Charan
Lal Sahu Vs. Dr. APJ Abdul Kalam & Ors [2002] Insc 533 (11 December 2002)
Cji.,
V. N. Khare, K. G. Balakrishnan, Ashok Bhan & Arun Kumar. Bhan, J.
WITH SPECIAL
LEAVE PETITION (CIVIL) NO.22385 OF 2002
It is
regrettable that in spite of being cautioned four times by this Court not to
challenge election of the President of India in a cavalier and light hearted
manner, the petitioner, who is an advocate has filed the present election
petition challenging the election of Dr. A.P.J. Abdul Kalam (respondent No.1)
as President of India on the same/similar grounds of challenge which stand
concluded against him in petitioner's own cases by several decisions of this
Court. Our regret is compounded by the fact that petitioner is an advocate. He
does, we presume, know the value of earlier binding precedents declaring the
law by the highest court of the land.
This
judgment shall dispose of Election Petition No.1 of 2002 and Special Leave
Petition No.22385 of 2002. The facts are being stated from the Election Petition
which covers and takes care of the points raised in the special leave petition
as well.
Petitioner
has challenged the election of Respondent No.1 to the office of the President
of India which was held in pursuance to the notification dated 11th June, 2002 published by the Returning Officer Shri
R.C.Tripathi, Secretary General, Rajya Sabha. The said election was conducted
under the provisions of Presidential and Vice- Presidential Elections Act, 1952
(hereinafter referred to as 'the Act'), and the Presidential and
Vice-Presidential Election Rules, 1974 (hereinafter referred to as 'the
Rules').
In all
54 nomination papers were filed within the time prescribed. Respondent No.1 was
nominated by the ruling National Democratic Alliance and its allies and the main
opposition party, i.e, the Indian National Congress(I) and its allies whereas
Captain Lakshmi Sehgal, respondent No.2, was sponsored and nominated by CPI(M)
and its allied parties.
Scrutiny
of the nomination papers in connection with the Presidential Election, 2002 was
conducted on 26th of June, 2002 by the Returning Officer. Nomination papers of
all candidates other than respondent Nos. 1 & 2 were rejected. Nomination
paper of the petitioner was rejected on the ground that the same was not accompanied
by a certified copy of the entry relating to the candidate in the electoral
roll and that the requirements of law were incomplete for want of proposers and
seconders. Petitioner had filed his written objections to the two sets of
nomination papers filed by respondent No.1 which were duly considered and
rejected being without any substance. The poll for the contest between
respondent Nos. 1 & 2 took place on 15th July, 2002. Respondent No.1 was declared
elected as the President of India having received majority of votes. The result
of the said election was declared in extraordinary gazette of India of 18th July, 2002 declaring Dr. A.P.J.Abdul Kalam, respondent No.1, as
elected to the office of the President of India. Respondent No.1 took oath of
the office of the President of India on 25th July, 2002.
On
10th of July, 2002, petitioner filed C.W.P. No.4119 of 2002 under Article
226/227 of the Constitution of India in the High Court of Judicature at New
Delhi challenging the rejection of his nomination paper and the acceptance of
the nomination papers of respondent Nos.1 & 2 herein and the constitutional
validity of various provisions of the Act and the Rules and Section 29A of the
Representation of Peoples Act, 1951 being violative of Articles 14, 21, 38, 54,
71(1)(3), 79, 80(1) and 324 of the Constitution of India. The said writ
petition was dismissed by a Division Bench of the High Court of Delhi by a
detailed order on 12th July, 2002. Special leave petition (Civil) No.22385 of
2002 arises from the said decision of the High Court of Delhi.
The
election petition No.1 of 2002 has been filed seeking a declaration that the
result of the election declaring respondent No.1 as the duly elected President
of India be declared void for illegal rejection of the nomination paper of the
petitioner and the illegal acceptance of the nomination paper of the respondent
No.1. The various provisions of the Act and the Rules being ultra vires the
Constitution of India to which the challenge was laid before the High Court in
the writ petition has been laid in the election petition as well.
Part
II of the Act (Sections 3 to 12) contains provisions relating to the conduct of
Presidential and Vice-Presidential Elections.
Section
3 provides that the Election Commission for the purpose of each election of the
President and Vice-President shall, in consultation with the Central
Government, appoint a Returning Officer having his office in New Delhi and may also appoint one or more
Assistant Returning Officers. Under section 4(1) the Election Commission by
notification is to issue the election programme prescribing the last date for
filing the nominations, the date for scrutiny of nominations, last date for the
withdrawal of candidature and the date on which a poll shall, if necessary,
take place. 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 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 requirement for a valid
nomination. Sub-section 1 of Section 5 requires that nomination papers
completed in the prescribed form must be subscribed by candidate as assenting
to the nomination. In clause (a) of Section 5 (1), as it stood prior to
5.6.1997, prescribed that in case of Presidential Election, the nomination
papers shall also be subscribed by at least ten electors as proposers and at
least ten electors as seconders. Section 5B (2) 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 is registered as an elector. Any nomination paper which is not
accompanied by the certified copy is required to be rejected under section 5B(4).
Section 5C, prior to 5.6.1997, 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 provisions for
scrutiny of nomination papers by the Returning Officer. Ground (c) of section
5E(3) provides for rejection of a nomination paper if it is not subscribed by
the required number of proposers or seconders and ground (e) provides for
rejection of the nomination papers on the ground of failure to comply with any
of the provisions of section 5B or section 5C. Section 8 lays down the
procedure in contested and uncontested elections. Section 9 provides for manner
of voting at the elections and section 10 deals with counting of votes. Section
11 provides for declaration of results on the completion of counting of votes.
By Act
35/97 in clause (a) of section 5B instead of 10 proposers and 10 seconders,
provisions have been made that in the case of election to the office of
President there should be at least 50 electors as proposers and at least 50
electors as seconders. In Section 5C the deposit amount was increased from
Rs.2500/- to Rs. 15,000/-.
Part
III of the Act (Section 13 to 20) contains provisions relating to disputes
regarding elections. Section 13(a) defines "candidate" to mean a
person who has been or claims to have been duly nominated as a candidate at an
election. Section 14(1) provides that no election shall be called in question
except by presenting an election petition to the authority specified in
sub-section 2. This Court has been specified as the authority to try the
election petition. Sub-section 1 of section 14(A) 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. Section 18 prescribes the grounds on which the election of a
returned candidate can be declared to be void. Clause (c) of section 18 with
which we are concerned provides that the election can be declared to be void if
the nomination of a candidate has been wrongly rejected or the nomination of
the successful candidate has been wrongly accepted.
We did
not deem it necessary to issue notice in these petitions as the points raised
in the election petition as well as in the special leave petition already stand
concluded by the previous judgments of this Court.
Section
14 of the Act provides that no election shall be called in question except by
presenting an election petition to the authority specified in sub-section (2).
Sub-section (2) specifies that the Supreme Court of India shall have the
jurisdiction to try an election petition. Sub-section (3) provides that every
election petition shall be presented to such authority in accordance with the
provisions of this Part and of the rules made by the Supreme Court under
Article 145.
Part
VII, Order XXXIX of the rules made by this Court, known as Supreme Court Rules,
1966, contains rules relating to election petition filed under Part III of
Section 14 (3) of the Act. Rule 2 of the Order XXXIX lays down that an
application calling in question an election shall only be by a petition made
and presented in accordance with the provisions of this Order. Rules 34
provides that subject to the provisions of this Order or any special order or
directions of the Court, the procedure in an election petition shall follow, as
nearly as may be, the procedure in proceedings before the Court in the exercise
of its original jurisdiction. Thus the procedure contained in Part III of the
rules of this Court including Order XXIII relating to the institution of suits
by plaints, applies to the proceedings commenced by election petitions after
reading the word "petition" for "plaint".
Rule 6
of these Rules provides that this Court, after the plaint has been presented to
the Registrar and numbered, shall reject the plaint "where it does not
disclose a cause of action", or where "the suit appears from the
statement in the plaint to be barred by any law". Since the points raised
in this petition stand concluded by the previous judgments of this Court we
have not deemed it necessary to issue notice and dispose of the petition at the
preliminary stage. The points which arise for consideration before us are:
(1)
Does the petitioner have a locus standi to maintain his election petition, or
in other words, is he duly nominated candidate in accordance with provisions of
Sections 5B and 5C of the Presidential and Vice Presidential Elections Act?
(2)
Has the petition put a valid challenge to the validity of Sections 5B and 5C of
the Act or any other provisions of the Act and the Rules?
(3) Is
the petition maintainable? Article 54 of the Constitution of India provides
that the President shall be elected by the members of an electoral college
consisting of the elected members of both Houses of Parliament and the elected
members of the Legislative Assemblies of the States. The manner of election of
the President is based on proportional representation by means of a single
transferable vote by secret ballot.
Article
71 lays down as follows:
"71.
Matters relating to, or connected with, the election of a President or
Vice-President.-
(1)
All doubts and disputes arising out of or in connection with the election of a
President or Vice-President shall be inquired into and decided by the Supreme
Court whose decision shall be final.
(2) If
the election of a person as President or Vice-President is declared void by the
Supreme Court, acts done by him in the exercise and performance of the powers
and duties of the office of President or Vice- President, as the case may be,
on or before the date of the decision of the Supreme Court shall not be
invalidated by reason of that declaration.
(3)
Subject to the provisions of this Constitution, Parliament may by law regulate
any matter relating to or connected with the election of a President or
Vice-President.
(4)
The election of a person as President or Vice-President shall not be called in
question on the ground of the existence of any vacancy for whatever reason
among the members of the electoral college electing him."
To
carry out the purpose of Article 71(3) of the Constitution of India the
Presidential and Vice-Presidential Election Act, 1952 was enacted by
Parliament. The grounds on which the election can be questioned as well as the
mode of questioning it were laid down by the Act. Section 14A of the Act
provides 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 in the
case of Presidential election by 20 or more electors joined as petitioners.
Section
13 (a) of the Act defines the 'candidate' to mean a person who has been or
claims to have been duly nominated as a candidate at an election.
The petitioner
admits in his petition that he was not duly nominated as per requirement of the
provisions of Section 5B of the Act which provides that each candidate shall:
"deliver
to the Returning Officer at the placed specified in this behalf in the public notice
issued under Section 5 a nomination paper completed in the prescribed form and
subscribed by the candidate as assenting to the nomination, and
(a) in
the case of Presidential election, also by at least fifty electors as proposers
and at least fifty electors as seconders;
(b) in
the case of Vice-Presidential election, also by at least twenty electors as proposers
and at least twenty electors as seconders:
Provided
that no nomination paper shall be presented to the Returning Officer on a day
which is a public holiday.
xxx xxx
xxxx" Again Section 5C provides that:
"5C.
(1) A candidate shall not be deemed to be duly nominated for election unless he
deposits or causes to be deposited a sum of fifteen thousand rupees;
Provided
that where a candidate has been nominated by more than one nomination paper for
the same election, not more than one deposit shall be required of him under
this sub-section.
xxx xxx
xxx" Nomination paper of the petitioner was rejected on the ground that it
was not proposed and seconded by the requisite numbers of proposers and seconders.
This point was examined exhaustively by this Court in the case of very
petitioner now before us against the former President Neelam Sanjeeva Reddy
reported in Charan Lal that:
"The
result of a careful consideration by us of the provisions mentioned above is
that we think that, the procedure or manner for questioning the Presidential
election having been laid down, the petitioner must come within the four
corners of that procedure in order to have a locus standi to challenge the
Presidential election and to be able to maintain this petition. If he neither
is nor can claim to be a candidate, on assertions made by him in his petition
itself, he would be lacking the right to question the election of Shri Neelam Sanjeeva
Reddy as Presidential of India. The effect of the provision of Sections 14 (1),
14 (2) and 14 (3) and 14A (1) of the Act, read with Order XXXIX, Rules 2 and 5
of the Rules of this Court, is that the petition before us is barred because
the petitioner has not got the required locus srtandi to maintain it."
390, the point raised by the petitioner on the second limb of Section 13 (a) of
the Act defining the candidate to mean; "claims to have been duly
nominated as a candidate" was rejected. Rejecting the said contention this
Court observed:
"The
petitioners, however, contend that even if it is held that they were not duly
nominated as candidates, their petitions cannot be dismissed on that ground
since they "claim to have been duly nominated". 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 requirements of Section 5-B (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 who can show that his nomination paper conformed to the provisions of
Section 5-B and yet it was rejected, that is, wrongly rejected by the Returning
Officer. To illustrate, if 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 required by Section 5-B (1)(a) of the Act,
cannot claim to have been duly 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 nominated as a
candidate".
The
question regarding locus standi was examined for the third time in the election
petition filed by the petitioner in Charan Lal Sahu that:
"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 5 B (1)(a) of the Act and the nomination paper of Petitioner 2 was
filed without complying with the requirements of Section 5 B (2) of the Act. On
that view it must be held that neither of the petitioners has the locus standi
to maintain the petition." In view of the authoritative pronouncements of
this Court the petitioner cannot be regarded as a person who had been nominated
or can claim to have been duly nominated as candidate at the election in question.
His nomination papers were thus rightly rejected by the returning officer and
the petition on his behalf is, therefore, not maintainable.
Question
regarding the constitutional validity of Sections 5B and 5C before its
amendment by Act No. 35 of 1997 which provided that there should be at least
ten electors as proposers and ten electors as seconders was examined in Fakruddin
Ali Ahmed's case (supra) and Neelam Sanjeeva Reddy's case (supra). The validity
of these two sections as they existed then was upheld. The validity of amending
Act No. 35 of 1997 amending Sections 5B and 5C providing for at least fifty
electors as proposers and seconders instead of ten proposers and seconders as
provided prior to the amendment was questioned in K.R. Narayanan case (supra).
The same was rejected and these two provisions were held to be intra vires. It
was held:
"As
regards the submission urged on behalf of the petitioners regarding the
validity of the provisions of Sections 5-B and 5-C as they stood prior to
5-6-1997, it may be stated that the validity of the said provisions has been
upheld by this Court in Charan Lal Sahu V. Fakruddin Ali Ahmed; Charan Lal Sahu
v S. Neelam Sanjeeva Reddy and Charan Lal Sahu V. Giani Zail Singh. Petitioner
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 1. The petitioners
have urged that in this petition the challenge to the validity of Section 5-B
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 5-B (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 be disclosed." The contention on the question
as to whether there was a conflict between Articles 58 and 71 of the
Constitution of India was also rejected in Neelam Sanjeeva Reddy's case (supra)
by observing thus:
"It
is clear to us that Article 58 only provides the qualifications or conditions
for the eligibility of a candidate. It has nothing to do with the nomination of
a candidate which requires ten proposers and ten seconders. We think that in
the case of an election to such a high office as that of the President of
India, it is quite reasonable to lay down the condition that a person who is
allowed to contest the election as a candidate must have at least ten proposers
and ten seconders from amongst hundrends of electors who are legislators. We
think that the subject-matter of Section 5B and 5C is completely covered by the
provisions of Article 71 (1) of the Constitution set out above. We also think
that there is no force in the contention that Sections 5B and 5C of the Act are
in conflict with Article 14 of the Constitution.
The
conditions laid down in Sections 5B and 5C apply to all persons who want to be
candidates at a Presidential election without any discrimination. They prima
facie imposed reasonable conditions to be observed by any person who wants
seriously to contest at a Presidential election. Hence, this provision would be
valid even apart from Article 71(3) of the Constitution." Every
conceivable challenge of these provisions has already been upheld by this Court
in the aforesaid three judgments in the Officer for Presidential Election, 1993
(Supp. (4) SCC 386. We need not examine these points any further in view of the
consistent view of this Court with which we respectfully agree.
Another
contention which just needs to be noticed and rejected is regarding the
validity of the procedure prescribed under the Act and the Rules for holding
the election of the President and Vice-President or its being ultra vires the
Constitution of India. The procedure laid under the Act and the Rules has
already been upheld in the judgments, already referred to.
Objections
to the validity of the nomination paper filed by respondent No.1 which was
rejected by the returning officer are so frivolous that they do not require
attention of this Court. In our opinion, returning officer rightly overruled
the objections filed by the petitioner questioning the validity of the
nomination paper filed by respondent No.1.
Before
we conclude, we would like to advert to an aspect which was specifically
pointed out by this Court in K.R. Narayanan's case (supra) which cannot be
ignored rather needs to be highlighted again.
It was
observed that before filing the said election petition the petitioner had
earlier filed four election petitions challenging the election of the returnned
candidates in the Presidential elections held in the years 1974, 1977, 1982 and
1997. All these election petitions were dismissed on the ground that the
petitioner had no locus standi to maintain the election petition. This Court in
K.R. Narayanan's case (supra) after referring to the observations made in the
earlier judgments that frivolous election petitions on the same very ground
should not be filed, while dismissing the petition, imposed the cost of Rs.
10,000/-. Coming down heavily against the filing of such frivolous election
petitions it was observed:
"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 that Petitioner 1, who happens to be an advocate himself, has
been persisting in his pastime 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 filing this
petition in spite of the law laid down authoritatively by this Court in the
earlier decisions are saddled with costs." It seems that the petitioner,
although an advocate, has not learnt any lesson from the observations made by
this Court in the earlier judgments and that is why we have begun the judgment
with the observation that such a conduct on the part of the petitioner who
happens to be an advocate is regrettable. We hope he does not do so again.
For
the reasons stated above, we do not find any merit either in the election
petition or in the special leave petition against the judgment of the High
Court of Delhi and dismiss them with costs which are assessed on Rs. 25,000/-
in each case. The costs so deposited shall be transferred to the Supreme Court Legal
Services Committee. It is also directed that no petition filed by the
petitioner- in-person shall be entertained in this Court till the amount of
costs imposed is deposited.
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