Dismissed

N.Kanagasabai, v. The Secretary

Madras HC8 Apr 2019WP/10623/2019

Case brief

AI extract

What is this about?

The petitioner challenged the default requirement for independents to submit proposals of ten electors compared to one for recognised parties under Section 33 of RPA, 1951. The bench noted that the Supreme Court in Krishna Mohini found no arbitrariness in this provision and dismissed the writ petition.

What did the court decide?

Writ petition for declaration of constitutional invalidity of the proviso to Section 33 is dismissed.

N.Kanagasabai, Vs The Secretary — Election Law | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 08.04.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND

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THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD

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W.P.No.10623 of 2019

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W.M.P.No.11102 of 2019

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N.Kanagasabai .. Petitioner
Vs.
1. The Secretary
Ministry of Law 86 Justice
Union of India
Ne Delhi.

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The District Election Officer No.28, Mayiladuthurai Parliamentary Constituency (Returning Officer-cum-Collector Nagapattinam) Nagapattinam.

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.. Respondents

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Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Declaration, declaring Proviso to Section 33 of the Representation of the People Act 1951 (43 of 1951) as amended in 2014 as illegal, ultra vires and unconstitutional, since it violates Art. 14 of the Constitution of India.

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Petitioner : Mr.G.Vasudevan

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For 2^nd Respondent : Mr.Niranjan Rajagopal,

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Government Advocate

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(Order of this Court was made by S.MANIKUMAR, J.)

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Instant writ petition has been filed for a Declaration, declaring Proviso to Section 33 of the Representation of the People Act 1951 (43 of 1951) as amended in 2014 as illegal, ultra vires and unconstitutional, since it violates Article 14 of the Constitution of India.

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It is the case of the petitioner that he obtained a nomination form issued by the District Election Officer, 28

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Mayiladuthurai Parliamentary Constituency, Nagapattinam, 2nd Respondent herein and submitted the same on 25.03.2019. Nomination form issued by the election commission contains some of the rules framed under the Representation of the People Act, 1951, are arbitrary, discriminatory and illegal. Contents in the form issued by the 2nd Respondent are arbitrary, because it requires only one proposer for nomination for a candidate, sponsored by a political party. Whereas, it requires 10 proposers for an independent candidate.

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According to the petitioner, all the candidates should be treated equally under Article 14 of the Constitution of India and that there should be equality before law. Therefore, the requirement of Proposer should be equal for all the candidates who wanted to contest the election. While his nomination was taken for scrutiny, since he is an Independent Candidate and he was proposed 9 Voters of constituency, his nomination was rejected by the 2nd Respondent on 27.03.2019. When he approached the 2nd Respondent to give him the rejection order of his nomination at 10.00 ‘o’ clock on 29.03.2019, the Officials drove him from one officer to another officer till 6.00 ‘o’ Clock in the evening and finally the 2nd Respondent refused to give the rejection order to him. Thus, he was put to serious hardship and inconvenience in view of the arbitrary and improper rejection order of the 2nd Respondent. In the circumstances, he filed the present writ petition, on the following grounds:

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(i) The Nomenclature of the Form itself is illegal. It is only an application. But it is not a nomination form.

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(ii) The requirement of number of proposers for a nomination between a politically sponsored person and independent is arbitrary and illegal, because the deposit and other formalities required by the election commission for the candidate who wants to contest is the same.

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(iii) Candidate as defined by Section 79(b) of Representation of People Act is as follows: “A Person who has been nominated or claims to have duly nominated as a Candidate at any election. Hence, the nomination form issued by the election commission is merely an application and it is not a nomination form at all as defined in Representation of peoples Act.”

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The petitioner has further submitted that “the Presentation of Nomination Paper and requirements for a valid nomination” 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

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and three O’ clock in the after noon 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 recognized 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.

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The petitioner has further submitted that the nomination filed by 9 proposers, is more than the proposers required for a candidate set up by a recognised political party. He should be treated on par with politically sponsored candidate. Therefore, Section 33 of Representation of People Act is arbitrary, illegal and ultravires of Article 14 of the Constitution of India and to be declared as illegal.

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Heard the learned counsel for the parties and perused the materials available on record.

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The effect of Amendment in the Representation of the Peoples Act, 1951, has been dealt with in Krishna Mohini v. Mohinder Nath Sofat reported in 2000 (1) SCC 145. It is worthwhile to extract the relevant paragraphs from Krishna Mohini's case (cited supra),

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"23. The provisions of Sections 33 and 36 of the Act insofar as relevant for our purpose, are extracted and reproduced hereinunder :-

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"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 a elector of the constituency as proposer, [Provided that a candidate not setup 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;

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Provided further that no nomination paper shall be delivered to the returning office on a day which is a public holiday;

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Provided also that in the case of a local authorities' constituency, graduates' constituency or

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teachers' constitutency, 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."

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xxx xxx xxx

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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.

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(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 :-

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(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-

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Articles 84, 102, 173 and 191. Part II of this Act [and sections 4 and 14 of the Government of Union Territories Act, 1963.]; or

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(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or

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(3)............(not reproduced) (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." 24. The first and third provisos to sub-section (1) of Section 33 have been added by the Representation of the People (Amendment) Act, 1996 [Act 21 of 96] w.e.f. 1.8.1996. Prior to this, there was only one proviso which is now the second proviso in the present form.

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In exercise of the powers conferred by Article 324 of the Constitution read with Section 29A of the Representation of the People Act, 1951 and Rules 5 and 10 of the Conduct of Elections Rules, 1961 and all other powers enabling it in this behalf, the

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Election Commission of India has issued the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the "Symbols Order", for short). This order provides for allotment of symbols to the contesting candidates, for classification of symbols into reserved symbol-reserved for exclusive allotment to contesting candidates set up by a recognised political party, and free symbol -which is a symbol other than a reserved symbol. Para 6 classifies political parties into recognised and unrecognised political parties. To be a recognised political party in a State, a political party must satisfy the conditions specified in clause (A) or clause (B) of sub-para (2) of Para 6 of the Symbols Order. A recognised political party may be a National party or a State party. A candidate set up by a recognised party in an election contest can choose only a symbol reserved for that political party. Candidates set up by political parties other than recognised ones and independent candidates are entitled to free symbols. A candidate other than a candidate set up by a recognised National or State Party in that State or a candidate set up by a State party at elections in other State, has to choose and to be allotted a free symbol. A free symbol chosen by only one candidate must be allotted to him and to no one else. Where the same free symbol has been chosen by several candidates at such election the manner how the symbol shall be allotted as amongst those several candidates is laid down in sub-para 3 of para 12 of the Symbols Order.

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Para 13 of the Symbols Order [as substituted by O.N. 2G3-E dt. 5.8.1996, and effective at the relevant time] provides as under :-

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"13. When a candidate shall be deemed to be set up by a political party.- For the purposes of this Order, a candidate shall be deemed to be set up by a political party if, and only if,-

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(a) the candidate has made a declaration to that effect in his nomination paper;

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(b) a notice in writing to that effect has, not later than 3 p.m. on last, date for making nominations, been delivered to the Returning Officer of the constituency and the Chief Electoral Officer of the State;

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(c) the said notice is signed by the President, the Secretary or any other office bearer of the party and the President, the Secretary or such other officer bearer is authorised by the party to sent such notice; and

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(d) the name and specimen signature of such authorised person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the State not later than 3.00 p.m. on the last date for making nominations."

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For the purpose of Symbols Order, as defined in clause (h) of Para 2, "Political Party" means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951. The scheme of the Symbols Order shows that it does not deal with unregistered political parties. It deals with registered political parties by subdividing them into recognised and unrecognised political parties and with independent candidates. To be entitled to the benefit of allotment of symbols reserved to a recognised political party, the candidate has to be one set up by a recognised political party arid in a manner prescribed by Para 13 of the Symbols Order. The privilege enjoyed by a candidate set up by a recognised political party, as spelt out by a combined reading of Section 33 of the Act with the provisions of Symbols Order, is that his nomination paper is complete, inter alia, if proposed by an elector, (i.e., one only) of the Constituency. If the candidate be one not set up by a recognised political party, i.e., if he be a candidate set up by an unrecognised political party or be an independent candidate, his nomination paper must be subscribed by ten proposers being electors of the Constituency. Nomination paper filed by a candidate set up by an unrecognised political party or an independent candidate, cannot be proposed by a single elector of the Constituency or by electors less than ten.

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Prior to the amendment in the body of the Act introduced by Act No, 21 of 1996, which inserted, inter alia, the first proviso to sub-section (1) of Section 33 of the Act, the expression "recognised political party" was not to be found used in the Act. The Representation of the People (Amendment) Act, 1989 (Act No. 1 of 1989) introduced, w.e.f. 15.6.1989, Section 29A as also clause (f) in subsection (1) of Section 2 of the Act. Section 2(l) (f) defines "political party" to mean an association or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A. The latter provision lays down the manner of such registration. Symbols Order, 1968 divides `registered political parties' into recognised and unrecognised ones. For the purpose of Symbols

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Order as defined by Para 2(1 )(h) thereof, `political party' is a political party registered with the Commission under Section 29A of the Act. The Act does not define recognised political party. The expression "recognised political party" as occurring in first proviso to sub-section (1) of Section 33 of the Act must be assigned the same meaning as assigned to it by the Symbols Order.

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......... 31. The historical background and the Objects and Reasons leading to the issuance of the Symbols Order have been traced and set out by this Court in Sadiq AH and Anr. v. The Election Commission of India, New Delhi and Ors., (1972) 4 SCC 664 vide paras 20 and 21, This Court has observed :-

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"20. Perusal of the different paragraphs of the Symbols Order makes it manifest that they provide, as is made clear by its preamble, for specification, reservation, choice and allotment of symbols at elections in Parliamentary and assembly constituencies as well as for the recognition of political parties in relation thereto and for matters connected therewith. One such matter is the decision of a dispute when two rival sections or groups of a recognised political party claim to be that party for the purpose of the Symbols Order.........

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21..............It may be pertinent to find out the reasons which led to the introduction of symbols. It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the

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electorate associated the political party at the time of elections with its symbol........."

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Though Rule 4 of the Conduct of Elections Rules requires every nomination paper presented under sub-section (1) of Section 33 to be complete in such one of the Form 2-A to 2-E as may be appropriate and, therefore, the blank space meant for showing three symbols in order of preference as symbols of the candidate's choice, has to be filled in, however, nonfilling of the space as to choice of symbol is not a defect of substantial character. Such deficiency in the nomination paper is saved by the proviso to Rule 4 of the Conduct of Elections Rules, 1961 which provides that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of Section 36, Choosing a wrong symbol, leaving blank the space meant for filling the choice of symbols and an error in describing the symbol-are all defects not of substantial character. An independent candidate may mention as his preference the symbol reserved for a recognised political party, but that again will not be a defect of substantial character. Dealing with such cases, this Court has held in K.S. Abdul Azeez v. Ramanathan Chettiar and Ors., AIR (1967) SC 85, that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled (on this ground) during the interval.

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In N.T. Veluswami Thevar v. Raja Nainar and Ors,, AIR (1959) SC 422, this Court has held that there can be no rejection of nomination paper outside sub-section (2) of Section 36, Under S. 32 of the Act, any person may be nominated as a candidate for election if he is duly qualified under the provisions of the Constitution and the Act-Section 36 (2) authorises the returning officer to reject any nomination paper on the ground that he either is not qualified or is disqualified for being chosen under the provisions referred to therein. If there are no grounds for rejecting a nomination paper under S, 36 (2), then it has to be accepted, and the name of the candidate is to be included in a list of validly nominated candidates vide Sec. 36(8). ".,.,..............the improper rejection or acceptance must have reference to S. 36(2), and the rejection of a nomination paper of a candidate who is qualified to be chosen' for election and who does not

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suffer from any of the disqualifications mentioned in S. 36(2) would be improper within S. 100(l)(c)."

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The distinction between nomination filed by a candidate set up by a recognised political party and a candidate not set up by a recognised political party is precise. A perusal of first proviso to sub-section (1) of Section 33 of the Act makes it clear that a candidate not set up by a recognised political party, meaning thereby a candidate set up by an unrecognised political party or an independent candidate, in order to be duly nominated for election must have his nomination paper subscribed by ten proposers being electors of the Constituency. If such nomination paper be subscribed by only one elector as proposer or by a number of electors less then ten, then it will amount to non-compliance with the provisions of Section 33. A candidate, who is merely a substitute or a cover candidate set up by a recognised political party, may file his nomination paper proposed by only one elector of the Constituency. If the nomination paper of the approved candidate of that political party is accepted, the nomination paper filed by the substitute or cover candidate, shall be liable to be rejected because there can be only one candidate set up by a recognised political party. In order to be a candidate set up by a registered and recognised political party so as to take advantage of being proposed by a single elector, all the four requirements set out in clauses (a), (b), (c) and (d) of Para 13 of the Symbols Order must be satisfied. If any one or more of the requirements are not satisfied, the benefit of nomination being proposed by a single elector is not available to him. A situation can be visualised where more candidates than one may be aspiring to be the candidates each set up by the same recognised political party. The one in respect of whom notice and communication in forms A and B referable to sub-para (b), (c) and (d) of Para 13 of Symbols Order have been filed not later than 3.00 p.m. on the last date for making nominations shall be treated as a candidate set up by such political party. His nomination paper, even if subscribed to by single elector as proposer, shall be valid subject to satisfying other conditions as to validity. If any of the requirements contemplated by sub-para (b), (c) and (d) of Para 13 of the Symbols Order are not complied with by filing the requisite notice and communication, then the candidate shall not be deemed to be one set up by the recognised political party. His nomination, if subscribed by a single elector or electors less than ten, shall be liable to

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be rejected. If the nomination paper of such a candidate is subscribed to by ten proposers being electors of the Constituency within the meaning of first proviso to sub-section (1) of Section 33 of the Act, then the nomination paper cannot be rejected because an error or omission as regards symbol or choice thereof being a defect not of a substantial character, would not come in the way of the nomination being accepted. The nomination paper shall be accepted as valid and an appropriate symbol to which the candidate may be entitled in accordance with the Symbols Order shall be allotted by the Election Commission.

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............. 36. A candidate may be aspiring for being set up by a recognised political party. He can pin his hopes for being sponsored by such political party upto the hour by which the time for filing the nomination papers expires. If he fails to obtain such sponsorship by the recognised political party in accordance with the provisions contained in Para 13 of the Symbols Order, then he has the choice of continuing his candidature as an independent candidate subject to his satisfying the requirement of having been proposed by ten electors of the Constituency and other requirements as to the validity of a nomination paper. If he does not withdraw his candidature, then he would be a candidate validly nominated. Such a candidate who has not been able to secure sponsorship by a recognised political party at the time of filing his nomination papers but is still hopeful of securing such sponsorship, has the choice of filing nomination papers more than one. In one of the nomination papers subscribed by one elector of the Constituency he may declare himself to have been set up by a recognised political party. He may file yet another nomination paper declaring his candidature as an independent subscribed by ten electors of the Constituency as proposers. A single nomination paper though containing a declaration by the candidate of his having been set up by a recognised political party, may itself be subscribed by ten electors of the Constituency as proposers. In either case, his nomination would be valid insofar as the aspect of proposing is concerned.

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Consequent upon amendments having been made in the Representation of the People Act, 1950 and 1951 by the Amendment Act, 1996 (Act No. 21 of 1996) w.e.f. 1.8.96, the Election Commission of India issued a Circular dated 9.8.96 for the guidance of the Chief Electoral Officers of all the States and the Union

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Territories. Paragraphs 7,14 and 15 thereof are relevant for our purpose, which are extracted and reproduced hereunder :-

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"7. Under the amended section 33 of the Representation of the People Act, 1951, the nomination of a candidate at the election to the House of the People or a State Legislative Assembly shall be required to be subscribed by-

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(i) One elector of the constituency as proposer, if the candidate has been set up either by a recognised National Party or by a recognised State party in the State or States in which it is recognised as a State party :

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(ii) ten (10) electors of the constituency as proposers, if the candidate has been set up by a registered-unrecognised political party or if he is an independent candidate.

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It may be further noted that having regard to the changed law, the Returning Officer will have to be satisfied at the time of the scrutiny of nominations whether a candidate who claims to have been set up by a recognised National or State party and whose nomination paper is subscribed only by one elector as proposer has in fact been duly set up by such recognised party or not, so as to decide the validity or otherwise of his nomination paper. Therefore, it is essential that the political parties intimate the names of the candidates set up by them to the Returning Officers concerned and Chief Electoral Officer of the State well before the date of scrutiny of nominations. Accordingly, the Commission has decided that all political parties must hereafter give the formal intimation in regard to the candidates set up by them to the aforesaid authorities NOT LATER THAN 3.00 P.M. ON THE LAST DATE FOR MAKING NOMINATIONS IN FORMS A' AND B' prescribed for the purpose by the Commission under para 13 of the Election Symbols (Reservation and Allotment) Order, 1968. The said para 13 of the Symbols Order has also been amended by the Commission accordingly."

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A clear distinction has been found by the Hon'ble Supreme Court in Krishna Mohini's case (cited supra), as to the nomination of a candidate set up by a recognised political party and not set up by a political party. Hon'ble Supreme Court has not found any arbitrariness in Section 33 of the Representation of the Peoples Act, 1951. Except submitting that Section 33 of the Act, as arbitrary, the petitioner has not made any other valid ground.

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In the light of the decision in Krishna Mohini's case (cited supra), the instant Writ Petition is dismissed. There shall be no order as to costs. Consequently, the connected writ miscellaneous petition is closed.

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Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
skm
To
1. The Secretary
Ministry of Law 86 Justice
Union of India
Ne Delhi.
2. The District Election Officer
No.28, Mayiladuthurai Parliamentary Constituency
(Returning Officer-cum-Collector Nagapattinam)
Nagapattinam.
+1 cc to Mr.G.Vasudevan, Advocate, S.R.No.34367
+1 cc to the Government Pleader, S.R.No.34335
W.P.No.10623 of 2019
NRL(CO)
SSM(18/06/2019)

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N.Kanagasabai, v. The Secretary

Case brief

What is this about?

What did the court decide?

N.Kanagasabai, v. The Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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