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Exit Poll Regulations and Challenges in India’s 2024 Lok Sabha Elections: Legal Framework Delineate  

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Exit Poll Regulations and Challenges in India’s 2024 Lok Sabha Elections: Legal Framework Delineate

Introduction

The Lok Sabha elections in India, often characterized as the world’s largest democratic exercise, garner significant attention both domestically and internationally. The 2024 elections, like their predecessors, are expected to be a highly contentious and closely monitored affair. One of the critical aspects of this electoral process is the role of exit polls. Exit polls, surveys conducted immediately after voters leave polling stations, aim to predict the outcome of the elections before the official results are announced. This article delves into the legal framework governing exit polls in India, the controversies they generate, their impact on public perception, and the regulatory challenges they pose. Exit polls are surveys conducted with voters as they leave a polling station during an election. The purpose is to gather information on how people voted and their demographic characteristics. These polls provide early indications of election results before official results are announced. An exit poll was conducted by the Indian Institute of Public Opinion during the second Lok Sabha elections in 1957. Sampling Methods: The reliability of the sampling methods used in conducting exit polls is crucial. A well-designed and representative sample is more likely to produce accurate results. Some common parameters for a good, or accurate, opinion poll would be a sample size that is both large and diverse, and a clearly constructed questionnaire without an overt bias. Structured Questionnaire Surveys, like exit polls, collect data by interviewing many respondents using a structured questionnaire, either over the phone or in person. According to the Centre for the Study of Developing Societies, “Without a structured questionnaire, the data can neither be collected coherently nor be analyzed systematically to arrive at vote share estimates. Demographic Representation Ensuring that the surveyed population is demographically representative of the overall voting population is essential. If certain groups are over or underrepresented, it can impact the accuracy of the predictions. A large sample size is important but what matters most is how well the sample represents the larger population, rather than the size of the sample. Exit polls can be controversial if the agency conducting them is perceived to be biased. These surveys can be influenced by the choice, wording and timing of the questions, and by the nature of the sample drawn. Critics argued that many opinion and exit polls are motivated and sponsored by their rivals, and could have a distorting effect on the choices voters make in a protracted election, rather than simply reflecting public sentiment or views.

Legal Framework Governing Exit Polls

The conduct and publication of exit polls in India are regulated by the Representation of the People Act, 1951, and guidelines issued by the Election Commission of India (ECI). According to Section 126A of the Act, conducting exit polls and publishing their results is prohibited from the start of polling in the first phase until the conclusion of polling in the last phase of the elections. The law was enacted to ensure that exit poll results do not influence voters in regions where polling is yet to be completed. The ECI’s Model Code of Conduct (MCC) further reinforces these restrictions by outlining the dos and don’ts for political parties and media outlets. The MCC, a set of guidelines designed to ensure free and fair elections, becomes operative from the date the election schedule is announced until the end of the election process. Any violation of these norms, including premature publication of exit poll results, can lead to punitive actions against the offending media house or entity. The Public Interest Litigation (PIL) regarding the 2024 Lok Sabha exit polls addresses concerns about the potential impact and regulation of exit polls during the election period. The case revolves around the adherence to Section 126A of the Representation of the People Act, 1951, which prohibits the conduct and dissemination of exit poll results until all phases of voting are completed. According to the Election Commission of India (ECI), exit polls cannot be published or publicized during the voting period to avoid influencing voters in ongoing or future phases of the election. This restriction is in place from 7:00 AM on the first day of polling (April 19, 2024) until 6:30 PM on the last day of polling (June 1, 2024)​. Violating these regulations can result in penalties, including imprisonment or fines. The PIL contends that exit polls might impact voter behavior and seeks stricter enforcement of the existing regulations. The ECI’s guidelines mandate that media outlets must notify the commission before conducting exit polls and must follow a code of conduct to ensure fair and unbiased reporting​. The case highlights the broader implications of exit polls in shaping public sentiment and potentially affecting the stock market due to perceived election outcomes​. The Supreme Court’s decision on this matter could reinforce or modify the regulatory framework governing exit polls in India.

Section 126A of the Representation of the People Act, 1951 prohibits conduct of Exit poll and dissemination of their results by means of print or electronic media during the period mentioned therein, i.e. between the hour fixed for commencement of poll in the first phase and half an hour after the time fixed for close of poll for the last phase in all the States. The Election Commission is responsible for regulating the use of exit polls. According to the ECI, exit polls can only be conducted during a specific period. This period starts from the time when the polling booths close and ends 30 minutes after the last booth has closed. Exit polls cannot be conducted during the voting period or on polling day. The Election Commission issued guidelines under Article 324 of the Constitution, prohibiting newspapers and news channels from publishing results of pre-election surveys and exit polls. The EC also mandated that while carrying the results of exit and opinion polls, newspapers and channels should disclose the sample size of the electorate, the details of polling methodology, the margin of error and the background of the polling agency. The ban on the publication of exit polls remains in place until the last phase of voting is completed. In addition to the ban on the publication of exit polls, the ECI also requires that all media outlets that conduct exit polls must register with the commission. Section 66A of the Representation of the People Act 1983 (as amended) makes it a criminal offence ‘to publish, before a poll is closed, any statement about the way in which voters have voted in that election, where this statement is, or might reasonably be taken to be, based on information given by voters after they voted’. It is also an offence under the Act ‘to publish, before a poll is closed, any forecast – including any estimate – of that election result, if the forecast is based on exit poll information from voters, or which might reasonably be taken to be based on it’. These laws apply to both parliamentary and local elections, elections to the Welsh Assembly and by-elections. The Act applies to exit polls focusing on voting in a particular constituency or ward and to voting patterns nationally. The publication of exit polls is also prohibited during voting for European Parliamentary elections.

Controversies Surrounding Exit Polls

Despite the legal restrictions, exit polls remain a subject of significant controversy in Indian elections. Critics argue that these polls can potentially influence voter behaviour and disrupt the level playing field essential for democratic elections. For instance, if exit polls indicate a clear trend towards a particular party, it might discourage supporters of the opposing party from voting, thereby affecting voter turnout and the final election results. Moreover, the accuracy of exit polls is often questioned. Past elections have seen numerous instances where exit polls have significantly deviated from the actual results, leading to debates about their methodological rigor and reliability. The 2019 Lok Sabha elections, for example, witnessed a wide range of predictions, some of which were drastically off the mark compared to the final outcomes.

Impact on Public Perception

Exit polls, while not legally binding, play a crucial role in shaping public perception and media narratives. In the age of 24/7 news cycles and social media proliferation, the results of exit polls can spread rapidly, influencing public discourse. Political parties often use favourable exit poll results to bolster their image and morale, while unfavourable ones are dismissed as flawed or biased. The psychological impact of exit polls on voters cannot be understated. The bandwagon effect, where voters support the perceived winner, and the underdog effect, where voters support the perceived loser, are phenomena that can be triggered by exit poll results. Thus, exit polls can indirectly affect voter behaviour and, consequently, the democratic process.

Regulatory Challenges

Regulating exit polls poses significant challenges. The primary challenge lies in balancing the right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Indian Constitution, with the need to maintain the integrity of the electoral process. The ban on exit polls during the polling period is a restrictive measure that aims to prevent undue influence on voters, but it also raises questions about censorship and media freedom. Another challenge is the enforcement of these regulations in the digital age. With the advent of social media platforms and instant messaging services, information, including exit poll results, can be disseminated rapidly and widely, often bypassing traditional regulatory mechanisms. Ensuring compliance with exit poll regulations in this environment requires innovative strategies and cooperation from tech companies.

Comparative Perspectives

Looking at other democracies, the approach to regulating exit polls varies. In the United States, there is no federal law prohibiting exit polls, though media organizations often adhere to self-imposed embargoes on releasing results until polling stations close. In the United Kingdom, exit polls are allowed but with strict regulations on their release to avoid influencing voters. Comparative analysis shows that while some countries Favor more stringent regulations to prevent voter influence, others rely on media self-regulation and public trust. The effectiveness of these approaches often depends on the maturity of the democratic institutions and the media landscape in each country. Future Directions as India prepares for the 2024 Lok Sabha elections, the debate over exit polls is likely to intensify. There are several potential directions for future regulatory frameworks Enhanced Self-Regulation by Media: Encouraging media organizations to adopt stricter self-regulation norms, including voluntary embargoes on exit poll results until all phases of voting are complete. Stronger Enforcement Mechanisms Developing more robust mechanisms to monitor and enforce compliance with exit poll regulations, especially on digital platforms. Public Awareness Campaigns: Conducting campaigns to educate voters about the potential inaccuracies of exit polls and their limitations in predicting actual election outcomes. Technological Solutions: Leveraging technology to track and control the dissemination of exit poll results, possibly through collaborations with social media platforms and tech companies. Review and Revision of Laws: Periodically reviewing and revising the legal framework governing exit polls to address emerging challenges and ensure it remains relevant and effective.

Conclusion

The regulation of exit polls in the context of the 2024 Lok Sabha elections represents a complex interplay between legal mandates, media practices, and democratic principles. While exit polls provide valuable insights and contribute to the vibrancy of democratic discourse, their potential to influence voter behaviour necessitates careful regulation. Striking a balance between freedom of expression and the need to ensure free and fair elections will continue to be a critical challenge for policymakers, media organizations, and the Election Commission of India. As the electoral landscape evolves, so too must the strategies to manage the impact of exit polls, ensuring that the democratic process remains robust and untainted. This survey of the regulatory approaches adopted by various democratic governments to the publication of pre-election opinion and exit polls reveals no set pattern from which general rules can be derived. It is significant that from among the established democracies surveyed, only Italy imposes a ban of more than 24 hours and that there is a clear trend towards shorter bans. Courts in these countries have questioned the assumption implication in bans that voters are uninformed and naïve, as well as the implications of bans of this nature – which prevent the media from disseminating true, factual material – for freedom of expression. These courts have also noted that in the modern world, where access to the Internet and satellite television is becoming ever more commonplace, bans of this sort may no longer be viable. Whether a country’s law satisfies the three-part test for restrictions on freedom of expression does depend to some extent on the particular circumstances of that country. An important factor, in addition to the degree of Internet and satellite television access, is the degree of independence possessed by the national media and the willingness of these media to accept voluntary restrictions on reporting on polls. Were important parts of the national media, including the public media, are controlled by political figures, any risk of bias from opinions polls increases. 

Written by:HariRaghava JP

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Delhi High Court: Quashes Complaint under Section 138 of NI Act Due to Lack of Prima Facie Evidence

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Delhi High Court: Quashes Complaint under Section 138 of NI Act Due to Lack of Prima Facie Evidence

Case title:  GARHWAL JEMS AND JEWELLERY PVT. LTD. & ORS. VS RMI STEELS LTD.

Case no.:  CRL.M.C. 2452/2022 & CRL.M.A. 10307/2022

Dated on: 29th February 2024

Quorum:  Hon’ble. MR JUSTICE NAVIN CHAWLA

FACTS OF THE CASE

This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) read with Article 227 of the Constitution of India, praying for quashing of the complaint filed by respondent under Sections 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short, ‘NI Act’), being CC No. 5840/2019, titled as M/s RMI Steels Ltd. v. M/s Garhwal Jems & Jewellery Pvt. Ltd. & Ors., pending before the Court of the learned Metropolitan Magistrate, NI Act-06, Central-District, Tis Hazari Courts, Delhi. The above complaint has been filed by the respondent alleging that the respondent entered into an Agreement to Sell dated 31.03.2018 with the petitioner no.1 for sale of its movables and immovable property of its factory situated at Plot No. A-1 and B-1 measuring 32926.20 sq. mtr. (Comprising 24406.73 sq mtr. of A-l and 8519.47 sq. mtr of B-1) at Village Dhalwala, Muni-ki-Reti Industrial Area, District Tehri Garhwal, Uttarakhand, for a total consideration of Rs.9.30 crores. That in terms of the said Agreement to Sell, the petitioners, after paying sale consideration to the tune of Rs.5,73,64,050/-, were liable to pay the balance sale consideration of Rs.3,47,05,950/-, which they undertook to pay in form of discharge of liabilities / dues of the respondent on or before 30.09.2018. The complaint further alleges that it was agreed between the parties that on failure on the part of the accused to discharge the said dues, it would entitle the respondent to recover the same from the petitioners / accused. In order to secure the payment of the aforesaid dues, a cheque bearing no.079173 for a sum of Rs.75,00,000/- drawn on the Punjab National Bank, Rishikesh, was issued by the petitioner in favour of the respondent as a security deposit. It is further alleged that the debt that the petitioners had undertaken to discharge, became due and payable in October 2018, however, as the petitioners failed to discharge the same, on 09.01.2019, an Addendum to the aforementioned Agreement to Sell was executed between the parties. It is further alleged that as the accused failed to discharge the debt by 29.04.2019 as well, in terms of the Addendum, the respondent presented the above-mentioned cheque, which was returned dishonored by the bank with the remarks ‘funds insufficient’. A legal Notice dated 30.04.2019 was sent by the respondent to the petitioners, to which the petitioners replied vide reply dated 18.05.2019, denying their liability to pay the said amount. The respondent, therefore, filed the above complaint.

 ISSUES

  • Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), discloses a prima facie case against the petitioners.
  • Whether the cheque in question was issued for the discharge of any debt or liability as defined under Section 138 of the NI Act.
  • Whether the respondent was forced to make any payment to its creditors due to the petitioners’ failure to discharge their liabilities.
  • Whether the complaint should be quashed under the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
  • Whether the conditions specified in the Agreement to Sell and the Addendum for encashment of the security cheque were met.

LEGAL PROVISIONS

Code of Criminal Procedure, 1973 (Cr.P.C.)

Section 482: Saving of inherent powers of High Court

This section preserves the inherent powers of the High Court to make orders necessary to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is often invoked to quash criminal proceedings that do not disclose a prima facie case or are otherwise frivolous.

Constitution of India

Article 227: Power of superintendence over all courts by the High Court

This article grants every High Court the power of superintendence over all courts and tribunals within its jurisdiction. The High Court can exercise this power to ensure that subordinate courts function within the bounds of their authority and to correct any gross errors of law or fact.

Negotiable Instruments Act, 1881 (NI Act)

Section 138: This section makes it an offence if a cheque is dishonored due to insufficiency of funds or if the amount exceeds the arrangement made with the bank, provided certain conditions are met the cheque must be presented within six months (or its validity period). A notice demanding the payment must be issued to the drawer within 30 days of the receipt of information of dishonor. The drawer must fail to make the payment within 15 days of receiving the notice.

Section 142: Cognizance of offences This section outlines the conditions under which courts can take cognizance of offences under Section 138, including the necessity of a written complaint by the payee or the holder in due course of the dishonored cheque.

Section 139: Presumption in favour of holder This section presumes that the cheque was issued for the discharge, in whole or in part, of any debt or other liability unless the contrary is proved. This presumption shifts the burden of proof to the accused to show that there was no liability or debt.

CONTENTIONS OF THE APPELLANT

The learned counsel for the petitioner, drawing my attention to the terms of the Agreement to Sell dated 31.03.2018 and the Addendum dated 09.01.2019 executed between the petitioner no.1 and the respondent, submits that the cheque of Rs.75 lakhs could be encashed by the respondent only when the petitioners fail to make the payment in discharge of the liabilities of the respondent and the respondent is forced to make the payment for the same. The learned counsel for the petitioners submits that in the present case, the complaint does not state that the respondent had to make any payment to its own debtors for discharge of the liability, therefore, to its own showing, there was no debt owed by the petitioners to the respondent for which the security cheque of Rs.75 lakhs could have been presented by the respondent for encashment. He submits that, in the absence of these averments in the complaint, the complaint is not maintainable and is liable to be dismissed. In rejoinder, the learned counsel for the petitioner submits that the plea of the respondent that the lease deed has been obtained by misrepresentation is totally false and, in fact, it is the respondent who is trying to make an unjustified gain by encashing the cheque.

 CONTENTIONS OF THE RESPONDENTS

The learned counsel for the respondent submits that the plea raised by the petitioner is a disputed question of fact, which can be best determined by the learned Trial Court on evidence being led by the parties. She submits that the petitioners have also obtained a Lease Deed from SIDCUL based on misrepresentations.  Further submits that the Agreement to Sell and the Addendum were executed by the petitioners only to discharge its liabilities owed to such institutions and others, as is also recorded in the Agreement to Sell. She submits that the petitioners failed to make the payment of the dues to such institutions and others, thereby entitling the respondent to present the cheque for encashment. She submits that in any case, these are matters to be considered by the learned Trial Court and cannot be a ground for quashing the complaint at this stage.

COURT’S ANALYSIS AND JUDGEMENT

I have considered the submissions made by the learned counsels for the parties. A reading of the above averments would show that the respondent claims that the liability for which the cheque has been presented is under the Agreement to Sell dated 31.03.2018 read with the Addendum dated 09.01.2019, and that the cheque had been presented for encashment as the petitioners failed to discharge their debt by 29.03.2019. In the Complaint, there is no averment that the respondent had to pay the debt due to the default of the petitioners. A reading of the above terms/clauses would clearly show that it is only where the petitioners, as a purchaser, fail to pay the dues owed to the workers, the State Industrial Development Corporation of Uttarakhand Limited (SIDCUL), Service Tax dues, and the VAT dues, owed by the respondent, and the respondent, as a seller, has to pay the same, that the respondent would debit the account of the petitioner/purchaser, making the petitioner liable to pay the said amount, and thereafter proceed to encash the security cheque of Rs.75 lakhs. For the liability to arise for the presentation of the cheque for encashment, therefore, it is essential that the respondent is forced to make the payment to the workers/above-mentioned authorities, which liability, otherwise, the petitioners had undertaken to pay in terms of the Agreement to Sell and the Addendum. In the present case, the Complaint does not state that the respondent had to make any payment to any of the above-mentioned workers/authorities. Therefore, the liability for which the cheque of Rs.75 lakhs was given by the petitioners as security to the respondent, had not arisen and the cheque could not have been presented for encashment by the respondent. One of the conditions which has to be satisfied by the complainant for making out an offence under Section 138 of the NI Act against the drawer of the cheque, is that the cheque in question has been issued for the discharge, in whole or in part, of any debt or any liability of the accused. In the present case, as the debt or liability in terms of the Agreement to Sell and/or the Addendum itself had not arisen, Section 138 of the NI Act was not attracted and the ingredients of the offence were not satisfied. Though, the learned counsel for the respondent has placed reliance on Section 139 of the NI Act to submit that there shall be a presumption that a cheque issued is for discharge of any debt or other liability, however, the presumption in the present case stands negated by the very terms of the Agreement to Sell and the Addendum. Though the power under Section 482 of the Cr.P.C. is to be exercised sparingly and in the rarest of rare cases, at the same time, where, from a bare reading of the complaint, the offence is not made out, the power must be exercised to quash such a complaint. Applying the abovementioned principles enunciated by the Supreme Court to the facts of the present case, as the Complaint filed by the respondent lacks the necessary averments that would give rise to the debt and/or liability of the petitioners for which the cheque had been issued, the complaint filed by the respondent deserves to be quashed. Accordingly, the petition is allowed. Complaint, being CC No. 5840/2019, titled as M/s RMI Steels Ltd. v. M/s Garhwal Jems & Jewellery Pvt. Ltd. & Ors., pending before the Court of the learned Metropolitan Magistrate – 06, NI Act, Central District, Tis Hazari Courts, Delhi is hereby quashed. There shall be no order as to costs.

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Judgement Reviewed by – HARIRAGHAVA JP

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Reevaluating Article 356 of the Indian Constitution: A Critical Perspective on Presidential Rule

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Reevaluating Article 356 of the Indian Constitution: A Critical Perspective on Presidential Rule

 ABSTRACT

Parliamentary approval is necessary for the imposition of the President’s Rule on any state. The proclamation of President’s Rule should be approved in both Houses of Parliament within two months of its issue. The approval is through a simple majority. The President’s Rule is initially for a period of six months. Later, it can be extended for a period of three years with parliamentary approval, every six months. The 44th Amendment to the Constitution (1978) brought in some constraints on the imposition of the President’s Rule beyond a period of one year. It says that President’s Rule cannot be extended beyond one year unless: There is a national emergency in India. the Election Commission of India certifies that it is necessary to continue the President’s Rule in the state because of difficulties in conducting assembly elections to the state. Article 356 of the Indian Constitution, often referred to as the President’s Rule or State Emergency provision, grants the President of India the authority to impose federal rule over a state if the constitutional machinery of that state fails. This article has been a subject of intense debate and scrutiny due to its potential for misuse and the implications it holds for federalism in India. Originally designed to ensure stability and uphold constitutional governance, Article 356 has frequently been criticized for being a tool of political maneuvering. This critical perspective delves into the historical context, judicial interpretations, and political implications of invoking Article 356, arguing for a reevaluation to safeguard against its misuse while preserving its intended purpose. Historically, the provision was intended to address genuine breakdowns in state governance. However, the frequent imposition of President’s Rule, especially during the initial decades following India’s independence, revealed its susceptibility to political exploitation. Instances where central governments dismissed state governments led to accusations of undermining federalism and democratic principles. The Sarkaria Commission’s report and the Supreme Court’s landmark judgment in the S.R. Bommai case (1994) sought to curb this misuse by emphasizing the necessity of objective criteria and judicial review. The Bommai verdict established that the President’s satisfaction under Article 356 is not absolute and is subject to judicial scrutiny, thus providing a constitutional safeguard against arbitrary use. Despite these safeguards, concerns remain. The invocation of Article 356 often reflects underlying political conflicts rather than genuine constitutional crises. The role of the Governor, often seen as an agent of the central government, further complicates the scenario, raising questions about impartiality and the true spirit of cooperative federalism. Critics argue that such interventions disrupt the democratic process and weaken state autonomy, contradicting the federal structure envisioned by the Constitution. A critical reevaluation of Article 356 necessitates strengthening the safeguards to prevent its misuse. Recommendations include clearer definitions of what constitutes a “breakdown of constitutional machinery, enhanced transparency in the decision-making process, and more stringent judicial oversight. Additionally, reforming the appointment and functioning of

Governors to ensure their impartiality and adherence to constitutional mandates is imperative. while Article 356 remains a necessary provision for addressing extraordinary situations, its application must be judicious, transparent, and in true spirit of federalism. Reevaluating this article through a critical lens is essential to balance the need for national integrity with the preservation of state autonomy, thereby reinforcing the democratic foundation of India.

Keywords: Article 356, President’s Rule, State Emergency, Constitutional machinery, Federalism, Political maneuvering, Misuse, Historical context, Judicial interpretation, S.R. Bommai case, Safeguards, Breakdown of constitutional machinery, Judicial review, Federal balance, Political implications, Kerala (1959), Punjab (1987), Bihar (2005), Revaluation, Reform, Role of the Governor, Constitutional Amendments, Political consensus, Democratic principles, Federal integrity,

Introduction

Article 356 of the Constitution of India is based on Section 93 of the Government of India Act, 1935.According to Article 356, President’s Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery. This is of two types: If the President receives a report from the state’s Governor or otherwise is convinced or satisfied that the state’s situation is such that the state government cannot carry on the governance according to the provisions of the Constitution. Article 365: As per this Article, President’s Rule can be imposed if any state fails to comply with all directions given by the Union on matters it is empowered to. Article 356 of the Indian Constitution is one of the most contentious and debated provisions, often criticized for its potential misuse and significant implications on the federal structure of the country. Commonly referred to as the “President’s Rule,” this article allows the Central Government to dissolve a state government and assume direct control if the President, upon receiving a report from the Governor or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. Since its inception, Article 356 has been a subject of intense scrutiny and debate, with numerous instances of its invocation leading to political controversy. This article critically evaluates the historical context, judicial interpretations, and political implications of Article 356, and argues for a nuanced revaluation of its necessity and implementation in contemporary India.

Historical Context and Constitutional Framework

Article 356 is rooted in the Government of India Act, 1935, which provided a framework for the British Crown to assume control over provincial governments under certain circumstances. The framers of the Indian Constitution included similar provisions to address scenarios where a state government fails to function according to constitutional norms. The Constituent Assembly Debates reflect a cautious approach towards this provision, with several members expressing concerns over potential misuse. Dr. B.R. Ambedkar, a principal architect of the Constitution, assured that Article 356 would be used sparingly and only as a measure of last resort. Despite these assurances, the provision has been invoked over 120 times since the Constitution came into effect in 1950, often under circumstances that have raised questions about political motivations.

Judicial Interpretation and Safeguards

The judiciary has played a crucial role in interpreting Article 356 and establishing safeguards against its misuse. The landmark case of S.R. Bommai v. Union of India (1994) is a pivotal moment in this context. The Supreme Court laid down significant guidelines to restrict arbitrary imposition of President’s Rule. The judgment emphasized that the President’s satisfaction under Article 356 is not absolute and is subject to judicial review. It also established that the power under Article 356 should be used sparingly and only when there is a breakdown of constitutional machinery, not for political reasons.

The Bommai judgment articulated several principles to guide the imposition of President’s Rule:

Breakdown of Constitutional Machinery: There must be tangible evidence of a breakdown of constitutional governance in the state.

Scope of Judicial Review: Courts can review the material based on which President’s Rule is imposed to ensure it is not based on extraneous or irrelevant grounds.

Interim Measures: The court can grant interim relief to prevent the arbitrary dismissal of a state government.

Federal Balance: The judgment reinforced the importance of maintaining a balance between the Centre and the states, emphasizing the federal structure of the Constitution. Despite these safeguards, the misuse of Article 356 has not been entirely curtailed. Political parties continue to challenge its invocation, and courts frequently intervene to assess the validity of such proclamations.

Misuse of Article 356

Article 356 gave the Central government wide powers to stamp its authority on the state governments. Although it was meant only as a means to preserve the integrity and unity of the country, it had been used blatantly to oust state governments who were ruled by political opponents of the centre. It was used for the first time in 1951 in Punjab. Between 1966 and 1977, Indira Gandhi’s government used it about 39 times against various states. In the S.R. Bommai case (1994), the Supreme Court of India put forth strict guidelines for the imposition of Article 356. The proclamation (of President’s Rule) is subject to judicial review on grounds of mala fide intention. The imposition of Article 356 should be justified by the centre. The court has the power to revive the suspended or dissolved state government if the grounds for the imposition is found to be invalid and unconstitutional. The state assembly cannot be dissolved before parliamentary approval for the imposition of Article 356 and the President can only suspend the assembly. Serious allegations of corruption against the state ministry and financial instability are not grounds for the imposition of Article 356.Any action by the state government that leads to the security of secularism (which is a basic feature of the Constitution) cannot be grounds for the use of Article 356. Article 356 cannot be used to sort out any intraparty issues in the ruling party. If the Ministry of the state resigns or is dismissed or loses the majority, then the governor cannot advise the President to impose this article until enough steps are taken by the governor for the formation of an alternative government. The power under Article 356 is to be used only in case of exigencies. It is an exceptional power. There have also been subsequent judgements of the SC that have limited the room for the misuse of this Article.

The Sarkaria Commission Report (1983) recommended that Article 356 should be used “very sparingly” and only as a last resort. The President’s proclamation of President’s Rule should include reasons as to why he thinks the state cannot run normally. Whenever possible, the centre should give the state government a warning before imposing Article 356. The Article should not be used for settling political scores. The commission recommended the amendment of the article in order for the President to be authorised to dissolve the state legislature only after getting parliamentary approval. The Punchhi Commission recommended that the centre should try to bring only a specific troubled area under its jurisdiction and that too for a brief period, not more than three months. The commission recommended that suitable amendments should be made to incorporate the guidelines established by SC in the Bommai case. The commission recommended the provision of a ‘Localized Emergency’ which implies that the centre can tackle issues at town/district (local) level without dissolving the state legislative assembly while at the same time, performing the duty of the Union to protect States as per Article 355.

Political Implications and Misuse

Article 356 has often been used as a political tool by the ruling party at the Centre to destabilize or dismiss state governments led by opposition parties. This practice undermines the federal principles enshrined in the Constitution and disrupts the democratic process at the state level. The imposition of President’s Rule has led to significant political upheaval, including the dissolution of legislative assemblies and the dismissal of democratically elected governments.

Several notable instances of the misuse of Article 356 include: Kerala (1959): The first use of Article 356 to dismiss the communist government led by E.M.S. Namboodiri pad. This move was widely criticized as politically motivated.

Punjab (1987): President’s Rule was imposed amidst insurgency and political instability, raising questions about the timing and necessity of the intervention.

Bihar (2005): The dissolution of the assembly following a hung verdict, which the Supreme Court later declared unconstitutional. These cases highlight the contentious nature of Article 356 and its potential for abuse. The frequent invocation of this article has led to calls for its repeal or significant amendment to prevent arbitrary use.

Need for Revaluation and Reform

The frequent and often controversial use of Article 356 necessitates a critical revaluation of its place in the Indian constitutional framework. Several reforms have been proposed to address the misuse and ensure that the provision is used in the true spirit of the Constitution:

Amendment of Article 356: To include more specific and stringent criteria for its invocation, thereby reducing the scope for arbitrary use.

Role of the Governor: Redefining the role and appointment process of Governors to ensure impartiality and independence from the Central Government.

Strengthening Judicial Review: Providing for a more robust mechanism for judicial review to ensure that proclamations under Article 356 are subject to rigorous scrutiny.

Political Consensus: Encouraging political parties to adopt a consensus-based approach to the use of Article 356, respecting the federal structure and democratic principles.

Conclusion

Article 356 remains a double-edged sword in the Indian constitutional framework. While it provides a mechanism to address genuine breakdowns of constitutional machinery, its potential for misuse poses a significant threat to the federal structure and democratic ethos of the country. The judicial safeguards established in the Bommai case are crucial but not sufficient to prevent arbitrary use. A comprehensive revaluation and reform of Article 356 are imperative to align its application with the principles of federalism and democracy. By amending the provision, redefining the role of Governors, strengthening judicial review, and fostering political consensus, India can ensure that Article 356 serves its intended purpose without compromising the democratic process and federal integrity of the nation. The appropriate provision should be incorporated where by it provides that until both Houses of Parliament approve the proclamation issued under clause (1) of Article 356, the Legislative Assembly cannot be dissolved. If necessary,

it can be kept only under animated suspension. before issuing the proclamation under clause (1), the President/the Central Government should indicate to the State Government the matters wherein the State Government is not acting in accordance with the provisions of the Constitution and give it a reasonable opportunity of redressing the situation, unless the situation is such that following the above course would not be in the interest of security of State or defence and integrity of the country as a whole. In the light of the entire preceding discussion, the question arises whether Article 356 needs to be amended. In fact, there has been a strident demand for deletion of Article 356 but if Article 356 is removed while retaining Articles 355 and 365, the situation may be worse from the point of view of the States. In other words, the checks which are created by Article 356 and in particular by clause (3) thereof, would not be there and the Central Government would be free to act in the name of redressing a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution. It is therefore not favourable to incline towards the deletion of Article 356 in its entirety. To protect the federal structure of India, it is compulsory to amend Article 356 in line with recommendations put forward by the court in Bommai’s case as well as by the Sarkaria Commission. President rule should always be the last resort and all the steps such as warning the state government that it is not working in accordance with Constitutional provisions, floor test to prove majority, etc. should be followed by the governor. Therefore, it can be only expected through a strict interpretation of Article 356 that the spirit of ‘co-federation should be maintained while opting for President rule and union government shouldn’t use this power to seek their own political interests.

written by Hari Raghava JP

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Delhi High Court Rejects Writ Petition on Rehabilitation Post-Demolition by Delhi Development Authority: Delay and Laches Highlighted

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Delhi High Court Rejects Writ Petition on Rehabilitation Post-Demolition by Delhi Development Authority: Delay and Laches Highlighted

Case title: MD. SHAMIM VS DELHI DEVELOPMENT AUTHORITY (DDA) & ORS.

Case no.: W.P.(C) 3659/2023

Dated on: 22nd   May 2024

Quorum:  Hon’ble MR. JUSTICE DHARMESH SHARMA.

FACTS OF THE CASE

The genesis of the present petition lies in the petitioner’s claim that he is a daily wage labourer and had been residing in T-huts at Block A-70, Jhuggi No.770, Kanchan Puri, Rajghat Power House, New Delhi-02 since decades with his family. The petitioner claims that he has been holding a valid ration card, voter id card and a BPL card on the said address issued by the Government of India. Aiming at the Master Plan of Delhi 2021, the Delhi Development Authority was carrying out surveys since 1998 and areas were demarcated and individuals were identified for rehabilitation and resettlement, which process was completed in 2006, involving relocating the residents in exchange for the demolition of their existing dwellings, subject to the payment of a license fee. As part of this effort, the Petitioner was instructed to vacate the above-mentioned T-Huts for redevelopment and rehabilitation purposes. On 15.04.2006, the DDA issued an “Alternative Allotment cum- Demand Letter” to the petitioner, who claims that subsequent to such offer he demolished his T-huts and submitted the required documents along with an affidavit within the prescribed timeframe as per the letter’s directives and made a payment of Rs. 14,000/- to the respondent No. 1, which was duly acknowledged by them. However, despite receiving an advance license fee, the DDA/respondent No.1, who is the land-owning agency under Government of National Capital Territory of Delhi, failed to fulfil its obligation to rehabilitate and re settle them by providing alternative housing. Delhi Urban Shelter Improvement Board/respondent No. 2 is the nodal agency for relocation/rehabilitation of Jhuggi Jhopri7 Bastis in respect of lands belonging to the NCT of Delhi, who is also the respondent No. 3 herein. Before filing the present writ petition, the petitioner claims that he visited the DDA office multiple times, running pillar to post, but to no avail. He also filed an RTI8 dated 05.02.2015 having office No. RTI/29/LM/EZ/15/91, in reply to which the petitioner received a letter from the DDA, stating that the no plot had been allotted against the said Jhuggi no. and that allotment would be done only to eligible Jhuggi residents by the constituted committee. On 31.03.2015, in response to the RTI application regarding information about the allocation of an alternative plot, the Deputy Director, PIO for Land and Management at DDA declined to provide the information, citing that it falls under the prohibition outlined under Section 11(3) of the RTI Act. It is stated that the petitioner, experiencing housing difficulties, made repeated visits to the respondent’s office in the year 2020, 2021, and 2022, yet did not receive any assistance, and therefore, they resorted to avail the legal remedy due to the inaction of the respondents through the present petition.

 ISSUES

  1. Whether the petition should be dismissed on the grounds of delay and laches, considering that the petitioner waited approximately 17 years to file the writ petition after the cause of action arose in 2006.
  2. Whether the petitioner’s right to shelter, as guaranteed under Article 21 of the Constitution of India, has been violated by the failure of the Delhi Development Authority (DDA) to provide alternative housing after demolishing the petitioner’s T-huts.
  3. Whether the response received by the petitioner under the Right to Information Act (RTI) in 2015 and 2020 has any bearing on the present petition, especially regarding the eligibility and allocation of an alternative plot.
  4. Whether the Delhi Urban Shelter Improvement Board (DUSIB) or the DDA is the appropriate agency responsible for the petitioner’s rehabilitation under the prevailing policies and schemes, including the Pradhan Mantri Awas Yojna (PMAY).
  5. Whether the DDA and other respondents fulfilled their obligations under the Master Plan of Delhi 2021 and relevant rehabilitation policies, particularly in providing alternative housing to the petitioner after the demolition of his dwelling.
  6. Whether the High Court should exercise its discretionary power under Article 226 of the Constitution of India to issue a writ of mandamus or any other appropriate writ in favor of the petitioner, despite the significant delay in filing the petition.

LEGAL PROVISIONS

Article 21 of the Constitution of India: This article guarantees the protection of life and personal liberty. The Supreme Court has interpreted this to include the right to shelter as a fundamental right under the right to life.

Article 226 of the Constitution of India: This article empowers High Courts to issue certain writs, including writs of mandamus, for the enforcement of fundamental rights and for any other purpose. It is a discretionary power that can be exercised in cases of clear injustice, but may be denied in cases of undue delay or laches

CONTENTIONS OF THE APPELLANT

The learned counsel for the petitioner has relied on the judgement passed in the cases Olga Tellis v. Bombay Municipal Corporation and Chameli Singh Vs State of U.P., where the Apex Court has laid down that right to shelter is a fundamental right under the umbrella of Article 21 of the Constitution of India and the said right to life is not a right of mere animal existence. Further, in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, Apex Court has held that even poverty-stricken persons on public lands have a fundamental right to housing and laid down that when a slum-dweller has been at a place for some time, it is the duty of the government to make schemes for housing of the jhuggi dwellers.

CONTENTIONS OF THE RESPONDENTS

The learned counsel for the respondent No. 2 has pleaded that though DUSIB has been nominated as the Nodal Agency for the implementation of policy for relocation/ rehabilitation of JJ Basti upon the land belonging to MCD and Delhi Government and its Department/Agencies, as per the Delhi Slum and JJ Rehabilitation and Relocation Policy of 2015 which has now been renamed as “Mukhya Mantri Awas Yojna‟, however the current matter is out of its purview. Further, they have submitted that it is the DDA which is the state level nodal agency for in-situ rehabilitation of slum dwellers in respect of land belonging to Central Governments and its agencies under Pradhan Mantri Awas Yojna- Housing for All (Urban) [PMAY FIFA(U)] in Delhi, as per order issued by urban Development Department, GNCTD dated 20.09.17. The learned counsel for the respondent No.1/ DDA has submitted that the present petition is barred by delay and latches. They argued that the petitioner has been evasive about stating the details about the payment of the license fee and that the cause of action in the present matter, if at all, arose in the year 2006, whereas the petition has been filed after an inexplicable delay of 17 years in 2023. Further, it was submitted by them that on a bare reading of the said letter, it would show that it prescribed a limited license to 12.5 square meter plot to the petitioner, for a period of 5 years only, that to subject to payment of the due license fee, therefore, the terms of the license already stand exhausted. They allege that the petitioner has failed to show payment of any license fee on receipt of the said allotment letter.

 COURT’S ANALYSIS AND JUDGEMENT

The petitioner is invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of Mandamus or any other appropriate writ. I have given my thoughtful consideration to the submissions advanced by the learned counsels for the rival parties. I have also perused the record of the case. At the outset, the instant petition is hopelessly barred, so as to disentitle the petitioner of any relief by virtue of having been filed after inordinate delay and latches. Evidently, the hutment of the petitioner was demolished way back in the year 2006 and the ultimate allotment-cum-demand letter issued by the DDA dated 15.04.2006 merely conferred a limited right upon the petitioner to get licence at some demarcated site for a period of five years only, and that period has since lapsed. Assuming for the sake of convenience, that the petitioner after paying the sum of Rs.14,000/- in terms of the aforesaid offer dated 15.04.2006, evidently, he slept over his rights and did not take any action within a reasonable period of time. It appears that he only woke up sometime in the month of January, 2015 when he chose to file an RTI on 05.02.2015. It is well settled that the writ jurisdiction in terms of Article 226 of the Constitution of India, is a discretionary relief that can be denied on account of delay and latches on the part of the petitioner in approaching the Court. Avoiding the long academic discussion, in a recent decision by the Supreme Court in the case of Mrinmoy Maity v. Chanda Koley, it was reiterated that delay defeats equity and if there is laxity on the part of the petitioner to assert his legal rights thereby allowing the cause of action to drift away, the High Court in exercising writ jurisdiction should not rekindle the lapsed cause of action. In view of the foregoing propositions of law, reverting back to the instant matter, at the cost of repetition, the offer made to the petitioner vide proposal dated 15.04.2006 lapsed long time back and the present petition deserves to be dismissed on account of delay and latches. Accordingly, the instant Writ Petition is hereby dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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Elucidating the significance of Order VI Rule 15A CPC, which mandates the verification of pleadings in commercial disputes through an affidavit: Delhi High Court

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Elucidating the significance of Order VI Rule 15A CPC, which mandates the verification of pleadings in commercial disputes through an affidavit: Delhi High Court

Case title:  DECCAN EDIBLES PRIVATE LIMITED VS S P J CARGO PRIVATE LIMITED

Case no.: CM(M) 216/2024, CM APPL. 6750/2024

Dated on: 20TH May 2024

Quorum:  Hon’ble MS. JUSTICE SHALINDER KAUR.

FACTS OF THE CASE

The background of the present case unfurl that the respondent filed a commercial suit numbered as CS (COMM) No. 813/2023 titled as “Cargo Private Limited v. Deccan Edibles Private Limited” for recovery of Rs. 1,06,27,996/- (Rupees One Crore Six Lakhs Twenty-Seven Thousand Nine Hundred Ninety-Six) along with 24% interest rate till the date of realization against the petitioner. Summons were issued in the said suit by the learned Trial Court on 13.09.2023. The petitioner herein filed its written statement along with affidavit of admission and denial and two applications, one being of condonation of delay in filing of the written statement and the other under Order VI Rule 15A CPC for striking out the pleadings of the respondent in the plaint for the same were not verified by the Statement of Truth. The said application of the petitioner under Order VI Rule 15A CPC was listed before the learned Trial Court on 12.01.2024 and on the very same day the said application was dismissed. Aggrieved by the said decision of the learned Trial Court, the petitioner has impugned the order dated 12.01.2024 before this court under Article 227 of the Constitution of India, 1950.

CONTENTIONS OF THE APPELLANT

Ms. Sakshi Mehley, learned counsel for the petitioner submitted that the learned Trial Court mistakenly ignored the mandatory provisions of Order VI Rule 15A CPC which makes verification of the pleadings in a commercial dispute mandatory. With regard to the plaint filed by the respondent, there is no verification of paragraph no. 24 to 38 therefore, the pleadings in the suit cannot be considered to have been verified in the manner provided under Order VI Rule 15A sub-rule (1) CPC and therefore the respondent cannot be permitted to rely on such pleadings as evidence or any of the matters set out therein and hence, the entire pleadings are liable to be struck out for non-filing of the appropriate Statement of Truth as non-est. Learned counsel for the petitioner submitted that the learned Trial Court burdened the petitioner with cost for delay in filing of the written statement and has considered that the suit was properly instituted on 13.09.2023, when admittedly the same was not the case as the Statement of Truth in support of the plaint has been filed on 12.01.2024 and therefore the same should be considered as the date of institution of the suit. Consequently, the written statement of the petitioner was well within the statutory period of 30 days and it could not have been burdened with costs. Ms. Mehley submitted that the learned Trial Court by allowing the respondent to bring on record a fresh Statement of Truth has rendered the objection taken by the petitioner in its written statement redundant. The fresh Statement of Truth, even if, in the nature of the rectification amounts to amendment of the suit and the same would have necessitated the respondent filing an application under Order VI Rule 17 CPC, yet the learned Trial Court renders the said provision to CPC to be redundant by simply allowing the respondent to file a fresh Statement of Truth and takes the same on record without following the due process of law. Learned counsel for the petitioner further submitted that on one hand the respondent has pleaded that the error pointed out by the petitioner was merely a typographical one and yet, the paragraph no. 3 of the new Statement of Truth filed by the respondent on 12.01.2024 has been changed substantially by the respondent and the learned Trial Court has allowed the same at a belated stage thus prejudicing the interest of the petitioner for not only the relief of striking out of the pleadings has being denied but now the respondent will have to rely on the said pleadings. To conclude, learned counsel for the petitioner submitted that the verification contained in paragraph 3 of the Statement of Truth is not in consonance with the paragraphs as contained in the plaint and the same can be ascertained by the fact that the respondent has deposed on oath that paragraph numbers 16 to 23 are based on legal advice, whereas perusal of the said paragraphs describe the manner in which the petitioner and the respondent has been transacting with each other in the past. Therefore, only respondent could have been aware of the alleged facts as contained in paragraphs number 16 to 23 and the verification could have been based only on the personal knowledge of the respondent and not on legal advice. Consequently, the advice is untenable and cannot be considered to be a typographical error. Hence, the respondent in paragraph number 3 of the Statement of Truth has made substantial changes thus, the plea of defect being merely a typographical error is not tenable.

CONTENTIONS OF THE RESPONDENTS

Mr. Laksh Khanna, learned counsel for the respondent has refuted the submissions made by the counsel for petitioner by stating that the petitioner has wrongly invoked the jurisdiction of this court under Article 227 of the Constitution of India, 1950 as the order is well reasoned and there is no perversity from the order which is impugned. The defect was typographical in nature and was curable and therefore no substantive harm was caused to the petitioner. Learned counsel for the respondents submitted that the intention to file the present petition is to pre-empt the averments made in the replication and to „correct‟ the contentions in the written statement by misusing the plenary powers of this court. Further, the hyper-technical approach opted by the petitioner is likely to cause delay in trial of the suit.

LEGAL PROVISIONS

Order VI Rule 15A of the Code of Civil Procedure (CPC), 1908

This rule pertains specifically to the verification of pleadings in commercial disputes, introduced by the amendments under the Commercial Courts Act, 2015.

Article 227 of the Constitution of India, 1950

This article provides the High Courts with the power of superintendence over all courts and tribunals within their jurisdiction.

Commercial Courts Act, 2015

This act introduces several amendments to the CPC, particularly concerning the handling of commercial disputes.

Order VI Rule 17 CPC

This rule deals with the amendment of pleadings:

Amendment for Clarification: The court may permit amendments to the pleadings if it is necessary for the purpose of determining the real questions in controversy between the parties.

Timing of Amendments: Amendments should generally be allowed before the trial begins. However, after the trial has commenced, amendments are permitted only if the party seeking the amendment can demonstrate that it could not have raised the matter earlier despite due diligence.

COURT’S ANALYSIS AND JUDGEMENT

The Commercial Courts Act, 2015 introduced several amendments to the Civil Procedure Code (CPC), 1908 concerning commercial disputes, including provisions related to the verification of pleadings for which Order VI Rule 15A CPC was added. Order VI Rule 15A mandates the verification of pleadings by way of an affidavit. This requirement ensures that the statements made in the pleadings are authenticated and verified under oath in the absence of verification, the pleadings cannot be relied as evidence. If the pleading is amended, the same has to be verified. Failure to comply with the verification requirement can have legal consequences, as the court may reject the pleading or require the party to rectify the defect. This underscores the importance of strict compliance with the verification mandate. The core question which arises for adjudication in the present petition is whether the first filing of the plaint when filed within prescribed limitation period can be considered a valid filing in case it suffers from inherent defects. Hence, the position of law is well settled by various judgments observing that in case, it is found that the filing of fresh suit consists of inherent defects, such filing then has to be held as no nest and when the defects have been found to be formal in nature, it can be rectified. Reverting to the facts of the present case, the petitioner herein had pointed out before the learned Trial Court at the time of disposal of the application moved by the respondent under Order VI Rule 15A CPC, for striking of paragraphs from 24 to 38 of the plaints from the record as the Statement of Truth filed along with the plaint is incomplete inasmuch as there is no verification of the paragraphs 24 to 38, therefore, the said documents are liable to be struck off. However, the learned Trial Court declined the prayer of the petitioner and disposed of the application. Needless to say, the defects pointed out by the petitioner as the paragraphs 24 to 38 of the Statement of Truth not being appropriately verified is a curable defect. Moreso, the said defect was cured by the respondent on the very same day before the learned Trial Court by filing the complete Statement of Truth, a copy of which was also supplied to the petitioner herein. Thus, there is no merit in the submission raised by the petitioner that plaint should be considered of having only paragraphs 1 to 23 and remaining are liable to be struck off. The other judgments relied upon by the parties are decided on their own facts distinguishable from the facts of the present case. Accordingly, no reason is made out to set aside the impugned order. The present petition along with the pending application is dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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