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TMI Blog1999 (4) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that it was not maintainable under Article 226 of the Constitution in view of bar contained in Clause (b) of Article 329 of the Constitution. General elections to the Legislative Assembly in Tamil Nadu were held in December, 1984 and both VenkatacIalam, the appellant and Swamickan, respondent were the candidates. In the result declared Venkatachalam was elected. A year after the date of election of Venkatachalam, petition under Article 226 of the Constitution was filed by Swamickan for a declaration that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in. question. He also prayed alternatively for writ of quo warranto directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not a present any petition calling in question the election of Venkatachalam under Section 81 of the Act. He alleged that Venkatachalam impersonated him for another person of the same name in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950(43 of 1950). Article 173 provides for qualifications for membership of the State Legislature. It is as under :- 173. Qualification for membership of the State Legislature. - A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he- (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, riot less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Under Clause (3) of Article 190 a member vacates his seat in the Legislature if he becomes subject to any disqualification under Clauses (1) and (2) of Article 191. Article 191 provides for disqualification of membership and relevant wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. 193. Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified.-If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State; Section 5 of the Act then provides for further qualifications for membership of a Legislative Assembly in view of Clause (c) of Article 173 of the Constitution. Section 5 of the Act is as under :- 5. Qualifications for membership of a Legislative Assembly --A person shall not be qualified to be chosen to fill a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be presented under Section 81 of the Act calling in question any election on one or more of the grounds specified in Section 100 or Section 101 of the Act and that petition can be filed by a candidate at such election or any elector within 45 days from the date of election of the returned candidate. Section 101 gives the grounds on which a candidates other than the returned candidate may be declared to have been elected. Section 123 defines corrupt practices. Both these Sections 101 and 123 of the Act are not relevant for our purposes. Sections 81 and 100 (in relevant part) are as under:- 81. Presentation of petitions.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned Candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, Explanation.-In this sub-section, `elector' means a person who was entitled to vote at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r election to the Legislature of a State : I, A.B; having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of god/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India. B. Form of oath or affirmation to be made by a member of the Legislature of a State : I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter. In support of his submission that jurisdiction of the High Court was barred under Article 226, Mr. Tripurari Ray, learned counsel for the appellant referred to various decisions of this Court in N.P. Punnuswami v. The Returning Officer, Namakhal Constituency, Namakhal, Salem Distt, and others, AIR (1952) SC 64; Durga Shankar Mehta v, Raghuraj Singh and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court arrived at the following Conclusions :- (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does hot affect the election , and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the election and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress. Finally this Court said that Article 329 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutionally incapable of being returned as a member there is non- compliance with the provisions of the Constitution in the holding of the election and as such sub-section (2)(c) of section 100 of the Act applies. In Brundaban Nayak case AIR (196 5) SC 1892, the question be fore this Court was the interpretation of Article 192 of the Constitution. The appellant was elected to the Legislative Assembly of Orissa and had been appointed as a Minister in the Council of Ministers in the State. P. Biswal, respondent No. 2 applied to the Governor alleging that appellant had incurred a disqualification subsequent to his election under Article l9l(l)(e) of the Constitution read with Section 7 of the Act. Under the instructions of the Governor of the State the Chief Secretary forwarded the said complaint to the Election Commission of India for its opinion. The appellant moved the Punjab High Court under Article 226 of the Constitution praying that inquiry by the Election Commission be quashed on the ground that it was incompetent and without jurisdiction. High Court summarily dismissed the writ petition. This Court granted special leave to appeal to the appellant. There was no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was aborted due to mob violence allegedly mobilised at the instance of the third respondent whom the appellant said was losing and the appellant himself winning by a margin of nearly 2000 votes. One of the questions raised before this Court was: Is Article 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer? Is Article 226 also covered by this embargo and, if so, is Section 100 broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an election and the declaration of the petitioner as the returned candidate and direct the organization of any steps necessary to give full relief ? This Court considered its earlier decision in the case of Punnuswami, AIR (1952) SC 64. Analysing Article 329(b) of the Constitution this Court said that the sole remedy for an aggrieved party, if he wants to challenge any election, is an election petition. And this exclusion of all Other remedies includes const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alvationary effort of a re-poll. Whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect wilt be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter- attack. Wise of valid, is another matter. 32. On the assumption, but leaving the question of the validity of the direction for re-poll open for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in `election' and is, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Election Commission of India v. Shivaji and others, AIR (1988) SC 61, this Court had again occasion to consider the jurisdiction of the High Court under Article 226 vis-a-vis Article 329(b) of the Constitution. It also referred to its earlier decision in Punnuswami case [1952] SCR 218 and Mohinder Singh Gill case [1978] 2 SCR 272. In all these cases there is a common message that when the poll or re-poll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under 226 of the Constitution and that remedy of the aggrieved parties is under the Act read with Article 329(b) of the Constitution. The Act provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in sub-section(l) of Sections 100 and 101 of die Act. There cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground improper acceptance of his nomination inasmuch as the appellant was hot an elector on the electoral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance, with the provisions of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied to the Election Commission on April 2, 1 952 for exemption so as to enable him to contest the election. The respondent did not receive any reply till May 5, 1952, the last date of filing nominations. He filed his nomination on that day. No exception was taken to it either by the Returning Officer or any other candidate. Election was held on June 14, 1952 and the respondent was declared elected on June 16, 1952 and the result of the election was duly published in the Gazette on June 1 9, 1952. Respondent, thereafter took his seat as member of the Assembly on June 27,1952, Meanwhile the Election Commission rejected the respondents application for exemption and communicated such rejection to the respondent by its letter dated May 13, 1952, which it is alleged was not received by him. The Speaker of the Legislative Assembly on July 3, 1952 brought the aforesaid communication of the Election Commission to the notice of the respondent. As a question arose as to the respondent's disqualification the Speaker referred the matter to the Governor of Madras, who in turn forwarded the case to the Election Commission for its opinion as required under Article 192 of the Constitution, In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has jurisdiction to inquire into the respondent's disqualification which arose long before his election. It may be noted that in this case an argument was raised by the Attorney- General that Articles 190 to 193 should be read together and that Article 190(3) and Article 192(1) would include within its scope pre-existing disqualifications as well. This argument was negatived by this Court when it said :- The Attorney-General argued that the whole fasciculus of the provisions dealing with disqualifications Of Members, viz., Article 190 to 193, should be read together, and as Articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, Articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word become in Articles 190(3) and 192(1) is not inapt, in the context, to include within its scope pre-existing disqualifications also, as becoming subject to a disqualification is predicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector, from that constituency could represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act, Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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