Jharkhand High Court
Priya Ranjan Sahay vs The Election Commission Of India on 4 December, 2019
Equivalent citations: AIRONLINE 2019 JHA 1072
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-6502 of 2019
Priya Ranjan Sahay ...Petitioner
-V e r s u s-
1. The Election Commission of India, New Delhi
2. The Chief Election Commissioner, New Delhi
3. The State Election Commissioner, Jharkhand, Ranchi
4. The Returning Officer, Ranchi
5. The State of Jharkhand
6. The Chief Secretary, State of Jharkhand, Ranchi
7. Smmari Lal
...Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Rajiv Kumar, Advocate For the Resp.Nos. 1 to 4:- Dr. Ashok Kumar Singh, Advocate Ms. Amrita Kumari, Advocate For the Resp.Nos. 5 & 6 :- Mr. Jai Prakash, A.A.G.-I For the Respondent no. 7:-Mr. Anil Kumar Sinha, Sr. Advocate Order No.-02 Dated: 04.12.2019 The present writ petition has been filed for issuance of direction upon the respondent nos. 1 to 4 to pass final order upon the complaint lodged by the petitioner stating inter alia that the nomination filed by Smmari Lal (respondent no.7) - a B.J.P. candidate from Kanke (reserved assembly constituency for Scheduled Caste) by suppressing his place of origin and by projecting himself as member of Scheduled Caste of the State of Jharkhand, although his origin is from the state of Rajasthan and as such, he disqualifies himself to be a candidate in the assembly election. The petitioner has further prayed for issuance of direction upon the respondent no. 4 to stay participation of the respondent no. 7 in the election or to stay the result of the same till the matter is finally adjudicated by this Court.
2. Mr. Rajeev Kumar, learned counsel for the petitioner, submits that the petitioner is a bonafide voter in the Ranchi assembly constituency and as such he has the right to know as to whether a particular candidate contesting the ensuing assembly election is qualified for the same. In fact, the respondent no. 7 is original resident of the State of Rajasthan from where he has migrated to contest the ensuing assembly election in Jharkhand. It is a settled law that a person migrating from other State is prohibited to contest 2 the State assembly election from a reserved constituency in the other State. The main object behind the same is that a person belonging to Scheduled Caste or Scheduled Tribe in a particular area of the country must be given protection so long and to such extent he is entitled in order to maintain the equality among others. The respondent no. 7 having his origin in the State of Rajasthan should not be allowed to contest the assembly election in Jharkhand as the same would infringe the rights of the members of the Scheduled Caste of the State of Jharkhand. It is further submitted by the learned counsel for the petitioner that the concept of "right to know"
is derived from "the freedom of speech". The democratic set up of this country mandates that the agents of public must be responsible for their conduct and there can be no secret barring exceptional cases. The people of this country have the right to know every public act, which is done in a public way by the government functionaries. The people are entitled to know the particulars of every public transaction in all its bearing. Thus, the action of the returning officer of Kanke assembly constituency by not taking appropriate action on the complaint preferred by the petitioner has infringed his right enshrined under Article 19(1)(a) of the Constitution of India. In support of his argument, learned counsel puts reliance on the following judgments rendered by the Hon'ble Supreme Court in the cases of-
(i) Action Committee on issue of caste certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & Another Vs. Union of India & Another reported in (1994) 5 SCC 244,
(ii) U.P. Public Service Commission, Allahabad Vs. Sanjay Kumar Singh reported in (2003) 7 SCC 657
(iii) Uttar Pradesh Vs. Raj Narain and Others reported in (1975) 4 SCC 428.
3. Mr. Jai Prakash, learned A.A.G.-I appearing on behalf of the State of Jharkhand, raises a preliminary objection regarding maintainability of the present writ petition and submits that Article 329 of the Constitution of India puts bar on the interference by the court in electoral matters. Learned A.A.G. while referring to Section 3 80 of the Representation of the People Act, 1951 (in short " the Act, 1951") submits that no election can be questioned except by way of election petition to be presented in terms with Section 100 of the Act, 1951 and the rules framed thereunder. Learned A.A.G. while referring to Section 100 the Act, 1951 also submits that all the matters relating to parliamentary or assembly election are to be entertained by the High Court by way of election petition which includes improper acceptance of nomination of a candidate. Challenge to the nomination filed by the respondent no. 7 by invoking Article 226 of the Constitution of India is not maintainable as the said issue can properly be adjudicated in an election petition, that too, if any one chooses to prefer it after the process of election is over. Learned A.A.G. in support of his argument places reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Election Commission of India through Secretary Vs. Ashok Kumar and others reported in (2000) 8 SCC 216.
4. Mr. Anil Kumar Sinha, learned Senior Counsel for the respondent no. 7 also raises an issue with regard to maintainability of the present writ petition making similar argument to that of the learned A.A.G. It is further submitted that the petitioner, who is not in the electoral roll of Kanke assembly constituency, has no right to challenge the nomination paper submitted by the respondent no. 7 by way of the present writ petition. In fact, three other candidates of Kanke assembly constituency challenged the candidature of the respondent no. 7 by filing objection before the returning officer which were duly considered and rejected. It is also submitted that the petitioner is an old resident of the State of Jharkhand and the present writ petition has been filed with malice only to put hindrance in the election process. Since the present writ petition has not been filed in the form of PIL, the petitioner not being a candidate has no locus to challenge the candidature of the respondent no. 7. The learned Senior Counsel in support of his argument puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Manda Jaganath Vs. K.S Rathnam & Others reported in (2004) 7 SCC 492 and submits that Article 329(b) of the Constitution of India read with the provisions of the Act, 1951 limits the power of 4 High Court under writ jurisdiction to entertain the matters relating to parliamentary or assembly election during the period the process of election continues. Even thereafter, the election of any candidate may be challenged before the High Court by way of an election petition presented under Section 80 and 80-A of the Act, 1951.
5. Dr. A. K. Singh, learned counsel appearing on behalf of the respondent nos. 1 to 4 adopts the argument advanced by the learned A.A.G. appearing on behalf of the State of Jharkhand and Mr. Anil Kumar Sinha, learned Senior Counsel for the respondent no. 7.
6. Heard the learned counsel for the parties and perused the contents of the writ petition. The main submission of the learned counsel for the petitioner is that the respondent no. 7 has his origin in the State of Rajasthan, however he has put his nomination from Kanke assembly constituency (reserved for Scheduled Castes) falsely projecting himself as the resident of Jharkhand and the petitioner has the right to know the true facts for which he made the complaint but the same is not being considered by the returning officer in fair manner.
7. Undoubtedly, a citizen of India has the right to know the action being taken by a public authority, yet so far as the issue relating to parliamentary or assembly election is concerned, the same has to be considered in terms with the mandate of the Constitution of India and the Act, 1951 and the relevant statutes.
8. For better appreciation of the contentions of the learned counsel for the parties, the provisions of Article 329 of the Constitution of India as well as Sections 80, 80-A and 100 of the Act, 1951 are reproduced herein below:-
Article 329. Bar to interference by courts in electoral matters -
Notwithstanding anything in this Constitution
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;
(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by 5 or under any law made by the appropriate Legislature."
"80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part. [[ 80-A. High Court to try election petitions.-- (1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.
100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the 6 commission of corrupt practices at the election;
and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
9. Section 80 of the Act, 1951 provides that election shall be called in question only by presenting an election petition. Section 80-A empowers the High Court to try all election petitions. So far as the grounds for declaring election to be void is concerned, the same has been elaborately described in Section 100 of the Act, 1951 including improper acceptance of any nomination.
10. In the case of Election Commission of India (supra), the Hon'ble Supreme Court while considering Article 329 of the Constitution of India as well as the relevant provisions of the Act, 1951, has held as under:-
"13. Article 324 of the Constitution contemplates constitution of the Election Commission in which shall vest the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the legislature of every State and of elections to the offices of President and Vice- President held under the Constitution. The words "superintendence, direction and control" have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion. Article 329 of the Constitution provides as under:
"329. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature."
14. The term "election" as occurring in Article 329 has been held to mean and include the entire process from the issue of the notification under Section 14 of the Representation of the People Act, 1951 to the declaration of the result under Section 66 of the Act.
29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329(b), the former 7 being a product of the latter. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] (vide SCC p. 429, para 33) asks us to read Section 100 widely as "covering the whole basket of grievances of the candidates". Sub-clause (iv) of clause (d) of sub-section (1) of Section 100 is a "residual catch-all clause". Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any Rules or Orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the section it shall be covered by sub-clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as the abovesaid subject to such non-compliance, also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence, ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] ). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over.
8Two-pronged attack on anything done during the election proceedings is to be avoided -- one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy."
11. It may thus be inferred from the aforesaid ratio laid down by the Hon'ble Supreme Court that the term 'election' occurring in Article 329 is to be considered as the entire process from the issue of the notification under Section 14 of the Act, 1951 to the declaration of the result under Section 66 of the said Act. The matter relating to rejection/acceptance of the nomination of a candidate is also a matter which has to be termed as an action taken during the process of election. So far as the overriding effect of Article 329(b) of the Constitution of India over Article 226 is concerned, it has been held by the Hon'ble Supreme court that there is only one remedy available in the matters relating to election i.e. by way of an election petition to be presented after the election is over and there is no remedy at any intermediate stage. The non obstante clause with which Article 329 commences, pushes out Article 226 particularly in the matter where the dispute takes the form of calling an election in question. The said issue has also comprehensively been dealt with by the Constitution Bench of the Hon'ble Supreme Court in the case of Mohinder Singh Gill & Another Vs. Chief Election Commissioner, New Delhi And Others reported in 1978 (1) SCC 405. If the provisions of the Constitution of India and the Act, 1951 are read together, it may safely be construed that there is no total exclusion of the right of a citizen to approach the writ court seeking a remedy in the said judicial forum, yet the rights and remedies relating to election matter being the statutory in nature, are to be postponed till the election process is over even if there are some irregularities or illegalities. The words "no election shall be called in question" have consciously been put in Article 329(b) of the Constitution of India and same are the determinative test for attracting applicability of Article 329(b) while entertaining a writ petition during continuance of the election process. Thus, the writ court must be circumspect and should act with caution while entertaining any election dispute during the pendency of the 9 electoral process. Judicial intervention is however available if the assistance of the writ court is sought to smoothen the process of election and to remove the curb therein without interrupting, obstructing or delaying the process of election proceeding.
12. In the case of W.B. State Election Commission & others Vs. Communist Party of India (Marxist) & others reported in (2018) 18 SCC 141, the Hon'ble Supreme Court has held as under:-
29. There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling State law on the subject must be maintained. 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. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. This principle has been consistently adhered to in decisions of this Court.
In Boddula Krishnaiah [Boddula Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC 416], a three-Judge Bench adverted to the decisions of the Constitution Bench in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952 SC 64] and in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman [Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689]. After referring to Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952 SC 64] , it was observed: (Boddula Krishnaiah case [Boddula Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC 416] , SCC pp. 419-20, para 8) "8. In N.P. Ponnuswami v. Returning Officer, Namakkal Constitutecy [N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952 SC 64] a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the "election"; and enable the person affected to call it in 10 question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
The binding principle must be followed."
13. In the case of Ramchandra Ganpat Shinde & Another Vs. State of Maharashtra & others reported in (1993) 4 SCC 216, the Hon'ble Supreme Court has held as under:-
"16. -------- It is equally sound exercise of discretion to bear in mind the policy of the legislature to have the dispute decided speedily through the machinery of election petition and decline to exercise its writ jurisdiction in election dispute. Once the election process was set in motion according to law any illegality or irregularity committed while the election process is in progress or the conduct of the election is vitiated by any illegality or irregularity in its process, the proper remedy is to lay the action before the tribunal constituted under that Act by means of an election petition and have the dispute adjudicated without the election process being interdicted or retarded midway. The High Court or this Court while exercising the constituent plenary power under Article 226 or 32 or under 136, as the case may be, would decline to interfere with the election process and relegate the parties to take recourse to the alternative remedy of the election petition provided under the statute. --"
14. In view of the aforesaid discussion, I am of the considered view that since the election process is continuing and the dispute has been raised by the petitioner in relation to acceptance of the nomination papers of the respondent no. 7 by the returning officer, the writ petition preferred by him is not maintainable. So far as the facts pleaded by the petitioner in the present writ petition is concerned, he has not brought on record any such conclusive proof or an adjudication by appropriate court of law/forum that the respondent no. 7 is a permanent resident of the State of Rajasthan . Be that as it may. Since those are the questions of facts and as has been observed by this Court that the present writ petition preferred by the petitioner is not maintainable as the election process is still continuing, there is no need to entertain the said factual issues raised by the petitioner in the present writ petition.
15. The writ petition is accordingly dismissed.
(Rajesh Shankar, J.) Ritesh/A.F.R.