Shaligram
Shrivastava Vs. Naresh Singh Patel [2002] Insc 571 (19 December 2002)
R.C.
Lahoti, Brijesh Kumar & H.K. Sema. Brijesh Kumar, J.
The
defeated candidate in the bye-election held in February, 2000 to the
legislative assembly, Madhya Pradesh from Bhojpur assembly constituency, filed
an election petition in the High Court of Madhya Pradesh challenging the
declaration of the respondent as elected from the aforesaid assembly
constituency. The election petition has been dismissed, hence this appeal.
Briefly,
the facts are that nomination paper of one Bhagwan Singh was rejected at the
time of scrutiny on the ground that he had not filled up the proforma
prescribed by the Election Commission vide letter dated 28.8.97. The said proforma
was required to be filled up to ascertain as to whether the candidate had been
convicted or not for any offence mentioned in Section 8 of the Representation
of People Act, 1951 (for short the 'Act'). Interestingly, the candidate,
namely, Bhagwan Singh had filed an affidavit that information given in the proforma
was correct but the proforma itself was left blank.
He had
though filled the nomination paper on Form 2-B as prescribed under Rule 4 of
the Conduct of Elections Rules, 1961 declaring that the candidate was qualified
and also not disqualified for being chosen to fill the seat. According to the
Election petitioner the nomination paper of Bhagwan Singh could not be rejected
on the ground that he had not filled up the proforma prescribed under the
letter dated 28.8.97, since no such proforma was statutorily provided under the
provisions of the Act nor under the rules framed thereunder. It is contended
that the commission could not legislate to prescribe a proforma;
at
best it can only be an executive instruction of the Election Commission whereas
the petitioner had filled the form prescribed under the Rules which did not
suffer from any defect.
Yet
another ground taken up by the petitioner was that failure to comply with
executive direction of the Election Commission would not entail the consequence
of rejection of the nomination paper much less where it is not provided that
failure to fill up the proforma would result in rejection of the nomination
paper.
The
High Court considering the points raised by the petitioner came to the
conclusion that non-submission of the declaration as required under the
instruction dated 28.8.97 is a defect of substantial character. Hence the
nomination paper was rightly rejected by the Returning Officer. At this
juncture it may also be mentioned that a question seems to have been raised, as
to whether election petition could be entertained, in view of the fact that Bhagwan
Singh, whose nomination paper was rejected neither approached the court nor he
ever raised any objection to the rejection of his nomination paper, but this
point does not seem to have been pursued before the High Court nor this court
was addressed on the said point. We therefore, need not digress on that
question and proceed to consider the matter on merit of the appeal on the grounds
canvassed before us.
Before
entering into the merits of the other points it would be appropriate to deal
with one question raised by the appellant to the effect that the instructions
dated 28.8.97 contained in letter P-1 and the letter dated 6.1.98 have not been
issued by the Election Commission. On the other hand it is submitted that these
letters have been issued by the officers of the Commission, hence Article 324
of the Constitution will not be attracted. This point though argued at length,
holds no water and it is destined to be rejected. Referring to letter dated
28.8.97 it is submitted that it has been issued only by the Director (Law) of
the Election Commission. It is further pointed out that the said letter has
been issued only to operationalise the directive of the Commission. The
Commission had desired that at the time a nomination paper is filed, the
candidate should also fill up the proforma annexed therewith seeking
information with a view to ascertain, at the time of scrutiny, as to whether
his candidature is valid in the light of the provision of Section 8 of the Act
or not. The instructions of the Commission along with copy of the letter of the
Commission dated 28.8.97 were furnished to all Returning Officers and Assistant
Returning Officers for their information, guidance and strict compliance. It
may be pointed out that the letter written by the Director (Law) itself refers
to the instructions issued by the Commission dated 28.8.97 under Article 324 of
the Constitution. It has not been anybody's case that letter dated 28.8.97
issued by the Director (Law) is the instruction issued by the Election
Commission under Article 324 of the Constitution. The letter of the Director
(Law) only indicates the gist of the instructions of the Commission issued on
the same date. The appellant has chosen not to file the instructions issued by
the Election Commission dated 28.8.97 under Article 324 of the Constitution. It
may further be indicated that the main document is the proforma which is
required to be filled up by the candidate as per instructions of the Election
Commission, seeking information which was considered necessary at the time of
scrutiny of the nomination paper. The letter dated January 6, 1998 issued by the Secretary of the Election Commission clearly
indicates in para 2 that revised proforma was issued along with letter of the
Commission dated 28.8.97. Therefore there is no substance whatsoever in the
submission made on behalf of the appellant, with some vehemence too, that the proforma
as well as the instructions were issued by the officers of the Election
Commission and not by the Commission itself. Apart from what has been indicated
above it may also be noticed that such a ground was never canvassed before the
High Court nor it has been taken in the special leave petition; rather it has
been mentioned at all the places that the instructions and proforma were issued
by the Election commission. It is only on the basis of oral submission that
such a point was tried to be made out.
For
the above reasons we repel this contention of the appellant.
We
thus feel that mainly two aspects of the matter require our consideration, the
first being the status of the instruction issued by the Election Commission and
its binding nature by virtue of Article 324 of the Constitution and the next
point as to the nature and scope of inquiry as well as the power of the
Returning Officer under Section 36 (2) of the Act at the time of scrutiny. That
is to say suppose it is held that the instructions and the proforma issued by
the Commission does not have the force of instructions issued under Article 324
of the Constitution on the ground that the field is already covered by
legislation as canvassed or on any other ground whatsoever, could the Returning
Officer still in exercise of its power under Section 36(2) of the Act, seek
necessary information and reject the nomination paper or not. We propose to
deal with the second point first. It will be appropriate to peruse the relevant
provisions contained under Sections 30, 33, 34 and 36 of the Act. They read as
follows:- "30. Appointment of dates for nominations, etc.- As soon as the
notification calling upon a constituency to elect a member or members is
issued, the Election Commission shall, by notification in the Official Gazette,
appoint –
(a)
the last date for making nominations, which shall be the [seventh day] after
the date of publication of the first mentioned notification or, if that day is
a public holiday, the next succeeding day which is not a public holiday;
(b)
the date for the scrutiny of nominations, which shall be [the day immediately
following] the last date for making nominations or, if that day is public
holiday, the next succeeding day which is not a public holiday;
(c) the
last date for the withdrawal of candidatures, which shall be [the second day]
after the date for the scrutiny of nominations or, if that day is a public
holiday, the next succeeding day which is not a public holiday;
(d)
the date or dates on which a poll shall, if necessary, be taken which or the
first of which shall be a date not earlier than the [fourteenth day] after the
last date for the withdrawal of candidatures; and
(e) the
date before which the election shall be completed.
Xxx xxx
xxx
33.
Presentation of nomination paper and requirements for a valid nomination - (1)
On or before the date appointed under clause (a) of section 30 each candidate
shall, either in person or by his proposer, between the hours of eleven O'clock
in the forenoon and three O'clock in the afternoon deliver to the returning
officer at the place specified in this behalf in the notice issued under
section 31 a nomination paper completed in the prescribed form and signed by
the candidate and by an elector of the constituency as proposer :
[Provided
that a candidate not set up by a recognised political party, shall not be
deemed to be duly nominated for election from a constituency unless the
nomination paper is subscribed by ten proposers being electors of the
constituency.
Provided
further that no nomination paper shall be delivered to the returning officer on
a day which is a public holiday.
Provided
also that in the case a local authorities' constituency, graduates'
constituency or teachers' constituency, the reference to "an elector of
the constituency as proposer" shall be construed as a reference to ten per
cent of the electors of the constituency or ten such electors, whichever is
less, as proposers.]
(1A) .
. . . . . . . . .
(2) .
. . . . . . . .
(3) .
. . . . . . . .
(4) On
the presentation of a nomination paper, the returning officer shall satisfy
himself that the names and electoral roll numbers of the candidate and his proposer
as entered in the nomination paper are the same as those entered in the
electoral rolls:
[Provided
that no misnomer or inaccurate description or clerical, technical or printing
error in regard to the name of the candidate or his proposer or any other
person, or in regard to any place, mentioned in the electoral roll or the
nomination paper and no clerical, technical or printing error in regard to the
electoral roll numbers of any such person in the electoral roll or the
nomination paper, shall affect the full operation of the electoral roll or the
nomination paper with respect to such person or place is such as to be commonly
understood; and the returning officer shall permit any such misnomer or
inaccurate description or clerical, technical or printing error to be corrected
and where necessary, direct that any such misnomer, inaccurate description,
clerical, technical or printing error in the electoral roll or in the
nomination paper shall be overlooked.] (5) . . . . . . . .
(6). .
. . . . .
[(7).
. . . . . .
34. Deposits:[(1)A
candidate shall not be deemed to be duly nominated for election from a
constituency unless he deposits or causes to be deposited,- (a) . . . . . .
(b) .
. . . . .
(2) .
. . . . . .
Xxx xxx
xxx
36.
Scrutiny of nominations.- (1)On the date fixed for the scrutiny of nominations
under section 30, the candidates, their election agents, one proposer of each
candidate, and one other person duly authorised in writing by each candidate
but no other person, may attend at such time and place as the returning officer
may appoint; and the returning officer shall give them all reasonable
facilities for examining the nomination papers of all candidates which have
been delivered within the time and in the manner laid down in section 33.
(2)
The returning officer shall then examine the nomination papers and shall decide
all objections which may be made to any nomination and may, either on such
objection or on his own motion, after such summary inquiry, if any, as he
thinks necessary, [reject] any nomination on any of the following grounds :-
[(a) [that on the date fixed for the scrutiny of nominations the candidate]
either is not qualified or is disqualified for being chosen to fill the seat
under any of the following provisions that may be applicable, namely :-
Articles 84, 102, 173 and 191, [Part II of this Act and sections 4 and 14 of
the Government of Union Territories Act, 1963 (2) of 1963)]; or (b)that there
has been a failure to comply with any of the provisions of section 33 or
section 34; or (c) that the signature of the candidate or the proposer on the
nomination paper is not genuine.] (3) Nothing contained in [clause (b) or
clause (c) of sub-section (2) shall be deemed to authorise the [rejection] of
the nomination of any candidate on the ground of any irregularity in respect of
a nomination paper, if the candidate has been duly nominated by means of
another nomination paper in respect of which no irregularities has been
committed.
(4)
The returning officer shall not reject any nomination paper on the ground of
any defect which is not of a substantial character.
(5)
The returning officer shall hold the scrutiny on the date appointed in this
behalf under clause (b) of section 30 and shall not allow any adjournment of
the proceedings except when such proceedings are interrupted or obstructed by
riot or open violence or by causes beyond his control:
Provided
that I case [an objection is raised by the returning officer or is made by any
other person] the candidate concerned may be allowed time to rebut it not later
than the next day but one following the date fixed for scrutiny, and the
returning officer shall record his decision on the date to which the
proceedings have been adjourned.
(6)
The returning officer shall endorse on each nomination paper his decision
accepting or rejecting the same and, if the nomination paper is rejected, shall
record in writing a brief statement of his reasons for such rejection.
[(7)
For the purposes of this section, a certified copy of an entry in the electoral
roll for the time being in force of a constituency shall be conclusive evidence
of the fact that the person referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to a disqualification
mentioned in section 16 of the Representation of the People Act, 1950 (43 of
1950).
(8)
Immediately after all the nomination papers have been scrutinized and decisions
accepting or rejecting the same have been recorded, the returning officer shall
prepare a list of validly nominated candidates, that is to say, candidates
whose nominations have been found valid, and affix it to his notice board.] To summarise
the legal position as emerging from the above provisions we find that Section
30 of the Act provides for fixing of dates for filing of nomination paper for
election of a member from a Constituency. Section 32 provides that a person may
be nominated as candidate for election to fill a seat who is qualified to be
chosen to fill that seat under the provisions of the Constitution and the Act.
Section 33 relates to presentation of nomination paper and requirements for a
valid nomination. The nomination is to be in the prescribed form signed by the
candidate and by an elector of the Constituency as proposer.
Other
clauses of Section 33 indicate a number of requirements of a valid nomination.
A notice of scrutiny of the nomination paper indicating the date and time for
the purpose is to be issued and affixed in some conspicuous place as provided
under section 35 of the Act. Under Section 36 of the Act, a nomination paper is
scrutinized by the Returning Officer. Sub-section (2) of Section 36 provides
that the Returning Officer on the objections filed to any nomination, or on his
motion may hold a summary enquiry in connection thereof. A nomination can be
rejected on the grounds: (i) the candidate is not qualified or is disqualified
for being chosen to fill the seat under any of the provisions namely, Articles
84, 102,173 and 191 of the Constitution or under Part II of the Act (Section 8
of the Act falls in Part II); (ii) the nomination paper can also be rejected on
failure to comply with provisions of Section 33 or Section 34 of the Act or;
(iii) The signature of the candidate or the proposer on the nomination paper is
not genuine. Sub-section (4) of Section 36 provides that the Returning Officer
shall not reject any nomination paper on the ground of any defect which is not
of substantial character.
The
prescribed form B-2 for filing the nomination contains a declaration that the
candidate is qualified and not disqualified.
No
further facts, details or information is contained in the prescribed form in
relation to his qualification or disqualification.
Section
8 of the Act which falls in Part II, provides for disqualification which a
person may incur on being convicted. It may be noted that every conviction may
not result in disqualification. It depends upon the nature of the offence and
provisions under which the offence is committed, as also the period of sentence
awarded.
At the
time of scrutiny the Returning Officer is entitled to satisfy himself that a
candidate is qualified and not disqualified.
Sub-section
(2) of Section 36 authorises him to hold an enquiry on his own motions, though
summary in nature. The Returning Officer furnished a proforma to the candidates
to be filled on affidavit and filed on or before the date and time fixed for
scrutiny of the nomination paper. Therefore providing a proforma, eliciting
necessary and relevant information in the light of Section 8 of the Act to
enquire as to whether the person is qualified and not disqualified, is an act
or function fully covered under sub-section(2) of Section 36 of the Act. The
Returning Officer is authorized to seek such information to be furnished at the
time or before scrutiny. If the candidate fails to furnish such information and
also absents himself at the time of the scrutiny of the nomination papers, is
obviously avoiding a statutory enquiry being conducted by the Returning Officer
under Sub-section (2) of Section 36 of the Act relating to his being not
qualified or disqualified in the light of Section 8 of the Act . It is bound to
result in defect of a substantial character in the nomination.
The
letter dated 28.8.97 issued by Director (Law) was addressed to the Chief
Electoral Officer of all the States and Union Territories and it drew attention
to the instructions issued by the Election Commission under Article 324 of the
Constitution saying that in view of decisions of some High Courts, the
disqualification of a candidate for election under Section 8 of the Act would
commence from the date of conviction, regardless of the fact whether he is
intending to be a candidate, is on bail or not except where the conviction is
covered under Sub-section 4 of Section 8 of the Act.
To
elicit the relevant information in regard to Section 8, the Commission had
indicated a proforma which was to be handed over to the candidates who were
supposed to fill the same on affidavit. In this context we may peruse Section 8
of the Act which reads as under:- Disqualification on conviction for certain
offences - (1) A person convicted of an offence punishable under –
(a)
section 153A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony) or Section 171 E (offence of bribery) or
section 171 F (offence of undue influence or personation at an election) or
sub- section (1) or sub-section (2) of Section 376 or section 376A or Section
376B or Section 376C or section 376D (offences relating to rape) or section
498A (offence of cruelty towards a woman by husband or relative of a husband)
or sub section (2) or sub section (3) of Section 505 (offence of making
statement creating or promoting enmity, hatred or ill will between classes or
offence relating to such statement in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies) or the
Indian Penal Code (45 of 1860), or
(b) the
Protection of Civil Rights Act, 1955 (22 of 1955 ), which provides for
punishment for the preaching and practice of "untouchability", and for
the enforcement of any disability arising there from; or section 11 (offence of
importing or exporting prohibited goods) or the Customs Act, 1962 (52 of 1962);
or
(d)
sections 10 to 12 (offence of being a member of an association declared
unlawful, offence relating to dealing with funds of an unlawful association or
offence relating to contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the
Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f)
The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) section
3 (offence of committing terrorist acts) or section 4 (offence of committing
disruptive activities) of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987); or
(h) section
7 (offence of contravention of the provisions of Section 3 to 6) of the
Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) section
125 (offence of promoting enmity between classes in connection with the
election) or section 135 (offence of removal of ballot papers from polling
stations) or section 135A (offence of booth capturing) or clause (a) of sub
section (2) of section 136 (offence of Fraudulently defacing or fraudulently
destroying any nomination paper) of this Act;
(j) section
6 (offence of conversion of a place or worship) of the Places of Worship
(special Provisions) Act 1991
(k) section
2 (offence of insulting the Indian National Flag or the Constitution of India)
or section 3 (offence or preventing singing of National Anthem) of the
Prevention of Insults to National Honour Act, 1971 (69 of 1971) shall be
disqualified or a period of six years from the date of such conviction.
(2) A
person convicted for the contravention of –
(a) any
law providing for the prevention of hoarding or profiteering; or
(b) any
law relating to the adulteration of food or drugs; or
(c) any
provisions of the Dowry Prohibition Act, 1961 (28 of 1961); or
(d)
any provisions of the Commission of Sati (Prevention) Act, 1987 (3 of 1988),
and sentenced to imprisonment for not less than six months, shall be
disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
(3) A
person convicted of any offence and sentenced to imprisonment for not less than
two years [ other than any offence referred to in sub-section (1) or sub
section (2) shall be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of six years since his
release] (4) Notwithstanding anything (in sub section (1) sub section2 and sub
section (3) a disqualification under either sub section shall not, in the case
of a person who on the date of the conviction is a member of Parliament or the
Legislature of a State take effect until three months have elapsed from that
date or, if within that period an appeal or application for revision is brought
in respect of the conviction or the sentence, until that appeal or application
is disposed of by the court.
Explanation - In this section –
(a)
"law providing for the prevention of hoarding or profiteering" means
any law, or any order, rule or notification having the force of law, providing
for –
(i) the
regulation of production or manufacture of any essential commodity;
(ii) the
control of price at which any essential commodity may be brought or sold;
(iii) the
regulation of acquisition, possession, storage, transport, distribution,
disposal, use or consumption of any essential commodity;
(iv) the
prohibition of the withholding from sale of any essential commodity ordinarily
kept for sale;
(a)
"drug" has the meaning assigned to it in the Drugs and Cosmetics Act,
1940 ( 23 of 1940);
(c)
"essential commodity" has the meaning assigned to it in the Essential
Commodities Act, 1955 (10 of 1955)
(b)
"food" has the meaning assigned to it in the Prevention Food
Adulteration Act, 1954 (37 of 1954).
According
to the petitioner information furnished in the form 2-B prescribed under Rule 4
for the nomination is sufficient, as it contains the declaration of the
candidate that he is qualified and not disqualified to be a candidate for being
chosen from the constituency. In our view the bald declaration that the
candidate is qualified and not disqualified is not at all sufficient to
scrutinize the nomination paper from the angle of Section 8 of the Act. Clause
(a) of sub-section 2 of Section 36 provides for scrutiny of the nomination
paper to see whether he is disqualified for being chosen to fill the seat or
not, amongst others in the light of part II of the Act; as indicated earlier,
Section 8 falls in part II of the Act. Therefore, the declaration in the
nomination paper that the candidate is qualified and not disqualified may only
be a mere basic statement necessary to fill up the nomination paper but it
contains no information or facts relevant for the purposes of scrutinising the
nomination paper in the light of Section 8 of the Act which falls in Part II of
the Act.
For
the purpose of scrutiny further information is necessary. The scrutiny may call
for even suo motu inquiry by the Returning Officer though summary in nature. It
is one of the statutory duties of the Returning Officer to scrutinize the
nomination paper in the light of section 8 of the Act and he is statutorily authorised
to hold a summary inquiry about the qualification and disqualification of a
candidate (See Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796). Such a
power which vests in the Returning Officer is not dependent upon any
instructions issued by the Election Commission, therefore, it is not necessary
to enter into the controversy which is sought to be raised as to whether the
instructions issued by the Election Commission are in exercise of its power
under Article 324 or not.
The
returning Officer is supposed to have the necessary information at the time of
scrutiny of the nomination paper and for that purpose he can very well require
a candidate to furnish information relevant for the purpose of section 8 of the
Act before or on the date of scrutiny. At best it can be said that the Election
Commission by its letter dated 28.8.1997 had brought to the notice of the
Returning Officers certain decisions of different High Courts in regard to
disqualification under Section 8 of the Act. It was further desired that such a
scrutiny be made by the Returning Officers looking to the menace of criminalisation
of the politics. Barring the fact that the instructions apprised the Returning
officers of the position under law in the light of the judgments of the High
Courts, nothing else was provided thereunder which was already not within the
power of the Returning Officer under the statutory provisions rather it was a
part of their duty to scrutinize the nomination papers in the light of Section
8 of the Act which implies that he is authorised to seek necessary information
for the purpose. It can be suo motu as well.
Since
such information is necessary and relevant for the purpose of scrutiny of the
nomination paper under Section 36(2), in the light of Section 8 of the Act, it
can well be furnished on a format provided to the candidate by the Returning
Officer and it becomes his duty to furnish such information so that a Returning
Officer may discharge its statutory duty to scrutinize the nomination paper
effectively, properly and in consonance with the provisions of law.
Here
we would like to point out that the directive of the Commission states
"when a candidate files his nomination paper the Returning Officer or, as
the case may be, the Returning Officer receiving the nomination paper shall
hand over to him the enclosed letter, together with the proforma of affidavit
annexed thereto to ascertain at the time of scrutiny of nomination as to
whether the candidature is valid from the angle of Section 8 of RP Act,
1959", it would be better that for future the directive may find it
feasible to require the Returning Officer to hand over the proforma of
affidavit while issuing the nomination paper itself.
In the
case in hand the candidate had failed to furnish such information as sought on
the proforma given to him and had also failed to be present personally or
through his representative at the time of scrutiny. The statutory duty/power of
Returning Officer for holding proper scrutiny of nomination paper was rendered
nugatory. No scrutiny of the nomination paper could be made under Section 36(2)
of the Act in the light of Section 8 of the Act. It certainly rendered the
nomination paper suffering from defect of substantial character and the
Returning Officer was within his rights in rejecting the same.
The
appeal therefore, lacks merit and it is dismissed with costs.
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