Case BriefsSupreme Court

Supreme Court: In the writ petition filed by Amar Singh where he asked the Court to declare that Para 2 of the 10th Schedule to the Constitution does not apply to an elected member of a House who has been expelled by his/her political party, the Bench of Dipak Misra and A.M. Khanwilkar, JJ placed the matter before the Chief Justice of India for constitution of a larger Bench. Amar Singh, having been expelled by the Samajwadi Party, had sought for a direction that his conduct would no longer fall within the acts that constitute a disqualification within the meaning of para 2(1)(a) and para 2(1)(b) of the Tenth Schedule to the Constitution. The larger Bench will be deciding the question as to the status in either House of Parliament or the State Legislatures of a Member who is expelled from the party which set him/ her up as a candidate for election.

Para 2 of the 10th Schedule to the Constitution provides for disqualification on ground of defection but does not specifically mention the expelled members, Hence, an important question had came before the Court in Amar Singh v. Union of India(2011) 1 SCC 210,  for consideration as to whether the members who are expelled from the membership of the parties which had set them up as candidates in the election, must be deemed to continue to belong to such party in view of Explanation (a) to paragraph 2(1) of the 10th Schedule. Also, when a Member of either House of Parliament is expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule. The bench in that case had referred the case to a larger bench and the consequently, the larger bench had kept the questions open for decision in an appropriate case.

Earlier, in G. Viswanathan v. Tamil Nadu Legislative Assembly(1996) 2 SCC 353, the Court had held that even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached’. [Amar Singh v. Union of India, 2017 SCC OnLine SC 405, order dated 17.04.2017]

Case BriefsSupreme Court

Supreme Court: The special bench of Jagdish Singh Khehar, CJ and Ranjan Gogoi and R.K. Agrawal, JJ refused to stay the swearing in ceremony of Manohar Parrikar as the Chief Minister of Goa and the asked Mridula Sinha, the Governor of the State to conduct a floor test on 16.03.2017 to determine whether the Chief Minister administered the oath of office, has support of the majority.

As per the result of the electoral process in the State of Goa which was declared on 11.03.2017, the BJP Legislature Party had the support of 21 MLAs out of the 40 elected members. However, the leader of the Congress Legislature Party had alleged that the support in favour of the BJP is a mis-representation of fact.

The bench hence, said that the instant sensitive and contentious issue raised on behalf of the petitioner, can be resolved by a simple direction, requiring the holding of a floor test at the earliest. The holding of the floor test would remove all possible ambiguities, and would result in giving the democratic process, the required credibility.

It was directed that all pre-requisite formalities for holding a floor test, including the formalities   required to be completed by the Election Commission, be completed by 15.03.2017.  [Chandrakant Kavlekar v. Union of India, 2017 SCC OnLine SC 240, order dated 14.03.2017]

Case BriefsSupreme Court

Supreme Court: Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

In the matter where the interpretation of the word ‘his’ under Section 123(3) of the Representation of the People Act, 1951, T.S. Thakur, CJ and Madan B. Lokur, L.Nageswar Rao and S.A. Bobde, JJ, giving the majority view, said that the sum total of Section 123 (3) even after amendment is that religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice. It was held that for maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section 123 of the Representation of the People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.

Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ on the other hand were of the opinion that the ‘his’ in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. ‘His’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting. It was said that the actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections but these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. [Abhiram Singh v. C.D. Commachen, 2017 SCC OnLine SC 9, decided on 02.01.2017]


Case BriefsHigh Courts

Allahabad High Court: In a case before the Court where certain questions relating to the issue of the writ of mandamus commanding the Authorised Controller/District Magistrate to hold election of office bearers of a society registered under the Act of 1860 had been referred for the opinion of the larger Bench, the majority opinion  of the Court authored by Dilip B. Bhosale, C.J. (with whom Yashwant Varma, J. agreed) held that issuing a writ of mandamus to societies regulated by the Societies Registration Act, 1860 is justified.

In the present case, a college run by a society registered under the Act was affiliated to a University. The State Government, in exercise of its powers under Section 57 of the Uttar Pradesh Universities Act, 1973 appointed the District Magistrate as the Authorized Controller to take over the management of the College and its properties overlooking the provisions of Section 25(2) of the Societies Registration Act, 1860. This direction of the State Government and of the learned Single and Division Benches was appealled against in this case.

The Court analysed the facts of the case and Ashwani Kumar Mishra, J expressing his dissenting opinion said that the body charged with the responsibility to manage such educational institution is the society, registered under the Act of 1860, and the exclusive provision to regulate it, so far as its valid constitution is concerned, vests in the authority constituted under the Act of 1860.

Contrarily, the majority relying on the Supreme Court Constitution Bench’s decision in State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 held that it would amount to curtailment of the extraordinary powers of this Court under Article 226 of the Constitution if the writ is prevented from being issued. The High Courts are authorised under Article 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any Government to enforce fundamental rights and, “for any other purpose”. [Committee of Management, Dadar Ashram Trust Society v. Mahatma Gandhi Kashi Vidyapeeth, Varanasi, 2016 SCC OnLine All 1072, decided on 16.12.2016]

Case BriefsHigh Courts

Allahabad High Court:  Dismissing an election petition with costs challenging the election of Mrs Sonia Gandhi to the Lok Sabha from Rae Bareily Constituency on May 16, 2014 and her entitlement to be registered as an Indian citizen, the Court held that grant of citizenship cannot be challenged at this belated stage. The Court also observed that the petition lacked in material facts and did not constitute a complete cause of action.

Mrs Gandhi’s election was challenged on the ground that she was not a citizen of India as the words “citizens of India” under Article 84 of the Constitution referred to those persons who were citizens by birth or descent and not those who had acquired citizenship by registration. Besides, appeal by various  religious leaders to vote for her on religious lines during the election campaign amounted to corrupt practice and rendered her election void under Section 100(1)(b) of the Representation of People Act, 1951. The petitioner also challenged Section 5(1)(c) of the Citizenship Act, 1955, Rule 4 of the Citizenship Rules, 1956 and Form III prescribed therein as unconstitutional.

The Bench of Tarun Agarwala, J. held that as long as the certificate of citizenship issued under Section 5 was not challenged as in the instant case, the presumption of the validity of the certificate continues to remain in existence in view of Section 114 of the Evidence Act. The Court will presume that the certificate was validly issued by the prescribed authority after satisfying itself that the said person was entitled for grant of registration in her favour. The Court observed that since the petitioner had admitted that the respondent was granted Indian citizenship on 30th April, 1983, coupled with the fact that there is no challenge by the petitioner to the acquisition of the citizenship upon the respondent, such plea cannot be looked into at this belated stage after three decades. Such registration is still continuing and has not been cancelled, withdrawn or annulled till date. So long as the order issued under Section 5(1)(c) of the Citizenship Act stands, Mrs Gandhi continues to remain a citizen of India.

As for the contention of indulging in corrupt practice, the Court observed that t is clear that the appeal to vote on the ground of religion must be the religion of that candidate. The appeal is to be made on the basis of the religion of the candidate for whom votes are solicited. There is no such assertion to this effect in the election petition. In fact the assertion is, that the appeal was to garner Muslim votes. Admittedly the respondent is not a Muslim. In order to constitute corrupt practice, it must be shown that the act was done during the election campaign between the date when the respondent became a candidate and the date of poll and that it was the act of the respondent or her agent or any other person with her consent to appeal to vote on the ground of her religion. As material facts are lacking, the Court found no cause of action arose on this issue. [Ramesh Singh v. Sonia Gandhi, 2016 SCC OnLine All 451, decided on  July 11, 2016]

Case BriefsSupreme Court

Supreme Court: In a case where the election of the appellant was challenged on ground that he, being a Muslim, is not a member of Scheduled Caste, and hence was not qualified to contest the election from any constituency reserved for Scheduled Castes, the bench of Ranjan Gogoi and P.C. Pant, JJ said that the decision of the Punjab and Haryana High Court where the election of the appellant was set aside was erroneous.

The family members of the appellant though followed Islam but they belonged to ‘Doom’ community, a Scheduled Caste under Constitution (Scheduled Castes) Order, 1950, and hence he was issued a caste certificate by the competent authority, after he declared that he has embraced Sikhism. The Court said that the said facts did not interfere with the settled law that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth.

Regarding the contention that the appellant did not change his name after conversion and also that the other family members did not convert to Sikhism, it was contended by the appellant that he was popular as a singer with the name – ‘Mohammad Sadique’ as such without changing his name, he accepted the Sikhism and followed all rites and traditions of Sikh Religion. The Court, accepting the said contention of the appellant, held that It is not essential for anyone to change one’s name after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in law that entire family of a person should convert or reconvert to the religion to which he has gone. [Mohammad Sadique v. Darbara Singh Guru2016 SCC OnLine SC 371, decided on 29.04.2016]