Legislation UpdatesRules & Regulations

S.O. 1023(E)—In the exercise of the powers conferred by Section 169 read with Section 33 of the Representation of People Act, 1951 (43 of 1951), the Central Government after consulting the Election Commission hereby makes the following rules further to amend the Conduct of Elections Rules, 1961, namely:––

1. (1) These rules may be called the Conduct of Elections (Amendment) Rules, 2019.
(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Conduct of Elections Rules, 1961 in FORM 26,––
I. in PART A—
(i) for paragraph (4) and the Table thereunder, the following shall be substituted, namely:—
“(4) Details of Permanent Account Number (PAN) and status of filing of income tax return:

[Refer link for detailed notification: Notification]

Ministry of Law and Justice


Note: In accordance to the amended Form 26, five years’ returns are to be furnished, along with details of offshore assets. Along with this,  it would also require details under various heads of the candidate’s spouse, members of the Hindu Undivided Family (if the candidate is a ‘karta’ or coparcener) and dependents.

Case BriefsHigh Courts

Rajasthan High Court: A Bench of Alok Sharma, J., dismissed a petition filed for a re-examination of the physical test due to the adverse condition of the running track.

The facts of the case are that he having passed the written examination for appointment to the post of Constable under the Rajasthan Police Subordinate Service Rules, 1989 appeared for Physical Efficiency Test (PET) which entailed running 5 kms within the prescribed time. At the time the PET under the Rules of 1989 was conducted on 28-8-2018 at Jaipur, the running track was muddied for reason of heavy rains which resulted obstructing the petitioner’s performance up-to-his potential and his failure. The contention of the petitioner was that he should be given another opportunity as was given to several candidates who failed the PET.

The Court dismissing this petition held that the petition was filed after an inordinate and unexplained delay of about two and a half months and since then the selection process was completed and those appointed were undergoing training. The issue with regard to the condition of track in the course of PET for recruitment was of no event for the purpose of PET. [Veer Singh v. State of Rajasthan, 2019 SCC OnLine Raj 9, Order dated 07-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Gita Mittal, CJ and Tashi Rabstan, J., issued a notice to the respondents in regard to the manner in which the short listing of candidates was effected.  

This writ petition was filed to challenge the action of the respondents for bunching the applicants who had applied pursuant to three advertisement notifications for the purposes of short listing without putting them to notice.

It was contended by Mr Pranav Kohli, counsel for the applicant that the complete basis of the selection was changed and Rule 40 of the J&K Public Service Commission (Business and Procedure) Rules, 1980 was violated.

A notice was issued to the respondents in this regard. [Aamir Salim Sheikh v. J&K Public Service Commission, 2018 SCC OnLine J&K 1010, Decided on 26-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a writ petition whereby the petitioners assailed the order of selection of medical officers, which was passed by the respondent authorities.

The main issue that arose before the Court was whether the order passed by the respondent authorities was good in law.

The Court observed that the petitioners had applied for the post of medical officers but couldn’t qualify, however, it is pertinent to mention that the petitioners had read the advertisement and after accepting all the terms and conditions therein, applied for the position of medical officer. It was specifically mentioned in the advertisement itself that the total no. of seats for general candidates was 14 out of 30, however, the petitioners did not raise any objection at the time of applying for the said posts. The petitioners challenged the advertisement and order of selection only after they could not qualify for the said posts. They participated in the selection process with their eyes wide open and took chance in the selection. The Court referred to the Supreme Court judgment of Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 wherein it was held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.

The Court held that the petitioners had participated in the process of recruitment after reading the terms and conditions of the advertisement and hence they cannot be allowed to challenge the advertisement at a later stage. Accordingly, the petition was dismissed by the Court. [Sheetal Sharma v. State of J&K,2018 SCC OnLine J&K 707, decided on 05-10-2018]

Case BriefsSupreme Court

Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law.

Supreme Court: CJ Dipak Misra delivered the Judgment for the 5-Judge Constitution Bench comprising of himself and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. wherein the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution.

The 3-Judge Bench which originally heard the petition was of the view that the question needs to be addressed by a Constitution Bench. Thus, the present proceedings before the 5-Judge Bench. The petitioners led by Public Interest Foundation submitted that the lawbreakers should not become law makers and there cannot be a paradise for people with criminal antecedents in the Parliament or the State Legislatures. The petitioners were attuned to the principle of presumption of innocence. But they contended that the said principle is confined to criminal law and that any proceeding prior to conviction, such as framing of charge, for instance, can become the basis to entail civil liability or penalty. The petitioners, therefore, took the stand that debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence and it is merely a restriction which is distinctively civil in nature. Attorney General K.K. Venugopal refuted the submissions and urged that the Parliament to pass a legislation and can only recommend. Further, when there are specific constitutional provisions and the statutory law, the Court should leave it to the Parliament.

The Court was of the clear opinion that it cannot legislate. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. Reference was made to Lily Thomas v. Union of India, (2013) 7 SCC 653 and the Court was of the opinion that the view expressed therein was correct, for the Parliament has the exclusive jurisdiction to lay down disqualification for membership. It was noted that apart from the grounds of disqualification as mentioned in the said Articles, Parliament has provided certain other grounds under Sections 8, 8-A, 9, 9-A, 10 and 10-A of the Representation of the People Act, 1951. Apart from these, there are no other disqualifications and, as noticeable, there can be no other ground. Thus, disqualifications are provided on certain and specific grounds by the legislature. In such a state, the legislature is absolutely specific. In the words of the Court, It is clear as moon day and there is no ambiguity. The language of the said provision leaves no room for any new ground to be added or introduced.

On the issue of criminalisation of politics, the Court referred to earlier judgments. Rajya Sabha Reports, Law Commission reports, etc. and further discussed the role of Election Commission with respect to superintendence, direction, and control of elections. It was observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. Analysis was also made of the Election Symbols (Reservation and Allotment) Order, 1968 which deals with allotment classification, choice of symbols by candidates and restriction on the allotment of symbols. Observation of the Court in the matter was that when a candidate has been set up in an election by a particular political party, then such a candidate has a right under sub-clause (3) of Clause 8 to choose the symbol reserved for the respective political party by which he/she has been set up. An analogous duty has also been placed upon the Election Commission to allot to such a candidate the symbol reserved for the political party by which he/she has been set up and to no other candidate.

The Court finally referring to, inter alia, Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; Resurgence India v. Election Commission of India, (2014) 14 SCC 189; etc. was inclined to say that best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. In a constitutional democracy, criminalization of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

Keeping the aforesaid in view, the Court issued the following directions:

  • Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.
  • It shall state, in bold letters, with regards to the criminal cases pending against the candidate.
  • If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
  • The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  • The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

Furthermore, the Court recommended to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State Assemblies. This, in our attentive and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy. As stated by the Court, the above directions were issued with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make a law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The writ petition was disposed of accordingly. [Public Interest Foundation v. Union of India, (2019) 3 SCC 224, decided on 25-09-2018]

Case BriefsSupreme CourtUniversities and Educational Institutions

Supreme Court: In the matter where the selection to the post of Principals to different Colleges in the State of Uttar Pradesh was challenged for alleged violation of Regn. 6 of the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, the bench of Fakkir Mohamed Ibrahim Kalifulla and S.A. Bobde, JJ affirmed the decision of the Allahabad High Court where the selection was set aside and it was directed that the U.P. Higher Education Service Commission shall consider and frame appropriate guidelines for conduct of interview for selection on the post of Principal of Postgraduate/Degree Colleges in accordance with law as mandated by Regulation 6(2) of the 1983 Regulations and further take early steps for filling the vacant posts of Principal of Postgraduate/Degree Colleges in accordance with law.

The State Government enacted U.P. Higher Education Services Commission Act, 1980 to establish a Service Commission for the selection of Teachers which includes the post of Principals for appointment to the colleges affiliated to or recognized by the University under the 1973 Act as there were numerous complaints regarding the selection of candidates for both the post of Teachers as well as the Principals in the post graduate colleges as well as the degree colleges. The High Court had held that there were serious lapses in the procedure followed by the Commission in making the selection for the post of Principals of the Post Graduate as well as Degree colleges in as much as the Regulation 6 of the 1983 Regulation was not strictly followed and that the necessary guidelines under the said Regulation were not formulated both for screening the candidates as well as in the matter of holding the interview, apart from serious violation in the matter of calling of the candidates for interview beyond the prescribed limit as provided under the Regulation 6.

In the present case, initially the Commission decided to limit the number of candidates by fixing the norms. The Commission by fixing the cut-off mark as 34.9 for female candidates 35.1 for male candidates proceeded to process the applications but subsequently the index norms were altered and ultimately it decided to call all the candidates. It was alleged that such variation was adopted by the Commission with a view to favour certain candidates who otherwise did not come within the zone of consideration for participation in the interview.

The Court, considering the facts of the case, held that the High Court was well justified in holding that the changing of the norms while applying Regulation 6(1) for the initial screening thrown considerable doubt about the genuineness in the selection process adopted by the Commission. When greater faith and trust was invested with the Commission and when the Commission breached its own criteria and thereby acted contrary to the standards laid by it, it resulted in an arbitrary selection made by it. [Veerendra Kr. Gautam v. Karuna Nidhan Upadhyay, 2016 SCC OnLine SC 704, decided on 15.07.2016]