazar
      Patrika, Times of India and the Bharatiya Janata Party, West Bengal
      through its Vice President. We have heard learned counsel for the parties.
G     We have also heard a large number of intervenors in these proceedings.
             5. A reference to the salient events will facilitate an understanding
      of the controversy. On 31 March 2018, the State government issued a
      notification for holding panchayat elections in West Bengal on 1,3 and 5
      May 2018. The State Election Commission announced a schedule for
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                             107
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

the ensuing panchayat elections, exercising power under Sections 42            A
and 43 of the West Bengal Panchayat Elections Act 2003 (“Panchayat
Elections Act”). The first notification issued by the State Election
Commission in respect of twelve districts stipulated the election schedule
for gram panchayats, panchayat samitis and zilla parishads governed by
the West Bengal Panchayat Act 1973. The last date for making
                                                                               B
nominations was 9 April 2018; scrutiny of nominations was to take place
on 11 April 2018; the last date for withdrawal of candidatures was 16
April 2018; and the poll, if necessary, was to be concluded on 1 May
2018. By two other notifications also of 2 April 2018, the election schedule
was announced respectively for two districts and six districts. The election
programme was the same, save and except for the dates of polling which         C
were 3 and 5 May 2018.
       6. On 6 April 2018, a public interest litigation was moved before
the Calcutta High Court by a person - Adhir Ranjan Chowdhury of the
Indian National Congress for challenging the election notification.
Simultaneously a writ petition1 under Article 32 of the Constitution was       D
instituted before this Court by the Bharatiya Janta Party (BJP) in which
inter alia there was a specific prayer (extracted below) for a direction
to accept nomination papers through e-mail:
         “b. issue an appropriate writ, order or direction in the nature of
         mandamus directing the Respondent No 6 to take immediate steps        E
         to make arrangements for submission of nomination papers for
         the West Bengal State Panchayat Elections 2018 through email:”
       The writ petition was disposed by a two Judge bench of this Court
on 9 April 2018. A grievance was made before this Court, based on
newspaper reports, that candidates who wished to contest the panchayat         F
elections were not being allowed to collect and submit their nomination
forms as a result of the violent actions of the supporters of the ruling
party in the State. This submission was recorded by the Court:
         “Relying upon the newspaper reports which appeared in the Times
         of India, Kolkata edition dated 03.04.2018 and 04.04.2018, the        G
         Statesman, Kolkata edition dated 04.04.2018 and the Telegraph
         e-paper preview, the learned senior counsels for the petitioner
         submitted that the petitioner’s candidates who want to contest
         election for the panchayat which is to be held in the State of West
1
    W P (C) No 302 of 2018                                                     H
108                SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A               Bengal are not allowed to collect the nominations forms and to
                submit the same on account of violent resistance being put by the
                supporters of the ruling party.”
             This Court declined to interfere, since the election process had
      commenced and relied on the judgment in Boddula Krishnaiah v State
B     Election Commissioner, A.P.2. The Court however took notice of
      the grievance that candidates had been prevented from submitting their
      nominations:
                “However, the fact remains that according to the newspaper reports
                filed along with writ petition which has been referred to by the
C               learned senior counsel for the petitioner incidence of violence has
                taken place when the candidates have gone to obtain and file
                their nomination papers. This also stands fortified with the
                notification dated 05.04.2018 issued by the West Bengal State
                Election Commission where the State Election Commission had
                provided additional venue for filing the nomination papers.”
D
             This grievance, in the view of the Court, was for the State Election
      Commission to consider at the behest of any political party or a candidate
      who desired to contest the election. Liberty was accordingly granted to
      them to approach the State Election Commissioner who was directed to
      ensure the disposal of the grievances in accordance with law, forthwith.
E     This Court expressed the hope that in order to ensure free and fair
      elections to the panchayats, the State Election Commission shall take
      appropriate steps to remove the apprehensions of intending candidates.
      The petitions were accordingly disposed of.
             7. The State Election Commission issued directions on 9 April
F     2018, in exercise of its power under Section 46(2) of the Panchayat
      Elections Act, extending the last date for submitting nominations by one
      day, that is until 10 April 2018. In issuing this direction, the State Election
      Commission indicated the following reasons:
                “Whereas, information has been received through complaints,
G               deputation etc. that intending candidates and proposers are being
                obstructed or prevented from making nomination; and
                Whereas, many intending candidates could not file their nomination

      2
          (1996) 3 SCC 416
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                                109
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

          papers due to the above disruption; and                                 A
          Whereas, along with complaints made by the Political Parties some
          nomination papers that they allegedly could not submit before the
          Panchayat Returning Officers, have been annexed.”
        8. The order of the State Election Commission extending the period
for filing of nominations was recalled immediately on the next day – 10           B
April 2018. The BJP filed a writ petition3 before the Calcutta High
Court inter alia seeking directions for the acceptance of nominations
and police assistance. By a supplementary affidavit, the validity of the
order dated 10 April 2018 was questioned. The Calcutta High Court
issued an interim direction suspending the operation of the notification of       C
the State Election Commission dated 10 April 2018. On 11 April 2018
this Court was also moved in a Miscellaneous Application by the BJP.
This Court granted liberty to move the Calcutta High Court where
proceedings were pending. On 12 April 2018, the High Court directed
the State Election Commission that before proceeding further with the
electoral exercise, it shall inform the Court on affidavit of the steps taken     D
in terms of its direction of 10 April 2018 and the order of this Court dated
9 April 2018. An intra-court appeal against the order was dismissed on
16 April 2018, though with a request to the learned Single Judge to dispose
of the pending proceedings.
      9. The learned single Judge of the High Court delivered judgment            E
on 20 April 2018 in which the following directions were issued:
          “I) The order cancelling the extension of the day/date for filing
          nominations as issued by the Commission dated 10th April, 2018
          stands quashed;
                                                                                  F
          II) The Commission is directed, upon consultation with the State
          and the major collective stake holders, to issue a fresh Notification
          extending the day/date for filing nominations;
          III) The Commission shall then reschedule the further dates in
          the election process as per statutory framework;
                                                                                  G
          IV) The Commission shall then carry forward the electoral process
          from the extended day/date of filing nominations as directed by
          (II)above;

3
    AST 9 of 2018                                                                 H
110                SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A               V) The cost of Rs.5,00,000/- (Rupees five lakhs only) as directed
                to be deposited by the petitioners in AST 9 of 2018 by order of
                12th April, 2018 and, so deposited shall be forwarded by the learned
                Registrar General, High Court at Calcutta to the account of the
                Commission towards part of its secretariat costs.”
B            10. On 21 April 2018, the State Election Commission issued a
      notification extending the date for the filing of nominations to 23 April
      2018; fixed 25 April 2018 as the date for scrutiny and 28 April 2018 as
      the last date for the withdrawal of candidature. On 23 April 2018, the
      High Court, upon being moved by some of the intending candidates,
      directed the State Election Commission to ensure the acceptance of
C     nomination forms. Three writ petitions were moved before the High
      Court. By a judgment dated 24 April 2018, the learned Single Judge
      declined to interfere with the election process observing that:
                “This Court cannot be further unmindful of the fact that the order
                of 20th April, 2018 has been accepted and acted upon. The
D               participation of the major stake holders, including the INC, as
                reflected from the documents filed by the Commission in Court
                today, disclose that each of their views have been noticed prior to
                the Commission exercising its prerogative in consultation with the
                State Government to re-extend the nomination date.
E               In view of the above movement of events this Court does not find
                the argument of Mr Ghosal to the effect that the Commission
                acted in hot haste to be acceptable.
                Accordingly, this Court does not intend to interrupt the electoral
                exercise further and does not intervene by passing any direction
F               in this petition.”
            Writ Petition 4887 (W) of 2018 filed by the BJP and Writ Petition
      4886 (W) of 2018 filed by the Party for Democratic Socialism were also
      disposed of.
             11. On 25 April 2018, the CPI (M) moved a writ petition 4 under
G
      Article 226 seeking inter alia, directions for (i) setting aside the entire
      election process; (ii) removal of the State Election Commissioner; (iii)
      permission to file nominations in the electronic form; (iv) deployment of
      security personnel other than those under the control of the state
      4
          AST 11 of 2018
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                            111
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

government; (v) appointment of special officers responsible to the Court;     A
and (vi) recording video footage of the entire process. During the course
of the hearing before the learned Single Judge on 25 April 2018, the only
relief which was pressed on behalf of CPI (M) was that the State Election
Commission must accept nominations already filed, in the electronic form.
The learned Single Judge of the High Court declined to entertain the
                                                                              B
writ petition.
       12. On 26 April 2018, polling dates were announced for 14 May
2018 by the State Election Commission. On 1 May 2018, fresh writ
petitions were moved before the learned Single Judge of the Calcutta
High Court. The High Court declined to issue any further directions
having regard to its earlier orders. The CPI (M) filed an appeal before       C
the Division Bench against the orders of the learned Single Judge. The
Division Bench, while disposing of the appeal, directed the State Election
Commission to accept nominations in the electronic form of those
candidates who had filed and submitted them electronically to the
panchayat returning officers by 3.00pm on 23 April 2018. The names of         D
such candidates were directed to be published in the list of candidates
contesting the Panchayat elections of 2018.
        13. Appearing on behalf of the State Election Commission,
Mr Amarendra Sharan, learned senior counsel submitted that (i) the
directions issued by the High Court, after the last date of nominations       E
and scrutiny, to accept nominations submitted electronically is contrary
to the clear mandate of Section 46(1) of the Panchayat Elections Act;
(ii) though this relief had been specifically sought in proceedings under
Article 32 before this Court in Writ Petition (C) 302 of 2018, it had been
declined; (iii) the directions issued by the High Court are contrary to the
mandate of Article 243 K of the Constitution since the provisions             F
contained in the Panchayat Elections Act constitute a complete code
regarding the filing of nominations; (iv) the High Court was manifestly in
error in holding that the Information Technology Act 2000 shall be deemed
to be a part of the Panchayat Elections Act 2003.
       14. On the other hand, it has been urged on behalf of the first        G
respondent that the High Court had been constrained to issue a direction
for the acceptance of nominations in the electronic form after sufficient
material was placed before it indicating that candidates had been
prevented from filing their nominations. It was urged that as a result of
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112             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     the violent activities of the supporters of the ruling party in the state, a
      situation had arisen where it was not possible to file nominations personally
      and hence the directions which were issued by the High Court sub-
      serve the cause of a free and fair election.
            Section 6 of the Information Technology Act 2000 provides as
B     follows:
            “6. Use of electronic records and [electronic signatures] in
            Government and its agencies. - (1) Where any law provides
            for-
            (a) the filing of any form, application or any other document with
C           any office, authority, body or agency owned or controlled by the
            appropriate Government in a particular manner;
            (b) the issue or grant of any licence, permit, sanction or approval
            by whatever name called in a particular manner;

D           (c) the receipt or payment of money in a particular manner, then,
            notwithstanding anything contained in any other law for the time
            being in force, such requirement shall be deemed to have been
            satisfied if such filing, issue, grant, receipt or payment, as the
            case may be, is effected by means of such electronic form as
            may be prescribed by the appropriate Government.
E
            (2) The appropriate Government may, for the purpose of sub-
            section (1), by rules, prescribe -
            (a) the manner and format in which such electronic records shall
            be filed, created or issued;
F           (b) the manner or method of payment of any fee or charges for
            filing, creation or issue any electronic record under clause (a).”
      Article 243K provides thus:
            243K. (1) The superintendence, direction and control of the
            preparation of electoral rolls for, and the conduct of, all elections
G           to the Panchayats shall be vested in a State Election Commission
            consisting of a State Election Commissioner to be appointed by
            the Governor.
            (2) Subject to the provisions of any law made by the Legislature
            of a State, the conditions of service and tenure of office of the
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                             113
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

      State Election Commissioner shall be such as the Governor may            A
      by rule determine:
      Provided that the State Election Commissioner shall not be removed
      from his office except in like manner and on the like grounds as a
      Judge of a High Court and the conditions of service of the State
      Election Commissioner shall not be varied to his disadvantage            B
      after his appointment.
      (3) The Governor of a State shall, when so requested by the State
      Election Commission, make available to the State Election
      Commission such staff as may be necessary for the discharge of
      the functions conferred on the State Election Commission by clause       C
      (1).
      (4) Subject to the provisions of this Constitution, the Legislature
      of a State may, by law, make provision with respect to all matters
      relating to, or in connection with, elections to the Panchayats.”
        15. The State Election Commission has been constituted pursuant        D
to Article 243 K. It is entrusted inter alia with superintendence, direction
and control over the electoral process. The State Election Commission
has been established pursuant to the above constitutional dispensation
under the provisions of Section 3 of the West Bengal State Election
Commission Act 1994. The High Court was cognizant of the fact that             E
the State Election Commission does not fall within the ambit of Section
6(1)(a) of the IT Act 2000. Indeed, the High Court noticed this position
in its following observations:
      “The State Election Commission has been constituted under
      Section 3 of the West Bengal State Election Commission Act,              F
      1994 (hereinafter referred to as the Act of 1994) with Constitutional
      sanction. It therefore does not strictly come within the ambit of
      Section 6(1)(a) of 2000 to be a body or agency owned or controlled
      by the appropriate Government. Similarly, the State Government
      is not called upon to make rules in terms of section 90 of the Act
      of 2000 in respect of filing of nomination forms through e-mail.”        G
       16. Despite having noticed the above position in law, in our view
correctly, the High Court proceeded to issue a mandamus directing the
State Election Commission to accept nominations in the electronic form.
While the Division Bench of the High Court may have been guided by a
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114            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     desire to ensure a free and fair election, the direction to accept
      nominations in the election form has clearly transgressed the permissible
      area within which the jurisdiction under Article 226 could have been
      exercised. The jurisdiction under Article 226 has to be exercised in a
      manner consistent with law. The Panchayat Elections Act contains
      detailed provisions in Part VI for the conduct of elections. Chapter VII
B
      contains provisions for the nomination of candidates. Sub sections 1 and
      2 of Section 46 require that nominations have to be delivered in person
      by the candidate or through the proposer:
            “46. (1) On or before the date appointed under clause (a) of section
            43 each candidate shall, either in person or by his proposer,
C           between the hours as may be prescribed, deliver, to the Panchayat
            Returning Officer at the place specified in this behalf in the notice
            issued under section 44, a nomination paper completed in the
            prescribed form and signed by the candidate and by a voter of the
            constituency as proposer:
D           Provided that no nomination paper shall be delivered to the
            Panchayat Returning Officer on a day which is a public holiday.
            (2) Without prejudice to the generality of the provisions contained
            in sub-section (1), if the Commission, on receipt of complaints
            from the intending candidates or the recognize/ed political parties,
E           either from or through the District Panchayat Election Officer or
            its own machinery or any other agency, is satisfied that there is
            reasonable apprehension of prevention of, or obstruction to, the
            intending candidates from making nominations at the place or
            before the authority for the Gram Panchayat and Panchayat Samiti
F           constituencies specified in the notice under section 44, the
            Commission may, by order, issue a direction to the Panchayat
            Returning Officer appointed for any Block, to depute one Assistant
            Panchayat Returning Officer at the office of the Sub-Divisional
            Officer having jurisdiction, for receiving nomination papers within
            the specified date and hour from the intending candidates for one
G           or more Gram Panchayat or Panchayat Samiti constituencies, as
            the case may be:
            Provided that the Commission may also, by the said order, extend
            the last date for making nomination for one day and also direct

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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                               115
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

      that all the nomination papers received under sub-sections (1)             A
      and (2) for any Gram Panchayat or Panchayat Samiti constituency,
      as the case may be, shall be taken up by the Panchayat Returning
      Officer for scrutiny of all such nomination papers, at one sitting,
      one after another, in terms of the notice under section 44:
      Provided further that on receipt of such order of the Commission,          B
      the Panchayat Returning Officer shall arrange to display a notice
      accordingly in his office and in the office of the subdivisional officer
      and District Panchayat Election Officer and shall also arrange
      for wide publicity within the polling area.”
       17. Section 47 stipulates that in order to be declared nominated          C
for election from a constituency, a candidate must deposit or cause to be
deposited in cash with the Panchayat returning officer, the amounts as
stipulated in the provision. Under Section 48, the Panchayat returning
officer, on receiving a nomination paper under Section 46(1), is required
to inform the person delivering the nomination of the date, time and
place fixed for scrutiny. Thereafter, a scrutiny takes place under Section       D
49. Section 50 provides for withdrawal of nominations and Section 51
for the preparation of a list of contesting candidates and the allotment of
symbols. Section 52, thereafter provides for the publication of a list of
contesting candidates. Chapter I of Part IV of the West Bengal
Panchayat Elections Rules 2006 contains supplementary provisions inter           E
alia for the nomination of candidates.
       18. The provisions contained in the Panchayat Elections Act and
rules constitute a complete code in regard to the conduct of the election,
including in the matter of filing of nominations. Neither the Panchayat
Elections Act nor the Rules contemplate the filing of nominations in the         F
electronic form. Any reform of the electoral process to permit the filing
of nominations electronically would have to be carried out by a legislative
amendment. The High Court ought not to have issued a mandatory
direction of this nature in the face of the specific provisions contained in
the Panchayat Elections Act and Rules.
                                                                                 G
       19. Moreover, the election process had already been initiated.
The last date for the filing of nominations was over. The directions issued
by the High Court are in the teeth of the settled principle of self-restraint
which governs the exercise of the jurisdiction under Article 226 once the

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116             SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     election process commences. Moreover, such a direction would be
      contrary to the provisions of Article 243 O of the Constitution. In this
      view of the matter, we are of the view that the High Court was in error
      in issuing directions for the acceptance of nominations in the electronic
      form. The judgement of the High Court would accordingly have to be
      set aside.
B
             20. While issuing notice in these proceedings on 10 May 2018,
      this Court directed that the election which was scheduled to take place
      on 14 May 2018 shall proceed in accordance with law and upon its
      conclusion, the results would be notified. However, the State Election
      Commission was directed not to notify the results in respect of
C     constituencies where there was no contest, without the leave of the
      Court. On 3 July 2018, when the proceedings were taken up, this Court
      was informed by Mr P S Patwalia, learned Senior Counsel appearing on
      behalf of the BJP – West Bengal Unit that at the Panchayat level as
      many as 16,860 seats have remained uncontested out of a total of 48,650
D     seats; for the Panchayat Samitis, 3,096 seats out of the 9,217 were
      uncontested while in the Zila Parishads 203 out of the 825 seats were
      uncontested. An affidavit has been filed setting out the data in relation to
      uncontested seats, on behalf of the State Election Commission. The data
      placed on the record indicates that out of a total of 58,692 seats combined
      for Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seats
E     have been uncontested. 3,096 seats out of the 16,860 seats representing
      36.1 per cent of the total seats for Gram Panchayats have been
      uncontested. In the case of the Panchayat Samitis, 33.5 percent of seats
      were uncontested while 24.6 percent seats for Zilla Parishads were
      uncontested.
F          21. As regards the uncontested seats, the following submissions
      have been urged before this Court on behalf of the State Election
      Commission:
            (i) The State Election Commission has been alive to the need to
                conduct a free and fair election and after the election took place
G               on 14 May 2018, it ordered a re-poll in 572 booths where
                problems had occurred;
            (ii) The State Election Commission had received only 1770
                complaints and, as such, it would be incorrect to postulate that

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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                              117
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

         the elections of all the 20,159 uncontested seats have been            A
         vitiated.
        22. These submissions have been supplemented on behalf of the
State government by Mr Vikas Singh, learned senior counsel who urged
that : (i) this Court should not exercise its jurisdiction to interfere with
the declaration of the results of uncontested seats, once the process has       B
been completed; (ii) under the provisions of Section 7 of the West Bengal
Panchayat Act 1973 the term of the panchayats is only five years after
which no extension is permissible; (iii) if the declaration of results to the
uncontested seats are not allowed to be effected, it would be impossible
to constitute the panchayats, resulting in a failure of allocation of funds
for constitutional purposes;(iv) in the absence of any cogent complaint         C
of obstruction in the filing of nominations a generalised presumption cannot
be made in respect of each one of the nearly 20,000 seats. It has been
submitted that as many as 3,170 panchayats are non-functional as a
result of the stay on the declaration of results.
       23. Mr Kalyan Bandopadhyay, learned senior counsel appearing             D
on behalf of the All India Trinamool Congress submitted that: (i) the
uncontested seats were not the subject matter of the writ petition before
the Hon’ble High Court; neither were there any pleadings, nor were
there any prayers; (ii) interference of this Court in regard to the
uncontested seats will result in setting the election process at naught in      E
the absence of the affected parties; (iii) once the election process has
commenced, it cannot be arrested and the only remedy is to challenge
the outcome of the election by filing an election petition and (iv) under
the provisions of Article 243 E, the term of every panchayat is five years
and no longer. Article 243 O imposes a bar on the interference by the
Court. At this stage, any interference would seriously impede the               F
constitutional process of constituting the panchayats.
        24. Section 64 of the Panchayat Elections Act lays down the
procedure to be followed in the case by contested and uncontested
elections. If at any election of a gram panchayat, panchayat samiti or
zilla parishad, the number of contesting candidates is less than the number     G
of seats to be filled in a constituency, the panchayat returning officer
shall forthwith declare all such candidates to be duly elected. Under
Section 77, as soon as may be, after the result of an election has been
declared, the panchayat returning officer must report the result to the
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118             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A     District Panchayat Election Officer; to the Director of Panchayats and
      Rural Development and to the Commission. The Director is under a
      duty to cause the declarations of the names of the elected candidates to
      be published in the Official Gazette.
           25. Any dispute regarding the election has to be pursued in the
B     manner which is provided in Part VII of the Panchayat Election Act.
             Under Section 79(1):
             “79. (1) If any dispute arises as to the validity of an election under
             this Act, any person entitled to vote at such election may, within
             thirty days after the date of declaration of the results of such
C            election, file a petition, calling in question such election on one or
             more of the grounds specified in sub-section (1) of section 93 and
             section 94 –
             (a)    before the Civil Judge having jurisdiction where such
             election is in respect of a Gram Panchayat or a Panchayat
D            Samiti,
             (b)    before the District Judge of the district, where such
             election is in respect of a Zilla Parishad or the Siliguri
             Mahakuma Parishad.”
             Section 80 stipulates that no election to a panchayat shall be called
E
      into question except by an election petition presented in accordance with
      Part VII. In fact, Section 84 (1) also stipulates that the Court shall dismiss
      an election petition which does not comply with the provisions of Section
      79 or Section 80.
             26. The Panchayat Elections Act is a complete code in regard to
F
      the conduct of the poll and for the resolution of disputes concerning the
      validity of the election. Article 243K entrusts the superintendence,
      direction and control over the conduct of all elections to the panchayats
      in the State Election Commission. Clause (b) of Article 243 O stipulates
      thus:
G            “243-O. Notwithstanding anything in this Constitution—
             (b) no election to any Panchayat shall be called in question except
             by an election petition presented to such authority and in such
             manner as is provided for by or under any law made by the
             Legislature of a State.”
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                              119
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

        27. There is merit in the submission that the discipline which is       A
mandated by the provisions of the Constitution and enforced by the
enabling state law on the subject must be maintained. Any dispute in
regard to the validity of the election has to be espoused by adopting a
remedy which is known to law namely through an election petition. It is
at the trial of an election petition that factual disputes can be resolved on
                                                                                B
the basis of evidence. This principle has been consistently adhered to in
decisions of this Court. In Boddula Krishnaiah (supra), a three Judge
bench, adverted to the decisions of the Constitution Bench in NP
Ponnuswami v Returning Officer, Namakkal Constituency5 and in
Lakshmi Charan Sen v AKM Hassan Uzzaman6. After referring to
Ponnuswamy, it was observed:                                                    C
         “In NP Ponnuswamy v Returning Officer, Namakkal Constituency
         a Constitution Bench of this Court had held that having regard to
         the important functions which the legislatures have to perform in
         democratic countries, it has always been recognised to be a matter
         of first importance that elections should be concluded as early as     D
         possible according to time schedule and all controversial matters
         and all disputes arising out of elections should be postponed till
         after the elections are over so that the election proceedings may
         not be unduly retarded or protracted. In conformity with the
         principle, the scheme of the election law is that no significance
         should be attached to anything which does not affect the ‘election’;   E
         and if any irregularities are committed, while it is in progress and
         they belong to the category or class which under the law by which
         elections are governed, would have the effect of vitiating the
         ‘election; and enable the person affected to call it in question,
         they should be brought up before a special tribunal by means of        F
         an election petition and not be made the subject of a dispute before
         any court while the election is in progress.”
The binding principle must be followed.
       28. The intervention of this Court has been sought on the basis
that free and fair elections are a part of the basic feature of the             G
Constitution. Mr Patwalia urged, the entire electorate vicariously is a
party to the contest. Exercise of the jurisdiction by this Court has been
sought on the ground that the process of election was polluted, there
5
    1952 SCR 218
6
    (1985) 4 SCC 689                                                            H
120                SUPREME COURT REPORTS                       [2018] 10 S.C.R.


A     having occurred large scale obstructions to the filing of nomination papers
      by candidates. The submission is that as many as 20,159 seats have
      gone uncontested and an overwhelmingly large majority of them have
      been bagged by candidates supported by the ruling dispensation in the
      State of West Bengal. Mr Patwialia urged that there is contemporaneous
      material to indicate that as a result of obstruction and violence, candidates
B
      were prevented from filing their nominations. Mr Patwalia invoked the
      observations contained in the judgment of this Court in Mohinder Singh
      Gill v The Chief Election Commissioner, New Delhi7, emphasising
      the need to maintain the purity of the election process.
              29. Having given our anxious consideration to the rival submissions
C     which have been urged at the bar, we find that there are several reasons
      why it would be inappropriate for this Court to exercise its jurisdiction to
      interdict the declaration of results of the uncontested seats. First and
      foremost, it is necessary for the Court to notice that no specific relief
      was claimed before the High Court in regard to those seats where there
D     was no contest. Neither were there adequate pleadings nor indeed were
      specific prayers set up before the High Court when its jurisdiction under
      Article 226 was invoked. The proceedings before the High Court were
      brought by several political parties, each of whom would have been well
      aware of the situation on the ground and the need to formulate an
      adequate basis in fact to invoke the jurisdiction of the High Court. Absent
E     such a factual foundation, the High Court dealt with the only issue which
      had been addressed, which was the plea that nominations should be
      allowed to be filed in the electronic form. No other plea was raised.
      The second important consideration which must weigh with the Court is
      that if the above submission is accepted, election results to over 20,000
F     seats will be set at naught in the absence of the affected parties before
      the Court. Thirdly, once the election process has commenced, it is trite
      law that it should not be interdicted mid stage. The electoral process is
      afforded sanctity in a democracy. That is the reason why in a consistent
      line of precedent, this Court has insisted upon the discipline of the law
      being followed so that any challenge to the validity of an election has to
G     be addressed by adopting the remedy of an election petition provided
      under the governing statute. For this Court to set aside elections to over
      20,000 seats would be to prejudge the basic issue as to whether in each
      of those constituencies, the election stands vitiated by obstruction having
      7
          (1998) 1 SCC 405
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WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST                               121
  PARTY OF INDIA (MARXIST) [DR. D.Y. CHANDRACHUD, J.]

been caused to candidates from filing their nominations. A general               A
assumption of this nature cannot be made. Ultimately whether this is
correct would depend upon the evidence adduced in the facts of individual
cases where such a grievance has been made in an election petition.
The Court has been apprised that approximately 1,700 complaints were
filed and about 168 election petitions have been instituted. We are
                                                                                 B
emphatically of the view that any challenge to the election must take
place in a manner which is known to law.
       30. Under Section 79(1) a period of 30 days is prescribed for
instituting an election petition, where a dispute arises as to the validity of
an election. The period of 30 days commences after the date of the
declaration of the results of the election. The pendency of these                C
proceedings may have dissuaded aggrieved individuals from seeking
recourse to the remedy of an election petition, particularly after the interim
order of this Court restraining the State Election Commission from
notifying the results of the constituencies where there was no contest.
While we are of the view that the validity of the elections must be tested       D
in election petitions under Section 79(1), the question as to whether there
was a large scale obstruction from filing nominations is a serious matter
which needs to be resolved. This is particularly because even the Election
Commission, as we have seen, had proceeded to take notice of the grim
situation while extending the date for the filing of nominations. Having
regard to the seriousness of the allegations and bearing in mind the fact        E
that these proceedings were pending, we are of the view that it would
be necessary to exercise the power under Article 142 of the Constitution
to extend the period of 30 days for the filing of election petitions in
respect of the uncontested seats.
       31. For these reasons, we are of the view that challenges in regard       F
to the validity of the elections to the uncontested seats in the panchayats,
panchayat samitis and zilla parishads must also be pursued in election
petitions under Section 79(1) of the Panchayat Elections Act. We leave
it open to any person aggrieved to raise a dispute in the form of an
election petition in accordance with the provisions contained in the             G
Panchayat Elections Act. In exercise of the power conferred by Article
142, we direct that the period of 30 days for filing election petitions in
respect of the uncontested seats shall commence from the date of the
publication of the results in the Official Gazette.

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122                SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A            32. For the reasons indicated earlier, we allow the appeals and set
      aside the impugned judgment and order of the Calcutta High Court
      directing the acceptance of nominations in the electronic form. Pending
      applications, if any, are also disposed of. There shall be no order as to
      costs.
B
      Nidhi Jain                                                  Appeals allowed.




C




D




E




F




G




H