Constitutional Validity of Article 243-O

ARTICLE 243-O IS PARI MATERIA TO ARTICLE 329

The counsel for the respondents humbly submits that article 243O is constitutionally valid
because it is in pari materia with Article 329 as held in the case of Hotilal v. State of U.P and ors.1
Also, in many of the precedents the Courts are of the view that Article 329 is pari materia to
Article 243-O upholding the contention that both the provisions restricts the jurisdiction of court
in matters related to elections, the only difference is provision of election petition in case of
panchayats. However, the other difference between both of them is that one is related to Panchayat
elections while other is related to Parliamentary elections and also Article 243 (O) (a) is similar to
Article 329(a) and Article 243 (O)(b) is similar to Article 329 (b) of Constitution of India, 1950.2

In Ponnuswami v. Retuning officer, Namakkal Constituency, Namakkal Salem Dist. and others,3
the Supreme Court took into consideration that provisions of Article 329-B, which is pari materia
and similarly worded in Article 243-O (b). The same thing was held in Kallo Adiwasi v. State
election Commission, Bhopal.4 Article 329, which is in pari materia with Article 243-O is a
blanket ban on all manner of questions which may have impact on the ultimate result of the election
arising between the notification by the president calling for the election and declaration of the
result by the returning officer.5

In Bhagwan Singh and Others v. State of Bihar6, the court held that Article 243-O provides that
no election to any panchayat shall be called in question except by an election petition which is
similar to Article 329 (b) of the Indian Constitution, 1950.

Article 243-O does not violate the basic structure of the constitution

The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of
all laws and if a law made by Parliament or the state legislatures violates any provision of the

1
2002 (3) AWC 1761.
2
Jameela Ibrahim and ors. v. the retuning officer and anr., AIR 1996 Ker. 100.
3
AIR 1952 SC 64.
4
2015 (4) M.P.L.J.
5
V. Kunhabdulla and Anr. v. State of Kerala, AIR 2000 Ker. 376.
6
AIR 2005 Pat. 109.
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.7 While
deciding the amending power of the constitution it has to be observed that there is subtle difference
that exists between two kinds of functions performed by the Indian Parliament:

a) it can make laws for the country by exercising its legislative power; and
b) it can amend the Constitution by exercising its constituent power.8

Constituent power is superior to ordinary legislative power of the Parliament.9 Parliaments

amending power under article 368, granting that it has the power to amend any part of the
constitution, including part III that incorporates fundamental rights, cannot be absolute, unlimited
uncontrollable and uncontrolled.10 Therefore, it is the matter of fact whether the particular
enactment or law violates any of the constitutional provisions or not.

Further, whether or not there is distinct and rigid separation of powers under the Indian
Constitution, on principle clearly stands out whatever the constitutional validity is challenged, the
legislature cannot be allowed to take the plea that such an issue can be decided by the legislature
themselves.11 Adjudication of such the dispute is entrusted solely and exclusively to the
Judicature of this country.12 Hence, the power of amending the constitution is a species of the law
making power, which is the genus.13 Further, rationale of limiting the amending power is that the
very idea of amendment carries its own rough and ready measure which was deciphered by the
SC in Waman Rao14 by invoking the analogy of permissibility of an amendment of a pleading,
that is, how far the amendment of a pleading is consistent with the original.

7
The Basic Structure of the Indian Constitution Compiled by Venkatesh Nayak
http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf
8
Keshavananda Bharti Case
9
Golak Nath case
10
Basic structure article
11
I R Coelho case 886-887
12
Id.
13
Id para 121.
14
Waman Rao Case (supra n 4)
The power to amend the Constitution is vested in the Parliament by Article 368, which cannot be
delegated to the executive or judiciary.15 Although there is no specific enumerated substantive
limitation on the power in Article 368, but as arising from very limitation in the word `amend', a
substantive limitation is inherent on the amending power so that the amendment does not alter the
basic structure or destroy the basic features of the Constitution.16 The Constitution can be amended
by the Parliament in exercise of its power under Article 368.17 The power of Parliament to amend
the Constitution and procedure therefor is conferred by Article 368 in Part XX of the
Constitution.18 An amendment of the Constitution which is the subject matter of the power
conferred by Article 368, may include modification or change of the provisions or even an
amendment which makes the said provisions inapplicable in certain cases.19 Article 243-O of the
Constitution has also been inserted by 73rd amendment of the constitution exercising the
constituent power by the Parliament, which restricts the jurisdiction of courts in matters relating
to panchayat elections.

Democracy is the basic structure of the Indian society from the ancient era. It remained present at
all times at grass root level, thus the Panchayat system is well accepted in society. Ancient
Panchayat system was initially part of the Constitution, but by the 7th constitutional amendment20
it was omitted. Though even after omission from the constitution it remains in practice in most of
the states and acquired the protection of Constitutional umbrella again by way of the Constitutional
amendment Act 199221.

15
A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1982 AIR 710.

16
Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992 SCR (1) 686.

17
Heera Lal Umar Son Of Late Sri Moti vs State Of U.P.Writ Petition No. 2247 of 2001.
18
Shyam Sundar Gupta vs Union Of India And Others, AIR 1990 Cal 64.

19
Haroobhai M. Mehta vs State Of Gujarat And Ors., (1966) 7 GLR 597

20
(seventh amendment) Act 1956
21
73rd amendment Act 1992.
Article 243-O creates bar on the court to call in question the election of Panchayat except an
election Petition.22 It may be argued that this provision creates bar on the power of judicial review,
which is the basic structure of the Constitution of India which is not true per se. Being a democratic
country free and fair election is the genesis of our Constitutional command. The whole scheme of
the Constitution is to ensure the sovereignty and integrity of the country as a Republic and the
democratic way of life by parliamentary institutions based on free and fair elections.23

Moreover, Article 243-O of the constitution is at par with Article 329 and His Lordships in the
case of N P Ponnusami v. returning officer24 observed that, I think it can be legitimately stated
that if words similar to those used in Article 329 (b) have been consistently treated in England as
words apt to exclude the jurisdiction of the Courts including the High Court, the same consequence
must follow from the words used in Article 329 (b) of the Constitution. The words
"notwithstanding anything in this Constitution" give to that article the same wide and binding
effect as a statute passed by a sovereign legislature like the English Parliament.

While summing up the case25, His Lordships had stated that, the conclusions I have arrived at
may be summed up briefly which are as follows:

(1) Having regard to the important functions which the legislatures have to perform in
democratic countries, it has always been recognized 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 the disputes arising out of elections should be postponed till after
the elections are over, so that the election proceedings may not be unduly retarded or
protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well
as in England is that no significance should be attached to anything which does not affect
the "election;" and if any irregularities are committed while it is in progress and they

22
Article 243-O of the constitution
23
Basic structure PDF : Vol-2 Issue-3 2016 IJARIIE-ISSN(O)-2395-4396
24
N.P. Ponnuswami Vs. Returning Officer; AIR 1952 SC 64
25
Id, para 16
 belong to the category or class which, under the law by which elections are governed,
would have the effect of vitiating the "election" and enable the person affected to call it in
question, they should be brought up before a special tribunal by means of an election
petition and not be made the subject of a dispute before any Court while the election is in
progress.

Further, in Durga Shankar v. Raghuraj Singh26, Honble Supreme Court, in conformity with the
above dictum, held we agree with the learned counsel that the right of seeking election and sitting
in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution
provides a special remedy for enforcing that right, no other remedy by ordinary action in a court
of law is available to a person in regard to election disputes.

The reason behind such a strict interpretation is that election process is the essence of Indian
democratic system and must be completed within stipulated time frame and any delay may cause
Constitutional crisis. Interference of high judiciary in their original Jurisdiction may lead to such
crisis and anybody may challenge the election process in between and disturb the entire election
process. Therefore, validity of article 243-O cannot be challenged before any court of the law
because of its materiality with Article 329, which is a part of original constitution, and exercise of
parliaments constituent power to amend the constitution in order to provide fair view to nations
democratic character.

Section 121 & 122 of the Act are constitutionally valid:

Section 12127 of the Act states that the validity of any law relating to the delimitation of
constituencies or the allotment of seats in such constituencies, made or purporting to be made
under this Act shall not be called in question in any Court which is same as to the Article 243-
O28 of the constitution which provides that Notwithstanding anything in this Constitution, the
validity of any law relating to the delimitation of constituencies or the allotment of seats to such

26
AIR 1954 SC 520 (B)
27
Section 121 of the mp nirvacahan act
28
Article 243 O (a) of the constitution, inserted by 73rd amendment
constituencies, made or purporting to be made under article 243K29, shall not be called in
question in any court. After the combined reading of these two provision it is clear that both of
these provisions are at par with each other which leads to the conclusion that both are same except
one being constitutional provision and other one a statutory enactment by the state legislature. Also
Article 243-O being a non-obstante clause provides the overriding effect to this provision over
any other constitutional provisions.
Further clause (b) of Article 243-O provides that no election to any Panchayat shall be called in
question except by an election petition presented to such authority and in such manner as is
provided for by or under any law made by the Legislature of a State30. Which, by section 122 of
the Madhya Pradesh Panchayatraj evam Gram Swaraj Adhiniyam 1994 has been prescribed in
such manner, that, an election under this Act31 shall be called in question only by a petition
presented in the prescribed manner:-

(i) in case of panchayat or Gram Sabha, to the Sub-Divisional Officer (Revenue);

(ii) in case of Janpad Panchayat to the Collector; and

(iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise.32

Therefore, the constitutional validity of section 121 and 122 cannot be questioned before any court
of the law as they are within the framework of the constitution and are enacted following the
mandate of the supreme law of the land because the power of making the rules has been delegated
to the state legislature. It is the constitution which bars the jurisdiction of any court in election
relating matters which has been followed by the state legislature in the local statute as well.

29
Article 243-k of the constitution: Elections to the Panchayats.
30
Article 243-O (b)
31
MP adhiniyam
32
Section 122 of the Madhya Pradesh Act