Hon'ble Judges/Coram:
M. Hameedullah Beg, C.J., P.K. Goswami, P.N. Bhagwati, P.N. Shinghal and V.R. Krishna Iyer JUDGMENT
V.R. Krishna Iyer, J.
1. What troubles us in this appeal, coming before a Bench of 5 Judges on a reference under Article 145(3) of the Constitution, is not the profusion of controversial facts nor the thorny bunch of lesser law, but the possible confusion about a few constitutional fundamentals., finer administrative norms and jurisdictional limitations bearing upon elections. What are those fundamentals and limitations ? We will state them, after mentioning, briefly what the writ petition, from which this appeal, by special leave, has arisen, is about.
The basics
2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :
At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.
If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you'.
3. The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics or Power best expressed by Benjamin Dizreeli:
I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist."
(Vivien Grey, BK. VI. Ch. 7)
Aside from these is yet another, bearings on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge made juristic but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government-crystallised clearly in our jurisprudence by a catena of cases here and elsewhere.
The conspectus of facts
4. The historic elections to Parliament, recently held across the country, included a constituency in Punjab called 13-Ferozepore Parliamentary constituency. It consisted of nine assembly segments and the polling took place on March 16, 1977. According to the calendar notified by the Election Commission, the counting took place in respect of five assembly segments on March 20, 1977 and the remaining four on the next day. The appellant and the third respondent were the principal contestants. It is stated by the appellant that when counting in all the assembly segments was completed at the resp........