Supreme Court: The 3-judge bench of SA Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ, while upholding 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, explained the true import of the term “duly nominated”.
Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. 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.
[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