Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Hima Kohli and CT Ravikumar, JJ has referred, the matter relating to promise of freebies by political parties as a part of their election manifesto or during election speeches, to a larger Bench after observing that,

“Freebies may create a situation wherein the State Government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy. In the same breath, we should remember that such freebies are extended utilizing tax payers money only for increasing the popularity of the party and electoral prospects.”

The petitions have been filed on the premise that such pre-election promises, which have a largescale impact on the economy of the State, cannot be permitted. These pre-election promises are being made by political parties without any assessment of the financial implications on the State is nothing but an attempt to attract the vote bank. This goes against the spirit of responsible electioneering and is adversely affecting free and fair elections. This severely affects the level playing field between the different political parties. The money that is being paid by the taxpayers is ultimately being misused for political parties/candidates to gain or retain power.

Solicitor General Tushar Mehta submitted before the Court that the Union of India has a very limited role when it comes to this issue. Even the Election Commission of India has limited scope to interfere in such promises which are being made by political parties/candidates. Hence, it was suggested that the Court may constitute a Commission to consider the issue.

Some political parties objected the very maintainability of these petitions on the ground that the issues raised in these petitions relate to policy or fiscal decisions of the State, which decisions are clearly outside the scope of the Court’s jurisdiction. Submitting that the issue must be left open to the political parties, it was argued,

“It is unimaginable that any Government or Court can prescribe or curtail the rights of political parties to make such promises or announcement of schemes. The political parties which are responsible for running of the Governments are conscious and aware of the problems of the people. It was, therefore, contended by the interveners to leave the issue open to the political parties.”

Some intervenors also argued that all promises cannot be equated with freebies as they relate to welfare schemes or measures for the public good. Not only are these a part of the Directive Principles of State Policy, but are also a responsibility of the welfare state.

Senior Advocate Kapil Sibal, who’s opinion was sought by the Court, was initially of the opinion that this is a serious issue which needs to be tackled in some manner. However, subsequently, he also expressed his doubts about the appropriateness of judicial intervention on the issue.

Taking note of the issue and the submissions, the Court observed,

“There can be no denying the fact that in an electoral democracy such as ours, the true power ultimately lies with the electorate. It is the electorate that decides which party or candidate comes to power, and also judges the performance of the said party or candidate at the end of the legislative term, during the next round of the elections.”

The Court stressed on consideration of the worry of the petitioners that under the guise of electoral promises, fiscal responsibility is being dispensed with, must also be considered.

It is important to note that in S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659, the Court held that the preelection promises do not fall within the ambit of corrupt practices as specified under Section 123 of the Representation of the People Act, 1951, and issued directions to the Election Commission of India regarding framing of certain guidelines, in the absence of any legislative enactment covering the field.

In the case at hand, it was argued before the Court that the reasoning in the S. Subramaniam Balaji judgment is flawed as it has not considered various provisions of the Representation of the People Act, 1951 and that it also incorrectly implies that the Directive Principles of State Policy can override the fundamental rights under Part III of the Constitution, which is against the law settled by a Constitution Bench of this Court in  Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

The Court, hence, held that the issue requires an extensive hearing before any concrete orders can be passed.  It hence, framed the following issues and referred the matter to a 3-judge bench as the judgment in S. Subramaniam Balaji was delivered by a two-Judge Bench:

  1. What is the scope of judicial intervention with respect to the reliefs sought in the present batch of petitions?
  2. Whether any enforceable order can be passed by this Court in these petitions?
  3. Whether the appointment of a Commission/Expert Body by the Court would serve any purpose in this matter? Additionally, what should be the scope, composition, and powers of the said Commission/Expert Body?
  4. Whether the judgment in S. Subramaniam Balaji requires reconsideration?

[Ashwini Kumar Upadhyay v. Union of India, 2022 SCC OnLine SC 1098, order dated 26.08.2022]

Chhattisgarh High Court
Case BriefsHigh Courts


Chhattisgarh High Court: In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right.

The present revision petition was preferred challenging the order passed by the District Judge, Baikunthpur, District Koria whereby petition of Rajkishan Mahto ‘respondent 1' challenging the election of Sapandeep Mahto ‘petitioner' as returned candidate as Ward Councillor of Manendragarh Municipality on the ground of non-disclosure of offences in his nomination paper has been allowed and the result declaring the petitioner herein as Councilor was held to be void.

It was alleged that the petitioner failed to disclose criminal antecedents, as required under Form-3A, according to Rule 25-A of Chhattisgarh Nagar Palika Election Rules, 1994, (‘the Rules, 1994') as amended on 8-11-2019, vide Notification No. F-1-5/2014/18.

Counsel for petitioner submitted that there are no such mandatory provisions requiring disclosure of acquittal cases. Thus, Rule 28 of Rules, 1994 does not refer to consequences of Rule 25-A, so nondisclosure of offences as required under Rule 25-A is not substantial in view of disqualification prescribed under Section 35 of the Chhattisgarh Municipality Act, 1961 and only for offences enumerated under Section 35-(h), (hh) and (hhh), no other offence has been mentioned and respondent 1 has no such case that the petitioner has been found in such category, therefore, the impugned order is not sustainable.

The Court noted that Chhattisgarh Nagar Palika Nirvachan Niyam, 1994 was amended and Rule 25-A was inserted, according to which, it is mandated that under the provision of sub-rule (1) of Rule 25, every candidate who is submitting his nomination for election of Councillor or Chairperson of Nagar Panchayat before the Returning Officer shall necessarily enclose a self-declaration form provided in Form-3A and shall necessarily enclose an affidavit sworn in before the Magistrate 1st Class or Notary. In the said form, not only the conviction, but also the result of acquittal of every case is necessarily to be disclosed.

It was further noted that the petitioner has also filed a deposition sheet of himself, which reveals that in cross-examination, the petitioner has categorically admitted that he has not furnished information in the said form. He also admitted that from 1998 to 2016, 7 criminal cases have been registered at the Police Stations.

Placing reliance on Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 the Court noted that non-disclosure of offence while submitting nomination papers amounts to undue influence. The court further held that when the candidate has special knowledge of the pending case, cognizance of which has been taken or charges have been framed and there is non-disclosure on his part, it would amount to undue influence and, therefore, election is to be declared null and void.

Thus, the revision petition is devoid of merit. [Sapandeep Mahto v Rajkishan Mahto, CR No. 57 of 2022, decided on 29-07-2022]

Advocates who appeared in this case :

Rohit Sharma, Advocate, for the Petitioner;

Vinod Tekam, Advocate, for the Respondent 3.

*Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

Karnataka High Court: Krishna S. Dixit J dismissed the petition being devoid of merits. 

The facts of the case are such that the petitioner, a Returned Candidate of Karle Grama Panchayat whose election having been set at naught, the first respondent was declared as having been duly elected in her stead by the Election Tribunal, knocked the doors of Writ Court for assailing the order dated 10-11-2021.

The Court relied on judgment Jyoti Basu v Debi Ghoshal , (1982) 1 SCC 691and observed that the case does not involve infraction of any of the Fundamental Rights. It relates to only statutory rights namely, right to continue in office till the expiry of elected tenure. Matters relating to election are it to the grass root electoral bodies such as Grama Panchayats or to the Parliament do fall within the realm of law of elections, as legislated.

The Court remarked the jugular vein of the election petition was the validity of four ballot papers namely, which were excluded from the Court in favour of the first respondent – Election Petitioner on the ground that they belonged to a different constituency.

The election tribunal observed “The materials on record clearly indicates that the 4 votes rejected as not genuine appears to be not proper for the reason that the said Ballot papers have been handed over by the officials themselves to the voters. The intention of the voter in making the mark on the symbol under which petitioner contested the election go to show that the said vote was casted in favour of the petitioner. Further, the Ballot papers which were admittedly handed over by the respondent No.3 to the voters have been treated as not genuine, which cannot be accepted because admittedly the same are issued by respondent No.3. 

On election symbols, the Court observed that the election symbols of the candidates or their political parties through which they are put in the fray assume a lot of significance. These symbols are normatively by the jurisdictional authorities constituted under law. The election symbols play a vital role inasmuch as, ordinarily, the electors identify their candidates on the basis of symbols with which they contest in the elections, and vote. It is more so in the case of election to ‘grass-root’ level local bodies like the one in this case.

The Court observed that in the present case, though the ballot papers belonged to other constituency, there is irrefutable evidence on record that they were utilized for the election in this constituency; they had the same electoral symbol; they were taken & used for the constituency in question after scrutiny by the jurisdictional authorities; the voters acted upon the same accordingly.

The Court thus held, “the Election Tribunal rightly faltered their exclusion from counting and thereby, reckoned them to the account of Respondent–Election Petitioner, who eventually has been declared as duly elected, after invalidating the election of Returned Candidate.”[Prabhamani v. Hemalatha, 2022 SCC OnLine Kar 628, decided on 01-04-2022]


For petitioner: Mr. Sathish SP

For respondent: Mr. Basavaraju HT and Prathima Honnapura

 Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J. allowed an appeal which was filed aggrieved by the dismissal order of the petition by the Single Judge.

Respondents had filed an election dispute before the Registrar Co-operative Society, Bhopal challenging their election to the Board of Directors. During the pendency of the dispute, an application was filed by the respondents therein under Order VII Rule 11 read with section 151 of the Code of Civil Procedure seeking dismissal of the petition. While considering the said application, an interim direction was issued by the Registrar Co-operative Society, Bhopal to the effect that new members will not be admitted. That they will not allot plot to any new members and they will not take any policy decision. Thus, the instant petition was filed questioning the same. Single Judge had dismissed the petition.

The Court noted that the dispute pending with the Registrar was that of the election of the writ petitioner and others to the Board of Directors. The Court was of the opinion that whether it prejudices anybody or it is in the interest of the society or not, the power cannot be exercised by the concerned authority in an election petition but it does not mean that none of the members has any right to seek for any relief against the contesting respondents.

The Court set aside the order and allowed the appeal holding that Registrar who was trying the election dispute was exercising the power of the election tribunal. Therefore, he could not have passed orders even though it was in the interest of society. Respondent was however at liberty to file requisite application seeking appropriate relief before the appropriate authority.[Vikas Tiwari v. State of Madhya Pradesh, Writ Appeal No. 182 of 2022, decided on 28-02-2022]

For the appellant: Mr Anil Lala

For the respondents: Mr Suyash Thakur, Mr Sanjay K Agrawal

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Reiterating the well-settled position that, contractual employees are not the employees of the principal employer, N.B. Suryawanshi, J., held that,

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

Two Primary Questions:

  • Whether a complaint of contractual employees seeking to exercise their rights, as provided under the Maharashtra Industrial Relations Act, 1946 and Bombay Industrial Relations Rules, 1947, is maintainable under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971?
  • Whether contractual employees can file a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 for challenging the impugned order, which is not passed by the Principal Employer?

Factual Matrix

Petitioner-Original Respondent Company had 806 permanent employees working. Petitioner outsourced its peripheral activities to several contractors and for that purpose registered itself as the principal employer under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970.

Contracts of the petitioner have obtained license under Section 13 of the Act of 1970, there was no registered Trade Union in the local area of the petitioner establishment.

Respondent 16 – Government Labour Officer declared the election programme for conducting elections under Section 28 of the MR Act, for electing 5 representatives of the employees. 301 contractual workers submitted a representation stating to add their names to the voter’s list and to give them a right to vote.

For the above-stated representation, Management informed the contractual workers that the decision in the said regard cannot be taken by the Management and they may approach the Government Labour Officer or the Labour Commissioner. Some contractual workers submitted their representation to the Labour Commissioner seeking inclusion of their names to which the Commissioner rejected while citing the decision in Sunflag Iron & Steel Co. Ltd. v. State of Maharashtra, 2008 III CLR 983 contractual workers are not directly employed by the principal employer, and therefore, their names cannot be included in the voter’s list.

Respondents approached the Industrial Court and stated that the Labour Commissioner has committed unfair labour practice within the meaning of Item 9 o Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

Petitioner opposed the complaint stating the there was no employer and employee relationship between the complainants and the petitioner.

Industrial Court rejected the application but prima facie held that complaint is maintainable and it has jurisdiction to entertain it.

Petitioner submitted that Industrial Court has no power of superintendence over respondent 2 and therefore, the complaint is not maintainable and the same is liable to be rejected summarily.

Analysis, Law and Decision

Settled Legal Position

Contractual Employees are not employees of the principal employer.

In the decision of Supreme Court, Vividh Kamgar Sabha v. Kalyani Steel Ltd., (2001) 2 SCC 381, it was held that “the provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the Company, then that dispute must be first be gotten resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act”

In Central Labour Union (Red Flag) Bombay v. Ahemdabad Mfg. and Calico Printing Co. Ltd., 1995 Supp (1) SCC 175, the Supreme Court held that “where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act.”

High Court opined that for a complaint to be maintainable under the MRTU and PULP Act, admitted employer and employee relationship is a pre-condition. The provisions of the MRTP and PULP Act can be enforced only after the status of a workman is established before an appropriate forum.

In the present scenario, the contractual employees are the employees of the contractor and not of the petitioner. Hence they are not entitled to file a complaint against the petitioner claiming commission of unfair labour practice.

Therefore, the complaint filed under MRTU and PULP Act by the respondents/contractual employees, is not maintainable.

Under MIR Act, jurisdiction is conferred with the Labour Court and the Industrial Court are conferred with the power to decide the disputes on reference. For enforcing the rights under the MIR Act, forum is provided.

Bench opined that for enforcing the rights available under the MIR Act, a complaint cannot be filed under the MRTU and PULP Act.

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them. The appointment orders to the contractual employees are not given by the principal employer, but are given by the contractor. They work with the principal employer through contractor, only during the contract period. After the contract period is over, their contractor may enter into a contract with another establishment and shift them to work there. From that view of the matter also, they cannot be treated like permanent employees of the principal employer, and therefore, they cannot claim voting rights at par with the permanent employees.

Since the contractual employees are governed by the contract between contractors, their service conditions, wages, etc. are also governed by the same, hence in case of any grievance they shall approach the contractor and not the principal employer.

Misread and Misconstrued

Industrial Court had ignored the settled legal position that the complaint of unfair labour practice was maintainable only if there was admitted employer and employee relationship between the parties. The contractual employee, being the employee of the contractor and not of the principal employer, cannot file a complaint under the MRTU and PULP Act.

Therefore, Industrial Court’s decision was unsustainable.

While allowing the petition, Court concluded stating that complaint filed under the MRTU and PULP Act by the contractual employees for exercising their rights under the MIR Act is not maintainable and the Industrial Court has no jurisdiction to entertain it. [Mahindra and Mahindra Ltd v. Satish, 2021 SCC OnLine Bom 3003, decided on 20-09-2021]

Advocates before the Court

Shri. R. B. Puranik, Advocate for the Petitioner

Shri. S. B. Dhande, Advocate for the Respondent Nos.2 to 11 and 13 to 15

Ms. T. H. Khan, Asst. G. P. for the Respondent Nos. 16 to 17.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rajesh Bindal, CJ. (A), and Arijit Banerjee, J., on 07-05-2021 had entertained the PIL which was filed in public interest regarding violence which was taking place in various parts of the State after Assembly Elections, 2021. The PIL had emphasized on the inaction of the police which was causing danger to the life and liberty of the people.

Considering the importance where life and liberty of the people in the State of West Bengal was at stake and the issues sought to be raised by the petitioner, Larger Bench was constituted to hear the present petition which will include Rajesh Bindal, C.J.(A), I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ.,.

Mr Kishore Dutta, Mr Abhratosh Majumdar and Mr Sayan Sinha counsel for the State had sought adjournment to file affidavit of the Home Secretary of the State specifying the areas where the violence has taken place and the steps taken to prevent or control the same. The matter was further adjourned to be taken up on 10-05-2021.

On 10-05-2021 the report in the form of an affidavit was filed. However, the counsel for the petitioner Mr Bikash Ranjan Bhattacharyya, Mr Pronay Basak,Ms  Debapriya Samanta and Mr Santanu Maji, the counsel for Union of India, Mr Y. J. Dastoor ( Additional Solicitor General) and Mr Arijit Majumdar  and counsel for the respondent 2 Mr Dipayan Choudhury and Mr Suvrodal Choudhury submitted that they have not been served with the copy of the affidavit. Hence, they were not able to respond to the same. Mr Dastoor further had submitted that in number of cases the complaints were not registered by the police stations concerned when approached and that there is no online mechanism available in the State of West Bengal where a complainant can file a complaint to the police. On contrary Mr Dutta submitted that the allegations made by the counsel that the complaints filed to the police were not entertained, was false and he cannot respond to this allegation, as there were no details available. He further submitted that from 09-052021 onwards there was no violence reported in the State.

The Court directed that the copies of the affidavit be furnished to the counsel of the petitioner, learned Additional Solicitor General of India and the counsel appearing for the Election Commission of India. The matter is adjourned to be heard on 17-05-2021.

[Anindya sundar Das v. Union of India, 2021 SCC OnLine Cal 1614, 07-05-2021, 10-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked,

“State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

In the instant petition the validity of the notifications dated 27-07-2018 and 14-02-2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara had been questioned and it was prayed that the same be quashed and set aside. Relying on the dictum of the Constitution Bench in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, the petitioners had urged that it was not open to the respondents to reserve more than 50 per cent (aggregate) seats in the local bodies concerned.

Section 12 of the Act, 1961 had enabled the respondents to reserve 27 % of seats in the concerned Zilla Parishads and Panchayat Samitis. Section 12 of the 1961 Act is reproduced hereunder:

“(c) The seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 % of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 % of the seats remaining (if any), after reservation of the seats for the  Scheduled Tribes and the Scheduled Castes”

Position as laid down in K. Krishna Murthy v. Union of India

In the case of K. Krishna Murthy, the constitutional Bench had opined that Articles 243D(6) and 243T(6) of the Constitution were merely enabling provisions and it would be improper to strike them down as violative of the equality clause. That these provisions did not provide guidance on how to identify the backward classes and neither do they specify any principle for the quantum of such reservations. Instead, discretion had been conferred on the State legislatures to design and confer reservation benefits in favour of backward classes. The Bench stated,

“The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against over breadth.”

Further, the Bench observed that It would be safe to say that not all of the groups which had been given reservation benefits in the domain of education and employment need reservations in the sphere of local self government because

“The barriers to political participation are not of the same character as barriers that limit access to education and employment.

Observation and Analysis

Regarding state legislations providing for reservation of seats in respect of OBCs, the Bench stated that state must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats in the local bodies concerned. The foremost requirement was stated to be to collate adequate materials or documents that could help in identification of backward classes for the purpose of reservation by conducting a rigorous empirical inquiry into the nature and implications of backwardness in local bodies concerned through an independent dedicated Commission established for that purpose. The Bench explained,

In case, constitutional reservation provided for SCs and STs were to consume the entire 50 per cent of seats in the concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all.”

Noticing that no material was on record as to on what basis the quantum of reservation for OBCs was fixed at 27%, when it was inserted by way of amendment in 1994 and that there was nothing on record that such a dedicated Commission had been set up, the notifications issued by the State Election Commission to reserve seats for OBCs in respect of which notifications had been challenged, the Court, by an interim direction, had allowed the elections to proceed subject to the outcome of the present writ petitions.

Triple Test for Reservation

Relying on the judgment in K. Krishna Murthy, the Bench reiterated the triple test required to be complied by the State before reserving seats in the local bodies for OBCs:

(1) To set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;

(2) To specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of over breadth;

(3) In any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.

“Shall be” to be interpreted as “May be”

Regarding the question of constitutionality of Section 12(2)(c) of the Act, 1961 as inserted in 1994, the Bench opined that the plain language of the provision indeed gave an impression that uniform and rigid quantum of 27% of the total seats across the State need to be set apart by way of reservation in favour of OBCs. Therefore, to maintain to strike a balance, the Court interpreted the words in a harmonious manner and directed that,

“The expression “shall be” preceding 27% occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together…”

Conclusion and Directions

In the light of above considerations, the Bench held that the impugned notifications suffer from the vice of foundational jurisdictional error, therefore, the same were void and without authority of law. Similarly, the elections conducted on the basis of such notifications concerning reserved OBC seats alone were held to be vitiated and non est in the eyes of law from its inception. Also, Noticing that the provisions similar to Section 12(2)(c) of the Act, 1961 find place in other State enactments concerning the establishment of local, the Bench clarified that,

“The view taken in this judgment would apply with full force to the interpretation and application of the provisions of other state Act(s) as well and the State Authorities must immediately move into action to take corrective and follow up measures to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy’s case for providing reservation in favour of OBCs.”

Lastly, the case was disposed of with the following directions:

  1. State Election Commission must take follow up steps and notify elections for seats vacated in terms of this decision for the remainder tenure of Gram Panchayats and Samitis concerned;
  2. Challenge to the validity of Section 12(2)(c) of the Act, 1961 was negatived and the same was directed to be read down to mean that it may be invoked only upon complying with the triple conditions;
  3. All acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who had vacated seats in terms of this decision should not be affected in any manner and the judgment would take affect prospectively.

[Vikas Kishanrao Gawali v. State of Maharashtra,  2021 SCC OnLine SC 170, decided on 04-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: A.M. Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ reiterated the law relating to the bar to interference by courts in electoral matters relating to delimitation of constituencies and allotment of seats to such constituencies, specifically in the context of municipal elections.

“So far as delimitation and allocation of seats is concerned, the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Article 329(a) of the Constitution.”

The Court explained that the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections.

“The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election.”

The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf.

Referring to a number of judgments, the Court summarised the following points:

I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.

II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.

IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can

    • direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate.
    • approach a writ court to issue necessary directions in this behalf.

It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

V.Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.

VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats.

VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.

VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with 87 delimitation of constituencies and allotment of seats to such constituencies.

IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.

X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.

[State of Goa v. Fauzia Imtiaz Shaikh, 2021 SCC OnLine SC 211  , decided on 12.03.2021]

*Judgment by: Justice RF Nariman

For State: Additional Solicitor General Tuhsar Mehta

For appellants: Senior Advocates Mukul Rohatgi, Vinay Navare

For first respondent: Senior Advocates Atmaram Nadkarni, Vivek Tankha

For intervenor: Councel Ninad Laud


Appointment of Government official as Election Commissioner “a mockery of the constitutional mandate”; ECs must be independent: Supreme Court

Case BriefsSupreme Court

Supreme Court: Calling the appointment of the Law Secretary of the Government of Goa, a member of the IAS, as State Election Commissioner ‘disturbing’, the 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ has held that such appointment of a Government Officer directly under the control of the State Government is a subversion of the constitutional mandate contained in Article 243K of the Constitution of India

“Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate.”

The Court said that the State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court.

The Court, hence, declared that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K.

“The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government.”

In order to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future, the Court also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government.

“If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office.”

[State of Goa v. Fauzia Imtiaz Shaikh,  2021 SCC OnLine SC 211, decided on 12.03.2021]

*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For State: Additional Solicitor General Tuhsar Mehta

For appellants: Senior Advocates Mukul Rohatgi, Vinay Navare

For first respondent: Senior Advocates Atmaram Nadkarni, Vivek Tankha

For intervenor: Councel Ninad Laud

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Sunil Thomas, J., allowed the instant petition challenging the rejection order of Returning Officer, wherein nomination application of the petitioner was rejected. The Bench stated,

“Absence of the date and place in the affirmation part does not in any manner substantially affect the contents of the declaration.”

The Petitioner had submitted nomination as a candidate for the election to the governing body of Pallikunnu Dairy Co-operative Society for SC/ST reserved vacancy. The nomination was rejected by the Returning Officer on the premise that the nomination paper was incomplete since place and date was not written in the declaration by the candidate.

Grievances of the petitioner were that the application was complete in all other aspects. While relying on Rule 35A(6)(e)(i) proviso which provided that nomination of a candidate should not be rejected merely on the ground of an incorrect description of the name or of the proposer or of seconder or of any other particulars relating to the candidate if the identity of the candidate, proposer or seconder, as the case may be, was established beyond reasonable doubt.

The Bench while relying on Santhosh v. Joint Registrar, 1994 SCC OnLine Ker 137, observed that appending of signatures by the candidate in declaration and of the proposer and the seconder in nomination was of vital importance. Any defect in it could render the nomination invalid. The Court stated, scrutiny of the nomination by the Returning Officer should be geared to see whether the aforesaid factors had been established, particularly the identity of the candidate, the proposer and the seconder, with reference to their membership in the society.

Noticing that there was no doubt regarding the identity of the candidate the Bench held that, absence of date and place in the affirmation part did not in any manner substantially affect the contents of declaration. Further, incomplete nature of the nomination did not in any manner vitally affect the affirmation.

 Hence, rejection of nomination was held to be legally unsustainable. The nomination of the petitioner was accepted and the impugned order of the Returning Officer was set aside. [Sunil Babu T.C v. Kerala State Co-operative Election Commission,  2021 SCC OnLine Ker 842, decided on 15-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J., while dismissing the present petition on lack of merits, said, “… election process has already begun and final voter list has also been published, therefore, entertaining this petition at this stage would amount to obstructing the election process, which is not permissible.”

Petitioner in the present case, are aggrieved by non-inclusion of their names in the voter list and have moved the present petition seeking relief for (i) revision of electoral roll of the gram panchayat (ii) impugned order to be set aside.

With respect to interference by the Court under Article 226, Court said, “It is a well-settled proposition of law that inclusion or exclusion of name in the voter list cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution. However, it is always open to a person whose name is not included in the voter list to avail the benefit by filing election petition as the authorities constituted have wide powers to cancel, confirm and amend the election and it can also direct to hold fresh election, in case, the election is eventually set aside.”

Court further observed that only in extraordinary and exceptional circumstances, the High Court can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or nullity and/or ex facie without jurisdiction. Reliance was placed on Rule 14 and 24 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 in addition to the case of Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20 and Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66.

Dismissing the petition, Court noted, “The present petition filed after commencement of the election process, that too, with a view to stall election, therefore, cannot be entertained, when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.”[Akhtar Hussain v. HP State Commission, 2021 SCC OnLine HP 125, decided on 02-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In an interesting case where a Member of the Legislative Assembly cast his vote in an election to the Rajya Sabha in the morning and got convicted in the afternoon thereby becoming disqualified, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has held that the such vote would remain valid. If held otherwise, such situation will create endless confusion and needless chaos.


  • By a notification dated 05.03.2018, the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand.
  • Three candidates, two from the Bharitya Janata Party (BJP), and one from the Indian National Congress (INC) filed their nominations.
  • On 23.03.2018, the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes;
  • Amit Kumar Mahto, an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM), admittedly cast his vote at 9.15 A.M.. He was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentence were handed over at 2.30 P.M. He was sentenced to various periods of imprisonment for those offences, but all of them were to run concurrently. The maximum punishment was for the offence 2 under Section 506/149 and the Court awarded RI for a period of two years.

In such situation, the following issue arose before the Court:

“Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?”

Since Amit Kumar Mahto had cast his vote in favour of Dhiraj Prasad Sahu, the Congress candidate, the validity of his vote assumed significance, especially in view of the margin of victory.


What happens when a person gets disqualified?

Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant.

Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”.

Date of conviction – Meaning

The appellant had relied on Pashupati Nath Singh vs. Harihar Prasad Singh, AIR 1968 SC 1064 to claim that the words “on the date” should be taken to mean “on the whole of the day” and that law disregards as far as possible, fractions of the day.

However, the bench noticed that, in the said judgment, the Court interpreted the words “on the date” not necessarily to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time.

Calling the argument of the appellant a double-edged weapon, the Court explained

“If the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date, the resulting conundrum cannot be resolved.”

If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m.

Further, even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and (ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision.

“Say for instance, a person is convicted and sentenced to imprisonment and also taken into custody pursuant thereto, on 23.03.2018, the whole of the day of March 23 will be included in the total period of incarceration. But in contrast, the day of March 23 will be excluded for computing the period of limitation for filing an appeal. Though one contrasts the other, both interpretations are intended to benefit the individual.”

Innocent until proved guilty – Applicability of

The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words. In law this is known as the principle of legality and clearly applies to the present case. To hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.

“While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc.”

Accepting the appellant’s submission would mean construing the statutory scheme as intending something startling i.e. positing that the consequence precedes the cause. This would be reducing this provision to absurdity and require Courts to hold that a consequence can precede its cause.

The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. A consequence can never precede the cause.

“To say that this presumption of innocence would evaporate from 00.01 A.M., though the conviction was handed over at 14.30 P.M. would strike at the very root of the most fundamental principle of Criminal Jurisprudence.”


The vote cast by Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote.

“To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon or in vesting with the Election Commission, a power to do an act that will create endless confusion and needless chaos.”

[Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, 2020 SCC OnLine SC 1039, decided on 18.12.2020]

*Justice SA Bobde, CJI, has penned this judgment.

For appellant: Senior Advocates Mukul Rohatgi and K.V. Vishwanathan

For respondent: Senior Advocate Dr. Abhishek Manu Singhvi

ObituariesOP. ED.

Today marks the first death anniversary of Supreme Court advocate Lily Thomas who was responsible for Section 8(4) of the Representation of the People Act, 1951 being struck down by the Supreme Court resulting into disqualification of convicted legislators from running for elections or holding an elected seat.

Born on March 5, 1928, at Changanassery in Kottayam District, in the State of Kerala to Adv. K.T Thomas and Smt. Anamma, Lily Thomas had fluent grasp in Latin, Sanskrit, Malayalam and English.[1] A graduate in B.Sc., she chose to do L.LB from Madras University and being fascinated by the special features of the Constitution and its influence in the society, she did her LL.M. in Constitutional Law[2] and become the first woman in India to qualify for an LL.M. degree.[3] She then went to Delhi to do a doctoral research on Constitution from the Indian Law Institute but started practicing in the Supreme Court of India.[4]

Thomas, who never got married[5], in an interview with The Economic Times, recalled a judge asking her if she was a miss or a Mrs,

“I told him I am a miss but I don’t miss much. He laughed so hard that even it would have been audible at India Gate.”[6]

As a Supreme Court Advocate, Thomas’s first major case was where she filed a petition in the Supreme Court challenging the validity of the ‘Advocate on Record’ system on 14 January 1964. In In re Lily Isabel Thomas, AIR 1964 SC 855, she had argued that as an advocate entitled to practise in this Court, she was entitled as of right not merely to plead but also to act, and that the Rules of this Court which prescribe qualifications before she could be permitted to act were therefore invalid. She, hence, sought that Rule 16(1) of Order IV of the Supreme Court Rules[7] as amended in 1962 which contains this prescription of qualifications be declared ultra vires. While her petition failed, many petitions challenging the AOR system have been filed ever since.

In a bid to protect the rights of married women, Thomas filed a petition in the Supreme Court challenging such conversions where a non-Muslim would convert to Islam merely to marry a second time without divorcing his first wife, without any real change in his belief. The bench of S. Saghir Ahmed and RP Sethi, JJ, in Lily Thomas v. Union of India, (2000) 6 SCC 224, held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. It said,

“Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.”

The Court further held that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.

Her most notable breakthrough, however, came at the age of 85 when, in 2013, she won a landmark case in Lily Thomas v. Union of India, (2013) 7 SCC 653, under which members of India’s Parliament and members of state legislative bodies, convicted of a crime or in jail, became ineligible to run for elections or hold an elected seat. On 10 July 2013, a bench of A K Patnaik and S J Mukhopadhaya, JJ held that,

“Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution”

Consequently, it was held,

“if any sitting Member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and/or sentence.”

Resultantly, Lalu Prasad Yadav became one of the first politicians who couldn’t contest elections.[8]

When Jayalalitha got convicted, Thomas, in an interview with The Economic Times[9], said

“She looked so powerful when in power but now she stands betrayed and alone. Why didn’t her party stop her? Where is the wealth now? Shouldn’t it be confiscated? Our law should be so clear that there should be no ifs and buts,”

Thomas’s dedication towards upholding and protecting the spirit of the Constitution is evident from the fact that she did not stop working even in the evening of her life.[10]

[Image: Original image of Advocate Lily Thomas from Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors]

[1]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

[2] Ibid

[3] Senior Most Woman Lawyer Of SC, Lily Thomas Passes Away At 91, She the people, by Anushika Srivastava, December 10, 2019

[4]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

[5] Ibid

[6] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014

[7] 16. No advocate shall be qualified to be registered as an advocate-on-Record unless he—

(1) has undergone training for one year with an advocate-on-Record approved by the court, and has thereafter passed such tests as may be held by the court for advocates who apply to be registered as advocate-on-Record, particulars whereof shall be notified in the Gazette of India from time to time; provided however that an Attorney shall be exempted from such training and test:

(2) has an office in Delhi within a radius of 10 miles from the Court House and gives an undertaking to employ, within one month of his being registered as advocate-On-Record, a registered clerk; and

(3) pays a registration fee of Rs 25.

[8] Who was Lily Thomas? Supreme Court lawyer whose fight ended reign of convicted politicians in elections, Financial Express. December 10, 2019

[9] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014

[10]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

Case BriefsSupreme Court

Supreme Court: In a case where the Kerala High Court had refused to entertain the plea of Saritha Nair who was disqualified from contesting the elections on the ground that she was convicted in 2 criminal cases, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

The Court held that when the petitioner was disqualified from contesting the elections in terms of Section 8(3), she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1) of the Representation of the People Act, 1951.


In the 2019 Lok Sabha Elections, Saritha Nair filed her nomination on 04.04.2019 in the Ernakulam Constituency. She was to contest as an independent candidate. On 06.04.2019 the nomination of the petitioner was rejected on the ground that she was convicted in 2 criminal case and was sentenced to imprisonment for 3 years in each of those cases by judgments dated 08.06.2015 and 16.02.2016. While she did not dispute the fact of her conviction, it was the case of the petitioner the suspension of her sentence by an appellate/revisional court was enough to save her from the applicability of Section 8(3).

She also filed her nomination from one more constituency, namely Wayanad Constituency and her nomination was rejected even in the said Constituency, for the very same reasons.

She further argued that she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there. Therefore, she contended that 2 different yardsticks cannot be applied.

Grounds for rejection of the Election Petition by the High Court

(i) Lack of proper verification;

(ii) An incomplete prayer; and

(iii) Allegations of serious nature made against the former Chief Minister with a possible leverage not to own up the pleadings.


Were the defects incurable?

“A defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.”

The Court held that the High Court committed a grave error in holding the aforementioned 3 defects as incurable. The defects are curable and an opportunity to cure the defects ought to have been given to the petitioner.

Further, the High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister.

“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”

The Court, hence, held that though the election petitioner should have been more careful and diligent in incorporating an appropriate relief and making a proper verification but no motives could have been attributed to the petitioner, only because she made serious allegations against someone.

Is suspension of sentence enough to save the petitioner from disqualification under Section 8(3) of the RP Act?

The appellate Court in one case and the revisional Court in another case had suspended only the execution of the sentence of imprisonment and not the conviction. The contention of the petitioner was that the suspension of the sentence was sufficient to save her from the applicability of Section 8(3).

Section 8(3) deals with two aspects:

(i) the conditions for disqualification; and

(ii) the period of disqualification.

The conditions for disqualification are

(i) conviction for any offence other than an offence referred to in Subsections (1) and (2); and

(ii) sentence of imprisonment for not less than two years.

In so far as the period of disqualification is concerned, Section 8(3) says that the disqualification will commence from the date of conviction. This is made clear by the usage of the words “shall be disqualified from the date of such conviction”. It is needless to state that the words “the date” appearing in Section 8(3) refers to the event of conviction and it is post facto. The disqualification which commences from the date of conviction, continues till the expiry of a period of six years from the date of his release. Hence,

“… the date of conviction is what determines the date of commencement of the period of disqualification. However, it is date of release which determines the date on which the disqualification will cease to have effect.”

Hence, it is clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3).

Further, in Lily Thomas it was held that a Member of Parliament or the State Legislature who suffers a frivolous conviction, will not be remediless. The appellate Court has ample powers under Section 389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been granted, the disqualification will not operate.

Hence, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. Since, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence, her nominations were validly rejected by the Returning Officer.

“Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription.”

[Saritha S. Nair v. Hibi Eden,  2020 SCC OnLine SC 1006, decided on 09.12.2020]

*Justice V. Ramasubramanian has penned this judgment

For petitioner: Advocate D. Geetha 
Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): In a crucial decision before the upcoming Presidential Elections in the USA, the SCOTUS temporarily reinstated South Carolina’s (SC) requirement that absentee ballots include witness signatures. The Court however stated that any ballots cast or received within two days of this order may not be rejected for failing to comply with the witness signature requirement.

South Carolina has had a witness requirement for absentee voters since 1953. Under the current law, voters returning mail-in ballots swear an oath printed on the return envelope that confirms they are eligible to vote and that the ballot inside is theirs. The oath has to be witnessed by one other person who has to sign below the voter’s signature and write their address. On September 18th, U.S. District Judge Michelle Childs ruled that because of the dangers of the highly contagious and deadly COVID-19, South Carolinians voting absentee did not have to get a witness signature and address on their mail-in ballot envelope. Her order was appealed to the U.S. 4th Circuit Court of Appeals by the S.C. Election Commission. A three-judge panel of the U.S. Court of Appeals for the 4th Circuit reinstated the requirement before the Full Appeals Court reversed course and put it on hold again.

Brett Kavanaugh, J., in his concurring opinion laid out his reasons for staying the decision of the District Court. As per the observations of Kavanaugh, J., firstly the US Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States and secondly, the Supreme Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election and by ordering an alteration in South Carolina’s witness requirement shortly before the election, the District Court has defied that principle and this Court’s precedents. [Marci Andino v. Kylon Middleton, Application for stay No. 20A55, decided on 05-10-2020]

[With Inputs from Washington Post]

Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court:  A bench of Vineet Saran and UU Lalit, JJ has disposed of a petition seeking directions to the Election Commission of India to conduct an independent audit of the source code (software) of EVM, VVPAT and ETS and then register its signature in public domain. The Court asked the petitioner to approach ECI and if the poll body does not do it, then the petitioner is at the liberty to approach the court once again after a period of three weeks.

The petition, which sought an independent audit of the software used in Electronic Voting Machines, Voter Verifiable Paper Audit Trail and EVM Tracking Software, was filed by advocate Sunil Ahya in January 2020. Ahya said that he will soon approach the election commission for the same. The plea said that the source code of EVM, VVPAT  and ETS , all in concert, play a very important role in the scheme of conduct of elections.

“And, if the source code of all these devices were to be subverted in concert, then the process of randomization process would no longer maintain its randomness, rather it will become deterministic and systematic. This would be able to achieve a pre-determined outcome of the election process,”

Earlier, the same plea was filed by the petitioner on December 2018 when former CJI Ranjan Gogoi had sought a reply from Election Commission, following which the poll body had filed a counter affidavit in the matter. However, before the petitioner could seek the permission of the court to file a “rejoinder highlighting the discrepancies in the counter affidavit filed by the ECI”, the matter was closed due to the then imminent General Elections 2019.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra, JJ has reserved its order on the review petition filed by former Maharashtra chief minister, Devendra Fadnavis, seeking modification of it’s earlier order directing him to face the trial for allegedly not disclosing two pending criminal cases against him in his 2014 poll affidavit.

The court bench, headed by the then Chief Justice of India (CJI) Ranjan Gogoi, in its judgement in Satish Ukey v. Devendra Gangadharrao Fadnavis, 2019 SCC OnLine SC 1275, last year on October 1, had set aside the Bombay High Court order for Fadnavis’s alleged concealment of criminal cases against him in his 2014 election papers. It had said,

“we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.”

The Court, hence, held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951 includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed.

The Bombay High Court had earlier dismissed the plea filed by one Satish Ukey, seeking annulment of Fadanavis’s election to the Maharashtra assembly alleging non-disclosure of all pending criminal cases against him. Ukey had later approached the Top court challenging the Bombay High Court’s order.
In his appeal, Ukey had said that Fadnavis while submitting his nomination from South West assembly constituency in 2009 and 2014 had allegedly suppressed the information about two pending criminal cases against him.

(With inputs from ANI)

Case BriefsSupreme Court

Supreme Court:  In a major judgment today, a bench of RF Nariman and S. Ravindra Bhat, JJ has directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.

The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

The Court was hearing the contempt petition which brought the Court’s attention to a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 which too cognisance of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry and issued various directions in that regard.

It was brought to the Court’s notice that there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. The Court, hence, issued the following directions:

1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

3) This information shall also be published in:

    • One local vernacular newspaper and one national newspaper;
    • On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.

[Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178, decided on 1302.2020]

Hot Off The PressNews

Supreme Court: After Maharashtra witnessed a major political drama with the swearing in of Devendra Fadnavis as the Chief Minister of Maharashtra for a second term and NCP leader Ajit Pawar as Deputy Chief Minister, the Supreme Court has decided to assemble on Sunday to hear the joint plea of Shiv Sena, Nationalist Congress Party and Indian National Congress against the decision of Maharashtra Governor Bhagat Singh Koshyari inviting Devendra Fadnavis to form the government.

The parties have sought quashing of the Governor’s decision saying the Governor’s decision is “unconstitutional, arbitrary, illegal, void-ab-initio, and violative of
Article 14 of Constitution of India”. The plea also seeks direction to the Governor to invite the alliance of Maha Vikas Aghadi comprising of the Shiv Sena, Indian National Congress and the Nationalist Congress Party which has the support of more than 144 MLAs to form the Government under the leadership of Uddhav Thackeray

The Court will assemble at 11:30 to hear the matter tomorrow.

(Source: ANI)