Dismissed

T. Suresh Babu v. Election Commission of India

Telangana HC15 Apr 2009WP/7721/2009

Case brief

AI extract

What is this about?

The Andhra Pradesh High Court dismissed a writ petition challenging the rejection of a candidate's nomination in an assembly election on maintainability grounds. Relying on Supreme Court precedents, the court held that Article 329(b) bars judicial intervention during election proceedings, as challenges must be resolved via election petitions post-election.

What did the court decide?

The writ petition was dismissed at the stage of admission as it was not maintainable under Article 329(b) of the Constitution.

T. Suresh Babu Vs Election Commission… — Constitutional and Fundamental Rights | Telangana HC (2009)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND NINE

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PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR

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WRIT PETITION NO : 7721 of 2009

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Between:

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T. Suresh Babu S/o. T. Subbaramaiah R/o. 19/4, 138, STV Nagar, Tirupati, Chittoor District.

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..... PETITIONER

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AND

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1 Election Commission of India, Rep. by the Chief Election Commissioner, Nirvasi Sadan, New Delhi. 2 Chief Electoral Officer, State of Andhra Pradesh, Hyderabad. 3 The Returning Officer /DEO, 292-Puthulapattu Legislative Assembly Constituency, Chittoor District.

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.....RESPONDENT(S)

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Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order or direction more particularly in the nature of Writ of Mandamus declaring the action of the 3rd respondent in rejecting nomination of the petitioner solely on the ground that the number of proposers were not matched which is illegal, arbitrary and unreasonable and consequently set aside the order ROC EDT/51/2009, dated 8.4.2009 passed by the 3rd respondent and direct the respondents to accept the nomination of the petitioner as a candidate to the Puthalapattu Assembly Constituency (292) on behalf of Lok Satta Party in the ensuing General Elections to be held on 23.04.2009 and pass

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Counsel for the Petitioner:MR.A.PURUSHOTHAMA REDDY

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Counsel for the Respondent No.: MR.S.NIRANJAN REDDY

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The Court made the following :

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THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.7721 OF 2009

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O R D E R

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The petitioner filed his nomination seeking to contest in the ensuing General Legislative Assembly Elections from 292-Puthalapattu Legislative Assembly Constituency in Chittoor District on behalf of the Lok Satta Political Party. The Returning Officer rejected the petitioner’s nomination vide Proceedings in ROC.EDT/51/2009 dated 08.04.2009 stating to the effect that the nomination was recommended only by four proposers, where as Section-33 of the Representation of the People Act, 1951 [for brevity, ‘the Act of 1951’) required that ten electors of the constituency propose his nomination. The petitioner challenges the rejection of his nomination on the ground that he was not permitted to leave the office of the Returning Officer to rectify the defect in his nomination by bringing additional proposers.

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The learned counsel appearing for the petitioner contended that the rejection of his client’s nomination is also violative of Section 33(3) and (4) of the Act of 1951 which state to the effect that no clerical, technical or printing error with regard to the electoral roll numbers of any person including the proposer in the electoral roll or the nomination paper shall affect the validity of the nomination paper.

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It is relevant to note that the rejection of the nomination in the present case is not based on any discrepancy in the electoral roll number, but on the other hand, it is because of the shortfall in the number of

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proposers as prescribed under Section 33 first proviso of the Act of 1951.

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Be that as it may, the learned counsel representing the respondent raised a preliminary issue with regard to the maintainability of the writ petition, stating that Article 329(b) of the Constitution of India barred this Court from exercising jurisdiction under Article 226 of the Constitution in issues such as are raised in the present writ petition. He relied upon various Judgments in support of his contention.

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Article 329(b) of the Constitution reads as under:

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“329. Bar to interference by courts in electoral matters.–– Notwithstanding anything in this Constitution

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(a) … … …

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(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.”

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The question sought to be raised presently is whether the above constitutional provision posits a bar to exercise of jurisdiction by this Court under Article 226 of the Constitution in matters pertaining to an assembly election and more specifically, in the matter of rejection of a candidate’s nomination.

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The issue is hardly res nova. The law on this subject is well settled. In N.P.PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT AND

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OTHERS^[1] , a six Judge Bench of the Supreme Court dealt with a similar fact situation where the Returning Officer had rejected a candidate’s nomination. The High Court had dismissed the candidate’s application seeking interference in the matter, stating that it had no jurisdiction in the light of the provisions of Article 329(b) of the Constitution. This view was assailed before the Supreme Court. Dealing with the issue, the Supreme

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Court observed that the word “election” has been used in Part-XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. As regards the subject issue, the Supreme Court, taking note of the fact that one of the grounds for challenging an election under Section 100 of the Act of 1951 was the improper rejection of a nomination paper, observed as follows:

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“9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.”

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With regard to the argument that the Act of 1951 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution, the Supreme Court held that such an argument was completely shut out by reading the Act along with Article 329(b) of the Constitution of India, as it would be noticed that the language used in that Article and in Section 80 of the Act of 1951 is almost identical, with this difference only that the article is preceded by the words “Notwithstanding anything in this Constitution”. The Supreme Court observed that these words were quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.

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I n MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS^[2] , a Constitution Bench of the Supreme Court reiterated that Article 329(b) of the Constitution of India is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and it’s Officers carrying forward the process of election to its culmination in the formal declaration of the result. The Court observed that under Article 329(b) the sole remedy for an aggrieved party is an Election Petition and this exclusion of all other remedies includes constitutional remedies like jurisdiction under Article 226 because of the non obstante clause.

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In MANDA JAGANATH v. K.S.RATHNAM AND OTHERS^[3] , the Supreme Court was dealing with the action of a Returning Officer in refusing to recognize a candidate as one set up by a particular party and his consequential refusal to allot him the official symbol of that party. The High Court interfered in the matter in exercise of Article 226 jurisdiction and directed the Returning Officer to treat the candidate as one set up by the party on the ground that the irregularity in the nomination was technical. It was contended before the Supreme Court that the High Court was not justified in entertaining a writ petition after issuance of the election notification because of the specific bar found in Article 329(b) of the Constitution. The Supreme Court pointed out that the view taken in

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PONNUSWAMI’s case had been quoted with approval in the subsequent Judgment in MOHINDER SINGH GILL’s case holding that the non obstante clause in Article 329 pushed out Article 226, where a dispute takes the form of calling in question an election. In this regard, the Supreme Court referred to certain observations in MOHINDER SINGH GILL’s case where the Supreme Court had spoken of situations which would warrant interference in exercise of jurisdiction under Article 226. The justification for such interference was stated to be that in such exceptional cases, the Commissioner would, in effect, be preventing an election and not promoting it and the Court’s review of the action would facilitate the flow and not stop the stream.

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Continuing the above stream of thought, the Supreme Court in MANDA JAGANATH’s case held that only such errors of the Returning Officer which have the effect of interfering in the free flow of the scheduled election or hindered the progress of the election would be amenable to interference under Article 226 and in all other cases, the remedy lies in an election petition only. The observations of the Supreme Court in paragraph 23 of the Judgment throw further light on this aspect. Therein, the Court while dealing with the argument that the omissions found by the Returning Officer in the Form-B (nomination) under Section 36 of the Act of 1951 etc. were all curable irregularities not being defects of substantial nature warranting rejection of the nomination, observed that such arguments based on the provisions of the statute, rules and orders are all arguments which could be addressed in a properly constituted election petition and could not be a ground for setting aside the order of the Returning Officer.

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In K.VENKATACHALAM v. A.SWAMICKAN^[4] , the Supreme Court held that a writ petition was maintainable to set aside an election in spite of the constitutional bar under Article 329(b). It is, however, to be noticed that the fact situation in K.VENKATACHALAM’s case was altogether a unique and distinct one. The Supreme Court held in the

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circumstance of that case that a writ petition was maintainable postelection. The facts of that case were that K.Venkatachalam successfully contested the election to the Legislative Assembly though he was not qualified, as he was not an elector of the Assembly Constituency. A.Swamickan, an unsuccessful contestant from the said Constituency, could very well have filed an election petition under Section 81 of the Act of 1951 against the election of K.Venkatachalam but he filed a writ petition under Article 226 of the Constitution challenging his election only after a year. The Supreme Court took note of the fact that an election petition under the Act of 1951 necessarily has to be filed within 45 days from the date of the election and that there was no provision in the Act of 1951 permitting the filing of an election petition beyond the prescribed time. In such a situation, faced with the glaring illegality in the election and continuance of K.Venkatachalam as a people’s representative, the Supreme Court held that it was open to the High Court to entertain a writ petition under Article 226 of the Constitution for the purpose of declaring his election and continuance as an illegality. This decision does not state that recourse to Article 226 of the Constitution is permissible during the election process and is therefore of no avail to the petitioner.

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Reliance was also placed upon the Judgment of the Supreme Court in ELECTION COMMISSION OF INDIA v. ASHOK KUMAR^[5] . Therein, the Court was seized of a situation where the High Court had interfered in exercise of Article 226 jurisdiction and directed the Election Commission to undertake the counting process in a particular manner, in accordance with the earlier instructions of the Election Commission overlooking the later guidelines. The Supreme Court framed an issue as to whether it was open to the High Court to entertain petitions under Article 226 of the Constitution and to issue interim directions after commencement of the electoral process. The Court reiterated that the term “election” as occurring in Article 329 means and includes the entire process, from the issue of the notification to the declaration of the result. Having referred to the Judgments of the Larger Benches of the Supreme Court in

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N.P.PONNUSWAMI’s case and MOHINDER SINGH GILL’s case, the

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Supreme Court formulated the two principles upon which the plenary power of Article 329 is founded. These two principles are apposite of quotation and read as under:

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“(1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion;

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(2) The provision of special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution.”

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The Court also took note of the fact that in MOHINDER SINGH GILL’s case, the Constitution Bench had noticed two types of decisions and two types of challenges. One, relating to proceedings which interfere with the progress of the election and secondly, which accelerate the completion of the election and act in furtherance thereof. The Court then went on visualize a third category where an election petition under Section 81 of the Act of 1951 would be rendered ineffective owing to loss of material evidence which required to be secured immediately. In such a situation, even before the result of the election is declared, the assistance of the Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. This, according to the Supreme Court, would justify exercise of jurisdiction under Article 226 of the Constitution. The Court further elaborated that the relief sought for should be to let the election process proceed in conformity with law and the facts and circumstances should be such that the wrong done shall not be undone after the result of the election is announced, subject to the overriding consideration that the Court’s intervention shall not interrupt, delay or postpone the ongoing election proceedings. [emphasis is ours)

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The Supreme Court then went on to explain as to what extent Article

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329(b) had an overriding effect on Article 226 of the Constitution. It again referred to the earlier Larger Bench Judgments in N.P.PONNUSWAMI’s case and MOHINDER SINGH GILL’s case, wherein it was held that the Act of 1951 provides for only one remedy, being by way of an election petition after the election is over and that there is no remedy provided at the intermediate stage. The Court also took note of the observation in MOHINDER SINGH GILL’s case that the non obstante clause in Article 329 pushed out Article 226 where the dispute takes the form of calling in question an election. The Court then went on to observe that the provisions of the Constitution and the Act of 1951 read together did not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the Courts when the election proceedings in question are over. The Court again reiterated that a two-pronged attack on anything done during the election proceedings is to be avoided – one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of the democracy. The Court also observed that if the petition presented to the Court “calls in question an election,” the bar of Article 329(b) is attracted. In summation, the Supreme Court elucidated its conclusions in paras 32 and 33 of the Judgment, which are apposite of extraction and read as hereunder:

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“32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: -

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1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

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2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

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3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

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4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.

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5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

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33. These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons.”

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Emphasis is placed by the learned counsel on the observations of the Supreme Court in clause (3) of paragraph 32 to support the contention that a writ petition would be maintainable against the arbitrary exercise of

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power by the Returning Officer or his action in breach of law.

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It is stated that the rejection of the petitioner’s nomination on wholly unsustainable grounds is a manifestation of arbitrary exercise of power, in addition to being in violation of statutory norms. It is therefore contended that the Judgment of the Supreme Court in the above case clearly postulates that Article 329(b) cannot be a blanket ban on the exercise of Article 226 jurisdiction. This argument overlooks and ignores the observations made by the Supreme Court in para-33 to the effect that its conclusions should be read along with the rest of the Judgment wherein the conclusions were elaborately stated with reasons. Further, the argument also overlooks the fact that clause (3) of para-32 begins with the words “Subject to the above”, indicating that the contents of clauses (1) and (2) of para-32 would have overriding effect. In clause (1), the Supreme Court specifically mandated that if the election is to be called in question, ‘election’ meaning the entire proceedings commencing from the date of notification of the election till the declaration of result, and such petition has the effect of interrupting, obstructing or protracting the election proceedings, the invocation of the judicial remedy must be postponed till after the completion of the election proceedings. The observations in clause (3) of para-32 cannot, therefore, be read in isolation and divorced from the observations in the other clauses of para-32, to mean that in every case of arbitrary exercise of power or breach of law by a Returning Officer or Election Authority, a writ petition would be maintainable under Article 226 of the Constitution. It is to be noted that in ELECTION COMMISSION OF INDIA’s case, the Supreme Court did not, being bound by judicial discipline, deviate from the principle laid down in N.P.PONNUSWAMI’s case with regard to interference with the rejection of a candidate’s nomination. N.P.PONNUSWAMI’s case therefore continues to hold the field insofar as the rejection of a candidate’s nomination is concerned.

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Reference is also made to an unreported Judgment dated 07.03.2007 of a learned single Judge of this Court in Writ Petition

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No.3493 of 2007 and Batch. Therein, the learned Judge was dealing with a batch of writ petitions which were filed apprehending that the nominations of the petitioners therein to contest the Legislative Council Elections would be rejected on the ground that their names did not find place in the voters’ list of a particular year. It appears that during the pendency of the cases, the nomination of one of the petitioners-Edupally Rangayyappa Rao (Writ Petition No.3321 of 2007) was rejected by proceedings dated 23.02.2007. Surprisingly, no steps were taken to amend the prayer in the writ petition and only a miscellaneous application was filed seeking suspension of the rejection proceedings. Thereupon, by interim order dated 26.02.2007, the learned Judge granted suspension as prayed for and directed the Returning Officer to re-examine the nomination. The material pertaining to this batch of cases produced before us shows that the election notification in those cases was issued on 15.02.2007; the last date for filing of nominations was 22.02.2007; scrutiny of the nominations was to be taken up on 23.02.2007 and the last date for withdrawal of the nominations was 26.02.2007. The writ petition was allowed by the learned Judge on 07.03.2007, holding that the relief claimed in the writ petitions was a declaration with regard to the eligibility of the candidates to file their nominations and therefore the bar to the maintainability of the writ petitions, under Article 329(b) of the Constitution would not be applicable. With due respect to the learned Judge, we are unable to accept this proposition. Trite to state, ‘election’ in Article 329 includes the entire process from the issuance of the notification up to the declaration of the result [N.P.PONNUSWAMI’s case, ELECTION COMMISSION OF INDIA’s case]. Admittedly, the learned Judge entertained the writ petitions after the issuance of the notification and having referred to N.P.PONNUSWAMI’s case, the learned Judge went on to decide the validity of candidates’ nominations and also suspended, by way of an interim order, the rejection of one such nomination even though it did not figure for consideration in the main writ petition. This Judgment therefore does not lay down the correct law with regard to the bar on the maintainability of writ petitions under Article 226, by operation of Article

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329(b) of the Constitution.

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In this regard, reference may be made to the Judgment of the Supreme Court in RAM PHAL KUNDU v. KAMAL SHARMA^[6] , wherein the Supreme Court was dealing with a situation where the Election Commission had interfered in the matter of rejection of a candidate’s nomination. In such a factual scenario, the Court observed that it had been held by a catena of decisions that once the nomination paper of a candidate was rejected, the Act of 1951 provides for only one remedy, being by way of an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. Thus, the Court was of the opinion that the interference even by the Election Commission in such a situation was without jurisdiction.

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In the light of the firmly embedded aforestated legal position, we are of the view that notwithstanding the validity or otherwise of the rejection of the nomination, any ground of attack against the same would be better suited for an election petition under Section 100(1)(c) of the Act of 1951 and would not be sufficient ground to warrant exercise of our extraordinary jurisdiction under Article 226 of the Constitution, overlooking the clear bar mandated by Article 329(b) of the Constitution. Mere rejection of a nomination of a candidate does not have the effect of interfering in the free flow of the scheduled election or hindering its progress, which according to the Supreme Court, should be the paramount consideration while testing the waters to see whether writ jurisdiction can be exercised. On the other hand, interference in the matter at this stage would invariably have the effect of interrupting the election process, requiring the election machinery to review the entire eligibility process. The case on hand does not present itself as an exceptional case warranting deviation from the established principle that this Court would not interfere in matters of the present nature in view of the constitutional bar under Article 329(b) of the Constitution.

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The writ petition fails on the ground of maintainability and is

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accordingly dismissed at the stage of admission. In the circumstances of the case, there shall be no order as to costs.

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-------------------------V.ESWARAIAH, J. ---------------------------SANJAY KUMAR, J. 15^TH APRIL, 2009 PGS THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.7721 OF 2009

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15^TH APRIL, 2009

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