Holding

Under Article 329(b) and the Representation of the People Act, only an election petition filed after the election can challenge the election, and the High Court lacks jurisdiction under Article 226 to entertain such pre‑poll petitions or interim orders.

Summary

The Election Commission of India appealed against two interim orders issued by the Bombay High Court that postponed the withdrawal deadline and stayed the poll for a Legislative Council election in Maharashtra. The respondents had filed a writ petition under Article 226 challenging the validity of the Election Commission's notification, alleging that the Zilla Parishads were not constituted and thus voters were deprived of their rights. The High Court, despite dismissing the writ petition, entertained a review petition and stayed the election, invoking section 30 of the Representation of the People Act. The Supreme Court held that, by virtue of Article 329(b) of the Constitution and sections 80, 80A and 81 of the Representation of the People Act, only an election petition filed after the election can question the election, and the High Court has no jurisdiction under Article 226 to intervene in the pre‑poll process. Consequently, the High Court's interim orders were ultra vires and the appeal was allowed, allowing the Election Commission to proceed with the election.

Issues considered

Can a High Court entertain a petition under Article 226 challenging the conduct of an election before the result is declared?
Does the High Court have jurisdiction to issue interim orders to rectify alleged procedural errors in the election schedule?
Does the non‑constitution of Zilla Parishads invalidate the election in the local authorities constituency?
Are the High Court's interim orders consistent with Article 329(b) of the Constitution and the Representation of the People Act, 1951?

Legislation cited

Constitution of Indias. 226, s. 324, s. 327, s. 329
Representation of the People Act, 1951s. 0, s. 16, s. 30, s. 80

Subjects

election lawRepresentation of the People ActArticle 226Article 329(b)High Court jurisdictionelection petitioninterim orderElection CommissionLegislative Council election

Judgment

ELECTION COMMISSION OF INDIA
A
v.
SHIVAJI & ORS.

NOVEMBER 10, 1987

B [E.S. VENKATARAMIAH AND K.N. SINGH, JJ.]

Representation of the People Act, 1951-Whether High Court can
entertain a petition questioning an election under Article 226 of the
Constitution and rectify an error in the process of election before decla-
ration of result of election held under the provisions.
c The Governor of Maharashtra by a notification dated 18th
September, 1987, issued under section 16 of the Representation of the
People Act, 1951 ('the Act') called upon six local authorities Consti-
tuencies in the State of Maharashtra to elect one member from each of
the said constituencies to fill the vacancies in the Maharashtra Legisla-
D tore Council, On the same day, the Election Commission oflndia, the
appellant, issued a notification under section 30 of the Act fixing the
calendar of events for the purpose of holding the elections. Osmanabad-
cum-Latur-Beed Local Authorities constituency was one of the said six
constituencies. Under the notification of the Election Commission, the
last date for the withdrawal of the candidatures was 28th September, y
E 1987 and the poll, if necessary, was to be taken on the 18th October,
1987 and the entire election process was to be completed within 21st
October, 1987.

Respondents 1 to 5 filed a writ petition in High Court challenging
the validity of the notification issued by Election Commission on 18th
F September 1987, on the ground that the notification was invalid because
the Zilla Parishad of Osmanabad and Latur districts which were within
the constituency had not been constituted and the Administrators were
appointed to run the said Zilla Parishads and, therefore, the members
of the Zilla Parishads who were entitled to take part in the said elections
had been deprived of their right to participate in the said election.
G Along with the writ petition, an application was made praying for the
postponement of the last date of withdrawal of the candidates from 28th
September, 1987 to 1st October, 1987. A Single Judge of the High Court
passed an order on September 26, 1987, issuing notice on the writ
petition and passing an interim order ex-parte directing the postpone-
ment of last date of withdrawal of the candidatures from 28th Septem-
H her, 1987 to October 1, 1987. On October 1, 1987, a Division Bench of
878
ELECTION COMMISSION OF INDIA v. SHIVAJI 879
,.,. the High Court dismissed the .writ petition. The High Court did not take
A
any observation as to the effect of the iuterim order passed by it earlier
on the election programme.

18 CandidatC'! withdrew their candidature by 1st October, 1987,
the last date for withdrawal of candidatures as per the interim order
passed by the High Court. In the circumstances, the Election Commis- B
sion postponed the date of poll from 18th October, 1987 (as originally

r notilied) to 18th November, 1987, in compliance with the spirit underly- -
ing section 30(d) of the Act, which contemplated an interval of 20 days
between the last date for withdrawal of candidatures and the date of
poll and notified the change of the date of poll in the Official Gazette. It
)~ also notified 4th November, 1987 as the date before which the election
c
had to be completed instead of 21st October, 1987, originally rixed.

On 16-10-1987, the respondents 1 to 5 filed a review petition
before the High Court, seeking a direction that the election programme
might be renotified on the ground that clear 20 days' interval was not
there between the last date of withdrawal of candidatures and the date D
of poll originally rixed, viz. 18th October, 1987. The High Court on
16th October 1987, passed an order adjourning the case to October 26,
1987 and staying the election fixed for the 18th October, 1987 till it
passed further order on 26th October 1987, even though it was brought
--( to the notice of the High Court that the Election Commission had on
16.10.1987 already postponed the date of poll from 18th October, 1987 E
to 1st November, 1987. Aggrieved by the interim order in the writ
petition postponing the last date of withdrawal of the candidatures from
,-
28th September, 1987, to October 1, 1987 and by the interim order
passed on October 16, 1987 in the Review Petition, the Election Com-
mission appealed to this Court for relief by special le3ve.
F
r Allowing the appeal, the Court,

HELD: A dispute regarding election to the Legislative Council of
a State can be raised only under the provisions contained in Part VI of
the Act. Section 80 A of the Act provides that the Court having jurisdic-
.tion to try on election petition shall be the High Court. In view of the G

.,, non obstante clause contained in Article 329 of the Constitution, the
power of the High Court. to entertain a petition questioning an election
on whetever grounds under Article 226 of the (:onstitution is taken
away. If there was any ground relating to the non-compliance with the
provisions of the Act and the Constitution on which the validity of any
election process could be questioned, the person interested in question- H
880 SUPREME COURT REPORTS [ 1988~ 1 S.C.R.

A ing the election has to wait till the election is over and institute a petition
in accordance with section 81 of the Act calling in question the election
of the successful candidate within forty five days from the date of elec-
tion of the returned candidate but not earlier than the date of election.
The High Court even though it had issued an interim order in the writ
petition on 26.9.1987 postponing the last date for withdrawal of the
13 candidatures to 1st October, 1987, dismissed the petition by its judgment
dated 1.10.1987. Having dismissed the petition on 1.10.1987, the High
Court committed a serious error in entertaining a review petition in the
.~ I

very same writ petition on 16.10.1987 and passing an order staying the
election which had been earlier fixed for 18.10.87 till further orders
"looking to the mandatory provisions of section 30 of Representation of
the People Act." The High Court failed to recall to its mind that it was
c not its concern under Article 226 of the Constitntion to rectify any error
even if there was an error committed in the process of election at any
stage prior to the declaration of the result of the election notwithstand-
ing the fact that the error in question related to a mandatory provision
of the statute relating to the conduct of the election. If there was any
D such error committed in the course of the election process, the Election
Commission had the authority to set it right by virtue of power vested in
it under Article 324 of the Constitution as decided in Mohinder Singh
Gill & Anr. v. The Chief Election Commisioner, New Delhi & Ors.,
[1978] 2 S.C.R. 272, and to see that the election process was completed
in a fair manner. [886A-B, G-H; 887E-H]
y
E
In this case, 75% of the total electorate (including the number of
members of the Zilla Parishads of Osmanabad and Lalor districts who
would have been voters had the said Zilla Parishads been constituted)
were entitled to vote. Since the existing position in the constituency
satisfied the guideline prescribed by the Election Commission, the elec-
F lion from the said constitnency had been ordered. It was only on ,...._,
account of the interim order passed by the High Court on 26.9.1987 ·
postponing last date for withdrawal of the candidatures from 28.9.1987
to 1.10.1987 and not on account of any mistake committed by the Elec-
tion Commission that the interval between the last date of withdrawal
and the date of poll, originally fixed as 18.10.1987 fell short of the
G period of twenty days prescribed by clause (d) of section 30 of the Act. •
After the judgment of the High Court was pronounced dismissing the
writ petition on 1.10.1987, in order to ensure that there was an interval )"I'
of 20 days betwej!n the last date for withdrawal of candidatures and the
date of poll, the Election Commission had on its own postponed the date
of poll on 1.11.1987 and published a notification in the official Gazette
H even before the Court passed another interim order on 16.10.l:ib7 in.
ELECTION COMMISSION OF INDIA v. SHIVAJI 881

y the Review Petition. All these changes in the calendar of events of the
election came about because of the earlier interim order of the High
A
Court. It is not the law that every non-compliance with the provisions
of the Act or the Constitution will vitiate an election. It is only when
it is shown that the result of the election was materially affected by
such non-compliance that the High Court would have the jurisdiction
to set aside an election in accordance with section lOO(l)(d)(iv) of the B
Act. [888C-G]

The High Court grievously erred in entertaining the review peti-
tion and passing an interim order on 16.10.1987. Both the interim
orders-the one passed on 26.9.1987 postponing the last date of with·
drawal of the candidatures, and the other, passed on 16.10.1987-were
without jurisdiction. There was hardly any justification for entertain· c
ing the review petition in the circumstances of the case and issuing
notice thereon particularly after the High Court itself had rejected the
writ petition on the ground that it had no jurisdiction to interfere with
the process of election at that stage in view of the provisions of Article
329(b) of the Constitution. The Review Petition before the High Court D
was liable to be dismissed. The entire proceedings in the High Court
amounted to a clear abuse of the process of law. [889B-D]

OBSERVATION: The suceess of democracy is dependent upon
y the cooperation of the Legislature, the press, the political parties and
above all the citizenry, and each of them discharging the duties assigned E
to it. Every member of the body politic should play his legitimate role
for the success of the democracy. Some times, the success of democracy
also depends upon the observance of restraint on the part of the Con·
stitutional functionaries. [888H; 889A-B]

Inderjit Barua & Ors. v. Election Commission of India & Ors., F
~ (1985] Supp. 3 S.C.R. 225 A.I.R 1984 S.C. 1911; N.P. Ponnuswami v.
Returning Officer Namakkal Constituency and Ors., (1952] S.C.R.
218; Lakshmi Charan Sen & Ors. etc. v. A.K.M. Hassan Uzzaman &
Ors. etc., (1985] Supp. 1 S.C.R. 493 and Mohinder Singh Gill & Anr.
v. The Chief Election Commissioner, New Delhi & Ors., (1978] 2
S.C.R. 272, referred to. G
.,, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2849
of 1987. (In Special Leave Petition (Civil) No. 12198 of 1987).

From the Judgment and Order dated 26.9.1987 of the Bombay
High Court in W.P. No. 1459 of 1987.
H
882 SUPREME COURT REPORTS [1988] 1 S.C.R.

A G. Ramaswamy, Additional Solicitor General and Ms. A Sub- '1
hashini for the Petitioner.

Dr. Y.S. Chitale, A.M. Khanwilkar, A.S. Bhasme and Mrs.
Jayshree Wad for the Respondents .

.B Dr. N.M. Ghatate and S.V. Deshpande for the Intervenor.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. We are very much disturbed by the
manner in which the High Court of Bombay (Aurangabad Bench) has
interfered not once but twice with the process of election which was
C being held under the provisions of the Representation of the People
Act, 1951 (hereinafter referred to be 'the Act') to the Legislative
Council of the State of Maharashtra from the Osmanabad-cum-Latur-
cum-Beed Local Authorities Constituency. The Governor of
Maharashtra by a notification dated 18th September, 1987 issued
O under section 16 of the Act called upon six local authorities
constituencies in the State of Maharashtra to elect one member from
each of the said constituencies in order to fill the vacancies in the
Maharashtra Legislative Council which had been caused by the retire-
ment of the members representing the said constituencies on the expi-
ration of their terms of office. On the same day the Election Commis-
E sion of India, the appellant herein, issued a notification under section
30 of the Act fixing the calendar of events for the purpose of holding
the elections accordingly. Osmanabad-cum-Latur-cum-Beed Local
Authorities constituency was one of the six constituencies referred to
above. According to the notification issued by the Election Commis-
sion the last date for making nominations was 25th September, 1987.
F The date for the scrutiny of nominations was 26th September, 1987.
The last date for the withdrawal of candidatures was 28th September,
1987 and the date on which the 1Poll, if]necessary, was to be taken was
18th October, 1987. The entire election process had to be completed
within 21st October, 1987. Respondents 1 to 5 Shivaji son of Vish-
wanath Gangane, Prof. K.S. Shinde, Prabhakar son of Bapurao
G Pudale, Shankarrao Madhavrao Mane and Ashok son of Rangnath
Magar filed a writ petition under Article 226 of the Constitution in
Writ Petition No. 1459 of 1987 on September 26, 1987 before the High
Court of Bombay (Aurangabad Bench) challenging the validity of the
notification issued by the Election Commission on 18th September,
1987 on the ground that the notification was invalid because the Zilla
H Parishad of Osmanabad and the Zilla Parishad of Latur district which
ELECTION COMMISSION OFINDIA v. SHIVAJI [VENKATARAMIAH, J.] 883

)" were within the constituency had not been constituted and the
A
Administrators were appointed to run the said Zilla Parishads and
therefore the members of the said Zilla Parishads who were entitled to
take part in the said elections had been deprived of their right to
participate in the said election. Along with the writ petition an applica-
tion was made for an interim order and the counsel who moved the
said application just prayed for the postponement of the last date for B
withdrawal of candidatures frpm 28th September, 1987 to 1st October,
1987. It is not clear why such a pl'l\yer was made. The learned Single
J ndge before whom the writ petition came up for consideration how-

'1 ever passed an order on September 26, 1987 issuing notice on the writ
petition and passing an interim order ex parte directing the postpone-
ment of the last date of withdrawal of candidatures from 28th
September, 1987 to October 1, 1987. A Division Bench of the High
Court which was presided over by the learned Single Judge who had
issued the interim order earlier heard the writ petition on October 1,
c

1987 and dismissed it by the order passed on the same day. In the
course of its order the Division Bench relied on the decision in Inderjit
Barua & Ors. v. Election Commission of India & Ors., (1985] Supp. 3 D
S.C.R. 225=AIR 1984 S.C. 1911 which had laid down that the validity
of an election process under the Act could be challenged only in an
election petition filed under the Act as provided by Article 329(b) of
the Constitution. While dismissing the writ petition the High Court did
-'{ not make any observation as to the effect of the interi;.1 order passed
by it earlier on the election programme. 18 candidates withdrew their E
candidatures by Ist of October, 1987 which was the last date for with-
drawal of candidatures as per the interim order passed by the High
Court. In the circumstances the Election Commission considered it
fair to postpone the date of poll from 18th October, 1987 (as originally
notified) to some later date in order to secure compliance with the
spirit underlying section 30( d) of the Act which contemplated an inter- F
r val of 20 days between the last date for withdrawal of candidatures and
the date of poll. Ordinarily a week's postponement would have been in
the opinion of the Election Commission adequate in the present case
but as the postponement of one week would have led to the date of
poll falling during the festival season the Election Commission revised
the date of poll as Ist November, 1987 and notified the change of the G
date of poll in the Official Gazette on 15th October, 1987. The Elec-
..,. tion Commission also notified under the same notification the date
before which the election had to be completed as 4th November, 1987
instead of 21st October, 1987 which was the date fixed for that purpose
originally. But on 16.10.1987 respondent 1to5 filed a Review Petition
in Civil Application for Review No. 2035 of 1987 before the High H
884 SUPREME COURT REPORTS [ 1988) 1 S.C.R.

Court seeking a direction to the effect that the election programme
A might be renotified on the ground that clear 20 day's interval was not
there between the last date of withdrawal of candidatures and the date
"'
of poll which had been originally fixed as 18th October, 1987. The said
Review Petition came up for consideration on the 16th October, 1987
before the very same Bench which had dismissed the Writ Petition
B earlier on 1st October, 1987. On that occasion it is alleged that it was

l
brought to the notice of the High Court by the learned counsel appear-
ing for the State of Maharashtra, Collector, Osmanabad and the
Returning Officer for the Osmanabad-Latur-Beed Local Authority
Constituency and the District Returning Officer for Maharashtra
Legislative Council Constituency No. 26, Osmanabad-Latur-Beed

c
Local Authority Constituency, Osmanabad, that the Election Com- '-1
mission had on 15.10.1987 already postponed the date of poll from
18th October, 1987 to the 1st November, 1987. Despite the above
submission made by the said counsel the High Court was pleased to
make the following order on 16th October, 1987.

D "Notice before admission. In this matter, the election
fixed for the 18th October, 1987 will have to be stayed till
we pass further order on 26th October, 1987, looking to the
mandatory provision of section 30 of the Representation of
the People Act, S.O. till 26-10-1987." )'

E The case was adjourned to October 26, 1987 for hearing.
Aggrieved by the interim order passed in the writ petition postponing
the last date of withdrawal of the candidatures from 28th September,
1987 to October 1, 1987 and by the interim order passed on October
16, 1987 in the Review Petition the Election Commission has filed this
appeal by special leave.
,.....
F
The Special Leave Petition filed in the above case came up for
hearing on October 27, 1987. On that date this Court directed issue of
notice on the Special Leave Petition and also ordered stay of the
operation of the stay order which had been passed by the High Court.
The Election Commission was permitted to proceed with the election
G process. The contesting respondents took notice of the petition in the
Court through their counsel. The case was adjourned to 30th October,
1987 for final hearing. On 30th October, 1987 the case was heard and
,
the Court passed the following order:

"Special leave granted. The appeal is heard. We
R allow the appeal, set aside the order dated 16.10.1987 pas-
ELECTION COMMISSION OF INDIA v. SHIVAJJ [VENKATARAMIAH, J.) 885

'Y sed by the High Court of Bombay at Aurangabad and dis-
miss the Review Petition No. 2035 of 1987 in writ petition
A
No. 1459 of 1987. The Election Commission shall proceed
with the election in accordance with law. Respondent Nos.
1 to 5 shall pay Rs.5000 by way of costs to the appellant.
Reasons will follow."
B
The appeal was accordingly allowed with costs. The following
are the reasons for allowing the appeal.

Part XV of the Constitution contains the provisions relating to
the elections. Article 324( 1) of the Constitution vests the superintend-
~: ence, direction and control of the preparation of the electoral rolls for,
i and the conduct of all elections to Parliament and to the Legislature of c
every State and of elections to the offices of the President and the
Vice-President held under the Constitution in the Election Commis-
sion. Article 327 of the Constitution provides that subject to the provi-
sions of the Constitution, Parliament may from time to time by law
make provision with respect to all matters relating to, or in connection D
with, elections to either House of Parliament or to the House or either
House of the Legislature of a State including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the du~ constitution of each House or Houses.
'{ In exercise of the power granted under Article 327 of the Constitution
Parliament has enacted the Act to provide for the conduct of elections E
to the either House of Parliament, to the House or either House of the
Legislature of each State, qualifications and disqualifications for mem-
bership of those Houses, corrupt practices and other offences in con-
nection with such elections and the decision of doubts and disputes arising
out of or in connection with the such elections. Article 329(b) of the
Constitution provides that notwithstanding anything contained in the F
r Constitution no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called in question
except ,by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by the
appropriate Legislature.
G
The disputes regarding the elections have to be settled in accord-

~
ance with the provisions contained in Part VI of the Act. Section 80 of
the Act states that no election shall be called in question except by an
election petition presented in accordance with the provisions of Part
VI of the Act. The expression 'election' is defined by section 2(d) of
the Ac! as an election to fill a seat or seats in either House of Parlia- H
886 SUPREME COURT REPORTS [1988) 1 S.C.R.

ment or in the House or either House of the Legislature of a State
.,
A other than the State of Jammu and Kashmir. Thus a dispute regarding
election to the Legislative Council of a State can be raised only under
the provisions contained in Part VI of the Act. Section 80A of the Act
provides that the Court having jurisdiction to try an election petition
shall be the High Court. An election petition has to be presented in
B accordance with section 81 of the Act. In view of the non obstante
clause contained in Article 329 of the Constitution the power of the
High Court to entertain a petition questioning an election on whatever
grounds under Article 226 of the Constitution is taken away. The word
'election' has by long usage in connection with the process of selection
of proper representatives in democratic institutions acquired both a
wide and a narrow meaning. In the uarrow sense it is used to mean the -,,.
c final selection of a candidate which may embrace the result of the poll
when there is polling, or a particular candidate being returned unop-
posed when there is no poll. In the wide sense, the word is used to
'
connote the entire process culminating in a candidate being declared
elected and it is in this wide sense that the word is used in Part XV of the
D Constitution in which Article 329(b) occurs. In N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency and Ors, [1952] S.C.R. 218
this Court held that the scheme of Part XV of the Constitution and the
Act seems to be that any matter which has the effect of vitiating an
election should be brought up only at the appropriate stage· in an
appropriate manner before a special Tribunal and should not be
)
E brought up at an intermediate stage before any court. Any other
meaning ascribed to the words used ·in the article would lead to
anomalies, which the Constitution could not have contemplated, one
of them being any dispute relating to the pre-polling stage. In the
above decision this Court ruled that having regard to the important
functions which the legislatures have to perform in democratic coun-
F tries, it had always been recognised to be a matter of first importance ~

that elections should be concluded as early as possible according to
time schedule and all controversial matters and all disputes arising out
of elections should be postponed till after the elections were over so
that the election proceedings might not be unduly retarded or pro-
tracted. Hence even if there was any ground relating to the non-
G compliance with the provisions of the Act and the Constitution on
which the validity of any election process could be questioned, the
person interested in questioning the elections has to wait till the elec-
tion is over and institute a petition in accordance with section 81 of the
Act calling in question the election of the successful candidate within
fortyfive days from the date of election of the returned candidate but
H not earlier than the date of election. This view has been reaffirmed by
ELECTION COMMISSION OF INDIA v. SHIVAJI [VENKATARAMIAH,J.] 887

this Court in Lakshmi Charan Sen & Ors. etc. v. A.K.M. Hassan A
Uzzaman & Ors. etc., [ 1985] Supp. 1 S.C.R. 493 and in Inderjit Barua
& Ors etc. v. Election Commision of India & 'Ors. (supra). Realising
the effect of Article 329 (b) of the Constitution the High Court even
though it had by oversight issued an interim order in writ Petition
No. 1459 of 1987 on 26.9.1987 postponing the last date for withdrawal B
of candidatures to Ist October, 1987 dismissed the petition by its judg·
ment dated 1. 10. 1987. The relevant part of its judgment reads as
follows:

"The challenge must fail mainly on two grounds. First
on the ground that the stage has reached of withdrawals of
nominations for the said election which was intact, fixed on C
30th but has been postponed because of our orders as on
today. Article 329(b) bars every challenge to any election
including all the election process which commences from
the date of notification in the official Gazette, except by
way of election petition under the Representation of D
People Act. Mr. Chapalgaonkar, appearing for the respon·
dent has relied upon a decision-reported in AIR 1984
Supreme Court page 1911 to support this plea that all elec-
tion including every election process must be challenged
only by way of election petition under the Representation
of the People Act."
E
Having thus dismissed the petition on 1.10.1987 the Court committed a
_.. serious error in entertaining a Review Petition in the very same writ
petition on 16.10.1987 and passing an order staying election which had
been earlier fixed for 18.10.1987 till further orders "looking to the
mandatory provisions of section 30 of the Representation of the F
People Act". The High Court failed to recall to its mind that it was not
its concern under Article 226 of the Constitution to rectify any error
even if there was an error committed in the process uf election at any
stage prior to the declaration of the result of the election notwithstand-.
ing the fact that the error in question related to a mandatory provision
of the statute relating to the conduct of the election. If there was any
such error committed in the course of the election process the Election G
Commission had the authority to set itrigbt by virtue of power vested
in it under Article 324 of the Constitution as decided in Mohinder
Singh _Gill & Anr. v. The Chief Election Commissioner, New Delhi &
Ors., [1978] 2 S.C.R. 272 and to see that the election process was
completed in a fair manner.
H
888 SUPREME COURT REPORTS [1988) 1 S.C.R.

A It is true that the Zilla Parishads of Osmanabad and the Latur
districts had not been constituted and administrators were functioning
in their place. The total voters in the local authorities constituency in
question were 577 out of which 533 were members of Municipal
Councils and 44 were members of the Zilla Parishads. Even if the Zilla
Parishads of Osmanabad and Latur districts had been in existence the
S total number of their members would not have exceeded above 110.
As such more than 3/4th of the voters entitled to vote in the consti-
tuency in question were in existence. The Election Commission had a
guideline that if at least 75% of the local authorities in a local authority
constituency were functioning and again at least 75% of the voters in
the total electorate were available, then the electorate should be asked
C to elect their representative to the Legislative Council. In the instant
case 75% of the total electorate (including the number of members of
the Zilla Parishads of Osmanabad and Latur districts who would have
been voters had the said Zilla Parishad been constituted) were entitled
to participate. Since the existing position in the constituency satisfied
the guideline prescribed by the Election Commission, the election
D from the said constituency had been ordered. It was only on account of
the interim order passed by the High Court on 26. 9.1987 postponing
last date for withdrawal of candidatures from 28.9.1987 to 1.10.1987
and not on account of any mistake committed by the Election Commis-
sion the interval between the last date of withdrawal and the date of
poll which had been originally fixed as 18.10.1987 fell short of the
E period of twenty days prescribed by clause (d) of section 30 of the Act.
After the judgment of the High Court was pronounced dismissing the
writ petition on 1.10.1987 in order to ensure that there was an interval
of20 days between the last date for the withdrawal of candidatures and
the date of poll, the Election Commission had on its own postponed
the date of poll to 1.11. 1987 and had published a notification in the
F Official Gazette of the State Government even before the Court pas-
sed another interim order on 16.10.1987 in the Review Petition. All ·--i '
these changes in the calendar of events of the election in question
came about because of the earlier interim order of the High Court. It
has to be stated here that it is not the law that every non-compliance
with the provisions of the Act or of the Constitution will vitiate an
G election. It is only when it is shown that the result of the election was
materially affected by such non-compliance the High Court would
have jurisdiction to set aside an election in accordance with section
100(1)(d)(iv) of the Act. The High Court was in error in thinking that
it alone had the exclusive power to protect the democracy. The success
of democracy is dependent upon the cooperation of the Legislatur.,,
H the Executive, the Judiciary, the Election Commission, the press the
ELECTIONCOMMJSSIONOFINDIA v. SHIVAil [VENKATARAMJAH,J.] 889

r political parties and above all the citizenry and each of them discharg- A
ing the duties assigned to it. Every member of the body politic should
play his legitimate role for the success of the democracy. Some times
the success of democracy also depends upon the observance of
restraint on the part of the constitutional functionaries.
B
We are constrained to observe that the High Court grievously
~' erred in en\ertaining the review petition and in passing an interim
order on 16: 10.1987. We are of the view that both the interim orders
the one passed on 26. 9.1987 postponing the last date of withdrawal of
candidatures from 28.9.1987 to 1.10.1987 and the other passed on
.._. 16.10, 1987 were without jurisdiction. There was hardly any justifica-
if tion for entertaining the review petition in the circumstances of this C
case and for issuing notice thereon particularly afte1 the High Court.
itself had rejected the writ petition on the ground that it had no juris-
diction to interfere with the process of election at that stage in view of
the provisions of Article 329(b) of the Constitution. The review peti-
tion filed belfore the High Court was liable to be dismissed. We di- D
rected respondents 1 to 5 to pay Rs.5,000 to the appellant by way of
costs since the entire proceedings in the High Court amounted to a
clear abuse <)f the process of law. These are the reasons for our order
passed on 30.10.1987 allowing the appeal.

r S.L. Appeal allowed.