Articles 325 to 329

Article 326 provides that elections to the House of the People and to every State Legislative Assembly "shall be on the basis of adult suffrage", every citizen "not less than eighteen years" of age being entitled to be registered as a voter unless disqualified on the ground of "non-residence, unsoundness of mind, crime or corrupt or illegal practice".

Article 327: "Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections" to Parliament or to a State Legislature, "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."

Article 328 gives the same power to the Legislature of a State over its own elections, "Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament", and its list omits delimitation.

Article 329, headed Bar to interference by courts in electoral matters, opens "Notwithstanding anything in this Constitution" and then bars two things. By clause (a), "the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court". By clause (b), "no election . . . 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."

Broken down

Article 325 does two distinct things, and the first is often missed. It requires one general electoral roll for each territorial constituency, which is what abolished the separate communal electorates of the colonial period. Only then does it forbid exclusion from that roll on grounds only of religion, race, caste or sex. The word "only" matters: an exclusion on a permitted ground under article 326 is not saved or defeated by article 325.

Article 326 supplies the qualification and article 325 the roll. Together they mean that the electorate is defined by age and citizenship and by nothing else, and that everyone so qualified appears on the same list.

Articles 327 and 328 divide the law-making power, and the division is not equal. Parliament's power is general. A State's power operates only "in so far as provision in that behalf is not made by Parliament", so Parliament occupies the field to the extent it chooses. Delimitation appears in article 327 and not in article 328.

Article 329 is the reason both of the others begin as they do. Articles 327 and 328 are "subject to the provisions of this Constitution", so a law made under them cannot take away the article 226 jurisdiction of a High Court. Article 329 begins "notwithstanding anything in this Constitution", and Ponnuswami holds that the difference in language is decisive: the article itself, and not any statute made under it, is what excludes the court.

The leading case

Facts. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64, [1952] 1 SCR 218, decided on 21 January 1952. The appellant filed a nomination paper for the Madras Legislative Assembly from the Namakkal constituency. On 28 November 1951 the Returning Officer rejected it on scrutiny. The appellant moved the High Court under article 226 for a writ of certiorari to quash the rejection and to have his name included in the list of valid nominations. The High Court dismissed the petition for want of jurisdiction because of article 329. Fazl Ali J. delivered the judgment on appeal and five other Judges agreed with it.

Held. The appeal was dismissed. Four steps carry the reasoning.

First, on the meaning of the word. "Election" has a narrow sense, the final selection of a candidate, and a wide one, "the entire procedure to be gone through to return a candidate to the legislature". It bears the wide sense in Part XV, and "the use of the expression 'conduct of elections' in article 324 specifically points to the wide meaning".

Second, on the scheme. Before an election machinery can work there must be laws and rules, an executive to conduct the election, and a tribunal to decide disputes; articles 327 and 328 supply the first, article 324 the second and article 329 the third, while articles 325 and 326 state "two matters of principle to which the Constitution framers have attached much importance". So "Part XV of the Constitution is really a code in itself".

Third, on the remedy. Where a liability not existing at common law is created by a statute which at the same time gives a special remedy, "the remedy provided by the statute must be followed". The Representation of the People Act 1951 is "a self contained enactment so far as elections are concerned", section 100 lists the grounds on which an election may be called in question, and improper rejection of a nomination paper is one of them. There is "no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage".

Fourth, on the words "notwithstanding anything in this Constitution". They "are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in the progress".

Why it matters. It is the case that makes the timing of a challenge decisive. The rejection of the nomination was not held lawful; it was held unexaminable for the time being. That distinction is the whole of article 329(b), and an answer that says the Court found no wrong has misread it. It also fixes the meaning of "election" for the rest of Part XV, which is why the Commission's power under article 324 in [The Election Commission] reaches the whole process, and why the same wide meaning governs the disclosure directions in [The Voter's Right to Know].

What it does NOT mean

It does not mean there is no remedy. Mohinder Singh Gill puts it plainly: there is a remedy for every wrong done during an election in progress, "although it is postponed to the post election stage". The Election Tribunal has power to set aside an election, and its "processual amplitude" extends to directing the Commission to hold a poll or produce ballots.

It does not mean the courts are excluded before the election begins. Article 329(b) bites once the process has started, which Ponnuswami and Mohinder Singh Gill date from the notification calling on the electorate to elect. Before that there is no election to be called in question, and article 226 is available in the ordinary way.

It does not mean article 325 forbids reservation of seats. Articles 330 and 332 reserve seats in the House of the People and in the State Assemblies for the Scheduled Castes and the Scheduled Tribes. Article 325 forbids a separate electoral roll, not a reserved constituency, and the two do not conflict because everybody in a reserved constituency votes off the same general roll.

A worked example

Ravi files his nomination for a State Assembly constituency. The Returning Officer rejects it on the ground that his proposer's name is not on the roll. Ravi says the roll entry exists and the officer misread it. The poll is eleven days away.

Step one, has the election begun? Yes. The notification has issued and nominations have been scrutinised, so on Ponnuswami the process is under way.

Step two, would a writ petition call the election in question? Yes. Rejection of a nomination is a ground under section 100 of the Representation of the People Act on which an election may be called in question, so raising it now is raising it early rather than raising something different.

Step three, is article 226 therefore available? No. Article 329(b) opens "notwithstanding anything in this Constitution", and on Ponnuswami those words exclude the High Court while the election is in progress.

Step four, what should Ravi do? Let the election go on and present an election petition afterwards to the authority the law names, pleading improper rejection of his nomination and asking that the election be declared void.

Step five, what if the complaint were about the electoral roll instead, made before the notification? Then no election has begun. Article 329(b) is not attracted and the ordinary remedies, including article 226, are open. The same complaint made two weeks later would be barred.

Quick revision

• Article 325: one general electoral roll per territorial constituency, and no exclusion from it on grounds only of religion, race, caste or sex. It abolished communal electorates.
• Article 326: adult suffrage for the House of the People and every State Legislative Assembly; eighteen years; four permitted disqualifications.
• Article 327: Parliament may legislate on all matters relating to elections, including electoral rolls and delimitation. Article 328: a State Legislature may do the same for its own House, but only so far as Parliament has not.
• Articles 327 and 328 are "subject to the provisions of this Constitution"; article 329 is "notwithstanding anything in this Constitution". The difference is what excludes the court.
• Article 329(a): no court may question a delimitation or seat allotment law. Article 329(b): no election may be called in question except by an election petition.
• Ponnuswami (1952): "election" bears the wide meaning, the whole process; Part XV "is really a code in itself"; a statutory right with a special remedy must be pursued by that remedy; article 226 is excluded while the election is in progress.
• The rejection of the nomination was not approved; it was postponed. Timing, not merits.
• The opening words of article 329 as they now stand were substituted by the Thirty-ninth Amendment, and the Forty-fourth Amendment then omitted from them the words "but subject to the provisions of article 329A", with effect from 20 June 1979.

Test yourself

1. Set out the two things article 325 does, and explain the work done by the word "only".

2. What turns on the difference between "subject to the provisions of this Constitution" in articles 327 and 328 and "notwithstanding anything in this Constitution" in article 329?

3. State the four steps of the reasoning in Ponnuswami.

4. Distinguish clause (a) from clause (b) of article 329 on the nature of the bar and the remedy left.

5. A voter says his name has been wrongly struck off the roll. Advise him on a day before the notification, and on a day after it.