Shri Charan
Lal Sahu & ANR Vs. Shri K.R. Narayanan & ANR [1997] INSC 844 (24
November 1997)
S.C.
AGARWAL, G.N. RAY, A.S. ANAND, S.P. BHARUCHA, S.RAJENDRA BABU
ACT:
HEADNOTE:
THE
24TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mr. Justice S.C. Agrawal Hon'ble Mr. Justice G.N. Ray Hon'ble Dr. Justice A.S. Anand
Hon'ble Mr. Justice S.P. Bharucha Hon'ble Mr. Justice S.Rajendra Babu Ashok
Desai, Attorney General, T.R. Andhyarujina, Solicitor General, Soli J.Sorabjee,
Sr. Adv., (C.L. Sahu) Adv. in- person, (Dharti Pakar and M.L. Agarwal) Advs.
In-persons, P.H. Parekh, Sameer Parekh, Ms. Ruchi Khurana, P.Parmeswaran, Ms. Pallav
Shishodia, Subrat Birla, N.K. Kaul, Manoj Wad and A.M. Khanwilkar, Advs. with
them for the appearing parties.
The
following judgment of the Court was delivered:
S.C.
AGRAWAL, J.
This
election petition has been filed jointly by two petitioners, namely, Charan Lal
Sahu and Mitheles Kumar.
They
have challenged the election of respondent No. 1 to the office of the president
of India in the election that was held for
the said office in pursuance of the notification dated June 9, 1997 published by the Returning Officer,
Shri S. Gopalan, Secretary General, Lok Sabha. The said election was conducted
under the provisions of the presidential and vice-Presidential Elections Act,
1952 [hereinafter referred to as 'the Act'].
Part
II of the Act (Sections 3 to 12) contains provisions relating to conduct of
presidential and Vice- Presidential elections. Section 3 provides for
appointment of the Returning officer and the Assistant Returning
officer/Officers by the Election Commission. Section 4(1) of the Act makes
provision for issuance of a notification by the Election Commission prescribing
the last date for making nominations, the date for the scrutiny of nominations,
the last date for the withdrawal of candidatures, the date on which a poll
shall, if necessary, be taken. Section 5 provides for giving of a public notice
of election by the returning Officer after the issuance of the notification
under sub-section (1) of Section 4. Section 5A prescribes that any person may
be nominated as a Candidate for election to the office of President or
Vice-President if he is qualified to be elected to that office under the
Constitution. Section 5B provides for presentation of nomination papers and
lays down the requirements for a valid nomination. Sub-section (1) of Section
5B requires that the nominating paper completed in the prescribed form must be
subscribed by the candidate as assenting to the nomination.
In
clause (a) of sub-section (1), as it stood prior to June 5, 1997. it was further prescribed that in the case of presidential
Election, the nomination papers shall also be subscribed by at least ten
electors as proposers an dat least ten electors as seconders. Sub-section (2)
of Section 5B lays down that each nomination paper shall be accompanied by a
certified copy of the entry relating to the candidate in the electoral roll for
the parliamentary constituency in which the candidate in the electoral roll for
the parliamentary constituency in which the candidate is registered as an
elector. A nomination paper to which such certified copy is not attached is
required to be rejected under sub-section (4) of Section 5B. Section 5C, prior
to June 5, 1997, prescribed that a candidate shall
not be deemed to be duly nominated for election unless he deposits or causes to
be deposited a sum of two thousand five hundred rupees. Section 5E makes
provision for scrutiny of nominations and under sub-section (4) a nomination
paper can be rejected by the returning officer on the grounds (a) to (e) of
that sub-section. Ground (c) provides for rejection of a nomination paper on
the ground that it is not subscribed by the required number of proposers or seconders
and g round (e) provides for rejection on the ground that there has been a
failure to comply with any of the provisions of Section 5B or Section 5C.
Section 6 deals with withdrawal of candidature. Section 8 lays down the
procedure in contested and uncontested elections. Section 9 provides for manner
of voting at elections and Section 10 deals with counting of votes. Section 11
provides for declaration of result after the counting of votes has been
completed.
Part
III of the Act [Sections 13 to 20] contains provisions relating to Disputes
regarding elections. Sub- section (1) of Section 14 prescribes that no election
shall be called in question excepting by presenting an election petition and
under sub-section (2) this Court has been specified as the authority which
shall have jurisdiction to try an election petition. Sub-section (1) of Section
14A lays down that an election petition can either be presented by any
candidate at such election or, in the case of Presidential election, by twenty
or more electors joined together as petitioners. The expression
"candidate' is defined in clause (a) of Section 13 to mean a person who
has been or claims to have been duly nominated as a candidate at an election.
Section 18 prescribes the grounds on which the election of a returned candidate
can be declared to be void.
On June 5, 1997 the president of India promulgate the Presidential and
Vice-Presidential Elections (Amendment) Ordinance, 1997 (No. 13 of 1997),
hereinafter referred t o as 'the Ordinance', to further amend the Act. By the
Ordinance clause (a) of Sub-section (1) Section 5B was amended and for the
words "ten electors" the words "fifty electors" were
substituted and as a result it became necessary that a nomination paper for
presidential election should be subscribed by at least fifty electors as proposers
and at least fifty electors as seconders. By the Ordinance, Section 5C was also
amended and for the words "two thousand five hundred rupees" the
words " fifteen thousand rupees" were substituted and as a result the
amount o be deposited as security was raised from two thousand five hundred
rupees to fifteen thousand rupees. The Ordinance was replaced by the
Presidential and Vice-Presidential Election Amendment Act, 1997 [Act 35 of
1997], hereinafter referred to as 'the Amendment Act', which was enacted by
parliament on August
29, 1997. Charan Lal Sahu,
Petitioner No. 1, filed a writ petition [No. 293/97] in this Court under
Article 32 of the Constitution wherein he challenged the validity of the
Ordinance. The said writ petition was dismissed by the Court by the following
order passed on June 9,
1997:- 'The Writ
petition is dismissed" Another writ petition [No. 322/97 ] was filed by
one P.H. Parmar. The said writ petition was also dismissed by the Court by the
following order passed on July 11,1997:-
"This writ petition under Article 32 is misconceived. So far as the
challenge to the Ordinance is concerned, this stands concluded by dismissal of
an earlier writ petition [W.P. No. 237/97 entitled C. L. Sahu vs. UOI & Ors.
] We are constrained to observe that this is misuse of the PIL jurisdiction.
After
the enactment of the Amendment Act, petitioner No. 1 again filed a writ
petition [No. D13334/97] to challenge the validity of the Amendment Act. The
said writ petition was also dismissed by the Court by the following order
passed on October 13,1997:- "This writ petition is
wholly misconceived. We are unable to appreciate the petitioner's persistence
with the same even after we tole him so and also in view of the fact that a
similar challenge has already been rejected earlier by orders dated 19/6/1997
and 11/7/1997 in W.P.(C) No. 293/97 and W.P. (C) No. 322/97 respectively. we
have no doubt that this petition is a clear abuse of the process of the Court.
The
writ petition is, therefore, dismissed." After the issuance of the
notification under Section 4(1) of the Act by the Election Commission the
Returning Officer published a notification dated June 9, 1997 under Section 5 of the Act for election of the President of
India.
In
response to the said notification nomination forms were filed by a number of
persons including the petitioners. The nominations of respondent Nos. 1 and 2
were accepted and the nominations of the rest, including the petitioners, were
rejected by the Returning officer. Since there was a contest between
respondents Nos. 1 and 2, poll was taken and after counting of votes,
respondent No. 1 was declared to have been elected to the office of the
president of India on July 17, 1997. On August
14,1997 the
petitioners filed this election petition wherein they have prayed that the
election of respondent No. 1 be declared void.
The
petitioners have asserted that they were duly nominated candidates and are
competent to file the election petition. They have claimed that their
nomination was improperly rejected and the nomination of respondent Nos. 1 and
2 was improperly accepted. The petitioners have challenged the validity of the
provisions contained in Sections 5B and 5C of the Act as they stood prior to
the amendments introduced in the said provisions by the ordinance and have
challenged the validity of the amendments made in Section 5B and 5C by the
Ordinance. There is no averment in the election petition that the nomination
form for nomination of petitioner No.. 1 was subscribed by fifty electors as proposers
and fifty electors as seconders as required by Section 5B(1) (a), as amended by
the Ordinance.
On the
other hand, in the letter dated June 24,1997 addressed by the petitioner No. 1 to the Returning Officer
which has been filed as Annexure III to the Election petition, petitioner No. 1
has stated that his nomination paper was proposed by seven electors and that
fifty proposers and fifty seconders were not required. As regards petitioner
No. 2 it has been asserted in the Election petition that his nomination paper
was signed by 64 proposers and 61 seconders.
During
the pendency of the election petition the Ordinance was replaced by the
Amendment Act. The petitioners have filed an application for amendment of the
election petition to substitute the Ordinance by the Amendment Act at pages 5
and 40 of the election petition. The application is allowed and the petitioners
are permitted to carry out the said amendment in the election petition.
In
response to the notice issued on the Election petition an
Affidavit-in-Opposition to the Election petition has been filed by respondent
No. 1. In the said Affidavit- in-Opposition a preliminary objection has been
raised with regard to the maintainability of the Election petition by the
petitioners on the ground that the petitioners were not candidates at the
election and they are not entitled to maintain the Election petition under
Section 14A of the Act.
Reference
has been made to the letter of petitioner No. 1 dated June 24, 1997 addressed
to the Returning Officer (Annexure III to the Election petition) wherein
petitioner No. 1 had claimed that he had seven proposers and did not claim any seconders
at all and it is submitted that the said letter shows that petitioner No. 1 did
not have fifty proposers and fifty seconders. As regards t he nomination paper
of petitioner No.2 it is stated in the Affidavit-in- Opposition that in the
nomination paper names of 64 proposers had been mentioner but 29 out of them
had not subscribed their signatures at all and, therefore, the number of proposers
was 35 only. similarly, there were names of 61 seconders but out of them 28 did
not sign and, therefore, there were only 33 seconders. It is also stated that
the nomination of petitioner No. 2 was rejected on the threshold as it was not
accompanied by the certified copy of the electoral roll as required under
Section 5B(2) of the Act. In the said Affidavit-in-Opposition reply has also
been given to the averments contained in the Election petition on merits and it
is denied that the nomination paper of respondent No. 1 was wrongfully accepted
and it is asserted that the certified copy of the entry in the electoral roll
was filed as required under Section 5B(2) of the Act. As regards challenge to
the validity o the ordinance, reliance has been placed on the Orders of this
Court dismissing W.P.(Civil) No. 293 of 1997 filed by petitioner No. 1 and W.P.No.
322 of 1997 filed by Shri P.H. Parmar.
Rejoinder
affidavit of petitioner No. 1 has been filed in reply to the said
Affidavit-in-Opposition of respondent No. 1. In the said Rejoinder affidavit
the averments in the Affidavit-in-Opposition that the nomination paper of
petitioner No.1 was subscribed by 35 electors as proposers and 33 electors as seconders
and that the nomination paper of petitioner No.2 was not accompanied by the
certified copy of the electoral roll have not been controverted. We must,
therefore, proceed on the basis that the nomination papers of both the
petitioners did not fulfil the requirements of Section 5B(1)( a) of the Act
inasmuch as neither of these nomination papers was subscribed by the requisite
number of fifty electors as proposers and fifty elector as seconders and that
in so far as petitioner No. 1 is concerned, his nomination paper was not even
subscribed by ten propoers but was subscribed by seven proposers only and
further that the nomination paper of petitioner No. 2 was filed without
complying with the requirements of Section 5B(2) of the Act.
Rules
governing election petition filed under part III of the Act are contained in
Order XXXIX of the Supreme Court Rules, 1966. Rule 34 of Order XXXIX provides
that subject to the provisions of the said order or any special order or
direction of the Court the Procedure on an election petition shall follow, as
nearly as may be, the procedure in proceedings before the Court in the exercise
of its original jurisdiction. As regards proceedings in the exercise of the
original jurisdiction of the Court Order XXIII Rule 6 provides that the plait
shall be rejected (a) where it does not disclose a cause of action, or (b)
where the suit appears from the statement in the plaint to be barred by any
law.
The
preliminary objection raised by respondent No. 1 in the Affidavit-in-Opposition
is that the petitioners are not entitled to maintain the Election petition in
View of Section 14A of the Act since they were not candidates at the election. if
the said preliminary objection is accepted, the election petition will be
liable to be rejected as being barred by law, i.e., section 14A of the Act. We
have, therefore, heard the petitioners as well as the learned counsel for
respondent No. 1 and the learned Attorney General of India on the said
preliminary objection.
Section
14A of the Act relating to the presentation of the election petition provides
as follows:- "14a. (1) An Election petition calling in question an
election may be presented on one or more of the grounds specified in
sub-section (1) of Section 18 and Section 19 to the Supreme Court by any
candidate at such election, or- (i) in the case of Presidential election, by
twenty or more election may be presented on one or more of the grounds
specified in sub-section (1) of Section 18 and Section 19 to the Supreme Court
by any candidate at such election, or- (i) in the case of Presidential
election, by twenty or more electors joined together as petitioners;
(ii) in
the case of Vice- Presidential election, by ten or more electors joined
together as petitioners.
(2)
Any such petition may be presented at any time after the date of publication of
t he declaration containing the name of the returned candidate at the election
under Section 12 but not later than thirty days from the date of such
declaration." The word "candidate" is defined in section 13(a)
of the Act as under:- "(a) "candidate" means a person who has
been or claims to have been duly nominated as a candidate at an election;"
The word "elector" is defined in section 2(d) of the Act in these
terms:
"(d)
"elector", in relation to a presidential election, means a member of
the electoral college referred to in article 54, and in relation t a
Vice-Presidential election, means a member of the electoral college referred to
in article 66;" Shri Sorabjee, the learned senior counsel appearing for
respondent No.1, arguing in support of the preliminary objection, has urged
that an election petition calling in question the presidential election can
either be filed by a candidate at such election or by twenty or more electors
joined together as petitioners. In the present case the election petition has
not been filed by twenty or more electors joined together as petitioners but has
been filed by two petitioners only. It can be entertained only if either of the
petitioners can be held to be a candidate" Referring to the definition of
" candidate" contained in Section 13(a) of the Act, Shri Sorabjee has
submitted that neither of the petitioners was a duly nominated candidate nor
could he claim to have been duly nominated as a candidate at an election since
the nomination papers submitted by both of them were not subscribed by fifty proposers
and fifty seconders as required under Section 5B(1) a) of the Act, as amended
by the Amendment Act. It is, therefore, submitted that the petitioners have no
locus standi to file this election petition and it should be dismissed as not
maintainable. It has also been urged that the question as to the validity of
Sections 5B and 5C of the Act, cannot be raised in an election petition filed
under Section 14A of the Act and that an Election petition can be maintained only
on any of the grounds mentioned in Section 18 of the Act. It has also been
submitted that in any event the validity of Sections 5B and 5C, as the said
provisions stood prior to June 5, 1997, requiring that the nomination should be
subscribed by ten electors as proposers and ten electors as seconders has been
upheld in Charan Lal Sahu vs.
Neelam
Sanjeeva Reddy, 1978 (3) SCR 1, decided by a bench of 7 Judges of this Court
and that the challenge to the validity of the amendments introduced in Sections
5B and 5C by the Ordinance and the Amendment Act has been negatived by this
Court while dismissing the three writ petitions to which reference has been
made earlier and that two of these writ petitions were filed by petitioner No.
1 himself.
The
learned Attorney General has also taken the same stand and has submitted that
since neither of the petitioners can be held to be a candidate under Section
13(a) of the Act they are not entitled to maintain the election petition under
section 14A of the Act and that the same is liable to be dismissed at the
threshold.
Petitioner
No. 1, Charan Lal Sahu, has argued the case as petitioner-in-person and as
counsel representing petitioner No.2. he has submitted that both the
petitioners were candidates under section 13(a) of the Act since they were duly
nominated candidates. it has been urged that the requirement that the
nomination paper for the presidential election should be subscribed by ten
electors as proposers and ten electors as seconders contained in Section 5B(1)
(a), as it stood prior to the amendment introduced in the said provision by the
Ordinance and the Amendment Act and the requirement introduced in the said
provision y the Ordinance and the Amendment Act that the nomination paper
should be subscribed by fifty electors as proposers and fifty electors as seconders,
is unconstitutional and void.
The
submission of the petitioners is that they are entitled to challenge the
validity of the provisions contained in Section 5B, as t stood prior to the
amendments introduced by the Ordinance and the Amendment Act and also the
amendment made therein by the Ordinance and the Amendment Act in the election
petition and that such a challenge is not barred.
It has
been contended that the earlier decisions negativing the challenge to the
validity of Section 5B did not take into consideration the provision regarding
secrecy of ballot contained in Article 55(3) of the Constitution and that in
view of the said provision in the Constitution the earlier requirement that the
nomination paper must be subscribed by ten proposers and ten seconders and the
present requirement about subscription by fifty proposers and fifty seconders
is unconstitutional. It is urged that if the said provision in Section 5B is
held to be unconstitutional then the petitioners must be regarded as duly
nominated candidates and they are entitled to file this Election petition.
In
view of Section 14A of the Act an election petition calling in question a
presidential election can be resented either by a candidate at such election or
twenty or more electors joined together as petitioners are claiming the right
to file the petition on the basis that they were candidates at the election.
The said claim of the petitioners has to be examined on the basis of the
definition of "candidate" as contained in Section 13(a) of the Act whereunder
a person who has been or claims to have been duly nominated as a candidate at
an election is to be treated as a 'candidate'. The question for consideration
is whether the petitioners, whose nomination papers did not satisfy the
requirements of Section 5B(1)(a) of the Act, can be regarded as persons who had
been nominated as a candidate at an election is to be treated as a candidate at
an election is to be treated as a 'candidate'. The question for consideration
is whether the petitioners, whose nomination papers did not satisfy the
requirements of Section 5B(1) (a) of the Act, can be regarded as persons who
had been nominated or can claim to have been duly nominated as 'candidate' at
the election in question.
In Charan
Lal Sahu vs. Neelam Sanjeeva Reddy [Supra], this Court has dealt with the
question of locus standi of the petitioner (petitioner No.1 herein) who had
filed the Election Petition. In that case also the Election petition was filed
by a person whose nomination was not subscribed by the requisite number of proposers
and seconder as per the provisions contained in Section 5B (1) (a) applicable
at that time. This Court held that the petitioner had no locus standi to
challenge the election and to maintain the petition. After stating that the
petitioner had admitted in the petition that he was not nominated as provided
by Section 5B of the Act and had also not deposited the sum of money as
required by Section 5C of the Act, the Court has held:- "Thus, on the very
admissions in the petition or plaint, the petitioner was not a candidate either
duly nominated or one who could claim to be son nominated." [pp. 5-6] Again
in Charan Lal Sahu & Ors. vs. Giani Zail Singh & Anr., 1984 (2) SCR 6,
it was found that the nomination papers filed of the two petitioners who had
filed the election petition were not subscribed by ten electors as proposers
and ten electors as seconders. It was contended on behalf of the petitioners
that even if it is held that they were not duly nominated as candidates, the
election petitions could not be dismissed on that ground since they were
"claiming to have been duly nominated as candidates".
Rejecting
the said contention this Court said:- "It is true that in the matter of
claim to candidacy, a person who claims to have been duly nominated is on par
with a person who, in fact, was duly nominated. But the claim to have been duly
nominated cannot be made by a person whose nomination paper does not comply
with the mandatory requirement of Section 5B(1) (a) of the Act. That is to say,
a person whose nomination paper, admittedly, was not subscribed by the
requisite number of electors as proposers and seconders cannot claim that he
was duly nominated. Such a claim can only be made by a person whose electors as
proposers and seconders cannot claim that he was duly nominated. Such a claim
can only be made by a person who can show that his nomination paper conformed
to the provisions of Section 5B and yet it was the Returning Officer rejects a
nomination paper on the ground that one of the ten subscribers who had proposed
the nomination is not an elector; the petitioner can claim to have been duly
nominated if he proves that the said proposer was in fact an 'elector'.
"Thus,
the occasion for a person to make a claim that he was duly nominated can arise
only if his nomination paper complies with the statutory requirements which
govern the filing of nomination papers and not otherwise. The claim that he was
'duly' nominated necessarily implies and involves the claim that his nomination
paper conformed to the requirements of the statute.
Therefore,
a contestant whose nomination paper is not subscribed by at least ten electors
as proposers and ten electors as seconders, as nominated, any more than a
contestant who had not subscribed his assent to his own nomination can. The
claim of a contestant that he was duly nominated must arise out of his
compliance with the provisions of the Act. It cannot arise out of the violation
of the act. Otherwise, a person who had not filed any nomination paper at all
but who had only informed the Returning Officer orally that he desired to
contest the election could also contend that he 'claims to have been duly been
duly nominated as a candidate.'" [pp.- 15-16] In Mithilesh Kumar Sinha
etc. vs. Returning Officer for Presidential Election & Ors., 1992 (1) SCR
Supp. 651, the same question arose with regard to the election petition filed
by petitioner No. 2 whose nomination paper had been rejected on the ground that
it was not subscribed by the requisite number of proposers and seconders since
some of the proposers and seconders who had subscribed to the nomination paper
of petitioner No. 2 had earlier subscribed to the nomination paper of another
candidate and the subsequent signatures of such proposers and seconders had
become Inoperative on the nomination paper of petitioner No.2. The Election
petition filed by Petitioner No. 2 was rejected by this Court on the ground
that since the nomination paper of petitioner No.2. did not comply with the
mandatory requirements of Section 5B(1) (a) he had no locus standi to file the
petition. It has been held:- "To be entitled to present an election
petition calling in question an election the petitioner should have been a 'candidate'
at such election within the meaning of Section 13(a) for which he should have
been `duly nominated as a candidate' and this he cannot claim unless the
mandatory requirements of Section 5B (1) (a) and Section 5C were complied with
by him. Where on undisputed facts there was non- compliance of any of these
mandatory requirements for a valid nomination, the petitioner was not a
'candidate' within the meaning of Section 13(a) and, therefore, not competent
according to Section 14A to present the petition." "It is also
settled by the decisions of this Court that in order to have the requisite
locus standi as a 'candidate' within the meaning of section 13(a) for being
entitled to present such an election petition in accordance with Section 14A of
the Act the petitioner must be duly nominated as a candidate in accordance with
Section 5B(1)(a) and Section 5C.
Unless
it is so the petitioner cannot even claim to have been duly nominated as a
candidate at the election as required by Section 13(a). [pp. 685-686] In view
of the decisions referred to above, it must be held that neither of the
petitioners was a `candidate' as the said expression is defined in Section 2(d)
of the Act since neither of them had been duly nominated nor could he claim to
have been nominated as a candidate inasmuch as the nomination papers filed by
both of them did not comply with the mandatory requirements of Section 5B(1)(a)
of the Act and nomination paper of petitioner No.2. was filed without complying
with the requirements of Section 5B(2) of the Act.
On
that view it must be held that neither of the petitioners has the locus standi
to maintain the petition.
As
regards the submission urged on behalf of the petitioners regarding the
Validity of the provisions of Sections 5B and 5C as they stood prior to June 5,
1997, it may be stated that the sad provisions has been upheld by this Court in
Charan Lal Sahu VS. Shri Fakruddin Ali Ahmed & Ors. AIR 1975 SC 1288; Charan
Lal Sahu vs. Neelam Sanjeeva Reddy [supra] and Charan lal sahu vs. Giani Zail
Singh [supra]. Petitioner No. 1 was a party to all these decisions. The
challenge to the validity of the amendments introduced by the Ordinance and the
Amendment Act has been negatived by this court in the three writ petitions
referred to above, two out of which were filed by petitioner No.1.
The
petitioners have urged that in this petition the challenge to the validity of
Section 5B is based on the ground that it violates the principle of secrecy of
ballot incorporated in Article 55(3) of the Constitution and that this ground
has not been considered in the earlier decisions. We do not find any merit in
this contention. The requirement in Section 5B(1)(a) about the nomination paper
being subscribed by a particular number of electors as proposers and seconders
does not, in any way, involve the infringement of the secrecy of ballot at the
election inasmuch as the elector who has subscribed the nomination paper of a
person as a proposer or as a seconder is free to cast his vote in favour of any
candidate and is not bound to vote for the person whose nomination paper he has
subscribed as a proposer or seconder. The identity of the candidate in whose favour
he has cast his vote is not to be disclosed.
In
order to get over the requirements of Section 5B(1)(a) of the Act petitioner
No.1 has submitted that his nomination paper was subscribed by seven members of
the Legislative Assembly of Uttar Pradesh as proposers and six members of the
said Assembly as seconders. It has been pointed out that as per the statement
of value of votes of elected members of the State Legislative Assemblies issued
as per the provisions of Article 55(2) of the Constitution value of vote of a
member of the Legislative Assembly of Uttar Pradesh is 208 while the value of a
member of the Legislative Assembly of Arunachal Pradesh is 8. The submission is
that the combined value of the votes of the seven members of the Legislative
Assembly of Uttar Pradesh who had subscribed the nomination paper of petitioner
No. 1 as proposers and six members who had subscribed as seconders is much more
than the value of votes of 50 members of the Legislative Assembly of Arunachal
Pradesh and, therefore, the nomination paper of petition No. 1 must be treated
as having been subscribed by 50 electors as proposers and seconders. Under
Section 5B(1) (a) what is required is that the nomination paper must be
subscribed by 50 electors as proposers and by 50 electors as subscribers. In
relation to Presidential election the expression "elector" is defined
in Section 2(d) of the Act to mean a member of the electoral college referred
to in Article 54. Under Article 54 every elected member of the Legislative
Assembly of the State is a member of the electoral college for election of the
President. In other words, each member of the Legislative Assembly of a State
is an elector under Section 2(d) of the Act to mean a member of the electoral
college referred to in Article 54. Under Article 54 every elected member of the
Legislative Assembly of the State is a member of the electoral college for
election of the President. In other words, each member of the Legislative
Assembly of a State is an elector under Section 2(d) of the Act. For the
purpose of Section 5B(1) (a) of the Act the nomination paper must be subscribed
by the requisite number of members of the State Legislative Assemblies or
parliament as proposers and seconders and the value of the votes of the member
has no bearing on the said requirement laid down in Section 5B(1)(a) of the
Act.
For
the reasons aforementioned, it must be held that since the nomination papers of
the petitioners did not fulfil the mandatory requirements of Section 5B(1) (a)
of the Act and Petitioner No. 2 also failed to comply with the requirements of
Section 5B(2) of the Act, the petitioners were not duly nominated as candidate
at the election and they cannot also claim to be duly nominated as candidate at
the election and they cannot also claim to be duly nominated as candidate at
the election and they cannot also claim to be duly nominated as candidate at
the election and they cannot also claim to be duly nominated as candidate at
the election and they cannot be regard as "candidate" under Section
13(a) of the Act. The preliminary objection raised by respondent No. 1 that the
petitioners cannot maintain the election petition must, therefore, be accepted
and the election petition must be dismissed on this ground alone.
Before
we conclude, we would like to advert to an aspect which cannot be ignored.
Before filling this election petition, petitioner no. 1 had earlier filed three
election petition challenging the election of the returned candidates in the
presidential elections held in years 1974, 1977 and 1982. All these election
petition were dismissed on the ground that petitioner had no locus standi to maintain
the election petition. [See: Charan Lal Sahu vs. Shri Fakruddin Ali Ahmed &
Ors. [supra]; Charan Lal Sahu vs. Shri Neelam Sanjeeva Reddy; and Charan Lal Sahu
vs. Gaini Zail Singh [supra]. Similarly petitioner No.2 had earlier filed two
election petitions challenging the election of the returned candidates in the
presidential elections challenging the election of the returned candidates in
the presidential elections held in the years 1987 and 1992. Both these election
petitions were dismissed on the ground that petitioner had no locus standi to
maintain the Election petition. [See : Mithilesh Kumar vs. Sri R. Venkataraman
& Ors. (1988) 1 SCR 525 and Mithilesh Kumar Sinha vs Returning Officer for
Presidential Election (supra)]. In Charan Lal Sahu vs. Giani Zail Singh {Supra]
this Court, while referring to the Election petition fled by petitioner No.1. had
observed:
"
It is regrettable that election petition challenging the election to the high
office of the president of India should be filed in a fashion as cavalier as
the one which characterises these two petitions. The petitions have an
extempore appearance and not even a second look, leave alone a second thought
appears to have given to the manner of drafting these petitions or to the
contentions raised therein. In order to discourage the filing of such
petitions, we would have been justified in passing a heavy order of costs
against the two petitions, we would have been justified in passing a heavy
order of costs against the two petitioners. But that is likely to create a
needless misconception that this Court, which has been constituted by the Act
as the exclusive forum for deciding election petition whereby a presidential or
vice-presidential election is challenged, is loathe to entertain such petitions.
It is of the essence of the functioning of a democracy that election to public
offices must be open to the scrutiny of an independent tribunal. A heavy order
of costs in these two petitions, howsoever justified on their own facts should
not result in nipping in the bud a well-founded claim on a future occasion.
Therefore, we refrain from passing any order of costs and , instead, express
our disapproval of the light-hearted and indifferent manner in which these two
petitions are drafted and filed."[1.7] In Mithilesh Kumar vs. Sri R. Venkataraman
& Ors.
[supra],
this Court had observed:
"While
we expect every conscientious citizen eligible to file an election petition to
question an election on the grounds prescribed by the Act, we do not wish that
any petitioner should make use of this Court as a forum to file a petition
without giving adequate thought to its contents and also the provisions of law
governing the case merely to seek some chap publicity. We regret to say that
seeing one's name in newspapers everyday has lately become the worst intoxicant
and the number of people who have become victims of it is increasing day by
day." [.537] In Mithilesh Kumar Sinha. vs. Returning Officer for
presidential Election it was observed by this Court as follows:
"..........
Experience has shown that the solemnity and significance attaching to such
petitions has been reduced to a farce by the cavalier fashion in which resort
is had to this remedy. The mere fact that the entire gamut of both these
petitions is fully covered by several earlier decisions of this Court to some
of which these very petitioners were parties shows that the existing provisions
are inadequate to prevent such abuse of the process of law." [p.698] We
find that these observations have had no effect.
This
election petition which has been jointly filed by the two petitioners shows no
improvement. It suffers from the same defects as the earlier petitions filed by
the petitioners. It seems that the petitioners are obsessed with a desire that
they should find a place in some Book of Records. They find the temptation to
file an election petition after the presidential election too difficult to
resist. It is a matter of regret the petitioner No.1, who happens to be an
advocate himself, has been persisting in this past time knowing well that such
conduct on his part amounts to an abuse of the process of law. This Court has
so far refrained from imposing costs in the election petitions that were filed
by the petitioners earlier. It is high time that the petitioners who have
persisted in filling this petition in spite of the law laid down
authoritatively by this Court in the earlier decisions are saddled with costs.
The
Election petition is accordingly dismissed with costs. The costs are quantified
at R. 10,000/- [Rupees ten thousand only]. The said amount of costs shall be
deposited with the Supreme Court Legal Services Committee. It is also directed
that no petition filed by either of the petitioners in person shall be
entertained in this Court till the amount of costs imposed in paid .
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