Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., disposed of a writ petition while issuing directions which was filed by the member of General Body of a Society, which runs a Government Aided Inter College, namely, “Inter College Kimsar, Pauri Garhwal”.

Petitioner contended that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management had expired in 2013 and no elections were held thereafter, thus he was before the Court.

The Court reminded that Section 34(4) of Uttarakhand School Education Act, 2006 provided for the appointment of Authorized Controller and proviso to Section 34(4) provided that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, was an exception to the provision contained in the first proviso and it provided that in exceptional circumstances, the Authorized Controller may continue to function even after a period of five years.

The Court stated that Inter College Kimsar was a private educational institution, run by society and the college has to be managed by an elected Managing Committee, whose term would be three years and thus not holding elections was against the bye-laws of the society and duly approved Scheme of Administration of the college.

The Court disposed off the petition with directions of holding the elections.[Alam Singh Rawat v. Additional Director of Education,  2021 SCC OnLine Utt 45, decided on 07-01-2021]


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Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., while allowing the present petition, issued directions for the conduct of elections in the institute in question, holding that, “Holding elections at regular intervals is mandated by law, to ensure that democratically elected Management Committee looks after the affairs of the college.”

 Background

Grievance of the petitioner is that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management expired in 2013 and no elections were held thereafter. Presently an Authorized Controller appointed by respondent 1, is looking after the affairs of the Inter College.

 Observation

Court noted the relevant provisions of the Uttarakhand School Education Act, 2006 and said, “Section 34(4) of Uttarakhand School Education Act, 2006 provides for appointment of Authorized Controller and proviso to Section 34(4) provides that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, is an exception to the provision contained in the first proviso and it provides that in exceptional circumstances, the Authorized Controller may continue to function even after period of five years… In the present case, last election was held in the year 2010 and thereafter no election has been held. Such state of affairs is against the byelaws of the society and duly approved Scheme of Administration of the college. Thus it is in the interest of all concerned that elections to constitute Management Committee are held at the earliest.”

 Decision

While allowing the present petition, Court issued the following directions;

(i) Authorized Controller shall get advertisement published in two newspapers for inviting applications from eligible persons for induction as member of the society within two weeks.

(ii) Competent Authority shall thereafter prepare a voter list within next three weeks.

(iii) Competent Authority shall fix a date for election at the earliest, but not later than two weeks from the date of preparation of voter list.

(iv) Authorized Controller shall handover charge to the newly elected Managing Committee, within seven days from the date of declaration of result of election.[Alam Singh v. Additional Director of Education, 2021 SCC OnLine Utt 45, decided on 07-01-2021]


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Case BriefsHigh Courts

Bombay High Court: A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

Backdrop

The petitioner was aggrieved by the rejection of her nomination form by the Returning Officer. She had decided to choose the female gender, and hence had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form was that the petitioner is a transgender. It was stated that there is no reservation for the transgender category in the instant village panchayat elections.

Submissions

A.P. Bhandari, Advocate for the petitioner, on instructions, made a categoric statement before the High Court that this was the first occasion wherein the petitioner had opted for a right to a self-perceived gender identity and had selected the female gender for all purposes during her lifetime. He submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It was stated that the Returning Officer was likely to be unaware of the law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

Analysis & Decision

The High Court relied heavily on and followed the law laid down in the “NALSA case” [National Legal Services Authority v. Union of India, (2014) 5 SCC 438] wherein the Supreme Court has comprehensively dealt with the issue of the rights of transgender people. The Court noted that the Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity.

In the present case, the petitioner had opted for the female gender as her self-perceived gender identity and made a solemn statement, which was recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.

It was observed by the Court:

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

In view of the above, this writ petition filed by the petitioner was allowed. The impugned order passed by the Returning Officer was quashed and set aside. Since the nomination form of the petitioner was otherwise complete in all respects, the same stood accepted and she was permitted to contest the election from the ward and category which she had opted for in her nomination form. [Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11, decided on 2-1-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Surya Prakash Kesarwani and Dr Yogendra Kumar Srivastava, JJ., a dispute relating to the election of the Matsya Jivi Sahakari Limited, a co-operative society, cannot be called in question under writ jurisdiction of the High Court in light of the U.P. Co-operative Societies Rules, 1968 and the U.P. Co-operative Societies Act, 1965.

The instant petition was filed to seek a direction to decide the petitioner’s claim with regard to election proceedings of a co-operative society namely Matsya Jivi Sahkari Limited.

Standing Counsel appearing for the State respondents drew the attention of this Court to the provisions under Section 70 of the Uttar Pradesh Co-operative Societies Act, 1965 and the proviso to sub-section (1) thereof and also to Rule 444-C (2) of the Uttar Pradesh Co-operative Societies Rules, 1968, to contend that once an election of a co-operative society has been held, the remedy available to the aggrieved party is by seeking a reference of the dispute to the Registrar.

Bench noted that the manner of settlement of disputes is provided under Chapter IX of the Act, 1965.

Further, Section 70 is in respect of disputes which may be referred to arbitration and in terms thereof, the disputes specified under sub-section (1) are to be referred to the Registrar for action in accordance with the provisions of the Act and the rules and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any such dispute.

In terms of Section 70 (1), a dispute relating to an election under the provisions of the Act or the rules made thereunder, shall not be referred to the Registrar until after the declaration of the result of such election.

Adding to the above, Court also explained that Sub-rule (1) of Rule 444-C provides that the election in a co-operative society shall not be called in question either by arbitration or otherwise except on the grounds specified under clause (a) and clause (b) under sub-rule (1).

In terms of sub-rule (2) a dispute relating to an election shall be referred by the aggrieved party within forty-five days of the declaration of the result.

In the instant case, elections of the co-operative society in question were already held and the results thereof were also declared.

In view of the aforesaid facts and situation, any complaint, grievance or dispute which is being sought to be raised with regard to the elections, is to be referred to the Registrar on an appropriate application by the aggrieved party.

High Court in light of the above discussion of provisions held that:

“Any grievance, complaint or dispute relating to the election proceedings of a co-operative society can be called in question on the grounds specified under sub-rule (1) of Rule 444-C by applying for a reference by making an appropriate application under Section 70 of the Act, 1965.”

Since the whole mechanism with regard to the settlement of disputes in regard to a co-operative society election has been provided, Court is not inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.

Hence, the petition was dismissed. [Matsya Jivi Sahkari v. State of U.P., 2020 SCC OnLine All 1505, decided on 16-12-2020]

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V J., while allowing the present petition, discussed the importance of free and fair elections and further issued necessary directions for the conduct of local self-government elections.

Background

The present petition was heard jointly with WP (c) 27590 of 2020 and WP (c) 27596 of 2020, filed by candidates/election agents raising apprehensions of threats and violence by the rival party workers on the days leading to the election to the Local Self Government Institutions in the State of Kerala. In all these cases, the petitioners assert that their opponents, who owe allegiance to the party in power, would get support from the executive machinery of the State and neither them nor their party workers will be permitted to approach the voters and convince them in a free manner. They contend that there would be violence on polling day and there is a reasonable possibility of their booth agents as well as the voters being threatened and obstructed. According to them, if the atmosphere in and around the polling booth is not peaceful, it would prevent voters from venturing out and casting their vote. In some of the writ petitions, the petitioners contend that their constituency is politically very sensitive and there have been incidents of poll violence during the last elections. According to them, technology has progressed to such an extent that it is perfectly possible for the Election Commission to set up cameras in and around the polling booth and carry out web casting which would dissuade the troublemakers from interfering with the election process. In some of the writ petitions, directions are sought to be issued to the Election Commission to ensure that impersonation of voters and casting of bogus votes are avoided. They also request that enough contingent of law enforcement officers be deployed to maintain peace and calm in and around the polling stations so that the voters can exercise their franchise and elect their person of choice.

 Observations

Court issued directions to specific authorities so to ensure proper conduct of elections, in addition to laying down the Constitutional idea behind creating Part IX and Part IX-A of the Constitution. It said, “The Panchayats and Municipalities are ‘institutions of self-governments’ and their seats are filled up in a democratic manner by direct elections. The local bodies are responsible for the implementation of various centrally-sponsored, State-funded, and externally-aided schemes for poverty alleviation, employment generation, sanitation, capacity building, women’s social and economic empowerment apart from the provision of basic amenities and services. In other words, under the Constitutional scheme, for a more effective development at the grass-root level, vast powers are granted to the local self-government institutions.”

With respect to free and fair elections, the Court noted, “It needs no reiteration that it is in the interest of the citizenry that elections to the local body are conducted in a free and fair manner and well-meaning candidates, who are honest and competent, with integrity and good conscience, get elected to the local bodies. It is in order to effectuate the said purpose that an independent Election Commission has been constituted in each of the States in the country for superintendence, direction and control of the electoral rolls. The duty cast upon the Election Commission to conduct and manage the election with the aid of the State Government machinery is onerous.”

Court further gave instructions to the authorities involved in the conduct of elections, in the order as follows;

Police protection to the candidates and their election agents

With respect to the pleadings made by the Government pleader, to accord proper police protection throughout elections, the Court remarked, “From the statistics it appears that about 1.68 lakhs persons have submitted nominations. It would not be possible for the police to extend protection to each and every candidate. However, in those petitions, wherein the candidates or their election agent have submitted complaints complaining of threat before the police, the Superintendent of Police of the area shall take note of the threat perceptions and grant protection to the candidates and their agents.”

Facility for webcasting and video recording of election proceedings

With respect to the prayer made for allowing video recording, the Court noted, “Since the Election Commission has taken the decision to identify the polling booths on the threat perceptions and intelligence reports given by the police, this Court will not be justified in interfering with the discretion of the Election Commission and the high level officers of the State in that regard. Though ideally, videography ought to have been provided in all booths due to the resource limitations it would not be possible to undertake such an activity. However, the Election Commission has identified accredited videographers and the candidates will be at liberty to approach the District Electoral Officer and on payment of necessary fees by the person as authorised by the candidate or his election agent, the Commission shall permit videography to be carried out.”

Maintaining peace and tranquility on Election day

Court permitted zero tolerance policy in hypersensitive constituencies and moreover said, “Even in polling stations which have not been categorised as sensitive and in those cases wherein the candidates or the election agents are before this Court in these writ petitions, enough number of police personnel shall be posted to rule out any incidents of violence or election malpractice.”

Prevent electoral malpractices such as impersonation and bogus voting

Addressing the present issue, the Court observed, “The grievance regarding impersonation and bogus voting though raised by the petitioners, such a possibility would be non existent as the issuance of valid voter IDs and the availability of the photograph of the voter in the voters slip and the provisions of the Act with regard to identification of voters would obliterate such issues.”

Decision

Court disposes the present batch of petitions, issuing directions aforementioned.[Lijina M.V v. State of Kerala, 2020 SCC OnLine Ker 7148, decided on 11-12-2020]


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Hot Off The PressNews

Supreme Court of The United States: The Court on Friday rejected a bid from Texas’ Attorney General, supported by President Donald Trump, to block the ballots of millions of voters in battleground states that went in favor of President-elect Joe Biden. Texas’ motion for leave to file a bill of complaint was denied due to lack of standing under Article III of the Constitution. The Court further observed that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections”. Although, Samuel Alito and Clarence Thomas, JJ., noted that they would have allowed the case to be filed – “I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue”.

In the recently held US Presidential Elections, the “Swing States” of Pennsylvania, Michigan, Georgia and Wisconsin, swung in favour of Joe Biden. The lawsuit was brought by Texas’ Attorney General, Ken Paxton, who sought to sue the abovementioned States and invalidate their election results.

Incumbent President, Mr. Donald Trump and his allies have repeatedly raised allegations of foul play committed during counting of the votes; especially in the “Swing States”.

This is not the first instance of thwarting the Republican Party’s efforts to challenge the legitimacy of the Election results. On 08-12-2020, the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joe Biden’s victory in the state of Pennsylvania. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

[Texas v. Pennsylvania, decided on 11-12-2020]


Source: CNN


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Hot Off The PressNews

Supreme Court of The United States (SCOTUS): In a major setback to the Republican Party’s attempts to invalidate the results of recent Presidential Elections, Full Bench of the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joseph R. Biden Jr.’s victory in the state of Pennsylvania. The results of the Election have already been certified and submitted.

Dismayed by the defeat of the “Grand Old Party” (GOP) in the 2020 Elections, incumbent President, Mr. Donald Trump has been raising qualms over the process involved vis-à-vis the mail-in ballots and absentee ballots on mainstream and social media.

However, this is not the first instance thwarting the efforts of the Republican Party to challenge the legitimacy of the Election results. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

The emergency petition from the Republicans was addressed to Samuel Alito, J., who has jurisdiction over the Pennsylvania courts. He referred it to the whole court, which issued the order. The one-sentence order was issued with no noted dissents or comment from any of the nine Judges.[Kelly, Mike et al. v. Pennsylvania, decided on 08-12-2020]


Source: New York Times and CNN


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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]


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Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Background

By this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of mandamus for enjoining the second respondent; the State Election Commission (for short ‘SEC’) to conduct elections to 6015  Grama Panchayats in the State of Karnataka before the expiry of five years term, as provided in clause (3) (a) of Article 243E of the Constitution of India. Apart from seeking the Writ of Mandamus, the challenge is also made against the order passed by the SEC on 28-05-2020, postponing the elections to all the Gram Panchayats in the State, owing to an ‘extraordinary situation’ created by the spread of COVID – 19. In its statement of objections filed on 30-06-2020, the SEC relied on the case of Kishansing Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, where it was held by the Supreme Court that certain man-made calamities or natural calamities, which could prevent the authorities from holding elections can be treated as ‘exceptional circumstances’. It was then pleaded that COVID – 19 has created such extraordinary circumstances, that calls for postponement of the elections. Additional objections were filed to reiterate that all steps taken were in compliance with the statutory powers of the SEC and that there is no intention of delaying the elections for an undefined period. The State Government, echoing the same stand in its affidavit said, that there will be approximately 2,95,64,498 voters in the Grama Panchayat elections and the number of candidates may  be around 2,50,000. There is a likelihood of candidates and voters not strictly following the social distancing norms and failing to comply with the other standards released by the Ministry of Health, and therefore, it shall be in the interest of the public health and governance, to postpone the conduct of elections for the time being.

 Contentions

Shri Ravivarma Kumar, Senior Counsel appearing for the petitioners has referred to 73rd Constitutional Amendment. He pointed out that the entire object of the amendment was to ensure that the State  Government should not interfere with the local self-government and Panchayats. He further invited the Court’s attention to Article 243K of the  Constitution of India which lays down that the SEC is vested with the powers of superintendence, direction, control and preparation of electoral rolls as well as the conduct of elections of the Panchayats.

K. N. Phanindra, Senior  Counsel appearing for the SEC submitted that fixing of the schedule of elections and issuance of the calendar of events is within the exclusive domain of the SEC and it is an independent power of the SEC. He submitted that when it comes to elections to Panchayats and Municipal bodies, the SEC enjoins the same status as that of the Election Commission of India. He further pointed  out the steps taken by the SEC in this regard and submitted that tentative schedule of election has already been produced in a sealed cover along with the memo. He pointed out that in the meeting held between the SEC and the executive authorities, the majority of the Deputy Commissioners were of the view that elections should be held during November or  December, 2020.

Shri Prabhuling K. Navadgi, Advocate General for the State relied on the decision of the Supreme Court in K.S. Puttaswamy (Privacy-9J) v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, arguing the need to achieve a balance between compelling State Interest and public health and the concept of Transformative Constitutionalism.

Observations

Drawing difference between the powers of SEC and the State Government with respect to conduct of elections, the Court observed, The SEC is an independent body created under the Constitution and the SEC must function independently of the State Government in exercise of its powers of superintendence, direction and control of Panchayat elections. The State Government has no control over the SEC in these matters. In fact, as held in the case of Kishansingh Tomar, the State is duty bound to abide by the directions of the SEC in the same manner in which it is under a mandate to follow the directions issued by the Election Commission of India during the election of Parliament and State Legislature.  In  fact, the  SEC while conducting elections of panchayats or Municipalities enjoys the same status which is enjoyed by the Election Commission of India for conducting elections for Parliament and State Legislature.”

With respect to the discretionary power of the SEC to decide of ‘exceptional circumstances’ to postpone the elections, the Court remarked, “(…)it is for the SEC to take a call and take a decision at its discretion on the existence of the exceptional circumstances. But SEC cannot altogether ignore the constitutional mandate. To meet  a  particular  contingency, the SEC can hold elections in a phase-wise manner.”

Dismissing the State’s argument of not being able to provide machinery for the proper conduct of elections, the court said, The stand of the Government cannot be accepted inasmuch as, when it comes to providing necessary staff for the conduct of elections, the State Government does not come into picture. It is for the Hon’ble Governor to provide requisite staff to the SEC.”

 Decision                 

Allowing writ of Mandamus, the Court held, “It is only in very exceptional circumstances that the SEC can conduct elections after expiry of the term of Panchayat. Whether such exceptional circumstances exist or not is a matter within the exclusive domain of the SEC. The State Government plays no role in deciding whether such exceptional circumstances are in existence. For deciding whether such circumstances are in existence, it is always open for the SEC to  consult the Government on factual aspects; We, therefore, direct the State Election Commission to finalize the schedule of elections of  Grama  Panchayats.”[KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020, decided on 13-11-2020]


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Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): While deciding upon the application for stay presented in relation to Alabama Secretary of State’s decision to ban curbside voting despite the ongoing COVID–19 crisis and the willingness of certain Alabama counties to assist voters with disabilities, the Court with a ratio of 5:3 allowed the application thereby allowing Alabama election officials to put a ban on curbside voting. The Court thus put a stay on a Federal District Court order which had lifted the ban on Alabama counties from offering curbside voting in light of the COVID-19 pandemic. Sonia Sotomayor, Stephen Breyer and Elena Kagan, JJ., dissented with the majority.

 Facts and Trajectory of the Case

 Curbside Voting allows a person with disability to vote outside the polling place or in their cars.  In order to be effective, the curbside voting system must include:  (1) signage informing voters of the possibility of voting curbside, the location of the curbside voting, and how a voter is supposed to notify the official that she is waiting curbside; (2) a location that allows the curbside voter to obtain information from candidates and others campaigning outside the polling place; (3) a method for the voter with a disability to announce her arrival at the curbside [a temporary doorbell or buzzer system would be sufficient, but not a telephone system requiring the use of a cell phone or a call ahead notification]; (4) a prompt response from election officials to acknowledge their awareness of the voter; (5) timely delivery of the same information that is provided to voters inside the polling place; and (6) a portable voting system that is accessible and allows the voter to cast her ballot privately and independently. Alabama law neither prohibits nor requires curbside voting.

 John H. Merrill, the applicant and also Alabama’s Secretary of State, imposed a ban on curbside voting. The ban was challenged by the Alabama voters who sought to block the Secretary’s ban in light of the coronavirus pandemic. The District Court held that the Secretary’s ban violated the Americans with Disabilities Act (ADA) by forcing voters with disabilities (for whom COVID–19 is likely to be fatal) to risk unnecessary exposure to the virus if they wish to vote in person. The District Court in its order allowed counties that are ready to adopt curbside voting to do so. The 11th Circuit temporarily stayed other parts of the District Court’s order but declined to freeze the part of the order permitting curbside voting thereby culminating in the instant appeal.

 The Dissent

While the majority did not assign any reasons to their decision to retain the ban on curbside voting in Alabama, the dissenting Judges elucidated their reasons. Sonia Sotomayor, J., observed that, “As of October 20, 2020, Alabama’s Department of Public Health has identified 174,528 cases of COVID–19 in the State”. She noted that in order to combat the spread of COVID–19, the Centers for Disease Control and Prevention have recommend that States consider curbside voting. She further observed that the District Court found that the Secretary’s ban deprives disabled voters of the equally effective “opportunity to participate in” the “benefit” of in-person voting. The District Court’s injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; but simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections and it does not risk creating voter confusion and consequent incentive to remain away from the polls.

To drive the dissenting Judges’ reasoning, Sotomayor, J., referred to the testimony of one of the voters who challenged the ban in the District Court,- a Black man in his 70s  suffering from asthma and Parkinson’s disease, named Howard Porter Jr. Porter recalled that his ancestors had died for the right to vote. “And while I don’t mind dying to vote,” he said, “I think we’re past that — we’re past that time”. Sotomayor, J., concluded by stating that, “With election officials in at least two counties “ready and willing to help vulnerable voters” by allowing curbside voting, the Supreme Court should not stand in the way.”[John H. Merrill v. People First of Alabama, 2020 SCC OnLine US SC 8, decided on 21-10-2020]


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Press Council of India while considering the communication received from Election Commission of India advises the print media to refrain from publishing article which in any way whatsoever predict the results of the elections during the prohibited period under Section 126A to ensure free, fair and transparent election.

In the council’s view, the prediction of election results in any form or manner by way of predictions, etc. by astrologers, tarot readers, political analysts or by any persons during the prohibited period is a violation of the spirit of Section 126A which aims to prevent constituencies still going to polls from being influenced in their voting by such predictions about the prospects of the various political parties.

Print media is hereby advised not to publish/publicise any such article of results, during the prohibited period i.e. between 7 am on 28-10-2020 and 6.30 pm on 07-11-2020 in the current General Election to the State Legislative Assembly of Bihar, 2020 to ensure free and fair elections.

Hence, in view of the above, newspapers/ news agencies are advised to adhere to the above mentioned time frame before publishing the article of elections results, etc.


Press Council of India

[Dt. 20-10-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., dismissed an application which was filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the Charge Sheet.

Elections of the Legislative Assembly of Uttarakhand were held in the year, 2012. The applicant had contested the said election as a candidate of the Indian National Congress Party. While contesting the said election, the present applicant had printed a picture (photo) of Lord Badrinath in his handbills as well as pamphlets. On account of this illegal act on the part of the applicant to influence the voters and used the religious feelings of local people, an FIR was lodged against the applicant under Section 125 of the Act, 1951 and Section 153A of the Penal Code, 1860. After the submission of charge sheet when the Chief Judicial Magistrate took cognizance under Section 171-F of the Penal Code read with Section 123 (3) of the Act, 1951 against the present applicant and passed the summoning order, being aggrieved by which the applicant had filed a revision which was allowed by the Sessions Judge and in pursuance to the revisional order the Chief Judicial Magistrate took the cognizance in the offence punishable under Section 125 of the Act, 1951 and issued summons to the present applicant. The counsel for the applicant, Pankaj Purohit contended that the applicant was already a popular candidate and was well known in the constituency, he was given the charge of “Youth Welfare and Sports” portfolio in the Government; he completed his tenure of five years as a Cabinet Minister in the Government. He further contended that from the bare perusal of the FIR, it was evidently clear that no offence is made out as defined under Section 125 of the Act, 1951; by mere printing of pamphlets with the picture of Shri Badrinath Temple, no offence under Section 125 of the Act, 1951 was constituted; during the investigation, no evidence was collected by the Investigating Officer which would infer the promotion of religious enmity or hatred between two communities on account of the fact of printing of the pamphlets, containing the photo of Lord Badrinath Temple. The counsel for the State, S.S. Adhikari assisted by P.S. Uniyal on the contrary contended that Investigating Officer had found credible evidence against the applicant for his involvement in commission of the crime; there was a specific case against the applicant for his involvement in commission of the crime.

The Court while dismissing the application set aside the prayers of quashing the charge-sheet and explained that “it was fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India transcending religious, linguistic and regional or sectional diversities. For fair and peaceful election, during the election campaign, party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on ground of religion, race, caste, community or language.”

The Court further held that the applicant was not able to show at this stage that allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant.[Rajendra Singh Bhandari v. State of Uttarakhand, 2020 SCC OnLine Utt 551, decided on 21-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Op EdsOP. ED.

Introduction

Eradication of political corruption is one of our long sought-after aspirations as a country to achieve an ideal democratic structure. However, in practical terms, these issues are far from being eliminated. Through media reporting, actions that count as an unethical or corrupt practice can also be seen very frequently. One of them is canvassing based on religion. While living in India we proudly adorn the title of being the largest democracy in the world and we also have the privilege of having the greatest democratic elections in human history. Elections in India are known as the Grand Festival of Democracy. However, in a country where elections are so important, there are certain things which make politics in India a dirty game, and Section 123(3) of the Representation of the People Act of 1951[1] (hereinafter referred to as ‘the Act’) is enacted to put a hold on one of the many ill practices.

Article 19(1)[2] defines the much-revered freedom of speech and expression. As mandated by the Constitution, freedom of speech and expression is a natural right which means that citizens acquire this right by birth. All the citizens hold the freedom of speech and expression but, it does not act as an unconditional licence. Therefore, certain reasonable restrictions are placed under Article 19(2) of the Constitution. Section 123(3) of the Act prohibits canvassing by an electoral candidate to woo voters in the name of race, caste, religion, community and language. It also prohibits usage of religious symbols or national symbols or flag for canvassing purposes. Usage of the aforesaid are considered to be corrupt practices. The electoral candidates cannot promise any public policy which they propose to implement on being successful. Article 25 of the Constitution guarantees the citizens of India, freedom of conscience and allows every citizen the right and freedom to profess, practice and propagate the religion of one’s choice subject to public order, health and morality.

The authors have attempted to compare Article 19(1)(a) of the Constitution of India and Section 123(3) of the Act and have studied whether Section 123(3) of the Act is violative of Article 19(1)(a) or not in the context of the demographical feature of India and in the backdrop of the voters of the constituencies.

The Role of Election Commission

The Election Commission of India is a constitutional body, deriving its source of powers and functions from Article 324 of the Constitution of India. Entry 72 of Union List – Schedule 7 provides for the source of power to Parliament to regulate and frame laws with respect to elections to Parliament, State Legislatures and the election of the President and the Vice- President of India.

The Election Commission of India (hereinafter referred to as ‘the ECI’), over the years has passed rigid orders barring candidates like Maneka Gandhi, Azam Khan, and Giriraj Singh from campaigning and canvassing for votes, on the grounds of making communal speeches, which were against Section 123(3) of the Representation of People’s Act, 1951. In all the cases, the ECI reasoned out that the aforesaid candidates acted in contravention to the Model Code of Conduct (‘MCC’) which comes into force after the declaration of election is announced by the ECI and fell squarely within the ambit of ‘corrupt practices’, by appealing in the name of caste or communal feelings to secure votes. MCC stipulates that no political party or candidate can secure votes based on caste and religion. In many constituencies, there are poor people who do not possess the knowledge about the voting rights and the requisite knowledge with respect to corrupt practices, etc.

Some candidates try to take advantage of such public ignorance and use religion as to appeal for votes. The candidates often make hollow promises that, ‘if’ they are voted to power, then they will roll-out every possible schemes and benefits for the people of one distinct religious sect.

The Election Commission endeavours to take all the necessary measures to ensure that free, fair and peaceful elections in the country. However, it has been observed in practice, that the guidelines issued by the Election Commission are not followed strictly, rather there is an attempt to flout the rules, which leads us to an inevitable conclusion, that there is a strong need for electoral reforms in the country. The Preamble of the Indian Constitution states that India is a democratic and a secular nation. The word “democratic” means that we have the right to choose our own representatives. A Government of the People, For the People and By the People. “Secular”, on the other hand, means that our country does not have an official State sponsored religion unlike many other countries of this world. For example, Pakistan is known by the official name – “The Islamic Republic of Pakistan” which clearly indicates that Pakistan has a State religion but, on the other hand India’s Constitution bars any State religion. The election being the most important and integral part of any democracy, should remain sacrosanct and therefore, it is again important to reiterate the fact that the candidates should not appeal for votes in the name of religion or any other class differentiation; it defeats the ethos of a healthy democracy.

Judicial Interpretations

The Indian judiciary has decided multiple cases on the aspect of “corrupt practices”. In S.R Bommai v. Union of India[3], the Supreme Court observed that secularism is a part of the basic structure of the Constitution. A section of people sometimes describes such an attitude of neutrality towards religious belief as compassionate neutrality, although religious freedom is guaranteed to everyone in India, the faith, religion, and belief of a person are immune from the radar of the State. All are equal before the State and have the right to equal treatment. There is no place for religion in machinery and the working of the State.

If the Constitution mandates the State to remain neutral in perception and behaviour vis-à-vis religion, the same requirement applies to political parties and their electoral candidates as well. The Constitution does not recognise, nor, does it allow the mixing of religion and State power. Concerning Section 123(3) of the Act, the Supreme Court in  S.R. Bommai[4] judgment warranted broader interpretation of Section 123(3) of the Act, thereby rejecting the restrictive reading of the provision as limited to the candidate and her or his opponent(s). However, this was an obiter dicta made in the judgment and is a not a part of the ratio of the judgment, as the case of S.R. Bommai was not directly related to Section 123(3) of the Act, but at the same time, favoured and observed the need for a broader interpretation of Section 123(3) of the RP Act, 1951.

It is important to mention that the Supreme Court has already upheld the constitutional validity of Section 123(3) of the RP Act, 1951 way back in the 1950s in  Jamuna Prasad Mukhariya v. Lacchi Ram[5] on the touchstone of fundamental right to freedom of speech and expression.

In  Manohar Joshi v. Nitin Bhaurao Patil  [6] the Supreme Court rather opined the opposite. The case came up during the Maharashtra State Assembly elections following the ghastly and the much-detested Mumbai riots of 1992-93, where Manohar Joshi, a prominent face of a political party promised to declare Maharashtra as the first Hindu Rashtra in India, if elected to power. The Supreme Court observed that Hindutva is a “way of life and state of mind”, thus there was no problem with it being invoked during the election. The Supreme Court decided this case in favour of Manohar Joshi by resorting to a debatable reasoning that such an exhortation did not amount to “corrupt practice” and though “despicable”, it can at best be described as a “hope” and “not appeal for votes on the ground of his religion.” This judgment was widely criticised by noted jurists in India and abroad.[7] However, such a practice is in violation of Article 25, as it places reasonable restrictions and the State has the liberty to make any law that restricts such economic, financial, political exhortation or activities which may be associated with religious practices.

Section 123(3) of the RP Act, 1951, strictly prohibits any appeal of votes in the name of religion, along with other caveats. The reason being that, India is a secular nation and it has no official religion, however, if we turn a blind eye to these electoral campaigns which are squarely a part of “corrupt practices” especially wooing voters in the name of religion, shall be against the ethos of democracy and secularism which is a part of the basic structure of the Constitution.

If we try to analyse the verdict of Manohar Joshi[8], from the perspective of a common man belonging to a particular religious sect, such a decision would instil fear in the minds of those people, as it runs counter to the constitutional morality and ethos imbibed by the framers of the Constitution.

In  Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel[9], the Supreme Court stated by a majority of 2:1, that the appeal of a political leader to the mass with respect to the fact that voting for a party will be against the religion does not amount to corrupt practice. The Supreme Court observed that, vide Section 123(3) of the RP Act, the candidate or his or her agent should not appeal to the voters for voting or refrain from voting for any person on the basis of their religion, that is, the candidate’s religion which means, that they should vote candidate on the basis of qualities and not on the religious grounds.

In  Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte and Bal Thackarey v. Prabhakar Kashinath Kunte [10] an election campaigning speech was made on the grounds of religion and a particular religious sect was maligned. The Court agreed with the High Court, that the speeches were within the ambit of corrupt practices of wooing of voters in the name of religion as covered under Section 123(3) of the RP Act, 1951.

In  Abhiram Singh v. C.D. Commachen [11], a seven-Judge Bench of the Supreme Court held that, calling for votes in elections based on religion, caste, race, community or language, including that of the electorate, would constitute a ‘corrupt practice’ under Section 123(3) of the RP Act, 1951 and  would call for the candidate to be disqualified. The Supreme Court opined that, “Election is a secular exercise and hence a process must be followed.” The relationship between man and God is an individual decision and this should be kept in mind,” ruled the Supreme Court in a 4:3 majority judgment.

The seven-Judge Bench of the Supreme Court held that an appeal in the name of religion, race, caste, community or language is inadmissible under the Representation of the People’s Act, 1951 and would constitute a corrupt practice adequate to nullify the election in which such an appeal was made regardless as to whether the appeal was in the name of the nominee’s religion. It is not an appeal to discuss matters relating to religion, caste, race, community or language which are of concern to voters on those grounds. The issues of constitutional importance include caste, race, religion and language.  The Constitution deals with them and includes provisions based on those features for the improvement of disabilities and discrimination. These are issues of concern to the electorate, especially where large segments of the population have been deprived of basic human rights due to caste and race-based prejudice and discrimination. The majority view was that, a secular State cannot identify itself with any religion or religious domination. This necessarily means that religion cannot play any role in the governance of a country that must be secular in nature at all times. The object of the RP Act, 1951 is to achieve the purity in elections and to ensure that the elections are free and fair, which means that caste, religion, language and community must be kept out of the electoral process.

The dissenting view (minority), held that, “to hold that a person seeking to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices they face on the basis of the characteristics of origin of religion, race, caste, community or language would be remedied is to reduce democracy to abstraction,” which means that if there is a real problem that is related to religion, democracy would be reduced to abstraction.

Conclusion

In secular politics, correct behavior or propriety requires that an appeal for votes should not be made based on the religion of the candidate, which in itself is not an index of the suitability of the candidate for membership of the House.

Article 19(2) allows for the imposition of reasonable restrictions on the exercise of the right conferred by Article 19(1)(a), which means that Section 123(3) of the Representation of the People’s Act, 1951 falls within the scope and ambit of “reasonable restrictions” and Section 123(3) is not an anti-thesis to Article 19(1) (a) as observed by the  Supreme Court in the judgment of Lacchi Ram in 1955[12] and also in the judgment of Bal Thackarey[13].

It can be safely concluded, that even if it is assumed that the Section 123(3) is a fetter only to be saved as a condition under which the candidate has the statutory right to contest the election, however, the fact that the system of separate electorates had been rejected by the framers of the Constitution and that secularism has been recognised to be a part of the basic structure of the Constitution, are relevant considerations to consider the fetter imposed by Section 123(3) of the RP Act, 1951, as a reasonable restriction on freedom of speech and expression, to maintain the code of conduct, required by morality and the propriety of social norms and to ensure free and fair elections which is also a part of the basic structure of the Constitution.

However, in our opinion, an electoral speech cannot, by itself, fall within the scope of sub-section (3) of Section 123, unless it can be interpreted as an appeal to vote for a candidate on the premise that, the candidate belongs to a particular religious community and that he is trying to woo voters based on religion and announcing packages as a part of his speech, or to abstain from voting for the candidate based on his religion. The mere reference to any religion in an election speech does not come within the definition of sub-section (3) and/or subsection (3-A) of Section 123, as a reference may be made to any religion in the context of secularism or to any political party to discriminate against any religious group or, more generally, for the conservation of Indian culture. In short, the mere use of the word ‘Hindutva’ or ‘Hinduism’ or the reference in an election speech to any other religion does not bring it within the scope of Section 123(3) and/or sub-section (3-A) to Section 123, unless the additional elements indicated in the provision, are also present in that speech. It is also essential to see the meaning and significance of the speech, and how it is likely to be perceived by the audience to whom the speech has been addressed.

Therefore, it is a task for the Election Commission to ensure that a strict vigil is kept and also it is also required that the election petitions are decided in a time-bound manner, as there are examples of election petitions getting decided after a period of four to five years, which allows a returned candidate to get away with a perpetration and the concept of free and fair elections are defeated.


*Advocate-On-Record, Supreme Court of India and Senior Associate, L&L Partners, New Delhi

**3rd Year Law Student, MAIMS, GGIPSU, New Delhi

[1] Representation of the People Act, 1951

[2] Article 19 of the Constitution

[3] (1994) 3 SCC 1  

[4] Ibid.

[5](1955) 1 SCR 608

[6] (1996) 1 SCC 169  

[7] https://www.outlookindia.com/magazine/story/endorsing-hindutva/200472

[8] (1996) 1 SCC 169

[9] (1969) 1 SCC 455

[10] (1996) SCC  130

[11] (2017) 2 SCC 629

[12](1955) 1 SCR 608

[13] (1996) SCC 130


Image Credits: Ecuador Times

Op EdsOP. ED.

I. Introduction

In recent times, the Speaker’s Office has come under scrutiny in maintaining the tenets of parliamentary democracy. Parliamentary democracy builds upon the free and fair electoral process. People of India have reposed absolute trust in the democratic values by whole-hearted participation during the election. Unfortunately, some post-election developments create an environment of mistrust amongst the people on the righteousness of the electoral system. The ongoing crisis in the Rajasthan is a testimony of such distrust.

Besides numerous political questions in Rajasthan, the Speaker’s decision has raised a substantial constitutional question on the nature and power of the Speaker’s Office. Whether the decision, to serve the show-cause notice to the disgruntled members of the ruling party, taken by the Speaker partakes the partisan character of the Office of the Speaker? What shall be the role of the Speaker in a situation of political uncertainty? The paper focuses on the power and the function of the Speaker in India, along with a reference from the practice in Britain. The work does not examine the ongoing issue of the decision of the Speaker of Rajasthan Assembly on merit. It limits only the expectations from the Office of the Speaker based on the learning of the British practice and the power vested therein and the justification of the judicial intervention.

II. History and Evolution of the Office of the Speaker

The Office of the Speaker owes its origin to the development of the institution in Britain. In the early days, the Speaker’s role in the British Parliament was that of an agent to the Crown. The Speaker served as an interface between  Parliament and the Crown. The Speaker’s role got redefined when the nature of  Parliament changed from that of an appointed body to an elected representative.

Speaker Lenthall described the nature of his Office to King Charles II in 1642: “I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.”

The Cabinet form of Government in the late 17th century under King William III further changed the nature of the speakership. Speakers started associating themselves with the ministry and often held other government offices. Robert Harley served simultaneously as Speaker and as a Secretary of State between 1704 and 1705. Later, Arthur Onslow (Speaker 1728-61) had initiated the process of distancing the Office of the Speaker from the government. By the mid-nineteenth century, it was the norm that the Speaker should be above party politics. Over a period of time, there has been a transformation in the functioning to ensure the neutrality and impartiality in the functioning. The Speaker needs to resign from the political party on being elected and withdraw from active politics after completing the tenure.[1]Although elected under a political party label and functioning as an elected Member of Parliament representing the interest of constituents, the Speaker is expected to operate with complete impartiality.

During colonial rule, the Governor-General was presiding Central Legislative Council. The Governor-General nominated Sir Frederick Whyte, a former member of the British House of Commons as the first President of Central Legislative Assembly in 1921. The first Indian to preside over the President of the Central Legislative Assembly’s Office was Shri Vithalbhai Patel in1925. Though Speaker’s title came in only with the gaining of independence, the Presiding Officer’s institution is thus somewhat older, dating back to 1921.

III. Significance of the Office of the Speaker in India

Prime Minister Nehru had said, “The Speaker represents the House. He represents the dignity of the House the freedom of the House and because the House represents freedom and liberty. Therefore it is right that, that should be honored position, a free position and should be occupied always by men of outstanding ability and impartiality”.[2]

Though the Constitution provides for the Speaker’s method of election, a healthy convention has developed to elect the Speaker unanimously by the House. On the power of the Speaker, the first Speaker of the Lok Sabha G. B. Mavalankar, aptly said that ‘in the whole setup of a parliamentary democracy, the Speaker is the only autocrat, meaning thereby that his exercise of authority requires no previous consultation of concurrence of anybody and the authority is unchallengeable’.[3] The statement of the first Speaker tacitly acknowledges the unfettered power entrusted upon the Office. The plausible reason for unwritten power relates to the extensive function assigned on the Speaker. It is imperative to say that the office-holder needs to be highly cautious in exercising power. Any exercise of power that would have smacked of suspicion must be rejected on account of the responsibility to preserve democracy entrusted on the Speaker.

Based on the constitutional provisions, Rules of Business of the House, and the Conventions, the Speaker’s powers and functions can be divided into four broad categories which can be to (a) run the business of the House, (b) administrative action, (c) quasi-judicial and (d) other functions. The Speaker facilitates the business of the House, ensures equitable participation of every stakeholder during the discussion, decides on the motions moved by the members, assists the members to hold the executive accountable, plays the role of a disciplinarian by suspending/terminating the member or ask them to withdraw from the House, adjourns the House, expunges the unparliamentary statements and decides on the nature of the Bill. On the administrative side, the Speaker heads the Lok Sabha Secretariat, exercises power over a number of Parliamentary Committees such as the Rules Committee, the Business Advisory Committee, and the General Purposes Committee, and nominates the chairman of various committees in place. In the quasi-judicial role, the Speaker decides on the issue of defection of the members from the political party which influences the composition of the House and the formation/continuation of the government.[4] While deciding the defection matters, the principles of natural justice will guide the exercise of power on the procedural aspect. On the substantive aspect, the Speaker should be guided by the absence of arbitrariness and the inherent characteristics of impartiality.

In addition to this, few other powers are vested in the Speaker which includes the power to exercise a casting vote, to resolve a deadlock over a particular matter. That is, when the House initiates a voting procedure, he does not cast a vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes.[5] Thus, it makes his position as impartial as in the English system of democracy.

IV. Parliamentary Democracy and Partisanship

In England, the Speaker’s independence is ensured by a number of conventions and rules of procedures. Most of these have been adopted in India also either in the Constitution or rules of procedure of the House of people. Thus, as in England the salary and allowance of the Speaker are charged from the consolidated fund.[6] His conduct cannot be criticised except on substantive motion or upon resolution for removal.[7] He doesn’t cast a vote except in the case of a tie.[8] He can be removed only by special resolution.[9] However, the exercise of the power by the Office of the Speakers presents a different narrative.

The practice of partiality goes back to the first Lok Sabha when the first Speaker of the House disallowed an adjournment motion brought in to discuss the lathi-charge by policemen in Manipur. He also refused to give up the membership of the political party to which he belonged after getting elected as a Speaker.[10] In 2004, Somnath Chatterji refused to include the Railway Minister’s name in the resolution passed by the opposition in the aftermath of a train accident.[11] Instances of deliberate delay in deciding the disqualification matters of the members in Tamil Nadu and Karnataka also raised the proprietary’s question on the constitutional design of making the Speaker the sole arbiter in the matter of the disqualification.

The continued affiliation with the political party by the Speaker lies at the bottom of the problem. The problems of partisanship arise because of the structural issues regarding the appointment and tenure of the Speaker.[12] Though the Speaker represents the House but he also continues to represent his constituency. Again, he looks forward to contesting the election from the same constituency, which depends upon the permission from the political party’s leader.

The convention of Speakers resigning from their party membership has not developed in India. A reason for this is that the Speaker’s re-election to the House is not assured. All political parties campaign in the constituency of the Speaker. Even after re-electing to the House, the Office of the Speaker is still open for elections in India. Thus, an electoral system and conventions have not developed where the Speaker can forego his membership, thus he is bound to retain party membership. Neelam Sanjiva Reddy was the only parliamentarian who resigned from the political party after becoming Speaker of the Fourth Lok Sabha.

In the United Kingdom, political parties generally do not field candidates against the Speaker during general elections.[13] During the election the Speaker stands as a Speaker seeking re-election and does not campaign on a political issue. There is a presumption if re-elected to the House he would continue as the Speaker, unless he shows an unwillingness to do so.[14]Also, in Britain, the Speaker refrains from taking the post of Minister after demitting the Office.

The broad power and function of the Speaker expects fair and reasonable decision to strengthen the parliamentary democracy. The Speaker is the custodian of the practices that infuses life in democracy. With or without explicit text in the Constitution, the Speaker shall be bound by all such values that deepen the trust of the people in the functioning of the democracy.

V. Conclusion

In the recent matter of the Speaker of the Rajasthan Assembly, the judicial intervention must be examined in the light of the discussion made. It is not only the procedural aspects but also the substantive element of the decision-making that requires the approval of the constitutional principles. Needless to say, the issuance of the show- cause notice falls in the category of the decision-made by the Speaker. Thus, the judicial scrutiny is warranted in a situation of the allegation of partisanship in arriving at a decision. The constitutional status entrusted upon the Speaker would not refrain the court from examining the evidence he arrived at the interim/final decision. In the absence of the adoption of the convention on non-partisanship developed in the United Kingdom as a part of the constitutional law, the action/inaction of the Speaker will be rightly examined by the court of law without dishonoring the mandate of Article 122 of the Constitution. Otherwise, the ideals of the parliamentary democracy will be held hostage to the culture of high command. Until the Supreme Court’s suggestion to insulate the Office of the Speaker form the political pressures through a constitutional amendment is not met (Nariman, J. in Manipur Legislative Assembly case[15] judicial review to preserve parliamentary democracy satisfies the principles of constitutionalism.


*Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. Author can be reached at uday@iitkgp.ac.in

[1] National Democratic Institute for International Affairs, Presiding Officers: Speakers and Presidents of Legislatures (https://www.ndi.org/files/031_ww_presiding_0.pdf).

[2] D. D. Basu, Commentary on the Constitution of India, Vol. 4, (8th Edition  2008)

[3] H. Chand, Power of Speaker, Seminar on Constitutional Development since Independence, Indian Law Institute, New Delhi (1973).

[4] Tenth Schedule, Constitution of India, 1950.

[5] Article 100(1) of Constitution of India

[6] Article 112(3)(b),  Constitution of India

[7] Article 94(c) Constitution of India

[8] Article 100(1), Constitution of India

[9] Article 94, Constitution of India

[10] Harsimran Kalra, Decisional Analysis And The Role Of The Speaker, The Hindu Centre for Politics and Public Policy 2013

[11] NDA passes resolution against ‘partisan’ Speaker (2004),(http://articles.economictimes.indiatimes.com/2004-12-21/news/27403375_1_nda-leaders-lok-sabha-opposition-alliance)

[12] Id., note 10.

[13] House of Commons, Office and Role of Speaker, UK Parliament. (http://www.parliament.uk/business/commons/the-speaker/the-role-of-the-speaker/role-of-the-speaker/)

[14] Ibid

[15] Keisham Meghachandra Singh v. Manipur Legislative Assembly,  2020 SCC OnLine SC 55

Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): A majority opinion delivered by Chief Justice Roberts and joined by Alito J, Gorsuch J. and Kavanaugh J. temporarily reversed a lower court order which had extended the deadline for a political action committee to gather signatures for a ballot initiative electronically.

The respondent is a political action committee which had tried to garner necessary votes for a ballot initiative, but had to halt the campaign for physical signatures in light of the Covid-19 pandemic. Idaho law required “in-person collection of petition signatures,” but this law was not suspended to allow the respondent to collect signatures electronically, which it claimed resulted in a violation of its First Amendment rights guaranteeing the rights of assembly and petition to citizens. The District Court had allowed for an extension of deadlines, enabling the respondent to collect signatures electronically.

The conservative majority did not allow for a relaxation of voting-related restrictions and responsibilities in light of the pandemic, stating that “this is not a case about the right to vote, but about how items are placed on the ballot in the first place.” It found that First Amendment allowed for a scrutiny of the interests of the State whenever a citizen’s ability to place an initiative on the ballot was inhibited and observed that in the present matter, such “reasonable restrictions” are justified in combatting fraud and ensuring that initiatives lacking necessary votes do not clutter the ballot. Moreover, the majority opined that nothing in the Constitution required Idaho, or any other State for that matter, to provide for ballot initiatives. Considering that an extension in the deadline would exacerbate the strain on the State in terms of time and resources and increase the costs it would have to bear in verifying digital signatures, it granted the application for stay on the district court’s orders.

However, Sotomayor J, joined by Ginsburg J, dissented from the grant of stay, holding that a stay would put the respondents in a far more precarious situation than the applicant. The delay cause by the majority’s grant of stay would render the respondent’s First Amendment claims moot before any appellate court could consider its merits, and would make it impossible for them to collect the necessary signatures in time for the November ballot if their case prevails during appeal. Sotomayor J. criticized the majority’s decision for usurping the Court of Appeal’s responsibility to review the District Court’s decision, holding the Court responsible for forgetting that it is “a court of review, not of first view.” [Little v. Reclaim Idaho, 591__US (2020) No.20A18, decided on 30-07-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court, Amravati: A Division Bench of J.K. Maheshwari, CJ and B. Krishna Mohan, J., addressed a Public Interest Litigation wherein a direction was sought to declare the proclamation, attempt or conduct of Andhra Pradesh State Election Commission in not conducting any election/poll for any post where there is only a single candidate in the fray for such post in any constituency, during the ensuing elections to be held for the members of local governing bodies in lieu of notifications and thereby depriving the electors’ of their right to vote in the form of NOTA against such single candidate.

Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006

A Public Interest Litigation was filed referring to the amendment introduced in 2018 to the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006.

In the above-stated Rules, insertion was Rule 35-A was done after Rule 35, which was as follows:

(1)“Notwithstanding anything contained in these Rules, in the Postal Ballot Papers and in the Ballot papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), provision shall be made for ‘None of the Above’ (NOTA) option for the benefit of those electors who may wish to exercise their option of not voting to any of the candidates in the fray. The last panel of the ballot paper below the last candidate shall be earmarked for ‘None of the Above’ (NOTA) option.

(2) The State Election Commission may give such directions, as may be necessary, for effective implementation of ‘None of the Above’ (NOTA) option.”

What do the stated Rules say?

In case of  Postal Ballot Papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), ‘None of the Above’ (NOTA) provision is required to be made.

When can NOTA be exercised?

NOTA applies in case where there is contest of election and as per the language set up in Rule 35-A of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, when there is an election through Ballot Boxes or EVM’s only then the said option can be exercised.

Hence, Court in view of the fact that, in cases where candidates have been declared uncontested, NOTA cannot be applied, dismissed the present petition. [A.V. Badra Naga Seshayya v. State of A.P., 2020 SCC OnLine AP 509 , decided on 20-07-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Ajay Kumar Mittal, CJ and Vijay Kumar Shukla, J., dismissed the Public Interest Litigation  for postponement of elections to the three vacancies of the state in the Rajya Sabha, on the ground of maintainability.

The Election Commission had announced that the Poll for three vacancies of the state of MP in the Rajya Sabha will be held on June 19, 2020. Petitioner’s Counsel Abhinav Dhanodkar, had submitted that more than 1/10th of the house will not be represented in the election, if the 24 seats lying vacant in the State Legislative Assembly were not filled up. He had asserted that as per Section 152 of the Representation of People Act, members of the Legislative Assembly will be electors i.e. representing 230 constituencies. However in this case, 24 constituents would be deprived of their rights or representation and the voting by the members will make sufficient difference in the result of the poll. The Standing counsel for the respondents Mr.  Siddharth Seth, argued that in case, there was violation of any statutory right, the petitioner would have a remedy of filing an “election petition” raising all the issues and contentions therein and the petitioner was neither a voter in the elections to be conducted for Rajya Sabha nor any statutory right of the petitioner had been violated.

The Division Bench concurred with the preliminary submissions put forth by the Commission on the ground of maintainability. It observed that the grounds urged by the Petitioner for deferment of the elections do not create any justification to “bypass” the mandate of Article 329 (b) of the Constitution. The Court while dismissing the petition held that they decline to entertain the present writ petition leaving it open to the petitioner to take recourse to the remedy, as may be available to him, in accordance with law.[Aman Sharma v. Chief Election Commissioner, 2020 SCC OnLine MP 1257 , decided on 17-06-2020]

COVID 19Hot Off The PressNews

On 25.02.2020, Election Commission of India announced elections to the Council of States to fill 55 seats of Members from 17 States, retiring in the month of April,2020, which were notified vide Notification No. 318/CS-Multi/2020(1) dated 06.03.2020. After the last date of withdrawal on 18.03.2020, respective Returning Officers declared 37 seats from 10 States filled in uncontested. Now, as per the reports received from the concerned Returning Officers, the biennial elections for 18 seats from the States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan are to be conducted  on 26.03.2020 (Thursday) and the date before which election was to be completed as earlier announced by the Commission was 30.03.2020 (Monday).

            On 11.03.2020, World Health Organization has declared Novel Coronavirus COVID-19 a global pandemic. Ministry of Health & Family Affairs and Department of Personnel & Training, Government of India have issued various guidelines and instructions to monitor and contain the transmission of COVID-19. Government of India, vide its press note dated 22.03.2020, has asked all the State Governments to take all measures to break the chain of transmission of COVID-19. This includes suspension of all train services till 31.03.2020 including sub urban rail services; closure of all activities except essential services such as hospitals, telecom, medicine shops, provision stores etc. Subsequently, on 23.03.2020 it has also been informed that the operations of domestic schedule commercial airlines shall cease operations with effective from the mid night 23.59 IST hours on 24.03.2020. State Governments have issued various orders including curb on local transportation accordingly for management and containment of COVID-19. The States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan have issued orders of lock down to contain the transmission of COVID-19.

            Commission has reviewed in detail the matter. The prevailing unforeseen situation of public health emergency indicates the need for avoidance of possibilities of gatherings of any nature, which expose all concerned to possible health hazard. The poll process in the above said elections would necessarily include the gathering of polling officials, agents of political parties, support officials and members of respective Legislative Assemblies on the poll day, which may not be suitable in view of the prevailing unforeseen situation and related advisories in the country.

            Section 153 of the Representation of the People Act, 1951 specifies that the Election Commission for reasons which it considers sufficient, may extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or sub-section (1) of section 39; and accordingly, the Election Commission has deferred the poll and extended the period of said election under the provisions of section 153 of the said Act. The list of contesting candidates, already published for the said elections by the respective Returning Officers shall remain valid for the purposes of remaining activities, as prescribed under the said notification. Fresh date of poll and counting for the said biennial elections shall be announced in due course after reviewing the prevailing situation.


Election Commission of India

[Press Release dt. 24-03-2020]

[Source: PIB]

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., stated that the Supreme Court is not in a position to add a disqualification provision in regard to contesting of elections on the basis of charges framed against the candidates.

The Bench stated that “A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.”

The Court also added that “the law making wing of the democracy of this country will take it upon itself to cure the malignancy, as such a malignancy is not incurable.”

Further, several directions have been issued regarding the disclosure of criminal antecedents of the candidates.

Will further update with the detailed judgment.

[Source: https://twitter.com/TheLeaflet_in]