election petition

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, CWP No. 6427 of 2020, 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.

Background

  • 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.

Analysis

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.”

Conclusion

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

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.

Background

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.

Analysis

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 
Case BriefsSupreme Court

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

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel J., while allowing the present petition, set aside the orders of the preceding authority holding the original election petition as patently defective.

Background

Facts of the case are briefly mentioned hereunder;

  1. That the petitioner was declared elected in the elections for the post of Pradhan, Gram Panchayat Hinner, in December 2015.
  2. That an Election Petition was filed by Smt. Radha Devi (respondent herein) under the Himachal Pradesh Panchayati Raj Act, 1995 (hereinafter referred to as “1994 Act”) on the ground that the nomination papers filed by the petitioner concealed the real facts and the petitioner was further involved in unfair election practices along with her family members.
  3. That it was further alleged by the respondent in present case that the police and electoral staff failed to discharge their duties in consonance with law and several persons who were not eligible to cast their vote, were permitted to do so, despite her objections and objection of her Polling
  4. That the election petition was resisted by the elected candidate, on the ground of maintainability, cause of action and the principle of estoppel. It was moreover denied by the elected candidate that she had indulged in any concealment of facts in the nomination paper or there was any infirmity in the nomination paper so filed by her.
  5. That it was further denied by the candidate that the elected Pradhan had indulged in any unfair practice during or after the election process.
  6. That the Sub Divisional Officer (Civil) – cum – Appellate Authority (Election Petition), vide order dated 02-03-2019, adjudicated in favour of the respondent herein, finding that the nomination papers of the petitioner was not properly scrutinized as per the norms of H.P. Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj Election Rules, 1994.
  7. That an appeal was thereby preferred before the Deputy Commissioner under Section 181 of the 1994 Act, which was dismissed vide order dated 09-01-2020, concurring with the findings of the Sub Divisional Officer.
  8. That the elected Pradhan, aggrieved by the aforementioned orders, has preferred the present petition praying to quash the same and hold the election of the petitioner herein, legal and valid.

 Contention

Counsel for the petitioner primarily argued that the original election petition as filed by the respondent herein was defective and not as per the statutory mandate of the 1994 Act read with relevant rules framed thereunder.

Counsel for the respondent emphasized more on the merits of the case and the rationale upon which the preceding authorities agreed to the contentions of the respondents in the original election petition. 

 Observations

The Court, first, decided to consider the maintainability of the original petition so filed, refraining from making any observation upon the validity/voidability of the election held, as per Section 175 of the Act of 1994. Considering the mandatory requirements for moving an election petition, the Court referred Section 164 of the Act which provides that “an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Proviso thereto contains that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof.” The Court further reproduced the language of Order VI Rule 15 which deals with verification of pleadings and noted that, “A perusal of the original record demonstrates that Election Petition has not been verified at the foot by the Election Petitioner. In the absence of Election Petition having been verified at the foot, there is no compliance of Order VI, Rule 15(2) of the Code of Civil Procedure. It is not mentioned in the Election Petition as to at which place the same was prepared and signed by the election petitioner, as the Election Petition is conspicuously silent with regard to the place of its preparation/having been signed by the election petitioner.”  Moreover, it was noted that the Election Petition was not accompanied with an affidavit as required by Section 164(1) of the 1994 Act, supporting the malpractices so alleged. Another inconsistency was noted by the Court in the words, “… the factum of the purported affidavit (as mandated by Code of Civil Procedure, 1908) sworn in, in support of the election petition having been prepared on 28-01-2016, whereas the Election Petition being prepared and signed on 29-01-2016, cannot be overlooked and ignored by this Court while holding that the Election Petition when filed, was a defective Election Petition.”

The Court also cited the case of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, acknowledging the settled law that an opportunity to correct the curable defects must be given but at the same time observed, “this judgment does not come to the rescue of the election petitioner in this case, because as already mentioned hereinabove, the purported affidavit sworn in, in favour of the election petitioner predates the Election Petition, which cannot be said to be substantial compliance of law nor it can be said that the Election Petition accompanied with a predated affidavit entails such defect which can be termed to be curable. It appears that no one took the care or the pain to scrutinize the Election Petition, as it ought to have been done, which has resulted in grave miscarriage of justice to the present petitioner, as she stands non suited on the basis of a defective Election Petition, which not only stood entertained by the Authorized Officer, but also adjudicated upon on merit.”

Decision

While allowing the present petition, the Court allowed the petitioner to perform her duties as Pradhan, Gram Panchayat Hinner without any unnecessary fetters.[Nisha Thakur v. Radha Devi, 2020 SCC OnLine HP 2866, decided on 03-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

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

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. dismissed a writ petition filed by a village pradhan challenging the order of District Court (revisional court) whereby matter pertaining to the validity of his election as pradhan was directed to be considered afresh by the Prescribed Authority.

Petitioner was elected as the village pradhan of village Bahadurpur. Respondent filed an election petition under Section 12-C of the UP Panchayat Raj Act, 1947 against the petitioner on the ground of unfair practice, etc. Prescribed Authority formulated two issues, whether the petition was barred by provisions of Rule 11, Order 7 Code of Civil Procedure, 1908 and whether the petition had not been filed in accordance with the law. Prescribed Authority recorded the finding that the plaintiff was required to issue a notice to the opposite party under Section 80 of CPC but the same has not been done, hence the election petition was barred. The petitioner preferred civil revision against this order which was allowed and the matter was remanded back to Prescribed Authority for deciding the matter afresh on merits. Aggrieved thereby, the Petitioner approached this Court under Article 227 of Constitution of India seeking a writ of certiorari for quashing the order passed by the revisional court.

Counsel for the petitioner Aditya Pratap Singh, submitted that the election petition had rightly been dismissed by the prescribed authority as the election petition was barred by the provisions of Rule 11, Order 7 CPC, and the revisional court had exceeded its jurisdiction in passing the impugned order. Counsel for the respondent, Ajay Veer Pundir and Narain Dutt submitted that there was no requirement to serve notice under Section 80 CPC in an election petition and the prescribed authority had committed patent error in law by dismissing the election petition.

The Court relied on the judgment of Kushuma Devi v. Sheopati Devi, 2019 SCC Online SC 482, in which it was held that every judicial or quasi-judicial order shall be supported with the reasons which support its conclusion, as the revisionary court while examining the correctness of the order is entitled to know the basis on which a particular conclusion was arrived at in the order. It was opind that the prescribed authority had not recorded any reasons for its order.

It was opined that reasons recorded in judgment are the life of law and in their absence, the judgment could not be said to be legal. The Prescribed Authority had travelled beyond the issues which were under the consideration and the revisional court was justified in remanding the matter back to the prescribed authority and hence writ petition was dismissed.

Further, the Court opined that without framing an issue in regard to notice under Section 80 CPC, the Prescribed Authority had held the election petition to be barred by Order 7 Rule 11 CPC. Thus, the findings recorded by Prescribed Authority in this regard were illegal, and therefore the revisional court’s order remanding the matter back to Prescribed Authority for fresh consideration was valid.

In view of the above, the petition was dismissed.[Narendra Singh v. Anil Kumar, 2019 SCC OnLine Utt 471, decided on 14-05-2019]

Hot Off The PressNews

Supreme Court: The bench headed by Ranjan Gogoi, JJ has rejected the plea of sacked BSF Jawan Tej Bahadur Yadav, challenging the Election Commission’s decision to reject his nomination papers from Varanasi Lok Sabha seat. It said,

“we do not find any grounds to entertain the plea of Yadav”.

Advocate Prashant Bhushan, appearing for Yadav, said, as per earlier verdict of the Supreme Court, the election petition can be filed during enforcement of the Model Code of Conduct.

Senior advocate Rakesh Dwivedi, appearing for the Election Commission, also referred to various Supreme Court judgments and said election petitions can only be filed after polls are over as it would vitiate the electoral process.

At the fag end of the hearing, Bhushan sought liberty from the court to file an election petition after polling is over.

“We have done what we could have done. We find no grounds to entertain this petition,”

Yadav, who was dismissed in 2017 after he posted a video online complaining about the food served to troops, was fielded by the Samajwadi Party as its candidate from the Varanasi seat. Prime Minister Narenda Modi is contesting from the Varanasi Lok Sabha seat.

Yadav, in his plea, had termed the decision of the poll panel discriminatory and unreasonable and had said it should be set aside.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Court has rejected the review plea filed by twenty-one Opposition parties seeking a direction to increase VVPAT verification from five to at least 50% of EVMs during counting of votes in the general elections 2019.

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

(More details awaited)

Case BriefsHigh Courts

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

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

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

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

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

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

(Source: ANI)

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

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

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

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

(Source: ANI)

Also read:

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

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

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

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

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

(Source: PTI)

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

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

(Source: PTI)

Case BriefsHigh Courts

Allahabad High Court: The writ petition was filed before a Single Judge Bench comprising of Salil Kumar Rai, J., against judgment and order passed by Deputy District Magistrate where an Election Petition filed by petitioner was dismissed.

Facts of the case were that one of the respondents was the elected Gram Pradhan of the village, against whose election, petitioner filed an Election Petition. In the election petition, the remedy sought by petitioner was the recounting of votes after which the election of respondent was to be set aside and petitioner was to be declared elected. The Deputy District Magistrate dismissed the Election Petition stating that petitioner failed to establish her case.

Petitioner contended that she received 233 votes and the Returning Officer had shown petitioner to have received only 184 votes declaring rest 49 votes polled in favour of the petitioner as invalid. Election petition stated that it was due to the above invalidation of votes respondent won the election with 195 votes.

High Court was of the view that judgment and order passed by the Magistrate gave reasons for dismissal of the petition and all the evidence submitted by petitioner was considered by Magistrate. Therefore, Court dismissed this writ for lack of merit. [Sutura Devi v. State of U.P.,2018 SCC OnLine All 1564, order dated 27-09-2018]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of KH. Nobin Singh, J., dismissed an application filed for dismissal of Election Petition on the ground that it violates Section 100 of Representation of People Act, 1951 where grounds for declaration of election as void are given.

The applicant filed this application for dismissal of election petition filed by the respondent raising flaws in it. In the petition, the respondent contended that the applicant in his affidavit filed along with nomination paper had not given complete information. The applicant did not mention anything about the FIR filed against him. He also left many columns blank i.e. incomplete form and the Returning Officer could not have accepted the nomination. Whereas the applicant defended himself by stating that in one of the cases filed against him he had already been discharged. The allegation which the respondent had accused of were misconceived and unfounded which require strict proof. It was also submitted that RO of 4-Kshetrigao Assembly Constituency had accepted all nomination papers in the presence of respondent during which the respondent made no objection but now that he was not elected the same process had been put into scrutiny. The applicant opposed election petition on the ground that it does not contain material facts as required under Section 83(1)(a).

The High Court was of the view that Section 83(1)(a) which states that an election petition should contain material facts on which petitioner relies had been substantially complied with and election petition cannot be stopped at this stage. Therefore, the application was devoid of merit and was dismissed. [Nahakpam Indrajit Singh v. Md. Amin Shah,2018 SCC OnLine Mani 115, order dated 17-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and Dr D.Y. Chandrachud, J. held that the election petition filed after the period of 30 days as mandated under Haryana Panchayati Raj Act, 1994 is barred by limitation.

The appellant was declared a winner in the elections for the post of Ward Councilor. The respondent filed an election petition under Section 176 of the Act challenging the said election. Thereafter, the appellant filed an application under Order 7 Rule 11 CPC for rejection of the petition on the ground that the said petition was not presented in person as required by Section 176. The respondent withdrew the petition. Subsequently, the respondent filed second election petition. Again, the appellant filed an application for rejection, this time on the ground that the petition was filed after the period of 30 days from the date of the election as provided under the said section, thus it was barred by limitation. The respondent filed an application under Section 5 read with Section 14 of the Limitation Act, submitting that the time spent between filing of the first petition and its withdrawal may be excluded while calculating the period of limitation. The trial court admitted the appellant’s application under Order 7 Rule 11 CPC. The appeal preferred by the respondent thereagainst was allowed by a District Judge. The appellant challenged the order of the  District Judge before the High Court which was dismissed vide order impugned. Aggrieved thus, the appellant filed the present appeal.

The Supreme Court perused Section 176 and also referred to Hukum Dev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133; Charan Lal Sahu v. Nandkishore Bhatt, (1973) 2 SCC 530 and Lachhman Das Arora v. Ganeshi Lal, (1999) 8 SCC 532. It was observed that the Haryana Panchayati Raj Act is a complete code for the presentation of election petitions. The statute mandates that election petition must be filed within a period of 30 days from the date of declaration of election results. The period cannot be extended. The provision of Section 14 of the Limitation Act stands excluded. The legislature having made a specific provision, any election petition which fails to comply with the same is liable to be rejected. Observing that the High Court failed to notice the binding judgments of the Supreme Court, the Court set aside the order impugned. It was held that the election petition filed by the respondent shall be dismissed. Accordingly, the appeal was allowed. [Suman Devi v. Manisha Devi,2018 SCC OnLine SC 1047, dated 21-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of RK Agarwal and AM Sapre, JJ refused to extend the last date for the filing of nominations for panchayat polls in West Bengal, saying it cannot interfere with the election process. The Court, however, granted liberty to the candidates to approach the West Bengal State Election Commission for appropriate relief.

Bhartiya Janata Party (BJP) had, in the petition, sought the following directions:

  • issue of nomination forms to the it’s candidates so as to enable them to file their nomination in the ensuing upcoming panchayat elections
  • take immediate steps to make arrangements for submission of nomination papers through email and to provide police protection to it’s candidates so as to enable them to collect and deposit the nomination forms for the purpose of contesting the panchayat elections already notified
  • call for Central Para-Military Forces to maintain the law and order during the conduct of the panchayat elections in the State of West Bengal.

Relying upon the newspaper reports which appeared in the Times of India, Kolkata edition dated 03.04.2018 and 04.04.2018, the Statesmen, Kolkata edition dated 04.04.2018 and the Telegraph e-paper preview, BJP had contended that it’s candidates who want to contest election for the panchayat which is to be held in the State of West Bengal are not allowed to collect the nominations forms and to submit the same on account of violent resistance being put by the supporters of the ruling party.

The Court, however, noticed that the West Bengal Panchayat Elections Act, 2003 has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and election process and

“It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.”

The Court, hence, disposed of the petition by granting liberty to all political parties, their candidates, including any independent candidate/s proposing to contest the election in question, to approach the State Election Commissioner with their any individual or/and collective grievance. The Court said that it hoped thatin order to ensure fair and free election to the panchayats, the State Election Commission will take appropriate steps to remove the apprehensions of the petitioner and/or intending candidates and they may not be deprived of their chance to contest the panchayat elections.

The West Bengal panchayat polls that are scheduled to be held on May 1, 3, and 5. According to the notification, the last date for filing of nominations is April 9 and the last date of scrutiny of the nominations is April 11. [Bhartiya Janata Party, West Bengal v. State of West Bengal,  2018 SCC OnLine SC 337, decided 09.04.2018]

Case BriefsHigh Courts

High Court of Madras: In its recent judgment, a Single Bench of M. Venugopal, J. upheld the election of DMK working President M.K. Stalin from the Kolathur assembly constituency during the State Assembly Election held on April 13, 2011.

The petition sought to declare the election of DMK candidate as null and void on account of misuse of official machinery, declaration of false expenditure account and illegal distribution of money among the voters, violating the directives of the Election Commission of India. In his submission, the petitioner contended that the police force, the ground level polling staff as well as the Returning Officer were reluctant in taking any action against the respondent due to his political strength, consequent to the declaration of being duly elected from the constituency. The respondent denied all charges levied on him and submitted that the sources of the petitioner’s claims were unfounded, lacked merit or carried no evidentiary value. Even if it was to be believed that the respondent’s party men did engage in any such illegal activity as claimed by the petitioner, the respondent contends that it was done without his knowledge and consent and he could not even be held vicariously liable.

The Court observed that a consent cannot be inferred from mere knowledge alone in law and must be proved by strong evidence. The lack of such principles would be a “categorical averment”. Further, it held the evidence extended by the petitioner to prove their allegation of money distribution by the Stalin’s party in a novel way of community feedings, courier service, currency in the newspaper, arathi plate contributions and slips to the voters to purchase consumer items, were unsatisfactory, unconvincing and unacceptable. It dismissed the petition on account of the allegations of corrupt practice being vague and based on mere assumption, suspicion and simmering doubt.

The Court took this litigation as an opportunity to point out that the Rules of Madras High Court on Election Petition should include conclusion of trial of every election petition within six months of institution and develop the procedure into a more effective and efficacious one. [Saidai Sa. Duraisamy v. Stalin M.K., 2017 SCC OnLine Mad 1832, order pronounced on 01.06.2017]

Case BriefsHigh Courts

Uttaranchal High Court: Addressing the present petition highlighting the apprehensions that are being raised upon the functioning of Electronic Voting Machines (EVMs) and Verifiable Paper Audit Trial (VVPAT) Machines, especially in the light of the recently concluded Legislative Assembly Elections in five States, the Division Bench of Rajiv Sharma and Sharad Kumar Sharma, JJ., observed that, Article 324 of the Constitution has a wide ambit and gives the Election Commission powers to cope up with any unprovided scenarios vis-à-vis smooth conduction of elections. Thus the Election Commission can use its residuary power under Article 324 to fill the vacuum and to “meet unforeseen contingencies”. However the Court noted that off late various political parties have started a systematic campaign to tarnish the image of the Commission by casting doubts upon the EVMs. To this, the Court held that, it cannot allow the national parties to tarnish the image of a Constitutional body such as the Election Commission and that freedom of speech and expression doesn’t permit to level unsubstantiated charges against the constitutional bodies.

The petitioner, a politician had expressed certain reservations regarding the use of EVMs. Counsel for the petitioner Arvind Vashisth contended that the role of Election Commission gets over the moment election results are declared, therefore the proposed “EVM Hackathon” on 03.06.2017 as it has been notified in the Commission’s press release dated 20.05.2017, will affect the outcome of the pending election petitions in this Court and other High Courts. The respondent argued that the EVM is not hackable and it cannot be physically tampered during transportation or at its manufacturing stage and the proposed ‘hackathon’ has been undertaken by the Commission to allay the apprehensions of the political parties.

The Court held that broad meaning should be given to Article 324 and the Court also must “promote”, “nurture” and “maintain” independence of constitutional bodies and protect them from criticism. It further stated that use of EVM has been ordered by the Commission while exercising the power under Article 324. The Court lastly held that the faith of people must be safeguarded on fair and free election which is a basic feature of the Constitution, therefore in public interest the Court restrained all political parties, NGO’s and individuals from criticizing the use of EVM, till any decision is reached over the pending election petitions and the decision to hold the ‘hackathon’ challenge was left on the discretion of Election Commission with a caveat that the results of the challenge does not in any way affect the decision in the pending petitions. [Ramesh Pandey v. Election Commission of India, 2017 SCC OnLine Utt 676, decided on 02.06.2017]