Raman Nayar, C.J.
1. We dismissed this petition brought under Article 226 of the Constitution on the 20th of this month. We did not then give our reasons, but promised to give them later. That we now proceed to do.
2. Speaking for myself, I should think that this petition does not lie in view of Article 329 of the Constitution. That article which is headed. 'Bar to interference by courts in electoral matters' says:
'Notwithstanding anything in this Constitution--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of scats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;
(b) 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.'
3. It seems to me--and I would have said this with greater assurance but for that it has not been so put at the bar, largely, I apprehend, because it has not been so put before, and that my learned brethren seem to think that the matter is not so simple as that--that all that one need ask is: Is the bar in Clause (b) of Article 329 only against interference with an election that has been, or is being held, or, does it extend 'to interference with an election that is yet to be held? (I am thinking for the moment in terms of things as they stood when this petition was brought, the supervening complication, complication, that is, from the point of view of the petitioner, of the issue of a notification under Section 15 of the Representation of the People Act, 1951, on the 17th August, while we were hearing the petition, seems to put the matter beyond all manner of doubt. And, having regard to the wording of, the article as to its purpose, I should think that the short answer is that it does so extend.
4. An election within the meaning of the article is not confined to the final result. the announcement of the successful candidate as duly elected, but embraces the entire process, beginning at least with the issue of the notification under Section 15 of the Representation of the People Act. 1951 (which I shall, for brevity, call the writ) and culminating in that result--see N. P. Ponnuswami v. Returning Officer, Naniakkal Constituency, AIR 1952 SC 64. It is of paramount importance that an election, whether in progress or yet to be held, should not be held up, and, that is why, as indicated by its heading, the article bars interference by the courts in election matters, Clause (b) thereof, in particular, saying that, 'no election ............ shall be called in question except by an election petition presented to such authority and in such mariner as may be provided for by or under any law made by the appropriate Legislature'. And this notwithstanding Article 226 or anything else in the Constitution. Now, you might question an election after it is completed and that is what is usually done. But Article 329 says that you may not do so except by way of an election petition. You might question it 'while it is in progress--that is what the petitioner is now doing and that was what was unsuccessfully attempted in AIR 1952 SC 64. That ton is prohibited. Yon might, I think, equally question the validity of an election that is going to be held, regarding which no writ has yet issued. (If it is possible to question an election before it is over, I suppose, it must be possible to question a proposed election before it has begun. If, for example, you question the propriety of a proposed appointment, I suppose there would be nothing wrong in saying that you are calling the appointment in question). That, we shall see, is precisely what the petitioner did when he brought the petition, and he did that principally on the ground that the electoral rolls were defective and had been revised in an improper and illegal manner. That, in my view is equally prohibited. You may not contracept an election (if I might coin that verb) any more than you may abort or otherwise arrest it for, that would equally hold up the process of democracy. The interference might not be as patent as interference after the writ has issued but it is as effective and, therefore, as much to be deprecated.
5. It would appear that before the issue of the writ, even before the petition was brought, the first respondent Election Commission had announced that a writ would issue on the 17th August fixing the date of the poll as the 17th September. And, when it was brought, the petition prayed that--
'this Honourable High Court be pleased to issue a writ of mandamus or other appropriate writs, directions, or orders restraining Respondents 1 to 3 from holding general elections to the legislative assembly of the Kerala State as notified on 17th September, 1970 and directing Respondents 1 to 3 to effect a proper revision of electoral rolls of the assembly consistencies for the Kerala State in accordance with the provisions contained in Section 21 of the Representation of the People Act of 1950 and the Registration of Electors Rules of 1960.'
It has been amended after the issue of the writ and now it prays that--
'this Hon: High Court be pleased to issue a writ of mandamus or other appropriate writs, directions or orders restraining Respondents 1 to 3 from holding general elections to the legislative assembly of the Kerala State as notified on 17th September, 1970 and to issue a writ of certiorari or other appropriate writs, directions or orders quashing the notification for holding the general election to the legislative assembly of the Kerala State as on 17th September, 1970 or in the alternative to declare as improper, void and illegal the revised electoral rolls of the Assembly Constituencies in the State of Kerala as existing on 15th January. 1970 (as asserted by the 1st Respondent) and as revised again and published on or before 8th August, 1970 as stated by the 1st Respondent in Exhibit R 5 and directing Respondents 1 to 3 to effect a proper revision of the electoral rolls for the Assembly constituencies in Kerala State in conformity with the provisions contained in Section 21 of the Representation of the People Act of 1951 before holding the General Elections for the Legislative Assembly of the Kerala State.'
6. What is this but calling in question the election announced by the Election Commission and now, after the issue of the writ, an election that has actually begun?
7. It is said that there are matters vital to a proper election such as for example, a proper electoral roll, which, under the provisions of the Representation of the People Act, 1951, cannot be questioned in an election petition, and it is pointed out that on the view I am taking, that would mean that such matters cannot be questioned at all. If that be so--I am expressing no opinion at all regarding that--that would appear to be the scheme of the Constitution. That is why the Constitution has set up a high, independent body like the Election Commission and vested in it the superintendence, direction and control of elections. It cannot be that the Constitution reposes less trust in the authority set up by itself than in the authority to be set up by the Legislature as contemplated by Clause (b) of Article 329. No one is infallible, not even the courts, but everything including questioning must have a stop.
8. I am far from saying that the Election Commission is, like the President or the Governor, beyond the reach of the courts when performing or purporting to perform the functions of its office. It is not necessary for me to decide that question, but I have little doubt that if in the preparation of the rolls or in any other matter, the Election Commission acts otherwise than in accordance with law, it is amenable to correction by this Court by the issue of an appropriate writ or order. But not, as the petitioner seeks of us, so as to hold up an election that is being or is proposed to be held.
9. It has been suggested that, if that be so the petitioner may at least be given a declaration that the rolls have not been prepared in accordance with law. But that is not the true object of the petition. The true object is patently to hold up the election (which has now actually commenced) and whether or not such a declaration will be effective for the purpose, and whether or not it will avail to call the election in question after it is completed, I do not think that such a declaration should be given, even if it could be given on the merits which, I agree with my learned brethren, is not the case.
10. It should be needless to say that the bar in Article 329(b) applies as much to an entire election as to an election from a particular constituency--indeed, the mischief it seeks to prevent would be greater in the former case.
11. In the view I am taking, it is unnecessary to decide whether an election begins only with the issue of the writ although I am inclined to agree with my learned brethren that in any case, it cannot be taken as far back as the preparation of the rolls.
12. I might add that AIR 1952 SC 64 dealt with a case where what was questioned was an election that was in progress. It was not concerned with whether the calling in question of an election yet to be held comes within the bar in Article 329(b), and I do not read that decision as implying that the bar comes into operation only with the commencement of the election. If the bar did not apply to a future election, it would mean that not merely the High Courts but every court in this country could, except to the extent of the bar in Section 30 of the Representation of the People Act, 1950, issue an injunction against the holding of an election.
13. The petitioner is the General Secretary of the Kerala Pradesh Congress Committee (O) and an elector in a Constituency to the Kerala State Legislature. There was a programme for revision of the electoral rolls of the 133 Assembly Constituencies. The electoral rolls that were in force on 15-11-1969 were published as draft on that day inviting claims and objections to the rolls. A house to house verification was also undertaken. After hearing the claims and objections the rolls were revised with the qualifying date 1-1-1970 and were finally published on 15-1-1970. The Kerala Legislative Assembly was dissolved on 26-6-1970. Doubts were raised as to the correctness of the electoral rolls as published on 15-1-1970. In a conference called by the Chief Election Commissioner on 10-7-1970 several of the political parties represented that in the electoral rolls there were several illegal inclusions and deletions. On this basis a special revision was ordered by the Election Commission. For filing formal objections to the electoral rolls of 15-1-1970 time was given till 30-7-1970. A verification from house to house was undertaken from 30-7-1970 to 3-8-1970 in some districts, and from 30-7-1970 to 6-8-1970 in the other districts. After verification, the drafts were published for objections on 3-8-1970 and 6-8-1970 giving time for filing objections till 6-8-1970 and 8-8-1970 respectively. The final rolls were published on 10-8-1970.
14. The petitioner contended that two copies of the draft electoral rolls published on 15-11-1969 were not supplied to the political party represented by him as per Rule 11 (c) of the Registration of Electors Rules 1960, passed under the Representation of the People Act 1950, for short the rules, and that no legible copy of the electoral rolls as published on 15-1-1970 was given to the party represented by him as undertaken by the 2nd respondent in the conference, nor was sufficient time given according to the rules for filing claims and objections to the electoral rolls of 15-1-1970 in the special revision proceedings, and therefore, the electoral rolls published on 15-1-1970 and 10-8-1970 were prepared not in accordance with the Representation of the People Act 1950, and the rules thereunder.
The prayer of the petitioner as amended is as follows:
'this Hon: High Court be pleased to issue a writ of mandamus or other appropriate writs, directions or' orders restraining Respondents 1 to 3 from holding general election to the legislative assembly of the Kerala State as on 17th September 1970 or in the alternative to declare as improper, void and illegal the revised electoral rolls of the Assembly Constituencies in the State of Kerala as existing on 15th January 1970 (as asserted by the 1st Respondent) and as revised again and published on or before 8th August 1970 as stated by the 1st Respondent in Exhibit R5 and directing Respondents 1 to 3 to effect a proper revision of the electoral rolls for the Assembly constituencies in Kerala State in conformity with the provisions contained in Section 21 of the Representation of the People Act of 1951 before holding the General Elections for the Legislative Assembly of the Kerala State.'
15. The learned advocate General, appearing for the 1st respondent, raised a preliminary objection to the maintainability of the writ petition on the basis of Article 329(b) of the Constitution which reads:
'Notwithstanding anything in this Constitution--
(b) no election to either House of Parliament or to the Houses 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.'
The contention of the learned Advocate General was that the preparation or revision of the electoral roll is an integral part of election, and since no election to either House of the Legislature of a State can be called in question except by an election petition, the proceedings are bad.
We do not think that there is any substance in the preliminary objections.
The question for consideration is whether the word 'election' in the sub-article refers to any step or process for the conduct of an election anterior to the issue of the notification under Section 15 of the Representation of the People Act 1951. Articles 324 - 329 occur in Part IV of the Constitution headed 'Elections'. Article 324 vests the superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to the Parliament and to the Legislatures of every State, in the Election Commission. The article makes it clear that preparation of electoral rolls and the conduct of elections are distinct matters, and that preparation of electoral rolls is something to be done anterior to the conduct of election. Article 327 says that subject to the provisions of the Constitution. Parliament may from time to time by law make provisions with respect to all matters relating to, or in connection, (sic--with) elections to either House of Parliament or to the Houses 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 due constitution of such House or Houses. This article would indicate that the preparation of electoral rolls and the delimitation of constituencies are not included within the expression 'all matters relating to or in connection with election. It is of course not an uncommon legislative practice to introduce an inclusive clause not for the purpose of adding to the scope and ambit of the statutory provision but by way of abundant caution for the purpose of removing any doubt or ambiguity. Therefore, it would not be safe to conclude merely from the existence of the inclusive clause in the article that the preparation of electoral rolls is not included in the expression 'all matters relating to or in connection with elections'. But when we turn to Article 328, we find that the power to make law which is conferred on the Legislature of a State is 'with respect to all matters relating to or in connection, with the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses' and the inclusive clause in this article does not refer to the delimitation of constituencies. The omission of the reference to the delimitation of constituencies in the inclusive clause in. Article 328, is inexplicable on the hypothesis that the matters set out in the inclusive clause in Article 327 were comprehended within the expression 'all matters relating to, or in connection with elections' and that the inclusive clause was merely introduced by way of clarification. The only explanation for the omission of the reference to delimitation of constituencies in the inclusive clause in Article 328 appears to be that the matters set out in the inclusive clause in Article 327 were not covered by the expression 'all matters relating to or in connection with elections' but were additional matters which were sought to be brought within the compass of that Article and since the Constitution-framers while enacting Article 328 conferring power on the Legislature of State, did not think it proper to empower the Legislature to make law with respect to one of those matters, namely, the delimitation of constituencies, they dropped the delimitation of constituencies from the inclusive clause in Article 328. The preparation of electoral rolls and the delimitation of constituencies would, in this view be not covered by the expression 'all matters relating to, or in connection with election' in Articles 327 and 328. We think that this conclusion is in keeping with the provisions of the Representation of the People Act 1950 and the Representation of the People Act 1951 made in exercise of the power of Parliament under Article 327.
16. The Representation of the People Act 1950 deals with matters preparatory to the process of election. The Act provides for allocation of seats, delimitation of constituencies, qualification of voters, preparation of electoral rolls and other matters. The Representation of the People Act 1951, on the other hand, provides for conduct of elections to the Houses of Parliament and to the Houses of the Legislature of each State, the qualification and disqualification of membership of those Houses, the corrupt practices, decisions of doubts and disputes arising out of or in connection with elections, etc. The preparation of electoral rolls is not a stage in an election process but is something anterior to the election. The election commences only with the notification under Section 15 of the Representation of the People Act 1951 and ends with the declaration of the result of the election. In AIR 1952 SC 64 the! Supreme Court considered the meaning of the word 'election' in the sub-article. That was a case where the nomination of the appellant before the Supreme Court as candidate in an election was rejected by the Returning Officer, and that was questioned before the High Court in a writ petition. The High Court held that the petition was not maintain-able in view of the provisions of Article 329(b). The decision was affirmed by the Supreme Court The Supreme Court said 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 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. The court observed that if any irregularities are committed while the election 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, the person affected can call it in question before a special tribunal by means of an election petition and that it should not be made the subject of a dispute before any court while the election is in progress. In dealing with the meaning of the word 'election' in the sub-article the court said:
'That word 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 narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed 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.'
In Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233. Venkatarama Iyer. J., in considering the question as to when an election commences, after referring to Ponnuswami's case, AIR 1952 SC 64 said that the word 'election' in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. In Roop Lal v. Dhan Singh, AIR 1968 Punj 1 a Full Bench of the Punjab High Court held that 'election' commences only with the notification under Section 15 of the Representation of the People Act, 1951. The court observed after referring to Ponnuswami's case that there is nothing in that judgment to justify the conclusion that the preparation of electoral rolls is a part of the actual process of election. In S.J. Jhala v. Chief Ele. Officer, AIR 1969 Guj 292 a Division Bench of the court has held that the order of the Chief Electoral Officer refusing to include the name of a person in the electoral roll (sic-of) a constituency can be challenged by a petition under Article 226, as any irregularity in the preparation of the electoral roll is not a matter relating to 'election' within the meaning of Article 329(b). Now what is prohibited by the sub-article is calling in question an election to either House of Parliament or to the Houses of the Legislatures of each State. If preparation or revision of electoral rolls does not relate to 'election' to either House of Parliament or the Houses of the Legislature of a State, it stands to reason to hold that the prohibition contained in the sub-article can have no application to a petition under Article 226 challenging the regularity of the preparation of the electoral rolls. Whether an election has commenced, or is in progress, or has come to an end, the prohibition in the sub-article, relating as it does to 'election' would not take in a challenge to any irregularity or defect in the preparation of the electoral rolls, a process anterior to the election.
It was suggested that any irregularity in the preparation of the electoral rolls arising from non-compliance with the provisions of the Representation of the People Act 1950 is a matter which could be raised in an election petition, and so the court cannot interfere. Section 100(1)(d)(iv) of the Representation of the People Act 1951 makes it clear that non-compliance with the provisions of the Constitution or of the provisions of that Act or of any rules or orders made under that Act can be taken as a ground in an election petition to declare an election void, if it has materially affected the result of the election. Any non-observance of the provisions of the Representation of the People Act 1950 would not be a ground for attack in an election petition. An electoral roll is final and conclusive in the forum trying an election petition. See the decisions of the Supreme Court in Ramaswamy v. B. M. Krishnamurthy, AIR 1963 SC 458 and Kabul Singh v. Kundan Singh, AIR 1970 SC 340 and also the decisions in AIR 1968 Punt 1 (FB) and Sher Singh Budh Singh v. State of Punjab, AIR 1965 Punj 361. If the ruling in Kunhiraman v. Krishna Iyer, 1962 Ker LT 275 = (AIR 1962 Ker 190) (FB) lays down the law correctly--we make no pronouncement about that--perhaps the only exception to this rule might be when there is non-compliance with the provisions of the Constitution in the preparation of the electoral rolls. That being so, if a person cannot question a material irregularity in the preparation of the electoral rolls in a proceeding under Article 226 for failure to comply with the provisions of the Representation of the People Act 1950 or the Rules, the position would be that it cannot be questioned either before or during the progress of or after the election. Now, it is difficult to uphold such a position unless compelled by some clear provision of the law, as that would be sanctioning the vesting of uncontrolled power in an agency bound to act in accordance with the provisions of the Representation of the People Act 1950 in the matter of preparation of electoral rolls.
Non-compliance with a mandatory provision of the Representation of the People Act 1950 may make the proceeding for preparation of electoral rolls hull and void. In such a case even the Draconian words of Section 30 of the Representation of the People Act 1950 may not bar a suit for declaration that the proceedings are a nullity, let alone, a petition under Article 226, a constitutional remedy, which it is beyond the power of any legislature to take away. In Anisminic. Ltd. v. Foreign Compensation Commission. 1969-2 AC 147 the House of Lords had to construe a provision for exclusion of jurisdiction of courts. The provision reads:
'The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.'
The House of Lords held by a majority that this clause would not oust the jurisdiction of a court to grant a declaration in a suit when a determination is a nullity. Lord Reid said:
'The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceeding in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that 'determination' means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way if you seek to show that a determination is a nullity you are not questioning the purported determination--you are maintaining thatit does not exist as a determination. Itis one thing to question a determinationwhich does not exist: it is quite anotherthing to say that there is nothing to bequestioned.
x x x xStatutory provisions which seek tolimit the ordinary jurisdiction of thecourt have a long history. No case hasbeen cited in which any other form ofwords limiting the jurisdiction of thecourt has been held to protect a nullity.If the draftsman or Parliament had intended to introduce a new kind of ousterclause so as to prevent any inquiry evenas to whether the document relied onwas a forgery. I would have expected tofind something much more specific thanthe bald statement that a determinationshall not be called in question in anycourt of law. Undoubtedly such a provision protects every determination whichis not a nullity. But I do not thinkthat it is necessary or even reasonable to construe the word 'determination' asincluding everything which purports tobe a determination but which is in factno determination at all. And there areno degrees of nullity. There are anumber of reasons why the law willhold a purported decision to be a nullity.I do not see how it could be said thatsuch a provision protects some kinds ofnullity but not others: if that were intended it would be easy to say so.'
It is unnecessary to speculate on theimpact of this decision upon the construction of Article 329(b) when a process inan election after the notification underSection 15 of the Representation of thePeople Act 1951 is null and void fornon-compliance with a mandatory provision of that Act or for any other reason.An electoral roll prepared or revised inaccordance with the law is the foundation for the conduct of a proper election. In Chief Commr., Ajmer v. RadheyShyam. AIR 1957, SC 304 the court saidthat it is of the essence of an electionthat proper electoral rolls should bemaintained, and in order that a properelectoral roll should be maintained it isnecessary that all the procedure prescribed for the preparation or revision ofthe electoral rolls should be followed,and unless this is done the obligationcast upon the authorities holding theelections is not discharged and the elections held on such imperfect electoralrolls would acquire no validity and wouldbe liable to be challenged at the instanceof the parties concerned. In AIR 1965Punj 361 Grover, J., said:
'Everybody agrees that if the very foundation of the election, namely, the electoral roll is illegal no election on its basis can proceed or be allowed to stand. but that does not mean that any kind of defect in the roll, however technical in its nature, will, suffice to reach such a conclusion.'
It is obvious from this observation that if the electoral rolls are illegal no election on their basis can proceed or be allowed to stand. If this be so, we think that in a proper case it might be open to this court in a writ application to give a declaration that the electoral rolls have been prepared in substantial violation of the material provisions of the Representation of the People Act 1950 and give appropriate consequential directions.
17. The learned Advocate General submitted that the petitioner has no locus standi to maintain this petition. He said that the petition is not filed by the petitioner in any representative capacity; and as a citizen his interest is only to see that his name is included in the electoral roll. In other words, the submission is that the petitioner has no tanding to challenge the irregularities in the preparation of ,the electoral rolls is he is not personally and directly affected by them. Reliance was placed in support of this submission on Pazhanimala v. State of Kerala 1968 Ker LT 652 = (AIR 1969 Ker 154) (FB) where all the Supreme Court rulings on the point are collected. We are unable to accept this argument. The petitioner is an elector and is interested in the proper conduct of the election. Standing has been called one of the most amorphous concepts in the entire domain of public law. Some of the complexities peculiar to standing problems result because standing serves, oh occasion, as a shorthand expression for all the various elements of justiciability. In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations. See Flast v. Cohen, (1968) 392 US 83. The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness, which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
'Since Ashby v. White, a direct interference with plaintiff's franchise has been actionable as a private wrong. But the courts have gone much beyond protection of the individual voter. They have intervened at the suit of the citizen-voter to enforce a considerable part of the constitutional and statutory code governing the election process. This is dramatically illustrated by two cases from New Jersey. The first, already discussed, was decided in 1794, the Supreme Court intervening to ensure an honestcount of the vote. In the second, in1960, the Supreme Court gave notice tothe legislature that it would redistrictthe state for representation in the lowerhouse, unless the legislature itself didthe job forthwith; Even on the continent, where the citizen suit is notgenerally allowed, special statutes permitcitizen enforcement of the election laws.The United States Supreme Court, otherwise so inhospitable to citizen suits, hastaken jurisdiction in cases of this typealmost, it would seem, without havinggiven it a second thought. Thus inKoening v. Flynn it reviewed a NewYork Court's judgment in a mandamusproceeding by 'citizens and voters' totest the constitutionality of a state, arrangement for federal districting.' (See'Standing to Secure Judicial Review:Public Relations' by Louis L. Jaffe, in74 Harvard Law Review, page 1265 at1267).
In Hawke v. Smith, (1920) 253 US 221the plaintiff in error, suing as a ''citizenand elector of the State of Ohio and asa tax-payer and elector of the Countyof Hamilton', on behalf of himself andothers similarly situated filed a petitionfor an injunction in the state court torestrain the Secretary of State fromspending the public money in preparingand printing ballots for submission of areferendum to the electors on the question of the ratification of the EighteenthAmendment to the Federal Constitution.A demurrer to the petition was sustained in the lower court and its judgmentwas affirmed by the intermediate appellate court and the Supreme/Court ofthe State . The Supreme Court of theUnited States entertained jurisdictionand, holding that the state courthad erred in deciding that the State hadauthority to require the submission ofthe ratification to a referendum, reversed the judgment . In Leser v. Garnett,(1922) 258 US 130 qualified voters in theState of Maryland brought suit in thestate court to have the names of certainwomen stricken from the list of qualifiedvoters on the ground that the constitution of Maryland limited suffrage to menand that the Nineteenth Amendment tothe Federal Constitution has not beenvalidly ratified. The State court tookjurisdiction and the Court of Appeals ofthe State affirmed the judgment dismissing the petition.
18. Now, coming to the merits of this petition, the contention of the petitioner is that the provisions of the Representation of the People Act 1950 and the Rules thereunder have been violated in the preparation of the electoral rolls. In the petition the only ground urged so far as the preparation of the final electoral rolls of 15-1-1970 is concerned, is that two copies of the draft electoral rolls were not-supplied to the petitioner as enjoined by Rule 11 (c) of the Rules, Rule 11 (c) is as follows:
'The Registration Officer shall also-
(c) supply free of cost two copies of each separate part of the roll to every political party for which a symbol has been exclusively reserved in the State by the Election Commission.'
It would be clear from the rule that it is only to a political party to whom a symbol has been reserved that two copies of the draft electoral roll need be supplied free of cost. No exclusive symbol has been reserved to the political party represented by the petitioner. There is, therefore, no justification in the complaint of the petitioner. That apart, there is the definite averment in the counter-affidavit of the 2nd respondent that the Electoral Registration Officer concerned has been directed to supply two copies of the draft rolls free of cost to the political party represented by the petitioner as well, and the petitioner was aware of it. If the petitioner did not avail of that opportunity and get the copies, that cannot be made a ground of complaint in this court:
19. The other grievance of the petitioner was that sufficient time was not given to his party to put forward objections and claims in the special revision. It may be remembered in this connection that in the conference held on 10-7-1970 various political parties in the State put' forward specific objections to the electoral rolls finally prepared on 15-1-1970. It was on the basis of these specific objections and claims that it was decided to have a special revision as provided in Section 21(3) of the Representation of the People Act 1950. It would the useful to extract Section 21(3) in this connection.
'Notwithstanding anything contained in Sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.'
The special revision was undertaken with a view mainly to correct the illegal inclusions and deletions alleged to exist in the electoral rolls prepared as on 15-1-1970. A copy of the electoral rolls as prepared on 15-1-1970 was supplied to the petitioner also and time for filing objections was given till 30-7-1970. Every claim for inclusion or deletion was subjected to house to house verification, and as already stated, time was given for filing objections and claims to the drafts published on 3-8-1970 and 6-8-1970. The rules for the preparation or revision of electoral rolls may not as such apply to a special revision. That is clear from Sub-section (3) of Section 21 itself. Therefore, the procedure laid down in Ext. R5: (a sample order of special revision) need not conform to the Rules. The manner of conducting a special revision is in the discretion of the Election Commission, and in the facts and circumstances of the case, we do not think that the complaint of the petitioner that the political party represented by him had no reasonable opportunity to file objections and claims, has any substance. We are not satisfied that there was any irregularity in the preparation of the electoral rolls as published on 15-1-1970 or the rolls as specially revised and published on 10-8-1970. It is only, when it is found that there is substantial non-compliance with the material provisions of the Representation of the People Act 1950 or the Rules thereunder that a challenge to the validity of an electoral roll can be entertained.
We would dismiss the petition.