Case BriefsHigh Courts

Bombay High Court: A writ petition filed against the decision of the Collector was allowed holding that the Collector ought to have exercised power of discretion before mechanically disqualifying the petitioner from contesting elections.

The petitioner was elected from Ward No. 3 for the Gram Panchayat at Aurad. She also contested from Ward No. 4 from where she lost the elections. The petitioner was not able to file statement of election expenses pertaining to Ward No. 4 in term of Maharashtra Village Panchayat Act, 1958. The petitioner made an application before the Collector for extension of 5 days time for filing such statement. However, the Collector, without responding to the said application, passed an order disqualifying the petitioner for 5 years from contesting the elections. Appeal preferred by the petitioner against that order was also dismissed by the Divisional Commissioner. Thus, the instant petition.

The Court, after hearing the parties and considering the facts and circumstances of the case, held that the Collector was not right in passing the order disqualifying the petitioner without first considering the application of the petitioner. Section 14B of the Act provides that the Election Commission may remove the disqualifications as provided under sub-section (1) after recording of reasons. The Court held that the Collector ought to have first considered the application of the petitioner and in view of the Court, the extension of 5 days time for filing of expenses statement should have been provided to the petitioner. Therefore, the order of the Collector was set aside and he was directed to first consider the application of the petitioner and appropriately exercise discretion as granted to him under Section 14B. [Tamjodevi Madarsha Bhandari v. Tahsildar, 2018 SCC OnLine Bom 936, order dated 04-05-2018]

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Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ asked the Central Government to constitute Special Courts to deal with cases involving MPs and MLAs and speedy disposal of these matters after the Election Commission of India recommended life ban on politicians convicted in criminal cases. The bench asked Centre to apprise it with the details of the criminal cases lodges against politicians from 2014 till date.

The Court asked Centre to place before it details regarding 1,581 cases involving MPs and MLAs, as declared by politicians at the time of filing their nominations during the 2014 general elections and that how many of these 1,581 cases have been disposed of within one year and how many have ended either in conviction or acquittal of the accused.

Centre told the bench that decriminalisation of politics has to be done and it was not averse to the setting up of special courts to deal with cases involving politicians and that the recommendations of the Election Commission of India and the Law Commission favouring life-time disqualification of politicians convicted in criminal cases was under the active consideration of the government.
The Court, hence, asked Centre to place before it the scheme for setting up of such special courts and also indicate the amount of funds that could be earmarked for the purpose. The matter has been listed on December 13, 2017 and Centre has to do the needful within 6 weeks.
Source: ET

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Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and A M Khanwilkar, JJ allowed the petition seeking cancellation of Bihar Chief Minister Nitish Kumar’s membership of the state Legislative Council for allegedly concealing a pending criminal case against him. Stating that it will consider the matter, the bench said it will fix a date for hearing the matter.

The petition, which was filed yesterday, alleged that there was a criminal case against the JD(U) leader wherein he was accused of killing a local Congress leader Sitaram Singh, and injuring four others ahead of Lok Sabha by-election to the Barh constituency in 1991. The petitioner has also sought a direction to the CBI to register an FIR against Kumar in the case. He sought cancellation of Kumar’s membership as per the Election Commission’s 2002 order stating it is mandatory for candidates to disclose criminal cases against them in their affidavits annexed to nomination papers. He claimed that the Bihar Chief Minister did not disclose the criminal case that was pending against him in affidavits since 2004, except for 2012.

Source: PTI

Case BriefsForeign Courts

Pakistan Supreme Court: The 5-judge bench of Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Sh. Azmat Seed and Ijaz Ul Ahsan, JJ declared Pakistan Prime Minister Nawaz Sharif unfit to be a member of the Majlis-e-Shoora (Parliament) after he failed to prove himself innocent in the Panama Papers case against him and his children.

The Court said that PM Nawaz Sharif was not honest in terms of Section 99(f) of the Representation of the People Act, 1976 and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he was disqualified to be a Member of the Majlis-e-Shoora (Parliament) as he not only furnished a false declaration under solemn but also failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976.

The Court had, by an earlier order, constituted a Joint Investigation Team to look into the alleged money laundering by Nawaz Sharif & his family members. The Court said that the questions as to how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K. And how Nawaz Sharif’s children were in possession of properties in their tender ages were important questions to be looked into. It was said that in normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, it was important that an impartial Joint Investigation Team investigated the matter.

The Court asked the Election Commission of Pakistan to issue a notification disqualifying PM Nawaz Sharif with immediate effect. Nawaz Sharif resigned from his office soon after the decision. [Imran Ahmed Khan v. Mian Muhammad Nawaz Sharif, 2017 SCC OnLine Pak SC 2, decided on 28.07.2017]


Case BriefsHigh Courts

Kerala High Court: In a writ filed by the petitioner against an order of the Kerala State Election Commission, according to which the petitioner had defected and was disqualified to be a member of the Ramamangalam Gama Panchayat and also from contesting as candidate in an election to any local authority for a period of six years as per Kerala Local Authorities (Prohibition of Defection) Act, 1999, a Single Judge Bench comprising of K. Vinod Chandran, J. upheld the Commission’s order and dismissed the petition.

The petitioner contended that her disqualification was invalid since by the time the Election Commission was approached the term of council had expired. It was pointed out that “the disqualification is only with reference to the membership of the Committee in office for a valid term of five years and cannot be extended to a subsequent period for which a fresh election is conducted.”

The respondent on the other hand argued that there was a difference between disqualifications which are co-terminus with the term of office of a committee and those that extend beyond the term of office, this case falling in the latter category because the Act specifically provided for disqualification beyond a period of 6 years even beyond the term of the elected committee.

The Court held that if it was to sustain the petitioner’s contention, then towards the expiry of the term of office the Committee members would indulge in defection against which there would lay no action. Moreover, it would require the Court to add words to the provision: “for the term then in office” which is not permissible. “The intention clearly was to disqualify a member who has defected from continuing in that committee and in the subsequent committee too, since the disqualification runs for six years, while the term of the committee is 5 years.” [Jessie Raju v. Communist Party of India, 2017 SCC OnLine Ker 7860, decided on June 28, 2017]

Case BriefsSupreme Court

Supreme Court: Considering the fact that there is a test match which is going to be played between India and Australia tomorrow i.e. 25th March, 2017, at Dharamsala Cricket Stadium, the Court directed that the B.C.C.I. shall honour the terms and conditions postulated in the contracts with the State Associations in letter and spirit so that there is no impediment in holding the test matches and ODIs

With regard to the IPL matches that are going to commence from 05.04.2017 on 10 venues in India, the Court said that there have to be tripartite contracts and some have been entered into while some shall be entered into in due course. After the contracts are executed, following the principle of parity, the B.C.C.I. shall also honour the contractual terms

Clearing the air over the disqualification as modified on 20.01.2017 where it was said that a person will be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association, the Court said that what has been meant by the clarificatory order is that, if an office bearer has completed nine years in any post in the B.C.C.I., he shall stand disqualified to become an office bearer of the B.C.C.I. Similarly, if a person holds the post of office bearer in any capacity for any State Association for nine years, he shall stand disqualified for contesting or holding any post or office of the State Association. The bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandachud said that if a person has held the post of office bearer in respect of a State Association for a period of nine years, he will not be disqualified to contest for the post of office bearer of the B.C.C.I. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 277, order dated 24.03.2017]

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Supreme Court: Modifying the earlier order, the Court said that a person will now be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association.

Earlier on 02.01.2017, the Court had laid down various grounds for disqualification which included serving a cumulative period of 9 years as an Office Bearer of the BCCI. On 03.01.2017, the Court modified this disqualification and said that serving a cumulative period of 9 years as an Office Bearer of the BCCI or any State Cricket Association would lead to disqualification.

The names of the members of the Committee of Administrators are likely to be announced on 24.01.2017.

Case BriefsSupreme Court

Supreme Court: Directing that Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI shall forthwith cease and desist from being associated with the working of BCCI, the 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ accepted the norms laid down by the Lodha Committee regarding the disqualification of the office bearers of BCCI which said that a person shall be disqualified from being an Office Bearer if he or she :

  • Is not a citizen of India;
  • Has attained the age of 70 years;
  • Is declared to be insolvent, or of unsound mind;
  • Is a Minister or government servant;
  • Holds any office or post in a sports or athletic association or federation apart from cricket;
  • Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
  • Has been charged by a Court of Law for having committed any criminal offence.

The Bench said that tough sufficient opportunities have been granted to BCCI to comply with the judgment and order of this Court, it has failed to do so. The President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions. The Court had earlier, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court. The Court, hence, issued a show-cause notice to Anurag Thakur to explain why he should not be proceeded against under the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 and under the Contempt of Courts Act, 1971.

Stating that a Committee of administrators shall supervise the administration of BCCI through its Chief Executive Officer, the Court requested Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam, the learned Amicus Curiae to assist the Court in nominating the names of the administrators by suggesting names of persons with integrity and experience in managing a similar enterprise. Till then, the Court directed that the senior most Vice-President of BCCI shall perform the duties of the President, BCCI and the Joint Secretary shall perform the duties of Secretary. The matter was listed to be taken up on 19.01.2017 for nominating the names of the members of the committee of administrators. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 4, order dated 02.01.2017]

Case BriefsHigh Courts

Bombay High Court: While upholding an order passed by the Commissioner, Solapur Municipal Corporation wherein the petitioner was declared disqualified and his seat was deemed to have fallen vacant on the basis of invalidation of his caste claim by the caste scrutiny committee, the Division Bench comprising of Ranjit More and Anuja Prabhudessai, JJ. held that such invalidation will result in automatic disqualification and retrospective termination of election of candidate. The Court relying upon Kalpana Dilip Bahirat v. Pune Municipal Corporation, 2014 (15) SCC 654, further held that Commissioners of Municipal Corporation while declaring such candidates as disqualified, act in accordance with law and it cannot be said that they have no jurisdiction in this regard.

The petitioner has relied upon birth extracts of his father and uncle from Birth and Death Register of Village Badhole, two loan receipts given by his father to one Fulchand Heblekar and to one Basappa Aadake, and Khoti Receipt between his uncle and one Bhimu Patil to support his caste claim that he belongs to “Teli” caste. On perusal of birth and death registers of Village Nanhegaon the Court found that the petitioner and his forefather were resident of Village Nanhegaon and entries in birth and death registers of Village Badhole appeared to be suspicious. Also, it was noted that there was no signature of Petitioner’s father on the loan receipts and there was vast difference in Fulchand Heblekar’s and Basappa Aadake’s signatures made at the time of purchase of stamp and signatures made at the time of execution of the document. Therefore it was concluded that the receipts were bogus and fabricated. The Khoti receipt was not considered since it was on simple paper, not registered. Also, it was shown that the caste of petitioner’s brother, aunts, sons, and cousin brother was recorded in their school leaving certificates as “Lingayat”.

The petitioner also challenged the Circular dated 17th July, 2013, issued by the State Election Commission of Maharashtra by which the Municipal Commissioners were authorised to pass orders declaring any Councillor as disqualified on account of his caste claim being invalidated by the caste scrutiny committee. The Court refused to entertain the challenge noting that the conduct of the petitioner in the present case is such that he cannot be permitted to invoke the discretionary jurisdiction under Article 226 and the petition was accordingly dismissed. [Jagdish Revansiddha Patil v. State of Maharashtra, 2016 SCC OnLine Bom 9008 , decided on 21 October, 2016]

Case BriefsHigh Courts

Uttaranchal High Court: While deciding the issue that whether the Speaker of the Uttarakhand Legislative Assembly followed the principles of natural justice, and whether the criteria enshrined in Para. 2 (1)(a) of the Tenth Schedule of the Constitution was met while disqualifying nine rebel MLAs of Indian National Congress (INC), the bench of U.C Dhyani, J., dismissing the petitions, observed that from the facts and the documents presented before this Court, it is clear that the Speaker of the Legislative Assembly did not violate the principles of natural justice and in undue haste, did not disqualify the rebel MLAs. At the same time, the Court observed that by the conduct of the petitioners, it has been established that they had ‘voluntarily given up the membership of their political party’, thereby fulfilling the criteria of Para. 2(1)(a) of the Tenth Schedule.

The present petitions were filed against the Order dated 27.03.2016 issued by the Speaker of Uttarakhand Legislative Assembly disqualifying nine rebel MLAs of INC. The petitioners via their counsels C. A. Sundaram et al., argued that the Speaker showed undue haste while issuing the impugned Order thereby violating the principle of audi altrem partem.

The Court observed that the principles of natural justice cannot be put into a strait jacket. Relying on landmark decision of the Supreme Court on the same point, the Court stated that a quasi- judicial authority such as that of a Speaker is required to maintain a balance between ‘delayed justice’ and ‘hurried justice’. However there is nothing in the facts to show that the Speaker violated the principles of natural justice. Speaking of the criteria laid down on Tenth Schedule of the Constitution, the Court stated that while the petitioners beheld their act of defection to be an act of ‘dissent’, but for the Speaker the same amounted to fulfillment of the criteria laid down in Para. 2(1)(a) of Tenth Schedule of the Constitution. The Court also directed that the present decision of the Court shall “not come in the way of Speaker to review his own order, in accordance with law, if the petitioners are so advised to move for the same, on any of the grounds available to them in law.” [Subodh Uniyal v. Speaker Legislative Assembly, 2016 SCC OnLine Utt 465, decided on 09.05.2016]

Supreme Court

Supreme Court: Dismissing the decade old petition seeking disqualification of the Ministers of the Council of Ministers involved in serious and heinous crime, the constitutional bench of R.M. Lodha, CJ and Dipak Misra, S.A. Bobde, Madan B. Lokur and Kurian Joseph, JJ held that the decision should be left to the Prime Minister as it is a constitutional expectation from him that he would not choose a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers.

The Court heavily relied upon the background of the Constitution of India and the History of the country with the intent to plug some of the bleeding points in the working of the Constitution so that the high Constitutional functionaries may work it well. Taking into consideration that a question might arise regarding marking a distinction between an accused or convicted minister,  the Court was of the opinion that there can be no dispute over the proposition that unless a person is convicted, he is presumed to be innocent but the presumption of innocence in criminal jurisprudence is something altogether different, and not to be considered for being chosen as a Minister to the Council of Ministers because framing of charge in a criminal case is totally another thing and that framing of charge in a trial has its own significance and consequence.

In the present writ petition, which was filed in the wake of corruption and criminalization of politics, the petitioner and respondent were represented by Anil K. Jha and Paras Kuhad, respectively and Rakesh Dwivedi, K. Parasaran and T. R. Andhyarujina acted as amicus curie in the said matter. Manoj Narula v. Union of India, Writ Petition (Civil) No. 289 of 2005, decided on 27.08.2014.