“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
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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
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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
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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)
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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.
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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. The pleas set-up by the appellants were
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(2) We have heard the counsel for the appellants and counsel for the respondents’.
(3) It is not disputed that the appellants were holding the office as alleged in the election petition, but contended that they were not receiving any salary or allowances and were only receiving some perquisites. It is not disputed that these two appellants, by virtue of their office, enjoyed the privilege of a chauffeur driven car with unrestricted use of petrol. The appellants were also given the services of a PA, a clerk and a Peon and they were provided with a residential telephone with unrestricted number of calls. They were also provided with a mobile telephone and newspapers were supplied at their residences and the expenses were paid from the funds of the office.
(4) Under Rule 7 of the Goa, Daman and Diu Khadi and Village Industries Board Rules, 1967 (for short ‘the 1967 Rules’), “The Chairman, the Vice-Chairman and other members of the Board shall be paid such salary or honorarium and allowances from the funds of the Boards as the Government may from time to time fix.” The appellant in C.A. No. 3578/05 was not receiving any salary or honorarium as, according to him, the government had not fixed any such salary or honorarium. The question that arises for consideration is whether the appellants could seek the benefit of the 1982 Act. By virtue of Clause (9) of the Schedule, the appellant contended, that the office of Chairman/Director or member of the statutory or non-statutory Board are exempted from any disqualification but the proviso to Clause (9) of the Schedule makes if further clear that this disqualification is circumscribed by a further limitation.
Clause 9 of the Schedule reads as follows:
9. The office of Chairman, Director or member of a statutory or non-statutory body or committee or corporation constituted by the Government of Goa, Daman and Diu: Provided that the Chairman, Director or Member of any of the aforesaid
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committees or bodies or corporations is not entitled to any remuneration other than compensatory allowance.
An explanation was also added to Clause (9). The same reads thus: Explanation - For the purpose of the aforesaid entries -
“Compensatory allowance” means any sum of money payable to the holder of an office by way of daily allowance [such allowance not exceeding the amount of daily allowance to which a member of the Legislative Assembly is entitled under the Goa, Daman and Diu Salary, Allowances and Pension of the Members of the Legislative Assembly Act, 1964 (2 of 1965)], any conveyance allowance, house rent allowance or traveling allowance for the purpose of enabling him to recoup any expenditure incurred by him in performing the functions of that office.
(5) The proviso makes it abundantly clear that the compensatory allowance would only mean any expense which is incurred by the holder of the office in discharge of his official function to be compensated by claim’ and if any other sum of money or other perquisites are made to the holder of office as compensatory allowance, he would not get the benefit of Clause (9) of the Schedule which was added. In the instant cases, the appellants were certainly in receipt of verity of perquisites which cannot be said to be given to them by way of compensatory allowance. The mobile phone telephone and the chauffeur driven car were all permitted to be used for unlimited purposes and they were not restricted to official purposes. Moreover, Rule 7 of the 1967 Rules specifically states that the Chairman, Vice-Chairman and other members of the Board shall be paid such salary or other honorarium and allowances from the funds of the Boards as the Government may from time to time fix. The appellants were entitled to get salary or honorarium by virtue of this rule. The mere fact that they had not received or they had not opted to get this salary or honorarium is immaterial. By virtue of the said rule, they are entitled to get salary or honorarium and that, by itself, would show that they were not entitled to get the benefit of the Schedule of the 1982 Act.
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(6) The respondents in these two cases had raised a contention that the 1982 Act itself was not applicable to the State of Goa, Daman and Diu as the same was not adopted by the State Legislature. The respondents had contended that in the absence of adoption under Section 57 of the Goa State Re-organisation Act, 1987, the 1982 Act had no application to the State of Goa, Daman and Diu. This plea was accepted by the learned Single Judge of the High Court. The respondents in these cases contended that the finding of the learned Single Judge in this regard is not correct.
(7) In this case, the appellants herein contended that Article 239A of the Constitution provided for creation of local legislatures or council of ministers or both for certain Union Territories and the Parliament enacted the Government Territories Act, 1963. As per Section 3 of the Act of 1963, the Legislative Assembly of the Union Territory of Goa, Daman and Diu came into existence and sub-Section (1) of Section 14 of the Act of 1963 provided that a person shall be disqualified for being chosen as, and for being a Member of the Legislative Assembly of the Union Territory, inter alia, if he holds any office of profit under the Government of India, or the Government of any State, or the Government of the Union Territory, other than the office declared by law made by Parliament, or the Legislative Assembly of the Union Territory, not to disqualify its holder, i.e., the Legislative Assembly of the Union Territory of Goa, Daman and Diu. The Act passed in 1982 provided for removal of certain disqualifications for being chosen and for being a member of the Legislative Assembly of Goa, Daman and Diu. That Act was passed under Section 14(1) of the Act of 1963.
(8) The respondent had contended that when Union Territory of Goa, Daman and Diu became a State, the Assembly of the State of Goa had not passed any law nor had adopted the 1982 Act which was in force. The appellants contended that as per Section 66 of the Goa, Daman and Diu Reorganization Act, 1987, the Act of 1982 continues to be in force but this plea was rejected by the learned Single Judge.
(9) We have examined the claim of the appellants in the light of the 1982 Act and hold that the appellants are not entitled to get the protection of the Act. Therefore, whether this Act was adopted by the State Assembly of Goa or not, need not be considered at this stage and we leave open the question to be considered in other appropriate cases.
(10) We find no merit in these appeals and the appeals are dismissed accordingly.
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JUDGMENT-2 SUPREME COURT OF INDIA
Civil Misc.PIL Writ Petition No.17772 of 2007 (Decision dated 05/04/2007)
Ashok Pandey...... ……………………………………....Petitioner
Versus
Election Commission of India & Anr..……………………………...... Respondents
CONSTITUTION OF INDIA – Article 324 – Transfer of Chief Secretary, Director General of Police and Principal Secretary (Home) by Election Commission – deployment of Central Police forces – prevention of defacement of property
Held: The power to issue guidelines for transfer and posting or to direct transfer of a particular officer, is an implied power vested in the Election Commission and has to be necessarily read in the power conferred upon it by Article 324 of the Constitution of India
Article 32 and 226 – PILs not to be entertained in service matters {Dr.DuryodhanSahu and others v. Jitendra Kumar Mishra and others JT 1998 (5) SC 645 relied upon}.
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SUMMARY
The petitioner, who is an Advocate, filed this writ petition as Public Interest Litigation on the ground that the orders issued by the Election Commission in connection with conduct of general election to the Legislative Assembly of Uttar Pradesh in the year 2007 about transfer of the Chief Secretary, Director General of Police, Principal Secretary (Home) and other officers of the State Govt. of Uttar Pradesh from one place to another are without any authority of law, arbitrary and illegal and the decision of the Commission for deployment of only central forces on the polling booths or Electronic Voting Machines (EVMs) and exclusion of the State police force from the polling booths amount to insult and humiliation of the bureaucracy and police forces of the State as well as 20 crore population of the State and is in violation of fundamental rights guaranteed by Article 14, 19 and 21 of the Constitution. The petitioner also prayed for quashing the instructions issued by the Commission regarding prevention of defacement of property in connection with election campaign by use of posters and wall writings.
The Commission made preliminary objection to the locus standi of the peti- tioner to file the petition as Public Interest Litigation as well as its maintainability as the reliefs claimed were general and sweeping in nature.
The High Court held that in so far as the relief with regard to transfer of officers connected with elections by the Election Commission is concerned, the petitioner has no locus as transfer is an exigency of service with which an outsider is not affected. Further it relied on the pronouncements made by the Apex Court that in service matters PILs should not be entertained and held that the writ petition in the nature of a PIL is not maintainable.
In so far as challenge to the authority of the Commission in issuing such transfer orders during election period is concerned, the Court held that the power to issue guidelines for transfer and posting or to direct transfer of a particular officer, is an implied power vested in the Election Commission and has to be necessarily read in the power conferred upon it by Article 324 of the Constitution of India.
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With regard to the challenge to deployment of only central force to guard the polling booths or EVMs, it held that the Commission is the best judge to frame policies for effective discharge of its primary duty to ensure free and fair elections and declined to adjudicate on such policy decision.
In the matter of orders of the Commission on defacement of public and private property, it held that there was no illegality in banning use of posters or wall writings by political parties and candidates. It observed that the petitioner has no locus to challenge this order and the petition for this relief is also not maintainable. The Court dismissed the writ petition with cost of Rs.25,000 (Rupees twenty five thousand) on the petitioner with the observation that to extend the arm of justice to the poor and down trodden PILs cannot be allowed to be twisted in such a manner by a litigant much less by an advocate.
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JUDGMENT
Hon’ble S. Rafat Alam, Judge
Hon’bleKrishna Murari, Judge
(1) By means of this Petition files as Public Interest litigation, the petitioner who has appeared in person, has prayed for the following reliefs:
(i) Issue a writ, order or direction in the nature of Certiorary thereby quashing all the transfers done by State Govt. under the direction issued by Election Commission of India including the transfer of Principal Secretary Home etc. and to restore all of them back to their jobs on the place of their earlier posting.
(ii) Decide as to whether the Election Commission is having any authority to transfer the officers in mass without there being any reason, for doing so and without there being any material arising on such substantive satisfaction.
(iii) Issue a writ, order or direction in the nature of Mandamus directing to Election Commission of India, not to insult, humiliate the bureaucracy and police force of the State and not to undermine the prestige, dignity and honor of the peoples of this great State.
(iv) Issue a writ, order or direction in the nature of Mandamus directing the Respondent Commission to deploy the Ste Police as well as the Central Forces, together on the booths and by means of writ in the nature of certiorari, set aside the decision taken by it for keeping the State peoples totally out of booths and posting Central Forces only for guarding the booths or Electronic Voting Machine (EVM).
(v) Issue a writ, order or direction in the nature of Certiorary thereby quashing the decision dated 29/03/2007 thereby banning the use of posters and wall writings.
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(vi) Issue a writ, order or direction in any nature which this Hon’ble Court may deem fit and proper under the circumstances of the case.
(vii) Award the cost of the writ petition in favour of the petitioners.
(2) We have heard Sri Ashok Pandey in person who is also an Advocate practicing in this Court as stated by him in paragraph 2 of the writ petition.
(3) At the outset, a preliminary, objection has been raised by B.N Singh, learned counsel appearing for the Election Commission regarding the locus of the Petitioner as well as maintainability of this petition as Public Interest Litigation claiming reliefs which are general and sweeping in nature.
The Hon’ble Apex Court, in the case of Janta Dal vs. H.S. Choudhary J.T 1992 (1) S.C 213 while considering the scope of Public Interest Litigation observed as under;
“The expression ‘litigation’ means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”
“Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.”
“While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.”
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It has further been observed in the aforesaid judgment as follows:
“It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.”
Again in the Ashok Kumar Pandey vs. The State of West Bengal & others JT 2003(9) SC 140, the Hon’ble Apex Court has observed as follows:
“Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As Indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration.”
The law being settled, the locus of the petitioner to file this petition as public interest litigation as well as the maintainability of the same is to be tested in the light of settled law.
(4) The Petitioner claiming himself to be an advocate and president of ‘Hindu Personal Law Board’ and ‘Rashtra Raksha Manch’ as well as the chairmaqn of the Global Human Rights (NGO), has filed the present petition on the ground that the orders passed by the Election Commission directing transfer of the Chief Secretary,
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Director General of Police, and other officers of the State from one place to another is without any authority of law, arbitrary and illegal and decision of the Election Commission of India for deployment of the Central forces on the polling booths and exclusion of the State police force from the polling booths amounts to insult and humiliation of the bureaucracy and police forces of the State as well as 20 Crore people of the State and also in violation of the fundamental rights guaranteed by Article 14, 19 and 21 Constitution.
(5) First relief claimed by the petitioner is with regard to transfer officers under the direction of the Hon’ble Election Commission. We fail to understand how the petitioner has any locus to challenge the transfer of the officers. The officers, who could only be said to be affected by transfer orders, have not come forward. Transfer is an exigency of service and an outsider will have no locus to challenge the same. A public interest litigant cannot be said to be person aggrieved in service matters which is exclusively between the employer and the employee. The Hon’ble Supreme Court in the case of Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra & ors JT 1998(5) SC 645 has held that in service matters PILs should not be entertained.
(6) In view of the above, in so far as the first relief is concerned, the writ petition in the nature of Public Interest Litigation, filed by the petitioner, is not maintainable.
(7) Inso far as the relief no. 2 is concerned, superintendence, direction and control of elections is vested in the Election Commission by the virtue of Article 324 of the Constitution of India. The words superintendence, control and direction are of very wide connotation and include all such incidental and ancillary functions which are necessary for the successful exercise of power conferred by Article 324 on theElection Commission for conducting free and fair elections. Exercise of such powers being in furtherance of and as an aid to the performance of duty imposed on theCommission by the Constitution is necessarily to be read in the power of superintendence, direction and control of elections conferred upon the Election Commission. While considering the scope and ambit of the powers conferred on the Election Commission by Article 324 in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, the Hon’ble Apex Court has observed in paragraph 88 and 89 as follows: “Black’s Law Dictionary explains the proposition thus:
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“Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to; have been within the intention of the constitutional or legislative grant.”
“This understanding accords with justice and reason and has the support of Sutherland. The learned Additional Solicitor General also cited “the case in Metajog Dobey v. H.C. Bhari [1955] 28ITR941(SC) and Commissioner of Commercial Taxes and Ors. v. R.S. Jhaver and Ors. etc. [1968]1SCR148 to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vast incidental powers. He illustrated his point by quoting from Sutherland (Frank E. Horack Jr., Vol. 3).”
“Necessary implications: Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, “An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty.... That which is clearly implied is as much a part of a law as that which is expressed.” The reason behind the rule is to be found in the fact that legislation is enacted to- establish broad or general standards. Matters of minor detail are frequently omitted from legislative enactments, and “if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the legislature likely to be defeated.
The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws relegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience.”
Thus the power to issue guidelines for transfer and posting or to direct transfer of a particular officer is an implied power vested in the Election Commission and has to be necessarily read in the power conferred upon it by Article 324 of the Constitution of India.
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(8) Reliefs No. 3 and 4 claimed by the petitioner relate to the deployment of State Police force as well as central force together on the polling booths and not to keep the State police force totally out of booths. Again we fail to understand how the bureaucracy or police force of the State is insulted or humiliated by the policy decision taken by the Election Commission for deployment of the central force to guard the polling booths or Electronic Voting Machines and how the petitioner is aggrieved by that. It is the primary duty of the Election Commission to ensure free and fair elections and it is the best judge to frame policies for effective discharge of its primary duty. Deployment of Central forces for a particular job, or in a particular man- ner is a policy decision of the Commission. It is well settled that the courts in exercise of their jurisdiction will not transgress into the field of policy decision. Whether to deploy central forces or the State Police forces are part of the policy framed by the Commission in order to ensure free and fair elections and the courts will not adjudicate on a policy decision taken by the Commission.
(9) In so far as relief no. 5 is concerned, though a writ of certiorari has been claimed to quash the alleged decision banning the use of posters and wall writings, but the said order/decision has not brought on record by the petitioner. Further, even if such a decision has been taken there appears to be nothing wrong with the same. It is a matter of common knowledge that during elections, the candidate in the fray, whether of any political party or independent, deface public as well as private buildings by sticking posters and wall writings. After the Election are over, the cost of removing the posters and wall writings are borne by the public exchequer in case of a public building and the individuals in case of private buildings. In either case it is the general public at large which has to bear the loss for no fault of theirs. There is no reason the contestant of an election should be allowed to do their canvassing and publicity at the cost of general public at large. We do not find any fault or illegality in such decision, if any, taken by the Election Commission, banning the use of posters or wall writings. Further also we fail to comprehend how the petitioner is affected by such decision so as to give him locus to challenge the same. Thus, for this reason, the petitioner as a public interest litigant, has no locus and petition for this relief is also not maintainable.
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(10) It is well settled that the relaxation of the rule of locus standi in the field of PIL does not give right to a busy body to approach the Court under the guise of Public Interest Litigation. In case of S.P Gupta v. Union of India 1981 (Supp.) SCC 87, it has been observed by the Hon’ble Apex Court as under; “But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.”
(11) We have no manner of doubt that the issues raised by the petitioner in the present Public Interest Litigation are neither bona fide nor in public interest. The petition instead ofa public interest litigation appears to be either a publicity interest litigation or politics interest litigation. The Hon’ble Apex Court has repeatedly cau- tioned by observing that such petitions deserve to be thrown out by rejection at the threshold with exemplary costs. The petitioner being a practicing advocate cannot be said to be person unaware of the legal niceties of the matter. As an advocate he is an integral part of the judicial system and ought not to have filed such a fictitious and motivated petition wasting precious time of this Court which otherwise could have been spent for disposal of cases of the genuine litigants. Zeal on the part of the Courts to extend the arm of justice to the poor and downtrodden by entertaining PILs cannot be allowed to be twisted in such a manner by a litigant much less by an advocate. Therefore, it is a fit case where not only the petition deserves to be dismissed but also an exemplary cost is liable to be awarded against the petitioner with the hope and trust he would mend his ways and would not burden the Court with fictitious and frivolous litigation in future.
(12) In view of the aforesaid, the writ petition stands dismissed with the exemplary costs of Rs. 25,000/- (twenty five thousand only) which the petitioner is directed to deposit with the Registrar General within two months from today. In case the aforesaid amount is not deposited, the Registrar General of this Court shall inform the District Magistrate, Lucknow where the petitioner resides to take steps for recovery of the said amount by coercive measures as arrears of land revenue. The District Magis- trate after recovering the said amount from the petitioner, shall remit the same to the Registrar General of this Court for being deposited in the account of Legal Aid Committee.
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(13) In the end, an oral prayer has been made by the petitioner for grant of certificate of appeal to the Hon’ble Supreme Court. In our opinion, this case does not involve any substantial question of law of general importance which needs to be decided by Hon’ble Supreme Court not it involves any substantial question of law as to interpretation of the Constitution. Hence the prayer is rejected.
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JUDGMENT-3 SUPREME COURT OF INDIA
Civil Appeal No.5803 of 2008 (Decision dated 23/09/2008)
Subramanian Swamy ...... ………………………………….....Appellant Versus Election Commission of India, Through its Secretary ...... ……………………………...... Respondents
Election Symbols (Reservation and Allotment) Order, 1968 – perfectly in consonance with the democratic principles- A statute must be read as a whole in its context –
HELD:Para 10A of the Symbols Order - Rationale for providing concession to candidates set up by unrecognised party, which was earlier a recognized party, in the matter of allotment of its reserved symbol for six years period is perfectly reasonable as it gives the party opportunity to prove its continued following in the fresh elections within six years.
Election Symbol – reserved for a party on its recognition – not intellectual property of the party – reservation of symbol for a party inextricably connected with its recognition. (Para 15)
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SUMMARY
The Appellant filed the Appeal for striking down paragraph 10A of the Symbols Order as it denies equality before the law that is violative of Article 14 of the Constitution of India.
The appellant alleged that the provisions of Para 10A of the Election Symbols (Reservation and Allotment) Order, 1968, as amended pre 2001, suffers from the vice of arbitrariness and amounts to an undemocratic act which does not pass the acid test of equality before law under Article 14 of the Constitution - symbol reserved for a party is an intellectual property that could not be taken away by a legislation, and in addition seeking a direction to the Commission to amend the said Para 10A suitably .
The Court held that Symbols Order promulgated by the Election Commission on 31/08/1968 in exercise of powers conferred by Article 324 read with Section 29A of the R.P. Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961 to provide for reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for recognition of political parties and for matters connected therewith, is perfectly in consonance with the democratic principles.
The concept of recognition of political party is no doubt inextricably connected with the concept of symbol of that party but only a political party having substantial following has a right for a reserved symbol. A party which remains only in the records can never be equated and given the status of a recognized political party in a democratic set up.
With regard to the challenge to the constitutionality of Para 10A of the Symbols Order providing for concession to candidates set up by an unrecognised party, which was earlier recognized as a National or State Party not earlier than six years from the date of notification of the election, for allotment of the symbol reserved earlier for it, it was held that the rationale for providing six years period in para
19 “No voter to be left behind”
10A is perfectly reasonable as it gives the party opportunity to prove its continued following in the fresh elections within six years.
The Court did not agree to read down the provisions of clause 10A so as to avoid the mention of six years as that would amount to absurdity vis-a-vis paras 5 and 6 of the Symbol Order. Provisions of Para 10A has to be read and interpreted in terms of other connected provisions in Paras 5, 6, 6A, 6B and 6C and also the objects on the Preamble to the Symbols Order.
It further held that a symbol may be an outcome of intellectual exercise but it does not become an “intellectual property” of the party for which it is reserved and the Commission has every right to deprive a particular party with a dismal performance of that reserved symbol. Election Symbol is only the insignia which is associated with the particular political party that helps millions of illiterate voters to properly exercise their right to franchise in favour of candidate of their choice belonging to a particular party.
With regard to the prayer of the appellant to freeze the symbol of a recognised political party after the party loses eligibility criteria for such recognition as per Symbols Order, the Apex Court observed that though there is no such provision of freezing of any particular symbol in the said Order the issue can be considered by the Commission in case the issue is raised before it by the appellant party.
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JUDGEMNT
Hon’bleAshok Bhan,Judge Hon’bleV.S. Sirpurkar, Judge Advocate for Appellant and party-in-person: Roxna Swamy, Advocate for Respondents: Meenakshi Arora, S. K. Mendiratta and Suvrajyoti Gupta
(1) Leave granted.
(2) Dr. Subramanian Swamy comes up before us challenging the judgment of the High Court of Delhi whereby his Writ Petition was dismissed. The Writ Petition was filed by Dr. Swamy in his personal capacity, though he claimed therein a mandamus for Janata Party of which he is the President. In the Writ Petition following prayers were made:
(a) A writ of mandamus or a writ, order or direction in the nature of mandamus to strike down paragraph 10A of the Symbols Order as violative of Article 14 of the Constitution of India;
(b) A writ of mandamus or a writ order or direction in the nature of mandamus to direct the respondent to bring the Symbols Order, notably paragraph 10A, in line with the requirement of Article 14 as set out hereinabove;
(c) A Declaration that paragraph 10A must be read down as set out hereinabove, in order to meet the requirements of Article 14;
(d) Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
It seems that the original petition came to be amended incorporating three new paragraphs. Two paragraphs are reproduced here (other amendments are only formal):
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9A. It is to be noted that under the prevailing political situation in India, Coalition Governments are the order of the day both at the Centre (for the last more than 16 years) and in most States. This has resulted in elections being increasingly fought by alliances of parties, so that in such electoral alliance, each party agrees to fight a lesser number of seats than what it would choose to fight on its own. Thus it becomes increasingly difficult for each such party to individually meet the recognition criteria laid down by the Election Commission in the (Amended) Symbols Order, wherein, in any event (by the introduction of paras 6A, 6B and 6C) the criteria for recognition have been enhanced. Even very big parties ruling are presently threatened with loss of their symbol. Such a result is not in consonance with the idea that elections must reflect the will of the people in all its variety.
9B. Even as of today with still a limited right to its symbol, the petitioner has been prejudiced by other political parties having been allotted its reserved symbol, whereby, it is the admitted position of the Election Commission, that its use by such other party is liable to cause confusion in the minds of the public while voting at elections (See Annexure P-6), which is the downloaded “Compendium of Instructions from the Election Commission of India to the State Election Commissions.”):
(a) In the 2002 elections to local bodies ion Andhra Pradesh, the Janata Party’s reserved symbol was actually allotted and utilized by another party the Telegu Rashtra Samiti, which has nothing to do with and does not share the ideals and principles of the Janata Party. The Janata Party’s objections were rejected by the order dt. 20.06.2003 of the Andhra Pradesh Election Commissioner, (appended hereto as Annexure P-7) which actually held:
The Symbol “Halder Within Wheel” has now become popular among the people as the symbol of TRS because of its participation in the elections
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(b) Again in the 2003 elections to local bodies in Kerala, the Janata Party’s symbol was put on the List of Free Symbols (Annexure A-8 hereto); and was allotted to independent candidates.
If this is the position, even when the Janata Party can avail of the concession of Paragraph 10A the situation is bound to deteriorate when the concession is no longer available.
(3) The petitioner contended in this writ petition that Janata Party was a recog- nized national political party and thus had a reserved symbol of Chakra Haldar. The said Janta Party lost its status as a national party because of its poor performance in General Elections in 1996 and by an order dated 27.9.2000 of the Election Commission, it ceased to be a recognized political party. It is not disputed that the order dated 27.9.2000 has become final and has been upheld right upto this Court. Being a recognized political party of a national and/or State stature it had a reserved symbol being Chakra Haldar, i.e. a farmer carrying Plough within a wheel. As a result of its de-recognition as a recognized political party it lost its right to have exclusive symbol, more particularly due to the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as “the Symbols Order”). The said Symbols Order owes its existence to a Standing Order No. 2959 dated 31st August, 1968 and is passed in exercise of powers conferred by Article 324 of the Constitution of India read with Section 29A of the Representation of People Act, 1951 (43 of 1951) and Rules 5 and 10 of the Conduct of Elections Rules, 1961. It deals with the symbols of the political parties.
(4) Before this writ petition was filed, on losing the reserved symbol, as a result of its de-recognition as a recognized political party, the appellant had approached the Election Commission insisting upon the continuance of the reservation of the aforementioned symbol of Janata Party. As has already been pointed out, after the derecognition of Janata Party as a recognized party, a Special Leave Petition being SLP (C) No. 20807 of 2000 was filed in this Court. In this SLP the only challenge was to the de- recognition order dated 27.9.2000. However, during the pendency of this SLP, on 1.12.2000, by notification No. 56/2000/Jud.III the Election Commission amended the Symbols Order and among other amendments inserted
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Clause 10A therein. This Court dismissed the aforementioned SLP on 15.1.2001 in limine. The decision of de-recognition of Janata Party has, therefore, become fait- accompli.
(5) The appellant thereafter approached to the Election Commission complaining mainly against Clause 10A in 2001 (the date of this complaint is not known) as due to that provision the symbol of Janata Party could have a limited life of six years only while the appellant wanted to retain that symbol permanently for this party. The appellant was invited by the Election Commission to submit his proposals in respect of the symbol problem of de-recognised party which had earlier enjoyed the privilege of an exclusive symbol. There was then an inexplicable lull for about 4 years. The appellant claims that on 26.2.2005 he suggested that the Symbols Order should be amended so as to enable the once recognized political parties of national or State level to retain their reserved symbols permanently. On 14.7.2005 this proposal was refused by the Election Commission relying on the judgment of this Court in Janata Dal Samajwadi v. Election Commission AIR1996SC577 . This prompted the appellant to file a writ petition in the High Court which writ petition came to be dismissed necessitating the present SLP.
(6) The whole attack of the petitioner was thus directed against Clause 10A which was added by amendment of Election Symbols (Reservation and Allotment) Order, 1968 as back as on 1.12.2000 in the writ petition as also during the argument before the High Court. The basis of the argument before the High Court was the voice of arbitrariness of that provision inasmuch as it allowed a period of 6 years (only) as a grace period to retain its symbol which was earlier rightfully reserved for it, even after the said party lost its status, as a recognized party due to its dismal performance, in national or State election. The same stance is now taken before us by Dr. Swamy having failed to convince the High Court on that issue. In addition Dr. Swamy urges that a direction should issue from this Court to amend the said Clause 10A suitably.
(7) To appreciate the contentions raised during an elaborate debate before us it would be better to consider some relevant provision of the Symbols Order, as it stands now, along with the provisions of Representation of Peoples Act and Rules there under and other allied provisions.
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(8) Under Article 324 of the Constitution, the Election Commission is empowered to frame its Regulations. Rules 5(1) and 10(4) of the Representation of Peoples Act, 1950 provide that every candidate at an election shall be allotted a different symbol subject to such restriction as the Election Commission may specify. In exercise of its plenary power of superintendence, regulation and control of elections to Parliament and State legislatures under that Article the Election Commission has promulgated the said Symbol Order as early as in 1968. History tells us that though the first election was held in 1951 immediately after the constitution, there was no such regulation on the anvil. Perhaps the multiplicity of the political parties in the after years necessitated promulgating the Symbols Order. The Preamble of the Order should open a window for us ushering in some light for the proper interpre- tation thereof.
AN ORDER
To provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith.
S.O. 2959, dated the 31st August, 1968 - WHEREAS, the superintendence, direction and control of all elections to Parliament and to the Legislature of every State are vested by the Constitution of India in the Election Commission of India;
AND WHEREAS, it is necessary and expedient to provide, in the interest of purity of elections to the House of the People and the Legislative Assembly of every State and in the interest of the conduct of such elections in a fair and efficient manner, for the specification, reservation, choice and allotment of symbols, for the recognition of political parties in relation thereto and for matters connected therewith.
NOW, THEREFORE, in exercise of powers conferred by Article 324 of the Constitution [read with Section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10 of Conduct of Elections Rules,
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1961 and all other powers enabling it in this behalf, the Election Commission of India hereby makes the following Order.
Seeing following provisions would be apposite:
2(h) “political party” means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951;
2(2) The General Clauses Act, 1897 shall, as far as may be, apply in relation to the interpretation of this Order as it applies in relation to the interpretation of a Central Act.
5. Classification of Symbols (1) For the purpose of this Order Symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognized political party for exclusive allotment to contesting candidates set up by that party.
(3) A free symbol is a symbol other than a reserved symbol.
6. Classification of Political Parties - (1) For the purposes of this order and for such other purposes as the Commission may specify as and when necessity therefore arise, political parties are either recog nized political parties or unrecognized political parties.
(2) A recognized political party shall either be a National Party or a State party.
6A. Conditions for recognition as a National party - A political party shall be treated as a recognized National Party, if, and only if, -
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either (A)(i) the candidates set up it, in any four or more States, at the last general election to the House of People, or to the Legislative Assembly of the State concerned, have secured not less than six percent of the total valid votes polled in their respective States at that general election; and (ii) in addition, it has returned at least four members to the House of the People at the aforesaid last general election from any State or States;
or (B)(i) its candidates have been elected to the House of the People, at the last general election to that House, from at least two percent of the total number of parliamentary constituencies in India, any fraction exceeding one-half being counted as one; and (ii) the said candidates have been elected to that House from not less than three States.
6B. Conditions for recognition as a State party - A political party, other than a National party, shall be treated as a recognized State Party in a State or States, if, and only, if -
either (A)(i) the candidates set up by it, at the last general election to the House of the People, or to the Legislative Assembly of the State concerned, have secured not less than six percent of the total valid votes polled in that State at that general election; and (ii) in addition, it has returned at least two members to the Legislative Assembly of the State at the last general election to that Assembly;
or (B) it wins at least three percent of the total number of seats in the Legislative Assembly of the State, (any fraction exceeding one-half being counted as one), or at least three seats in the Assembly, whichever is more, at the aforesaid general election.
6C. Conditions for continued recognition as a National or State Party - If a political party is recognized as a National party under paragraph 6A, or as a State party under paragraph 6B, the question whether it shall continue to be so recognized after any subsequent general election to the House of the People or, as the case may be, to the Legislative Assembly or the State
27 “No voter to be left behind”
concerned, shall be dependent upon the fulfilment by it of the conditions specified in the said paragraphs on the result of that general election.
7. Savings and Interpretation (1) Notwithstanding anything contained in paragraphs 6A, 6B or 6C, if any political party stands recognized, immediately before the commencement of the Election Symbols (Reservation and Allotment) Amendment Order, 2000, either as a National party or as a State Party in some State or States, the said party shall continue to have and enjoy the status of such National or State party for the purposes of the next general elections, to be held after the commencement of the said Order, to the House of the People or, as the case may be, to the Legislative Assembly of the State concerned, and its continued recognition as such National or State party shall thereafter be dependent upon the fulfilment by it of the conditions specified in paragraph 6A or, as the case may be, paragraph 6B.
8. Choice of Symbols by candidates of National and State Parties and allotment thereof -
(1) A candidate set up by a National Party at any election in any constituency in India shall choose, and shall be allotted, the symbols reserved for that party and no other symbol.
(2) A candidates set up by a State Party at an election in any constituency in a State in which such party is a State Party, shall choose, and shall be allotted the symbols reserved for that party in that State and no other symbol.
(3) A reserved symbol shall not be chosen by, or allotted to, any candidate in any constituency other than a candidate set up by a National Party for whom such symbol has been reserved or a candidate set up by a State Party for whom such symbol has been reserved in the State in which it is a State party even if no candidate has been set up by such National or State Party in that constituency.
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10A Concession to candidates set up by an unrecognized party which was earlier recognized as a National or State party - If a political party, which is unrecognized at present but was a recognized National or State party in any State or Union Territory not earlier than six years from the date of notification of the election, sets up a candidate at an election in a constituency in any State or Union territory, whether such party was earlier recognized in that State or Union territory or not, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved earlier for that party when it was a recognized National or State party, notwithstanding that such symbol is not specified in the list of free symbols for such State or Union territory, on the fulfilment of each of the following conditions, namely:
(a) that an application is made to the Commission by the said party for the exclusive allotment of that symbol to the candidates set up by it not later than the third day after the publication in the Official Gazette of the notification calling the election;
(b) that the said candidate has made a declaration in his nomination paper that he has been set up by that party at the election and that the party has also fulfilled the requirements of Clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and
(c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment:
Provided that nothing contained in this paragraph shall apply to a candidate set up by the said party at an election in any constituency in a State or Union Territory where the same symbol is already reserved for some other National or State party in that State or Union Territory.
(9) In support of his plea Dr. Swamy firstly pointed out that Janata Party which came in existence in the year 1977 was once upon a time a ruling party in the Parliament and was also a recognized State Party in number of States. He impressed
29 “No voter to be left behind” upon us that thereafter also it continued to be a recognized party and had retained its symbol throughout for fairly long period of over 20 years without any interruption and it was only in the year 2000 when it lost its recognition, it faced the threat of losing the reserved symbol of Chakra and Haldar. According to Dr.Swamy, the said symbol had gone into the psyche of the public for a long period of over two decades and as such there was no justification in firstly depriving the Janata Party of that symbol and secondly allowing only six years as a concession period. This, according to Dr. Swamy, was an arbitrary exercise and the said provision of Clause 10A suffered from arbitrariness and, therefore, did not pass the acid test of Article 14 of the Constitution of India. Dr.Swamy also adds that to deprive a political party of its symbol would amount to an undemocratic act.
(10) Dr.Swamy also very earnestly urged that the symbol was conceived after a considerable intellectual exercise and thus became an intellectual property which could not be taken away by a legislation and at any rate a provision like the impugned provision and providing only six years’ time for its retention with the Janata party would not be justifiable. In short Dr. Swamy contends that “once a symbol always a symbol.
(11) As against this Ms. Meenakshi Arora, learned Counsel appearing on behalf of the Commission firstly supported the High Court judgment and pointed out that the petition suffered from basic defects, which were of vital nature. Learned Counsel also took us through the historical background of Symbols Order and pointed out that the symbol was integrally and inextricably connected with the concept of recognition of the party and since the appellant had never challenged and indeed could not so challenge the de-recognition of Janata Party as a recognized political party, there was no question of it being allowed to insist on a reserved symbol which was the prerogative only of the recognized political party. She further took us through the aforementioned provisions and pointed out that the Symbols Order recognize only two kinds of symbols, they being, the reserved symbols and free symbols and, therefore, once the party had lost its reserved symbol, it could be only treated as a free symbol available to one and all without any exclusivity attached to it. She further points out that in effect the appellant or as the case may be, his party, took benefit of the provisions of Clause 10A for more than six years and it was only when it came on
30 “No voter to be left behind” the brink of losing the reserved symbol that the appellant approached the court and thereby the appellant was not only guilty of latches but of impropriety also. Learned Counsel took us through a few decisions of this Court, which we shall consider in the latter part of this judgment.
(12) On this backdrop we have to decide this ticklish question of the right of Janata Party to permanently retain its symbol. There can be no doubt that a symbol particularly in case of an established political party is not only having a political implication but has also an emotional angle attached to it. This is apart from the fact that in India large population of which is rural, uneducated or at time illiterate, the electorate would naturally have a tendency to identify a party or its candidates by its symbols. It is perhaps for this reason that the political parties zealously guard their symbol. But the basic question is whether a political party can be deprived of its symbol under such scenario and would such deprivation amount to an undemocratic step as urged by appellant. In our opinion though the matter of symbol is extremely sensitive one for a political party, it should be or remain to be firstly a political party.
(13) A “political party” is defined in Section 2(h) as an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of People Act, 1951 (hereinafter referred to as “RP Act, 1951”). That Section mandates that an application has to be made to the Election Commission for registration of any party who wants to avail of the provisions of Part IVA. This application must contain the information as provided under Sections 4(a) to (g) which information includes, amongst others, the numerical strength of its members of various categories as also its representatives in House of Parliament or any State Legislature. Such application must accompany the Rules and Regulations for its internal functioning. Sub-section (7) empowers the Election Commission discretion to register such political party or to refuse the registration. One very important aspect is that vide Section 29B every political party may accept voluntary contribution, donations or subscriptions etc. So also Section 29C provides that the political party must prepare a report in respect of the contributions received by it and such report shall be submitted to the Election Commission. Tax relief is also provided under that Section. There is no doubt that Janata Party is such a registered political party under Section 29A. The Section clearly shows that a political party
31 “No voter to be left behind” must, therefore, have followings. One cannot imagine a political party without any substantial following.
(14) As has been pointed out by Ms.Arora for good long 17 years there was no concept of a recognized political party as till then there was no Symbols Order. It came on the anvil only on 31st August, 1968. The purpose of bringing in existence this Symbols Order was to maintain the purity of elections so that elections should be conducted in a fair and efficient manner as also for specification, reservation, choice and allotment of symbols as also for the recognition of political parties in relation to the symbols. The Preamble suggests, among other things, that there was a need to recognise the political parties for the purposes of specification, reservation, choice and allotment of symbols. This has probably become necessary on account of firstly increase in the number of parties on political stage of India as also because of the emergence of the State parties. It must be immediately remembered that till then the Symbols were being granted in keeping with the tradition of a particularly party having a particular symbol but there was a complete absence of any Rules on such a sensitive aspect like symbols. This emergence of large number of political parties on the national and local levels and their interest in the elections necessitated bringing of the Symbols Order. A new concept of a recognized political party came on the anvil via this Symbols Order. Clause 5 of the Symbols Order is extremely significant and recognized only two kinds of symbols, they being reserved symbols and free symbols. The reserved symbols are necessarily reserved for the exclusive allotment to the candidates of a recognized political party whereas all other sym- bols are free symbols. Clause 6 is extremely important inasmuch as it introduces for the first time, a classification of political parties as recognized political parties and unrecognized political parties. It must be remembered that there are only two classifications provided by Clause 6. Clause 6A, 6B and 6C provide for the condition of recognition of a political party on the national and/or State level. We need not, at this stage, go into the intricacies of Clauses 6A, 6B and 6C but suffice it to say that in order to have that status, the said political party must be an effective political party in the sense that it must share a particular percentage of votes in the national or the State level elections or it must have certain number of elected representatives in Lok Sabha or the State Legislatures. It is this concept which introduces that in order to be a recognised political party; it must perform well in the elections and
32 “No voter to be left behind” thereby pass the acid test of “following”. Therefore, unless there is a following of the nature provided in Clauses 6A, 6B and 6C, the political party does not remain a recognized political party. Once this position is clear, the other extremely important position which has to be considered is that a reserved symbol is available only for the recognized parties. Thus, there is a bond created between recognized political party and its symbol.
(15) Learned Counsel for the respondent is undoubtedly correct in arguing that concept of recognition is inextricably connected with the concept of symbol of that party. It is but natural that a party must have a following and it is only a political party having substantial following in terms of Clauses 6A, 6B and 6C would have a right for a reserved symbol. Thus, in our opinion, it is perfectly in consonance with the democratic principles. A party which remains only in the records can never be equated and given the status of a recognized political party in the democratic set up. We have, therefore, no hesitation in rejecting the argument of Dr.Swamy that in providing the symbols and reserving them for the recognized political parties alone amounted to an undemocratic act.
(16) This takes us to the next leg of arguments that Clause 10A suffers from arbi- trariness in providing only six years of additional period to retain its symbol even after a particular political party loses its status as a recognized political party. Dr. Swamy very fairly conceded that he has no quarrel, at least at this stage, against the derecognition of Janata Party as recognized political party and indeed he could not have any grudge since this Court has repelled the challenge to the decision taken by the Election Commission for such a derecognition. We are, therefore, left with a limited challenge to the constitutionality of Clause 10A.
(17) According to Dr.Swamy there was no rationale in providing only six years under Clause 10A and he wondered as to why the period should be limited only to six years. We do not see any irrationality or arbitrariness in providing six years’ time as an additional period for retaining the exclusive symbol for the simple reason that within that period there is bound to be one or more general elections on the national level. So also, if any political party has lost its status in the State Elections, apart from the fact that upto the next general elections, it will not lose the said symbol, there is
33 “No voter to be left behind” bound to be another opportunity by way of fresh elections within six years. It is on this rationale that the period of six years is provided. This is apart from the fact that in case of Janata Party it continued to have and enjoyed the status of said national or State party for the purposes of next general elections due to the saving Clause vide Clause 7. Under such circumstances providing of six years period in Clause 10A appears to be perfectly reasonable and cannot be said to suffer from the vice of arbitrariness. In the earlier paragraphs we have already indicated that the theory of continuance and permanent reservation of a particular symbol for a particular political party cannot stand on the ground that after passing of the Symbols Order, the concept of recognition of a political party and the concept of a reserved sym- bol for that party must be treated to have amalgamated. A plain reading of the provisions would bring out only that result.
(18) The appellant then urged that we should read down the provisions of Clause 10A so as to avoid the mention of six years in Clause 10A. In our considered opinion such an exercise is not possible where the language of the provision is clear, admits of no doubt and no situation warrants such reading down. Such reading down and thereby ignoring the limit of six years as provided in the clause would render other provisions nugatory. Apart from that such reading down would lead to absurdity in the wake of other provisions. At this juncture we must point out that in this writ peti- tion there is no challenge to Clause 5(2) which specifically provides that a reserved symbol is a symbol which is reserved for a recognized political party for exclusive allotment to the contesting candidate set up by that party. Clause 6 classifies, for the first time, the “political party” in recognized political party or unrecognized political party. Reading these clauses together it becomes very clear that firstly the reserved symbol is meant only for recognized political party for its exclusive user. Again the second inference which comes out of such conjoint reading of two provisions is that if a particular symbol is not a reserved symbol, meaning thereby that it is not meant for a recognized political party, such symbol automatically become a free symbol. There is no challenge to this concept nor is there any challenge to the constitutional validity of Clauses 5 and 6. In the absence of any challenge to the constitutional validity of Clauses 5 and 6, the challenge to Clause 10A must necessarily fail. It is for this reason that we have quoted the relief clauses in the writ petition at the beginning of the judgment in para 2 above, the reading of which clearly suggests
34 “No voter to be left behind” that barring Clause 10A, the petitioner has not chosen to challenge any other clause of this Symbols Order. It is perhaps because of this absence of challenge that Dr. Swamy wants us to read down the impugned provisions of Clause 10A.
(19) It is trite law that a statute must be read as a whole in its context. We must, therefore, read the provisions of Clause 10A in the light of other provisions, namely, Clauses 5, 6, 6A, 6B and 6C. If we read down the provisions ignoring the limit of six years, an absurdity would creep in vis-à-vis Clauses 5 and 6. In that case a political party which is not any more a political party, would still continue to have a reserved symbol in total derogation to the language of Clauses 5 and 6. Such a course is not permissible. We would have to interpret Clause 10A in the light of other connected provisions. This Court in Philips India Ltd. v. Labour Court, Madras and Ors. (1985)IILLJ33SC observed in para 15 as under:
“No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as `elementary rule’ See Attorney General v. Bastow (1957) 1 All ER 497 and as a `settled rule’ see Poppatlal Shah v. State of Madras 1953CriLJ1105. The only recognized exception to this well laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: “it is most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expressthe meaning of the makers” Quoted with approval in Punjab Beverages Pvt. Ltd. v. Suresh Chand: (1978)IILLJ1SC .
Clause 10A, therefore, cannot be interpreted in isolation as prayed for by the appellant. It has to be read in terms of other connected provisions like Clauses 5, 6, 6A, 6B and 6C and also the objects on the Preamble which also has been quoted by us above. The conjoint reading of all this would clearly bring out a position that Clause 10A would have to be read and interpreted so that it does not harm the other provisions of statute.
35 “No voter to be left behind”
(20) Again this Court in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. [2001]1SCR221, the Constitution Bench of this Court in paragraph 21 has made the following observations:
“...though it is no doubt true that the court would be justified to some extent in examining the materials for finding out the true legislative intent engrafted in a statute, but the same would be done only when the statute itself is ambiguous or a particular meaning given to a particular provision of the statute would make the statute unworkable or the very purpose of enacting the statute would get frustrated. By no stretch of imagination, would it be open for a court to expand even the language used in the Preamble to extract the meaning of the statute or to find out the latent intention of the legislature in enacting the statute. As has been stated earlier....”
These observations would succinctly bring out a position that since the language of Clause 10A is extremely clear and its plain meaning does not, in any manner, bring out any absurd results, we would have to rely upon the plain meaning which is the only meaning emerging out of the plain language of the provision. It is for this reason that we were not in a position to read downs the provision so as to ignore the words “six years” in Clause 10A.
(21) Another argument which was pressed into service was that Clause 8 should recognize a third category, i.e., a party which was once a recognized party but has lost its status as such so that it retains its old symbol for ever and can rightfully claim it. That clause makes it mandatory that a candidate set up by a national party shall chose the symbol reserved for that party and no other symbol. So also a candidate set up by the State party shall chose and shall be allotted only the symbol allotted to that party and no other symbol. Clause 8(3) provides that a reserved symbol shall not be chosen by or allotted to any candidate other than a candidate set up by the national party or a State party for whom such symbol has been reserved. The provi- sion is extremely clear. Dr. Swamy, however, wanted us to create a third category as has been stated earlier. That is not possible. If the arguments were to be accepted, then we would have to read something which is not there in the provisions and this includes Clauses 5, 6 and 8 as also the impugned Clause 10A. Such an exercise
36 “No voter to be left behind” would amount to this Court treading dangerous path of legislature. We do not think that such a course is possible. We are, therefore, not inclined to accept that argu- ment.
(22) That leaves us with the last argument that the symbol amounts to a property and, therefore, a political party cannot be deprived of its property. The argument must be rejected at the outset as the symbol can never have even the traces of the concept of a property.
(23) It may be that a recognized political party would have a right of exclusive use of the symbol but the Symbols Order makes it very clear that such right to use the symbol can be lost with the dismal performance of the party. In a reported decision in Sh. Sadiq Ali and Anr. v. The Election Commission of India, New Delhi and Ors. [1972]2SCR318 this Court was considering the controversy regarding the symbols “of two bullock with yoke on” which was claimed by two splitted groups of the Congress Party. The Court observed that:
“The answer to this contention is that the result of differences and dissensions, a political party may be split into two or more groups but the symbol cannot be split. It is only one of the rival sections or groups, as is held to be that political party under paragraph 15, which would be entitled to the use of the symbol in the elections while the other section or group would have to do without that symbol. It is not permissible in a controversy like the present to dissect the symbol and give one out of the two bullocks represented in the symbol of the Congress to one group and the other bullock to the other group. The symbol is not property to be divided between co-owners. The allotment of a symbol to the candidates set up by the political party is a legal right and in case of split, the Commission has been authorized to determine which of the rival groups or sections in the party, which was entitled to the symbol.”
The observations are more clear than necessary to repel the contention raised by Dr. Swamy. A symbol is not a tangible thing nor does it generate any wealth, it is only the insignia which is associated with the particular political party so as to help the millions of illiterate voters to properly exercise their right to franchise in favour of the
37 “No voter to be left behind” candidate of their choice belonging to a particular party. In the election process, it is not merely the individual candidate’s personality or his identity that weighs with the voters. It is undoubtedly a very relevant factor but along with it the voter also can and does vote in favour of the party. It is under such circumstances that the sym- bol becomes relevant and important. However, all that it provides is the essential association that it has with a particular party. The concerned party would have a legal right to exclusively use the same but that is not, in our considered opinion, a property of the party and, therefore, the Election Commission, which is required to ensure free, fair and clean elections have every right to deprive a particular party with a dismal performance of that symbol. The Election Commission puts a clamp on the right of such a political party to use the symbol rightfully. We are, therefore, not in a position to accept the argument that symbol is a property of a party and, therefore, such property cannot be taken away from that political party. The symbol may be an outcome of intellectual exercise but it does not become an “intellectual property” which concept has monetary implications. In case of a political party as contemplated in Symbols Order, monetary angle is conspicuously absent.
(24) This takes us to the other argument by Dr. Swamy. He contends that even if Janata Party because of its dismal performance has lost the right to use the exclusive symbol which right it enjoyed for more than 20 years, yet its symbol does not automatically become a free symbol unless it is specifically included in the list of free symbols by the Election Commission. Under the Election Rules there is a list of free symbols from which the candidates selected by a particular party or inde- pendent candidates can chose the symbol. Dr. Swamy urges that in case of the split in Congress Party the symbol of the National Congress Party of “two bullocks and the yoke on” and even the subsequent symbol of one of the groups of the Congress Party, i.e., “a cow with calf” have not been included in the list of free symbols and are frozen. He further points out that even after the derecognition of Janata Party such symbol of Chakra and Haldar was allotted from amongst the free symbols. He argues that there is always a glorious uncertainty on the political horizons and the possibility of Janata Party performing well again in future cannot be ruled out which would depend on the political scenario then in existence and in that case Janata Party would suffer grave prejudice and, therefore, the Election Commission should freeze this symbol and this symbol should not be given as a free symbol. We would
38 “No voter to be left behind” have ordinarily considered this argument which is attractive, however, it is not the prayer in the Writ Petition nor was it even argued before the High Court. Therefore, instead of expressing anything on this subject, we would leave it open to the appel- lant to raise this question before the Election Commission. In fact we have not come across any particular provision in the Symbols Order to freeze a particular symbol. However, it will be for the Election Commission in case the petitioner chooses to go before the same to take a decision in that behalf. We leave it at that.
(25) Since we have considered the questions broadly which are undoubtedly important questions in the Indian scenario, we do not want to go into the hyper technical question as to whether the appellant could have raised the grievance on behalf of the Janata Party in the absence of any formal Resolution empowering him to do so. We choose not to go into that question in view of the importance of the question otherwise.
(26) Considering the overall situation we confirm the judgment of the High Court and hold that the petition as it was presented was liable to be dismissed and was rightly dismissed. This would be of course subject to the liberty we have given to the appellant to raise the additional question about the freezing of the symbol.
(27) Under the circumstances there shall be no costs.
39 “No voter to be left behind”
JUDGMENT-4 HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARAWAD Criminal Petition Nos. 8070, 8071, 8072, 8073 And 8074 of 2010 (Decision dated 08/09/2010)
Deputy Commissioner & District Election officer, Bellary...... ……..….Petitioner (common in all Crl. Ps.) Versus State of Karnataka, By police Sub-Inspector, Cowl Bazar Police Station (common in all Crl. Ps.) And 24 others (accused in the Crl. Cases)...... ………..Respondents
Code of Criminal Procedure, 1973- Sec. 321- withdrawal from prosecution-informant who files criminal case has ‘locus standi’ to oppose the application for withdrawal of the criminal cases filed by the State Govt. HELD-The action of the magistrate ( trial court) giving the complainant an opportunity of being heard in the matter of withdrawal of the case from prosecution did not amount to exercise inherent powers which are not vested in him or any illegality committed by the magistrate. (Para 68)
40 “No voter to be left behind”
SUMMARY
OVERVIEW OF THE CASE: The Chief Electoral Officer, Karnataka has informed that the First Additional JMFC, Bellary passed the order on 29/08/2009 in C.C No. 586/2008:
“Election Commission of India has locus standi to appear and contest petition u/s 321 of the Cr. P. C. filed by the prosecution.”
This order has been challenged by the prosecution by filing the aforemen- tioned appeals before the Principal district and Session Judge, Bellary. The Commis- sion’s counsel appeared before the Court on behalf of the Commission.
The Chief Electoral Officer, Karnataka had informed that the Govern- ment of Karnataka has taken a decision to withdrawcertain cases from prosecution inspite of disapproval from the Law Department. The reason with respect to this objection was that if the cases filed during elections would be withdrawn, then it will encourage electoralviolations and malpractices in the future. Thus, it was considered by the Commission to file a writ petition in the Karnataka High Court against the decision of the Government of Karnataka to withdraw the cases. The judgment of the same is summarised below.
SUMMARY: The criminal petitions were filed under section 482 of the Code of Criminal Procedure (CrPC) by the Deputy Commissioner & DistrictElection officer, Bellary, challenging the common order passed by the ‘Revisional Court’ of the Prin- cipal District and Sessions Judge, Bellary, setting aside the orders passed by the trial court in the concerned criminal cases that the petitioner-informant has ‘locus standi’ to oppose the applications filed under section 321 Cr.P.C. by the Assistant Public Prosecutor, on behalf of the State Govt., seeking consent of the Trial Court for withdrawal of criminal cases launched against the respective accused therein for the offences of bribery under Section 171 E of IPC and for unauthorized disfigurement of public places open to public view under section 3 of Karnataka Open Spaces (Prevention of Disfigurement) Act, 1981 during conduct of elections to the assembly
41 “No voter to be left behind” constituencies in Bellary district at the time of general election to Karnataka Legisla- tive Assembly held in the year 2008.
The learned addl. Advocate general (AAG) appearing on behalf of the state placed reliance on judgements in 22(twenty-two) criminal cases pronounced by the supreme court and various High Courts to support the view taken by the Revisional court but the learned judge of the Karnataka High court did not consider any of those decisions relevant to the instant case as the question of locus standi of the informant in a criminal case, who sets criminal law in motion, to oppose the withdrawal application was not considered in any of the judgements cited.
In the case of Sheonandan Paswan Vs. the State of Bihar (AIR 1983 SC 194) on which strong reliance was placed by the AAG, the court held that no law was laid down by the majority view pronounced by the Hon’ble Supreme Court in that case that the informant in a criminal case has no ‘Locus Standi’ to oppose the application filed under Section 321 Cr.P.C. seeking consent of the court for its withdrawal.
The learned Judge relied on the subsequent decisions of the Hon’ble Supreme Court in V.S. Achuthanandan Vs. R. Balakrishna Pillai and others (AIR 1995 SC 436); J.K. International (AIR 2001 SC 1142) and National Human Rights Commission [(2009) 6 SCC 767] and held that the petitioner-informant has locus to oppose the withdrawal application before the learned Magistrate.
The learned counsel for the respondents-accused strongly contended that passing of any order by the sub-ordinate criminal court without there being any specific provision in the Cr.P.C for passing such order amounts to exercise of inherent powers under Section 482 of Cr.P.C. that is vested only in the High Court.
In this context, the learned judge referred to the law laid down by the Hon’ble Supreme Court in the case of Bhagwant Singh Vs. Commissioner of Police and another ( AIR 1985 SC 1285) and Gangadhar Janardan Mhatre Vs. state of Maharashtra and others ( AIR 2004 SC 4753) by which it gave its approval to the passing of some orders by the Magistrates, like, dismissing complaint/criminal
42 “No voter to be left behind” proceedings for non-prosecution; issuing of notice to the informant/ complainant giving opportunity of being heard before the Magistrate accepts the ‘B’ summary report filed by the police before it even though there is no specific provision under Cr.P.C. for passing such orders and despite there being no inherent powers vested with them.
The court accordingly held that the action of the Magistrate (Trial Court) giving the informant-complainant an opportunity of being heard in the matter of withdrawal of the case from prosecution did not amount to exercise of inherent powers which are not vested in him or any illegality committed by the Magistrate.
The Hon’ble High Court allowed the criminal petitions filed under section 482 of Cr.P.C. by the informant-complainant Deputy Commissioner & District Election officer, Bellary; set aside the common order dated 05.06.2010 passed by the ‘Revisional Court’ of Principal District and Sessions Judge, Bellary, that the petitioner- informant has ‘no locus standi’ to oppose the applications filed under section 321 Cr.P.C. by the Assistant Public Prosecutor, on behalf of the state Govt., seeking consent of the Trial Court for withdrawal of criminal cases launched against the respective accused; restored the order dated 29.08.2009 passed by the Trial Court that the petitioner-informant has ‘locus standi’ to oppose the said withdrawal application filed by the APP and directed the learned Magistrate (Trial Court) to hear the arguments of the learned counsel representing the informant, consider the documents produced by him and then dispose of the said applications in accor- dance with law.
43 “No voter to be left behind”
JUDGMENT
Hon’ble Arali Nagaraj,Judge
Advocate for Petitioner:Sri. Sharat Dodwad, Advocate and Sri Krishna S. Dixit
Advocate for Respondent:Sri. K.M. Nataraj, Addl. Advocate General, Shri K.B. Adhyapak, Sri. Ravishankar and Shri G.B. Gundawade
(1) These five Criminal Petitions are filed under Section 482 of Code of Criminal Procedure by the same Petitioner viz., the Deputy Commissioner and District Election Officer, Bellary, who is the informant in C.C. Nos. 586, 589, 591, 593 and 594 of 2008 pending on the file of the learned I Additional JMFC, Bellary (hereinafter referred to as “Trial Court” for short), challenging the legality and correctness of the Common Order dated 05.06.2010 passed by the learned Principal Sessions Judge, Bellary hereinafter referred to as “Revisional Court” for short) in Crl. R.P. Nos. 137 to 141 of 2009 allowing the said revision petitions and thereby reversing the orders dated 29.08.2009 passed by the Trial Court in the said Criminal Cases. Common question of law is involved in all these petitions. Therefore, they are disposed of by this Common Order.
(2) The Trial Court, by its order dated 29.08.2009 passed in the said respective Criminal Cases, allowed the memo dated 03.08.2009 filed by the Petitioner- infor- mant seeking its permission to submit his arguments opposing the application that was filed by the learned Assistant Public Prosecutor under Section 321 Code of Criminal Procedure (hereinafter referred to as “APP” for short) in each of the said cases, seeking consent of the Trial Court for withdrawal of the said cases launched against the respective accused therein, holding that the Petitioner-informant has ‘locus standi’ to oppose the said applications filed by the learned APP.
(3) Aggrieved by the said orders of the Trial Court, the prosecution (Respondent State herein) filed the said Criminal Revision Petition Nos. 137 to 141 of 2009 before the Revisional Court. By its Common Order dated 05.06.2010, the Revisional Court
44 “No voter to be left behind” allowed all the said revision petitions and set aside the orders of the learned Trial Court impugned therein holding that the Petitioner-informant has no ‘locus standi’ to oppose the said applications filed by the learned APP under Section 321 of Code of Criminal Procedure. Aggrieved by the said Common Order of the Revisional Court, the present petitions are filed under Section 482 of Code of Criminal Procedure
(4) The Petitioner herein, who is the informant in the said cases, filed his complaint before the SHO Cowl Bazaar P.S. in Bellary City against the respective accused for the offences under Section 171E of IPC and under Section 3 of Kar- nataka Open Spaces (Prevention of Disfigurement) Act, 1981. After completion of investigation, charge-sheet came to be filed in the said Criminal Cases for the said offences against the respective accused therein.
(5) Before the plea of the accused could be recorded in the said cases, the learned APP filed his application dated 17.07.2009 under Section 321 Code of Criminal Procedure in each of the said cases seeking consent of the Trial Court for withdrawal of the said cases from prosecution.
(6) Thereafter, on 03.08.2009, the Petitioner, who is the informant in all the said cases, filed his memo in each case seeking permission of the Trial Court to submit his arguments and also to produce documents in support of his arguments opposing the said application of the prosecution. That memo was seriously opposed by the learned APP and also by the respective accused therein on the ground that the Petitioner, though informant in the said cases, who set the criminal law in motion, has no ‘locus standi’ to oppose the said withdrawal applications.
(7) Since the very locus of the Petitioner-informant in opposing the withdrawal applications was seriously questioned, the Trial Court heard the arguments of both the sides on the question of locus of the Petitioner-informant and then, by its order dated 29.08.2009, passed in each of the said Criminal Cases, held that the Peti- tioner-informant has ‘locus standi’ to oppose the said applications. The Revisional Court, in Criminal Revision Petitions that were filed by the prosecution, took contrary view, allowed the said revisions and thereby set aside the orders of the Trial Court impugned therein.
45 “No voter to be left behind”
(8) I have heard the arguments of Shri. Krishna S. Dixit, learned Counsel for the Petitioner-informant; Shriyuths K.M. Nataraj, the learned Additional Advocate General, (hereinafter referred to as “AAG” for short) Shri K.B. Adhyapak, the learned Additional Government Advocate for the Respondent - State and Shri Ravishankar, the learned Counsel for the Respondents-accused in all these petitions. Perused both the orders of the TrialCourt and the Revisional Court.
(9) Having heard both the sides, the only point that arises for my consideration in all these petitions is:
Whether the informant in the said Criminal Cases (Petitioner herein), who set the criminal law in motion by lodging first information against the accused therein, has locus standi’ to oppose the application filed under Section 321 of Code of Criminal Procedure by the learned Assistant Public Prosecutor in each of the said Criminal Cases seeking consent of the Trial Court for withdrawal of the said Cases?
(10) In all the said revision petitions, the Respondent therein (the Petitioner herein) contended that the orders of the learned Trial Court, impugned in the said revisions, were ‘interlocutory orders’ and therefore, the respective criminal revisions challenging me correctness of the said orders were not maintainable. In view of that contention, the Revisional Court raised point No. 2 for its consideration which reads as:
Whether the order passed by the learned Magistrate is interlocutory order which bars the jurisdiction to interfere over the order under Section 397(2) of Code of Criminal Procedure.
After hearing both the parties on the said point, the Revisional Court answered it in the ‘negative’ holding that the said orders could not be termed as ‘interlocutory orders’ so as to bar revision under Section 397 of Code of Criminal Procedure This finding of the Revisional Court is not challenged by Sri. Krishna S. Dixit, the learned Counsel for the Petitioner herein, during his arguments in these petitions. Therefore, I need not consider the correctness or otherwise of the finding recorded by the Revi- sional Court on the said point.
46 “No voter to be left behind”
(11) Shri Krishna S. Dixit, learned Counsel for the Petitioner-informant, placing his strong reliance on several decisions of the Hon’ble Supreme Court and High Courts, contended that the Petitioner herein, being the Deputy Commissioner and District Election Officer, assigned with the duties of holding elections to the Legisla- tive Assembly Constituencies in Bellary District, lodged information before the police concerned alleging that the respective accused in the said cases committed the of- fences under Section 171E IPC and under Section 3 of the Karnataka Open Spaces (Prevention of Disfigurement) Act, 1981 and, on the basis of the said information, the police registered the crimes against the respective accused, conducted investigation and filed charge-sheets against them in the said Criminal Cases for the respective offences and therefore, the Petitioner has ‘locus standi’ to oppose the applications, filed by the learned APP under Section 321 of Code of Criminal Procedure seeking consent of the Trial Court for withdrawal of the said cases from prosecution, by plac- ing before the Trial Court, the relevant material showing that the said applications deserve to be rejected. He further contended that, though there is no specific provi- sion in Code of Criminal Procedure giving the informant in a criminal case a right of audience for opposing the withdrawal application filed under Section 321 Code of Criminal Procedure by the learned APP/Senior APP/Public Prosecutor, in the interest of justice, the informant deserves an opportunity of being heard on the question of giving consent by the Court for withdrawal of the case. He further contended that since there is no provision in Code of Criminal Procedure prohibiting such right of audience to the informant, natural justice requires that an opportunity to oppose the withdrawal application shall be given to the informant who sets the criminal law in motion by lodging information before the police.
(12) Per contra, Shri K.M. Nataraj, the learned Additional Advocate General (AAG), strongly contended that once the cognizance of an offence is taken by the Trial Court, the informant will have no say in conducting of the criminal case at vari- ous stages and therefore, the Petitioner, though informant, has no locus standi to op- pose the said applications filed by the learned APP seeking withdrawal of the said cases. He further contended that, the question, whether or not to give consent for withdrawal’, would be between the prosecution represented by the learned APP and the Court, a third person, though informant, or any of the Charge-sheet witnesses, despite being victim of the Crime, cannot be given any opportunity of being heard
47 “No voter to be left behind” in the matter and therefore, the Revisional Court has rightly reversed the orders of the Trial Court holding that the Petitioner - informant has no locus standi to oppose the said applications, hence the Common Order of the Revisional Court does not call for any interference in these petitions. He further contended that, in the entire scheme of the provisions in the Code of the Criminal Procedure there is no provision providing for any right of audience to the informant either while considering an application under Section 321 of Code of Criminal Procedure for withdrawal from prosecution, or at any stage of the case after cognizance of the offence is taken. He further contended that if such an opportunity is given to a third person either on the ground that he is informant or on the ground that he is victim of the crime or charge sheet witness, it amounts to interference by the third party in the proceedings of the case and therefore the Petitioner herein, though informant, cannot be heard in the matter of withdrawal of the said cases. He has relied upon as many as 30 decisions of Hon’ble Supreme Court and various High Courts in support of his contentions.
(13) It is not in dispute that the Petitioner herein has been the informant in all the said cases and that it is on the basis of the information lodged by him before the police concerned, criminal law came to be set in motion, investigation was conduct- ed and ultimately charge-sheet came to be placed by the said police in all the said criminal cases against the respective accused therein for the respective offences.
(14) Since only the question of ‘locus standi’ of the informant to oppose the ap- plication filed under Section 321 of Code of Criminal Procedure in the respective Criminal Cases is involved in all these petitions, I need not advert to the facts con- stituting the offences for which the accused therein are charge-sheeted; the merits or demerits of the applications that are filed by the prosecution through the learned APP under Section 321 of Code of Criminal Procedure Further, I need not also consider the authority of the learned APP to file the applications under Section 321 of Code of Criminal Procedure and the power of the Trial Court in either giving or declining to give consent for withdrawal of the said criminal cases from prosecution. Therefore, I have to focus only on the question ‘whether the Petitioner herein, being the infor- mant in all the said criminal cases, has ‘Locus Standi’ to oppose the said withdrawal applications.
48 “No voter to be left behind”
(15) Learned AAG, placing strong reliance on several decisions of Hon’ble Supreme Court and various High Courts, strongly supported the view taken by the Revisional Court that the Petitioner-informant has no locus standi to oppose the said applica- tions for withdrawal.
(16) In AIR 1924 Pat 283 (DB) (Guilt Bhagat v. Narain Singh), first of the deci- sions relied upon by the learned AAG, it is held that Section 494 (old Code), gives the Trial Court full jurisdiction to give or refuse consent and that the High Court will only interfere in revision if some question of jurisdiction is involved. It is further ob- served therein that the private prosecutor has no position at all in the litigation; the Crown is the prosecutor and the custodian of the public peace and if it decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance. It is further observed: “If, there- fore, in the present case, the Court has allowed the Public Prosecutor to withdraw the case upon insufficient or improper grounds, the Local Government is the only authority who can take action for the correction of that error.”
(17) Suffice it to say that the above observations of the High Court of Patna do not, in any way, relate to the ‘right of audience’ claimed by the Petitioner-informant while deciding the question of consent for withdrawal of the criminal case.
(18) Second of the decisions relied upon by the earned AAG is AIR 1952 Raj 42 (C.N.20) (Amar Narian Mathur v. The State of Rajasthan and Ors.). In the said case before the High Court of Rajasthan, the ‘right of private party to apply in revision’ was involved. On that question, the High Court held that private party has no locus standi to apply in revision against the order passed under Section 494 of Code of Criminal Procedure (old Code). This view of the Rajasthan High Court is quite con- trary to the view taken by the High Court of Andhra Pradesh in 1999 Cri.L.J. 3566 (M. Balakrishna Reddy v. Principal Secretary to Government, Home Department and Ors.), which is also relied upon by the learned AAG and which, according to him, is equally relevant decision to be considered by this Court. In the said decision, High Court of Andhra Pradesh has taken the view that ‘even a third party can approach the High Court under Section 397 Code of Criminal Procedure invoking revisional jurisdiction and challenge the order giving consent to withdraw the case’. Besides
49 “No voter to be left behind” this, the locus of the informant to oppose the application for withdrawal filed by the prosecution was not involved in the said case before High Court of Rajasthan. Therefore, the observations of High Court of Rajasthan in the said case, are also of no help to the Respondent - State.
(19) Third decision relied upon by the learned AAG is AIR 1980 SC 1510 (A) (Manohar Lal v. Bansi Lal and Ors.). In the said case before the Hon’ble Supreme Court, the question that fell for consideration was, ‘whether the Committing Magis- trate is competent to give consent to withdraw the case from prosecution despite the case being triable exclusively by the Court of Session. Therefore, it was observed by the Hon’ble Supreme Court, at para No.7 therein, as under:
Para.7. There is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provisions of the Code can exercise the power under Section 321, Code of Criminal Procedure. The power conferred by Section 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power of the Court to acquit or discharge the accused under some other provision of the Code. The power to discharge or acquit the accused under Section 321 is a special power founded on Section 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or to try the accused. Again, the expression “judgment” in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session.
Since the question of ‘locus of the informant’ in opposing the application for with- drawal was not considered by the Hon’ble Supreme Court in the said decision, the above proposition is also of no help to the Respondent -State.
(20) Fourth of the decisions relied upon by the learned AAG is 1991 Cri.L.J. 3211 (Kerala High Court), (Saramma Peter and Ors. v. State of Kerala). In the said case before the High Court of Kerala, ‘an application for withdrawal was filed by the complainant, but not by the prosecutor’. Therefore, the High Court of Kerala held that it was only the Public Prosecutor or the Assistant Public prosecutor in-charge of
50 “No voter to be left behind” the prosecution, who could file an application under Section 321 of Code of Crim- inal Procedure for withdrawal of the case and this power cannot be subject to the wishes of a third person even though he might be interested directly in the case. But it is not the case of the prosecution in the instant cases, that the informant himself filed the application for such withdrawal. It is not laid down in the said decision that the informant has no locus standi to oppose an application filed by the prosecution under Section 321 Code of Criminal Procedure Therefore,the said decision of the High Court of Kerala is also totally inapplicable to the present cases.
(21) Fifth of the decisions relied upon by the learned AAG is that of the Andhra Pradesh High Court in the case of M. Balakrishna Reddy and Ors. v. Principal Secretary to Government, Home Dept. and others reported in 1999 Cri.L.J. 3566. The question that was considered in the said case was, ‘whether a third party could invoke the jurisdiction of High Court’. Therefore, the High Court of Andhra Pradesh held that even a third party can invoke the jurisdiction of the High Court and even if a third party does not bring a matter to the notice of the High Court, still the High Court will have ‘suo motu’ power to call for and examine the records of any pro- ceedings. It is further held that this power is not only available to the High Court under Section 397, Code of Criminal Procedure (Section 435 in old Code), but also available to the High Court in terms of Article 227 of the Constitution of India. Suffice it to say that the said proposition cannot be made applicable to the present cases in considering the locus of the Petitioner-informant to oppose the withdrawal applications.
(22) Sixth of the decisions relied upon by the learned AAG is 2004 Cri.L.J. 747 (Delhi High Court) (Kiran Choudhary v. State). The facts of the said case were: “work- ers of two rival political parties were indulged in riotous conduct by pelting stones and damaging each other’s vehicles. Therefore, the accused were charge-sheeted in the said case. Trial was not yet commenced in spite of lapse of ten years. At that stage, the prosecution was sought to be withdrawn. Consent was also given. The matter was taken to the High Court.” On these facts, while considering the merits of the said application, legality and correctness of the order giving consent for with- drawal, the High Court held that if withdrawal was not allowed it could perpetuate enmity between two rival groups instead of maintaining peace and restoring cordial
51 “No voter to be left behind” relationship in the locality. The question of locus of the informant to oppose the with- drawal application was not considered by the High Court. Therefore, this decision is also of no help to the Respondent-State. (23) Seventh of the decisions relied upon by the learned AAG is 2003 Cri.L.J 2894 (Andhra Pradesh High Court) (K.V.V. Krishna Rao v. The State of A.P. and Ors.). Para No. 23 in the said judgment, on which reliance is placed by the learned AAG, reads as under:
Para. 23. The other contention of the counsel for the Petitioner is that the Petitioner is entitled to notice and since no notice was given before issuing the impugned G.O. the same is liable to be set aside. As already noticed, no notice is contemplated under Section 321 of Code of Criminal Procedure However, it cannot be understood that he cannot challenge the G.O. and it is always open to him to challenge the G.O. provided he could establish that there are gross violations of the conditions prescribed under Section 321 of Code of Criminal Procedure As already pointed out, in the instant case, there are no such violations. Hence, this contention also merits rejection.
From the above observations, it is clear that it was the contention of the Petitioner therein that no notice was given to him before the impugned G.O. for withdrawal of the case from prosecution was given and therefore, the Court made the above observations. Suffice it to say that the above observations are also not applicable to the facts of the instant cases.
(24) Eighth of the decisions relied upon by the learned AAG is: AIR 1996 SC 911 (C) (Thakur Ram and Ors. v.The State of Bihar). The learned AAG has placed strong reliance on Head Note (C) therein which reads as under:
(C) Criminal P.C. (5 of 1898), Section 435 - REVISION - Scope- Whether private party can invoke jurisdiction under section.
In a case which has proceeded on a police report a private party has no locus standi No doubt, the terms of Section 435 (old code) are very wide and he can
52 “No voter to be left behind”
even take up the matter suo moto. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it.Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.” (Para 9)
From the above observations of Hon’ble Supreme Court, it is clear that the question, ‘whether a private party can invoke revisional jurisdiction under Section 435 of old Code,’ was considered by the Hon’ble Supreme Court and, while considering the said question, the Supreme Court made the above observations. This being so, the above observations are totally inapplicable to the facts of the present cases inasmuch as the learned AAG has not been able to convince this Court as to how the Petitioner herein, who is none other than the Deputy Commissioner and District Election Officer, a public servant discharging his duties as Election Officer under the Election Commission of India, a Constitutional Functionary, could have any private vengeance against the accused in the said cases.
(25) In Ninth of the decisions relied upon by the learned AAG, i.e., in AIR 1957 SC 389 (The State of Bihar v. Ram Naresh Pandey and Anr.), the Hon’ble Supreme Court has held that Section 494 (old Code) is enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any permit. It is further observed that the function of the Court in granting its consent may well be taken to be a judicial function; it follows that in granting consent the Court must exercise a judicial discretion. It is also observed in the said decision that Public Prosecutor, though an executive officer, is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. These observations of Hon’ble Supreme Court do not, in any way, indicate whether the informant in a criminal case, who sets criminal law in motion, has locus to oppose the application for withdrawal of the case. Therefore, in my considered view, these observations are also of no help to the Respondent - State.
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(26) In tenth of the decisions i.e., in AIR 1977 SC 2265 (Balwant Singh and Ors. v. State of Bihar) relied upon by the learned AAG, the question ‘when the prose- cution can be withdrawn and the facts to be considered while dealing with such application’, fell for its consideration by the Hon’ble Supreme Court. I have gone through para No. 2 in the said decision which the learned AAG persuaded me to consider, I do not find any observation, in the said para, as to the question of locus of informant in opposing the application for withdrawal. Further, in eleventh of the decisions i.e., in AIR 1980 SC 423 (Subhash Chander v.The State (Chand.Admn.) and Ors.) relied upon by the learned AAG also the Hon’ble Supreme Court has not considered this aspect of the case though it has held that withdrawal of prosecution is within the exclusive powers of the Public Prosecutor and that his decision must be independent and not in obedience to directions from District Magistrate or higher authorities. The question of locus of the informant to oppose such application was not considered and decided in the said case. Therefore, I am of the considered view that both these decisions cannot be made applicable to the instant cases.
(27) Twelfth of the decisions relied upon by the learned AAG is 2006 Law Suit (SC) 815 (Ghanshyam v. State of Madhya Pradesh). At para No. 11, on which strong reliance is placed by the learned AAG, the Hon’ble Supreme Court has observed as under:
Para.11. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations.
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From the above observation, it is clear that while considering the merits of the appli- cation filed under Section 321 of Code of Criminal Procedure seeking withdrawal from prosecution, the Hon’ble Supreme Court made the said observation and, ulti- mately, held that the said application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations. Therefore, I am of the view that the above observations also are inapplicable to the present cases.
(28) In 2006 Cri.L.J. 148 (S.K. Shukha and Ors. v. State of U.P. and Ors.), the 13th of the decisions relied upon by the learned AAG, the Hon’ble Supreme Court has observed that in the matter of withdrawal from prosecution, the Public Prosecutor cannot act like post box or act on the dictate of the State Governments. Therefore, the said decision is also inapplicable to the present cases. Similarly, the 14th of the decisions relied upon by the AAG i.e., AIR 2008 SC 961 (Vijaykumar Baldev Mish- ra @ Sharma v. State of Maharashtra), wherein refusal of consent was considered by the Hon’ble Supreme Court, is also not applicable to the present cases.
(29) Fifteenth of the decisions relied upon by the learned AAG is AIR 2004 SC 4674 : (2004)7 SCC 338 [Adalat Prasad v. Rooplal Jindal and Ors.). In the said case, before the Hon’ble Supreme Court, the question was, “whether the Magistrate has jurisdiction to review his order issuing process passed by him pursuant to tak- ing cognizance of the offence”. While considering the said question, the Hon’ble Supreme Court held: After taking cognizance of the complaint and examining he complainant and the witnesses if Magistrate is satisfied that there is sufficient ground to proceed with the complaint, he can issue process by way of summons under Section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under Section 204 is, the satisfaction of the Magistrate, either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202, that there is sufficient ground for proceeding with the complaint to issue process under Section 204 of Code It is true that if a Magistrate takes cog- nizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Code of Criminal Procedure does not contemplate a review
55 “No voter to be left behind” of an order. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of Code.”
(30) Placing reliance on this decision of the Hon’ble Supreme Court, the learned AAG strongly contended that if the Magistrate affords an opportunity of hearing to the Petitioner-informant to oppose the application of the prosecution for withdrawal, it amounts to exercise of inherent powers under Section 482 of Code of Criminal Procedure which are not vested in the subordinate criminal Courts. I am not able to accept this contention for the reason that passing of an order by the Magistrate recalling his earlier order under Section 204 Code of Criminal Procedure issuing process against the accused, cannot be equated with the giving of an opportunity to the informant to submit his say in the matter of withdrawal from prosecution. There- fore I am of the considered view that this decision of Hon’ble Supreme Court also has no application to the instant cases.
(31) Sixteenth of the decisions relied upon by the learned AAG is:
AIR 1993 SC 1082 (C) : 1993 AIR SCW 423 (Union of India and Anr. v. W.N. Chadha). The learned AAG has placed his strong reliance on Head Note (C) in the said decision, which reads as under:
(C) Code of Criminal Procedure (2 of 1974), Section 157 -INVESTIGATION - Investigation Investigating agency collecting material for ascertaining whether prima facie case is made out - Accused not entitled to opportunity of hearing at that stage - Code of Criminal Procedure itself provides for giving hearing to accused under specified circumstances - But not under Chap. XII of the Code. Hon’ble Supreme Court has observed at para Nos.95 and 98 of its judgment in the said case as under:
Para. 95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an. investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve
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secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected, with the crime unless otherwise provided under the law.
Para 98: If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
(32) It is clear from the above observations of Hon’ble Supreme Court that they pertain to the right of the accused to interfere with investigation of a criminal case at its various stages. Therefore, the said observations cannot be applied to the instant cases.
(33) In 2004 Cri.L.J 4272 (Tulsamma v. Jagannath and Ors.), the 17th of the decisions relied upon by the learned AAG, this Court held: “There is, absolutely, no provision in the Code of Criminal Procedure empowering the Magistrate to review or recall the order passed by him. The code of Criminal Procedure does contain provision for inherent powers namely Section 482, which, however confer these powers on the High Court alone. The subordinate criminal Courts have no inherent powers. Under these Circumstances, the Magistrate had no jurisdiction to recall the order dismissing the complaint”. Further, in (1997) 1 SCC 361 (Randhir Singh Rana v. State (Delhi Administration) and also in (2009) 6 SCC 332 (Mithabhai Pashabhai Patil and Ors. v. State of Gujarat)the 18th and 19th of the decisions relied upon by the learned AAG, the Hon’ble Supreme Court has held that inherent powers un- der Section 482 of Code are to be exercised by High Court only and subordinate Courts have no such powers. In any of these three decisions, the question of locus of
57 “No voter to be left behind” the informant in opposing the application for withdrawal from prosecution is consid- ered. Therefore, none of these three decisions is applicable to the present cases.
(34) Yet another decision 20th relied upon by the learned AAG is 1963 SC 1430 (A) (Chandra Deo Singh v. Prakash Chandra Bose Alias Chabi Bose and Anr.). Head Note (A) in the said case, on which strong reliance is placed by the learned AAG, reads as under:
(A) “Criminal P.C. (5 of 1898), S.202 - ISSUE OF PROCESS - Preliminary enquiry into complaint - Position of accused - Accused how far can take part in enquiry before issue of process.
The entire scheme of Chapter XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all tilt process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person, of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that he cannot go. AIR 1960 SC 1113, Ref. to. (Para 7)
No doubt, one of the objects behind the provisions of Section 202, Code of Criminal Procedure is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out -what
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material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book: a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part an enquiry. (Para 7) Where two persons who were associates of the accused were examined as court witnesses on the suggestion of the accused who was permitted to appear through counsel at the enquiry, the enquiry held by the Magistrate is vitiated. (Para 7)
(35) Relying on the above observations of the Hon’ble Supreme Court in the said case, learned AAG strongly contended that since there is no provision in Code of Criminal Procedure giving right of ordinance to the informant while considering the application under Section 321 Code of Criminal Procedure if the Magistrate gives the informant such rights that would be outside the scheme of Code of Criminal Pro- cedure and hence, the same is not permissible. It is pertinent to note that in the said case before the Hon’ble Supreme Court when the Magistrate proceeded to hold en- quiry under Section 202 Code of Criminal Procedure on the complaint that was filed before him under Section 200 Code of Criminal Procedure he had examined his court witnesses, two persons who were associate of the accused and that the said persons were so examined at the instance of the accused and therefore, the Hon’ble Supreme Court held that at this stage of enquiry under Section 202 Code of Crim- inal Procedure accused will have no right either to cross examine the witnesses for the complainant or to get his witnesses examined on behalf and hence the enquiry held by the Magistrate was vitiated. Therefore, I am of the considered opinion that giving an opportunity to the informant to oppose the application filed under Section
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321 Code of Criminal Procedure by the prosecutor seeking withdrawal of the case from the prosecution cannot be equated with the permitting of the accused to partic- ipate in the proceedings before issuing process against him at the stage of enquiry under Section 202 Code of Criminal Procedure Therefore, I am of the considered opinion that the proposition laid down by the Hon’ble Supreme Court in the said case has no application to the facts of the present case.
(36) In re (2000) 10 SCC 237 (A) (Abhilasha and Anr. v. State of Rajasthan and Ors.), 21st of the decisions relied upon by the learned AAG, Hon’ble Supreme Court has held that the informant may assist the Public Prosecutor but he cannot, as of right, claim to pursue the trial. In the instant cases, it is not the claim of the Petitioner-informant that he be permitted to pursue the trial in the said cases; but his claim is only for an opportunity to oppose the withdrawal applications filed by the learned APP on behalf of the State. This being so, this decision of Hon’ble Supreme Court is also inapplicable to the instant cases.
(37) 22nd of the decisions relied upon by the earned AAG is AIR 1998 SC 990 : 1998 AIR SCW 757 (Kishan Swaroop v. Govt, of NCT of Delhi). The relevant Head Note and para No. 3, on which strong reliance is placed by the learned AAG read as under:
Criminal P.C. (2 of 1974), Section 378, Section 401 -APPEAL - REVISION - Appeal/Revision against acquittal - Locus standi - Private party has no right to file in a case instituted upon a police report - Formal permission of public prosecutor would not entitle him to such right.
Para 3: “From the impugned judgment we find that the High Court has referred to the provisions of Sections 378 and 210 of the Code of Criminal Procedure to conclude that it was the primary responsibility of the State :o file appeal/ revision and therefore no criminal revision in respect of an order which is appealable at the instance of the State could/should be entertained without the requisite permission of the Public Prosecutor. In drawing the above inference the High Court failed to notice that if the Code of Criminal Procedure did not empower a private party to file a revision petition against an order of acquittal passed
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in a case instituted on a police report a formal permission of the Public Prosecutor would not entitle him to do so. To put it differently, a Public Prosecutor cannot vest a private party with a right which it has not got under the Code.
From the above observations of the Supreme Court in the said case, it could be seen that though the State was to file an appeal /revision, against an order of acquittal, it did not file, on the other hand, a revision was filed by the private party against the order of acquittal passed in the case that was instituted on police report, and therefore, the Hon’ble Supreme Court made the above observations holding that the private party could not maintain the revision. This being so, it is needless to say that the above observations of Hon’ble Supreme court are not applicable to the instant petitions in deciding the question of ‘Locus Standi’ of the Petitioner-informant to op- pose the said withdrawal applications.
(38) Learned AAG placing his strong reliance on the observations of Hon’ble Supreme Court at various paragraphs in the majority and minority views in the case of Sheonandan Paswan v. State of Bihar and Ors. reported in AIR 1983 SC 194, vehemently contended that, as laid down by the Hon’ble Supreme Court in the said case, a private person or even the informant in a criminal case has no locus standi to oppose the application for withdrawal filed by the learned APP.
(39) Per contra, Shri Krishna S. Dixit, learned Counsel for the Petitioner, referring to the questions that were raised by the Hon’ble Supreme Court for its consideration at various paragraphs in the said judgment, strongly contended that the majority view in the said case does not reveal that the ‘question of locus’ of the Appellant Sheonandan Paswan was agitated before the Hon’ble Supreme Court and Supreme Court recorded its decision thereon to the effect that the said Appellant did not have locus to oppose the application for withdrawal of the criminal cases that was filed by the prosecution and therefore, no law is laid down by the Hon’ble Supreme Court in the said case on the question of locus of an informant in a criminal case in opposing the application for withdrawal of the case.
(40) I have read the entire judgment in the said case between the lines. The facts in the said case as could be gathered from majority view per Baharul Islam, J. at
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Para Nos. 36, 40, 42, 43, 44, 45, 46 and 48 of the judgment [AIR 1983 SC 194] are as under:
(a) The Appellant therein viz., Sheonandan Paswan was a Member of Bihar Legislative Assembly and he was elected as such from Lok Dal party. In 1972, Respondent No. 2 viz., Dr. Jagannath Mishra, became Minister for Co-operation and Agriculture. During June 1974, Sub-Divisional Co-operative Audit Officer, Patna, submitted his report of the bank in respect of the year 1972-73 alleging number of irregularities in the affairs of the Bank. On the basis of the said report, the Joint Registrar, Co-operative Audit Department, recommended legal action against the Directors of the Bank.
(b) After having obtained sanction of the Governor, a criminal case was instituted on 01.02.1978 by the Vigilance Police and on 19.02.1978 a charge-sheet was submitted against the Respondents therein and others. On the said charge-sheet, on 21.11.1979, the Chief Judicial Magistrate-cum-Special Judge, Patna, took cognizance.
(c) Shortly, thereafter, there was a change in the Government of Bihar and 2nd Respondent became the Chief Minister again. Then the Government took a policy decision that criminal cases launched “out of political vendetta” in 1978- 79 and scam relating to political agitation be withdrawn. Accordingly, the Government appointed one Shri. L.P. Sinha as Special Public Prosecutor along with 3 others and during June 1981, the said L.P. Sinha filed an application under Section 321 of the Code seeking withdrawal of the case. The learned Special Judge passed his impugned order dated 20.06.1981 giving consent for withdrawal of the cases.
(d) Before the said impugned order, giving consent for withdrawal, could be passed, the Appellant Sheonandan Paswan filed an application under Section 300(2) of Code of Criminal Procedure The learned Special Judge held that the Appellant had no locus standi in the matter. Then the Appellant filed criminal revision petition before the High Court and, after hearing the Appellant, the High Court, by its order dated 14.09.1981, rejected the revision petition and
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confirmed the order of withdrawal passed by the learned Special Judge. Therefore, the Appellant Sheonandan Paswan approached the Hon’ble Supreme Court by filing his appeal by special leave challenging the correctness of the order of the High Court.
(41) At para No. 48 of the judgment (majority view) the three questions raised by the learned Counsel for the Appellant therein and three other questions raised by the learned Solicitor General appearing for Respondent No. 1 State of Bihar, are stated. They read as under:
Para 48: Shri Venugopal, learned Counsel appearing for the Appellant formulated three points before us:
(1) That the permission accorded by the Special Judge to withdraw the case in question was contrary to a series of decisions of this Court and is unsustainable.
(2) That Shri L.P. Sinha who had made the application under Section 321 of the Criminal Procedure Code was not the Public Prosecutor in charge of the case.
(3) That in the facts and circumstances of the case, Shri L.P. Sinha could, not and did not function independently.
Shri. Prasaran, learned Solicitor General, appearing for Respondent No. 1, the State of Bihar, on the other hand, submitted,
(1) that the institution of the case was the result of political vendetta and the vendetta had vitiated the investigation of the case,
(2) that Shri L.P. Sinha was the Public Prosecutor in charge of the case and was competent to make the application under Section 321 of the Code and that his appointment cannot be collaterally challenged; and
(3) that the impugned order of the Special Judge was legally valid.
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(42) On plain reading of the above three points that were formulated by the learned Counsel appearing for the Appellant and the other three points formulated by the learned Solicitor General appearing for the 1st Respondent-State, it could be seen that the question of locus Standi of the Appellant Sheonandan Paswan in opposing the application that was filed under Section 321 by the State seeking consent for withdrawal of the case or his ‘locus standi’ before the High Court to challenge the correctness of the order passed by the learned Special Judge giving consent for withdrawal or his locus’ before the Hon’ble Supreme Court challenging the correctness of the order passed by the High Court in revision was not raised for consideration by the Hon’ble Supreme Court.
(43) The 1st point has been considered at para Nos. 49 and 50, the 2nd and 3rd points have been considered respectively at para Nos. 52 and No. 58 of the judg- ment. At para Nos. 59 and 61, his Lordship has considered additional ground that was raised by the learned Counsel for the Appellant therein and recorded findings thereon.
Para Nos. 59 and 61 read as under:
Para 59: The only other submission of the Appellant is that there is a prima facie case for trial by the Special Judge and that this Court should send it back to him for trial.
Para 61: Although it does not arise out of the three points formulated by Mr. Venugopal at the start of his argument, nor does it arise out of the Appellant’s petition opposing withdrawal, learned Counsel submitted that there was a prima facie case for trial by the Special Judge and the case should be remanded to him for trial. Let us examine that aspect also as it has been argued at length.
(44) Further, para No. 62 of the judgment, Baharul Islam, J (majority view) reads as under: Para 62. Before proceeding further, it is pertinent to mention that in his application before the Special Judge, the Appellant did not find fault with any of the grounds of withdrawal in the application filed by the Public Prosecutor under Section
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321. His only Contention was that an attempt was being made by the Public Prosecutor to scuttle the case and that the Court should apply its independent mind before according consent to the withdrawal and that he should be heard in the matter.
The above observations of His Lordship Bahrul Islam J clearly go to show that the Appellant Sheonandan Paswan was permitted by the learned Special Judge to file his application and also to submit his arguments by taking relevant contentions opposing the application for withdrawal. In other words, the learned Special Judge gave the Appellant opportunity to file his application also to submit his oral arguments urging various grounds opposing the withdrawal application filed under Section 321 of Code of Criminal Procedure by the prosecution in the said case seeking consent for withdrawal of the said case. His Lordship, has not observed, at any of the paragraph Nos. 49 to 62 of his judgment, that the Appellant Sheonandan Paswan had no locus before the learned Special Judge and he could not have been given a right of audience for opposing the withdrawal application.
(45) Hon’ble Mr. Justice Misra has observed in his judgment (majority view) at paragraph No. 72 as: “the application was opposed on variety of grounds by the Appellant which I shall deal with in the latter part of the judgment in detail”. These observations also clearly go to show that the Appellant, who was a third person before the learned Special Judge (trial court), had opposed application for with- drawal and he was given opportunity to file application and to submit his arguments opposing the withdrawal application. His Lordship also has not observed in his judgment that the Appellant therein should not have been given right of audience by the learned Special Judge opposing the application of the prosecution filed under Section 321 of Code of Criminal Procedure
(46) During the course of his arguments, when asked by this Court as to in which of the paragraphs of the said judgment, either majority view or minority view, the Hon’ble Supreme Court has laid down law as to the ‘locus standi’ of the informant in a criminal case in opposing the application for withdrawal of the case, the learned AAG could not point at any relevant paragraph in the entire judgment. Therefore, I
65 “No voter to be left behind” am of the considered opinion that the majority judgment in the case of Sheonandan Paswan v. the State of Bihar (AIR 1983 SC 194), no law is laid down by the Hon’ble Supreme Court that the informant in a criminal case has no ‘Locus Standi’ to oppose the application filed Under Section 321 Code of Criminal Procedure seeking con- sent of the Court for its withdrawal.
(47) The decision of the Hon’ble Supreme court in the case of V.S. Achuthanan- dan v. R. Balakrishna Pillai and Ors. reported in AIR 1995 SC 436 is relied upon by the learned AAG and also by the learned Counsel for the Petitioner. If para No. 12 of the said judgment is relied upon by the learned AAG, para No.9 it is relied upon by the learned Counsel for the Petitioner.
Para No. 12 reads as under:
The above are the only material portions of the order of the High Court which would indicate that the High Court missed the true import of the scope of the matter before it. The High Court went into grounds which were not even urged by the Special Public Prosecutor in his application made under Section 321, Code of Criminal Procedure or otherwise before the learned Special Judge, It delved into administrative files of the State which did not form part of the record of the case and accepted anything which was suggested on behalf of the State Government overlooking the fact that for the purpose of Section 321, Code of Criminal Procedure it is the opinion of the Public Prosecutor alone which is material and the ground on which he seeks permission of the Court for withdrawal of the prosecution has alone to be examined. It is on account of this palpable error and due to the lack of proper perception of the nature and scope of the High Court’s power in such a matter that the high Court not only set aside the well reasoned and justified order of the learned Special Judge but also proceeded to add that the “competent authority will consider whether. The prosecution should be continued against any or all of the accused.” We are informed that encouraged by this further, needless and unwarranted observation of the High “Court, steps dare being taken by the State Government for withdrawal of the prosecution against other accused person also. It is sufficient to observe that all consequential steps taken pursuant to any such observations in the impugned
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order of the High Court also fall automatically on the setting aside of the High Court’s order.
On careful reading of the above observations of the Supreme Court, it could be seen that they do not pertain to the locus of the informant in opposing the withdrawal application.
(48) Relevant portion of para No.9 in the said judgment (AIR 1995 SC 436) relied upon by the learned counsel for the Petitioner reads as under:
Para. 9. “The High court also took the view that the Leader of the Opposition in the State Assembly, who had appeared to oppose the withdrawal of prosecution, had no locus standi in the matter. We need not go into the question of locus because no learned Counsel appearing before us disputed that the Appellant who is an acknowledged public figure of the State has sufficient locus in this matter.”
(49) The above observation of the Hon’ble supreme Court in the said decision, which came to be rendered after about nearly eight years of its pronouncement in the case of Sheonandan Paswan v. State of Bihar and Ors. (AIR 1987 SC 877), clearly goes to show that the Appellant therein had appeared before the Trial Court to oppose the withdrawal application and the Trial Court had given him opportunity of being heard in the matter. Though the High Court had taken the view that the Appellant had no locus in the matter, the learned Counsel appearing for the parties before the Hon’ble Supreme Court did not dispute the locus of the Appellant before the Trial Court This observation of the Hon’ble Supreme Court supports the conten- tion of the Petitioner-informant that he has locus before the learned Magistrate to oppose the withdrawal application. In other words, the Petitioner-informant has right to be heard in the matter of giving consent for withdrawal of the said case.
(50) Yet another decision relied upon by the learned Counsel for the Petitioner is that of the Hon’ble supreme Court in the case of M/s. J.K. International v. State of Government of NCT of Delhi and Ors. reported in AIR 2001 SC 1142. It is observed by Hon’ble Supreme Court at para Nos. 8, 9 and 12 of its judgment in the said case as under:
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Para No. 8. But the situation here is different, as the accused approached the High Court for quashing the criminal proceedings initiated by the Appellant. It may not be that the complainant should have been made a party by the accused himself in the petition for quashing the criminal proceedings, as the accused has no such obligation when the case was charge-sheeted by the police. It is predominantly the concern of the State to continue the prosecution. But when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be negation of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. What is the advantage of the Court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums.
Para No. 9:- The scheme envisaged in the Code of Criminal Procedure ( for short “ the Code”) indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely be cause the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his griev ance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. This can be discerned from Section 301(2) of the Code which reads thus:
If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case snail conduct the prosecution, and the pleader so instructed shall act therein under the directions of the public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
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Para. 12. The private person who is permitted to conduct prosecution in the Magistrate’s Court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the Court thinks that the cause of justice would be served better by granting such permission the Courts would generally grant such permission. of course, this wider amplitude is limited to Magistrates Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that in aggrieved private person is not altogether to be eclipsed from the scenario when the criminal Court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.
(51) From the above observations of Hon’ble Supreme Court in the case of J.K. International v. State Government of NCT of Delhi and Ors. AIR 2001 SC 1142, it is clear that if the complainant wishes to be heard when the proceedings are to be quashed, he should be given an opportunity of being heard. Further observations of Hon’ble Supreme Court in the said case that an aggrieved person is not altogether to be eclipsed from the scenario when the criminal Court takes cognizance of the offences based on the report submitted by the police, clearly go to show that the informant has a right of audience on the question of dropping the proceedings initi- ated on the basis of the information lodged by him before the police. When that is so, I do not find any reason to accept the contention of the learned AAG that after cognizance is taken, the informant will have no role to play and therefore, he need not be and cannot be given any opportunity of being heard while deciding the ap- plication for withdrawal from prosecution. Further, in view of the above observations of Hon’ble Supreme Court, contention of the learned AAG that if the learned Magis- trate allows the withdrawal application, and ^hereby gives his consent for withdrawal
69 “No voter to be left behind” of the case, the informant will have his remedy either by filing a private complaint or by filing a revision challenging the correctness of the order of the learned Magistrate and therefore, he cannot be given any opportunity of being heard opposing the withdrawal application cannot be accepted. If the informant could be given a right to challenge the correctness of the order of the learned Magistrate giving consent to withdraw the case from prosecution, one cannot understand why an opportunity should be denied to the informant to oppose the withdrawal application when it is considered by the Magistrate on merits.
(52) In the case of National Human Rights Commission v. State of Gujarat and Ors. reported in (2009) 6 SCC 767, which is relied upon by the learned Counsel for the Petitioner, Hon’ble Supreme Court has observed at para No. 31 as. “As noted above, the role of victim in a criminal trial can never be lost sight of. He or she is an inseparable stakeholder in the adjudicating process.” These observations also support the case of the Petitioner informant herein.
(53) Learned AAG, placing strong reliance on the decision of the Calcutta High Court in Sk. Abdur Karim v. The State and Ors.reported in 1981 Cri.L.J. 219, con- tended that the Petitioner-informant has no locus before the Trial Court to oppose the withdrawal application. It is observed by the High Court of Calcutta, at para No. 8 of the judgment, as under:
Para 8: “Having considered all the cases referred to by Mrs. Moitra and Mr. Abdus Sattar the order of the learned Sessions Judge is to be examined to see whether permission was rightly given for withdrawal. The learned Sessions Judge undoubtedly had the principles laid down in the decisions of the Supreme Court that it is the administration of justice that should weigh with him in granting permission to withdraw the case. Therefore, it cannot be said that the learned Sessions Judge granted permission improperly upon extraneous matters. I accordingly uphold the order passed by the learned Sessions Judge. In this connection I may point out that though there is no direct authority on the point, I am of the view that a private party has no locus standi to move against an order of acquittal passed by the learned Judge upon an application being made under Section 321 Code of Criminal Procedure to him by the Public
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Prosecutor in a case which he was conducting. The language of Section 321 of the Code makes it quite clear that the matter is between the Public Prosecutor and the Magistrate or the Judge concerned and a private party has no right to interfere in such matters. “ Any Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried” ( Section 321 Code of Criminal Procedure ) The Public Prosecutor being “ the custodian of public justice” he is the only person who can make an application for withdrawal and, if withdrawal is granted by the court in the interest of administration of justice, no private party can come up against that order of withdrawal.
(54) Yet another decision relied upon by the learned AAG is 1989 (1) Cri 593 (Kerala High Court) [Madan Gopal v. State of Kerala and 2 Ors.). The facts in the said case were: “2nd Respondent therein was a doctor employed in Government Service and the third Respondent therein was a private Medical Practitioner run- ning a hospital and both of them were charge-sheeted and tried before the learned JMFC, Cochin, for the offence under Section 304A of IPC. The learned APP filed, in the said case, an application under Section 321 of Code of Criminal Procedure seeking withdrawal of the said case from prosecution The learned JMFC consented to the withdrawal. Therefore, the de facto complainant, being the husband of the deceased, filed a revision petition aggrieved by the said order”. It is, on these facts, the Hon’ble Supreme Court observed, at para No. 13, as under:
Para.13 that the consideration which weighed with the Government, the Public Prosecutor and the Court are not germane and consent was not properly given. He can still file a private complaint, as held in Sheo Nandan Paswan’s case ( supra), with the possible risk of a suit for malicious prosecution if his complaint is bereft of any basis, Ram Naresh Pandey’s case (supra) may even indicate shat a private complaint may not have a locus standi. When the executive authorities invested with the primary responsibility of prosecuting serious offences, which are classified as cognizable offences, decide to withdraw on grounds which the court feels germane, a private individual who claims to be aggrieved
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by the offence cannot successfully persuade the Court for a direction to compel the State to proceed with the case against its wishes.
(55) The learned AAG has also relied upon the decision of Kerala High Court in the case of Razack and others v. State of Kerala reported in 2001 Cri.L.J. 275, herein the learned Single Judge has taken the view that in the matter of withdrawal from prosecution neither complainant nor charge-sheet witness has locus standi in the exercise of discretion by the Public Prosecutor to withdraw from prosecution.
(56) As to the occurrence of any offence, criminal law may be set in motion by any member of the public, who comes to know of the occurrence of that offence, and in that regard, he has to lodge his information before the police concerned. Thereafter, a duty is cast on the State to investigate into the said offence, collect evidence and bring the offender to the book by submitting charge-sheet against him before the competent Court. All this is ‘in the public interest’ with a view to maintain law and order in the society. Therefore, launching of the criminal case, its continuation and seeking punishment of the accused, is the responsibility of the State and the same is in the ‘public interest’. Thus ‘public interest’ is involved in instituting a criminal case against a wrong doer and in seeing that he is punished in accordance with law. This is the reason why, as provided under Section 320 Code of Criminal Procedure though certain offences are permitted to be compounded, if the victim of the crime and the accused who commits crime mutually agree, certain heinous offences are not allowed to be compounded, even with the permission of the court.
(57) As provided under Section 321 of the Code, the State is authorised to withdraw from prosecution any criminal case through the Public Prosecutor/Assistant Public Prosecutor/Senior Public Prosecutor as the case may be. Such withdrawal shall also be in the ‘public interest’. Section 321 further provides that when an application for withdrawal is filed, the Court concerned has to verify the grounds, get itself satisfied that the ‘withdrawal is in the public interest’ and then, it may give its consent for withdrawal. Thus, it is clear that launching of prosecution against a wrong doer member of the public and also its withdrawal, both involve ‘public interest. What is to be seen by the Magistrate Court, while giving or declining to give consent for withdrawal is, whether the public interest involved in withdrawal outweighs the pub-
72 “No voter to be left behind” lic interest involved in proceeding with the case against the accused therein’. For this purpose, the Magistrate/Court concerned has to consider nature of the offence/ offences for which the accused is/are charge sheeted, the impact of withdrawal/ continuation of the case on the society etc., in the back ground of the grounds urged in the withdrawal application. If the informant in the case/victim of the crime, volun- tarily comes forward to assist the Court in deciding the application for withdrawal, it cannot be said that such informant/victim has no voice to say anything in the matter. If the informant succeeds in convincing the Magistrate/Court concerned that the proposed withdrawal does not involve any ‘public interest or that the ‘public inter- est’ involved withdrawal of the case does not outweigh the ‘public interest involved continuation of the prosecution, then the withdrawal application has to be rejected.
(58) In the instant cases, the informant is none other than a Public Servant viz., the Deputy Commissioner exercising the powers of District Election officer under the Election Commission of India, which is a constitutional body. Therefore, it cannot be said that the Petitioner-informant has any private right or interest in the matter.
(59) In view of the decisions of Hon’ble Supreme Court in the cases of V.S. Achuthanandan AIR 1995 SC 436; J.K. International AIR 2001 SC 1142; and National Human Rights Commission [(2009) 6 SCC 767] referred to supra and also for the reasons aforesaid, with great respect, I have not been able to subscribe to the view taken by the High Court of Calcutta in 1981 Cri.L.J. 219 (S.K Abdur Karim v. State of Ors.); and also the view taken by Kerala High Court in 1989 (1) Crimes 593 (Madan Gopal v. State of Kerala and two Ors.); and in 2001 Cri.L.J 275 (Razak and Ors. v. State of Kerala) referred to supra.
(60) Sri. Krishna S. Dixit, learned Counsel for the Petitioner, placing strong reli- ance on the observations of Hon’ble Supreme Court at para No. 14 of its judgment in the case of Sheonandan Paswan v. State of Bihar and ors. reported in AIR 1987 SC 877, contended that, the informant in a criminal case has locus to oppose the withdrawal application filed by the State Under Section 321 Code of Criminal Pro- cedure para No. 14 in the said case reads as under:
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Para 14: “The learned Counsel on behalf of Dr. Jagannath Misra also raised another contention of a preliminary nature with a view to displacing the locus standi of Sheonandan Paswan to prefer the present appeal. It was urged that when Shri. Lallan Prasad Sinha applied for permission to withdraw the prosecution against Dr. Jagannath Misra and others, Sheonandan Paswan had no locus to oppose the withdrawal since it was a matter entirely between the Public Prosecutor and the Chief Judicial Magistrate and no other person had a right to inter vene and oppose the withdrawal, and since Sheonandan Paswan had no standing to oppose the withdrawal, he was not entitled to prefer an appeal against the order of the learned Chief Judicial Magistrate and the High Court granted permission for withdrawal. We do not think there is any force in this contention. It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak [1984] 2 SCC 500 : AIR 1984 SC 718 at P.723, this Court pointed out that “punishment of the offender in the interests of the society being one of the objects behind penal statute enacted for larger goods of society, the right to initiate proceedings cannot be whittled down, circumscribed of fettered by putting it into a strait jacket formula of locus standi”. This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. Here in the present case, the offences charged
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against Dr. Jagannath Misra and others are offences of corruption, criminal breach of trust etc. and therefore any person who is interested in cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in A.R. Antulay v R.S. Nayak (supra) and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. We must therefore reject the contention urged on behalf of Dr. Jagannath Misra that Sheonandan Paswan had no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it must follow a fortiori that on the turning down of his opposition by the learned Chief Judicial Magistrate he was entitled to prefer a revision application to the High Court and on the High Court rejecting his revision application he had standing to prefer an appeal to this Court. We must therefore reject this contention of the learned Counsel appearing on behalf of Dr. Jagannath Misra.
(61) Sri. Krishna Dixit, learned Counsel for the Petitioner referring to the above observations contended “hat though it is the minority view’ since no contrary view is taken in the majority Judgement, the above proposition has to be followed.
(62) Per Contra, while commenting on the above minority view, and placing re- liance on the Division Bench decision of this Court in the case of Desahally Service Co-operative Society Ltd., and Ors. v. The State of Karnataka and Ors. reported in AIR 1980 KAR 122, the learned AAG strongly contended that the minority view in the said decision cannot be taken as law laid down by the Supreme Court even though the majority view is not contrary to the minority view.
(63) Head Note B and para 20 of its judgment in the said case (AIR 1980 Kar. 122) the Division Bench of this Court held as under:
(B) Precedent- Decision by majority of Judges of High Court Bench- Observations made by minority of Judges on a point cannot be regarded as laying down the law on that point even if majority of Judges have remained silent on that question. AIR 1975 SC 775, Rel.on; AIR 1963 Ker 155, Expl. (para 26).
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Para 20. Even so, it was contended by learned Counsel for Petitioners that it was on account of the existence of the safeguard of hearing the affected co-operative societies before making an order of amalgamation, this Court held in Puttappa’s case AIR 1978 Kant 148 (FB) that the conferment of power on the Registrar or Deputy Registrar under Section 14A of the Act, was not unguided or arbitrary and that if the application of the principle audi alteram parterm, is dispensed with, that power becomes arbitrary.
(64) As already observed by me supra, in view of the subsequent decisions of the Hon’ble Supreme Court in V.S. Achuthanandan v. R. Balakrishna Pitted and Ors. AIR 1995 SC 436; J.K. International AIR 2001 SC 1142; and National Human Rights Commission (2009) 6 SCC 767 I am of the considered opinion that the Petitioner-in- formant herein has locus to oppose the withdrawal application before the learned Magistrate.
(65) Shri Ravishankar, the learned Counsel for the Respondents-accused in these petitions strongly contended that if the sub-ordinate criminal Court passes any or- der without there being any specific provision in the Criminal Procedure Code, for passing such order, it amounts to exercise of inherent powers under Section 482 of Code of Criminal Procedure which are vested only in the High Court, but not in any subordinate criminal court and therefore, if the right of audience is given to the Pe- titioner-informant by the learned Magistrate, it amounts to such exercise of inherent powers and therefore, the learned Magistrate cannot be permitted to do so.
(66) Per contra, learned Counsel for the Petitioner, referring to some kinds of orders that are being passed by the Magistrate without there being specific provi- sion for passing such orders and which orders are approved by the Apex Court, submitted that giving right of audience to the informant to oppose the withdrawal application does not amount to exercise of inherent powers under Section 482 of Code of Criminal Procedure In this regard, he referred to the orders dismissing the complaint for non-prosecution, granting interim bail, and an order issuing notice to the informant/complainant before accepting the ‘B’ Summary Report.
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(67) It cannot be disputed that though there is no specific provision under Code of Criminal Procedure for dismissing the complaint or any criminal proceeding, such as maintenance proceeding Under Section 125 Code of Criminal Procedure for default on the part of the complainant/Petitioner, in prosecuting the same, the Magistrates have been passing orders dismissing such complaint/criminal proceeding for non- prosecution. Further, despite there being no specific provision under Code of Crimi- nal Procedure as laid down by the Hon’ble Supreme Court in the case of Bhagwant Singh v. Commissioner of Police and Anr. reported in AIR 1985 SC 1285 (which is strongly relied upon by the learned AAG) and also in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. reported in AIR 2004 SC 4753, issuing of notice to the informant/complainant giving him opportunity of being heard becomes man- datory before the Magistrate accepts the ‘B’ Summary Report filed by the police before him.
(68) The Apex Court has given its approval for passing above kinds of orders by the criminal courts, despite there being no specific provision for passing such orders and despite their being no inherent powers vested with them. Therefore, I am of the considered opinion that, if the Magistrate gives the informant an opportunity of be- ing heard in the matter of withdrawal of the case from prosecution, it cannot be said that it amounts to exercise of inherent powers by the learned Magistrate which are not vested in him or that it amounts to any illegality committed by the Magistrate.
(69) For the reasons aforesaid, I am of the considered opinion that the present peti- tions deserve to be allowed. Hence the following:
ORDER
(a) Criminal Petition Nos. 8070, 8071, 8072, 8073 and 8074 of 2010 filed under Section 482 of Code of Criminal Procedure are hereby allowed.
(b) The impugned Common Order dated 05.06.2010 passed by the learned Principal Sessions Judge, Bellary, in Crl.R.P. Nos. 137 to 141 of 209 is hereby set aside.
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(c) The orders dated 29.08.2009 passed by the learned I Additional JMFC, Bellary, in C.C.Nos. 594, 589, 591, 593 and 586 of 2008 on the memo filed by the informant in the said case viz., the Deputy Commissioner and District Election Officer, are hereby restored.
(d) The learned Magistrate shall receive from the Petitioner-informant the objections filed by him to the applications filed under Section 321 of Code of Criminal Procedure by the learned APP in the respective cases seeking consent for withdrawal of the respective cases, hear the arguments of the learned Counsel representing the informant, consider the documents produced by him and then, dispose of the said applications in accordance with law.
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JUDGMENT-5
SUPREME COURT OF INDIA
Civil Appeal No.10244 of 2010 (@Special Leave Petition (Civil) No.20590 of 2010) (Decision dated 03/12/2010)
Election Commission of India ...... …………………………………….....Appellant
Versus
Telangana Rastra Samithi & Anr...... ……………………………...... Respondents
Article 190 (3) (b) – Vacation of seats – Casual vacancies - The seat of a Member of State Legislature who resigns shall become vacant on acceptance of such resignation by the Speaker or the Chairman, as the case may be.
HELD: Representation of the People Act, 1951 – Part IX - Ss. 147, 149, 150 and 151 - when does such vacancy occur - casual vacancies on account of resignation by an elected member shall not automatically become a vacancy available for being filled up in case an Election Petition pertaining to that constituency with additional relief under Sec. 84 of the Act for declaring the petitioner or any other candidate having been duly elected is pending before the High Court - The Commission will have to wait for holding bye-elections in such constituencies until a decision is rendered by the High Court.
Representation of the People Act, 1951 – Section 151A – Time-limit for holding bye-election within six months to be reckoned from the date of disposal of Election Petition seeking relief under Sec.84. (Para 35)
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SUMMARY
This Appeal was filed by the Election Commission against the judgment passed by the Division Bench of Andhra Pradesh High Court on a Writ Petition filed by Telangana Rastra Samithi to challenge the decision of the Commission not to hold bye-elections from two assembly constituencies of Andhra Pradesh on account of the fact that election petitions were pending in which the petitioners had, in addition to challenging the election of the returned candidate, also sought the additional relief for being declared elected under section 84 of the R.P. Act, 1951. The High Court allowed the writ petition and held that the provisions of Section 151A of the Representation of the People Act, 1951 prescribing the time limit for filling casual vacancies in Parliament and State Legislature within six months were mandatory and that the pendency of election petitions and the uncertain consequences that might follow would not in any manner dilute the effect of Section 151A, especially when the Speaker of the Assembly had already notified the vacancies after acceptance of resignation of sitting members as contemplated under Article 190 (3) (b) of the Constitution read with Section 150 of the 1951 Act.
The High Court further held that the Court should decide a case as per the law on the existing date of adjudication and rejected the submission made by the Commis- sion that the provisions of Section 151A of R.P. Act, 1951 should be so interpreted as not to render Sec. 84 (relief that may be claimed in an Election Petition), Sec. 98 (decision of High Court in an Election Petition) and Sec. 101 (grounds for which a candidate other than the returned candidate can be declared elected in an Election Petition) otiose. It took the stand that in view of the non-obstante clause in Section 151A, such harmonious construction was ruled out and that even otherwise, grant of additional relief of declaration that the election petitioner had been elected is not the rule. Ignoring the provisions of Section 151A amounts to violation of Article 327 and valid law made by Parliament.
The High Court further held that the inclusion of Section 151A in the 1951 Act in 1996 nullified the ratio of the decision of the Apex Court in D. Sanjeevayya Vs. Election Tribunal Andhra Pradesh and others [ AIR 1967 SC 1211 = 1967(2) SCR
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489 ] that casual vacancy on account of resignation by the elected member and notified by the Speaker shall not become a vacany available for being filled up and / or capable of being filled up till a declaration was either made or refused under the latter part of Section 84 containing the relief sought in an election petition.
Setting aside the judgment of the Andhra Pradesh High Court, the Supreme Court reaffirmed the law laid down by it in D.Sanjeevayya’s (supra) case on the meaning of the expression “vacancy” for the purpose of Part IX of the 1951 Act, that in order to be filled up in a bye-election, a vacancy must be available for being filled up notwithstanding the intervention of Section 151A by way of subsequent amendment.
It further observed that a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8A of the 1951 Act. The view ex- pressed by the Division Bench of the High Court on this point was turned down by the Supreme Court.
The Apex Court held that Article 190 (3) (b) merely indicates that if a Mem- ber of a House resigns his seat by writing to the Speaker and such resignation is accepted, his seat shall become vacant. It does not introduce any element of com- pulsion on the Commission to hold a bye-election ignoring the provisions of Section 84 of the Act. Such casual vacancies are not available for being filled up and the Commission will have to wait for holding elections in such constituencies until a deci- sion is rendered in regard to the additional relief claimed for declaring the petitioner or any other candidate having been duly elected by the High Court.
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JUDGMENT
Hon’ble Altamas Kabir, Judge
Hon’ble A.K. Patnaik, Judge
Advocates for Appellant: Meenakshi Arora and Poli Katakai, Advocates for Respondents: Indira Jaising ASG, D. Ramakrishna Reddy, Sr. Adv., Sonam Anand, J. Ramachander Rao, P. Venkat Reddy, B. Ramamurthy and Anil Kumar Tandale,
(1) Leave granted.
(2) The Election Commission of India has filed this appeal against the judgment and order dated 30th June, 2010, passed by the Division Bench of the Andhra Pradesh High Court in Writ Petition No.14443 of 2010 filed by the Respondent, Telangana Rastra Samithi, challenging the decision of the Commission not to hold bye- elections to 28-Vemulawada and 29-Sircilla Assembly Constituencies in the State of Andhra Pradesh. The writ petition involving the holding of bye-elections to casual vacancies in the State Legislative Assembly, was allowed by the High Court by its impugned judgment by applying the literal rule of interpretation. It was held that the provisions of Section 151A of the Representation of the People Act, 1951, hereinafter referred to as `the 1951 Act’, were mandatory and that the pendency of election petitions and the uncertain consequences that might follow would not in any manner dilute the effect of Section 151A, especially when the Speaker of the Assembly had already notified the vacancies as contemplated under Article 190(3) (b) of the Constitution read with Section 150 of the aforesaid Act and had directed the Appellant herein to hold bye-elections for filling up the vacancies for the two aforesaid Assembly Constituencies along with bye-elections already notified for ten other Assembly Constituencies.
(3) Briefly stated, the facts indicate that in order to press for a separate Telangana State, a Joint Action Committee was formed with all political parties which took a de-
82 “No voter to be left behind” cision that all the members of the Legislative Assembly of the respective political par- ties should resign. Consequently, 12 members submitted their resignations from the membership of the Andhra Pradesh State Legislative Assembly to the Speaker of the Assembly on 14th February, 2010. On receipt of the said resignations, the Speaker ordered that the resultant vacancies be notified. The said notification was duly pub- lished in the Andhra Pradesh Gazette (Part II Extraordinary) dated 14.02.2010. The Election Commission of India issued a Press Note dated 21.06.2010 under Section 30 of the 1951 Act, notifying its decision to hold bye-elections to fill up 10 clear vacancies according to the programme indicated therein. The bye-elections to 28- Vemulawada and 29-Sircilla Assembly Constituencies were not notified on account of the fact that election petitions were pending in which the petitioners had sought to be declared elected. Accordingly, there being 10 clear vacancies in the State Legislative Assembly of Andhra Pradesh, the Commission decided to hold bye-elec- tions to fill up the 10 clear vacancies as per programme indicated. The decision of the Election Commission of India, hereinafter referred to as “the Commission”, not to hold bye- elections in the two aforesaid constituencies was challenged in the writ petition, which was ultimately allowed.
(4) The question raised in the writ petition was whether Section 151A read with Sections 84, 98, 101 and 150 of the 1951 Act, was mandatory or only directory. A question was also raised as to whether Section 151A of the above Act is subject to Article 324 of the Constitution. Since Section 151A of the 1951 Act is the focal point of the case made out by the writ petitioners, the same is extracted herein below :
“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.-- Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
Provided that nothing contained in this section shall apply if-- (a) the remainder of the term of a member in relation to a vacancy is less than one year; or
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(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye election within the said period.
(5) The High Court took the view that Sections 147, 148, 149, 150, 151 and 151A of the 1951 Act appear in Part IX which deals with bye-elections. Part V of the aforesaid Act, which deals with the conduct of general elections and Part III, do not prescribe any time limit obliging the Commission to conduct elections within a period of 6 months after expiry of the term of the Assembly. Section 15 of the Act provides that general elections shall be held for the purpose of constituting a new legislative assembly on the expiration of the duration of the existing Legislative Assembly or on its dissolution. The proviso thereto prohibits a general election at any time before six months prior to expiry of the term of the Assembly. Such prohibition, however, does not apply to a case where the Legislative Assembly is dissolved. In- terpreting the provisions of Section 151A of the 1951 Act, the High Court observed that it is the only provision in the said Act which prescribes a time limit for filling casual vacancies both in the Rajya Sabha and the Lok Sabha and in the State Legis- lative Assemblies and State Legislative Councils by holding the bye-elections within a period of 6 months from the date of the occurrence of the vacancies.
(6) Analysing the provisions of Sections 84, 98(c) and 101 of the 1951 Act, the High Court held that the said sections are enabling in nature, enabling an election petitioner to claim a declaration that the election of the returned candidate is void and for a further declaration that he or any other candidate had been duly elected. The High Court recorded the submission made on behalf of the Commission that if the bye- election to a constituency is not stayed and if a candidate who files an elec- tion petition eventually gets such a declaration, and if a bye- election is held conse- quent upon a resignation of a Member, it could result in an impossible situation. On behalf of the Commission it was also submitted that the provisions of Sections 150 and 151 of the 1951 Act should be construed harmoniously. The High Court, how- ever, rejected the submissions made on behalf of the petitioner and took the stand that in view of the non- obstante clause in Section 151A, such harmonious construc- tion was ruled out and that even otherwise, grant of additional relief of declaration that the election petitioner had been elected was not the rule.
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(7) On the basis of its aforesaid findings the High Court, despite the decision of this Court in D. Sanjeevayya Vs. Election Tribunal Andhra Pradesh and others [AIR 1967 SC 1211 = 1967 (2) SCR 489], held that the submissions made on behalf of the Election Commission that the provisions of Section 151A of the Representation of the People Act, 1951, should be interpreted so as not to render Sections 84, 98 and 101 otiose, was unsustainable. It was also held that a Court should decide a case as per the law as on the existing date of adjudication. The High Court, therefore, allowed the writ petition and directed elections be held in the two constituencies referred to hereinabove, since in its view ignoring the provisions of Section 151A of the 1951 Act would amount to violation of Article 327 and valid law made by Parliament.
(8) Appearing for the Election Commission, learned Advocate, Ms. Meenakshi Arora submitted that the approach of the High Court in the impugned judgment and the final conclusion reached in this case was completely contrary to the views expressed by this Court in D. Sanjeevayya’s case (Supra). Ms. Arora submitted that the said decision fully covered the question raised in the present Election Petition and the High Court had erred in trying to distinguish the same on the sole ground that the said decision had been rendered at a point of time when Section 151A had not been introduced into the 1951 Act.
(9) Ms. Arora submitted that the issue to be resolved in this case is the apparent conflict between the provisions of Sections 84, 98(c) and 101(b) of the 1951 Act and Section 151A thereof in the light of Article 190 (3)(b) of the Constitution of India. It was further submitted that the question to be answered in this case is whether the directions contained in Section 151A of the 1951 Act indicating that notwithstand- ing anything contained in Sections 147, 149, 150 and 151 thereof, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy, barring the two exceptions indicated in the proviso, are directory in nature or mandatory. The same has to be considered along with the provisions of Sections 84, 98(c) and 101(b) of the 1951 Act and Article 190(3) (b) of the Constitution, which provides that once a Member of a House resigns from the House of the Legislature of a State and the same is accepted by the Speaker, the seat shall become vacant.
85 “No voter to be left behind”
(10) Ms. Arora submitted that all these questions had fallen for consideration in D. Sanjeevayya’s case (supra) and had been duly answered, though not in the context of Section 151A of the 1951 Act. The learned counsel urged that the introduction of Section 151A in the 1951 Act with effect from 1st August, 1996, did not alter the situation to any great extent since even after the introduction of Section 151A, the question still remains as to what would happen in the event a declaration prayed for under the latter part of Section 84, was made by the Election Commission, in terms of Section 98(c) and 101(b) of the said Act.
(11) Ms. Arora submitted that the decision in D. Sanjeevayya’s case (Supra) was rendered in relation to the provisions of Section 150 of the 1951 Act in the context of both Article 190(3)(b) of the Constitution and the apparent contradiction in Sec- tions 84, 98(c) and 101(b) of the 1951 Act and would be equally applicable to the instant case, since the same question is involved regarding the relief contemplated in the latter part of Section 84 of the 1951 Act.
(12) Ms. Arora urged that the provisions of Section 151A, by their very nature made it clear that the same were directory and not mandatory in nature. It was urged that apart from the two exceptions carved out in the proviso, there was no mention of Sections 84, 98(c) or even 101(b) in the amended provisions, which the Legislature, if it had so intended, could have also included in the proviso. In this connection, Ms. Arora referred to a Division Bench decision of the Karnataka High Court in Sri Thomas Mates Gudinhjo vs. Election Commission of India, New Delhi and Ors. [AIR 2002 Karnataka 232], wherein R.V.Raveendran, J. (as His Lordship then was) while delivering the judgment for the Bench, took note of the decision of this Court in D. Sanjeevayya’s case (supra) and held as follows:
“Section 151A no doubt seeks to ensure that no Constituency remains unrepresented for more than six months. But it is not unconditional. It is subject to two exceptions i.e. where the remainder of the term of a member in relation to a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the Non obstante clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante clause does not refer to Section 84 or 98 (c ) or
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101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the petitioner or some one else should be declared as having been elected under Sections 84 read with Section 101 of the Act.”
(13) Ms. Arora submitted that the judgment and order of the Andhra Pradesh High Court was not sustainable and was liable to be set aside.
(14) Learned Additional Solicitor General (ASG), Ms. Indira Jaisingh, while re- iterating Ms. Arora’s submissions on the relevant provisions of the 1951 Act and the Constitution of India, contended that as would be evident from Sections 112 and 116 of the 1951 Act, election petitions are filed and adjudicated not merely in the private interest of the contesting candidates, but also in public interest to ensure that corrupt practices are eliminated and the constituency is represented by the candidate lawfully elected. The learned ASG submitted that it is for such reason that elections were not notified in two of the twelve vacancies caused by the resignation of twelve legislators, as election petitions under Section 84 of the 1951 Act were pending in respect thereof. The learned ASG further submitted that the Court was required to consider whether the Election Commission was under any compulsion to hold bye-elections in the constituencies in respect whereof election petitions had been filed and were pending, having regard to the provisions of Section 151A of the 1951 Act.
(15) It was then reiterated that according to the rules of interpretation, an attempt should be made to harmonize apparently conflicting provisions within the same enactment instead of declaring one of the contradicting provisions to be ultra vires. The learned ASG urged that although there appears to be an apparent conflict between Article 190(3) (b) of the Constitution and Section 151A of the 1951 Act on the one hand and Sections 84, 98(c) and 101(b) of the said Act on the other, the said provisions were capable of being harmonized in a manner so that such apparent conflict stood resolved.
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(16) It was further contended that Sections 8A, 80A, 84, 98, 99 and 101 of the 1951 Act are intended to serve a public purpose, namely, the eradication of corrupt practice and to ensure that the candidate declared elected had indeed been lawfully elected and that is why an election petition does not abate on the death of the sole petitioner. The learned ASG urged that both the above- mentioned provisions of the 1951 Act and the provisions of Section 151A thereof are intended to serve the pub- lic interest. While a time limit has been introduced in Section 151A for conducting bye-elections to maintain a duly elected Legislative Assembly, the public interest is also served by ensuring the purity of the election process. It was also urged that the various provisions would have to be harmonized so as to apply the provisions of Section 151A to all bye- elections, except to those in respect of which exceptions had been carved out in the proviso and also in relation to constituencies where election petitions were pending.
(17) Yet another facet of the learned ASG’s submissions was in regard to the powers vested in the High Courts under Section 80A of the 1951 Act. It was submitted that such power could not be taken away by implication and the election petition would have to be allowed to reach its logical conclusion. The learned ASG relied primarily on the decision in D. Sanjeevayya’s case (supra) and the decision of the Karnataka High Court in Sri Thomas Mates Gudinhjo’s case (supra), which had been rendered after the introduction of Section 151A, following the ratio in D. Sanjeevayya’s case.
(18) On the question of harmonious construction, the learned ASG also relied on the decisions of this Court in (i) Shri Venkataramana Devaru vs. State of Mysore [AIR 1958 SC 255]; (ii) Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. & Ors. [(1987) 1 SCC 424]; (iii) O.P. Singla & Anr.vs. Union of India & Ors. [(1984) 4 SCC 450]; (iv) Krishan Kumar vs. State of Rajasthan & Ors. [(1991) 4 SCC 258]; (v) Sultana Begum vs. Prem Chand Jain [(1997) 1 SCC 373]; etc., where it has been uniformly stated that where there appears to be an inconsis- tency between two provisions in the same statute, the enactment has to be read as a whole and the conflicting provisions have to be so construed so as to avoid a clash as far as possible. The said principle has been very lucidly explained in Sultana Begum’s case (supra), paragraph 10 whereof is extracted herein below :
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“10. The rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the Courts should make an effort to so interpret the provisions as to harmonize them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose.”
(19) With regard to the non-obstante clause in Section 151A of the 1951 Act, the learned ASG placing reliance on the decision of this Court in Central Bank of India vs. State of Kerala & Ors. [(2009) 4 SCC 94], submitted that since Section 151A does not refer to Sections 84, 98, 99 and 101, its provisions could not override the provisions of the said Sections which would have to be given their full flow. The learned ASG submitted that it was for the Court to maintain the balance between two public interests by restricting the application of Section 151 A to only those vacancies which were available for being filled up, including such vacancies where no election petition was pending.
(20) Mr. D. Ramakrishna Reddy, learned Senior Advocate appearing for the Re- spondent No.1, on the other hand contended with reference to the decision in D. Sanjeevayya’s case (supra), that when a vacancy is declared in the Legislative Assembly by the Speaker under Article 190(3)(b) of the Constitution, the election petition could not and did not survive as the Speaker’s decision was final. Learned counsel submitted that the aforesaid decision had been rendered in the context of Section 150 of the 1951 Act where no time limit had been fixed and where Section 151A was yet to find a place in the statute book and could not be relied on for the purpose of this case as had been held by the High Court in its impugned judgment. Mr. Reddy, while referring to the decision of this Court in Loknath Pradhan vs. Biren- dra Kumar Sahu [AIR 1974 SC 505], laid particular emphasis on another decision of this Court in Jyoti Basu & Ors. vs. Debi Ghosal & Ors. [(1982) 1 SCC 691], wherein it was held that though the right to elect was fundamental to democracy it was a statutory right which would have to be construed strictly according to the statute. Mr. Reddy submitted that with the introduction of Section 151A in the 1951 Act with effect from 1st August, 1996, it was the clear intention of the legislature to wipe out the effects of D. Sanjeevayya’s case where the decision had been rendered
89 “No voter to be left behind” in the light of the provisions of Section 150 of the said Act where no time limit had been provided for filling up casual vacancies.
(21) Mr. Reddy lastly referred to and relied on the decision rendered by this Court in Consumer Education and Research Society vs. Union of India & Ors. [(2009) 9 SCC 648]. He drew our attention to paragraph 61 of the judgment in which in the context of Sections 147 and 149 of the 1951 Act it was observed that the said provisions dealt with casual vacancies in the House of the People on account of the seat of a Member becoming vacant or being declared vacant or his election being declared void. In such context it was further observed that Section 151A provides that when such casual vacancy arises, the Election Commission has to fill up the va- cancy by holding bye-elections within six months from the date of occurrence of the vacancy.
(22) The rival contentions on the issue under consideration have been occasioned by the introduction of Section 151A in Part IX of the Representation of the People Act, 1951, with effect from 1st August, 1996. Part IX of the said Act which deals exclusively with Bye- elections contains Section 147 and Sections 149 to 151 which deal with casual vacancies in the Council of States (Rajya Sabha), the House of the People (Lok Sabha), the State Legislative Assemblies and the State Legislative Councils. Prior to the introduction of Section 151A in the 1951 Act, no time limit had been set for filling up the casual vacancies contemplated in the different elected bodies, either under Section 147 or Section 149 to 151. Section 151A was intro- duced in the 1951 Act to address the lacuna and to make provisions for holding of bye- elections for filling any vacancy referred to in Sections 147 and 149 to 151 within a period of six months from the date of occurrence of the vacancy, barring the two exceptions carved out in the proviso to Section 151A itself. What is of vital importance in this case is the choice of the words “a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of occurrence of the vacancy”. The question is when such a vacancy occurs. Is it on the date on which the resignation is made to the Speaker of the House or is it from the date when the vacancy becomes available for being filled up? This is the same question which fell for decision in D. Sanjeevayya’s case (supra), though Section 151A of the 1951 Act was not available at that time and
90 “No voter to be left behind” the decision was rendered in the context of Article 190(3)(b), Sections 84, 98(c), 101(b) and Section 150 of the 1951 Act.
(23) Article 190 of the Constitution falls under the provisions relating to disqual- ification of members of both the Houses of the Legislature of a State and deals with vacation of seats. We are concerned with the provisions of Section 190(3)(b) of the Constitution, which read as under :- “190. Vacation of seats - (3) If a member of a House of the Legislature of a State - (a)...... (b) resigns his seat by writing under his hand addressed to the Speaker or the Chair- man, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.”
(24) The key words in the above provision are that if a Member resigns a seat and such resignation is accepted by the Speaker or the Chairman, his seat shall thereupon become vacant (Emphasis supplied). In such event, it would result in the creation of a casual vacancy within the meaning of Part IX relating to bye-elections which contains Section 147 and Sections 149 to 151A. If such casual vacancy occurs in the State Legislative Assemblies or the State Legislative Councils, the pro- visions of Sections 150 and 151 are attracted, which do not, however, prescribe any time limit for such vacancy to be filled up by the Election Commission. Since in the instant case we are concerned with the A.P. State Legislative Assembly, the provisions of Section 150 are relevant to the facts of the case and are extracted herein below :-
“150. Casual vacancies in the State Legislative Assemblies. – (1) When the seat of a member elected to the Legislative Assembly of a State be- comes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the Assembly constituency
91 “No voter to be left behind” concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.
(2) If the vacancy so caused be a vacancy in a seat reserved in any such constitu- ency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under sub-sec- tion (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.”
(25) It is the aforesaid provision of Section 150 which gives rise to the apparent conflict regarding the duty of the Election Commission to fill up such vacancies in view of the provisions of Section 84 which provides as follows :- “84. Relief that may be claimed by the petitioner - A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further dec- laration that he himself or any other candidate has been duly elected.”
(26) According to the provisions of Section 84, in addition to claiming a decla- ration that the election of all or any of the returned candidates is void, an election petitioner can claim a further declaration that he himself or any other candidate has been duly elected. It is this question which fell for consideration in D. Sanjeevayya’s case (supra) giving rise to an apparent conflict between the provisions of Article 190(3)(b) of the Constitution and Section 84 of the 1951 Act. While Article 190(3) (b) provides that upon resignation of a seat by an elected member, if accepted, creates a vacancy, which, in turn, attracts the provisions of Part IX, a different note is struck by the latter part of Section 84 which cannot be lost sight of. In D.Sanjee- vayya’s case (supra) although the provisions of Section 151A were not available, this Court felt that there was no finality in the vacancy caused by the resignation of a member of the House where an election petition was pending. If the election of the member who resigns is unchallenged, there is no difficulty in harmonizing the pro- visions of Section 151A with the rest of the Sections included in Part IX and Section 8A of the 1951 Act. It is only when an election petition is filed under Section 84 of the Act that the latter part of the Section comes into play and is, thereafter, reflected in Sections 98(c) and 101(b) of the said Act.
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(27) D. Sanjeevayya’s case (supra), this Court while considering the apparent conflict between Article 190(3)(b) of the Constitution and Sections 150, 84 and 98 of the 1951 Act, came to the conclusion that it was not permissible to interpret Section 150 of the Act in isolation without reference to Part III of the Act which pre- scribes the machinery for calling in question the election of a returned candidate. Their Lordships further observed that a returned candidate could not get rid of an election petition filed against him merely by resigning his seat from the legislature, whatever be the reason for his resignation. Although not stated in the judgment, the ramifications of an order under Section 84 are felt in Section 8A dealing with disqualification on the grounds of corrupt practices. Such an eventuality cannot be avoided by the returned member simply by resigning his seat in the Legislative Assembly and the provisions of Section 150 would, therefore, have to be read in conjunction with Section 84. Their Lordships, therefore, ultimately held that in such cases the Election Commission was not bound under Section 150 of the Act to hold a bye- election forthwith, but it was entitled to suspend taking action under the said section till the decision in the election petition under Section 84 was known.
(28) In its impugned judgment the High Court dealt with the decision of this Court in D. Sanjeevayya’s case (supra) in the following terms : “Sanjeevayya ratio is of no help to ignore the enacted provision nor ECI can call back on exercising power under Article 324 of Constitution. Therefore, pendency of election petition and the uncertainty of consequences there from are neither a reason nor rationale to ignore Section 151A and classify casual vacancies into `clear vacancies’ and `not clear vacancies’. Article 190(3)(b) of the Constitution does not admit such differentiation. Insofar as bye- elections are concerned, when once a declaration is made under Section 150 of RP Act by the Speaker - a vacancy that arises as contemplated under Constitution and/or the relevant statute; Section 151A comes into play and the bye- elections to the casual vacancies that arises under Sections 147, 149, 150 and 151 shall have to be conducted by ECI within the period mandated by the Parliament. Sanjeevayya was a case where a member’s election was impeached before the Election Tribunal. During its pendency, the suc- cessful candidate submitted resignation and invoked public law remedy before this Court. He unsuccessfully sought mandamus to ECI to hold election as per Section 150 of RP Act. The pendency of election petition and Sections 86, 98(C) and 150
93 “No voter to be left behind” of RP Act (without any time limit for conduct of bye- election) became all important statutory facts for construction of the provisions. The Supreme Court considered that, “no time limit is fixed in the Section for the Election Commission to call upon Assem- bly Constituency concerned to elect a person for filling the vacancy”, that, Section does not say that “the Election Commission shall hold a bye-election “forthwith” or “immediately”” and that in the facts of that case, Election Commission is not bound under Section 150 of RP Act to hold bye-election forthwith (see paras 5 and 6 of AIR). Needless to mention that the case involved construction of Section 150 in the context of Sections 84 and 98(C) of RP Act at the time when Section 151A was not in RP Act. There was some debate before us that Act 21 of 1996 which inserted Sec- tion 151A not being a piece of legislative invalidation (or validation), Sanjeevayya covers the list. We are afraid we cannot accept the submission. It is well settled that the construction of provision by the Court before such provision is amended or substituted is an exercise of interpretation of the law as existed and does not and should not be treated as covering the situation after express enactment amending the provisions of Law so construed earlier.”
(29) In order to justify its departure from the decision of this Court in D. Sanje- evayya’s case (supra), the Division Bench of the High Court instead relied on the decision of this Court in Baliram Waman Hiray vs. Justice B. Lentin & Ors. [(1988) 4 SCC 419], wherein, the decision in Lalji Haridas vs. State of Maharashtra [AIR 1964 SC 1154], which was a decision in relation to the proceedings taken by the Income Tax Officer under Section 37(4) of the Income Tax Act, 1922, was relied upon. The question involved therein was that the said proceedings before the In- come Tax Officer were judicial proceedings within the meaning of Section 193 of the Indian Penal Code. For the purposes of Section 195(1)(b) of the Code, reliance was also placed on the decision of this Court in Indira Nehru Gandhi vs. Shri Raj Narain & Anr. [1975 Supp. SCC 1] and Kanwar Lal vs. Amar Nath Chawla & Ors. [(1975) 3 SCC 646], regarding the changes in the law effected by the amendments which were held to repel the submissions made therein on behalf of the Respondent that the expenses incurred by a political party could be identified with the election of a candidate and that such expenditure was to be added to the election expenses of a candidate as being authorized by him. This Court instead held that expenses incurred or authorized in connection with the election of a candidate by a political
94 “No voter to be left behind” party would not be deemed to be and would not ever be deemed to have been expenditure in connection with the election incurred or authorized by the candidate. The High court observed that legislative changes were relevant in considering the binding nature of the precedent of the Court on record and that such a precedent may cease to be an authority in view of the subsequent changes made by competent legislature. On the basis of such conclusions, the High Court held that even if the statement of objects and reasons of the amending Act did not specifically refer to Sanjeevayya, the new legal regime alone must be looked into by the Court.
(30) In its impugned judgment the Division Bench of the High Court also held that the submission made on behalf of the counsel for the Election Commission that Sec- tions 150 and 151 of the 1951 Act should be harmoniously construed, was ruled out in view of the non-obstante clause in Section 151A.
(31) We are afraid that we are unable to agree with the reasoning of the Division Bench of the High Court in its attempt to distinguish the decision of this Court in D. Sanjeevayya’s case (supra) on the basis that the subsequent inclusion of Section 151A in the 1951 Act nullified the ratio of the decision in D.Sanjeevayya’s case (supra) and that in view of Section 151A, the provisions of Section 84 or 98(c) or 101(b) became redundant upon a seat being declared vacant by the Speaker of the House under Article 190(3)(b) of the Constitution of India.
(32) The decision in Sanjeevayya’s case (supra) involved the causation of a casual vacancy on account of resignation by the elected candidate while an election petition under Section 84 of the Act was pending. The effect of Article 190(3) (b) of the Constitution was considered in the facts of the said case and it was held that the vacancy caused by the decision of the Speaker did not become a vacancy available for being filled up and/or capable of being filled up (Emphasis supplied) till a declaration was either made or refused under the latter part of Section 84. Notwithstanding the intervention of Section 151A by way of amendment with effect from 1st August, 1996, the position remains the same. The only effect on account of such declaration under Section 190(3)(b)is that a time limit was fixed for holding bye-elections in respect of casual vacancies. The important question is whether a vacancy caused on account of any of the contingencies contemplated in Sections
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147 and 149 to 151 can be said to be an available vacancy for the purposes of Section 151A of the 1951 Act. It is significant that in Section 151A neither Section 84 nor Sections 98(c) and 101(b) have been mentioned. Instead, what is referred to are the casual vacancies referred to in Sections 147 and 149 to 150 in the State Legislative Assembly and the State Legislative Council. What had not been indicated in the said provisions were provided in Section 151A with the two exceptions carved out in the proviso. Section 151A prescribed a time limit within which a bye- election is to be held to fill up any vacancy referred to in Sections 147 and 149 to 151 of the 1951 Act. The Division Bench of the High Court was, therefore, clearly wrong in coming to a finding that the non-obstante clause of Section 151A, which was not available, when the decision in D.Sanjeevayya’s case (supra) was rendered, altered the whole legal scenario and rendered the decision in D.Sanjeevayya’s case (supra) to be no longer good law as declared by this Court. Although, an attempt has been made to differentiate between the facts of D.Sanjeevayya’s case (supra) and this case, we are unable to accept the interpretation of Section 151A in support of such contention. Any other interpretation of Section 151A would render the provisions of Sections 84, 98(c), 101(b) and 8A of the 1951 Act otiose, which could not have been the intention of the Legislature, which would otherwise have clearly indicated as such in the proviso to Section 151A.
(33) At this stage, it would be apposite to consider another aspect of the matter regarding the meaning of the expression “vacancy” for the purpose of Part IX of the aforesaid Act. In this behalf we are inclined to agree with the decision rendered in D.Sanjeevayya’s (supra) case and the submissions of the learned Additional Solicitor General that in order to be filled up in a bye election, a vacancy must be available for being filled up. In a situation such as that contemplated by the latter half of Section 84 and its consequences as reflected in Sections 98(c), 101(b) and 8A of the 1951 Act, it cannot be said that a vacancy in such a situation would be a vacancy available for being filled up by a bye- election, particularly in a situation where allegations of corrupt practices have been made which, if proved, provides for disqualification un- der Section 8A of he said Act. Simply by submitting his resignation, a successful can- didate against whom allegations of corrupt practices are made, cannot escape the consequences of Section 8A of the Act, if the same are ultimately found to be proved.
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(34) The various decisions cited do not appear to have any relevance as far as the facts of this case are concerned. The object with which the 1951 Act was enact- ed is reflected in the Preamble which reads as follows:-
“The Act to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the legislature of each State, the qualifications and disqualifi- cations, the membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.”
The Act is a complete Code for the conduct of elections by the Election Commis- sion of India appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the legislature of every State and also of elections to the offices of President and Vice- President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately avail- able for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8A of the said Act. The views expressed by the Division Bench of the High Court on this point cannot, therefore, be sustained.
(35) We are, therefore, of the firm view that the introduction of Section 151A in the Constitution did not alter the position as far as the provisions of Section 84 and consequently 98(c) and 101(b) of the 1951 Act are concerned, since although a casual vacancy may have occurred within the meaning of Section 150 of the 1951 Act, those vacancies in which election petitions had been filed and were pending cannot be held to have become available for the purposes of being filled up within the time prescribed under Section 151A of the 1951 Act. Article 190(3)(b) of the Constitution merely indicates that if a Member of a House of a Legislature of State resigns his seat by writing to the Speaker and such resignation is accepted, his seat
97 “No voter to be left behind” shall become vacant. It does not introduce any element of compulsion on the Election Commission to hold a bye-election ignoring the provisions of Section 84 of the Act. In such cases, we have little hesitation in holding that such casual vacancies are not available for being filled up and the Commission will have to wait for holding elections in such Constituencies until a decision is rendered in regard to the latter part of Section 84 of the 1951 Act during the life of the House. The view expressed by the High Court that a case has to be decided in accordance with the laws as existing on the date of adjudication, while salutary in principle, are not attracted to the facts of this case in view of the provisions of Section 84 of the 1951 Act.
(36) The Appeal is, therefore, allowed and the judgment and order of the High Court is, accordingly, set aside and the writ petition filed by the Respondent No.1 herein for a direction to hold bye-elections for the 28- Vemulawada Assembly Constituency and 29-Sircilla Assembly Constituency is dismissed. Having regard to the facts involved, the parties will bear their own costs.
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JUDGMENT-6 HIGH COURT OF DELHI
LPA No.522 of 2011 (Decision dated 16/03/2012)
Chandra Prakash Kaushik …………………………...... ………….....Appellant
Versus
Election Commission of India & Anr. .…………………………...... Respondents
Election Symbols (Reservation and Allotment) Order, 1968-- ECI is not empowered to decide inter se disputes in an unrecognized political party and take any decision as to whose claim was correct.
Election Symbols (Reservation and Allotment) Order, 1968 – Power of Election Commission only in relation to splinter groups or rival sections of a recognised political party - Decisions taken by the Commission after taking into account all the available facts and circumstances and hearing representatives binding on all such rival sections or groups.(Para 15)
General Clauses Act, 1897 – Sec.21 - Power to issue, to include, power to add to, amend, vary or rescind notifications, orders, rules or bye-laws – Election Commission empowered to rescind its orders even in the absence of any specific power therefor.
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SUMMARY
The Political parties registered with the Election Commission under Section 29A of the Representation of the People Act, 1951 are expected to hold organisational elections at periodic intervals as per the provisions of the party constitution and communicate that to the Commission with supporting documents.
Akhil Bharat Hindu Mahasabha (ABHM) with central office at Mandir Marg, New Delhi is one of the registered unrecognised political parties. During the year 2004- 06 several communications were received from different factions of the party claim- ing themselves to be the authorized office bearers of the party. The Commission observed that there were internal disputes within the party and accordingly advised all the factions, claiming to be authorized representatives, in January 2004, to settle the internal dispute either amicably within the Party or through a competent Court of Law. Subsequently, the party informed the Commission in July 2007 that the disputes within the party had been settled and the Commission vide its letter dated 7.8.2007, informed the party that the list of office bearers furnished by the party vide their letter dated 06.09.2006 was taken on record. Later it was brought to the notice of the Commission that there was a Civil Suit pending before the Delhi High Court with regard to internal matters of the Party. This was not brought to the notice of the Commission earlier when application claiming settlement of internal dispute was filed before the Commission. Taking note of this fact, the Commission reviewed the earlier decision to take on record the list of office bearers of the Party and with- drew the said decision on 21.8.2007. In May 2010, the Commission was informed about dismissal of the said Suit and a request was made to revive the list of office bearers furnished by the party vide their letter dated 06.09.2006 and also to take on record the election of Swami Chakrapani as the President of ABHM for the years 2008-10 and 2010-12. The Commission accordingly revived on 8.10.2010 the list of office bearers taken on record earlier in August 2007. Thereafter, the party furnished complete list of office bearers with Swami Chakrapani as President and the same was taken on record vide letter dated 11.11.2010. Again, fresh repre- sentations were received from various factions of the party making claims to be the authorised office bearers of the party, and taking note of fresh disputes the Commission,
100 “No voter to be left behind” on 14.01.2011, withdrew its earlier decision dated 11.11.2010 treating the group led by Swami Chakrapani as the Akhil Bharat Hindu Mahasabha (ABHM).
The above decision of 14.01.2011 of the Commission was challenged before the Delhi High Court by Swami Chakrapani in Writ Petition ( C ) No.704 of 2011. The learned Single Judge allowed the writ petition and held that in the absence of any order of Court of Law, the Commission was not entitled to take the decision dated 14.01.2011 reversing its earlier decision and declared the same as invalid.
The present Appeal was filed by the Appellant to challenge the impugned judgment dated 02.05.2011, passed by the learned Single Judge allowing W.P. (C) No.704 of 2011 thereby recognising the group led by Swami Chakrapani as President of the Akhil Bharat Hindu Mahasabha (ABHM).
The question for adjudication in this Appeal was of validity of the Commission’s impugned decision dated 14.01.2011 recalling the “recognition” granted vide let- ter dated 11.11.2010 to respondent no.2 Swami Chakrapani as President and to others as per the list furnished by him as office bearers, of ABHM. The Hon’ble Court, while disposing of the Appeal, observed that the learned Single Judge did not return any finding as to the correctness of the Commission’s initial decision dated 11.11.2010, granting recognition to Swami Chakrapani as the President/office bearer of ABHM, while quashing the subsequent ECI decision dated 14.01.2011 withdrawing such recognition. The Appellate Court observed that such a view could be taken only if the election of Swami Chakrapani had been a unanimous one and there was no other claimant. But in the present case, there were many claimants to the post of President and other office bearers of the party since the year 2004-06.
The Appellate Court did not agree with the opinion of the learned Single Judge that ECI could not have reviewed/corrected its own decision granting recognition to a group as authorised office bearer of a registered party without an order of a competent Court of Law. It was not proper to quash / set aside the decision dated 14.01.2011 taken by ECI for the reason that earlier an erroneous decision had been taken. The Court held that in the case of internal dispute within a political party recognised
101 “No voter to be left behind” under the Election Symbols (Reservation and Allotment) Order, 1968, ECI is empow- ered under Para 15 thereof to decide which of the rival sections or groups is the au- thorized office bearers of that party. The said provision is, however, not applicable to unrecognized political parties such as ABHM.
The High Court held that the ECI was/is thus not empowered to decide such inter se disputes in an unrecognized political party and take any decision as to whose claim was correct. The decision taken by ECI on 11.11.2010 of preferring the claim of Swami Chakrapani as the President/office bearer of ABHM over that of others was clearly beyond its powers/jurisdiction. On the contrary, the corrective action taken by the ECI on 14.01.2011 to rescind its earlier decision of 11.11.2010 giving recognition to the group headed by Swami Chakrapani as the authorized represen- tatives of ABHM was found to be in accordance with Sec.21 of the General Clauses Act, 1897.
The Appeal was allowed and the judgment of the learned Single Judge in W.P. (C) No.704 of 2011 was set aside.
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JUDGMENT
Hon’ble D Murugesan, Chief Justice
Hon’ble Mr. Justice Rajiv Sahai, Judge
Advocates for Appellant: Mr. Jayant Bhushan, Sr. Adv. with Mr. Atul Chaubey,
Advocates for Respondent: Mr. P.R. Chopra, Adv. for R-1, Dr. Indira Tiwari, Attorney for R-2, Mr. B.S. Billowaria & Mr. Vijay Pratap Singh
(1) The challenge in this Intra-Court appeal is to the judgment dated 02.05.2011 allowing W.P.(C) No. 704/2011 preferred by the respondent No. 2 Swami Chakra- pani, by quashing the “order dated 14.01.2011 of the respondent No. 1 Election Commission of India (ECI).” Notice of this appeal was issued and vide interim order dated 27.09.2011 “status quo existing as on today” was directed to be main- tained till the next date of hearing. The said interim order was made absolute on 13.10.2011. CM No. 18167/2011 was preferred by one Dr. Santosh Rai for and on behalf of one Sh. Kamlesh Tiwari [claiming to be the duly elected President of the Uchchadhikar Samiti (High Power Committee) of Akhil Bharat Hindu Mahasabha] for intervention. He was allowed to so intervene and his counsel has also been heard along with counsel for the parties.
(2) Akhil Bharat Hindu Mahasabha (ABHM) is stated, to have been organized as far back in the year 1907 and registered as a Society under the Societies Regis- tration Act, 1860 in the year 1917; it participated in the elections held in the year 1926 to Provincial Legislatures and in the year 1930 in the elections for the Central Assembly; it became a political party in the year 1937 and enjoys the status of a registered political party within the meaning of Section 29A of the Representation of the People Act, 1951, though not recognized.
(3) The letter dated 14.01.2011 of the respondent No. 1 ECI and impugning which the writ petition from which this appeal arises was filed inter alia records:
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(i) that during the year 2004-06 several communications from different factions of ABHM claiming themselves to be the authorized office bearers of the party were received by the ECI;
(ii) on the basis of the aforesaid communications, respondent No. 1 ECI was of the opinion that there were internal disputes within the party and accordingly respondent No. 1 ECI vide its letter dated 14.01.2004 intimated to all those ap- proaching it that the internal disputes of ABHM had to be settled by them either amicably within the party or though a competent Court of Law;
(iii) subsequently vide letters dated 06.07.2007 and 09.07.2007, the respon- dent No. 1 ECI was informed that the disputes within the party had been settled;
(iv) the respondent no. 1 ECI vide its letter dated 07.08.2007 informed ABHM that ECI had taken on its record the list of office bearers of ABHM as informed by ABHM vide its letter dated 06.09.2006;
(v) however, respondent No. 1 ECI was subsequently informed of filing of CS(OS) No. 837/2007 in this Court impugning the claims of a) respondent No. 2 Swami Chakrapani, b) Sh. Dinesh Chandra Tyagi (not a party to this proceeding), and of the appellant herein of being the office bearers of ABHM;
(vi) accordingly the respondent No. 1 ECI vide its letter dated 21.08.2007 withdrew the decision communicated by it vide its earlier letter dated 07.08.2007 (supra) and further clarified that nobody would be recognized as the authorized office bearers of ABHM and the future course of action regarding office bearers of ABHM would depend upon the decision in the said suit;
(vii) the respondent no. 1 ECI was in May, 2010 informed of the dismissal of the said suit for non-prosecution on 22.03.2010 and the ECI was called upon to revive the acceptance granted to the office bearers vide letter dated 07.08.2007 (supra); the respondent No. 1 ECI was also informed of election of the respondent No. 2 Swami Chakrapani as the President of ABHM for the year 2008-10 and 2010-12 and was requested to take the same along with the list of office bearers for the year 2008-10 and 2010-12 on record;
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(viii) though another two groups led by Sh. Munna Kumar Sharma and Sh. Nand Kishore Mishra also staked their claim of being office bearers of ABHM but were unable to submit any documentary proof thereof;
(ix) accordingly, the respondent No. 1 ECI vide its letter dated 08.10.2010 revived its letter dated 07.08.2007 (supra) and the position as prevailing before the filing of the suit which had since been dismissed; one Dr. Indira Tiwari who was corresponding on behalf of the respondent No. 2 Swami Chakrapani with the re- spondent No. 1 ECI was also called upon to furnish the list of office bearers which was so furnished along with documentary evidence and on the basis whereof the respondent no. 1 ECI vide its letter dated 11.11.2010 took the same on record;
(x) however the respondent No. 1 ECI since then had received various commu- nications from different persons raising objections and disputes qua the claim of re- spondent No. 2 Swami Chakrapani of being the office bearer and further claiming that respondent no. 2 Swami Chakrapani and his group had rather been expelled from ABHM;
(xi) the respondent No. 1 ECI on the basis of the aforesaid fresh representations received by it concluded that the internal disputes of ABHM had not been resolved and persisted;
(xii) the respondent No. 1 ECI itself did not inquire into disputes within unrecog- nized political parties; The respondent no. 1 ECI thus vide letter dated 14.01.2011 impugned in the writ petition, withdrew the earlier letter dated 11.11.2010 taking on record the respon- dent No. 2 Swami Chakrapani as the President of ABHM.
(4) It was the contention of the respondent No. 2 Swami Chakrapani before the learned Single Judge that there was no basis whatsoever for the respondent No. 1 ECI to have reversed its decision of taking on record respondent No. 2 Swami Chakrapani as the President of ABHM; that the same could not be done on mere representations and anyone disputing his claim as the President and the list of office bearers submitted by him, ought to have approached the Civil Court. The appellant
105 “No voter to be left behind” though was not impleaded as a party to the writ petition, intervened and support- ed the decision of the respondent No. 1 ECI. It was his contention that any other decision of the respondent No. 1 ECI (than the decision communicated vide letter dated 14.1.2011) would tantamount to recognizing the respondent No. 2 Swami Chakrapani as the President and which was beyond the jurisdiction of respondent No. 1 ECI. It was the contention of respondent No. 1 ECI before the learned Single Judge that the decision communicated vide letter dated 14.01.2011 was of admin- istrative nature and not determinative of the rights of the respective claimants to be office bearers of ABHM and such a decision was reviewable depending upon the developments from time to time.
(5) The learned Single Judge in the judgment impugned before us, has ob- served/held:
(i) that the decision of respondent No. 1 ECI communicated vide letter dated 21.08.2007 to recall the decision dated 7.8.2007 was on account of the then pen- dency of the civil suit and was subject to the outcome of the civil suit;
(ii) consequently, with the dismissal of the civil suit, the legal challenge to the claim of respondent No. 2 Swami Chakrapani failed and the respondent No. 1 ECI had vide its letter dated 11.11.2010 rightly revived the letter dated 07.08.2007 and there was no justification to on 14.01.2011 reverse the said decision.
The writ petition was accordingly allowed granting liberty to all those claiming adversely to the respondent No. 2 Swami Chakrapani, to avail the appropriate remedy and granting liberty to respondent No. 1 ECI also to vary its decision de- pending upon the order if any of Civil Court in proceedings to be so initiated by the adversaries of respondent No. 2 Swami Chakrapani.
(6) Neither is there any provision in the Act nor have any of the counsels contro- verted that the respondent No. 1 ECI has no jurisdiction or mechanism to adjudicate rival claims of unrecognized political parties registered with it. The only question which thus falls for adjudication is of validity of the decision dated 14.01.2011 of the respondent no. 1 ECI, recalling the “recognition” granted vide letter dated 11.11.2010 to respondent no. 2 Swami Chakrapani as President and to others as
106 “No voter to be left behind” per the list submitted by respondent no. 2 Swami Chakrapani as office bearers, of ABHM. The learned Single Judge has held the decision dated 14.01.2011 to be invalid and ECI not entitled to take, in the absence of any order of Court of law. (7) What we however find is that the disputes as to the management of ABHM were pending since the year 2004-06 and owing whereto the respondent No. 1 ECI had decided not to recognize or deal with any of the rival groups all of whom were claiming to be in management of ABHM. There is nothing to show that ABHM had before accepting the respondent No. 2 Swami Chakrapani as office bearer of ABHM on 07.08.2007 conducted any inquiry. However on learning of the filing of the civil suit aforesaid, such decision was also kept in abeyance. After the suit was dismissed for non prosecution, again even though there were rival claims but respondent No. 2 Swami Chakrapani was again accepted as President only for the reason of some documents on his behalf having been submitted while no such documents were submitted on behalf of his rival groups. Accordingly, the commu- nication dated 11.11.2010 recognizing respondent No. 2 Swami Chakrapani as office bearer was issued. However, the respondent No. 1 ECI continued to receive representations/complaints against recognition so accorded to respondent No. 2 Swami Chakrapani as the President/office bearer of ABHM, which resulted in the ECI, on 14.01.2011 withdrawing such recognition.
(8) It is this ambivalent attitude of respondent No. 1 ECI which has weighed with the learned Single Judge in quashing the letter dated 14.01.2011. We may howev- er notice that even the learned Single Judge has not returned any finding as to the correctness of the decision dated 11.11.2010 of respondent No. 1 ECI recognizing respondent No. 2 Swami Chakrapani as President/office bearer of ABHM. We are of the view that in the face of disputes since the year 2004, the recognition in the year 2010 of respondent No. 2 Swami Chakrapani as the President/office bearer, notwithstanding the dismissal of the civil suit for non prosecution, could not have been accorded without it being established before the respondent No. 1 ECI, i) as to who all were the members of ABHM; ii) whether the elections as prescribed in the Rules and Regulations of ABHM had been held or not; and iii) whether the respon- dent No. 2 Swami Chakrapani had so been elected as the office bearer/President. There was no such material before the respondent No. 1 ECI. It cannot also be lost sight of that even as on 11.11.2010, the respondent No. 1 ECI was continuing to
107 “No voter to be left behind” receive opposition to the claims of respondent No. 2 Swami Chakrapani. The said opposition however appears to have been disregarded by the respondent No. 1 ECI only for the reason of being without any substantiating documents. However when respondent No. 1 ECI continued to receive objections to the claim of respondent No. 2 Swami Chakrapani, it undoubtedly reviewed its decision dated 11.11.2010.
(9) We differ from the opinion of the learned Single Judge that the respondent No. 1 ECI could not have so reviewed its decision without an order of a competent Court of law. That would have been the position had the recognition earlier accorded to the respondent No. 2 Swami Chakrapani been with the consent of all concerned or had the communication of his election as President/office bearer been a unan- imous one. It could then have been said that subsequent objection thereto was an afterthought and ECI would then have been justified in refusing to revoke the rec- ognition without Court order of the earlier unanimous intimation being no longer valid. However the respondent No. 1 ECI on 14.01.2011 appears to have felt that its earlier decision dated 11.11.2010 was erroneous. The learned Single judge has held that the respondent no. 1 ECI could not have so corrected its decision. We are however of the view that this Court in exercise of powers of judicial review ought not to interfere with a decision of a body such as the respondent No. 1 ECI which de- cision is otherwise found to be correct in law. Such a decision cannot be quashed/ set aside merely for the reason that earlier an erroneous decision had been taken. We are further of the view that in the face of such challenges, it is for the person who is wanting to exercise rights as President/office bearer to seek a declaration to such office and he cannot be allowed to hold office or to exercise powers thereof merely for the reason of the others having not approached the Court of law. We may however clarify that we have so concluded in view of there being no unequivocal document before us of the election of the respondent No. 2 Swami Chakrapani as office bearer of ABHM in accordance with its constitution. Rather what is before us is, material to show that there have been disputes since the year 2004 as to the inter- nal management of ABHM and which do not appear to have been resolved at any point of time. Merely because the persons who had filed the suit chose not to pursue the same cannot confer any legitimacy to the respondent No. 2 Swami Chakrapani when a large number of other persons concerned with ABHM are continuing to dispute the claim of respondent No. 2 Swami Chakrapani. We have also perused the written statement filed by the respondent No. 2 Swami Chakrapani in the suit
108 “No voter to be left behind” aforesaid and from which also we are unable to cull out any clarity on the matter. Moreover the said suit was filed in the year 2007 while what was for consideration in the year 2010 was the election of the respondent No. 2 for the period 2010-12. (10) HM as aforesaid is not a recognized political party. Though the term “recognized political party” is not defined in the Act but the Explanation to Section 52 thereof provides that “recognized political party” means a political party rec- ognized by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. The said Order vide Clause 15 thereof empowers the ECI, when there are rival sections or groups of a political party each of whom claims to be that party, to after taking into account all the available facts and circumstances and hearing representatives of the sections or groups, decide which of such rival section or group is that recognized political party; such decision of ECI is made binding on all such rival sections or groups. However the said Clause does not apply to unrecognized political parties as ABHM is. ECI was/is thus not empowered to in the face of rival claims of respondent no. 2 Swami Chakrapani and others take any decision as to whose claim was correct. That being the position, ECI could not have on 11.11.2010 recognized respondent no. 2 Swami Chakrapani as the President/ office bearer of ABHM. We are thus of the view that the decision dated 11.11.2010 of ECI of preferring the claim of respondent no. 2 Swami Chakrapani over that of others was clearly beyond the powers/jurisdiction of ECI. Axiomatically the cor- rective action of ECI on 14.01.2011 is found to be in accordance with law and thus cannot be faulted with. We may mention that the Supreme Court in Janata Dal (Samajwadi) Vs. Election Commission of India (1996) 1 SCC 235 has held the ECI empowered to rescind its orders even in the absence of any specific power therefore .It was held that Section 21 of the General Clauses Act, 1897 applies. ECI was thus empowered to, on 14.01.2011 rescind the earlier order dated 11.11.2010 which as aforesaid was beyond its powers/jurisdiction.
(11) We are further of the view that in the absence of ECI being empowered to decide such inter se disputes of an unrecognized political party, the decision dated 11.11.2010 was an administrative decision, not taken in exercise of any quasi judicial powers. The Supreme Court in R.R. Verma Vs. UOI (1980) 3 SCC 402, has held that decisions in administrative matters cannot be hidebound by the rules and restrictions of judicial procedure.
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(12) We have opted to pass a speaking judgment even though the term 2010-12 for which the respondent no. 2 Swami Chakrapani claims to be President/office bearer is expiring, to clarify the position since respondent No. 1 ECI may be faced with communication by respondent No. 2 Swami Chakrapani with respect to subse- quent years and further since we deem it proper to clarify the position as respondent No. 1 ECI may face such issues qua other political parties also.
(13) We may further record that the appellant had filed CM No. 1119/2012 seeking clarification that the interim order of status quo in this appeal be not read as authorizing respondent No. 2 Swami Chakrapani to use of the election symbol allotted to ABHM in the election then scheduled in the State of Uttar Pradesh. No orders were made on this application since the election process had already begun and we had heard arguments finally in the appeal. We now clarify that the order allowing this appeal shall have no bearing to the outcome of the elections in the State of Uttar Pradesh.
(14) The appeal is accordingly allowed and the judgment of the learned Single Judge is set aside; axiomatically, the letter dated 14.01.2011 of the respondent No. 1 ECI is held to be valid and the writ petition filed by the respondent no. 2 Swami Chakrapani is dismissed. No order as to costs.
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JUDGMENT-7
HIGH COURT OF MADRAS
W.P.Nos.8289 and 8290 of 2011 (Decision dated 09/04/2011)
Patty B. Jaganathan...... …………………………………….....Appellant
Versus
The Chief Election Commissioner & Ors.……………………… ...... Respondents
HELD: Instructions issued by the Election Commission on expenditure monitoring in elections does not violate any of the fundamental rights guaranteed under the Con- stitution - The Constitution of India – Article 19(1)(d) and (1)(g) – Right to Freedom – to move freely throughout the territory of India and to practice any profession, or to carry on any occupation, trade or business – Article 21 – Protection of life and personal liberty –(Para 16)
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SUMMARY
Two separate Writ Petitions were filed by the same petitioner. In the first petition prayer was made for issuance of a Writ of Declaration declaring the com- prehensive instructions issued by the Election Commission for close monitoring of election expenditure by political parties and candidates during the then forthcoming general election to the Legislative Assembly of Tamil Nadu as ultra vires the Consti- tution of India.
In the second Writ Petition prayer was made for issuance of Writ of Manda- mus forbearing the Election Commission, the Chief Electoral Officer and the Director General of Police, Tamil Nadu from implementing the mechanism for Election Expenditure monitoring laid down by the Commission, particularly about the stan- dard operating procedure for the Flying Squads and Static Surveillance Teams con- stituted for search and seizure of unaccounted cash or liquor or gifts meant for distribution among electors with the purpose of influencing them during elections.
The petitioner’s contention was that implementation of the impugned instruc- tions issued for monitoring of election expenditure has taken away the fundamental rights of citizens to move freely throughout the country and to practice any profes- sion or carry on any occupation, trade or business contained in Article 19(1)(d) and 19(1)(g) of the Constitution during the period of election.
The Hon’ble High Court of Judicature at Madras held that the instructions issued by the Commission in the context of “Expenditure Monitoring in Elections” is in no way arbitrary or against the constitutional guarantees provided to the citizens and does not violate any of the fundamental rights, much less the rights guaranteed under Articles 19 (1)(d) and 19 (1) (g) or Article 21 of the Constitution of India. The Hon’ble Court further held that the Election Commission has neither exercised excessive power nor encroached upon the other area occupied by the Central or State Legislations while issuing these instructions.
The Hon’ble Court directed the Commission to discharge its duties in accor- dance with the procedures established by law.
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JUDGMENT
Hon’ble M.Y. Eqbal, Chief Justice
Hon’bleT.S. Sivagnanam, Judge
Advocates for Appellant: N. Jothi,
Advocates for Respondents: G. Rajagopal,S.C. for G.R. Associates for Respondents 1 and 2 in both WPs; J. Rajakalifulla, G.P. assisted by M. Sneha,G.A. for Respondent 3 in Both WPs.
(1) Since, in these two writ petitions common question of law and facts have been raised, they had been heard and disposed of by this common order.
(2) In W.P. No. 8289 of 2011 the Petitioner has prayed for the issuance of a Writ of Declaration declaring the instructions dated 07.02.2011 issued by the 1st Respondent in his Letter No. 76/instructions/2011 as ultra virus to the Constitution of India.
(3) In W.P. No. 8290 of 2011 the Petitioner has prayed for the issuance of a Writ of Mandamus forbearing the Respondents 1 to 3 from implementing Instruction Nos. 4.6.1 to 4.7.5 issued by the 1st Respondent dated 07.02.2011 in his Letter No. 76/Instructions/2011.
(4) Before discussing the Petitioner’s case in both the writ petitions, we would like to quote the relevant instructions issued by the Election Commission of India on Expenditure Monitoring in Elections vide its Letter No. 76/Instructions/2011/WEM dated 07.02.2011, which are under challenge.
4.6.1. Flying Squads:
This team will start functioning from the date of notification of election till the
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completion of poll. In Expenditure Sensitive constituencies there may be more than one such teams, depending on the requirement. They will not be given any other work during this period. The DEO and the SP of the district will ensure that the teams are constituted and trained before the notification of the election. The names and mobile numbers of the officers and the Magistrate as head of the team are provided to the Complaint Centre, Assistant Expenditure Observer and Expenditure Observer and also published in local Media. In Expenditure Sensitive constituencies, a section of CPF and one Central Government or Central PSU employee of the district may be deployed, depending on the situation and the DEO will take necessary steps in this regard. The DEO will constitute the flying squads with officers of proven integrity and ensure that they are not engaged in any function other than the job assigned to them.
4.6.2. Whenever a complaint regarding distribution of cash or liquor or any other item is received, the flying squads shall reach the spot immediately. The squad will gather necessary evidence, seize the items of bribe, gather evidences and record statement of the witnesses and persons. The team will send a report immediately to the R.O. with a copy to the S.P. and the Assistant Expenditure Observer (Annexure-8). The entire proceeding shall be video recorded.
4.7.1. Static Surveillance Team:
This team will keep a watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in their area. For this purpose checking and search of vehicles and persons can be carried out by the surveillance team by putting check posts on major roads or arterial roads, right from the date of the notification. If unexplained cash without proper documents is found in the possession of any persona and is suspected to be used for bribing the voters, it shall be seized and action taken under the relevant provisions of the law. The whole event of checking and seizure is to be video graphed by a video team, which will submit the copy of the video CD to the Assistant Expenditure Observer. The placements of these check posts is to be worked out in consultation with Assistant Expenditure Observer.
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4.7.2. If the Expenditure Observer feels the necessity of more such teams, then the DEO will provide the man power for all such teams with logistics. One week before the day of poll, the surveillance activity shall be strengthened effectively and more number of teams shall be formed, depending on the requirements. The daily activity report is to be submitted. (Annexure ‘ 9).
4.7.3. F.I.R. must be lodged immediately against the persons from whom any seizure is made. The cash seized, if any, should be deposited in the State Treasury within 24 hours. The Nodal Officer at Police Head Quarters will follow up the cases after seizure and send report to the Commission with copy to the CEO after the election, on the status of the cases in the Court.
4.7.4. The DE Os will publish an appeal to the public and political parties in Media immediately after the announcement of election, requesting them not to carry huge amount of cash during elections. If anybody has to carry huge cash during election in any constituency for any emergency purpose, he must carry proper documents to explain the source and end use of such cash. A sample appeal letter is enclosed at Annexure 10.
4.7.5. Nodal Officer at Police Headquarters:
One officer of the level of Inspector General at the Police Head Quarters of the State will be notified as the Nodal Officer for co-ordination with all law enforcement agencies and with the Commission. His office telephone number and mobile number will be intimated to the Expenditure Observer, Investigation Directorate, Excise Department and other law enforcement agencies during election. The seizure reports by the flying squads of the district will be complied by the SP and faxed to the Nodal Officer at Police Head Quarter within 24 hours. The Nodal Officer will compile the information for the State and send Daily Report to the Commission with copy to the CEO.
(5) Mr. N. Jothi, learned Counsel appearing for the Petitioner in both the writ petitions made elaborate submissions and we gave patient hearing to him. Learned Counsel submitted that under the guise of implementing electoral restrictions, the
115 “No voter to be left behind” trading activities of tradesmen and the normal pursuit of life by the citizens of Tamil Nadu are brought under the control of the Election Commission of India, as if emergency has been proclaimed in the State of Tamil Nadu. It is contended that by the im- plementation of the impugned instructions the fundamental rights as contained in Articles 19(1)(d) and 19(1)(g) have been taken away. According to the learned Counsel the instructions 4.6.1. to 4.7.5 are in the nature of curtailment of business and trading activities within the territory of Tamil Nadu and the same are contrary to the established law made by the Parliament or the State Legislature. It is contended that without any rhyme or reason the flying squads of Respondents 1 and 2 with the assistance of the 3rd Respondent are intercepting vehicles on public roads, entering into houses even after sun set and at odd hours and seizing money, ma- terials, goods, trading goods, etc. without following or observing the established procedures. Learned Counsel submitted that search and seizure can be conducted only in the manner as contained in Sections 99 to 105 of the Code of Criminal Procedure. Learned Counsel submitted that the people of Tamil Nadu are entitled to lead their normal life with respect to their day to day activity of procurement of ma- terial, indulge in manufacturing process, transport of finished and unfinished goods, movement of goods, purchase of articles, sale of articles, transaction of money for their commercial activity, etc. Learned Counsel submitted that the impugned instruc- tions have been blindly issued by the Respondents without any guidelines nor there is any practical approach in these instructions. Learned Counsel further referred to Instruction No. 4.7.3. and submitted that as per this instruction F.I.R. must be lodged immediately against the persons from whom any seizure is made. Learned Counsel submitted that F.I.R. can be lodged only when a commission of a cognizable of- fence is made out. According to the learned Counsel mere possession of money or goods in trade FIR cannot be lodged and carrying goods of merchandise is not a cognizable offence. Hence, the said instruction is only illegal and unconstitutional. Learned Counsel further submitted that the dictating terms of instructions is nothing but a mockery of exercise of power by the Election Commission of India. Lastly, the learned Counsel submitted that there is no acceptable manner of procedure contem- plated to ascertain the purpose of the seizure or for its return. The instructions con- tained in the letter dated 07.02.11, is therefore, particularly Instruction Nos. 4.6.1 to 4.7.5, are ultra virus to constitution and the Respondents must be restrained from implementing these instructions.
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(6) Mr. G. Rajagopal, learned Senior Counsel appearing for the Respondents 1 and 2 referring to the common counter affidavit filed submitted that the Petitioner’s contention that the freedom of trade and movement of citizens are affected in the State of Tamil Nadu on account of measures taken by the Election Commission of India is not correct. The learned Senior Counsel further submitted that no citizen can claim any right to carry unaccounted cash or other movables without supporting documents. Learned Senior Counsel submitted that the Election Commission of India is fully justified in issuing the impugned instructions dated 07.02.2011 as it is the constitutional duty of the Election Commission to conduct free and fair elections by preventing illegal distribution of cash and other articles to the voters, and to prevent the use of unaccounted money in the elections. Learned Senior Counsel submitted that the writ petitions cannot be entertained on general allegations, and if any indi- vidual citizen is aggrieved by the action of the Election Commission, he can agitate the same by specifically pointing out the violation. He further submitted that the search and seizures are carried out pursuant to the Election Commission’s power under Article 324 of the Constitution of India. He submitted that the writ petitions are filed on certain assumption without furnishing any material particulars. Lastly, he submitted that the entire issue has been covered by the judgment of this Court dated 01.04.2011 passed in W.P. Nos. 6936 of 2011 and 7736 of 2011, and therefore, no relief can be given in the present writ petitions.
(7) Before discussing the instructions under challenge, we must keep in mind the settled proposition of law that the general power of superintendence, direction, con- trol and conduct of election is vested in the Election Commission under Article 324 of the Constitution of India. However, it is subject to any law either made by Parlia- ment or State Legislature, as the case may be, provided it does not encroach upon the plenary power of the Commission under Article 324 in the area left unoccupied by the legislation. The words ‘superintendence, control, direction as well conduct of all elections’ are broadest terms. Article 324(1) of the Constitution confers residual power to the Commission relating to the electoral process and it empowers the com- mission to issue all directions necessary for the purpose of conducting smooth, free and fair elections and for this purpose Article 324(1) is to be construed liberally. Apart from the powers conferred by the Representation of Peoples Act and the Rules made there under, the Election Commission has ample power under Article 324(1)
117 “No voter to be left behind” itself to make appropriate orders as to the conduct of election. Hence, the Election Commission has powers to issue directions in the process of conduct of elections to the effect that the political parties shall submit to the Commission for its scrutiny the details of the expenditure incurred or authorized by the political parties in connec- tion with election of their representative candidates.
(8) In the light of the aforesaid settled proposition of law, we shall now examine the instructions issued by the Election Commission, which is the subject matter of challenge in these writ petitions.
(9) Instruction 4.6.1 speaks about the function and duties of the flying squad. According to this instruction, the flying squad will start functioning from the date of notification of election till the completion of poll. In sensitive constituencies, more than one flying squad team may be deployed and they shall not be given any other work during the election period. The flying squad shall be fully trained before the notification of the election. This instruction further provides that in expenditure sen- sitive constituencies, a section of CPF and one Central Government or Central PSU employee of the district may be deputed.
(10) Instruction 4.6.2 speaks about the complaint regarding distribution of cash, liquor or any other item and the role of flying squad team. According to this instruc- tion, if any information is received the team shall go to the spot immediately, and gather necessary evidence, seize the items and record the statements of the witness- es and persons. The team will send a report to the Returning Officer with a copy to the Superintendent of Police and the Assistant Expenditure Observer. The entire proceeding shall be video recorded.
(11) Instruction 4.7.1 speaks about the Static Surveillance Team. According to this instruction, the team will keep a watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in their area and also carry out check in major or arterial roads right from the date of notification. If any person is found in possession of cash or other items without proper documents, the team can seize the same and take action under the relevant provisions of law. The entire event must be videographed.
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(12) Instruction 4.7.2 states that if the Expenditure Observer feels the necessity of more teams, then the DEO shall provide the manpower and one week before the poll, the surveillance activity shall be strengthened effectively with adding of more number of teams, depending upon the requirements.
(13) Instruction 4.7.3. speaks about the lodging of the FIR as soon as the seizure is made and the deposit of cash, if any, seized within 24 hours to the State Treasury. The Nodal Officer will follow up the cases after seizure and send the report to the Commission with copy to CEO after the election on the status of the cases in Court.
(14) Instruction 4.7.4 states that DE Os shall publish appeal in media to the public and political parties not to carry huge amount of cash during elections. If anybody intends to carry, they can do so by carrying proper documents to explain the source and use of such cash.
(15) Instruction 4.7.5 speaks about the Nodal Officer at Police Headquarters. Ac- cording to this instruction, one officer at the level of Inspector General at the Police Headquarters of the State will be notified as Nodal Officer for co-ordination with enforcement agencies and with the Commission. His contact numbers shall be sent to the Expenditure Observer, Investigation Directorate, Excise Department and other law enforcement agencies during election. The seizure reports by the flying squad of each district will be complied by the respective Superintendents and will be faxed to the Nodal Officer within 24 hours, who in turn will compile the information for the State and send daily report to the Commission with a copy to the CEO.
(16) From a bare perusal of the instructions, it does not appear that the power conferred to the Election Commission and its officers are arbitrary or against the constitutional guarantees provided to the citizens. The seizure of unaccounted cash or other movables or seizure of huge quantity of gold, silver and unlicensed arms by the Election Commission does not violate any of the fundamental rights, much less the rights guaranteed under Articles 19(1)(d) and 19(1)(g) or Article 21 of the Constitution of India.
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(17) A similar question was raised in a batch of writ petitions viz., W.P. No. 8103 of 2011 and other cases. This Court by its order dated 01.04.2011 disposed of the writ petitions and held as under:
34. There is no dispute that the Representation of People Act, 1951 (in short ‘Act, 1951’) cast a mandate on every candidate to maintain the account of expenditure incurred during the election. The Election Commission has prescribed a detailed guideline called ‘Instructions on Expenditure Monitoring in Elections’. By instruction dated 17th March, 2011, issued by the Election Commission, standard operating procedure for dealing with unaccounted and other valuables have been prescribed. According to the instructions, if cash is being carried with proper documents or if it is for any other purpose and the person carrying those valuables satisfy the officers conducting the search and seizure, then those valuables shall be returned to the owner forthwith. It is well settled law that the duty of the Election Commission, inter alia, is to prevent distribution of money to the public and Commission should take all steps to curb those activities. The election being a very important event for the State, the Election Commission has to maintain law and order to ensure free and fair election and also curb the malpractices.
35......
36. After giving our anxious consideration in the matter, we, therefore, dispose of these writ petitions with the following directions and observations:
(1) To ensure free and fair elections to the Legislative Assembly in the State of Tamil Nadu to be held in April, 2011, the authorities of the Election Commis sion shall follow the instructions contained in ‘Expenditure Monitoring in Elections’, and other guidelines issued time to time.
(2) The standard procedure for dealing in unaccounted cash and other valuables shall be followed, and in case some criminal linkage is found, the seizure shall be effected. However, it is made clear that if cash or other valuables is being carried with proper documents, then no seizure shall take place and the same shall be returned to the person concerned.
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(3) The whole operation should be video graphed and the flying squad shall ensure all politeness, decency and courtesy.
(4) But, in no case the distribution of money or other valuables to the public shall be permitted till the election is over.
(5) The Commission is also directed that for curbing large scale crimes, extra ordinary security measures should be taken till the election results are announced, and the safety and security of the Flying Squads shall be taken care.
(18) The activities of the Election Commission in making search and seizure in the name of implementing the Model Code of Conduct came up for consideration recently before a single Bench of this Court in W.P. No. 7011 of 2011. In that case the Petitioner challenged the seizure made by the Respondents which amount was stated to have been carried for the purpose of making payment to the workers. The learned Judge disposed of the writ petition with certain directions. The relevant por- tion of the order is quoted herein below:
4.3. According to him, the effect of the rules is being published in all newspapers, both Tamil and English, and also shown in various television channels, so as to enable the people to understand the implication and follow the same in such event of seizure. He would also submit that since the Respondents were not satisfied about the reason assigned for carrying huge quantity of amount the same was recovered by them and thereafter, the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai ‘ 600 034, by executing the warrant of authorization under Section 132A of the Income Tax Act, 1961 has taken over the amount from the second Respondent. Therefore, according to him, if only the Petitioner justifies the purpose for which the amount was carried, the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai ‘ 600 034 would release the same.
5. Considering the above said facts and circumstances of the case, I am of the considered view that while it is the duty on the part of the Respondents to see that the Election Code of Conduct is scrupulously followed, it must be
121 “No voter to be left behind”
ensured that under the guise of following the rules strictly, the innocent people should not be targeted and therefore, it is desirable that the Election Commission makes publication in the language known to the people of this State about the above said provisions. Moreover, as and when seizure is effected, it should be stated as to whom the citizen has to approach and what are all particulars have to be furnished. It is also expected that when a seizure order is made like the impugned notice, it is the duty on the part of the Election Officer to indicate in the said order as to the next course of action, viz., as to which authority he has to approach and so on, and these particulars are necessary not only to see that the Election Code of Conduct is properly implemented, but also to make sure that it will not have adverse effect on the innocent and genuine persons.
6. On the facts of the present case, since it is stated that the amount has been taken over by the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai ‘ 600 034 with all necessary records and the Deputy Director of Income Tax(Inv), Unit ‘ IV(2), Chennai ‘ 600 034, on being satisfied about the records produced by the Petitioner, shall pass appropriate orders within one week from the date when the Petitioner approaches him with a copy of this order. No costs. Consequently, M.P. No. 1 of 2011 is closed.
(19) So far the instant case is concerned, after holding that the instructions contained in the ‘Expenditure Monitoring in Elections’ does not amount to exercising excessive power by the Election Commission or encroaching upon the other area occupied by the Central or State Legislations, we dispose of these writ petitions reiterating the ob- servations and directions given in the earlier writ petitions as quoted hereinbefore. In our opinion, no further directions need to be issued to the Election Commission except that they shall discharge their duties in accordance with the procedures es- tablished by law. No costs.
Consequently, connected miscellaneous petitions are closed.
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JUDGMENT-8 ALLAHABAD HIGH COURT
PIL No.2630 of 2012
(Decision dated 24/01/2012)
Dheeraj Pratap Singh ...... ……………………………………....Petitioner
Versus
Chief Election Commission, Union of India & Anr. ……………...... Respondents
Constitution of India – Article 25 – Right to freedom of religion – Clause (1) – HELD: rights of a person to profess or practice a religion is subject to restrictions on the grounds of public order, morality, health or the other provisions of Part III of the Constitution.
Constitution of India – Article 324 - HELD: Election Commission’s direction to cover statues of ‘Elephant’ and Ms. Mayawati constructed at public expense, falls within permissible limitations under Article 25.
The Representation of the People Act, 1951 – S. 123 – Corrupt practices -proviso to sub-section (3) – HELD: No election symbol shall be deemed to be a religious symbol or a national symbol. (Para 21)
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SUMMARY
The petition was filed as a Public Interest Petition to challenge the direction issued by the Election Commission vide its Order dated 8.1.2012 that each and every statue of “Elephant”, and each and every statue of Ms. Mayawati, the then Chief Minister of the State of Uttar Pradesh, constructed/erected in public places within the State of Uttar Pradesh shall be suitably covered so as to ensure that these statues do not influence the minds of the electors and disturb the level playing field during the then impending general election to the Uttar Pradesh Legislative Assem- bly. The petitioner’s contention was that the above direction was an infringement of his religious faith and violative of his fundamental right to freedom of religion guar- anteed under Article 25 of the Constitution of India because “elephant” is one of the seven divine forms of the godhead, and that it is impermissible to cover the statue for the entire electoral period. Further the Commission ought not to have issued such a direction to cover the statues when in its principle Order dated 11.10.2010 it had admitted that it was not in a position to gauge the extent of impact of the above statutes on the minds of the electors. The petitioner further contended that if the ‘elephant’ symbol deserved to be covered, then the cycles and hands which are symbols of other political parties should also be covered.
The High Court held that clause (1) of Article 25 of the Constitution itself stipulates restrictions on the right of a person to profess or practice a religion, on the grounds of public order, morality, health or the other provisions of Part III of the Constitution. The direction issued by the Commission to cover the statues of elephant and Ms. Mayawati built on public expense was an act for furthering public order and morality and consistent with the right to equality and fall within the acceptable limitations imposed on the fundamental right to freedom of religion. Further, there being no material for treating these statues as religious symbols that were wor- shipped by the public or any particular section of the public the direction of the Commission to cover these statutes cannot be said to be an interference with the essential or integral part of the faith or practices of the followers of the Hindu faith.
It also held that the apprehensions of the Bahujan Samaj Party (for short “the
124 “No voter to be left behind”
BSP”), which was impleaded as a party respondent, that if the ‘elephant’ symbol is given religious significance then the party could run the risk of losing the symbol on that account is ill-founded as the proviso to Section 123 (3) of the 1951 Act itself makes an exception by providing that no symbol allotted under this Act to a candi- date shall be deemed to be a religious symbol or a national symbol.
In so far as the petitioner’s argument that cycles should be banned or that hands or other objects which constitute election symbols of one or the other contes- tant be covered, the Court observed that symbols depicting common objects are allotted by the Commission to facilitate the voters, especially the illiterate ones, to have a clear idea of the party or candidate that they wish to support and vote. The direction to cover the statues of ‘elephant’ resembling election symbol of BSP and Ms. Mayawati, the then Chief Minister of Uttar Pradesh, was only to ensure that the other candidates have a level playing field and that there is no undue projection at public expense by creating greater than life size statutes of political functionaries or symbols of that party.
The petition was dismissed with costs.
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JUDGMENT
Hon’ble Amar Saran, Judge Hon’ble Ramesh Sinha, Judge Advocate for Petitioner: Agnihotri Kumar Tripathi,Anil Singh Bishen, Advocate for Respondent: C.S.C. Ravi Kant,Shambhu Chopra,
(1) We have heard learned counsel for the petitioner, Shri Shambhu Chopra, learned counsel for respondent No. 1, the Chief Election Commissioner and Shri Ravi Kant, learned Senior Advocate for the proposed intervenor, the Bahujan Samaj Party (for short, ‘the BSP’) and Sri. M.S. Pipersenia, learned Standing Counsel for the State of U.P.
(2) It may be noted that earlier the petitioner had filed a petition in public interest, which was allowed to be withdrawn by a Bench of this Court consisting of Hon’ble the Chief Justice Rafat Alam and Justice Ranvijay Singh on 11.1.2012, after passing the following order:
Learned counsel for the petitioner when faced with the objection raised by the other side that this petition is not in conformity with the Rules of the Court as the petitioner has not disclosed his credentials and other details as required under the Allahabad High Court (Amendment) Rules, 2010, sought leave of this Court to withdraw this petition with the liberty to file another petition with proper pleading and prayers.
Prayer is allowed.
This petition is, accordingly, dismissed as withdrawn with the above liberty.
(3) For meeting the objections raised in the earlier order of this Court dated 11.1.2012 that the petitioner has not disclosed his credentials and other details as required under the Allahabad High Court Amendment Rules, 2010, the petitioner in the present petition mentions that he is a graduate from the Kanpur University and at present residing at Allahabad and is living out of the income from his parental
126 “No voter to be left behind” properties. He has no political ambitions and is not concerned with any political party. He also claims not to be interested in any kind of publicity in the matter.
(4) The present petition has been filed substantially on the same grounds as the previous petition that the petitioner is a religious minded person, who professes the Hindu faith and that the order of the Election Commission dated 8.1.2012 by which the statues of “elephants” were directed to be covered for the entire election period to the U.P. Legislative Assembly in U.P. is an infringement of his religious faith and violative of his fundamental right guaranteed under Article 25 of the Constitution of India. The “elephant” is one of the seven divine forms of the godhead, and that it is impermissible to cover the statue for the entire electoral period. The statue could only be covered, if at all, when the God rests and that too after pronouncing some “mantras,” which have been annexed to the petition.
(5) He further submits that in paragraphs 42 and 43 of the Election Commis- sion’s order dated 11.10.2010 the Commission refused to grant the relief of with- drawing the party symbol “Elephant” of the BSP after observing that “on the facts available to the Commission and records adduced by the parties, the Commission is not in a position to gauge the impact of the above statues, and the extent of such impact, on the minds of the electors.” Hence it ought not to have issued the further direction in paragraph 44 of the order that at the time of elections, the Commission would take appropriate steps to see that the statues of Ms Mayawati and the BSP’s symbol ‘elephant’ do not disturb the level playing field and give undue advantage to the BSP vis-a vis other political parties, which was the basis of the impugned order of the Election Commission dated 8.1.2012 directing that the statues of the ‘elephants’ and Ms Mayawati erected at public places which had been constructed on govern- ment expense, be covered, during the current general elections to the Uttar Pradesh Legislative Assembly.
(6) It was also contended by the petitioner that if the ‘elephant’ symbol deserved to be covered, then the cycles and hands which are symbols of other parties should also be covered.
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(7) Shri Ravi Kant, Senior Advocate, learned Counsel for the Bahujan Samaj Party (for short “the BSP”), whom we agreed to hear on behalf of the BSP (which had prayed for being impleaded in the petitioner’s earlier petition also which was dismissed as withdrawn), as he claimed that the BSP and not the petitioner, would have cause to be aggrieved by the order of the Election Commission and that a frivolous petition had been filed by the petitioner, probably at the instance of some interested political group, so that on dismissal on the ground that by use of the symbol, the party tried to secure votes by pandering to religious sentiments, which is a corrupt practice according to section 123(3) of the Representation of People’s Act, 1951, the BSP would run the risk of losing its symbol on this account. He further submitted that the petitioner had still not established his credentials for filing this petition. His mere claim that he was a graduate and a Hindu, who lives off the in- come from parental properties, does not provide him with sufficient credentials for filing this petition to espouse the public cause in which he has earlier shown little interest.
(8) We find some substance in Shri Ravi Kant’s last contention that the petitioner has still not been able to prove his credentials for filing this writ petition, simply be- cause he claims to be a graduate Hindu living off his parental properties. He could not show any locus standi for espousing this cause, nor could he show how and when he has espoused such causes in the past, and is not simply a publicity seeker.
(9) It is noteworthy that on the basis of the decision in State of Uttaranchal Vs. Balwant Singh Chaufal and others, (2010)3 SCC 402, the High Court introduced the amended sub-rule 3-A in Rule 1 of Chapter XXII which lays down that the peti- tioner filing a public interest litigation should precisely and specifically state in the affidavit his credentials, the public cause he is seeking to espouse, that he has no personal or private interest in the matter, there is no authoritative pronouncement by the Supreme Court and the High Courts on the questions raised and that the result of the public interest litigation would not lead to any undue gain to himself or anyone associated with him or any undue loss to anybody or the State.
(10) Summing up the directions in paragraph 181 in Balwant Singh Chaufal’s case (supra) it was specifically observed as follows in sub-paras 3, 5 and 7, which are material for giving a decision on the maintainability of the present petition:
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(3) The Courts should be prima facie satisfied by the credentials of the petitioner before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest in involved before entertaining a PIL.
(7) The Courts should before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(11) If in exercise of its powers of its wide powers of superintendence for ensur- ing the purity of the electoral process under Article 324 and a level playing field for all candidates the Election Commission has issued the impugned order dated 8.1.12 directing that the statues of Ms. Mayawati and the “elephants” erected on government expense be covered, it could not be said that the important criteria, in paragraph 181 (5) in Balwant Singh Chaufal’s case (supra) that “The Courts should be fully satisfied that substantial public interest in involved before entertaining a PIL” was at all disclosed by the petitioner for filing the writ petition. Rather as explained by the Election Commission in its impugned order dated 8.1.12 the public interest would be better served in keeping the statues covered during election times, than in keeping the same uncovered so that a level playing field for all contesting parties could be ensured.
(12) The petitioner’s contention that his fundamental right to practice the Hindu faith is violated by the Election Commission’s order dated is also bereft of any sub- stance.
(13) Article 25(1) of the Constitution on which the petitioner bases his contention that his fundamental right to profess and practise his faith has been infringed, reads as follows:
25 (1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
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(14) A perusal of Article 25(1) shows that the provision itself permits putting re- strictions on the rights of a person to profess or practice a religion, on the grounds of public order, morality, health or the other provisions of Part III of the Constitution.
(15) If in order to ensure that candidates from various political parties who were contesting the elections get a level playing field the statues of the elephant and Ms. Mayawati built on public expense are directed to be covered by the Election Com- mission during election time, it could only be considered to be an act for furthering public order and morality, and this restriction would also be consistent with the right to equality mentioned in Part III, and thus the direction would fall within the acceptable limitations which may be imposed on the fundamental right to freedom of religion.
(16) In Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v State of Gujarat, AIR 1974 SC 2098, the Supreme Court has upheld the right of the State to bring out a law in exercise of powers under Article 31(2), to compulsorily acquire property belonging to a religious institution for agrarian reform. It was held in the said case, that “no rights in an organized society can be absolute. Enjoyment of one’s rights must be also consistent with the enjoyment of rights also by others.” Further it was held that “..... A particular fundamental right cannot exist in isolation in a water tight compartment. One fundamental right of a person may have to co-ex- ist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole. The Court’s duty is to strike a balance between competing claims of different interests.”
(17) In Church of God (Full Gospel) in India v K.K.R.M.C. Welfare Association, AIR 2000 SC 2773 it was held that the use of loudspeakers by a particular commu- nity at the time of prayers is subject to the provisions of the Environment (Protection) Act, 1986. No religion preaches that prayers are to be performed through loud- speakers. Any such practice should not affect the rights of others. The provision of Article 25 is subject to the provisions of Article 19(1)(a) of the Constitution, and on a true and proper construction of the provision of Article 25(1), read with Article 19(1)(a) of the Constitution, it cannot be said that a citizen should be coerced to
130 “No voter to be left behind” hear anything which he does not like or which he does not require.
(18) Furthermore there is no material for indicating that the public or any particular section of the the public were looking at the statues erected on the parks at Lucknow, Noida and Gautam Budh Nagar as religious symbols, which they were actually worshiping. Thus the erection of the statues by the State government there could be considered a purely secular activity. Hence any direction to cover the same by the Commission could not be said to be an interference with the essential or integral part of the faith or practices of the followers of the Hindu faith.
(19) In Smt. Indira Nehru Gandhi Vs. Raj Narain, AIR 1975 SC 2299, using of a cow and calf as an electoral symbol by the Congress (R) party was not held to be a corrupt practice within the meaning of section 123(3) of the Representation of People Act, 1951. It was observed in the said decision as under: A cow is not a religious symbol. The use of pictures of this excellent and useful animal is so frequently made today for commercial purposes other than religious that the representation of a cow and calf cannot except in some special and purely religious contexts be held to have a religious significance.
(20) A fortiori the said principal will apply to the present case as well, as we see images of “elephants” are widely prevalent. It is also commercially useful. The do- mesticated elephant is useful for uprooting trees or carrying logs of wood etc., or for help penetrating dense jungles by animal safaris. In earlier times the elephant was also put to warlike use during battles. Now its survival is being threatened by destruction of its habitats. We see images of the elephant in magazines depicting efforts to save the animal from extinction. If the cow was considered a commercially useful animal in Indira Nehru Gandhi v Raj Narain and of religious significance only in a purely religious context, this observation would apply with greater force in the case of the elephant which is normally not worshipped, except in some purely religious contexts, usually as Lord Ganesha, who has an Elephant’s head (trunk) and a human body, and in normal course the images or statues of “elephants” do not have any religious significance.
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(21) The proviso to Section 123(3) of the Representation of People’s Act, 1951, (which declares use of religion to appeal to voters to be a corrupt practice) and which was noted in Indira Nehru Gandhi v Raj Narain (supra) itself makes an ex- ception by providing “that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.” The existence of this provision and its approval by the Apex Court in Indira Nehru Gandhi v Raj Narain’s case should also allay Sri Ravi Kant’s apprehensions that if the ‘elephant’ symbol is given religious significance, the BSP could run the risk of losing the symbol on that account.
(22) So far as the petitioner’s contention that in paragraphs 42 and 43 of the Election Commission’s order dated 11.10.2010 as the Commission has observed “that on the facts available to the Commission and records adduced by the parties, the Commission is not in a position to gauge the impact of the above statues, and the extent of such impact, on the minds of the electors,” hence the Election Commission ought not to have directed covering up the statues of the elephants during elections, the said argument does not commend itself to us. The above quoted observation was made in the context of the Commission’s refusal to accept the contention of the petitioners before it to withdraw the BSP’s election symbol ‘elephant.’ In the order the Commission had also noted that “it was in the dark” as the State government, in- spite of a specific request to it had refused to furnish details regarding the number of statues and the expenses incurred on their construction. To us it appears that it may have been in the context of a long term perspective, when the notification for hold- ing the election had not even been issued that the Commission has held that it was not in a position to adjudge the impact of the statues on the minds of the voter. The Commission has also given other good reasons for declining the request of the pe- titioners to withdraw the symbol given to the BSP by holding that even if the statues had been erected by public funds and not by the party, but as the State government has the specific sanction of the State legislature, which has passed valid Appropri- ation Acts, the Commission could therefore not go into the question of expenditures having been incurred for installing the statues. Reliance was also placed on Ram Jawaya Kapoor Vs State of Punjab, [1955(2) SCR 555 and Bhim Singh v Union of India, 2010(5) SCC 538 that the actions of the government can only be assailed when the act is unconstitutional and not when only the expenditure is unwise. Hence
132 “No voter to be left behind” it was observed that it was not for the Commission to go into “the question whether the BSP has misused its position as the ruling party in getting the Ms Mayawati and ‘elephant’ installed with public funds, during the non-election period.” Further the Commission would be bound by any orders that the High Court or Supreme Court which were already seized of the matter would pass in the petitions before them. Another reason for declining the request for freezing symbol was that the BSP being a recognized national political party being a recognized national political party had been assigned the symbol “elephant” in all States other than Assam under the Elections Symbols (Reservation and Allotment) Order, 1968 (for short the ‘Symbols Order’). The grant and recognition of symbols is based on paragraphs 6A, 6B and 16 A of the Symbols order, that the party polls the required number of votes as re- quired under the said paragraphs, and does not commit any breaches of the Model Code of Conduct laid down by the Election Commission. The Commission observed that it was nobody’s case that the party’s poll performance did not measure up to the required standards. It was also observed that there was no clear evidence before it that the BSP had violated the Model Code of conduct. Moreover the order observed that before withdrawal of a party’s symbol, “the Commission has to carefully weigh the implications which such withdrawal of symbol may have and cause confusion in the minds of millions of electors, apart from members, supporters and workers of the party, across the country, who identify the party with the symbol ‘elephant,’ on account of the actions of one of the State Governments.”
(23) It was in this background that the Election Commission refused to freeze the party’s symbol on a permanent basis by its order dated 11.10.11. However the direction in exercise of powers under Article 324 to cover the statues of ‘elephants’ and of the incumbent Chief Minister erected at government expense after the elec- tion notification has been issued and the dates for the elections announced has to be understood in the background that at that stage there is a compelling obligation on the Election Commission in ensure the conduct of free and fair elections and the purity of the electoral process and that no no party gets any undue advantage over other contestants.
(24) It may be noted that in the impugned order of the Election Commission dated 8.1.2012 it was further observed that the petition filed before the Election
133 “No voter to be left behind”
Commission in the year 2009 praying inter alia for freezing of the symbol “ele- phant” allotted to the Bahujan Samaj Party, on the ground that the statues of ele- phants and the statues of MS. Mayawati, put up at the expense of the government in various public places in different parts of the State jeopardized the concept of free and fair elections. The Commission further held that at the time of elections, it would, no doubt, take appropriate steps and measures to see that the statues of Ms. Mayawati and the BSP’s symbol ‘elephant’ do not disturb the level playing field and give undue advantage to BSP vis-a-vis other political parties.
(25) It is noteworthy that neither the petitioner nor the BSP itself has chosen to specifically assail the part of the direction in its order dated 11.10.2011 which was to the following effect:
However, at the time of elections, the Commission would, no doubt, take appropri- ate steps and measures to see that the statues of Ms. Mayawati and BSP’s symbol ‘elephant’ do not disturb the level playing field and give undue advantage to BSP vis-a-vis other political parties.
(26) The direction to keep the statues of Ms Mayawati and the ‘elephants’ cov- ered in the impugned order dated 8.1.2012 appears to be a direct consequence of the aforesaid observation in the earlier order dated 11.10.10.
(27) Significantly, the order dated 11.10.2010 was challenged before the Su- preme Court in Writ Petition (Civil) No. 266 of 2009 (Ravi Kant and another Vs. State of UP and others), but the Supreme Court had also not stayed that part of the order, which provided that the Commission would take appropriate steps and measures to see that the statues of Ms. Mayawati and BSP’s symbol ‘elephant’ do not disturb the level playing field and give undue advantage to BSP vis-a-vis other political parties at the time of elections.
(28) The Supreme Court had observed in its order dated 13.12.2010 in Writ Petition (Civil) No. 266 of 2009 that the subject matter of the writ petition under Article 32 of the Constitution of India overlaps with the pending petition before the Allahabad High Court. The writ petition was directed to remain pending in the
134 “No voter to be left behind”
Supreme Court, but it was made clear that pendency of the writ petition in the Su- preme Court would not pre-empt the Allahabad High Court from deciding the matter at the earliest.
(29) Learned counsel for the Election Commission points out that the High Court has also not stayed any part of the order dated 11.10.2010 passed by the Election Commission.
(30) It was further observed that at the time of general elections to the House of the People in 2009, the Commission had issued instructions dated 28.3.2009 to the effect that no photographs of the Prime Minister, Chief Minister, Ministers and other political functionaries should be displayed in any government/public building. The Commission had also clarified in its subsequent circular dated 1.4.2009 that the underlying intention of the instructions in the letter of the 28th of March, 2009 was that the images of political functionaries, who have deep influence on the minds of the electors and many of whom are still active in public life should not be displayed in government buildings and premises as that would have the effect of disturbing the level playing field vis-a-vis the political functionaries of other parties and candidates. It was made clear that while the photographs of Prime Minister, Chief Ministers, Ministers and other political functionaries should not be displayed, the instructions did not apply with regard to the images of national leaders, poets and prominent historical personalities of the past, the President of India and the Governors. The Commission, after taking all the aspects of the matter into consideration and consid- ering the need to ensure a level playing field for all political parties and candidates in the interest of free and fair elections, was directing that each and every statue of elephant and each and every statue of Ms. Mayawati, erected in public places in the State of Uttar Pradesh at government expense should be suitably covered so as to ensure that these statues do not influence the minds of the electors, by providing undue advantage to the ruling party and disturbing the level playing field during the current general elections to the Uttar Pradesh Legislative Assembly. The expense for covering the statues were to be borne by the local authorities under whose jurisdic- tion the various statues had been erected. The whole work of veiling the statues was to be completed by 5.00 PM on 11.1.2012.
135 “No voter to be left behind”
(31) Another fallacious argument was raised by the petitioner to the effect that cycles should be banned or that hands or other objects be covered which constitute election symbols of one or the other party or contestant. It may be mentioned that the Election Commission assigns symbols of common objects to contestants so that the voters (especially where they are illiterate) have a clear idea of the party or can- didate that they wish to support. What the Election Commission has sought to do by the impugned order is only to ensure that the other candidates have a level playing field and that there is no undue projection at public expense by creating greater than life size statues of political functionaries or symbols of the party. The Commission also observed that the issue as to whether the trunk of the elephant was upward or downward in the statues was not material for helping the voters decide which party they should vote for, if they were simply instructed to put their vote on the symbol ‘elephant.’
(32) We are, therefore, of the view that the challenge to the maintainability of this petition at the instance of the petitioner which has also been supported by the BSP, has substance and the petition must be dismissed on this ground, as well as on merits, for the reasons stated hereinabove.
(33) However, so far as the other contention of Shri Ravi Kant, Senior Advocate for the proposed intervenor, BSP that this petition has been filed in a mala fide man- ner and that the petitioner has been set up by rival political groups, we think that Sri Ravi Kant has not been able to substantiate this submission. While we think that the petitioner may have been misguided in filing this frivolous petition on a misun- derstanding of the correct legal position, we see no reason to infer that the petition has been filed at the instance of some other political group for extraneous consider- ations.
(34) In view of what has been indicated herein above, we find no force in this petition. It is accordingly dismissed with costs.
136 “No voter to be left behind”
JUDGMENT-9 ALLAHABAD HIGH COURT
(Lucknow Bench)
Misc. Bench No.1361 of 2012 (Decision dated 16/02/2012)
Dr. Nutan Thakur ...... ……………………………………....Petitioner
Versus
Election Commission of India...... ……………………………...... Respondents
Constitution of India – Article 324 – Model Code of Conduct prohibiting new promis- es after announcement of elections - HELD: Election Commission empowered to issue appropriate order or direction for conduct of free and fair elections in the country to discharge its constitutional obligation of superintendence, control and directions of elections. (Para 2) Model Code of Conduct – In case of any violation, the violator must be punished severally to maintain the fairness in the election process of the country. (Para 6)
137 “No voter to be left behind”
SUMMARY
The writ petition was filed praying for issue of a writ of Certiorari to quash the Code prescribed by the Commission for guidance of the party in power in para (vi) (a) & (c) of Part-VII of the Model Code of Conduct that prescribes, among others, that the Ministers and other authorities shall not make any promise of any financial grants or for construction of roads, provision of drinking water facilities etc. after notification of election programme, as being discriminatory in nature and against the fundamental right to equality before law as granted under Article 14 of the Constitution. The petitioner alleged that by the impugned embargo the Commis- sion restrained the government authorities, peoples’ representatives or the Ministers from making any promise with regard to financial grant or for the construction of roads, drinking water facilities etc. after notification of the election. Article 324 of the Constitution only confers the power with regard to superintendence, direction and control of elections to ensure just and fair elections conducted by the Election Commission and does not confer any power to prohibit the Ministers and other con- stitutional authorities from discharging their obligation while holding the office.
The High Court reaffirmed the view taken by the Apex Court in catena of judgments that the Commission is empowered under Article 324 to issue appro- priate order or direction for conduct of free and fair elections. It held that the Commission has rightly imposed these codes as making promises after issuance of election notification as a measure of allurement or appeasement to the people shall be nothing but an instance of unfair practice on the part of people’s representatives. False and malicious statements erode the people’s faith in the democratic process. It clarified that they can propagate their views in the public on promises already made in the election manifesto.
The Court made specific observation that in case of any violation of the Model Code of Conduct prescribed by the Commission for the guidance of political parties and candidates, the violator must be punished severally to maintain the fair- ness in the election process of the country. The writ petition was dismissed being devoid of any merit.
138 “No voter to be left behind”
JUDGMENT
Hon’ble Devi Prasad Singh, Judge Hon’ble Dr. Satish Chandra, Judge Advocate for Petitioner: Dr. Nutan Thakur (In person) Advocate for Respondent: O. P. Srivastava
(1) Heard the petitioner appeared in person. Notice has been accepted by Sri Kaushlendra Yadav holding brief of Sri O.P. Srivastava on behalf of Election Commission of India. Instant writ petition under Article 226 Constitution of India has been preferred for the following relief’s :
(a) Issue a writ of Certiorari quashing the part of the Code prescribed in the Model Code of conduct of the Election Commission of India, at Point VII (vi) (a)- “From the time elections are announced by Commission, Ministers and other authorities shall not announce any financial grants in any form or promises thereof as regards “promises thereof as being discriminatory in nature;
(b) Issue a writ of Certiorari quashing the Code prescribed in the Model Code of conduct of the Election Commission of India, at Point VII (vi) (c)-”make any promise of construction of roads, provision of drinking water facilities etc.” as being discrim- inatory in nature.
(2) The petitioner, who appeared in person, submits that the condition imposed by the Model Code of Conduct by the Election Commission of India hit the equality clause contained in Article 14 of the Constitution of India. According to petitioner, the embargo imposed by the Election Commission of India by clause VII (vi)(a)(c), prohibits the Minister and constitutional authorities to make promise after the notifi- cation of the election. It further prohibits to make promise for construction of roads, provision of drinking water facilities etc. Submission is that such restriction imposed by the Election Commission of India is unreasonable and prevent the Government authorities or the Ministers to discharge their obligation while holding the office. Article 324-of the Constitution of India confers the power on the Election Commis- sion with regard to superintendence, direction and control of the elections. It further
139 “No voter to be left behind” makes it obligatory on the part of the Election Commission of India to ensure the just and fair election in the country.
(3) By a catena of judgments Hon’ble Supreme Court ruled that superintendence and control falls within the domain of the Election Commission, to ensure free and fair election in accordance to law in the country and free and fair election, the Elec- tion Commission of India may issue appropriate order or direction vide Kanhiya Lal Omar v. R.K. Trivedi, AIR 1986 SC 111; Digvijay Mote v. Union of India, (1993) 4 SCC 175; Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216; in the matter of Special Reference No. 1 of 2002, (2002) 8 SCC 237; and Election Commission v. Sivaji, AIR 1988 SC 61.
(4) To its wisdom, by the impugned condition, Election Commission restrained the Government authorities, people’s representatives or the Ministers to make any promise with regard to financial grant or for the construction of roads, drinking wa- ter facilities after notification of the Election. The condition imposed by the Election Commission seems to be reasonable one. It is not necessary that the person, who is holding the public office as Minister or alike, may be elected to come to the office again. Promise made thereon may be an allurement to the peoples of the country, where more than 35% population is illiterate and below poverty line. On allure- ment/appeasement, society may act upon to cast vote. Promises are made keeping in view the financial viability of the Government and other related factors. In case it is on unfounded ground, then it is to allure the voters and may affect the fair election process. Accordingly, Election Commission of India has rightly imposed these condi- tions.
(5) It shall not be out of place to mention that after election, people’s represen- tatives discharge their obligation almost for a period of five years. The elections are held at the far end of their tenure unless the assembly or parliament is suspended or dissolved earlier. While holding the office, it is always obligatory on the part of the people’s representative to discharge their obligation honestly and fairly to serve the Nation. In case they failed to discharge their obligation during their entire term while in office or in opposition, then making statement as a measure of allurement or appeasement to the peoples after issuance of Election Notification, shall be nothing
140 “No voter to be left behind” but an instance of unfair practice on their part. The condition meant to check such practice by the people’s representative. Of course, in case, something is there in the election manifesto, then they can propagate their views and bring it in the public notice but promise made or declaration done after notification to appease as mea- sure of allurement, shall not be healthy practice on the part of the people’s repre- sentative. False and malicious statement erodes the peoples fain in the democratic process.
(6) In view of above, we do not find any reason to interfere with the impugned condition imposed by the Election Commission. In any case, the Model Code of Conduct notified by the Election Commission is violated, the violator must be pun- ished severally to maintain the fairness in the election process of the country.
(7) Subject to aforesaid observation, the writ petition is devoid of merit and it is hereby dismissed. No order as to costs.
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JUDGMENT-10 HIGH COURT OF JHARKHAND
W.P.(PIL) No.1801of 2012 With W.P.(C) 1802 of 2012 (Decision dated 05/04/2012)
W.P.(PIL) No.1801 of 2012
Jay Shankar Pathak...... ……………………………………....Petitioner
Versus
Election Commission of India & ors.……………………..………...... Respondents
W.P.(C) No.1802 of 2012
Pradeep Kumar Balmuchu...... ……………………………………....Petitioner
Versus
Election Commission of India & ors...……………………………...... Respondents
Article 324 of the Constitution – HELD: Election Commission is justified to invoke its plenary power in cancelling ab initio the entire process of election, even after issue of statutory Notifications in connection with the election, when it feels that the elec- tion process has been substantially vitiated. (Para 9)
142 “No voter to be left behind”
SUMMARY
These two Writ Petitions were preferred to challenge the Order issued by the Election Commission of India on 30th March, 2012, staying the counting of votes of the biennial election to the Council of States (Rajya Sabha) from the State of Jharkhand that was scheduled to be taken up after polling on the same date with further direction not to declare the result without the specific clearance of the Com- mission. The petitioners also challenged the proceedings of the same date, i.e., 30th March, 2012, by which the Election Commission, in exercise of its plenary powers under Article 324 of the Constitution of India read with Section 21 of the General Clauses Act, 1897, recommended to the President of India to rescind the initial Noti- fication dated 12th March, 2012 under Section 12 of the Representation of the Peo- ple Act, 1951, calling upon the elected members of Jharkhand Legislative Assembly to elect two members to the Council of States. The Commission’s impugned Order was based on the conclusion that the entire election process had been seriously vitiated by use of money power and horse trading coming into play during the said election. The Commission decided that seizure of unaccounted money amounting to Rs.2.15 Crores from a person connected to a candidate at the election lent credence to the representations from different political partiesand candidates about the use of money power in that election. According to the Petitioners, the recovery of Rs.2.15 Crores on the date of poll that might have been used for furtherance of election prospect by one of the Independent candidates at that biennial election, could not vitiate the entire election process so as to warrant cancellation of the entire election process.
Writ Petition (PIL) No.1801 of 2012 was preferred as a Public Interest Liti- gation by one Jay Shankar Pathak, a permanent resident of the State of Jharkhand, being a social activist and a primary member of Indian National Congress party. He contended that the action of the Commission in cancelling the entire process of election on the allegation of use of money power and horse trading and certain irregularities of showing polled ballot paper to unauthorized person in contraven- tion of Rule 39AA of the Conduct of Elections Rules, 1961, committed by three elected members of the Jharkhand Legislative Assembly, belonging to three different
143 “No voter to be left behind” recognised political parties, during the process of casting their votes was wholly without jurisdiction and was bad.
The other Writ Petition No.1802 of 2012 was preferred by Shri Pradeep Ku- mar Balmuchu, who was one of the contesting candidates sponsored by the Indian National Congress party at that biennial election. The writ petition was filed on the same facts and grounds as in the other Writ Petition. The Petitioners contended that the Commission did not follow the norms of principles of natural justice and fair play as it did not provide any opportunity of hearing to the writ petitioners and that the Commission’s action was bad in law.
The High Court held that the Commission acted befitting its office by taking extraordinary steps of stopping the counting promptly and stopping the result of the poll and was right in its wisdom to recommend under the plenary powers of Article 324 of the Constitution for cancellation of notification calling the biennial election issued by the Hon’ble President on 12th March, 2012 so that fresh election could be conducted expeditiously. The Commission was fully justified in feeling for cancel- lation of election. It held:
“20...... The Election Commission may be called upon to prompt action to reach the goal of free and fair election and apprehension against this proposition has been rejected by the Hon’ble Supreme Court by declaring that the retort may be that the judicial branch, at the appropriate stage with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order into the process...... ”
The amendments made to Section 59 of the R.P. Act, 1951 to provide for open voting at Rajya Sabha elections and in the Rules were aimed to curb the pos- sibility of horse trading in these elections and cross-voting by members elected on behalf of political parties. The High Court further held that no opportunity of hearing can be demanded by anybody on a decision under Article 324 of the Constitution taken in administra- tive and supervisory jurisdiction by the Election Commission on the basis of substan- tial piece of evidence.
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The Hon’ble Court dismissed both the writ petitions being wholly miscon- ceived and also awarded a cost of Rs.1,00,000/- (Rs. One lac only) on the petition- er – Jay Shankar Pathak – who filed the writ petition in the name of public interest litigation.
145 “No voter to be left behind”
JUDGMENT
Hon’ble Amar Saran, Judge
Hon’ble Ramesh Sinha, Judge
Advocate for Petitioner: M/s Sumeet Gadodia, A.K. Mahto
(1) These two writ petitions have been preferred to challenge the action of the Election Commission of India-respondent no.1, whereby the Election Commission has issued a notification dated 30th March, 2012, whereby counting the votes of the Biennial election to the Council of States from the State of Jharkhand scheduled to be taken at 5.00 p.m. on 30th March, 2012 has been stayed until a specific written clearance is given by the Election Commission of India to the Returning Officer -cum-Secretary In-charge for Biennial election to the Council of States from Jharkhand and to the Chief Electoral Officer, Jharkhand, Ranchi. The Election Com- mission of India further directed that result of counting of votes shall also not be declared without the specific clearance of the Election Commission. By this notifi- cation dated 30th March, 2012, the above authorities were directed to send the detail and comprehensive report about the conduct of poll with special reference to any untoward incident, so as to reach the Commission immediately after poll. The above authorities were also directed by the Commission that clearance for the counting and declaration of result will be given by the Commission after scrutiny of their reports in the proforma (Annexure-B) regarding difficulty in completion of counting and disposal of all objections in writing. The petitioners also challenged the Annexure-3 of the same date, i.e., 30th March, 2012, the proceedings of the Election Commission by which the Election Commissioner under Article 324 of the Constitution of India read with Section 21 of General Clauses Act, 1897 and other enabling power recommended to the President of India to rescind the notification no. 318/ 1/2012 (1) dated 12th March, 2012 calling upon the elected members of Jharkhand Legislative Assembly to elect two members of the Council of States. W.P.(PIL) No. 1801 of 2012 has been preferred by Jay Shankar Pathak as Public Interest Litigation and gave his background that he has faith in democratic set up of
146 “No voter to be left behind” the country, including the system of political party and he is a primary member of Indian National Congress, which is one of the oldest political party of the country. He is a permanent resident of State of Jharkhand and is involved in social activities, which he has performed in the capacity of either member of a political party or in individual capacity. The petitioner stated that this petition is public interest litigation, challenging the decision of the respondent-Election Commission of India, where- by the respondent-Election Commission on allegation of use of money power and horse trading coming into play of the election of the two members of the Council of States (Rajya Sabha) from the State of Jharkhand has cancelled the entire election process itself. The petitioner in writ petition itself has admitted before schedule date of election i.e., 30th March, 2012, certain letters were written by the Members of Parliament to the Commission brining to the notice of the commission the involve- ment of money power/horse trading coming into play in the aforesaid election and the Election Commission after taking note of the aforesaid letter has issued direction to the Chief Secretary of the State of Jharkhand and other concerned officer to keep strict vigilant watch over the situation. According to the writ petitioner, in view of the aforesaid direction, strict and vigilant watch was observed by the concerned officers of the State of Jharkhand. In the said process of strict and vigilant watch, it came to the notice of the Election Commission of India that certain money/cash are scheduled to be transferred/transported from Jamshedpur to Ranchi in connection with election of one R.K. Agarwal, who was contesting election as Independent candidate. In the writ petition, it is stated that pursuant to the aforesaid information, search and seizure operation was carried out in a car running from Jamshedpur to Ranchi and cash of Rs. 2.15 Crores was recovered and on prima facie inquiry it was reported that the aforesaid cash was unaccounted and same was carried to be handed over to said R.K. Agarwal. However, on schedule date of poling, out of 81 Members of the Jharkhand State Legislative Assembly, 79 Members had cast their votes but they were not counted in view of the direction issued by the Election Commission, referred above.
The petitioner further pleaded that pursuant to the direction of the Election Com- mission to furnish detailed comprehensive report about conduct of poll with special reference to any untoward incidence, report was furnished by the Chief Elector- al Officer-respondent no.2 to the Election Commission and thereafter the Election
147 “No voter to be left behind”
Commission in their proceeding dated 30th March, 2012 exercising power under Article 324 of the Constitution of India read with Section 21 of the General Clauses Act, 1897 has recommended for rescinding the entire election process. The petition- er pleaded that to best his knowledge, in view of the said recommendation made by the Election Commission, Her Excellency, President of India has rescinded its notification dated 12th March, 2012, whereby and whereunder the election of two Members of the Council of States (Rajya Sabha) was notified. However, the notifi- cation rescinding the earlier Notification dated 12th March, 2012 is not available with the petitioner and, therefore, petitioner prayed that respondent-Commission be directed to produce the Notification rescinding the election dated 30th March, 2012. The petitioner alleged that action of the respondent-Commission in cancelling the entire process of election on the allegation of use of money and horse trading and on certain irregularity committed by the three voters during the process of cast- ing their votes, as recommended for cancelling of the election process itself, wholly without jurisdiction and is bad.
(2) W.P.(C) No. 1802 of 2012 has been preferred by Shri Pradeep Kumar Bal- muchu, who was one of the candidates to the election referred above, as he was a candidate set up by political party being Indian National Congress for the election of the Council of States (Rajya Sabha) from the State of Jharkhand. He after giving the facts relating to the schedule of the election and giving names of the candidates whose nominations were found valid, after withdrawal of the candidature by all oth- ers, submitted in the writ application that certain allegations were leveled and letters were written by one or other Members of Parliament to the Election Commission, mentioning therein about the apprehension regarding money power play/horse trading coming into play of the election process i.e., polling by the Members of the Jharkhand State Legislative Assembly and submitted the same facts which have been pleaded in W.P.(PIL) No.1801 of 2012 with submission that through newspa- per, petitioner came to know that recommendation made by the respondent-Election Commission has been accepted by Her Excellency the President of India and notifi- cation has been issued, rescinding the earlier notification dated 12th March, 2011, however copy of the said notification could not be obtained by the petitioner and, therefore, the petitioner-Pradeep Kumar Balmuchu also prayed for calling the afore- said notification from the respondents for placing the same before this Court.
148 “No voter to be left behind”
(3) Learned counsel for the petitioners, arguing both the matters, submitted that the Parliament specifically framed law dealing with situations relating to horse trad- ing and of involvement of money power in the conduct of election and if it is brought to the notice of the Election Commission that either candidate or his agent or his representative is/are indulging in horse trading in process of election, action can be taken by the Election Commission in exercise of law framed by Parliament, includ- ing initiation of criminal proceeding under Indian Penal Code as well as under the provisions of the Representation of the People Act, 1951( in short ‘R.P. Act, 1951’). Furthermore, the bribery has been defined in Section 123(1) of the R.P. Act, 1951 and bribery, one of the corrupt practice enumerated under Section 123(1) of the Act of 1951 and if candidate is found to have indulged himself in one of the corrupt practice, including bribery, his election can be declared void in an appropriate Election petition under Section 100 of the Act of 1951. Therefore, the Legislature enacted adequate safeguards in order to ensure free and fair election and has laid down the law relating to or in connection with the election and specifically provided therein for initiation of appropriate criminal proceeding and providing therein for annulling the election of candidate who has been declared elected by adopting such measure of corrupt practice.
(4) Therefore, according to the learned counsel for the petitioner, the Election Commission could not have stopped the process of election by giving reference to recovery of Rs.2.15 Crores which alleged to may have been used in connection with election on behalf of one of the Independent candidate, namely, R.K. Agarwal and this incident could not vitiate the entire election process and, therefore, recommen- dation of the Election Commission to the President of India is not tenable in the eyes of law. Learned counsel for the petitioners vehemently submitted that the Election Commission of India was well aware that the Parliament has already considered the allegation of involvement of money power in election and specifically in Biennial election to the Council of States held in March-April, 2000 and the Ethics Committee of the Parliament in para-19 of its report presented to Parliament on 8th December, 1998, recommended that issue relating to open ballot system for elections to the Ra- jya Sabha be examined, because of the allegation of money power made in Media in respect of above election of the Council of States, as held in March-April, 2000. Then the Ethics Committee of the Parliament observed:
149 “No voter to be left behind”
(3) In the light of the above, aforesaid issues were examined in depth by the Government and it has been decided to do away with the requirement of residence of a particular State or Union Territory for contesting election to the Council of States from that State or Union Territory and also to introduce open ballot system for elections to the Council of States.
(5) Learned counsel for the petitioners submitted that because of that reason only, proviso has been added under Section 59 of the R.P. Act, 1951 that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. The Ethics Committee’s further recommendation to allow the candidates from outside the States or Union Territories for contesting election of the Council of states from the State of Union Territories was also accepted. Learned counsel for the petitioners vehemently submitted that the Parliament after considering the Ethics Committee’s report and issue of allegation of money power in Rajya Sabha election itself and to meet with that situation has amended the law and dispensed with the requirement of resident of a particular State or Union Territory for contesting the election to the Council of States and has made provisions for open ballot in Rajya Sabha Poll. The Election Commission cannot prescribed any other procedure, like which has been adopted on the allegation of involvement of money power and by saying the involvement of horse trading, so as to recommend for rescinding the elec- tion notification itself to the President of India.
(6) Learned counsel for the petitioner vehemently submitted that the Constitution Bench of the Hon’ble Supreme Court, in detail, the said amendment in the Act of 1951 and considered the issue of resident or domicile in the electing State and the issue of open ballot voting in the case of Kuldip Nayar & Ors. Vrs. Union of India & Ors. (2006) 7 SCC, 1) and upheld the constitutional validity of the amendment brought about in R.P. Act, 1951 through the Representation of the People( Amend- ment) Act, 2003 ( Act 40 of 2003) after holding that these two measures may proven cross-voting and voting for illegal consideration. Therefore, the Election Com- mission could have taken the steps in accordance with law and not in derogation to law.
150 “No voter to be left behind”
(7) It is also submitted that as the scheme of the R.P. Act, 1951, upon commit- ting of an offence punishable under various sections of various Acts enumerated in clause (a to n) and punishment is upto the extent of sentence given in clause (I) and (II) under sub-section(1) of Section 8 and the person committing such offence under sub-section (3) of Section 8 are disqualified to contest the election. Section 8A and 9 prescribed the disqualification on the ground of corrupt practice and deals with the persons who have been dismissed because of corruption or disloyalty. Sections 9,10 and 10A also prescribe disqualification of the persons from contesting the election. In chapter IV disqualification for voting also has also been declared by the statutory provision. All above clauses of the provisions have been shown to us by the learned counsel for the petitioners to demonstrate that R.P. Act, 1951 is complete Code and take care of offenders and prevent them from entering into the Parliament or Legisla- tive Assemblies.
(8) In addition to the above, learned counsel for the petitioners drew our at- tention to Section 58A and submitted that the Election Commission has power to adjourn the poll or even countermand the election but such power is on the ground enumerated under sub-section (1) of Section 58A, which includes cases of booth capturing, which may take place at a polling station or at a place fixed for the poll or booth capturing takes place in any place for counting of votes and result of the counting at that place cannot be ascertained and upon receiving of the report of Returning Officer about such booth capturing, the Election Commission may declare the poll at that polling station or place to be void and may fix any other day for the fresh poll for that polling station. Not only this, under clause (b) of sub-section (2) of Section 58A, the Election Commission can countermand the election of that constit- uency. Therefore, for countermanding of the election also, there is a provision in the R.P. Act, 1951 but making a recommendation for rescinding the notification issued for the election is not provided anywhere in the Act of 1951. Learned counsel for the petitioners submitted that Election Commission has been given power of superinten- dence and has power to issue direction and control over the preparation of electoral rolls and responsible for conduct of all elections to the Parliament and Legislative Assemblies of every State and even to the office of the President and Vice President under Article 324 of the Constitution of India but any of the above powers can be exercised only in accordance with law and particularly when the issue of money
151 “No voter to be left behind” power, which may have been termed as horse trading by the Election Commission of India in the present case and has been already considered by the Parliament and only provisions have been provided by the Parliament by amending the R.P. Act, 1951 removing the requirement of resident and domicile in the State of election and provided procedure for open ballot then that procedure alone could have been resorted by the Election Commission and in case of any of voter, as alleged in the case that three of the Voters, namely, Shri Vishnu Bhaiya ( JVM), Shri K.N. Tripathy of Indian National Congress and Shri Suresh Paswan (RJD) shown their ballot to the person other than their representatives or agent and thus violated the prescribed voting system, which is contrary to Rule 39AA. Then in that situation, the Polling Of- ficer of the poling under the direction of the Presiding Officer could have taken back the ballot paper from the voter and could have marked “cancelled” over the ballot paper, but it was not done by the Presiding Officer or the Polling Officer. However, because of this reason, the Election Commission could not have recommended for rescinding the election notification itself. Because of the reason that consequence of showing the marked ballots to unauthorized persons has its own consequence under the proviso to Section 59 read with Rule 39A and 39AA. Learned counsel for the petitioner relying the judgment of the Hon’ble Supreme Court, delivered in Kuldip Nayar’s case (supra) submitted that the Hon’ble Supreme Court has considered in paragraph 441 and notice the difference between the elections to the Council of States and General elections. The Hon’ble Supreme Court observed that in General elections, electorates have to vote in a secret manner without fear and if their votes would be disclosed to anyone it may result in victimization. For voter in general elec- tion, there is no party affiliation and hence the choice is entirely with the voter. The Hon’ble Supreme Court held that so is not in the case when elections are held to the Council of States as the electors are elected Members of the Legislative Assemblies, who, in turn, have party affiliation. Then in para-451 observed that it cannot be for- gotten that existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of concern for Parliament if, it finds that elec- tors were resorting cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant legislators. Political parties are the sine qua non of parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of purity of elections in case of indirect elections.
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(9) Relying upon earlier decision of the Constitution Bench of the Hon’ble Su- preme Court, delivered in the case of Mohinder Singh Gill and Anr. v. Chief Elec- tion Commissioner, New Delhi & Ors. ((1978) 1 SCC 405) submitted that where a candidate has reached the end of the battle and the whole poll is upset, he has right to notice and to be heard. Therefore, before taking any decision by the Election Commission, the Election Commission should have heard the petitioner, particularly, Pradeep Kumar Balmachu, who is the candidate in the present Rajya Sabha elec- tion, which has been recommended to be cancelled by the Election Commission to the President of India. The petitioner, Pradeep Kumar Balmuchu, submitted represen- tation to the Election Commission on 31st March, 2012 and also submitted repre- sentation of the same date i.e., 31st March, 2012 to Her Excellency, the Hon’ble President of India. Then before taking a decision even by the Election Commission for sending a recommendation for rescinding the election notification dated 12th March, 2012, the petitioner should have been given an opportunity, which has not been given. Therefore, that recommendation deserves to be quashed and set aside. Learned counsel for the petitioners relied upon the same judgment of Mohinder Singh Gill’s case (Supra) whereby the Hon’ble Supreme Court after setting down the limits to the plenary powers of the Election Commission held that when Parliament and State Legislature has made any valid law relating to or in connection with elec- tions, the commission, shall act in conformity with, not in violation, such provisions and further held in paragraph 75 that people’s faith in democratic process is hy- per-sensitive, it is republican realism to keep alive audi alteram even in emergencies, even amidst the clash of arms. Therefore, even in the case of re-poll the principle of natural justice is required to be observed.
(10) The learned counsel for the petitioners relying upon the another decisions of the Hon’ble Supreme Court delivered in the case of Union of India Vs. Association for Democratic Reforms & Anr. ((2002) 5 SCC 294) submitted that the functions of the Election Commission in the matter of conduct of election is quasi judicial and where the authorities exercise quasi judicial power then there is no application of provision of Section 21 of the General Clauses Act as said by the Hon’ble Supreme Court in paragraph 37 of the above judgment. In contravention to the law laid down by the Hon’ble Supreme Court, the Election Commission recommended rescinding of the election notification dated 12th March, 2012 by taking help of Section 21 of
153 “No voter to be left behind” the General Clauses Act, 1987. Therefore, also it is illegal and liable to be quashed. Learned Counsel for the petitioners further submitted even if three members of the leg- islative assembly being voter, have committed irregularities then only course open to the Election Officer was to cancel their ballot papers by exercising power under Rule 39 A but because of that reason the entire election process cannot be cancelled. During course of argument, learned counsel for the petitioners vehemently submitted that it is yet to be proved that the cash of Rs. 2.15 crores recovered from a car com- ing from Jamshedpur to Ranchi and belong to one Independent candidate’s relative was, in fact, the money for giving it to the electoral and, therefore, without there be- ing any enquiry on the facts alleged, without lodging a criminal case for bribery and without investigation and without conviction the poll which was already conducted fairly and Election Commission succeeded in preventing the money power and horse trading then in that situation the Election Commission could not have recommended for rescinding the election notification as the decision of the Election Commission is self contradictory in view of its measure taken for preventing the money power and horse trading successfully and even then recommending the rescinding the election notification.
(11) We have already mentioned but it would be appropriate to recapitulate that the writ petitioner, Jay Shankar Pathak, has filed the election petition on almost the similar ground in the form of Public Interest Litigation. In addition to the submis- sions referred above which covers the contention of the writ petitioner, Jay Shankar Pathak, the said writ petitioner submitted that the Election Commission in cancelling the entire election process would indirectly give benefits to the wrong doers and the Election Commission acted contrary to their own commendable efforts that it prevent- ed the money power and horse trading, yet after completing the entire election pro- cess is sought to be cancelled to benefit the wrong doers who are interested it to be either unfair election or it to be rescinded. The writ petitioner, Jay Shankar Pathak, submitted that several elections have been held in the democratic set up of the coun- try and in many elections even large scale of irregularities like booth capturing and even commission of offence under the Indian Penal Code, including murder in con- nection with the election process have been found. In the aforesaid background the Election Commission intervened in the matter earlier also and ordered for re polling in the aforesaid situation. However, to the best of the knowledge of the petitioner,
154 “No voter to be left behind” it is for the first time in the Indian history after independence that election is sought to be cancelled by Election Commission. It is also submitted that the Election Com- mission by cancelling the election of the State of Jharkhand acted arbitrarily and discriminated the State of Jharkhand from that of other States of the country and the discrimination is that in similar situation referred above in the State of Utter Pradesh and Punjab the Commission did not cancel the election and took only remedial measures as provided under law but ensure that the election is conducted fair and transparent manner. Because of the action of the Election Commission, the people at large of the State of Jharkhand would suffer as they would not be adequately represented in the Upper House of the Parliament as well as even the reputation of the Jharkhand would be lowered down in the country because of such steps taken by the country.
(12) We have considered the aforesaid contention of the learned counsel for the petitioners and perused the record and considered the relevant provisions of law and the judgments relied upon by the learned counsel for the petitioners.
(13) At the outset, we may observe here that one petition by Pradeep Kumar Bal- muchu is a ‘Personal Interest Litigation’ as he was the candidate in the Biennial elec- tion of the Rajya Sabha from the Jharkhand and set up by a national political party. Sri Pradeep Kumar Balmuchu is also at present President of Jharkhand Pradesh Congress, Ranchi whereas petitioner Jay Shankar Pathak is a primary member of the same political party, Indian National Congress, who is neither voter nor the candi- date but claimed that he is public spirited person and has filed this petition in Public Interest Litigation. Both the petitioners in unambiguously with clarity admitted that election in question i.e., Biennial election to fill up the two vacancies of Rajya Sabha seat, Hon’ble President of India issued notification no. 318/1/2012(1) dated 12th March, 2012. The last date for filing nomination was 19th March, 2012; the date fixed for scrutiny was 20th March, 2012; the last date for withdrawal of candida- ture was 22nd March, 2012 and 30th March, 2012 was the date for poling, if necessary. After withdrawal of nomination five contesting candidates remained. Two candidates were from National political parties and one of whom is the petitioner, Pradeep Kumar Balmuchu and another was Sanjiv Kumar from the JMM and two independent candidates namely, Sri P.K. Dhoot and Sri R.K. Agarwal.
155 “No voter to be left behind”
(14) Both the petitioners in the writ petitions admitted that after filing of the nom- ination papers by the respective candidates, certain allegations were levelled and letters were written by one or other members of Parliament to the Election Com- mission mentioning therein about the apprehension regarding money power/horse trading coming into play in the election process i.e., poling by the members of the Jharkhand State Legislative Assembly. Both the writ petitioners further admitted that the Election Commission of India promptly acted and took remedial measure and wrote a letter to the Chief Secretary of the State of Jharkhand directing him and all other officers of the State to keep strict and vigilant watch on the situation so as to prevent any money power/ horse trading coming into play. The Election Commis- sion also directed Chief Electoral Officer and Returning Officer to take strict action against anybody indulged in such activity. The apprehension of money power/horse trading involved in the election was taken seriously. That on 30th March, 2012 the Commissioner of Income Tax, Jharkhand Region reported to the Election Commis- sion that he received information from reliable source that cash would be transport- ed form Jamshedpur to Ranchi for the purpose of distribution in connection with the election. This information was also the reason for taking immediate action and with the help of district police and Income Tax Department successfully intercepted one Innova Car carrying huge amount of Rs. 2.15 crores and during course of inquiry of course the said cash found in vehicle remained unexplained and was seized. The petitioners’ further stated that one Sudhanshu Tripathy, who was intercepted in that car and who was found carrying unaccounted cash for the purpose of distribution in connection with the election of Sri R.K. Agarwal, an Independent candidate in the Biennial election. It is also submitted by the petitioners that the said unaccounted huge cash of Rs. 2.15 crores alleged to have been handed over to one Saumitra Sah, son-in-law of the said Sri R.K. Agarwal, who was contesting election as an independent candidate. Taking into account of the event, the Election Commission directed the Chief Electoral Officer for biennial election to the council of States from Jharkhand to send a detailed and comprehensive report about the conduct of poll with special reference to any untoward incidence and Election Commission directed the Returning Officer and Chief Electoral Officer to not to continue with the count- ing of the votes as well as result of counting shall not be declared without specific clearance of the Commission. The petitioners’ then in unequivocal term with clarity and unambiguously admitted in the writ petition, itself that “...... after having
156 “No voter to be left behind” received the preliminary information regarding alleged malpractice and/or horse trading being carried out by one or the other candidate during the course of elec- tion, itself took adequate measures for bringing the aforesaid incident to light. It is in the backdrop of the steps taken by the respondent-Election Commission itself that unaccounted cash to the tune of Rs. 2.15 crores was recovered, which was being transported for the purpose of facilitating the election of one or the other candidate namely, R.K. Agarwal. Thus, the Election Commission was successful in preventing the attempt of horse trading and money, being made by the said candidate in the conduct of free and fair election.” (from paragraph 33 of W.P. (C ) NO. 1802 of 2012). Similar is the pleading of writ petitioner, Jay Shankar Pathak, in his alleged Public Interest Petition, in paragraph 19 “...... that it is only due to the efforts of the Election Commission that money power/horse trading could not play role in the election process. On one hand, the Election Commission succeeded in conducting election in fair and transparent manner and on the other hand, it has cancelled the said election process itself, which is wholly arbitrary and illegal.”
Therefore, both the writ petitioners knew it well that in Biennial election for two mem- bers of the Council of States (Rajya Sabha), to be elected by the members of the Jharkhand State Legislative Assembly, immediately after start of the Election process, it became known, if not to all, but to large number of persons, including public rep- resentatives and members of Parliaments and office bearers of Political parties that in this election major role may be of money power and horse trading. One of the members of the Parliament Sri Gurudas Dasgupta on 26th March, 2012 submitted a representation to the Commission in which he mentioned that the Electronic and Print Media suggested strong and tangible apprehension about “money power” coming into play to decide the destiny of such an important democratic process to the detriment of the interests of the State and it’s people. Shri Gurudas Dasgupta cit- ed various reports taken from the Print & Electronic Media expressing serious appre- hension about horse trading to garner votes of vulnerable MLAs to enter one of the most prestigious institution of Indian democracy, the Council of States. Shri Gurudas Dasgupta further stated that in order to attract the nation’s attention to this imminent threat to Indian democracy, raised the matter on the Floor during its proceeding dat- ed 26th March,2012 as a special mention. He also referred to the past history of the last Biennial election for Rajya Sabha from in 2010. He pointed out that there is
157 “No voter to be left behind” a bizarre trend of the people with enormous financial clout influencing the MLAs in Jharkhand to vote in their favour and the Jharkhand Vigilance Commissioner had un- der instruction from the election Commission of India filed an FIR against four MLAs, namely, Shri Rajesh Ranjan, Shri Uma Shankar Akela, Shri Simon Marandi and Shri Teklal Mahto for accepting the money for voting in favour of certain candidates at that election. He prayed to the Commission to take serious notes of the reports and concern about the grave aberrations being attempted by section of contestants in Jharkhand with a view to unleashing money power for ensuring the outcome of Ra- jya Sabha election in their favour and demanded that the present process of Biennial election from the State of Jharkhand be cancelled and fresh notification be issued for denovo process. In proof of his allegation, Shri Gurudas Dasgupta submitted a list of two independent candidates, who had been proposed by several MLAs belonging to recognized political parties, when those parties had themselves set up their can- didates for the elections. The above are duly recorded in the recommendation of the Election Commission dated 30th March, 2012
On 27th March, 2012, Shri Babulal Marandi, Member of Parliament ( Ex-chief Minister of Jharkhand) called on the Commission with a delegation and presented a memorandum signed jointly by him and Dr. Ajoy Kumar, Member of Parliament, echoing the same apprehension of “horse trading” as was raised by Shri Gurudas Dasgupta in his letter. Shri Babulal Marandi stated that “barbarous attempt to ma- nipulate our Parliamentary system through dubious means being made by certain people possessing money power, which if allowed, is sure to be replicated in other States as well” and appeal to the Commission to take note of the situation and can- cel the ongoing process for election to Rajya Sabha in Jharkhand immediately.
Not only the above, but yet another letter was received by the Commission from an- other Member of Parliament, Shri Sharad Yadav on 27th March, 2012 raising same apprehension of horse trading and money power being used and resorted by some candidates for garnering votes of some vulnerable MLAs to secure their election.
(15) I n view of such situation, the steps were taken by the Election Commission which has been lauded by both the petitioners in their pleading in the writ petition itself. Yet, both petitioners want that the Election Commission should be directed to
158 “No voter to be left behind” declare the result of poling. Both the petitioners in their pleadings, nowhere disput- ed the facts alleged by the vigilant Members of Parliament and even former Chief Minister of the Jharkhand State itself, therefore, it is clear that allegation of the play of money and horse trading in the present election was not the allegation abruptly raised and it is not that, without verification of any fact the Election Commission pro- ceeded to take a decision recommending the rescinding of the election notification to the President of India. It is unfortunate that one of the writ petitioner-Jay Shankar Pathak found public interest in declaration of the result of the Rajya Sabha in above fact situation and submitted that people of the State of Jharkhand is entitled to same treatment and lenient view which has been taken by the Election Commission in oth- er States in the matter of preventing play of money power and horse trading for the process of election. Such plea is shocking that how any person can say that why the strong action for play of money power and horse trading is taken in his State and is not taken in other State. It is very shocking that any person can say that by taking strong and possible steps to curb play of money power and horse trading in Rajya Sabha election will lower down the prestige of the State. Virtually it is shouting from the top of the roof by the petitioner-Jay Shabkar Pathak that why he should be the cleanest and why his State has been chosen for the eradication of the corrupt prac- tice in the process of election. We are surprised that how he has declared himself as person entitled to espouse cause on behalf of the people of the State of Jharkhand. It is way to improve the image of Jharkhand. It appears that by this present action by Election Commission and its officers and the officer of Income Tax Department work- ing in Jharkhand State reached to such a high pedastal and justified their position has not impressed the petitioner Jay Shankar Pathak and he saw that the loudable efforts be sacrificed by surrendering to criminally corrupt election process. The peti- tioner can presume, whatever money is intercepted is the only money which was in circulation for vote and by one successful effort of Commissioner and good officer of I.T. Department, the apprehension based upon cogent evidence be ignored and his impression, because of any reason that “all is clear after raid” be accepted. That too, when he himself did not raise any objection before the Election Commission that horse trading be stopped, if had knowledge of these facts of involvement of money power in the election and if he had no knowledge about these facts then how is connected with this matter is serious question.
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(16) In this context, it will be relevant to take help of the judgment of Hon’ble Supreme Court cited by the learned counsel for the petitioner to understand what is the election and what is the election process and what is the importance of the parliamentary form of the Government and importance of Rajya Sabha and purity is needed in the election process of the Members of Rajya Sabha.
The Hon’ble Supreme Court in the case of Kuldip Nayar (Supra) while considering the challenge to removal of requirement of residence or domicile in the electing State of the election of Rajya Sabha observed that “However, on account of the realities faced by the young Indian Union, a Council of States (the Rajya Sabha) in the Union Parliament was seen as an essential requirement for a federal order.” The Hon’ble Supreme Court further held that right of bicameralism in Parliamentary forms has been functionally associated with need for effective federal structures and nexus between role of upper house and better Centre-State coordination and protection of interests of the constituent units of the Union. Rajya Sabha is a forum to which experienced public figures get excess without going through din and bustle of a gen- eral election. It acts as a revising chamber over Lok Sabha and helps in improving Bills passed by Lok Sabha. In paragraph 452 of the above judgment, the Hon’ble Supreme Court held “parliamentary democracy and multi-party system are an inher- ent part of the basic structure of the Indian Constitution.” Because of this reason of importance of the House, the Hon’ble Supreme held in paragraph 451 that
Para 451:
It cannot be forgotten that existence of political parties is an essential feature of our parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. In Paragraph 459 while considering the amendment in issue has observed that the Parliament brought amendment through the Representation of People (Amendment) (Act 40 of 2003) on the basis of the need to avoid cross-voting and wipe out evils of corruption as also to maintain the integrity of our democratic set up, it can also be justified by the State as a reasonable restriction under Article 19 (2) of the Constitution, on the assumption that voting in such an
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election amounts to freedom of expression under Article 19-1A of the Constitution. The Hon’ble Supreme Court in paragraph 462 observed that “...... it was reported that some members indulged in cross-voting for consideration. Breach of discipline of political parties for collateral and corrupt consideration removes the faith of the people in a multi-party democracy.”
(17) We need not to give more instances in support of need of free and fair elec- tion from the help of very many judgments and from the judgment of Kuldip Nayar (Supra) but we are of the considered opinion that the present issue raised by the writ petitioners certainly question the power of Election Commission in taking a step to rescind the election, even in gravest to gravest his rarest to rarest case as it is the only step of such great consequence taken by the Election Commission after inde- pendence of country and in our opinion, the decision is fully supported by reason and based upon cogent trustworthy evidence, though limited to purpose, so as to not to give chance to any person to enjoy high status of being Member of Parlia- ment. It is true some innocent and honest candidate may have to suffer as all are not corrupt but such honest person should sacrifice his opportunity in larger public interest. The petitioners assailed the action of the Commission, ignoring the facts that the petitioners themselves in their writ petition specifically admit that there was apprehension of money play and horse trading in the Rajya Sabha election from the State of Jharkhand and that apprehension has not been raised by the person not un- connected with the people but has been raised by the sitting member of Parliament and former Chief Minister of this very State who are deeply connected and may have personal knowledge about reason for apprehension and the knowledge gath- ered from Media. They even gave example of earlier election of the Rajya Sabha with allegation of same money play and horse trading. The constitutional authority, the Election Commission very ably and effectively monitored the matter and acting swiftly and fast, the Income Tax authorities unearthed the wrong, yet the question has been raised without pleading that the action of the Election Commission has totally prevented money play and horse trading in the election and the petitioners inferred so by their imagination, they should not have shown other than imagination to anybody. The question has been raised that only one person was caught with money of Rs.2.15 crores then inference of the argument of the learned counsel for the petitioners leads to declare that apart from this instance of money play and horse
161 “No voter to be left behind” trading and rest all the process was pure and fair. However, both the petitioners, who earlier had no knowledge of what was going on and if had any knowledge, then they did not raise the alarm, may claim that there is no other instance of money play and horse trading then what has seen the light of day by presuming that since one has been caught by Income Tax Department, the others cannot flee away or successfully use the money.
(18) Be that as it may be, yet we would like to examine the issue raised by the writ petitioners. The issue raised by the writ petitioners are that; a.) Whether the Election Commission who has power under Article 324 relating to superintendence, direction, control and conduct of election which is a plenary power but these powers are subject to limitation i.e., law enacted by Parliament or any State legislature relating to or in connection with election and Whether the Com- mission in present situation acted in conformity with such laws and not in violation of such provisions. b.) Whether the Commission has acted bonafidely and was required to follow the norms of principles of natural justice and fair play? c.) Whether the Parliament has specially framed the law dealing with the aforesaid situation relating to horse trading/involvement of the money power in conduct of election and the Election Commission or the authorities have only power to take action under Indian Penal Code and under R.P. Act, 1951 relating to the offence of bribery? d.) Whether the only way is to get election set at naught by filing election petition after declaration of result and there is no other remedy that the election commission, like seeking rescinding of the election notification from the President of India? e.) Whether the Election Commission had only power to cancel the vote of those vot- ers who have shown their ballots after mark to the unauthorized person and that fact cannot be taken into consideration while judging the entire process of the election?
162 “No voter to be left behind” f.) Whether the rescinding of the election will be giving benefit to the person in- dulged in the horse trading?
(19) So far first question is concerned, the power of Election Commissioner 324 of the Constitution is concerned, the powers are very wide. The Election Commission which is a constitutional authority has been vested with the power of superinten- dence, direction and control of the preparation of the electoral roll and for conduct of all elections to Parliament and to the legislature of the States and of election to the office of President and Vice-President has been vested with all pervasive power. Interpreting Article 324 of the Constitution of India, the Hon’ble Supreme Court in the case of Mohinder Singh Gill in paragraph 38 and 39 held as follows:
38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Article 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Shri Rao is right to the extent he insists that if competent legislation is enacted as visualised in Article 327 the Commission shake itself from the enacted prescriptions.
The Hon’ble Supreme Court observed :-
And the Supremacy of valid law over the commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Article 324, likewise his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.
39...... That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification for existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324 in our view operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’
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are the broadest terms Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein’s monster who may manipulate the system into elected despotism. -instances of such phenomena are the tears of history. To that the retort may be that the Judicial branch, the appropriate stage with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order in process. Whether we make a triumph or travesty of democracy depend on the man as much as on the Great National Parchment. When high functionary like the Commissioner is vested wide powers the law expects him to act farelly and legally. Article 324 is geared to accomplishment of free and fare election expeditiously.
And in paragraph 40 of the said judgment, the Hon’ble Supreme Court held that the Supreme Court in earlier rulings and other High Courts have held Article 324 plenary power which enabled the Commission to Act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Article 324-provided it is bona fide necessary for the vindication of the free verdict of the electoral and the abandonment of the previous poll was because it failed to achieve that goal. Therefore, in view of the observations made by the Hon’ble Supreme Court in paragraph 39 of the said case, the Election Commission can exercise its power under Article 324 in the areas left unoccupied by legislation and in view of the said judgment of the Hon’ble Supreme Court the word ‘superintendence, direction and control’ as well as ‘conduct of business’ are the broadest term. The Election Commission may be called upon to prompt action to reach the goal of free and fair election and apprehension against this proposition has been rejected by the Hon’ble Supreme Court by declaring that the retort may be that the judicial branch, at the appropriate stage with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order into the process. However, the Hon’ble Supreme Court reit- erated the fact that such high functionary like the Election Commission, as has been the view shown by the Hon’ble Supreme Court in the case of Pundu Swami (1952) SCR 218 and held that such authorities vested with wide powers the law expects
164 “No voter to be left behind” him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair election expeditiously. However, such power if misused certainly the Court has power to strike down the act. Therefore, in the present case, the Election Commis- sion was right in it’swisdom to take immediate action and recommend cancellation of election notifiation itself that fresh election may be conducted expeditiously.
(20) Now the question arises whether any law enacted by the Parliament to take full care of this situation of allegation of large scale horse trading and huge money play in the process of election and the Election Commission has acted contrary to that specific law on the subject by recommending the rescinding of the election noti- fication.
Learned counsel for the petitioners drew our attention to the Election Commission’s impugned recommendation, recommending the rescinding of the election by the Hon’ble President of India and submitted that Election Commission itself was con- scious that the Parliament has considered this aspect of the matter of horse trading and money power in the process of election and thereafter amended Section 59 of the R.P. Act, 1951 and inserted Rule 39A and 39AA and quoted the recommenda- tion of the Ethics Committee by the parliament, which we would also like to quote :
2. The Ethics Committee of the parliament in paragraph-19 of its first report presented to parliament on 8th December, 1988 recommended that the issue relating to open ballot system for elections to the Rajya Sabha be examined. The issue has again given rise to concerns in the wake of allegations of money power made in the media in respect to biennial elections to the Council of States held in March-April, 2000.
3. In the light of the above, the aforementioned issues were examined in depth by the government and it has been decided to do away with the requirement of residence of a particular State or Union Territory for contesting election to the Council of States from the State or Union Territory and also to introduce open ballot system for elections to the Council of States.
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(21) According to the learned counsel for the petitioners, when the law has been made by the Parliament to deal with the situation of money power play in the elec- tion and particularly by taking example from the election of the Rajya Sabha and provided that this situation can be taken care of by providing open ballot system and by deleting the provisions of requirement of having residence of a particular State or Union Territory for contesting the election for the Council of States from that State or Union Territory then the Election Commission could not act beyond the measures tak- en by the Parliament enactment. If the parliament consciously did not frame any rule more than what it had done after considering the issue of allegation of money power play in election, then the Parliament has excluded all other and more measure in dealing with this issue of money power play and horse trading. It is also submitted that the various provisions are there where any person indulging in the bribing can be prescribed and if one is elected by means of bribe, his election can be set aside. “Bribing” is a corrupt practice as defined in Section 123(1) of the R.P. Act, 1951 and person involved in the bribing can be prosecuted even if he only attempted to bribe under Section 171(B) of the Indian Penal Code. If a person has shown ballot to unauthorized person then his vote can be cancelled. Therefore, these are the measures which alone could have been taken by the Election Commission.
(22) After considering the submission of the learned counsel for the petitioners, we are of the considered opinion that the Parliament has not amended Section 59 and inserted Rule 39A and Rule 39AA as a measure to deal with all contingency of money power play and horse trading in the election process. The two steps taken of the removal of the requirement of residence of a member of a State or Union Terri- tory for contesting election to the Council of States from that State or Union Territory and provided for open ballot, may be two of the mode prescribed so as to reduce the chance of money power play and horse trading in the process of election. What will happen, when outsider is involved such immoral, unethitical and criminal activ- ities? This is only a one of narrow question to find out that whether above amend- ments are the only answer to the grave problem of play of money power? It is true that validity of the amendment has been upheld by the Hon’ble Supreme Court in the case of Kudeep Nayar(Supra). At this juncture, we would like to observe that issue before the Hon’ble Supreme Court, in that case, was with respect to the challenge of the abovesaid amendment only made by the Representation of the People Act
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(Amendment (Act 40 of 2003) by which requirement of residence/domicile has been dispensed with and open ballot was declared to be valid mode of fair poling. While considering this issue, the Hon’ble Supreme Court already considered the issue of cross-voting and corruption in the voting and corrupt consideration. However, it was confined to subject of affiliation of the member of the political party. The Hon’ble Supreme Court in para-459 clearly observed that amendment has been brought in on the basis of the need to avoid cross-voting and wipe out evils of corruption as also to maintain the integrity of our democratic set up. The Hon’ble Supreme Court took note of the fact that it has already been noted by the Parliament that in election to Council of States, members elected on behalf of the political parties misused the secret ballot and cross-voting. It was reported that some members indulged in cross voting for consideration. Then it was observed that breach of discipline for collateral and corrupt consideration removed the faith of the people in a multi party democ- racy.
(23) We may reiterate that the issue raised before the Hon’ble Supreme Court in Kuldip Nayar’s case(Supra) was with respect to challenge to the validity of the amendment, which we referred above, and in that context the Hon’ble Supreme Court held that the members of legislative assembly may indulge in cross-voting, which may be against the whip of the political party and against the party discipline and therefore, the party’s representative may see the ballot marked by the electoral to maintain the discipline of the party and avoid the cross-voting.
(24) There was no issue involved in the case of Kuldip Nayar of seeking can- cellation of election notification on allegation of horse trading and money power play. In the case in hand, according to the writ petitioner themselves the allegation of money power play is upon independent candidate and not on any party candi- date (we are not deciding or holding any of the candidates or member of legislative assembly guilty and considering the allegation only) and as per the law laid down by the Hon’ble Supreme Court in the judgment of Kuldip Nayar the voters who are the members of political party alone are required to show the ballot paper to parties representative and not to others. Three members of the political party shown ballot paper to unauthorized persons. And one of allegation with proof presented before the Commission was that several political parties MLAs proposed to independent
167 “No voter to be left behind” candidates. Such facts were taken into account by the Election Commission, which independently may not be of importance but in background of facts of present case are very important. Their votes have not been cancelled, may be due to mistake of the officer conducting the election, but fact is that those votes had been cast. The open vote may secure the discipline of political party and may avoid the cross voting in horse trading and money play to some extent but while interpreting the power of the high functioning authority like Election Commission, we cannot hold that apart from what has been provided by the said amendment of removal of condition of domicile and open vote system is full and complete answer to the grave problem. Now the time has come to look into the availability of huge funds which availablity has been proved in this case and not disputed by the politicians rather admitted by them and there is allegation of paying money to the party itself (fact yet not proved). If it happens so, then in that situation, the amendments are of no use because they take care of securing the discipline of the members of the political party within the political party. It may aviod the corruption if party is strong as the party can reject any wrong doers by claiming that all had cast votes in favour of such person who was not indulged in horse trading. This is not imaginary but the allegation has come in almost all newspapers in circulation in the State of Jharkhand with one voice and have raised doubt without any bias and ill-feeling about the involvement of not only members to political party but offer of money to parties (we wish so may not be true) but in future such cases may come through also whether Election Commission to pray god only as observed by the Supreme Court in the case of M.S. Gill (Supra). We can take judicial notice of the newspaper reportings because of the fact that, that was unanimous voice of media in State and the language used by the media was not derogatory, defamatory or with any bias for one or others. Not only this but the Election Commission has also taken note of the media report shown by one of the members of Parliament Gurudas Dasgupta and it is also reported in the media that the seized amount was not only the amount which has been sent from Jamshed- pur to Ranchi and petitioners themselves admitted in their petition that, at least, Rs. 2.15 crores was intercepted by the Income Tax Department and that was sent for the votes. Assuming that none of the party was involved in illegal consideration for vote of its member then also in the fact situation where the involvement of the money was so much and out of which some of the money has been intercepted by the vigilant cell of the Income Tax Department on the instruction of the Election Commission and
168 “No voter to be left behind” the Election Commission has presumed that it was a grave case of large scale horse trading and money power play and took the extraordinary steps in extraordinary situation and which is not contrary to any statutory provisions of law and which action is based on substantive material evidence, then at this juncture, it would be relevant to quote from the judgment of the Hon’ble Supreme Court delivered in the case of M.S. Gill (Supra), wherein the Hon’ble Supreme Court observed thatonce the appointment is made by the President the Election Commission remain insulated from extraneous influences and that cannot be achieved unless it has an amplitude of powers in the conduct of elections-of course in accordance with the existing laws but where these are absent, and yet a situation has to be tackled the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any ex- ternal authority for the grant of powers to deal with the situations. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the elections process is completed properly in a free and fair manner. “An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually implied and that are necessary to the exercise of the power of the performance of the duty ...... that which is clearly implied in as much a part of a law as that which is expressed.”
(25) In our opinion, the Election Commission did what the Hon’ble Supreme Court expects from high functionary authority like Election Commission that, even if the law and the rules are absent even then if Election Commission comes across such a situation and he is to tackle that situation then he should not remain with folded hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of pow- ers to deal with the situations. The Hon’ble Supreme Court has clearly held that the question raised by the petitioner that Election Commission must exercise his power independently in all matters relating to the conduct of free and fair elections and see that election process is completed properly in a free and fair manner.
The Hon’ble Supreme Court further in paragraph 115 of M.S Gill’s case (Supra) clearly held that the Election Commission is entitled to exercise certain powers
169 “No voter to be left behind” under Article 324 itself on its own right, in an area not covered by the act and rules. Whether the power is exercised in an arbitrary or capricious manner is a completely different question.
(26) In these cases, we are of the considered opinion that the Election Commis- sion has acted befitting to its office by taking extraordinary steps of stopping the counting promptly and stopping the result of the poll and forthwith recommended for rescinding the election notification to Her Excellency the President of India. The Election Commission recommendations are since based on facts and materials and this Court is not appellate Court to re-examine the evidence and material to find out the correctness in the process of the Election Commission. The petitioners also rightly did not pray for appreciating the evidence which were considered by the Election Commission and very interestingly none of the fact narrated in the recommenda- tion of the Election Commission, made in recommendation to rescind the election notification has been disputed by the petitioners and yet the petitioners assailed the recommendation of the Election Commission to the President of India. The petitioners even did not dispute, rather say admitted that three of the Members of the legislative Assembly violated the rules and it inadvertently or for any reason their votes have not been cancelled by the Incharge of the election. So, is in addition to the fact that the petitioners themselves have stated in the writ petitions that money was meant for the election in question and intercepted by the Income Tax Department and thereby only this money could not be paid to the relevant persons to the influence and pollute the election of the two seats of the Rajya Sabha. How there can be any cause of action to the writ petitioners in these circumstances to take the help of technicalities of the law, but the writ petitioners ignored the fact that Article 226 of the Constitu- tion of India is the extraordinary equitable jurisdiction of the High Court and it is not an ordinary jurisdiction of any Court where on the basis of legal right, one can claim the relief which cannot be denied by the court on account of misconduct of the party and that relief cannot be denied on equitable ground. There are number of cases, which already lay down that even if there is illegality the High Court in writ jurisdiction i.e., in extraordinary equitable jurisdiction need not to correct that illegality if the conduct of the petitioner disentitles him from the relief. So is the po- sition in this case. The petitioners after admitting all the fault and flaws in election process to the extent of making the entire election process corrupt with no limit of
170 “No voter to be left behind” corruption involving crores of rupees out of which only a few crores of rupees has been intercepted, still challenged the action of Election Commission, such conduct of petitioners is condemned.
(27) Now, the learned counsel for the petitioners has raised another legal issue that the election as a whole could not have been cancelled without affording an opportunity of hearing to the writ petitioners.
Before proceeding to decide this issue we make it clear that the challenge in this petition is to the recommendation of the Election Commission made to President of India. The Commission itself has not countermanded the election. Such recommen- dation of Commission may be accepted by the Her Excellancy President of India. We may recapitulate here that the Election Commission is vested with the power under Article 324 of the Constitution of India and is discharging this responsibility by following procedures provided in the Representation of Peoples Act, 1951. In the Act there is no provision for submitting a request for rescinding of the election notification to the President of India. Section 12 of the Act of 1951 provides that on the recommendation of the Election Commission the President shall by one or more notification published in the Gazette of India call upon the elected members of the legislative assembly of each of the State concerned to elect Members in accordance with the provisions of Act of 1951 for Council of States. Learned counsel for the petitioners submitted that Section 12 clearly indicate that on recommendation of the Election Commission the President shall issue notification for election and, therefore, it is mandatory upon the President of India to accept the recommendation of Election Commission. Therefore, according to the learned counsel for the petitioners by the same analogy the President of India shall be bound by the recommendation made by the Election Commission by which the Election Commission has requested for re- scinding the election. The argument is far fetched as well as far away from the law. We are not going to interpret the word “shall” used in Section 12 with reference to the action to be taken the President of India, on recommendation of the Election Commission and if it is held that the word “shall” mandate duty upon President of India to accept the recommendation of the Election Commission even then that prin- ciple cannot be applied on recommendation submitted by the Election Commission to the President of India in its administrative function and the Hon’ble President of
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India can either accept or can reject the recommendation of the Election Commis- sion for want of any law putting a command upon the highest office in India i.e., upon the President of India, which can take away the discretion of the President of India in the matter of such serious issue of cancellation of notification issued by the President of India itself. Therefore, the contention of the petitioners that the recom- mendation is binding upon the President of India is rejected.
(28) Learned counsel for the petitioner submitted that the order to start the pro- cess of election is quasi judicial order as held by the Hon’ble Supreme Court in the case of Mohinder Singh Gill (Supra), therefore, an appropriate hearing should have been given to the petitioner which not having been given even on demand of the petitioner. In the case of M.S. Gill (Supra), the facts were entirely different. That was the case of booth capturing and order was passed by the Election Commission for re-poll and not for a new election, which clearly indicated by the Supreme Court in paragraph 13, wherein it has been specifically made clear that the order of Election Commission was for re-poll and fresh poll and not a new election. The Election Com- mission has power to countermand the election under Section 58 A sub-section 2 of Clause (b) but Section 58A has no application to the facts in the case in hand and learned counsel for the petitioner also rightly submitted that there was none of the contingency as given under Section 58 A sub-section 2 of Clause (b) and, therefore, no order countermanding could have been passed by the Election Commission. The Election Commission also has power to order for adjournment of poll and re-poll. All those powers may be exercised under Statutory provisions of R.P. Act, 1951 and if some of those orders, may be quasi judicial, but it could not be held that every order of the Election Commission is quasi judicial order, if it relates to the Election and particularly when Election Commission is addressing to President of India in such matter. As we have noticed that the recommendation of Election commission to the President of India has not been under any specific provision of the Act of 1951 or but is specific provision of the Constitution of India i.e. Article 324, which cast duty upon the Election Commission to conduct the election, obviously with utmost fairness and purity. The power to superintendence, direction and control includes to take appropriate steps by the Election Commission and it is not necessary for the Election Commission to merely order for re-poll in a case when allegation of corrupt practice in entire process of election has been substantiated by the evidence and Election
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Commission satisfied that without cancellation of entire election there cannot be free and fair election for the post of the Rajya Sabha then this decision is under Article 324 of the Constitution of India and is taken in administrative and supervisory ju- risdiction of the Election Commission for which no opportunity of hearing can be demanded by anybody. We may further expand the issue of principles of natural justice and of requirement of hearing. The principle of natural justice require oppor- tunity of hearing to the parites who may be effected by the decision of the authority. If any election is cancelled by the Election Commission who is the effecting party? Only candidate? Whether public is not the affected party? Whether the Election Commission should hear the candidates only in a matter where there is allegation of corruption at highest possible extent and persons who are to be represented by candidate selected in such polluted election are not required to be heard and take decision after hearing only candidates who may satisfy the authority only ex-parte, in absence of public hearing?
We are leaving these questions open and living for consideration in appropriate case because in case in hand, we are of the opinion that for taking a decision by the Election Commission on the basis of substantial piece of evidence and taking a decision in administrative side by the Election Commission the petitioners, in the facts of the case, were not entitled to any opportunity of hearing, therefore, we need not to go into other questions referred above.
(29) Now question arises whether ordering for declaration of three of the voters who violated the rules by showing the ballot-papers to unauthorized persons left only recourse with Election Commission to cancel the votes at the time of polling itself and if had not been cancelled by the Officer conducting the election, the Election Commission while examining the broader issue, could have considered this fact as one of issue for taking the decision. We are of the considered opinion that when de- cision is taken for entire election and when here in this case, the entire election may be consisting of only two seats but was for the Council of States (Rajya Sabha), and election is by preferential vote, then it is immaterial if money has been paid for vote of one of the candidate, then certainly the second preference of such voter, who is corrupt, also pollute the election and it is difficult to collect any evidence that whether money was to paid for first preference or second preference. In that peculiar facts
173 “No voter to be left behind” and circumstances, the Election Commission was required to look into the totality of the facts for taking an administrative decision. Therefore, showing of the ballot by the Members of Legislative Assembly to unauthorised persons may be for any other purpose. If these are only doubts, even then these doubts are very strong to pollute the process of election as election must pass the test of faith of people. Therefore, we are of the considered opinion that in the present facts and circumstances of the case, the Election Commission was not left with only option to cancel the votes of these candidates but was fully justified in feeling for cancellation of election. We are also of the considered opinion that other provisions for taking action against the persons involved in bribing for vote under Indian Penal Code or under R.P.Act, 1951 are not the only measure against the grave allegation of bribe to large number of voters, out of only few member of the voters. The prosecution and action under the R.P. Act, 1951 can be in addition to any of the other decision that may be taken by the Election Commission, which is needed necessarily in the fact situation.
(30) We strongly deprecate the stand of the writ petitioner-Jay Shankar Pathak, who without any locus standi tried to become the spokesperson of the people of the Jharkhand and claimed that since the strict action was not taken in the other State in the matter of illegal activity in the election, the strict action in Jharkhand cannot be taken. We doubt that Jharkhand people will not support such stand and may condemn it because people of the Jharkhand State, in fact, are in majority members of down trodden, members of scheduled caste and scheduled tribes, deprived from large number of facilities but hard worker and honest. The wrong doers in any elec- tion are not the face of the public of the State of Jharkhand. They are few and they can paint the face of the Jharkhand, and only that cancer has been shown to rest of India but real face of Jharkhand can be seen without much effort to find the innocent public of the Jharkhand. The petitioner, who filed the Petition in the name of Public Interest Litigation, failed to show that how the image of Jharkhand could improve by declaration of result of the Jharkhand Rajya Sabha in the fact situation where the petitioner himself admitted that money in fact shamelessly and without fear moved for election in spite of the fact that such persons activities already noticed and was known to all and that the complaints have been made to the Election Commission of chances of money power play and horse trading and it was in full reporting by the media and newspaper report, yet the persons involved in painting the faces of
174 “No voter to be left behind” the public of Jharkhand shown courage to transport the money and we doubt some of the money may have been reached to some of the persons and only some mon- ey, out of mare, that too, amounting to Rs. 2.15 crore has been seized. The said Jay Shankar Pathak might have been showing his loyalty to his party but not to the Jharkhand or other State or to the Nation.
(31) In view of the above discussion, we are of the considered opinion that both the writ petitions are wholly misconceived and are liable to be dismissed and hence are dismissed.
(32) However, the writ petition in the name of public interest litigation being W.P(PIL) No. 1801/2012 since has been filed against the public interest and with- out there being any basis and reason, which is a clear case of abuse of the process of Court, the same is dismissed with cost of Rs.1,00,000/-(Rs.one lac only) and the cost be deposited with the Jharkhand State Legal Services Authority. Since it is a grave case of involvement of money power, horse trading and influence relating to process of election of Council of States, wherein voters are Members of Legislative Assembly, we deem it proper to direct Election Commission to hand over the matter to the Central Bureau of Investigation so far as criminality of any of “the persons is involved.
Let a copy of this order be sent “to the Election Commission of India forthwith.
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JUDGMENT-11 SUPREME COURT OF INDIA
Writ Petition (Civil) No.532 of 2008 (Decision dated 18/04/2012)
DMDK& Anr. ……………………………………...... Petitioner
Versus
Election Commission of India...... …………………………...... Respondents
Writ Petition (c) Nos.315 of 2009, 422 of 2009, 426 of 2009, 444 of 2009, 454 of 2009, 463 of 2009, 447 of 2009 & 132 of 2009, Special Leave Petition (C) Nos.23494 of 2009 & 7379-7380 of 2009 and Writ Peititon (C) Nos. 111 of 2011, 117 of 2011, 125 of 2011, 124 of 2011 & 128 of 2011.
Election Symbols (Reservation and Allotment) Order, 1968 – Para 6A and 6B pre- scribing the conditions for a political party to be recognized as a State Party – HELD: The amendments made by the Election Commission in 2000 laying down the bench-mark showing its minimum presence in Parliament or State Legislature to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol is not unreasonable.
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SUMMARY
The bunch of writ petitions and SLPs were filed to challenge the constitutional validity of the amendment made by the Commission in para 6 of the Election Sym- bols (Reservation and Allotment) Order, 1968, vide Notification dated 1st Decem- ber, 2000, to prescribe that in order to be recognised as a State Party in the State, a political party would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 members to the Legislative As- sembly of the State.
The petitioner political party “ Desiya Murpokku Dravida Kazharam”, a registered unrecognised political party under Sec.29A of the R.P. Act, 1951, was refused recognition as a “State Party” by the Election Commission despite having secured 8.33% of the valid votes polled and returning 1 (one) candidate to the Assembly during the general election to the Tamil Nadu Legislative Assembly, 2006, on the ground that it did not qualify the bench mark of returning at least two members to the Legislative Assembly in addition to securing the minimum percentage of votes of 6% prescribed under the amended para 6A of the Symbols Order 1968. It was contended that the classification of parties into recognized and unrecognized Parties on the basis of the seats won during an election and the percentage of votes polled, is unreasonable and arbitrary, having no nexus with the purpose sought to be achieved. It causes hardship to political parties as it imposes two conditions clubbed with other conditions that are highly anomalous and therefore liable to be struck down. It further contended that denying a common election symbol to the candidates of unrecognised political parties vis-a-vis recognised political parties’ results in hostile discrimination by the Commission.
It was also contended that the symbol in the context of an illiterate electorate is absolutely necessary for a free and fair election and equating established parties with newly-formed parties is a disadvantage to the newly formed parties and thus violative of Article 14 and was, therefore, liable to be struck down.
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The Supreme Court (a Three-Judge Bench and the judgment by a majority decision) rejected the challenge to the vires of the Election Symbols Order, 1968, and held that the constitutional validity of the 1968 Order and the power of the Commission under para 15 of that Order to settle issues relating to claims of splinter groups of recognized political parties to be the original party has been decided by a Three-Judge Bench of the Supreme Court in Sadiq Ali’s case 40 years ago.
It further held that in order to gain recognition as a political party and to become entitled to the allotment of a common symbol, a party has to prove itself to establish its credibility as a serious player in the political arena of the State by achieving the bench-mark laid down by the Commission under the Symbols Order, 1968, after taking into account the ground realities of conducting a State-wide poll.
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JUDGMENT
Hon’ble Altamas Kabir, Judge
Hon’ble Surinder Singh Nijjar, Judge
Hon’ble Chelameswar, Judge
Advocate for appearing Parties: K.K. Venugopal, Sr. Adv., Rukhsana Choudhury, Col. Edwin Jesudas, Ankur Talwar, S. Ravi Shankar, Pravin Satale, Rajiv Shankar Dvivedi, Manoj Goel, Wajeeh Shafiq, Gopal Verma, Ashutosh Kumar Singh, Shu- vodeep Roy, Vishwajit Singh, Harinder Mohan Singh, Naushad Ahmad Khan, Mehbubul Hassan L., Aftab Ali Khan, Dushyant Singh, R. Nedumaran, Meenakshi Arora, S. Ravi Shankar, Ankur Mittal, Pranav Kumar Jha, Sanjay R. Hegde, Tenzin Tsering, S. Nithin, Anil Kumar Mishra- I, Hari Shankar K., Vikash Singh Jangra, Ramesh Babu M.R., N. Rajaraman, Meenakshi Arora, S.K. Mendiratta, Poli Kaiki, Vasav V., Rakesh K. Sharma, Venkateswara Rao Anumolu, Jogy Scaria, Sharmila Upadhyay, Advs. Lawyer’s Knit and Co., Ramesh N. Keswani and Ram Lal Roy, Advs., Keswai and Co.
(1) Writ Petition (Civil) No. 532 of 2008 was filed by Desiya Murpokku Dra- vida Kazhagam and Colonel Edwin Jesudoss (Retd.), challenging the constitution- al validity of the amendment of the Election Symbols (Reservation and Allotment) Order, 1968, hereinafter referred to as the “Election Symbols Order, 1968”, vide Notification No. O.N. 56/2000/Jud-III dated 1st December, 2000, substituting Clause 6 with 6A(i) and (ii) and Clause 6B therein. The same was taken up for final hearing along with several other Writ Petitions on account of the common issue in- volved therein. The common grievance in all these writ petitions is with regard to the amendment which mandates that in order to be recognized as a State party in the State, it would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 members to the Legislative Assembly of the State.
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(2) The grievance of the Desiya Murpokku Dravida Kazhagam is that it had been refused recognition as a State party by the Election Commission of India, although, it secured 8.33% of the valid votes in the Assembly elections. It is the further grievance of the Petitioners that in view of the amendment made to Clause 6 of the Election Symbols Order, 1968, it had been denied recognition on account of the cumulative effect of the requirement that a political party would not only have to secure not less than 6% of the total valid votes polled, but it had also to return at least 2 members to the Legislative Assembly of the State. It is the Petitioners’ case that despite having secured a larger percentage of the votes than was required, it was denied recognition, since it had failed to return 2 members to the Legislative Assembly.
(3) In order to appreciate the case made out by the writ Petitioners, it would be apposite at this stage to look into the background in which the Election Symbols Order, 1968, came to be pronounced.
(4) After the commencement of the Constitution on 26th January, 1950, the Elec- tion Commission was constituted under Article 324 of the Constitution. On 30th July, 1951, the Commission held a conference in New Delhi with 7 established political parties organised on an all-India basis and discussed the possibilities of allotting a distinctive symbol to each one of them all over India. During the deliberations, the participants generally agreed that the same symbols would be used throughout India for all candidates of a party, both for parliamentary and assembly elections. What also fell for discussion was whether where among several constituencies one of the seats was reserved for Scheduled Castes or Scheduled Tribes, the candidates belonging to a party would be allotted the party’s symbol. The said discussions led to ad hoc recognition being given by the Election Commission to several parties as national or multistate parties and allotted to them the symbols as were shown against their names.
(5) Drawing inspiration from the first General Elections conducted by the Elec- tion Commission in 1951-52, the Election Commission decided to withdraw recogni- tion from such parties whose poll performance was far below the standards to merit further recognition. However, giving due recognition to the fact that some of the
180 “No voter to be left behind” parties were new and were not fully organised before the elections, the Commission fixed 3% of the valid votes polled in the elections as the minimum standard for grant of recognition. In the case of national parties, such percentage was calculated with reference to the votes polled in regard to elections to the House of the People, while in the case of State parties, the votes polled in the elections to the State Legislative Assemblies were the factors to be considered. On account of the standards laid down, only 4 political parties remained eligible for recognition as national parties, namely, (1) Indian National Congress; (2) All India Bharatiya Jan Sangh; (3) Com- munist Party of India; and (4) Praja Socialist Party, and all other parties lost their recognition. Standards for maintaining such recognition continued to be applied by the Election Commission in the Second and Third General Elections held in 1957 and 1962 respectively, but after the Third General Elections the minimum standard was raised by the Commission from 3 to 4%. The same formula was also used by the Election Commission after the Fourth General Elections in 1967.
(6) After the Fourth General Elections were held in 1967, the Election Commis- sion decided to streamline the provisions and procedure so long followed relating to recognition of political parties in the conduct of elections. The Commission was of the view that the provisions relating to recognition of political parties and their func- tioning, was required to be codified and provision was also required to be made for registration of political parties as a pre-condition for recognition. Accordingly, by virtue of powers conferred on it by Article 324 of the Constitution, read with Section 29A of the Representation of the People Act, 1951 and Rules 5 and 10 of the Con- duct of Election Rules, 1961 and other powers vested in it, the Election Commission of India made and promulgated the Elections Symbols (Reservation and Allotment) Order, 1968, which is at the core of the issues being heard in these matters.
(7) As the Preamble of the aforesaid Order states, the same was promulgated to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies; for the recommendation of the political parties in relation thereto and for matters connected therewith. It was also promul- gated in the interest of purity of elections to the House of the People and the Legisla- tive Assembly of every State and in the interest of the conduct of such elections in a fair and effective manner. After the Election Symbols Order was promulgated, some
181 “No voter to be left behind” of its provisions were challenged on the ground of their constitutional validity. One of the questions raised was whether under the aforesaid Order, the Election Com- mission could have vested itself with the powers contained in Clause 15 thereof, reserving to itself powers to settle issues in relation to splinter groups or rival sections of recognized political party, each of whom claimed to be the original party. The decision of the Commission was made binding on all the rival sections and groups. The said question fell for the decision of this Court in the case of Shri Sadiq Ali and Anr. v. Election Commission of (1972) 4 SCC 664 and it was held by a Three-Judge Bench of this Court that Clause 15 was intended to effectuate and subserve the main purposes and objects of the Symbols Order. It was observed that the Clause was de- signed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Election Symbols Order relating to the allotment of a symbol reserved for the political party, was not frustrated. This Court took note of the fact that the Election Commission had been clothed with plenary powers by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of allotment of Symbols, the validity whereof had not been challenged. This Court, therefore, came to the conclusion that the fact that the power to settle such disputes had been vested in the Commission could not constitute a valid ground for assailing the vires of the said clause. Since the said decision has also been referred to by the Learned Counsel for the parties in extenso, we will revert back to the same at a later stage in this judgment.
(8) The same view was also expressed by this Court in All Party Hill Leaders ‘ Conference, Shillong v. Captain W.A. Sangma and Ors. (1977) 4 SCC 161 and in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487, wherein while deal- ing with the provisions of Clause 13 of the Symbols Order, this Court held that the dispute relating to the procedure for setting up of candidates could be the subject matter of an Election Petition Under Section 100(1)(d)(iv) of the Representation of the People Act, 1951.
(9) The authority of the Election Commission under the Election Symbols Order, 1968, as a whole was also challenged before this Court in Kanhiya Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628, wherein it was urged on behalf of the Peti- tioner that the said Order, being legislative in character, could not have been issued
182 “No voter to be left behind” by the Election Commission, which was not entrusted by law with power to issue such an Order regarding the specification, reservation, choice and allotment of sym- bols that might be chosen by the candidates during elections in the Parliamentary and Assembly Constituencies. It was also urged that Article 324 of the Constitution which vests the power of superintendence, direction and control of all elections to Parliament and to the Legislative Assemblies, in the Commission, could not be con- strued as conferring power on the Commission to issue the Symbols Order. Rejecting the said contention, this Court held that the expression “election” in Article 324 of the Constitution is used in a wide sense so as to include the entire process of election which consists of several stages, some of which had an important bearing on the result of the process and that every norm which laid down a Code of Conduct could not possibly be elevated to the status of legislation or even delegated legislation. It was emphasized that there are certain authorities or persons who may be the source of rules of conduct and who at the same time could not be equated with authorities or persons who are entitled to make law in the strict sense.
(10) As has been indicated hereinbefore, the Petitioner political party, Desiya Murpokku Dravida Kazhagam, hereinafter referred to as “DMDK” was refused recognition as a State Party by the Election Commission of India, despite having secured 8.33% of the valid votes on account of the fact that by virtue of the amend- ment to the Election Symbols Order in 2000, in order to obtain recognition, DMDK was required to secure not less than 6% of the total valid votes polled in the State and must have returned at least two members to the Legislative Assembly of the State.
(11) Appearing for the Writ Petitioners, Mr. K.K. Venugopal, learned Senior Ad- vocate, submitted that the condition for a political party to be recognized as a State Party was originally prescribed in Clause 6 of the Election Symbols Order, 1968, which provides as follows:
6(2). A political party shall be treated as a recognized political party in a State, if and only if either the conditions specified in clause (A) are, or the condition specified in Clause (B) is, fulfilled by that party and not otherwise, that is to say -
183 “No voter to be left behind”
(A) that such party -
(a) has been engaged in political activity for a continuous period of five years; and
(b) has, at the general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning, returned - either (i) at least one member to the House of the People for every twenty-five members of that House or any fraction of that number elected from the State;
Or (ii) at least one member to the Legislative Assembly of that State for every thirty members of that Assembly or any fraction of that number;
(B) that the total number of valid votes polled by all the contesting candidates set up by such party at the general election in the State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning (excluding the valid votes of each such contesting candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total number of valid votes polled by all the contesting candidates in that constituency), is not less than four per cent of the total number of valid votes polled by all the contesting candidates at such general election in the State (including the valid votes of those contesting candidates who have forfeited their deposits).
(12) Mr. Venugopal submitted that the said conditions remained in force from 1968 to 1997 when the conditions stipulated in Clause 6 (2) (B) for recognition of a political party as a State Party were amended by the Election Commission of India vide its Notification No. 56/97 Jud III dated 15.12.1997, which provided as follows:
6(2). A political party shall be treated as a recognized political party in a State, if and only if either the conditions specified in clause (A) are, or the condition specified in Clause (B) is, fulfilled by that party and not otherwise, that is to say -
184 “No voter to be left behind”
(A) that such party -
(a) has been engaged in political activity for a continuous period of five years; and
(b) has, at the general election in that State to the House of the People, or, as the case may be, to the Legislative Assembly, for the time being in existence and functioning, returned -
either (i) at least one member to the House of the People for every twenty-five members of that House or any fraction of that number elected from the State;
Or (ii) at least one member to the Legislative Assembly of that State for every thirty members of that Assembly or any fraction of that number;
(B) that the total number of valid votes polled by all the contesting candidates set up by such party at the general election in the State to the House of the People, or, as the case may be, to the Legislative Assembly, is not less than six per cent of the total number of valid votes polled by all the contesting candidates at such general election in the State.
2 (A) Notwithstanding anything contained in Clause (B) of the sub-paragraph (2), a political party shall be treated as a recognized political party in a State, if at the general election to the House of the People or as the case may be, to the Legislative Assembly of the State, in existence and functioning at the commencement of the Election Symbol (Reservation and Allotment) (Amendment) Order, 1997, the total number of valid votes polled by all the contesting candidates setup by such party (but excluding the valid votes of each such candidate in a constituency as has not been elected and has not polled at least one-twelfth of the total valid votes polled by all the contesting candidates in that constituency), is not less than 4% of the total number of valid votes polled by all the contesting candidates at such general election in that State (including the valid votes of those contesting candidates who have forfeited their deposits).
185 “No voter to be left behind”
(13) By virtue of the aforesaid Notification, the minimum percentage of votes to be obtained by a political party for recognition as a State Party was increased from 4% to 6%, but the other criteria regarding the number of seats or percentage of votes was maintained. The said conditions relating to the recognition of a political party as a State Party solely on the basis of the percentage of votes held by its can- didates, was again amended in 2007 by the Election Commission of India vide its Notification No. 56/2000/Jud-III dated 1.12.2000, where the criteria was altered in the manner following:
6B. Conditions for recognition as a State party - a political party, other than a National party, shall be treated as a recognized State party in a State or States, if, and only if, -
Either (A) (i) the candidates set up by it, at the last general election to the House of People, or to the Legislative Assembly of the State concerned, have secured not less than six per cent of the total valid votes polled in that State at that general election; AND
(ii) In addition, it has returned at least two members to the Legislative Assembly of the State at the last general election to that Assembly;
or (B) it wins at least three per cent of the total number of seats in the
Legislative Assembly of the State, (any fraction exceeding one-half being counted as one), or at least three seats in the Assembly, whichever is more, at the aforesaid general election.
(14) It was submitted that the DMDK was constituted as a political party on 14.9.2005 and was registered with the Election Commission of India Under Section 29A of the Representation of the People Act, 1951, hereinafter referred to as “the 1951 Act”, and contested the General Elections in 2006 for the Tamil Nadu Legisla- tive Assembly in 232 out of 234 constituencies, just after 8 months of its formation. Being an unrecognized party, the candidates were allotted the “Naqara” symbol in 224 constituencies, whereas in six constituencies its candidates were given the
186 “No voter to be left behind”
“Bell” symbol and the “Ring” symbol in 2 constituencies. Mr. Venugopal submitted that in the said elections all the candidates of the DMDK secured 8.33% of the total number of valid votes in comparison to the first and second political parties, which obtained 31.44% and 30.92% respectively of the votes. Apart from the above, the President of the Party, Mr. Vijayakanth, won the Assembly Election from the Virudhachalam Assembly Constituency, thereby returning one candidate to the Tamil Nadu Legislative Assembly, in addition to having polled 8.33% of the total valid votes.
(15) Mr. Venugopal submitted that the criteria laid down by the Election Com- mission of India for recognition of a political party as a State Party, whereby a State Party had to secure not less than 6% of the total valid votes polled in the State in the General Elections and in addition it had to return at least two members in the said State election, was an erroneous methodology for granting recognition to a political party as a State Party, since in a given General Election, it was not always the polit- ical party which had secured the highest number of votes, that had won the General Elections in the State. That in the 13th Assembly General Elections in 2006, held in Tamil Nadu, the DMK having polled 8,728,716 votes won 96 seats, whereas the AIADMK, having polled 10,768,559 votes, won only 61 seats i.e. despite having polled more than one crore votes over the votes polled by DMK, the AIDMK got only 61 seats as against the DMK’s 96 seats. Similarly, in the 9th Lok Sabha General Elections held in 1989 in Tamil Nadu, the DMK having polled 70,38,849 votes did not win a single seat, whereas the AIADMK, having polled almost half of the number of votes, viz. 45,18,649, won all the Lok Sabha seats from Tamil Nadu. Similarly, in the 10th Lok Sabha General Elections held in 1991 and the 14th Lok Sabha General Elections held in 2004, the AIADMK in 1991 and the DMK in 2004 won all the seats for the Lok Sabha, despite having polled lesser number of votes than the rival group. In view of the aforesaid facts and figures, Mr. Venugopal submitted that the criteria adopted by the Election Commission of India for grant of recognition to political parties in a State as a State party was not a correct index for determining grant of such recognition.
(16) Mr. Venugopal submitted that the recognition of a political party entitles it to the right of exclusive reservation and use of an electoral symbol, as otherwise
187 “No voter to be left behind” there was bound to be confusion in the minds of the voters if different symbols were allotted to different candidates belonging to the same political party. Learned Coun- sel submitted that the classification of parties into recognized and unrecognized parties on the basis of the seats won during an election and the percentage of votes polled, is unreasonable and arbitrary, having no nexus with the purpose sought to be achieved. Mr. Venugopal submitted that yet another disadvantage suffered by unrecognized parties under the Election Symbols Order, 1968, is that in sub- sequent elections, it does not enjoy any priority with regard to symbols and more often than not, symbols which it had used in the earlier election when given to other candidates, resulted in benefit to such candidate to the disadvantage of the party concerned.
(17) Mr. Venugopal also contended that paragraph 6 (B) of the Election Symbols Order, 1968, was causing hardship to political parties as it imposes two conditions clubbed with other conditions which were highly anomalous and was, therefore, liable to be struck down.
(18) Mr. Manoj Goel, learned Advocate, who appeared for the Petitioners in SLP(C) No. 23494 of 2009 and Writ Petition (C) No. 426 of 2009, reiterated the submissions made by Mr. Venugopal and submitted that by denying the unrecog- nized political parties a common election symbol to its candidates, an attempt was being made by the Election Commission of India, to suppress the growth of such parties. It was submitted that parties that did not have a common electoral symbol have a disadvantage in relation to other unrecognized political parties, since party candidates and even the political parties were known by common citizens by their symbols. It was urged that a political party like the Bhartiya Janata Party was known by its “Lotus” symbol, while the Bahujan Samaj Party was known by its “Elephant” symbol. Similarly, other parties were also entitled to be recognized by their electoral symbols, which otherwise resulted in hostile discrimination. It was urged that in or- der to provide a level playing field for all candidates, it was necessary to associate each party with a common electoral symbol, which would eliminate any confusion in the mind of the voter as to who or which party he or she was voting for.
188 “No voter to be left behind”
(19) Mr. Goel submitted that in Union of India v. Association for Democratic Re- forms and Anr. (2002) 5 SCC 294, it was laid down without any ambiguity that the voter has a right to know the antecedents of the candidates based on interpretation of Article 19(1)(a) of the Constitution, which provides that freedom of speech and expression includes the fundamental right to know the relevant antecedents of the candidates contesting the elections. It was also submitted that the said decision was reiterated in the decision rendered by this Court in People ‘ s Union for Civil Liberties v. Union of India and Anr. (2003) 4 SCC 399.
(20) Mr. Goel then urged that questions similar to those, which have arisen in this case, also arose for consideration before a Constitution Bench in Kuldip Nayar and Ors. v. Union of India and Ors. (2006) 7 SCC 1, wherein, while considering various aspects of election laws, the Constitution Bench reiterated the submissions made in People ‘ s (supra), wherein it was stated that it was required to be under- stood that democracy based on adult franchise, is part of the basic structure of the Constitution. There could, therefore, be no doubt that democracy is a basic feature of the Constitution of India and democratic form of Government depends on a free and fair election system. The Constitution Bench also recorded the contention of the writ Petitioners that free and fair election is a constitutional right of the voter, which includes the right that a voter shall be able to cast his vote according to his choice, free will and without fear.
(21) Reference was also made to a decision of a Bench of six Judges of this Court in Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295, in which the freedom of movement and life and personal liberty, as provided under Article 19(1)(d) and Article 21, ensuring a citizen’s free right to move and travel while protecting his life and liberty, fell for consideration. It was held that any restriction on such activity would result in denying a citizen the fundamental rights guaranteed to him under Part III of the Constitution.
(22) Learned Counsel submitted that the Election Symbols Order, 1968, did not have any statutory force and was in the nature of general directions issued by the Election Commission to regulate the mode of allotment of symbols to contesting can- didates. He urged that the said Order was only a compilation of general directions,
189 “No voter to be left behind” and not being law, is violative of Articles 19(1)(a) and 19(2) of the Constitution and was, therefore, unconstitutional and void.
(23) Mr. Goel also referred to the decisions of this Court in Kanhiya Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628 and Sakal Paper (P) Ltd. and Ors. v. Union of India (1962) 3 SCR 842, wherein the provisions of the Election Symbols Order, 1968, were under consideration. In the first case, this Court held that the power of superintendence, direction and control vested in the Election Commission under Ar- ticle 324(1) of the Constitution, include all powers necessary for the smooth conduct of elections. Reliance was placed on the earlier decision of this Court in Shri Sadiq v. Election Commission of India, New Delhi and Ors. (1972) 4 SCC 664 in holding that recommendation of political parties by virtue of Election Symbols Order, 1968, was not unconstitutional and the powers under the said Order were derived not only from the Conduct of Election Rules, 1961, but also from Article 324 of the Consti- tution. In the latter case, this Court was considering the right to freedom of speech as guaranteed under Article 19(1) (g) of the Constitution and the question which fell for consideration was whether an order which violated Article 19(1)(a) included the freedom of the Press and for propagating his ideas a citizen has the right to publish them, to manage them and to circulate them, either by word of mouth or by writing. It was also held that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Mr. Goel urged that by denying to a political party a common symbol, the right to propagate its ideas would amount to interference with the fundamental right of freedom of speech as guaranteed under the aforesaid Article. Mr. Goel urged that since a large chunk of the eligible voters of the country were illiterate, they needed some form of communication which would help them to connect with the political party and the ideas which it propagated.
(24) Mr. Goel also referred to two judgments of the U.S. Courts, namely,
(a) James L. Buckley v. Francis R. Valeo 424 US 1 (1976); and
(b) Texas v. Gregory Lee Johnson 491 US 397 (1989);
190 “No voter to be left behind” which were decisions relating to the protection of a citizen under the First Amend- ment. Mr. Goel submitted that democracy is not just about political expression of the majority, but also the right of political minorities, however small, to express themselves. It was urged that the voices of the political minorities could not be stifled under the weight of hugely imbalanced provisions relating to freedom of speech and expression. Mr. Goel submitted that the quantity, width and spread, effective- ness and efficacy and mobilization of people and resources could not be made dependent on the percentage of votes polled and the number of seats won during an election, but the right to freedom of political speech and expression and its commu- nication and propagation must be held to be available to all, irrespective of whether they could get even a single vote or a single seat.
(25) Mr. Sanjay Hedge, appearing for the Writ Petitioner in Writ Petition No. 125 of 2011, India Jana Nayaka Katchi, formed in April, 2010, urged that the criterion sought to be introduced by the amendment of paragraphs 6 (A) and 6 (B) of the Election Symbols Order, 1968, was wholly arbitrary, as it sought to discrimi- nate between parties which had a long existence as against those which have been formed only in recent times. Mr. Hegde submitted that it was highly arbitrary and un- reasonable to pit candidates from a newly formed party without a common symbol against parties which were recognized by their Symbols by the common electorate. Mr. Hegde submitted that the rationale behind the decision not to allot any common symbol to the candidates of the parties which had recently come into existence gave an unfair advantage to parties which were already established and would prevent a newly-formed party from making any impact on the voters. Mr. Hegde submitted that the Writ Petitioner Party had been formed by an educationist and had in its very first election, secured 1% of the valid votes polled, which only went to show that given the proper opportunities, parties, such as the Writ Petitioner party, would be able to make a larger impact on the electorate if it could set up candidates who could be identified with the party by means of a common symbol. Mr. Hegde submitted that the symbol in the context of an illiterate electorate is absolutely necessary for a free and fair election and equating established parties with newly-formed parties is a disadvantage to the newly formed party, was contrary to Article 14 and was, therefore, liable to be struck down.
191 “No voter to be left behind”
(26) Col. Edwin Jesudass, appearing for the Writ Petitioner, All India NR Con- gress in Writ Petition No. 124 of 2011, urged that having fulfilled the criteria, the party has been duly recognized and was, therefore, entitled to the allotment of a permanent election symbol. Echoing the submissions made by Mr. Venugopal, Mr. Goel and Mr. Hegde, Col. Jesudass, who appeared in person, urged that the condi- tions under the notification issued by the Election Commission on 16.9.2011 were unreasonable and there was no justification for increasing the percentage of votes for qualifying as a State Party from 4% to 6%.
(27) In reply to the submissions made on behalf of the Writ Petitioners, Ms. Meenakshi Arora, learned Advocate, appearing for the Election Commission of India, submitted that Section 29A contained in Part 4A of the Representation of the People Act, 1951, provided a complete procedure as to the manner in which polit- ical parties were to be registered. Part V. of the Act deals with conduct of elections, which includes nomination of candidates, their Election Agents and the general pro- cedure to be followed during the elections. The remaining Chapters of Part V. deal with the conduct of elections while Part VA deals with free supply of certain material to candidates of recognized political parties. Ms. Arora urged that similar provisions regarding recognized political parties and registered political parties are also to be found under the Conduct of Election Rules framed Under Section 169 of the 1951 Act. Referring to the Conduct of Election Rules, 1961, Ms. Arora referred to Rule 5 which makes provision for allotment of symbols for elections in Parliamentary and Assembly Constituencies. Learned Counsel urged that the said Rules empowered the Election Commission to specify the symbols that may be chosen by candidates at elections in Parliamentary or Assembly Constituencies. Learned Counsel referred to Rule 10 which relates to the preparation of list of contesting candidates. It was sub- mitted that under the aforesaid Rules, the Election Commission was fully competent in law not only to allot symbols, but also to determine the right of a recognized political party to an election symbol, as was initially held in Sadiq Ali’s case (supra) and also in the case of Kanhiya (supra). Ms. Arora submitted that, in fact, in the case of Kan- hiya Lal Omar (supra), this Court observed that the Commission has been clothed with plenary powers by the Conduct of Election Rules and the Commission could not be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith. It was also
192 “No voter to be left behind” held that it was plainly essential that the Commission should have the power to settle a dispute, in case claim for the allotment of the symbol of a political party was made by two rival claimants. In such a case, the machinery for resolving such disputes was contained in paragraphs 13 and 15 of the Elections Symbols Order, 1968. It was re-emphasised that the Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President was vested in the Commission. Ms. Arora submitted that it was no longer available to the Petitioners to contend that the Election Commission was not competent to decide questions relating to the allotment of symbols to political parties and candidates at the time of elections, since its powers had been vested in it under Article 324 of the Constitution itself.
(28) In this regard, Ms. Arora also referred to the recent decision of this Court in Subramanian Swamy v. Election Commission of India (2008) 14 SCC 318, in which the validity of the Election Symbols Order, 1968, was upheld and it was also held that though the matter of symbol is extremely sensitive for a political party, it should be or remain to be firstly a political party since Section 29A of the Representation of People Act, 1951, clearly shows that a political party must have a certain amount of following as one could not imagine a political party without substantial following.
(29) Ms. Arora urged that in Rama Kant Pandey v. Union of India (1993) 2 SCC 438, while holding that creation of distinction between candidates of recognized parties and other candidates, though alleged to be artificial, inconsistent with the spirit of election law, discriminatory, giving important and special treatment to party system in democracy, was quite proper and that political parties constitute a class from other candidates and hence Articles 14, 19 and 21 were not violated in the facts of the case. It was also observed that the right to vote or to stand as a candi- date and contest an election is not a fundamental right or even civil right, but a pure- ly statutory right, as is the right to be elected. It was also urged that even the right to dispute an application was a statutory right emerging from the Representation of the People Act, 1951. According to Ms. Arora, outside the Statute, there is no right to elect, no right to be elected and no right to dispute an election. It was submitted that
193 “No voter to be left behind” these rights were the creation of a Statute and were, therefore, subject to statutory limitations, as no fundamental right was involved.
(30) Ms. Arora submitted that the Election Symbols Order, 1968, concerns regis- tered parties, recognised and non-recognised parties and independent candidates. Learned Counsel urged that paragraph 2(h) of the Election Symbols Order, 1968, defines “political party” to be an association of a body of individual citizens of In- dia, registered with the Commission as a political party Under Section 29A of the Representation of the People Act, 1951, which as mentioned herein earlier, deals with registration of association of bodies as political parties with the Election Com- mission. Ms. Arora submitted that since the provisions of paragraph 6A, 6B and 6C of the Election Symbols Order, 1968, have been held to be valid, they could not be departed from and the political party would, therefore, be bound by whatever amendments that may have been brought to the Election Symbols Order, 1968. Ms. Arora urged that although freedom of expression was a fundamental right within the meaning of Article 19(1) (a) of the Constitution, the right to vote was a statutory right which could not be questioned by way of a Writ Petition so long as said right remained in the statute book.
(31) The submissions made on behalf of the writ Petitioners regarding the consti- tutional validity of the Election Symbols Order, 1968, and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about forty years ago in Sadiq Ali ‘s case, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the Sym- bols Order, 1968, was, accordingly, repelled.
(32) The view in Sadiq Ali ‘s case has since been followed in the All Party Hill Leaders ‘ Conference case (supra), Roop Lal Sathi ‘s case (supra), ‘s case (supra) and as recently as in Subramanian Swamy ‘s case (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the Constitution vesting the superintendence, direction and control of elections,
194 “No voter to be left behind” were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the powers vested in the Election Com- mission could be traced to Article 324 of the Constitution.
(33) The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicates that the Election Commission, in its wis- dom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. Nothing new has been brought out in the submissions made on behalf of the writ Petitioners which could make us take a different view from what has been decided earlier. Mr. Venugopal’s submissions regarding political parties winning a larger number of seats while poll- ing a lesser percentage of the votes, sounds attractive, but has to be discarded. Mr. Venugopal’s submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of 2 to 5 per cent could cause a huge dif- ference in the seats won by a political party. A three or four-cornered contest could lead to a splitting of the majority of the votes so that a candidate with a minority share of the votes polled could emerge victorious. The Election Commission has set down a bench-mark which is not unreasonable. In order to gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeds in doing so, it will be- come entitled to all the benefits of recognition, including the allotment of a common symbol.
(34) There cannot be any difference of opinion that, as was laid down in Union of India v. Association (supra), a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in (supra), but such right has to be balanced with the ground realities of conducting a State-wide poll. The Election Commission has kept the said balance in mind while setting the bench- marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. We do not see any variance between the views expressed by the Constitution Bench in the PUCL case and the amendments effected by the Election Commission to the Election Symbols Order, 1968, by its Notification dated 1st December, 2000.
195 “No voter to be left behind”
(35) The writ petitions and the Special Leave Petitions must, therefore, fail and are dismissed.
(36) There will be no order as to costs.
(37) I have had the advantage of the opinion of my learned brother Altamas Kabir, J. I regret my inability to agree with the same.
(38) All these petitions filed either under Article 32 or under Article 136 raise certain common and substantial questions of law as to the interpretation of the Constitution. The lis, essentially, is between the Election Commission of India, a creature of the Constitution under Article 324, on the one hand and various bodies claiming to be political parties and some of their functionaries, on the other hand. The essence of the dispute is whether a political party is entitled for the allotment of an election symbol on a permanent basis irrespective of its participation and performance judged by the vote share it commanded at any election. Some of the Petitioner parties had contested some election, either General or By-Election, by the time they filed these petitions and had been in existence for some time, while the others came into existence just before the commencement of this litigation. All of them are political parties registered Under Section 29A of the Representation of the People Act, 1951( for short ‘the R.P. Act’), but none of them is a “recognised politi- cal party”, under the provisions of the Election Symbols (Reservation and Allotment) Order, 1968, (henceforth referred to as ‘the Symbols Order’).
(39) To examine the issues arising out of this batch of petitions, the facts pertain- ing to W.P. No. 532 of 2008 and S.L.P. No. 7379 - 7380 of 2009 arising out of an interim order passed by the Andhra Pradesh High Court in W.P. No. 3212 of 2009, shall be taken as representative facts. The first of the abovementioned two cases represents the case of a political party, which was registered with the Election Com- mission on 24-01-2006 and contested 232 assembly constituencies out of a total of 234 in the general elections to the Legislative Assembly of Tamil Nadu held in the year 2006. It secured 8.337 total number of valid votes and returned one Member to the Legislative Assembly, whereas the political party in the second of the above- mentioned cases, was registered with the Election Commission on 22-12- 2006 and
196 “No voter to be left behind” contested a couple of by-elections to the Legislative Assembly of Andhra Pradesh. Both the abovementioned political parties restricted, for the time being, their political activity to one State each, i.e., Tamil Nadu and Andhra Pradesh, respectively.
(40) Section 29A of the R.P. Act, 1951, provides for the registration of the politi- cal parties with the Election Commission. It was inserted in the R.P. Act, 1951 in the year 1989. From the language of Section 29A it appears that registration with the Election Commission is not mandatory for a political party, but optional for those political parties, which intend to avail the benefits of Part IV of the said Act of which Section 29A is also a part. The expression “political party” is defined Under Section 2(f) of the R.P. Act, to mean “an association or a body of individual citizens of India registered Under Section 29A “. The definition, was inserted by an amendment to the R.P. Act, in the year 1989.
(41) Until 1985, the Constitution of India made no reference to political parties. It was by the Fifty Second Amendment to the Constitution, Tenth Schedule was added to the Constitution, where the expression “political party” occurs. Judicial note can be taken of the fact that as a matter of practice, most of the political parties are registered under some law dealing with the registration of Societies. They are not bodies corporate, they are only associations consisting of shifting masses of people.
(42) Even as on the date of the coming into force of the Constitution, there were numerous political parties claiming to be either National Parties or State Parties. Neither the Constitution nor the R.P. Act, or any other Statute obligates a political party to seek recognition either by the Election Commission or any other body. How- ever, the Election Commission, from its very inception, duly took note of the existence of the political parties in this country for the purpose of discharging its constitutional obligation of the conduct of elections to Parliament and the Legislatures of various States apart from the elections to the Office of the President and the Vice President.
(43) On 30-07-1957, the Election Commission held a Conference, where 7 well established political parties, then organised on All India basis, participated. Wheth- er a system of pictorial symbols is to be adopted to make the task of the voters easy for identifying the party / candidate they choose to vote and a distinctive symbol
197 “No voter to be left behind” should be allotted to each of the political parties, was one of the items discussed in the said Conference, having regard to the large scale illiteracy of the voters. A consensus was arrived at in the abovementioned Conference to adopt such a sys- tem.”Symbolism is a primitive but effective way of communicating ideas. The use of emblem or flag to symbolise some system, idea, institution or personalisation is a short cut from mind to mind”.
(44) The first general elections ever held in the Republic of India were in the year 1952. It may not be out of place to mention that in the said election the symbol allotted to a contesting political party’s candidate was marked on a separate box in each of the polling station. Goes without saying that there were as many ballot boxes in each of the polling stations as there were contesting candidates with refer- ence to each of the constituencies. The system of maintaining separate ballot boxes for each of the names of contesting candidates disappeared in due course of time. A system of a ‘ballot paper’ with multiple names of the contesting candidates with the candidate’s election symbol indicated against each of the contesting candidates came to be adopted. With the advancement of technology, even the abovemen- tioned system was discarded in favour of Electronic Voting Machine (EVM), but the practice of using the pictorial symbol still continues.
(45) The purpose behind the adoption of the system of pictorial symbol was con- sidered by this Court in Shri Sadiq Ali and Anr. v. The Election Commission of India, New Delhi and Ors. (1972) 4 SCC 664, as under:
...It may be pertinent to find out the reasons which led to the introduction of symbols. It is well known that overwhelming majority of the electorate are illiterate. It was real- ised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is a genuine and fair as possible
198 “No voter to be left behind” and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice.
And also, at para 9 in Kanhiya Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628, it is held as under:
...India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a larger percentage of them are still illiterate. Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the ballot paper against his name.
(46) In the Conference dated 30-07-1957, referred to earlier, there was a gener- al agreement among all the participants on various items; relevant in the context is that; “the same symbol would be used throughout India for all candidates of a party, both for parliamentary and assembly elections”2. As a consequence of the consen- sus arrived at the said Conference, the Election Commission gave “recognition” to fourteen political parties as National / Multi State parties and allotted to each of them a specific symbol. Such a recognition was accorded in exercise of the general power of superintendence conferred on the Election Commission under Article 3243 r/w 5(1)4 of the Conduct of Election Rules, 1961.
(47) After the first General Elections, the Election Commission decided to withdraw recognition of those political parties whose poll performance was poor. Parties, which polled a minimum of 3 per cent of the votes at the first General Elections, were allowed to retain their recognition and the recognition accorded earlier to the other parties was withdrawn. The said percentage was raised to 4 after the third General Elections in 1962. The situation continued the same till 1967. What happened thereafter can be conveniently explained by extracting a passage from the ‘How India Votes Election Laws, Practice and Procedure’, by V.S. Ramadevi and S.K. Mendiratta:
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After the fourth general elections in 1967, the Election Commission considered it more desirable to codify the provisions relating to recognition of political parties and all matters connected therewith at one place, so that all concerned and interested may be fully aware of the prescribed requirements and may regulate their function- ing accordingly. Further, the Commission considered it appropriate and desirable that there should also be provision for registration of political parties and that such registration should be made a condition precedent for recognition of any party for the purposes of the election law.
Accordingly, the Commission promulgated on 31 August 1968, an Order called the Election Symbols (Reservation and Allotment) Order 1968, which is still in force. The Order made detailed provisions for registration of parties, their recognition and all matters connected therewith, together with the provisions for specification, reserva- tion, choice and allotment of symbols at elections. Paragraph 18 of that Order vests in the Election Commission all residuary powers to remove any difficulty arising in the implementation of that Order or to deal with a situation for which no provision or insufficient provision is made in that Order.
(48) The Symbols Order, 1968, was made by the Election Commission, purport- edly, in exercise of the power conferred on it by Article 324 of the Constitution r/w Rules 5 and 10 of the Conduct of Elections Rules, 1961, initially. Pursuant to the introduction of Section 29A in the R.P. Act, 1951, the Election Commission purports to draw authority from the said Section also. Para 4 of the said Order postulates the allotment of a symbol to each contesting candidate at every contested election of a given constituency. Under para 5, symbols are classified into two groups; reserved and free.
Para 5 reads as follows:
5. Classification of symbols - (1) For the purpose of this Order symbols are either reserved or free.
(2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party. (3) A free symbol is a symbol other than a reserved symbol.
200 “No voter to be left behind”
It can be seen from the above that certain symbols are reserved exclusively for the al- lotment to the candidates set up by a recognised political party. Para 65 of the said Order empowers the Election Commission to classify the political parties as either recognised political parties or unrecognised political parties. It further stipulates that a recognised political party can either be a National Party or a State Party.
(49) Paras 6A and 6B of the said Order stipulate the conditions, which are re- quired to be fulfilled by any political party, if it is to be classified as a recognised political party. In the case of a State Party, para 6A stipulates the conditions, which are required to be fulfilled / satisfied, while para 6B stipulates the conditions for a National Party. Broadly speaking, in either case (National Party and State Party), the requirement is, participation in one general election either to the Parliament or to the corresponding State Legislature, before seeking recognition, and procuring there at a certain minimum percentage of validly polled votes and also securing a minimum number of seats, specified therein. Such conditions stipulated under paras 6A and 6B varied from time to time.
(50) All the Petitioners are aggrieved by the Symbols Order, 1968 as it stood amended up to May 2005. Since, these parties are, admittedly, unrecognised polit- ical parties, they did not have a reserved symbol for exclusive allotment to the can- didates setup by those parties at elections. It is also not out of place to mention that during the pendency of these petitions, the said Order came to be amended again by Notification date 16-09-2011.
(51) The conditions, which are required to be satisfied for a political party to be classified as a recognised political party (State), thereby entitling it for the exclusive allotment of a common symbol to all its candidates at any election (under the Symbol Order, 1968, as it stood amended up to 2005), are contained in para 6A of the said Order, which came to be substituted for the original para6A by a Notification dated 14-05-2005.
6A. Conditions for recognition as a State Party - A political party shall be eligible for recognition as a State party in a State, if and only if any of the following conditions is fulfilled:
201 “No voter to be left behind”
(i) At the last general election to the Legislative Assembly of the State, the candidates set up by the party have secured not less than six percent of the total valid votes polled in the State; and, in addition, the party has returned at least two members to the Leg- islative Assembly of that State at such general election; or
(ii) At the last general election to the House of the People from that State, the candidates set up by the party have secured not less than six percent of the total valid votes polled in the State; and, in addition, the party has returned at least one member to the House of the People from that State at such general election; or
(iii) At the last general election to the Legislative Assembly of the State, the party has won at least three percent of the total number of seats in the Legislative Assembly, (any fraction exceeding half being counted as one), or at least three seats in the Assembly, whichever is more; or
(iv) At the last general election to the House of the People from the State, the party has returned at least one member to the House of the People for every 25 members or any fraction thereof allotted to that State.
From the above it can be seen that to secure recognition, a political party must satisfy the following conditions:
1. that it must have contested one general election to the Legislative Assembly of the concerned State and the candidates setup by the party must have secured cu- mulatively not less than 6 % of the total valid votes polled in the State and also must have returned, at least, two Members to the Legislative Assembly at such an election;
2. in the alternative, the party must have contested the election to the Lok Sabha from that State and the candidates setup by the party must have cumulatively secured not less than 6% of the total valid votes polled in the State, apart from returning, at least, one Member to the Lok Sabha;
202 “No voter to be left behind”
3. a third alternative condition, which if fulfilled would entitle the party for rec- ognition, is that the party must have contested the general election to the Legislative Assembly and won, at least, 3% of the total number of seats or 3 seats, whichever is higher;
4. in the alternative, the party must have contested the election to the Lok Sabha and returned, at least, one Member to the House of the People for every 25 Mem- bers allotted to that State.
(52) Since, none of the political parties before us satisfied any one of the abovemen- tioned conditions, they were not classified as recognised political parties, thereby, they were unable to secure a common symbol for all their candidates at any elec- tion. Hence, the present batch of petitions.
(53) The advantages that accrue to any political party by virtue of it being classified as a recognised political party are:
1. reservation of a symbol for the exclusive allotment to all the candidates setup by such party at any election;
2. the candidates set up by such party are entitled to the supply of such number of copies of the “electoral roll” and “such other material” as may be prescribed, free of cost (see Sections 78A and 78B of the R.P. Act); and
3. allocation of equitable sharing of time on the cable television network and other electronic media, by the Election Commission (Section 39A of the R.P. Act.)
(54) Para 6C of the Symbols Order, stipulates that a recognised political party shall continue to enjoy that status for every succeeding general election and in the interregnum between two general elections only if it fulfils the conditions specified under para 6A or 6B, (depending upon whether it is a National party or a State Party) in every successive general election. After each succeeding general election, obviously, an assessment is made by the Election Commission whether such status of each of the political parties should continue or not. On such assessment, if it is
203 “No voter to be left behind” found that a recognised political party failed to satisfy the conditions requisite for the continued recognition, such party would be derecognised. Though by virtue of para 10A, the effect of de-recognition, insofar it pertains to the exclusive use and allotment of the election symbol, which had been originally allotted to such party, stands postponed by certain period, but the other advantages, which are incidental to the status of a recognised political party, would be denied immediately on de-rec- ognition.
(55) The substance of the abovementioned provisions of the allotment of Symbols Order is that, no political party is entitled for allotment or use of an election symbol permanently. The allotment of an exclusive election symbol is available to a political party only so long as it is recognised by the Election Commission. Securing the rec- ognition and its continuance depends upon the performance of the political party at every succeeding general election. Therefore, newly formed political parties are not entitled, as a matter of right, for the exclusive allotment of a common election symbol for the benefit of all the candidates set up by them at any election. Such candidates are required to choose one of the free symbols notified by the Election Commission. Allotment of a free symbol to the candidate depends upon the various factors, such as, the existence of a prior claim, etc., the details of which are not necessary for the purpose of this case. Therefore, all the candidates set up by a political party need not get the same symbol at a general election.
(56) Even in the case of an existing political party, which was recognised at some anterior point of time, but lost the recognition in view of its inadequate performance at any general election or in the case of a political party, which contested a general election, but failed to satisfy the requisite standards of performance stipulated in the Symbols Order, a common symbol would not be available for the exclusive use of such party’s candidates at any subsequent election beyond a period specified in para 10A.
(57) It is the abovementioned non-availability of a common symbol for the exclu- sive use of the candidates of political parties, which have not gained or continue to enjoy the status of a recognised political party, is the bone of contention in these petitions.
204 “No voter to be left behind”
(58) It is submitted that the Symbols Order, insofar as it provides for the recogni- tion and de-recognition of a registered political party, is; (i) arbitrary and violative of the Article 14 of the Constitution of India; it creates an artificial classification between recognised and unrecognised political parties without any rational nexus to the object sought to be achieved; and (ii) violative of the fundamental rights guar- anteed under Article 19(1)(a) & (c); to the members of the political party; and (iii) violative of the constitutional right of the members of the political party to participate in the electoral process by virtue of their being voters.
(59) Elaborating the abovementioned grounds of attack, various submissions are made by the learned Counsel appearing for the Petitioners and the same are ex- tensively incorporated in the Judgment of my learned brother Altamas Kabir, J. I, therefore, see no reason to repeat the same except to briefly note the submissions made by the Learned Counsel for the Election Commission.
(60) It is the stand of the Election Commission that the rules of de-recognition or non-recognition of the political parties by the Election Commission are designed to prevent “insignificant political parties from gaining recognition”. A political party, which failed to secure a minimum stipulated percentage of validly polled votes at a general election and return a minimum stipulated number of members to the Leg- islature, has no right to claim either recognition or a permanent symbol. It is also submitted by Ms. Meenakshi Arora, that recognition of a political party by the Election Commission under the provisions of the Symbols Order not only enables the political party for the reservation and exclusive use of an electoral symbol in favour of its candidates at any election, but also confers certain other advantages con- templated Under Section 78A and 78B of the R.P. Act (which has been taken note of, earlier). Therefore, unrestricted and unregulated recognition of political parties would be an additional burden on the exchequer. The Learned Counsel, relying on N.P. Ponnuswamy v. Returning Officer, Namakkal Constituency 1952 SCR 218 and Jyothi Basu v. Debi Gosal (1982) 1 SCC 691, argued that all the electoral rights are creation of statutes and there is no common law right or a fundamental right vested in a political party or a candidate set up by a political party to contest an election. Equally, there is no fundamental right either in favour of the political party or its members to seek the allotment of a permanent electoral symbol in favour of a
205 “No voter to be left behind” political party irrespective of its following, which is to be judged, according to the learned Counsel, solely based on its performance in a general election. The Election Commission being charged with the responsibility, by the Constitution, of conducting the elections in this country, is constitutionally authorised7 to take all measures for appropriately regulating each step of the electoral process in ensuring a free and fair electoral process, which is essential for preserving the democratic structure es- tablished under the Constitution of the Republic of India.
(61) The learned Counsel for the Election Commission further submitted that the question whether a political party once recognised should retain its reserved symbol permanently fell for the consideration of this Court earlier in Subramanian Swamy v. Election Commission of India (2008) 14 SCC 318, and the submission was re- futed by this Court and, therefore, the same is no more res integra and cannot be reopened again.
(62) I am of the opinion that this batch of petitions raise basic issues of far-reach- ing consequences in the functioning of the democracy - which we the people of India have “solemnly resolved to constitute”:
No right is more precious in a free country than that of having a voice in the elec- tion of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. - 376 US 1 Wesberry v. Sandors.
‘Electoral rights’ subsume such distinct concerns as the citizen’s right, the territorial constituencies’ ability to choose a representative in the legislature - a political party’s opportunity to gain access to power and a candidate’s chance of securing a place in the legislature to voice the desires and aspirations of the community. They spring from a common root - the electoral process, which is source and product of the con- stitutional scheme of establishing a democratic republic.
(63) Before I examine the various submissions and the larger question involved in the petitions, one preliminary issue is required to be settled, i.e., in view of the earlier decision of this Court in Subramanian Swamy (supra), whether is it permissible for
206 “No voter to be left behind” the Petitioners to raise these various questions, which they are seeking to raise in this batch of petitions and right for this Court to examine the same ?
(64) It is held by this Court in Golaknath v. State of Punjab (1967) 2 SCR 762, relying upon Superintendent & Legal Remembrancer State of West Bengal v. Corpo- ration of Calcutta (1967) 2 SCR 170 and Bengal Immunity Company Limited v. State of Bihar (1955) 2 SCR 603, that there is “nothing in the constitution that prevented the Supreme Court from departing from the previous decisions of its own if it was satisfied of its error and of its harmful effect on the general interest of the public”. If a principle laid down by this Court is demonstrably inconsistent with the scheme of the Constitution, it becomes the duty of this Court to correct the wrong principle laid down. It is also the duty of this Court to correct itself as early as possible in the matters of the interpretation of the Constitution, “as perpetuation of a mistake will be harmful to public interest”. Therefore, in my opinion, the various legal issues raised by the Petitioners are required to be examined.
(65) In Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405, speaking for the Court, Justice Iyer opined:
23. Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. “The right of election is the very essence of the constitution” (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.
(66) Though this Court held that adult franchise and general elections are constitu- tional compulsions, it did not elaborate and explain the basis of such statement. The statement is less rhetoric and more legal than what it might sound for the following
207 “No voter to be left behind” reasons. Article 326, declares that the elections to the House of the People and the Legislative Assembly of every State shall be on the basis of adult suffrage. Articles 81(1) (a) and 83, cumulatively command that, 530 members of the House of the People (Lok Sabha) are required to be “chosen by direct election from the territorial constituencies in the State”. Article 81(2) (b) mandates that each State shall be di- vided into territorial constituencies in the manner specified therein, whereas Article 83(2) mandates that the duration of the House of the People shall be no longer than 5 years. The expiry of the period of 5 years reckoned from the date of the first meeting shall operate for dissolution of the House. These provisions cumulatively command a periodical election to the House of the People based on adult suffrage. Similarly, Articles 168, 170 and 172 cumulatively command a periodical election based on adult suffrage to the Legislative Assembly of a State.
(67) To ensure the conduct of periodic elections to these various legislative bod- ies, the Election Commission is established by the Constitution. It is endowed with such powers necessary to enable the same to function as an independent constitu- tional entity to discharge the constitutional obligations entrusted to it untrammelled by the authority of the Executive12. This entire scheme of a representative democ- racy enshrined in the Constitution is for the purpose of achieving the constitutional goal of establishing a “Democratic Republic” adumbrated in the preamble to the Constitution. It is in this background, this Court held in Mohinder Singh Gill and anr. (supra), “that the heart of the Parliamentary system is free and fair elections period- ically held based on adult franchise”.
(68) It was held in Mohinder Singh Gill and Anr. (supra):
The most valuable right in a democratic polity is the ‘little man’s’ little pencil-marking, accenting and dissenting, called his vote.... Likewise, the little man’s right, in a representative system of Government to rise to Prime Ministership or Presidentship by use of the right to be candidate cannot be wished away by calling it of no civil moment. If civics mean anything to self-governing citizenry, if participatory democracy is not to be scuttled by law.... The straightaway conclusion is that every Indian has a right to elect and be elected and this is constitutional as distinguished from a common law right and is entitled to cognizance by Courts, subject to statutory Regulations.
208 “No voter to be left behind”
The little man’s right in this country to become a member of any one of the Houses created by the Constitution metaphorically described by Justice Iyer as a right to ‘rise to Prime Ministership or Presidentship’, emanates out of a necessary implica- tion from the express language and scheme of the Constitution. It is already noticed that predominant majority of the seats in the House of the People and in Legislative Assembly of a State are required to be filled up by ‘direct election’ from the ‘territo- rial constituencies’. Such members are required to be “chosen” in such manner as Parliament may by law provide13. Such Process of choosing, by direct election - the members of the House of the People or the Legislative Assembly - is described by this Court in Mohinder Singh Gill and Anr. (supra), as the citizens right to elect or get elected.
(69) The right to elect flows from the language of Articles 81 and 170 r/w Ar- ticles 325 and 326. Article 326 mandates that the election to the Lok Sabha and legislative Assemblies shall be on the basis of Adult Suffrage, i.e., every citizen, who is of 18 years of age and is not otherwise disqualified either under the Constitution or Law on the ground specified in the Article Shall Be entitled to be registered as a voter. Article 32514 mandates that there shall be one general electoral roll for every territorial constituency. It further declares that no person shall be ineligible for inclusion in such electoral roll on the grounds only of religion, race, caste, sex, etc. Articles 8115 and 17016 mandate that the members of the Lok Sabha and Legislative Assembly are required to be Chosen By Direct Election from the territorial constituencies in the States. The Sates are mandated to be divided into territorial constituencies under Articles 81(2) (b) and 170(2)17. The cumulative effect of all the abovementioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members, who are to be elected by all the citizens, who are of 18 years of age and are not otherwise disqualified, by a valid law, to be voters. Thus, a Constitutional right is created in all citizens, who are 18 years of age to choose (participate in the electoral process) the members of the Lok Sabha or the Legislative Assemblies. Such a right can be restricted by the appropriate Legislature only on four grounds specified under Article 326.
(70) Coming to the question of the right to get elected / being CHOSEN either to the Lok Sabha or to the Legislative Assembly of a State, Articles 8418 and 17319
209 “No voter to be left behind” stipulate the requisite qualifications for a person to be either a member of the Lok Sabha or the Legislature of a State. These two Articles are couched in negative language stipulating, essentially, that, to be chosen as a member of any of the Legislative Bodies envisaged under the Constitution, a person must be a citizen of India and must be of the qualifying age i.e., 25 years in the case of Lok Sabha or the Legislative Assembly and 30 years in the case of Rajya Sabha or the Legislative Council, as the case may be. Apart from that, these Articles also prescribe that any person aspiring to be a member of any one of the Legislative Bodies, created by the Constitution, is required to make and subscribe an Oath set out in the Third Schedule in the Constitution. Articles 10220 and 19121 prescribe the various contingencies in which a person would become disqualified to be a member of any one of the Leg- islative Bodies, such as, holding of a public office or owing allegiance or adherence to a foreign State, etc.
(71) It may be noted that the Constitution confers a right on every citizen, who is of the age of 18 years, to be a voter. But, every voter is not entitled to be a member of the Legislature. A higher age requirement is prescribed to be a member of the Legislature, as explained above.
(72) In my opinion, therefore, subject to the fulfilment of the various conditions stipulated in the Constitution or by an appropriate law made in that behalf, every cit- izen of this country has a Constitutional right both to elect and also be elected to any one of the Legislative Bodies created by the Constitution - the “straight conclusion” of the Mohinder Singh Gill’s case (supra), “that every Indian has a right to elect and be elected - subject to statutory Regulations”, which rights can be curtailed only by a law made by the appropriate legislation that too on grounds specified under Article 326 only.
(73) At this stage, it is necessary to deal with the submission made by Ms. Meenakshi Arora, that in view of the decisions of this Court in N.P. Ponnuswamy and Jyothi Basu (supra), both the right to vote and the right to contest an election for the Constitutionally crated Legislative Bodies, is purely statutory. Relevant paras of the said two Judgments, insofar as they are relied upon by the Learned Counsel, read as follows:
210 “No voter to be left behind”
N.P. Ponnuswamy (supra)
28. The points which emerge from this decision may be stated as follows:-
(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it....
Jyothi Basu (supra)
The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the Constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (1) and Jagan Nath v. Jaswant Singh. (2) We proceed to state what we have gleaned from what has been said, so much as necessary for this case.
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.
The limited question before this Court in those two cases revolved around the nature of the legal right to raise an election dispute. In the first of the above mentioned cases, the question was whether a challenge, under Article 226 of the Constitution, to the rejection of the nomination of Ponnuswami at an election to the Legislative Assembly is permissible in view of the specific prohibition contained under Article 329(b)22 of the Constitution. In the second of the abovementioned cases, the question was, who are the persons, who could be arrayed as parties to an election petition. In both the cases, this Court was dealing with the nature of the election disputes, the forum before which such dispute could be raised and the procedure that is required to be followed
211 “No voter to be left behind”
in such disputes. The question whether the right to vote or contest at any election to the Legislative Bodies created by the Constitution did not arise in these cases. With due respect to their Lordships, I am of the opinion that both the statements (extracted above) are overbroad statements made without a complete analysis of the scheme of the Constitution regarding the process of election to the Legislative Bodies adopted in subsequent decisions as a complete statement of law. A classical example of the half truth of one generation becoming the whole truth of the next generation. My conclusion is fully supported by People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399:
However, case after case starting from Ponnuswami case characterized it as a statutory.... With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.
(Para 96 of P.V. Reddi, J)
(74) The next question is regarding the role of a political party in the electoral process of a representative democracy. Whether the formation, existence and con- tinuance of a political party are - activities, which are not prohibited by law and per- mitted as a matter of legislative grace or is there any constitutional or fundamental right in these activities.
(75) “Political parties are indispensable to any democratic system and play the most crucial role in the electoral process in setting up candidates and conducting election campaigns”23. The legal and constitutional position of political parties var- ies from country to country. In most countries, the political parties do not have any express constitutional or statutory recognition, except Germany, whose Constitution
212 “No voter to be left behind” guarantees the legitimacy of the political parties and their right to exist, subject to the condition that they accept the principles of the democratic governance. Coming to the United Kingdom, the existence of political parties is a long established consti- tutional fact and their contribution to the growth of a healthy parliamentary democ- racy is a matter of the British constitutional history though political parties are not part of the Constitution of England24. In the United States, the “right of individuals to associate for the advancement of political beliefs and the right of the qualified vot- ers.... to cast their votes effectively”25 are considered as the most precious freedoms and protected by the First and the Fourteenth Amendments. The Indian Constitution made no reference to political parties prior to the 52nd Amendment made in 1985 by which the Tenth Schedule was inserted in the Constitution. The Tenth Schedule recognises the existence of political parties in this country and the practice of politi- cal parties setting up candidates for election to either of the Houses of Parliament or State Legislature. However, the Election Commission recognised, from the inception, the existence of political parties and the practice of political parties setting up can- didates at elections to any one of the Houses created by the Constitution.
(76) A political party is nothing but an association of individuals pursuing certain shared beliefs. Article 19(1) (c) confers a fundamental right on all citizens to form as- sociations or associate with organisations of their choice. Article 19(1)(a) confers a fundamental right on the citizens of the freedom of speech and expression. The am- plitude of the right takes within its sweep, the right to believe and propagate ideas whether they are cultural, political or personal. Discussion and debate of ideas is a part of free speech. This Court in Romesh Thapper v. State of Madras AIR 1950 SC 124 as under:
...without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.
Therefore, all the citizens have a fundamental right to associate for the advancement of political beliefs and opinions held by them and can either form or join a political party of their choice. Political parties are, no doubt, not citizens, but their members are generally citizens. Therefore, any restriction imposed on political parties would directly affect the fundamental rights of its members.
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(77) It is argued that political parties, which do not qualify for recognition by the Election Commission by virtue of the stipulations in the Symbols Order suffer a disadvantage in the electoral process. The Symbols order cripples the ability of the unrecognised political parties and the candidates set up by such parties from effec- tively communicating with the electorate in order to garner their votes. Therefore, the Symbols Order imposes restriction on the citizens fundamental rights under Article 19 (1) (c) and (a) to associate with a political party and propagate the political ideas subscribed to by the party on par with the recognised political parties, which are able to secure the allotment of a reserved symbol. The disadvantage imposed by the Symbols Order on political parties with limited following, at a given point of time, certainly is a law falling within the description of ‘class legislation’ and viola- tive of Article 14 of the Constitution of India.
(78) If the purpose of adopting the system of pictorial symbols is to enable the voter to identify “the candidate of his choice”26, and “the symbol of each political party, with passage of time, acquired a great value because of the bulk of the elec- torate associated the political party at the time of elections with its symbols”27. It does not require any further logic or authority to say that denying the reservation of a common symbol for the use of a political party on the ground that the Election Commission is not willing to ‘recognise’ such a political party, for whatever reasons, certainly renders the party disadvantaged. The Symbols Order, insofar as it provides for the allotment of a symbol for the exclusive use only of a recognised political party’s candidates, in my opinion, certainly creates a disadvantage to the political parties, which have not been able to secure recognition from the Election Commis- sion apart from creating two classes of political parties. The citizens right to form or join a political party for the advancement of political goals mean little if such a party is subjected to a disadvantage, in the matter of contesting elections. Therefore, the two questions raised;
(i) whether the Symbols Order satisfies the test of being a reasonable restriction designed to achieve any of the purposes specified under Article 19(2) and (4); and
(ii) the question whether such a classification satisfies the twin tests of being a rea- sonable classification, which has a nexus to the object sought to be achieved by
214 “No voter to be left behind” such classification, are required to be examined to decide the constitutionality of the Symbols Order.
(79) I do not propose to examine the 1st question though I am of the opinion that the said question requires an exhaustive examination in an appropriate case, as, in my opinion, the Symbols Order certainly violates the prohibition contained under Article 14, in view of the settled principle of law that this Court would not normally embark upon the examination of issues in the field of Constitutional Law unless it is absolutely necessary.
(80) To establish the disadvantages imposed by the Symbols Order on the un- recognised political parties, it is necessary to analyse the nature of authority of the Election Commission either to recognise or not to recognise a political party. It is also necessary to examine whether, either the Constitution or any Law compels the Elec- tion Commission to recognise or not to recognise or derecognise a political party and what are the benefits or burdens, which flow from the recognition or non-recog- nition of a political party.
(81) As already noticed, except for the Tenth Schedule, which is a relatively re- cent addition to the Constitution, no other provision of the Constitution, expressly refers to the political parties either recognised or unrecognised. The R.P. Act, as it was originally enacted, also did not make any reference to a political party. The expression “political party” was first introduced in the R.P. Act in the year 1989 by the amending Act No. 1 of 1989. Section 2(f) was inserted, which provides for the definition of the expression “political party”. Simultaneously, by the same amend- ing Act, Part - IV A was introduced into the Act, which dealt with the registration of political parties with the Election Commission and the advantages flowing from such registration. The expression “recognised political party” was first introduced in the Act by Act No. 21 of 1996, in the proviso to Section 33 and Sub-Section (2) of Section 38. Later, such an expression was employed in Section 39A and in the second explanation to Sub-Section (1) of Section 77, Section 78A and Section 78B, which occur under Part-VA of the Act by the amending Act No. 46 of 2003. The explanation to Section 78B(2), defines the expression “unrecognised political party” for the limited purposes mentioned therein and it reads as follows:
215 “No voter to be left behind”
Explanation-For the purposes of Section 39A, this Chapter and clause (hh) of Sub-Sec- tion (2) of Section 169, the expression “recognised political party”, has the meaning assigned to it in the Election Symbols (Reservation and Allotment) Order, 1968].
None of the provisions referred to in the explanation deal with the allotment of a reserved symbol. Thus, there is a statutory compulsion (post 1996) on the part of the Election Commission to recognise or not to recognise a political party as it is only on the basis of the recognition by the Election Commission, the rights or obligations created under the abovementioned provisions come into play. There is still no consti- tutional compulsion in that regard.
(82) Though, post-1996, the R.P. Act, 1951, obligates the Election Commission to confer recognition on some political parties for certain purposes, the Act does not stipulate the criteria on the basis of which such recognition is to be accorded. It simply borrowed the definition of the expression ‘recognised political party’ from the Symbols Order, thereby leaving it to the discretion of the Election Commission to recognise or not to recognise a political party on such terms and conditions, which the Election Commission deems fit. But, there is nothing either in R.P. Act, or any oth- er law, which obligates the Election Commission to accord recognition to a political party on the basis of its performance at an election. In other words, it is not legally obligatory for the Election Commission to choose the criteria of performance at an election for the purpose of according or refusing to accord recognition to a political party. It so happened that such a criterion was chosen by the Election Commission well before the R.P. Act obliged the Election Commission to undertake the exercise and the Parliament while amending the R.P. Act simply took note of the existing practice of the Election Commission. Even today, there is nothing in the law, which prevents the Election Commission from changing the criteria for conferring recogni- tion on a political party.
(83) It would be profitable to understand the genesis and evolution of the criterion of - poll performance - for evaluating its constitutionality in the context of the allotment of symbols. Pursuant to the 30th July 1957 Conference (referred to earlier) held by the Election Commission, “the Election Commission gave adhoc recognition on var- ious dates between 2nd August 1951 to 7th September 1951”, to fourteen parties
216 “No voter to be left behind” as National or Multi-State parties and allotted symbols to them. “In addition to the above parties..., 59 other parties were recognised as State parties and allotted var- ious symbols, as far as possible, inconformity with their choice. The recognition of these State parties was left... to the Chief Electoral Officer of the States concerned”. In this context, it is stated in “How India Votes Election Laws, Practice and Procedure, by V.S. Ramadevi (supra), as follows:
It may be significant to note here that there was no provision either in any Act or the rules for the recognition of political parties. All the orders granting recognition to the aforementioned parties either as national or state parties were issued by the Election Commission in exercise of its powers under art 324 and r 5 of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951. The said r 5 merely provided that the Election Commission shall publish a list of symbols and may add to or vary that list as it may like, but there was no mention about the political parties in this rule.
(84) Essentially, the entire exercise was undertaken by the Election Commission to collect the data regarding the number of organisations claiming to be the political parties, who were likely to contest the elections either to the State Legislature or to the Parliament, in order to enable the Election Commission to discharge its constitutional obligations, under Article 324, of conducting elections to the various Legislative Bodies created under the Constitution. As it is recorded by the former Chief Election Commissioner in ‘How India Votes Election Laws, Practice and Procedure’ (supra); “all those parties were allotted various symbols as far as possible inconformity with their choice.” To start with, the exercise was never meant to regulate the right of var- ious political parties to set up candidates at elections or choose a common electoral symbol for the benefit of the candidates set up by such parties. The purpose was only to eliminate the possibility of more than one political party claiming or using the same symbol resulting in friction between the parties and confusion in the minds of the voters. Such an arrangement became necessary because of the consensus of the Conference to have pictorial symbols for the meaningful exercise of the voting rights of the electors.
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(85) It was in the year 1968, eventually, the Election Commission thought of formalising the existing practice by creating a formal legal instrument of the entire exercise of the recognition of a political party. It is at that juncture, the exercise, which initially commenced as a facilitator of the constitutional obligation of the Election Commission to conduct the election, metamorphosised into an authority / power of the Election Commission to accord recognition or to refuse recognition with the attendant consequence of allotment and reservation of symbols in favour of the political parties, which are electorally more fortunate and denial of the same to the less fortunate political parties at a given point of time.
(86) The result is the creation of the Symbols Order, 1968, where, for the first time, the Election Commission conferred on itself the authority to recognise or refuse to recognise or derecognise political parties, which did not demonstrate that they have some minimum political following and legislative presence.
(87) Till 1996, gaining recognition from the Election Commission did not confer any advantage on a political party other than securing the reservation of a symbol commonly for all the candidates set up by such a party at any election. Political parties could still set up, then and now also, candidates at any election irrespective of the fact whether they are recognised by the Election Commission or not. It is only much later (1996), certain legal rights and obligations came to emanate from the factum of recognition or lack of it, such as, the requirement of subscription of a larg- er number of proposers for a candidate set up by an unrecognised political party (See Section 33 of the R.P. Act.) and the requirement of postponing the poll only on the death of a candidate set up by a recognised political party (Section 52). It may be mentioned herein that Section 52, prior to its amendment in 1996, did not draw any distinction between a candidate set up by a recognised political party or other- wise. Death of a candidate, duly nominated at an election even as an independent, entailed countermanding of the poll.
(88) Notwithstanding all these changes, the constitutional right of a qualified citizen to contest an election to any one of the Legislative Bodies created by the Constitution, whether supported by a political party or not, be it a recognised or unrecognised political party, has never been curtailed by the Legislature so far. All
218 “No voter to be left behind” that a qualified voter requires to contest an election under the scheme of the R.P. Act, 1951, is to secure the support of, at least, one more elector to propose his name as a candidate if a recognised political party is willing to sponsor such a candidate, failing which, the requirement (post 1996 amendment) is, to secure the support of ten qualified voters to sign the nomination paper. The only other requirement is to make a deposit of certain amount specified Under Section 34 of the Act, which amount varies depending upon whether the candidate is contesting the election of Lok Sabha or the Legislative Assembly.
(89) Once a qualified voter decides to contest an election under the provisions of the R.P. Act, 1951, whether such a voter is sponsored by a political party or not, whether such a political party is recognised by the Election Commission or not, there is no way under the law, as it exists today, to prevent him from contesting. Also the Election Commission is bound to allot a pictorial symbols to each such candidate. It is admitted unanimously by the learned Counsel appearing that there have been elections, where hundreds of candidates contested an election from certain constit- uencies and the Election Commission did allot some symbol or the other to each of those candidates.
(90) All political parties form one class. All of them have the same goal of propa- gating their respective political ideas though the ideas themselves may defer. The en- deavour of all the political parties is to capture the State power in order to implement their respective policies, professedly, for the benefit of the society in general. In the process of such a political activity, some party, at a given point of time, successfully convinces a majority of the voters that the entrustment of the State power to that po- litical party would be more beneficial to the society at large. It becomes victorious, while the other parties, which fail to successfully convince the majority of the voters about the wholesomeness of their ideas, loose the elections, sometimes even misera- bly. But, that does not mean that such parties, which fail to convince the voters about the wholesomeness of their political ideology, would be condemned forever by the electorate. Examples in our country and elsewhere are not lacking that political parties, which failed miserably both in terms of percentage of the votes secured by them, as well as the number of seats secured in the Legislature, at a given election, dramatically improving their performance in some subsequent election and capture
219 “No voter to be left behind” power with thundering majority. It is said that “democracy envisages rule by succes- sive temporary majorities”. Such transient success or failure cannot be the basis to determine the constitutional rights of the candidates or members of such political par- ties. The enjoyment of the fundamental rights guaranteed by the Constitution cannot be made dependent upon the popularity of a person or an idea held by the person. If it were to be otherwise, it would be the very antithesis of liberty and freedom. The constitutional guarantees are meant to protect the unpopular, the minorities and their rights. Denying the benefit of a symbol to the candidates of a political party, whose performance does not meet the standards set up by the Election Commission, would disable such political party from effectively contesting the election, thereby, negating the right of an association to effectively pursue its political briefs.
(91) Coming to the question, whether the classification created in the Symbols Order can satisfy the requirements of the mandate of Article 14, the argument of the Learned Counsel for the Election Commission is that, political parties, which do not command even a minimum vote-share and fail to secure a minimum prescribed leg- islative presence prescribed by the Election Commission, at a given election, form a distinct class in contradistinction to political parties, which satisfy the prescriptions of the Election Commission, regarding the eligibility for being classified as recognised political parties. The learned Counsel further submitted that such classification is made for the purpose of avoiding insignificant political parties from permanently securing a symbol for the use of its candidates at elections. An interesting submission is made that a large number of political parties without the minimal voter support are in the electoral field and granting recognition to such parties and reserving a symbol in favour of such parties would create unnecessary confusion in the minds of the voters. Therefore, avoidance of such a confusion in the minds of the voters, is the purpose sought to be achieved by the classification in question.
(92) Before I examine the tenability of the submission made by the Election Com- mission, I think it necessary to recapitulate the foundation of the doctrine of reason- able classification. In Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045, a Constitution Bench of 7 Judges of this Court, after a thorough analysis of 7 earlier judgments of this Court, explained the doctrine of reasonable classification under Article 14 and held as under:
220 “No voter to be left behind”
...It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distin- guishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration....
Therefore, it can be seen from the above that it is not sufficient for a law to survive the challenge under Article 14 to demonstrate that the law makes a classification based on intelligible differentia between two groups of persons or things. It must also be established that such differentia have a rational relation to the object sought to be achieved by such classification.
(93) Examined in the light of the above test, the object sought to be achieved by the Election Commission by the Symbols Order is to avoid the confusion in the minds of the voters at the time of voting. Such a result is said to be achieved by the Election Commission by denying recognition to the political party with insignificant follow- ing, thereby, denying them the benefit of the reservation of an exclusive symbol to its candidates.
(94) I have no option, but to reject the submission made by the Election Commis- sion for the reason that by simply denying the recognition to a political party with insignificant voter-support, I do not understand, how the perceived voter confusion could be avoided. There is nothing either in the Constitution or in the R.P. Act, 1951 or any other law, which prohibits an unrecognised political party from setting up candidates at an election. The legal position is the same with regard to even inde- pendent candidates. Therefore, notwithstanding the refusal of recognition by the Election Commission, unrecognised or derecognised political parties or indepen- dent candidates without any party support can still contest the election. Candidates set up by an unregistered political party can also contest an election as registration
221 “No voter to be left behind” under Section 29A of the R.P. Act is not mandatory for a political party, except that registration begets certain advantages specified in the R.P. Act, 1951 to a political party. The Election Commission is bound to allot a symbol to any of the candidates belonging to any one of the abovementioned categories. I am, therefore, of the opinion that there is no rational nexus between the classification of recognised and unrecognised political parties and the professed purpose sought to be achieved by such classification. On the other hand, it is likely to preserve the political status quo.
(95) Coming to the decision of this Court in Subramanian Swamy (supra), the challenge in the case was only to para 10A of the Symbols Order, which was intro- duced by an amendment of 2000 in the Symbols Order on the ground that it was violative of Article 14 of the Constitution. It was argued on behalf of the Election Commission “that the symbol was integrally and inextricably connected with the concept of recognition of the party and since the Appellant had never challenged and indeed could not so challenge the derecognition of Janata Party, there was no question of it being allowed to insist on a reserved symbol which was the preroga- tive only of the recognised political party”. Though this Court took note of the fact that, “for good long 17 years there was no concept of recognised political party as till then there was no Symbols Order”, came to the conclusion that the submission of the Election Commission is acceptable. It was held at Para 15:
...the Respondent is undoubtedly correct in arguing that concept of recognition is inextricably connected with the concept of symbol of that party. It is but natural that a party must have a following and it is only a political party having substantial fol- lowing in terms of Clauses 6A, 6B and 6C would have a right for a reserved symbol. Thus, in our opinion, it is perfectly in consonance with the democratic principles. A party which remains only in the records can never be equated and given the status of a recognised political party in the democratic set up. We have, therefore, no hesitation in rejecting the argument of Dr. Swamy that in providing the symbols and reserving them for the recognised political parties alone amounted to an undemo- cratic act.
In my opinion, this Court, failed to appreciate that in a “democratic set up”, while the majorities rule, minorities are entitled to protection. Otherwise, the mandate of
222 “No voter to be left behind”
Article 14 would be meaningless. If democracies are all about only numbers, Hit- ler was a great democrat. The status of majority or minority, even an insignificant minority, could only be transient. Further, the question as to what is the legitimate purpose sought to be achieved by the classification under the Symbols Order, was not considered.
(96) For all the abovementioned reasons, I would hold that the Symbols Order, insofar as it denies the reservation of a symbol for the exclusive allotment of the can- didates set up by a political party with “insignificant poll performance”, is violative of Article 14 of the Constitution of India.
223 “No voter to be left behind”
JUDGMENT-12 HIGH COURT OF GUAHATI
PIL NO.52 OF 2010 (Decision dated 19/03/2013)
All Arunachal Pradesh Students Union (AAPSU) & 5 Ors.………………....Petitioner
Versus
The Election Commission of India & 4 Ors.………………………...... Respondents
The Constitution of India - Article 21- Protection of life and personal liberty – Held: Foreigners are entitled to the protection.
The Representation of the People Act, 1950 – S.21 (3) -Preparation and revision of electoral rolls – Held: special revision for any constituency or part of a constituency in manner prescribed by Election Commission.
Bengal Eastern Frontier Regulation, 1873 – Ss. 2 & 7 – Held: No person other than local natives shall pass through the tracts of the State of Arunachal Pradesh without “Inner Line Pass” – once the Chakmas have been permitted by the Govt. of India to settle in India including in Arunachal Pradesh, it would be deemed that “Inner Line Permit/Pass” had been granted to them.
Scheduled Districts Act, 1874 - Assam Frontier Tracts Regulation, 1880- Chin Hills Regulation, 1896 --- Held: special rights and privileges enjoyed by the tribal people of Arunachal Pradesh under these enactments do not have a direct bearing on the process of revision of electoral rolls.
Registration of Births and Deaths Act, 1969 – S.13 – prescribed procedure for issue of Birth Certificate issued by a Government Authority – HELD: official settlement of Chakmas cannot be interfered with merely on the technical ground that the provi- sions of this Section were not strictly complied with for registration of their birth. (Para 18)
224 “No voter to be left behind”
SUMMARY
The PIL was filed to challenge the additional guidelines issued by the Election Commission in 2005 and 2007 for special revision of Electoral Rolls in respect of four assembly constituencies of the State of Arunachal Pradesh comprising areas where there is substantial presence of Chakma and Hajong communities, who due to various reasons had migrated during the 1960s from erstwhile East Pakistan, now Bangladesh,and taken refuge in the State of Arunachal Pradesh (which was then a Union Territory of NEFA). According to the petitioners these guidelines were discrim- inatory and contrary to the Constitutional and statutory provisions and also violation of the constitutional safeguards provided to the indigenous people of Arunachal Pradesh.
In the impugned guidelines, the Commission had clarified that any person born in India on or after 26.1.1950 but before 01.7.1987 is a citizen of India by birth by virtue of Section 3 (1)(a) of the Citizenship Act, 1955 and birth certificates issued by the competent authorities showing the place of birth in India so produced should be accepted as material proof of Indian Citizenship, notwithstanding any technical deficiencies in such certificates. Claim for inclusion of name in the electoral roll filed without supporting documents should not be rejected automatically but be verified through local enquiry.
The High Court relied on the decision of the Hon’ble Supreme Court in Na- tional Human Rights Commission – vs- State of Arunachal Pradesh &Anr. [(1996) 1 SCC 742 ] wherein the Apex Court issued certain directions to safeguard the interests of the Chakma refugees for whom a conscious decision was taken by the Govt. of India not to repatriate but to settle them in various parts of India, including Arunachal Pradesh, and confer citizenship of India, and held that the additional guidelines issued by the Commission, in exercise of inherent powers under Article 324 of the Constitution, to safeguard the interests of the Chakma refugees, includ- ing their right of franchise, as a bona fide citizen of the country cannot be consid- ered as discriminatory. It further held that once the Chakmas have been permitted by the Govt. of India to settle in Arunachal Pradesh, it would be deemed that “Inner Line Permit/Pass” had been granted to them.
225 “No voter to be left behind”
JUDGMENT
Hon’ble A.K. Goel, Chief Justice
Hon’ble N.Kotiswar Singh, Judge
Advocate for Petitioner: Mr. Mr. P.K.Tiwari
Mr. A.M.Buzarbaruah, G.A, state of Arunachal Pradesh Mr. D.Barua, Mr. U.Dutta, Advocate, Advocate for Respondent.
(1) Heard Mr. P.K. Tiwari, learned counsel appearing for the petitioners, Mr. A.M.Buzarbaruah, learned Govt. Advocate appearing for the State of Arunachal Pradesh, Mr. D.Barua, learned Standing Counsel appearing for the Election Com- mission of India and Mr. U. Dutta, learnedcounsel appearing for the respondent NO.5.
(2) The main grievance raised in the present Public Interest Litigation relates to the additional guidelines issued by the Election Commission of India in 2005 and 2007 for revision of Electoral Rolls in respect of areas where there are substan- tial presence of Chakmas and Hajongs namely, 14-Doimukh (ST), 46-Chowkham (ST), 49-BordumsaDiyumand SO-Miao (ST) Assembly constituencies in the State of Arunachal Pradesh which, according to the petitioners are discriminatory and also contrary to the Constitutional and statutory provisions. .
(3) The essential facts, in brief, which may be relevant for the purpose of consid- eration of the case may be referred to herein below.
(4) During the 1960’s due to various reasons, a large number of persons be- longing to Chakma and Hajong communities in the erstwhile Pakistan, now Bangla- desh, had migrated to State of Assam and sought refuge. Thereafter, many of them were settled in the erstwhile North Eastern Frontier Agency (NEFA), which is now known as Arunachal Pradesh.
226 “No voter to be left behind”
(5) Sometime in 2003, the Election Commission of India ordered for a Special Summary Revision of Electoral Rolls w.e.f 1.1.2003 as the qualifying date in the State of Arunachal Pradesh. On finding that Chakmas who have been settled in var- ious areas in the State of Arunachal Pradesh had not been included in the Electoral Rolls, an organization espousing the cause of the Chakmas called “Committee for Citizenship Rights of Chakmas of Arunachal Pradesh” complained to the Election Commission of India stating that Chakmas who had settled in the State of Arunachal Pradesh and eligible to be Indian citizen were not included in the Electoral Rolls of 14-Doimukh (ST), 46-Chowkham (ST), 49-Bordumsa-Diyum and 50-Miao (ST) As- sembly Constituencies of Arunachal Pradesh. Thereafter, on the basis of the said complaint, the Election Commission of India caused an enquiry to be made and on the basis of the enquiry report, the Election Commission of India ordered a Special Summary Revision of Electoral Rolls with reference to 1.1.2003 as the qualifying date in the aforesaid four Assembly Constituencies. While ordering the Special Sum- mary Revision, theElection Commission of India had clarified that whosoever was born in India on or after 26.1.1950 but before 01.7.1987 is a citizen of India by birth by virtue of Section 3 (1) (a) of the Citizenship Act, 1955 and birth certificates issued by the competent authorities showing therein the place of birth so produced should be accepted as material proof to establish the claim of Indian citizenship. It was further clarified that mere non-production of document should not automatically form the basis for rejection of claim for inclusion in the Electoral Rolls and lack of documentary proof can be met through local enquiry.
(6) However, after such decision of the Election Commission of India, the State Cabinet of the State of Arunachal Pradesh passed a resolution on 14.5.2003 which stated that enrolment and revision of Electoral Rolls in respect of non-Arunachalis be done after verifying their Inner Line Permits and ensuring that these have the validity period of at least six month. As a result of the aforesaid Cabinet decision, the Elec- toral Registration Officers of the aforesaid four Assembly Constituencies reviewed their earlier decisions and rejected the claims of as many as 1497 claimants for in- clusion in the Electoral Rolls. The Election Commission of India took exception to the said decision of the State Cabinet considering it to be an interference with the statu- tory and constitutional powers of Election Commission of India in the matter relating to preparation of electoral rolls, by way of imposing conditions on the eligibility of
227 “No voter to be left behind” persons for inclusion of names in the Electoral Rolls, which, according to the Election Commission of India was within its exclusive domain and jurisdiction. Accordingly, the Electoral Registration Officers were directed to review their decisions. However, in spite of the direction of the Election Commission of India, the EROs refused to revive the earlier decisions to include the names of Chakmas which they had earlier accepted for inclusion but subsequently rejected because of the Cabinet decision of the State of Arunachal Pradesh. As a result, the Election Commission of India vide its order dated 2.1.2004 suspended election works including the preparation and revision of Electoral Rolls in the said four Assembly Constituencies till such time the State Cabinet withdrew its resolution dated 14.5.2003 or amended the same ap- propriately.
(7) Subsequently, considering the impending Parliamentary elections, the Election Commission of India superseded the said earlier order dated 2.1.2004 by an order dated 3.3.2004 and directed for publication of 2003 Electoral Rolls with all the names of Chakmas which the Electoral Registration Officers had earlier accepted for inclusion in the aforesaid four Assembly Constituencies. Since the names of the Chakmas were not included, no revision of Electoral Rolls was made in 2004 in the said four Assembly Constituencies though in respect of the remaining 56 Assembly Constituencies, the revision was undertaken.
(8) Later, the Election Commission of India vide its order dated 28.1.2005 ordered for intensive revision of Electoral Rolls in the entire State of Arunachal Pradesh with reference to 1.1.2006 as the qualifying date. However, in respect of the four Assem- bly Constituencies, the final publication of Electoral Rolls could not be accomplished. It may be stated that Election Commission of India had issued detailed quidellnes vide their Memorandum dated 23.3.2005 for intensive revision of the Electoral RolI in the State of Arunachal Pradesh. While issuing the said guidelines, additional guidelines were included for the areas having substantial presence of Chakma and Hajong refugees as provided in Paragraph 7.14 of the said guidelines, relevant portions of which are reproduced as below:
228 “No voter to be left behind”
“7.14. Additional guidelines for Enumeration in areas having substantial presence of Chakmas...... (d) The ERO concerned, on receipt of the enumeration pad and manuscript from the supervisors shall segregate the names of Chakmas into two sections, as per the date of birth mentioned in the enumeration pad;
(i) Containing the name of persons who were born in 1st India between 26th January, 1950 and July, 1987; and in whose case linkage could be established that their parents had migrated to Arunachal Pradesh in 1964, as per the refugee registration records or any other relevant records.
(ii) Containing the names of persons who were born In India between 26th January, 1950, July, 1987; and in whose case linkage could not be established that their parents had migrated to Arunachal Pradesh in 1964, .....per the refugee registration records or any other relevant records.
(e) In respect of those persons whose names have been included in category (d)
(i), above, their names shall be straight away included in the draft electoral roll.
(f) In respect of persons whose linkage could not be established, category (d)
(ii), the ERO immediately on receipt of the said list shall cause conduct of local verification to establish the eligibility for enrolment of name in the electoral rolls. The local verification officer shall, among other documentary evidence, rely on the following documents to establish the eligibility of a person of Chakma origin to enroll his or her name in the electoral roll:
(i) Birth certificate showing date of birth and place of birth in India issued by the competent .authority;
(ii) School certificate indicating therein date of birth and place of birth in India,
229 “No voter to be left behind”
and any other certificate which is relevant in the State of Arunachal Pradesh in this regard. ~
(iii) Only names of those persons whose identities have been established and whose were born in 26th 1st India between January, 1950 and July, 1987 shall be Included in the draft electoral rolls.
The disposal of claims & objections received after publication of the draft rolls in the areas as identified above, shall be done by following the procedure stated above.”
(9) However, in spite of the aforesaid guidelines, the finalisation of the Electoral Rolls in respect of the said four Assembly Constituencies was delayed. On enquiry by the Election Commission of India, it was found that Electoral Registration Officers had not accepted the bath certificates produced by the Chakmas on the ground that the same were issued without following the procedure prescribed by the Births and Deaths Act, 1969. Subsequently, the Election Commission of India ordered a sum- mary revision of Electoral Rolls with reference to 1.1.2007 as the qualifying date in all Assembly Constituencies in the State of Arunachal Pradesh except the said four Assembly Constituencies. In respect of the said four Assembly Constituencies, the Election Commission of India ordered a Special Summary Revision of Electoral Rolls With reference to 1.1.2007 as the qualifying date and additional guidelines were issued for enrolment of Chakmas in these four Assembly Constituencies on 3.10.2007.
Relevant portions of the said guidelines issued on 3.10.2007 are reproduced herein below;
“(5) In the earlier guidelines circulated vide letter No.23/RUN/2005 dated 22.7.2005 vide para 7.14(d), the EROs were asked to segregate the name of Chakmas enumerated into two sections after door to door visits. In the first list, the names of those persons were to be included who were born in India on or after 26.1.1950 but before 1.7.1987 and in in whose case linkage could be established with their parents that they migrated to the State in the year
230 “No voter to be left behind”
1964, as per the refugee registration or any other relevant records. The names appearing in this list were to be Included in the electoral rolls of the concerned area.(6) In the records list, those names were directed to be included from the enumerated list who were born on or after 16.1.1950 but before 1.7.1987 and in whose case linkage could not be established with their parents that they migrated to the state in the year 1964, as per the refugee registration records or any other relevant records. The names in the second list were to be subjected to local verification by the EROs to verify the eligibility for enrollment. Local verification officer was among other documentary evidence, to rely on the following documents to establish the eligibility of a person of Chakma origin to enroll his/her name in the rolls.
(i) Birth certificate showing the date of birth and place in India issued by the competent authority.
(ii) School Certificate indicating therein the date of birth and place of birth, if shown, in India or any other certificate which is relevant in the state of Arunachal Pradesh.
(iii)A certificate purporting to be a birth certificate, issued by a Government authority, maintaining official records showing the precise date and place of birth, as proof as of date and place of birth, notwithstanding any technical deficiencies in such; certificates, such as application not having beenmade within the prescribed period for such’ certificate.
(7) All fresh claim/objections shall be disposed of by the EROs by keeping in view the guidelines referred to in para 5 and 6 above. Only the names of those persons whose identities have been established and who were born in India on or after 26.1.1950 but above 1.7.1987 shall be included in the rolls.”
(10) The contention of the petitioners is that the said guidelines issued by the Elec- tion Commission of India in 2005 and 2007 with respect to the said four Assembly Constituencies concerning the Chakmas are discriminatory and unreasonable and also contrary to the provisions of law and also in violation of the constitutional
231 “No voter to be left behind” safeguards provided to the people of Arunachal Pradesh. According to the peti- tioners, the State of Arunachal Pradesh enjoys a special status in the scheme of Indian Constitution and there are certain special laws which are applicable in the State of Arunachal Pradesh viz. the Bengal Eastern Frontier Regulation, 1873, the Scheduled Districts Act, 1874, the Assam Frontier Tracts Regulation, 1880 and the Chin Hills Regulation, 1896. It has been stated that Sections 2 and 7 of the Bengal Eastern Frontier Regulation, 1873 provide that no person other than local natives shall pass through the tracts without a ‘pass’. In other words, no person other than Arunachalis could enter into the State of Arunachal Pradesh without Inner Line Pass. There are other provisions under the aforesaid Acts and Regulations which provide for special rights and privileges enjoyed by the tribal people of Arunachal Pradesh, which perhaps may not be necessary to be elaborated here as these do not have a direct bearing on the present issue to be decided. The petitioners have thus con- tended that in absence of possession of a valid Inner Line Pass by the Chakmas, who are settled in Arunachal Pradesh, they could not be said to be ordinary resi- dents of the aforesaid four Assembly Constituencies and hence, not entitled to be included in the electoral rolls in any part of Arunachal Pradesh. According to the petitioners, the aforesaid additional guidelines issued by the Election Commission of India vide their Memoranda dated 23.3.2005 and 3.10.2007 are contrary to the generalguidelines and also, contrary to the statutory provisions and as such, are not sustainable. According to the petitioners, the guidelines are contrary to section 13 of the Registration of Births and Deaths Act, 1969 which stipulates the procedures to be adopted for registration of birth beyond the time prescribed by rules and as such, certificate issued without conforming to the aforesaid section 13 of the Registration of Births and Deaths Act, 1969 could not be held to be a valid one. It has been contended by the petitioners that, on the basis of the said guidelines, the Electoral Registration Officers are bound to accept the Certificates as genuine and thus, -en roll the names of Chakmas who are reportedly born in State of Arunachal Pradesh on or before 26.1.1950 and till 1.7.1977 as electors in their respective Assembly Constituencies.
(11) Election Commission of India has filed its response in the present Public Interest litigation. According to the Election Commission of India, as stated in their affidavit in-opposition dated 28.2.2008, the guidelines were issued in compliance
232 “No voter to be left behind” with the provisions of law and also as per the order of the Delhi High Court in W.P. 886 of 2000 (Peoples Union for Civil Liberties vs. Election Commission of India & ors.). The Delhi High Court in the said writ petition had observed as follows:
“3. There is practically no dispute on the question that a person acquires citizenship by birth if either of the parents is a citizen of India at the time of his birth and also a person, who is born in India in 1950 but before commencement of Amendment Act is a citizen of India. The aforesaid conditions are mutually exclusive of each other and are not conjoint. Obviously if a person claims to be citizen of India, for the purpose of inclusion of his/hr name in the electoral roll, material to substantiate the claim of citizenship has to be produced. Learned counsel for the Commission stated that if such material is produced, obviously, the same shall be considered and the decision shall be taken as to whether the claim of citizenship is correct or not. The claim obviously is relatable for the purpose of inclusion in the electoral roll. So far as the State Election Commission’s role is concerned, it has to be also established that for the purpose of inclusion in the State electoral roll, the applicants have to satisfy the requirement of residence or such other conditions as may be stipulated in law. Therefore, in case any person, who claims inclusion in the electoral roll, produces material to that effect, same shall be considered by the Commission and/or the State Commission as the case may be. It goes without saying that decision in this regard will be taken within a reasonable time.”
The Election Commission has also stated that aforesaid guidelines do not have the effect of including those persons in Electoral Rolls about whom there is no legally admissible evidence and/or any positive evidence of being born in India during the period specified in Section 3(1) (a) of the Citizenship Act, 1955 and by issuing the above guidelines, the Commission has not in any way restricted the powers of the Electoral Registration Officers to decide the issue. The Election Commission of India has also stated that para NO.7 of the aforesaid guidelines dated 7.9.2007 clearly stipulates that only the names of those persons whose identities have been established and who were born in India on or after 26.1.1950 but before 1.7.1987 shall be included in the Electoral Rolls and accordingly, has denied that the guide- lines issued by the Commission have the effect of including ineligible person in the Electoral Rolls.
233 “No voter to be left behind”
It has also been further stated in the affidavit-in-opposition that the guidelines were issued in order to ensure that the revision work was carried out in accordance with the provisions of the Constitution and the order dated 28.9.2000 passed by the Delhi High Court in W.P. 886 of 2000 (Peoples Union for Civil liberties vs. Election Commission of India &ors.). It has been further stated by the Commission that the guidelines do not have the overriding effect over the provisions of Birth, Death and Marriage Registration Act, 1886 and/or any State Rules framed thereunder, but are merely supplementary.
(12) The respondent No.5, the “Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh”, which was subsequently allowed to be impleaded in this PIL, has also filed their affidavit-in-opposition.
The respondent No.5 in their affidavit-in-opposition while denying the allegations and averments made in the PIL has stated that the present PIL has been filed to harass the genuine Chakmas who were settled in the State of Arunachal Pradesh by the Government of India since about 4(four) decades and have Subsequently raised their families and leading normal lives in the State. According to the respondent No.5, following large scale communal violence in the East Pakistan (now Bangladesh), ‘in early 1964, a sizeable number of people belonging to various communities, namely, Buddhist, Hindu and Christian including Chakrnas and Hajongs who are Buddhists and Hindu faith followersrespectively started fleeing into Assam, Arunachal Pradesh (which was part of Assam as Union Territory of NEFA), Tripura and West Bengal to avoid persecution by the majority community in their original country. By the middle of July 1994, at least 140,000 persons including Chakmas and Hajongs consisting of 2,902 families (14,888 persons) had migrated into Assam. As the then Govern- ment of Assam expressed its inability to settle such a large number of migrants in the State, requested for their shifting, and a suggestion was made that a substantial number of families could be accommodated in NEFA as some surplus land was available there. Thereafter, consultations were held between NEFA Administration, Government of Assam and the Ministry of Rehabilitation, Government of India for re- settlement of some of these new migrants in NEFA. Accordingly, during 1964-1968, 2,902 families of Chakmas and Hajongs were settled in NEFA (Arunachal Pradesh) in three districts, namely, Lohit, Tirap and Subanstri Districts. Plots of lands varying
234 “No voter to be left behind” from 5 to 10 acres per family depending upon the size of the family were allotted to the 2902 Chakma and Hajong refugee families under a centrally sponsored reha- bilitation scheme. Cash grants for each of the families were also sanctioned by the Rehabilitation Ministry as rehabilitation grant.
The Respondent no. 5 further stated that subsequently, considering their plight and also the fact that the Chakmas had resided for more than 4(four) decades having developed close social, religion, economic ties, the Government of India considered it impracticable and also inhuman to uproot them and took the decision to confer citizenship on the Chakmas. The respondent No.5, states that, however, the author- ities of the State of Arunachal Pradesh and various organizations including the All Arunachal Pradesh Students Union had been threatening, harassing and creating all kinds of hurdles in the peaceful settlement of the Chakamas in Arunachal Pradesh and had been trying to to prevent the Chakmas from getting citizenship and also being enrolled in the electoral rolls and attempts were made to evict them from Arunachal Pradesh by issuing “quit notices”. Because of the constant harassment caused and threat received by the Chakmas, the National Human Rights Commis- sion had to intervene, at whose instance the Supreme Court of this country was moved to secure the lives and properties of the Chakmas in Arunachal Pradesh and the respondent No.5 has brought attention of this Court to the decision of the Hon’bleSupreme Court rendered in National Human Rights Commission v. State of Arunachal Pradesh & Anr.: (1996) 1 see 742, hereinafter referred to as NHRC case.
(13) The respondent NO.5 has also stated in their affidavit-in opposition that some time in December, 2007, the Election Commission of India had deputed two teams, which visited the four Ch’akma and Hajong inhabited Assembly Constit- uencies and the concerned Electoral Offices as well as the representatives of the Chakmas and Hajongs. The said two teams submitted their reports in respect of the four Assembly Constituencies on 18.12.2007. Thereafter, during April,2008, another team of senior officials of the Election Commission of India scrutinized all the relevant documents in connection with disposal and claims/objections relating to Chakmas and Hajong at the office of the Chief Election Officer, Itanagar. The said team scrutinized 8647 claims of Chakmas/Hajong claimants and 1115 objections
235 “No voter to be left behind” against the Chakmas/Hajopgs and submitted a report with a recommendation to the Election Commission of India on 2nd May, 2008.
On the basis of the said report, the Commission directed the CEO to conduct re-ver- ification of all claims of Chakmas/Hajong as well as objections against the Chak- mas/Hajongs voters. According, during June and July, 2008, a team of senior officers of State carried out reverification of the claims and objections regarding Chakmas/Hajong voters/claimants. During the course of re-verification, as many as 10 kinds of documents viz. Admit Card (issued by registered educational insti- tutions), Birth certificates, Land allotment order, Land Lease deed, Relief Eligibility Certificate (Screening Report issued after entry into India), Refugee Identity Cards (of the voters/claimants issued by Government of Arunachal Pradesh), Father’s/ mother’s Refugee Identity Card, Refugee Registration Certificate (issued on entry into India during 1964-69), School Certificate (of the voters/claimants) and School Leaving Certificate (of the voters/claimants) were taken into consideration. On the basis of the said re-verification, objections as against 253 Chakmas/Hajong voters were rejected and their inclusion in the Electoral Rolls was upheld. Similarly, the claims of 282 Chakmas/Hajongs claimants were accepted and recommended for inclusion. On the basis of such reverification, the Election Commission of India after approval allowedpublication of final Electoral Rolls in 2008. Thus, according to the respondent No.5, there has been no illegal entries in the electoral roll on the basis of the guidelines and all claims had been scrupulously examined and entries made in the electoral roll accordingly.
(14) As the main grievance of the petitioners is in respect of the afore said guide- lines issued by the Election Commission of India in the year 2005 and 2007 with reference to the inclusion of the names of Chakmas in the Electoral Rolls of four Assembly Constituencies on the basis of the claims of the Chakmas by virtue of pro- vision of Section 3(1)(a) of the Citizenship Act, 1955, it may be appropriate to refer to the said Section 3(1)(a) which provides as follows:
“3. Citizenship by birth. -- (1) Except as provided in subsection (2), every person born in India (a) on or after the 26th day of January, 1950, but before the 15tday of July, 198.
236 “No voter to be left behind”
...... shall be a citizen of India by birth.”
(15) What may be noted is that the issue which arises for consideration before this Court revolves round the factum of the birth of, the Chakmas having taken place between 26th day of January, 1950 and 1st day of July, 1987 which, if proved would entitle such a claimant to be a citizen of India by birth and as consequential right to be to be included in the electoral roll of the concerned assembly constituency ‘tIheretht are settled. In other words, the issue is about the factum of birth during the aforesaid period, which could be decided in various manners including by produc- tion of the relevant documentary evidences issued by the competent authorities or on the basis of other relevant materials.
(16) We may now proceed to examine the issue in backdrop of the peculiar facts and situation obtaining in the present case. Without adverting to the respective pleadings of the parties to ascertain the background facts, we may safely rely on certain facts which’ had been already taken note by the Hon’ble Supreme Court in NHRC case (supra).
The relevant paragraphs are reproduced hereunder:
“3. The factual matrix of the case may now be referred to. A large number of Chakmas from erstwhile East Pakistan (now Bangladesh) were displaced by the Kaptai Hydel Power Project in 1964. They had taken shelter in Assam and Tripura. Most of them were settled in these States and became Indian citizens in due course of time. Since a large number of refugees had taken shelter in Assam, the State Government had expressed its inability to rehabilitate all of them and requested assistance in this regard from certain other States. Thereafter, in consultation which the erstwhile NEFA administration (North-East Frontier Agency-now Arunachal Pradesh), about 4012 Chakmas were settled in parts of NEFA. They were also allotted some land in consultation with local tribes. The Government of India had also sanctioned rehabilitation assistance @ Rs.4200 per family. The present population of Chakmas in Arunachal Pradesh is estimated to be around 65,000;
237 “No voter to be left behind”
4. The issue of conferring citizenship on the Chakmas was considered by the second respondent from time to time. The Minister of State for Home Affairs has on several occasions expressed the intention of the second respondent in this regard. Groups of Chakmas have represented to the petitioner that they have made representations for the grant of citizenship under Section 5(1) (a) of the Citizenship Act, 1955 (hereinafter called “the Act”) before their Deputy Commissioners but no decision has been communicated to them. In recent years, relations between citizens of Arunachal Pradesh and the Chakmas have deteriorated, and the latter have complained that they are being subjected to repressive measures with a view to forcibly expelling them from the State of Arunachal Pradesh.
5. On 9.9.1994, the People’s Union .for Civil Liberties, Delhi brought this issue to the attention of the NHRC which issued letters to the Chief Secretary, Arunachal Pradesh and the Home Secretary, Government of India making enquiries in this regard. On 30.9.1994, the Chief Secretary of Arunachal Pradesh faxed a reply stating that the situation was totally under control and adequate police protection had been given to the Chakma.
6. On 15.10.1994, the Committee for Citizenship Rights of the Chakmas (hereinafter called “the CCRC”) filed a representation with the NHRC complaining of the persecution of the Chakmas. The petition contained a press report carried in The Telegraph dated 26.8.1994 stating that the All Arunachal Pradesh Students’ Union (hereinafter called ‘AAPSU’) had issued “quit notices” to all alleged foreigners, including the Chakmas, to leave the State by 30.9.1995. The AAPSU had threatened to use force if its demand was not acceded to. The matter was treated as a formal complaint by the NHRC and on 28.10.1994, it issued notices to the first and the second respondents calling for their reports on the issue.
7. On 22.11.1994, the Ministry of Home Affairs sent a note to the petitioner reaffirming its intention of granting citizenship to the Chakmas. It also pointed out that Central Reserve Forces had been deployed in response to the threat of the AAPSU and that the State Administration had been directed to ensure the
238 “No voter to be left behind”
protection of the Chakmas. On 7.12.1994, the NHRC directed the first and second respondents to appraise it of the steps taken to protect the Chakmas. This direction was ignored till September 1995 despite the sending of reminders. On 25.9.1995, the first respondent filed an interim reply and asked for time of four weeks’ duration to file a supplementary report. The first respondent did not, however, comply with its own deadline.”
It was also the contention of the respondent NO.5 that even though the Chakmas were allowed to settle in various parts of India including in the State of Arunachal Pradesh, they were subjected to harassments and attempts were made not to al- low them to settle in the State of Arunachal Pradesh and to evict them therefrom, which had been also taken cognizance by the Hon’ble Supreme Court as reflected in paragraph Nos.15 and 16 of the aforesaid case of NHRC (supra), which are reproduced as below:-
“15. We are unable to accept the contention of the first respondent that no threat exists to the life and liberty of the Chakmas guaranteed by Article 21. Of the Constitution and that it has taken adequate steps to ensure the protection of the Chakmas. After handling the present matter for more than a year, the NHRC recorded a prima facie finding that the service of quit notices and their admitted enforcement appeared to be supported by the officers of the first respondent. The NHRC further held that the first respondent had, on one hand, delayed the disposal of the matter by not furnishing the required response and had, on the other hand, sought to enforce the eviction of the Chakmas through its agencies. It is to be noted that at no time has the first respondent sought to condemn the activities of the AAPSU. However, the most damning facts against the first respondent are to be found in the counter-affidavit of the second respondent. In the assessment of the Union of India, the threat posed by the AAPSU was grave enough to warrant the placing of two additional battalions of CRPF at the disposal of the State Administration. Whether it was done at the behest of the State Government or by the Union on its own is of no consequence; the fact that it had become necessary speaks for itself. The second respondent further notes that after the expiry of the deadline of30-10-1994, the AAPSU and other tribal student organisations continued to agitate and
239 “No voter to be left behind”
press for the expulsion of all foreigners including the Chakmas. It was reported that the AAPSU had started enforcing economic blockades on the refugee camps, which adversely affected the supply of rations, medical and essential facilities, etc; to the Chakmas. OJ course the State Government has denied the allegation but the independent inquiry of the NHRC shows otherwise. The fact that the Chakmas were dying on account of the blockade for want of medicines is an established fact. After reports regarding lack of medical facilities and the spread of malaria and dysentery in Chakma settlements were received, the Union Government advised the first respondent to ensure normal supplies of essential commodities to the Chakma settlement. On 20-9-1995 the AAPSU, once again, issued an ultimatum citing 31-12-1995 as the fresh deadline for the ousting of Chakmas. This is yet another threat which the first respondent has not indicated how it proposes to counter.
16. It is, therefore, clear that there exists a clear and present danger to the lives and personal liberty of the Chakmas. In Louis De Raedt v. Union of India and Khudiram Chakma case this Court held that foreigners are entitled to the protection of Article 21 of the Constitution...... 18. From what we have said hereinbefore, there is no doubt that the Chakmas who migrated from East Pakistan (now Bangladesh) in 1964, first settled down in the State of Assam and then shifted to areas which now fall within the State of Arunachal Pradesh. They have settled there since the last about two and a half decades and have raised their families in the said State. Their children have married and they too have had children. Thus, a large number of them were born in the State itself. Now it is proposed to uproot them by force. The AAPSU has been giving out threats to forcibly drive them out to the neighbouring State which in turn is unwilling to accept them. The residents of the neighbouring State have also threatened to kill them if they try to enter their State. They are thus sandwiched between two forces, each pushing in opposite direction which can only hurt them. Faced with the prospect of annihilation the NHRC was moved, which, finding it impossible to extend protection to them, moved this Court for certain reliefs.”
240 “No voter to be left behind”
1. 1994Supp (1) SCC615
2. (1991) 3 SCC554: 1991 SCC(Cri) 886
The Hon’ble Supreme Court, after having considered thecircumstances in which the Chakmas came to be settled in India and alsoconsidering the decision of the Govt. of India to grant citizenship to them,issued the following directions to safeguard their interest as contained in paragraph No.21 ofthe NHRCcase (supra)asbelow:
“21. In view of the above, we allow this petition and direct the first and second respondents, by way of a writ of mandamus, as under:
(1) The first respondent, the State of Arunachal Pradesh, shall ensure that the life and personal liberty of each and every Chakma residing within the State shall be protected and any attempt to forcibly evict or drive the mouth of the State by organised groups, such as the AAPSU, shall be repelled, if necessary by requisitioning the service of paramilitary or police force, and if additional forces are considered necessary to carry out this direction, the first respondent will request the second respondent, the Union of India, to provide such additional force, and the second respondent shall provide such additional force as is necessary to protect the lives and liberty of the Chakmas;
(2) except in accordance with law, the Chakmas shall not be evicted from their homes and shall not be denied domestic life and comfort therein;
(3) the quit notices and ultimatums issued by the AAPSU and any other group which tantamount to ·threats to the life and liberty of each and every Chakma should be dealt with by the first respondent in accordance with law;
(4) the application made for registration as citizen of India by the Chakma or Chakmas under Section 5 of the Act, shall be entered in the register maintained for the purpose and shall be forwarded by the Collector or the DC who receives them under the relevant rule, with or without enquiry, as the case may be, to the Central Government for its consideration in accordance with law; even
241 “No voter to be left behind”
returned applications shall be called back or fresh ones shall be obtained from the persons concerned and shall be processed and to forwarded to the Central Government for consideration;
(5) while the application of any individual Chakma is pending consideration, the first respondent shall not evict or remove the person concerned from ;is occupation on the ground that he is not a citizen of India until the competent authority has taken a decision in that behalf; and
(6) the first respondent will pay to the Petitioner cost of this petition which we quantify at Rs 10,QOO within six weeks from today by depositing the Si(}ne In the office of the NHRC, New Delhi.”
(17) From the above paragraphs, what transpires is that therewere a large num- ber of Chakma refugees who had been displaced from their country of origin and the Government of India had agreed toaccommodate them in this country and also to grant citizenship to them,in contradistinction to those unwanted illegal immigrants who hadsneaked into this country looking for a greener pasture or to indulge in- nefarious antinational activities. In other words, a conscious decision wastaken by the Government of India not to repatriate the aforesaidChakmas refugeeswhomthe- GovernmentIndia considered to begenuine refugees escaping discrimination and persecution in their country oforigin and decided to settle them in India by granting citizenship thusaccepting them as citizens of this country.
(18) It is in the aforesaid .background in which the Chakmas came to be settled in India and also the decision of the Govt. of India to grant citizenship to the Chakmas that the guidelines issued by the Election Commission of India are to be examined. In our view the aforesaid guidelines had been issued by the Election Commission of India taking into consideration the peculiar circumstances in which the Chakmas refuges had been settled in the State Of Arunachal Pradesh. The contention of the petitioners that the said guidelines are discriminatory, inasmuch as, special provi- sions have been provided for the Chakmas cannot be accepted as there is a rational basis behind such guidelines and hence, cannot be considered to be discriminato- ry. If certain additional guidelines had been issued to safeguard the interest of the
242 “No voter to be left behind”
Chakma refugees for whom a conscious decision was taken by the Government of India not repatriate but to settle them and confer citizenship of this country in the aforesaid background, these cannot be said to be either discriminatory or arbitrary. The Chakmas, on the contrary, had been subjected to discrimination and harass- ment at the instance of the local tribalpopulations of Arunachal Pradesh as had been observed by the Supreme Court in the NHRC case (supra) and these additional guidelines have been issued to prevent such discrimination. Having regard to the facts and circumstances which have been also highlighted by the Hon’ble Supreme Court as referred to above in NRHC case, we are of the view that these additional guidelines, having been issued in the peculiarcircumstances obtaining, cannot be held to be discriminatory.
Further, in view of the policy decision taken by the Government of India to settle the Chakma refugees in different States and also in Arunachal Pradesh in consultation with the authorities of the Arunachal Pradesh, and also to confer Indian citizenship, the contention of the petitioners that the aforesaid guidelines have the effect of vio- lating the provisions of law in terms of lack of Inner Line Permit or violation of provi- sions of section 13 of the Registration of Births and Deaths Act, 1969 does not hold water. We are of the view that once a decision had been taken to settle these Chak- ma refugees in Arunachal Pradesh in consultation with the authorities of Arunachal Pradesh, they would become residents of Arunachal Pradesh and would not require the InnerLine Permit/Pass. Otherwise also, once they have been allowed to settle in Arunachal Pradesh, it would be deemed that such permits had been granted to them and in our considered opinion, any other view would negate and defeat the policy decision taken by the Government of India in consultation with the Arunachal Pradesh authorities to settle these Chakmas in Arunachal Pradesh.
Similarly, as regards, the other contention of the petitioners that the guidelines would contravene the provisions of section 13 of the Registration of Births and Deaths Act, 1969 also cannot be accepted. It may be noted that the Chakmas had taken refuge in this country under distress and trying circumstances after having been uprooted from their hearth and homes and made to flee to avoid persecution. Further, later on, after having allowed to settle in Arunachal Pradesh, they had faced difficulties and harassments from the neighbouring local populace which had been taken note of
243 “No voter to be left behind” by the Supreme Court in NHRC case as mentioned above. Therefore, issuing of the additional guidelines for the purpose of verification of the birth of the claimants on the basis of other credible materials for the purpose of enrolment in the electoral rolls where these Chakmas had been officially settled cannot be interfered with merely on the technical ground that certain provisions of Registration of Births and Deaths Act, 1969 have not been strictly complied with, if the evidences are otherwise credible and trustworthy.
We are of the view that the additional guidelines which had been issued by the Elec- tion Commission of India are merely to enable those Chakmas to enjoy such benefits as a citizen of this Country including the right to vote by having their names enrolled in the electoral rolls of the concerned constituency where they have been settled. Once, these Chakma refugees have been granted citizenship, they are entitled to enjoy all the rights and privileges that flow on becoming a citizen of this country and further, they are entitled to have their rights as citizens of this country protected and safeguarded.
(19) It is also now well settled that the powers of ElectionCommission as provided under Article 324 of Constitution of India areplenary in nature and includes all powers for necessary smooth conduct of election and such powers are only subject to validly enacted laws made by the Parliament the State Legislatures, which has beenreiter- ated in a series of judgments of the Hon’ble Supreme Court viz., Mahindra Gill -vs- Chief Election Commission of India, (1978 ) 1 see 405; Special Reference No.1 of 2002 In re (Gujarat Assembly Election matter), (2002) 8 see 237 ; A.C Jose-vs-Siv- an Pillai, (1984) 2 SCC 656 etc. We do not consider that tile aforesaid guidelines issued by the Election Commission in exercise of powers under Article 324 of the Constitution of India override any provision of any Act or Rules.
Further, these impugned guidelines by their very naturebeing mere qutdellnes, and having not created any new rights or liabilitiesand also having not impinged upon the powers and jurisdictions of theEROs in our view, do not call for any interference from this Court.
It also seems, as contended by the respondent No.5 andnot denied by me petitioners
244 “No voter to be left behind” that, these guidelines had been acted uponand certain claims and counter claims regarding enrolment had beenalready entertained on which basis electoral rolls had been revised in2008 in respectof the aforesaid four assemblyconstituencies.
(20) Accordingly, for the reasons discussed above, we are of theview that no case has been made out for any interference by this Courtas these guidelines had been issued in conformity with the policy decisionof the Government of India to settle the Chakmas in various parts ofIndia including Arunachal Pradesh and to grant citizen- ship to them, and had been issued to protect the interest of these Chakma refugeesin- cluding their right of franchise as a bona fide citizen of this country. Consequently, the present Public Interest Litigant petition is dismissed asdevoid of merit, however, without any cost.
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JUDGMENT-13 HIGH COURT OF KARNATAKA
(Bangalore Bench) W.P.Nos.17123-24 of 2013, 17295-297 of 2013 & 17298-299 of 2013 (S-CAT) (Decision dated 16/04/2013)
Election Commission of India & anr...... …..……...... Petitioners
Vs
State of Karnataka & 16 ors...... …………....Respondents
Article 324 of the Constitution - R.P. Act, 1950 - Sec. 13CC – R.P. Act,1951 – Sec.28A – Administrative Service (Cadre) Rules, 1954 – Held : Transfer of officers connected with election ordered by the Election Commission is not a case of transfer under All India Service Rules, but a case of deemed deputation during election period that comes to an end the moment the election results are announced -- Commission not under obligation to give reasons for such transfer- These transfers do not cast any stigma on the transferee.
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SUMMARY
These Writ Petitions were preferred by the Election Commission of India before the Karnataka High Court praying to quash the impugned interim judgment and order dated 12.04.2013 passed by the Central Administrative Tribunal, Banga- lore Bench, in O.A. No.269 to 275/2013 staying the operation of the ECI Order dated 26.03.2013 directing transfer/posting of the seven officers who were posted as Deputy Commissioners of seven districts of Karnataka in connection with the gen- eral election to the Karnataka Legislative Assembly for which poll was scheduled to be held on 05.05.2013.
Some of the transferred officers belonging to All India Services preferred an application on 3.4.2013 before the Central Administrative Tribunal challenging the said order of transfer as being arbitrary, capricious, violative of right guaranteed to the applicants under Articles 14 and 16 of the Constitution of India. It was claimed that it contravened the minimum tenure fixed for the post of Deputy Commissioners under the Administrative Service (Cadre) Rules, and that such transfer would attach stigma against the applicants.
The Tribunal passed an interim order of stay of the Order of transfer and posting with direction to restore the applicants to their respective posts of Deputy Commissioners held by them prior to 27.3.2013, the date on which the State Govt. Of Karnataka issued a notification to give effect to the impugned decision of the Commission. The Tribunal held that while issuing the Order of transfer of the appli- cants, the Election Commission did not follow the Rules regarding the minimum ten- ure of two years of the applicants as contemplated under IAS (Cadre) Amendment Rules, 2006 and also that there were no complaints against the applicants for the premature transfer.
The Hon’ble High Court held that the Administrative Service (Cadre) Rules 1954, made under the All India Services Act, 1951, on which reliance was placed by the Tribunal, only regulates the service conditions of persons appointed to All India Services common to Union and the States and is not the law relating to or in
247 “No voter to be left behind” connection with the conduct of election to the Parliament or the State Legislatures. The Order of transfer issued by the Election Commission during election is not a transfer governed by All India Services Rules as the same do not apply in the case of transfer of an All India Service officer deputed to the Election Commission during election. It is not a case of transfer but a case of deemed deputation with the Com- mission during election under Section 13CC of R.P. Act, 1950 and Section 28A of R.P. Act, 1951. The deemed deputation comes to an end the moment the results of the elections are announced. The Administrative Service (Cadre) Rules, 1954 are silent and, therefore, the Commission has the plenary powers under Article 324 of the Constitution to issue directions to transfer and post the officials for the proper conduct of the elections.
The Hon’ble High Court further held that the Election Commission has no obligation to give reasons why the person incumbent to an office of Deputy Commis- sioner-cum-District Election Officer, a statutory post under the R.P. Act, 1950, is not required and for opting for another officer in his place. It is the matter of confidence that the Election Commission has in a particular officer. The impugned Order does not cast any stigma on the applicant whatsoever.
The Hon’ble High Court set aside the impugned order passed by the Tribunal.
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JUDGMENT
Hon’ble N. Kumar, Judge
Hon’ble B.Manohar, Judge
Advocate for Appellant/Petitioner/Plaintiff: Sri G. Rajagopal, Senior Counsel for Sri Krishna S. Dixit, Adv.
Advocate for Respondents/Defendant: Sajjan Poovaiah, Addl. AG for R1 to R3, Sri B.V. Acharya, Sr. Counsel for Sri L.M. Chidanandayya, Adv. for R11 and R12, Sri P.S. Rajagopal, Sr. Counsel for R16 and Sri D.N. Nanjunda Reddy, Sr. Counsel for R13, 14, 15 and 17,
(1) These Writ Petitions are preferred by the Election Commission of India challenging the order passed by the Central Administrative Tribunal, Bangalore Bench, staying the operation of the communication dated 26.3.2013 issued by the Election Commission of India and notification dated 27.3.2013 passed by the third respondent-State Government and directing restoration of the applicants to their respective posts prior to 27.3.2013. No notice is issued to respondents-4 to 10, as they have not contested the matter before the Tribunal and they have not challenged the order of the Tribunal which is against their interest. In this writ petition, no relief is sought against them. On the contrary, the order in favour of the petitioners would enure to their benefit.
(2) For the purpose of convenience, the parties are referred to as they are re- ferred to in the application before the Tribunal.
(3) Applicants 7 in number were initially appointed to the Karnataka Admin- istrative Services in the State of Karnataka. On the recommendation of the UPSC, the Government of India promoted them to the Indian Administrative Services for the State of Karnataka. After such promotion they have been working in different capacities as assigned by the State Government. They were all posted as Deputy
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Commissioners of Ramanagara, Mandya, Yadgir, Mangalore, Mysore, Belgaum and Raichur Districts respectively. After assuming the charge as Deputy Commission- ers they were discharging their duties and responsibilities entrusted to them under law. They also held the elections to the Local Bodies in the State of Karnataka. They have held a free, fair and independent election to the Local Bodies.
(4) The Election Commission of India declared the election to the Karnataka Legislative Assembly. The election is proposed to-be held on 5.5.2013. The appli- cants as District Election Officers along with the Returning Officers who actually hold the elections have made preparations for conducting free and fair election on 5.5.2013. The revision of electoral roll was undertaken by them. They have trained various Returning Officers. A meeting was called for in the Districts. They have presented a detailed presentation to the Election Commission of India with regard to conduct of free and fair election in their respective Districts. They have also in- spected the electoral voting machines, conducted training to Returning Officers for various staff, they have completed preparatory works. When things stood thus, the Chief Election Officer as per Annexure-A8 dated 26.3.2013 directed transfers/ posting with immediate effect the respondents 4 to 10 in the place of the applicants. They were directed to take over charge with immediate effect. Accordingly, the Gov- ernment of Karnataka issued a notification dated 27.3.2013 as per Annexure-A9 transferring and posting respondents 4 to 10 in place of the applicants. On commu- nication of the said order, the applicants have promptly handed over charge and they are relieved. Thereafter, they preferred an application on 3.4.2013 before the Tribunal challenging the said order of transfer being arbitrary, capricious, violative of right guaranteed to the applicants under Articles 14 and 16 of the Constitution of India. The said order contravenes the minimum tenure fixed for the post of Deputy Commissioners under the Rules. The said order is contrary to the policy of the Elec- tion Commission. By such transfer a stigma is attached and therefore they contended that the impugned order of transfer is liable to be set aside. They also sought for an interim order of stay of the said orders.
(5) After notice to the State and the Election Commission, they entered appear- ance and contested the matter. However, respondents 4 to 10 did not appear before the Tribunal.
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(6) The Tribunal by the impugned order held that there were no complaints against the applicants; that they have conducted elections to the Local Bodies on 7.3.2013; that they have completed the preliminary work to hold election on 5.5.2013 to the Assembly; and the order of transfer is premature. While issuing directions the Election Commission should have directed the State Government to follow the Rules to review the minimum tenure of the applicants as contemplated under IAS (Cadre) Amendment Rules, 2006. When the statutory Rules were enacted by the Parliament, the respondents cannot violate the said Rules. On the prima facie conclusion that the said order is premature and is in violation of the said Rules, the Tribunal proceeded to pass an interim order of stay of the order of transfer and post- ing and further directed that the applicants be restored to their respective posts held BY THEM prior to 27.3.2013. Aggrieved by the said order, the Election Commission has preferred these petitions.
(7) Sri G. Rajagopal, learned Senior Counsel appearing for the Election Com- mission, assailing the impugned order contended that, the power conferred on the Election Commission which is a constitutional authority under Article 324 is a plena- ry power. Clause (6) of Article 324 casts an obligation on the Governor of the State when so requested by the Election Commission to make available such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). Clause (1) of Article 324 vests in the Election Commission the power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of election to Parliament and to the State Legislature. Therefore, by virtue of the said powers conferred, the Election Commission requested the State Government to make available the services of respondents 6 to 12 by posting them to the place which they have mentioned. Though the said power is to be exercised in conformity with Articles 327 and 328 or the law made under those provisions, still under Article 324 the Election Commission has the residuary power to pass orders so as to conduct elections to the State Legislature. In fact, Section 13CC of the 1950 Act and Section 28A of The Representation of People Act, 1951 Act vests in the Election Commission the requisite powers for passing such orders. The said power has been exercised with the object of discharging a Constitutional responsibility of conducting free and fair election. But, the Tribunal committed a serious error in treating the case as a transfer under the IAS Rules and as the terms of the said Rules
251 “No voter to be left behind” have not been complied with, it has held the order to be illegal and stayed the said order. The said approach of the Tribunal runs counter to the Constitutional scheme and therefore he submits the said order requires to be set aside. In fact, the Tribunal has not gone into the question of irreparable injury. Already the persons transferred have taken charge, calendar of events has been issued on 10.4.2013, nominations are received, now in a couple of days the last date fixed for filing nominations is also coming to an end. At that stage if the present incumbents are to be disturbed, the entire electoral roll process would be affected which aspect has not been con- sidered by the Tribunal. He further submitted these orders are passed only for the purpose of conducting free and fair election and this arrangement will come to an end when once this election is over and therefore he submits the applicants cannot have any grievance whatsoever.
(8) Per contra Sri B.V. Acharya, learned Senior Counsel appearing for the appli- cants contended that the impugned order before the Tribunal is contrary to law, that it is contrary to the policy laid down by the Election Commission, that it is arbitrary and there is no application of mind before passing the said order. It also casts stig- ma on the applicants and therefore the Tribunal rightly stayed the order and passed the impugned order. It cannot be found fault with.
(9) Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for some of the applicants submitted that in view of the statutory provisions contained in Section 13AA of the Representation of People Act 1950 and 28A of the Representation of People Act 1951, the Election Commission could have got respondents-4 to 10 transferred without disturbing the applicants who were functioning as Deputy Com- missioners. When there were no allegations against them and when they are trans- ferred, not only the order is illegal, it attaches stigma to the applicants and therefore the Tribunal was justified in interfering with the said order.
(10) Sri P.S. Rajagopal, learned Senior Counsel appearing for some of the appli- cants adopting the aforesaid stand submitted that the power exercised under Article 324 cannot eclipse the law made under Article 309 of the Constitution of India. The impugned order is passed on 26.03.2013 even before the notification for holding elections is issued. On that date the Election Commission had no jurisdiction to pass
252 “No voter to be left behind” the said order. Therefore the order dated 26.03.2013 is void ab initio and an order which is void ab initio cannot be retrospectively validated. The Election Commission, whatever may be the depth of the plenary power which is vested in them, cannot exercise the said power de hors the Rules. The State has not produced the file before the Court to show that, what is the material which was looked into by the authorities before effecting transfer. The impugned order of transfer is without any reason, ar- bitrary and it has harmed the reputation of the applicants. Therefore the said order requires to be set aside and the Tribunal was justified in staying the said order.
(11) Sri Sajjan Poovaiah, the learned Additional Advocate General, submitted that the Government has faithfully implemented the direction issued by the Election Commission under Article 324 of the Constitution of India, in the absence of any law passed by the State Legislature or Parliament with reference to transfer of Govern- ment servants during the period of election. As the field is not covered, the Election Commission had the jurisdiction and power to pass orders under Article 324 of the Constitution of India. By virtue of such power, they have issued a general direction. It does not mean they cannot issue any specific direction after issuing general direc- tion. Therefore the impugned orders passed are valid and legal.
(12) In the light of the aforesaid facts and rival contentions, the point that arise for our consideration in this writ petition is as under:
Whether the Tribunal was justified in granting the interim order of stay of the im- pugned order passed by the Government giving effect to the direction issued by the Election Commission?’
(13) The facts are not in dispute. The term of the Legislative Assembly of Karna- taka will expire on 03.06.2013. By virtue of its powers, duties and functions under Article 324read with Article 172(1) of the Constitution of India and Section 15 of the Representation of the People Act, 1951, the Election Commission of India is required to hold elections to constitute the new Legislative Assembly in the State of Karnataka before expiry of its present term. Therefore the Election Commission rec- ommended to the Governor of the State to issue notification for the General Elections to the Assembly under the relevant provisions of the Representation of the People
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Act, 1951. They also gave schedule for General Election to the Assembly. In that re- gard, the Election Commission of India issued a Press Note on 20.03.2013 enclos- ing schedule for General Election to be held on 05.05.2013. The Model Code of Conduct came into effect immediately from the date of Press Note on 20.03.2013. It is after issue of this Press Note and the Code of Conduct coming into force, the Chief Secretary to the Government of Karnataka was directed to transfer and post respondents-4 to 10 in place of the applicants. On 27.03.2013, the Government of Karnataka gave effect to the direction posting respondents-4 to 10 in place of the applicants. On the very same day, the applicants were relieved. On 10.04.2003 the statutory notification under Section 15(2) of 1951 Act was issued.
(14) The argument is, these applicants are governed by the Administrative Service (Cadre) Rules, 1954. Clause (c) of Rule 7 prescribes the tenure of such officers. The minimum tenure prescribed is two years. A cadre officer, appointed to any post for which the tenure has been so determined, shall hold the minimum tenure as pre- scribed except in the event of promotion, retirement, deputation outside the State or training exceeding two months. Sub-clause (3) provides that an officer may be transferred before the minimum prescribed tenure only on the recommendation of a Committee of Minimum Tenure as specified in the Schedule annexed to the rules. The Schedule specifies Composition of the State Committee to review minimum tenure. One of the functions of the said Committee is to examine the cases of officers who are proposed to be transferred before completion of minimum tenure as determined for Item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. The procedure prescribed is the Committee shall seek detailed justification for the transfer of an officer before the prescribed tenure from the Administrative Department concerned of the Government. After considering the said report along with other inputs, it may have from other reliable sources and in its discussion after obtaining comments and views of the officer proposed to be transferred, if the Committee is satisfied regarding the inevitability of the premature transfer, it may make recommendation to the Government for such transfer. The grievance is, it is a subordinate legislation and therefore the power to be exercised by the Election Commission should not contravene this law, which governs the trans- fer of the applicants. Admittedly, the case was not considered by the Committee to review the minimum tenure. They have not made any recommendation and therefore
254 “No voter to be left behind” the order of transfer de hors these rules, is illegal and is liable to be set aside.
(15) Therefore, the entire case revolves round the power of the Election Commis- sion under Article 324 of the Constitution to pass such orders in the wake of the said rules.
(16) It is in this background, we have to look into the statutory provisions. Article 324 of the Constitution reads as under:
324, Superintendence, direction and control of elections to be vested in an Election Commission. - (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
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(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Re gional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
(17) Section 13CC of the Representation of the People Act, 1950 declares that all officers of the State employed in connection with the election work shall be deemed to be on deputation to the Election Commission for the period during which they are so employed. It reads as under:
13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission. The officers referred to in this Part and any other officer or staff employed in connection with the preparation revision and correction of the electoral rolls for, and the conduct of all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
(Underlining by us) Section 20A of the Representation of the People Act, 1951 defines the general
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duties of district election officer. It reads as under: 20A. General duties of district election officer.- (1) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State.
(2) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission and the chief electoral officer.
Again, Section 28A of the Representation of the People Act, 1951 deals with deemed deputation. It reads as under:
28A. Returning officer, presiding officer, etc, deemed to be on deputation to Election Commission.- The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
(18) The Constitution Bench of the Apex Court consisting of seven Judges in the case of Mohunder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi reported in : AIR 1978 SC 851 dealing with the question, what in its comprehensive connotation does the conduct of election mean or for that matter the superinten- dence, direction and control of elections, have laid down the following law:
38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the extent he insists that if competent legislation is
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enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi (AIR 1975 SC 2299)
In the opinion of some of the judges constituting the majority in Bharati’s case (AIR 1973 SC 1461), (supra) rule of law is a basic structure of the Constitution apart from democracy.
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere.”(p.523 of SCR): (at p.2384 of AIR)”
And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.
39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms. Myriad may be, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein’s monster who may manipulate the system into elected despotism--instances of such phenomena are the tears of history. To that the retort may be that the Judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines,
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can call the bluff, quash the, action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National’ Parchment. Secondly, When a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra : (1958) SCR 308: (AIR 1957 SC 896) and Harishankar : (1955) 1 SCR 380: (AIR 1954 SC 465) discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused, certainly the Court has power to strike down the act. This is well-established and does not need further case law confirmation. Moreover it is useful to remember the warning of Chandrachud, J (at p.2465 of AIR 1975 SC):
But the electorate lives in the hope that a sacred power will not so flagrantly be abused and the moving finger of history warns of the consequences that inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of power.
40. The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which have held that Art. 324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Art. 324-provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao’s broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself. Broad authority does not bar scrutiny into specific validity of the particular order.
41. Our conclusion on this limb of the contention is that Art, 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out. 91. *** 1. ***
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2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provision but where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal’s adjudication. Following the said judgment, the Apex Court in the case of A.C. Jose Vs. Sivan Pillai and Others reported in (1984) 2 SCC 656, held as under:
4. Article 324 of the Constitution gives full powers to the Commission in matters of Superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and State Legislatures. It was argued that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder. In order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law
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enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Art. 324, otherwise the very object of Art. 324 would be defeated.
7. Another golden rule laid down by this Court on the interpretation of statutes is that we should so interpret the language of a Statute as to suppress the mischief and advance the object. It is true that Art. 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under Entry No. 72 in the Union List and Entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures. By no standards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures.
Again the Constitution Bench of the Apex Court in the matter of Special Reference 1 of 2002 reported in (2002) 8 SCC 237 at paragraph 76, has held as under: It is in light of the aforesaid discussion, Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e. the Election Commission. It appears that since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of no consequence to provide any period of limitation for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of Seventh Schedule of the Constitution, Parliament was given power subject to the provisions of
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the Constitution to make provisions with respect to matters relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article 328 read with Entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including preparation of electoral roll Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution. The word ‘election’ has been interpreted to include all the steps necessary for holding election. In Mohinder Singh. Gill v. Chief Election Commissioner (1978) 1 SCC 405: AIR 1978 SC 851), A.C. Jose v. Sivan Pillai and Ors. ( (1984) 2 SCC 656) and Kanhiya Lal Omar v. R.K. Trivedi and Ors., (1985) 4 SCC 628: AIR 1986 SC 111) it has been consistently held that Article 324 operates in the area left unoccupied by legislation and the words ‘superintendence, ‘control ‘direction’ as well as ‘conduct of all elections’ are the broadest of the terms. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may be, provided the same does not encroach upon the plenary powers of the Election Commission under Article 324.
(17) The Apex Court in the case of Election Commission of India Vs. State Bank of India, Patna & Ors. reported in : AIR 1995 SC 1078, dealing with the power of the Election Commission under Article 324 of the Constitution, in particular clause (6), has held as under:
We have already extracted clause (6) of Article 324 which empowers the Election Commission to request the President, or the Governor of the concerned State to make available such staff as may be necessary for it to carry out its duty under
262 “No voter to be left behind” clause (1). Such a provision was necessary for the obvious reason that since the Election Commission has to hold elections at intervals it is not required to maintain a huge staff at considerable expense to the exchequer and therefore the power to seek on request such staff as is necessary came to be engrafted in the constitution itself. (18) We assume that the powers of the Election Commission under Article 324 are plenary. Therefore, the Election Commission may issue any direction in the matter of conduct of elections. But the question is, in the garb of conduct of elections, can the Election Commission usurp the power not vested in it? This will depend on the under- standing of clause (6) of Article 324. For the conduct of elections when the Election Commission makes a request to the President or the Governor to make available the staff they are obliged to provide the services. What is the meaning of ‘such staff? According to Mr. Dushyant Dave we should refer to Article 310 which talks of a member of Civil Service (in contradistinction to Defence Service of the Union or the State), holding office during the pleasure (Durante bene placito) of President or the Governor. Obviously ‘such staff can only mean that staff which is under the control of the President or the concerned Governor and not any staff over which they do not exercise control It could mean only that staff on which the President or the Governor, as the case may be, would be in a position to exercise disciplinary powers should they refuse the President’s or Governor’s directive. Although the Constitution-makers did not say the Union or the State Governments but only the President or the Gover- nor, it is obvious they would have to act consistently with Articles 74(1)and 163(1), respectively. Therefore, on a request by the Election Commission the services of those Government servants who are appointed to public services and posts under the Central or State Governments will have to be made available for the purpose of election. When the Constitution came into force the services of these officers were readily available. Of course, there were also local authorities and the services of the employees of the local authorities were also available. That is why Section 159 of the 1951 Act provides that on request from the Regional Commissioner or the Chief Electoral Officer of the State, the local authority of the State shall make available to any Returning Officer such staff as may be necessary to carry out the duties in connection with an election.
(19) In the light of the aforesaid provisions and in the light of the judgment of the Apex Court, it is clear that the power conferred on the Election Commission under
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Article 324 of the Constitution is plenary in nature. It gives full power to the Com- mission in the matters of superintendence, direction and control of preparation of electoral rolls and also for the conduct of elections to the Parliament and the State Legislature. Merely being a creature of the Constitution, will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures. The Parliament has enacted the Representation, of the People Act, 1950 to provide the allocation of seats in and the delimitation of constituencies for the pur- pose of election to, the House of the People and the Legislatures of States, the qual- ifications of voter at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories and matters connected therewith. It provides for allocation of seats and delimitation of constituencies, appointment of chief electoral officers, district election officers, electoral registration officers. It also provides for preparation of electoral rolls for Parliamentary constituencies and Assembly constituencies and also for Council con- stituencies. It also provides for manner of filling seats in the Council of States to be filled by representatives of Union Territories.
(20) This Act of 1950 did not contain all the provisions relating to elections but merely provided for allocation of seats in and delimitation of constituencies for the purpose of election of the House of People and Legislatures of States, the qualifica- tions of the voter at such election and the preparations of electoral rolls. Provisions for the actual conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications for the membership of these Houses, the corrupt and illegal practices and other election offences, and the decision of election disputes were all left to be made in a subsequent measure. In or- der to provide for these provisions the Parliament enacted Representation of the Peo- ple Act, 1951. It provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and dis- putes arising out of or in connection with such elections. It provided for qualifications for membership of Parliament, State Legislatures, disqualifications for membership of Parliament and State Legislatures, disqualification for voting and notification of Gen- eral Elections. It also provides for administrative machinery for the conduct of elec-
264 “No voter to be left behind” tions, appointment of observers, returning officers. Further it provides for registration of political parties, nomination of candidates, candidates and their agents, general procedure at elections. It also provides for the Poll, counting of votes, multiple elec- tions, publication of election results and nominations, election expenses, free supply of certain material to candidates of recognized political parties, dispute regarding election, trial of election petition, appeal against the order in election petitions, etc.,
(21) Article 324 has to be read in the light of the constitutional scheme and the Representation of the People Act 1950 and 1951. They have to be read harmoni- ously. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may be, provided the same does not encroach upon the plenary powers of the Election Commission under Article 324 of the Constitution. If competent legislation is enacted as visualized in Article 327 and 328 of the Constitution the Commission cannot shake itself free from the enact- ed prescriptions. No one is an imperium in imperio in our constitutional order. The Commissioner cannot defy the law contained in Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system. It operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct’ of all elections’ are the broadest terms. x Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with conduct of elections, the Commission shall act in conformity with, not in violation of such provision. But where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Com- mission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Article 324 was enacted and the superinten- dence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e. the Election Commission.
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(22) Article 312 of the Constitution provides that Parliament may, by law, reg- ulate the recruitment and the conditions of service of persons appointed to the All India Services common to the Union and the States. In the absence of any provision in Article 312 similar to that included in Article 309, the Government of India was compelled to deal with many of these matters by means of non-statutory executive orders. The same was neither satisfactory nor quite justifiable. To provide the req- uisite statutory authority to enable the Government of India to carry on the day to day management of the two All India Services and also to take and promulgate decisions on matters relating to the recruitment and the conditions of service from time to time. All India Services Act, 1951 was enacted by the Parliament to regulate the recruitment and the conditions of service of person appointed to the All-India Services common to the Union and the States. It seeks to fill the constitutional lacuna without proceeding to incorporate any detailed provisions. The Act provides that recruitment and conditions of service of officers of the two All India Services shall be regulated by rules to be made by the Central Government in consultation with the Governments of the participating States. By virtue of power conferred under the said Act, the Administrative Service (Cadre) Rules 1954 was made. This Act and the Rules do not deal with the conduct of election either to the Parliament or to the Legislative Assemblies of the States. It only regulates the service conditions of per- sons appointed to All India Services common to Union and the States. The Indian Administrative Service Rules on which reliance is placed, is not the law relating to or in connection with elections. It has nothing to do with the elections. It regulates the service condition of the officers who are recruited under the Act. It prescribes the minimum tenure and also prescribes the procedure for transfer of such officers even before the completion of the minimum tenure. It does not deal with in any manner regarding their service during elections. Once the said law is not in any way con- nected with the elections, the question of Commission exercising its power under Article 324 in conformity with the said provision, would not arise. Once the said law is silent about how the services are to be utilized during elections, then Article 324 being a reservoir of power confers on the Election Commission power to pass such appropriate orders or issue such appropriate directions for conduct of free and fair election.
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(23) In the Constituent Assembly when the question of making the Election Com- mission an independent body was being debated, At page 905, Constituent Assem- bly Debates (Vol. 8), Dr. Ambedkar observed thus:
“But the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing Articles 289, 290 and so on, Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission.”
(24) The Constitution of our country ushered in a Democratic Republic for the free people of India. The founders of the Constitution took solemn case to devote a spe- cial chapter to Elections nitched safely in Part XV of the Constitution. Elections supply the Vis Viva to a democracy. It was, therefore deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitutions to be in complete charge of the entire electoral process commencing with the issue of the notification to the final declaration of the results. Election Commission in our democratic scheme is a central figure and a high functionary. As is clear from the Constituent Assembly debate, the superintendence, direction and control of the preparation of the electoral rolls and all elections to Parliament and the Legislatures of States was transferred to a body outside the executive to be called the Election Commission. Therefore, the Election Commission is a Constitutional authority and is a body outside the Executive. We have adult franchise and general elections as constitutional compulsions. The right of election is the very essence of the Constitution. The heart of the parliamentary sys- tem is free and fair election periodically held, based on adult franchise is the basic.
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The regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicature roles in the total scheme, directed towards holding of free elections are the species. The fairness of the Constitution took care of leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be raison d’etre for the opening clause in Article 327 and Article 328 of the Constitution which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area. Election Commission is insulated from ex- traneous influences and that cannot be achieved unless it has amplitude of powers in the conduct of elections in accordance with the existing laws. But where the law is absent, he must lawfully exercise his power independently, in all matters relating to the conduct of elections and see that the election process is completed properly and in a free and fair manner. Article 324 of the Constitution operates in areas left unoc- cupied by legislation and the words superintendence, direction and control as well as conduct of elections are the broadest terms. An express statutory grant of power or the imposition of a definite duty carries with it by implication in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. Implied pow- ers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must therefore be presumed to have been within the intention of the Constitutional or legislative grant.
(25) Clause (6) of Article 324 provides that for the conduct of elections when the Election Commission makes a request to the President or Governor to make avail- able the staff, they are obliged to provide the services. Such staff used in the said provision can only mean, that staff which is under the control of the President or the concerned Governor and not any other staff over which they do not exercise control. It can mean only the staff on which the President or the Governor as the case may be would be in a position to exercise disciplinary powers. Although the
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Constitution-makers did not say the Union or the State Governments but only the President or the Governor, it is obvious they would have to act consistently with Arti- cles 74(1) and 163(1), respectively. Therefore on a request by the Election Commis- sion, the services of those Government servants who are appointed to public services under Central or State Government will have to be made available for the purpose of election. Part IIA of the 1950 Act deals with officers. Section 13CC makes it clear that the officers referred to in the said Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission. Similarly Part IV of the 1951 Act, provides for administrative machinery for the conduct of elections. Section 28A in the said Part reiterates what is contained in Section 13CC of the 1950 Act and provides that the returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
(26) Therefore under the scheme of the Act, clause (6) of Article 324 of the Con- stitution, read with Section 13CC of 1950 Act and Section 28A of the 1951 Act, makes it clear that the Government officials who are under the control of the Govern- ment when they are deputed to the Election Commission for the purpose of conduct of elections, their deputation would commence on and from the date of notification calling for such election and ending with the date of declaration of the results of such election. There is no law passed by the Parliament or the State Legislature providing for such transfer or deputation or appointment during the period of General Election. When there is no Parliamentary legislation or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections. Once the area is not covered by any legislation, then Article 324 being a reservoir
269 “No voter to be left behind” of power, confers on the Election Commission power to pass such appropriate or- ders or issue such appropriate direction for conduct of free and fair election.
(27) It is by virtue of such power conferred on the Election Commission, it has issued directions to the State Government to make available the officers who in their opinion are needed for conduct of election. In obedience of the said direction issued, the Government has passed the impugned order of transfer. Though in the impugned order, the word ‘transfer’ is used, it is to be understood in the context in which it is passed. It is not a transfer which is governed by All India Services Rules framed under the All India Services Act, 1951. The said Rule does not provide for transfer of a person appointed to the All India Service, to the Election Commission during election. Therefore when the said law is silent about how the services are to be utilized during elections, the Election Commission has a free hand and if it requests or directs the Government, the Government is bound to honour the said request/direction. The Election Commission has not assigned any reasons why they are displacing these applicants. The Election Commission has no obligation to give reasons for opting for such officers. Similarly, they are under no obligation to give reasons why the person incumbent is not required. It is the matter of confidence the Election Commission has in a particular officer. Having regard to the number of days these persons are going to be displaced, there is no obligation cast on the Election Commission either to give reasons or point out in what circumstances these transfers are effected. It is made clear that when a Government servant is transferred on a direction issued by the Election Commission, the said direction is to be understood in the context of conducting free and fair election. It has no reflection on the integrity or character or the capacity or competence of the said person. It cannot, under any circumstances, be held against him. The apprehension of the applicants that in the eye of the public or otherwise, it may amount to stigma, is without any substance. The impugned order does not cast any stigma on the applicant. Once the election process is over, they will be reverted back to their original position and therefore they cannot have any grievance whatsoever. As the period during which the trans- fer will be in force is a very short period and the purpose of such transfer being to conduct free and fair election, the said action cannot be found fault with on any count. In the matter of election, when the ultimate responsibility is that of the Election Commission, being a Constitutional authority, they have onerous responsibility of
270 “No voter to be left behind” conducting free and fair election in order to preserve democracy in the country. It is to achieve the said object, for a limited period, the impugned order is passed.
(28) The argument that the Election Commission, even though they chose to req- uisition the services of these officers from the Government for election work and if they are to be transferred and posted before the expiry of the minimum tenure, they should make a request to the State Government, which in turn should make a request to the Committee to consider their case and make recommendation and then only they can be posted, holds no water. The said rule is not meant to deal with a situation where elections are announced to the Legislative Assembly. It is not a case of transfer. It is a case of deemed deputation. The said rule is silent and there- fore under Article 324 of the Constitution, the Commission has the power to issue directions to transfer and post the officials for the proper conduct of the elections.
(29) In the instant case, after preliminary preparations are made for conducting election, before issue of notification calling for the elections, the Election Commis- sion wanted these respondents-4 to 10 to be posted in place of applicants during the period of election. Once they are so posted, after the issue of notification, they are deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of results of such election and accordingly such officers shall, during that period are subject to control, superintendence and discipline of the Election Commission. Therefore the order passed by the Election Commission directing the State to post these officers in the place suggested by them would result in deemed deputation to the Election Commission for the aforesaid period. Once declaration of results of such election is announced, the said deputation comes to an end and at the end of the deputation,the officers are reverted back to their parent organization (previous post held by them).
(30) Unfortunately, the Tribunal proceeds on the assumption that there are no complaints against these persons and without complaint, a person cannot be trans- ferred and before such transfer is effected, the Rules have to be followed. In the first place, it is not a case of transfer. It is not a case of premature transfer. It is a case of deputation for a limited period and for a specific purpose of conducting elections.
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Therefore, the said Rules have no application. There is no obligation either on the part of the Election Commission or on the State Government to follow the Rules before effecting transfer or posting. Therefore there is no substance in the said con- tention as well. Under these circumstances, we pass the following order:
(a) Writ petitions are allowed.
(b) The impugned order passed by the Tribunal is hereby set aside.
(c) It is made clear that this order of transfer which is challenged by the applicants before the Tribunal is in the nature of deputation and deputation comes to an end the moment the results of the elections are announced. Consequently the deputationists would be reverted back to their original organization (previous post held by them) without any order from the State Government. (d) Parties to bear their own costs.
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JUDGMENT-14 SUPREME COURT OF INDIA
Civil Appeal No.5130 of 2013 (Arising out of SLP (C) No.21455 of 2008) (Decision dated 05/07/2013)
S. Subramaniam Balaji...... Appellant(s)
Versus
The Government of Tamil Nadu & Ors...... Respondent(s)
WITH TRANSFERRED CASE NO.112 OF 2011
S. Subramaniam Balaji...... Appellant(s)
Versus.
The Government of Tamil Nadu & Ors...... Respondent(s)
Constitution of India, 1950 – Article 14 - Equality before law - As long as the schemes announced in the election manifesto come within the realm of public pur- pose and moneys withdrawn by passing suitable Appropriation Bill they are in con- sonance with Article 14 of the Constitution.
R.P. Act, 1951 – S.123 – Corrupt practices - promises in the election manifesto do not constitute as a corrupt practice as long as the schemes come within the realm of public purpose.
Constitution of India – Article 324 – Election Commission may however frame guide- lines for issuing their manifestos as freebies influence people and disturbs level play- ing field.
Model Code of Conduct – Election Commission guidelines regarding manifestos will come into force even before announcement of election schedule by the Commission.
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SUMMARY
In the manifestos released by the two recognised State political parties in the State of Tamil Nadu, namely, Dravida Munnetra Kazhagam (DMK) and All India Anna Dra- vida Munnetra Kazhagam (AIADMK) during the general election to the Legislative Assembly of Tamil Nadu held in the year 2006, promises/offer of several articles to the electorate were made. The Appellant in the above referred cases, Shri S. Sub- ramanian Balaji, filed complaint seeking initiation of action in respect of the said promises on the ground that such promises of “freebies” amount to bribery within the meaning of section 123 (1) of the Representation of the People Act, 1951 and Section 171-B of the IPC.
He also filed two writ petitions Nos.9013 of 2006 and 1071 of 2007 before the Madurai Bench of the High Court of Madras challenging the propriety of the expens- es incurred by the State Govt. out of the State Exchequer for implementation of prom- ises of distribution of several household articles, such as, Colour Television Sets, etc. made in their election manifestos to woo the gullible electorate with an eye on their votes. It was alleged that this amounted to corrupt practice and was unauthorized, impermissible and ultra vires the Constitutional mandates. The Madras High Court by its Order dated 25.06.2007 dismissed both the writ petitions holding that the action of the State Govt. in distributing free Colour TVs could not be branded as a waste of public money.
The Appellant preferred an Appeal by way of SLP (C) No.21455 of 2008 before the Supreme Court being aggrieved by the Judgment passed by the Madurai Bench of the High Court of Madras in the said two writ petitions filed by the Appellant. During the pendency of the SLP, the schedule of next general election to the Tamil Nadu Legislative Assembly due in the year 2011 was announced.
Both the parties, DMK and AIADMK, again released their election mani- festos with a volley of promises of supply of articles like, grinders, mixies, electric fans, laptop computers, 4 gms gold thalis, Rs.50,000/- cash for women’s marriage, green houses, 20 kgs. Rice, etc. to the people if they come to power.
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The appellant separately filed a complaint dated 22.03.2011 before the Election Commission seeking initiation of action in respect of the above freebies as corrupt practices under Sec.123 of the R. P. Act, 1951 and requested to disqualify all such candidates on the ground that such promises amount to bribery within the meaning of section 123(1) of the 1951 Act and section 171-B of the IPC.
The Appellant also filed complaint before the Comptroller and Auditor General of In- dia and Accountant General of Tamil Nadu against the transfer of consolidated fund of the State for fulfilling the promises of freebies made in the election manifestos. The Appellant again challenged the promises of freebies by filing another Writ Petition No.17122 of 2011 on 19.07.2011, before the High Court of Judicature at Madras on the same ground that such promises are unauthorized, impermissible and ultra vires the Constitutional mandates.
The Hon’ble High Court directed the Commission to dispose of the representations made by the Petitioner.
The Commission informed the complainant/Appellant on the basis of the existing legal provisions that commission of a corrupt practice by a candidate under section 123(1) of R.P. Act, 1951 can be raised only before the High Court in an election pe- tition and such candidate can be disqualified only on being found guilty by the High Court and not otherwise. Likewise, any person committing the offence of bribery under section 171 (B) of IPC can be disqualified only on conviction by the competent court and not otherwise. It was also informed that declaration of public policy or promise of public action, is neither a corrupt practice nor electoral offence under proviso (b) to clause (2) of Section 123 of R.P. Act, 1951 and proviso to section 171B(1) and section 171C(2) of IPC. The Commission also conveyed its feeling that the promise of such freebies at government cost could disturb the level playing field and vitiate the electoral process and expressed its willingness to implement any directions or decision of the Court in this regard.
In the meantime, the petitioner filed a Transfer Petition No.112 of 2011 for transfer- ring the WP No.17122 of 2011 before the Madras High Court to the Apex Court. The Hon’ble Supreme Court allowed the transfer petition and tagged it with the pending SLP (C)No.21455 of 2008.
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The Supreme Court vide its judgment dated 5/7/2013 held that promises in the election manifesto do not constitute a corrupt practice under Sec.123 of the R.P. Act, 1951. It held that the Directive Principles of State Policy enshrined in the Constitution enjoin upon the State to frame various welfare measures for the citizens and therefore there can be no objection to the promise of such welfare mea- sures in election manifestos. As long as the schemes come within the realm of public purpose and moneys withdrawn by passing suitable Appropriation Bill, they are in consonance with Article 14 of the Constitution. The Supreme Court dismissed the petition de hors the jurisdiction issue raised verbally by the respondent State Govt. of Tamil Nadu at the time of hearing.
The Court, however, observed that even though framing of manifestos is the right of the political parties, it cannot overlook the undesirable impact of some of the promis- es and offers on the conduct of free and fair elections and maintaining level playing field for all political parties and candidates. It advised the political parties to avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.
Accordingly, it directed the Election Commission to frame guidelines with regard to the contents of election manifestos in consultation with all the recognized political parties. It also laid down the following guiding principles for framing of such guide- lines:-
(i) Although the law is obvious that the promises in the election manifesto can- not be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality can- not be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.
(ii) The fountainhead of the powers under which the Commission issues these orders is Article 324 of the Constitution which mandates the Commission to hold free and fair elections. The Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, has in the past been issuing instructions under the Model Code of Conduct.
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(iii) The fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission does not have the authority to regulate any act which is done before the announcement of the date of election. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process.
[Note: Pursuant to the Supreme Court’s above order, the Election Commission framed guidelines, in consultation with political parties, and inserted them as Part VIII of the Model Code of Conduct by its letter No.437/6/Manifesto/2013 dated 19-02-2014]
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JUDGMENT
Hon’ble P. Sathasivam, Judge
Hon’ble Ranjan Gogoi, Judge
Advocate for Appearing Parties : P.P. Malhotra, ASG, Arvind P. Datar and Shekhar Naphade, Sr. Advs., Abhay Kumar, Rupesh Kumar Pandey, Upendra Pratap Singh, Neetu Jain, Vineet Kumar Singh, Shubhangi Tuli, R. Rakesh Sharma, P. Krishna- moorthy, B. Balaji, Rachana Joshi Issar, D.K. Thakur, Sushma Suri, D.S. Mahra and Meenakshi Arora, Advs.
1) Leave granted.
(2) This appeal is directed against the final judgment and order dated 25.06.2007 passed by the Madurai Bench of the Madras High Court in Writ Peti- tion (C) Nos. 9013 of 2006 and 1071 of 2007 whereby the High Court dismissed the petitions filed by the Appellant herein.
(3) Brief Facts: (a) The case relates to distribution of free gifts by the political parties (popularly known as ‘freebies’). The Dravida Munnetra Kazhagam (DMK) - Respondent No. 8 herein, while releasing the election manifesto for the Assembly Elections 2006, an- nounced a Scheme of free distribution of Colour Television Sets (CTVs) to each and every household which did not possess the same, if the said party/its alliance were elected to power. The Party justified the decision of distribution of free CTVs for the purpose of providing recreation and general knowledge to the household women, more particularly, those living in the rural areas. In pursuance of the same, follow up actions by way of enlisting the households which did not have a CTV set and door to door identification and distribution of application forms were initiated.
(b) This Scheme was challenged by one S. Subramaniam Balaji-the Appellant herein, by way of filing writ petition before the High Court on the ground that the expenditure
278 “No voter to be left behind” to be incurred by the State Government for its implementation out of the State Exche- quer is unauthorized, impermissible and ultra vires the Constitutional mandates. The Appellant herein filed a complaint dated 24.04.2006 to the Election Commission of India seeking initiation of action in respect of the said promise under Section 123 of the Representation of People Act, 1951 (in short ‘the RP Act’). The Appellant herein also forwarded the complaint to the Chief Election Officer, Tamil Nadu.
(c) The DMK and its political allies emerged victorious in the State Assembly Elec- tion held in the month of May, 2006. In pursuit of fulfilling the promise made in the election manifesto, a policy decision was taken by the then government to pro- vide one 14” CTV to all eligible families in the State. It was further decided by the Government to implement the Scheme in a phased manner and a provision of Rs. 750 crores was made in the budget for implementing the same. A Committee was constituted, headed by the then Chief Minister and eight other legislative members of various political parties, in order to ensure transparency in the matter of imple- mentation of the Scheme.
(d) For implementing the first phase of the Scheme, the work of procurement of around 30,000 CTVs was entrusted to Electronic Corporation of Tamil Nadu Ltd. (EL- COT), a State owned Corporation. The first phase of the Scheme was implemented on 15/17th September, 2006 by distributing around 30,000 CTVs to the identified families in all the districts of the State of Tamil Nadu.
(e) Being aggrieved by the implementation of the Scheme, the Appellant herein filed another complaint to the Chief Secretary and the Revenue Secretary pointing out the unconstitutionality of the Scheme. He also preferred Writ Petition being Nos. 9013 of 2006 and 1071 of 2007 before the Madurai Bench of the High Court of Madras alleging the Scheme a corrupt practice to woo the gullible electorates with an eye on the vote bank. By order dated 25.06.2007, the High Court dismissed both the writ petitions filed by the Appellant herein holding that the action of the Government in distributing free CTVs cannot be branded as a waste of exchequer. Being aggrieved, the Appellant herein has preferred this appeal by way of special leave before this Court.
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Transferred Case (C) No. 112 of 2011(f) In the month of February 2011, pursuant to the elections to the Tamil Nadu State Assembly, the ruling party (DMK) announced its manifesto with a volley of free gifts. In the same manner, the opposite party-All In- dia Anna Dravida Munnetra Kazhagam (AIADMK) and its alliance also announced its election manifesto with free gifts to equalize the gifts offered by the DMK Party and promised to distribute free of cost the following items, viz., grinders, mixies, electric fans, laptop computers, 4 gms gold thalis, Rs. 50,000/- cash for women’s marriage, green houses, 20 kgs. Rice to all ration card holders even to those above the poverty line and free cattle and sheep, if the said party/its alliance were elected to power during the Tamil Nadu Assembly Elections 2011.
(g) The very same Scheme was also challenged by the Appellant herein on the ground that such promises by the parties are unauthorized, impermissible and ultra vires the Constitutional mandates. The Appellant herein also filed a complaint dated 29.03.2011 to the Election Commission of India seeking initiation of action in re- spect of the said Scheme under Section 123 of the RP Act.
(h) The AIADMK and its political allies won the State Assembly Elections held in 2011. In order to fulfill the promise made in the election manifesto, a policy decision was taken by the then government to distribute the gifts and, pursuant to the same, tenders were floated by the Civil Supplies Department for mixies, grinders, fans etc., as well as by ELCOT for lap top computers.
(i) On 06.06.2011, the Appellant herein filed another complaint to the Comptroller and Auditor General of India and the Accountant General of Tamil Nadu (Respon- dent Nos. 3 and 4 therein respectively) pointing out the unconstitutionality of the Scheme and transfer of consolidated funds of the State for the same. In the mean- while, the Appellant herein preferred a Writ Petition being No. 17122 of 2011 before the High Court of Madras alleging the Scheme a corrupt practice and to re- strain the government from in any way proceeding with the procurement, placement of tenders or making free distributions under various Schemes introduced to woo the voters. In view of the pendency of SLP (C) No. 21455 of 2008 in this Court relating to the similar issue, the Appellant preferred a Transfer Petition (C) No. 947 of 2011 before this Court praying for the transfer of the said writ petition. By order dated
280 “No voter to be left behind”
16.09.2011, this Court allowed the said petition and the same has been numbered as T.C No. 112 of 2011 and tagged with the abovesaid appeal.
(4) Heard Mr. Arvind P. Datar, learned senior Counsel for the Appellant/Peti- tioner, Mr. Shekhar Naphade, learned senior counsel for the State of Tamil Nadu, Mr. P.P. Malhotra, learned Additional Solicitor General for the Union of India and Ms. Meenakshi Arora, learned Counsel for the Election Commission of India.
(5) Prayer/Relief Sought For: (a) When DMK started distribution of CTVs, the Appellant/Petitioner herein ap- proached the High Court of Judicature at Madras, Bench at Madurai, by way of filing Writ Petition (C) No. 9013 of 2006 with a prayer to issue a writ of mandamus to forbear the Respondents therein from incurring any expenditure out of the public exchequer for the purchase and distribution of colour Televisions within the State of Tamil Nadu.
(b) After 5 years, when AIADMK elected to power, pursuant to their election man- ifesto, they started distributing various freebies, which was also challenged by the very same person - the Appellant/Petitioner herein by filing a writ petition being No. 17122 of 2011 before the High Court of Judicature at Madras praying for issuance of a writ to declare the free distribution of (i) grinders (ii) mixies (iii) electric fans (iv) laptop computers (v) 4 gm. Gold thalis (vi) free green houses (vii) free 20 kgs. Rice to all ration card holders even to those above the poverty line and (viii) free cattle and sheep ultra vires the provisions of Articles 14, 41, 162, 266(3) and 282 of the Constitution of India and Section 123(1) of the RP Act.
Contentions by the Appellant:
(6) Mr. Datar, learned senior counsel for the Appellant submitted that a “gift”, “offer” or “promise” by a candidate or his agent, to induce an elector to vote in his favour would amount to “bribery” under Section 123 of the RP Act. He further pointed out that to couch this offer/promise to give away a gift whose worth is estimable in money and that too from the consolidated fund of the State under the head “promise of publication” or “public policy” or “public good” is to defeat the
281 “No voter to be left behind” purposes of the above Section viz., Section 123(1) of the RP Act. While elaborating his submissions, Mr. Datar raised his objections under the following heads:
(I) Article 282 of the Constitution of India only permits defraying of funds from the Consolidated Fund of the State for “public purpose”;
(II) The distributions made by the Respondent-State is violative of Article 14 since there is no reasonable classification;
(III) Promises of free distribution of non-essential commodities in an election manifes- to amounts to electoral bribe under Section 123 of the RP Act;
(IV) The Comptroller and Auditor General of India has a duty to examine expendi- tures even before they are deployed; and
(V) Safeguards must be built into schemes to ensure that the distribution is made for a public purpose and is not misused.
(I) Article 282 of the Constitution of India only permits defraying of funds from the Consolidated Fund of the State for “public purpose”.
(7) Regarding the first contention relating to Article 282 of the Constitution of India which only permits use of monies out of the Consolidated Fund of the State for public purpose, it is useful to refer the said Article which reads as under:
282. Expenditure defrayable by the Union or a State out of its revenue - The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws.
(8) It is pointed out by Mr. Datar that under Article 266(3) of the Constitution, the monies out of the Consolidated Fund of India or the Consolidated Fund of the State can only be appropriated in accordance with law and for the purposes and in the manner provided by the Constitution. Under Article 162, the extent of the
282 “No voter to be left behind” executive power of the State is limited to the matters with respect to which the Leg- islature of the State has the power to make laws. Likewise, under Article 282, the Union or the States may make grants for “any public purpose”, even if such public purpose is not one with respect to which the State or the Union may make laws. By referring these Articles, Mr. Datar submitted that monies out of the Consolidated Fund of the State can only be appropriated for the execution of laws made by the State, or for any other “public purpose”.
(9) It is further pointed out that the State raises funds through taxation which can be used by the State only to discharge its constitutional functions. Taxpayers’ contribution cannot be used to fund State largesse. While the taxpayer has no right to demand a quid pro quo benefit for the taxes paid, he has a right to expect that the taxes paid will not be gifted to other persons without general public benefit. The main intention of an act done for a public purpose must be the public, and that the act would remotely, or in a collateral manner, benefit the local public is not relevant at all.
(10) According to Mr. Datar, the most important constitutional mandate is that a “public purpose” cannot be the one that results in the creation of private assets. The exceptions that can be made to this overarching principle are the distributions that fulfill an essential need such as food, clothing, shelter, health or education. Even if certain distributions, such as the distribution of televisions might have some public benefit, it would not amount to public purpose since the dominant purpose of such a distribution is only the creation of private assets. Where the purposes of the expen- diture are partly public and partly private, the Courts in the US have held that the entire act must fail. (vide Coates v. Campbell and Ors. 37 Minn. 498).
(11) While statutory authorities can confer social or economic benefits on par- ticular sections of the community, their power is limited by the principle that such benefits must not be excessive or unreasonable. As Lord Atkinson stated in Roberts v. Hopwood and Ors. 1925 AC 578, the State cannot act in furtherance of “eccentric principles of socialistic philanthropy”. In view of the above, a reference was also made to Bromley London Borough Council, London v. Greater Council and Anr. 1982 (2) WLR 62and R v. Secretary of State for Foreign Affairs (1995) 1 All ER 611.
283 “No voter to be left behind”
(12) In this context, it is pointed out that Article 41 of the Constitution of India states that the State, “within its economic capacity and development” can make effective provision for securing “public assistance” in certain special cases. Article 39(b) states that the State shall endeavour to ensure that the “material resources” of the community are so distributed as best to subserve the “common good”. Both these articles imply that the goal of the Constitution, as evidenced by these Directive Princi- ples, is to ensure that the State distributes its resources to secure “public assistance” and “common good”, and must not create private assets.
(13) It is also pointed out that the Constitutions of 17 States of the US explicitly prohibit the making of private gifts by the Government, and it is recognized even elsewhere in the US that the public funds cannot be used to make gifts to private persons.
(14) It is further stated that the spending on free distribution must be weighed against the public benefits that ensue from it and only if the public benefits outweigh the same, can the spending be classified as being for a public purpose. Mr. Datar asserted that when the literacy rate in the State of Tamil Nadu is around 73% and there are 234 habitations across the State with no school access whatsoever, distri- bution of free consumer goods to the people having ration cards cannot be justified as “public purpose”.
(15) In addition to CTVs by the previous Government, the following free distribu- tions have been promised by the Government of Tamil Nadu in the Budget Speech for the year 2011-2012:
1. 60,000 green houses, at a cost of Rs. 1.8 lakhs per house, totally amounting to Rs. 1080 crores. The green houses are being supplied to persons below the pov- erty line residing in rural areas. However, they are being supplied to persons who already own 300 sq. Ft. of land.
Comment by the Appellant:
The State is creating private assets through this distribution, when it can, instead
284 “No voter to be left behind” build houses owned by the State which can be occupied by eligible persons. 2. 4 gms of gold for poor girls for thali, plus Rs. 50000 cash for wedding purposes, totally amounting to Rs. 514 crores.
Comment by the Appellant:
The State can achieve the same end of subsidizing marriages by providing institu- tions such as mandaps and temples that can be used for marriage. There are no safeguards in any scheme proposed by the State to ensure that Rs. 50,000 given in cash to the eligible beneficiaries will be used for the marriage, and not diverted for other purposes.
3. Free mixies, grinders and fans for 25 lakh families, totally amounting to Rs. 1250 crores.
Comment by the Appellant:
The reasons given by the State, of alleviating women of “domestic drudgery” are frivolous and do not amount to a “public purpose”. Mixies, grinders and fans are luxuries and cannot be freely distributed by the Government. The distribution is being made to a large section of persons without even ascertaining whether the per- sons already own these goods and whether they require state assistance to acquire these goods.
4. 9.12 lakh laptops to all class XII students in Tamil Nadu amounting to Rs. 912 crores.
Comment by the Appellant:
No “public purpose” is served by such distribution. The State is duty bound to create computer labs in schools and colleges and not distribute such expensive articles as gifts. Classification of students eligible for the laptops suffers from over classification, violative of Article 14 of the Constitution. The classification is also violative of Article 14 as it omitted certain categories of students.
285 “No voter to be left behind”
5. Free cattle to poor families in certain rural areas, Rs. 56 crores. Distribution of milch cows is being done, according to the State’s Government Order, to “boost the productivity of milk in the State.”
Comment by the Appellant:
It is stated that the State does run a diary, and the constitutionally valid method to boost milk production is to spend on these institutions and not to create private assets under these Government Orders.
6. Free rice to 1.83 crore families under the PDS system, amounting to Rs. 4500 crores.
Comment by the Appellant:
Rice is already being distributed in the State at Rs. 2 per kilo. Under this scheme, rice is being distributed free of cost, as a pure populist measure. As per the State’s own submissions, rice is priced at Rs. 2 under the Antyodaya Anna Yojana, which is being followed throughout the country.
(16) Mr. Datar, learned senior counsel for the Appellant pointed out that the Constitution of India does not permit free distribution of goods such as colour televi- sions, mixies, grinders, laptops since these are consumer goods and only benefit the persons to whom they are distributed and not the public at large. Public spending on these goods to the tune of Rs. 9000 crores far outweighs any public benefit that might arise from such distributions. When the same ends can be efficiently achieved without the creation of private assets, such as the creation of Community Computer Centers instead of distributing laptops, or setting up of Community Televisions at the Panchayat level resorting to make large scale free distribution, it clearly violate Ar- ticles 162, 266(3) and 282 of the Constitution. It is further pointed out that the fact that CTVs and other schemes of previous Government were cancelled by the present Government shows that these were not for “public purpose” but only to serve the political objectives of a particular party.
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II. The distributions made by the Respondent fall foul of Article 14 since there is no reasonable classification
(17) The right to equality under Article 14 of the Constitution requires that the State must make a reasonable classification based on intelligible differentia, and such classification must have a nexus with the object of the law. In making free dis- tributions, the State, therefore, must show that it has identified the class of persons to whom such distributions are sought to be made using intelligible differentia, and that such differentia has a rational nexus with the object of the distribution. As held in Union of India and Anr. v. International Trading Co. and Anr. 2003 (5) SCC 437, Article 14 applies to matters of government policy and such policy or action would be unconstitutional if it fails to satisfy the test of reasonableness.
(18) This Court, in K.T. Moopil Nair v. State of Kerala AIR 1961 SC 552, held that a statute can offend Article 14 if it groups together persons who are dissimilar. In that case, a flat tax of Rs. 2 per acre was levied on land without ascertaining the income earning potential of such land, which was struck down as unconstitutional.
(19) In the case on hand, the colour televisions, mixies and grinders were being distributed to all persons having ration card. While the distribution of these goods is supposedly being made to help people who cannot afford these items, the State has not made any attempt to find out if such persons already own a colour television, a mixie or a grinder. Further, the differentia of a ration card has no rational nexus with the object of free distribution of the items since a ration card does not indicate the income of the family or whether they already own these goods.
(20) Similarly, in another Scheme, the State has promised to distribute free lap- tops to all the students studying in the State Board. Again, this classification is ar- bitrary since there are numerous similarly placed students in Central Board schools who were being excluded by this Scheme. The Scheme also excludes commerce, law and medical college students and violates Article 14 by not providing intelligi- ble differentia having a nexus with such distribution.
III. Promises of free distribution of non-essential commodities in election manifesto amounts to an electoral bribe under Section 123 of the RP Act.
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(21) Under Section 123(1)(A) of the RP Act, any “gift, offer or promise” by a candidate or his agent or by any other person, with the object of inducing a person to vote at an election amounts to “bribery”, which is a “corrupt practice” under the said section. The key element in this section is that the voter must be influenced to vote in a particular manner. It has been held in Richardson-Garnder v. Ekykn (1869) 19 LT 613 that the making of charitable gifts on an extensive scale would lead to an inference that this was made to influence voters.
(22) Mr. Datar pointed out that the plea that promises in the manifesto do not amount to bribery is completely baseless and finds no support in the plain words of the statute or in decided case laws. The statute very clearly includes a “promise” within its ambit, and an unconstitutional promise clearly falls foul of the language of Section 123 of the RP Act. Such ‘freebies’ are in form part of an election manifesto but in substance is a bribe or inducement under Section 123. If such practices are permitted, then the manifesto does indirectly what a candidate cannot do directly.
(23) It is further pointed out that the promise of distribution was made at the time of elections and not after, and instead of focusing on basic necessities, it was on free distributions which indicates that the promise of free colour televisions, grinders, mixies, laptops, gold etc., was only made as an electoral bribe to induce voters.
(24) Mr. Datar further pointed out that the intent of Section 123 of the RP Act is to ensure that no candidate violates the level playing field between the candidates. Therefore, whether such promises are made by the political party or by the candi- date himself is irrelevant. The manifesto, where such illegal promises are made, implore the voters to vote for that particular party.
IV. The Comptroller and Auditor General of India has a duty to examine expendi- tures even before they are deployed.
(25) The Comptroller and Auditor General of India is a constitutional functionary appointed under Article 148 of the Constitution. His main role is to audit the income and expenditure of the Government, Government bodies and state-run corporations. The extent of his duties is listed out in the Comptroller and Auditor General’s (Duties,
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Powers etc.) Act, 1971. Section 13 of this Act states that the CAG shall audit all the expenditure from the Consolidated Fund of India, and of each State, and ascertain whether the moneys so spent were “legally available for and applicable to the ser- vice of purpose to which they have been applied or charged.”
(26) Section 15 of the Act states that where grants and loans have been given for any specific purpose to any authority or body other than a foreign state or an inter- national organization, the CAG has the duty to scrutinize the procedure by which the loan or grant has been made.
(27) The language of the provision suggests that the role of CAG is limited to review. However, this would rob the CAG of the power to ensure that large-scale un- authorized spending of public funds, such as these free distributions, does not take place. The Section must be given purposive interpretation that would further its intent to ensure that the government’s spending is only on purposes that are legally allow- able. The Chancery Division has held in Kingston Cotton Mills Company Re [1896] 2 Ch 279 that an auditor is a “watchdog”. To perform his role as a watchdog, the CAG must be vigilant, watch for any large-scale illegal expenditures, and act upon them immediately.
V. Safeguards must be built into schemes to ensure that the distribution is made for a public purpose, and is not misused.
(28) The Members of Parliament Local Area Development Scheme (MPLADS) was challenged before this Court in Bhim Singh v. Union of India and Ors. (2010) 5 SCC 538 wherein the Constitution Bench of this Court upheld the scheme on the grounds that there were three levels of safeguards built into the scheme to ensure that the funds given to the Members of Parliament would not be misused.
This Court held as under:
8) The court can strike down a law or scheme only on the basis of its vires or unconstitutionality but not on the basis of its viability. When a regime of accountability is available within the Scheme, it is not proper for the Court to
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strike it down, unless it violates any constitutional principle.
9) In the present Scheme, an accountability regime has been provided. Efforts must be made to make the regime more robust, but in its current form, cannot be struck down as unconstitutional.
(29) The MPLAD Scheme clearly had prohibitions against spending on the creation of private assets and to make loans. It is pointed out that there is no scheme of ac- countability in the above mentioned promises for free distributions, hence, learned senior counsel prayed for necessary guidelines for proper utilization of public funds.
Contentions by the Respondents:
Contentions of the State of Tamil Nadu:
(30) On the other hand, Mr. Shekhar Naphade, learned senior counsel for the State of Tamil Nadu while disputing the above claim submitted that the freebies, as promised in the election manifesto, would not come under the head “corrupt practic- es” and “electoral offences” in terms of the RP Act. He further submitted that in view of the mandates in the Directives Principles of State Policy in Part IV of the Constitu- tion, it is incumbent on the State Government to promote the welfare of the people, who are below the poverty line or unable to come up without their support. In any event, according to learned senior counsel, for every promise formulated in the form of election manifesto, after coming to power, the same were being implemented by framing various schemes/guidelines/eligibility criteria etc. As well as with the approval of legislature. Thus, it cannot be construed as a waste of public money or prohibited by any Statute or Scheme.
(31) While elaborating his submissions, Mr. Shekhar Naphade replied for the contentions made by the Appellant under the following heads:
(I) Political Parties are not State, therefore, not amenable to writ jurisdiction of the High Court under Article 226 or writ jurisdiction of the Supreme Court under Article 32 of the Constitution of India or any other provisions of the Constitution. For corrupt practices, the remedy is Election Petition.
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(II) Non-application of Vishaka principle and the difficulties in implementing the di- rections, if any, that may be issued by this Court.
(III) Promises of political parties do not constitute a corrupt practice.
(IV) The Schemes under challenge operate within the parameters of public purpose and Article 14 of the Constitution has no role to play.
(I) Political Parties are not State, therefore, not amenable to the writ jurisdiction of the High Court under Article 226 or the writ jurisdiction of the Hon’ble Supreme Court under Article 32 of the Constitution of India or any other provisions of the Constitu- tion. For corrupt practices, the remedy is an Election Petition.
(32) Learned senior counsel submitted that a political party is not a statutory Corporation. Similarly, a political party is also not a Government. It is also not an instrumentality or agency of the State. None of the parameters laid down by several judgments of this Court for identifying an agency or instrumentality of the State apply to a political party and, therefore, no political party can be considered as a State or any agency or instrumentality of the State, hence, no writ can lie against a political party. [vide Federal Bank Ltd. v. Sagar Thomas and Ors. (2003) 10 SCC 733.
(33) Further, learned senior counsel put forth that it is the claim of the Appellant that the promises like giving colour TVs, mixer-grinders, laptops etc. Constitute a corrupt practice and, therefore, must vitiate an election. If the promise of the above nature is a corrupt practice, then the only remedy for the Appellant is to file an Elec- tion Petition under Section 80, 80A read with other provisions of the RP Act. Under Section 81, such an Election Petition must be filed within 45 days from the date of the election. In the petition, the Appellant must set out clearly and specifically the corrupt practice that he complains of and also set out as to how the returned candi- date or his agent has committed the same or has connived at the same. An election Petition is to be tried on evidence and therefore, the writ petition is not a remedy.
(II) Non-application of Vishaka principle and the difficulties in implementing the directions, if any, that may be issued by this Court.
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(34) It was submitted that Entry 72 of List-I of the VIIth Schedule to the Constitu- tion of India deals with election to Parliament and State Legislative Assemblies. In exercise of this power, the Parliament has enacted the RP Act. The Act, as originally enacted, did not contain any provision relating to corrupt practice as contained in Section 123. Section 123 defines and enumerates “corrupt practices” exhaustively. Section 123 came as a result of recommendations of the Select Committee of the Parliament on the basis of which the said Act was amended by substituting Chapter 1 in Part VII of the Act by Act No. 27 of 1956. The Legislature has dealt with the subject of corrupt practice and it is not a case of legislative vacuum. The field of cor- rupt practice is covered by the provisions of the said Act. Once the Legislature has dealt with a particular topic, then the Vishaka principle (Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241) has no applicability. This Court, in Vishaka (supra)and Aruna Ramachandra Shanbaug v. Union of India and Ors. (2011) 4 SCC 454 and other cases has clearly held that if on a given topic there is no law enacted by a competent legislature, then this Court has power to issue directions under its inherent powers under Article 142 and 141 of the Constitution and the said directions would operate and bind all concerned till the competent Legislature enacts a law on the concerned subject. Whether the present provisions of the said Act are adequate or not is a matter for the Parliament and the Parliament alone to decide. This Court, in exercise of powers under Article 141 and 142 or under any other provision of law, cannot issue a direction to include any practice not specified as corrupt practice under the Act as Corrupt Practice.
(35) Further, learned senior counsel emphasized on the difficulties to implement the guidelines, if any, framed by this Court by referring to previous cases, viz., Union of India v. Association for Democratic Reforms and Anr. (2002) 5 SCC 294 and People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399.
(III) Promises of political parties do not constitute a corrupt practice.
(36) Learned senior counsel submitted that inasmuch as the words mentioned in Section 123 of the Act are clear and unambiguous, the same should be interpreted in the same manner as stated therein. Section 123 of the RP Act is a penal statute
292 “No voter to be left behind” and ought to be strictly construed. It is settled principle of law that an allegation of “corrupt practice” must be strictly proved as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices. In M.J. Jacob v. A. Narayanan and Ors. (2009) 14 SCC 318, it has been held by this Court in paras 13 and 15 as under:
13. It is well settled that in an election petition for proving an allegation of corrupt practice the standard of proof is like that in a criminal case. In other words, the allegation must be proved beyond reasonable doubt, and if two views are possible then the benefit of doubt should go to the elected candidate vide Manmohan Kalia v. Yash, vide SCC p. 502, para 7 in which it is stated:
7...It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.
15. In Surinder Singh v. Hardial Singh vide SCC p. 104, para 23 it was observed:
23...It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials.
(37) In Baldev Singh Mann v. Surjit Singh Dhiman (2009) 1 SCC 633, this Court observed as under:
19...The law is now well settled that the charge of a corrupt practice in an election petition should be proved almost like the criminal charge. The standard of proof is high and the burden of proof is on the election Petitioner. Mere preponderance of probabili- ties is not enough, as may be the case in a civil dispute. Allegations of corrupt practices should be clear and precise and the charge should be proved to the hilt as in a criminal trial by clear, cogent and credible evidence.
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21. The Court in a number of cases has held that the charge of corrupt practice is qua- si-criminal in character and it has to be proved as a criminal charge and proved in the court. In Jeet Mohinder Singh case the Court observed as under:
(ii) Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also of his be- ing disqualified to contest an election for a certain period. It may entail extinction of a person’s public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence avail- able to the person charged. The charge shall have to be proved to the hilt, the standard of proof being the same as in a criminal trial.
(38) It is further submitted that the manifesto of the political party in question promises to achieve a social order removing economic inequalities, attain a social plane and attempts to reduce the degradations existing in our society where only a certain class of people are elevated and entitled to economic upliftment. The man- date for social and economic transformation requires that material resources or their ownership and control be so distributed as to subserve the common good.
(39) In Samatha v. State of A.P. and Ors. (1997) 8 SCC 191, in paras 76 and 79, it has been held as under:
76. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity. Law as a social engineering is to create just social order removing inequalities in social and economic life, socio-economic disabilities with which poor people are languishing by providing positive opportunities and facilities to individuals and groups of people. Dr B.R. Ambedkar, in his closing speech in the Constituent Assembly on 25-11-1949, had lucidly elucidated thus:
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...What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th January, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political de mocracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.
(Vide B. Shiva Rao’s The Framing of India’s Constitution: Select Documents, Vol. IV, pp. 944-45.)
79. It is necessary to consider at this juncture the meaning of the word “socialism” envisaged in the Preamble of the Constitution. Establishment of the egalitarian social order through rule of law is the basic structure of the Constitution. The Fundamental Rights and the Directive Principles are the means, as two wheels
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of the chariot, to achieve the above object of democratic socialism. The word “socialist” used in the Preamble must be read from the goals Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate articles seek to establish, i.e., to reduce inequalities in income and status and to provide equality of opportunity and facilities. Social justice enjoins the Court to uphold the Government’s endeavour to remove economic inequalities, to provide decent standard of living to the poor and to protect the interests of the weaker sections of the society so as to assimilate all the sections of the society in a secular integrated socialist Bharat with dignity of person and equality of status to all.
(40) In Bhim Singh (supra), a Constitution Bench of this Court observed as under:
58. The above analysis shows that Article 282 can be the source of power for emergent transfer of funds, like the MPLAD Scheme. Even otherwise, the MPLAD Scheme is voted upon and sanctioned by Parliament every year as a scheme for community development. We have already held that the scheme of the Constitution of India is that the power of the Union or State Legislature is not limited to the legislative powers to incur expenditure only in respect of powers conferred upon it under the Seventh Schedule, but it can incur expenditure on any purpose not included within its legislative powers. However, the said purpose must be “public purpose”. Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the legislature and not in court.
95. This argument is liable to be rejected as it is not based on any scientific analysis or empirical data. We also find this argument a half-hearted attempt to contest the constitutionality of the Scheme. MPLADS makes funds available to the sitting MPs for developmental work. If the MP utilises the funds properly, it would result in his better performance. If that leads to people voting for the incumbent candidate, it certainly does not violate any principle of free and fair elections.
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96. As we have already noted, MPs are permitted to recommend specific kinds of works for the welfare of the people i.e. Which relate to development and building of durable community assets (as provided by Clause 1.3 of the Guidelines). These works are to be conducted after approval of relevant authorities. In such circumstances, it cannot be claimed that these works amount to an unfair advantage or corrupt practices within the meaning of the Representation of the People Act, 1951. Of course such spending is subject to the above Act and the Regulations of the Election Commission.
(IV) The Schemes under challenge operate within the parameters of public purpose and Article 14 of the Constitution has no role to play.
(41) The argument of the Appellant that giving of colour TVs, laptops, mixer-grind- ers etc. On the basis of the manifesto of the party that forms the Government is not an expense for a public purpose. This argument is devoid of any merit according to learned senior counsel for the State of Tamil Nadu. It was submitted that the concept of State Largesse is essentially linked to Directive Principles of State Policy. Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to de- cide. The Preamble to the Constitution recognizes Socialism as one of the pillars of Indian Democracy. The preamble has been held to be a part of the Constitution by a catena of judgments including Keshavanand Bharati v. State of Kerala (1973) 4 SCC 1461. The State largesse is directly linked to the principle of Socialism and, therefore, it is too late in the day for anybody to contend that the Government giv- ing colour TVs, laptops, mixer-grinders, etc. That too to the eligible persons as pre- scribed by way of Government Order is not a public purpose. For the same reasons, it must be held that it is a part of Government function to take measures in connection with Government largesse.
(42) It is further submitted that the political parties in their election manifesto promised to raise the standard of living of the people and to formulate a scheme/ policy for the upliftment of the poor. The distribution of basic necessities in today’s time like TVs, mixers, fans and laptops to eligible persons fixing parameters, can by no stretch of imagination be said to be State largesse.A three-Judge Bench of this
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Court in Deepak Theatre, Dhuri v. State of Punjab and Ors. 1992 Supp (1) SCC 684, held as under:
5. Witnessing a motion picture has become an amusement to every person; a reliever to the weary and fatigued; a reveller to the pleasure seeker; an imparter of education and enlightenment enlivening to news and current events; disseminator of scientific knowledge; perpetuator of cultural and spiritual heritage, to the teeming illiterate majority of population. Thus, cinemas have become tools to promote welfare of the people to secure and protect as effectively as it may a social order as per directives of the State policy enjoined under Article 38 of the Constitution. Mass media, through motion picture has thus become the vehicle of coverage to disseminate cultural heritage, knowledge, etc. The passage of time made manifest this growing imperative and the consequential need to provide easy access to all sections of the society to seek admission into theatre as per his paying capacity.
(43) The grievance of the Appellant is that the public resources are being used for the benefit of individuals. According to learned senior counsel for the Respondent, this argument is completely misconceived. It was submitted that in catena of cases, this Court has held that while judging the constitutional validity of any law or any State action, the Directive Principles of the State Policy can be taken into account. Article 38 contemplates that the State shall strive to promote the welfare of the peo- ple. Article 39 contemplates that the State shall take actions to provide adequate means of livelihood and for distribution of material resources of the community on an egalitarian principle. Article 41 contemplates that the State shall render assistance to citizens in certain circumstances and also in cases of undeserved want. Article 43 directs that the State shall “endeavour to secure to all workers, by suitable legislation or economic organisation or any other way to ensure decent standard of life and full enjoyment of leisure and social and cultural opportunities to the workers”. Similarly, Article 45 contemplates that the State shall endeavour to provide early childhood care and education to all children below the age of 6 years and Article 46 says that the State shall promote educational and economic interests of the weaker sections of the people. Article 47contemplates that the State shall take steps to raise the level of nutrition and the standard of living. The concept of livelihood and standard of
298 “No voter to be left behind” living are bound to change in their content from time to time. This Court has dealt with the concept of minimum wage, the fair wage and the living wage while dealing with industrial disputes and has noted that these concepts are bound to change from time to time. What was once considered to be a luxury can become a necessity. The concept of livelihood is no longer confined to a bare physical survival in terms of food, clothing and shelter, but also now must necessarily include some provision for medicine, transport, education, recreation etc. How to implement the directive principles of State Policy is a matter within the domain of the Government, hence, the State distributing largesse in the form of distribution of colour TVs, laptops, mix- er-grinders etc. To eligible and deserving persons is directly related to the directive principles of the State Policy.
(44) The other facet of the argument is that this largesse is distributed irrespective of the income level and, therefore, violative of Article 14 as unequals are treated equally. Learned senior counsel submitted that this principle of not to treat unequals as equals has no applicability as far as State largesse is concerned. This principle applies only where the law or the State action imposes some burden on the citizen either financial or otherwise.
(45) Article 14 essentially contemplates equality in its absolute sense and classifica- tion can be taken recourse to if the State is unable or the State policy does not con- template the same benefit or treatment to people who are not similarly situated. It is the philosophical sense decoded by this Court in the first part of Article 14 which is equal treatment for all without any distinction. This is the concept of formal equality which is not necessarily an antithesis to Article 14. The concept of equality based on classification is proportional equality. The formal equality applies when the State is in a position to frame a scheme or law which gives the same benefit to all without any distinction and the proportional equality applies when the State frames a law or a Scheme which gives benefit only to people who form a distinct class. It is in the case of proportional equality that the principles of intelligible differentia having rea- sonable nexus to the object of legislation gets attracted. Article 14 does not prohibit formal equality. The Directive Principles of State Policy save proportional equality from falling in foul with formal equality contemplated by Article 14.
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Contentions of the Union of India, CAG and Election Commission:
(46) Mr. P.P. Malhotra, learned ASG also reiterated the stand taken by learned senior counsel for the State. It is the stand of the CAG that they have no role at this juncture, particularly, with reference to the prayer sought for. Ms. Meenakshi Arora, learned Counsel for the Election Commission of India submitted that with the existing provisions in the RP Act, Election Commission is performing its duties, however, if this Court frames any further guidelines, they are ready to implement the same.
(47) We have carefully considered the rival contentions, perused the relevant provisions, various Government orders, guidelines and details furnished in the counter affidavit. The following points arise for consideration:
Points for Consideration:
(i) Whether the promises made by the political parties in the election manifesto would amount to ‘corrupt practices’ as per Section 123 of the RP Act?
(ii) Whether the schemes under challenge are within the ambit of public purpose and if yes, is it violative of Article 14?
(iii) Whether this Court has inherent power to issue guidelines by application of Vishaka principle?
(iv) Whether the Comptroller and Auditor General of India has a duty to examine expenditures even before they are deployed?
(v) Whether the writ jurisdiction will lie against a political party?
Discussion:Issue No. 1
Whether the promises made by the political parties in their election manifestos would amount to ‘corrupt practices’ as per Section 123 of the Representation of the People Act, 1951?
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(48) Before going into the acceptability or merits of the claim of the Appellant and the stand of the Respondents, it is desirable to reproduce certain provisions of the RP Act. Part VII of the RP Act deals with “corrupt practices” and “electoral offences” which was brought into force with effect from 28.08.1956. Chapter I of Part VII deals with “corrupt practices”.
Section 123 is the only Section relevant for our purpose which reads thus:
123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) “Bribery”, that is to say-
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as, or [to withdraw or not to withdraw] from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to-
(i) a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-
(a) by a person for standing or not standing as, or for [withdrawing or not withdrawing] from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or
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refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate [to withdraw or not to withdraw] his candidature.
Explanation.- For the purposes of this clause the term” gratification” is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the
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consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation.- For the purposes of this clause,” sati” and” glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987.
(4) The publication by a candidate or his agent or by any other Person, [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.
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(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, [or the use of such vehicles or vessel for the free conveyance] of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under Sub-section (1) of Section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt, practice under this clause.
Explanation.- In this clause, the expression” vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) The incurring or authorizing of expenditure in contravention of Section 77.
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person [with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the Government and belonging to any of the following classes, namely:
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(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and]
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported dis harge of his official duty, makes any arrangements or provides any, facilities or does any other act or thing for to or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.
(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.
(8) Booth Capturing by a candidate or his agent or other person.
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Explanation.- (1) In this Section the expression” agent” includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election if he acts as an election agent of that candidate.
(3) For the purposes of Clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a erson in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date.]
(4) For the purposes of Clause (8),” booth capturing” shall have the same meaning as in Section 135A.
(49) Keeping the parameters fixed in the above Section, we have to analyze the claim of both the parties hereunder. A perusal of Sub-sections 1-8 of Section 123 makes it clear that it speaks only about a candidate or his agent or any other person. There is no word about political parties. Taking note of the conditions mandated in those Sub-sections, let us test the respective stand of both the parties.
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(50) For deciding the issue whether the contents of the political manifesto would constitute a corrupt practice under Section 123 of RP Act, it is imperative to refer to the intention of the legislature behind incorporating the respective section. The pur- pose of incorporating Section 123 of the RP Act is to ensure that elections are held in a free and fair manner.
(51) The object of provisions relating to corrupt practices was elucidated by this Court in Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors. (2001) 3 SCC 594 as follows:
14...Fair and free elections are essential requisites to maintain the purity of election and to sustain the faith of the people in election itself in a democratic set up. Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character. Hence those indulging in corrupt practices at an election cannot be spared and allowed to pollute the election process and this purpose is sought to be achieved by these provisions con- tained in the RP Act.
(52) With this background, let us analyze the contention of the Appellant. The gist of Appellant’s argument is that promises of freebies such as colour TVs, mixer-grind- ers, laptops, etc., are in form part of an election manifesto of a political party but in substance is a bribe or inducement under Section 123. Thus, it is the stand of the Appellant that the promise of this nature indeed induces the voters thereby affecting the level playing field between the candidates, which in turn disrupts free and fair election. Therefore, the Appellants suggested for construing the promises made in the election manifesto as a corrupt practice under Section 123 of RP Act. He mainly relied on the principle that one cannot do indirectly what it cannot do directly.
(53) As appealing this argument may sound good, the implementation of this suggestion becomes difficult on more than one count. Firstly, if we are to declare that every kind of promises made in the election manifesto is a corrupt practice, this will be flawed. Since all promises made in the election manifesto are not necessarily promising freebies per se, for instance, the election manifesto of a political party promising to develop a particular locality if they come into power, or promising
307 “No voter to be left behind” cent percent employment for all young graduates, or such other acts. Therefore, it will be misleading to construe that all promises in the election manifesto would amount to corrupt practice. Likewise, it is not within the domain of this Court to leg- islate what kind of promises can or cannot be made in the election manifesto.
(54) Secondly, the manifesto of a political party is a statement of its policy. The question of implementing the manifesto arises only if the political party forms a Gov- ernment. It is the promise of a future Government. It is not a promise of an individual candidate. Section 123 and other relevant provisions, upon their true construction, contemplate corrupt practice by individual candidate or his agent. Moreover, such corrupt practice is directly linked to his own election irrespective of the question whether his party forms a Government or not. The provisions of the RP Act clearly draw a distinction between an individual candidate put up by a political party and the political party as such. The provisions of the said Act prohibit an individual candidate from resorting to promises, which constitute a corrupt practice within the meaning of Section 123 of the RP Act. The provisions of the said Act place no fetter on the power of the political parties to make promises in the election manifesto.
(55) Thirdly, the provisions relating to corrupt practice are penal in nature and, therefore, the rule of strict interpretation must apply and hence, promises by a politi- cal party cannot constitute a corrupt practice on the part of the political party as the political party is not within the sweep of the provisions relating to corrupt practices. As the rule of strict interpretation applies, there is no scope for applying provisions relating to corrupt practice contained in the said Act to the manifesto of a political party.
(56) Lastly, it is settled law that the courts cannot issue a direction for the purpose of laying down a new norm for characterizing any practice as corrupt practice. Such directions would amount to amending provisions of the said Act. The power to make law exclusively vests in the Union Parliament and as long as the field is covered by parliamentary enactments, no directions can be issued as sought by the Appellant. As an outcome, we are not inclined to hold the promises made by the political parties in their election manifesto as corrupt practice under Section 123 of the RP Act.
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Issue No. 2
Whether the schemes under challenge are within the ambit of public purpose and if yes, is it violative of Article 14?
(57) The concept of State largesse is essentially linked to Directive Principles of State Policy. Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide and the role of the court is very limited in this regard.
(58) It is not in dispute that television is a widely used tele-communication medi- um for receiving moving images. Today, television has a lot of positive effects and influences on our society and culture. Television gives helpful information and it is not an equipment aimed for entertainment alone. The State Government has also assert- ed that the purpose of distributing colour television sets is not restricted for providing recreation but to provide general knowledge to the people, more particularly, to the household women.
(59) On behalf of the State of Tamil Nadu, it was explained that in order to pro- mote the welfare of the people by securing and protecting, as effectively as it may, a social order in which social and economic justice can be achieved, the Government of Tamil Nadu has announced certain welfare schemes for raising the standard of living of the people by providing assistance to the deserving ones as envisaged under the Directive Principles of the Indian Constitution. In order to implement those schemes effectively, the Government of Tamil Nadu had exclusively formed a Special Programme Implementation Department. Guidelines for each Scheme were framed to identify the beneficiaries and mode of distribution.
(60) It is pointed out by the State that the Government has issued necessary orders for the following schemes:
(i) Marriage Assistance Scheme;
(ii) Distribution of Milch Animals and Goats;
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(iii) Solar Powered Green House Scheme;
(iv) Laptop Computer to students;
(v) Free Rice Scheme; and
(vi) Free distribution of Electric Fans, Mixies and Grinders to women.
The Schemes are as under:
Marriage Assistance Scheme
1) The economic status of a family plays a vital role in enabling the poor parents who have daughters to fulfill the social obligation of marriage. Various Marriage Assistance Schemes being implemented by the Government of Tamil Nadu are in vogue to benefit the poor and the downtrodden for whom the marriage ceremony of their daughters impose a heavy burden. There are at present 5 marriage assistance schemes and they are as follows:
(i) Moovalur Ramamirtham Ammaiyar Ninaivu Marriage Assistance Scheme for poor girls
(ii) Dr. Dharmambal Ammaiyar Ninaivu Widow Re-marriage Assistance Scheme to encourage the remarriage of young widows
(iii) E.V.R. Maniammaiyar Ninaivu Marriage Assistance Scheme for daughters of poor widows
(iv) Annai Theresa Ninaivu Marriage Assistance Scheme for Orphan Girls.
(v) Dr. Muthulakshmi Reddy Minaivu Inter-caste Marriage Assistance Scheme
2) With the extraordinary rise in the price of gold, poor families and the abovemen- tioned vulnerable categories find it difficult to buy even a small quantity of gold for
310 “No voter to be left behind” the traditional ‘Thirumangalayam’ (Mangal Sutra). To mitigate the hardship of the poor families and vulnerable sections, the State Government has ordered the provi- sion of 4 gms (1/2 sovereign) 22 ct. Gold coin for making the ‘Thirumangalayam’ in addition to the already existing financial assistance of Rs. 25,000/-. Moreover, with the aim of encouraging higher education among women, the present Govern- ment has also introduced a new scheme of providing financial assistance of Rs. 50,000/- for graduates/diploma holders along with the four grams 22 carat gold coin for making the ‘Thirumangalayam’.
3) The guidelines for sanction of assistance under the various Marriage Assistance Scheme include that the annual income of the family should not exceed Rs. 24,000/- and the minimum age limit for the girls should be 18 years. The detailed guidelines have been issued in G.O.(Ms. ) No. 49, SW & NMP Dept. Dated 26.07.2011. The details pertaining to each scheme are as follows:
(A) Moovalur Ramamirtham Ammaiyar Ninaivu Marriage Assistance Scheme
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(B) Dr. Dharmambal Ammaiyar Ninaivu Widow Remarriage Assistance Scheme
(C) E.V.R. Maniammaiyar Ninaivu Marriage Scheme for daughters of poor widows
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(D) Annai Theresa Ninaivu Marriage Assistance Scheme for Orphan Girls
(E) Dr. Muthulakshmi Reddy Ninaivu Inter-Caste Marriage Assistance Scheme
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II. Distribution of Milch Animal and Goats
(i) It is highlighted by the State that with the growing population and shrinking land resources, the nutritional requirement of the State cannot be met by increasing the agricultural production alone. Moreover vagaries of monsoon, availability of water have added to the pressure on increasing the agricultural production. To compen- sate this, it is necessary to improve the animal production.
(ii) As per the Indian Council for Agriculture Research (ICAR) norms, the per capita requirement of milk and meat per individual per day is 260 gms per day and 15 gms. Per day respectively. At present, the per capita availability of milk and meat in Tamil Nadu is below the recommended requirement. Hence, it is the need of the hour to increase the milk and meat production in the State to the State’s human population requirements. Moreover, still a large population in the State live below the poverty line.
(iii) Hence, it has been proposed to improve the standard of living by providing the needy poor with a Milch cow (to 60000 families) and sheep/goats to about poorest of the poor (7 lakh families) spread across the State. The main aim of the above Schemes will be to improve the standard of living of the poorest of the poor.
(iv) Under the Scheme of free distribution of Milch Cows, it has been envisaged to distribute Milch Cows to the poor people selected by the Grama Sabha based on norms in such villages/districts which do not have adequate availability of milk. Likewise, the poorest of the poor living in the rural areas will be identified democrat- ically by the Grama Sabha and will be given 4 sheep/goats in order to sustain their livelihood by rearing these sheep/goats.
A. The scheme for distribution of 60,000 lactating cows free of cost in rural village panchayats
(i) The Government of Tamil Nadu have planned to launch a Scheme to distribute 60,000 free Milch Cows to the poor beneficiaries in the rural areas in the next 5 years in order to give boost to the milk productivity of the State. This scheme will be called “Scheme for free distribution of Milch Cows”.
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2. Selection of Villages for the Scheme
(i) The Commissioner of Animal Husbandry and Veterinary Services (CA&VS) will select the Village Panchayats to be taken for implementation during each of the 5 years in such a way that in a year, approximately 12,000 beneficiaries are distrib- uted free Milch Cows in order to complete the distribution of 60,000 Milch Cows in 5 years.
(ii) The free Milch Cows will be distributed to the poor beneficiaries on a priority basis in such Districts that have lesser number of Co-operative Societies than the total number of revenue villages. In such Districts, the distribution will be undertaken in those Village Panchayats where there are no Primary Milk Cooperative Societies at present. Consequent upon the distribution of the cows, action will be taken to form Primary Cooperative Societies of the beneficiaries in these villages and render the beneficiaries necessary hand-holding assistance by the Dairy Development Depart- ment. The Co-operative network has the following advantages for the beneficiaries:
(a) Availability of immediate opportunity of sale of milk through the Milk Coopera- tive Society at good prices.
(b) Availability of Breeding services as well as Veterinary care at the door steps through the Society as well as Milk Union.
(c) Opportunity to tap the benefits of various Central/State funded Schemes meant for the co-operative sector.
(iii) Out of the villages to be selected within the Districts concerned, the smaller village Panchayats will be prioritized by the Commissioner of Animal Husbandry &Veterinary Services for the implementation of the Scheme since it will be easier to form the Primary Milk Societies of smaller and cohesive units. Further, the Village Panchayats to be taken up each year will be grouped in appropriate geographical Clusters as to facilitate the economical collection of milk.
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3. Breed of Milch Cows to be procured
(i) The breeding policy of the State envisages rearing of the Cross Bred Jersey Cows in the plains and Cross Bred Holstein-Friesian cows in the hilly areas of the State and the Cross Bred Cows yield, on an average, 2.5 times the milk yield of indigenous cows. It is, hence, proposed to supply Cross bred cows as per the Breeding Policy of the State. Further, in most of the cases, farmers prefer rearing of cows as compared to buffaloes. Hence, it is proposed to distribute only cows in this Scheme. Amongst the Cross Bred cows too, it is proposed to supply lactating cows that are in their first/second lactation so as to ensure a continuous production for next five lactations. The age of the animal should not be more than 5 years.
4. Identification of Beneficiaries
(i) The free Milch Cows will be distributed at the rate of one Cow per eligible house- hold. In order to empower the women, it has been decided that the actual beneficia- ry will be the Woman of the household. In case there are any transgender residing in the Village Panchayat, who are otherwise eligible as per the criteria given below, they will also be considered to be eligible for the Scheme.
(ii) Criteria for eligibility the beneficiaries should satisfy the following criteria:
• Women Headed households are to be given priority, (Widows, Destitutes and the Disabled women to be given priority within this group).
• Are below 60 years of age.
• Do not own land over 1 acre in their own name or family members’ name (However, owning some land is preferable, since it will enable production of green fodder in own land).
• Do not own any cows/buffaloes at present.
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• Are not employees of Central/State Government or any Organisation /cooperative or member of any Local Body (nor should their spouse or father/mother/parents-in-law/son/daughter/son-in-law/daughter -in-law be so).
• Have not benefited from the free Goats/Sheep Scheme of the Government.
• Should be permanent resident of the Village Panchayat.
• At least 30% beneficiaries from the Village Panchayat should necessarily belong to SC/ST (SC 29% and ST 1%) Communities.
(iii) In order to form a viable and successful procurement of milk by the Primary Milk Cooperative Societies, it is preferable that at least 50 members within a village Panchayat should pour the milk to the Milk Cooperative Society. Hence, ordinarily around 50 beneficiaries should be provided with cows in each of the selected Vil- lage Panchayats.
(iv) In the District, the District Collector will be overall in-charge of the process of iden- tification of beneficiaries. The Regional Joint director (Animal Husbandry) (RJAD), Project Officer (Mahalir Thittam) and Assistant Director (Panchayats) will assist him in this regard. The District Collector will form a village Level Committee consisting of
(i) Village Panchayat President, (ii) Vice-President, (iii) the senior most Ward member (by age) representing SC/ST Community, (iv) the Panchayat Level Federation (PLF) Coordinator, (v) an active SHG representative (vi) the Veterinary Assistant Surgeon (VAS) of the area and (vii) the Deputy, Block Development Officer (ADW) to identify and shortlist the list of beneficiaries per the norms specified. The District Collector should also ensure that necessary support is rendered to the Committee by the Vil- lage Panchayat Assistant concerned. The purpose of adding the Veterinary Assistant Surgeon and Deputy Block Development Officer is to ensure that the short listed beneficiaries are conforming to the prescribed norms.
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(v) After constituting the Village Level Committee for the selected Village Panchayats concerned, the District Collector should arrange to convene a meeting of all the members concerned and in that meeting, the details of the Scheme and the eligibility conditions are to be explained in detail. Since, the number of Village Panchayats per District will be ordinarily only about 10 per District per year, the District Collector should himself convene this meeting and convey the details.
(vi) The District Collector should, thereafter, fix a Special Meeting of the Grama Sabha in the Village Panchayat concerned to inform the details of the Scheme to the villagers. The Veterinary Assistant Surgeon and Deputy Block Development Officer (ADW) will explain the salient features of the Scheme and the eligibility details of the beneficiaries in the meeting. Applications for the free Milch Cows will be sought for in this Special Gram Sabha Meeting from the interested beneficiaries.
(vii) A period of one week will also be given for further receipt of Applications. The Applications can be given to any of the village Level Committee members or directly to the Village Panchayat. Thereafter, the Veterinary Assistant Surgeon and Deputy Block Development Officer (ADW) will arrange a meeting of the village level Com- mittee in the office of the Village Panchayat to scrutinize and list out the names of all the eligible beneficiaries for the Scheme.
(viii) The list prepared should also be got verified by the Veterinary Assistant Sur- geon and Deputy Block Development Officer (ADW) with the Village Administrative officer concerned, with regard to the land ownership details and the community details. (No certificate is however to be insisted upon and the scrutiny of the Village Level committee and subsequently the Gram Sabha will be considered to be final). Only after ensuring the eligibility of the proposed beneficiaries, the list will be ap- proved by the village Level Committee.
(ix) The finalized list should be placed before the Gram Sabha for approval. The Gram Sabha should again ensure that 30% of the beneficiaries belong to SC/ST communities.
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(x) The District Collector should also arrange to send the Veterinary Assistant Sur- geon/Deputy Block Development Officer or another official of the rank of Deputy Block Development Officer (in case the Deputy Block Development Officer is unable to attend) to participate in the Gram Sabha meeting and facilitate the discussion and finalization of the beneficiaries list.
(xi) The list finalized by Gram Sabha will be displayed in the Village Panchayat, Notice Board and other prominent places in the Village Panchayat.
B. Scheme for free distribution of goats/sheep to the poorest of the poor The Government of Tamil Nadu have proposed to launch a “Scheme for free distribu- tion of Goats/Sheep” for the poorest of poor in the rural areas in order to enhance their standard of living.
2. Implementation of the Scheme
(i) The Goats/Sheep can be procured within the State and also from outside the State. However, the procurement of Goats/Sheep in larger numbers from the other States is not preferable since this category of animals (also called ‘small ruminants’ in veterinary terminology) are fragile or prone to diseases when transported enmasse from long distances and different climatic zones. Hence, unlike the Scheme for pro- curement of free Milch Cows wherein cows only from other States are proposed to be procured, it has been decided to procure Goats/Sheep predominantly from the local market shandies available within the State in the proximity of the beneficiaries. If good quality animals are brought and supplied by the breeders in the village itself, the supply of Goats/Sheep through such breeders will be permitted.
(ii) It is presumed that about 6-7 lakh Goats/Sheep can be procured from the shan- dies within the State or from the neighbouring State shandies without causing short- age of availability of Goats/Sheep for meat purpose and without causing impact on the price of Goats/Sheep in the area.
(iii) In view of the availability of about 6-7 lakh Goats/Sheep in a year, the num- ber of families to be assisted in each year will be 1.5 lakh and in the current year,
319 “No voter to be left behind” approximately one lakh families can be assisted since the first quarter of the year is already over. The Gram Sabha will be utilized to identify the poorest of the poor beneficiaries within each village.
3. Eligibility Norms
The beneficiaries will be the poorest of the poor families living in Village Panchayats (rural areas) who are identified by the village Level Committee as per the norms and whose name is approved by the Gram Sabha as the poorest of the poor in the village.
The free Goats/Sheep will be distributed at the rate of 4 Goats/Sheep per house- hold. In order to empower the women, it has been decided that the actual beneficia- ry will be the Woman of the household. In case there are any transgender residing in the Village Panchayat, who are otherwise eligible as per the criteria given below, they will also be considered to be eligible for the Scheme.
The beneficiaries under this Scheme should satisfy the following eligibility criteria • Must be the landless Agricultural labourers.
• Should be a permanent resident of the Village Panchayat.
• The beneficiary household should have at least one member between the age of 18 and 60 to effectively rear the Goats/Sheep.
• Should not own any Cow/Goat/Sheep at present.
• Should not be an employee of Central/State Government or any Organisation/Cooperative or member of any local body (nor should their spouse or father/mother/parents-in-law/son/daughter/son-in- law/daughter-in-law be so).
• Should not have benefited from the free Milch Cows Distribution Scheme of the Government.
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2) Atleast 30% beneficiaries from the Village Panchayat should necessarily belong to SC/ST (SC 29% and ST 1%) community.
(i) The target number of beneficiaries for each District will be decided by the Com- missioner of Animal Husbandry and Veterinary Services (CAH&VS) based on the strength of the rural population of the District. The Village Panchayat as well as the Block target within the District will also be based on the proportionate rural popu- lation.
(ii) Within each District, the Village Panchayats will be selected in such a manner that approximately one-fifth of the beneficiaries will be covered in each Block in a year and the beneficiaries of a particular Village Panchayat will be fully covered within the year itself. The Commissioner of Animal Husbandry and Veterinary Ser- vices will work out the detailed Action Plan in this regard and convey to the District Collectors for implementation. In case of difficulties in implementation of the Scheme in some of the Village Panchayats having urbanized characters, the District Collec- tor will, in consultation with the Commissioner of Animal Husbandry and Veterinary Services, re-allocate the surplus target to other deserving Village Panchayats.
(iii) In the District, the District Collector will be the overall in-charge of the process of identification of beneficiaries. The Regional Joint Director (Animal Husbandry) (RJAD), Project Officer (Mahalir Thittam) and Assistant Director (Panchayats) will assist him in this regard. The District Collector will form a Village Level Committee consisting of (i) Village Panchayat President, (ii) Vice-President, (iii) the senior most Ward member (by age) representing SC/ST Community, (iv) the Panchayat Level Federation (PLF) coordinator (v) an active SHG representative (vi) the Veterinary Assistant Surgeon (VAS) of the area and (vi) the Deputy Block Development Officer (ADW) to identify and shortlist the list of beneficiaries as per the norms specified. The District Collector should also ensure that necessary support is rendered to the Committee by the Village Panchayat Assistant concerned. The purpose of adding the VAS and Deputy BDO(ADW) is to ensure that the short listed beneficiaries are conforming to the prescribed norms.
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(iv) After constituting the Village Level Committee for the selected Village Panchayats concerned, the District Collector should arrange to convene a meeting of all the members concerned and in that meeting, the details of the Scheme and the eligi- bility conditions are to be explained in detail. The District Collector should himself convene this meeting in one or more sessions in order to convey the details and the seriousness of the selection process.
(v) The District Collector should, thereafter, fix a Special Meeting of the Gram Sabha in the Village Panchayat concerned to inform the details of the Scheme to the villag- ers. The Veterinary Assistant Surgeon and Deputy Block Development Officer (ADW) will explain the salient features of the Scheme and the eligibility details of the bene- ficiaries in the meeting. Applications for the free Goats/Sheep will be sought for -in this Special Gram Sabha Meeting from the interested beneficiaries.
(vi) A period of one week will also be given for further receipt of applications. The applications can be given to any of the Village Level Committee members or directly to the Village Panchayat. Thereafter, the Veterinary Assistant Surgeon and Deputy Block Development Officer (ADW) will arrange a meeting of the Village Level Com- mittee in the office of the Village Panchayat to scrutinize and list out the names of all the eligible beneficiaries for the Scheme.
(vii) The list prepared should also be got verified by the Veterinary Assistant Surgeon and Deputy Block Development Officer (ADW) with the village Administrative Offi- cer concerned, to confirm the ‘landless’ status of the proposed beneficiaries and the community details. (No certificate is however to be insisted upon and the scrutiny of the Village Level Committee and subsequently the Gram Sabha will be considered to be final). Only after ensuring the eligibility of the proposed beneficiaries, the list will be approved by the Village Level Committee.
(viii) The finalized list should be placed before the Gram Sabha for approval. The Gram Sabha should again ensure that 30% of the beneficiaries belong to SC/ST (SC 29% and ST 1%) communities.
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(ix) The District Collector should also arrange to send the Veterinary Assistant Sur- geon/Deputy Block Development Officer (ADW) or another official of the rank of Deputy Block Development Officer (in case the Deputy Block Development Officer (ADW) is unable to attend) to participate in the Gram Sabha meeting and facilitate the discussion and finalization of the beneficiaries list.
III. Solar Powered Green House Scheme
1. The Government proposed to construct “Solar Powered Green House Scheme” for the benefit of the poor in the rural areas and measuring about 300 square feet with unit cost of Rs. 1.80 lakhs by meeting the entire cost by Government. The scheme aims at providing Solar Powered Green House for the poor living below poverty line in rural areas. Accordingly, it is proposed to construct 60,000 Solar Powered Green House of 300 sq. Ft. Each year for the next five years from 2011- 2012 totalling 3 lakh house.
2. Eligibility Criteria:
1. The beneficiary under Solar Powered Green House Scheme should reside within the Village Panchayat and find a place in the below poverty line list.
2. He/she should own a site of 300 sq. Ft. With clear title and patta.
3. Should not own any pacca concrete house and not benefited by any other hous- ing scheme.
4. Rs. 1.50 lakhs will be earmarked for construction of house and Rs. 30,000/- for installing solar Powered Home Lighting System.
5. The scheme will be implemented by the District Collector so as to ensure that the construction of houses are completed in time.
IV. Laptop Computers to students
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The State of Tamil Nadu have emerged as a favoured destination both for the domes- tic and multinational IT companies. This has opened new vistas of job opportunities for youth in Tamil Nadu. Further the students from lower rungs of the socio-economic pyramid also need to be equipped to participate in the emerging market. To provide level playing field by bridging the digital divide, develop skills and improve human resources in consonance with the millennium development goals, the Government of Tamil Nadu have decided to provide Laptop computers at free of cost to all students studying in Government and Government aided Higher Secondary Schools, Arts & Science colleges, Engineering Colleges and polytechnic colleges.
Accordingly the Government have issued order in G.O. (Ms) No. 1, Special Pro- gramme Implementation Department dated 03.06.2011 for distribution of Laptop Computer at free of cost.
Under this scheme, the students studying in Government and Government aided schools, Arts and Science Colleges, Engineering Colleges and Polytechnics will be eligible. These students will be covered as follows:
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During the year 2011-12, laptop computers will be distributed to 9.12 lakh students studying in 12th standard, 1st and 3rd year of Arts and Science Colleges, 2nd and 4th year of Engineering Colleges and 1st and 3rd year of Polytechnic colleges. The concerned Heads of Institutions will ensure that the dropouts/discontinued/trans- ferred students are not included in the list of eligible students.
V. Free Rice Scheme
Note on the Scheme of Distribution of free rice under Universal Public Distribution System in Tamil Nadu
In Tamil Nadu Universal Public Distribution System is being followed and there is no differentiation as APL/BPL categories based on income criteria for supply of es- sential commodities to family cardholders under Public Distribution System. Hence, there is no differentiation like BPL/APL family cards in this State. Instead family cards have been issued on the basis of option exercised by the card holders under self-se- lection process to receive either rice with all commodities or to receive additional sugar in lieu of rice with other commodities after verifying the genuineness of the residence in this State.
Features of Universal Public Distribution System in Tamil Nadu
(1) Universal Public Distribution System is the heart and soul of State Food Policy. It is built on the principles of non-exclusion, easy access to Public Distribution System shops and adequate availability of food gain at an affordable price.
(2) Though Government of India advocates Targeted Public Distribution system(T- PDS), Government of Tamil Nadu is not in favour of rigid targeting, as it may lead to exclusion of large number of genuine Below Poverty Line (BPL) families and vul- nerable Above Poverty Line (APL) families due to enumeration errors and improper bench marking.
(3) Poverty is a dynamic and relative concept and hence, it is difficult to design acceptable criteria and methodology to measure poverty. Thus any method used for
325 “No voter to be left behind” identifying BPL families is bound to result in some amount of exclusion of deserving families. Further, due to unforeseen natural calamities like droughts, floods and di- saster etc., a large number of vulnerable APL families may be forced into poverty trap again.
(4) Rigid government system will not be able to respond quickly to such situation. Thus targeted public distribution system approach will always have some families outside the Public Distribution system at any point of time in defeating the objective of total food security and elimination of hunger.
(5) On the other hand Universal Public Distribution System is based on principle of self selection. Only those who need subsidized food articles will go to the Public Distribution System shops and not the entire population.
(6) Based on these principles and out of years of experiences, Government of Tamil Nadu is convinced that Universal Public Distribution System assures better food se- curity to the people and therefore has decided to continue with it. Process for issue of family cards
On application for issue of family cards in the form prescribed (available in the website of the Department of Civil Supplies and Consumer Protection and can be downloaded and used - No cost for application), the Civil Supplies authorities verify the genuineness of the application and recommend for issue for family card or for rejection of cards as the case may be.
No income details are collected from the individual and this information is not en- tered in the family card also. As income, except in the case of persons employed in the organized sector, is a dynamic variable susceptible to undergo charges in sync with any unexpected events in the employment market, these details are not being collected for the purpose of the existing Universal Public Distribution System.
On the other hand, option is given to the applicant to choose whether he would like to draw rice or not. If he selects not to draw rice, he is given the benefit of drawing 3 kgs. Extra sugar in lieu of rice in addition to the normal entitlement of 1/2 kg.Per person per month subject to the maximum of 2 kg per month per card.
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VI. Free Distribution of Electric Fans, Mixies & Grinders to Women
This scheme is introduced as a welfare measure for women and intends universal coverage of women beneficiaries belonging to families holding family cards which are eligible for drawing rice. To make women more effective participants in the economy, it is imperative to relieve them from the domestic drudgery. Therefore, the Government have decided to distribute a package of electric Fan, Mixie and Grind- er to all the women from the families holding family cards which are eligible to draw rice. This scheme is expected to improve the standard of living of the poor women apart from providing equal opportunities.
In pursuance to above, the Government have issued Orders in G.O. Ms. 2 Special Programme Implementation Department, Dated 03.06.2011 for free distribution of 25 lakh packages of electric fans, mixies and grinder during 2011-12. In total about 1.83 crore women beneficiaries will be covered in a phased manner.
2. Eligibility Criteria
All households having a family card which is eligible for drawing rice are eligible for electric fans, mixies and grinders, at free of cost, under this Scheme. The benefits will be distributed only to a woman member of these households.
In case, a household having family card which is eligible for drawing rice, does not have any woman member it will be given to the head of the family.
The family cards as on 30.06.2011 will be considered for distribution of the items during the current year (2011-12).
The benefits will be distributed to an eligible family only once. While distributing the benefits, priority should be given to rural areas within the Assembly Constituency fol- lowed by Town Panchayats, then Municipalities and Municipal Corporations, if any. (61) The concepts of livelihood and standard of living are bound to change in their content from time to time. It is factual that what was once considered to be a luxury has become a necessity in the present day. It is well settled that the concept of
327 “No voter to be left behind” livelihood is no longer confined to bare physical survival in terms of food, clothing and shelter but also now necessarily includes basic medicines, preliminary educa- tion, transport, etc. Hence, the State distrusting largesse in the form of distribution of colour TVs, laptops, etc. To eligible and deserving persons is directly related to the directive principles of the State policy.
(62) As a result, we are not inclined to agree with the argument of the Appellant that giving of colour TVs, laptops, mixer-grinders etc. By the Government after ad- hering to due process is not an expense for public purpose. Judicial interference is permissible when the action of the government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the leg- islature and not in court.
(63) More so, the functioning of the Government is controlled by the Constitution, the laws of the land, the legislature and the Comptroller and Auditor General of In- dia. As per Article 73 of the Constitution, the executive power of the Union of India is co-extensive with its legislative power. Similarly, the executive power of the State is co-extensive with its legislative power (Article 162). In Bhim Singh (supra), this Court has held that the Government can frame a scheme in exercise of its executive powers but if such a scheme entails any expenditure, then it is required to be backed by law. Article 266 of the Constitution lays down that all monies received by the Central Government or by the State Government by way of taxes or otherwise must be credited to the Consolidated Fund of India. Article 267 also constitutes Contin- gency Fund of India. If any money (except which is charged on the Consolidated Fund) is to be withdrawn for any governmental purpose, then there has to be an Appropriation Act under Article 266(3) read with Article 114 of the Constitution. Every department of the Government presents its demand to the legislature con- cerned and the legislature votes on the same, and thereafter, the Appropriation Act is passed which authorizes the Government to withdraw the money from the Consol- idated Fund. There are similar provisions relating to the State. The Contingency Fund can be established only by enacting a law in that behalf and not by an executive fiat. The law creating the Contingency Fund authorizes the purposes for which the amount in it can be spent. This is how the money is being spent by the Government on its schemes under the control of the Legislature.
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(64) In Bhim Singh (supra), Article 282 of the Constitution in the context of Gov- ernment expenditure on various projects was considered. In that case, the Govern- ment in question had framed the scheme empowering the Members of Parliament to recommend works and projects in their respective constituencies. The said Scheme was challenged on the ground that the same has been formulated without enacting any law in that behalf. This challenge was negatived by this Court principally on the ground that any expenditure which the Government incurs on the said Scheme is authorized by the Appropriation Act and the Appropriation Act is a law as contem- plated by Article 282. This Court also negatived the challenge on the ground that the same is not for public purpose.
(65) In addition to the legislative control by way of Appropriation Acts, the rules framed by the Parliament under Article 118 and by the State Legislatures under Ar- ticle 208 of the Constitution of India, also create a mechanism to keep a check on the expenditure incurred by the Government.
(66) As far as State of Tamil Nadu is concerned, the Legislature has framed rules under Article 208 of the Constitution and these rules are known as The Tamil Nadu Legislative Assembly Rules. Under Chapter XX of the said Rules, a Public Accounts Committee is set up and usually such Public Accounts Committee is headed by a Member of the Opposite Party. The Public Accounts Committee scrutinizes the Gov- ernment accounts and submits its report to the Legislature for its consideration. So, apart from the Appropriation Act, there is also effective control over the Government accounts and expenses through the Public Accounts Committee.
(67) In addition to the Legislative control, the founding fathers of the Constitution have also thought it fit to keep a check on Government accounts and expenses through an agency outside the Legislature also. Article 148 has created a consti- tutional functionary in the form of the Comptroller and Auditor General of India (CAG). CAG examines the propriety, legality and validity of all expenses incurred by the Government. The office of CAG exercises effective control over the Govern- ment accounts.
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(68) If we analyze the abovementioned articles and the rules of procedure, it is established that there are various checks and balances within the mandate of the Constitution before a scheme can be implemented. As long as the schemes come within the realm of public purpose and monies for the schemes is withdrawn with appropriate Appropriation bill, the court has limited power to interfere in such schemes.
(69) Further, the Appellant contended by referring to various foreign cases to highlight the principle that public money cannot be used to create private assets. In our opinion, there is no merit in this contention also. The purpose of the schemes is to enforce the directive principles of state policy. In what way the state chooses to implement the directive principles of state policy is a policy decision of the State and this Court cannot interfere with such decisions. Ordinarily, this Court cannot interfere with policy decisions of the government unless they are clearly in violation of some statutory or Constitutional provision or is shockingly arbitrary in nature. In Ekta Shakti Foundationv. Government of NCT of Delhi (2006) 10 SCC 337, it was held:
10 “While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
In the light of settled principle and observing that in the given case no such circumstances prevail as envisaged for judicial enquiry; we are not persuaded to interfere with the policy decision.
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(70) With regard to the contention that distribution of State largesse in the form of colour TVs, laptops, mixer-grinders, etc., violates Article 14 of Constitution as the unequals are treated equally. Before we venture to answer this question, we must recall that these measures relate to implementation of Directive Principles of State Policy. Therefore, the principle of not to treat unequals as equal has no applicability as far as State largesse is concerned. This principle applies only where the law or the State action imposes some burden on the citizen either financial or otherwise. Besides, while implementing the directive principles, it is for the Government con- cerned to take into account its financial resources and the need of the people. There cannot be a straight jacket formula. If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State. All wel- fare measures cannot at one go be made available to all the citizens. The State can gradually extend the benefit and this principle has been recognized by this Court in several judgments.
Issue No. 3
Whether this Court has inherent power to issue guidelines by application of Vishaka principle?
(71) It is the stand of the Appellant that there is legislative vacuum in the given case. Hence, the judiciary is warranted to legislate in this regard to fill the gap by application of Vishaka principle. However, learned Counsel for the Respondent made a distinction between the Vishaka (supra) and the given case. While high- lighting that in Vishaka (supra), there was no legislation to punish the act of sexual harassment at work place, therefore, the judiciary noting the legislative vacuum framed temporary guidelines until the legislatures passed a bill in that regard. How- ever, in the case at hand, there is a special legislation, namely, the Representation of People Act wherein Section 123enumerates exhaustively a series of acts as “corrupt practice”. Therefore, this is not a case of legislative vacuum where the judiciary can apply its inherent power to frame guidelines.
Issue No. 4:
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Whether Comptroller and Auditor General of India has a duty to examine expendi- tures even before they are deployed?
(72) As reiterated earlier, the Comptroller and Auditor General of India is a constitutional functionary appointed under Article 148 of the Constitution. His main role is to audit the income and expenditure of the Governments, Government bodies and state-run corporations. The extent of his duties is listed out in the Comptroller and Auditor General’s (Duties, Powers etc.) Act, 1971. The functioning of the Gov- ernment is controlled by the Constitution, the laws of the land, the legislature and the Comptroller and Auditor General of India. CAG examines the propriety, legality and validity of all expenses incurred by the Government. The office of CAG exercis- es effective control over the government accounts and expenditure incurred on these schemes only after implementation of the same. As a result, the duty of the CAG will arise only after the expenditure has incurred.
Issue No. 5
Whether the writ jurisdiction will lie against a political party?
(73) Learned senior counsel for the Respondent (State of Tamil Nadu) raised the issue of jurisdiction stating that political parties are not State within the meaning of Article 12of the Constitution of India and therefore, no writ of any nature can be issued against them either under Article 226 or Article 32 of the Constitution of India or any other provision of the Constitution or any other law. The correct forum is the Election Tribunal and not writ jurisdiction.
(74) Admittedly, the Respondents never raised any objection relating to the jurisdic- tion in the High Court or even in the pleadings before this Court. It is only in the oral submissions that this issue has been raised.
(75) In the matters relating to pecuniary jurisdiction and territorial jurisdiction, the objection as to jurisdiction has to be taken at the earliest possible opportunity. But, this case relates to the jurisdiction over the subject matter. This is totally distinct and stands on a different footing. As such, the question of subject matter jurisdiction can
332 “No voter to be left behind” be raised even in the appeal stage. However, as this petition is fit for dismissal de hors the jurisdiction issue, the jurisdiction issue is left open.
(76) Summary:
(i) After examining and considering the parameters laid in Section 123 of RP Act, we arrived at a conclusion that the promises in the election manifesto cannot be read into Section 123 for declaring it to be a corrupt practice. Thus, promises in the election manifesto do not constitute as a corrupt practice under the prevailing law. A reference to a decision of this Court will be timely. In Prof. Ramchandra G. Kapse v. Haribansh Ramakbal Singh (1996) 1 SCC 206 this Court held that “..Ex facie contents of a manifesto, by itself, cannot be a corrupt practice committed by a candidate of that party.”
(ii) Further, it has been decided that the schemes challenged in this writ petition falls within the realm of fulfilling the Directive Principles of State Policy thereby falling within the scope of public purpose.
(iii) The mandate of the Constitution provides various checks and balances before a Scheme can be implemented. Therefore, as long as the schemes come within the realm of public purpose and monies withdrawn for the implementation of schemes by passing suitable Appropriation Bill, the court has limited jurisdiction to interfere in such schemes.
(iv) We have also emphasized on the fact that judicial interference is permissible only when the action of the government is unconstitutional or contrary to a statutory provision and not when such action is not wise or that the extent of expenditure is not for the good of the State.
(v) It is also asserted that the schemes challenged under this petition are in conso- nance with Article 14 of the Constitution.
(vi) As there is no legislative vacuum in the case on hand, the scope for application of Vishaka principle does not arise.
333 “No voter to be left behind”
(vii) The duty of the CAG will arise only after the expenditure has incurred.
(viii) Since this petition is fit for dismissal dehors the jurisdiction issue, the issue of jurisdiction is left open.
Directions:
(77) Although, the law is obvious that the promises in the election manifesto can- not be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality can- not be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree. The Election Commission through its counsel also conveyed the same feeling both in the affidavit and in the argument that the promise of such freebies at government cost disturbs the level playing field and vitiates the electoral process and thereby expressed will- ingness to implement any directions or decision of this Court in this regard.
(78) As observed in the earlier part of the judgment, this Court has limited power to issue directions to the legislature to legislate on a particular issue. However, the Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. The fountainhead of the powers under which the commis- sion issues these orders is Article 324 of the Constitution, which mandates the com- mission to hold free and fair elections. It is equally imperative to acknowledge that the Election Commission cannot issue such orders if the subject matter of the order of commission is covered by a legislative measure.
(79) Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candi- dates, meetings, processions, polling day, party in power etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties
334 “No voter to be left behind”
& Candidates. We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process.
(80) We hereby direct the Election Commission to take up this task as early as possible owing to its utmost importance. We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society.
(81) In the light of the above discussion, taking note of statutory provisions of the RP Act, which controls only candidate or his agent, mandates provided under the directive principles, various guidelines such as income limit, preference to women, agricultural labourer etc as detailed in the counter affidavit by the State, we find no merit in the appeal as well as in the transferred case. With the above observation as mentioned in paragraph Nos. 77-80, the appeal and the transferred case are dismissed. No order as to costs.
335 “No voter to be left behind”
JUDGMENT-15 SUPREME COURT OF INDIA
(Decision dated 10/07/201)
Writ Petition (Civil) No.490 of 2005
Lily Thomas...... Petitioner
Versus
Union of India &Ors...... Respondents
With Writ Petition (Civil) No.231 of 2005
Lok Prahari, through its General Secretary S.N. Shukla...... Petitioner
Versus
Union of India & Ors...... Respondents
Constitution of India – Arts. 101(3)(a), 102(1)(e), 190(3)(a) and 191(1)(e) – Section 8(4) of R.P. Act, 1951-HELD:The Parliament exceeded its powers conferred by the Constitution in enacting sub-section (4) of s.8 that carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of s.8 or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature and accordingly sub-section (4) of s.8 is ultra vires the Constitution. (Para 19)
336 “No voter to be left behind”
SUMMARY
These writ petitions were filed as Public Interest Litigations for mainly declar- ing sub-section (4) of Section 8 of the Representation of the People Act, 1951, giving special protection to sitting members of Parliament and State Legislature from imme- diate disqualification on conviction for offences under sub-sections (1), (2) or (3) of said Section 8 until three months from the date of conviction or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court as ultra vires the Constitution being in contravention of the provisions of Articles 101 and 190 of the Constitution. Petitioners contended that persons to be elected as members of Parliament or a State Legislature stand on the same footing as sitting members of Parliament and State Legislature so far as disqualifications are concerned and sitting members of Parliament and State Legislature cannot enjoy special privilege of continuing as members even after conviction for offences under sub-sections (1), (2) & (3) of Section 8 of the Act. The Parliament lacks legislative powers to enact sub-section (4) of Section 8 of the R.P. Act, 1951.
It was held by the Hon’ble Supreme Court that the provisions of Article 101(3)(a) and 190(1)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification is attracted in case of a sitting member of Parliament or State Legislature. The Parliament, therefore, exceeded its powers in enacting sub-section (4) of Section 8 of the Representation of the People Act, 1951 and accordingly declared sub-section (4) of Section-8 of the Act as ultra vires the Constitution. The Court held that:
“……We also hold that the provisions of Article 101(3) (a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualifi- cation will come into effect in case of a sitting member of Parliament or a State Legis- lature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution ……..... (para) However, if any sitting member of Parliament or a State Legislature is convicted of
337 “No voter to be left behind” any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications men- tioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and/or sentence.”
338 “No voter to be left behind”
JUDGMENT
Writ Petition (Civil) No.490 of 2005
Hon’ble A.K. Patnaik, Judge
Hon’ble S.J. Mukhopadhaya, Judge
Advocates for Appearing Parties: Paras Kuhad, Siddharth Luthra, ASG, F.S. Nari- man, Harish Chander and Mukul Gupta, Sr. Advs., Subhash Sharma, Lily Thom- as, Petitioner-in-Person, Meenakshi Arora, Arnit Pawan, Rajiv Kumar Sinha and S. Chandra Shekhar, Advs., Satya Narain Shukla, Petitioner-in-Person, Saurabh Suman Sinha, Shilpa Singh, Kamini Jaiswal, Abhimanue Shrestha, Amit Kumar, Abhinav Mukherji, Tufail A. Khan, Mrinmayee Shau, Yatin Bhushan, B.V. Balaram Das, An- gad Kochhar, V.K. Biju, Satya Siddiqui, Sarfraz Ahmed Siddiqui, S.K. Mishra, S.S. Rawat, V.N. Subramaniam, S. Wasim A. Qadri, P. Parmeswaran, D.S. Mahra, S. Ahmed Siddiqui, Priyanka, V.N. Raghupathi, Vasav Anantharaman, Sibo Sankar Mishra, Vijaya Lakshmi, Pragya Singh, Saurabh Kumar, Abhisth Kumar, Vikrant Ya- dav, Raman Yadav, Irshad Ahmad, Mohd. Irshad Hanif and Anil Kumar Jha, Advs.
(1) These two writ petitions have been filed as Public Interest Litigations for main- ly declaring Sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution.
(2) The background facts relevant for appreciating the challenge to Sub-section (4) of Section 8 of the Act are that the Constituent Assembly while drafting the Con- stitution intended to lay down some disqualifications for persons being chosen as, and for being, a member of either House of Parliament as well as a member of the Legislative Assembly or Legislative Council of the State. Accordingly, in the Consti- tution which was finally adopted by the Constituent Assembly, Article 102(1) laid down the disqualifications for membership of either House of Parliament or Article 191(1) laid down the disqualifications for membership of the Legislative Assembly or Legislative Council of the State. These two Articles are extracted hereinbelow:
339 “No voter to be left behind”
102. Disqualifications for membership.-
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament--
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
191. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State--
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
340 “No voter to be left behind”
(e) if he is so disqualified by or under any law made by Parliament.
[Explanation.--For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
A reading of the aforesaid constitutional provisions will show that besides the dis- qualifications laid down in Clauses (a), (b), (c) and (d), Parliament could lay down by law other disqualifications for membership of either House of Parliament or of Legislative Assembly or Legislative Council of the State. In exercise of this power conferred under Article 102(1)(e) and under Article 191(1)(e) of the Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951 (for short ‘the Act’), the disqualifications for membership of Parliament and State Legis- latures. Sections 7 and 8 in Chapter-III of the Act, with which we are concerned in these writ petitions, are extracted hereinbelow:
7. Definitions.--In this Chapter,--
(a) “appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
8. Disqualification on conviction for certain offences.-- (1) A person convicted of an offence punishable under--
(a) Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing
341 “No voter to be left behind”
acts prejudicial to maintenance of harmony) or Section 171E (offence of bribery) or Section 171F (offence of undue influence or personation at an election) or Sub-section (1) or Sub-section (2) of Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences relating to rape) or Section 498A (offence of cruelty towards a woman by husband or relative of a husband) or Sub-section (2) or Sub-section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
342 “No voter to be left behind”
(i) Section 125 (offence of promoting enmity between classes in connection with the election) or Section 135 (offence of removal of ballot papers from polling stations) or Section 135A (offence of booth capturing) of Clause (a) of Sub-section (2) of Section 136(offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; [or]
[(j) Section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991], [or]
[(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or Section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971), [or]
[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or]
[(m) the Prevention of Corruption Act, 1988 (49 of 1988); or]
[(n) the Prevention of Terrorism Act, 2002 (15 of 2002),]
[shall be disqualified, where the convicted person is sentenced to--
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
(2) A person convicted for the contravention of--
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to imprisonment for not less than six months, shall be disqualified
343 “No voter to be left behind”
from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in Sub-section (1) or Sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
[(4)] Notwithstanding anything [in Sub-section (1), Sub-section (2) or Sub- section (3)] a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Explanation.--In this section,--
(a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for--
(I) the Regulation of production or manufacture of any essential commodity;
(II) the control of price at which any essential commodity may be bought or sold;
(III) the Regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;
(IV) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);
344 “No voter to be left behind”
(c) “essential commodity” has the meaning assigned to it in the Essential Commodity Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).
(3) Clause (b) of Section 7 of the Act quoted above defines the word “disqual- ified” to mean disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or of Legislative Council of State. Sub-sections (1), (2) and (3) of Section 8 of the Act provide that a person convicted of an offence mentioned in any of these Sub-sections shall stand disqualified from the date of conviction and the disqualification was to continue for the specific period mentioned in the Sub-section. However, Sub-section (4) of Section 8 of the Act pro- vides that notwithstanding anything in Sub-section (1), Sub-section (2) or Sub-section (3) in Section 8 of the Act, a disqualification under either Sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. It is this saving or protection provided in Sub-section (4) of Section 8 of the Act for a member of Parliament or the Legislature of a State which is challenged in these writ petitions as ultra vires the Constitution.
Contentions on behalf of the Petitioners:
(4) Mr. Fali S. Nariman, learned Senior Counsel appearing for the Petitioner in Writ Petition No. 490 of 2005 and Mr. S.N. Shukla, the General Secretary of the Petitioner in Writ Petition No. 231 of 2005, submitted that the opening words of Clause (1) of Articles 102 and 191 of the Constitution make it clear that the same disqualifications are provided for a person being chosen as a member of either House of Parliament, or the State Assembly or Legislative Council of the State and for a person being a member of either House of Parliament or of the Legislative Assem- bly or Legislative Council of a State and therefore the disqualifications for a person to be elected as a member of either House of the Parliament or of the Legislative
345 “No voter to be left behind”
Assembly or Legislative Council of the State and for a person to continue as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State cannot be different. In support of this submission, Mr. Nariman cited a Constitution Bench judgment of this Court in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member. Mr. Nariman and Mr. Shukla submitted that Sub-section (4) of Section 8 of the Act, insofar as it provides that the disqualification under Sub-sections (1), (2) and (3) of Section 8 for being elected as a member of either House of Parliament or the Legislative Assembly or Legislative Council of State shall not take effect in the case of a person who is already a member of Parliament or Legislature of a State on the date of the conviction if he files an appeal or a revision in respect of the conviction or the sentence within three months till the appeal or revision is disposed of by the Court, is in contravention of the provisions of Clause (1) of Articles 102 and 191 of the Constitution.
(5) Mr. Shukla referred to the debates of the Constituent Assembly on Article 83 of the Draft Constitution, which corresponds to Article 102 of the Constitution. In these debates, Mr. Shibban Lal Saksena, a member of the Constituent Assembly moved an Amendment No. 1590 on 19.05.1949 to provide that when a person who, by virtue of conviction becomes disqualified and is on the date of disqualifica- tion a member of Parliament, his seat shall, notwithstanding anything in this Article, not become vacant by reason of the disqualification until three months have elapsed from the date thereof or, if within those three months an appeal or petition for revi- sion is brought in respect of the conviction or the sentence, until that appeal or peti- tion is disposed of, but during any period during which his membership is preserved by this provision, he shall not sit or vote. Mr. Shukla submitted that this amendment to Article 83 of the Draft Constitution was not adopted in the Constituent Assembly. Instead, in Sub-clause (e) of Clause (1) of Articles 102 and 191 of the Constitution, it was provided that Parliament may make a law providing disqualifications besides those mentioned in Sub-clauses (a), (b), (c) and (d) for a person being chosen as, and for being, a member of either House of Parliament and of the Legislative Assem- bly or Legislative Council of a State. Mr. Shukla submitted that despite the fact that a provision similar to Sub-section (4) of Section 8 of the Act was not incorporated in
346 “No voter to be left behind” the Constitution by the Constituent Assembly, Parliament has enacted Sub-section (4) of Section 8 of the Act.
(6) According to Mr. Nariman and Mr. Shukla, in the absence of a provision in Articles 102 and 191 of the Constitution conferring power on Parliament to make a provision protecting sitting members of either House of Parliament or the Legisla- tive Assembly or the Legislative Council of a State, from the disqualifications it lays down for a person being chosen as a member of Parliament or a State Legislature, Parliament lacks legislative powers to enact Sub-section (4) of Section 8 of the Act and Sub-section (4) of Section 8 of the Act is therefore ultra vires the Constitution.
(7) Mr. Nariman next submitted that the legal basis of Sub-section (4) of Section 8 of the Act is based on an earlier judicial view in the judgment of a Division Bench of this Court in Shri Manni Lal v. Shri Parmal Lal and Ors. [(1970) 2 SCC 462] that when a conviction is set aside by an appellate order of acquittal, the acquittal takes effect retrospectively and the conviction and the sentence are deemed to be set aside from the date they are recorded. He submitted that in B.R. Kapur v.State of T.N. and Anr. [(2001) 7 SCC 231] a Constitution Bench of this Court reversed the aforesaid judicial view and held that conviction, and the sentence it carries, operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. He submitted that this later view has been reiterated by a Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754]. Mr. Nariman argued that thus as soon as a person is convicted of any of the offences mentioned in Sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified from continuing as a member of Parliament or of a State Legislature notwithstanding the fact that he has filed an appeal or a revision against the conviction and there is no legal basis for providing in Sub-section (4) of Section 8 of the Act that his disqualification will not take effect if he files an appeal or revision within three months against the order of conviction. He submitted that in case a sitting member of Parliament or State Legislature feels aggrieved by the conviction and wants to continue as a member notwithstanding the conviction, his remedy is to move the Appellate Court for stay of the order of conviction. He cited the decision in Navjot Singh Sidhu v. State of Punjab and Anr. [(2007) 2 SCC 574] in which this Court has clarified that under Sub-section (1) of
347 “No voter to be left behind”
Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on the Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction. He submitted that in appropriate cases, the Appellate Court may stay the order of conviction of a sitting member of Parliament or State Legislature and allow him to continue as a member notwithstanding the conviction by the trial court, but a blanket provision like Sub-section (4) of Section 8 of the Act cannot be made to keep the disqualification pursuant to conviction in abeyance till the appeal or revision is decided by the Appellate or Revisional Court.
(8) Mr. Nariman and Mr. Shukla submitted that in K. Prabhakaran v. P. Jayara- jan etc. (supra) the validity of Sub-section (4) of Section 8 of the Act was not under challenge and only a reference was made to the Constitution Bench of this Court on certain questions which arose in civil appeals against judgments delivered by the High Court in election cases under the Act. They submitted that the Constitution Bench of this Court framed three questions with regard to disqualification of a can- didate Under Section 8 of the Act and while answering question No. 3, the Consti- tution Bench indicated reasons which seem to have persuaded Parliament to classify sitting members of the House into a separate category and to provide in Sub-section (4) of Section 8 of the Act that if such sitting members file appeal or revision against the conviction within three months, then the disqualification on account of their con- viction will not take effect until the appeal or revision is decided by the appropriate court. They submitted that the opinion expressed by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra) regarding the purpose for which Parliament classified sitting members of Parliament and State Legislatures into a sep- arate category and protected them from the disqualifications by the saving provision in Sub-section (4) of Section 8 of the Act are obiter dicta and are not binding ratio on the issue of the validity of Sub-section (4) of Section 8 of the Act.
(9) Mr. Nariman and Mr. Shukla submitted that Sub-section (4) of Section 8 of the Act, in so far as it does not provide a rationale for making an exception in the case of members of Parliament or a Legislature of a State is arbitrary and discrimina- tory and is violative of Article 14 of the Constitution. They submitted that persons to be elected as members of Parliament or a State Legislature stand on the same footing
348 “No voter to be left behind” as sitting members of Parliament and State Legislatures so far as disqualifications are concerned and sitting members of Parliament and State Legislatures cannot enjoy the special privilege of continuing as members even though they are convicted of the offences mentioned in Sub-sections (1), (2) and (3) of Section 8 of the Act. Contentions of behalf of the Respondents
(10) Mr. Siddharth Luthra, learned ASG appearing for the Union of India in Writ Petition (C) 231 of 2005, submitted that the validity of Sub-section (4) of Section 8 of the Act has been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra). He submitted that while answering question No. 3, the Constitution Bench has held in Prabhakaran’s case that the purpose of carving out a saving in Sub-section (4) of Section 8 of the Act is not to confer an advantage on sit- ting members of Parliament or of a State Legislature but to protect the House. He sub- mitted that in para 58 of the judgment the Constitution Bench has explained that if a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow: first, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong and the Government in power may be surviving on a razor-edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the Government; second, a bye-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Mr. Luthra submitted that for the aforesaid two reasons, Parliament has classified the sitting members of Parliament or a State Legislature in a separate category and provided in Sub-section (4) of Section 8of the Act that if on the date of incurring disqualification, a person is a member of Parliament or of a State Legislature, such disqualification shall not take effect for a period of three months from the date of such disqualification to enable the sitting member to file appeal or revision chal- lenging his conviction, and sentence and if such an appeal or revision is filed, then applicability of the disqualification shall stand deferred until such appeal or revision is disposed of by the appropriate Court.
349 “No voter to be left behind”
(11) Mr. Luthra next submitted that the reality of the Indian judicial system is that acquittals in the levels of the Appellate Court such as the High Court are very high and it is for this reason that Parliament has provided in Sub-section (4) of Section 8 of the Act that disqualification pursuant to conviction or sentence in the case of sitting members should stand deferred till the appeal or revision is decided by the Appel- late or the Revisional Court. He submitted that the power to legislate on disqualifi- cation of members of Parliament and the State Legislature conferred on Parliament carries with it the incidental power to say when the disqualification will take effect. He submitted that the source of legislative power for enacting Sub-section (4) of Sec- tion 8 of the Act is, therefore, very much there in Articles 101(1)(e) and 191(1)(e) of the Constitution and if not in these articles of the Constitution, in Article 246(1) read with Entry 97 of List I of the Seventh Schedule of the Constitution and Article 248 of the Constitution, which confer powers on Parliament to legislate on any matter not enumerated in List II and List III of the Seventh Schedule of the Constitution.
(12) Mr. Paras Kuhad, learned ASG, appearing for the Union of India in Writ Pe- tition (C) No. 490 of 2005 also relied on the judgment of the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra) on the validity of Sub-section (4) of Section 8 of the Act and the reasoning given in the answer to question No. 3 in the aforesaid judgment of this Court. He further submitted that Sub-section (4) of Section 8 of the Act does not lay down disqualifications for members of Parliament and the State Legislatures different from the disqualifications laid down for persons to be chosen as members of Parliament and the State Legislatures in Sub-sections (1), (2) and (3) of Section 8 of the Act. He submitted that Sub-section (4) of Section 8 of the Act merely provides that the very same disqualifications laid down in Sub-sec- tions (1), (2) and (3) of Section 8 of the Act shall in the case of sitting members of Parliament and State Legislatures take effect only after the appeal or revision is disposed of by the Appellate or Revisional Court as the case may be if an appeal or revision is filed against the conviction. He submitted that Parliament has power under Article 102(1)(e) of the Constitution and Article 191(1)(e) of the Constitution to prescribe when exactly the disqualification will become effective in the case of sitting members of Parliament or the State Legislature with a view to protect the House. He also referred to the provisions of Articles 101(3)(a) and 190(3)(a) of the Constitution to argue that a member of Parliament or a State Legislature will vacate
350 “No voter to be left behind” a seat only when he becomes subject to any disqualification mentioned in Clause (1) of Article 102 or Clause (1) of Article 191, as the case may be, and this will happen only after a decision is taken by the President or the Governor that the member has become disqualified in accordance with the mechanism provided in Article 103 or Article 192 of the Constitution.
(13) Mr. Kuhad further submitted that Mr. Nariman is not right in his submission that the remedy of a sitting member who is convicted or sentenced and gets disqualified under Sub-sections (1), (2) or (3) of Section 8 of the Act is to move the Appellate Court Under Section 389 of the Code of Criminal Procedure for stay of his convic- tion. He submitted that the Appellate Court does not have any power Under Section 389, Code of Criminal Procedure to stay the disqualification which would take effect from the date of conviction and therefore a safeguard had to be provided in Sub-sec- tion (4) of Section 8 of the Act that the disqualification, despite the conviction or sentence, will not have effect until the appeal or revision is decided by the Appellate or the Revisional Court. He submitted that there is, therefore, a rationale for enacting Sub-section (4) of Section 8 of the Act.
Findings of the Court
(14) We will first decide the issue raised before us in these writ petitions that Par- liament lacked the legislative power to enact Sub-section (4) of Section 8 of the Act as this issue was not at all considered by the Constitution Bench of this Court in the aforesaid case of K. Prabhakaran (supra). In The Empress v. Burah and Anr.[ (1878) 5 I.A. 178] the Privy Council speaking through Selborne J. Laid down the following fundamental principles for interpretation of a written constitution laying down the powers of the Indian Legislature:
The Indian Legislature has powers expressly limited by the Act of the Imperial Par- liament which created it; and it can, of course, do nothing beyond the limits which circumscribes these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether
351 “No voter to be left behind” the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.
The correctness of the aforesaid principles with regard to interpretation of a written constitution has been reaffirmed by the majority of Judges in Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1465) (See the Constitutional Law of India, H.M. Seervai, Fourth Edition, Vol. I, para 2.4 at page 174). Hence, when a question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument by which affirmatively, the legislative powers were created, and by which negatively, they are restricted.
(15) We must first consider the argument of Mr. Luthra, learned Additional Solic- itor General, that the legislative power to enact Sub-section (4) of Section 8 of the Act is located in Article 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution. Articles 246 and 248 of the Constitution are placed in Chapter I of Part XI of the Constitution of India. Part XI is titled “Relations between the Union and the States” and Chapter I of Part XI is titled “Legislative Relations”. In Chapter I of Part XI, under the heading “Distribution of Legislative Powers” Articles 245 to 255 have been placed. A reading of Articles 245 to 255 would show that these relate to distribution of legislative powers between the Union and the Legislatures of the States. Article 246(1) provides that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule of the Constitution and under Entry 97 of List I of the Seventh Schedule of the Constitution, Parliament has exclusive power to make law with respect to any other matter not enumerated in List II or List III. Article 248 similarly provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the
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Concurrent List (List III) or State List (List II) of the Seventh Schedule of the Constitution. Therefore, Article 246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than matters enumerated in List II and List III) Parliament will have power to make law. To quote from Commentary on the Constitution of India by Durga Das Basu (8th Edition) Volume 8 at page 8988:
In short, the principle underlying Article 248, read with Entry 97 of List I, is that a written Constitution, which divides legislative power as between two legislatures in a federation, cannot intend that neither of such Legislatures shall go without power to legislate with respect of any subject simply because that subject has not been spe- cifically mentioned nor can be reasonably comprehended by judicial interpretation to be included in any of the Entries in the Legislative Lists. To meet such a situation, a residuary power is provided, and in the Indian Constitution, this residuary pow- er is vested in the Union Legislature. Once, therefore, it is found that a particular subject-matter has not been assigned to the competence of the State Legislature, “it leads to the irresistible inference that (the Union) Parliament would have legislative competence to deal with the subject-matter in question.
Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have con- ferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in Sub-clauses (a), (b), (c) and (d) of Clause (1) of Articles 102 and 191 of the Constitution. We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of members of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1) (e) and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact Sub-section (4) of Section 8 of the Act is vested in Parliament under
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Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution.
(16) Articles 102(1)(e) and 191(1)(e) of the Constitution, which contain the only source of legislative power to lay down disqualifications for membership of either House of Parliament and Legislative Assembly or Legislative Council of a State, pro- vide as follows:
102(1)(e). A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-(e) if he is so disqualified by or under any law made by Parliament.
191(1)(e). “A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State--(e) if he is so disqualified by or under any law made by Parliament.
A reading of the aforesaid two provisions in Articles 102(1) (e) and 191(1)(e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State. In the language of the Constitution Bench of this Court in Election Commission, India v. Saka Venkata Rao (supra), Article 191(1) [which is identically worded as Arti- cle 102(1)] lays down “the same set of disqualifications for election as well as for continuing as a member”. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e)of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature. To put it differently, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same.
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(17) Mr. Luthra and Mr. Kuhad, however, contended that the disqualifications laid down in Sub-sections (1),(2) and (3) of Section 8 of the Act are the same for persons who are to continue as members of Parliament or a State Legislature and Sub-section (4) of Section 8 of the Act does not lay down a different set of disqualifications for sitting members but merely states that the same disqualifications will have effect only after the appeal or revision, as the case may be, against the conviction is decided by the Appellate or the Revisional Court if such appeal or revision is filed within 3 months from the date of conviction. We cannot accept this contention also because of the provisions of Articles 101(3)(a) and 190(3)(a) of the Constitution which are quoted hereinbelow:
101(3)(a). Vacation of seats.- (1) ... (2) ... (3) If a member of either House of Parliament- (a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of article 102. ….his seat shall thereupon become vacant 190(3)(a). Vacation of seats.- (1) ... (2) ... (3) If a member of a House of the Legislature of a State- (a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of article 191. ….his seat shall thereupon become vacant
Thus, Article 101(3)(a) provides that if a member of either House of Parliament be- comes subject to any of the disqualifications mentioned in Clause (1), his seat shall thereupon become vacant and similarly Article 190(3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifica- tions mentioned in Clause (1), his seat shall thereupon become vacant. This is the effect of a disqualification under Articles 102(1) and 190(1) incurred by a member of either House of Parliament or a House of the State Legislature. Accordingly, once a person who was a member of either House of Parliament or House of the State
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Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls va- cant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in Sub-section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) and 191(1)(e) of the Constitution.
18. We cannot also accept the submission of Mr. Kuhad that until the decision is taken by the President or Governor on whether a member of Parliament or State Leg- islature has become subject to any of the disqualifications mentioned in Clause (1) of Article 102 and Article 191 of the Constitution, the seat of the member alleged to have been disqualified will not become vacant under Articles 101(3)(a) and 190(3) (a) of the Constitution. Articles 101(3)(a) and 190(3)(a) of the Constitution provide that if a member of the House becomes subject to any of the disqualifications men- tioned in Clause (1), “his seat shall thereupon become vacant”. Hence, the seat of a member who becomes subject to any of the disqualifications mentioned in Clause (1) will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor, as the case may be, under Articles 103 and 192 respectively of the Constitution. The filling of the seat which falls vacant, however, may await the decision of the President or the Gover- nor under Articles 103 and 192 respectively of the Constitution and if the President or the Governor takes a view that the member has not become subject to any of the disqualifications mentioned in Clause (1) of Articles 102 and 191 respectively of the Constitution, it has to be held that the seat of the member so held not to be disqualified did not become vacant on the date on which the member was alleged to have been subject to the disqualification.
(19) The result of our aforesaid discussion is that the affirmative words used in Ar- ticles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a)
356 “No voter to be left behind” of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, Sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under Sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
(20) Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting Sub-section (4) of Section 8 of the Act and accordingly Sub-section (4) of Section 8 of the Act is ultra vires the Constitution.
(21) We do not also find merit in the submission of Mr. Luthra and Mr. Kuhad that if a sitting member of Parliament or the State Legislature suffers from a frivolous conviction by the trial court for an offence given under Sub-section (1), (2) or (3) of Section 8 of the Act, he will be remediless and he will suffer immense hardship as he would stand disqualified on account of such conviction in the absence of Sub-sec- tion (4) of Section 8 of the Act. A three-Judge Bench of this Court in Rama Narang v. Ramesh Narang and Ors. [(1995) 2 SCC 513] has held that when an appeal is preferred Under Section 374 of the Code of Criminal Procedure [for short ‘the Code’] the appeal is against both the conviction and sentence and, therefore, the Appellate Court in exercise of its power Under Section 389(1) of the Code can also stay the order of conviction and the High Court in exercise of its inherent jurisdiction Under Section 482 of the Code can also stay the conviction if the power was not to be found in Section 389(1) of the Code. In Ravikant S. Patil v. Sarvabhouma S. Bagali [(2007) 1 SCC 673], a three-Judge Bench of this Court, however, observed: It deserves to be clarified that an order granting stay of conviction is not the rule
357 “No voter to be left behind” but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the Appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the Respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
In the aforesaid case, a contention was raised by the Respondents that the Appel- lant was disqualified from contesting the election to the Legislative Assembly under Sub-section (3) of Section 8 of the Act as he had been convicted for an offence punishable Under Sections 366 and 376 of the Indian Penal Code and it was held by the three-Judge Bench that as the High Court for special reasons had passed an order staying the conviction, the disqualification arising out of the conviction ceased to operate after the stay of conviction. Therefore, the disqualification under Sub-sec- tion (1), (2) or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court Under Section 389 of the Code or the High Court Under Section 482 of the Code.
(22) As we have held that Parliament had no power to enact Sub-section (4) of Section 8 of the Act and accordingly Sub-section (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that Sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been necessary for us to go into this question only if Sub-section (4) of Section 8 of the Act was held to be within the powers of the Parliament. In other words, as we can declare Sub-section (4) of Section 8 of the Act as ultra vires the Constitution without going into the question as to whether Sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution, we do not think it is necessary to decide the question as to whether Sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution.
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(23) The only question that remains to be decided is whether our declaration in this judgment that Sub-section (4) of Section 8 of the Act is ultra vires the Constitu- tion should affect disqualifications already incurred under Sub-sections (1), (2) and (3) of Section 8 of the Act by sitting members of Parliament and State Legislatures who have filed appeals or revisions against their conviction within a period of three months and their appeals and revisions are still pending before the concerned court. Under Sub-sections (1), (2) and (3) of Section 8 of the Act, the disqualification takes effect from the date of conviction for any of the offences mentioned in the Sub-sec- tions and remains in force for the periods mentioned in the subsections. Thus, there may be several sitting members of Parliament and State Legislatures who have al- ready incurred disqualification by virtue of a conviction covered under Sub-section (1), or Sub-section (2) or Sub-section (3) of Section 8 of the Act. In Golak Nath and Ors. v. State of Punjab and Anr.(AIR 1967 SC 1643), Subba Rao, C.J. Speaking on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. Has held that Articles 32, 141, 142 of the Constitution are couched in such a wide and elastic terms as to en- able this Court to formulate legal doctrines to meet the ends of justice and has further held that this Court has the power not only to declare the law but also to restrict the operation of the law as declared to future and save the transactions, whether statu- tory or otherwise, that were effected on the basis of the earlier law. Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in Sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of Sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by Sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court. As has been observed by this Court in Harla v. State of Rajasthan (AIR 1951 SC 467):
...it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with exercise of due diligence have acquired any knowledge. However, if any sitting member of Parliament or a State Legislature is convicted of
359 “No voter to be left behind” any of the offences mentioned in Sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications men- tioned in Sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by Sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and/or sentence.
(24) With the aforesaid declaration, the writ petitions are allowed. No costs.
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JUDGMENT-16 SUPREME COURT OF INDIA
Writ Petition (Civil) No.121 of 2008 (Decision dated 13/09/2013)
Resurgence India...... ……….....Petitioner (s)
Versus
Election Commission of India & Anr...... ……….....Respondent (s)
CONSTITUTION OF INDIA: Art. 19(1)(a) - Freedom of speech and expression - Right to know - HELD: Purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Art.19(1)(a) to know about the candidates contesting the election in order to make a informed choice of their voting. (Para 20)
REPRESENTATION OF THE PEOPLE ACT, 1951: S.33-A read with Ss. 36 and 125A - Right to information – Furnishing of information in prescribed affidavit as required under sub-section (1) of S.33-A - Affidavit with particulars left blank - HELD: Every candidate is under obligation to file affidavit with relevant information with regard to his/her criminal antecedents, assets and liabilities and educational qualifications -- Filing of affidavit with particulars left blank will render the affidavit nugatory - If a candidate fails to fill the blanks even after reminder by Returning Officer, the nomination paper is liable to be rejected.
R.P. Act, 1951 -- S.36 read with S.33-A - Scrutiny of nomination by Returning Offi- cer – HELD: R.O. can compel a candidate to furnish complete information relevant on the date of scrutiny-- Directed by Election Commission to insert another clause in the Check List format already prescribed by the Commission for reminding the candidates to fill the blanks, if any, in the Affidavit -- no affidavit with particulars left blank can be entertained.
R.P. Act, 1951 -- S.125 A(i) – Penalty for filing of false affidavit -- HELD: as the nomination paper with particulars in Affidavit left blank will be rejected by R.O., there is no reason to penalize the candidate again for the same act by prosecuting him/her under this section.
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SUMMARY
The writ petition was filed under Article 32 of the Constitution of India for issuance of appropriate writ/direction including writ of mandamus to effec- tuate meaningful implementation of the judgments rendered by the Supreme Court in Union of India vs. Association for Democratic Reforms and Another (2002) 5 SCC 294 and People’s Union for Civil Liberties (PUCL) and Another vs. Union of India & Anr. (2003) 4 SCC 399, and for that purpose to direct the respondents to make it compulsory for the Returning Officers to ensure that the affidavits filedby the contestants are complete in all respects and to reject the affidavits having blank particulars.
Pursuant to the Order of the Supreme Court in Union of India vs. Association for Democratic Reforms and Another (Supra), the Election Commission, vide order dated 28.06.2002, issued directions to the candidates to furnish a duly sworn Affidavit to declare full and complete information relating to his/her crim- inal antecedents, if any, information regarding assets of the candidate as well as of his/her spouse and that of dependants, liability, if any, and educational qualification of the candidate, to enable electors to know the background of the candidates. It was also directed that non-furnishing of the affidavit by any candidate or furnishing of any wrong or incomplete information or suppression of any material information of substantial character, found by the R.O. after sum- mary enquiry at the time of scrutiny of nomination papers, will result in the rejection of the nomination paper, apart from inviting penal consequences under the Indian Penal Code, 1860.
Subsequently, in People’s Union for Civil Liberties (PUCL) and Another vs. Union of India& Anr. (Supra), while reaffirming the aforementioned decision , the Apex Court, however, held that the direction to the R.O. to reject the nomination papers for furnishing wrong information or concealing material information and verification of assets and liabilities by means of a summary inquiry at the time of scrutiny of the nominations by the R.O. should not be enforced.
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Accordingly, the Election Commission, issued revised order dated 27.03.2003, inter alia, clarifying that its earlier order with regard to verification of assets and liabilities by means of summary inquiry and rejection of nomination papers on the ground of furnishing wrong information or suppression of material information shall not be enforceable.
Subsequently, the Commission, vide letter dated 02.06.2004 directed the Returning Officers that where any complaint regarding furnishing of false information by any candidate is submitted by anyone, supported by some doc- umentary evidence, the concerned R.O. should initiate action to prosecute the candidate concerned by filing formal complaint before the appropriate authority. The Supreme Court held that right to know about the candidate is a universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. To effectuate the fundamental right of the citizens, the candidates are supposed to disclose their antecedents at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
It accordingly held that in the affidavits filed by candidates along with their nomination paper, the candidates must fill up all columns therein and no column can be left blank. Therefore, at the time of filing of affidavit, RO has to check whether all columns of the affidavit filed with the nomination paper are filled up. If not, the RO shall give a reminder to the candidate to furnish information against blank columns and for that purpose one more column be incorporated in the standard Check List alreadyprescribed by the Commission to ensure filing of all documents required to be filed by a candidate along with the nomination paper. In case no information is to be furnished against any item, appropriate remarks such as ‘NIL’ or ‘Not Applica- ble’ or ‘Not Known’ as may be applicable shall be indicated in such column by the candidate. No column can be left blank. If a candidate fails to fill the blanks even after reminder, the nomination paper will be liable to be rejected by the RO at the time of scrutiny of nomination papers.
It further clarified that even though filing of affidavit with blanks will attract the penal provisions of Section 125A(i) of the RP Act, however, as the nomination paper itself is rejected by the Returning Officer, it would not be necessary to pros- ecute the candidate again for the same act.
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JUDGMENT
Hon’ble P. Sathasivam, Chief Justice
Hon’ble Ranjana Prakash Desai, Judge
Hon’ble Ranjan Gogoi, Judge
A. Mariarputham, Sr. Adv., Prashant Bhushan, Rohit K. Singh, Meenakshi Arora, A. Radhakrishna, Yusuf Khan, B. Krishna Prasad and Ritu Bhardwaj, Advs.Advocates for appearing Parties.
(1) This writ petition, under Article 32 of the Constitution of India, has been filed to issue specific directions to effectuate meaningful implementation of the judgments rendered by this Court in Union of India v. Association for Democratic Reforms and Anr. (2002) 5 SCC 294 and People’s Union for CivilLiberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399 and also to direct the Respondents herein to make it compulsory for the Returning Officers to ensure that the affidavits filed by the contestants are complete in all respects and to reject the affidavits having blank particulars.
Background:
(2) In order to maintain purity of elections and to bring transparency in the process of election, this Court, in Association for Democratic Reforms (supra), di- rected the Election Commission of India-Respondent No. 1 herein to issue necessary orders, in exercise of its power under Article 324 of the Constitution, to call for information on affidavit from each candidate seeking election to the Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein infor- mation relating to his conviction/acquittal/discharge in any criminal offence in the past, any case pending against him of any offence punishable with imprisonment for 2 years or more, information regarding assets (movable, immovable, bank balance etc.) of the candidate as well as of his/her spouse and that of dependants, liability, if any, and the educational qualification of the candidate.
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(3) Pursuant to the above order, the Election Commission, vide order dated 28.06.2002, issued certain directions to the candidates to furnish full and complete information in the form of an affidavit, duly sworn before a Magistrate of the First Class, with regard to the matters specified in Association for Democratic Reforms (supra). It was also directed that non-furnishing of the affidavit by any candidate or furnishing of any wrong or incomplete information or suppression of any material information will result in the rejection of the nomination paper, apart from inviting penal consequences under the Indian Penal Code, 1860. It was further clarified that only such information shall be considered to be wrong or incomplete or suppression of material information which is found to be a defect of substantial character by the Returning Officer in the summary inquiry conducted by him at the time of scrutiny of nomination papers.
(4) In People’s Union for Civil Liberties (PUCL) (supra), though this Court reaf- firmed the aforementioned decision but also held that the direction to reject the nom- ination papers for furnishing wrong information or concealing material information and verification of assets and liabilities by means of a summary inquiry at the time of scrutiny of the nominations cannot be justified.
(5) Pursuant to the above, the Election Commission, vide order dated 27.03.2003, held its earlier order dated 28.06.2002 non-enforceable with regard to verification of assets and liabilities by means of summary inquiry and rejection of nomination papers on the ground of furnishing wrong information or suppression of material information.
(6) Again, the Election Commission of India, vide letter dated 02.06.2004 di- rected the Chief Electoral Officers of all the States and Union Territories that where any complaint regarding furnishing of false information by any candidate is submit- ted by anyone, supported by some documentary evidence, the Returning Officer concerned should initiate action to prosecute the candidate concerned by filing formal complaint before the appropriate authority. Brief facts:
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(7) In the above backdrop, the brief facts of the case in hand are as under: Resurgence India-the Petitioner herein is a non-governmental organization (NGO) registered under the Societies Registration Act, 1860 and is working for social awakening, social empowerment, human rights and dignity. During Punjab Legis- lative Assembly Elections, 2007, the Petitioner-organization undertook a massive exercise under the banner “Punjab Election Watch’ and affidavits pertaining to the candidates of six major political parties in the State were analyzed in order to verify their completeness. During such campaign, large scale irregularities were found in most of the affidavits filed by the candidates.
(8) On 09.02.2007, the Petitioner-organization made a representation to the Elec- tion Commission of India regarding large number of non-disclosures in the affidavits filed by the contestants in the State of Punjab and poor level of scrutiny by the Re- turning Officers. Vide letter dated 20.02.2007, the Election Commission of India ex- pressed its inability in rejecting the nomination papers of the candidates solely due to furnishing of false/incomplete information in the affidavits in view of the judgment in People’s Union for Civil Liberties (PUCL) (supra).
(9) Being aggrieved of the same, the Petitioner-organization has preferred this peti- tion for the issuance of a writ of mandamus to make it compulsory for the Returning Officers to ensure that the affidavits filed by the contestants should be complete in all respects and to reject those nomination papers which are accompanied by incom- plete/blank affidavits. The Petitioner-organization also prayed for deterrent action against the Returning Officers in case of acceptance of such incomplete affidavits in order to remove deficiencies in the format of the prescribed affidavit.
(10) Heard Mr. Prashant Bhushan, learned Counsel for the Petitioner-organization, Ms. Meenakshi Arora, learned Counsel for the Election Commission of India-Respon- dent No. 1 herein and Mr. A. Mariarputham, learned senior Counsel for the Union of India.
Prayer/Relief Sought for:
Stand of the Petitioner-Organization:
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(11) The Petitioner-organization pleaded for issuance of appropriate writ/direc- tion including the writ of mandamus directing the Respondents herein to make it compulsory for the Returning Officers to ensure that the affidavits filed by the candi- dates are complete in all respects and to reject those nomination papers, which are accompanied by blank affidavits.
Stand of the Election Commission of India:
It is the stand of the Election Commission of India that the judgment in People’s Union for Civil Liberties (PUCL) (supra) does not empower the Returning Officers to reject the nomination papers solely due to furnishing of false/incomplete/blank information in the affidavits signed by the candidates. In succinct, they put forth the argument that they do not have any latitude for rejecting the nomination papers in view of the above mentioned judgment. However, learned Counsel for the Election Commission of India made an assertion that the Election Commission too is of the opinion that incomplete nomination papers must be rejected. Hence, the Election Commission of India sought for clarification in that regard.
Stand of the Union of India:
The Union of India also put forth the similar contention as raised by the Election Commission. Interestingly, the Union of India also raised a query as to how this Court will be justified in accepting the nomination paper with false information but rejecting the nomination paper for filing affidavit with particulars left blank and hence prayed that both the abovesaid situations must be treated at par.
Discussion:
(12) Both the Petitioner-organisation and the Respondent/UOI sought divergent remedies against the same situation viz., wherein the affidavit filed by the candidate stating the information given as correct but the particulars of the same are left blank. The Petitioner-organisation is seeking for rejection of nomination paper in such a situation whereas the Union of India is pleading for treating it at par with filing false affidavit and to prosecute the candidate Under Section 125A of the Representation of the People Act, 1951 (in short ‘the RP Act’).
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(13) In order to appreciate the issue involved, it is desirable to refer the relevant provisions of the RP Act. Sections 33A, 36 and 125A of the RP Act read as under: 33A. Right to information.-(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomina- tion paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether -
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3), of Section 8] and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in Sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under Sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under Sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
36. Scrutiny of nomination.-(1) On the date fixed for the scrutiny of nominations Under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.
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(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:-
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: Articles 84, 102, 173 and 191,
Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in Clause (b) or Clause (c) of Sub-section (2) shall be deemed to authorize the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the returning officer or is made
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by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement, of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.
125A. Penalty for filing false affidavit, etc.-A candidate who himself or through his proposer, with intent to be elected in an election,-
(i) fails to furnish information relating to Sub-section (1) of Section 33A; or
(ii) gives false information which he knows or has reason to believe to be false; or
(iii) conceals any information, in his nomination paper delivered under Sub- section (1) of Section 33 or in his affidavit which is required to be delivered under Sub-section (2) of Section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
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(14) In view of the above, the power to reject the nomination paper by the Return- ing Officer on the instance of candidate filing the affidavit with particulars left blank can be derived from the reasoning of a three-Judge Bench of this Court in Shaligram Shrivastava v. Naresh Singh Patel (2003) 2 SCC 176. In the aforesaid case, the nomination paper of a candidate got rejected at the time of scrutiny Under Section 36(2) of the RP Act on the ground that he had not filled up the proforma prescribed by the Election Commission wherein the candidate was required to state whether he had been convicted or not for any offence mentioned in Section 8 of the RP Act. In actual, the candidate therein had filed an affidavit stating that the information given in the proforma was correct but the proforma itself was left blank. The candidate therein coincidentally raised somewhat similar contention as pleaded by the Union of India in the present case. The candidate pleaded that his nomination paper could not be rejected on the ground that he had not filled up the proforma prescribed since no such proforma was statutorily provided under the provisions of the Act or under the rules framed thereunder. It was contended that the Commission could not legislate to prescribe a proforma; at best it can only be an executive instruction of the Election Commission whereas the Petitioner had filled the proforma prescribed under the Rules, which did not suffer from any defect.
(15) Although, the grounds of contention may not be exactly similar to the case on hand but the reasoning rendered in that verdict will come in aid for arriving at a decision in the given case. In order to arrive at a conclusion in that case, this Court traversed through the objective behind filing the proforma. The proforma mandated in that case was required to be filed as to the necessary and relevant information with regard to the candidate in the light of Section 8 of the RP Act. This Court further held that at the time of scrutiny, the Returning Officer is entitled to satisfy himself whether the candidate is qualified and not disqualified, hence, the Returning Offi- cer was authorized to seek such information to be furnished at the time or before scrutiny. It was further held that if the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, then he is obviously avoiding a statutory inquiry being conducted by the Returning Officer Under Section 36(2) of the RP Act relating to his being not qualified or disqualified in the light of Section 8 of the RP Act. It is bound to result in defect of a substantial character in the nomination.
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This Court further held as under:
17. In the case in hand the candidate had failed to furnish such information as sought on the pro forma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made Under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same.
(16) It is clear that the Returning Officers derive the power to reject the nomina- tion papers on the ground that the contents to be filled in the affidavits are essential to effectuate the intent of the provisions of the RP Act and as a consequence, leaving the affidavit blank will in fact make it impossible for the Returning Officer to verify whether the candidate is qualified or disqualified which indeed will frustrate the -ob ject behind filing the same. In concise, this Court in Shaligram (supra) evaluated the purpose behind filing the proforma for advancing latitude to the Returning Officers to reject the nomination papers.
(17) In the light of the above reasoning, now let us Assess the facts of the given case. In Association for Democratic Reforms (supra), this Court arrived at a decision that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and it would include their decision of casting votes in favour of a particular candidate. This Court further held that if there was a disclosure by a candidate with regard to his crimi- nal antecedents, assets and liabilities and educational qualification, then it would strengthen the voters in taking appropriate decision of casting their votes.
This Court further stated as under:
38. If right to telecast and right to view to sport games and right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter - a little man - to know about the antecedents of his candidate cannot be held to be a fundamental right under
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Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry, which makes democracy a farce. Therefore, casting of vote by a misinformed and non- informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information, which includes freedom to hold opinions. Entertainment is implied in freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.
46. ...4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
...7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man-citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing lawbreakers as law-makers.
(18) Thus, this Court held that a voter has the elementary right to know full par- ticulars of a candidate who is to represent him in the Parliament and such right to
373 “No voter to be left behind” get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in un- equivocal terms, it is recognized that the citizen’s right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires.
(19) With this background, Section 33A of the RP Act was enacted by Act 72 of 2002 with effect from 24.08.2002. Thus, the purpose of the Act 72 of 2002 was to effectuate the right contemplated in Association for Democratic Reforms (supra). However, the legislators did not incorporate all the suggestions as directed by this Court in the above case but for mandating all the candidates to disclose the criminal antecedents Under Section 33A by filing an affidavit as prescribed along with the nomination paper filed Under Section 33(1) of the RP Act so that the citizens must be aware of the criminal antecedents of the candidate before they can exercise their freedom of choice by casting of votes as guaranteed under the Constitution of India. As a result, at present, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and edu- cational qualifications.
(20) Let us now test whether the filing of affidavit stating that the information given in the affidavit is correct but leaving the contents blank would fulfill the objective be- hind filing the same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the nomination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory.
(21) For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date of scrutiny. We were appraised that the
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Election Commission already has a standard draft format for reminding the candi- dates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby conveying the message that no affidavit with blank particulars will be entertained. We reiterate that it is the duty of the Returning Officer to check whatever the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomi- nation paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
(22) We also clarify to the extent that in our coherent opinion the above power of rejection by the Returning Officer is not barred by Para 73 of People’s Union for CivilLiberties (PUCL) (supra) which reads as under:
73. While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn for Democratic Reforms case, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the ‘documentary proof’. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector’s version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn for Democratic Reforms case and as provided under the Representation of the People Act and its third Amendment.
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(23) The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the nomination paper for fur- nishing wrong information or concealing material information and providing for a summary inquiry at the time of scrutiny of the nominations cannot be justified since in such matters the documentary proof may not be clinching and the candidate con- cerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to contradict the objector’s version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time. Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing af- fidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will not come in the way of the Returning Officer to reject the nomination paper if the said affidavit is filed with blank columns. The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank, if he desires that his nomination paper be accepted by the Returning Officer.
(24) At this juncture, it is vital to refer to Section 125A of the RP Act. As an outcome, the act of failure on the part of the candidate to furnish relevant informa- tion, as mandated by Section 33A of the RP Act, will result in prosecution of the candidate. Hence, filing of affidavit with blank space will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning officer, we find no reason why the candidate must again be penalized for the same act by prosecuting him/her.
(25) If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution, viz., ‘right to know’, which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms (supra).
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(26) In succinct, if the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (su- pra). Further, the subsequent act of prosecuting the candidate Under Section 125A(i) will bear no significance as far as the breach of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to accept the contention of the Union of India.
(27) What emerges from the above discussion can be summarized in the form of following directions: (i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Consti- tution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Return- ing Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
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(v) We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her.
(28) The Writ Petition is disposed of with the above directions.
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JUDGMENT-17 SUPREME COURT OF INDIA
Writ Petition (Civil) No.161 of 2004 (Decision dated 27/09/2013)
People’s Union for Civil Liberties & Anr...... Petitioner (s)
Versus
Union of India & Anr...... Respondent (s)
Constitution of India, 1950: Art.19(1)(a) - Freedom of speech and expression -- Deci- sion taken by a voter after verifying the credentials of the candidate, either to vote or not is a form of expression under Art.19(1)(a) -- Fundamental right under Art.19(1) (a) read with statutory right under s.79(d) of the R.P. Act, 1951 is violated unreason- ably if right not to vote effectively is denied and secrecy is breached.
Representation of the People Act, 1951 - s.79(d)- Right to vote or not to vote is a statutory right –HELD: None of the Above (NOTA) option should be provided on the EVM and ballot papers to maintain secrecy of voter deciding not to vote for any of the contesting candidates. (Para 61)
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SUMMARY
This Writ Petition was filed before the Hon’ble Supreme Court under Article 32 of the Constitution of India challenging the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Elections Rules, 1961, to the extent these provi- sions violate the secrecy of voting required to be maintained as per Section 128 of the Representation of the People Act, 1951, and Rules 39 and 49-M of the 1961 Rules in the case of voter who decides not to cast his vote at an election for any of the contesting candidates in fray.
Held by the Apex Court : Casting of vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitu- tion of India and any violation of the said right gives the aggrieved person the right to approach the Supreme Court under Article 32 of the Constitution. Right to vote as well as right not to vote have been statutorily recognized under Section 79(d) of the R.P. Act, 1951 and Rules 41 (2) & (3) of the C.E. Rules, 1961. The fundamental right under Article 19(1)(a) read with statutory electoral right granted under Section 79 (d) of the R.P. Act, 1951 is violated unreasonably if the right not to vote effectively is denied and secrecy is breached.
It was held that secrecy of ballot is a privilege granted in public interest to an individual. The Apex Court directed the Election Commission to provide “None of the Above” (NOTA) option on the EVM and ballot papers so that the electors who do not want to vote for any of the candidates can exercise their option in secrecy. It was also held that the provisions of Rules 41(2) and 49-O under which an elector not wishing to vote for any candidate had to inform the Presiding Officer about his decision, are ultra vires Article 19(1)(a) of the Constitution and Section 128 of the Representation of the People Act, 1951.
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JUDGMENT
Hon’ble P. Sathasivam, Chief Justice Hon’ble Ranjana Prakash Desai, Judge Hon’ble Ranjan Gogoi, Judge
Advocates for Appearing Parties: P.P. Malhotra, ASG, Rajinder Sachhar, Sr. Adv., Bushra Parveen, Mamta Saxena, A.N. Singh, Sanjay Parikh, S. Wasim A. Qadri, Yasir Rauf, Sushma Suri, B.V. Balram Das, D.S. Mahra, Meenakshi Arora, S.K. Mendiratta, Vasav Anantharamey, Kamini Jaiswal, Raghenth Basant, Arjun Singh Bhati, Hardeep Singh and Liz Mathew, Advs;
(1) The present writ petition, under Article 32 of the Constitution of India, has been filed by the Petitioners herein challenging the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Election Rules, 1961 (in short ‘the Rules’) to the extent that these provisions violate the secrecy of voting which is fundamental to the free and fair elections and is required to be maintained as per Section 128 of the Representation of the People Act, 1951 (in short ‘the RP Act’) and Rules 39 and 49-M of the Rules.
(2) The Petitioners herein have preferred this petition for the issuance of a writ or direction(s) of like nature on the ground that though the above said Rules, viz., Rules 41(2) and (3) and 49-O, recognize the right of a voter not to vote but still the secrecy of his having not voted is not maintained in its implementation and thus the impugned rules, to the extent of such violation of the right to secrecy, are not only ultra vires to the said Rules but also violative of Articles 19(1)(a) and 21 of the Con- stitution of India besides International Covenants.
(3) In the above backdrop, the Petitioners herein prayed for declaring Rules 41(2) and (3) and 49-O of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election Commission of India-Respondent No. 2 herein, to provide necessary provision in the ballot papers as well as in the electronic voting
381 “No voter to be left behind” machines for the protection of the right of not to vote in order to keep the exercise of such right a secret under the existing RP Act/the Rules or under Article 324 of the Constitution.
(4) On 23.02.2009, a Division Bench of this Court, on an objection with regard to maintainability of the writ petition on the ground that right to vote is not a funda- mental right but is a statutory right, after considering Union of India v. Association for Democratic Reforms and Anr. (2002) 5 SCC 294 and People’s Union for Civil Liberties v. Union of India (2003) 4 SCC 399 held that even though the judgment in Kuldip Nayar and Ors. v. Union of India and Ors. (2006) 7 SCC 1 did not over- rule or discard the ratio laid down in the judgments mentioned above, however, it creates a doubt in this regard, referred the matter to a larger Bench to arrive at a decision.
(5) One Centre for Consumer Education and Association for Democratic Re- forms have filed applications for impleadment in this Writ Petition. Impleadment applications are allowed.
(6) Heard Mr. Rajinder Sachhar, learned senior Counsel for the Petitioners, Mr. P.P. Malhotra, learned Additional Solicitor General for the Union of India-Respon- dent No. 1 herein, Ms. Meenakshi Arora, learned Counsel for the Election Com- mission of India-Respondent No. 2 herein, Ms. Kamini Jaiswal and Mr. Raghenth Basant, learned Counsel for the impleading parties.
Contentions:
(7) Mr. Rajinder Sachhar, learned senior Counsel for the Petitioners, by taking us through various provisions, particularly, Section 128 of the RP Act as well as Rules 39, 41, 49-M and 49-O of the Rules submitted that in terms of Rule 41(2) of the Rules, an elector has a right not to vote but still the secrecy of his having not vot- ed is not maintained under Rules 41(2) and (3) thereof. He further pointed out that similarly according to Rule 49-O of the Rules, the right of a voter who decides not to vote has been accepted but the secrecy is not maintained. According to him, in case an elector decides not to record his vote, a remark to this effect shall be made
382 “No voter to be left behind” against the said entry in Form 17-A by the Presiding Officer and the signature or thumb impression of the elector shall be obtained against such remark. Hence, if a voter decides not to vote, his record will be maintained by the Presiding Officer which will thereby disclose that he has decided not to vote. The main substance of the arguments of learned senior Counsel for the Petitioners is that though right not to vote is recognized by Rules 41 and 49-O of the Rules and is also a part of the freedom of expression of a voter, if a voter chooses to exercise the said right, it has to be kept secret. Learned senior Counsel further submitted that both the above pro- visions, to the extent of such violation of the secrecy clause are not only ultra vires but also contrary to Section 128 of the RP Act, Rules 39 and 49-M of the Rules as well as Articles 19(1)(a) and 21 of the Constitution.
(8) On the other hand, Mr. P.P. Malhotra, learned Additional Solicitor General appearing for the Union of India submitted that the right to vote is neither a funda- mental right nor a constitutional right nor a common law right but is a pure and simple statutory right. He asserted that neither the RP Act nor the Constitution of In- dia declares the right to vote as anything more than a statutory right and hence the present writ petition is not maintainable. He further pointed out that in view of the decision of the Constitution Bench in Kuldip Nayar (supra), the reference for decid- ing the same by a larger Bench was unnecessary. He further pointed out that in view of the above decision, the earlier two decisions of this Court, viz., Association for Democratic Reforms and Anr. (supra) and People’s Union for Civil Liberties (supra), stood impliedly overruled, hence, on this ground also reference to a larger Bench was not required. He further pointed out that though the power of Election Commis- sion under Article 324 of the Constitution is wide enough, but still the same can, in no manner, be construed as to cover those areas, which are already covered by the statutory provisions. He further pointed out that even from the existing provisions, it is clear that secrecy of ballot is a principle which has been formulated to ensure that in no case it shall be known to the candidates or their representatives that in whose favour a particular voter has voted so that he can exercise his right to vote freely and fearlessly. He also pointed out that the right of secrecy has been extended to only those voters who have exercised their right to vote and the same, in no manner, can be extended to those who have not voted at all. Finally, he submitted that since Section 2(d) of the RP Act specifically defines “election” to mean an election to fill a seat, it cannot be construed as an election not to fill a seat.
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(9) Ms. Meenakshi Arora, learned Counsel appearing for the Election Commis- sion of India-Respondent No. 2 herein, by pointing out various provisions both from the RP Act and the Rules submitted that inasmuch as secrecy is an essential feature of “free and fair elections”, Rules 41(2) and (3) and 49-O of the Rules violate the requirement of secrecy.
(10) Ms. Kamini Jaiswal and Mr. Raghenth Basant, learned Counsel appearing for the impleading parties, while agreeing with the stand of the Petitioners as well as the Election Commission of India, prayed that necessary directions may be issued for providing another button viz., “None of the Above” (NOTA) in the Electronic Vot- ing Machines (EVMs) so that the voters who come to the polling booth and decide not to vote for any of the candidates, are able to exercise their right not to vote while maintaining their right of secrecy.
(11) We have carefully considered the rival submissions and perused the relevant provisions of the RP Act and the Rules.
Discussion:
(12) In order to answer the above contentions, it is vital to refer to the relevant provisions of the RP Act and the Rules. Sections 79(d) and 128 of the RP Act read as under:
79(d)--”electoral right” means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election.
128-Maintenance of secrecy of voting.—
(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy:
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Provided that the provisions of this Sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States.
(2) Any person who contravenes the provisions of Sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.
Rules 39(1), 41, 49-M and 49-O of the Rules read as under:
39. Maintenance of secrecy of voting by electors within polling station and voting procedure.--(1) Every elector to whom a ballot paper has been issued under Rule 38 or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
41. Spoilt and returned ballot papers.—
1. An elector who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper may, on returning it to the presiding officer and on satisfying him of the inadvertence, be given another ballot paper, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked “Spoilt: cancelled” by the presiding officer.
2. If an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as “Returned: cancelled” by the presiding officer.
3. All ballot papers cancelled under Sub-rule (1) or Sub-rule (2) shall be kept in a separate packet.
49M. Maintenance of secrecy of voting by electors within the polling station and voting procedures.—
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1. Every elector who has been permitted to vote under Rule 49L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
2. Immediately on being permitted to vote the elector shall proceed to the presiding officer or the polling officer incharge of the control unit of the voting machine who shall, by pressing the appropriate button on the control unit, activate the balloting unit; for recording of elector’s vote.
3. The elector shall thereafter forthwith--(a) proceed to the voting compartment;(b) record his vote by pressing the button on the balloting unit against the name and symbol of the candidate for whom he intends to vote; and(c) come out of the voting compartment and leave the polling station.
4. Every elector shall vote without undue delay.
5. No elector shall be allowed to enter the voting compartment when another elector is inside it.
6. If an elector who has been permitted to vote under Rule 49L or Rule 49P refuses after warning given by the presiding officer to observe the procedure laid down in Sub-rule (3) of the said rules, the presiding officer or a polling officer under the direction of the presiding officer shall not allow such elector to vote.
7. Where an elector is not allowed to vote under Sub-rule (6), a remark to the effect that voting procedure has been violated shall be made against the elector’s name in the register of voters in Form 17A by the presiding officer under his signature.
49-O. Elector deciding not to vote.--If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A and has put his signature or thumb impression thereon as required under Sub-rule (1) of Rule 49L, decide not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.
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(13) Apart from the above provisions, it is also relevant to refer Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights, which read as under:
“21(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
(a) *** *** ***;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;”
(14) Articles 19(1)(a) and 21 of the Constitution, which are also pertinent for this matter, are as under:
19-Protection of certain rights regarding freedom of speech, etc.--(1) All citizens shall have the right-
(a) to freedom of speech and expression;
21-Protection of life and personal liberty--No person shall be deprived of his life or personal liberty except according to procedure established by law.
(15) From the above provisions, it is clear that in case an elector decides not to record his vote, a remark to this effect shall be made in Form 17-A by the Presid- ing Officer and the signature or thumb impression of the elector shall be obtained against such remark.
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Form 17-A reads as under:
FORM-17A REGISTER of VOTERS
Election to the House of the People/Legislative Assembly of the State/Union territory ....from....Constituency No. and Name of Polling Station....Part No. of Electoral Roll....
Signature of the Presiding Officer
(16) Before elaborating the contentions relating to the above provisions with ref- erence to the secrecy of voting, let us first consider the issue of maintainability of the WritPetition as raised by the Union of India. In the present Writ Petition, which is of the year 2004, the Petitioners have prayed for the following reliefs:
(i) declaring that Rules 41(2) and (3) and 49-O of the Conduct of Election Rules, 1961 are ultra vires and unconstitutional to the extent they violate secrecy of vote;
(ii) direct the Election Commission under the existing Representation of People Act, 1951 and the Conduct of Election Rules, 1961 and/or under Article 324 to provide necessary provision in the ballot papers and the voting machines for protection of right not to vote and to keep the exercise of such right secret;
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(17) It is relevant to point out that initially the present Writ Petition came up for hearing before a Bench of two-Judges. During the course of hearing, an objection was raised with regard to the maintainability of the Writ Petition under Article 32 on the ground that the right claimed by the Petitioners is not a fundamental right as enshrined in Part III of the Constitution. It is the categorical objection of the Union of India that inasmuch as the writ petition under Article 32 would lie to this Court only for the violation of fundamental rights and since the right to vote is not a fundamental right, the present Writ Petition under Article 32 is not maintainable. It is the specific stand of the Union of India that right to vote is not a fundamental right but merely a statutory right. It is further pointed out that this Court, in Para 20 of the referral order dated 23.02.2009, reported in (2009) 3 SCC 200, observed that since in Kuldip Nayar (supra), the judgments of this Court in Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra) have not been specifically over- ruled which tend to create a doubt whether the right to vote is a fundamental right or not and referred the same to a larger Bench stating that the issue requires clarity. In view of the reference, we have to decide:
(i) Whether there is any doubt or confusion with regard to the right of a voter in Kuldip Nayar (supra);
(ii) Whether earlier two judgments viz., Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra)referred to by the Constitution Bench in Kuldip Nayar (supra) stand impliedly overruled.
(18) Though, Mr. Malhotra relied on a large number of decisions, we are of the view that there is no need to refer to those decisions except a reference to the decision of this Court in Kuldip Nayar (supra), Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra).
(19) A three-Judge Bench of this Court comprising M.B. Shah, P. Venkatarama Reddi and D.M. Dharmadhikari, JJ. expressed separate but concurring opinions in the People’s Union for Civil Liberties (supra). In para 97, Reddi, J made an observation as to the right to vote being a Constitutional right if not a fundamental right which reads as under:
389 “No voter to be left behind”
97. In Jyoti Basu v. Debi Ghosal(1982) 3 SCR 318 this Court again pointed out in no uncertain terms that:
8 “a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right.
With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely, R.P. act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarifica- tion, the argument of the learned Solicitor General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met....
Similarly, in para 123, point No. 2 Reddi, J., held as under: (2) The right to vote at the elections to the House of the People or Legislative As- sembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the ac- complishment of freedom of expression of the voter. Except the above two paragraphs, this aspect has nowhere been discussed or elab- orated wherein all the three Judges, in their separate but concurring judgments, have taken the pains to specifically distinguish between right to vote and freedom of voting as a species of freedom of expression. In succinct, the ratio of the judgment was that though the right to vote is a statutory right but the decision taken by a voter after verifying the credentials of the candidate either to vote or not is his right of expression under Article 19(1)(a) of the Constitution.
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(20) As a result, the judgments in Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra) have not disturbed the position that right to vote is a statutory right. Both the judgments have only added that the right to know the background of a candidate is a fundamental right of a voter so that he can take a rational decision of expressing himself while exercising the statutory right to vote.
In People’s Union for Civil Liberties (supra), Shah J., in para 78D, held as under:
...However, voters’ fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution....
P. Venkatarama Reddi, J., in Para 97, held as under:
...Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom....
Dharmadhikari, J., in para 127, held as under:
...This freedom of a citizen to participate and choose a candidate at an election is distinct from exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act....
In view of the above, Para 362 in Kuldip Nayar (supra) does not hold to the contrary, which reads as under:
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We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal that a right to elect, fundamental though it is to democracy, is neither a funda mental right nor a common law right, but pure and simple, a statutory right.
(21) After a careful perusal of the verdicts of this Court in Kuldip Nayar (supra), Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (su- pra), we are of the considered view that Kuldip Nayar (supra) does not overrule the other two decisions rather it only reaffirms what has already been said by the two aforesaid decisions. The said paragraphs recognize that right to vote is a statutory right and also in People’s Union for Civil Liberties (supra) it was held that “a fine dis- tinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression”. Therefore, it cannot be said that Kuldip Nayar (supra) has observed anything to the contrary. In view of the whole debate of whether these two decisions were overruled or discarded because of the opening line in Para 362 of Kuldip Nayar (supra) i.e., “we do not agree with the above submissions...” we are of the opinion that this line must be read as a whole and not in isolation. The contention of the Petitioners in Kuldip Nayar (supra) was that majority view in People’s Union for Civil Liberties (supra) held that right to vote is a Constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution. It is this contention on which the Constitution Bench did not agree too in the opening line in para 362 and thereafter went on to clarify that in fact in People’s Union for Civil Liberties (supra), a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression. Thus, there is no contradiction as to the fact that right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case. With the above observation, we hold that there is no doubt or confusion persisting in the Constitution Bench judgment of this Court in Kuldip Nayar (supra) and the decisions in Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (PUCL) (supra) do not stand impliedly overruled.
Whether the present writ petition under Article 32 is maintainable:
392 “No voter to be left behind”
(22) In the earlier part of our judgment, we have quoted the reliefs prayed for by the Petitioners in the writ petition. Mr. Malhotra, learned Additional Solicitor Gener- al, by citing various decisions submitted that since right to vote is not a fundamental right but is merely a statutory right, hence, the present writ petition under Article 32 is not maintainable and is liable to be dismissed. He referred to the following deci- sions of this Court in N.P. Ponnuswami v. Returning officer 1952 SCR 218, Jamuna Prasad Mukhariya v. Lachhi Ram 1955 (1) SCR 608, University of Delhi v. Anand Vardhan Chandal (2000) 10 SCC 648, Kuldip Nayar (supra) and K. Krishna Mur- thy (Dr.) v. Union of India (2010) 7 SCC 202, wherein it has been held that the right to vote is not a fundamental right but is merely a statutory right.
(23) In Kochunni v. State of Madras 1959 (2) Supp. SCR 316, this Court held that the right to move before this Court under Article 32, when a fundamental right has been breached, is a substantive fundamental right by itself. In a series of cases, this Court has held that it is the duty of this Court to enforce the guaranteed funda- mental rights.[Vide Daryo v. State of U.P. 1962 (1) SCR 574].
(24) The decision taken by a voter after verifying the credentials of the candidate either to vote or not is a form of expression under Article 19(1)(a) of the Constitution. The fundamental right under Article 19(1)(a) read with statutory right Under Section 79(d) of the RP Act is violated unreasonably if right not to vote effectively is denied and secrecy is breached. This is how Articles 14 and 19(1)(a) are required to be read for deciding the issue raised in this writ petition. The casting of the vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution of India (Vide: Association for Democratic Re- forms (supra)and People’s Union for Civil Liberties (supra). Therefore, any violation of the said rights gives the aggrieved person the right to approach this Court under Article 32 of the Constitution of India. In view of the above said decisions as well as the observations of the Constitution Bench in Kuldip Nayar (supra), a prima facie case exists for the exercise of jurisdiction of this Court under Article 32.
(25) Apart from the above, we would not be justified in asking the Petitioners to approach the High Court to vindicate their grievance by way of a writ petition under Article 226 of the Constitution of India at this juncture. Considering the reliefs
393 “No voter to be left behind” prayed for which relate to the right of a voter and applicable to all eligible voters, it may not be appropriate to direct the Petitioners to go to each and every High Court and seek appropriate relief. Accordingly, apart from our conclusion on legal issue, in view of the fact that the writ petition is pending before this Court for the last more than nine years, it may not be proper to reject the same on the ground, as pleaded by learned ASG. For the reasons mentioned above, we reject the said contention and hold that this Court is competent to hear the issues raised in this writ petition filed under Article 32 of the Constitution.
Discussion about the relief prayed for in the writ petition:
(26) We have already quoted the relevant provisions, particularly, Section 128 of the RP Act, Rules 39, 41, 49M and 49-O of the Rules. It is clear from the above pro- visions that secrecy of casting vote is duly recognized and is necessary for strength- ening democracy. We are of the opinion that paragraph Nos. 441, 442 and 452 to 454 of the decision of the Constitution Bench in Kuldip Nayar (supra), are relevant for this purpose which are extracted hereinbelow:
441. Voting at elections to the Council of States cannot be compared with a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimisation. There is no party affiliation and hence the choice is entirely with the voter. This is not the case when elections are held to the Council of States as the electors are elected Members of the Legislative Assemblies who in turn have party affiliations.
442. The electoral systems world over contemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which House members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon; in representative democracy, particularly to the upper chamber, indirect means of election adopted on party lines is well accepted practice.
394 “No voter to be left behind”
452. Parliamentary democracy and multi-party system are an inherent part of the basic structure of the Indian Constitution. It is the political parties that set up candidates at an election who are predominantly elected as Members of the State Legislatures. The context in which general elections are held, secrecy of the vote is necessary in order to maintain the purity of the electoral system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted. But here we are concerned with a voter who is elected on the ticket of a political party. In this view, the context entirely changes.
453. That the concept of “constituency-based representation” is different from “proportional representation” has been eloquently brought out in United Democratic Movement v. President of the Republic of South Africa where the question before the Supreme Court was: whether “floor crossing” was fundamental to the Constitution of South Africa. In this judgment the concept of proportional representation vis-à-vis constituency-based representation is highlighted...
454. The distinguishing feature between “constituency-based representation” and “proportional representation” in a representative democracy is that in the case of the list system of proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to the concept of proportional representation, Parliament can suggest “open ballot”. In such a case, it cannot be said that “free and fair elections” would stand defeated by “open ballot”. As stated above, in a constituency-based election it is the people who vote whereas in proportional representation it is the elector who votes. This distinction is indicated also in the Australian judgment in R. v. Jones. In constituency-based representation, “secrecy” is the basis whereas in the case of proportional representation in a representative democracy the basis can be “open ballot” and it would not violate the concept of “free and fair elections”, which concept is one of the pillars of democracy.
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(27) The above discussion in the cited paragraphs makes it clear that in direct elections to Lok Sabha or State Legislatures, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear of being victimized if his vote is disclosed.
(28) After referring to Section 128 of the RP Act and Rule 39 of the Rules, this Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. 1980 (Supp) SCC 53 held as under:
14…Secrecy of ballot can be appropriately styled as a postulate of constitutional democracy. It enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a very vital public interest in that an elector or a voter should be absolutely free in exercise of his franchise untrammelled by any constraint, which includes constraint as to the disclosure. A remote or distinct possibility that at some point a voter may under a compulsion of law be forced to disclose for whom he has voted would act as a positive constraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise. Therefore, it can be said with confidence that this postulate of constitutional democracy rests on public policy.
(29) In the earlier part of this judgment, we have referred to Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Cove- nant on Civil and Political Rights, which also recognize the right of secrecy.
(30) With regard to the first prayer of the Petitioners, viz., extension of principle of secrecy of ballot to those voters who decide not to vote, Mr. Malhotra, learned ASG submitted that principle of secrecy of ballot is extended only to those voters who have cast their votes in favour of one or the other candidates, but the same, in no manner, can be read as extended to even those voters who have not voted in the election. He further pointed out that the principle of secrecy of ballot pre-supposes validly cast vote and the object of secrecy is to assure a voter to allow him to cast his vote without any fear and in no manner it will be disclosed that in whose favour he has voted or he will not be compelled to disclose in whose favour he voted. The pith
396 “No voter to be left behind” and substance of his argument is that secrecy of ballot is a principle which has been formulated to ensure a voter (who has exercised his right to vote) that in no case it shall be known to the candidates or their representatives that in whose favour a par- ticular voter has voted so that he can exercise his right to vote freely and fearlessly. The stand of the Union of India as projected by learned ASG is that the principle of secrecy of ballot is extended only to those voters who have cast their vote and the same in no manner can be extended to those who have not voted at all.
(31) Right to vote as well as right not to vote have been statutorily recognized Under Section 79(d) of the RP Act and Rules 41(2) and (3) and 49-O of the Rules respectively. Whether a voter decides to cast his vote or decides not to cast his vote, in both cases, secrecy has to be maintained. It cannot be said that if a voter decides to cast his vote, secrecy will be maintained Under Section 128 of the RP Act read with Rules 39 and 49M of the Rules and if in case a voter decides not to cast his vote, secrecy will not be maintained. Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act.
(32) As regards the question as to whether the right of expression under Article 19 stands infringed when secrecy of the poll is not maintained, it is useful to refer S. Raghbir Singh (supra) wherein this Court deliberated on the interpretation of Section 94 of the RP Act which mandates that no elector can be compelled as a witness to disclose his vote. In that case, this Court found that the “secrecy of ballots constitutes a postulate of constitutional democracy...A remote or distinct possibility that the voter at some point of time may under a compulsion of law be forced to disclose for whom he has voted would act as a positive constraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise”. Secrecy of ballot, thus, was held to be a privilege granted in public interest to an individual. It is pertinent to note that in the said case, the issue of the disclosure by an elector of his vote arose in the first place because there was an allegation that the postal ballot of an MLA was tampered with to secure the victory of one of the candidates to the Rajya Sabha. Therefore, seemingly there was a conflict between the “fair vote” and “secret ballot”.
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(33) In Kuldip Nayar (supra), this Court held that though secrecy of ballots is a vital principle for ensuring free and fair elections, the higher principle is free and fair elections. However, in the same case, this Court made a copious distinction between “constituency based representation” and “proportional representation”. It was held that while in the former, secrecy is the basis, in the latter the system of open ballot and it would not be violative of “free and fair elections”. In the said case, R. v. Jones (1972) 128 CLR 221 and United Democratic Movement v. President of the Republic of South Africa (2003) 1 SA 495 were also cited with approval.
(34) Therefore, in view of the decisions of this Court in S. Raghubir Singh Gill (su- pra) and Kuldip Nayar (supra), the policy is clear that secrecy principle is integral to free and fair elections which can be removed only when it can be shown that there is any conflict between secrecy and the “higher principle” of free elections. The in- stant case concerns elections to Central and State Legislatures that are undoubtedly “constituency based”. No discernible public interest shall be served by disclosing the elector’s vote or his identity. Therefore, secrecy is an essential feature of the “free and fair elections” and Rule 49-O undoubtedly violates that requirement.
(35) In Lily Thomas v. Speaker, Lok Sabha (1993) 4 SCC 234, this Court held that “voting is a formal expression of will or opinion by the person entitled to exer- cise the right on the subject or issue in question” and that “right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well”.
(36) In view of the same, this Court also referred to the Practice and Procedure of the Parliament for voting which provides for three buttons: viz., AYES, NOES and ABSTAIN whereby a member can abstain or refuse from expressing his opinion by casting vote in favour or against the motion. The constitutional interpretation given by this Court was based on inherent philosophy of parliamentary sovereignty.
(37) A perusal of Section 79(d) of the RP Act, Rules 41(2) and (3) and Rule 49-O of the Rules make it clear that a right not to vote has been recognized both under the RP Act and the Rules. A positive ‘right not to vote’ is a part of expression of a voter in a parliamentary democracy and it has to be recognized and given effect to in the
398 “No voter to be left behind” same manner as ‘right to vote’. A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote. One of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and responsible citizen. Thus, the only way by which it can be made effectual is by providing a button in the EVMs to express that right. This is the basic requirement if the lasting values in a healthy democracy have to be sustained, which the Election Commission has not only recognized but has also asserted.
(38) The Law Commission of India, in its 170th Report relating to Reform of the Electoral Laws recommended for implementation of the concept of negative vote and also pointed out its advantages.
(39) In India, elections traditionally have been held with ballot papers. As ex- plained by the Election Commission, from 1998 onwards, the Electronic Voting Machines (EVMs) were introduced on a large scale. Formerly, under the ballots pa- per system, it was possible to secretly cast a neutral/negative vote by going to the polling booth, marking presence and dropping one’s ballot in the ballot box without making any mark on the same. However, under the system of EVMs, such secret neutral voting is not possible, in view of the provision of Rule 49B of the Rules and the design of the EVM and other related voting procedures. Rule 49B of the Rules mandates that the names of the candidates shall be arranged on the balloting unit in the same order in which they appear in the list of contesting candidates and there is no provision for a neutral button.
(40) It was further clarified by the Election Commission that EVM comprises of two units, i.e. control and balloting units, which are interconnected by a cable. While the balloting unit is placed in a screened enclosure where an elector may cast his vote in secrecy, the control unit remains under the charge of the Presiding Officer and so placed that all polling agents and others present have an unhindered view of all the operations. The balloting unit, placed inside the screened compartment at the polling station gets activated for recording votes only when the button marked “Bal- lot” on the control unit is pressed by the presiding officer/polling officer in charge. Once the ballot button is pressed, the Control unit emanates red light while the
399 “No voter to be left behind” ballot unit which has been activated to receive the vote emanates green light. Once an elector casts his vote by pressing balloting button against the candidate of his choice, he can see a red light glow against the name and symbol of that candidate and a high-pitched beep sound emanates from the machine. Upon such casting of vote, the balloting unit is blocked, green light emanates on the control unit, which is in public gaze, and the high pitched beep sound is heard by one and all. Thereafter, the EVM has to re-activate for the next elector by pressing “ballot button”. Howev- er, should an elector choose not to cast his vote in favour of any of the candidates labeled on the EVM, and consequently, not press any of the labeled button neither will the light on the control unit change from red to green nor will the beep sound emanate. Hence, all present in the poll booth at the relevant time will come to know that a vote has not been cast by the elector.
(41) Rule 49-O of the Rules provides that if an elector, after his electoral roll num- ber has been entered in the register of electors in Form 17-A, decides not to record his vote on the EVM, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and signature/thumb impression of the elector shall be obtained against such remark. As is apparent, mechanism of casting vote through EVM and Rule 49-O compromise on the secrecy of the vote as the elector is not provided any privacy when the fact of the neutral/negative voting goes into record.
42. Rules 49A to 49X of the Rules come under Chapter II of Part IV of the Rules. Chapter II deals with voting by Electronic Voting Machines only. Therefore, Rule 49-O, which talks about Form 17-A, is applicable only in cases of voting by EVMs. The said Chapter was introduced in the Rules by way of an amendment dated 24.03.1992. Voting by ballot papers is governed by Chapter I of Part IV of the Rules. Rule 39 talks about secrecy while voting by ballot and Rule 41 talks about ballot papers. However, as said earlier, in the case of voting by ballot paper, the candidate always had the option of not putting the cross mark against the names of any of the candidates and thereby record his disapproval for all the candidates in the fray. Even though such a ballot paper would be considered as an invalid vote, the voter still had the right not to vote for anybody without compromising on his/ her right of secrecy. However, with the introduction of EVMs, the said option of not
400 “No voter to be left behind” voting for anybody without compromising the right of secrecy is not available to the voter since the voting machines did not have ‘None of the Above’ (NOTA) button.
(43) It is also pointed out that in order to rectify this serious defect, on 10.12.2001, the Election Commission addressed a letter to the Secretary, Ministry of Law and Justice stating, inter alia, that the “electoral right” Under Section 79(d) includes a right not to cast vote and sought to provide a panel in the EVMs so that an elector may indicate that he does not wish to vote for any of the aforementioned candidates. The letter also stated that such number of votes expressing dissatisfaction with all the candidates may be recorded in a result sheet. It is also brought to our notice that no action was taken on the said letter dated 10.12.2001.
(44) The Election Commission further pointed out that in the larger interest of pro- moting democracy, a provision for “None of the Above” or “NOTA” button should be made in the EVMs/ballot papers. It is also highlighted that such an action, apart from promoting free and fair elections in a democracy, will provide an opportunity to the elector to express his dissent/disapproval against the contesting candidates and will have the benefit of reducing bogus voting.
(45) Democracy and free elections are part of the basic structure of the Consti- tution. In Indira Nehru Gandhi v. Raj Narain 1975 Supp 1 SCC 198, Khanna, J., held that democracy postulates that there should be periodic elections where the people should be in a position to re-elect their old representatives or change the representatives or elect in their place new representatives. It was also held that de- mocracy can function only when elections are free and fair and the people are free to vote for the candidates of their choice. In the said case, Article 19 was not in issue and the observations were in the context of basic structure of the Constitution. There- after, this Court reiterated that democracy is the basic structure of the Constitution in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 and Kihoto Hollohon v. Zachillhu and Ors. 1992 (Supp) 2 SCC 651.
(46) In order to protect the right in terms of Section 79(d) and Rule 49-O, viz., “right not to vote”, we are of the view that this Court is competent/well within its
401 “No voter to be left behind” power to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate. This Court is also justified in giving such directions in order to give effect to the right of expression under Article 19(1)(a) and to avoid any discrimination by directing the Election Commission to provide NOTA button in the EVMs.
(47) With regard to the above, Mr. Malhotra, learned ASG, by drawing our attention to Section 62 of the RP Act, contended that this Section enables a person to cast a vote and it has no scope for negative voting. Section 62(1) of the RP Act reads as under:
62. Right to vote.(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(48) Mr. Malhotra, learned ASG has also pointed out that elections are conduct- ed to fill a seat by electing a person by a positive voting in his favour and there is no concept of negative voting under the RP Act. According to him, the Act does not envisage that a voter has any right to cast a negative vote if he does not like any of the candidates. Referring to Section 2(d) of the RP Act, he asserted that election is only a means of choice or election between various candidates to fill a seat. Finally, he concluded that negative voting (NOTA) has no legal consequence and there shall be no motivation for the voters to travel to the polling booth and reject all the candidates, which would have the same effect of not going to the polling station at all.
(49) However, correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.
402 “No voter to be left behind”
(50) Eventually, voters’ participation explains the strength of the democracy. Less- er voter participation is the rejection of commitment to democracy slowly but defi- nitely whereas larger participation is better for the democracy. But, there is no yard- stick to determine what the correct and right voter participation is. If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same. The voters’ participation in the election is indeed the participation in the democracy itself. Non-participation causes frustration and disin- terest, which is not a healthy sign of a growing democracy like India. Conclusion:
(51) Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essen- tial that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting.
(52) No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand.
(53) Democracy is all about choice. This choice can be better expressed by giv- ing the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the
403 “No voter to be left behind” considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people. 12(54) Free and fair election is a basic structure of the Constitution and nec- essarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Arti- cle 14. Thus, secrecy is required to be maintained for both categories of persons.
(55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.
(56) The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them.
(57) As mentioned above, the voting machines in the Parliament have three but- tons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the Petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote. (58) The mechanism of negative voting, thus, serves a very fundamental and essen- tial part of a vibrant democracy. The following countries have provided for neutral/ protest/negative voting in their electoral systems:
404 “No voter to be left behind”
405 “No voter to be left behind”
* Write-in’-The ‘write-in’ form of negative voting allows a voter to cast a vote in fa- vour of any fictional name/candidate.
(59) The Election Commission also brought to the notice of this Court that the present electronic voting machines can be used in a constituency where the number of contesting candidates is up to 64. However, in the event of there being more than 64 candidates in the poll fray, the conventional system of ballot paper is resorted to. Learned Counsel appearing for the Election Commission also asserted through supplementary written submission that the Election Commission of India is presently exploring the possibility of developing balloting unit with 200 panels. Therefore, it was submitted that if in case this Court decides to uphold the prayers of the Petition- ers herein, the additional panel on the balloting unit after the last panel containing the name and election symbol of the last contesting candidate can be utilized as the NOTA button. Further, it was explicitly asserted in the written submission that the provision for the above facility for a negative or neutral vote can be provided in the existing electronic voting machines without any additional cost or administrative effort or change in design or technology of the existing machines. For illustration, if there are 12 candidates contesting an election, the 13th panel on the balloting unit will contain the words like “None of the above” and the ballot button against this panel will be kept open and the elector who does not wish to vote for any of the abovementioned 12 contesting candidates, can press the button against the 13th panel and his vote will be accordingly recorded by the control unit. At the time of the counting, the votes recorded against serial number 13 will indicate as to how many electors have decided not to vote for any candidate.
(60) Taking note of the submissions of Election Commission, we are of the view that the implementation of the NOTA button will not require much effort except for allotting the last panel in the EVM for the same.
(61) In the light of the above discussion, we hold that Rules 41(2) and (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting. In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/ EVMs and another button called “None of the Above” (NOTA) may be provided in
406 “No voter to be left behind”
EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to im- plement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses.
(62) The writ petition is disposed of with the aforesaid directions.
407 “No voter to be left behind”
JUDGMENT-18
SUPREME COURT OF INDIA
Civil Appeal No.9093 of 2013 (Decision dated 08/10/2013)
Subramanian Swamy...... …...... Appellant
Versus
Election Commission of India...... …...... Respondents
WITH Writ Petition (C) NO. 406 OF 2012
Rajendra Satyanarayan Gilda...... …....Petitioner
Versus.
Union of India & Ors...... Respondents
Election Laws -- Voting - Introduction of Voter Verifiable Paper Audit Trail (VVPAT) with Electronic Voting Machine (EVM) – System of `paper trail’ is indispensable re- quirement of free and fair elections and for achieving confidence of the voters –
HELD:EVMs with VVPAT system ensure accuracy of voting system - ECI permitted to introduce the system in gradual stages – Conduct of Election Rules, 1961 - rr. 49A to 49X, 66A, 55C, 56C, 57C and Form 17C. (Para 30)
408 “No voter to be left behind”
SUMMARY
The appellant filed writ petition before High Court of Delhi seeking writ of Mandamus directing Election Commission of India to incorporate a system of “Paper trail/Paper Receipt” in the Electronic Voting Machines (EVM) as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particu- lar candidate. The petition was dismissed by the High Court. Hence, the present appeal. The other writ petition under Article 32 also prayed for writ of Mandamus directing the respondents to effect the necessary modifications in the EVMs so as to allow the voters to verify their respective votes and attach printers to EVMs with a facility to print the running record of the votes. The petitioner also prayed for a direction to frame guidelines and to effect necessary amendments in the Conduct of Elections Rules, 1961.
The stand of the Election Commission was that the apprehension that EVMs could be tampered with, is baseless as the technology employed is such that it can- not be manipulated in any manner. There has been no instance of tampering with EVMs by anyone since its introduction. However, to make the voting procedure more transparent the Commission has been in the process of exploring the possibility of incorporating a viable Voter Verifiable Paper Audit Trail (VVPAT) system with EVMs. Ultimately, the design of VVPAT system was finalised on 19.01.2013 and the rele- vant rules of the Conduct of Elections Rules, 1961 were modified to enable use of VVPAT with EVMs and Notified in the Gazette of India on 14.08.2013.
The Commission thereafter decided to use the VVPAT system for the first time in the bye-election from 51-Noksen (ST) Assembly Constituency in the State of Nagaland. In order to ascertain the efficacy of the newly introduced VVPAT system the Commission decided on its own to manually count paper slips of VVPAT besides electronic count of EVM. No discrepancy was found between both the electronic and paper count. The report was placed before the Court.
The Supreme Court observed that it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance
409 “No voter to be left behind” in democratic system. It permitted the ECI to introduce the system in gradual stages in the coming general elections and directed the Govt. of India to provide required financial assistance for procurement of required number of units of VVPAT for con- duct of general elections all over India.
The Appeal and the Writ Petition were disposed with the above directions.
410 “No voter to be left behind”
JUDGMENT
Hon’ble P. Sathasivam, Chief Justice Hon’ble Ranjan Gogoi, Judge Advocate for appearing parties: Subramanian Swamy (Petitioner-In-Person), Ashok Desai and Meenakshi Arora, Sr. Advs., R.R. Deshpande, Jaishanker Agrawala, Sita Agrawala, S.K. Mendiratta, Vasav Ananthraman, Mohit D. Ram (Intervenor-in-per- son) and Debasis Misra, Advs.
(1) Leave granted. Civil Appeal @ SLP (C) No. 13735 of 2012
(2) This appeal is directed against the judgment and order dated 17.01.2012 passed by the Division Bench of the High Court of Delhi at New Delhi in W.P.(C) No. 11879 of 2009 whereby the High Court disposed of the petition by disallowing the prayer made by the Appellant herein for issuance of a writ of mandamus directing the Election Commission of India (ECI)-Respondent herein to incorporate a system of “paper trail/paper receipt” in the Electronic Voting Machines (EVMs) as a convinc- ing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate.
(3) Being aggrieved of the above, the present appeal has been filed by way of special leave.
Writ Petition (Civil) No. 406 of 2012
(4) One Rajendra Satyanarayan Gilda has filed this Writ Petition, under Article 32 of the Constitution of India, praying for issuance of a writ of mandamus/direc- tion(s) directing the Union of India, the Chief Election Commissioner and the Tech- nical Experts Committee-Respondent Nos. 1-3 herein respectively to effect the nec- essary modifications in the EVMs so as to allow the voters to verify their respective votes and to attach the printers to the EVMs with a facility to print the running record of the votes for the purpose of verification by the voters in the process of voting. He
411 “No voter to be left behind” also prayed for a direction to frame guidelines and to effect necessary amendments in the Conduct of Election Rules, 1961.
(5) In view of the pendency of the appeal filed by Dr. Subramanian Swamy, this Court issued notice in the writ petition and tagged with the said appeal.
(6) Heard Dr. Subramanian Swamy, Appellant-in-person in the appeal, Dr. R.R. Deshpande, learned Counsel for the writ Petitioner, Mr. Ashok Desai and Ms. Meenakshi Arora, learned senior Counsel for the ECI.
Contentions:
(7) Dr. Subramanian Swamy, the Appellant herein contended before this Court that the present system of EVMs, as utilized in the last few general elections in India, does not meet all the requirements of the international standards and though the ECI maintains that the EVMs cannot be tampered with, but the fact is that EVMs, like all electronic equipments, are open to hacking.
(8) The Appellant has further highlighted that the instant matter arises out of the refusal of the ECI to incorporate a certain obvious safeguard in the EVMs called “paper backup”, “paper receipt” or “paper trail”, presently in use and mandated in some countries like USA, which would easily and cheaply meet the requirement of proof that the EVM has rightly registered the vote cast by a voter. The Appellant has further highlighted that the “paper trail” system is to supplement the procedure of voting as in this procedure, after recording a vote in the EVM, a print out will come out which will appraise the voter that his vote has been rightly registered and the same will be deposited in a box which can only be used by the ECI in case of election dispute.
(9) It is the categorical stand of the Appellant that the above said system will bring more accuracy in the present system and if a particular election is challenged on the ground that some particular identified voter’s voter or the votes of a group of voters have been suppressed/have not been correctly assigned by the EVMs, the accepted current procedure is for a re-run of the same EVMs for a re-count, how-
412 “No voter to be left behind” ever, under the new procedure, a re-count will be of the receipts in the ballot box containing the printouts the EVMs had issued to the voter thereby ensuring more transparency in the process.
(10) The writ Petitioner has also raised similar contentions as those of Dr. Swamy. According to the Petitioner, in the present system of voting through EVMs, there is no such facility by which a voter can verify and confirm his own voting. At present, a voter presses a button only but cannot ascertain the actual voting. He is not sure whether his vote is recorded or not, if recorded, whether it is recorded in favour of the person to whom it was intended or not. Whether it is valid or invalid and wheth- er it is counted or not. It is submitted by the Petitioner that unless and until answers to these questions are personally seen by the voter, it cannot be said that voting is made by him because “pressing a button of choice and getting flashed the red-light” is not actual voting in real sense unless the voter knows well that what has happened in consequence of pressing a button of his choice from the EVMs.
Stand of the Election Commission of India:
(11) Mr. Ashok Desai, learned senior Counsel for the ECI submitted that the ap- prehension that EVMs could be tampered with is baseless. It was also informed to this Court that the ECI has been exploring the possibility of incorporating a viable Voter Verifiable Paper Audit Trail (VVPAT) system as a part of the presently used EVMs to make the election system more transparent. Further, it was brought to our notice that the ECI conducted field trials for VVPAT system earlier also but the same had not been successful and were discontinued. The ECI also filed a counter affidavit stating that the EVMs provided by the Commission are of such a high end technolo- gy that it cannot be hacked.
(12) Referring to Section 61A of the Representation of the People Act, 1951, it is submitted that the Statute itself provides for recording of votes by EVMs and the ECI has been given the discretion to prescribe recording of votes by such EVMs as it may deem fit. This discretion has to be exercised in a manner to preserve the sanctity of the election process and ensure that the election is conducted in a free and fair manner. The ECI has exercised due diligence to ensure that EVMs so used are
413 “No voter to be left behind”
“tamper proof” and it is also in the process of exploring to incorporate VVPAT system which is compatible with the present EVMs used by it. It is asserted that there is no instance of tampering with EVMs so far by anyone.
(13) It is further submitted that the EVMs used in India are unique and unlike the ones used in the elections in USA and other countries, which are personal comput- er based. EVMs deployed by the ECI have been lauded not only in India but also abroad. EVM’s Control Unit retains in the memory each vote recorded elector-wise. The information stored in the memory of the Control Unit can be retrieved by using a device called the “decoder” which, when attached to the Control Unit of EVM, can print out the statement of voting data showing the order in which each voter has voted and to whom he has voted.
(14) Insofar as the transparency of the election process as well as the right of a voter to know whether his vote has actually been recorded for the candidate for whom it was cast is concerned, it is submitted that as soon as a vote is recorded by a voter by pressing the “candidate’s” button on the Ballot Unit, a light glows against the name and symbol of the candidate, which the voter can see for himself/herself. This is a visual (electronic) assurance to the voter that the candidate for whom he has cast his vote has actually got that vote. Thereafter, the light goes off to protect the secrecy of voting.
(15) It is further submitted that the feasibility of VVPAT system was sought to be explored to by various political parties and they were explained the technical and administrative safeguards. The ECI also constituted a Technical Experts Committee to examine the viability of the VVPAT system. On 27.05.2011, the Technical Experts Committee, after discussion with political parties and civil society members and also after seeing the demonstration of the prototype VVPAT system developed by M/s. Bharat Electronics Ltd. (BEL) and M/s. Electronics Corporation of India Ltd. (ECIL), recommended that a field test of the prototype VVPAT system should be carried out in a simulated election under different environmental conditions in Jaisalmer, Thiru- vananthapuram, Delhi, Leh and Cherrapunji. The ECI also held further meetings with the manufacturers of EVMs on various dates to fine tune the system and expedite the follow up action required. Several meetings were also held with the Expert Committee on VVPAT system.
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(16) In wider fulfillment of the objectives of the field trial, the ECI has requested the National and State parties to extend necessary cooperation by getting involved in the trial process actively and also witness the trial in order to have a first hand experience of the system. The ECI has also requested the individuals including the Appellant - Dr. Subramanian Swamy and the groups, who have been engaged with the ECI on the issue of EVM-VVPAT, to witness the trial.
(17) We have carefully perused the relevant materials and considered the rival contentions.
Discussion:
(18) When the matter was listed before this Court for hearing on 27.09.2012, Mr. Ashok Desai had brought to our notice that the ECI is contemplating foolproof method in EVMs for which they are taking various steps in consultation with the Technical Experts Committee and the views of all recognized political parties. Mr. Desai also promised to appraise this Court about the deliberations and the ultimate decision to be taken by them in this regard. Accordingly, this Court granted sufficient time to the ECI to file Status Report regarding introduction of VVPAT system in EVMs to be used in the elections.
(19) Pursuant to the directions of this Court, the ECI filed a Status Report on the developments of VVPAT system. In the said report, the ECI, citing various technicali- ties, prayed for further time to make the system more robust for the field conditions.
(20) On 15.12.2012, M/s. BEL, Bangalore filed a report showing the status of development of VVPAT system which contains changes that have been carried out in VVPAT from September to December, 2012 and also furnished chronological changes made in VVPAT system after the field trial of the VVPAT system held in July and August, 2012.
(21) Pursuant to the directions of this Court, the Secretary, ECI, filed an affidavit highlighting the following steps/information:
415 “No voter to be left behind”
(i) That vide its Affidavit dated 14.01.2013, the Commission had filed the status report regarding introduction of the VVPAT system in the Electronic Voting Machines (EVMs).
(ii) That subsequently, in the Technical Expert Committee meeting held on 04.02.2013, the Committee approved the design of the VVPAT and decided that software fine tun- ing will be done and completed by the end of February, 2013, and modified design specifications will be submitted to the Technical Expert Committee for approval.The Committee also recommended that the Commission may for using the VVPAT and that the VVPAT should be tried in a bye-election.
(iii) That in the Technical Expert Committee meeting held on 19.02.2013, the Com- mittee finalized the VVPAT design.The manufacturers, namely, M/s. Bharat Elec- tronics Limited and M/s. Electronics Corporation of India Limited have quoted Rs. 16,200/- (excluding duties, taxes and transport charges) per VVPAT system.The Commission has decided to purchase sufficient units of VVPAT for trials in a Bye-elec- tion, at an approximate cost of Rs. 72,90,000/- (Rupees seventy two lakh ninety thousand) approximately.
(iv) It is submitted that the Commission will require approximately 13 lakh VVPAT units to be manufactures for 13 lakh EVMs presently available and roughly about Rs. 1690 crores (One Thousand Six Hundred Ninety Crores)(i.e. 13 lakh units x Rs. 13,000 per unit) are required for the purpose of implementation of the VVPAT system taking into account the possible reduction in the cost per unit when produced in bulk.
(v) It is further submitted that in order to implement the new system the Conduct of Election Rules, 1961 will require certain amendments. In this connection, vide letter No. 3/1/2013/Vol. II/SDR/86 dated 28.03.2013, the Commission has informed the Legislative Department of the Ministry of Law and Justice inter alia the various amendments required to the relevant parts of Rules 49A to 49X, 66A, 55C, 56C, 57C and Form 17C of the Conduct of Elections Rules, 1961, as well as introduction of Rules 49MA and 56D in the said Rules...
416 “No voter to be left behind”
(vi) That the Commission has called for a meeting of all the recognized National and State Parties on 10th May, 2013 for the purpose of demonstration of VVPAT unit to them and for discussion with them for eliciting their views regarding use of VVPAT system in the elections. The Petitioner herein and others interested in the mat- ter would also be invited at the meeting.
(22) It is seen from the records that after various deliberations with the experts and persons concerned with the technology, the Technical Experts Committee ap- proved the final design of VVPAT units in its meeting held on 19.01.2013. In order to meet the directions of this Court and for proper execution of VVPAT system, as noticed above, the ECI in its letter dated 28.03.2013, addressed to the Secretary to the Government of India, Ministry of Law and Justice stated that necessary ground work for amendment to the Conduct of Election Rules, 1961 (in relevant parts in Rules 49A to 49X, 66A, 55C, 56C, 57C and Form 17C) may be made so that the amendment to the Rules can be notified immediately which will enable the ECI to use the VVPAT system in bye-elections in consultation with the political parties. By plac- ing all those materials, the ECI requested the Ministry of Law and Justice for drafting and notifying amendment Rules expeditiously.
(23) From the materials placed by the ECI, it is noted that the purchase order has been placed with M/s. BEL and M/s. ECIL for supplying 150 and 300 VVPAT units respectively at Rs. 16,200/- per unit excluding excise duty, sales tax and transpor- tation etc. costing Rs. 72,90,000/- (approx.). The ECI has also highlighted that if the VVPAT systems are ultimately to be used with all the 13 lakh EVMs available, the total cost in the purchase of VVPAT units may come to about Rs. 1,690 crores, taking into account the possible reduction in the cost per unit due to bulk production the cost may come to Rs. 13,000/- per unit approximately.
(24) The affidavit dated 21.08.2013, filed on behalf of the ECI, shows that the Ministry of Law and Justice, on 24.07.2013, referred the draft notification to amend the Conduct of Election Rules, 1961 to provide for use of VVPAT system of elections to the ECI for its views and comments. The ECI suggested certain minor modifications in the draft notification and sent the same back to the Ministry of Law and Justice on 02.08.2013 with a request to notify the amendment Rules at the earliest. Accordingly,
417 “No voter to be left behind” the Ministry of Law and Justice notified the amendments to the Conduct of Election Rules, 1961 in the Gazette of India vide notification No. dated 14.08.2013 to en- able use of VVPAT with EVMs.
(25) The aforesaid affidavit of the ECI also shows that the ECI had also convened a meeting of all the recognized National and State political parties on 10.05.2013 and demonstrated before their representatives the working of VVPAT system. Sepa- rately, on the same day, the ECI also held a meeting with individuals including the Appellant herein who had been engaged with the ECI over the past several years regarding the functioning of EVMs. VVPAT system was demonstrated before them as well. Representatives of political parties and other individuals expressed their sat- isfaction over the VVPAT system. Thereafter, the ECI had decided to use the VVPAT system in the bye-election from 51-Noksen (ST) Assembly Constituency in the State of Nagaland. Instructions were issued to hold special meetings with the contesting candidates in that constituency to brief them about the use of VVPAT system. The ECI also organized special training sessions for poll officers for the use of VVPAT and steps were taken to educate the electors for the same.
(26) After various hearings, when the matter was heard on 4.10.2013, an affida- vit dated 01.10.2013 filed on behalf of the ECI was placed before this Court. The said affidavit was filed to place on record the performance/result of the introduction of the VVPAT system in the bye-election from 51-Noksen (ST) Assembly Constituency of Nagaland for which the poll was conducted on 04.09.2013 indicating the future course of action to be decided by the ECI on the basis of said performance. By this affidavit, it was brought to our notice that since VVPAT system was being used for the first time, the ECI has decided that intensive training shall be given to the polling officers. Members of the Technical Experts Committee of the ECI also went to super- vise training and the actual use of VVPAT in the bye-election. It is further stated that the ECI also wrote letters to all the recognized political parties and other persons, including the Appellant herein, engaged with the ECI on this subject inviting them to witness the use of VVPAT. It is also brought to our notice that VVPAT was successfully used in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Na- galand. It was also stated that as per the Rules, the paper slips of VVPAT shall not be counted normally except in case the Returning Officer decides to count them on
418 “No voter to be left behind” an application submitted by any of the candidates. However, since VVPAT system was being used for the first time in any election, the ECI decided on its own to count paper slips of VVPAT in respect of all polling stations. According to the ECI, no dis- crepancy was found between the electronic and paper count.
(27) In the said affidavit, it is finally stated that the ECI has decided to increase the use of VVPAT units in a phased manner and for this purpose the ECI has already written to the Government of India, Ministry of Law and Justice to issue administra- tive and financial sanction for procurement of 20,000 units of VVPAT (10,000 each from M/s. BEL and M/s. ECIL) costing about Rs. 38.01 crore.
(28) Though initially the ECI was little reluctant in introducing “paper trail” by use of VVPAT, taking note of the advantage in the system as demonstrated by Dr. Subramanian Swamy, we issued several directions to the ECI. Pursuant to the same, the ECI contacted several expert bodies, technical advisers, etc. They also had var- ious meetings with National and State level political parties, demonstrations were conducted at various places and finally after a thorough examination and full dis- cussion, VVPAT was used successfully in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that VVPAT system is a successful one. We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his vote, in addition to the electronic record of the ballot, for the purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute.
(29) From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system.
419 “No voter to be left behind”
(30) In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner. We appreciate the efforts and good gesture made by the ECI in introducing the same.
(31) For implementation of such a system (VVPAT) in a phased manner, the Gov- ernment of India is directed to provide required financial assistance for procurement of units of VVPAT.
(32) Before parting with the case, we record our appreciation for the efforts made by Dr. Subramanian Swamy as well as the ECI, in particular Mr. Ashok Desai and Ms. Meenakshi Arora, learned senior Counsel for the ECI.
(33) With the above directions, the appeal and the writ petition are disposed of. No separate order is required in the applications for intervention. Both sides are permitted to approach this Court for further direction(s), if need arises.
420 “No voter to be left behind”
JUDGMENT-19 HIGH COURT OF ALLAHABAD
(Lucknow Bench)
Misc. Bench No.2796 of 2014 (Decision dated 07/04/2014)
Dr. Nutan Thakur ...... Petitioner
Versus
Election Commission of India & Ors...... Respondents
HELD:Constitution of India -- Article 324 - R.P. Act, 1950 - Sec. 13CC – R.P. Act,1951 – Sec.28A – Administrative Service (Cadre) Rules, 1954 – Transfer of officers connected with election ordered by the Election Commission is not a case of transfer under All India Service Rules, but a case of deemed deputation during election period. (Para 8)
Transfer does not infringe any right of the officer concerned and the officer employed in connection with conduct of election – the officers concerned are supposed to act and conduct themselves in aid of the Election Commission.
Indian Administrative Service (Cadre) Rules, 1954 and Indian Police Service (Cadre) Rules, 1954 --- These statutory rules only regulate the postings, appointments and transfers of members of the cadre services -- not a law relating to or in connection with the elections and hence do not operate in any area or field or activity connected with elections.
421 “No voter to be left behind”
SUMMARY
This Public interest writ petition was filed challenging the authority of the Elec- tion Commission of India in transferring certain officers in the State of Uttar Pradesh belonging to Indian Administrative Service (IAS), Indian Police Service (IPS), Provin- cial Civil Service (PCS) and Provincial Police Service (PPS) in exercise of the plenary powers under Article 324 after issue of notification for election for constituting the new Lok Sabha 2014.
The contention of the petitioner was that the transfer orders passed by the State Govt. on the directions of the Election Commission were illegal and in contra- vention of the newly added provisions in the Indian Administrative Service (Cadre) Rules, 1954 and Indian Police Service (Cadre) Rules, 1954 that prescribes that any transfer of IAS and IPS officers before the minimum period of two years at a partic- ular place could be made only after referring the matter to the Civil Services Board.
The Hon’ble High Court considered the matter as to whether the power con- ferred and enjoined on the Commission under Article 324 of the Constitution is all encompassing and the same could be put to service for requiring the State Govts. to pass transfer orders of the civil services officers employed in connection with the conduct of election without taking recourse to the provisions of the Cadre Rules.
The High Court held that the plenary power conferred upon the Commission under Article 324 of the Constitution for smooth conduct of elections is subject to limitation only in case where Parliament or State Legislature has made a valid law in connection with the elections. It held that the Cadre Rules cannot be said to be a law relating to or in connection with the elections and hence do not operate in any area or field or activity connected with elections.
The High Court further observed that such transfer and posting of officers connected with elections, who are treated to be on deemed deputation to the Com- mission under Section 13-CC of the R.P. Act, 1950 and Section 28-A of the R.P. Act, 1951, does not infringe any right of the officer concerned and the officer employed in connection with conduct of election are supposed to act and conduct themselves in aid of the Election Commission.
Accordingly the writ petition was dismissed.
422 “No voter to be left behind”
JUDGMENT
Hon’ble Imtiyaz Murtaza, Judge Hon’ble D.K. Upadhyay, Judge.
Advocate for Appellant/Petitioner/Plaintiff: Asok Pande and Tripuresh Tripathi; Advocate for Respondents/Defendant: C.S.C., A.S.G. and Manish Mathur;
(1) Heard Sri Asok Pande, learned counsel for the petitioner, Sri Manish Mathur, learned counsel appearing for the Election Commission of India and learned stand- ing counsel for Union of India as well as for State of U.P. This public interest litigation petition has been filed challenging the authority of the Election Commission of India in transferring certain officers belonging to Indian Administrative Service, Indian Po- lice Service, Provincial Civil Service and Provincial Police Service after notification for election for constituting the new Lok Sabha 2014 was issued.
(2) Prayer has been made to reassess and reevaluate all the transferred orders of various officers of the aforesaid services and to cancel the same which have al- legedly been made against the procedure prescribed in the Indian Administrative Service (Cadre) Rules, 1954 and Indian Police Service (Cadre) Rules, 1954, as amended upto date.
(3) The petitioner has further prayed that an appropriate order be issued to the Election Commission of India requiring it to issue directions regarding transfer, of the officers of the aforesaid cadres only by speaking order and on proper application of mind and further, after getting some appropriate inquiry conducted against the officers, who are to be transferred.
(4) The notification for conducting election of Loksabha-2014 was issued on 5.3.2014. The petitioner has quoted two instances of transferred members of Indian Administrative Service and Indian Police Service who have been transferred by the State Government on the directions issued by the Election Commission of India, one on 26.3.2014 whereby 44 officers belonging to Indian Police Services and District
423 “No voter to be left behind”
Magistrates of 22 districts were transferred and second on 30.3.2014 when few more members of Indian Administrative Service and Indian Police Service in the State of U.P. were transferred.
(5) Submission made by learned counsel for the petitioner, in nutshell, is that transfer orders passed by the State Government on the directions of Election Com- mission of India are illegal and irrational inasmuch as while passing the said orders, the newly added provisions in Indian Administrative Service (Cadre) Rules, 1954 and Indian Police Service (Cadre) Rules, 1954 have not been adhered to. Accord- ing to learned counsel for the petitioner non-adherence to the provisions of aforesaid Cadre Rules, 1954 renders the entire exercise of power by Election Commission of India in transferring the officers illegal and irrational. It has been submitted that in the year 2014 by way of amendment the relevant Rules in the Indian Administrative Service (Cadre) Rules and Indian Police Service (Cadre) Rules were amended. (6) Submission is that by not adhering to the amended provisions of the Cadre Rules, the Election Commission has violated the mandate of the Hon’ble Apex Court as can be found in the cases of Prakash Singh v. Union of India, (2006) 8 SCC 1, T.S.R. Subramanian and others v. Union of India and others, 2013 6 AWC 6018 SC and Lok Prahari through its General Secretary v. Union of India and others (Writ Petition No. 2425 (M/B) of 2011), which has been decided by a Division Bench of this Court.
(7) Sri Pande, learned counsel for the petitioner has submitted that keeping in view the amendments in the Cadre Rules and the aforesaid judgments, it was not open to the Election Commission to have ordered transfer of the members of Indi- an Administrative Service and Indian Police Service without referring the matter of transfer and posting to the Civil Services Board and without taking into account the minimum period of posting of the officers at a particular place.
(8) On the other hand, vehemently opposing the prayers made in this public interest writ petition, Sri Manish Mathur, learned counsel appearing for Election Commission of India has submitted that Election Commission of India derives the plenary powers under Article 324 of the Constitution of India which include all pow- ers necessary for conducting the election in a free, fair and smooth manner. He has
424 “No voter to be left behind” also referred to the provisions of Section 13-CC of the Representation of People Act, 1950 and Section 28-Aof Representation of the People Act, 1951 to assert that the officers employed in connection with the election related affairs are to be deemed to be on deputation to the Election Commission for the period during which there are so-employed and further that such officers and staff shall be subject to the control, superintendence and discipline of the Election Commission. He has also drawn at- tention of the Court to paragraph 46 of the judgment of Hon’ble Apex Court in the case of Union of India v. Association for Democratic Reforms and another, (2002) 5 SCC 294, to defend the power of Election Commission requiring the State to effect the transfer of officers belonging to Indian Administrative Service, Indian Police Ser- vice, Provincial Civil Service and Provincial Police Service.
(9) We have considered the competing arguments made by learned counsel appearing for the respective parties and have also gone through the record of the writ petition.
(10) There cannot be any dispute that so far as the transfer and posting of the members of Indian Administrative Service and Indian Police Service is concerned, the Cadre Rules of the respective services hold the field and the amendment brought thereto are to be followed by the respective State Governments while ordering trans- fers and postings of such officers.
(11) According to the Indian Administrative Service (Cadre) Rules as it exists in the statue book after the amendment, the cadre officer shall hold office for at least two years unless he stands promoted or retired or is sent on deputation outside the State or goes for training. The posting/transfer can be effected only on the recom- mendation of Civil Services Board constituted as per specifications available in the schedule appended to the cadre Rules. The amendment Rules provide that the Gov- ernment may transfer a cadre officer even before the minimum specified period on the recommendation of the Civil Services Board. The Board has been constituted to discharge similar functions in respect of members of Indian Police Service as well.
(12) However, what needs to be considered in the matter at hand in the present case is as to whether the power conferred on and enjoined to Election Commission
425 “No voter to be left behind” of India under Article 324 of the Constitution of India is all encompassing and the same can be put to service for requiring the State Governments to pass transfer orders of the officers employed in connection with the conduct of election without taking recourse to the provisions of the Cadre Rules.
(13) As far as the nature of powers conferred upon the Election Commission is concerned, we may observe that the same are plenary in nature which can be employed for smooth conduct of elections. The said plenary character of power of Election Commission of India is subject to limitation only in case where parliament or state legislature has made a valid law in connection with the elections.
(14) The issue relating to nature and character of power of the Election Com- mission of India under Article 324 of the Constitution of India has already been considered by the Hon’ble Apex Court in the case of Union of India v. Association for Democratic Reforms and another (supra). It has been held by the Hon’ble Apex Court in an unambiguous term that the jurisdiction of the Election Commission is wide enough to include all powers necessary for fair and smooth conduct of elec- tions. It has also been held by the Hon’ble Apex Court that the word “elections” in the present context is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
(15) The Hon’ble Apex Court has further observed in the aforesaid case that limitation on plenary character of powers of the Election Commission is only when Parliament or State Legislature has made a valid law relating to or in connection with elections.
(16) We are satisfied that the Election Commission has, in the present case, acted in conformity with the said settled law. It has been settled by the Hon’ble Apex Court in the case of Union of India v. Association for Democratic Reforms and another (su- pra) that the powers of Election Commission can be limited only in case there exists a Parliamentary enactment or a piece of legislation enacted by the State Legislature relating to or in connection with elections. In this view, what needs to be examined in this case is as to whether the provisions of Cadre Rules which have heavily been relied upon by learned counsel for the petitioner, can be said to be a piece of
426 “No voter to be left behind” legislation enacted either by the Parliament or by the State Legislature operating in the fields connected with elections.
(17) We have no doubt that the Indian Administrative Service (Cadre) Rules, 1954 and Indian Police Service (Cadre) Rules, 1954 as amended upto date are statutory in nature having been framed in exercise of powers conferred by Section 3 of All India Services Act, 1951. The said rules, though statutory in nature, have been framed only to regulate the postings, appointments and transfers of the members of Indian Administrative Service and Indian Police Service. The said Rules do not oper- ate in any area or field or activity connected with elections. The Cadre Rules cannot be said to be a law relating to or in connection with the elections. (18) Since, we have already held that the Cadre Rules of the aforesaid services have not been framed for regulating any field or activity relating to or in connection with the elections, any limitation imposed therein in respect of transfers or postings of the members of Indian Administrative Service’ and Indian Police Service cannot be said to be operative on the plenary nature of jurisdiction/power of the Election Commission during course of elections.
(19) We may also notice that during the election period, the officers or staff em- ployed in connection with conduct of the elections are to be treated to be on depu- tation to the Election Commission and further the said officers and staff are subject to control, superintendence and discipline of Election Commission. The said legal position is amply clear from perusal of Section 13-CC of the Representation of Peo- ple Act, 1950 and Section 28-A of the Representation of People Act, 1951 which are quoted hereinbelow:
Section 13-CC, 13-CC- Chief Electoral Officers, District Election Officers, etc. deemed to be on deputation to Election Commission.--The officers referred to in this Part and any other officer or staff employed in connection with the preparation revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
427 “No voter to be left behind”
28. A Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission.--The returning officer, assistant returning officer, presiding officer, polling officer, and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
(20) The words “control”, “superintendence” and “discipline” occurring in Sec- tion 13-CC of Representation of the People Act, 1950 and Section 28-A of Repre- sentation of the People Act, 1951, in our considered opinion, embrace the power, authority and jurisdiction of the Election Commission to require transfer of the officers employed in connection with conduct of elections. Thus, the submission advanced by learned counsel for the petitioner that the State Government ought to act in con- sonance with the provisions of the Cadre Rules even in case where Election Commis- sion requires it to transfer and post the officers belonging to Indian Administrative Service and Indian Police Service during election period is absolutely misconceived for the reason, as discussed above, that Cadre Rules have not been framed nor they can be said to be a law framed in relation to or in connection with elections.
(21) At the cost of repetition, we may further observe that plenary character of power of the Election Commission is subject only to limitation in case where Parlia- ment or State Legislature has made a valid law in connection with elections. (22) It may be of some interest to observe at this juncture that the transfer and post- ing of officers connected with the election at the behest of or at the directions of Elec- tion Commission does not infringe any right of the officer concerned and the officer employed in connection with conduct of election are supposed to act and conduct themselves in aid of Election Commission.
(23) In view of discussions made and reasons given above, we do not find any force in the contention and submission made by learned counsel for the petitioner. (24) The writ petition, therefore, fails and is hereby dismissed. However, there will be no order as to costs.
428 “No voter to be left behind”
JUDGEMNT-20
SUPREME COURT OF INDIA
Civil Appeal No.5044, 5045 and 5078 of 2014 (Decision dated 05/05/2014)
CIVIL APPEAL NO.5044 OF 2014 (@SLP (C) 29882 of 2011)
Ashok Shankarrao Chavan...... Appellant
Versus
Dr. Madhavrao Kinhalkar & Ors...... Respondents
CIVIL APPEAL NO.5045 OF 2014 (@SLP (C) 14209 of 2012)
Madhu Kora...... Appellant
Versus
Election Commission of India ...... Respondent
CIVIL APPEAL NO.5078 OF 2014 (@SLP (C) 21958 of 2013)
Smt. Umlesh Yadav...... Appellant
Versus
Election Commission of India & Ors...... Respondent
429 “No voter to be left behind”
Representation of the People Act, 1951 – Sec.10A – Disqualification for failure to lodge account of election expenses – scope and ambit –Powers of Election Commis- sion under Sec.10A in the matter of disqualification of a Member of Parliament or State Legislature.
It clothes the Commission with the requisite power and authority to enquire into the allegations relating to correctness or falsity of the accounts of election expenses submitted by the candidates – complaints on this ground may be received from any source.
HELD: Section 77-Account of election expenses and maximum thereof – Every candi- date is required to maintain a separate account of expenses incurred in connection with the election and must reflect the correct particulars. (Para 114)
While Section 123(6) is relatable to Section 77(3) when such expenditure exceeds the maximum limit prescribed under Rule 90 of Conduct of Elections Rules, 1960, there is no bar to invoke Section 77(1) and (2) while holding the enquiry under Sec- tion 10A of the Act.
Proceedings under Section 10A is different from proceedings in election petition raising the issue of corrupt practices under Section 123(6) of the Act.
430 “No voter to be left behind”
SUMMARY
The Appellants’ in the above three appeals were all elected candidates from the constituencies from which they contested elections during general election. Shri Ashok Chavan was the returned candidate at the general election to the Ma- harashtra Legislative Assembly held in September-October, 2009 from 85-Bhokar Assembly Constituency and was the incumbent Chief Minister of Maharashtra at that time.
Shri. Madhu Kora was the returned candidate from 10-Singhbhum (ST) Parliamentary Constituency at the general election to the Lok Sabha, 2009.
Smt. Umlesh Yadav was the returned candidate from 24-Bisauli Assembly Constitu- ency at the general election to the Uttar Pradesh Legislative Assembly, 2007.
Complaints were received in the Commission from different sources alleging that these Appellants had not disclosed huge unaccounted expenses incurred by them during elections in their accounts of election expenses, as required to be maintained by every contesting candidate at an election to Lok Sabha and Legislative Assembly under Section 77 of the Representation of the People Act, 1951 (hereinafter referred to as ‘1951- Act’) and lodged with the District Election Officer, concerned under section 78 of the said Act. This was brought to the notice of the Election Commission by one of the rival contestants in the case of Shri Ashok Shankarrao Chavan, by the Central Board of Direct Taxes in the case of Shri Madhu Kora, and by the Press Council in the case of Smt. Umlesh Yadav.
In respect of Shri Ashok Chavan, returned candidate from 85-Borkar assem- bly constituency of Maharashtra, the complainants, namely, (i) Dr. Madhavrao Kin- halkar, one of the rival contestants at the aforesaid general election from 85-Bhokar Assembly Constituency, (ii) Dr. Kirit Somaiya, Vice-President, Bharatiya Janata Party, Maharashtra, and four others, and (iii) Shri Mukhtar Abbas Naqvi, Member of Parliament, Bharatiya Janata Party, and five others, in their complaints submitted to the Election Commission in November-December, 2009, alleged that Shri Ashok Chavan
431 “No voter to be left behind” incurred or authorised huge expenditure in publishing several advertisements and articles as “Paid News” in various newspapers during the election campaign peri- od, in the garb of news eulogizing him and his achievements as Chief Minister of Maharashtra and that the expenditure incurred or authorized on the publication of those paid news was not included by the respondent in his account of election expenses maintained under section 77 of the 1951- Act and lodged with the District Election Officer, Nanded under section 78 of the said Act on 17-11-2009. The com- plainant, therefore, specifically prayed that the account of election expenses of the respondent should be enquired into and action should be taken against him under section 10A of the 1951-Act.
Shri. Madhu Kora, the returned candidate from 10-Singhbhum (ST) Parliamentary Constituency at the general election to the Lok Sabha, 2009 had submitted his ac- count of election expenses as per requirement of Sec.78 of the 1951-Act within the prescribed period with the DEO concerned to the tune of Rs.18,92,353/-, which was within the ceiling of election expenditure of Rs.25 lakh then prescribed under the Conduct of Elections Rules, 1961, (hereinafter referred to as 1961-Rules). Sub- sequently a report was published in Economic Times dated 27.09.2010 regarding the findings of the Income Tax Department about expenditure to the tune of Rs.9 Crores having been incurred by Shri Madhu Kora in his election. The ECI called for the report from IT Department and based thereupon issued a show cause notice to him under Rule 89(5) of the 1961-Rules on 22.01.2011 as to why he should not be disqualified under Sec.10A of the 1951-Act for failure to lodge the true account of election expenses under Sec.78 of the 1951-Act.
In the case of Smt. Umlesh Yadav, sponsored by the Rashtriya Privartan Dal , a com- plaint was filed on 1.7.2010 before the Press Council of India (PCI hereinafter) by one Shri Yogendra Kumar, that two Hindi dailies, namely, `Amar Ujala` and `Dainik Jagran`, having circulation in Badayun district, had published `Paid News` items just a day before the day of poll in her favour. The PCI, after conducting due enqui- ry, forwarded a copy of their adjudication order dated 31st March 2010 holding the newspapers guilty of ethical violations by publishing ‘Paid News’ to the Election Commission for such action as deemed fit. The Commission initiated proceedings on the basis of the complaint of PCI and, after detailed enquiry, disqualified Smt.
432 “No voter to be left behind”
Umlesh Yadav vide Order dated 20/10/2011 for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of any State under the section 10A of the 1951-Act for a period of three years from the date of the order for failure on her part to file her true and correct account of election expenses in compliance of Section 77 of the 1951-Act.
In respect of Shri Ashok Chavan, the Election Commission, after hearing all the parties in the complaint, passed an Order on 02.04.2011 that it has undoubted jurisdiction under section 10A of the 1951 Act, to go into the question of alleged incorrectness or falsity of return of election expenses maintained by the contesting candidate under sections 77(1) and 77(2) and lodged under section 78 of the 1951-Act.
Aggrieved by the above order dated 2nd April, 2011 of the Election Com- mission, a Writ Petition (Civil) No. 2511/2011 was filed before the High Court of Delhi by Shri Ashok Chavan. The High Court dismissed the Writ Petition on 30th September, 2011, upholding the Commission’s impugned order dated 2nd April, 2011 that it has undoubted jurisdiction under section 10A of the Representation of the People Act, 1951, to go into the question of alleged incorrectness or falsity of re- turn of election expenses maintained by contesting candidates under sections 77(1) and 77(2) and lodged under section 78 of the 1951-Act.
Shri Madhu Kora also filed a Writ Petition No.4662/2011 before the Delhi High Court against the notice of the Commission issued to him on 22.01.2011 un- der Section 10A of the 1951 Act. This petition was also dismissed by the Hon’ble Court on 30th September, 2011, in the light of the pronouncement made by it in similar W.P. No.2511/2011 filed by Shri Ashok Chavan.
Smt. Umlesh Yadav had also filed a Writ Petition No.63965 of 2011 before the High Court of Allahabad challenging the order of her disqualification for a period of three years under Section 10A of the 1951 Act issued by the Election Commis- sion on 20/10/2011. This was also dismissed by the Allahabad High Court vide judgment and order dated 03.05.2013.
433 “No voter to be left behind”
Feeling still aggrieved by the order dated 2nd April, 2011 of the Election Com- mission and the order dated 30th September, 2011 of the High Court of Delhi, an SLP (Civil) No.29882/2011 was filed before the Supreme Court by Shri Ashok Chavan. The main issue in the case was whether the Election Commission has been empowered under Section 10A of the R.P. Act, 1951 to hold an enquiry to ascer- tain the correctness or otherwise of the account of election expenses incurred by a returned candidate as maintained under section 77(1) and (2) and lodged with the District Election Officer (DEO) under section 78 of the 1951 Act for the purposes of deciding the question of disqualification under section 10A of the 1951 Act, either at the instance of any candidate who also contested in the said election or by any other person or based on any other information received by the Commission through some reliable sources, especially after a decision is rendered by the High Court in the Election Petition preferred by one of the contesting candidates under Section 80 of the 1951 Act.
The Apex Court, by its interim order dated 3rd November, 2011, stayed the opera- tion of the order of the High Court of Delhi and the proceedings pending before the Commission. However, by its subsequent interim order dated 2nd May, 2012, the Apex Court modified its stay order by allowing the Commission to proceed with the complaints filed by the complainants and to pass a final order, but keep the same in a sealed envelope till the disposal of the Special Leave Petition. This order was passed by Supreme Court in view of the fact that the then Chief Election Commis- sioner, Dr. S.Y. Quraishi, was due to retire and demit his office on 10th June, 2012. Pursuant to the above modified order dated 2nd May, 2012 of the Supreme Court, the Commission proceeded with hearings in the matter and thereafter, directed by its order dated 5th June, 2012, that: (i) the enquiry will proceed, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits; (ii) the provisions of Evidence Act, 1872, will, as nearly as may be, apply in all respects to the present enquiry. But the enquiry could not be completed by the time Dr. Quraishi retired.
The composition of the Commission, that underwent a change on the retirement of Dr. Quraishi, reviewed the position and decided that the matter would be further heard by it when the Supreme Court disposes of the SLP of the respondent finally.
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Two other SLPs No.14209 of 2012 and 5078 of 2014 filed respectively by Shri Madhu Kora and Smt. Umlesh Yadav were also tagged with the SLP No.29882 of 2011 filed by Shri Ashok Chavan.
Ultimately, the Supreme Court dismissed the SLP filed by Shri Ashok Chavan vide its order dated 5th May, 2014 and gave its seal of approval to the decision of the Election Commission as upheld by the High Court to the effect that Section 10A clothes the Election Commission with the requisite power and authority to enquire into the allegations relating to failure to submit the accounts of election expenses in the manner prescribed and as required by or under the Act, is perfectly justified and declined to interfere with the same.
The Apex Court observed that an order of disqualification under section 10A of the 1951 Act in respect of an elected candidate by the Election Commission does not amount to setting aside the election of the candidate. It emphasised that the scope of an Election Petition to be tried by a High Court and scope of an order of disquali- fication to be passed under section 10A are different and one does not conflict with the other. The enquiry to be held under Section 10A is not to examine any allega- tion of corrupt practice falling under section 123(6) of the Act. The only area of ex- amination is with regard to correctness of account of election expenses maintained as per the provisions of sub-sections (1) and (2) of Section 77 of the 1951-Act. It did not agree with the contention that once the Election Petition has been rejected for want of particulars, a complaint under section 10A cannot be pursued.
It was held that the power to hold an enquiry before passing an order of disqualifi- cation under section 10A has been invested with the Election Commission. As per the provisions of sub-rule (5) and (6) of Rule 89 along with Section 10A, the Com- mission has to necessarily issue a show cause notice, consider whether the account lodged was in the manner as required by or under the Act and only thereafter, pass an order of either disqualification or otherwise.
It was further held that the enquiry under Sec.10A would be more or less of a civil nature and, therefore, the principles of preponderance of probabilities alone would apply and that even after the order of disqualification, if any, is passed under Sec.
435 “No voter to be left behind”
10A, after following the requirement of issuance of show cause notice, receipt of reply, etc., there is a further remedy available to the contesting candidate under Section 11 by which the aggrieved candidate can demonstrate before the Election Commission as to how the order of disqualification cannot stand and that it has to be varied. Further, the Constitutional remedy under Articles 32 and 226 is always available to question the correctness of any order that may be passed by the Com- mission under sections 10A and 11 of the Act.
It directed the Election Commission to conclude the proceedings within 45 days from the date of passing the order on 5th May 2014, as the period of membership of Shri Chavan was likely to come to an end with the expiration of the term of the Maharashtra Assembly on 8-11-2014.
It directed the Commission to conclude the proceedings in respect of Ashok Shan- karrao Chavan and Madhu Koda then pending before it after following the due procedure followed in an enquiry of civil nature and pass appropriate orders in accordance with law. The Court held that the maintenance of account of the election expenses is not an empty formality and that the Court cannot turn a blind eye and state that Section 77(1) and (3), as well as 78 of the Act would be relevant only for the purpose of ascertaining the corrupt practices under Section 123(6) of the Act. In fact, it was held that ascertainment of the requirement under Section 77(3) of the Act, viz. the expenses incurred, should not exceed the limit prescribed and that it should be for both the purpose of an enquiry under Section 10A of the Act, as well as in the event where candidates exceed the limit through corrupt practices for the purpose of invalidating the election. Therefore, the requirement under Section 77(3) of the Act has got twin objectives to be fulfilled. Carrying on from this, the Court condemned ‘paid news’.
The first two appeals were dismissed with the observation to pursue the question of incorrectness or falsity of the return of election expenses of the Appellants’ and dismissed the third appeal on merits.
436 “No voter to be left behind”
JUDGEMENT
Hon’ble S.S. Nijjar, Judge
Hon’ble F.M. Ibrahim Kalifulla, Judge Advocate for Appearing Parties: Gopal Subramanium, Pravin M. Shah, Pramod Kohli, Sunil Kumar, Jayant Bhushan, Meenakshi Arora, Ashok H. Desai, Sr. Advs., Irshad Ahmad, AAG, Abhimanyu Bhandari, Samanvya Dhar Dwivedi, Aanchal Mullick, Aditya Sikchi, P.S. Bhakkad, Naveen Kumar, Himanshu Shekhar, Abhay Prakash Sahay, S.K. Sinha, Chaman Sharma, Tejasvi Nandai, Dilip Annasaheb Taur, Anil Kumar, S.K. Mendiratta, Mohid D. Ram, Vasav Anantharam, D.N. Gobur- dhan, Abhinav Mukherjee, S.A. Haseeb, M.N. Pasha, Vikas Bansal, B.V. Balram Das, Prashant Bhushan, Govid Jee and Abhisth Kumar, Advs., Leave granted in all the Special Leave Petitions.
(1) The simple yet important question of law that have arisen in these appeals before us and which have serious ramifications on the maintenance of sanctity in our democracy is as to whether the Election Commission, Under Section 10A of the Representation of the People Act, 1951, can conduct an enquiry to determine the falsity of the return of election expenses by an elected candidate, especially after a decision is rendered by the High Court in the Election Petition preferred by the Respondent No. 1.
(2) On the aforesaid background, let us briefly examine the facts of this case. The appeal (@ SLP(C) No. 29882 of 2011) has been filed by the candidate who was elected in the Assembly elections in the State of Maharashtra. The results of the election to the Assembly were declared on 22.10.2009. The Respondent No. 1 was one of the candidates who contested the said election as against the Appellant. The Appellant was declared elected and the Respondent No. 1 was an unsuccessful can- didate. As per the provisions of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 (hereinafter called “the Act and the Rules”), within one month from the date of publication of the results, a statement of election ex- penses has to be filed by the candidate with the District Election Officer (hereinafter
437 “No voter to be left behind” called “DEO”). The Appellant stated to have filed his statement of election expenses on 17.11.2009, i.e., within one month of the date of election. It is also brought to our notice that on 24.11.2009, the DEO, Nanded forwarded his report to the Election Commission of India and that according to the Appellant, nothing adverse was stated in the said report. However, on 02.12.2009, the Respondent No. 1 filed a complaint with the Election Commission alleging violation of the Election Code based on newspaper reports. Besides the above complaint of the Respondent No. 1 to the Election Commission, he also filed an Election Petition before the Election Tribunal (High Court) on 04.12.2009. This very allegation which was raised before the Election Commission was stated to have been raised in the Election Petition as well. The Election Petition was dismissed by the Election Tribunal (High Court) on 18.10.2012 on the ground of want of material particulars. The Respondent No. 1 thereby preferred a statutory appeal before this Court in Civil Appeal No. 9271 of 2012, which was also dismissed by this Court on 21.01.2013.
(3) We heard Mr. Gopal Subramanium, learned Senior Counsel for the Appel- lant in the appeal (@ SLP(C) No. 29882 of 2011), Mr. Venkatramani, learned Se- nior Advocate for the Appellant in the appeal (@ SLP(C) No. 14209 of 2012), Mr. Sunil Kumar, Senior Advocate for the Appellant in the appeal (@ SLP(C) No. 21958 of 2013. We also heard Mr. Jayant Bhushan, Senior Advocate for the Respondent No. 1 in the appeal (@ SLP(C) No. 29882 of 2011) and Ms. Pinki Anand, Senior Advocate for Respondent Nos. 2 and 3 in the said appeal. Mr. L. Nageswar Rao, Additional Solicitor General appeared for the Respondent No. 5, Union of India and Mr. Ashok H. Desai, Senior Advocate represented the Election Commission. We also heard Mr. Prashant Bhushan, learned Counsel, who appeared for the Ap- plicants/Intervenors through I.A. No. 2 of 2013.
(4) Mr. Gopal Subramanium, learned Senior Counsel in the first instance, re- ferred to Sections 77(1)(2)(3), 80A, 86(1), 100(1)(a)(b) and 123(6), as well as Section 10A of the said Act. The learned Senior Counsel also referred to Articles 101(3)(a), 102(1)(e) and 103 of the Constitution, as well as Articles 190, 191(1)(e) and 192. The learned Senior Counsel also made reference to Rules 86, 87, 88 and 89 falling under Part VIII of the Rules and contended that the Election Commission had no jurisdiction to deal with the issue relating to disqualification on the ground
438 “No voter to be left behind” of irregularity in the lodging of election expenses in the present case, by virtue of the fact that the said issue can only be dealt with in an Election Petition before the Election Tribunal (High Court). According to learned Senior Counsel, in the case on hand, since at the instance of Respondent No. 1, the successful election of the Appel- lant was the subject matter of challenge in an Election Petition, which was dismissed by the Election Tribunal (High Court) for want of material particulars and upheld by this Court in Civil Appeal No. 9271 of 2012, there is total lack of jurisdiction for the Election Commission to deal with said issue all over again.
(5) The learned Senior Counsel also brought to our notice the old Section 7(c) of the 1950 Act, which was a provision for disqualification prior to the 1966 amend- ment by which Section 10A was introduced and also referred to the earlier judgment of this Court reported in Sucheta Kripalani v. S.S. Dulat and Ors. - AIR 1955 SC 758, as well as the subsequent decision reported in L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (D) by L.Rs. and Ors. - 1999 (1) SCC 666. The learned Se- nior Counsel then contended that when the Election Petition, as preferred Under Sec- tion 86 of the Act was dismissed for want of material particulars, which is a binding judgment, having regard to the principles laid down in the decisions of this Court reported in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar - 2003 (7) SCC 66 and Azhar Hussain v. Rajiv Gandhi - 1986 (Supp) SCC 315, such contentions are to be pleaded/supported by proper material facts and when once such plea was dealt with by the Election Tribunal (High Court) and rejected, which was also upheld by this Court, there is no residuary jurisdiction left with the Election Commission to pass another order of disqualification. The learned Senior Counsel contended that though the Election Petition was dismissed for want of material particulars, still it is a final judgment and that the same is binding on all concerned. The learned Senior Counsel after referring to Section 10A vis-à-vis the old Section 7(c) of the Act, con- tended that failure to lodge the account ‘in the mariner required’ is an exercise to be examined in a summary manner and there is no scope for an adjudication as sought to be made by the Election Commission. The learned Senior Counsel also contended that for the first time since the amendment in 1966, the Election Commission seeks to examine the correctness of the details in an elaborate manner, which is not per- missible.
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(6) According to the learned Senior Counsel, while Section 78 of the Act may be referable to Section 10A, Section 77 cannot be read into Section 10A. After making reference to Sections 77, 100, 123(6) as well as Sections 44, 76, 99 and 100 of the Act learned Senior Counsel contended that while under the old law, a false return was a corrupt practice which can earn a disqualification, in the light of the amendment now made, the Election Commission cannot confer upon itself a jurisdiction, even after an adjudication in an election petition, by seeking to exercise its powers Under Section 10A. The learned Senior Counsel by referring to the ear- lier decision of this Court in Sucheta Kripalani (supra) contended that the ratio laid down therein that the Election Commission can only see the form and not substance, continue to hold good even as on date.
(7) According to the learned Senior Counsel, after the amendment to Section 7(c) and introduction of Section 10A, the automatic disqualification has been taken away and the power is now vested with the Election Commission. It was, however, contended that the present attempt of the Election Commission to hold an adjudica- tion of the issue, if accepted, would result in collision with the judicial forum, which has already exercised its powers in an Election Petition. According to learned Senior Counsel, the law declared in Sucheta Kripalani (supra) which held the field prior to the various amendments introduced viz to Sections 7, 8, 8A, 10, 10A, 11, 77, 85, 101(b) and 126, continue to hold good.
(8) The learned Senior Counsel also finally brought to our notice the amended Rule 89 after the 1966 amendment in which Sub-rule (5) was introduced. This Rule empowers the Election Commission to take a decision in the event of the contesting candidates failing to lodge their account of election expenses within the time and in the manner required by the Act, as well as the Rules by which the Election Com- mission can call upon the candidate concerned to show cause why he should not be disqualified Under Section 10A for his failure. The learned Senior Counsel then referred to the order impugned in the appeal (@ SLP(C) No. 29882 of 2011) passed by the Election Commission holding that the Election Commission is fully empowered to pass an order of disqualification for the failure of the elected candidate to lodge the account as per the Act and the Rules.
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(9) The sum and substance of the submission of Mr. Gopal Subramanium, learned Senior Counsel is:
(a) By virtue of Article 329(b) of the Constitution read with Section 80 of the Act, a challenge to the election can only be by way of an election petition, that the election of the Appellant having been challenged unsuccessfully, in an election petition which was also confirmed by this Court in C.A. 9271/2012 by order dater 21.1.2013, there is no power or jurisdiction with the Election Commissioner to enquire into the validity of the said election or for that matter pass an order of disqualification by way of holding an enquiry Under Section 10A of the Act.
(b) Even after the amendments to the Act in 1956, as well as in 1966, in the end by which Section 7(c) came to be amended and, thereafter, replaced by Section 10A, whatever ratio laid down by this Court in Sucheta Kripalani (supra) continued to hold good and that the judgment in L.R. Shivaramagowda (supra) was clearly distinguishable and required reconsideration. The submission is that as per Section 7(c) of the Act, prior to its amendment, what was held by this Court in Sucheta Kri- palani (supra) was that the submission of return of election expenses is only in form and not in substance and that the said principle continues to apply even in relation to Section 10A of the Act.
(c) The enquiry contemplated by the Election Commission if permitted to be held, would result in conducting a trial which would be ultra vires of Article 329(b), that there is no statutory rule or procedure for holding such an enquiry, which would otherwise involve the applicability of rules of pleading, powers of the Code of Civil Procedure, 1905 question of limitation, adding of proper parties, applicability of the Evidence Act, 1872 and the like. When such a procedure is not being provided as contemplated in the Act, the attempt of the Election Commission to proceed with the inquiry would result in anomalous consequences, and, therefore, the impugned order of the Election Commission cannot be sustained.
(d) Section 10A disqualification is only a default disqualification and not a stig- matized one and any enquiry Under Section 10A can only be based on the DEO’s report. Also reasons are to be given only when removal or reduction of disqualification
441 “No voter to be left behind” is to be made Under Section 11, and, therefore, if the Election Commission were to ultimately set aside an election by exercising its power Under Section 10A, the consequences would be very severe.
(e) The Election Commission, who was impleaded as a party in the election petition itself sought for its deletion, that the Complainants Mukhtar Abbas Naqvi or Kirit Somaiya, neither being voters nor candidates who lost in the election, had no locus standi to seek for an enquiry Under Section 10A, inasmuch as an election petition can only be as against an elected candidate. Further, the scope of holding any enquiry by the Election Commission can be referable only to Article 191(1)(e) read with Article 192(2) of the Constitution and not otherwise by invoking Section 10A of the said Act.
(f) The scope of invalidating an election is available Under Section 100(1)(d) (iv) of the said Act which would cover all illegality.
(g) Law of the election being a special law, its intendment as well as effects will have to be found in the given law and not outside of it. The doctrine of equitable consideration will not apply and where the Constitution leaves any ambiguity, the benefit of the doubt should be given to the subject as against the legislature.
(h) The power of Election Commission Under Article 324 of the Constitution can be invoked only where it is unoccupied and when there is no vacuum in the Act, the Election Commission cannot enlarge its powers wider than what is available to the Election Tribunal (High Court).
(i) The impugned order of the Election Commission in attempting to enlarge its powers while invoking Section 10A cannot be permitted.
(j) The Election Commission failed to note that the requirement under the Rule is for the election officer, as well as the Election Commission, to only see that the re- turns were filed in time as prescribed under the Act and if there is no good reason for failure to lodge the accounts within time, the Election Commission can only examine the reason for passing appropriate orders Under Section 11 and not beyond.
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(10) In support of the above submissions, the learned Senior Counsel relied upon N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Sa- lem Dist., and Ors. - AIR 1952 SC 64, State of H.P. and Ors. v. Surinder Singh Banolta - 2006 (12) SCC 484, Shri Krishan v. Sat Narain - 1971 (37) ELR 13, Dal- chand Jain v. Narayan Shankar Trivedi and Anr. - 1969 (3) SCC 685, Brundaban Nayak v. Election Commission of India and Anr. - AIR 1965 SC 1892, Ram Phal Kundu v. Kamal Sharma - 2004 (2) SCC 759, Jagan Nath v. Jaswant Singh and Ors. - AIR 1954 SC 210, Tukaram S. Dighole v. Manikrao Shivaji Kokate - 2010 (4) SCC 329, Kanwar Singh Saini v. High Court of Delhi - 2012 (4) SCC 307, State of Andhra Pradesh and Anr. v. Andhra Provincial Potteries Ltd. and Ors. - AIR 1973 SC 2429, M. Karunanidhi v. Dr. H.V. Hande and Ors. - 1983 (2) SCC 473, Secretary, A.P.D. Jain Pathshala and Ors. v. Shivaji Bhagwat More and Ors. - 2011 (13) SCC 99, Election Commission of India through Secretary v. Ashok Kumar and Ors. 2000 (8) SCC 216, Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. - AIR 2011 SC 312. Mr. Venkataramani, learned Senior Counsel for the Appellant in the appeal (@ SLP (C) No. 14209 of 2012 adopted the submission of Mr. Gopal Subramanium.
(11) The Union of India was represented by Mr. L. Nageswar Rao, learned Ad- ditional Solicitor General. At the very outset, he submitted that though the Union of India is now taking a contrary stand than what was taken before the Election Com- mission, as the issue relates to the interpretation of Section 10A, which is purely a legal question, in the light of the judgment of this Court in P. Nallammal and Anr. v. State Rep. by Inspector of Police - (1999) 6 SCC 559 such a stand of the Union of India cannot be faulted. The learned Additional Solicitor General contended that Section 10A only covers some procedural aspects and not substantive aspects. After referring to Section 10A and the expressions used in the said Section, namely, ‘man- ner’ the learned Additional Solicitor General contended that the said expression has to be interpreted only as a mode or a procedure and not a substance of correctness of the return to be filed. The learned Additional Solicitor General after referring to the dictionary meaning of the expression ‘manner’, relied on a decision of this Court reported in Sales Tax Officer v. K.I. Abraham- 1967 (3) SCR 518 wherein, this Court held that the expression ‘manner’ only refers to the mode and not substance. His con- tention was that since the provision is penal in nature, it calls for strict interpretation. The
443 “No voter to be left behind” learned Additional Solicitor General, therefore, contended that when such an inter- pretation is made to Section 10A, the failure to submit the accounts in time is for the satisfaction of the Election Commission, which is merely about the form and not of substance. The learned Additional Solicitor General further submitted that the scope of enquiry Under Section 10A is not adjudicatory in nature and that no reasons are needed to be recorded. According to him, what is to be seen is that the filing and such filing is in the proper form. The Learned Additional Solicitor General relied upon the decision reported in Tolaram Relumal and Anr. v. The State of Bombay - 1955 (1) SCR 158, Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. - 2012 (9) SCC 552, Capt. Chanan Singh Sidhu v. The Election Commission of India, New Delhi and Ors. - AIR 1992 P and H 183,. While referring to L.R. Shivaramagowda (supra), the learned Additional Solicitor General submitted that the interpretation placed in paragraph 18 is not in consonance with Section 123(6) vis-à-vis Section 77, read along with Rules 86 and 89 and, therefore, it requires reconsideration.
(12) Mr. Jayant Bhushan, learned Senior Counsel appearing for the Respondent No. 1, after narrating the sequence of events from the date the election result was declared, announcing the success of the Appellant on 22.10.2009 and thereaf- ter, the filing of the complaint Under Section 10A before the Election Commission on 02.12.2009, referred to the various dates of hearings when the Election Com- mission heard the parties, including the Appellant and the impugned order dated 02.04.2011 passed by the Election Commission, which was upheld by the Delhi High Court in W.P. No. 2511 of 2011 by order dated 30.09.2011.
(13) In his submissions, he raised the following contentions:
(a) A reading of Section 10A along with Section 77(1) and (2), 78 as well as Rules 86 to 89 would show that it is only the Election Commission which can, on be- ing satisfied about the failure to lodge a correct account of all election expenditure in the manner required by or under the Act, disqualify a candidate for the period specified in the said provision.
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(b) That Section 10A is independent of Article 329(b) of the Constitution and, therefore, there is no scope to hold that the said provision is ultra vires.
(c) By virtue of Rule 89 read along with Section 10A, it cannot be held that only at the instance of DEO the Election Commission can exercise its powers Under Section 10A. On the other hand, the satisfaction which could be arrived at by the Election Commission Under Section 10A may be based on a report of the DEO or after hearing the parties or upon an enquiry by the Election Commission as per Rule 89, which uses the expression ‘as it thinks fit’.
(d) The present allegation against the Appellant is paid news and advertise- ments, which were not accounted for and which having not been disclosed by the Appellant in the return, have now come to light through the Press Council and other sources. Therefore, it could not have been within the knowledge of the DEO in order to state that it is only at the instance of the DEO that the Election Commission can hold any enquiry Under Section 10A of the Act.
(e) The scope of jurisdiction of the Election Tribunal in considering the validity of the Election of a member is different from the power of disqualification that can be passed by the Election Commission Under Section 10A and, therefore, the dismissal of the Election Petition for want of particulars cannot be a ground to thwart the exer- cise of the power and jurisdiction of the Election Commission to pass orders Under Section 10A.
(f) The case on hand is covered by the decision of this Court reported in L.R. Shivaramagowda (supra) inasmuch as this Court has already held that the Com- mission alone has the power to determine whether the election account filed by a returned candidate is true and correct for the purpose of Section 10A of the Act.
(g) The decision in Sucheta Kripalani (supra) is no longer good law inasmuch as the substratum of the said judgment having been erased by the subsequent amend- ments to the Act once in 1956 and again in 1966 by which the whole scheme of the Act had undergone a drastic change by which the scope of jurisdiction of the Election Tribunal, as well as the power and jurisdiction of the Election Commission has been distinctly spelt out.
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(14) It is, therefore, contended that since the old Section 7(c), which provided for a disqualification without reference to the satisfaction of the Election Commission, having been replaced by Section 10A which specifically uses the expression ‘the satisfaction of the Election Commission of India’ and also by using the expression ‘about the lodging of the return’, ‘in the manner as prescribed by or under the Act’ and ‘within the time’, were all expressions which demonstrate that the power of the Election Commission Under Section 10A was wide enough to hold an enquiry to find out the truthfulness and correctness of the expenditure incurred by the Appellant in order to pass appropriate order of disqualification.
(15) The learned Senior Counsel, therefore, contended that the order of the Elec- tion Commission dated 02.04.2011, as well as that of the High Court of Delhi dated 30.09.2011, do not call for interference.
(16) Mr. Sunil Kumar learned Senior Counsel who appeared for the Appellant in appeal (@ SLP(C) No. 21958 of 2013), supported the submission of Mr. Gopal Subramanium, learned Senior Counsel and also contended that Section 10A does not empower the Election Commission to take oath, nor assume the powers of a quasi-judicial authority and, therefore, the Election Commission cannot exercise a jurisdiction to the extent of passing the order of disqualification. According to the learned Senior Counsel, the Act and the Rules make a clear distinction as between lodgment and maintenance of accounts. According to him, while lodgment is mere form, maintenance of accounts is one of substance. The learned Senior Counsel submitted that Section 78 along with Rules 86(3) and 89, only talk of lodgment of account and not correctness of the account. According to the learned Senior Coun- sel, after a reading of paragraph 22 of the L.R. Shivaramagowda (supra) judgment, it can only be said that failure of lodgment is a matter of form and the correctness or otherwise of lodgment of accounts was not spelt out. The learned Senior Coun- sel further contended that Section 77 only talks of maintenance of accounts. It is a matter of substance which will attract Section 123(6) in which event the issue would be outside the jurisdiction of the Election Commission. The learned Senior Counsel relied upon certain decisions of this Court in Somnath Sahu v. The State of Orissa and Ors. - 1969 (3) SCC 384 and Common Cause (A Registered Society) v. Union of India and Ors. - (1996) 2 SCC 752 in support of his submissions. The learned
446 “No voter to be left behind”
Senior Counsel apart from arguing about the scope of jurisdiction of the Election Commission Under Section 10A of the Act also challenged the order of the Election Commission dated 20.10.2011, disqualifying the Appellant for a period of three years on merits which order was also confirmed by the Division Bench in the im- pugned order in this appeal. Mr. Sunil Kumar, while attacking orders impugned in this Special Leave Petition contended that the expenses incurred by the party cannot be held to be expenses incurred by the Appellant and, therefore, conclusion of the Election Commission, in having held that the Appellant did not file the return of ex- penses in manner and as prescribed by or under the Act, has liable to be set aside.
(17) Ms. Pinki Anand, learned Senior Counsel appearing for Respondent Nos. 2 and 3 in her submissions stated that the said Respondents had not filed any election petition, therefore, the submission that the election petition has already been dis- missed for want of particulars, will not apply to them. The learned Senior Counsel af- ter referring to the complaint, the reply filed by the Appellant and the form in which the Appellant filed the accounts as well as the supplement letter of the DEO dated 01.12.2009, submitted that after deletion of Section 143, the decision in Sucheta Kripalani (supra) could longer survive. The learned Senior Counsel contended that having regard to Rules 89(4) and 86 (e) and (f), it is a mandatory requirement for a candidate to file a true and correct account and if the account is incorrect, Rule 89(4) will get attracted. Consequently, the power of the Election Commission while holding an enquiry Under Section 10A fully empowers the Election Commission to examine the correctness of the accounts as prescribed under the Act, namely, Sec- tions 77 and 78 and therefore, has the jurisdiction to hold an enquiry and pass the order of disqualification.
(18) Mr. Prashant Bhushan, learned Counsel who appeared for the intervenor in I.A. No. 2 of 2013, submitted that after the introduction of Section 10A by the 1966 amendment and a reference to Section 77 and 123(6), it can no longer be contend- ed that even by submitting a nil return, the obligation Under Section 77 read with Section 123(6) is complied with. The learned Senior Counsel contended that the Election Commission had the power and duty to disqualify and the reliance placed upon Sucheta Kripalani(supra) cannot be permitted in the light of the subsequent change made in the provisions of the Act. The learned Counsel, therefore, contended
447 “No voter to be left behind” that the Election Commission has got every jurisdiction to hold an enquiry and pass appropriate orders of disqualification and the remedy has also been provided for Under Section 11 for the Election Commission to pass appropriate orders for stated reasons to reverse the order of disqualification.
(19) Mr. Ashok Desai, learned Senior Counsel who appeared for the Election Commission, prefaced his submission by stating that free and fair election is the ba- sic feature of our democracy, which again is the basic structure of the Constitution, that Under Article 324 of the Constitution, the Election Commission is not only in- vested with plenary powers but has got a constitutional obligation to organize a free and fair election and that Under Section 10A, the power of the Election Commission is much wider when it comes to the question of disqualification in contrast to an election petition, where the validity of an election can be challenged. The learned Senior Counsel referred to the nature of allegations levelled against the Appellants in the above appeals, namely, Mr. Ashok Shankarrao Chavan, Ms. Madhu Kora and Mr. Umlesh Yadav, wherein the complaint disclosed the enormous unaccounted expenses incurred by them. This was brought to the notice of the Election Commis- sion by the contestants in the case of Mr. Ashok Shankarrao Chavan, by the Central Board of Direct Taxes in the case of Mr. Madhu Kora and by the Press Council in the case of Mr. Umlesh Yadav. The learned Senior Counsel also submitted that in all the above cases, notice was duly issued to the Appellants calling for their remarks.
(20) The submission of the learned Senior Counsel can be concretized as under:
(a) The learned Senior Counsel by making a comparative reading of Section 123(6) vis-à-vis Section 10A, submitted that while Under Section 123(6), only a candidate who contested the election can file a complaint, Under Section 10A any person including an elector can make the complaint.
(b) It was then pointed out that while for preferring a complaint Under Section 123(6) a period of limitation of 45 days from the date of the election is prescribed as per Section 81, there is no prescribed time limit for invoking Section 10A and that what is expected is only a complaint to be filed within a reasonable time.
448 “No voter to be left behind”
(c) Lastly Under Section 123(6), a party who is concerned with the allegation may be an aggrieved party who can provide the source, while Under Section 10A a citizen who is keen on purity of election can prefer a complaint. It was also point- ed out that while an election petition would be decided by Election Tribunal (High Court) namely, the High Court, the disqualification Under Section 10A can be de- cided by an Election Commission.
(21) Mr. Desai, learned Senior Counsel after referring to the provisions of the Act, as it originally stood prior to its amendments of 1956 and 1966, also referred to the decisions in Sucheta Kripalani (supra) and L.R. Shivaramagowda (supra), He submitted that in L.R. Shivaramagowda (supra), after the introduction of Section 10A the scope and jurisdiction of Election Commission has been firmly stated and that that position alone should prevail. The learned Senior Counsel submitted that having regard to the wide powers invested with the Election Commission Under Section 10A, which has been rightly recognized and approved by this Court in L.R. Shivara- magowda (supra), there is no scope for the Appellant to contend that the Election Commission lacked jurisdiction.
(22) Having dealt with the rival contentions of the parties, it would be necessary to find out whether the impugned order of the Election Commission is correct or not. For this, the various provisions of the Constitution as well as the relevant provisions as they originally existed prior to 1956 and 1966, the amendments made to the Act and the provisions which are existing as on date are required to be noted. In fact, the various provisions under the Act both prior to the 1956 and 1966 amendments and the provisions which are existing as on date, were adverted to by the learned Counsel appearing for their respective parties, as there is a need to find out the implication of those provisions. The purpose is to find out an answer to the question posed for consideration, namely, whether Under Section 10A of the Act, the Election Commission has been empowered to hold an enquiry to ascertain the correctness or otherwise of the election expenses incurred by a returned candidate for the purpose of passing the order of disqualification, either at the instance of the candidate who also contested in the said election or by any other person or based on any other information received by the Election Commission through some reliable sources. For the said purpose, in our considered view, the following provisions under the
449 “No voter to be left behind”
Constitution and the various sections under the Act and Rules are required to be noted.
(23) As far as the provisions of the Constitution are concerned, the relevant Arti- cles are Articles 101(3)(a) read with 102(1)(e) and 103(2), Article 190(3)(a) read with 191(1)(e) and Article 192, Article 329(b) which relates to the Election Petition, Articles 327 and 328 which empower the Parliament to make provisions by law to deal with the elections to Parliament and State Legislature respectively, Article 324(1) which mentions the nature of powers and functions as well as the control of elections vested with the Election Commission. The said Articles are, therefore, extracted hereunder:
101. Vacation of seats. i. xxx xxx xxx ii. xxx xxx xxx iii. If a member of either House of Parliament-
(b) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 102, or
(c) xxx xxx xxx\ 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) xxx xxx xxx
(h) If he is so disqualified by or under any law made by Parliament.
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103. Decision on questions as to disqualifications of members.- (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
190. Vacation of seats.
(i) xxx xxx xxx (j) xxx xxx xxx (k) If a member of a House of the Legislature of a State. (l) Becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 191; or
191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-
(m) xxx xxx xxx (n) xxx xxx xxx (o) xxx xxx xxx (p) xxx xxx xxx (q) If he is so disqualified by or under any law made by Parliament.
192. Decision on questions as to disqualifications of members. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
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(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
324. Superintendence, direction and control of elections to be vested in an Election Commission.
The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
327. Power of Parliament to make provision with respect to elections to Legislatures. 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 either House of Parliament or to the House or either House of the Legislature of a State 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.
328. Power of Legislature of a State to make provision with respect to elections to such Legislature. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
329. Bar to interference by courts in electoral matters. -
(r) xxx xxx xxx (s) No election to either House of Parliament or to the House or either House of the Legislature or a State 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.
452 “No voter to be left behind”
(24) Apart from the above constitutional provisions, the unamended provisions under the erstwhile Act are Section 7(c) to be read along with Section 8(b). Then the existing provisions, namely, Sections 143 and 144 relating to disqualification of an elected candidate are also required to be noted, which are as under:
Section 7. Disqualifications for membership of Parliament or of a State Legislature.- A person shall be disqualified for being chosen as, and for being, a member of either House, of Parliament or of the Legislative Assembly or Legislative Council of a State-
(a) xxx xxx xxx (b) xxx xxx xxx (c) if, having been nominated as a candidate for Parliament or the
Legislature of any State or having acted as an election agent of any person so nominated, he has failed to lodge a return of election expenses within the time and in the manner required by or under this Act, unless five years have elapsed from the date by which the return ought to have been lodged or the Election Commission has removed the disqualification;
Section 8. Savings (d) xxx xxx xxx (e) a disqualification Under Clause (c) of that section shall not take effect until the expiration of two months from the date by which return of election expenses ought to have been lodged or of such longer period as the Election Commission may in any particular case allow;
Section 143. Disqualification arising out of failure to lodge return of election expenses.- If default is made in making the return of the election expenses of any person who has been nominated as a candidate at an election to which the provisions of Chapter VIII of Part V apply, or if such a return is found, either upon the trial of an election petition under Part VI or by any court in a judicial proceeding to be false in any material particular, the candidate and his election agent shall be disqualified for voting at any election for a period of five years
453 “No voter to be left behind”
from the date by which the return was required to be lodged.
Section 144.Removal of disqualifications. - Any disqualification under this Chapter may be removed by the Election Commission for reasons to be recorded by it in writing.
(25) After the 1956 amendment, there was an amendment to Section 7(c) and Section 8(b). The amendment to Section 7(c) was relating to the alteration of the period, namely, from 5 years to 3 years within which time the occurrence of the event of disqualification would lapse. Under the amended Section 8(b), the power to decide the nature of default mentioned in Section 7(c) was entrusted with the Election Commission, Further, Section 123 in Chapter I of Part VII was substituted. A new Section 140about corrupt practice entailing disqualification based on finding of the Election Tribunal (High Court) as well as the power of Election Commission to reverse the disqualification Under Section 148 was also introduced, while Section 143 stood omitted.
(26) That apart, the other relevant sections to be noted are Section 7, which has now been restricted to Sub-clause (a) and (b) alone. Section 8 deals with disqualifi- cation on conviction of an offence. Section 8(4) prescribes as to how the disqualifi- cation as provided Under Section 8 would take effect. Section 8A read with Section 99 prescribes how the disqualifications would take effect. Section 10A prescribes the disqualification to be imposed for failure to lodge account of election expenses in the manner and as required by the Act. Section 11 deals with removal of or reduction of the period of disqualification. Chapter VIII under the head ‘Election Ex- penses’ consists of Section 77(1)and (3), which specifies as to how a separate and correct account is to be maintained and the total of the expenditure which should not exceed the prescribed limit. Section 78 specifies the requirement of lodging of account with the DEO as required Under Section 77 within a stipulated time limit. Sections 80 to 116, barring Sections 88 to 92 and 104 and 105, deal with the manner in which an Election Petition is to be presented before the Election Tribunal (High Court) and the various procedures as to how such Election Petition to be dealt with and ultimately disposed of.
454 “No voter to be left behind”
(27) In Part VII under Chapter I in Section 123(6), the implication of non-com- pliance of Section 77 is set out as one of the corrupt practices. In Part VIII under Chapter IV, we find the power of the Election Commission Under Section 146 the procedure for holding an enquiry as required Under Articles 103 and 192 of the Constitution is set out. Sections 146A to 146C prescribes the procedure to be fol- lowed by the Election Commission while holding the enquiry Under Section 146.
(28) Apart from the above provisions in the Act, Rules 86, 87, 88, 89 and 90 in Part VIII of the Rules are required to be noted. The relevant statutory provisions in the Act and the Rules which are required for our purpose are, therefore, extracted hereunder:
(29) The Representation of the People Act, 1951
Section 7.Definitions.- (a) xxx xxx xxx (b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
Section 10A. Disqualification for failure to lodge account of election expenses.- If the Election Commission is satisfied that a person-
(c) Has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and
(d) Has no good reason or justification for the failure, The Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.
Section 11. Removal or reduction of period of disqualification.- The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter (except Under Section 8A) or reduce the period of any such disqualification.
455 “No voter to be left behind”
Section 77. Account of election expenses and maximum thereof.- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.
The account shall contain such particulars, as may be prescribed.
The total of the said expenditure shall not exceed such amount as may be prescribed.
Section 78. Lodging of account with the district election officer.- (1) Every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the district, election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent Under Section 77.
Section 79. Definitions.-In this Part and in Part VII unless the context otherwise requires, -
(e) any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in relation to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial Commissioner, as the case may be;
(f) “candidate” means a person who has been or claims to have been duly nominated as a candidate at any election;
(g) “costs” means all costs, charges and expenses of, or incidental to, a trial of an election petition;
456 “No voter to be left behind”
Section 80. Election Petitions.- No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
Section 80A.High Court to try election petitions. (1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
xxx xxx xxx
Section 81.Presentation of petitions. -(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1)] of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation. In this subsection, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(h) xxx xxx xxx
Section 83. Contents of petition.- (1) An election petition-
(i) shall contain a concise statement of the material facts on which the Petitioner relies;
457 “No voter to be left behind”
(j) shall set forth full particulars of any corrupt practice that the Petitioner alleged including as full statement as possible of the names of the parties al leged to have commission such corrupt practice and the date and place of the commission of each such practice; and
(k) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[Provided that where the Petitioner alleges any corrupt practice, the petition shall also be accompanied by all affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]
(2) xxx xxx xxx
Section 84. Relief that may be claimed by the Petitioner.- A Petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.
Section 123.Corrupt practices.
i. xxx xxx xxx ii. xxx xxx xxx iii. xxx xxx xxx iv. xxx xxx xxx v. xxx xxx xxx vi. The incurring or authorizing of expenditure in contravention of Section 77. Section 146.Powers of Election Commission. (1) Where in connection with the tendering of any opinion to the President Under Article 103or, as the case may be, Under Sub-section (4) of Section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor Under Article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own
458 “No voter to be left behind”
accord. it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1909 (5 of 1908), in respect of the following matters, namely:
(l) Summoning and enforcing the attendance of any person and examining him on oath;
(m) Requiring the discovery and production of any document or other material object producible as evidence;
(n) Receiving evidence on affidavits;
(o) Requisitioning, any public record or a copy thereof from any Court or officer
(p) Issuing commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed be that person under any law for the time being in force., to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to, the subject-matter of the inquiry.
(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898 (5 of 1898) to forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him Under Section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).
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(q) Any proceeding before the Commission shall be deemed to be Judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).
Section 146B. Procedure to be allowed by the Election Commission.- The Election Commission shall have the power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private.)
The Conduct of Election Rules, 1961
Rule 86. Particulars of account of election expenses.-(1) The account of election expenses to be kept by a candidate or his election agent Under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:
(r) the date on which the expenditure was incurred or authorised;
(s) the nature of the expenditure (as for example, travelling, postage or printing and the like);
(t) the amount of the expenditure-
i. the amount paid; ii. the amount outstanding;
(u) the date of payment;
(v) the name and address of the payee;
(w) the serial number of vouchers, in case of amount paid;
(x) the serial number of bills if any, in case of amount outstanding;
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(y) the name and address of the person to whom the amount outstanding is payable.
(2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.
(3) All voucher shall be lodged along with the account of election expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial numbers shall be entered in the account under item (f) of Sub-rule (1).
It shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items of expenditure for which vouchers have not been obtained Under Sub-rule (2).
Rule 87. Notice by district election officer for inspection of accounts.- The district election officer shall, within two days from the date on which the account of election expenses has been lodged by a candidate Under Section 78, cause a notice to be affixed to his notice board, specifying-
(z) the date on which the account has been lodged;
(aa) the name of the candidate; and (bb) the time and place at which such account can be inspected.
Rule 88. Inspection of account and the obtaining of copies thereof.- Any person shall on payment of a fee of one rupee be entitled to inspect any such account and on payment of such fee as may be fixed by the Election Commission in this behalf be entitled to obtain attested copies of such account or of any part there of.
Rule 89. Report by the district election officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon.- (1)
461 “No voter to be left behind”
As soon as may be after the expiration of the time specified in Section 78 for the lodging of the accounts of election expenses at any election, the 1 [district election officer] shall report to the Election Commission-
(cc) the name of each contesting candidate; (dd) whether such candidate has lodged his account of election expenses and if so, the date on which such account has been lodged; and (ee) whether in his opinion such account has been lodged within the time and in the manner required by the Act and these rules.
(2) Where the district election officer is of the opinion that the account of election expenses of any candidate has not been lodged in the manner required by the Act and these rules, he shall with every such report forward to the Election Commission the account of election expenses of that candidate and the vouchers lodged along with it.
(3) Immediately after the submission of the report referred to in Sub-rule (1) the district election officer shall publish a copy thereof affixing the same to his notice board.
(4) As soon as may be after the receipt of the report referred to in Sub-rule (1) the Election Commission shall consider the same and decide whether any contesting candidate has failed to lodge the account of election expenses within the time and in the manner required by the Act and these rules.
Where the Election Commission decides that a con testing candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act and these rules it shall by notice in writing call upon the candidate to show cause why he should not be disqualified Under Section 10A for the failure.
Any contesting candidate who has been called upon to how cause Under Sub-rule (5) may within twenty days of he receipt of such notice submit in respect of the matter a representation in writing to the Election Commission,
462 “No voter to be left behind”
and shall at the same time send to district election officer a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account.
The district election officer shall, within five days of the receipt thereof, forward to the Election Commission the copy of the representation and the account (if any) with such comments as he wishes to make thereon.
If, after considering the representation submitted by the candidate and the comments made by the district election officer and after such inquiry as it thinks fit, the Election Commission is satisfied that the candidate has no good reason or justification for the failure to lodge his account, it shall declare him to be disqualified Under Section 10A for a period of three years from the date of the order, and cause the order to be published in the Official Gazette.
Rule 90. Maximum election expenses.- The total of the expenditure of which account is to be kept Under Section 77 and which is incurred or authorized in connection with an election in a State or Union territory mentioned in column 1 of the Table below shall not exceed-
(ff) in any one parliamentary constituency of that State or Union territory, the amount specified in the corresponding column 2 of the said Table; and
(gg) in any one assembly constituency, if any, of the State or Union territory, the amount specified in the corresponding column 3 of the said Table.
(28) Having noted the various Articles of the Constitution as well as the provisions of the Act, it will be worthwhile to understand the whole scheme of the above articles and provisions before making any attempt to find out the scope and ambit of Section 10A of the Act. Article 101(3)(a) will have to be read along with Article 102(1)(e). Article 101(3)(a) merely states about the consequences that would follow if a Member of either House of Parliament suffers disqualification as provided Under Article 102(1)(e), namely, that the seat would thereupon become vacant in the Parliament. The
463 “No voter to be left behind”
purport of Article 102(1)(e) is to ensure that any disqualification of a Member of Parliament can be declared only by or under any law made by the Parliament. That apart Under Article 103 of the Constitution, whenever a question arises as to whether a Member of Parliament has been disqualified as provided Under Article 102(1), the decision as to such a disqualification can be reached only by the President of India, which would become absolute and conclusive. However, Under Article 103(2) it is provided that before arriving at such a decision, the President should obtain the opinion of the Elec tion Commission and act based upon such opinion of the Election Commission. Articles 190(3)(a), 191(1)(e) and 192(1) & (2) are the identical provisions, which would be applicable to a Member of a Legislature of the State. The only difference is Under Article 192, it will be the Governor who can take the decision and such a decision should be again based on the opinion rendered by the Election Commission. Therefore, Articles 101, 102, 103, 190, 191 and 192 prescribe and mention as to how a disqualification of a Member of a Parliament or a Member of a State Legislature can be given effect to either by the President of India or by the Governor of the respective States by declaring the consequent vacancy created either in the Parliament or the State Legislature. Under Article 102(1)(e) and 191(1)(e), it is stipulated that such a disqualification shall have to be initially arrived at by applying the provisions of law made by the Parliament. Therefore, the common thread in the above Constitutional provisions relatable to a Member of a Parliament or a Member of a State Legislature is that apart from other disqualifications mentioned in Articles 102(1)(a) to (d) and 191(1)(a) to (d), a disqualification arrived at as provided under a law made by the Parliament would form the basis for either the Presidentof India or for the Governor of the respective States to ultimately take a decision as regards such disqualification declared under a valid law made by the Parliament.
(30) Apart from the above provisions, Under Article 329(b), it is specified that an Election to either House of Parliament or either House of the Legislature of a State, cannot be called in question except by an Election Petition presented to such authority in such manner as may be provided for by or under any law made by the appropriate legislature. While Articles 101 to 103 and 191 to 192 deals with the
464 “No voter to be left behind” disqualification of an elected member either to the Parliament or to the State Legisla- ture, Article 329(b) relates to the validity of a member elected to any constituency in an election held in accordance with law and such validity can be examined only by a prescribed authority under the law made by the appropriate legislature. Reading Article 329(b) and Sections 80 to 116 of the Act together, the position emerges that the status of a validly elected candidate in an election can be called in question only before the Election Tribunal (High Court) by way of an Election Petition and such Election Petition to be decided by the Election Tribunal (High Court) in the manner prescribed under the above referred to provisions by following the procedures laid down therein. It further emerges that the validity of an election to either of the House of Parliament or the State Legislature cannot be called in question in any other man- ner other than what has been prescribed under the provisions of the Act, as has been set out in Sections 80 to 116 of the Act.
(31) Apart from the above Constitutional mandates, relating to disqualification and validity of an election to be challenged, Under Articles 327 and 328 of the Constitution, provides the power to Parliament to make provisions by law to deal with the elections to Parliament and State Legislature and also by the State if such law does not contain any provision to deal with an election to the said offices. Apparently, in the purported exercise of the above Article 327 of the Constitution, the Representation of the People Act in the year 1950 and subsequently in the year 1951, came to be passed in the Parliament and thereafter, the relevant rules, name- ly, the Conduct of Election Rules, 1961 were also promulgated.
(32) Under Article 324(1) of the Constitution in Part XV, the nature of functions, powers such as superintendence, issuance of directions, control of the preparation of the electoral rolls, the conduct of all elections to Parliament and to the legislature of every State, as well as the elections to the offices of the President and Vice-Pres- ident, as per the Constitution, is invested with the Election Commission. When we discuss about the powers of the Election Commission, a detailed reference to Article 324(1) can be made to Section 10A of the said Act in the matter of disqualification of a Member of Parliament or State Legislature.
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(33) Apart from the above Constitutional provisions, we also refer to some of the provisions which were existing prior to the 1956 and 1966 Amendments to the Act. One relevant provision which has to be noted in the context of the present Section 10A of the Act is Section 7(c) as it existed prior to the amendment.
(34) Prior to the introduction of Section 10A, Section 7(c) prescribed as to how a person should be disqualified for being chosen as and for being a Member of either House of the Parliament or of a Legislative Assembly or Legislative Council of a State. It was stipulated that if a person having been nominated as a candidate for Parliament or the Legislature of a State fails to lodge a return of election expenses within time and in the manner required by or under the Act, would suffer such dis- qualification unless five years have elapsed from the date by which the return ought to have been lodged or the Election Commission removed such disqualification. Sec- tion 8(c), which was a non-obstinate clause, specified that a disqualification suffered Under Clause (c) of Section 7, cannot take effect unless the expiration of two months from the date by which return of the election expenses ought to have been lodged or such longer period as the Election Commission may in any particular case allow. A reading of Sections 7(c) and 8(b) as it existed then, vested no specific authority with the Election Commission or for that matter with any other authority as to how a disqualification can be declared for the failure to lodge a return of the election expenses within the time and in the manner required by or under the Act.
(35) In fact, the subsequent amendment to Section 7(c) only related to the expira- tion of a period of five years having been altered as three years and in Section 8(c) it is stated that the expiration of two months period would start from the date on which the Election Commission decided that the account of election expenses has not been lodged within the time and in the manner required by or under this Act. Therefore, a conspicuous reading of Sections 7(c) and 8(b), as it originally existed, and after its amendment under Act 27 of 1956, remained the same and the only improvement made was that the decision as regards the failure to lodge the account within the stipulated time limit is to be declared by the Election Commission for Section 7(c) to operate.
466 “No voter to be left behind”
(36) The above prescription which existed prior to introduction of Section 10A has to be necessarily noted in order to appreciate what is the effect that had been brought about by virtue of the introduction of Section 10A to the Act. Before ad- verting to the scope of Section 10A, it is necessary to note certain other provisions, namely, Sections 77, 78, 123(6) as well as Rules 86, 87, 88, 89 and 90 of the Rules, since, the implication of the above provisions and Rules would arise while examining the effect of Section 10Aafter its introduction.
(37) Section 77 which is under Chapter VIII mandates as to how the account of election expenses are to be maintained and the maximum limit that can be expend- ed as prescribed.
When we read Section 77(1), it is specified therein that every candidate should keep a separate and correct account of all the expenditure in connection with the election that was incurred as between the date on which his nomination was made and the date of declaration of the result thereof i.e. inclusive of both the dates. A careful reading of Section 77(1) makes it significantly clear that a candidate contest- ing in an election, should maintain a separate and correct account of all expenditure incurred by him in connection with the election. Section 73(3) makes it mandatory that the total of the expenditure in connection with an election should not exceed such amount as may be prescribed. Here and now we can point out that Under Rule 90 of the Rules, the total of the expenditure that can be expended for which account is to be maintained Under Section 77 has been prescribed in a separate table appli- cable to different States, in respect of their Parliamentary Constituency and Assem- bly Constituency. Therefore, reading Section 77(3) along with Rule 90 and Section 77(1), what ultimately emerges is that every candidate contesting in an election should maintain a separate account relating to the election, that such account should contain all the expenditures incurred by him in connection with the election and most importantly such details of the account and the expenses incurred must reflect the correct particulars apart from ensuring that such expenditure does not exceed the maximum limit prescribed Under Rule 90 as stipulated Under Section 77(3).
The next step is lodging of such an account which was maintained as stipulated Under Section 77 read with Rule 90. Section 78 of the Act mandates that every
467 “No voter to be left behind” contesting candidate in an election should within 30 days from the date of election of the returned candidate, lodge with the DEO an account of his election expenses, which should be a true copy of the account kept by him or by his election agent as required Under Section 77. The corresponding rules are Rules 87, 88 and 89 of the Rules. Under Rule 87, within two days from the date on which the account of election expenses is lodged by candidate, as stipulated Under Section 78, the DEO should cause a notice to be affixed in the notice board, specifying the date on which the account was lodged, the name of the candidate and the time and place at which such account could be inspected. Under Rule 88 any person would be entitled on payment of a fee of Rs. 1 to inspect any such account and on payment of such fee that may be fixed by the Election Commission, obtain attested copies of such account or any part thereof. Reading Section 78 and Rules 87 and 88, the intention of the legislature has been explicitly made clear that the maintenance of the correct account of the election expenses within the time limit prescribed in mak- ing such expenses is not for the satisfaction of the Election Commission alone. The purport and intent of the said exercise is to ensure that none of the candidates can take it as a formality and file some return without disclosing their correct particulars, inasmuch as once the true copy of the account maintained is lodged with the DEO it is not only for the candidates who contested in the election but ‘any person’ meaning thereby, any citizen of this country can have access to verify the account lodged with the DEO and also get a authenticated copy of such a statement. In fact, such a stipulation contained in Sections 77(1) and (3), 78, Rule 90, as well as Rules 87 and 88 were brought into the statute book in order to ensure that the purity in the election is maintained at any cost and nobody is allowed to take the voting public of this country for a ride.
(38) It will also be appropriate to state and we can even take judicial notice of the fact about every kind of manipulations and malpractices that are being adopted and applied in elections in the recent past as is reported widely in the Press and Media. Unlike the yester years, i.e. immediately after independence and the role of Election Commission while holding the public elections has become so vital, a great- er and wider responsibility is imposed on the Election Commission to ensure that those who contest the elections maintain high amount of integrity and honesty and that the voting public are not duped by their evil designs. With that when we come
468 “No voter to be left behind” to Rule 89, the said rule contains Sub-rules (1) to (8), which specify to the extent to which the verification of the correctness and genuineness of the accounts lodged can be enquired. Under Sub-rule (1) of Rule 89, after lodging of the true copy of the account as specified Under Section 78 of the Act, the DEO should report to the Election Commission as to the name of each contesting candidate and state whether such candidate lodged his account of election expenses and if so the date on which such account was lodged and whether the account was lodged within the required time and in the manner required by the Act and the Rules.
(39) When we refer to the said stipulation, namely, the manner required under the Act, it will have to be stated that the manner required would certainly include the true and correct accounts to be maintained, a copy of which alone can be stated to mean having been lodged in the manner required. In fact, Under Sub-rule (2) of Rule 89, the DEO if on verification found that the lodging of the account was not in the manner required, should send a report to that effect to the Election Commission along with the accounts lodged by the candidate concerned. The DEO should also publish a copy of his report in the notice board. Under Sub-rule (4) of Rule 89, after the receipt of the report referred to in Sub-rule (1), the Election Commission has to again consider the same and decide whether any contesting candidate failed to lodge the account of election expenses within the time and in the manner required by or under the Act and the Rules.
(40) Under Sub-rule (5) of Rule 89 when the Election Commission decides that a contesting candidate failed to lodge his account of election expenses within time and in the manner required by the Act as well as the Rules, it should by notice in writing call upon the candidate to show cause why he should not be disqualified Under Section 10A for such default. Under Sub-rule (6) of Rule 89, once the notice to show cause is issued as per Sub-rule (5), within 20 days of receipt of such notice, the candidate concerned should submit a representation in writing to the Election Com- mission and simultaneously forward a copy to the DEO together with the complete account of his election expenses, if he had not already furnished such an account. Under Sub-rule (7) of Rule 89, the DEO should forward his report on the representa- tion so submitted by the candidate, if any, with such comments which he wishes to make on the said representation.
469 “No voter to be left behind”
(41) Under Sub-rule (8) of Rule 89, the Election Commission after such enquiry, as he thinks fit, on being satisfied that no good reason or justification was shown for the failure to lodge the account, can pass an order of disqualification as provided Under Section 10A for a period of three years from the date of the order and publish such order in the official gazette. We find in Sub-rules (1) to (5), specific reference to the manner required by the Act as regards the account to be maintained, a true copy of which is to be lodged with the DEO which is to be ultimately forwarded to the Election Commission.
(42) When we examine Sub-rule (8) of Rule 89, the said Rule makes it clear that the Election Commission is empowered to hold such enquiry as it thinks fit before passing any orders Under Section 10A of the Act. The said exercise has to be car- ried out by the Election Commission after the issuance of the show cause notice and after the receipt of representation by the candidate read along with the comments of the DEO. When the Election Commission has been invested with the powers to hold an enquiry, it will have to be stated that such an enquiry is not an empty formality, but having regard to the requirement of law as stipulated Under Section 77(1) and (3) and 78 of the Act, it should be a comprehensive enquiry, wherein the Election Commission can ascertain whether the accounts lodged in the purported exercise of Section 78 by a contesting candidate reflects a true, correct and genuine account and not a bogus one. In fact, the purpose of holding an enquiry is not only to ensure that the ascertainment of the correctness or otherwise of the account lodged, as well as, the time within which such lodgment was made, but also ensure that such account is a true and correct account of the actual expenses incurred for the election inasmuch as the Act as well as the Rule makes it clear that such furnishing of the account is in the manner required under the Act.
(43) In our considered opinion if such a onerous responsibility has been imposed on the Election Commission while scrutinizing the details of the accounts of the election expenses submitted by a contesting candidate, it will have to be stated that while discharging the said responsibility, every care should be taken to ensure that no prejudice is caused to the contesting candidate. The Election Commission should also ensure that no stone is left unturned before reaching a satisfaction as to the correctness or the proper manner in which the lodgment of the account was carried
470 “No voter to be left behind” out by the concerned candidate. If such a meticulous exercise has to be made as re- quired under the law, it will have to be held that the onerous responsibility imposed on the Election Commission should necessarily contain every power and authority in him to hold an appropriate enquiry. Only such an exercise would ensure that in ulti- mately arriving at the satisfaction for the purpose of examining whether an order of disqualification should be passed or not as stipulated Under Section 10A, the high expectation of the electorate, that is the citizens of the country reposed in the Elec- tion Commission is fully ensured and also no prejudice is caused to the contesting candidate by casually passing any order of disqualification without making proper ascertainment of the details of the accounts, the correctness of the accounts and the time within which such account was lodged by the candidate concerned.
(44) When we examine Section 10A in this context, it makes it clear that the Election Commission has to find out whether a person has failed to lodge an account of election expenses within the time and in the manner required by or under this Act. The specific expression ‘by or under’ used in Section 10A(a) emphasizes that wherever the Act stipulates as regards the maintenance and the lodgment of the ac- count, such stipulations in its substance would be the requirement for the verification to be made while holding an enquiry Under Section 10A. Section 10A has been comprehensively enacted replacing earlier Sections 7(c) and 8(b) of the Act in order to ensure that the contesting candidate in an election cannot deal with the expenses in regard to the election in any manner he likes but such expenses can be incurred only in the manner required under the law. Also, while incurring such expenditures, a true and correct account should also be maintained and such expenditure should not exceed the prescribed limit as is contemplated Under Section 77(1) and (3) read with Rule 90. If such a stringent provision for incurring election expenses has been brought into the statute book and if the real intent and purpose of such provisions are not understood and allowed to be implemented in its true spirit, in our consid- ered opinion, it would provide scope for any contesting candidate to violate such a statutory requirement flagrantly and thereby, make the provision a dead letter.
(45) Under Section 10A when the Election Commission, on being satisfied that a person failed to lodge an account of election expenses within the time specified and in the manner required by or under this Act, can pass an order of disqualification
471 “No voter to be left behind” of such person for a period of three years from the date of its order, it is needless to state that such an exercise should be carried out by the Election Commission with utmost care and caution and not by merely finding that there is a statement of account claimed to be a true copy of the election expenses maintained by the candidate and that it was lodged with the DEO in the appropriate format. In such an event, the concerned candidate can go scot-free even in a case where it can be brought to the notice of Election Commission that apart from the expenses disclosed in the statement of expenses lodged with the Election Commission, the candidate concerned had incurred various other expenses in a clandestine manner by adopt- ing various manipulations and thereby, violating the requirement of law in particular Section 77(1) and (3) of the Act and thereby in effect not only cheat the electorate concerned, but even a constitutional authority in whom a very heavy responsibility has been invested Under Article 324(1) of the Constitution. In fact, the requirement of an enquiry to be made by the Election Commission at the instance of the Pres- ident of the country Under Article 103 and in the case of Members of Parliament Under Article 192 by the Governor of the State in the case of Member of Legislative Assembly of the State, fortifies our above conclusion that even the President of the country and the Governor of a State can rely upon the report of the Election Com- mission based on an enquiry before taking a decision Under Article 103(2) and Under Article 192(2) of the Constitution. Therefore, to call the Election Commission’s responsibility before passing an order Under Section 10A only to see the form and not substance as canvassed by the Appellant is a proposition too difficult to accept.
(46) When we come to Section 143 falling under Chapter I of Part VII, the said provision needs to be examined alongside the explanation to Sub-section (1) and (6) of Section 123. When we read the explanation to Sub-section (1), ‘bribery’ is stipulated as one form of corrupt practices and yet proceeds to state that the act of bribery cannot be attributed to the payment of any expenses bona fide incurred for the purpose of any election and duly entered into the account of election expenses referred to in Section 78, i.e. the provision under which a contesting candidate is mandated to lodge, a true copy of the election expenses maintained by him, within 30 days from the date of the election of the returned candidate. The said explana- tion further reinforces the fact that maintenance of expenses, as mandated Under Section 77(1), should not only be correct, but also be bona fide expenses. Therefore,
472 “No voter to be left behind” even the explanation to Sub-section (1) to Section 123 makes it clear that incurring of election expenses and the maintenance of account of those expenses are not an empty formality but the very purpose of stipulating such restrictions and directions Under Section 77(1) and (3) read along with Section 78 explains the mandate to maintain absolute purity in elections by the contesting candidates. This is required in order to ensure that the process of the election is not sullied by resorting to unethical means while incurring election expenses.
(47) It is common knowledge as is widely published in the Press and Media that nowadays in public elections payment of cash to the electorate is rampant and the Election Commission finds it extremely difficult to control such a menace. There is no truthfulness in the attitude and actions of the contesting candidates in sticking to the requirement of law, in particular to Section 77 and there is every attempt being made to violate the restrictions imposed in the matter of incurring election expenses with a view to woo the electorate concerned and thereby, gaining their votes in their favour by corrupt means viz by purchasing the votes. Therefore, this Court cannot turn a Nelson’s eye and state that Section 77(1) and (3), as well as 78 would be relevant only for the purpose of ascertaining the corrupt practices Under Section 123(6) of the Act and that such requirement of incurring bona fide and correct ex- penditure need not be a requirement for ascertainment for the Election Commission while exercising its powers Under Section 10A of the Act. In fact, ascertainment of the requirement Under Section 77(3) viz the expenses incurred, do not exceed the limit prescribed and can be made both for the purpose of an enquiry Under Section 10A, as well as in the event of a candidate exceeding the limit as a corrupt practice for the purpose of invalidating the election. Therefore, the requirement Under Sec- tion 77(3) has got twin objectives to be fulfilled.
(49) One other relevant provision under the Act is Section 146 falling under Chapter IV of Part VIII. Section 146 is relatable to Articles 103 and 192 of the Con- stitution. As was noted earlier Under Articles 103 and 192 of the Constitution in the case of a Member of Parliament or a Member of State Legislature for the purpose of ascertaining the fact about a member vacating his seat as a member, one of the requirements would be that such a member is disqualified by or under any law made by the Parliament. It is needless to state that the act of disqualification referred to in
473 “No voter to be left behind”
Articles 102 or 190 of the Constitution, can be mainly referable to the law made by the Parliament viz the Representation of the People Act. The decision of the Presi- dent of India and the Governor of a State depends upon the opinion of the Election Commission. Section 146 of the Act prescribes the procedure to be followed before rendering the opinion to the President of India or the Governor of a State.
(50) When it is stipulated Under Articles 102(1)(e) and 191(1)(e) to the effect that the ascertainment of vacation of a seat of a Member of Parliament or a Member of a State Legislature would depend upon a disqualification suffered by or under the provisions of the Act, it will have to be held that the procedure to be followed for passing such an order of disqualification should be befitting the requirement of Sec- tion 10A or otherwise when an opinion is sought for from the Election Commission Under Article 103(2) or 192(2), it would be rather impossible for the Election Com- mission to sustain any such order of disqualification. The Act in that respect cannot be held to have imposed in the Election Commission a responsibility which will not synchronise with the original order of disqualification to be made Under Section 10A of the said Act and for the ultimate opinion to be rendered after such disqual- ification order is passed for the purpose of enabling the President of India and the Governor of a State to take appropriate decision for ascertaining the status of a member to vacate his seat as a Member of Parliament or State Legislature. It would be incongruous to visualise such a situation while reading Articles 101 to 103 and 190 to 192 of the Constitution, read along with Sections 146 and 10A of the Act. We, therefore, have no hesitation in asserting the legal position that an order to be passed Under Section 10A of the said Act, could be no less important than an opinion to be rendered by the Election Commission Under Section 146 when sought for by the President of India or the Governor of the concerned States. In our consid- ered opinion, therefore, the exercise to be made Under Section 10A of the said Act would certainly include the requirement of not a farce of an enquiry but a true and complete one to determine whether the return of election expenses by an elected candidate is a true/correct or false/bogus return and that would not depend upon the decision of the Election Tribunal (High Court), which is provided under the Act for validating the election of a returned candidate on very many grounds set out in Section 123 of the Act, including the one Under Section 123(6) which contemplates the compliance of the requirement Under Sections 77 and 78 of the Act. However,
474 “No voter to be left behind” it will have to be stated that if the said issue was squarely dealt with by the Election Tribunal (High Court) based on the entire materials that were also placed before the Election Commission and the Election Tribunal (High Court) had dealt with the said issue in detail and recorded-a finding after examining such materials threadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while exercising its jurisdiction Under Section 10A. With this we wish to deal with the various submissions of the respective coun- sel.
(51) Before adverting to the submissions of the learned Counsel for the respective parties, it will be in order to note the alleged violations committed by the Appel- lants in the above appeals, which prompted the Election Commission to initiate the present proceedings Under Section 10A of the Act. Insofar as the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) is concerned, there were three complaints at the instance of (i) Shri Mukhtar Abbas Naqvi, Member of Parliament, Bhartiya Ja- nata Party and five others, (ii) Dr Madhavrao Kinhalkar, one of the rival contestants at the aforesaid general elections from 85 Bokar Assembly Constituency and (iii) Dr. Kirit Somaiya, Vice-President, Bhartiya Janata Party, Maharashtra and four others. In their complaints submitted to the Election Commission towards the end of No- vember 2009 and beginning of December 2009, it was alleged that the Appellant Ashok Shankarrao Chavan got several advertisements published in various news- papers, in particular, Lokmat, Pudhari, Maharashtra Times and Deshonnati during the election campaigning period, which appeared in those newspapers in the garb of news eulogizing him and his achievements as Chief Minister of Maharashtra. It was further alleged that the huge expenditure, which they described, was incurred or authorized by the Appellant for getting those advertisements published as news and is now a well-known phenomenon, as ‘paid news’. The expenditure incurred or authorized on the publication of those ‘paid news’ was not included by the Ap- pellant in his account of election expenses as required Under Section 77 of the Act and lodged with the DEO, Nanded Under Section 78 of the Act. The Complainants alleged that the Respondent showed only an expense of Rs. 5379/- as the expenses of newspaper advertisement in his account, whereas the expenditure on the above mentioned ‘paid news’ ran into several crores and it was suppressed in his return of election expenses. In the complaint dated 30.11.2009 of Shri Mukhtar Abbas Naqvi
475 “No voter to be left behind” and others, it was prayed that the account of the election expenses of the Respon- dent should be enquired into and action should be taken against him Under Section 10A of the said Act.
(52) Pursuant to the receipt of the above complaints, the Appellant was called upon to submit his comments by the Commission on 16.01.2010. The Appellant submitted his reply on 29.01.2010 refuting all the allegations of the Complainants. The reply was forwarded to the Complainants on 5th and 9th February, 2010 and the Complainants filed their rejoinders in February and March 2010. The Commis- sion decided to hear the parties on 11.06.2010. In the meanwhile, the Commis- sion also obtained the comments of the Chief Electoral Officer, Maharashtra about the four newspapers and the allegations of publishing ‘paid news’ relating to the Appellant. The impugned order of the Election Commission states that all the four newspapers denied the allegation of any payment having been made to them by the Respondent for the publication of the alleged ‘paid news’. According to the newspa- per establishments, the alleged ‘paid news’ were in fact news or editorials and sup- plements published by them gratuitously as they had links with or leanings towards the Congress Party and the Appellant. When the matter was posted for hearing, a preliminary objection was raised questioning the jurisdiction of the Election Com- mission to hold an elaborate enquiry in exercise of its powers Under Section 10A and while dealing with said preliminary issue, the Election Commission relied upon the decision of this Court in L.R. Shivaramagowda (supra) and reached a conclu- sion that the commission had every jurisdiction Under Section 10A to go into the question of alleged incorrectness or falsity of the election expenses maintained by the Appellant Under Section 77(1) and (2) and lodged by him Under Section 78 of the Act. The Commission, therefore, decided to hear the matter on merits to be held on 29.04,2011 at 4 p.m. in the Commission Secretariat. The said order was the subject matter of challenge. The said order of the Election Commission came to be upheld by the Division Bench of the Delhi High Court in the order impugned dated 30.09.2011 in Writ Petition (C) No. 2511 of 2011.
(53) Insofar as the Appellant in the appeal (@ SLP(C) No. 14209 of 2012) is concerned, he submitted his accounts of election expenses along with the register and vouchers to the tune of Rs. 18,92,353/- as per the requirements of Section 78
476 “No voter to be left behind” of the said act, to the DEO West Singhbhum, Chaibasa, Jharkhand on 01.06.2009, who in turn submitted this report to the Election Commission on 08.10.2010, as per the requirements of Rule 89 of the Rules. It was alleged that the Election Commission after receiving the report failed to act as per the requirements of Rule 89(4), which envisaged the commission to decide the issue as soon as possible after the submis- sion of the report by the DEO. It was further alleged that after about 15 months from the submission of the report by the DEO, the Election Commission on 07.10.2010 issued a show cause notice Under Rule 89(5) of the Rules to the Appellant, for the reason being that he failed to lodge his election expenses in the manner required by law and demanded as to why he shouldn’t be disqualified Under Section 10A of the said act. Pursuant to his notice, the Appellant explained on 24.10.2010 that the vouchers were misplaced in the DEO’s office and were again provided to the DEO on 08.10.2010 and therefore, requested the Election Commission to treat the notice dated 07.10.2010 as withdrawn. Subsequent to this reply, it was alleged that the Election Commission, 4 months after the submission of the representation by the Appellant on 22.11.2011, again issued a fresh show cause notice to the him Under Rule 89(5) read with Section 10A, stating therein that they were in further receipt of a report from the Income Tax Department, which alleged that prima facie, the account filed by the Appellant was incorrect and as to why he shouldn’t be dis- qualified. The Election Commission along with this notice, sent a copy of the alleged summary of findings by the Income Tax Department, which showed the election ex- penses incurred to the tune of Rs. 9,32,56,259/-. The authorized total expenditure of which account is to be kept and can be incurred in one parliamentary constituen- cy in the state of Jharkhand as per Section 77 read with Rule 90 is Rs. 25,00,000/-. The Appellant replied to this notice by stating that as he was in jail and was having severe health issues, and therefore, requested the Election Commission to grant him more time for inspecting the documents, to which a period of 20 days was granted. The Election Commission subsequently passed an order on 02.02.2011 in the simi- lar and identical case of AshokShankarrao Chavan, concluding that the Commission has undoubted jurisdiction Under Section 10A to go into the question of the alleged incorrectness or falsity of the return by the candidate Under Sections 77(1) and 77(2), lodged Under Section 78. Aggrieved by this order, the Appellant herein filed Writ Petition(C) No. 4662 of 2011 before the Delhi High Court, which was thereby dismissed by the Court in view of the order already passed by it in Writ Petition (C) No. 2511 of 2011.
477 “No voter to be left behind”
(54) In so far as the appeal (@ SLP(C) No. 21958 of 2013) is concerned, the Appellant was a candidate from 24 Bisauli Assembly Constituency U.P. in the Gen- eral Assembly Election of 2007 from a party, namely, Rashtriya Parivartan Dal. Sri Yogendra Kumar, the 2nd Respondent, was also a contesting candidate from the said constituency. The polling in the constituency was scheduled to take place on 18.04.2007. A day before the date of polling, a publication was made in a news- paper ‘Amar Ujala’ dated 17.04.2007 mentioning that there is a wave in favour of the Appellant in the election and the voters have made up their mind to support the Appellant. A similar publication was also made in the newspaper ‘Dainik Jagaran’ dated 17.04.2007. The poling took place on 18.04.2007 and the Appellant was declared as an elected member of the U.P. Legislative Assembly. On 27.04.2007 a complaint was submitted by the Respondent No. 2 to the Press Council of India that the newspapers Amar Ujala and Dainik Jagaran, were in violation of journalistic conduct and have published one sided news item in the form of advertisement in favour of the Appellant by taking huge sums of money on 17.04.2007, i.e. after the close of the campaigning and the day before the poll. On 12.05.2007 the Appel- lant submitted the accounts of his election expenses before District Election Officer as required by Section 77 and 78 of the Act. The Press Council of India issued notices to both the newspapers on 09.08.2007, to which both the papers submitted their reply before the Press Council of India that the publication was not a news item but an advertisement. It was stated in the reply that at the bottom, the word ‘ADVT’ was appended and it was further submitted that the material, which was published was given to the Press on behalf of the Appellant and was not materials collected by the correspondents of the newspaper. The Press Council thereby, decided the complaint vide order dated 31.03.2010, wherein it held that the publication though camouflaged as news items, in reality it was only an advertisement. It further held that the newspapers Amar Ujala and Dainik Jagaran were guilty of ethical violation. Subsequently, after receiving the order dated 31.03.2010 from the Press Council of India vide letter dated 04.05.2010, the Commission called for a report from the Chief Electoral Officer U.P. regarding expenditure on the advertisement dated 17.04.2010 to which the Chief Electoral Officer vide his letter dated 10.05.2010 forwarded the report dated 09.05.2010 of the DEO. The DEO in his report had stated that the expenditure was not clear from the returns submitted by the Appellant, The Election Commission thereby issued a notice dated 22.06.2010 to the Appellant
478 “No voter to be left behind” stating that in the account of the election expenses, the expenditure incurred for the two advertisements dated 17.04.2007 were not reflected and thereby, attracted dis- qualification Under Section 10A for a period of three years. The Appellant thereby submitted a reply on 18.07.2010 stating that the publication of the above items in the newspapers were neither ordered by the Appellant nor by her election agent. On 19.08.2010, the Election Commission requested the newspapers to send copies of all the relevant documents pertaining to the publication dated 17.04.2007. On 06.01.2011, the Election Commission again wrote to the Appellant stating that the account of election expenses lodged by her as per Section 78 of the Act had not reflected the proper and correct expenditure and a hearing was thereby fixed on 04.02.2011. In the hearing it was submitted by the Appellant that the advertisement given by her party was only in a small box size 7 x 6 cms. for which an amount of Rs. 840 was paid to the Daily Amar Ujala vide bill dated 17.04.2007. The Election Commission after hearing the Appellant and the Respondent No. 2, vide its order dated 20.10.2011 held the Appellant to be guilty of breach of the provisions 78 and 10A of the Act and accordingly disqualified her for a period of three years. Subsequent to this order, a writ petition was filed by her on 05.11.2011, challeng- ing the order of the Election Commission in Writ Petition No. 63965 of 2011 before the Hon’ble High Court of Allahabad, which dismissed the said writ petition vide the judgment and order dated 03.05.2013.
(55) In recent times, when elections are being held it is widely reported in the Press and Media that money power plays a very vital role. Going by such reports and if it is true then it is highly unfortunate that many of the voters are prepared to sell their votes for a few hundred rupees. In fact, taking advantage of the weakness of the voters, exploitation to the maximum level is being carried out by those who as- pire to become either Member of Parliament or State Legislature. We are pained to state that the sanctity of the status as a Member of the Legislatures, either Parliament or State Legislature are not being seriously weighed even by those who sponsor their candidature. It is a hard reality that if one is prepared to expend money to un- imaginable limits only then can he be preferred to be nominated as a candidate for such membership, as against the credentials of genuine and deserving candidates. If such practices are to be simply ignored and a laudable object with which the Act has been brought into the statute book as early as in the year 1950 and later on by
479 “No voter to be left behind” the Act of 1951, wherein by virtue of the Constitutional provision Under Article 324 an authority in the status of the Election Commission is created in order to supervise and control the elections, it must be stated that such an authority who is in ultimate control in the matter of holding of the elections should be held to be invested with the widest power of its kind specified in the Act. Therefore, when it comes to the question of interpretation of the extent of such power to be exercised by the said authority, we are convinced that the Court should have a very liberal approach in in- terpreting the nature of power and jurisdiction vested with the said authority, namely, the Election Commission. This view of ours is more so apt in the present day context, wherein money power virtually controls the whole field of election and that people are taken for a ride by such unscrupulous elements who want to gain the status of a Member of Parliament or the State Legislature by hook or crook.
(56) In this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the people of India having solemnly resolved to constitute India into a sovereign, social, secular, democratic, republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintained and for that purpose when the constitution makers in their wisdom thought it fit to create an authority, namely, the Election Commission and invested with it the power of superintendence, control and also to issue directions, it must be stated that such power invested with the said con- stitutional authority should not be a mere empty formality but an effective and stable one, in whom the citizens of this country can repose in and look upon to ensure that such unscrupulous elements and their attempts to enter into political administration of this vast country are scuttled. In that respect, since the ruling of this vast country is al- ways in the hands of the elected representatives of the people, the enormous powers of the Election Commission as the guardian of democracy should be recognized. It is unfortunate that those who are really interested in the welfare of society and who are incapable of indulging in any such corrupt practices are virtually sidelined and are treated as totally ineligible for contesting the elections.
(57) Having noted the above features in the case of each of the Appellant which has gone before the Election Commission, wherein the impugned orders came to be passed, we proceed to deal with the submissions made on behalf of the Appellants,
480 “No voter to be left behind” as well as the counsel for the Respondents and the learned Counsel for the Election Commission. In the first instance, Mr. Gopal Subramanium, learned Senior Counsel appearing for the Appellant in the appeal (@SLP(C) No. 29882 of 2011) submitted that one of the Complainants before the Election Commission who was an unsuc- cessful candidate in the very same election in which the Appellant was successfully elected, also challenged the said election in an Election Petition which was enquired into by the Election Tribunal (High Court) in Election Petition No. 11 of 2009 and that the same came to be dismissed for want of material facts. The said decision of the Election Tribunal (High Court) was also stated to be confirmed by this Court in Civil Appeal No. 9271 of 2012 in the order dated 21.01.2013. The learned Senior Counsel therefore, contended that the Election Tribunal (High Court) having concluded the issue while rejecting the Election Petition stated that there cannot be a further complaint before the Election Commission as the same is not permissible in law. Per contra, it was contended on behalf of the Respondents that the scope and jurisdiction of the Election Tribunal (High Court) is entirely different from the one conferred on the Election Commission Under Section 10A of the Act and, therefore, the dismissal of the Election Petition preferred by one of the Complainant’s cannot be a ground to reject the complaint, which is required to be dealt with Under Sec- tion 10A of the Act. We find force in the submission of the learned Counsel for the Respondents. As was pointed out by us earlier, the challenge to an election by way of an Election Petition is provided for Under Article 329(b) of the Constitution and the manner in which such Election Petition is to be filed and the procedure to be followed were all set out in Sections 80 to 116 of the Act.
(58) It is true that Article 329(b) specifically stipulates that no election can be called in question except by way of an Election Petition. When we peruse the vari- ous stipulations contained in Sections 80 to 116 of the said Act, we find that Under Section 80 it is reiterated that no election shall be called in question except by an Election Petition presented in accordance with the provisions of this Part, namely, Part VI of the Act. Section 83 stipulates that an Election Petition should contain a con- cise statement of the material facts on which the Appellant relies, set-forth full partic- ulars of any corrupt practice that the Appellant alleges, including a full statement of the possible names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, which should be
481 “No voter to be left behind” signed by the Appellant concerned and verified in a manner as provided in the Code of Civil Procedure for verification of pleadings. The proviso to Section 83(1) states that where the Appellant alleges any corrupt practice, the Petition should also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is based on such contents in the Election Petition as provided Under Section 83, the trial of Election Petition will be made by the Election Tribunal (High Court) and the various other provisions describe the procedures which are to be followed, including the relief to be ultimately granted which is provided for and that is the scope and ambit of jurisdiction that could be exercised by an Election Tribunal (High Court).
(59) As compared to the nature of proceedings of an Election Petition, when we examine the scope and jurisdiction of the Election Commission Under Section 10A, at the outset it must be stated that the power and jurisdiction therein does not clothe the Election Commission to deal with the successful election of the candidate concerned. In other words, exercising power Under Section 10A, the Election Com- mission cannot set aside the election of a successful candidate. Section 10A talks of only an order of disqualification that can be passed by an Election Commission. Further, such disqualification order can be passed for failure to lodge an account of election expenses and such failure was within the time and in the manner required by or under the Act. Therefore, the scope of an Election Petition to be tried by an Election Tribunal (High Court) and the scope of an order of disqualification to be passed Under Section 10A are entirely different and it must be stated that one does not conflict with the other. The very same allegation of a corrupt practice may form part of the failure to lodge the account in the manner required by or under the Act as has been specified in Sections 77 and 78 of the Act in an Election Petition. There- fore, simply because such an issue may form part of a corrupt practice as provided Under Section 123(6) and the failure may be in contravention of Section 78 of the Act, it may also be one of the grounds in challenging the successful election of a candidate concerned in an Election Petition. On that score, it cannot be held that the area of disqualification to be considered by the Election Commission, Under Section 10A, is fully covered in an Election Petition and thereby, the power and jurisdiction of the Election Commission would stand excluded. It cannot therefore, be contended that once the Election Petition having been rejected for want of particulars, which
482 “No voter to be left behind” order has become final, a complaint Under Section 10A cannot be pursued. We therefore, reject the said contention raised on behalf of the Appellant.
(60) The next submission of Mr. Gopal Subramanium, learned Senior Counsel for the Appellant was that the provision for disqualification was originally incorporated in Section 7(c) of the 1950 Act, which has now been restructured in Section 10A, that the provision of Section 7(c) was interpreted by this Court in Sucheta Kripalani (supra), wherein this Court has ruled that the requirement of lodgment of the account of election expenses is only in form and not in substance and that the said legal position continued even after the introduction of Section 10A. The learned Senior Counsel while referring to the subsequent decision of this Court on Section 10A reported in L.R. Shivaramagowda(supra) contended that having regard to the fact that the decision in Sucheta Kripalani (supra) is the decision of a Constitution Bench of this Court, a contrary view expressed in L.R. Shivaramagowda (supra), a three Judge Bench decision calls for reconsideration.
(61) Meeting the above submissions of the learned Counsel for the Appellant, Mr. Bhushan, learned Senior Counsel and Mrs. Pinki Anand, learned Senior Counsel for the contesting Complainants before the Election Commission and Mr. Ashok Desai, learned Senior Counsel appearing for the Election Commission, contended that the scope and ambit of Section 7(c) as it originally stood, as well as the subsequent amendments to it, read along with Section 8(b), was far different from the present Section 10A and, therefore, what was ruled while examining Section 7(c) of the 1950 Act in the decision reported in Sucheta Kripalani (supra) can have no appli- cation to the present Section 10A of the Act. The learned Senior Counsel, therefore, submitted that the decision in L.R. Shivaramagowda (supra), which squarely dealt with the scope and power of the Election Commission as adumbrated in Section 10A alone would apply and the same does not call for any further reconsideration. (62) Having considered the respective submissions of the learned Counsel, we are also convinced that the decision in L.R. Shivaramagowda (supra) does not call for reconsideration. As rightly pointed out by the learned Senior Counsel for the Election Commission, as well as the other learned Counsel for the Respondents, the scope and ambit of Section 7(c) has been widened by metes and bounds in Section 10A in its present form. In Section 7(c), there is no reference to any positive order to be
483 “No voter to be left behind” passed by any authority much less an Election Commission specifying the disqualifi- cation suffered. On a reading of Section 7(c) along with Section 8(b), as it originally stood, there is no scope to hold that the failure to lodge a return of election expenses within the time and in the manner required by or under the Act can be examined by an Election Commission in a manner known to law. Therefore, an order of disqualifi- cation to be passed based on such examination or enquiry should precede such an order. On the contrary, as has been explained in detail about the scope of Section 10A read along with Section 77(1) and (3), Section 78 and Rules 86 to 90, we find that the failure to lodge an account of election expenses within the time and in the manner required by or under the Act would result in serious consequences and con- sequently, such a failure would result in an order of disqualification to be passed by the Election Commission. When we read Section 10A as compared to Sections 7(c) and 8(b), as it originally stood, Section 10A in its very opening words, empowers the Election Commission on being satisfied about the defects in the lodging of the ac- count of election expenses as contemplated Under Section 77(1) and (3) read along with Section 78 and the Rules 86 to 90, to pass an order and publish it in the official gazette, as regards the disqualification period of which is prescribed as three years from the date of the order. Such a detailed nature of power, now prescribed Under Section 10A, was not provided for Under Section 7(c) read along with Section 8(b), as it originally stood.
(63) Further, a consideration of the implication of Articles 101(3)(a), 102(1)(e) and 103, as well as 190(3)(a), 191(1)(e) and 192 of the Constitution read along with Section 146 of the Act having been exhaustively noted by us in the earlier part of the judgment, it will have to be held that the power Under Section 10A is wide enough for the Election Commission to deal with the issue of disqualification on the ground of failure to lodge the account of election expenses within the time and in the manner required by or under the Act for deciding the issue whether an order of disqualification should be passed against a contesting candidate. In fact, while the scope of consideration by the Election Tribunal (High Court) will be in relation to the validity of election of a successful candidate by the other contesting candidates and the ultimate conclusion by the Election Tribunal (High Court) may be either validating the election or invalidating the election by setting it aside, the power Under Section 10A would apply to all the candidates who contested in the election, who have to
484 “No voter to be left behind” mandatorily comply with the requirement of Section 77(1) and (3) as well as Section 78 along with the prescribed rules in that respect. Therefore, the submission that Under Section 10A the Election Commission cannot venture to hold an enquiry for the purpose of passing an order of disqualification in the light of the decision of the Election Tribunal (High Court) in the case of the Appellant in the appeal (@ SLP(C) 29882 of 2011) is a far-fetched one.
(64) As far as the earlier decision of the Constitution Bench of this Court reported in Sucheta Kripalani (supra) is concerned, the said decision having stated that the lodging of a return of election expenses is one of form and not of substance was held on the anvil of Section 7(c), as it originally stood, and since the ambit and scope of Section 10Awhich replaced Sections 7(c) and 8(b) of the 1950 Act being wider in ambit and scope and as also the power of the Election Commission has also been widened for passing an order of disqualification, the said decision can have no ap- plication. On the other hand, in the decision in L.R. Shivaramagowda (supra), this Court after examining the implication of Section 10A has stated the legal position in uncontroverted terms as under in paragraph 22: 22...... in our opinion, Sub-sections (6) of Section 10A takes care of the situation inasmuch as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the account shall contain such particulars as may be prescribed. Rule 86 of the Conduct of Election Rules provides for the particulars to be set out in the account. The said rule prescribes that a voucher shall be obtained for every item of expenditure and for lodging all vouch- ers along with the account of election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodge his account of election expenses, and if so, the date on which such account has been lodged and whether in his opinion, such account has been lodged within that time and in the manner required by the Act and the Rules. That rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry Under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10A and the Election Commission may
485 “No voter to be left behind” disqualify the said person. Hence, we do not find any substance in the argument of learned Counsel for the first Respondent. 65. Therefore, the said conclusion reached by this Court in the said decision fully covers the issue raised and we hold that the order of the Election Commission, which has now been upheld by the High Court in stating that it has got every jurisdiction to enquire into the complaint made before it as regards the incorrect and untrue statement of accounts of election expenses lodged by the Appellant can be enquired into for the purpose of passing an order of disqualification Under Section 10A, is perfectly justified.
(66) The contention of Mr. Gopal Subramanium, learned Senior Counsel that the proposed action of the Election Commission to conduct an enquiry Under Section 10A would conflict with the power to be exercised in an Election Petition Under Ar- ticle 329(b) and thereby ultimately in the event of an order of disqualification being passed would result in virtually setting aside the election of a successful candidate and therefore the impugned order of the Election Commission, as confirmed by the High Court, cannot be sustained. In dealing with the said contention, it will have to be noted that having regard to the scope of Articles 101 to 103 and 190 to 192 of the Constitution, any order of disqualification passed against a Member of Par- liament or a Member of a Legislature will have to be considered by the President of India and the Governor of a State respectively for taking a decision as to the consequence that should follow by reason of such an order of disqualification. Even at that stage, there is another filter point in the form of an opinion to be rendered by the Election Commission to the President of India or the Governor of the State before taking a decision as to whether the member elected should vacate his office pursuant to such disqualification. For the reasons which we have elaborately stated while dealing with the scope and power of jurisdiction of the Election Tribunal (High Court) and the power of the Election Commission Under Section 10A, it will have to be stated that the said submission no longer survives for consideration. The same is, therefore, rejected.
(67) The other submission of Mr. Gopal Subramanium, learned Senior Counsel was on the issue of locus standi. The contention was that the Complainants were nei- ther voters nor losing candidates, and that the legislative scheme does not provide
486 “No voter to be left behind” for an opportunity to a person who wishes to oppose the explanation offered by the candidate and that though Section 10A applies to all candidates, the Election Peti- tion can be filed only against an elected candidate. It was therefore contended that the complainants have no way to invoke Section 10A and that if at all any enquiry can be held by the Election Commission, it can be only Under Articles 103 or 192 at the instance of the President of India or the Governor of the State.
(68) To counter the said submission, it was contended by Mr. Jayant Bhushan, Ms. Pinki Anand and Mr. Ashok Desai, learned Senior Counsel and Mr. Prashant Bhushan, learned Counsel that such a restricted meaning cannot be applied to Sec- tion 10A. The learned Counsel for the Respondents by referring to Section 10A and the Rules, in particular Rule 88 pointed out that Under Rule 88, after the account of election expenses are lodged with the DEO, as stipulated Under Rule 87, any person is entitled on payment of nominal fee of Rs. 1 to inspect such account and on payment of such other fee prescribed or fixed by the Election Commission, is also entitled to obtain attested copies of such accounts or of any part thereof. The learned Counsel, therefore, contended that the very right given to a citizen or a voter to seek for inspection of the account of election expenses submitted by a candidate and also get attested copies of such account, would show that the said person who seeks for such inspection and gets a copy will have every consequential right to move the appropriate authorities to point out any illegality committed in the submission of the account of election expenses.
(69) When we consider the above submission, we find force in the submissions of the learned Counsel for the Respondents. Reading Section 10A along with Rules 87 to 90, in particular, the right conferred on any person to seek for inspection of the accounts submitted, it will have to be held that such a right is not conferred merely to look into the details of the account. If based on the inspection, made by a person Under Rule 88 and the attested copies of such accounts disclose that the candidate concerned committed a very serious illegality in the matter of submission of the account of election expenses, it must be stated that such a person will have every right to bring it to the notice of the Election Commission for taking appropriate legal recourse available to that person under the Act. It may be stated that once any such misfeasance in the submission of the account of the election expenses is brought
487 “No voter to be left behind” to the notice of the Election Commission, thereafter it would be for the Election Commission to set the process in motion for deciding the issue as contemplated in Section 10A of the Act. It cannot be said that no person can by way of a complaint approach the Election Commission.
(70) The conduct of election being in the realm of public domain, the operation of such election would take place in each constituency, in an area spread over the whole of the constituency.. It will have to be stated that the Election Commission may not be in a position to have access to any kind of illegality or irregularity indulged in by the candidates concerned, irrespective of the various personnel such as Election officers, security personnel, etc. functioning exclusively for the purpose of holding the election under the control of the Election Commission. Therefore, such instances of illegalities committed by the candidates contesting in the election in certain areas of the constituency may come to the notice of some individuals, which may have a serious ramification relating to the conduct of the candidate by abusing the process of the election with the aid of money power available with such candidate. There- fore, if someone is able to assert such misuse of funds in the process of election by a candidate by making an inspection Under Rule 88 and if the concerned individual finds out that such misuse of funds had taken place, which was not disclosed in the statement of account of election expenses, he will have every right to bring it to the notice of the Election Commission and the very purport of providing such a right Un- der Rule 87 and 88 when read along with Section 10A makes it clear that he would have every locus to prefer a complaint. Also in the course of an enquiry made Under Section 10A, the Election Commission can call upon the concerned individual to substantiate the complaint with relevant materials to enable the Election Commission to pass appropriate orders of disqualification under the said Section. Therefore, the contention of learned Senior Counsel for the Appellant that the Complainants have no locus cannot be accepted.
(71) In fact, apart from the complaints of the individuals, in the case of the Appel- lant in the appeal (@ SLP(C) No. 29882 of 2011) and in the case of the Appellants in the other appeals, such illegality in the matter of accounts of the election expenses was brought to the notice of the Election Commission by the Press Council of India in one case and by the Board of Direct Taxes in the other. Even if some motive can be
488 “No voter to be left behind” attributed to the complaints made by the individuals, we see no reason why bodies like the Press Council of India and the statutory body, namely, Board of Direct Taxes should have any malice or motive against the candidates concerned, namely, the Appellants while bringing the illegalities committed by the Appellants to the notice of the Election Commission. Therefore, the contention based on locus of the Complain- ants has absolutely no substance and the same stands rejected.
(72) Having dealt with the submission made on behalf of the Appellant, we also wish to find out whether the reliance placed upon various decisions by the learned Senior Counsel for the Appellant support the stand of the Appellant. Mr. Gopal Sub- ramanium, learned Senior Counsel relied upon N.P. Ponnuswami (supra), a Constitu- tion Bench decision of six Judges. In the said case, the point raised based on Article 329(b) was noted as under in Paragraph 5:
5. It was conceded at the Bar that the effect of this difference in language is what (that) whereas any law made by Parliament Under Article 327, or by the State Leg- islatures Under Article 328, cannot exclude the jurisdiction of the High Court Under Article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Article 329.
(73) That was a case where the nomination of a candidate rejected by the return- ing officer could be challenged only by of an Election Petition Under Section 329(b) and if that be so, whether any other proceedings could be resorted to including a proceeding Under Article 226 of the Constitution challenging the rejection of the nomination. Dealing with that situation, this Court held that the word ‘election’ can be and has been appropriately used with reference to the entire process, which con- sists of several stages and embraces many steps some of which may have important bearing on the result of the process. Therefore, it was held that if the grounds on which an election can be called in question, could be raised at an earlier stage and the errors, if any, are rectified there will be no meaning in enacting a provision like Article 329(b) and in setting up a Special Tribunal. It was further held that any other meaning ascribed to the words used in the Article would lead to anomalies which the Constitution could not have contemplated, one of them being that conflict- ing views may be expressed by the High Court at the pre-polling stage and by the
489 “No voter to be left behind”
Election Tribunal, which is to be an independent body at the stage when the matter is brought up before it. In the light of the situation in which the overall jurisdiction of the Election Tribunal (High Court) relating to a challenge that can be made to an election can be made as provided Under Article 329(b), this Court having held that the word ‘election’ would include very many process till the completion of the polling and the declaration of the result and, therefore, there cannot be a piecemeal challenge permitted to be made by way of a Writ Petition Under Article 226. The said proposition of law, as declared by this Court, can never be controverted. In the case on hand, there was no attempt made by anyone to challenge the election of the Appellant by resorting to a complaint which has emanated in the form of proceeding Under Section 10A by the Election Commission. In fact, in a proceeding Under Sec- tion 10A, there is no scope or power vested with Election Commission to declare the election as invalid. Therefore, there is no question of any violation of Article 329(b) that would arise in the case on hand. We, therefore, do not find any support from the said decision for the Appellant.
(74) The Appellant then relied upon the decision reported in Surinder Singh Banolta (supra). In the said decision, reliance was placed upon Paragraph 18, wherein it was stated as under: 18. If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application. The order of eviction may come to the notice of some other person after the election process is over. A situation, thus, may arise where two different proceedings may lie be- fore two different authorities at the instance of two different persons. Two parallel proceedings, it is well settled, cannot be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoid- ed. It will also lead to an absurdity if two different tribunals are allowed to come to contradictory decisions.
(75) To understand the principle stated in the said paragraph, it will have to be noted that under the Himachal Pradesh Panchayat Raj Act, 1994, Section 122 provided for various circumstances which would disqualify a person from being Member of a Panchayat or from being chosen as a Member of Panchayat. After setting out this various situations under which such a disqualification will occur, as far as the remedy
490 “No voter to be left behind” is concerned, it was noted that the same is provided in Sections 163, 174 and 175 of the Act by which if anyone wanted to contend that a particular person is disqual- ified from being a member or to be chosen as a Member of Panchayat, the only remedy is by way of an Election Petition and not otherwise. In the said case, one of the contestants was held to be disqualified based on another proceeding where he was found to have encroached public lands and was directed to be ejected from the land in question, which was one of the circumstances under which he came to be disqualified as prescribed Under Section 122(1) of the Act. The person who alleged such disqualification as against the contestant, moved the Deputy Commissioner, who took cognizance of the said complaint and by an order dated 04.06.2002, declared the contestant as disqualified from being chosen as a Member of the Zila Parishad and consequently, his election was set aside. On finding that such a power was not invested with a Deputy Commissioner under the said Act and that the only remedy available to the Complainant was by way of an Election Petition as provided Under Section 163 read with Sections 174 and 175 of the Act, this Court held that such parallel proceedings cannot be permitted. We do not find any scope to apply the said decision to the case on hand. We have elaborately noted the scheme of the Act by which the scope of the Election Petition as contained in Sections 79 to 116 was noted, as against the power and jurisdiction of the Election Commission to pass an order of disqualification Under Section 10A, which does not deal with the validity of the election but is only concerned with the failure to lodge a statement of election expenses in the manner as required by or under the Act, for the purpose of passing an order of disqualification.
(76) In the light of such statutory prescription contained in the Act clearly distin- guishing the different role to be played by an Election Tribunal (High Court) and the Election Commission as compared to the provisions contained in the Himachal Pradesh Panchayat Raj Act, 1994, the said decision also does not support the stand of the Appellant.
(77) Reliance was also placed upon Dalchand Jain (supra) to contend that sup- pression of certain expenses incurred in the election while submitting the return as stipulated Under Section 77 would amount to a corrupt practice as specified in Section 123(6) and consequently, in that case on finding that such non-disclosure of
491 “No voter to be left behind” expenditure amounted to corrupt practice, the election was set aside by an Election Tribunal (High Court). When the said order of the Election Tribunal (High Court) was challenged before this Court, after examining the factual matrix in detail, this Court upheld the order of the Election Tribunal (High Court) holding that the same did not call for any interference. It will have to be stated that the said decision can have no application to the case on hand, inasmuch as, the question whether the jurisdiction of the Election Commission Under Section 10A would stand excluded by virtue of the dismissal of an Election Petition by the Election Tribunal (High Court) at the instance of one of the Complainants in the case of the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) was not the point in issue. There was also no issue raised as to whether as a general proposition of law, jurisdiction Under Section 10A of the Act for passing an order of disqualification for failure to lodge the account in the manner and as required by or under the Act can only be raised as a ground of attack for setting aside an election before the Election Tribunal (High Court). There- fore, we do not find any scope to apply the said decision to the facts of this case.
(78) Reliance was then placed upon a Constitution Bench decision of this Court re- ported in Brundaban Nayak (supra). In the said judgment, which was prior to the in- troduction of Section 10A and the corresponding Rules, relating to the said section. In Paragraph 19, after noting the observations made by the Chief Election Officer, while rendering its opinion at the request of the Governor as provided Under Article 192 of the Constitution, when relevant facts are in dispute it can be ascertained only after a proper enquiry, this Court observed as under in paragraph 19;
19...... We would like to invite the attention of parliament to these observations, because we think that the difficulty experienced by Election Commission in rendering its opinion Under Article 103(2) or Article 192(2) appears to be genuine and so parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.
(79) In fact, Section 146 of the Act, which came to be introduced with effect from 22.09.1965 apparently was in compliance with the above observations made by this Court under which provision, the Election Commission has now been invested
492 “No voter to be left behind” with all the powers. Apart from the above observations, it will be worthwhile to note the conclusion arrived at by this Court in Brundaban Nayak (supra) in paragraph 18, which reads as under:
18. In this connection, we ought to point out that so far the practice followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both Under Article 192(2) and Article 103(2). In fact, the learned Attorney-General for Respondent 1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President Under Article 103(2) or to the Governor Under Article 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively Under Article 103(1) and Article 192(1). He suggested that the main object of the Appellant in taking such a plea was to prolong the proceedings before Respondent 1. In the first instance, the Appellant asked for a long adjournment and when that request was refused by Respondent 1, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the Appellant by Respondent 2. We cannot say that there is no substance in this suggestion.
(80) A reading of the above paragraph also shows that even in the absence of Section 146, this Court has recognized the power of the Election Commission to hold an enquiry whenever a complaint of disqualification is raised as against a member. Therefore, the said decision fully supports the stand of the Election Com- mission, rather than the case of the Appellant.
(81) The reliance placed upon the decision of this Court in Jagan Nath (supra) is totally misconceived, inasmuch as, the said judgment came to be rendered when there was a specific provision in Sub-section (1) and (2) of Sections 100 and 101 by which an election of a successful candidate can be called in question by way of an Election Petition before the Election Commission itself. Inasmuch as the said power vested with the Election Commission is no longer available under the said provisions, which has now been entrusted with the Election Tribunal (High Court) alone, the reliance placed upon the said decision is of no use to the Appellant.
493 “No voter to be left behind”
(82) The learned Senior Counsel also placed reliance upon the decision reported in Kanwar Singh Saini (supra). Reference was made to paragraphs 22 and 23, which are as under:
22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute.
23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, ‘that performance cannot be enforced in any other manner’. Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act.
(83) No one can quarrel with the proposition as laid down in the above para- graphs. The question is whether Under Section 10A and the other alleged provisions under the Act, as well as, the Rules, such a power has been invested with the Elec- tion Commission. We have elaborately referred to the various provisions in the Act, as well as the Rules in particular Section 10A, Section 77(1) and (3), Section 78 read along with Rules 86 to 90 and have held that such a power to hold an enquiry before passing an order of disqualification Under Section 10A has been invested with the Election Commission. Therefore, even applying the above said principles, we do not find any scope to take a different view.
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(84) We do not find any support from the decision relied upon by the learned Senior Counsel on Andhra Provincial Potteries Ltd. and Ors. (supra). Reliance was placed upon the principle stated In paragraph 7, wherein it was held that in inter- preting a penal provision, it is not permissible to give an extended meaning to the plain words of the Section. Inasmuch as the said principle has been stated while interpreting a penal provision, it will have to be stated that the said principle can- not be applied while interpreting Section 10A. In any event we have found that in Rule 89 Sub-rule (5), it has been specifically provided that the Election Commission should issue a show cause notice for the purpose of passing any order of disqual- ification Under Section 10A calling upon the candidate concerned to submit its representation in writing. Under Sub-rule (6) of Rule 89 it has been further clarified that a contesting candidate who has been called upon to show cause Under Sub- rule (5) may within 20 days of the receipt of such notice, submit a representation in writing to the Election Commission simultaneously forwarding a copy to the DEO together with a complete account of his election expenses if he had not already furnished such an account. Therefore, reading Sub-rule (5) and (6) of Rule 89 along with Section 10A, the position is explicitly clear that the Election Commission, while invoking its power Under Section 10A has to necessarily issue a show cause notice calling upon the contesting candidate to submit his reply and after the receipt of the reply to the said show cause notice, consider whether the statement of account was lodged in the manner and as required by or under the Act and only thereafter, pass an order of either disqualification or otherwise. Therefore, the said decision also does not come for the rescue of the Appellant.
(85) The decision reported in Tukaram S. Dighole (supra) was relied upon to highlight that a charge of corrupt practice envisaged by the Act is equated with the criminal charge and, therefore, the standard of proof would not be the preponder- ance of probabilities, as in a civil action, but proof beyond reasonable doubt as in a criminal trial.
Paragraph 10 of the said decision was relied upon for the above proposition, which reads as under:
10. Mr. K.V. Viswanathan, learned Senior Counsel, appearing on behalf of the
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Respondent, on the other hand, supported the decision of the Tribunal and submitted that apart from the fact that there was no specific pleading in the election petition with regard to the mode of acquisition of the cassette in question, even if it was assumed that the said cassette was a public document yet in order to attract the provisions of Section 123 of the Act, the Appellant was required to prove with cogent evidence that the speeches recorded therein were, in fact, made by the Respondent and his agents. In support of the proposition that unless a document is exhibited at the trial and is put in evidence it cannot be looked into, reliance was placed on a decision of this Court in Amar Nath Agarwalla v. Dhillon Transport Agency, learned Counsel asserted that the finding recorded by the Tribunal on the issue, being a pure finding of fact, no interference is called for.
(86) In the first place, the enquiry to be held Under Section 10A is not to examine any allegation of corrupt practice falling Under Section 123 of the Act. The only area of examination to be made in an enquiry Under Section 10A is with regard to the lodging of the account of election expenses and whether such lodgment was done in the manner and as required by or under the Act. In the second place, when such an enquiry is held, the scope would be as contained in Section 77(1) and (3) as well as Section 78. The said provisions require a contesting candidate to main- tain a true and correct account of the election expenses to ensure that such expenses are within the limits prescribed under the Act and that a copy of such statement of accounts is filed within the time prescribed Under Section 78. When it comes to the question of a corrupt practice Under Section 123, it is needless to state that the scope of examination of the said issue would be within the four corners of an Elec- tion Petition, as has been prescribed in Chapter I of Part VI of the Act to Chapter V of the Act. At the risk of repetition it will have to be reiterated that the enquiry Under Section 10A would be more or less of a civil nature and therefore, the principles of preponderance of probabilities alone would apply and it is relevant to note that even after the order of disqualification, if any, is passed Under Section 10A, after following the requirement of issuance of show cause notice, receipt of reply, etc., there is a further remedy available to the contesting candidate Under Section 11 by which the aggrieved candidate can demonstrate before the Election Commission as to how the order of disqualification cannot stand and that it has to be varied. Even
496 “No voter to be left behind” if by invoking Section 11 the aggrieved candidate is not able to get his grievance redressed, the Constitutional remedy Under Articles 32 and 226 of the Constitution is always available to question the correctness of any order that may be passed by the Election Commission Under Sections 10A and 11 of the Act.
(87) Reliance was placed upon the recent decision of this Court reported in Sec- retary, A.P.D. Jain Pathshala and Ors. (supra) for the proposition that ad hoc au- thorities cannot be permitted to exercise judicial functions and that the executive power of the State cannot be extended to creating Judicial Tribunals or Authori- ties exercising juridical powers and rendering judicial decisions. The said decision came to be rendered while examining the scope of binding nature of a decision rendered by a three member Grievance Redressal Committee constituted under a scheme called Shikshan Sevak Scheme in all recognized private secondary/higher secondary school/junior colleges/B. Ed. colleges in the State of Maharashtra. Such a scheme was not under any statute or was not governed by any statutory provision. In examining the scope of authority of such a committee called Grievance Redressal Committee formed under a scheme in the purported exercise of executive authority, this Court held that constitution of a Grievance Committee, as a public adjudicatory forum whose decisions are supposedly binding on the parties to the dispute pursu- ant to executive order of the Government, was impermissible. We do not find any scope to apply the said decision, inasmuch as, there is a world of difference as between the Constitution of a Grievance Redressal Committee under a Scheme with no statutory support and the existence of a Constitutional Authority, viz the Election Commission, created under the Constitution of India, which has been invested with the powers of superintendence, control and issuance of directions for the purpose of holding public elections in this country, apart from the entrustment of specific powers under the Act, inter alia, Under Section 10A and 11 and such powers are to be exercised in accordance with the Rules, viz the Conduct of the Election Rules. The said decision also, therefore, does not help the Appellant.
(88) We find that the reliance placed upon the decision reported in Election Com- mission of India Through Secretary (supra) is not applicable to the case on hand, inasmuch as, in the said decision, the question posed for consideration was as to what extent Article 329(b) had overriding effect on Article 226 of the Constitution.
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This Court as a proposition of law stated that if the petition presented to the Court calls in question an election, the bar of Article 329(b) is attracted, else it is not. We do no find any reference to any of the issues which arise for consideration in the case on hand in the said judgment. Therefore, the said decision also does not sup- port the case of the Appellant.
(89) Reliance was placed upon the decision reported in Bharat Aluminium Co. (supra) paragraphs 165, 166 and 168 for the proposition that the legislation can- not be construed contrary to Parliament’s intention, just to avoid any hardship. In support of his contention, he submitted that the complainants before the Election Commission have no locus standi to raise the issue Under Section 10A. We have found that the power in Election Commission Under Section 10A is inherent. We have also held by making reference to Sections 77(1), (2) & (3) and 78, read along with Rules 86 to 90 that there is every right in any member of the electorate who is entitled to seek for inspection of the account submitted by a candidate and also get the authenticated copy of such statement. He is also entitled to bring to the notice of the Election Commission any serious flaw in the account of election expenses submit- ted by a contesting candidate.
(90) Our conclusion is, therefore, based on an interpretation of the statutory pro- visions in the Act, as well as the Rules. Therefore, the reliance placed upon the de- cisions reported in Bharat Aluminium Co. (supra) and M. Karunanidhi (supra) does not support the case of the Appellant.
(91) The decision reported in Siddharam Satlingappa Mhetre (supra) was relied upon for the proposition that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. The submission was that the de- cision rendered in Sucheta Kripalani (supra) is a Constitution Bench decision, while the one rendered in L.R. Shivaramagowda (supra) is by three Judge Bench and that since the Constitution Bench decision covered the issue, the same should have been followed and, therefore, the law laid down in L.R. Shivaramagowda (supra) need not be followed.
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(92) Having considered the said submission of the learned Senior Counsel Mr. Gopal Subramanium in the earlier part of the judgment while examining the then existing Section 7(c) and 8(b) and insertion of Section 10A replacing the earlier Section 7(c) and 8(b), we have held that the ratio laid down in Sucheta Kripalani based on Section 7(c) and 8(b), cannot be applied and that decision in L.R. Shivara- magowda (supra), which came to be rendered after the insertion of Section 10A alone would apply. We have examined in detail as to how the insertion of Section 10A in the place of Section 7(c) and 8(b) has widened the powers and scope of the Election Commission for passing an order of disqualification which was squarely considered by this Court in L.R. Shivaramagowda (supra). In the light of the said position, the reliance placed upon Siddharam Satlingappa Mhetre (supra) is also of no assistance to the Appellant.
(93) Mr. L. Nageshwar Rao, learned Additional Solicitor General relied upon Bharat Aluminum Co. (supra), a Constitution Bench decision of this Court. Our at- tention was drawn to paragraph 65 where the decision of the House of Lords has been quoted reported in Duport Steels Ltd. v. Sirs - (1980) 1 WLR 142. The specific reference was made to the expression:
Where the meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient or even unjust or immoral.
(94) We must state that there is no scope for applying the said principle to the case on hand, inasmuch as, while interpreting Section 10A, we have only attempted to highlight what the said provision literally means. We have neither attempted to make an interpretation which thereby widens the scope of the provision. We have only analyzed the said provision for the working of which Rules have also been framed and by reading Section 10A along with the said Rules, and we wish to point out that the many expressions and ingredients set out in the Section itself, read along with Rules disclose what is the nature and extent of power that has been invested with the Election Commission. Since this Court has not attempted to enlarge the scope of Section 10A and the allied Rules, we do not find any scope to apply the above referred to statement quoted in paragraph 65 of the said judgment.
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(95) The learned Additional Solicitor General also placed reliance upon a three Judge Bench decision of this Court reported in Sales Tax Officer v. K.I. Abraham (supra). Reliance was placed upon page 522, while interpreting the phrase ‘in the prescribed manner’ in Section 8(4), read with Section 13 of the Central Sales Tax Act, wherein it was held as under:
...The decision of the question at issue therefore depends on the construction of the phrase ‘in the prescribed manner’ in Section 8(4) read with Section 13 of the Act. In our opinion, the phrase ‘in the prescribed manner’ occurring in Section 8(4) of the Act only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold, and to which authority the form is to be furnished. But the phrase ‘in the prescribed manner’ in Section 8(4)does not take in the time-element. In other words, the section does not authorize the rule-making authority to prescribe a time-limit within which the declaration is to be filed by the registered dealer...... This makes it clear that the Legislature was conscious of the fact that the expression ‘in the manner’ would denote only the mode in which an act was to be done, and if any time-limit was to be prescribed for the doing of the act, specific words such as ‘the time within which’ were also necessary to be put in the statute. In Stroud’s Judicial Dictionary it is said that the words ‘man- ner and form’ refer only ‘to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thing which is to be done or the time for doing it....
(96) We do not find any scope to apply the said decision to the case on hand. What was highlighted in the said decision was that though the phrase mentioned ‘in the prescribed manner’ in Section 8(4), yet significantly there was no prescription of any time limit. The authority on its own prescribed the time limit, and therefore, it was held that when such a prescription was not found in the Act, it was not within the authority of the concerned assessing authority to prescribe any time limit. In fact, there was no challenge to the authority exercised by the concerned officer. What was held was that while exercising the authority, there was exercise of jurisdiction by prescribing a time limit which was not provided for in the statute. We are dealing with a case where the power prescribed Under Section 10A of the Act provides that
500 “No voter to be left behind” the Election Commission on finding that the lodgment of the account of election ex- penses was not in the manner prescribed and as required under the Act can pass an order of disqualification. The question is when Section 77(1) and (3) of the Act read with Section 78, which prescribe a time limit within which the lodgment of account should be made by a contesting candidate considering the rules prescribed in Sec- tion 89, whether the Election Commission is invested with the powers to examine the statement of account lodged by a contesting candidate and find out whether such lodgment of the account was within the time prescribed and that it reflected a true, correct and bona fide accounts. Therefore, when such prescriptions are contained in the Act and the Election Commission has to only find out whether such prescriptions in the other provisions of the Act have been duly complied with or not, we fail to see any ground to apply the ratio of the above decision to the case on hand. Therefore, the said decision also does not support the stand of the Union of India.
(97) When we consider the submission of Mr. Jayant Bhushan, learned Senior Coun- sel pointing out the distinguishing feature in the case of Sucheta Kripalani (supra), which came to be rendered when Section 7(c) was as it originally stood was to be applied along with Section 143 of the Act, this Court in paragraph 11 stressed the point that Under Section 143, which specifically prescribes that a return is found to be in accordance with Section 77 of the Act, the jurisdiction was vested with the Election Tribunal (High Court) in an election petition to find out whether the return contained falsity in material particulars. The learned Senior Counsel, therefore, sub- mitted that what was held in paragraph 30 that in the light of the said Section 143, which was prevailing then, this Court when examining the jurisdiction of the Election Commission to pass an order of disqualification, stated in paragraph 30 that it is a question of form and not of substance. The learned Senior Counsel also pointed out that since now Section 143 itself has been removed from the Act and the scope of power of Election Commission has been incorporated in Section 10A as against the then Section 7(c) and 8(b), the decision in Sucheta Kripalani (supra) can have no application to the case on hand. A reading of the decision in Sucheta Kripalani (supra), particularly paragraphs 11 and 12 really support the above stand of the learned Senior Counsel.
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Paragraphs 11 and 12 are as under: 11. Section 76 of the Act requires every candidate to file a return of election expenses in a particular form containing certain prescribed particulars. The form and particulars are set out in the Rules. Section 143 prescribes the penalty for failure to observe those requirements. It is disqualification. This ensues if there is a ‘default’ in making the return.
It also ensues;if such a return is found... upon the trial of an election petition under Part VI... to be false in any material particular.
12. That places the matter beyond doubt. The trial of an election petition is conducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter raised and placed in issue and the allegations are reasonably connected with other allegations about a major corrupt practice. The jurisdiction is that of the Tribunal and not of the Election Commission. The duty of the Election Commission is merely to decide Under Rule 114(4) whether any candidate has, among other things,’failed to lodge the return of election expenses... in the manner required by the Act and these rules’.
(98) Inasmuch as Section 143 has now been removed from the statute book, while at the same time the prescription in Section 10A which has now replaced the earlier Sections 7(c) and 8(b) of the 1950 Act, has prescribed clear and unambig- uous power in the Election Commission to find out whether the lodgment of account of election expenses was in the manner and as required by or under the Act, as was pointed by us earlier, the decision in Sucheta Kripalani (supra) can have no applica- tion to the case on hand and that the subsequent decision in L.R. Shivaramagowda (supra) would alone apply.
(99) Ms. Pinki Anand, learned Senior Counsel placed reliance upon the decision of this Court reported in State of Gujarat and Anr. v. Justice R.A. Mehta (Retd.) and Ors.- 2013 (3) SCC 1, to which one of us was the party (F.M. Ibrahim Kalifulla, J.). Paragraph 96 of the said judgment is to the following effect;
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96. In the process of statutory construction, the court must construe the Act before it bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void i.e. a statute must be con- strued in such a manner so as to make it workable. Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. stated as follows: (AC p. 1022)
...if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
(100) Applying the above well known principle to the facts of this case, we are not persuaded to accept the submission of Mr. Gopal Subramanium, learned Senior Counsel. If the submissions were to be accepted and it will have to be held that Election Commission will have no jurisdiction to make an enquiry for the purpose of ascertaining the fulfillment of the requirement as contained in Section 10A then the very provision, namely, Section 10A will have to be rendered otiose. We are, there- fore, not able to accede to the said submission. On the other hand, if Section 10A has to operate, the conclusion of ours that the Election Commission has the required jurisdiction to make the enquiry into the complaint alleged as against the Appellant is well justified.
(101) To the same effect is the decision reported in Afjal Imam v. State of Bihar and Ors. - 2011 (5) SCC 729 which was also relied upon by Ms. Pinki Anand, learned Senior Counsel.
(102) We can also usefully refer to the decision referred to before us by Mr. Ashok Desai, learned Senior Counsel for the Election Commission Union of India v. Associ- ation for Democratic Reforms and Anr. - 2002 (5) SCC 294, wherein this Court has highlighted the dire need for maintaining purity in the elections and for that purpose Article 324 to be interpreted in a broad perspective, acknowledging the wide pow- ers invested with the Election Commission.
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Paragraph 17 of the said decision which is relevant for our purpose is as under: 17. Ms Kamini Jaiswal, learned Counsel appearing on behalf of the Respondents in support of the decision rendered by the High Court referred to the decision in Kihoto Hollohan v. Zachillhu wherein while considering the validity of the Tenth Schedule of the Constitution, the Court observed: (SCC p. 741, para 179)
179. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.
She, therefore, contended that for free and fair elections and for survival of democracy, entire history, background and the antecedents of the candidate are required to be disclosed to the voters so that they can judiciously decide in whose favour they should vote; otherwise, there would not be true reflection of electoral mandate. For interpreting Article 324, she submitted that this provision outlines broad and general principles giving power to the Election Commission and it should be interpreted in a broad perspective as held by this Court in various decisions.
(103) In the light of the above categoric statement made while holding that the rule of law and free and fair elections are the basic features and facts of our democracy, Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognized in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission Under Section 10A read along with the other provisions of the Act and the Rules, it should be held that Elec- tion Commission does possess the requisite powers Under Section 10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory require- ments in the matter of submission of accounts of the election expenses, i.e. the true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act.
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(104) We also wish to refer to the decision of this Court reported in People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. - 2003 (4) SCC 399 which was brought to our notice by Mr. Ashok Desai, learned Senior Counsel. In paragraph 20 of the said decision, this Court has practically acknowledged the report of the National Commission to Review the Working of the Constitution ap- pointed by the Union Government submitted in March, 2002.
Paragraph 20 (4.14.1) and (4.14.3) can be usefully referred to show how as a matter of fact money power is playing a very detrimental role in the matter of elections which requires to be curbed, which are as under:
20...... 4.14.1. One of the most critical problems in the matter of electoral reforms is the hard reality that for contesting an election one needs large amounts of money. The limits of expenditure prescribed are meaningless and almost never adhered to. As a result, it becomes difficult for the good and the honest to enter legislatures. It also creates a high degree of compulsion for corruption in the political arena. This has progressively polluted the entire system. Corruption, because it erodes performance, becomes one of the leading reasons for non-performance and compromised governance in the country. The sources of some of the election funds are believed to be unaccounted criminal money in return for protection, unaccounted funds from business groups who expect a high return on this investment, kickbacks or commissions on contracts etc. No matter how we look at it, citizens are directly affected because apart from compromised governance, the huge money spent on elections pushes up the cost of everything in the country. It also leads to unbridled corruption and the consequences of widespread corruption are even more serious than many imagine. Electoral compulsions for funds become the foundation of the whole superstructure of corruption.
4.14.3. Transparency in the context of election means both the sources of finance as well as their utilization as are listed out in an audited statement. If the candidates are required to list the sources of their income, this can be checked back by the Income Tax Authorities. The Commission recommends that the political parties as well as individual candidates be made subject to a
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proper statutory audit of the amounts they spend. These accounts should be monitored through a system of checking and cross-checking through the income tax returns filed by the candidates, parties and their well-wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads. EC should devise specific formats for filing such statements so that fudging of accounts becomes difficult. Also, the audit should not only be mandatory but it should be enforced by the Election Commission.
(105) We only refer to the said paragraphs as has been relied in the above judg- ment and keep the same in mind when we interpret the power of the Election Com- mission Under Section 10A. The same will have to be kept in mind when we inter- pret the power of the Election Commission Under Section 10A of the Act. When we do so we are convinced that the interpretation placed by us on Section 10A would be the proper manner of interpretation, in order to ensure that such misuse of money power in the field of public elections are to be curbed.
(106) Mr. Prashant Bhushan, learned Counsel for the intervenor by relying upon the decision reported in Dalchand Jain (supra) in paragraph 14, pointed out that while Section 123(6), which relates to corrupt practice, is referable to Section 77(3), Section 77(1) and (2) relate to the maintenance of correct accounts with the pre- scribed particulars, contravention of which, it can be examined only by the Election Commission Under Section 10A. The said submission is perfectly justified and the reliance placed upon the above decision in paragraph 14 also fully supports the stand of the learned Counsel.
Para 14 reads as under:
14. Section 123(6) lays down that ‘the incurring or authorising of expenditure in contravention of Section 77’ is a corrupt practice. Every contravention of Section 77 does not fall within Section 123(6). Section 77 consists of three parts. Section 77, Sub-section (1) requires the candidate to keep a separate and correct account of all election expenses incurred or authorised by him within certain dates. Section 77, Sub-section (2) provides that the account shall contain such particulars as may be prescribed. Section 77, Sub-section (3)
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requires that the total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is related to Section 73(3). If the candidate incurs or authorises expenditure in excess of the prescribed amount in contravention of Section 77(3) he commits corrupt practice Under Section 123(6). The contravention of Section 77, Sub-sections (1) and (2) or the failure to maintain correct accounts with the prescribed particulars does not fall within Section 123(6). See Sri Krishan v. Sat Narain. The same opinion has been expressed in several decisions of the High Courts, see Savitri Devi v. Prabhawati Misra; N.L. Verma v. Muni Lal; Narasimhan v. Natesa and the cases referred to therein.
(107) Relying upon the said paragraph, we are not hesitant to hold that while Section 123(6) is relatable to Section 77(3), there is no bar to invoke Section 77(1) and (2) while holding the enquiry Under Section 10A of the Act.
(108) While holding so, we do not find any support for the Appellants in relying upon the decision reported in Common Cause (A Registered Society) (supra). Reliance was placed upon paragraph 28(5) and (6).
28...... 5. A political party which is not maintaining, audited and authenticated, accounts and has not filed the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorized expenditure in connection with the election of its candidates in terms of Explanation I to Section 77 of the RP Act.
6. That the expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidate--to the knowledge of the candidate or his election agent--shall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act....
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(109) The submission apparently was that there was every right in the candidate concerned to demonstrate that the candidate did not really incur such expenditure and that he was not to be blamed for any unauthorized expenditure made by the party concerned. Assuming such a stand of any of the Appellants is to be believed, it is always open to the Appellant to demonstrate before the Election Commission, with all the relevant materials and convince the Election Commission that on that score, no order of disqualification can be passed. The said decision cannot however be relied upon to hold that the Election Commission has no power or jurisdiction to enquire into the complaint, which has now been made against the Appellant.
(110) At the end we can profitably refer to the basics of our democracy, which have been succinctly stated by His Lordship Justice V.R. Krishna Iyer in the Consti- tution Bench decision reported in Mohinder Singh Gill and Anr. v. Chief Election Commission, New Delhi and Ors. - 1978 (1) SCC 405. To borrow His Lordship’s expression stated in paragraph 2, the same are as under:
2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words:
At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper -- no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming impor- tance of the point.
If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men ‘dressed in little, brief authority’. For ‘be you ever so high, the law is above you.
(111) In our considered view, if the above basics of democracy and purity in elec- tions have to be maintained, it is appropriate to hold that the decision of the Election Commission as upheld by the High Court to the effect that Section 10A clothes the Election Commission with the requisite power and authority to enquire into the
508 “No voter to be left behind” allegations relating to failure to submit the accounts of election expenses in the man- ner prescribed and as required by or under the Act, is perfectly justified and we do not find any scope to interfere with the same. Inasmuch as the period of membership is likely to come to an end, it will be in order for the Election Commission to conclude the proceedings within 45 days and pass appropriate orders in accordance with law. In order to ensure that within the said period the Election Commission is not prevented from passing the orders due to non-cooperation of any of the parties, it will open for the Election Commission to hold the proceedings on a day to day basis and conclude the same within the said period.
(112) In so far as the appeal (@ SLP(C) No. 21958 of 2013) is concerned, apart from holding that the Election Commission has got every jurisdiction to hold the enquiry Under Section 10A for the purpose of disqualification, since the Election Commission has already passed its orders on merits and disqualified the Appellant for a period of three years, we also examined the reasoning of the Election Tribu- nal (High Court) for passing the said order, as well as the judgment of the Division Bench. Since, the order of Election Commission has now been confirmed by the Division Bench and since the Division Bench has dealt with the said issue on merits extensively, we wish to refer to the said part of the judgment to find out whether the grievance of the Appellant on merits deserves any consideration. The Division Bench has recorded the plea raised on behalf of the Appellant by stating that according to the Appellant, the advertisements were published by Rashtriya Parivartan Dal and the payment of publication was borne by the party and, therefore, the question to be considered was as to whether the expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the Appellant. The Division Bench also took note of the decision of this Court in Common Cause (A Registered Society) (supra), wherein it was held that even if expenses are claimed by the party, the presumption should be that the said expenses shall be incurred or authorized by the candidate, which presumption however is rebuttable. The relevant paragraph of the abovementioned decision on this proposition has been extracted in the earlier part of the judgment.
(113) After noting the above settled principle, the Division Bench proceeded to find out whether the said expenses claimed to have been incurred by the party can be treated to be expenses incurred or authorized by the Appellant.
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(114) The Division Bench thereafter reached the following conclusion:
Section 77 of the Representation of People Act, 1951, as amended by Act No. 46 of 2003, Explanation-I, clearly provides that expenditure incurred by the leaders of political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate of that political party. Thus now expenses of only limited category incurred by political party is not treated as expenses incurred or authorised by the candidate. The present is not a case which can be said to be covered by Explanation 1 (a) of Section 77 of the Rep- resentation of People Act, 1951. Thus, the expenses incurred for publishing the ad- vertisement in the newspapers on 17th April, 2007 are expenses which have to be treated to be incurred or authorised by the candidate by virtue of Section 77 of the Representation of People Act, 1951 and the expenses are not covered by exception as engrafted in Explanation-I. The Election Commission of India, after considering all materials on the record, has recorded a finding that the expenses were required to be shown in the account of expenditure of the candidate. The Petitioner has filed the account of expenditure as Annexure-5 to the writ petition. In the account of ex- penditure submitted by the Petitioner neither it is claimed that amount incurred in the above advertisement was shown by the Petitioner in her account of expenditure not it is even claim that expenditure was incurred by the Petitioner. The Petitioner’s clear case is that the aforesaid expenditure was incurred by the political party of which Petitioner was a candidate. As per the law laid down by the Apex Court in the above noted cases and the pleadings on the record, it is clear that the aforesaid expenses cannot be treated to be expenses which were not required to be shown in the account of expenditure of the Petitioner. The Petitioner, thus, has to be held to have incurred/authorize the expenses for publication of the aforesaid advertisement which having not been shown in her account, the account of expenditure submitted by the Petitioner is clearly untrue and breach was committed by the Petitioner of Section 77 of the Representation of People Act, 1951.
(115) Before reaching the above conclusion, the Division Bench has also taken note of the various factual details observed by the Election Commission in its order, as to the nature of expenses and the stand of the Appellant as under:
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As noted above, the main issue before the Election Commission of India was as to whether the expenditure expenses incurred for publishing two advertisements on 17th April, 2007 in the newspapers ‘Amar Ujala’ and Dainik Jagaran’ were shown in the account of expenses submitted by the Petitioner Under Section 78 of the Rep- resentation of People Act, 1951. There is no dispute between the parties that adver- tisement was published on 17th April, 2007 in the aforesaid two newspapers. Copy of the advertisements have been filed as Annexure- 1 and 2 to the writ petition. The election Commission of India has specifically considered the advertisement pub- lished in the newspaper ‘Dainik Jagran’ on 17th April, 2010. The advertisement in the newspaper is in a block and in the bottom of the block the word ‘Advt’ has been mentioned. However, the advertisement has been disguised as a news item and the newspaper publication mentions that leaning of voters of Bisauli constituency is in favour of Smt. Umlesh Yadav, the Petitioner. In the advertisement name of Petitioner has been mentioned in several places and also the names of large number of per- sons have been mentioned quoting their view that they are in favour of the Petitioner. The said publication mentions that voters have now decided to elect Smt. Umlesh Yadav, the Petitioner. The details of publishing the said news item in the newspaper ‘Dainik Jagran’ was called by the Election Commission of India. Both before the Press Council of India and the Election Commission of India, the newspaper ‘Dainik Jagran’ stated that aforesaid news publication was an advertisement for which a bill of Rs. 21,250/- in the name of Pramod Mishra was issued and client name was mentioned as D.P. Yadav and the amount was paid in cash. Similar advertisement was published in the newspaper ‘Amar Ujala’ on 17th April, 2007 which adver- tisement was also in a block. The advertisement although was disguised as a news item but was in a block. In the bottom of the block there was another small block with the heading ‘Appeal’ and in the bottom the word ‘Advt.’ was mentioned. The newspaper was submitted before the Election Commission of India as well as Press Council of India stating that the same was advertisement in the newspaper for which a bill of Rs. 8,000/- in the name of D.P. Yadav was issued and paid. Both the news- papers have submitted that materials for publication of advertisement was provided on behalf of the Petitioner and the material was not collected by correspondents of the newspapers. The Petitioner’s case before the Election Commission of India was that only an appeal was published by the party from which the Petitioner was contesting on 17th April, 2007 for which an amount of Rs. 840/- was paid and bill
511 “No voter to be left behind” was also issued by the newspapers of Rs. 840/-. Petitioner’s case is that the said bill was drawn in the name of D.P. Yadav, the husband of the Petitioner who was also the president of Rashtriya Parivartan Dal. The Petitioner in this writ petition has come with specific plea that aforesaid two news publications were published by the party i.e. the Rashtriya Parivartan Dal and the expenditure of the aforesaid news publication was paid and borne by the party. Paragraph 6 of the writ petition which contains the said pleading is quoted below:
6. That at this juncture, it may be stated here that the aforesaid two news publica- tions were published by the Party, which the Petitioner belong to, viz., Rashtriya Parivartan Dal and the expenditure for the aforesaid news publications were paid and borne by the Party, The Photostat copies of the aforesaid two news publications as published in ‘Amar Ujala’ and ‘Dainik Jagaran’ dated 17.04.2007 are being an- nexed herewith and marked as Annexure-1 and 2, respectively, to this writ petition. In the writ petition, the Petitioner has now having come with the plea that adver- tisements were got published by Rashtriya Parivartan Dal and the payment of publi- cation was borne by the party, now the question to be considered is as to whether expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the Petitioner.
(116) Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as under:
The Election Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the Petitioner on 22ndJuly, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its juris- diction Under Section 10A of the Representation of People Act, 1951 declaring the Petitioner disqualified for three years. All the conditions, for exercise of power Under Section 10Aof the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction.
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(117) Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses; in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed.
(118) The appeals (@ SLP(C) Nos. 29882 of 2011 and 14209 of 2012) are dismissed with the above observations and directions to the Election Commission. The appeal (@ SLP(C) No. 21958 of 2013) stands dismissed. No costs.
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JUDGMENT-21 SUPREME COURT OF INDIA
Civil Appeal No.4261 of 2007 (Decision dated 09/05/2014)
Kisan Shankar Kathore...... Appellants
Versus
Arun Dattatray Sawant &Ors...... Respondents
R.P. Act, 1951 – Ss. 33A, 36(2) and 100 (1) (d) (iv) – HELD: suppression of information by candidate in his affidavit – R.O. cannot reject the nomination at the time of scrutiny of nomination as the scope of summary enquiry by the R.O. is limited -- but the High Court may, at a later stage in the trial of election petition, may treat it as a case of improper acceptance of nomination and declare the election void. (Para 28)
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SUMMARY
The Appellant, Shri Kisan Shankar Kathore, was elected from 56-Ambernath Assembly Constitueney, Maharashtra at the general election to the Maharashtra Legislative Assembly held in October, 2004. An election petition under Section 100(1)(d) (i) and (iv) of the RP Act, 1951 was filed before the Hon’ble High Court of Judicature at Bombay by Shri Arun Dattadraya Sawant, who was a voter of the said assembly constituency, on the ground that in the nomination paper the Appellant had suppressed information about his dues payable to the Government, assets of his spouse and assets of a partnership firm of which he was a partner. It was contend- ed that the appellant’s nomination had been improperly accepted by the Returning Officer (RO) and the election was void due to non-compliance of the provisions of the Constitution of India, the Representation of the People Act, 1951 as well as Rules and Orders framed under the Act.
The Hon’ble Bombay High Court allowed the election petition and set aside the election of the appellant by treating non-disclosure of certain information about assets and liabilities in the Affidavit, filed with the nomination paper, as material defect that amounted to non-compliance of the order passed by the Election Com- mission under Article 324 of the Constitution of India, which is founded on the law declared by the Apex Court under Article 141 of the Constitution of India, within the meaning of Section 100(1)(d)(iv) of the Representation of the People Act, 1951. The Nomination Form of the Appellant was thus improperly accepted by the Returning Officer and the election result was also materially affected because of non-disclosure of vital information to the electorate.
Aggrieved by the Order of the High Court, the present appeal was filed before the Supreme Court. The Appellant’s contention was that the nature of in- formation given in the nomination form ought to have been treated as substantial compliance.
The Hon’ble Supreme Court of India agreeing with the aforesaid findings of the Bombay High Court,held that the election of the returned candidate would be void
515 “No voter to be left behind” when a Court finds at a later stage during the trial of an election petition, that there was a case of misinformation or suppressing of material information in the affidavit filed with the nomination paper by treating it as a case of improper acceptance of the nomination paper by the R.O., holding that when the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enqui- ry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Learned senior counsel appearing for the Election Commission, rightly argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomina- tion can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the selected can- didate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced.
The Hon’ble Supreme Court dismissed the appeal being devoid of any merit.
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JUDGEMENT
Hon’ble S.S. Nijjar, Judge
Hon’ble A.K. Sikri, Judge
Advocate for Appellant/Petitioner/Plaintiff : B. Adinaryan Rao, Sr. Adv., Venktesh- war Rao, Ravindra Keshavrao Adsure and G. Ananda Selvam, Advs. Advocate for Respondents/Defendant: Meenakshi Arora, Sr. Adv., Mohit D. Ram, Vasav Anatharaman, Kiran Bhardwaj, Aman Ahluwalia and B.V. Balramdas, Advs. for B. Krishna Prasad, Adv.
(1) The Appellant herein was the successful candidate in the election of legisla- tive assembly, which he contested from 56, Ambernath Constituency, Thane District, Maharashtra. There were five candidates in the fray for which the elections were held on October 13, 2004 and the results were declared on October 16, 2004. After he was declared elected, his election was challenged by the first Respondent, who is a voter in the said constituency. He filed the election petition in the High Court of Judicature at Bombay stating that the Appellant’s nomination had been improp- erly accepted by the Returning Officer and the election was void due to non-compli- ance of the provisions of the Constitution of India, the Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’) as well as Rules and Orders framed under the said Act.
(2) The election petition was filed under Section 100(1)(d)(i) and (iv) of the Act on the ground that in the nomination form filled in by the Appellant he had sup- pressed his dues payable to the Government, suppressed the assets of his spouse and also suppressed the information and assets of a partnership firm of which he is a partner. The Appellant contested the said petition. Evidence was led. After hearing the arguments, the High Court passed judgment dated August 16, 2007 accepting the plea of the first Respondent that the nomination form of the Appellant was de- fective and should not have been accepted by the Returning Officer. Thus, while allowing the election petition and setting aside of the election of the Appellant, the High Court recorded the non-disclosure on following counts:
517 “No voter to be left behind” a) Non-disclosure of dues to Maharashtra State Electricity Board in respect of two service connections held by him amounting to Rs. 79,200/- and Rs. 66,250/-. b) The Appellant failed to disclose the ownership of Bungalow No. 866 and the taxes dues thereof amounting to Rs. 3,445/- owned by his wife. c) The Appellant failed to disclose the particulars of the vehicle MH-05-AC-55 owned by the wife. d) The Appellant is guilty of non-disclosure of property owned by firm Padmavati Developers of which the Appellant is a partner, which owns two plots of lands mea- suring 1313 sq.mtrs. and 1292 sq.mts. in Survey No. 48, Hissa No. 9 of Mouza Kalyan, Taluka Ambarnath, District Thane, Maharashtra.
Challenging the impugned judgment, the present statutory appeal is filed, as provid- ed under Section 116A of the Act.
(3) We may state, at the outset, that there is no dispute on facts, namely, the Appellant had not disclosed certain informations, as found by the High Court and noted above, in his nomination form. Entire dispute rests on the issue as to whether it was incumbent upon the Appellant to have disclosed such an information and non-disclosure thereof rendered his nomination invalid and void. The nature of infor- mation given by the Appellant in his nomination form, on the basis of which the Ap- pellant contends that it ought to have been treated as substantial compliance, would be taken note of later at the appropriate stage. We deem it appropriate to state the legal position contained in the Act, Rules and Orders as well as the judgments of this Court in order to understand as to whether there was a substantial compliance by the Appellant in the form of information given by him or it amounted to non-dis- closure of the material information warranting rejection of his nomination.
(4) Since the petition filed before the High Court was under Section 100(1)(d)(i) and (iv), we first take note of these provisions, which are to the following effect:
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100. Grounds for declaring election to be void. - (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion -
xxx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
xxx
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(5) Section 100(1)(d) talks of result of election being ‘materially affected’ by im- proper acceptance, we would like to reproduce here Section 33(1) of the Act, which mandates filing of a nomination paper completed in the prescribed form in order to constitute it to be a valid nomination. It reads as under:
33. Presentation of nomination paper and requirement for a valid nomination. - (1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o’clock in the forenoon and three o’clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
(6) Other relevant provisions are Sections 33A, 34, 35 and 36 of the Act, which are as under:
33A. Right to information. - (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in
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his nomination paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether -
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence other than any offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3), of Section 8 and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in Sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under Sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under Sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
xxx
34. Deposits. - (1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited. -
(a) in the case of an election from a Parliamentary constituency, a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees; and
(b) in the case of an election from an Assembly or Council constituency, a sum of ten thousand rupees or where the candidate is a member of a Scheduled
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Caste or Scheduled Tribe, a sum of five thousand rupees:
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this Sub-section.
(2) Any sum required to be deposited under Sub-section (1) shall not be deemed to have been deposited under that Sub-section unless at the time of delivery of the nomination paper under Sub-section (1) or, as the case may be, Sub-section (1A) of Section 33 the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury.
xxx
35. Notice of nominations and the time and place for their scrutiny. - The returning officer shall, on receiving the nomination paper under Sub-section (1) or, as the case may be, Sub-section (1A) of Section 33, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer.
36. Scrutiny of nomination. - (1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.
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(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he things necessary, reject any nomination on any of the following grounds:
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:
Articles 84, 102, 173 and 191,
Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963; or
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in Clause (b) or Clause (c) of Sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
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Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.
(7) After having taken note of the aforesaid statutory provisions, let us now proceed to discuss some of the important judgments of this Court and to cull out legal principles therefrom on the subject, which have a direct bearing on the issue of disclosure of information.
(8) First case that needs a mention, which is a milestone and triggered electoral reforms in this country, is Union of India v. Association for Democratic Reforms and Anr. : (2002) 5 SCC 294. In this case, the Court held that it was incumbent upon every candidate, who is contesting election, to give information about his assets and other affairs, which requirement is not only essential part of fair and free elections, inasmuch as, every voter has a right to know about these details of the candidates, such a requirement is also covered by freedom of speech granted under Article
523 “No voter to be left behind”
19(1)(a) of the Constitution of India. The summing up the entire discussion in the judgment can be found in the following passage:
46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word “elections” is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. IN case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar case (1985) 4 SCC 628 the Court construed the expression “superintendence, direction and control” in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.
3. The word “elections” includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause case, 1996) 2 SCC
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752 the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he could be re-elected even in case where he has collected tons of money. Presuming, as contended by the learned Senior Counsel Mr. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and voters may not elect law-breakers as law-makers and some flowers of democracy may blossom.
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or reelection. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant on Civil and Political Rights, which is as under:
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
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6. On cumulative reading of a plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man - citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as lawmakers.
(9) On the basis of the aforesaid discussion, this Court issued directions for filing affidavit and the nature of information which was to be given, spelling out the same in para 48 of the judgment, which reads as under:
48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
526 “No voter to be left behind”
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate.
(10) The judgment in Association for Democratic Reforms led to amendment in the Act with the induction of Section 33A (already reproduced above) as well as Section 33B therein. Election Commission also laid down guidelines in the year 2002. Insofar as Section 33B is concerned, it was struck down by this Court in the case of People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399.
(11) In order to bring the directions contained in the aforesaid two judgments within the statutory framework, revised guidelines were issued by the Election Com- mission on March 23, 2006. In para 5 of these guidelines, para 14 of the judgment in Association for Democratic Reforms is reproduced. Likewise, para 13 takes note of the directions given in the case of People’s Union for Civil Liberties. In para 15, it is noted that the Supreme Court, while striking down Section 33B of the Act, stated that earlier directions of Election Commission dated June 28, 2002 would continue to operate subject to the afore-mentioned directions of the Court and, therefore, revised directions had become necessary. In para 16, these directions are issued in supersession of earlier directions dated June 28, 2002. Paras 1 and 3 of these guidelines/directions are relevant for us, and, therefore, we reproduce the same as under:
(1) Every candidate at the time of filing his nomination paper for any election to the Council of State, House of the People, Legislative Assembly of a State of the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the matters specified by the Hon’ble Supreme Court and quoted in paras 13 and 14 above, in an affidavit, the format whereof is annexed hereto as Annexure-I to this order.
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(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon’ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nomination such non-furnishing of the affidavit.
(12) We would also like to reproduce para 17 of these guidelines, which con- cerns the case at hand:
17. For the removal of doubt, it is hereby clarified that the earlier direction contained in para 14(4) of the earlier order dated 28th June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable in pursuance of the order dated 13th March, 2003 of the Apex Court. It is further clarified that apart from the affidavit Annexure-I hereto referred to in para 16(1) above, the candidate shall have to comply with the other requirements as spelt out in the Representation of the People Act, 1951, as amended by the Representation of the People (Third Amendment) Act, 2002 and the Conduct of Election Rules, 1961, as amended by the Conduct of Elections (Amendment) Rules, 2002.
(13) The meaning and scope of these guidelines came up for discussion before this Court in Resurgence India v. Election Commission of India and Anr. (2013) 11 Scale 348. That judgment was rendered in a writ petition filed under Article 32 of the Constitution of India for issuance of specific directions to effectuate meaningful implementation of the judgments in Association of Democratic Reforms, People’s Union for Civil Liberties and also to direct the Election Commission to make it com- pulsory for the Returning Officer to ensure that the affidavits filed by the contestants are complete in all respects and to reject the affidavits having blank particulars. This petition, thus was filed taking note of the practice which had started prevailing, namely, many candidates were leaving some of the columns blank in their affida- vits thereby omitting to provide the required information. As per the Petitioner in that case, in such an eventuality the Returning Officer should reject the nomination
528 “No voter to be left behind” whereas the Union of India pleaded that it should be treated at par with filing false affidavits and the candidate filing such an affidavit should be prosecuted under -Sec tion 125A of the Act. The Court took note of the provisions of Sections 33A, 36 and 125A of the Act and thereafter referred to the earlier three Judge Bench judgment of this Court in Shaligram Shrivastava v. Naresh Singh Patel : (2003) 2 SCC 176, wherein the Court had discussed the power of rejecting the nomination paper by the Returning Officer of a candidate filing the affidavit with particulars left blank.
The relevant discussion in this behalf is in paras 15 and 16 of the said judgment, which read as under:
15. Although, the grounds of contention may not be exactly similar to the case on hand but the reasoning rendered in that verdict will come in aid for arriving at a decision in the given case. In order to arrive at a conclusion in that case, this Court traversed through the objective behind filing the proforma. The proforma mandated in that case was required to be filed as to the necessary and relevant information with regard to the candidate in the light of Section 8 of the RP Act. This Court further held that at the time of scrutiny, the Returning Officer is entitled to satisfy himself whether the candidate is qualified and not disqualified, hence, the Returning Officer was authorized to seek such information to be furnished at the time or before scrutiny. It was further held that if the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, then he is obviously avoiding a statutory inquiry being conducted by the Returning Officer under Section 36(2) of the RP Act relating to his being not qualified or disqualified in the light of Section 8 of the RP Act. It is bound to result in defect of a substantial character in the nomination. This Court further held as under:
17. In the case in hand the candidate had failed to furnish such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It
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certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same.
16. It is clear that the Returning Officers derive the power to reject the nomination papers on the ground that the contents to be filled in the affidavits are essential to effectuate the intent of the provisions of the RP Act and as a consequence, leaving the affidavit blank will in fact make it impossible for the Returning Officer to verify whether the candidate is qualified or disqualified which indeed will frustrate the object behind filing the same. In concise, this Court in Shaligram (supra) evaluated the purpose behind filing the proforma for advancing latitude to the Returning Officers to reject the nomination papers.
(14) The legal position is, thereafter, summarized in para 27, which becomes important for our purpose and, therefore, we produce the same hereunder: 27. What emerges from the above discussion can be summarized in the form of following directions:
(i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Consti- tution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a
530 “No voter to be left behind” candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Return- ing Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her.
(15) Keeping in mind the aforesaid statutory framework as well as the legal prin- ciples enunciated in the afore-noted judgments, we now proceed to discuss the nature of information about which there was nondisclosure by the Appellant. RE - Non-disclosure of Government dues
(16) The Appellant had not disclosed, in his nomination paper/affidavit, that he was in arrears in respect of two electricity meters standing in his name, in respect whereof electricity connection was given by the Maharashtra State Electricity Board (for short, ‘MSEB’). The outstanding amount in these two meters was Rs. 79,200/- and Rs. 66,250/- respectively. It was proved, on the basis of evidence led by the Respondent herein, that the aforesaid dues were outstanding against these two elec- tricity connections. The defence of the Appellant, however, was that one electricity meter, which was in his residential bungalow, was defective and complaints in this behalf were made to MSEB from time to time and because of that dispute he was orally advised by the officials of MSEB not to pay the amount.
(17) The High Court proceeded on the assumption that there was a dispute. How- ever, as per the High Court that could not be a valid reason for not disclosing this
531 “No voter to be left behind” information with a note that the matter was pending review at the hands of MSEB. Thereafter, the High Court posed the question as to whether such non-disclosure can be treated as a technical defect or it is a substantive one. As per the High Court, the answer could be found by adverting to the form and the affidavits to be filed along with the nomination form. These forms required the candidates to disclose his liabil- ities/overdues to public financial institution and Government dues. Since MSEB is a Government body, the Appellant was supposed to give this information. The High Court opined that non-disclosure of this information, which is very vital to enable the voter to form his opinion about the candidate’s antecedents, resulted in misinforma- tion and disinformation thereby influencing the voters to take an uninformed deci- sion. The discussion on this aspect is summed up by the High Court in the following manner:
Accordingly, I have no hesitation in taking the view that it is a case of non-disclosure of liability in respect of outstanding electricity bills payable to Government Under- taking (M.S.E.B.); and that non-disclosure is a substantive defect in the affidavits filed along with nomination form. The test to hold that the defect is substantive, in my opinion, is not the amount involved, but the conscious act of non-disclosure and suppression of that fact. It would be a case of technical defect if there was some clerical error in the information disclosed by the candidate or for that matter, a case of omission due to lack of knowledge of existence of such dues. In the present case, the Respondent was conscious and aware of the fact that on the date of filing of the nomination form, there were two outstanding electricity bills in relation to two meters standing in his name, payable to M.S.E.B. It would have been a different matter if the Respondent was unaware of that fact or that no such bill was ever issued by the M.S.E.B. That is not the case of the Respondent. Thus understood, non-disclo- sure about the outstanding electricity bill in the sum of Rs. 79,200/- payable by the Respondent to M.S.E.B. Is a substantive defect in the affidavit.Resultantly, the nomination form filed along with such affidavit would become tainted and for which reason, it will have to be held that the same has been improperly accepted within the meaning of Section 100(1)(d)(i) of the Act. Besides, the candidate has failed to comply with the requirements of the order issued by the Election Commission in exercise of powers under Article 324(1) of the Constitution of India which order is founded on the Law declared by the Apex Court in the case of Union of India v.
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Association for Democratic Reforms (supra) and binding under Article 141 of the Constitution, therefore, affecting his nomination as well as the Election being void Under Section 100(1)(d)(iv) of the Act.
(18) Insofar as outstanding dues in respect of the second electricity meter are concerned, that pertained to premises which had been let out by the Appellant to his tenants. There was no dispute that the amount was outstanding. However, the defence of the Appellant was that the primary liability of making payment was that of the tenants. The High Court had discarded this defence with the observations that electricity meter stood in the name of the Appellant in relation to which there was an outstanding, which amount was payable on the date of filing of the nomi- nation. Even the premises where this meter had been installed were owned by the Appellant. Therefore, in law, it was the Appellant who was liable to be proceeded against for recovery of the amount and this fact was enough justification to disclose the aforesaid outstanding. As per the High Court, even this non-disclosure amounted to substantive defect.
On that basis, the High Court held that non-disclosure of these Government dues rendered the nomination paper invalid and, therefore, it was a case of improper acceptance.
RE - Non-disclosure of bungalow No. 866 in the name of spouse and outstanding taxes thereof
(19) Bungalow No. 866 at Badlapur in the limits of Kulgaon-Badlapur Municipal Council stands in the name of Kamal Kishore Kathore, wife of the Appellant. At the time of filing the nomination, there were municipal dues in the sum of Rs. 3,465/-. Allegation of the first Respondent was that both the aforesaid informations were sup- pressed and not disclosed in the affidavit filed by the Appellant along with the nom- ination form. According to him, this was crucial information regarding immovable property owned by the Appellant’s wife, suppression whereof amounted to filing a defective affidavit and such an affidavit was no affidavit in the eyes of law.
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(20) Significantly, the averment of the first Respondent in the election petition that the Appellant had suppressed information regarding the aforesaid immovable property belonging to his wife was not specifically denied by the Appellant. The Appellant only denied the liability of taxes pertaining to this property, that too on the ground that this property was required to be put to revaluation and reassessment for the purpose of assessing the taxes and for this purpose since the measurement of the property was undertaken to assess the taxable value, no demand notices were issued by the municipal authority. Even hearing regarding re-assessment took place on December 28, 2014 before the Collector and it is only after the completion of the reassessment work the municipal authority had issued tax demand notices.
(21) In view of the aforesaid, the High Court observed that as far as the ownership of the property in the name of the wife of the Appellant is concerned, it was a clear case of non-disclosure and the ownership was proved even on the basis of evidence produced before the Court. As far as non-payment of municipal dues is concerned, the High Court noted that the Appellant merely explained the circumstances in his written statement as to why the municipal taxes in relation to that property had not been paid. However, the municipal taxes were paid in part on October 28, 2004, after the date of filing of nomination with the payment of Rs. 1,783/- pertaining to the year 2003-04. It would show that the Appellant was in arrears. The Court also discussed the evidence on this aspect, namely, about the purported dispute relating to the reassessment as set up by the Appellant in his defence and has returned a finding of fact that, in fact, there were arrears of municipal taxes in relation to that house.
(22) As far as non-disclosure of the immovable property is concerned, the only reply given by the Appellant was that there was a substantial compliance because of the reason that the Appellant in his affidavit had disclosed the value of all the properties belonging to him and his spouse, in the sum of Rs. 11,10,000/-. The High Court, however, found that no such case was made out in the written statement. Moreover, in the affidavit filed by the Appellant, against the column of immovable properties, he had disclosed the properties at Badlapur and Kulgaon, valued at Rs. 11,10,000/-, shown against the column ‘Self’. Thus, the valuation of the properties given in the affidavit was of those properties which belong to the Appellant and,
534 “No voter to be left behind” therefore, it was a clear case of non-disclosure of wife’s property. This nondisclosure is also taken as a material defect. Summing up the discussion on this aspect, the High Court, in para 74, observed as under:
74. Insofar as the present case is concerned, as is mentioned earlier, the fact asserted by the Petitioner is that the Respondent has not disclosed the ownership of his wife in relation to house No. 866/4 in the affidavit “at all”. That allegation has remained unchallenged and undenied. In my opinion, therefore, there is substance in the stand taken on behalf of the Petitioner that the affidavit filed by the Respondent along with the nomination paper is only to do lip-service and is no affidavit at all as is required by the mandate of law or the order issued by the Election Commission which is founded on the Law declared by the Apex Court. As the affidavit filed by the Respondent along with the nomination form suffers from this substantive defect, the nomination of the Respondent has been improperly accepted within the meaning of Section 100(1)(d)(i) of the Act. Besides, the election of the Respondent was void also on account of non-compliance of the order passed by the Election Commission under Article 324 of the Constitution of India, which is founded on the Law declared by the Apex Court under Article 141 of the Constitution of India, within the meaning of Section 100(1)(d)(iv) of the Act.
RE - Non-disclosure of vehicle MH-05-AC-555 owned by the Appellant’s wife
(23) Here again, from the detailed discussion contained in the impugned judg- ment of the High Court, it becomes clear that by leading requisite and sufficient evidence, the first Respondent proved that wife of the Appellant owned the aforesaid vehicle and the particulars thereof were not disclosed. The defence of the Appellant was that he had mentioned the value thereof in his affidavit, but accepted that it was against column ‘Self’ and not in the independent column of his spouse. His defence is discussed and rejected by the High Court in the following manner:
89. On analysis of the pleadings, it follows that the Respondent admits that motor vehicle in question is owned by his wife. However, it is not his case that in the nomination form, he has disclosed the ownership of the said vehicle of
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his wife. Perhaps, the Respondent intends to suggest that he has substantially complied with the requirements by disclosing the ownership of motor vehicle valued Rs. 5,50,000/- and that it was purchased against loan given by M & M Financial Services Ltd.
90. Before we deal with the ocular evidence of the parties, it will be useful to make reference to the details to be disclosed by the candidate as per the prescribed affidavit. The requirement is that the candidate should disclose the “details of the motor vehicles” owned and possessed by him, his wife and/ or other dependent members of his family separately. The Respondent, however, against the said column has only mentioned figure of Rs. 5,50,000/- under the column ‘Self’, which gives an impression that the Respondent himself owns vehicle valued Rs. 5,50,000/- and nothing more. No details of the motor vehicle such as number of vehicle, the make, the model such as economic, luxury or the year of purchase and the like are disclosed so as to enable the voters to assess whether the details disclosed are correct or undervalued, including the legitimate means and capability of the candidate to possess such assets. As in the case of disclosure made by the Respondent in respect of buildings, in similar manner, the disclosure in respect of vehicle is also incomplete, vague and misleading. The candidate cannot get away with the explanation that he has disclosed some amount in one of the columns as sufficient or substantial compliance. The purpose of disclosure of assets (movable and immovable) and liabilities to be made by the candidate, is to educate the voters about the complete financial status of the candidate, which information also facilitates the voter to assess whether the assets (movable and immovable) declared by the candidate have been procured by him out of his legitimate and known source of income. The voters have a fundamental right to know and receive such information about the candidate before they take an informed decision to elect their candidate. As it is the fundamental right of the voters, there is corresponding duty on the candidate to disclose truthful and complete information regarding the assets (movable and immovable) as per the prescribed affidavits which forms integral part of the nomination form.
RE - Non-disclosure of property purchased in the name of the firm
536 “No voter to be left behind”
(24) The first Respondent had alleged that the Appellant has a right, title and in- terest in land measuring 1330 sq.mts. being Survey No. 48, Hissa No. 9, Plot No. 2 and also in land admeasuring about 1292 sq.mts. being Survey No. 48, Hissa No. 9, Plot No. 3 at Mouza Kalyan, Taluka Ambernath, District Thane. These prop- erties are purchased in the name of the partnership firm M/s. Padmavati Developers under agreement of development and sale. The Appellant was one of the partners in the said firm. However, the Appellant had not disclosed his interest in the afore- said assets in the affidavit filed along with the nomination form. The defence of the Appellant in relation to this allegation was that he had retired from the partnership firm in the year 2003 and in his letter dated October 28, 2004 sent to the Returning Officer, he had stated that the aforesaid two properties do not belong to him. The High Court noted that admittedly there was no reference about the two properties in the affidavits filed along with the nomination form. Further, it was a common case that M/s. Padmavati Developers was formed as a partnership firm in the year 1995, of which the Appellant was one of the partners. There was also no dispute that the bank account was operated in the name of the said partnership firm and Appellant was one of the joint signatory. Thus, the only aspect which needed deter- mination was as to whether the Appellant had retired from the said partnership firm in November 2003, as claimed by him. However, from the plethora of documentary evidence placed on record, the High Court returned a finding that those documents clearly show that the Appellant continued to remain an active partner even after 2003 and was, in fact, a partner on the date of filing of the nomination. Apart from various documents revealing and establishing this fact, most important document was the Deed of Dissolution of the partnership firm, which was dated January 11, 2005 and at the time of evidence, the Appellant had admitted the contents thereof, as well as the signatures of the three partners appearing on that document.
The High Court summed up the decision on this aspect in the following manner:
124. On overall analysis of the evidence, I have no hesitation in concluding that the Petitioner has established the allegation that the Respondent continued to be partner of the partnership firm Padmavati Developers at least till December 2004. It is also matter of record and admitted position that neither the Respondent nor any other partner of Padmavati Developers caused to give public notice of the retirement of
537 “No voter to be left behind” the partner or for that matter, intimation to the Registrar of Firms till January 2005. Obviously, intimation has been sent to the Registrar of Firms only after the institution and service of the present Election Petition, having realised the seriousness of the al- legation. If so, it was obligatory on the part of the Respondent to disclose his interest in the properties purchased in the name of the said firm.
(25) It would be pertinent to mention here that the first Respondent had alleged non-disclosure of many other assets, liabilities, etc. or suppression of other material information in the affidavits. However, apart from the aforesaid four non-disclosures, other allegations have not been accepted by the High Court. We would also like to mention at this stage itself that on all the four counts the High Court has recorded finding of facts, which are based on the evidence produced on record. As would be noted hereinafter, learned senior Counsel appearing for the Appellant did not even attempt to argue that these findings are wrong on facts. He only made legal submissions and his entire endeavour was that for non-disclosure of the aforesaid information, the High Court could not have held that the nomination was wrongly accepted and further that since there was a substantial compliance, there was no reason to set aside the election of the Appellant.
(26) On these aspects, the High Court had framed issues No. 7 and 8, which are as under:
(7) Does the Petitioner proves that the Respondent’s Nomination Form is improperly accepted by the Returning Officer?
(8) Whether on account of improper acceptance of the nomination paper, the Election result is materially affected?
(27) On Issue No. 7, finding of the High Court is that nomination was improperly accepted by the Returning Officer by giving the following reasons:
130. That takes me to the next issue as to whether Petitioner proves that the Respondent’s nomination form is improperly accepted by the Returning Officer? Insofar as this issue is concerned, the Respondent may be right to the
538 “No voter to be left behind”
extent that the Returning Officer cannot be faulted for having accepted the nomination form of the Respondent. That was required to be accepted inspite of the objection, in view of the decision of the Apex Court in the case of PUCL (supra) and the order issued by the Election Commission on the basis of the Law declared in the said Judgment. Inasmuch as, it was not open to the Returning Officer to enquire into contentious issues raised in this Petition in the summary enquiry at the stage of scrutiny of nomination forms. Those matters necessarily have to be addressed only after it is disclosed in an enquiry upon taking evidence on the relevant facts at the trial of the Election Petition. That does not mean that the nomination of Respondent was proper and lawful. As the Respondent’s nomination paper suffered from the defects already referred to in the earlier part of this decision, it is plainly a case of improper acceptance of his nomination paper by the Returning Officer, covered by the rigours of Section 100(1)(d)(i) of the Act. The issue No. 7 will have to be answered accordingly.
(28) Issue No. 8 pertains to the question as to whether the election result was materially affected because of non-disclosure of the aforesaid information. The High Court took note of provisions of Section 100(1)(d)(i) and (iv) and discussed the same. Thereafter, some judgments cited by the Appellant were distinguished and deciding this issue against the Appellant, the High Court concluded as under: 137. In my opinion, it is not necessary to elaborate on this matter beyond a point, except to observe that when it is a case of improper acceptance of nomination on account of invalid affidavit or no affidavit filed therewith, which affidavit is neces- sarily an integral part of the nomination form; and when that challenge concerns the returned candidate and if upheld, it is not necessary for the Petitioner to further plead or prove that the result of the returned candidate has been materially affected by such improper acceptance.
138. The avowed purpose of filing the affidavit is to make truthful disclosure of all the relevant matters regarding assets (movable and immovable) and liabilities as well as criminal actions (registered, pending or in respect of which cognizance has been taken by the Court of competent jurisdiction or in relation to conviction in respect of specified offences). Those are matters which are
539 “No voter to be left behind”
fundamental to the accomplishment of free and fair election. It is the fundamental right of the voters to be informed about all matters in relation to such details for electing candidate of their choice. Filing of complete information and to make truthful disclosure in respect of such matters is the duty of the candidate who offers himself or who is nominated for election to represent the voters from that Constituency. As the candidate has to disclose this information on affidavit, the solemnity of affidavit cannot be allowed to be ridiculed by the candidates by offering incomplete information or suppressing material information, resulting in disinformation and misinformation to the voters. The sanctity of disclosure to be made by the candidate flows from the constitutional obligation.
(29) As pointed out above, there is no dispute on facts that information in respect of the aforesaid four aspects was not disclosed by the Appellant in the affidavit filed by him along with the nomination form. The defence and/or justification given for non-disclosing these particulars is rightly rebuffed by the High Court. However, submission of Mr. B. Adinarayana Rao, learned senior Counsel appearing for the Appellant, was that having regard to the judgment of this Court in G.M. Siddhesh- war v. Prasanna Kumar2013) 4 SCC 776, the Court was required to examine as to whether information given in the affidavits was substantial compliance of those particulars regarding Government dues, assets and liabilities, etc. He submitted that the information amounted to substantial compliance. For this purpose, his attempt was to demonstrate that insofar as electricity dues of MSEB are concerned, there was a genuine dispute about the nonpayment; as far as ownership of bungalow No. 866 in the name of his wife is concerned, it was added to the value of the prop- erties belonged to the Appellant; municipal taxes in respect of this bungalow were again subject matter of dispute; the value of the vehicle owned by his wife was also disclosed against his own name; and as far as properties owned by the partnership firm are concerned, the Appellant was simply a partner from which he had resigned, even when this event occurred after the filing of the nomination form.
(30) We may state, in the first instance, that the judgment in G.M. Siddheshwar has no application insofar as the present case is concerned. The Court was dealing with the form of affidavit that is required to be filed along with the election petition
540 “No voter to be left behind” in order to comply with the provisions of Section 83(1) proviso of the Act. The very maintainability of the election petition was challenged on the ground that the affi- davit furnished by the election Petitioner was not in absolute compliance with the format affidavit (Form 25). The Court, however, upheld the view of the High Court holding that on perusal of the affidavit, there was substantial compliance with the prescribed format. Even when some defect was found in the verification to the elec- tion petition, it was held that said defect is also curable and cannot be held fatal to the maintainability of the election petition. In the present case, we are concerned with the affidavit which a candidate seeking election is required to file along with his nomination form. At the same time, we proceed on the basis that if there is a substan- tial compliance of the requirements contained in the said affidavits, in the sense that there is a disclosure of required particulars, including assets/liabilities etc., it can be treated as adequate compliance of the provisions of the Act, Rules and Orders.
(31) We have also kept in mind the following observations in G.M. Siddheshwar, while undertaking our analysis of the issue in the present case:
31. The Court must make a fine balance between the purity of the election process and the avoidance of an election petition being a source of annoyance to the returned candidate and his constituents. In Azhar Hussain v. Rajiv Gandhi 1986 Supp SCC 315 this Court observed (in the context of summary dismissal of an election petition): (SCC p. 324, para 12)
12...So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the constituency concerned. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in campaign to establish that he has in fact been duly executed.
541 “No voter to be left behind”
(32) In view of the aforesaid, two facets of the issue, which require consideration, are as follows: a) Whether there is a substantial compliance in disclosing the requisite information in the affidavits filed by the Appellant along with the nomination paper? b) Whether non-disclosure of the information on account of aforesaid four aspects has materially affected the result of the election?
(33) We have already discussed in detail each item of non-disclosure as well as defence of the Appellant pertaining thereto. For the reasons recorded in detail at that stage by the High Court and stated above, with which we agree, we are of the opinion that its finding about nondisclosure of the information qua all the aspects is without blemish. There is a specific format in which the information is to be given, which was not adhered to.
(34) With these remarks we proceed to deal with the first aspect.
Insofar as non-disclosure of the electricity dues is concerned, in the given facts of the case, we are of the opinion that it may not be a serious lapse. No doubt, the dues were outstanding, at the same time, there was a bona fide dispute about the outstanding dues in respect of the first electricity meter. It would have been better on the part of the Appellant to give the information along with a note about the dispute, as suggested by the High Court, we still feel that when the Appellant nurtured belief in a bona fidemanner that because of the said dispute he is not to give the infor- mation about the outstanding amount, as it had not become ‘payable’, this should not be treated as a material lapse. Likewise, as far as the second electricity meter is concerned, it was in the premises which was rented out to the tenants and the dues were payable by the tenants in the first instance. Again, in such circumstances, one can bona fide believe that the tenants would pay the outstanding amount. No doubt, if the tenants do not pay the amount the liability would have been that of the owner, i.e. the Appellant. However, at the time of filing the nomination, the Appel- lant could not presume that the tenants would not pay the amount and, therefore, it had become his liability. Same is the position with regard to non-payment of a sum
542 “No voter to be left behind” of Rs. 1,783/- as outstanding municipal dues, where there was a genuine dispute as to revaluation and reassessment for the purpose of assessing the taxes was yet to be undertaken. Having said so, we may clarify that it would depend in the facts and circumstances of each case as to whether such a non-disclosure would amount to material lapse or not. We are, thus, clarifying that our aforesaid observation in the facts of the present case should not be treated as having general application.
(35) Even if it is so, in respect of the aforesaid aspects, on other nondisclosures, the case of the Appellant has to fail. We find clear case of non-disclosure of bun- galow No. 866 in the name of the Appellant’s wife, which is a substantial lapse. So is the case about the nondisclosure of vehicle in the name of Appellant’s wife. Likewise, nondisclosure of the Appellant’s interest/share in the partnership firm is a very serious and major lapse. On all these aspects, we find that the defence/expla- nation furnished by the Appellant does not inspire any confidence. It is simply an afterthought attempt to wriggle out of the material lapse on the part of the Appellant in not disclosing the required information, which was substantial. We, therefore, are of the view that in the affidavits given by the Appellant along with the nomination form, material information about the assets was not disclosed and, therefore, it is not possible to accept the argument of the Appellant that information contained in the affidavits be treated as sufficient/substantial compliance.
(36) We have already reproduced above the relevant portions of judgments in the cases of Association for Democratic Reforms and People’s Union for Civil Libertie- sand the guidelines issued by the Election Commission pursuant thereto. A conjoint and combined reading thereof clearly establishes that the main reason for issuing directions by this Court and guidelines by the Election Commission pursuant thereto is that the citizens have fundamental right under Article 19(1)(a) of the Constitution of India to know about the candidates contesting the elections and this is the prima- ry reason that casts a solemn obligation on these candidates to furnish information regarding the criminal antecedents, educational qualifications and assets held by the candidate, his spouse and dependent children. It is on that basis that not only Election Commission has issued guidelines, but also prepared formats in which the affidavits are to be filed. As a fortiori, it follows that if the required information as per the said format in respect of the assets of the candidate, his wife and dependent children is not given, it would amount to suppression/nondisclosure.
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(37) It was argued that acceptance of nomination is as per Section 33 of the Act, which contains requirement for a valid nomination. Further Section 36(2) deals with rejection of nomination on grounds specified therein. It was the submission of the learned senior Counsel that at the time of scrutiny of the nomination under Section 36, nomination could be rejected only if any of the grounds stipulated in Sub-section (2) are satisfied and there cannot be any ‘deemed’ ground, which is not covered by Section 36(2) of the Act. Therefore, the Returning Officer had rightly accepted the nomination form as none of the grounds specified in Sub-section (2) of Section 36 were attracted. He further submitted that Sections 8A, 9, 9A, 10 and 10A pro- vide disqualifications for Members of Parliament and State Legislature. As per the counsel, from the scheme of the Act it can be seen that at the time of scrutiny of nomination, all that the Returning Officer is required to examine is as to whether the candidate suffers from any of the disqualifications mentioned in Section 8 to 10A of the Act and as to whether the nomination is in the form prescribed by Section 33 and accompanied by the documents mentioned in Sub-Sections 2 to 7 of Section 33 and whether it is accompanied by an affidavit prescribed by Rule 4A and the deposit required by Section 34 of the Act. Apart from the aforesaid, the Returning Officer is not empowered to reject the nomination on any other ground. He argued that the right of the Returning Officer to conduct a summary inquiry into the correct- ness or otherwise of the contents of the affidavit filed along with the nomination was expressly taken away as can be seen from the judgment of this Court in the case of People’s Union for Civil Liberties. Having noted that the Returning Officer has no power to reject a nomination where false information is furnished or material infor- mation is suppressed, the Election Commission of India and Union of India have requested this Court to treat the same as equal to a blank affidavit, as noted in the case of Resurgence India.
It is difficult to accept the aforesaid submissions of the learned senior Counsel as that would amount to nullifying the effect of the judgments as well as guidelines issued by the Election Commission.
(38) When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correct- ness of the information or alleging that there is non-disclosure of certain important
544 “No voter to be left behind” information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned senior Coun- sel appearing for the Election Commission, right argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Re- turning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the select- ed candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced.
(39) The upshot of the aforesaid discussion would be to hold that the present appeal is totally devoid of any merits and is, accordingly, dismissed.
545 “No voter to be left behind”
JUDGEMENT-22 HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Writ Petition No.12066 of 2014 (Decision dated 09/07/2014)
Dubbaka Narsimha Reddy...... Petitioner
Versus
Election Commission of India & Ors...... Respondents
Representation of the People Act, 1951 - Sec. 125A – Penalty for filing false Affidavit by the candidate - provides penal measures for filing affidavit giving false information or concealing information – it does not prescribe that it is the duty coupled with power or power coupled with duty or power to take any penal action for such false declaration by the Election Officers
HELD: It would be open to any aggrieved person to move petition before the appropriate Court of competent jurisdiction under Sec. 125 A in the case of any false declaration or concealing of information in the affidavit – Election Commission’s guidelines have got statutory force and have to be followed unless Statute requires expressly an officer appointed thereunder has duty or power coupled with duty to act on such complaints. (Para 15)
The Court did not grant any relief as prayed for that the R.O. should file a complaint and disposed of the petition giving liberty to the petitioner to take steps in accordance with law.
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SUMMARY
The petitioner herein had filed nomination for contesting election from 92-Nalgonda assembly constituency of Andhra Pradesh during the general election to the Legislative Assembly of Andhra Pradesh held in April-May, 2014, as a candi- date sponsored by Telangana Rashtra Samiti, a recognised State party, and the fifth Respondent, Shri Komatireddy Venkat Reddy, had filed nomination as a candidate sponsored by the Indian National Congress, a recognised National party. As per requirement of law, they had to file Affidavit in Statutory Form 26, as prescribed under Sec. 33 A of the Representation of the People Act, 1951, read with rule 4A of the Conduct of Elections Rules, 1961, to make truthfuldisclosure of all the relevant information regarding assets (moveable and immovable) and liabilities as well as criminal antecedents, if any, and educational qualifications. The petitioner filed a representation dated 12.04.14 before the Returning Officer alleging that the 5th Respondent had made a false declaration in his affidavit about his educational qual- ification and requested the Returning Officer to make an enquiry into the case. The said representation remained undisposed and fifth respondent got elected mean- while.
The main prayer in the writ petition was to issue any appropriate Writ, order or direction to the official respondents to dispose of the petitioner’s representation dated 12-04-2014 and to take appropriate action under section 125A of the R.P. Act, 1951.
The petitioner’s contention was that the fifth respondent furnished false infor- mation with regard to his educational qualification in his Affidavit which amounts to concealment and suppression of real fact and invites not only appropriate civil action but also criminal action.
The Court held that the provisions of Sec.125A of the 1951 Act, as incorpo- rated in 2002 on the intervention of the Supreme Court vide its judgments in Union of India vs. Association for Democratic Reforms [(2002) 5 SCC 294]; People’s Union for Civil Liberties Vs. Union of India[(2003) 4 SCC 399 and Resurgence India Vs. Election Commission of India (AIR 2014 SC 344), nowhere says that it is
547 “No voter to be left behind” the duty coupled with power or power coupled with duty to take any action by the Election Officer. It merely provides penal measures for filing affidavit giving false information or concealing information.
It further observed that the guidelines issued by the Election Commission vide its letter No.4/2014/SDR dated 26th April, 2014, that making false declaration/ concealing of information in the affidavit filed in statutory Form 26 appended to Conduct of Elections Rules, 1961 under section 33A of the R.P. Act, 1951, would be covered under Sec.125A of the Act and it would be open to any aggrieved person to move petition before the appropriate Court of competent jurisdiction with petition for action under said Sec.125A in the case of any false declaration or concealing of information in the affidavit, have got statutory force and have to be followed unless Statute requires expressly an officer appointed thereunder has duty or power coupled with duty to act on such complaints.
The Court did not grant any relief as prayed for and disposed of the petition giving liberty to the petitioner to take steps in accordance with law.
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JUDGEMENT
Hon’ble K.J. Sengupta, Judge Hon’ble C.J., Judge Hon’ble Sanjay Kumar, Judge
Advocate for Appellant/Petitioner/Plaintiff: V. Venkataramana, Senior Advocate Appeared for K. Pallavi Advocate for Respondents/Defendant: Avinash Desai, Govt. Pleader for Revenue, S. Niranjan Reddy and D. Prakash Reddy, Senior Advocate
(1) As it appears from the writ petition, the summary of facts is as under. The writ petitioner and fifth respondent filed nomination to contest Elections for 92- Nal- gonda Assembly Constituency. As required under the law, the fifth respondent was to and did file an affidavit disclosing his personal information in Form -26. In the affidavit filed with the Election Officer, the fifth respondent stated, amongst others, his educational qualification as follows:
He also mentioned in the form regarding Highest Educational qualification as under:
The footnote at the place of educational qualifications in the form requires as follows: (Give details of highest School/University education with full form of the certificate/ diploma/degree course, Name of the School/ College/ University and the year in which the course was completed).
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(2) Contention of the writ petitioner is that the aforesaid affidavit is not in accor- dance with law as prescribed. To be precise, if we have understood correctly, the complaint of the writ petitioner is that information supplied by the fifth respondent in the affidavit with regard to his educational qualification is false. He has not acquired Educational Qualification as disclosed. According to the writ petitioner, supply of incorrect information regarding educational qualification also amounts to conceal- ment and suppression of real fact and this invites not only appropriate civil action, but also criminal action.
(3) At the time of filing of the writ petition, the election was not over. Taking note of the fact, we did not pass any interim order at all, though prayed for. After the election was over, it was found that the fifth respondent was elected, defeating the petitioner. In view of the changed circumstances, the prayer of the writ petitioner has been allowed to be amended. The prayer amended reads as follows: “and consequently direct the respondents 2 and 3 to enquire about the educational qualification of the 5th respondent in pursuance of the representation dated 12-04- 2014 and take appropriate steps in accordance with law.” Now relief sought for by the writ petitioner is for making enquiry about educational qualification of the fifth respondent and taking appropriate steps by the Election Officials.
(4) Counter affidavits have been filed before the matter is taken up for final hearing. The election officials have stated that under the provisions of Section 125A of the Representation of the People Act, 1951 (hereinafter referred to as Act 1951), the Election Officer has not been given any power or duty to enquire into falsity of the statements made in the affidavit in order to initiate criminal action grievance of which is primarily focused right now. It is also stated that remedy of this grievance lies elsewhere. It is further stated that at the time of filing of the nomination, neither the law nor any pronouncement of the Supreme Court has mandated to enquire into as asked for.
(5) The fifth respondent has filed counter affidavit stating that there is no false nor inaccurate information in the affidavit filed by him and he has explained the same in the affidavit and we have heard it merely.
550 “No voter to be left behind”
(6) We are not making any comment nor rendering any decision on this issue for the reasons, which would be explained later on.
(7) In this matter, we requested Sri D. Prakash Reddy, learned Senior Advocate, to assist us. He has accepted our request and assisted us very ably.
(8) Sri V. Venkataramana, learned Senior Counsel appearing for the petitioner, sub- mits that when a representation has been made for taking an action, action should have been taken by the election officials not doing so it resulted inaction. Hence, a direction should be given to enquire into at this stage now. According to him irre- spective of provision of Section 125A of the Act 1951 does not prohibit from taking action on the question of falsity.
(9) Sri D. Prakash Reddy, learned amicus curiae, has brought to our attention to the several decisions of the Supreme Court, which are quoted hereunder, to inform this Court about the historical background of insertion of Section 125A in the Act 1951.
(i) Union of India v. Association for Democratic Reforms and Another : (2002) 5 SCC 294.
(ii) Peoples Union for Civil Liberties v. Union of India : (2003) 4 SCC 399.
(iii) Resurgence India v. Election Commission of India : AIR 2014 SC 344.
(10) Even after the amendment, the Hon’ble supreme Court, while taking note of the said amendment to aforesaid Section, has explained what would be the duty of the Election Officer to work with the complaint of false information or inaccurate information or concealment of information in the affidavits and at what stage. Sri D. Prakash Reddy, learned amicus curiae, says that Section 125A of Act 1951 is very clear that any person including the petitioner himself can make a complaint about false statement on Oath before appropriate authority. He is fair enough to inform us that law also enables the Election Officer to do so. The Supreme Court has recorded that at the time of filing nomination, it is simply impossible to take action.
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(11) Learned Counsel for the Election Commission of India adopted and support- ed the argument of Sri D. Prakash Reddy. In addition thereto, he has produced a Cir- cular dt.26.4.2014 issued by the Election Commission of India, giving guidelines as to what is to be done with regard to false declaration or concealment of information or furnishing incorrect information in the affidavit under Section 125A of Act 1951.
(12) Learned counsel for the fifth respondent reiterating the statements in the counter affidavit, submits that complaint can be lodged by any person and it is not necessary the election officer must lodge. Therefore, there is no question of considering the representation made by the petitioner for enquiring into the alleged criminal action. As far as the civil consequence is concerned, it is for the petitioner to approach appropriate forum.
(13) We have heard all of them and we have considered everything before us, including the Supreme Court pronouncement in aforementioned cases. We are of the view that when Section 125A of Act 1951 is incorporated, obviously with the intervention of the Court by above decisions of the Hon’ble Supreme Court of India, it would be suffice to read the section to know what is meant and we set out the said Section hereunder:
125-A. Penalty for filing false affidavit, etc.-- A candidate who himself or through his proposer, with intent to be elected in an election, --
(i) fails to furnish information relating to sub-section (1) of section 33A; or
(ii) gives false information which he knows or has reason to believe to be false; or
(iii) conceals any information, in his nomination paper delivered under sub- section (1) of section 33 or in his affidavit which is required to be delivered under sub- section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
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(14) From a reading of the aforesaid Section, it does not appear that Election Officer has to take any step for initiating any criminal proceedings. The aforesaid provision nowhere says that it is the duty coupled with power or power coupled with duty or power to take any action. It merely provides penal measure for filing affidavit giving false information or concealing information.
(15) Further more, there is a Circular issued by the Election Commission of India to all the Chief Electoral Officers of all States and Union Territories with regard to filing of false affidavits in Form-26. Paragraph 3 of the aforesaid Circular, reads as follows:
3. Under Section 125A, there is no stipulation that complaints under that section have to be made by the public servant concerned (in this case the R.O.). Therefore, it would be open to any aggrieved person to move petition before the appropriate Court of competent jurisdiction with petition for action under Section 125A in the case of any false declaration or concealing of information in the affidavit in Form 26.
When the guidelines have been issued that have got statutory force also, have to be followed by all the concerned officials unless Statute requires expressly an officer appointed thereunder has duty or power coupled with duty to act. The Court of law cannot mandate, for concept of rule of law does not permit so.
(16) Thus we are unable to grant any relief as asked for, however, we give liberty to take steps in accordance with law. This writ petition is disposed of accordingly. There will be no order as to costs.
553 “No voter to be left behind”
JUDGMENT-23 HIGH COURT OF KERELA
W.P. (C) No.4237 of 2008 (D) (Decision dated 01/03/2010)
Chirayinkeezhu A. Babu...... Petitioner
Versus
The Delimitation Commission & 9 Ors...... Respondents
AND
WA No.655 of 2010 in WP (C) 4237/2008
(Decision dated 21/01/2015)
Chirayinkeezhu A. Babu...... Appellant
Vs
The Delimitation Commission & 9 Ors...... Respondents
Constitution of India -- Article 329- Bar to interference by courts in electoral matters – 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 – order of Delimitation Commission has the force of law and is immune from any challenge in any Court.
554 “No voter to be left behind”
Delimitation Act, 2002 – Sec. 10- Publication of orders and their date of operation – ss. (1) & (2) –judicial review is not permissible against the order of the Delimitation Commission upon publication in the Gazette of India – Even in the absence of an express power conferred on the Delimitation Commission it is well within its inherent power to correct mistakes, if any, even after publication of final order till the Com- mission is in office.
Representation of the People Act, 1950 – Sec.8 – Consolidation of delimitation or- ders – consolidated order issued by the Election Commission shall have the force of law and shall not be called in question in any Court – all orders issued by Delimita- tion Commission prior to consolidated order of Election Commission get merged and hence do not have separate and independent existence thereafter and not open for a separate challenge.
HELD – Sec. 9 (2) (d) of the Delimitation Act, 2002 provides for issue of one or more orders by the Delimitation Commission to determine- (i) the delimitation of parlia- mentary constituencies; and (ii) the delimitation of assembly constituencies, of each state. Even in the absence of an express power conferred on the Delimitation Com- mission, it is well within its inherent power to correct accidental slip or omission in the final orders issued by it to carry on delimitation of constituencies while the said Commission is in office. No order under this section can be issued after issue of consolidated Delimitation Order by the Election Commission under Sec.8 of the Representation of the People Act, 1951.
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SUMMARY
The Delimitation Commission, formed in terms of the Delimitation Act, 2002, passed its final Order (Order No.9) determining the extent of Assembly and Parlia- mentary Constituencies in the State of Kerala on 16th May, 2005 and the same was published in the Gazette of India and the State Gazette of Kerala Government on the 31st May, 2005.
In that final order, 129-Chirayinkezhu assembly constituency was shown as general constituency and 133-Vattiyoorkavu assembly constituency as reserved for SCs. Subsequently, it was brought to the notice of the Commission by the Chief Electoral Officer, Kerala vide letter dated 28.11.2007, that due to purely clerical error in the EXCEL sheets containing figures of the total SC population and their per- centage within Thiruvananthapuram District, the 133-Vattiyoorkavu AC was wrongly declared as reserved for SCs in place of 129-Chirayinkeezhu AC that actually had a higher SC percentage (i.e. 15.99%) in comparison to 133-Vattiyoorkavu AC ( i.e. 10.34%).
The Delimitation Commission thereupon issued a corrigendum (Order No.55) on 16th January, 2008, that is, nearly after 3 years after issue of the final order, to correct the error arising from inadvertent slips and notified 129-Chirayinkeezhu as reserved for SCs instead of 133-Vattiyoorkavu assembly constituency.
Aggrieved upon issue of the above mentioned corrigendum by the Delimita- tion Commission, this writ petition was filed on 04.02.2008 with a prayer to quash and declare as null and void the order (Order No.55) passed by the Delimitation Commission on 16th January, 2008. The petitioner contended that after the final order was passed, the Delimitation Commission became functus officio and it has no power to amend or correct the final order including any printing mistake or any error after the publication of the order under section 10(1) of the Delimitation Act as judi- cial review is not permissible against such Order of the Delimitation Commission.
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During the pendency of the writ petition, the Election Commission issued the consolidated single order in respect of the 22 States known as the ‘Delimitation of Parliamentary and Assembly Constituencies Order, 2008’ on 26th November, 2008 under section 8 (1) (a) of the Representation of the People Act, 1950. The writ petition was thereafter amended to incorporate a prayer for declaring the said consolidated Order as unconstitutional and illegal.
The learned Single Judge, by judgment dated 1st March, 2010, held that the Delimitation Commission was very much in existence and continuing its official functions on 16 January, 2008, i.e. on the date of issue of the corrigendum, as the Govt. of India issued a Notification on a later date on 23.5.2008 that it shall cease to exist from 01.06.2008. It held that even in the absence of an express power conferred on the Delimitation Commission, it was well within its inherent power to correct accidental slip or omission in the final orders issued by it to carry on delimi- tation of constituencies while the said Commission was in office.
In so far as the question as to whether the corrigendum is liable to any judi- cial review in view of the express bar under Article 329 (a) of the Constitution, the learned Single Judge held that after issue of the consolidated Delimitation Order 2008 by the Election Commission on 26/11/2008, under section 8 (1)(a) of the 1950 Act, the challenge to the earlier order (Order No.55) passed by the Delimita- tion Commission on 16/01/2008 does not survive. The consolidated Delimitation Order is immune to any challenge in view of the bar under Article 329 (a) of the Constitution of India. Accordingly, the writ petition was held not maintainable.
A Writ Appeal No.655 of 2010 was filed before the Division Bench of the High Court against the above mentioned judgment of the learned Single judge. The Division Bench upheld the judgment passed by the single Judge and reaffirmed that the consolidated Delimitation of Parliamentary and Assembly Constituencies Order, 2008 issued by the Election Commission under Sec.8 of the R.P. Act, 1950 has the force of law and is immune from any challenge in any court in view of the provisions contained in Article 329 (a) of the Constitution of India. The Appeal was accord- ingly dismissed on 21st January, 2015.
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JUDGMENT
Hon’ble T.R.Ramachandran Nair, Judge. Advocate for Petitioner: Sri.T.P.Kelu Nambiar (Sr.), Advocate for Respondent: Sri.Murali Purushothaman, Sc,Ele.Comm.
(1) The important question that is raised in this writ petition is with regard to the power of theDelimitation Commission of India to issue a corrigendum notification, after the publication of theorder delimiting the Constituencies under Section 10(1) of the Delimitation Act (for short ‘the Act’).It is also contended that the Statute does not confer any such power and the only provision is theone conferring power under Section 11 of the Act on the Election Commission to correct any printingmistake in any order made under Section 9 or any error arising therein by way of inadvertent slip oromission.
(2) The bare facts for the disposal of the writ petition are the following: The pe- titioner is a permanentresident and voter in Chirayinkeezhu Assembly Constituency and is a lawyer. Prior to thedelimitation of the Constituencies, Chirayinkeezhu Pan- chayat was part of Attingal AssemblyConstituency.
(3) After the formation of the Delimitation Commission in terms of the Delimita- tion Act, 2002,Ext.P2, a proposal for delimitation of the Parliamentary and Assem- bly Constituencies in the Statewas published. In the proposal serial No.128 Attingal and serial No.129 Chirayinkeezhu were to bereserved as SC Constituencies. Af- ter the consideration of various objections submitted by severalvoters including the sitting M.L.A. of Attingal, viz. Shri Vakkom B. Purushothaman, the final orderwas published by the Commission as per Ext.P3. Going by the final order published on 31.5.2005,serial No.129 Chirayinkeezhu Assembly Constituency was removed from the list of SC reservedConstituency and instead serial No.133 Vattiyoorkavu was made as SC reserved Constituency inThiruvananthapuram District.
(4) Ext.P4 is the corrigendum notification issued nearly after three years, viz. on 16.1.2008 wherebythe Delimitation Commission ordered that the status of 129
558 “No voter to be left behind”
Chirayinkeezhu Assembly Constituencyshall be as reserved for Scheduled Castes, ie. 129 Chirayinkeezhu (SC) instead of 133 Vattiyoorkavu(SC) and 133 Vattiy- oorkavu (SC) shall be shown as a General Constituency. This is under attack onvari- ous grounds, in this writ petition.
(5) Heard Shri T.P.Kelu Nambiar, learned Senior Counsel and Shri K.V. Sohan, appearing for thebpetitioner and Shri Murali Purushothaman, learned Standing Counsel appearing for thebrespondents.
(6) Respondents 2 to 4 are respectively, the Chairman and Members of the De- limitation Commissionand the 5th respondent is its Secretary.
(7) Shri T.P. Kelu Nambiar, learned Senior Counsel appearing for the petitioner contended that afterExt.P3 final order was passed, the Delimitation Commission has ceased to exist. Section 11 of the Actenables the Election commission to correct any printing mistake in any of the orders made by the Delimitation Commission under Section 9 or any error arising therein from an inadvertent slip oromission. The Delim- itation Commission has no power to amend or correct the final order includingany printing mistake or any error after the publication of the order under Section 10(1) of the Act.Ext.P3 is the order published by the Delimitation Commission under Section 10(1) of the Act as perthe modes provided therein including Official Gazettes and going by sub-section (2), it shall have theforce of law and shall not be called in ques- tion in any court. The said notification was approved bythis Court in the decision in Chief Electoral Officer v. Sunny Joseph (2005 (4) KLT 599) andtherefore the Com- mission cannot tinker with the said order, as is done presently. It is an orderpassed without jurisdiction as the Commission became functus officio after the publication of Ext.P3notification. The bar under Article 329(a) of the Constitution of India to challenge in any Court theorder issued by the Delimitation Commission under the Act will not apply here. Ext.P4 is totally nulland void; it has to be ignored and Ext. P3 therefore has to be declared as valid for all purposes. It isalso contended that going by the principles contained in Section 9(1)(c) of the Act, the SCConstituencies should not be clustered, but shall be distributed and herein these two Constituen- cieswhich are adjoining and from the same taluk, are now shown as SC reserved Constituencies.
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(8) Shri Murali Purushothaman, learned Standing Counsel appearing for the Election Commission ofIndia and the Delimitation Commission, by relying upon the statements filed in support of theaction, submitted that the Delimitation Commission did not become functus officio as on the date ofpublication of Ext.P4. In the light of the bar under Article 329(a) of the Constitution, theconsolidated order Ext.P5 is hav- ing the force of law, it is beyond challenge and therefore the writpetition is not main- tainable, especially in the light of the decision of the Apex Court in MeghrajKothari v. Delimitation Commission and others (AIR 1967 SC 669 which was followed by theDivision Bench of this Court in Sunny Joseph’s case (2005 (4) KLT 599). Ext.P4 can also be treatedas an order issued under Section 9 and therefore the same also gets protection under Section 10(2)of the Act, and the Delimitation Commission is well within its power to issue the corrigendumnotification. Learned Standing Counsel relied upon various decisions of this Court and that of theApex Court in this regard.
(9) As already noticed, Ext.P2 is the proposal published by the Delimitation Commission underSection 9(2) of the Act, 2002 for the delimitation of Parliamen- tary and Assembly Constituencies inthe State of Kerala. Ext.P3 is the order passed under Section 9(2) of the Act and published underSection 10(1) of the Act finalising the above proposal after considering objections and suggestionsmade in public sit- tings. Ext.P5 is the Delimitation of Parliamentary and Assembly ConstituenciesOrder, 2008 made by the Election Commission, viz. the consolidated order in respect of all theStates.
(10) On behalf of the respondents, various documents have been produced. An- nexure A is theguidelines prescribed by the Delimitation Commission for the purpose of completing the wholeexercise. Annexure B is the photo copy of the Delimitation (Amendment) Ordinances, 2008 andAnnexure C is the photo copy of the Presiden- tial Order issued under Articles 82 and 170(3) of theConstitution dated 19.2.2008 by which the Delimitation order in respect of the 22 States/UnionTerritories have been made applicable from 19.2.2008. Thus, by Annexure C, Ext.P3 Delimitation- Order, which, as corrected by Ext.P4, has been given effect from 19.2.2008.
(11) Some of the provisions of the Delimitation Act, 2002 also will be relevant for considering thelegal issues raised in this writ petition. The Delimitation Commission
560 “No voter to be left behind” is constituted under Section 3of the Act and under Section 4(2), the Commission shall readjust the division of each State intoterritorial constituencies for the purpose of elections to the House of the People and to the StateLegislative Assembly on the basis of the census figures and ascertained at the census held in the year2001.
Section 9(1)(c) is important, which is extracted below: “(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located as far as practicable, in those areas where the proportion of their population to the total is comparatively large.”
(12) Section 10(1) empowers the Commission to publish its order made under Section 8 or 9 in theGazette of India and in the official Gazettes of the States concerned and simultaneously cause suchorders to be published at least in two ver- nacular newspapers, etc. Section 10(2) is also important forthe purpose of this case which is extracted below:
“(2) Upon publication in the Gazette of India, every such order shall have the force oflaw and shall not be called in question in any Court.”Going by sub-section (2) of Section 10, the order passed by the Commission herein, (Ext.P3) shallhave the force of law and shall not be called in question in any Court. Section 11 empowers theElection Commission to correct any error arising from an order under Section 9 by inadvertent slipor omission, etc.
(13) The first question to be considered is the one which is vehemently argued by the learned SeniorCounsel Shri T.P. Kelu Nambiar appearing for the petitioner, that the entire exercise done by theCommission is without any power and jurisdiction and therefore null and void. Reliance is placed onSunny Joseph’s case (2005 (4) KLT 599) wherein the Division Bench after interpreting Sections10(1) and 10(2) of the Act, held that judicial review is not permissible against the order of theDelimitation Commission. It was held by the Division Bench speaking through K.S. Radhakrish- nan,J. (as he then was) that:
“By Article 329(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called
561 “No voter to be left behind”
in question in anyCourt. The difference in the phraseology used in Article 329(a) and (b) may give some room forchallenging the orders passed under Article 329(b) under Article 226 of the Constitution of India oncertain limited grounds but not the orders relating to delimitation of constituencies which fall underArticle 329(a).” The words “shall not be called in question” are absent in Article 329(b), but verymuch present in Article 329(a).” Article 329(a) is extracted below:”(a) the validity of any law relating to the delimitation of constituencies or theallotment of seats to such constituencies, made or purporting to be made underArt.327 or Art.328, shall not be called in question in any court.”
Therefore, the Division Bench, following the decision of the Apex Court in Meghraj Kothari’s case(AIR 1967 SC 669), put a lid on the order Ext.P3 beyond the pale of challenge and hence it is pointed out that as this Court also cannot touch it under Article 226 of the Constitution and hence theDelimitation Commission could not have passed Ext.P4..
(14) Learned Senior Counsel Shri T.P. Kelu Nambiar further submitted that the DelimitationCommission became functus officio after the publication of Ext.P3. The pleadings made by therespondents in this regard are relevant, since they dispute the same. It is pointed out in thestatement filed on behalf of the respondents dated 18.2.2008 that after the Census Commission ofIndia published the relevant figures of the 2001 census on 31.12.2003, the Delimitation Commissionof India commenced the work of delimitation of Parliamentary and Assembly constituencies from2004. Final orders have been published as on the date of filing of the said statement in respect of allStates and Union Territories, except Assam, Arunachal Pradesh, Na- galand and Manipur. In respectof these States, the Delimitation has been deferred by the President of India under the DelimitationAct, 2002 as further amended in 2008. The Delimitation Commission was carrying out its taskassigned to it under the Constitution, Representation of the People Act and the Delimitation Actthen and the Commission would become functus officio only after completion of the task. It istherefore submitted that since the Delimitation Commission was functional and as no consolidatedDelimitation order has been published by the Election Commission at that point of tine, Ext.P4 isperfectly within jurisdiction. It is passed in exercise of
562 “No voter to be left behind” the inherent powers of the DelimitationCommission. The Election Commission can exercise the power under Section 11 only after theprocess of delimitation in all States is completed by the Delimitation Commission.
(15) In the further statement filed on 26.3.2008, it is pointed out that in exercise of the powers underSection 10A(1) of the Act, the President of India has by order published in the Gazette of Indiadeferred the delimitation exercise in the States of Assam, Arunachal Pradesh, Nagaland andManipur. Annexure B is the copy of the Delimitation (Amendment) Ordinance, 2008. Annexure Cpublished by the President of India in exercise of the powers under Articles 82 and 170(3) of theConstitution, is dated 19.2.2008. Therein, Ext.P3, corrected by Ext.P4 has been given effect from19.2.2008. In the additional statement dated 20.10.2008 filed by the respon- dents, it has beenpointed out that the Chairperson of the Delimitation Commission informed the Government ofIndia about the accomplishment of delimitation work by the Delimitation Commission andexpressed its intend to demit the office of the Chairperson with effect from 31.5.2008 and theGovernment of India in exercise of the powers conferred by Section 3 read with sub-section (6) ofSection 10 of the Delimitation Act, has notified the 1st day of June 2008 as the date on which the Delimitation Commission shall cease to exist. The same has been produced as An- nexure D.
(16) In the light of the factual scenario pointed out above, it cannot be said that the DelimitationCommission became functus officio after publication of Ext.P3 order. As on the date of Ext.P4 order,therefore, the Commission was continuing its official functions and by Annexure D notificationdated 23.5.2008 it has ceased to exist with effect from 1.6.2008. The question is whether in the lightof Section 11 of the Act, conferring powers on the Election Commission of India, the power to correctany inadvertent slip or omission, etc. the Delimitation Commission retains the very same power inthe absence of any express provisions under the Act.
(17) It is well settled that a statutory power will be construed as impliedly authorising everythingwhich can be regarded as incidental or consequential to the power itself, and it is also well settledthat the power can be exercised from time to time as occa- sion requires. Normally after an order isissued by the Delimitation Commission of
563 “No voter to be left behind”
India under Section 9 and published under Sections 10(1)and 10(2) of the Act, the Delimitation Commission will cease to exist. It is evident from Section11(1)(a) that the Election Commission is conferred with the power to correct any printing mistake inany of the orders made by the Commission under Section 9 or any error arising therein from aninadvertent slip or omission. The said power is given obviously to promote public interest itself, asotherwise such orders, unless allowed to be correct- ed, will throw the system open to criticism.
(18) But, will it deny the power of the Delimitation Commission while the said Commission is inoffice, to correct an accidental error or omission, merely because of the publication of the order under Section 10 (1) of the Act? Herein, in Ext.P4 it is pointed out that due to purely clerical error inthe EXCEL sheets relating to Thiru- vananthapuram District prepared at the time of signing the finalorder in respect of Kerala State, the total SC population and percentage of SCs in 133-Vattiyoorka- vu(SC) AC were inadvertently shown as 55530 and 24.74% respectively, which were wrong andwhereas the correct figures were 23214 & 10.34% respectively. In Chirayinkeezhu there is a higherpercentage of SC (15.99%). It is pointed out in Ext.P4 itself that in the light of the correct figures andin the light of the general principles adopted by the Commission for reservation of AssemblyConstituencies for SC in terms of Section 9(1)(c) of the Act. 129-Chirayinkeezhu AC should qualifyfor reservation as SC instead of 133-Vattiyoorkavu SC.
(19) Herein, I may refer to a decision of a learned Single Judge of this Court in V.V. Prakasini v.K.P.S.C. and others (1993 (1) KLJ 632) wherein it was held that pub- lic authority has power tocorrect apparent mistake even without a specific provision. Rule 3(c) of the KS & SSR waschallenged on the ground that the power conferred is unguided. While considering the power of thePublic Service Commission under Rule 3(c) to cancel an advice of a candidate which was wronglymade, T.L. Viswanatha Iyer, J. held thus in para 18:”Such a reserve power to correct mistakes committed by itself has to be located inevery public authority in the interest of justice and to avoid arbitrariness. It is notuncommon - in fact it is a human falling- that errors are com- mitted in the conduct of human affairs. Infallibility is not ahuman virtue, that being a quality attributable only to the Almighty. Such a power tocorrect apparent mistake is therefore an absolute necessity and has to be found inevery authority, even without a
564 “No voter to be left behind” specific provision...... Equally if the higherranking given to the petitioner could have been successfully challenged as patentlyerroneous, why not the same result be achieved by the Commission itself rectifyingwhat otherwise was an obvious mistake committee by it? Conferment of such a poweris found in various statutes and is an essential requisite for achieving the ends ofjustice.” An earlier decision of this Court by the same learned Judge in Sasidharan v. Reserve Bank of India(1990 (2) KLT 573) and the decision of the Apex Court in State of Punjab v. Jagdip Singh (AIR 1964SC 521), have been relied upon, to explain the said legal position. The Apex Court in the abovedecision, held thus while analysing a similar issue:
“The question then is as to the effect of a void order of confirmation. When an orde- ris void on the ground that the authority which made it had no power to make itcan- not give rise to any legal rights, and as suggested by the learned AdvocateGeneral, any person could have challenged the status of the respondents asThahsildars by instituting proceedings for the issue of a writ of quo warranto underArticle 226 of the Constitution. Had such proceedings been taken it would not havebeen possible for the respondents to justify their status as permanent Tahsildars andthe High Court would have issued a writ of quo warranto depriving the respondentsof their status as permanent Tahsildars. Now, where the Government itself realisesthat an order made by an authority under the Government is void, is it powerless todo anything in the matter? It is bound to give effect to a void order and treat asconfirmed Tahsildars persons who have no legal right to be treated as confirmedTahsildars? Is it not open to the Government to treat the confirmation as void andnotify the persons affected and the public in general of the fact of its having done soby issuing a notification of the kind it made on October 31, 1957? In our opinionwhere a Government servant has no right to a post or to a particular status, thoughan authority under the Gov- ernment acting beyond its competence had purported togive that person a status which it was not entitled to give he will not in law to bedeemed to have been validly appointed to the post or given the particular status.”
(20) In the earlier decision, in Sasidharan’s case (1990 (2) KLT 573), the learned Judge considered a case where the appointing authority corrected a mistake inmaking a wrong appointment without reference to seniority. It was held thus in para 7:
565 “No voter to be left behind”
“The power is inherent in any administrative authority to correct accidental mis- takescommitted by it, in ignorance of, or overlooking the facts. Indeed such power shouldbe exercised, where rights of third parties have been affected by the mistak- enproceedings, without their knowledge, and without their being heard, resulting inmiscarriage of justice. If the power to correct inadvertent mistakes is not recog- nise and accepted, it may lead to perpetuation of injustice and to undesirable- consequences. A person whose rights are so affected by an illegal order passed behindhis back need not be compelled to rush to court to get it set aside, on pain of its beingheld binding otherwise. The authority concerned can itself remedy the mischief, onits being apprised of its mistake and the injustice flowing therefrom. (See in thisconnection Karunakaran Nambiar v. Director o Public Instruction - 1966 KLT 290).Such an order does not affect any rights of the party benefiting by the mistake, as norights legally inhered in him by virtue of the mistaken order. Wade in hisAd- ministrative Law (Fifth Edition, age 226) points out that even where such powers are not (expressly) conferred, statutory tribunals would have power, to correctacci- dental mistakes, and to review a decision when facts subsequently discoveredhave revealed a miscarriage of justice. The same rules must apply to non-statutoryaction by administrative authorities as well.I respectfully agree with the above dictum laid down by the learned Judge.”
(21) Therefore, even in the absence of an express power conferred on the De- limitation Commission,the Commission is well within its power to correct mistakes. The Commission found that theprinciples for allotting the constituencies to SC was followed, but because of the mistake in thefigures shown, an inadvertent mistake occurred in Ext.P3. It is clear from Ext.P4 that inVattiyoorkavu SC, the percentage is 10.34% and in Chirayinkeezu it is 15.99%, a higher percentage.Section 9(1)(c) of the Act obliges the Commission to distribute the constituencies in favour of SC asfar as practicable, in those areas where the proportion of their population to the total iscomparatively large. The power exercised by the Commission is in tune with the power alreadyconferred on them to carry on delimitation of constituencies and issue orders on them under therelevant provisions.
(22) True, Section 10(2) provides that an order passed under Section 10(1) is having the force of lawand cannot be called in question in any court of law. Therefore,
566 “No voter to be left behind” it is clear that even judicial review isnot permitted with regard to the finality attached to the order in view of Section 10(2). But even inrespect of such an order, power is conferred on the Election Commission under Section 11 (1)(a) tocorrect any printing mistake in any of the orders made by the Commission under Section 9 or anyerror arising therein from an inadvertent slip or omission. If such a power is conceded to theElection Commission, there is nothing wrong in conceding an inherent pow- er to the DelimitationCommission to exercise the very same power while the said Commission is in office. If the argumentof the petitioner is accepted, then the order under Section 9 cannot be touched by the ElectionCommission also since the same is having the force of law, after its publication under Section 10(1)of the Act.
(23) Therefore, the true issue is whether any accidental slip or omission should be allowed to becorrected, which will only advance the purpose of the Delimitation Act and the principles fordelimitation provided under Articles 330 and 332 of the Constitution of India and Section 9(1)(c) ofthe Delimitation Act, 2002 in regard to SC constituencies. What is effected by Ext.P4, therefore, isthe mandate of the statute in tune with the principles under Article 332 of the Constitution. Hencethe inherent power of the Delimitation Commission has to be conceded in such circumstances.
(24) It is true that the Division Bench in Sunny Joseph’s case (2005 (4) KLT 599) upheld thenotification Ext.P3 with regard to Kannur Assembly Constituency. But that will not deprive theDelimitation Commission any power to issue a corrigendum noti- fication.
(25) The next question is whether Ext.P4 is liable to challenge in this writ petition filed under Article226 of the Constitution, in view of the express bar under Article 329(a) of the Constitution. Theargument raised by the learned Senior Counsel, Shri Kelu Nambiar is that Ext.P4 is a void order andtherefore there is no bar for this Court to declare that it is not having any legal validity. But in thelight of the findings rendered by me above that the Delimitation Commission has power to issueExt.P4, it cannot be termed as a void order and it has to be treated as valid for all purpos- es. Aspointed out already, the Election Commission has already come out with the consolidated order asenjoined by Section 8 of the Representation of the people Act, 1950. Section 8 of the said Act confers
567 “No voter to be left behind” power on the Election Commission to publish single order known as Delimitation of Parliamentaryand Assembly Constituencies Order, 2008 after the Delimitation Commission has issued variousorders in respect of different States.
Section 8(1)(a) and 1(b) for our purpose, is extracted below:
8(1) Having regard to all the orders referred to in sub-section (5) of section 4 and sub-section (3) of section 7 relating to the delimitation of parliamentary andassem- bly constituencies, in all States and Union Territories, except the States ofArunachal Pradesh, Assam, Jharkhand, Manipur and Nagaland, made by theDelimitation Commission and published in the Official Gazette, the ElectionCommission shall—
(a) after making such amendments as appear to it to be necessary for bringingup-to- date the description of the extent of the parliamentary and assemblyconstituencies as given in such orders, without, however, altering the extent of anysuch constit- uency.Assembly Constituencies Order 1976, as made applicable pursuant to the ordersmade by the President under Section 10A of the Delimitation Act, 2002 (33 of 2002)relating to delimitation of parliamentary and assembly constituencies in the States ofArunachal Pradesh, Assam, Manipur and Nagaland, and the provisions of section 10Bof the said Act relating to delimitation of parliamentary and assembly constituenciesin the State of Jharkhand, consolidate all such orders into one single order to beknown as the Delimitation of Parliamentary and Assembly Constituen- cies Order,2008 and shall send authentic copies of that Order to the Central Gov- ernment and tothe Government of each State having a Legislative Assembly; and thereupon thatOrder shall supersede all the orders referred to in sub-section (5) of section 4 andsub-section (3) of section 7 and shall have the force of law and shall not be called inquestion in any court.” (emphasis supplied) Going by the same, the consolidatedorder, viz. Delimitation of Parliamentary and Assembly Costituencies Order, 2008shall have the force of law and shall not be called in question in any Court. Ext.P5 isthe consolidated order thus brought out by the Election Commission dated26.11.2008. Thereafter Ext.P4 cannot have a separate and independent ex- istence,now, leaving it open for a separate challenge.
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(26) Shri Murali Purushothaman, learned Standing Counsel appearing for there- spondents, submitted that in the light of Section 8 of the Representation of thePeople Act, 1950 since the said order has the force of law, it cannot be challengedunder Article 329(a) of the Constitution and therefore, in this writ petition, the samecannot be called in question, as Ext.P4 has merged with the consolidated orderExt.P5. The consolidated order Ext.P5 shows; serial No.128 Attingal (SC), serialNo.129 Chi- rayinkeezhu (SC) and 133 Vattiyoorkavu (General).
(27) Article 329(a) contains an absolute bar for this Court to consider the chal- lenge against the orderunder the Delimitation Act, which is well settled by a decision of the Constitution Bench of the ApexCourt in Meghraj Kothari’s case (AIR 1967 SC 669). After analysing the various provisions of theDelimitation Commission Act, 1962, their Lordships held thus in para 19 and 20:” (20) In our view, therefore, the objection to the delimitation of constituencies couldonly be entertained by the Commission before the date specified. Once the ordersmade by the Commission under Ss.8 and 9 were published in the Gazette of Indiaand in the official gazettes of the States concerned, these matters could no longer bereagitated in a court of law. There seems to be very good reason behind such aprovision. If the orders made under Ss. 8 and 9 were not to be treated as final, theeffect would be that any voter, if he so wished, could hold up an election indefinitelyby questioning the delimitation of the constituencies from court to court. Section10(2) of the Act clearly demonstrates the intention of the Legislature that the orders under Ss.8 and 9 published under S.10(1) were to be treated as law which was not to be questioned in any court.
(20) It is true that an order under S.8 or 9 published under S.10 (1) is not part of an Act of Parliament, but its effect is to be the same.
“In fact, the Division Bench of this Court in Sunny Joseph’s case (supra) elaborately considered thescope and effect of Article 329(a) and examined whether the same will breach the basic structuredoctrine in Kesavananda Bharathi’s case (AIR 1973 SC 1461) and after considering the said decisionand the decision of the Apex Court in Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), heldin para 11 that judicial review can be excluded in certain limited areas, though it is considered to bethe basic
569 “No voter to be left behind”
structure of the Constitution. Reliance was also placed on the later decision of the ApexCourt in L. Chandrakumar v. Union of India and others {(1997) 3 SCC 261} wherein afterconsidering the above two decisions of the Apex Court, Article 329(a) was cited as an example andfurther it was pointed out that judicial review cannot be considered to be a part of the basicstructure so far as election to the legislature is concerned.”
(28) I may mention here two earlier decisions of the Apex Court, viz. N.P. Pon- nuswami v. TheReturning Officer, Namakkal Constituency (AIR 1952 SC 64), a landmark decision by a ConstitutionBench which was relied on by another Constitu- tion Bench in Mohinder Singh Gill and another v.The Chief Election Commissioner, New Delhi (AIR 1978 SC
851). While considering the question whether the rejection of nomination could be challenged in awrit petition under Article 226 of the Constitution in the light of the express bar under Article329(b), Fazil Ali, J., speaking for the Bench, held thus in para 15 in Ponnuswamy’s case (supra):
“It may be pointed out that Art.329(b) must be read as complimentary to Cl.(a) ofthat article. Clause (a) bars the jurisdiction of the Courts with regard to such law asmay be made under Arts. 327 and 328 relating to the delimitation of constituen- ciesor the allotment of seats to such constituencies...... If Part XV of the Consti- tutionis a code by itself, i.e. it creates rights and provides for their enforcement by a specialtribunal to the exclusion of all Courts including the High Court there can be noreason for assuming that the Constitution left one small part of the election processto be made the subject matter of contest before the High Courts and thereby upsetthe time-schedule of the elections. The more reasonable view seems to be tha- tArt.329 covers all “electoral matters”.
(29) In the other important decision in Mohinder Singh Gill’s case (AIR 1978 SC 851), V.R. KrishnaIyer, J., after referring to Ponnuswamy’s case (supra), held thus in para 24 and 25:
570 “No voter to be left behind”
“Ponnuswamy (AIR 1952 SC 64) is a landmark case in election laws and deals withthe scope, amplitude, rationale and limitations of Art.329(b)...... There is a nonobstante clause in Article 329 and, therefore, Art.226 stands pushed out where thedispute takes the form of calling in question an election, except in special situationspointed at but left unexplored in Ponnuswamy (AIR 1952 SC 64).Therefore, in the light of the non-obstante clause in Article 329, the same reasoning will applyherein also.”
(30) In a recent decision in Association of Resident of MHOW (Rom) and another v. TheDelimitation Commission of India (2009 (5) SCC 404), a similar question was considered by theApex Court. Therein, the Delimitation Commission, as per its pro- posals, had shown DharParliamentary Constituency as one consisting of 8 Assembly Constituencies including 203-Depalpurand the adjoining 26-Indore Parliamentary Constituency had also 8 Assembly Constituenciesincluding 209 Mhow. In the final determination the Commission included Mhow AssemblyConstituency into Dhar Par- liamentary Constituency by deleting the same from Indore Parliamentary Constituency as originally proposed. Consequently, the Depalpur As- semblyConstituency has been deleted from Dhar Parliamentary Constituency and added to Indoreparliamentary Constituency. This was challenged on the ground that the said shifting is notpreceded by any proposal by the Delimitation Commission. While examining the issue, the ApexCourt took the view that in the light of Article 329(a), the writ petition under Article 226 is notmaintainable. It was argued by the appellant before the Apex Court that the protection willbeavailable only when the mandatory requirements of Section 9(2) are complied with by theCommission. The Apex Court, after explaining the decision in State of U.P. v. Pradhan Singhhesttra Samiti {(1995) Suppl. (2) SCC 305} and after relying upon Meghraj Kothari’s case (supra),held thus in para 25:
“In the present case, the Commission finally determined the delimitation of Parliamentary Constituencies in the State of Madhya Pradesh after considering allobjections and suggestions received by it before the specified date and got published its orders in the Gazette of India and in the Official Gazette of the State as is requiredunder Section 10(1) of the Act. The orders so published puts them “in the same streetas a law made by Parliament itself”. Consequently that Notification is to be treated aslawand required to be given effect to.”
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It is pointed out that herein, before Ext.P4 was issued, there was no proposal and no hearing wasconducted and for that reason also, Ext.P4 cannot be supported. But the above decision is acomplete answer to the said argument also.
(31) Shri Murali Purushothaman, learned Standing Counsel appearing for the respondents raised afurther argument that going by Section 9(2)(d) of the Act, there can be more than one ordersregarding delimitation of Assembly Constituencies and therefore Ext.P4 cannot be said to be illegal.In fact, Section 9 of the Act shows that the Commission shall distribute the seats in the mannerprovided under the provisions and it should call for objections and suggestions and will have to holdone or more public sittings at such place or places in the State concerned, going by Section 9(2) (c).It is after following all those steps that Section 9(2)(d) provides that “the Commis- sion shallthereafter by one or more orders determine -- (i) the delimitation of parlia- mentary constituencies;and (ii) the delimitation of assembly constituencies.” Ext.P4 was issued as a corrigendum after theorder under Section 9(2)(d) was issued by the Delimitation Commission. In that view of the matter,Section 9(2)(d) cannot be said to be attracted in the facts of this case.
(32) The next question is whether the bar under under Section 329(a) applies to Ext.P5, as aconsolidated order as provided under Section 8 of the Representation of the People Act, 1950 hasalready been published as per Ext.P5, and as the same has also been published in the same manneras in respect of Ext.P3 by publishing in the Gazette, etc. The allegation that Ext.P4 has beenpublished by the Secretary of the Delimitation Commission, has been denied and it has beenexplained that it it is a proceedings issued by the Delimitation Commission itself. Therefore, nothingturns on the said allegation that it is not one issued by the Commission.
(33) Herein, as noticed already, by Annexure A, it is specified by the Central Government that 1st dayof June, 2008 will be the date on which the Delimitation Commission shall cease to exist. Ext.P4 isdated 18.1.2008. Therefore, it cannot be said that the Commission had become functus officio interms of Annexure D, Delim- itation Amendment Order, 2008. Sub- section (6) of Section 10 of theDelimitation Act, 2002 was amended by fixing 31st July, 2008 as the final date for completion
572 “No voter to be left behind” andpublication of orders. It is clear that the Chairperson of the Delimitation Com- mission has informedthe Central Government about the accomplishment of the de- limitation work by the Commission andintend to demit the office of the Chairperson with effect from May 31, 2008. Annexure C is thePresidential Order under Articles 82 and 170(3) of the Constitution, as already noticed, by whichExt.P3 Delimitation Order corrected by Ext.P4, has been given effect from 19.2.2008.
(34) The consolidated order Ext.P5 as noticed, is one issued under Section 8(1) (a) of theRepresentation of the People Act, 1950 and the bar under Article 329(a) applies to it also. Hence, the writ petition is not maintainable.
(35) For all these reasons, the writ petition is dismissed. No costs.
573 “No voter to be left behind”
JUDGMENT-24 SUPREME COURT OF INDIA
Special Leave Petition (Civil) No.8850 of 2015 (Decision dated 09/04/2015)
Election Commission of India...... Petitioner
Versus
Bajrang Bahadur Singh & Others...... Respondents
WITH TRANSFERRED CASE NO.60 OF 2015
Bajrang Bahadur Singh...... Petitioner
Versus
His Excellency, the Governor of U.P. & Others...... Respondents
Article 192 of the Constitution – Decision of Governor on Election Commission’s opinion as to disqualification of members – Decision challengeable before High Court on limited grounds under Article 226 -- period of limitation of eight weeks for filing of petition before the High Court against the decision of Governor – Division Bench of at least two Judges to dispose of petition within eight weeks from date of initiation of proceedings, leaving eight weeks for Election Commission to hold bye-election, if necessary.
Article 226 – Powers of High Courts to issue certain writs vis-a-vis Article 329 (b) of the Constitution --- Bar to interference by Courts in electoral matters – HELD: High Courts can however adjudicate on legality of Governor’s decision under Article 192. (Para 69)
Representation of the People Act (43 of 1951), Ss. 9A and 10 --- HELD: Disquali- fication for membership of Parliament and State Legislature during the currency of disqualification event – the seat falls vacant forthwith on incurring of disqualification by operation of law.
574 “No voter to be left behind”
SUMMARY
The Petitioner in the transferred case filed a writ petition before the Alla- habad High Court on 13.3.2015 challenging the legality of the Order passed by the Governor on 29.01.2015 under Article 192(1) of the Constitution declaring the petitioner disqualified from continuing to be a member of the Uttar Pradesh Legisla- tive Assembly on the ground that he had entered into a contract with the Govern- ment after having been elected as a Member of the Assembly on 6.3.2012 and executed the contract thereby incurring disqualification contemplated under Article 191 (1) (e) read with Section 9A of the Representation of the People Act, 1951.
The Secretariat of the Uttar Pradesh Legislative Assembly issued a Notification on 17.2.2015 declaring the seat held by the Petitioner from the 315-Pha- renda assembly constituency as vacant. The Election Commission thereafter an- nounced the schedule for filling up the casual vacancy by issue of a Press Note on 10.3.2015 and issued the notification under Section 150(1) of the 1951 Act to notify the bye-election from 315-Pharenda assembly constituency as per schedule announced by it.
The High Court of Allahabad passed an interim order on 20.3.2015 and stayed the process of the bye-election from 315-Pharenda assembly constituency that had already been notified by the Commission.
The Election Commission filed this SLP before the Supreme Court being ag- grieved by the impugned interim order issued by the Allahabad High Court to stay the process of bye-election in view of the Constitutional bar to interference by Courts in electoral matters under Article 329 (b) of the Constitution.
The main contention of the petitioner in the writ petition before the Allahabad High Court was that disqualifications prescribed under Sections 8,9, 10A of the R.P. Act, 1951 run for a statutorily fixed time frame and for any disqualification under Section 9A of the R.P. Act,1951 the period of disqualification is co-terminus with subsistence of the contract. The moment the contract ceases to subsist the
575 “No voter to be left behind” disqualification also ceases to exist. The language of Article 191(1) also does not specify whether such disqualification is attracted subsequent to the election.
The Supreme Court held that though the period of disqualification prescribed under Section 9A for subsisting contract with the appropriate Govt. for supply of goods to, or for the execution of any works undertaken by that Govt. and under Section 10 for holding an office under Government Company is co-terminus with the currency of the disqualifying event, in the case of a sitting Member of Parliament or State Legislature the seat held by that Member falls vacant forthwith by operation of law as enunciated under sub-clause (3) of Article 190 of the Constitution. The Court thus rejected the submission of the petitioner and dismissed the transferred writ petition filed before the Allahabad High Court.
The Court further clarified that a person incurring disqualification under Sec- tions 9A and 10 of the 1951 Act is not debarred from contesting any election, including a bye-election arising as a direct consequence of his vacating the seat if the event of disqualification ceases to subsist by the relevant date.
On the question of jurisdiction of the High Court to intercept in the election process already set in motion by issuance of notification in view of the prohibition contained in Article 329(b) of the Constitution the Supreme Court held that the interim order granted by the Allahabad High Court was justified as the primary challenge in the writ petition filed before the High Court was not to challenge the electoral process but the decision of the Governor disqualifying the petitioner that resulted in the vacancy for which a bye-election was notified by the Election Commission. The in- terference in the process of bye-election by the High Court under Article 226 arose out of an absolute necessity.
The Supreme Court observed that the extraordinary situation arose apparently due to conflicting Constitutional obligations of High Court to adjudicate on any legality of Governor’s decision under Article 192 and Election Commission’s obligation to conduct bye-election within a period of six months from the date of occurrence of the vacancy under Section 150 of the R.P. Act, 1951.
576 “No voter to be left behind”
By this judgment the Apex Court laid down that the Order of the Governor under Article 192 (though said to be final) can be called in question on limited grounds as explained by the Supreme Court in the cases of Kihoto Hollahan [1992 Supp (2) SCC 651] and Mahachandra Prasad Singh [(2004) 8 SCC 747]. The Supreme Court also prescribed the period of limitation for initiating proceedings before the High Courts against a decision of the Governor under Article 192 on the question of disqualification of a sitting member as eight (8) weeks from the date of the decision of the Governor and final disposal by the High Court within a period of eight weeks from the date of initiation without fail. The Apex Court further directed that such petitions should be heard by a Division Bench of the High Court compris- ing of atleast two judges and the Chief Justices of the High Courts have been direct- ed to make appropriate arrangements for compliance within the limitation period.
577 “No voter to be left behind”
JUDGMENT
Hon’ble Jasti Chelameswar, Judge Hon’ble R.K. Agrawal, Judge
Advocate for Appearing Parties: Meenakshi Arora, Harin P, Raval, Sr. Advs, S.K. Mehdiratta, Neeraj Kumar, Mohit D. Ram, Prashant Kumar, Saurabh S. Sinha, Sub- ramanium Prasad, Joseph Pookkatti, Avdhesh Kr. Singh, Anish Kumar Gupta, Ravi Prakash Mehrotra and Abhinav K. Malik, Advs;
(1) One Bajrang Bahadur Singh Respondent No. 1 in SLP(C) No. 8850/2015 and the Petitioner in Transferred Case No. 60/2015 (hereinafter being referred to as the Petitioner for the sake of convenience) contested in the general elections held in the year 2012 to the UP Legislative Assembly from 315 Pharenda Assembly Con- stituency. On 6.3.2012, he was declared elected.
(2) On 29.1.2015, the Governor of Uttar Pradesh made a declaration in ex- ercise of the authority conferred Under Article 192 of the Constitution of India that the Petitioner incurred the disqualification stipulated Under Section 9A of the Rep- resentation of the People Act, 1951 (hereinafter referred to as “the R.P. Act”). Such a declaration came to be made on an undisputed finding of fact that the Petitioner entered into four contracts (hereinafter referred to as the CULPRIT CONTRACTS for the sake of convenience) with the State of U.P. sometime in the year 2013 after his election to the Legislative Assembly and performed his obligations arising under the said contracts.
The Governor made the following order on 29.01.2015:
“Therefore, I, Ram Naik, Governor, Uttar Pradesh, upon exercising the powers Un- der Article 192(1) of the Constitution of India hereby declare that Shri Uma Shankar Singh from 06.03.2012 and Shri Bajrang Bahadur Singh from 15.10.2012 have become disqualified from the membership of Uttar Pradesh Legislative Assembly.”
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(3) As a consequence of the above-mentioned decision of the Governor, a notification came to be issued by the Secretariat of the Legislative Assembly on 17.2.2015 stating that a seat occupied by the Petitioner representing 315 Pharenda Assembly Constituency fell vacant. On 10.3.2015, the Election Commission of India (hereinafter referred to as “COMMISSION” for the sake of convenience) issued a press note by which the election schedule for filling up 7 casual vacancies in 7 dif- ferent Assembly constituencies in four different States was announced, one of them being 315 Pharenda Assembly Constituency.
(4) On 13.3.2015, the Petitioner filed a writ petition challenging the decision of the Governor dated 29.01.2015 and sought various reliefs. On 17.3.2015, a no- tification Under Section 150(1) of the R.P. Act came to be issued by COMMISSION notifying, inter alia, the election to fill up 315 Pharenda Assembly Constituency. Thereupon, on an application by the Petitioner, the High Court of Allahabad passed an interim order on 20.3.2015 - staying the election process to the above-mentioned constituency.
(5) Aggrieved by the said interim order, the COMMISSION moved SLP(C) No. 8850/2015. On 23.3.2015, notice was issued and also an interim suspension of the impugned order of the High Court was granted. However, by subsequent order dated 30.3.2015, for reasons recorded therein, this Court thought it fit to withdraw the writ petition filed by the Petitioner to this Court and also to keep the notification dated 17.3.2015 in abeyance.
(6) Learned Senior Counsel for the Petitioner Mr. Harish Raval made two princi- pal submissions:
(i) that the disqualification prescribed Under Section 9A of the R.P. Act operates only at the threshold thereby rendering a person ineligible for contesting any election contemplated in the R.P. Act. In other words, Section 9A prescribes only a disqual- ification for a person seeking to contest an election - described by this Court in the case of Election Commission India v. Saka Venkata Subba Rao (1953) 4 SCR 1144 as “existing disqualification” but it does not render a legislator disqualified from con- tinuing as such on the ground that such legislator subsequent to his election entered
579 “No voter to be left behind” into a contract with the appropriate government. Therefore, the petition did not incur any disqualification.
(ii) Even if the Petitioner is to be held to have incurred a disqualification, such dis- qualification ceased to exist, the moment Petitioner discharged his obligations aris- ing out of the CULPRIT CONTRACTS. Therefore, he cannot be held to be ineligible for continuing as a member of the legislature on a true and proper interpretation of Section 9A of the Act. In other words, a declaration such as the one made by the governor of U.P. on 29.1.2015 could have been made and operate only during the subsistence of the CULPRIT CONTRACTS but not after they ceased to subsist.
(7) On the other hand, Ms. Meenakshi Arora, learned senior Counsel for the COMMISSION submitted that disqualification contemplated Under Section 9A takes within its sweep both “pre-existing” and “supervening” contracts. There is no war- rant to give a restricted interpretation to the language of Section 9A, such as the one suggested by the learned Counsel for the Petitioner. Therefore, the Governor’s decision cannot be faulted. The interpretation sought to be placed on Section 9A by the learned Counsel runs directly contrary to the purpose sought to be achieved by the provision.
(8) Learned Counsel also submitted that the decision of the Governor is ren- dered in exercise of the authority conferred Under Article 192 of the Constitution on the question whether a member of the legislature “has become subject to any dis- qualification”,. By a constitutional declaration under the said Article, the same ‘shall be final’. The correctness of such a decision though is amenable to judicial review, such a review is possible only on a few limited grounds as expounded and settled by this Court. The Petitioner’s case does not fall within the ambit of such permissible judicial review.
(9) Another important question that arises in this matter, is, the legality and pro- priety of the High Court’s interim order dated 20.3.2015, whether the High Court was acting within its jurisdiction when it intercepted the election process after the issuance of a notification Under Section 150(1) of the Act calling upon the constitu- ency to elect its representative, in view of the prohibition contained in Article 329(b)
580 “No voter to be left behind” of the Constitution of India. The details of the submissions will be considered later in this judgment.
(10) Before we examine the correctness of the rival submissions, we deem it ap- propriate to examine the scheme of the relevant provisions of the Constitution and of the R.P. Act.
(11) The Constitution of India declares that there shall be a bicameral legislature at the national level. In so far as States are concerned, Article 168 of the Constitu- tion declares that certain States specified therein shall have a bicameral legislature and the remaining States shall have a legislature consisting of only one House.
Article 168- Constitution of Legislatures in States:-
(1) For every State there shall be a Legislature which shall consist of the Governor, and
(a) in the States of Andhra Pradesh, Bihar, Maharashtra, Karnataka, Tamilnadu and Uttar Pradesh, two Houses:
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly. Elaborate provisions are made in the Constitution regarding the composition of these bodies, the periodicity with which the election to these bodies are to be conducted, the qualifications and disqualifications for seeking the membership of any one of these bodies and matters incidental thereto.
(12) Article 173 of the Constitution prescribes that persons seeking to become members of the legislative bodies must possess certain qualifications. Any person who doesn’t possess the qualifications mentioned in Article 173 is declared not to be qualified “to be chosen to fill a seat in the legislature of a State”. Briefly stated to
581 “No voter to be left behind” become a member of the State legislature, a person must be (i) a citizen of India, (ii) must be of the minimum age specified (iii) must subscribe to an “oath of faith and al- legiance”. Article 173also postulates that a person seeking election to the legislature of the State is required to possess such other qualifications as may be prescribed by or under any law made by the Parliament.
Article 173.--Qualification for membership of the State Legislature –
A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and
c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
(13) Article 191 stipulates certain persons to be disqualified for “being chosen as and for being” a member of the Legislature. It reads as follows:
Article 191.-- Disqualifications for membership-
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly of Legislative Council of a State-
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
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(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;”
e) if he is so disqualified by or under any law made by Parliament.
(14) It can be seen from Article 191 that under Clauses (a) to (d) of Sub-Article (1), the Constitution itself prescribes certain conditions which render a person dis- qualified for the membership of the Legislature. Whereas Clause (e) authorises the Parliament to prescribe by law other conditions which render persons disqualified for membership of the Legislature.
(15) The R.P. Act, 1951 under Chapter II prescribes certain additional qualifica- tions for membership of the State Legislature in certain cases. Such prescription is referable to Article 173(c). Section 5 prescribes qualifications for filling up a seat in a State Legislature which is reserved in favour of Scheduled Castes and Scheduled Tribes. Such reservation is mandatory under the Constitution1.
(16) Chapter III prescribes the disqualifications for the membership of the legisla- ture. Section 8 declares that persons convicted of any one of the offences enumerat- ed in Section 8 are disqualified. It further provides that upon such conviction, if the convict is sentenced only to fine the disqualification is for a period of 6 years running from the date of such conviction. On the other hand, if the convict is sentenced to imprisonment, such disqualification runs from the date of such conviction and contin- ues for a further period of 6 years after the release of the convict from jail.
Section 8.--Disqualification on conviction for certain offences-
(1) A person convicted of an offence punishable under-
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......
shall be disqualified, where the convicted person is sentenced to-
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(17) Sub-section (2) of Section 8 makes a special provision regarding the period of disqualification on the basis of (i) the offences specified Under Sub-section (2) and (ii) the term of imprisonment to which a convict is sentenced.
Section.--8(2) A person convicted for the contravention of-
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, [1961 (28 of 1961)
and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(18) Section 8A prescribes the disqualification on the ground of corrupt practices. The period of disqualification may extend to a maximum of 6 years. Section 9 stip- ulates the disqualification for dismissal of a person from the service of the Union of India or the State or on the ground of disloyalty or corruption, the period of disqual- ification being 5 years from the date of the dismissal.
(19) Section 9A is relevant in the context of the present case and it reads as follows: Section 9A.-- Disqualification for Government contracts, etc.-
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A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the executions of any works, undertaken by that Government.
Explanation-For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part.
(20) Section 102 stipulates a disqualification which subsists only so long as the disqualifying EVENT subsists and it is similar to Section 9A in its operation. Section 10A3prescribes a disqualification which last for three years from the relevant date. We are not really concerned with other details of Chapter III except Section 114 which empowers the Election Commission to remove any disqualification under the Chapter except the disqualification prescribed Under Section 8A. It also authorises the Election Commission to reduce the period of any such disqualification notwith- standing the fact that period of disqualification is fixed under the various other pro- visions of the Chapter.
(21) Article 192 stipulates that if any question arises as to whether a member of the Legislature of a State “has become subject to any disqualification” mentioned in Clause 1 of Article 191, such a question is required to be referred to the decision of the Governor. The Article also declares that the decision of the Governor shall be final. Sub Article (2) obligates the Governor to obtain the opinion of the Election Commission before giving any decision. Article 192 reads as follows:
Article 192.-- Decision on questions as to disqualifications of members-
(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
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(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
(22) The scope of authority of the Governor acting Under Article 192 first fell for the consideration of this Court in the case of Saka Venkata Subba Rao (supra)5.
By a unanimous decision of a Constitution Bench of this Court, it was held:
16. For the reasons indicated we agree with the learned Judge below in holding that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the Respondent’s disqualification which arose long before his election.
(23) This Court took note of the fact that a person can incur any one of the disqualifications contemplated in Article 191 either before the election or after the election - elegantly classified by the then Attorney General M.C. Setalvad as “pre-ex- isting disqualifications” and “supervening disqualifications”.
(24) Dealing with the scope of Article 192, this Court concluded that the author- ity of the Governor to examine the question of disqualification extended only to the 2nd of the above-mentioned two categories of disqualification i.e., the supervening disqualifications acquired subsequent to the election of a person to the Legislature.
(25) In the case on hand, the disqualification if any is only supervening disqual- ification. As we already noticed, that all the relevant facts on the basis of which the Petitioner is declared disqualified are facts which occurred subsequent to the election of the Petitioner. Therefore, the Governor necessarily has the authority to examine the question.
(26) The issue before us is not really whether the Governor has necessary author- ity in law to examine the question of disqualification of the Petitioner herein. The question is whether CULPRIT CONTRACTS render the Petitioner disqualified from continuing to be a member of the legislative assembly.
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(27) In support of the 1st submission that Section 9A does not prescribe any su- pervening disqualification, Shri Rawal emphasised on the language of Section 9A more particularly the clause which says “for so long as there subsists a contract...... ”. According to the learned Counsel, the Legislature never contemplated that any per- son who enters into contractual relationship with the Government either to supply goods or for execution of any works undertaken by the Government be eternally disqualified for contesting an election to the Legislature. The disqualification subsists only so long as the contract subsists. The moment the contract ceases to subsist the disqualification also ceases to exist. It is therefore, submitted that if the construction suggested by the Petitioner is not accepted, Section 9A would lead to a situation that a legislator who enters into a contract with the government which subsists only for a fraction of the tenure of the legislator would deprive a validly elected legislator his right to be a legislator even for that period for which he suffers no disqualification. Therefore, the Section must be interpreted to cover only the pre-existing disqualifica- tions. It is further submitted that the language of Section 9A in contra-distinction to the language of Article 191(1)6 does not specify whether the disqualification under the Section takes within its sweep the events which occur subsequent to the election.
(28) On the other hand, Ms. Meenakshi Arora submitted that a person acquires the disqualification the moment he enters into a contract with the government by virtue of the operation of law i.e., Article 190(3).7 As a sequel the seat occupied by such legislator falls automatically vacant. Article 192 only prescribes the forum and procedure for the adjudication of the question whether any one of the events contemplated Under Article 190(1) took place. The argument of the Petitioner is not tenable.
(29) In support of the submission, learned Counsel relied on the judgment of this Court in P.V. Narasimha Rao v. State (CBI/SPEC) : (1998) 4 SCC 626. (30) The main questions which were debated by this Court in that case were (i) whether a member of the Parliament is a public servant within the meaning of Sec- tion 2(c) of the Prevention of Corruption Act, 1988, and, therefore, whether any sanction was required for prosecuting such a person under the said Act, (ii) if sanc- tion is required, who is the competent authority to grant the sanction. It is in that context, this Court considered the scope of Articles 101, 102 and 103 which were substantially similar to Articles 190 to 192.
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(31) We now examine the 1st submission of the Petitioner. The logic of the Peti- tioner is that disqualifications prescribed Under Sections 8, 9, 10A of the R.P. Act run for a statutorily fixed time frame which is totally unrelated to the duration of the disqualifying EVENT. Whereas for the disqualification Under Section 9A, the period of disqualification is co-terminus with subsistence of the contract (the disqualifying event). Therefore, the submission: if the interpretation of the Petitioner is not accept- ed in a case such as the one at hand though the disqualification subsists only for a limited period i.e. a fraction of the tenure of the legislator, the same would have the effect of terminating the membership of the Legislator even for that period during which there is no subsisting contract.
(32) In our opinion, the submission of the Petitioner overlooks the language of Article 190 Sub-clause (3). It reads as follows:
(3)If a member of a house of the Legislature of a State-
(a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 191; or
(b) ...... his seat shall thereupon become vacant.
(33) It can be seen from the language of the Sub-section (3) that if a member of a House of the Legislature becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 191, his seat shall thereupon become vacant. In other words, the vacancy occurs the moment a person incurs the disqualification by operation of law. The duration of the currency of the disqualifying EVENT is irrel- evant. While Article 191 deals with the disqualifications for two classes of people (I) those who are aspiring to be the members of the Legislature (ii) those who are already Members of the Legislature, Article 190(3) deals only with the vacation of the seats by the members of the Legislature-therefore, applicable only to the 2nd of the two classes covered by Article 191. Acquisition of a disqualification contemplat- ed Under Article 191 is an incident which entails a legal consequence of rendering the seat (occupied by such a Legislator who acquired the disqualification) vacant by
588 “No voter to be left behind” operation of law. Article 192only prescribes the forum and stipulates the procedure for determination of the fact whether a Legislator has incurred the disqualification. As pointed out by this Court in Narasimha Rao’s case (supra), Article 192 does not provide for removal of a member from the Legislature by an action of the Governor. The removal takes place by virtue of the operation of law on the happening of the event, that is, the acquisition of a disqualification. The fact that the disqualification Under Section 9A subsists only for a limited period of time in our view makes no difference to the consequences flowing from the occurrence of such disqualifying EVENT.
(34) Each one of the events contemplated under the various clauses of Article 191(1) can subsist for a limited period of time depending upon the facts and cir- cumstances of the case. For example, under clause(a), the holding of office of profit specified therein renders a person disqualified. Goes without saying, the tenure of such an office of profit may differ from case to case. Under Clause (b), a person who is of unsound mind and stands so declared by a competent Court is disqualified. The event which renders a person disqualified has two components in it. (i) a person must be of unsound mind and (ii) stands so declared by competent Court. It is only on the happening of both the events, such a person becomes disqualified. But there is nothing in nature that a person who is of unsound mind and declared so by a competent Court need to continue in the same state of mind forever. It is possible in some cases that with appropriate medical treatment, that unsoundness of mind could be cured and on proof of the same, an appropriate declaration from the competent Court revoking the earlier declaration can always be obtained upon such declara- tion, the disqualification ceases. So is the case of status of undischarged insolvency and citizenship of India. The citizenship status of a person can change from time to time. (35) In all the above-mentioned situations on the happening of the disqualifying EVENT, a Legislator ceases to be Legislator and his seat falls vacant by operation of law but not because of any declaratory adjudication. Article 192 does not con- template the Governor making a declaration that the seat has fallen vacant. It only obligates the Governor to decide whether a Legislator has incurred anyone of the disqualifications mentioned in Clause (1) of Article 191. The vacancy occurs by virtue of constitutional declaration contained in Article 190 Clause (3) which we
589 “No voter to be left behind” have already noticed. Dealing with the parallel provisions of Article 101, 102 and 103 of the Constitution, which deal with the disqualification of members of the Par- liament, this Court in Narasimha Rao’s case (supra) held that “if the President holds that the Member has become subject to a disqualification, the member would be treated to have ceased to be a member on the date when he became subject to such disqualification.” (Para 93) (Agrawal, J).
(36) Justice S.P. Bharucha also reached the same conclusion and held as follows: 180. The question for our purposes is whether, having regard to the terms of Arti- cles 101, 102 and 103, the President can be said to be the authority competent to remove a Member of Parliament from his office. It is clear from Article 101 that the seat of a Member of Parliament becomes vacant immediately upon his becoming subject to the disqualifications mentioned in Article 102, without more. The removal of a Member of Parliament is occasioned by operation of law and is self-operative. Reference to the President Under Article 103 is required only if a question arises as to whether a Member of Parliament has earned such disqualification; that is to say, if it is disputed. The Presidentwould then have to decide whether the Member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the Member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned. Without, therefore, having to go into the connota- tion of the word “removal” in service law, it seems clear that the President cannot be said to be the authority competent to remove a Member of Parliament from his office.
(37) Therefore, now it is a settled proposition of law that the happening of any one of the disqualifying EVENTS has the effect of making the seat occupied by such a disqualified person vacant immediately by operation of law. The effect of the decision of the Governor Under Article 192 is only to decide whether a legis- lator acquired the disqualification on a particular date on the happening of one of the disqualifying EVENTS contemplated Under Section 191 (sic Article 191). The consequence is that the legislator who acquires the disqualification ceases to be a Member of the Legislature with effect from the date of the acquisition of the disqual- ification.
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(38) We have already noticed that there are two classes of disqualification con- templated Under Article 191, (i) disqualifications which last only for a limited pe- riod that is, during the currency of certain events specified Under Article 191, (ii) statutory disqualifications prescribed Under Section 8, Section 8A, Section 9 and Section 10A which render a person ineligible for a period specified under each of the above-mentioned provisions. The disqualifications Under Sections 9A and 10 of the Act are akin to the disqualifications contemplated under Clauses (a) to (d) of Ar- ticle 191(1) where the period of disqualification is co-terminus with the currency of the event which renders a person ineligible both for being chosen as or for being a Member of the Legislature. Nonetheless on the acquisition of the disqualification by a legislator, he ceases to be a legislator forthwith by operation of law. However, the cessation of the disqualifying factor cannot put such a person back in the legislature without his being elected once again, of course such person is entitled to contest any election under the R.P. Act, the moment the disqualifying factor ceases to exist as the disqualification is co-terminus with the disqualifying EVENT.
(39) We, therefore, reject the 1st submission of the Petitioner.
(40) We now deal with the second submission of the Petitioner that on the true and proper construction of the language of Section 9-A of the R.P. Act, a declaration such as the one which is a subject matter of the dispute on hand could not have been given after the Petitioner executed the CULPRIT contracts.
(41) Shri Rawal submitted that a disqualification for the membership of the Leg- islature on the ground of a ‘subsisting contract’ with the government (the State of U.P. in the case on hand) cannot be an everlasting disqualification. Section 9A categorically declares that a person entering into contractual relationship with the appropriate Government shall be disqualified only “for so long as there subsists a contract”. Therefore, learned Counsel submitted that the moment the contractual re- lationship comes to an end, the disqualification also ceases. An adjudication (Under Article 192 by the Governor that the Petitioner incurred a disqualification) after the execution of the contracts is neither contemplated nor justified on the language of Section 9A.
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(42) The submission of Shri Rawal, in our opinion, is in fact only a facet of the first submission.
(43) The language of Section 9A which declares a person shall be disqualified “if and for so long as there subsists a contract”, must be understood in the background of the scheme of Chapter III of the R.P. Act. All other provisions except Sections 9A and 10 of the Chapter prescribe a fixed tenure of disqualification. That tenure has nothing to do with the duration of the currency of the event which brings about the legal consequence of disqualification. Only Section 9A and Section 10 limit the tenure of disqualification and make it co-terminus with the currency of the EVENT which creates a disqualification. Therefore, the clause “if and for so long as” in our view, in these two provisions must be understood only to convey (in the context of a Legislator who incurs a disqualification) that he is not debarred from contesting any election under the Act including a bye-election arising as a direct consequence of his vacating the seat in the Legislature if the EVENT (the subsistence of which brought about the consequence of disqualification) ceases to subsist by the relevant date. The interpretation such as the one sought to be placed by the Petitioner would amount to Parliament nullifying the constitutional declaration contained in Article 190(3) read with Article 191.
(44) Shri Rawal very painstakingly placed before us the evolution and history of the disqualification on account of a subsisting contract under the Representation of People Act, 1951. The disqualification which is mentioned in Section 9A of the Representation of People Act 1951 as it stands today was originally contained in Section 7(d) of the Act8.
(45) By Act 47 of 1966, Chapter III of the R.P. Act came to be substituted making substantial changes in the provisions of Chapter III. Relevant for our purpose is to note that Section 7 of the R.P. Act no more deals with disqualification on the ground of subsisting contracts. It only deals with certain definitions for the purpose of Chap- ter III. The provision regarding the disqualification on account of subsisting contract with the Government is now incorporated Under Section 9A of the Act.
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(46) Shri Rawal argued that an examination of the evolution of the provision deal- ing with disqualification on the ground of ‘subsisting contract’ with the Government coupled with the existence of authority in COMMISSION to remove the disqualifica- tion or reduce the period for which a person is rendered disqualified must lead to a construction of Section 9A which would as far as possible eliminate the unseating of a legislator after the contract ceases to subsist.
(47) Per contra Ms. Arora submitted that the submission of the Petitioner, if ac- cepted would lead to anomalous consequences defeating the very purpose behind Section 9A. The learned Counsel also argued that the possibility of the COMMIS- SION removing the disqualification cannot determine the scope and amplitude of Section 9A.
(48) In support of his submission, Shri Rawal relied upon the objects and reasons of the Act 47 of 1966 which were referred to by this Court in the case of Prakash Khandre v. Dr. Vijay Kumar Khandre and Ors. : (2002) 5 SCC 568, this Court ex- tracted the objects and reasons which prompted the amendment of old Section 7(d) and insertion of Section 9A. 30. The objects and reasons for substituting Section 7(d) by Section 9-A are as under:
Apart from the grouping of the sections effected by Clause 20, some changes have also been made in the relevant provisions. In the new Section 9-A, an Explanation has been added to make it clear that a contract with the Government shall be deemed not to subsist by reason only of the Government has not performed its part of the contract either wholly or in part. This change has become necessary in order to do away with the disqualification that attached to a person for being chosen as or for being a Member of Parliament or State Legislature even after he has fully performed his part of the contract, since it would hardly be justifiable to retain such a disqualification provision in a modern welfare State when State activities extend almost every domain of the citizen’s affairs where very many persons, in one way or the other, have contractual relationship with the Government. That being the case, an unduly strict view about government contract in the present day might lead to the
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disqualification of a large number of citizens many of whom may prove to be able and capable Members of Parliament or State Legislatures. It would be of interest to note in this connection that in the United Kingdom, any disqualification arising out of any contract with the Crown has been done away with by the House of Commons Disqualification Act, 1957.
(49) Shri Rawal laid stress on the fact that the Parliament was conscious of the fact that an unduly strict view w.r.t. to the disqualification on the ground of subsisting contract with the Government might lead to a “disqualification of a large number of citizens many of whom may prove to be able to and capable of “Members of Parliament or State Legislatures.”
(50) To test the soundness of the submission, we must examine the rationale be- hind Section 9A. This Court in Konappa Rudrappa Nadgouda v. Vishwanath Reddy and Anr. : AIR 1969 SC 447 dealt with the rationale behind the disqualification prescribed Under Section 9A of the R.P. Act and observed as follows:
...But if the contract subsists in such manner that it cannot be said to have been sub- stantially completed, the law must take its own course. It is of the essence of the law of Elections that candidates must be free to perform their duties without any personal motives being attributed to them. A contractor who is still holding a contract with Government is considered disqualified, because he is in a position after successful election to get concession for himself in the performance of his contract. That he may not do so is not relevant. The possibility being there, the law regards it (
(51) In Shrikant v. Vasantrao and Ors. : 2006 (2) SCC 682, once again this Court had an occasion to deal with Section 9A and the object behind Section 9A. At para 20, this Court observed as follows:
20. The object and intent of Section 9-A of the Act is to maintain the purity of the legislature and to avoid conflicts between duty and interest of Members of the Legislative Assembly and the Legislative Council. The said object is sought to be achieved by ensuring that a person who has entered into a contract with the State Government and therefore liable to perform certain obligations
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towards the State Government, is not elected as a Member of the Legislative Assembly or Legislative Council, lest he should use his influence as an elected member of the Legislature to dilute the obligations or to seek and secure undue advantages and benefits in respect of the subsisting contracts. It seeks to ensure that personal interests will not override his duties and obligations as a member of the legislature or Legislative Council. For the purpose of Section 9-A, what is relevant is whether the candidate has a subsisting contract with the appropriate Government (in this case, the State Government) either for supply of goods to the State Government or for execution of any work undertaken by the State Government….
(52) In the light of the observations made by this Court in the case of Konappa and Shrikant referred to above, the observations made in Prakash Khandre’s case (supra) must be understood in the right perspective. Prakash Khandre had entered into a contract with the State of Karnataka in connection with a particular road work. He decided to contest the election to the legislative assembly of the Karnata- ka. Before filing the nomination at the election, Prakash intimated the authorities of the State in writing that he was terminating the contract. The authorities of the State accepted the same and the registration of Prakash was cancelled. Prakash became an MLA and his election was challenged on the ground of Section 9A. The question before this Court was whether the contract between Prakash and the State of Karna- taka subsisted on the relevant date. It is in the process of the examination of such a question, incidentally, this Court examined the history of Section 9A and the objects and reasons behind Section 9A. The decision did not in fact rest upon anything connected with the objects and reasons behind Section 9A.
(53) In the circumstances, it is difficult to accept the submission of the learned Counsel for the Petitioner on the basis of the objects and reasons appended to the Amendment Act by which Section 9A was introduced. The purpose of Section 9A as repeatedly held by this Court is to maintain the purity of the legislature and to avoid conflict of personal interest and duty of the legislators. It would be strange logic that persons with a subsisting contract with the government are perceived to be undesirable to become members of the legislature as there is a likelihood of conflict between their duty as legislators, if elected and their personal interest as contractors, but legislators can enter into contracts with the government with impunity.
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(54) Shri Rawal also relied upon certain observations made by this Court in Mad- hukar G.E. Pankakar v. Jaswant Chobbildas Rajani and Ors. : (1977) 1 SCC 70 and M.V. Rajashekaran and Ors. v. Vatal Nagaraj and Ors. : (2002) 2 SCC 704 in support of his submissions that Section 9Amust be construed as suggested by him.
(55) In both the cases, the question which fell for the consideration of this Court was the interpretation of the expression “office of profit”. In Madhukar’s case, the said expression occurred in the Maharashtra Municipalities Act in the context of election to the Presidency of the Municipal Council. In Rajashekaran’s case, it was in the context of an election to the Legislative Council of Karnataka. It is true that in both the cases, this Court took the view that a construction which would have the effect of shutting out of many prominent and eligible persons from contesting the election should not be adopted.
(56) In our opinion, the observations made by this Court in the context of the expression ‘office of profit’ may not be extended to the cases of the persons with subsisting contracts with the Government without any further scrutiny. We can’t close our eyes to the reality of the unwholesome influence which money power exerts on the political system in this country. Any interpretation of Section 9A which goes to assist a legislator who directly enters into a contractual relationship with the State for deriving monetary benefits (in some cases of enormous proportions) should be avoided and be given a construction which as far as possible eliminates the pos- sibility of creating such situation where the duty is certainly bound to conflict with personal interest. We are fortified in our view by the observations of this Court in Ashok Kumar Bhattacharyya v. Ajoy Biswas : (1985) 1 SCC 151 that the approach which appeals to us to interpret the expression ‘office of profit’ is that “it should be interpreted with the flavour of reality bearing in mind the object for enactment of Article 102(1)(a), namely, to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature by ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence.
(57) Rajashekaran’s case quotes the above passage with approval.
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(58) In fact, a three Judge Bench of this Court in Shrikant v. Vasantrao and Ors. : (2006) 2 SCC 682 had an occasion to consider the object of Section 9A of the R.P. Act.
This Court in Para 20 held as follows: 20. The object and intent of Section 9-A of the Act is to maintain the purity of the legislature and to avoid conflicts between duty and interest of Members of the Legislative Assembly and the Legislative Council. The said object is sought to be achieved by ensuring that a person who has entered into a contract with the State Government and therefore liable to perform certain obligations towards the State Government, is not elected as a Member of the Legislative Assembly or Legislative Council, lest he should use his influence as an elected member of the legislature to dilute the obligations or to seek and secure undue advantages and benefits in respect of the subsisting contracts. It seeks to ensure that personal interests will not override his duties and obligations as a member of the legislature or Legislative Council....
(59) For all the abovementioned reasons, we reject the 2nd submission made by the learned Counsel for the Petitioner. As a consequence, the transferred case (Civil- Miscellaneous Writ Petition No. C14270 of 2015 filed before the High Court) shall be liable to be dismissed and is accordingly dismissed.
(60) Though, in view of our above conclusion, it may be really not necessary for the purpose of this case to go into the other question regarding the legality and pro- priety of the High Court’s Order dated 20.3.2015 by which the High Court stayed the election process of the bye-election to Pharenda Assembly Constituency. We deem it appropriate to examine the matter as such questions are likely to arise if not regularly at least occasionally.
61. The authority and jurisdiction of the High Courts Under Article 226 to ad- judicate the disputes which are brought before them is a grant of the Constitution, though such authority and jurisdiction have well known limitations. Such limitations are self-imposed based on the structure of the Constitution the distribution of the functions of the various organs of the Constitution and other well established legal
597 “No voter to be left behind” principles. One of such limitations emanates from the mandate Under Article 329(b) which reads as follows:
Article 329. Bar to interference by courts in electoral matters.-
Notwithstanding anything in this Constitution-
(b) No election to either House of Parliament or to the House or either House of the Legislature of a State 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.
62. The sweep of the Article fell for the consideration before this Court on more than one occasion. Two of the most prominent decisions of this subject are N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. : (1952) 3 SCR 218 and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. : (1978) 1 SCC 405, Both the cases were decided by Constitution benches of this Court. The question which arose in those two cases was whether the jurisdiction of the High Court’scould be invoked to intercept the election process which is already set in motion. This Court on a construction of Article 329(b) held in N.P. Ponnuswami (supra) that “Article 329(b): was primarily intended to exclude or oust the jurisdiction of all Courts in regard to electoral matters and to lay down the only mode in which the election could be challenged.”
(63) In Mohinder Singh Gill (supra), this Court held:
Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result... This Court further held as follows:
...The plenary bar of Article 329(b) rests on two principles: (i) the peremptory ur- gency and prompt engineering of the whole election process without intermediate
598 “No voter to be left behind” interruptions by way of legal proceedings challenging the steps and stages in be- tween the commencement and the conclusion; and (ii) the provision of the special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes the other forms, the right and remedy being creatures of the statute and controlled by the Constitution. The conclusion is, therefore, irresistible that jurisdic- tion Under Article 226 cannot consider the correctness, legality or otherwise of the direction....
(64) However, in the case on hand, the primary challenge of the Petitioner is not to the electoral process but the decision of the Governor which resulted in the un- seating of the Petitioner as a consequence of which a bye-election ensued. In other words, the very existence of a vacancy in the legislature is in question.
(65) The interference of the High Court in exercise of the jurisdiction Under Article 226 with the issuance of notification for filling up of casual vacancy in the Legislative Assembly of Uttar Pradesh (Pharenda constituency) in our opinion arises out of an absolute necessity. The election in question is inextricably interlinked with the legality of the decision of the Governor which resulted in the declaration of the vacancy in the Legislative Assembly representing the Pharenda constituency.
(66) The decision of the Governor dated 29th January, 2015 declaring that the Petitioner incurred a disqualification Under Section 9A of the R.P. Act is under chal- lenge before the High Court.
(67) That being the case, there is always a possibility in a given case that the de- cision of the Governor could be held to be unsustainable.9 In the eventuality of such a conclusion by the High Court, the Legislator who is unseated consequent upon decision of the Governor Under Article 192 is entitled to continue as a Member of the Legislature if the tenure to which he is elected still survives. But in the meanwhile if a bye-election were to be held to fill up the vacancy arising as a consequence of the decision of the Governor and in such an election if a person other than unseated legislator gets elected, there would be a very anomalous situation of two persons validly elected to the same seat in the Legislature. Therefore, in our opinion, the case on hand does not fall within the “blanket ban on the litigative challenges to the electoral steps”. The interim order granted by the High Court is perfectly justified.
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(68) However, we notice that the COMMISSION is under a statutory obligation to hold a bye-election within a period of six months from the date of the occurrence of the vacancy. Such obligation emanates from Section 150 and Section 151A. They read as follows:
150. Casual vacancies in the State Legislative Assemblies.--(1) When the seat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of Sub-section (2), by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.
(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued Under Sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.
Section 151A. Time limit for filling vacancies referred to in Sections 147, 149, 150 and 151.-- Notwithstanding anything contained in Section 147, Section 149, Section 150 and Section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
Provided that nothing contained in this section shall apply if--
(a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) the Election Commission in consultation with the Central Government certifies
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that it is difficult to hold the bye election within the said period.
The purpose behind the command is obvious.
Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised 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 all 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.”
[See: N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. : (1952) SCR 218]
(69) The question, therefore, is as to how to reconcile the two apparently con- flicting constitutional obligations, (i) of the High Court to adjudicate the dispute regarding the legality of the Governor’s decision Under Article 192 and (ii) the COMMISSION’s obligation to hold the election within a period of six months from the date of occurrence of the vacancy.
(70) Unfortunately, there is no period of limitation prescribed by law within which a person aggrieved by the decision of the Governor Under Article 192 can approach the High Court. Until such law is made, we deem it appropriate to hold that any person aggrieved by a decision of the Governor Under Article 192 must approach the High Court by initiating appropriate proceedings, (if he is so desirous) within a period of eight weeks from the date of the decision of the Governor.
(71) Such proceedings must be heard by a Bench of at least two Judges and be dis- posed of within a period of eight weeks from the date of initiation without fail. The Chief Justice of the concerned High Court will make an appropriate arrangement in this regard. If the above-mentioned time frame is strictly followed, the Commission would still be left with another eight weeks of time to comply with the obligations emanating from Section 151A of the R.P. Act.
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(72) Application(s) for impleadment allowed.
(73) In view of the dismissal of the transferred case, the special leave petition is disposedof.
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JUDGMENT-25
SUPREME COURT OF INDIA
Civil Appeal No.178 of 2016 (Arising out of SLP (C) No.8017 of 2008) (Decision dated 12/01/2016)
Election Commission of India ...... Appellant
Versus
Praful & Anr...... Respondents
Representation of the People Act, 1950 – Sec.27-Preparation of electoral roll for Council constituencies – S 27 (4) Applicability of sections 15,16,18,21,22 and 23 in relation to graduates’ and teachers’ constituencies as they apply in relation to assembly constituencies. Registration of Electors Rules, 1960 – Rule 31- Rolls for graduates’ and teachers’ constituencies – sub rule (4A) explicitly states that the procedure prescribed under sub-rules (3) and (4) of the rule for preparation of fresh electoral roll will be applicable for revision of rolls of graduates’ and teachers’ constituencies. HELD – Sec. 21 of 1950 Act requires revision of any electoral roll to be made in accordance with procedure prescribed – revision of electoral rolls for graduates’ / teachers’ constituencies should involve the same process which is involved in the preparation of a fresh roll. (Para 10) Sec.22 of 1950 Act stipulates that an eligible voter shall not be deleted from the electoral roll without an opportunity. The requirement of an eligible voter to submit fresh application every time fresh revision is undertaken under sec.21 adequately takes care of the requirement.
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SUMMARY
The appeal was filed by the Election Commission against impugned final judgment and Order dated 20.12.2007 passed by the High Court of Bombay at Aurangabad in Writ Petition No.6084 of 2007, whereby it struck down one of the clauses [Clause 5 (f) ] of the public Notice dated 01.10.2007 issued under Rule 31 (1) of the Registration of Electors Rules, 1960, by the Electoral Registration Officers of Nagpur, Pune and Aurangabad Division Graduates’ constituencies, in the form devised by the Election Commission, inviting applications in prescribed statutory Form 18 appended to the Registration of Electors Rules, 1960, from electors eligible for inclusion of their names in the electoral roll of these Graduates’ constituencies with reference to 1stNovember, 2007 as the qualifying date. In para 5 (f) of that notice, it was stated that a mere reference to an entry in the earlier roll relating to the applicant shall not be taken into account for determining the eligibility for enrolment in the electoral rolls and the applicant will have to produce his degree or certificate, in original, for verification by the Designated Officer.
The High Court had struck down the above clause as being without any legal authority or sanction. It held that the relevant Act and Rules do not confer ju- risdiction or power on the Election Commission to order for preparation of electoral rolls afresh every time an election is held to Graduates’ / Teachers’ constituencies. It directed the Commission not to ask for documents from the electors, already enrolled in the electoral rolls of Graduates’ / Teachers’ constituencies.
The Apex Court considered the question as to whether in matters of revision of the electoral roll for graduates’ / teachers’ constituencies a fresh roll is to be prepared or the existing roll is to be revised and published after inviting claims and objections. It held that the clear legislative intent of the provisions of Sections 21 and 22 of the Representation of the People Act 1950 and Rule 31 of the Registration of Electors Rules, 1960, in the context of revision of electoral roll for graduates’ and teachers’ constituencies, is that it shall be prepared afresh after every six years as per the procedure embodied in Rule 31 of the 1960 Rules.
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It further held that the requirement of an eligible voter to submit fresh application in prescribed Form 18 in case of Graduates’ constituency and in Form 19 in case of Teachers’ constituencies every six years adequately takes care of the requirement spelt out by Section 22 of the 1950 Act that an eligible voter shall not be deleted from the electoral roll without an opportunity.
The Apex Court thus upheld the validity of Clause 5 (f) of the impugned no- tice as being in conformity with the requirements of sub-rule (4A) of rule 31 of 1960 Rules. Any contrary view taken would be erroneous.
The Appeal was allowed and the order of the High Court set aside with the observation that the High Court had fallen into error in taking the contrary view.
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JUDGMENT
Hon’ble Ranjan Gogoi, Judge Hon’ble Prafulla C. Pant, Judge
(1) Leave granted. The challenge in this appeal is against an order dated 20.12.2007 of the High Court of Judicature at Bombay Bench at Aurangabad passed in Writ Petition No. 6084 of 2007, by which Clause 5(f) of a notice dated 01.10.2007 issued Under Rule 31(1) of the Registration of Electors Rules, 1960 has been struck down as being without any legal authority or sanction.
(2) On the contentions advanced, the short question that would arise for con- sideration of the Court is whether in matters of revision of the electoral roll for grad- uates’/teachers’ constituencies for election to the legislative council of the State of Maharashtra a fresh roll is to be prepared or the existing roll is to be revised and published after inviting claims and objections.
(3) The relevant statutory provisions in this regard which will require to be no- ticed are Sections 21 and 22 of the Representation of the People Act, 1950 (for short, “the 1950 Act”) and Rule 31 of the Registration of Electors Rules, 1960 (for short, “the 1960 Rules”).
The said provisions, therefore, are extracted below:--
Section 21. Preparation and revision of electoral rolls.-
(1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act.
(2) The said electoral roll:--
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(a) shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date:--
(i) before each general election to the House of the People or to the Legislative Assembly of a State; and
(ii) before each bye-election to fill a casual vacancy in a seat allotted to the constituency; and
(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission:
Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected.
(3)Notwithstandinganything contained in Sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.
Section 22. Correction of entries in electoral rolls.-If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency:--
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the
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person concerned has changed his place of ordinary residence within the constituency, or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll,
the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry [after proper verification of facts in such manner as may be prescribed]:
Provided that before taking any action on any ground Under Clause (a) or Clause (b) or any action Under Clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. [after proper verification of facts in such manner as may be prescribed]
Rule 31: Rolls for graduates’ and teachers’ constituencies.--(1) The roll for every graduates’ or teachers’ constituency shall be prepared in such form, manner and language or languages as the Election Commission may direct.
(2) The roll shall be divided into convenient parts which shall be numbered consecutively.
(3) For the purpose of preparing the roll the registration officers shall, on or before the 1st [October], issue a public notice calling upon every person enti tled to be registered in that roll to send to, or deliver at his office before the 7th day of [November] next following an application in Form 18 or Form 19, as the case may be, for inclusion of his name:
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[Provided that for the purpose of preparing the roll for the first time for the Legislative Council of the State of Madhya Pradesh, the references to the 1st October and the 7th day of November shall be construed as references to the 31st December, 1966 and the 7th day of February, 1967, respectively.]
(4) The said notice shall be published in two newspapers having circulation in the constituency and republished in them once on or about the 15th [October] and again on or about the 25th [October]:
[Provided that in relation to the preparation of the roll for the first time for the Legislative Council of the State of Madhya Pradesh, the references to the 15th October and the 25th October shall be construed as references to the 15th January and 25th January, 1967, respectively.]
(4A) The provisions of Sub-rule (3) and Sub-rule (4) shall apply in relation to revision of the roll for every graduates’ or teachers’ constituency Under Sub- section (2)(a)(ii) of Section 21 of the Act as they apply in relation to the preparation of such roll subject to the modification that references to the 1st October and the 7th day of November in Sub-rule (3) and references to the 15th October and 25th October in Sub-rule (4) shall be construed respectively as references to such dates, as may be specified by the Election Commission in relation to each such revision.]
(5) The provisions of Rules 10 to 27 except Clause (c) of Sub-rule (1) and Clause (c) of Sub-rule (2) of Rule 13 shall apply in relation to graduates’ and teachers’ constituencies as they apply in relation to assembly constituencies: Provided that a claim or an application for the inclusion of a name shall be made in Form 18 or Form 19 as may be appropriate.
(4) Section 21(1) of the 1950 Act contemplates the preparation of a fresh elec- toral roll whereas Sub-Section (2) deals with revision of such a roll which revision is to be made in accordance with the procedure prescribed.
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(5) Section 22 inter alia contemplates that deletion of the name of an existing voter from the electoral roll can be made only after giving the effected person an opportunity of being heard.
(6) Rule 31(3) of the 1960 Rules contemplate filing of an application in Form 18 (Graduates) or Form 19 (Teachers) for registration in the electoral roll of gradu- ates’ or teachers’ constituencies as the case may be. Under Sub-rule (4A) of Rule 31 of 1960 Rules, at the time of revision of the rolls it is the procedure prescribed by Sub-rule (3) and (4) of Rule 31 which will have to be followed.
(7) On a plain reading of the provisions of Sections 21 and 22 of the 1950 Act and Rule 31 of the 1960 Rules, what appears is a clear legislative intent to the effect that at the time of revision of the electoral roll for graduates’ and teachers’ constituencies every six years, the process involved would be one of preparation of a fresh electoral roll.
(8) Learned Counsel for the Respondent-writ Petitioner who seeks to sustain the benefit of the High Court order has vehemently contended that the meaning that is sought to be attributed to the relevant provisions of the statue by the Appellant would be contrary to Section 22 of the 1950 Act and in fact the said provision of the 1950 Act would be rendered wholly nugatory.
(9) It is further contended that the process of revision is required to be based on the existing roll with suitable additions and deletions there from. On the said basis it is contended that the view taken by the High Court with regard to the validity of Clause 5(f) of the notice, as mentioned above, is perfectly justified and would not call for any interference.
(10) On due consideration, we find it difficult to accept the contention advanced on behalf of the Respondent-writ Petitioner. Section 21 of the 1950 Act requires revision of any electoral roll to be made in accordance with procedure prescribed. The procedure prescribed for graduates’/teachers’ constituencies is embodied in Rule 31 of 1960 Rules. Sub-rule (4A) which deals with revision of the electoral rolls of graduates’/teachers’ constituencies explicitly states that it is the procedure
610 “No voter to be left behind” prescribed Under Sub-rules (3) and (4) of Rule 31, which deals with fresh prepara- tion of the electoral roll for such constituencies, that will also apply in the matter of revision of the electoral roll. The reason for the same is not for to seek. There could always be a constant movement of the eligible voters in such constituencies to places outside the constituencies and also the requirement of the eligibility condition so far as registration in the electoral roll of teachers’ constituency is concerned (teaching experience) is liable to alteration. In such circumstances, the legislature had thought it prudent to lay down that the revision of electoral rolls for graduates’/teachers’ constituencies should involve the same process which is involved in the preparation of a fresh roll.
(11) Insofar as Section 22 is concerned, we find that the requirement of an eligi- ble voter to submit fresh application in Form 18 or 19 every six years adequately takes care of the requirements spelt out by Section 22 of the 1950 Act, namely, that an eligible voter shall not be deleted from the electoral roll without an opportunity. The said requirement, in our considered view, is adequately satisfied by engrafting in the procedure for revision Under Sub-rule (4A) of Rule 31 of the 1960 Rules the same procedure as applicable to preparation of a fresh electoral roll.
(12) On the view that we have taken, we find that Clause 5(f) prescribed by the notice dated 01.10.2007 is in conformity with the requirement of Sub-rule (4A) of Rule 31 of 1960 Rules and the High Court had fallen into error in taking the contrary view as noticed above.
(13) We, therefore, set aside the order of the High Court and uphold the validity of Clause 5(f) of notice dated 01.10.2007 as being in conformity with the require- ments spelt out by the relevant provisions of the statutes as indicated above. The appeal is accordingly allowed.
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