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.


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.


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]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. dismissed an appeal challenging election of a village mukhiya.

Appellant herein had filed an election petition assailing the election of Respondent 3 as mukhiya of a village on the ground of non-disclosure of his assets and liabilities as per the Bihar Panchayat Raj Act, 2006. This petition was dismissed and the writ petition challenging Election Commission’s order was also dismissed. Hence, the present appeal.

Counsel for the appellant contended that nomination paper of Respondent 3 was improperly accepted as he had not filled up details of his assets and liabilities. An affidavit was filed later declaring such assets and liabilities to supplement respondent’s nomination papers but the same was a manipulated document inasmuch as it had been manually stamped while other documents were stamped through a franking machine.

Learned counsel for the respondent objected to the maintainability of election petition for not being verified in accordance with Rule 108 of the Bihar Panchayat Raj Rules, 2006. Further, the sole ground raised in the petition was non-disclosure of assets; no challenge was raised in relation to the affidavit filed by the respondent. The subject affidavit was accepted with the nomination papers before the Assistant Returning Officer who scrutinized the same and thereafter declared Respondent 3’s nomination valid. The nomination could not have been declared to be valid in the absence of requisite declaration and therefore there was a valid presumption under the law regarding the existence of this fact.

The Court observed that the casual manner in which petition had been verified was a serious defect. Argument regarding the non-existence of affidavit could not have been appreciated without a petition being verified on the basis of records available. Further, once the defense of supplemental affidavit had been raised, then the burden lay on the election petitioner to dislodge the same by summoning the Assistant Returning Officer.  It was held that the acceptance of affidavit by the Returning Officer without any objection from the appellant or election petitioner provided a clear presumption of fact regarding the validity of nomination of Respondent 3. Lastly, since the issue regarding stamping of an affidavit was not pleaded or advanced either before the learned Single Judge or the Election Tribunal, therefore it could not be raised at this juncture.

In view of the above, the appeal was dismissed for being bereft of merits.[Ram Roop Devi v. State of Bihar, 2019 SCC OnLine Pat 44, Order dated 11-01-2019]

Case BriefsSupreme Court

“Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law, namely through an election petition”

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud, JJ., addressing the challenge to the Calcutta High Court’s decision on issuing directions for the acceptance of nominations in the electronic form by the West Bengal State Election Commission, decided to set aside the impugned judgment and order of the High Court.

The present appeal consisted of the facts that the candidate who wished to contest the panchayat elections were not being allowed to collect and submit their nomination forms as a result of the violent actions of the supporters of the ruling party in the State. The relief that the respondents were pressing upon was that the State Election Commission must accept nominations already filed, in the electronic form.

The Supreme Court on observing the facts and contentions of the parties and on analyzing the whole scenario of circumstances in the present matter stated that the provision contained in the Panchayat Elections Act 1973 and Rules constitute a complete code in regard to the conduct of the election, including the matter of filing nominations. Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations in the electronic form and for any such reform, a legislative amendment has to be carried out.

Further, in the matter concerning the uncontested seats in the said elections, the Bench stated that the intervention of this Court is sought on the basis that free and fair elections are a part of the basic feature of the Constitution. While the Court was of the view that the validity of the elections must be tested in election petitions under Section 79(1) of the Act, however, the seriousness of the allegations and proceedings placed before the Court would necessitate exercising the power under Article 142 of the Constitution of India. Accordingly, the Court extended a period of 30 days for filing nominations in regard to the uncontested seats. For the reasons mentioned hereinabove, the judgment and order of the Calcutta High Court impugned in the appeal was set aside. The appeal was disposed of in the terms above. [W.B. State Election Commission v. Communist Party of India (Marxist), 2018 SCC OnLine SC 1137, decided on 24-08-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Amol Rattan Singh, J. quashed an FIR relating to ‘electoral offence’ in a criminal case which was pending since 20 years.

Petitioners were before the Court praying for quashing the FIR registered under Section 171-A IPC and the proceedings arising therefrom. In the year 1998, an FIR was registered against the petitioners under Section 171-A on the allegation of giving bribe to voters during Panchayat elections. It was brought to the notice of the Court that the complainant had died during the pendency of proceedings. Complainant’s son appeared on his behalf, and stated that he had entered into a compromise with the petitioners, wholly voluntarily and without any coercion or undue influence, for the betterment of both the parties.

The Court noted the above said facts and circumstances and observed that the alleged offence was committed in the year 1998; the complaint had remained pending without even proceeding from the investigation stage, for past 20 years. Even the report under Section 173 CrPC was not submitted to the competent court. The deceased complainant himself did not pursue the complaint in earnest during his lifetime; the matter was now finally settled by his son. In such circumstances, the Court did not find any reason to disallow the petition. Accordingly, the petition was allowed and the FIR was quashed along with all proceedings emanating therefrom. [Jagroop Singh v. State of Punjab,2018 SCC OnLine P&H 876, dated 01-05-2018]

Case BriefsSupreme Court

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

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

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

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

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

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

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

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