Mohinder Singh Gill v Chief Election Commissioner, New Delhi

Facts

• Polling and counting took place in a parliamentary constituency in Delhi.
• The proceedings were disrupted by violence and disorder, and ballot papers were destroyed or rendered unusable at a number of polling stations.
• The Returning Officer's report and other material were placed before the Election Commission.
• Before the result was declared, the Commission cancelled the poll and ordered a fresh election for the entire constituency.
• No provision of the Representation of the People Act, 1951 or the rules expressly conferred power to cancel a poll and order a fresh election in such circumstances.
• The candidates affected had not been heard before the order was made.

Issue

1. Whether Art.324 confers substantive power on the Election Commission where the statutes are silent; and whether that power is subject to the rules of natural justice and to judicial review.

Held

• The order was upheld. The Court held that Art.324 is a reservoir of power operating where the enacted law does not: the superintendence, direction and control of elections vested in the Commission carries with it the plenary authority to do what is necessary to secure a free and fair election, and the absence of an express statutory provision is therefore not fatal. But the Court laid down three limits. First, the power must be exercised consistently with the existing law and cannot be used to override it. Second, it must be exercised in conformity with the rules of natural justice, so far as the urgency and time bound character of an election permit, and the Commission should ordinarily hear those affected. Third, the exercise is subject to judicial review. The Court added the observation, since much quoted, that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons stated in the order and cannot be supplemented by fresh reasons in the shape of an affidavit; public orders, publicly made, must be construed objectively with reference to the language used in the order itself.

Ratio Decidendi

Elections cannot be conducted by reference to a code that anticipates every contingency, and a Commission left powerless whenever the statute is silent could not discharge the function Art.324 assigns to it. The width of the power is therefore a necessity of the subject matter. But a power exercisable in unforeseen situations is precisely the kind that requires supervision, so the very reasoning that supports its breadth requires that it remain subject to law, to fair procedure and to review. Confining an order to the reasons it discloses is the practical condition of that review, since otherwise the grounds could be constructed after the event to meet the challenge.