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,2018 SCC OnLine SC 1617, decided on 25-09-2018]

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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)

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Supreme Court: In the high-voltage political drama that has reached the highest Court of the nation, the 3-judge bench of Dr. AK Sikri, SA Bobde and Ashok Bhushan, JJ has asked newly sworn-in Karnataka Chief Minister BS Yeddyurappa to take a floor test at 4PM tomorrow to prove his majority. Justice Sikri said:

“Better to hold floor test on Saturday so that nobody gets any time.”

Senior Advocate Mukul Rohatgi, appearing for BJP, argued that BJP was confident that it will get the majority & might even get the support from few Congress and JDS MLAs. Senior Advocate Abhishek Manu Singhvi, appearing for Congress-JD(S), said “BJP is just saying they have the majority without any specific number and names whereas we had given the names and numbers, how could Governor had invited Yeddyurappa to form the Government.”

Stating that floor test is the best option in the given situation, the Court said that the larger question of law on how should Governor invite a person to form the Govt can be settled here later.

Justice Sikri said:

“It’s just the number game, who enjoys the majority should be invited to form the Government.”

The Court, hence, ordered the appointment of a pro tem speaker and also stayed the nomination of any Anglo Indian MLA before the floor test.

Source: twitter.com/arvindgunasekar

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Supreme Court: In yet another high-profile election drama, when the Congress-JDS 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, the 3-judge bench of Dr AK Sikri, SA Bobde and Ashok Bhushan, JJ directed:

“As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case.”

In the hearing that began at 01:45 AM, Congress-JDS contended that despite presenting the list of 116 MLAs, governor Vajubhai Vala has invited the BJP which has 104 MLAs to form the government and has given relatively longer time of 15 days to prove the majority on the floor of the House.

Below are the highlights of the midnight drama that transpired post Karnataka Election:

  • Senior Advocate Abhishek Manu Singhvi (For Congress-JDS):
    • There are innumerable instances where combination of post-poll group was called despite there was a different single largest party, one such instance being the Goa Elections Goa where BJP outnumbering single largest party was called to form the Government and the Supreme Court had upheld this.
    • We are challenging the act of Governor not calling us. Should a person be given 15 days for proving majority? Governor can’t negate democracy and after the swearing in happens I can’t come to Supreme Court.
    • 104 ahead of 116 is adding insult to the injury. Giving 15 days is encouraging unconstitutional sin of poaching.
  • Bench: it is to be considered whether the Court can restrain a Governor,
  • Singhvi: Governor action is subject to judicial review. The argument is court should not issue injunction and judicial review is not the question.
  • Bench: We don’t even have the letter other party has written to governor.  How can we decide?
  • Singhvi: In Meghalaya, Manipur and Goa, Congress was the single-largest party but BJP and other parties were invited to form Government. Governor’s exercise of Government duty is under judicial review. Court can question Governor. Supreme Court can defer the swearing-in.
  • Bench: You want us to scrutinise discretion of governor but you don’t have letter given to governor which found basis for inviting BJP.
  • Singhvi: Governor doesn’t give any reason in calling BJP. Claim of BS Yeddyurappa is leader of BJP whereas Kumaraswamy is claiming Congress support. Unless Supreme Court sees Mr Yeddyurappa’s letter to the Governor, the court can defer the swearing-in. On what basis the governor invited BS Yeddyurappa.

_____________________________________________________________________________

  • Attorney General KK Venugopal (For BJP): Defection is one member crosses to other party. Defection law won’t apply before he is swearing in as MLA.
  • Bench: You mean before swearing in MLAs can switch sides? In a case like this how you will have more numbers when the other side has already given 116 to Governor. JDS and Congress outweigh BJP. In a situation like this on what basis Mr Yeddyurappa has staked claimed. The arithmetic defies in what way he was invited to form Government.
  • AG: Even if swearing-in takes place it is reversible. Once the floor test takes place real picture will be known.
  • Bench: Why 15 days were given by the governor?
  • AG: It is governor’s decision. Waiting for 15 days heavens will not fall. What’s the purpose of stopping the swearing-in? Let the floor test take place.
  • Bench: Your argument is floor test will fail.
  • AG: We don’t know.
  • Bench: What’s bothering us is the fluid situation.
  • AG: The the time given to BJP for proving majority can be reduced to seven days

_____________________________________________________________________________

  • Former Attorney General and Senior Advocate Mukul Rohatgi (For BJP): This case should have never been taken up at midnight.
  • Bench: On what basis you are claiming?
  • Rohatgi: 
    • Heavens won’t fall if someone is sworn in. Last time Supreme Court heard in night, the case related to hanging of Yakub Memon.
    • Congress wants injunction and wants governor not to discharge his function. Action of swearing can always be reversed by Supreme Court.
    • Question is can court stop governor from discharging his constitutional duty? Can Supreme Court stop President from signing warrant of appointing judges? Job of governor is to give oath – whether right or wrong.
    • Supreme Court can’t ask governor to file affidavit and can’t issue notice.
  • Bench: Is this your interpretation that governor action amenable but the governor as individual not answerable to court?
  • Rohatgi: 
    • Yes. Governor can’t be stopped to do his job. It is unheard of.
    • Supreme Court can reduce time period from 15 to 10 or 7 days for BJP to prove majority.

_____________________________________________________________________________

  • Bench: Swearing in will go on.
  • Singhvi: Don’t stay the swearing-in but defer it for two days. Defer swearing-in for at least till 4.30 and ask Mr Yeddyurappa to produce the letter he gave to the governor.
  • Bench: This petition is a subject of hearing later on.

Supreme Court issued notice to BS Yeddyurappa and other respondent’s and listed the matter for further hearing on 18.05.2018. The Court, in it’s order, said:

“it is necessary to peruse the letters dated 15th May, 2018 and 16th May, 2018 submitted by the respondent No.3 to the Governor which find a mention in the communication dated16th May, 2018 of the Hon’ble Governor.”

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.”

[Dr. G. Parmeshwara v. Union of India, WRIT PETITION (CIVIL) Diary No.19482/2018, order dated 17.05.2018]

(With inputs from NDTV)

Case BriefsHigh Courts

Delhi High Court: Indermeet Kaur, J refused to interfere with the Election Commission’s order dated 17.11.2017, wherein it was held that the group led by Nitish Kumar has demonstrated overwhelming majority support in the legislature wing as well as the majority in the National Council of the Party and hence, it should be recognised as the Janata Dal (United) [JD(U)] and hence,  entitled to use the reserved symbol ‘Arrow’ of the Party as a recognised State Party in Bihar.

The JD(U) battle over the Election symbol, that arose after Bihar Chief Minister Nitish Kumar ended his ‘Mahagathbandhan’ i.e. the alliance with the non-BJP parties and decided to join hands with BJP, had intensified in the light of the upcoming Gujarat elections. JD(U) member and Gujarat MLA Chhotubhai Amarsang Vasava had challenged the EC order before the High Court.

Chamber 20A, that represented Nitish Kumar, told us that the Court accepted the submission that the writ was not maintainable under Article 329 of the Constitution and hence, refused to interfere with the short order of the EC. The Court said that it correctly relies upon the ruling in Sadiq Ali v. Election Commission of lndia, (1972) 4 SCC 664. The detailed order of the EC will be pronounced on 27.11.2017. [Chhotubhai Amarsang Vasava v. Election Commission of India, W.P.(C) 10395/2017, order dated 23.11.2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

Election Commission of India: Settling the controversy that arose after Bihar Chief Minister Nitish Kumar ended his ‘Mahagathbandhan’ i.e. the alliance with the non-BJP parties and decided to join hands with BJP, the Election Commission of India (EC) held that the group led by Nitish Kumar has demonstrated overwhelming majority support in the legislature wing as well as the majority in the National Council of the Party and hence, it should be recognised as the Janata Dal (United) [JD(U)] in terms of Paragraph-‘l5 of the Symbols Order. EC also said that JD(U) was entitled to use the reserved symbol ‘Arrow’ of the Party as a recognised State Party in Bihar.

The corum of Chief Election Commissioner A.K. Joti, along with Election Commissioners Sunil Arora and OP Rawat, was hearing the application filed by Chhotubhai Amarsang Vasava wherein he had alleged that the alliance of the group led by Nitish Kumar with BJP was against the principles of the Party and that his group should be allotted the ‘Arrow’ symbol. The matter was heard on urgent basis in the light of the upcoming Gujarat Legislative Assembly Elections.

Senior Advocate Kapil Sibal, appearing for Chhotubhai Vasava, submitted that the Commission should look into the numerical strength of the National Council of the Party, as constituted in 2013, and which consisted of 1098 members, and who attended the National Convention of the Party on 23-04-2016. On the other hand, Senior Advocate Rakesh Dwivedi, appearing for Nitish Kumar, submitted that the present strength the National Council of the Party consisted of 195 members as reconstituted on the basis of the organizational elections held in October,2016, out of which 138 members had filed individual affidavits showing support to the Nitish Kumar led group.

Applying the principle of test of majority support in the organisational and legislative wings laid down by Supreme Court in Sadiq Ali v. Election Commission of lndia, (1972) 4 SCC 664,  EC recognised Nitish Kumar led group as JD(U) and allowed it to use the symbol ‘Arrow’ in the upcoming Gujarat Elections. [Chhotubhai Amarsang Vasava v. Nitish Kumar, Dispute Case No. 5 of 2017, order dated 17.11.2017]

Case BriefsSupreme Court

Supreme Court: In the controversy relating to right to the symbol allocated by the Election Commission of India to the AIADMK, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ asked the Election Commission of India to commence the hearing and dispose of the proceedings expeditiously, preferably by 10th November, 2017.

TTV Dinakaran, the petitioner, had claimed that he is authorised to have the symbol and the contesting respondents claim to the contrary. Senior counsel Ashok Desai, appearing for the petitioner had argued that a number of affidavits have been filed by the respondents and therefore, time is required to advert to the same and further it is necessary to refute the same. On the contrary, Senior Counsel Mukul Rohatgi, appearing for the respondents had argued that the affidavits have been filed on the basis of the directions issued by the Election Commission of India.

Refusing to go into the veracity of the affidavits, thee Court said that the Election Commission has the authority under the Representation of People’s Act, 1951 and Election Symbols (Reservation and Allotment) Order, 1968 to decide who is entitled to retain the symbol in case of dispute. [TTV Dinakaran v. B. Ramkumar Adityan, 2017 SCC OnLine SC 1199, order dated 06.10.2017]

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Supreme Court: Refusing to stay the use of the ‘None of the Above’ (NOTA) option in the Gujarat Rajya Sabha polls that are to be held on August 8, 2017, the Court asked the Gujarat Congress that why they were so late in filing the plea against NOTA when the Election Commission had issued the Notification in January, 2014.

The NOTA option, that will be introduced for the first time in the Gujarat Rajya Sabha polls, was directed to be included on the ballot paper or Electronic Voting Machines by Supreme Court in PUCL v. UOI, (2013) 10 SCC 1. The Court, in the said judgment, recognised the right not to vote and said that introduction of NOTA option will compel the political parties to nominate a sound candidate as by using NOTA option, the voter will have the right to reject all candidates. The Court said that this right was necessary for not only ensuring free and fair elections but also encourage the people in participating in the elections as many people tend to avoid voting as they not find any candidate worthy of their vote.

Source: ANI

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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

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Supreme Court: In the petition seeking E-voting rights for the NRIs, the Central Government told the Court that it was willing to amend the Representation of the People Act, 1951 in order to give the option of E-voting to NRIs. The Court has given 2 weeks time to the Centre to respond as to what changes will be made in the Act.

On 15.07.2017, the bench of J.S. Khehar, CJ and Dr. D. Y. Chandrachud asked the Central Government to apprise it within a week as to whether it is going to amend the election law or rules for enabling non-resident Indians (NRIs) to vote in elections in India by way of E-voting.

Source: ANI

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Supreme Court: The bench of J.S. Khehar, CJ and Dr. D. Y. Chandrachud asked the Central Government to apprise it within a week as to whether it is going to amend the election law or rules for enabling non-resident Indians (NRIs) to vote in elections in India by way of E-voting

The Centre and the Election Commission submitted before the Court that they have agreed to the proposal in principle and the only issue is the ways to effect it and that NRIs can be allowed to vote through postal ballot by either changing the Representation of the People Act, 1951 or by amending the rules made under the Act.

The Court was hearing the petitions filed by NRIs Nagender Chindam and Shamseer VP.

Source: PTI

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]