Case BriefsForeign Courts

Supreme Court of Canada: The appeal was before Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.

The combined effect of Sections 11(d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more, the right to vote in a federal election unless and until they resume residence in Canada.

The constitutionality of these provisions was challenged by two non-resident Canadian citizens, who applied for a declaration that their right to vote entrenched in Section 3 of the Canadian Charter of Rights and Freedoms was infringed and that the impugned provisions were unconstitutional.

The application judge agreed, found that the impugned provisions could not be saved under Section 1 of the Charter, and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal.

However, the Supreme Court allowed the instant appeal and Sections 222(1)(b) and (c), 223(1)(f) and 226(f) of the Canada Elections Act were declared to be invalid. [Gillian Frank v. Canada (Attorney General), 2019 SCC OnLine Can SC 1, decided on 11-01-2019]

Case BriefsHigh Courts

Kerala High Court: Shaji P. Chaly, J. heard a petition that sought relief due to the infringement of the right to vote as the petitioner’s name was named was removed from the voter’s list. The Court stated that the relief sought by the petitioner had become infructuous. However, the Court stated that deletion of name from voter’s list is a serious matter and it must be dealt with proper care.

The petitioner, a resident of Thiruvananthapuram, had an electoral identity card issued by the Election Commission of India. Despite having voting rights, in the Lok Sabha elections 2019, his name was omitted from the voter’s list. The petitioner always had voting rights but his name was removed from the list on the grounds that he had ceased to be an ordinary resident of the said constituency. However, his family members continued to have their names in the voter list. He requested the respondent authority to restore his voting rights so that he could exercise his voting rights. But when no action was initiated by the respondent, he approached this Court for relief by way of filing the present petition.

Petitioner appeared in person and contended that he was residing in the same building ever since he had voting rights. He submitted that although he and his family had shifted to a temporary residence till the time repair was carried out in his original residence, his family members still had their name in the voter’s list while his name was omitted from the list.

Counsel for the respondent, Murali Purushothaman, contended that according to Sections 22 and 23 of Representation of the People Act, 1951 (hereinafter referred to as “the Act”) any new name could not be included in the electoral list after nominations had been filed in the respective constituencies. He contended that petitioner’s name was deleted on the ground that he shifted to a different residence. Moreover, the Election Commission had also published a draft electoral roll and asked for objections if any, but the petitioner did not submit his objection for deletion of his name.

The Court held that voting rights of a person are valuable rights and it cannot be taken away by any means. Section 22 of the Act stated that before removing any name from the voter’s list, it was the duty of Electoral Registration Officer to hear that person in respect of any action being taken. Court stated these provisions are based on principles of natural justice and must be strictly followed.

The Court directed the respondent to conduct a detailed enquiry in the matter and if necessary, take appropriate actions against the officers who removed the name of the petitioner from voters list. It was also directed that in the event of petitioner making an application, his name be restored in the voter’s list.

The writ petition was disposed of in the above terms.[A. Subair v. Chief Election Commissioner of Kerala, 2019 SCC OnLine Ker 1914, decided on 10-06-2019]

Case BriefsSupreme Court

Supreme Court: Taking note of the very disturbing fact of encroachments on defence land, the Court said that the legislative policy and the provisions of the relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area and the Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.

Section 34 (1) (e) of the the Cantonments Act, 2006, enacted the existing Act of 1924 after taking into consideration the recommendations made by the Standing Committee of Parliament on Defence which called for tackling the encroachments on defence lands situated all over the country, provides for removal of a member of the Board who aids or abets encroachment and the illegal constructions on the defence land.

The bench of Anil R. Dave and L. Nageswara Rao, JJ was dealing with the question regarding the right to vote of persons living in illegally constructed buildings in a Cantonment area. The Court held that the Cantonment Board is not authorized to include the encroachers in the voters list.

It was contended that the Rule 10 (3) of the Cantonment Electoral Rules, 2007 was in conflict with Section 28 of the Cantonments Act, 2006 Section 28 which states that a person who is not less than 18 years of age and who has resided in a Cantonment area for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector.

Explaining the meaning of the word ‘resident’ as used in Section 28 of the Act, the Court held that the scope of word ‘resident’ as defined in the Cantonment Act, 2006 is completely different from that of ‘ordinarily resident’ as defined in the Representation of the People Act, 1950. The restrictive definition of a ‘resident’ in the Act is peculiar to the Cantonments whereas the definition of ‘ordinarily resident’ is very wide. Even if a person is residing in an unauthorised structure he will be entitled to be included in the electoral rolls under the Representation of the People Act which is not the case with the Cantonment Act.

The Court, hence, rejected the contention and said that Rule 10 (3) of the 2007 Rules is not in conflict with Section 28 of the Act. On the other hand, Rule 10 (3) is strictly in conformity with Section 28 making only persons living in houses with numbers eligible to vote as it is clearly from the language of Rule 10(3) that the persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10 (3) of the 2007 Rules.  [Sunil Kumar Kori v. Gopal Das Kabra, 2016 SCC OnLine SC 993, decided on 27.09.2016]