Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that an election petition cannot be thrown out at the threshold on a plea of that the petition is not supported by an affidavit in Form 25 even though the petition is based on allegations of corrupt practices.

The appellant, a Bharatiya Janata Party candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections had secured 5,35,282 votes; while the respondent 1, a Janatha Dal Secular Party candidate had secured 6,76,606 votes. The appellant preferred an election petition stating that respondent 1’s election was liable to be declared void as he had filed a false affidavit and consequently the appellant should be declared as duly elected on account of his having secured the second highest votes.

The aforesaid petition had been resisted by the respondent 1 at the threshold on the following grounds:

  1. Non-compliance of Section 81(3) of the RP Act on the ground that the election petition was not attested by the appellant under his own signature as a true copy.
  2. As the appellant had made allegations which would constitute an allegation of “corrupt practice”, the proviso to Section 83(1) of the RP Act mandates that such allegations must be accompanied by an affidavit in accordance with Form 25 as required Section 94A of the Conduct of Election Rules, 1962.

The appellant contended that the question of filing Form 25 would arise only if there was any allegations of corrupt practice as defined by Section 123 of the RP Act but the election petition actually fell within the purview of Section 33A of the RP Act as the allegation dealt with suppression of information which was simply alluding to the observations of this Court in Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, opining that non-disclosure of assets and income amounts to corrupt practice.

Findings of the High Court

On the issue that the election petition was not duly attested, the High Court noticed that the only issue was about the index and the synopsis not being signed by the appellant. Therefore, the High Court held that the appellant had substantially complied with the requirements as he had attested the election petition with his endorsement that it was a correct copy of the election petition.

However, rejecting the contention of the appellant’s that the allegations were confined only to Section 33A of the RP Act, the High Court held that the use of the phrase “any corrupt practice” in the proviso to Section 83 of the RP Act covers allegations of every manner of corrupt practice envisaged under the RP Act. The High Court was of the view that the appellant had alleged undue influence and improper acceptance of respondent 1’s nomination under Sections 123 and 100 of the RP Act respectively.

Accordingly, the High Court dismissed the petition as not maintainable on the ground that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of Section 83 of the RP Act.

Whether non-filing of affidavit in compliance with Section 83(1) of the RP Act fatal to the maintainability of an election petition?

Citing the judgment of the Constitution Bench in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573, the Bench stated that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petition summarily and such an affidavit can be permitted to be filed later. The Constitution Bench judgment was also referred to in of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition.

Although, the Bench upheld the findings of the High Court that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act, it declined to agree with the conclusion that the non-submission of Form 25 would lead to the dismissal of the election petition.

Factual Analysis

On the issue of non-compliance with Sect 81 (3) of RP Act, the Bench opined that the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis had been rightly rejected by the High Court. However, on the issue with regard to non-filing of affidavit, the Bench observed that the prayer clause was followed by verification and there was also a verifying affidavit in support of the election petition. Thus, factually, the Bench was of the view that it would not be appropriate to say that there was no affidavit in support of the petition, albeit not in Form 25. Which, said the Bench, was a curable defect and the High Court ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. The Bench added,

“We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so.”

Conclusion

Consequently, the impugned order of the High Court was aside and the application filed by the respondent 1 under Order 7 Rule 11, S. 151 of the CPC and S. 86(1) of the RP Act was dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days.

[A. Manju v. Prajwal Revanna, 2021 SCC OnLine SC 1234, decided on 13-12-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Sanjay Kishan Kaul

 

Case BriefsCOVID 19High Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., reiterated that,

Right to vote and right to elect a representative of their own choice in free and fair election is a fundamental right guaranteed under the Constitution.

Background

The instant matter was preferred by Bharatiya Janata Party (BJP) seeking for the issuance of Writ of Mandamus – declaring the Notification No.68/SEC-B1/2020 dated 15-03-2020 and the consequential Notification dated 06-05-2020 of the first respondent to the extent of recommencement of election process of Mandal Praja Parishads Territorial Constituencies (MPTCs) and Zilla Praja Parishads Territorial Constituencies (ZPTCs) in State of Andhra Pradesh from the stage where it was stopped — as illegal, Irregular, arbitrary, unconstitutional unjustified, unsustainable and contrary to the A.P. Panchayat Raj Act and Rules framed.

Petitioners wanted to work for betterment of their town by contesting in the elections in their respective Mandal Praja Parishads Territorial Constituencies (MPTCs) and Zilla Praja Parishads Territorial Constituencies (ZPTCs).

Contentions

Article 40 and Self Government

Article 40 of the Constitution of India while laying down the directive principles of State Policy in its Part IV expected that the local bodies should be endowed with such powers and authority as may be necessary to enable them to function as units of the self-government.

Article 243-G contemplates that the Panchayats shall be endowed with such powers and authority as may be necessary to enable them to function as institutions as self-government.

According to Article 243 K (1), the superintendence direction and control of the preparation of Electoral Rolls and the conduct of all elections to the Panchayats is vested in the State Election Commission.

It was stated that as per Article 243-K read with Section 200 of Andhra Pradesh Panchayat Raj Act, 1994, the State Election Commissioner is appointed by the State Governor.

The main endeavour of the petitioners was that, when election Notification was issued initially on 07-03-2020 and fixed schedule for elections, the petitioners were not eligible and not enrolled as voters, as they were below 21 years. But, during interregnum period, they attained the majority of 21 years of age and enrolled as voters. However, due to the Covid-19 pandemic, elections were postponed indefinitely.

Right to Vote and Contest in the Elections

Vide Notification, 06-05-2020 the first respondent stopped the election process. Later, Vide Notification dated 01-04-2021 respondent proposed to conduct elections for ZPTCs and MPTCs from the stage where it was stopped was without re-notifying the election, exercising power under Rule 7 of the Rules.

Petitioners were deprived of casting their vote and to contest in the elections for MPTCs and ZPTCs, a constitutional right guaranteed under the Constitution of India.

Analysis

Petitioners were registered voters as on the date of Notification dated 07-03-2020 as they did not attain 21 years of age.

Elections to the legislative assemblies of the State and public bodies like ZPTC, MPTC, Urban Local Bodies etc. is based on “Adult Suffrage”, as enunciated under Article 326 of the Constitution of India.

Petitioners were not eligible for their enrolment as voters, as they were below 21 years by the date of notification.

In view of the Supreme Court’s decision in the matter, the State Election Commissioner was required to resume the election process from where it was paused by re-imposing 4 weeks Model Code of Conduct prior to the notified date of polling.

In view of the above decision, first respondent could not have exercised power under Rule 7 of the Rules and re-notify the election process to accommodate the petitioners to contest in the elections or to vote or to elect their representative.

Further, it was added that if the request would have been accepted, holding elections would have been a difficult task for anyone, since it is an unending process, for the reason, that, many persons may attain 21 years of age and become eligible between the date of notification till date of polling, thereby, it will be impossible to hold elections to public bodies by the State Election Commission.

Supreme Court in the decision of Rajabala v. State of Haryana, (2016) 2 SCC 445, held that

the right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State.

In view of the above discussion, High Court held that though the petitioners are entitled to claim a right under the Constitution to vote and contest in the elections, but, that right must be a right accrued to petitioner 2 to 4, as on the date of election notification. They were admittedly not eligible for enrolling their names in electoral rolls, as they were below 21 years, as on the date of Notification dated 07-03-2020. Therefore, the petitioner’s ineligible by the date of notification and they are not entitled to exercise the constitutional right.

Hence, the petitioners are disentitled to claim writ of mandamus for cancellation of Notifications dated 07-03-2020 and 06-05-2020, as the petitioners did not possess any constitutional right as on that date and its infringement and invasion does not arise.[Bharatiya Janata Party v. Andhra Pradesh State Election Commission, 2021 SCC OnLine AP 1376, decided on 21-05-2021]