Holding

Section 30(d) of the Representation of the People Act, 1951 is valid and is neither arbitrary nor unconstitutional.

Summary

The petition was filed by Bhim Singh, President of the Jammu & Kashmir Panthers Party, seeking a declaration that Section 30(d) of the Representation of the People Act, 1951, which allows the Election Commission to fix poll dates without specifying a maximum interval after withdrawal of nominations, violates Article 14 of the Constitution. The petitioner argued that the provision gave the Commission unfettered discretion and would force candidates in Jammu & Kashmir to obtain security for an unduly long canvassing period. The Union of India and the Election Commission opposed the petition, contending that the schedule of elections must be flexible to accommodate security considerations and that the provision is not arbitrary. The Court examined whether the lack of a fixed upper limit rendered Section 30(d) ultra‑vires Article 14 and held that the provision is a reasonable legislative choice, not arbitrary or unconstitutional. Accordingly, the writ petition was dismissed and the petition disposed of. The decision emphasized the constitutional vesting of election conduct in the Election Commission under Article 324 and the need for pragmatic flexibility in election scheduling.

Issues considered

Whether Section 30(d) of the Representation of the People Act, 1951 is ultra vires Article 14 of the Constitution for not fixing a maximum period for holding elections after withdrawal of nominations.
Whether the provision is arbitrary or unconstitutional in granting the Election Commission unfettered discretion to fix poll dates.
Whether the absence of an outer limit on the canvassing period violates the principle of equality before law.

Legislation cited

Constitution of Indias. 14, s. 324
Representation of the People Act, 1951s. 14, s. 153, s. 30, s. 30(d)

Subjects

Representation of the People ActSection 30(d)Article 14Election CommissionJammu & Kashmir electionsPoll date schedulingConstitutional validityUltra vires

Judgment

BHIM SINGH, PRESIDENT JAMMU AND
KASHMIR PANTHERS PARTY
v.
THE ELECTION COMMISSIONER OF !NOIA AND ANR.

APRIL 4, 1996
B
[K. RAMASWAMY, S.P. BHARUCHA AND

.. K.S. PARIPOORNAN, JJ.[

Constitution of India, 1950 :

ATticle 14-S.JO(d) of Representatio11 of the People Act, 1951 Chal-
c
lenged as ultra vires Altic/e 14 as it does 11ot specify maximum period for
ho/di11g election after withdrawal of 11omination-He/d, it is impossible and
u11desirable that a11y outer limit should be placed i11 s.30(d) for the date of
poll--Fixatio11 of date of poll would depe11d on a valiety of circwmta11-
ce,-S.30(d) is 11either arbitrary 11or u11constitutional.
D

) Representation of the People Act, 1951:

S.30(d}-Appointme11t of date of poll-Held, s.30(d} is neither arbitrmy
nor unconstitutional, in not prescribing outer liinit of poll. E
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 227 of
1996.

Under Article 32 of the Constitution of India.
F
Petitioner in-person, S.K. Bhattacharya, S.K. Bandopadhyay and S.
Mitter for the Petitioner.

t\-1.K. Banerjee) Allorney General an<l P. Parm~sh\varan for Llnion
of India.
G
G.L. Sanghi and AM. Khanwilkar for the Respondents.

The following Order of the Court was delivered :

This is a writ petition for a declaration that Section 30 ( d) of the
Representation of the People Act, 1951, is unconstitutional and ultra vires H
15
16 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A Article 14 of the Constitution of India "as it does npt specify the maximum
period for holding the election after the withdrawal of nomination .......... ",
and for a direction to the Election Commission of India to issue a separate
notification under Section 30( d) read Section 153 of the Act for holding
elections in the State of .lammu & Kashmir withirl 20 days from the date
B for withdrawal of nominations. The writ petition is flied by one Bhim Singh,
who is the President of a political party recognised by the Election Com-
mission, namely, the Jammu & Kashmir Panthers IParty. The writ petition
con lends that the provisions on Section 30( d) confer unbridled, unguided
and uncontrolled power upon the Election Commission to hold polls upon
any day subsequent to the date of withdrawal of 111ominations and fixes no
c terminal date in this behalf. It is also the case in the writ petition that
prospective candidates in the State of .lammu & Kashmir would have to
obtain personal security from the State for a peri9d of one month and 24
days and this would be both difficult and expensive.

D Having regard· to the obvious urgency, notice was issued on 2nd
April, 1996, to the Union of India and the Election Commission to file
counter-affidavits and the writ petition was posted for hearing on 3rd April,
1996.

E On 3rd April, 1996 the Election Commission did not file a counter
affidavit but relied upon material on record.

The Union of India filed a counter affidavit affirmed by the Joint
Secretary in the Ministry of Home Affairs. It states that "the Union of India
shares the sentiments and the concern expressed by the petitioner". It states .
F that, contrary to past practice and to the period Of 20 to 25 days provided
for constituencies outside the State of J ammu & E:ashmir in the forthcom-
ing Parliamentary elections, the period for canvassing in the State of
.I ammu & Kashmir is, according lo the schedule laid down by the Election
Commission, 55 days. The affidavit states that "owing to the prevailing
G peculiar situation in the State of Jammu & Kashmir, it is not desirable that
the time for canvassing in the State should be more than the necessary
minimum statutory period, inter-alia, for the follmving reasons :

(a) the candidates would requires to obtain personal security from
H the State for comparatively a longer period of 55 days for the
BHIM SINGH v. ELECTION COMMNR. OF INDIA 17

polling on 30.5.96 and 48 days for the polling on 23.5.96. This is in A
contrast with the rest of the country where the period ranges from
21 days to 31 days.

(b) It costs a t,'Teat deal lo the State in terms of resources and
effort to provide security for such a long period to the candidates,
their family members, their election agents, their political workers B
etc. In this context it would be relevant to state there that there is
a threat from various militant outfits from outside the country to
disrupt the process of the general elections including attempts at
liquidating the candidates.

(c) ...................................................................................................."
c
The aforementioned affidavit annexes copies of correspondence be-
tween the Union of India and the Election Commission. By letter dated
25th March, 1996, the Union of India stated :
D
11
4. As regards the announcement of Parliamentary Elections 1n
Jammu & Kashmir State, Commission's attention is drawn to
various queries raised by the Ministry of Home Affairs with the
Law Ministry, as contained in the enclosed note (Annexure-1). The
Law Ministry have now advised us that it is permissible to issue
different Notifications with different dates for polls under Section
E
14 of the RP Act, 1931. The Law Ministry have further confirmed
that the Election Commission itself has followed such practice in
the past in the context of the Third General Elections and also for
Elections to the Tenth Lok Sabha. As stated in the MHA Note,
allowing a long gap between the date of filing nominations and the F
date for the poll is bound to create grave security threats to the
contesting candidates and is also likely to deter prospective can-
didates from contesting in the elections.

5. At the time of Home Secretary's presentation on the 19th March, G
the need for staggering the polling dates in Jammu & Kashmir
State taking into account the requirement of para-military forces,
was discussed ai length. The Commission at that time assured that
in case of such a need arising, the Commission could consider
revising the dates of the poll. This matter has now been further
examined and taking into account the availability of security forces, H
18 SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.

A the time required to mobilise the forces and deploy them at various
polling stations and other considerations, it is found absolutely
essential to spread the polling in Jammu & Kashmir State at least
on three dates as follows :

Phase-I Jammu & Ladakh Polling on 7th May
B Parliamentary (Day 1) (As fixed by
Constituencies EC)
Phase-II Baramulla and Polling on Day I + 14
Anantnag Parliamentary days
Constituencies
c -
Phase-III Srinagar and Udhampur Polling on Day II + 7

,
Parliamentary
Constituencies
days
c
6. It is therefore, suggested that Electipn Commission may kindly
D consider this, and recommend to the ~resident for the present, to
issue a notification under Section 14 qf the RP Act, 1951 for the
Parliament elections in the rest of the country (other than in J &
K State). As regards Parliament electi9ns in J&K State, the Com-
mission may recommend to the President, later on at an ap-
E propriate time for issuing one or more Notifications for
Parliamentary Elections in Jammu & Kashmir according to the
above Schedule. The dates of the Notifications, could be such that
the minimum period for canvassing is limited to the prescribed
-
period of 20 days for each constituency."
F
In its reply dated 25th March, 1996 the Election Commission said :

1P6. Taking all factors lnto account the. Commission is agreeable to
have the polls for Lok Sabha seats in Jammu & Kashmir, as
proposed by Government of India, namely,
G
Phase-I 4 - Ladakh 7th May, 1996
6 - Jammu (Tuesday)
Phase-II 1 - Baramulla 23rd May, 1996
3 - Anantnag (Thursday)
H
•
BHIMSINGH v. ELECDONCOMMNR. OFINDIA 19

Phase-III 2 - Srinagar 30th May, 1996 A
5 - Udhampur (Thursday)

7. The Commission has considered and decided that it is not
necessary to make revised recommendations to the President for
the issue of Notifications under Section 14 of the Representation
B
of the People Act, 1951 one for Parliamentary constituencies in
the rest of the country and another for those in J&K, for accom-
modating the request of re-scheduling of poll in the State of J&K.
The Commission under its powers, under Section 153 of the
Representation of the People Act, 1951, is oompetent to issue and
revise the schedule of poll, without separate Notifications for the
c
State of J&K. The Commission shall do so at the appropriate time.

8. Even while initially programming the dates of poll in the State
of J&K, the Commission had considered the extended period of
compaigning that would be entailed but had so decided taking into D
account the improvement in the ground situation in the State and
)
the assuran~e of the Government of India that law and order has
improved and that the atmosphere is conducive to the holding of
free and fair elections in the State.
E
9. In the light of the foregoing the Commission affirms its recom-
mendations made to the President, vide its letter No. 464/96/812
date 20.3.1996 for issuing a Notification under Section 14 of the
Representation of the People Act, 1951 calling upon all the Par-
liamentary constituencies in the country to elect members in ac- F
cordance with the provision of the Representation of the People
Act, 1951 and Rules made thereunder."

At the hearing yesterday the contentions raised in the writ petition
were reiterated on behalf of the writ petitioner. The learned Attorney
General, appearing for the Union of India, strongly supported the writ G
petitioner insofar as he pleaded that the period of canvassing in the State
of Jammu & Kashmir should not be as large as 55 days. He offered to place
before us the latest intelligence reports to support the plea. Mr. G.L.
Sanghi, learned counsel for the Election Commission, submitted that the
Electivn Commission had reached its decision after taking into account all H
20 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A relevant factors, including the need for deployment of security personnel
at the time of the elections in the rest of the country and in the State of
Jam mu & Kashmir. He submitted that if candidates in that State ap-
prehended danger to themselves they could curtail the period during which
they canvassed for themselves.
B We were not impressed by the arguments faintly pressed in regard
to the constitutionality of Section 30(b), for reasons which we shall present-
ly state. ..
We were very concerned that the Union of India shared the percep-
C tion of the writ petitioner about the possibility pf grave consequences of
an election campaign spread over 55 days in the Srinagar and U dhampur
constituencies. The danger to candidates, we realised, would commence
upon the day they announced their candidature and remain until the polls
were held, regardless of how long each of them actually campaigned. Since
D the gravity of the situation could only be assessed upon the basis of secret
intelligence and other reports, it was appropriate, we thought, that the date
of the poll he pre-paned. This was something that the Election Commission
had itself appeared to visualise when it said in it& letter dated 25th March,
1996, that it was competent to revise the date of the polls and would do so
E at the appropriate time. We thought, therefore, that the matter would be
best resolved by fresh discussions between the Union of India and the
Election Commission and we directed accordingly, adjourning the matter
to the next day, that is, today.

The Attorney General has today read out to us a statement signed
F
on behalf of the Election Commission of India and the Government of.
India, which reads thus :

"Pursuant to the Supreme Court's Order dated 3.4.1996 in Writ
Petition No. 227of1996 (Prof Bhim Singh v. Election Commission of India
G & Others) officials of the Union Government and the Election Commission
met on April 3 and April 4, 1996 and thoroughly discussed the issue.

There was agreement that the polls in various constituencies of J&K
should be held on 7th, 23rd and 30th May, 1996, as already announced by
H the Election Commission of India. There was also agreement that it would
•
BHIM SINGH v. ELECTION COMMNR. OF INDIA 21

have been advantageous to limit the canvassing period to around the A
minimum prescribed period in each of the constituencies. The possibilities
of reducing the period were explored and reviewed. In view of the fact that
notifications under Sections 14 and 30 of the Representation of the People
Act, 1951 have already been issued, it was felt that under the provisions of
the Act it is not possible at the present stage to change the dates for filing B
of nominations, scrutiny of nominations and withdrawal of candidatures.
Therefore, it was agreed that we should continue with the present schedule
announced vide Election Commission of India's Press Note dated
25.3.1996."
c
We are not a little surprised that the Union of India, after its
statements in the counter affidavit and the submissions on its behalf at the
Bar yesterday, should have agreed as it has done. We must assume that
overnight, according to the perception of the Union of India, the security
position in the State of J ammu & Kashmir has vastly improved and that D
the apprehensions that the Union of India had yesterday have been allayed.
We must act upon the basis that the Union of India and the Election
Commission are fully conscious of their responsibilities and obligations and
have acted accordingly, knowing full well where the blame for serious
adverse consequences, if there should be any, will lie.
E
Having due regard to the ground realities, we must emphasise that
Functionaries in any manner concerned with directing the conduct, super-
vision and control of free, fair and peaceful elections to the House of the
People and the Legislative Assemblies of the States need to adopt a
realistic, pragmatic and flexible approach to ensure that the country shall F
be governed in its true, secular, socialist democratic perspective.

In the light of the joint statement of the Election Commission and
the Union of India aforequoted, our intervention would be uncalled for.
G
Article 324 of the Constitution of India vests the conduct of elections
to Parliament and to the legislature of every State in the Election Commis-
sion. Section 30 of the Act, so far as is relevant reads thus :

"30. Appointment of dates for nominations, etc. - As soon as the H
,
22 SUPREME COURT REPORTS (1996] SUPP. l S.C.R.

A notification calling upon a constituency to elect a member or members is
issued, the Election Commission shall by notification in the Official
Gazette, appoint -

(a) the last date for making nominations, which shall be the seventh
day after the date of publication of the first mentioned notification or, if
B
that day is a public holiday, the next succeeding day which is not a public
holiday;

(b) the date for the scrutiny of nominations, which shall be the day
..
immediately following the last date for making nominations or, if that day
C is a public holiday, the next succeeding day which is nol a public holiday;

(c) the last date for the withdrawal of candidatures, which shall be
the second day after the date for the scrutiny of nominations or, if that day
f
is a public holiday, the next succeeding day which not a public holiday;
D (d) the date or dates on which a poll shall, if necessary, be taken,
which or the first of which shall be a date not earlier than the twentieth
day after the last date for the withdrawal of candidatures; and

(e) the date before which the election shall be completed.
E
xxx xxx xxx"

Section 14 states that a general election shall be held for the purpose
of constituting a new House of the People on the expiration of the duration
of the existing House or on its dissolution. Sub-section (2) of Section 14
F reads thus :

. "(2) For the said purpose the President shall, by one or more notifica-
tions published in the Gazette of India on such date or dates as may be
recommended by the Election Commission, call Upon all parliamentary
G constituencies to elect members in accordance with the provision of this
Act and of the rules and orders made thereunder :

There can be little doubt that the aforesaid provisions read together
require close consultation between the Union of India and the Election
Commission in the matter of fixing the election programme. It is clearly
H both impossible and undesirable that any outer limit should be placed in
• HHIM SINGH v. ELECTION COMMNR. OF INDIA 23

Section 30( d) for the Jate of the poll. The fixation of the date of the poll A
\1-'l1u!J depend upon a variety of circumstances, all of which have to be
1akcn into account by the Election (~om1nission acting in consultation with
th12 (Jovcrnn1cnt of India, which \\'ould have the necessary material in this
behalf. We do not, therefore, lin<l Section 30 ( <l) arbitrary or unconstitu-
tional.
B
The writ petition is disposed of accordingly.

There shall be no order as to costs.

R.P. Petition disposed of.