“No voter to be left behind” LANDMARK JUDGEMENTS ON ELECTION LAW (A Compilation of Important Judgements pronounced by the Supreme Court of India, High Courts and Election Commission of India) VOLUME - V Election Commission of India Nirvachan Sadan, Ashoka Road, New Delhi-110001 2 “No voter to be left behind” 3 “No voter to be left behind” 4 “No voter to be left behind” 5 “No voter to be left behind” 6 “No voter to be left behind” 7 “No voter to be left behind” S.No. Name of the Judgment Page No. 1 Dayanand Rayu Manderekar v. Chandrakant Uttam Chodankar 1 & Others [CA No. 3578 & 3579 of 2005], Supreme Court 2 Ashok Pandey v. Election Commission of India [CM (PIL) WP 7 No. 17772 of 2007], High Court of Allahabad Subramaniam Swamy v. Election Commission of India [CA No. 5803 of 2008], Supreme Court 3 Subramaniam Swamy v. Election Commission of India [CA 18 No. 5803 of 2008], Supreme Court 4 Deputy Commissioner v. State of Karnataka [Cr. Petition 40 Nos. 8070 to 8074 of 2010], High Court of Karnataka Election Commission of India v. Telangana Rastra Samithi and Another [CA No. 10244 of 2010], Supreme Court 5 Election Commission of India v. Telangana Rastra Samithi 79 and Another [CA No. 10244 of 2010], Supreme Court 6 Chandra Prakash Kaushik v. Election Commission of India & 99 Another [LPA. 522 of 2012], High Court of Delhi 7 Patty B. Janganathan v. Chief Election Commissioner & 111 Others [WP Nos. 8289 of 2011], High Court of Madras 8 Dheeraj Pratap Singh v. Chief Election Commissioner, Union 123 of India & Another [PIL No. 2630 of 2012], High Court of Allahabad 9 Dr. Nutan Thakur v. Election Commission of India [MB No. 137 1361 of 2012], High Court of Allaha Dheeraj Pratap Singh v. Chief Election Commissioner, Union of India & Another [PIL No. 2630 of 2012], High Court of Allahabad bad 10 Jay Shankar Pathak v. Election Commission of India & Others 142 [WP (PIL) No. 1801 of 2012], High Court of Jharkhand 11 DMDK & Another v. Election Commission of India [WP (C) 176 No. 532 of 2008], Supreme Court 8 “No voter to be left behind” S.No. Name of the Judgment Page No. 12 All Arunachal Pradesh Students Union v. Election 224 Commission of India & Others [PIL No. 52 of 2010], High Court of Gauhati. 13 Election Commission of India & Another v. State of 246 Karnataka & 16 Others [W.P No. 17123-24, 17295-97 & 17298-99 of 2013 (S-CAT)], High Court of Karnataka 14 S. Subramaniam Balaji v. Govt. of Tamil Nadu & Others [CA 273 No. 5130 of 2013], Supreme Court 15 Lily Thomas v. Union of India & Others [WP (C) No. 490 of 336 2005], Supreme Court 16 Resurgence India v. Election Commission of India & Another 361 [WP (C) No. 121 of 2008], Supreme Court 17 People’s Union for Civil Liberties & Another v. Union of India 379 & Another [WP (C) No. 161 of 2004], Supreme Court 18 Subramaniam Swamy v. Election Commission of India [CA 408 No. 9093 of 2013], Supreme Court 19 Nutan Thakur v. Election Commission of India & Others 421 [Misc. Bench No. 2796 of 2014], High Court of Allahabad. 20 Ashok Shankarrao Chavan v. Dr. Madhavrao Kinhalkar & 429 Others [CA Nos. 5044, 5045 & 5078 of 2014], Supreme Court 21 Kisan Shankar Kathore v. Arun Dattatray Sawant & Others 514 [CA No. 4261 of 2007], Supreme Court 22 Dubbaka Narsimha Reddy v. Election Commission of India 546 [WP No. 12066 of 2014], High Court of Andhra Pradesh and Telangana 23 Chirayinkeezhu A. Babu v. The Delimitation Commission & 554 Others [WP (C) No. 4237 of 2008 and WA No. 655 of 2010], High Court of Kerela 24 Election Commission of India v. Bajrang Bahadur Singh & 574 Others [SLP (C) No. 8850 of 2015], Supreme Court 25 Election Commission of India v. Praful & Another [CA No. 603 178 of 2016], Supreme Court 9 “No voter to be left behind” JUDGMENT-1 SUPREME COURT OF INDIA Civil Appeal No.3578 and 3579 of 2005 CIVIL APPEAL NO.3578 OF 2005 (Decision dated 18/01/2007) Dayanand Rayu Mandrekar ……………………………………....Appellant Versus Chandrakant Uttam Chodankar & Ors ……………………………............Respondents CIVIL APPEAL NO.3579 OF 2005 Rajendra Vishwanath Arlekar ………….......Appellant Versus Jose Philips Domingo D’Souza & Ors. …………......Respondents Member of Legislative Assembly of Goa - Election - Disqualification – Office of Profit - Candidate holding offices of Chairman, Goa Khadi and Village Industries Board and Chairman, Goa State Scheduled Castes and Other Backward Classes Finance and Development Corporation Ltd. at the time of filing of nomination paper were holding `office of profit’ – HELD - the office of Chairman/Director or member of the statutory or non-statutory body or committee or corporation constituted by the State Government - exempted from any disqualification as contemplated under Article 191 (1) (a) of the Constitution – however, as per the proviso under clause (9), the compensatory allowance to be paid to such holder of offices would only mean any expense which is incurred by the holder of the office in performing the functions of that office - any other sum of money or other perquisites would not amount to compensatory allowance - holder of such offices would not be entitled to the benefit of exemption from disqualification specified under clause (9) of the Schedule. (Para 4) 1 “No voter to be left behind” SUMMARY These Appeals were filed to challenge the judgments passed by the High Court of Bombay at Goa on 27th May, 2005 in two Election Petitions setting aside the election of the Appellants to the Legislative Assembly of Goa respectively from 6-Siolim and 25-Vasco-da-Gama assembly constituencies on the ground that theywere holding “office of Profit”as contemplated by Article 191(1)(a) of the Constitution, being respective the Chairman of the Goa Khadi and Village Industries Board (Board,for short), constituted under the Goa Khadi and Village Industries Board Act, 1965 (Act, for short), and Chairman of the Goa State Scheduled Castes and Other Backward Classes Finance & Development Corporation Limited (“Corporation”, for short) on the date of the nomination as well as on the date of election. The Appellants’ contended that they were not holding “office of profit” and were not receiving any salary or allowances for the said post they held and also by virtue of the provision contained in terms of clause (9) of Schedule to theGoa, Daman and Diu Members of Legislative Assembly (Removal of Disqualifications) Act, 1982, the offices have been specified as offices exempted from any disqualification. The Supreme Court held that though by virtue of clause (9) of the Sched- ule to the 1982 Act the office of Chairman/Director or member of the statutory or non-statutory body or committee or corporation constituted by the State Government are exempted from any disqualification as contemplated under Article 191 (1) (a) of the Constitution, but the proviso under clause (9) clearly stipulates that the compen- satory allowance to be paid to such holder of offices would only mean any expense which is incurred by the holder of the office in performing the functions of that office and any other sum of money or other perquisites would not amount to compensato- ry allowance and the holder of such offices would not be entitled to the benefit of exemption from disqualification specified under clause (9) of the Schedule. It held that the Appellants were in receipt of variety of perquisites that can- not be said to be given by way of compensatory allowance. The Appellant in C.A. No.3578 was entitled to salary or other honorarium and allowances from the funds of the Khadi and Village Industries Board under rule 7 of the Goa Daman and Diu Khadi and Village Industries Board Rules, 1967. That the holder of the office of Chairman had not received or had not opted to get any salary or honorarium is not material. The Appeals were dismissed. 2 “No voter to be left behind” JUDGMENT Hon’ble K.G. Balakrishnan,Chief Justice Hon’bleDalveer Bhandari, Judge Hon’bleD.K. Jain, Judge Advocates for Appellant/Petitioner/Plaintiff : Dhruv Mehta, Jha and Yashraj Singh Deora, Advs. for K.L. Mehta & Co For Respondents/Defendant: M.N. Krishnamani and Abhishek M. Singhvi, Sr. Advs., Bhavanishankar V. Gadnis, S.U.K. Sagar, Bina Madhavan, A. Venayagam, Vinayakam, Advs. for Lawyer’s Knit & Co., Srinivas Khalap and Ashok Mathur, Advs., (1) The appellants, in these two appeals, challenge the judgment in the Election Petition nos. 1 and 2 of 2002. In both these cases a common questions of law had arisen and, therefore, v/e heard the matter together and are disposing these ap- peals by way of a common order. The appellant in C.A No. 3578/05 was elected to the Legislative Assembly of State of Goa from Siolim constituency in the election held on 30.5.2002, whereas the appellant in C.A. No. 3579/05 was elected from Vasco-da-gama Assembly constituency of the State Legislature. The election petitions were preferred by two unsuccessful candidates in the elections alleging that these two appellants were holding ‘office of profit’ at the time when they contested the elections and, therefore, they were ineligible to be elected to the legislature. At the time of filing their nominations, the appellant in C.A. No. 3578/05 was the Chairman of the Goa Khadi and Village Industries Board of the State of Goa, whereas the appellant in C.A. No. 3579/05 was the Chairman of the Goa State Scheduled Castes and Other Backward Classes Finance & Development Corporation Ltd. of the State of Goa. The appellants in these two cases contended before the High Court that they were not holding an ‘office of profit’ and were not receiving any salary or allowances for the said post they held and by virtue of the provision contained in the Goa, Daman and Diu Members of Legislative Assembly [Removal of Disqualifica- tions] Act, 1982 (for short ‘the 1982 Act’), the disqualification, if any, was removed especially by Clause (9) of the Schedule.