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dharti Pakad Madanlal Agrawal, Gwalior Vs. Jinendra Kumar Jain, Bhopal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberElection Petn. No. 24 of 1980
Judge
Reported inAIR1981MP26; 1981MPLJ126
ActsRepresentation of the People Act, 1951 - Sections 33(1), 100 and 100(1); Constitution of India - Articles 84 and 327
Appellant"dharti Pakad" Madanlal Agrawal, Gwalior
RespondentJinendra Kumar Jain, Bhopal and ors.
Advocates:Party in person
DispositionPetition dismissed
Excerpt:
.....constitution, no doubt, prescribes the qualifications which a person must possess if he is chosen to fill a seat in the parliament as the language of article 84 emphasises that 'a person shall not be qualified to he chosen to fill a seat in parliament unless he'.this clearly goes to show that the requirements under article 84 are the requirements of a person to be chosen to fill a seat in the parliament......84 of the constitution provides --'84. a person shall not be qualified to be chosen to fill a seat in parliament unless he --(a) is a citizen of india, and snakes 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 council of states, not less than thirty years of age and, in the case of a seat in the house of the people, not less than twenty five years of age; and(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by parliament.' this article povides for the necessary qualifications for membership of the parliament. it does not provide the machinery or process of election......
Judgment:
ORDER

G.L. Oza, J.

1. By this petition, the petitioner has challenged the election to the Rajya Sabha held on 27-6-1980.

2. According to the petitioner, he wanted to contest the election for the Rajya Sabha and for that purpose had filed the nomination paper. He filed his nomination paper on 23-6-1980 after depositing the security amount as required. According to him, on 25-6-1980 when the nomination papers were scrutinized the Returning Officer rejected the nomination paper of the petitioner on the ground that it was not properly filled in as it did not bear the signature of the proposer. Order not filed with the petition.

3. The only ground urged in this petition by the petitioner is that Section 33(1) of the Representation of the People Act which requires the nomination paper to be signed by one proposer who is an elector of the Constituency is unconstitutional as under Article 84 of the Constitution a citizen of India who holds the necessary qualifications prescribed in this article is entitled to contest the election to either House of Parliament. According to the petitioner, what right has been given under Article 84 has been taken away by Section 33(1) of the Representation of the People Act. The Parliament while enacting Section 33(1), exercising powers under Art, 327 of the Constitution had no authority to deprive the citizen of his right, which, according to the petitioner, vested in him under Article 84 of the Constitution of India.

4. The petitioner, who is present in person, contended that the requirement of an elector to propose the name of the candidate as a proposer also goes against the principles of secret ballot as an elector who proposes the name of the candidate openly demonstrates that he proposed to vote for the candidate, although there is no provision in law of elections which requires a proposer to vote for the candidate proposed by him. According to the petitioner, this is also a ground on the basis of which the requirement under Section 33(1) should be struck down, that is, it goes contrary to the secrecy of ballot. No other question was pressed.

5. Article 84 of the Constitution provides --

'84. A person shall not be qualified to be chosen to fill a seat in Parliament unless he --

(a) is a citizen of India, and snakes 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 Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty five years of age; and

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.'

This article povides for the necessary qualifications for membership of the Parliament. It does not provide the machinery or process of election. The process of election has not been specifically provided in the Constitution but Article 327 empowers the Parliament to legislate on the subject of elections. Article 327 reads --

'327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.'

This provisions clearly confers powers on the Parliament to legislate on all matters relating to or in respect of the hold-fag of elctions to the Parliament and also matters connected with the constitution of either House of Parliament. The language used in this article clearly confers wide authority on the Parliament to make laws about the procedure and related matters of elections. It is no doubt true that Article 327 does talk of 'subject to the provisions of this Constitution' and it is clear that when power it conferred on the Parliament under the Constitution itself, the laws have to be subjected to the Constitution. There is no other provision in the Constitution prescribing the manner of elections.

6. Chapter 2 of the Constitution deals with Parliament and Article 80 provides for the composition of the Council of States. Sub-clause (4) of Article 80 provides --

'80 (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.'

This provides that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of that State in accordance with the system of proportional representation by means of the single transferable vote and as referred to above, Article 84 provides for the qualifications of a person who could fill a seat in the Parliament. The basic manner of election i. e. proportional representation by the single transferable vote has been provided in Article 80 and it is apparent that the rest of the procedure has been left to the Parliament and the Parliament in exercise of its powers has enacted the Representation of the People Act

7. Section 33 of the Representation of the People Act falls in Part V, Chapter I with the heading 'Nomination of candidates'. Section 33 provides.--

'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 no nomination paper shall be delivered to the returning officer on a day which is a public holiday.

(1A) Notwithstanding anything contained in Sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the constitution), the nomination paper to be delivered to the returning office shall be in such form and manner as may be prescribed :

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and--

(a) in the case of a seat reserved for Sik-kimese of Bhutia-Lepcha Origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

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

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that casts or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in Section 9 has been dismissed and a period of six years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(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 ot 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 in any case where the description in regard to the name of the 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) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed alone with the nomination paper, be produced before the returning officer at the time of scrutiny.

(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper : Provided that riot more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.'

This provision requires the nomination paper to be completed in the prescribed form and signed by the candidate and by the elector of the constituency as a proposer. According to the petitioner, by this provision an additional qualification has been introduced and a person may be qualified to fill a seat in the Parliament under Article 84 but unless he gets a proposer out of the electors of that constituency he cannot contest an election and this, according to the petitioner, is inconsistent with Article 84 of the Constitution and, therefore, ultra vires.

8. Article 84 of the Constitution, no doubt, prescribes the qualifications which a person must possess if he is chosen to fill a seat in the Parliament as the language of Article 84 emphasises that 'a person shall not be qualified to he chosen to fill a seat in Parliament unless he'. This clearly goes to show that the requirements under Article 84 are the requirements of a person to be chosen to fill a seat in the Parliament. The process of choosing is the next step. It, therefore, does not indicate that as soon as a person holds the necessary qualifications he becomes fit to fill a seat in the Parliament. What is further required is that if he does not hold any one of these qualifications, he cannot be allowed to he chosen. The word 'chosen' has not been further clarified. It positively indicates the process of choosing and it is therefore, clear that what Article 84 requires is only the qualifications of a person who can be candidate for a seat in the Parliament. But it does not mean that the process of choosing may not be provided for and it is this process which has been left over to be prescribed by the Parliament under Article 327. It, therefore, could not be contended that merely because in the process of election as provided for under the Representation of the People Act if it is required that the candidate must fill in a form duly filled in and signed by one of the electors of the constituency it adds to the requirement which is already provided under Article 84.

9. According to the petitioner, Article 102 of the Constitution provides for disqualifications for being chosen and for being a member of the House of Parliament. Article 102 provides --

'102(1) A person shall be disqualified for being chosen as, and for being a member of either House of Parliament --

(a) if he holds any such office of profit under the Government of India or the Government of any State, as is declared by Parliament by law to disqualify its holders;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of an allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.'

This article provides for disqualifications for being chosen or for being a member of the House of Parliament. It refers to two stages and this also indicates the qualifications and disqualifications which have been provided in the two articles of the Constitution for being chosen for a seat in the Parliament. Only in case if a person possesses qualifications as provided for in Article 84 and is not disqualified as provided in Article 102, he can be chosen to fill a seat in the Parliament. How he has to be chosen to fill a seat in the Parliament has been left open and that process has been left to the Parliament and its legislative functions. It, therefore, could not be said that the Representation of the People Act while providing for the manner in which a candidate could be chosen to fill a seat in the House of Parliament has provided a procedure. It could not be contended, that procedure deprived a citizen of his right. In fact, Article 84 does not confer any right but it only provides the qualifications which are necessary for a person to be chosen to a seat in the Parliament.

10. While enacting the Representation of the People Act, it appears that Section 33 has been provided for all elections as it talks of a proposer who is an elector in the constituency and it appears that it has been provided only to re-gulate the elections to the various seats in the various Assemblies in the State or the Parliament. It may be that a person who wants to be chosen to a seat in the Parliament is not able to get an elector ol the constituency to sign the nomination paper as a proposer. But it does not mean that the person does not hold the necessary qualifications. After all, if a person is not elected he does not become a member of either House of the Parliament although a citizen may claim to have a right to be elected. I, therefore, see no restriction bring put on the exercise of a right by the provisions contained in Section 33 of the Representation of the People Act.

11. The second question raised by the petitioner is that as an elector has to sign the nomination paper, as a voter his exercise of franchise is published and, therefore, it is contrary to the policy of secret ballot. Admittedly, there is no provision which requires an elector who signs a nomination paper as a proposer to vote for that candidate. The exercise of right of vote is not controlled by signing the nomination paper as a proposer and it, therefore, could not be said that by signing the nomination paper as a proposer the elector discloses the manner in which he has to cast his vote. I, therefore, see no substance in this ground also.

12. Of the grounds mentioned in Section 100 for an election petition, the oidy ground on which this petition is based is the improper rejection of the nomination paper which is a ground under Section 100(1)(c). Section 100(1)(c) says --

'100. Grounds for declaring election to be void. --

(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-- (c) that any nomination has been improperly rejected; or the High Court shall declare the election of the returned candidate to be void.'

Admittedly, the nomination paper of the petitioner is rejected because it did not nave the signature of an elector as a proposer. It is not the grievance of the petitioner that this rejection is improper. His grievance is that Section 33 of the Representation of the People Act is ultra vires of the Constitution and, therefore, as the ground alleged in the petition does not exist, this petition is based on none of the grounds on the basis of which the election could be declared to be void.

13. As already discussed, there is no substance in the contention that section 33 is ultra vires of the Constitution. Thus, the petition is not based on any ground on the basis of which the election could be declared as void. Consequently, the petition could not be entertained. It is, therefore, dismissed. The petitioner shall be entitled to a refund of the security amount in due course.


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