Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. heard a petition that sought relief due to the infringement of the right to vote as the petitioner’s name was named was removed from the voter’s list. The Court stated that the relief sought by the petitioner had become infructuous. However, the Court stated that deletion of name from voter’s list is a serious matter and it must be dealt with proper care.

The petitioner, a resident of Thiruvananthapuram, had an electoral identity card issued by the Election Commission of India. Despite having voting rights, in the Lok Sabha elections 2019, his name was omitted from the voter’s list. The petitioner always had voting rights but his name was removed from the list on the grounds that he had ceased to be an ordinary resident of the said constituency. However, his family members continued to have their names in the voter list. He requested the respondent authority to restore his voting rights so that he could exercise his voting rights. But when no action was initiated by the respondent, he approached this Court for relief by way of filing the present petition.

Petitioner appeared in person and contended that he was residing in the same building ever since he had voting rights. He submitted that although he and his family had shifted to a temporary residence till the time repair was carried out in his original residence, his family members still had their name in the voter’s list while his name was omitted from the list.

Counsel for the respondent, Murali Purushothaman, contended that according to Sections 22 and 23 of Representation of the People Act, 1951 (hereinafter referred to as “the Act”) any new name could not be included in the electoral list after nominations had been filed in the respective constituencies. He contended that petitioner’s name was deleted on the ground that he shifted to a different residence. Moreover, the Election Commission had also published a draft electoral roll and asked for objections if any, but the petitioner did not submit his objection for deletion of his name.

The Court held that voting rights of a person are valuable rights and it cannot be taken away by any means. Section 22 of the Act stated that before removing any name from the voter’s list, it was the duty of Electoral Registration Officer to hear that person in respect of any action being taken. Court stated these provisions are based on principles of natural justice and must be strictly followed.

The Court directed the respondent to conduct a detailed enquiry in the matter and if necessary, take appropriate actions against the officers who removed the name of the petitioner from voters list. It was also directed that in the event of petitioner making an application, his name be restored in the voter’s list.

The writ petition was disposed of in the above terms.[A. Subair v. Chief Election Commissioner of Kerala, 2019 SCC OnLine Ker 1914, decided on 10-06-2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, JJ and Aniruddha Bose and Deepak Gupta, JJ has ordered a status quo until Tuesday on a plea filed by 10 dissident MLAs of Congress and JD(S) seeking a direction to the Assembly Speaker to accept their resignation and not proceed with the applications for their disqualification. The Court will again hear the matter on Tuesday.

The order on status quo was given after hearing counsels Mukul Rohtagi for the rebel MLAs and Abhishek Manu Singhvi for Speaker K R Ramesh Kumar.

The bench had on Thursday directed the Speaker to meet the rebel MLAs who were asked to give their resignations afresh in person. The speaker met them and took their resignations but did not take any decision saying he has to follow procedures and satisfy himself whether they were genuine and voluntary.
Rohatgi argued that the Speaker was answerable to the court, except under “certain circumstances”.

“He may not respond under certain sections and provisions, he is entitled to exemption,”

Chief Minister HD Kumaraswamy’s counsel Rajeev Dhavan objected to the submissions of the rebel MLAs that the Speaker acted in a mala fide manner. Singhvi contended that the rebel MLAs’ intention in tendering resignation was something different, and it is to avoid disqualification”.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has allowed 10 rebel MLAs of the Congress-JD(S) coalition in Karnataka to meet the assembly Speaker at 6 pm to convey to him their decision to resign. The Court has asked Karnataka Assembly Speaker to decide on the resignation of the MLAs during the course of the day.

The bench said that the decision taken by the Speaker has to be intimated on July 12 when the court takes up the matter again. It directed the Karnataka DGP to provide protection to the 10 MLAs from Bengaluru airport to the assembly after their arrival from Mumbai.

At the outset, the Court made it clear that it was passing orders on the 10 MLAs who were before it and not the others.

The 10 rebel MLAs had moved Supreme Court alleging that the Karnataka Assembly Speaker was not accepting their resignations.

The MLAs who have filed the petition are Pratap Gouda Patil, Ramesh Jarkiholi, Byrati Basavaraj, B C Patil, S T Somashekhar, Arbail Shivaram Hebbar, Mahesh Kumathalli, K Gopalaiah, A H Vishwanath and Narayana Gowda.

Senior advocate Mukul Rohatgi, appearing for the MLAs, submitted that there is a startling state of affairs in the Karnataka Assembly where 15 MLAs want to resign but the Speaker is not accepting their resignations.

He submitted that on July 6, when some rebel MLAs went to submit their resignations, the Speaker left his office through the back door.
Mukul Rohatgi also said one of the rebel MLAs was manhandled when he tried to reach the Speaker’s office on Wednesday.

He said the Karnataka Assembly will meet on July 12, but before that the ruling coalition has moved a disqualification application against the rebel MLAs.

“Instead of ordering for the floor test, attempt is made to disqualify the rebel MLAs. We want to resign and go to the public and seek re-election. … When the senior advocate said 15 MLAs have already tendered their resignation, the bench said “we will take note of only ten MLAs who are before us”.

As Rohatgi narrated the sequence of events from July 1, the bench orally observed “nothing surprises us“.

(Source: PTI)

Hot Off The PressNews

Supreme Court: 10 rebel Karnataka MLAs of Congress and JD(S) have moved the Supreme Court, alleging that the Assembly Speaker has been deliberately not accepting their resignations.

A bench headed by Chief Justice Ranjan Gogoi took note of the submission of senior advocate Mukul Rohatgi, appearing for the rebel MLAs, and assured him that it will see whether their petition can be listed for an urgent hearing tomorrow.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ dismissed a plea seeking direction to the Centre and the Election Commission to debar Congress President Rahul Gandhi from contesting Lok Sabha elections till the issue of his citizenship is decided.

The Court rejected the contention of the petitioners, who said that in a form along with the annual data of a UK-based company in 2005-06, it was allegedly mentioned that Rahul Gandhi is a British citizen. It said,

“If some company in some form mentions his nationality as British, does he become a British citizen.”

(Source: PTI)

Case BriefsHigh Courts

Madras High Court: A Bench of G.R. Swaminathan and T. Krishnavalli, JJ. refused to entertain a writ petition that challenged the decision of the Returning Officer whereby the petitioner’s nomination filed for contesting by-election was rejected.

The petitioner was a practicing lawyer wanting to contest the by-election for Ottapidaram reserved constituency to be held on 19-5-2019. His nomination was rejected on the ground that he failed to enclose the extract of electoral roll the original Community Certificate before official scrutiny time.

G. Thalaimutharasu, Advocate for the petitioner seriously faulted the conduct of the Returning Officer in hastily rejecting his nomination. Per contra, J. Padmavathi, Special Government Pleader supported the impugned decision.

The High Court found itself unable to agree with the arguments of the petitioner. Relying on the Supreme Court decisions in N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; and Manda Jaganath v. K.S. Rathnam, (2004) 7 SCC 492, the High Court noted: “Article 329 of the Constitution contains a blanket bar against entertaining such writ petitions.” Referring to Section 100 of the Representation of the People Act, 1951, it was held that if the petitioner’s nomination was improperly rejected, his remedy is to file an election petition before the Election Tribunal, which in this case will be the High Court. It was held further: “The petitioner will have to necessarily wait for the conclusion of the election process and thereafter, he can challenge the same.” Therefore, the writ petition was dismissed as not maintainable. [P. Singaravel v. Chief Electoral Officer, WP (MD) No. 11505 of 2019, Order dated 02-05-2019]

Case BriefsSupreme Court

Supreme Court: The Bench of AM Khanwilkar and Ajay Rastogi, JJ held that the provisions in the Andaman and Nicobar Islands (Panchayats) Regulation, 1994 under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No Confidence Motion’. As a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidence Motion against the Pramukh or Up­Pramukh, as the case may be.

The bench was posed with the question relating to

  • the inclusion or exclusion of the Member of the House of Parliament (MP) representing the Union Territory of Andaman and Nicobar Islands, who is also an ex­officio member of the Panchayat Samiti, for reckoning the quorum of a special meeting regarding motion of no confidence against the Pramukh of the Little Andaman Panchayat Samiti, it noticed,
  • whether he/she can exercise his/her vote on the ‘No Confidence Motion’ within the meaning of the provisions of Andaman and Nicobar Islands (Panchayats) Regulation, 1994 and the Andaman and Nicobar Islands (Panchayats Administration Rules) 1997.

Stating that it is a well-established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right, the bench said,

“neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of No Confidence’.”

The Court said that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representative (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidence Motion’ has   been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field.

“if a person has been elected to an office through democratic process and when such person  loses the confidence of the representatives who elected him, then those representatives should   necessarily have a democratic right to remove such an office bearer in whom they do not have confidence,will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997.”

[Seema Sarkar v. Executive Officer, 2019 SCC OnLine SC 639, decided on 01.05.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ has directed all the political parties who have received donations through Electoral Bonds to submit,

  • detailed particulars of the donors as against each Bond;
  • the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit.

to the Election Commission of India in sealed cover by May 30, 2019.

The aforesaid direction was given in order to ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties but that the same ensures adequate safeguards against the competing claims of the parties which are yet to be adjudicated.

In the matter that deals with a larger question involving transparency in political funding, the bench said

“the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an indepth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure, as per the schedule noted earlier.”

The Ministry of Finance, Department of Economic Affairs by Notification dated 2.1.2018 in exercise of powers under Section 31(3) of the Reserve Bank of India Act had promulgated a scheme called ‘The Electoral Bond Scheme, 2018’ whereunder an ‘electoral bond’ has been defined as “a bond   issued in the nature of promissory note which shall be a bearer banking instrument and shall not   carry the name of the buyer or payee.” The other provisions of the Scheme deal with the banks authorized to issue and encash the Electoral Bonds; persons entitled to purchase such bonds and the procedure for making an application for purchase of bonds and encashment of the said bonds.

It was contended before the Court that the said scheme has affected transparency in political funding inasmuch as in the annual contribution reports of political parties to the Election Commission there need not be any mention of the identity of the donors who have contributed to the coffers of the political parties through Electoral Bonds.   This, in turn, is contended   to   affect   the   citizens’   right   to   know   about   the contributions made to various political parties and the source of such contribution.

Attorney General KK Venugopal, appearing for ECI, had contended that the said scheme has been introduced to deal with the menace of unaccounted money coming into the country’s economy through political funding. It is to do away with the aforesaid menace that the amendments to the different statutes had been brought by the Finance Act, 2016 and 2017 and the Electoral Bond Scheme has been introduced. He said,

“the implementation of the measures will be tested by the results obtained in the course of the on­going general elections and the success thereof will be known only after the elections are over. The government must be allowed a free hand to implement measures in execution of policies framed and therefore it is premature for the Court to render any opinion on the issues raised or to pass any order/orders in the matter for the present.”

[Association for Democratic Reforms v. Union of India, WRIT PETITION (CIVIL) NO. 333 OF 2015, decided on 12.04.2019]

Hot Off The PressNews

Supreme Court: The Court has eserved its order on a PIL challenging the government’s electoral bond scheme for political funding. The bench headed by Chief Justice Ranjan Gogoi said it would pronounce its order tomorrow on the plea filed by NGO, Association of Democratic Reforms (ADR).

The NGO, which has challenged the validity of the scheme, has sought interim relief including that either the issuance of electoral bonds be stayed or the names of the donors be made public to ensure transparency in the poll process.

Attorney General K K Venugopal, appearing for the Centre, supported the scheme saying the purpose behind it is to eliminate the use of black money in elections. Adding that the court can scrutinize the scheme after elections, AG said

“So far as the electoral bond scheme is concerned, it is the matter of policy decision of the government and no government can be faulted for taking policy decision”

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Court has agreed to hear on April 8 advocate Aman Panwar, spokesperson of the Congress’s plea seeking stay on release of a biopic on Prime Minister Narendra Modi.

Senior advocate A M Singhvi, appearing for petitioner advocate Aman Panwar, spokesperson of the Congress, said two High courts have refused to interfere with the release of the movie starring Vivek Oberoi.

The Indore bench of the Madhya Pradesh High Court had on Wednesday rejected a plea seeking ban on the release of the movie, ‘PM Narendra Modi’.  The Bombay High Court had also on Monday disposed of a plea seeking deferment of the release of the biopic, saying the Election Commission will deal with the issue.

Singhvi submitted that the release of the movie may affect free and fair election as mandated in the Constitution. He said the movie was slated to be released on April 5 but there were some media reports on Thursday which said the release has been deferred by a few days.

The Court will hear the matter on April 8.

(Source: PTI)

Case BriefsHigh Courts

Allahabad High Court: Three election petitions were filed before the bench of Siddhartha Varma, J. under Section 12-C of the U.P. Panchayati Raj Act, 1947 against the election process with regard to the election of a Pradhan of Gram Panchayat where Manju, respondent was declared elected.

Petitioner prayed for re-counting of the votes. The dispute before the Court was that all the three petitions prayer was different and one of the petitioners wanted to produce evidence for another petition for a prayer he had not asked for. The petitioner pleaded that before any order for recounting was passed, it had to be deciphered as to who were the voters who were dead and their names had entered in the voters’ list. Petitioner again filed an application that the decision on the application filed by petitioner had to precede the adjudication of an application for recounting. Application for recounting was allowed and was challenged in this Court where writ petition was allowed and order was quashed. Respondent contended that the petitioner ought to limit herself with the issues mentioned in her election petition and cannot be allowed to lead evidence for another election petition though three election petition were being dealt with together. Thus, she could not have asked for recounting of votes. Petitioner had submitted that her application should be decided prior to recounting thus it suggests that she cannot lead evidence for recounting of votes.

High Court was of the view that the Tribunal correctly passed the order rejecting the application of the petitioner. The issues presented before the Court were the same issues mentioned in the election petitions therefore, the order of deciding the issues did not matter. Petitioner from the beginning was wanting her application to be decided thus ought not to have an interest in the application of another applicant praying for recounting. Therefore, on finding no merits in the case this petition was dismissed. [Sangeeta v. Upziladhikari, 2019 SCC OnLine All 1786, Order dated 01-02-2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjiv Khanna and Deepak Gupta, JJ has has asked 21 opposition parties to file response over the Election Commission’s affidavit in a case where the Parties sought direction that 50 per cent EVM results should be matched and cross-checked with Voter Verified Paper Audit Trails (VVPAT) before the declaration of results in the upcoming General Elections. The bench directed the 21 opposition parties (petitioners) to file a rejoinder to the affidavit of the poll panel before April 8.

On Friday, the Election Commission (EC) of India, in an affidavit, told the court that there is no need to increase VVPAT count to match it with EVM. It had said that the existing system is full-proof and more VVPAT  count means 6 days delay in the counting of votes in Lok Sabha election. The court had directed EC to file an affidavit on why physical verification of VVPATs should not be extended to more than one polling station per Assembly segment.

The court is hearing a plea filed by 21 opposition leaders led by Andhra Pradesh Chief Minister N Chandrababu Naidu, seeking a random count of VVPAT slips of at least 50 per cent EVMs in each Assembly constituency before the declaration of Lok Sabha election results. The petition has challenged the decision of the Commission to check VVPATs of only one randomly selected booth of a constituency. The petitioners have said that this will account only for 0.44 per cent of the votes polled.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The Court has ssued a notice to the Election Commission regarding alleged non-implementation of the top court’s past order of publishing the criminal record of candidates in newspapers. The bench Rohinton Fali Nariman and Vineet Saran, JJ sought the Election Commission’s response within a week.

The contempt petition is filed by lawyer and BJP leader, Ashwini Upadhyay. Upadhyay, in his petition, claimed that the EC had allegedly failed to enforce the Court’s earlier order of September 25, 2018 that said that it is mandatory for candidates to publish in newspapers
about the pending criminal cases against them during their filing of nomination paper during the election.

Upadhyay, in his petition, claimed that the ECI had allegedly failed to ensure the disclosure of criminal antecedents and the Central government has not made a law to debar criminals from contesting the elections.

Seven phase elections in the country will begin on April 11 and conclude on May 19. Counting of votes will take place on May 23.

(Source: ANI)


Also read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Hot Off The PressNews

Supreme Court: The Election Commission of India (ECI) has told the bench of S A Bobde and S A Nazeer, JJ that it will hold by-elections on vacant assembly seats of Tiruparankundram, Ottapidaram and Aravakurichi in Tamil Nadu within a reasonable time. The Court was hearing a plea filed by the DMK seeking a direction to the poll panel for holding the by-elections on these three vacant assembly seats.

The bench, while taking on record the submissions of the ECI’s counsel, disposed of the petition and observed that the court cannot determine the timing of elections and it was for the poll panel to decide.

The counsel appearing for the Dravida Munnetra Kazhagam (DMK) had earlier told the apex court that there are 21 vacant assembly seats in Tamil Nadu but the poll panel has notified by-polls for only 18 seats. He had said that by-polls on 18 vacant seats are scheduled to be held on April 18 along with the Lok Sabha polls in the state. It was argued that ECI should be asked to hold the by-elections on the remaining three assembly seats along with the general elections.

On March 15, the Court had asked the ECI to respond to the DMK’s plea seeking by-polls for Tiruparankundram, Ottapidaram and Aravakurichi assembly constituencies. The poll panel had earlier told the court that the by-polls for three assembly seats were not announced as some election petitions were pending in the Madras High Court.

(Source: PTI)

Hot Off The PressNews

Supreme Court: Refusing to acknowledge the claim of the TTV Dhinakaran-led faction over ‘pressure cooker’ as common election symbol, the Court has directed the Election Commission (EC) to consider granting common free election symbol to the candidates of the Dhinakaran-led faction for the upcoming Lok Sabha polls and assembly by-elections in Tamil Nadu and Puducherry. The Court that the said direction was passed to ensure level-playing field and free and fair elections.

The 3-judge bench of Ranjan Gogi, CJ and Deepak Gupta and Sanjiv Khanna, JJ also made it clear that its order asking the EC to consider granting common election symbol would not amount to granting recognition to his faction as a political group and its candidates would be treated as Independents for all practical purposes. It said that it was the duty and the rights of the Election Commission only to consider granting registration to Dhinakaran’s outfit as a political party and it will be done in due course by the poll panel.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Supreme Court has agreed to hear the plea of 21 opposition leaders, led by Andhra Pradesh Chief Minister N Chandrababu Naidu, seeking that VVPAT slips of at least 50 per cent of voting machines in each assembly constituency be checked randomly in the Lok Sabha elections. The leaders from six national and 15 regional parties, claiming to represent 70-75 per cent of the population, have also sought the setting aside of the Election Commission of India (EC) guideline on random verification of one assembly seat.

The 3-judge bench of Ranjan Gogoi, CJ and Deepak Dupta and Sanjiv Khanna, JJ said that notice be issued to the EC, and the Chief Election Commissioner (CEC) should depute an officer to assist the court in the matter.

The parties include the Congress, Nationalist Congress Party, Aam Aadmi Party, CPI (Marxist), CPI, Trinamool Congress, Samajwadi Party, Bahujan Samaj Party, Rashtriya Lok Dal, Loktantrik Janata Dal and the Dravida Munnetra Kazhagam (DMK). The petition has sought quashing of the EC guideline which provides that random verification of Voter Verifiable Paper Audit Trail (VVPAT) slips shall be conducted in one polling stations in case of assembly election and in each assembly segment in case of Lok Sabha election. It also sought a further direction to the election commission for random verification of at least 50 per cent electronic voting machines (EVM) using the VVPAT per assembly segment/ assembly constituency.

The Court will next hear the matter on March 25, 2019.

(Source: PTI)

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.D. Rajan, J. declared the election of one K.M. Shaji as void, for having used corrupt practices and unduly influencing voters by creating a religious divide.

Petitioner filed the instant petition to challenge the election of respondent to the Azheekode Assembly Constituency. His case was that: (i) respondent, being a Muslim candidate, had appealed to voters belonging to Muslim community to vote for him on the ground of religion, and (ii) he had distributed pamphlets accusing petitioner of having an extra-marital relationship with Ms. Saritha (an accused in the solar scam case – a major issue in 2016 Kerala General Assembly Election).

The Court noted that the respondent had appealed to Muslim voters to refrain from voting for petitioner on the ground that he was a non-Muslim. Pamphlets as to petitioner’s personal life were false and published with the intention to defame him. It was observed that publication of such pamphlets had created misunderstanding among the voters and affected petitioner’s election prospects.

The Court noted Apex Court’s opinion in Krishnamoorthy v. Sivakumar, 2015 (3) SCC 467 where it was held that any direct or indirect interference/attempt to interfere on part of a candidate amounts to undue influence.

It was opined that the basic principle underlying Section 123(3) of the Representation of People Act, 1951 (RP Act) is elimination of divisive factors such as religion, caste etc. from the electoral process. Candidates cannot tell the electors that their rivals are unfit to act as representatives of people on the ground of their religion as such an appeal would be on the ground of religion.

In view of the above, the petition was allowed and respondent’s election was set aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act for having committed corrupt practice under Sections 123(3) and 123(4) of the RP Act. He was also disqualified from contesting in any election for a period of six years and subjected to payment of Rs. 50,000 as cost to the petitioner.

Lastly, the Court directed its finding in relation to respondent’s corrupt practice to be forwarded to the President of India for appropriate action under Section 8A of the RP Act; and also directed the High Court to intimate substance of its decision to the Election Commission and the Speaker of the Kerala Legislative Assembly.[M.V. Nikesh Kumar v. K.M. Shaji,2018 SCC OnLine Ker 4953, decided on 09-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P. Somarajan, J. held that submission of more than three nomination papers by a candidate cannot be a ground for rejection of his nomination under the Kerala Panchayat Raj Act, 1994.

Background of the matter was that a candidate’s election was challenged by the petitioner on the ground of non-compliance of requirement under Section 52(6) of the Act stating that instead of three nomination papers, four nomination papers were submitted by the candidate and hence his nomination had been improperly accepted by the returning officer. 

Election petition setting aside the said candidate’s election was allowed by the learned Munsiff but this order was reversed by the appellate court. The order of appellate authority was challenged in the instant revision petition.

The sole question for Court’s consideration was as to whether submission of more than three nomination papers would vitiate the election of returned candidate.

 It was held that mere irregularity in respect of a nomination paper or a defect which is not substantial in nature shall not be a ground for rejection of nomination. Sections 55(2) and 55(3) of the Act clearly states that it is not permissible to reject a nomination paper merely on any irregularity or a defect which is not substantial in nature. It also relied on the decision in Dadi Veerahadra Rao v. Returning Officer, 2005 SCC OnLine AP 361 to hold that in view of proviso to Section 52(6) of the Act, in a case where the returning officer is presented more than three nominations by or on behalf of any candidate, one of the nominations can be deemed to be rejected.

In view of the above, the Court held that submission of four nominations instead of three by the candidate in question was only an irregularity which would not cause any substantial defect either in the acceptance of nomination or in the conduct of election. As such, the revision petition was dismissed.[K.G. Kuriakose v. Mohanan Velayudhan,2018 SCC OnLine Ker 4912, decided on 23-10-2018]

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]

Hot Off The PressNews

Supreme Court: Refusing to interfere with the appointment of KG Bopaiah as the pro-tem speaker, the 3-judge bench of Dr. AK Sikri, SA Bobde and Ashok Bhushan, JJ said:

“Law can’t direct the Governor to appoint a particular person as Pro-tem Speaker. Unless convention becomes legal norm, it can’t be enforced by Court.”

The Bench had assembled on a non-working day to hear the interim petition filed by Congress-JD(S) against the appointment of BJP MLA Bopaiah as the protem speaker after the Court had directed that the Floor Test be conducted before a protem speaker. The Court had, on 18.05.2018, had asked newly sworn-in Karnataka Chief Minister BS Yeddyurappa to take a floor test at 4PM today.

While the Court had refused to interfere with the appointment of the protem speaker, it directed the live broadcast of the floor test and said:

“Live broadcast of Floor Test would be the best way to ensure transparency of proceedings.”

Earlier, Congress-JDS had approached the Supreme Court at late hours of Wednesday to stall the swearing in ceremony of BJP candidate BS Yeddyurappa as the Karnataka Chief Minister after the Karnataka Governor Vajubhai Vala asked him to seek trust votes in the floor test within 15 days of his swearing in. Without passing any order staying the oath ceremony of the new Karanataka Chief Minsiter, the Court said:

“In case, he is given oath in the meantime, that shall be subject to further orders of this Court and final outcome of the writ petition.”

(With inputs from ANI)