Allahabad High Court
Hari Krishna Lal vs Atal Bihari Bajpai on 17 January, 2002
Equivalent citations: AIR2003ALL128, AIR 2003 ALLAHABAD 128, 2003 ALL. L. J. 1043, 2003 A I H C 2344
ORDER U.K. Dhaon, J.
1. The petitioner whose nomination paper was rejected by the Returning Officer has filed the instant petition under Section 81 read with Section 100(1)(c) of the Representation of the People Act, 1951 (hereinafter referred as the Act) challenging the election of 13th Lok Sabha from 20 Lucknow Parliamentary Constituency which was held in the year 1999 in which the respondent was declared elected.
2. On 7th January, 2000 notice was issued by this Court to the respondent for filing written statement. On behalf of the respondent an application under Section 86 of the Act read with Order 6, Rule 16, Order 7, Rule 11 and Section 151 of the Civil Procedure Code was moved with a prayer that the present election petition be dismissed in limine as the petitioner has no right to file the petition under Section 81 of the Act. It was also stated, inter alia, that the petitioner was not a 'duly nominated candidate' as no affidavit was filed by him, as required, and as such he had no locus standi to maintain the petition.
3. On the request of the petitioner and the learned counsel appearing on behalf of the respondent the following preliminary question was formulated :
"Whether the petitioner has no locus standi to maintain the petition as he was not a 'duly nominated candidate' under the provisions of the Representation of the People Act and the Constitution of India ? If so, does the election petition deserve to be summarily rejected on this ground alone ?"
4. The undisputed facts are that nomination paper was filed by the petitioner, the respondent and others to the Lok Sabha seat from the 20 Lucknow Parliamentary Constituency for the 1999 General Elections. The petitioner filed his nomination paper on 9-9-1999 and at the time of the filing of the nomination paper the Returning Officer of the 20 Lucknow Parliamentary Constituency had handed over a notice to the petitioner stating therein that in order to be satisfied that the petitioner was not suffering from any disqualification mentioned in S. 8 of the Representation of the People Act, 1951 re-quired him to file a pro forma supported by a duly sworn affidavit and he has not been convicted for committing any offence specified in Section 8 of the Act and to submit the aforesaid documents immediately and positively before 11.00 a.m. On 15-9-1999, the date and time fixed for scrutiny. The Returning Officer rejected the nomination paper of the petitioner Under section 36 of the Act on the ground that there was no affidavit filed by the petitioner.
5. The petitioner, who appears in per-
son, submits that the right to contest an election or to caste vote in the election is a statutory right and it is not a common law right or a right in equity. The election laws are self-contained codes and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the Courts have to consult the provisions of the law governing the particular election. He has relied upon the decisions of Hon'ble the Supreme Court reported in AIR 1985 SC 1233, Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman and AIR 1984 SC 309; Charan Lal Sahu v. Giani Zail Singh. He submits that for conferring the status of a 'duly nominated candidate' as per definition of the term candidate in Section 79(b) of the Act, the filing of the affidavit in question is not required by any of the provisions of the Act but it was required by the direction issued by the Election Commission which is a direction of executive nature and the direction of the Election Commission to file an affidavit is outside the purview of the Representation of the People Act and as such the election Court cannot look to it for deciding the status of the petitioner as a candidate. He further submits that according to the Election Commission of India itself such an affidavit is not the integral part of the prescribed Nomination Form 2A vide instructions dated 3-2-1998 and non-filing of the affidavit in question shall not prevent the petitioner from acquiring the status of a candidate arid it cannot be said that he lacks locus standi to file the election petition.
6. The petitioner further submits that the affidavit was required as per the direction of the Election Commission in exercise of the executive powers vested in it under Article 324 of the Constitution of India which is not Law and the petitioner's right to file an election petition, which flows directly from Article 329 of the Constitution of India cannot be affected in any manner by the non-filing of the affidavit in question. He has relied upon the decision of the Hon'ble Supreme Court, reported in AIR 1985 SC 1233, Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman.
7. Sri Hari Krishna Lal has referred to Section 79(b), Section 123(7), Section 33 and Section 36 of the Act and submits that a person who presents his nomination paper to the Returning Officer becomes a candidate on such presentation and law treats such person to be a candidate since the very day of presenting his nomination paper to the Returning Officer. He has relied upon the decisions of Hon'ble the Supreme Court in Indira Nehru Gandhi v. Raj Narain, reported in AIR 1975 SC 2299; Subash Desai v, Sharad J. Rao, reported in AIR 1994 SC 2277; A. C. Jose v. Sivan Pillai, reported in AIR 1984 SC 921; Pashupati Nath Singh v. Harihar Prasad Singh, reported in AIR 1968 SC 1064; and Krishna Mohini v. Mohinder Nath Sofat, reported in AIR 2000 SC 317. On the basis of the aforesaid decisions of Hon'ble the Supreme Court, the petitioner submits that his nomination paper was wrongly rejected by the Returning Officer.
8. The petitioner lastly submits that the nomination paper cannot be rejected outside sub-section (2) of Section 36 of the Act and the enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage and the petitioner has all right to place fresh or additional material before this Court to show that the Returning Officer's order rejecting his nomination paper was improper. He has relied upon the decision of Hon'ble the Supreme Court, reported in 1988 Supp SCC 604: (AIR 1988 SC 1796), Birad Mal Singhvi v. Anand Purohit.
9. Sri R. N. Trivedi, Additional Solicitor General of India appearing on behalf of the respondent submits that the Election Commission had issued directions on 28-8-1997 under Article 324 of the Constitution of India in the background of criminalisation of politics and the said direction has statutory force. The Returning Officer who has to examine and decide by enquiry the qualifications or disqualifications, acts in a quasi-judicial manner and to order to discharge the aforesaid functions, he has to base his decision on objective consideration of relevant material and evidence. It is in order to enable the Returning Officer to discharge his functions that the Election Commission requires an affidavit to be filed about a candidate not being disqualified for otherwise, there would be no evidence before him on the basis of which he can come to the conclusion about the existence or otherwise of such qualifications or disqualifications. The requirement of evidence by way of affidavit enables the Returning Officer to reach his decision on objective consideration on the basis of the said affidavit and the filing of the affidavit also makes a candidate accountable, as any false affidavit has its own repercussions under the provisions of the Indian Penal Code. He has relied upon the decisions, reported in (1999) 2 SCC 489 : (AIR 1999 SC 935); Rakesh Kumar v. Sunil Kumar, 1959 Supp (1) SCR 623 : (AIR 1959 SC 422; N. T. Veluswami Thevar v. G. Raja Nainar, (1992) 4 SCC 605 : (AIR 1993 SC 1407); Krishna Swamiv. Union of India, AIR 1977 Delhi 93; M/s. Ratan and Co. v. V. P. Narayanan, (1995) 1 SCC 760 : (AIR 1995 SC 686); Mukhtiar Singh v. State of Punjab; and 1959 Supp (2) SCR 727 : (AIR 1959 SC 843); Ranjeet Singh v. State of Punjab.
10. He further submits that the disqualification are prescribed under Article 102 of the Constitution of India read with Section 8 of the Act, the manner of determination of the disqualification is not provided either by Article 102 of the Constitution of India or by Section 8 of the Act and in absence of any positive requirement for filing of the affidavit, the Returning Officer while exercising the powers under Section 36 of the Act will have to act not on the basis of any evidence but a mere declaration made in the nomination paper. The necessity for issuing the directions by the Election Commission is in order to give effect to the provisions of Article 102(e) of the Constitution of India and Section 8 bf the Act as a person so disqualified cannot be permitted to contest the elections. He further submits that as the direction for filing of an affidavit have been issued under Article 324 of the Constitution of India it has got binding effect and Hon'ble the Supreme Court has also held that it is competent for the Election Commission to supplement the law though it cannot supplant the law. In support of the aforesaid contention, he has relied upon the following decisions:
(1) AIR 1978 SC 851, Mohinder Singh Gill v. Chief Election Commissioner;
(2) (1984) 2 SCC 656 : (AIR 1984 SC 921), A. C. Jose v. Shivam Pillai;
(3) (1985) 4 SCC 628 : (AIR 1986 SC 111), Kanhaiya Lal v. R. K. Trivedi;
(4) (1982) 3 SCC 487 : (AIR 1982 SC 1559), Rooplal Sathi v. Nachhatar Singh;
(5) AIR 1999 All 18 : (1999 All LJ 39), Jawahar Singh v. Election Commission; and (6) (2000) 1 SCC 145 : (AIR 2000 SC 317), Krishnamohini v. Mohinder Nath Sofat.
11. On the strength of the aforesaid judgments Sri Trivedi submits-
(1) The circular issued by the Election Commission of India are consistent with Article 102(e) of the Constitution of India and Section 8 of the Act and has been issued to give full effect to them.
(2) The circulars are merely supplemental in nature and operate in an area unoccupied by Article 102(e) of the Constitution of India and Section 8 of the Act. They neither supplant the Constitution nor the laws but effectuate it.
(3) The Election Commission of India thus was competent to issue the circulars in exercise of its plenary powers in order to ensure that the Returning Officers are equipped with material to ensure that their satisfaction is based on at least prima facie evidence. In absence of such an affidavit at all, the exercise of satisfaction would become Incapable especially as the Returning Officer has to examine, hold summary inquiry and then decide whether a candidate is qualified or not under Article 102(e) of the Constitution of India and Section 8 of the Act.
(4) The Returning Officer has a statutory obligation to determine such disqualification at the threshold.
(5) "Supplement"--A supplement is that which supplies a deficiency or fills up a gap.
12. Sri Trivedi. the learned Additional Solicitor General of India submits that the Election Petition filed by the petitioner is not entertainable under Section 81 of the Act as an Election Petition can be filed by any candidate and the candidate has been defined by Section 79(b) of the Act to mean a person who has been or claims to have been duly nominated as a candidate at any election, and the meaning of the word 'duly' means legally, regularly, according to law, properly and according to the procedure. He further submits that merely filing of a nomination paper does not make a person duly nominated as certain other formalities have also to be completed, for example, deposit of security, certified copy of the electoral list, if the candidate is not from the local constituency as in the present case, certificate about belonging to SC/ST, subscribing to oath. He further submits that in the election petition there is not even a claim that the petitioner is duly nominated and by mere filing of the nomination paper without ful-
filling all the other necessary legal formalities, including filing of an affidavit required by the Election Commission does not make a, person duly nominated.
13. Sri Trivedii the learned Additional Solicitor General of India further submits that a person who is not duly nominated has no locus standi to file an election petition. He submits that sufficient opportunity was afforded to the petitioner by the Returning Officer for filing the affidavit but he refused to file the affidavit and at the stage of enquiry under Section 36 of the Act if a person belongs to a constituency other than the one in which he desires to contest, a certified copy of the electoral roll where such a person is enrolled, is evidence. In the summary inquiry during the short period which the Returning Officer has, in absence of an affidavit, it would not be possible for the Returning Officer to determine whether a candidate is disqualified under Section 8 of the Act and thus filing of an affidavit is imperative for such determination. He has, relied upon the decisions in Charan Lal Sahu v. K. R. Narayanan, reported in (1998) 1 SCC 56 : (AIR 1998 SC 1606); Charan Lal Sahu v. Neelam Sanjeeva Reddy, reported in (1978) 2 SCC 500 : (AIR 1978 SC 499); Mithilesh Kumar Sinha v. Returning Officer, reported in 1993 Supp (4) SCC 386 : (AIR 1993 SC 20); Charan Lal Sahu v. Fakhrudin Ali Ahmad, reported in (1975) 4 SCC 832 : (AIR 1975 SC 1288); Kedar Nath v. State, reported in AIR 1965 All 233; and Sundaram Pillai v. Pattabiraman, reported in (1985) 1 SCC 591 : (AIR 1985 SC 582).
14. Sri Trivedi, the learned Additional Solicitor General of India further submits that the right to contest an election is nei ther a fundamental right nor a common law right but is merely a legal right depending on completion of the requirements. He has relied upon the decisions of Hon'ble Su preme Court, reported in Satya Narayan v.
Dhuja Ram, reported in (1974) 4 SCC 237 :
(AIR 1974 SC 1185); U. S. Sasidharan v. K. Karunakaran, reported in (1989) 4 SCC 482 : (AIR 1990 SC 924) and Jyoti Basu v. Debi Ghoshal, reported in (1982) 1 SCC 691 : (AIR 1982 SC 983).
15. Lastly, he submits that the case of Indira Nehru Gandhi (AIR 1975 SC 2299) (Supra) is not applicable to the facts of the present case as in the said case Hon'ble the Supreme Court was conscious of the fact that it was interpreting the word 'candidate' with respect to Section 123(7) of the Act. In paragraph 221, it has been categorically held that a person cannot be treated as a candidate before filing a nomination paper. The dispute, thus, was whether a person can claim to be a duly nominated candidate before filing of a nomination paper and the question was not as to what formalities had to be completed after filing of a nomination paper, before claiming to have locus standi for filing an election petition. The decision in Biradmal Singhvl (AIR 1988 SC 1796) (Supra) is also not applicable to the facts of the present case as in the said case there was dispute about the age of the candidate and in case of a dispute about an alleged fact, an election tribunal can allow additional evidence to be led. The said decision cannot be treated to have held that since the election petition is an original proceeding, additional evidence of any kind be led and if the wide proposition urged by the petitioner were to be accepted, the consequence would be that a person who had not made the deposit, or had not filed the certified copy of the electoral roll (if he belongs to another constituency) or had not given a certificate under Section 9, he could still file in the election petition, lead evidence and get the election set aside. He further submits that cases relied by the petitioner, reported in Pashupati Nath Singh (AIR 1968 SC 1064) (Supra) and Krishna Mohini (Supra) are also not applicable to the facts of the present case.
I have considered the arguments of the petitioner as well as the arguments advanced by Sri R. N. Trlvedi, learned Additional Solicitor General of India assisted by Sri G. K. Mehrotra, Sri B. P. Awasthi and Smt. Anita Agarwal and gone through the record.
16. The instant petition has been filed by the petitioner under Section 81 read with Section 100(1)(c) of the Representation of the People Act, 1951 impugning the validity of the election of the respondent on the ground that the nomination paper of the petitioner was improperly rejected by the Returning Officer. The undisputed facts are that the petitioner filed his nomination paper on 9-9-1999. He was handed over a notice stating therein that in order to be satisfied that the petitioner was not suffering from any disqualification mentioned in Section 8 of the Act, he should file an affidavit and to submit the same before 15-9-1999 (the date of scrutiny of nomination paper). The petitioner further alleges that after filing his nomination on 9-9-1999 he got high fever and left Luckhow and went to Ranchi on 11-9-1999.
17. The Returning Officer rejected the nomination paper of the petitioner under Section 36 of the Act on the ground that there was no affidavit filed by the petitioner.
18. The respondent has filed an application under Section 86 of the Act read with Order VI, Rule 16, Order VII, Rule 11 and Section 151 of the Code of Civil Procedure urging that the election petition is liable to be dismissed in limine as the petitioner has no right to file a petition under Section 81 of the Act. It has, inter alia, been contended by the respondent that, having not filing the affidavit, as required, he was not a duly nominated candidate and as such he had no locus standi to maintain the petition.
19. Article 324 of the Constitution of India vests the superintendence, directions and control in the Election Commission. Article 327 provides that Parliament, subject to provisions of the Constitution, may make laws with respect to all matters relevant to or in connection with the elections.
In view of the Constitutional provision, it is quite evident that the Parliament has got the competence to make laws with respect to all matters relating to or in connection with the elections. However, since the superintendence, directions and control is vest in the; Election Commission in matters regarding which there is no law, the Election Commission is competent to supplement the law provided that such directions issued are not in conflict with the Constitution or any law made by the Parliament.
20. Section 4 of the Act lays down the qualifications for membership of the House of the People. It inter alia provides that a person shall not be qualified to be chosen to fill a seat in the House of People unless :
(a) In the case of a seat reserved for the Scheduled Caste, he is a member of any of the Scheduled Castes.
(b) In the case of a seat reserved for Scheduled Tribe, he is a member of any of the Scheduled Tribes.
(c) In the case of any other seat, he is an elector for any Parliamentary Constituency.
21. Rule 4 of the Conduct of Elections Rules provides that every nomination paper shall be in the form prescribed. In the present case the relevant form is 2A. Section 4 of the Act prescribed the preliminary eligibility for a person for filing the nomina-tion'paper. Section 8 of the Act provides the disqualification on conviction for certain offences. Article 84 of the Constitution of India provides for qualification for membership of Parliament. Article 84(c) requires that a person in order to be qualified should possess such other qualification as may be prescribed in that behalf by or under any law made by the Parliament, Article 102 provides for disqualification for membership. Sub-article (e) of Article 102 lays down that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament, If he is so disqualified by or under any law made by the Parliament. Section 8 of the Act provides for disqualification on account of the conviction for specified offences where the sentences are for the prescribed period. Section 7(b) provides that in Chapter III 'disqualified' means disqualified for being chosen as and for being a member of either House of Parliament. Section 81 provides for disqualification on ground of corrupt practice. Section 9 provides for disqualification for dismissal for corruption or disloyalty. Other disqualifications are mentioned in Section 9A to Section 11 of the Act.
It is evident from the above that it is not only necessary that a person should be qualified for being elected but also should not be disqualified from being so elected. This is a condition precedent for acceptance of a nomination paper.
The disqualifications prescribed above are referable to Article 102(e) of the Constitution and Sections 7 to 11-A of the Act.
22. Section 19A lays down that the functions of the Election Commission under the Constitution, the Act or under the Rules made thereunder may, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission. Section 20 of the Act lays down that subject to superintendence, directions and control of the Election Commissioner, the Chief Electoral Officer of each State shall supervise the conduct of all elections in the State under the Act.
23. Section 134 of the Act lays down that if any person to whom this Section applies is guilty of any act or omission or any breach of his official duty would be punishable with fine which may extend to Rs. 500/-. Subsection (3) of Section 134 applies to, inter alia, the District Election Officer and the Returning Officer. It further provides that the persons who are subject to the control of the Election Commission should be those who are appointed to perform any duty in connection with the receipt of nominations, or withdrawal of candidature and the expression official duty shall for the purposes of this Section be construed accordingly. It is thus evident that a direction issued by the Election Commission is binding on the Returning Officer, The provisions of Section 134 are mandatory especially as consequences of the breach are specifically provided for.
24. The Election Commission had issued directions on 28-8-1997 which is referable to Article 324 of the Constitution In the background of criminalisation of politics. After setting out the background in which the said order was Issued, the Election Commission taking due note and paying due regard to the judicial pronouncements of the Hon'ble Supreme Court and the High Courts came to the considered view that disqualification under Section 8 of the Act for contesting ejections to Parliament, on conviction for offences mentioned thereunder takes effect from the date of conviction by the trial Court. Accordingly, the Election Commission in exercise of Its power of superintendence, direction and control of elections to Parliament vested in it by Article 324 of the Con-stitution of India directed that all the Returning Officer at the time of scrutiny of nominations must take note of legal petition mentioned therein and decide accordingly about the validity or otherwise of the candidature of the contestants under the said Section 8 of the Act. In paragraph 3 of the said order, it has been mentioned that "in order to be satisfied that you are not suffering from disqualification mentioned under the said Section 8 of the Act, you are required hereby to furnish the information as asked for in the enclosed pro forma, which should be supported by an affidavit duly sworn before a Magistrate of the first class or an Oath Commissioner or a Notary Pub-lic". Paragraph 4 of the said order mentions that furnishing of any wrong information will render a candidate liable for action as per law. Paragraph 5 mentions that the required information must be furnished immediately and positively before the date fixed for scrutiny of nomination papers. Along with the said order a pro forma affidavit was also enclosed. The said directions are also referable to Section 8 of the Act.
The aforesaid directions of the Election Commission was necessitated by the fact that there had to be some prima facie evidence before the Returning Officer that a person filing a nomination paper is not disqualified under Section 8 of the Act read with Article 102(e) of the Constitution of India.
25. On 6th January 1998, the pro forma attached with the order dated 28th August, 1997 mentioned above, was slightly modified. On 3rd February, 1998 an order was again issued by the Election Commission to the effect that the affidavit is not an integral part of the prescribed nomination paper and it should not be rejected merely on the ground that the candidate has filed an incomplete or technically incorrect affidavit. The Commission has clarified that in the case of a technically incomplete/incorrect affidavit having been filed the person filing nomination paper should be given time and opportunity to remove any technical defect in his affidavit or to file a technically correct affidavit, if and as required, even during the process of scrutiny which can be temporarily adjourned for the purpose. In case a copy of the pro forma of affidavit is requested during scrutiny, the same may be provided to the person along with the time and opportunity to complete and file the same. It is only willful defiance and refusal to file the affidavit which will result in rejection of nomination. If any wrong affidavit is filed that will be dealt with separately under the relevant law.
26. The willful defiance referred to in the said order is related to the technically incomplete or incorrect affidavit being filed regarding which an opportunity is required to be given for correction. The phrase 'willful defiance' in the circumstances cannot negate the intention of the Election Commission requiring an affidavit to be filed in this regard. If for instance in, a given case though an affidavit has been filed but it is technically incomplete. It may not result in rejection of the nomination if during the time provided it was not possible to rectify the defect. The said order cannot be interpreted to mean that non-filing of an affidavit will not be visited with consequences viz. rejection of the nomination paper.
The use of word 'merely' is extremely sig-nificant. It means "without including anything else; purely; only; solely; absolute; wholly" (Black's Law Dictionary, Sixth Edition Pg. 98.8-1). The intention of the Election Commission is that an affidavit should not be rejected only on the ground that it was technically incomplete. Such an affidavit could be accepted provided there was no willful defiance to rectify the defect.
27. Section 30 of the Act provides for appointment of dates for nomination etc. Section 31 provides for public notice of elections. Section 32 of the Act lays down that any person may be nominated as a candidate if he is qualified to be chosen to fill that seat under the provisions of Constitution and the Act. Section 33 provides for the presentation of nomination paper and the requirements for a valid nomination. Section 33(1) provides for the the date and time of submitting the nomination paper. The proviso to Section 33(1) requires the nomina-tion paper to be subscribed by 10 proposers if the candidate is not set up by a recognised political party. Section 33(2) requires that In case of a reserved seat a declaration has to be made specifying the particular caste or tribe of which such candidate is a member. Section 33(3) provides that if a candidate having held an office has been dismissed for corruption or disloyalty to the State, he shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission. Section 33(4) requires the satisfaction of the Returning Officer that the names and the electoral roll numbers of the candidate and his proposers are the same as those entered in the electoral roll. Section 33(5) provides that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or the relevant part thereof or the certified copy of the relevant entries in such roll shall, unless it has been filed along with nomination paper be produced before the Returning Officer at the time of scrutiny.
A perusal of the aforesaid Section reveals that it is not merely the filing of a nomination paper but fulfilment of various formalities which are required to conform to the provisions of Section 33. In the present case, the petitioner was not an elector of the constituency from which he desired to contest but from a different constituency.
28. Section 34 of the Act is quoted below:
"34. (1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited-
(a) in the case of an election from a Parliamentary constituency, a sum of ten thou-sand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees; and
(b) in the case of a election from an Assembly or Council constituency, a sum of five thousand rupees or where the candidate is a member of Scheduled Caste or Scheduled Tribe, a sum of two thousand five hundred rupees:
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.
(2) Any sum required to be deposited under Sub-section (1) shall not be deemed to have been deposited under that sub-section unless at the time of delivery of the nomination paper under Sub-section (1) or, as the case may be, Sub-section (1-A) of Section 33 the candidate has either deposited or caused to be deposited that sum with the Returning Officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or In a Government Treasury."
From the above it is evident that the deposit is required to be made at the time of the delivery of the nomination paper. Section 35 provides for notice of nominations and the time and place for their scrutiny. Section 36(1) lays down that the candidates, their election agents, one proposer of each candidate or an authorised person may be present at the time of the scrutiny and the Returning Officer shall give all reasonable facilities for examining the nomination pa per of all candidates which have been deliv ered within the time and in the manner laid down in Section 33. Section 36(2) provides that the Returning Officer shall then exam-:
ine the nomination paper and shall decide all objections which may be made to any nomination and may, either on such objec tion or on his own motion after such sum mary inquiry, if any, as he thinks necessary, reject any nomination on the grounds men tioned thereunder. Section 36(2)(a) provides that the Returning Officer may reject a nomi nation paper on the ground that on the date fixed for scrutiny of the nomination, the can didate is either not qualified or is disquali fied for being chosen to fill the seat under any of the following provisions that may be applicable namely Articles 84, 102, 173 and 191.
29. The Returning Officer in view of the fact that he has to examine and decide by inquiry the qualifications or disqualification, acts in a quasi judicial manner and in order to discharge the aforesaid functions, he has to base his decision on objective consideration of relevant material and evidence. It is in order to enable the Returning Officer to discharge his functions that the Election Commission requires an affidavit to be filed about a candidate not being disqualified for otherwise, there would be no evidence before him on the basis of which he can come to the conclusion about the existence or otherwise of such qualifications or disqualifications.
30. Sub-section (7) of Section 36 provides that a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950. Section 36(8) obliges the Returning Officer to prepare a list of validly nominated candidates. Section 37 provides for withdrawal of candidature and Section 38 provides for publication of list of contesting candidates.
31. The Returning Officer has to act in a quasi judicial manner as he has to examine and decide all objections after inquiry. The Returning Officer cannot act, except, on the basis of information and evidence before him. For deciding whether a person is disqualified under Section 8 of the Act read with Article 102 he must have some evidence. The requirement of evidence by way of affidavit enables the Returning Officer to reach his decision on objective consideration on the basis of the said affidavit, filing of an affidavit also makes a candidate accountable, as any false affidavit has its own repercussion under the provisions of Indian Penal Code. The Hon'ble Supreme Court in Rakesh Kumar v. Sunil Kumar (AIR 1999 SC 935) (supra) (Paragraphs 18-20) has held such power to be quasi judicial,
32. The disqualifications are prescribed under Article 102 of the Constitution read with Section 8 of the Act, the manner of determination of the disqualification is not provided either by Article 102 of the Constitution of India 6r by Section 8 of the Act.
33. The directions mentioned above have been issued under Article 324 of the Constitution of India. The Election Commission in order to ensure compliance with the Act merely filled in the gaps by requiring affidavit to be filed to give effect to it by supplementing the law.
34. The Hon'ble Supreme Court in the following cases has held that it is competent for the Election Commission to supplement the law though it cannot supplant the law:
1. AIR 1978 SC 851, Mohinder Singh Gill v. Chief Election Commissioner--The Constitution Bench in this case has held that the Election Commission can exercise powers under Article 324 on its own right in an area not covered by the Act. (Paragraphs 115 and 119).
2. (1984) 2 SCC 656 : (AIR 1984 SC 921), A. C. Jose v. Shivan Pillai--In the said case it has been held that if the Act and the Rules are silent, the Election Commission can supplement, as under Article 324 it has plenary powers to give directions. (Paragraph 25)
3. (1985) 4 SCC 628 : (AIR 1986 SC 111), Kanhaiya Lal v. R. K. Trivedi--In the said case it has been held that the Election Commission can operate in an unoccupied field. (Paragraphs 12 and 16)
4. (1982) 3 SCC 487 : (AIR 1982 SC 1559), Rooplal Sathi v. Nachhatar Singh--In the said case it has been held that the Symbols Order was issued by the Election Commission under Article 324 of the Constitution of India in exercise of its undoubted powers of superintendence, direction and control of the conduct of all electionsto Parliament arid Legislature of every State. (Paragraphs 17 and 18)
5. AIR 1999 All 18 : (1999 All LJ 39), Jawahar Singh v. Election Commission--In the said case, a Division Bench of this Court has held that the guidelines and circulars issued by the Election Commission are valid. (Paragraphs 13 and 14)
6. (2001) 1 SCC 145: (AIR 2000 3C 317), Krishnamohini v. Mohinder Nath Sofat--In para 37 of the judgment, it has been observed that "Consequent upon amendments having been made in the Representation of the People Act, 1950 and 1951 by the Amendment Act..... the Election Commission of India issued a circular dated 9-8-1996 for the guidance of the Chief Electoral Officers of all the States." In para 39 the Hon'ble Supreme Court has held that "In our opinion, the above said circular and guidelines issued by the Election Commission of India are consistent with the statutory provisions and correctly bring out the position of law." (Paragraphs 37 to 39)
35. In Indira Nehru Gandhi (AIR 1975 SC 2299) (supra), the factual position was that she had filed her nomination paper on 1-2-1971. It was alleged that between 4-1-1971 to 24-1-1971 she had procured the assistance of Sri Yash Pal Kapoor, a Government Servant and thus was guilty of corrupt practice under Section 123(7) of the Act The submission of the election petitioner was that she had herself out as a candidate, before 1-2-1971 at a press conference and thus became a candidate, Section 79 clearly states that "in this Part and in Part VII unless the context otherwise requires--(a) ..... (b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election.
In: the said case itself, Hon'ble the Supreme Court was conscious of the fact that it was interpreting the word 'candidate' with respect to Section 123(7) of the Act. This would clear, from the following observations of Hon'ble the Supreme Court in paragraphs 218 of the judgment:
"Regarding word 'candidate' in Section 123(7) of the Representation of the People Act, in the sense in which it has been defined. ..... I find that the only reasonable inference is that the person referred to as a candidate in that clause should be a person who has been or claims to have been duly nominated as a candidate at an election and not one who is yet to be nominated."
In Paragraph 221, it has been categorically held that a person cannot be treated as candidate before filing a nomination paper. The dispute thus was whether a person can claim to be a duly nominated candidate before filing a nomination paper. The meaning of the word 'candidate' in the circumstances has to be determined in the context in which it is used. Hon'ble the Supreme Court has held in Sham Rao's case, 1956 SCR 644 : (AIR 1957 SC 23) that the same word may have different meanings in different sections of an Act and even in the same Section of an Act. The principle underlying the said decision was reiterated in C.I.T. v. Venkateshwara Hatcheries Pvt. Ltd., reported in (1999) 3 SCC 632 : (AIR 1999 SC 1225). The decision in Indira Nehru Gandhi (AIR 1975 SC 2299) relied by the petitioner is not applicable to the facts of the present case. A person merely by filing a nomination paper cannot be deemed to be a 'duly nominated candidate' for the purposes of Section 81 as if after filing the nomination paper he does not give a certified copy of the electoral list (if he belongs to another constituency) or does not give the particulars of his belonging to SC/ST Category (Section 33(2)) or does not give a certificate under Section 9 or take oath (Article 84), he will not acquire the status of a 'duly nominated candidate'. The argument of the petitioner that merely by filing a nomination paper, he becomes a duly nominated candidate, on the date of such filing cannot be accepted as other formalities have to be completed including filing of an affidavit as required by the Election Commission.
36. In the decision of Biradmal Singhvi v. Anand Purohit (AIR 1988 SC 1796) (supra), there was dispute about age of the candidate. There was evidence before the Returning Officer to come to the conclusion that the candidate was not qualified. This was challenged. Hon'ble the Supreme Court in the circumstances held that since the candidate had given out his age in the nomina-
tion paper as 26 years, there was a dispute between the dates so given and the date in the electoral roll which indicated lesser age. In case of a dispute about an alleged fact, an Election Tribunal can allow additional evidence to be led. However, the said decision cannot be treated to have held that since the election petition is an original proceeding, additional evidence of any kind can be led. The said decision in Biradmal Singhvi is also not applicable to the facts of the present case as there is willful defiance on the part of the petitioner in not filing the affidavit in spite of the fact that sufficient opportunity was afforded to him.
37. The case of Laxmi Charan Sen (AIR 1985 SC 1233) (supra) arose out of interim orders passed by the Calcutta High Court. The prayer in the writ petition was that a mandamus may be issued to the effect that the instructions issued by the Election Commission should not be Implemented by the Chief Electoral Officers and the electoral rolls should be prepared de novo and that the electoral rolls be revised and no election be held till then. The facts which emerge in the aforesaid case in paragraph 4 is that the Chief Electoral Officer of the State asked for de novo revision of electoral rolls without reference to the existing electoral rolls. The District Officers are alleged not to have complied with it. The Election Commission issued instructions on 12-5-1981 which were at variance with the circular of the Chief Electoral Officer. It was the grievance of the petitioner that all objections should be decided before notification of elections under Section 15(2). The prayers are mentioned in paragraph 10. The question raised was whether violation of the directions of the Election Commission gave a cause of action to an individual or a candidate.
Hon'ble the Supreme Court in paragraph 21 has observed that the directions issued by the Election Commission are binding on the Chief Electoral Officers but their violation cannot create rights and obligations unknown to the election law. The question whether the Election Commission can issue directions in an unoccupied field was not the matter under consideration. In the instant case, the Returning Officer had complied with the directions of the Election Commission and it was not a case of violation of a direction. The petitioner was under an obligation to file the affidavit as he is a resi-
dent of Ranchi which is now in the State of Jharkhand. A declaration in Form 2-A is a mere statement of fact but when the same statement of fact is made on an affidavit, it is the proof of the existence of that fact and has evidentiary value. Section 8 of Oaths Act, provides that every person giving evidence shall be bound to state the truth. The requirement of filing the affidavit in pursuance of the directions of the Election Commission is in order to give effect to the provisions of Article 102(e) of the Constitution of India and Section 8 of the Act as a person so disqualified cannot be permitted to contest an election.
38. So far as the decision reported in A. C. Jose v. Sivan Pillai (AIR 1984 SC 921) (supra) is concerned, the question is not whether a law passed by Parliament is subject to and subsidiary to any directions issued by the Election Commission of India under Article 324 of the Constitution of India. The directions issued by the Election Commission only give full effect to Article 102(e) of the Constitution and Section 8 of the Act and does not in any way contravene the said provisions. In para 22 of the judgment itself it has been observed that "the Commission would come into picture only if no provision had been made by Parliament in regard to elections to Parliament or State Legislature". It has also been held in the said decision that no law made by the Parliament with respect to Article 327 can take away powers of the Election Commission vested in it under Article 324.
39. The petitioner further relied on Subhash Desai v. Sharad J. Rao (AIR 1994 SC 2277) (supra). In the said case also the same view was reiterated. The aforesaid case also related to corrupt practice under Section 123 of the Representation of the People Act.
40. The petitioner has also referred to the decision of Hon'ble the Supreme Court in Krishna Mohini v. Mohinder Nath Sofat (AIR 2000 SC 317) (supra). In the said case in paragraph 23 it has been observed that the Election Commission of India issued a circular on 9-8-1996 for the guidance of the Chief Electoral Officers of all the States and Union Territories. In paragraph 39 it has been observed that "in our opinion, the abovesaid circular and guidelines issued by the Election Commission of India are consistent with the statutory provisions and correctly bring out the position of law."
In the present case also the directions issued by the Election Commission of India are in conformity with Section 8 of the Act. In para 47, it has further been observed that "under Sub-section (1) of Section 33 of the Act. a candidate is deemed to have been nominated only after his nomination paper complete in all respects in the prescribed form and signed by the candidate and proposer has been delivered to the Returning Officer..... the law has been settled that the oath or affirmation has to be taken by the candidate after he has been nominated, i.e. after he has submitted the nomination papers, but before the date of scrutiny." In view of the decision of Hon'ble the Supreme Court, In case a candidate has either not subscribed to the oath or has subscribed.to the oath before he has submitted the nomination paper, such a person cannot claim to be a duly nominated candidate.
41. The petitioner himself relies on Section 33(4) of the Act which provides that "on presentation of a nomination paper, the Returning Officer shall satisfy himself that the name and electoral roll numbers of the candidate and his proposers are the same as those entered in the electoral rolls.
If the petitioner's contention that he became a duly nominated candidate merely by filing a nomination paper on 9-9-1999, is correct he would continue to be so, despite the fact that his name either does not appear in the electoral roll or does not tally with it or whether the name of his proposers are not the same as those in the electoral rolls.
42. The Election Commission of India in exercise of its power under Article 324 of the Constitution of India has passed the order dated 28-8-1997 keeping in view that the country is facing the serious problem of criminalisation of politics in which criminals, i.e. persons convicted by courts of law for certain offences, are entering into election fray and contesting as candidates. While passing the aforesaid order, the Election Commission considered the various pronouncements of High Courts of the country and Hon'ble the Supreme Court including the case of Purshottamlal Kaushik v. Vidya Charan Shukla decided by the Madhya Pradesh High Court reported in 66 Election Law Reports 110 : (AIR 1980 MP 188), the case of Shri Sachindra Nath Tripathi v. Doodnath decided by this Court reported in 84 Election Law Report 46 and the case of Vikram Anand v. Rakesh Singha (AIR 1995 Him Pra 130) decided by the Himachal Pradesh High Court in which the election of Rakesh Singha was declared void. The appeal filed by ,Sri Rakesh Singha was also dismissed by Hon'ble the Supreme Court holding that Sri Singha was disqualified ab initio for contesting elections under Section 8(3) of the Representation of the People Act, 1951, as evident from the order dated 28-8-1997.
43. The disqualifications are prescribed under Article 102 of the Constitution of India read with Section 8 of the Representation of the People Act, the manner of determination of the disqualification is not provided either by Article 102 of the Constitution of India or by Section 8 of the Act and in the absence of any positive requirement for filing of an affidavit, the Returning Officer while exercising powers under Section 36 will have to act on the basis of merely a declaration made in the nomination paper. The necessity for issuing the directions by the Election Commission is in order to give effect to the provisions of Article 102(e) of the Constitution of India and Section 8 of the Act as a person so disqualified cannot be permitted to contest an election. The petitioner whom sufficient time was given for filing the affidavit has chosen not to file the affidavit as required by the Election Com-mission and it was a willful defiance on his part and it cannot be said that he was a duly nominated candidate and has locus standi to file an election petition. The Returning Officer has only observed the direction issued by the Election Commission for which he was legally under an obligation. The contention of Sri R.N. Trivedi, Additional Solicitor General of India that the petitioner is not a duly nominated candidate and has no right to maintain the petition has force.
As the petitioner was not a duly nominated candidate under the provisions of the Representation of the People Act and the Constitution of India, he has no locus standi to file the instant Election Petition. It is accordingly rejected at the preliminary stage.
There shall be no order as to costs.