Supreme Court: The 3-judge bench of SA Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has upheld Allahabad High Court’s order dismissing the petition challenging the election of Prime Minister Narendra Modi to the 17th Lok Sabha from 77th Parliamentary Constituency (Varanasi), held in April – May 2019.

Facts leading to this order

  • The Election Petition was filed by ex-BSF Jawan Tej Bahadur challenging the rejection of his nomination papers and had also alleged that nomination of PM Modi was wrongly accepted for want of disclosure of certain facts.
  • Tej Bahadur, a former employee of the Border Security Force, was dismissed from service on 19.4.2017.
  • He filed two nominations, one on 24.4.2019 and another on 29.4.2019. The nominations were found to be invalid by the returning officer for want of a certificate to the effect that the appellant has not been dismissed for corruption or disloyalty to the State as required by Section 9(2)1 read with Section 33 (3)2 of the Representation of the People Act, 1951.
  • In the application for dismissal of the petition filed by PM Modi, it was contended that the petition does not disclose any cause of action and the appellant had no locus to file the petition in the absence of a certificate.
  • The Allahabad High Court after hearing parties, by a detailed order dismissed the Election Petition on the ground that Tej Bahadur had no locus to challenge the election of PM Modi from the Varanasi Parliamentary Constituency since he was neither an elector for such constituency nor was he a candidate.

What the Supreme Court said 

The Court heard and decided the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he is candidate and has a right to question the election.

On failure to produce certificate showing that the appellant was not dismissed on the basis of corruption or disloyalty to the State

The Court noticed that Clause (6) of Part IIIA of Form 2A of the nomination paper contains a query whether the candidate was dismissed for corruption or for disloyalty while holding office under the Government of India or Government of any State. In the first nomination form filed by the appellant on 24.4.2019, the appellant stated ‘Yes’ against this query and disclosed the date of his dismissal as 19.4.2017. In the reply to the same query in the second nomination form filed by him on 29.4.2019, he stated ‘No’. The Returning Officer issued two notices on 30.4.2019 referring to the different answers in the two nominations.

The notices further pointed out that the appellant had placed on record evidence that he was dismissed from the service of Government of India within five years before the date of the nomination. But that his nomination form was not accompanied by the requisite certificate. He was required to submit a certificate of the Election Commission to prove that he was not dismissed from service on the ground of corruption or disloyalty to the State as required under Section 9 (2) and Section 33 (3) of the Act. He was given time up to 11:00 am on the next day i.e. 01.05.2019 by both notices to furnish such a certificate from the Election Commission. This time was given in accordance with the provision of Sub-section (5) of Section 363 which allows a candidate to rebut any objection not later than the next day but one.

The Court, however, noticed that in spite of repeated query, the appellant failed to point out any evidence on record to show that the appellant had demanded time to produce the certificate not later than the next day but one following the date fixed for scrutiny.

On the date of filing the nomination the appellant did not possess the required certificate which was not produced along with the nomination paper. In the oath letter dated 30.04.2019 relied upon by the learned counsel for the appellant, he merely justifies the absence of requisite certificate on the ground that he was not notified earlier and that he has never been dismissed on the basis of corruption or disloyalty to the State. However, the appellant neither possessed the required certificate on the date of the filing the nomination, at the time of scrutiny, on the next day but one following the date fixed for scrutiny or even at the time of the filing the Election Petition.

On appellant’s locus standi

Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. Admittedly, the appellant is not an elector registered in the Varanasi constituency since he is enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana.

The term ‘candidate’ is defined in Section 79 (b)4 of the Act. The first part of definition is intended to cover a person who has been duly nominated as a candidate. Inter-alia the second part covers a person who considers himself entitled to have been duly nominated as a candidate.

Considering the need to explain the true import of the term “duly nominated”, the Court noted that the requirement of Section 33(3) that a nomination of a dismissed officer must be accompanied by a certificate that he was not dismissed on the ground of corruption or disloyalty to the State must be read as obligatory. It is couched in a language which is imperative and provides for a certain consequence viz. that such a person shall not be deemed to be a duly nominated candidate.

“The word ‘deemed’ in this provision does not create a legal fiction. It clarifies any doubt anyone might entertain as to the legal character of a person who has not and states with definiteness that such a person shall not be deemed to be duly nominated.”

It was hence, held that it would be absurd to construe the legislative scheme as permitting a person who has not filed his nomination in accordance with Section 33 (3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate.

The Court, hence, noticed that

“Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate.”

Further, Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition.

Stating that the Election petition was rightly nipped in the bud, the Court said,

“We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action.”

[Tej Bahadur v. Narendra Modi, 2020 SCC OnLine SC 951, decided on 24.11.2020]

*Justice SA Bobde, CJI has penned this judgment 

For appellant: Advocate Pradeep Kumar Yadav

For Respondent: Senior Advocate Harish N. Salve

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