Rajasthan High Court - Jaipur
Jagdish Prasad Saini Son Of Shri Nathu ... vs State Election Commission Of Rajasthan on 22 April, 2019
Bench: Alok Sharma, Goverdhan Bardhar
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(D.B. Civil Public Interest Litigation No.7060/2019)
Jagdish Prasad Saini S/o Shri Nathu Ram Saini, aged about 44 years, Resident of Mohan Nagar,
Harmada, Sikar Road, Jaipur (Raj.) 302013.
- - - Petitioner
Versus
1. State Election Commission of Rajasthan, through Chief Election Officer, Rajasthan, Jaipur.
2. Election Commission of India through Chief Election Officer India, Ashoka Road, New Delhi.
- - - Respondents
Date of Order: April 22, 2019.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Mr. Jitendra Singh Tanwar, for the petitioner.
BY THE COURT:
REPORTABLE The following reliefs have been claimed in this Public Interest Litigation (PIL) petition:-
i) Issue a writ of mandamus/ order/ direction declaring unconstitutional and illegal "the practice of post-poll alliance among parties which contested elections against each other.
ii) Issue a writ of mandamus/ order/ direction direct the respondent to issue directions preventing political parties from violating their own manifestos when such parties enter into post-poll electoral alliance in order to form a government.(Downloaded on 28/06/2019 at 01:25:11 AM) 2
iii) Issue directions to competent authority respondent to take steps to make the manifesto a legal binding document and direct competent authority to take action against Election Commission for not initiating action against political parties and person for violating manifesto.
iv) Issue a direction to respondents to ban the attractive news published in various newspapers on 26/27 th March, 2019 in respect of false promise/ declaration for voting from the voters at the time of contesting election.
v) Issue a direction to respondents to take action against the Chief/ President of All India National Congress Party who gave attractive statement and after that same news published in various newspapers on 26/27 th March, 2019 in respect of false promise/ declaration for voting from the voters at the time of contesting election.
vi) Any other appropriate order or direction which this Hon'ble Court deems fit and proper in favour of the petitioner may kindly be passed.
vii) Cost of the writ petition may kindly be provided to the petitioner.
This is a rambling petition with disparate averments and randum invocations of Articles 282, 266(3), and 14 of the Constitution of India as also Section 123(1)(A)(b) of the Representation of the People Act, 1951 (hereafter `the Act of 1951'). The petition asserts, amongst other things, illegality of the NYAY Scheme in the manifesto of Indian National Congress for the Loksabha Election 2019, whereunder an election promise has been made that in the event of the party forming government at the center, it by way of direct benefit transfer would ensure payment of (Downloaded on 28/06/2019 at 01:25:11 AM) 3 Rs.6000/- per month i.e. Rs.72,000/- per annum to the 20% poorest population estimated to be 5 crores families i.e. about 25 crores citizens to ensure freedom from an abject life of want. The petitioner bases the cause of action for laying this purported PIL on the aforesaid NYAY Scheme and claims legal injury therefrom for which remedy is sought. The legal injury from the NYAY scheme is stated to lie in an outgo of Rs.3,60,000/- crores per annum constituting about 2% of the country's current GDP or it is stated that the NYAY scheme would alternatively result in withdrawal of some ongoing welfare schemes aggregating to Rs.3,27,679.43 crores per annum under the present government headed by the Bhartiya Janta Party. It has been stated that representation against the NYAY Scheme set out in Indian National Congress's (INC) manifesto sent to the respondents Election Commission of India and the State Election (why it was sent to the State Election Commission is not clear) has been of no avail and hence this petition. Alongside the injury pleaded, and as recorded above, the petitioner's averments also then break out, on an issue unrelated and foreign to the NYAY scheme's alleged unconstitutionality and purported illegality, to potential post election coalitions in formation of the government at the center post Loksabha elections of 2019, which it is asserted, for reasons undisclosed, should be prohibited.
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Counsel for the petitioner Mr. Jitendra Singh Tanwar has emphatically reiterated the case set up in the petition.
Having perused the petition and heard counsel for the petitioner, we are of the considered view that this purported PIL is, wholly without merit, founded upon the petitioner's evident political distaste though not evident preferences, without an iota of legal foundation and is a palpable abuse of the salutary PIL jurisdiction of this court under Article 226 of the Constitution of India, even when expanded on relaxation of the requirement of locus standi to facilitate enhancement of the scope to pass orders in public interest and overcome patent violation of law and the Constitution by the powers that be at any point of time. This conclusion is founded on the following reasons:-
a) An Election manifesto is a statement of a political party explaining what it would do if it were to be voted to power. It lays out bare for the electorate the party's policies to see and thereon decide which of the competing parties on their manifestos on offer, they would cast their vote for. Manifestos are central to a Parliamentary democracy and most parties declare their manifestos prior to general elections, but as Lord Denning has observed, the manifesto of a political party is neither the gospel truth nor a signed (Downloaded on 28/06/2019 at 01:25:11 AM) 5 or agreed bond. And one may add, where the party winning the election fails to adhere to the promises in its manifesto, it is for the voter, who made their preferences on such manifesto to consider its credibility when the occasion next arises.
It is thus evident that the Manifesto of a political party for an election only constitutes declaration of its intent and its policy prescription for governance in the event of the party coming to power following an election. Election promises generally made in a manifesto of a political party cannot in our considered view, at least before the related elections be the subject matter of a petition under Article 226 of the Constitution of India as no legal rights accrue to a voter thereon. The breach of a promise set out in a manifesto is an event uncertain and dependent to begin with on the party making declarations/ promises thereunder coming to power and forming government.
The NYAY Scheme as formulated in the manifesto of Indian National Congress cannot be impugned as a corrupt practice under Section 123(1)(A)(b) of the Act of 1951 as counsel for the petitioner would submit. That argument is completely without merit on more than one ground. For one, a corrupt practice as defined in the Act of 1951 can be set up as a ground on a challenge to an election of a (Downloaded on 28/06/2019 at 01:25:11 AM) 6 candidate at an election only post the event. Two, an allegation of corrupt practice under the Act of 1951 cannot even otherwise be made qua a manifesto of a political party contesting an election. The Apex Court, in an appeal arising from an election petition, in the case of B. Rajagopala Rao Vs. Appayya Dora Hanumanthu [1989 Supp(2) SCC 504] held that normally election promises (which are also included in an election manifesto) do not amount to corrupt practice within the scope of Section 123(1)(A)(b) of the Act of 1951. Further in the case of H.V. Kamath Vs. Ch. Nitiraj Singh [(1969)1 SCC 601] the Apex Court held that even where an ordinance was passed by the Government of Madhya Pradesh as a result of which a large number of agriculturists, holding upto 7.50 acres of land or paying land revenue not exceeding Rs.5/- got certain benefits / concession, such benefits or concession did not constitute a gift, offer or promise of any gratification within the meaning of Section 123(1) (A) of the Act of 1951 to constitute a corrupt practice.
b) As far as the argument of the counsel for the petitioner based on Articles 282 and 266(3) of the Constitution of India is concerned, it is a non sequitur. Article 266(1) of the Constitution of India states as of what consolidated fund of India and consolidated fund of the State are constituted. Article 266(3) provides that no moneys out of the consolidated fund of India or the Consolidated fund of a State can (Downloaded on 28/06/2019 at 01:25:11 AM) 7 be appropriated except in accordance with law and for the purposes and in the manner provided for in this Constitution. Article 282 of the Constitution of India relates to Union/ State grants which are made subject to prescribed procedural control and purpose.
No situation of either making of a grant or expanding moneys out of Consolidated Fund of India or of the State has yet arisen in the facts of the instant case. It is in fact even rightly not averred. What the manner of implementation of the NYAY Scheme as detailed in the INC's manifesto would be, if situation therefor would come to pass, can only be speculative at this stage. The far fetched argument agitated in this regard based on Articles 266(3) and 282 of the Constitution of India is wholly hypothetical and premature and hence liable to be rejected on this ground. It would be wholly presumptive for the petitioner to argue or the court to visualize, if it even so permissible, as to what would be the methodology and legal structure adopted by the concerned party to implement the NYAY scheme were it to be in a position of forming government, post election to Loksabha 2019, at the Center.
We are therefore of the considered view that no cause of action at all for impugning the NYAY Scheme in the INC's manifesto has arisen for it to be addressed in this misdirected petition under (Downloaded on 28/06/2019 at 01:25:11 AM) 8 Article 226 of the Constitution of India.
c) Further the prayer in the petition pertaining to "post poll alliances between the parties contesting elections against each other"
to be declared illegal is incomprehensible and unsustainable as aside of again being the speculative and premature, no legal or constitutional prohibition in that regard has been brought to the notice of the court. In fact the prayer is audacious and absurd, as it is wholly against the principles of a Parliamentary Democracy--which the country constitutionally is. This prayer is liable to be rejected at the threshold. It is so.
d) Besides, the petition is also liable to be dismissed for non joinder of necessary party. The President or any office bearer of the INC, against whom relief has been prayed has not been impleaded nor even has been the INC. It is well settled that relief against one not impleaded cannot be granted. In fact in such a situation the petition is liable to be dismissed for non impleadment of a necessary party. As is this petition. It is so.
e) Finally a direction has been sought in the petition to the "competent authority" to take action against the Election Commission of India for not taking action "against the political parties and (Downloaded on 28/06/2019 at 01:25:11 AM) 9 persons" for "violating manifestos". Who "the competent authority"
which can take action as prayed for is, has not been disclosed. And "the" "competent authority" to which direction has been sought to proceed against the Election Commission of India has not been impleaded. Nor has the specific statutory duty not being discharged by the election commission has been adverted to, in respect of which the election commission purportedly owes a duty to the public at large including the petitioner.
The Apex Court in the case of Divine Retreat Centre Vs. State of Kerala [(2008)3 SCC 542] has held that it is well settled that a PIL can only be entertained by Constitutional Courts only at the instance of a bonafide citizen. It has been held that an individual who moves the court for judicial redress through a PIL must be acting bonafide with a view of vindicating the cause of justice and not for any personal gain or private profit or for the political motivation or other oblique consideration. (underlining mine) It has been held that courts cannot allow their PIL jurisdiction to be activated at the instance of persons evidently not acting bonafide for vindication of justice and where it is found that the purpose/ object of the PIL is oblique, the PIL is to be rejected at the threshold.
The Apex Court in the case of Tehseen Poonawalla Vs. Union (Downloaded on 28/06/2019 at 01:25:11 AM) 10 of India [(2018)6 SCC 72] has held that a PIL was capable of being purposely misused by a person with personal agenda and petitions can be instituted at the instance of political rivals to settle scores. Such petitions must be rejected. In para 98 of the judgment it was recorded thus:
"The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this Court and the High Courts are flooded with litigation and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This Court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation. There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. Worse still, such petitions pose a grave danger to the credibility of the judicial process. This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the Rule of law. This will happen when the agency of the court is utilized to settle extra-judicial scores. Business (Downloaded on 28/06/2019 at 01:25:11 AM) 11 rivalries have to be resolved in a competitive market for goods and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the Rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space."
In the case of BALCO Employees Union Vs. Union of India [(2002)2 SCC 333] the Apex Court has held that interference by way of PIL can be made only in cases of dereliction of constitutional or statutory obligation on the part of government. It was held that matters of public curiosity or concern without legal wrong cannot be subject of PILs.
In the context of the facts of the case recorded above and the pronouncements of the Apex Court in various judgments adverted to, on the issue of care, caution and circumspection by the courts when their PIL jurisdiction is invoked, we are of the considered view that instant petition is wholly without merit raises it does multiple unrelated issues without any legal/ constitutional foundation, intent only on challenging the INC's manifesto even without impleading any office bearer of the party and the party itself. The single minded focus of the petitioner on one party's manifesto to the exclusion of manifestos of other political parties propounding different schemes (Downloaded on 28/06/2019 at 01:25:11 AM) 12 for public welfare suffices to infer that this purported PIL is politically motivated and a gross misuse of the salutary PIL jurisdiction of the court with the sole intent of the petitioner to garner publicity for himself.
Therefore this petition filed by the petitioner malafide, with oblique motive and lacking in even an iota of legal foundation deserves dismissal with exemplary costs of Rs.50,000/- to be deposited with the Rajasthan State Legal Services Authority (RSLSA) with the expectation that RSLSA would utilize the said amount for dissemination of information with regard to PILs being entertained only when bonafide filed for the purpose of vindication of justice necessitated by blatant statutory and constitutional contravention by the executive and for no other purpose.
(Goverdhan Bardhar), J. (Alok Sharma), J.
arn/
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