LANDMARK JUDGEMENTS ON ELECTION LAW (A Compilation of important Judgements of the Supreme Court of India and High Courts and Opinion tendered by the Election Commission) VOLUME IV New Delhi © Election Commission of India, 2006 Published by Media Co-ordination & Publication Division, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110 001 and produced by Ashok Creatives, India Tourism Development Corporation and printed at M/s............................................................ Tel : 91-11-23717391, 23717392 Fax : 91-11-23713412 Website : www.eci.gov.in B.B. TANDON CHIEF ELECTION COMMISSIONER OF INDIA FOREWORD A well-evolved electoral system is the hallmark of a matured democracy. Better understanding of Electoral Law on the part of all stakeholders augurs well for healthy democratic credentials of any nation. Judicial pronouncements concerning the electoral law while offering guidance for the future course provide an insight into the very process of strengthening of democracy itself. Election management in India has always been a challenging task and election managers need to keep themselves abreast of all developments concerning electoral laws. Having realised this, the Election Commission of India has already published the landmark judgements passed by the Supreme Court of India, High Courts and opinions/orders of the Commission on various electoral issues in three volumes. The current one is an apt addition and it covers judgements/orders from the year 2000 onwards. The Election Commission’s initiative in documenting such historic judicial pronouncements received an enthusiastic response from electoral managers and legal practitioners. I am sure that the present volume will also be equally well received. New Delhi (B.B. Tandon) 17th June, 2006 Chief Election Commissioner of India INDEX (I) Decisions of the Supreme Court S.No. Names of the Parties Date of Decision Page No. 1. AIADMK Vs. Chief Election 23.04.2001 1 Commissioner and Another 2. Union of India Vs. Association for 02.05.2002 3 Democratic Reforms & Another 3. Indian National Congress (I) Vs. 10.05.2002 39 Institute of Social Welfare and Ors. 4. Gujarat Election - Reference Case 28.10.2002 65 5. People’s Union for Civil Liberties 13.03.2003 177 (PUCL) & another Vs. Union of India and another 6. Ram Phal Kundu Vs. Kamal Sharma 23.01.2004 271 7. Manda Jaganath Vs. K.S. Rathnam & 16.04.2004 299 Ors. 8. K. Prabhakaran Vs. P Jayarajan & 11.01.2005 311 Ramesh Singh Dalal Vs. Nafe Singh & Ors. 9. Rameshwar Prasad & Ors. Vs. 24.01.2006 352 Union of India & Ors. 10. Michael B. Fernandes Vs. 14.02.2002 377 C.K. Jaffar Sharief & Ors. S.No. Names of the Parties Date of Decision Page No. 11. Secretary, Ministry of Information & 13.04.2004 385 Broadcasting Vs. M/s. Gemini TV Pvt. Ltd. and Others 12. Union of India Vs. Harbans 26.04.2001 394 Singh Jalal & Ors. 13. Jaya Bachchan Vs. 08.05.2006 398 Union of India & Ors. (II) Decisions of the High Courts S.No. Names of the Parties Date of Name of the Page No. Decision High Court 14. Michael B. Fernandes Vs. 05.02.2004 Karnataka 405 C. K. Jaffer Sharief & Others High Court 15. Election Commission 17.11.2003 Chhattisgarh 417 of India Vs. State of High Court Chhattisgarh and Others 16. Lalji Shukla and Ajai 16.01.2002 Allahabad 460 Mohan Sharma Vs. Election High Court Commission & Others 17. AIADMK Vs. the Chief 10.04.2001 Madras 465 Election Commissioner High Court & Others 18. Abhay Singh Vs. State of 12.04.2004 Allahabad 508 Uttar Pradesh & Others High Court 19. Rajasthan Advertising 30.04.2004 Rajasthan 512 Company Vs. RSRTC High Court & Others 20. HRA Choudhury & Others 11.01.2002 Gauhati 522 Vs. The Election Commission High Court of India & Others (III) Election Commission’s Opinion to the President of India and Governors of the States S.No. To Whom Subject Matter Date of Page Tendered Opinion No. 21. President of Reference Case No.3 of 2005 02.03.2006 549 India under Article 103(2) regarding alleged disqualification of Smt. Jaya Bachchan, a sitting Member of Rajya Sabha 22. President of Reference Case No. 6 of 2006 03.04.2006 572 India under Article 103(2) regarding alleged disqualification of Smt. Sonia Gandhi for being a Member of Lok Sabha 23. President of Reference Case No. 10 of 2006 07.04.2006 581 India under Article 103(2) regarding alleged disqualification of Shri Balbir K. Punj for being a Member of Rajya Sabha S.No. To Whom Subject Matter Date of Page Tendered Opinion No. 24. President of Reference Case No. 13 of 2006 07.04.2006 590 India under Article 103(2) regarding alleged disqualification of Prof. Vijay Kumar Malhotra, a sitting Member of Lok Sabha 25. Governor of Reference Case No. 2 (G) of 03.04.2006 593 Uttar 2005 under Article 192(2) Pradesh regarding alleged disqualification of Shri Md. Azam Khan, a sitting Member of the UP Legislative Assembly All India Anna Dravida Munnetra Kazhagam Vs. Chief Election Commissioner & Another SUPREME COURT OF INDIA A. Nos. 1-2 in & Petition(s) for Special Leave to Appeal (Civil) CC2824-2825/2001 From the Judgement and Order dated 10.04.2001 in WP 3346/01 and 1945 of 2001 of the High Court of Judicature for Madras All India Anna Dravida Munnetra Kazhagam................................. Petitioner(s) Versus Chief Election Commissioner & Anr. ............................................ Respondent(s) With Application(s) for permission to file SLP (With Office Report) Date of Order : 23.04.2001 Coram : z Hon’ble Mr. Justice B. N. Kirpal z Hon’ble Mrs. Justice Ruma Pal SUMMARY OF THE CASE Validity of Section 61(A) of the R.P. Act, 1951, as challenged in A.C. Jose Vs. Sivan Pillai and others 1984 (3) SCR 74, was questioned in the petiton but the Supreme Court held that High Court of Madras was right to uphold the validity of said section. It also observed that Articles 326 and 327 cannot be so interpreted as to enable the taking away the jurisdiction or to abridge the powers of the Election Commission under Act 324. The SLP was dismissed. O R D E R Permission to file S.L.N. is granted. 1 All India Anna Dravida Munnetra Kazhagam Vs. Chief Election Commissioner & Another We have heard the learned counsel for the petitioner. We do not understand the impugned judgement to mean that the law declared in A.C. Jose vs. Sivan Pillai & Ors. 1984 (3) SCR 74, is incorrect. The observations made in the impugned judgement are clear. Articles 326 and 327 cannot be so interpreted as to enable the taking away the jurisdiction or to abridge the powers of the Election Commission under Article 324. A.C. Jose’s case does not apply to the facts of the present case for the simple reason that in A.C. Jose’s case, it was by an Executive order that Electronic Voting Machines were sought to be used which was not permissible being contrary to the Rules. Now that Section 61A has been inserted in the Representation of the People Act, 1951, in 1989, the aforesaid decision cannot be of any assistance to the petitioner. While considering the validity of the said Section we are in agreement with the decision of the High Court that the said Section is valid. The Special Leave petitions are dismissed. Sd/- (S. L. GOYAL) Kalyani. Court Master 2 Union of India Vs. Association for Democratic Reforms & Another SUPREME COURT OF INDIA Civil Appeal No. 7178 of 2001 Union of India ................................................................................ Appellant Versus Association for Democratic Reforms & Another .......................... Respondents With Writ Petition (C) No. 294 of 2001 People’s Union for Civil Liberties (PUCI) & Another ..................... Petitioners Versus Union of India & Another ............................................................... Respondents Date of Order : 02.05.2002 SUMMARY OF THE CASE The Association for Democratic Reforms had filed a writ petition No 7257 of 1994 before High Court of Delhi for direction to implement the recommendations made by Law Commission in its 170th report and to make necessary changes under Rule 4 of Conduct of Elections Rules, 1961 regarding debarring a candidate from contesting election if charges have been framed against him/her by a Court in respect of certain offences and necessity for candidate to furnish details of criminal cases, if any, pending against him. It also suggested that true and correct statement of assets owned by the candidate should also be disclosed. The petitioners pointed out nexus between criminals and candidates as highlighted in Vohra Committee report. The petitioners sought direction from High Court to Election Commission to seek above information amending Forms 2A & 2E required at the time of filing nomination by candidates. 3 Union of India Vs. Association for Democratic Reforms & Another The High Court observed that it is for Parliament to amend R. P. Act, 1951 but Election Commission should secure above said information for voters. The High Court’s order was challenged by Union of India with a plea that High Court should have directed petitioner to approach Parliament for necessary changes. The PUCL also filed petition No. 294/2001 under article 32 of Constitution of India for above mentioned guidelines under Article 141 of Constitution of India. The issue before Hon’ble Supreme Court was whether Election Commission is empowered to issue directions as ordered by High Court and whether a citizen has right to get relevant information about prospective candidates. The Supreme Court held that High Court has ample jurisdiction under Article 32 read with Articles 141 and 142 of Constitution of India to issue necessary direction to executive to subserve public interest, to fill the void in absence of suitable legislation.