1. These three petitions have been referred to the Division Bench by Natarajan J., because according to the learned Judge, the matters raised in these petitions by the petitioner appear to him to be res integra. The additional ground stated by the learned Judge for referring the matter to the Division Bench was that the special circumstances of the case warrant the writ petitions being heard and disposed of within two weeks.
2. The facts have been sufficiently set out in the referring order of the learned Judge. But we may briefly state that the substantial grievance of the petitioner in the above petitions is that, what is described by the learned counsel for the petitioner in the course of the arguments as R. 2(d) relating to. the officers before whom the candidate may make or subscribe oath of affirmation is ultra vires of the Constitution. It is obvious that if the petitioner is right in his contentions, then he was entitled to canvass the further contention that the nomination paper of Thiru M. G. Ramachandran, the fourth respondent in the petitions, was liable to be rejected, because he was not* qualified to contest in the forthcoming election to the Tamil Nadu Legislative Assembly by reason of his failure to make and subscribe an oath or affirmation in conformity with Art. 173(a) of the Constitution of India. In the three petitions W. P. 12152, 12153 and 12154 of 1984 respectively, the relief asked for is a declaration that 0) R. 2(d) made by the Election Commission is void; (2) Thiru M. G. Ramachandran is not qualified to contest the election and 10) the authorisation of the sConsul General in New York by the first respondent-Election Commission authorising the said Consul-General as the person before whom an oath for the purpose of Art. 173(a) of the Constitution may be taken by the fourth respondent, was ultra vires of the Constitution and void.
3. In his usual persuasive manner Mr Ramaswami has concentrated on what he contended as the constitutional aspect of the validity of R. 2(d), and he made it clear that the petitioner was not interested in having the election stayed, and if the petitions are admitted, they could be heard along with the Election Petition that may ultimately be filed. With his characteristic fairness, he stated before us that if this would have been a matter in which the acceptance of the nomination paper was alone challenged, the petitioner would be faced with a bar under Art. 329(b) of the Constitution, but according to the learned counsel, the petitioner was more concerned with the validity of what he described as R. 2(d).
4. The petitioner had sworn to an affidavit that the nomination paper of the fourth respondent bears only his thumb impression, which is'certified by Mr. Arun Patwardhan, Indian Consul General in New York'. The nomination paper bears the date 21-11-1984, which was filed before the Returning Officer on 26-11-1984, and it was attested earlier on 23-11-1984, when the oath was subscribed to.
5. Briefly stated the argument with regard to the so called vires or validity of the alleged rule is founded on Art. 173(a). Art. 173 of the Constitution provides as follows -
'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 authorised 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, not 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'.
One of the conditions precedent under Cl. (a) for a person to be qualified to be chosen to fill a seat in the Legislature of a State, is that he is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the Third Schedule; The form in the Third Schedule contains the form of oath or affirmation with which we are not concerned, In exercise of the powers under Art. 173(a) as well as Art. 84(a), the Election Commission has specified the officers before whom candidates may make or subscribe oath or, affirmation. This is in the form of a notification which is published by the Election Commission of India, being notification No. S. 0. 1111 dt. the 18th Mar. 1968 in the Gazette of India, Extraordinary 1968 Part II, S. 300 at page 361. reproduced in explicit terms in the Man4al of Election Law, 1982 Edn. at page 21. The relevant part of this notification reads as follows-
'2. Notwithstanding anything contained in para. 1, in pursuance of Cl. (a) of the said Art. 84 and cl. (a) of the said Art. 173, the Election Commission hereby also authorises as the person before whom the candidate may make and subscribe the said oath or affirmation -
(a) where the candidate is confined in a prison, the superintendent of the prison;
(b) where the candidate is under preventive detention, the commandant of the detention -camp;
(c) where the candidate is confined to bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent in charge of the hospital or the medical practitioner attending on him;
(d) where the candidate is out of India, the diplomatic or consular representative of India in the country where the candiate happens to be or any other person authorised by such diplomatic or consular representative;
(e) where the candidate is for any other reason unable to appear, or prevented from appearing before the returning officer concerned or any assistant returning officer as aforesaid, any other person nominated by the Election Commission on application made to it in this behalf .......
6. The learned Counsel contends that, this Notification must be treated as a Rule and, therefore, having a legislative character. We are not inclined to go into the question as to whether it is of legislative character or not, but it is clear that the Notification was issued only for the purpose of authorising certain officers as contemplated by Art. 173(a). The crux of the argument of the learned counsel was directed at the concluding part of sub-cl. (d), and the argument was that, when sub-cl. (d) provided inter alia that the diplomatic or consular representative entitled to authorise any person before whom the candidate may make and subscribe oath or affirmation, it amounted to a delegate sub-delegating his authority, and for making such a provision the Election Commission did not have any power under Art. 173(a). An argument was advanced further that since the fourth respondent was admittedly confined to bed in a hospital, the clause applicable in his case would be cl. (c), and unless, the medical superintendent in charge or the hospital or the medical practitioner attending on him attested thumb mark, the nomination paper would be invalid. It is further argued that sub-cl. (d) referred to'the candidate is out of India' then sub-cl. (d) excluded the cage dealt with in sub-cl. (c), with the result that, if an Indian citizen is-ill abroad and confined to bed, the proper person to attest the oath would be only the. Medical superintendent in charge of the hospital or the medical practitioner attending on him, and, consequently, this not having been done in the instant case, the nomination paper is invalid.
7. There can-be no doubt that all these contentions have been raised only with a view to challenge the acceptance of the nomination paper of respondent No. 4. What is in substance sought to be achieved by the petitioner by filing these petitions is a declaration that the nomination paper of respondent-No. 4 has been wrongly accepted. The contention that'R. 2(d)' is invalid, and further that, the attestation should have been in the manner prescribed in'R. 2(c)' is only in aid of the main contention, that the nomination paper is an invalid nomination paper, and was, therefore, liable to be rejected. So far as the contention, that the oath is
attested by an unauthorised person because the Election-Commission had exceeded its powers or jurisdiction in permitting the powers or diplomatic or consular representative to authorise another person is concerned, we pointed to learned counsel that the affidavit of the petitioner itself states that the oath was made and subscribed in the presence, of Mr. Arun Patwardhan, Indian Consul General in New York. The learned counsel, however wanted us to rely more on what is stated in the order of the Returning Officer, than on the statement of the petitioner in the affidavit Itself. In the order of the Returning Officer, dt. 28-11-1984, the person before whom the oath is made and subscribed is described as 'Consular Agent Consulate General of India, New York From this order, we were unable to ascertain whether Arun Patwardhan was Consular Agent or was Consul General. In any case, we would prefer to accept the averments made by the petitioner himself for the purpose petition, when he has on oath clearly stated that the person before whom the oath was made and subscribed was Consul 'General for India in ' New York. The learned counsel, however, tried to explain the discrepancy in the petitioner's statement of affidavit by describing it as a typographical or a clerical mistake. Now when the petitioner has sworn an affidavit in a matter which concerns him so vitally, because he is himself a candidate at the election and. his opponent is respondent No. 4, we would naturally expect him to ascertain all the facts when he swore to an affidavit. We are, therefore, entitled to assume that the statements made in the affidavit are made after ascertaining all material facts correctly. We have. therefore, declined to grant permission to the petitioner to file a second affidavit for which a request was made by the counsel, as there is no reliable material to show that there is any clerical or typographical error in the affidavit of the petitioner, In view of the averments in the affidavit of the petitioner that Mr. Patwardhan was the Consul General for India, there is no occasion to consider the validity of the letter part of what has been described by the learned counsel as a rule. We may, however observe that we are not inclined to accept the contention that ,by issuing the notification dt.18th mar.1968 the election commission was making any rule. Neither art.173(a) nor Art. 84 refers to any rule making power of the Election Commission. On its plain terms the notification is issued merely for the notification is issued merely for the purpose of an authorisation as contemplated by the election commission as required by art.173(a).
8. We are also prima facie inclined to take the view that, if there i6 an error in the authorisation or there is an, error in the oath or affirmation, then it can well become the subject matter of an election petition because S100(i) of the Representation of the people act ,provides that ,if the result of the election in so far as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination, then the high court shall declare the election of the return candidate to be void. What would make the acceptance of the nomination paper improper is a matter which will have to be decided in the election petition. Prima facie, if the nomination paper itself was invalid for non-compliance with any constitutional provision, that could be a ground for challenging the acceptance of the nomination as improper.
9. The learned counsel in support of his contention that the challenge to the validity of the authorisation would not be permissible in an election petition has referred us to a brief report of the Supreme Court in Hassan ,Uzzaman v. Union of India, : (1982)2SCC218 in which the Supreme Court has held that the High Court of Calcutta had acted within its jurisdiction in entertaining the writ petition and in issuing a rule ni si upon it, since the petition questioned the vires of the laws of election. Reference was also made to a decision of the Delhi High Court in Balraj Madhok V. Shashi Bhushan, , in which the Delhi High Court had observed that when the High Court deals with an election petition under the Representation of the People Act, the High Court exercises a special jurisdiction in accordance with the law which creates it and, that an election court even though it be the High Court having pre-existing ordinary an extraordinary jurisdiction, can try an election petition or pass orders there in accordance with the provisions of the Representation of the People Act.
9A. We have already pointed out that the question of validity in the form in which it is sought to be raised does not really arise-on the facts of the present case. Even otherwise, we are-prima facie of the view that if under law, an authorisation was not proper, then that question would go to the validity of the nomination paper itself and could be the subject matter of an election petition.
10. An a g trient was then raised on the strength of R (2) a) of the Conduct Election Rules 1961. R.2(2) reads, as election in so far as it concerns follows
'(2) For the purposes of the Act or these rules, a person who is unable to write his, name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if :-
(a) he has placed a mark on such instrument or other paper in the presence of the' Returning Officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election Commission; and
(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.'.
11. Our attention was also invited to instructions issued by the Election, Commission which are headed under'signing by illiterate persons'. These instructions are as follows : -
'.......Sub-rule (2)(a) of R. 2 lays down that a person who is unable to write his name shall be deemed to have signed an instrument or a paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election Commission. The Commission has accordingly specified every officer belonging to an administrative service not below the rank of a Sub-Divisional Officer as an officer in who may be placed.'
On the basis of these instructions, the contention raised is that, it is not shown that the thumb mark was placed before an officer who is duly authorised as contemplated by R. 2(2)(a). The further contention is that, this rule only provides for a mark to be made by illiterate persons. It is obvious that the instructions which are issued by the Election Commission for the purpose of explaining R. 2(2) of the Conduct of Election Rules .cannot restrict the scope of R. 2(2) at all. R. 2(2) refers to the'person who is unable to write his name'. There may be several persons who by reason of some disability or infirmity may not be able to write their names though they are literate or educated. R. 2(2) obviously has a wide application and on the plain terms of the rule, it is clear that the only circumstance which would enable a person to invoke the facility of placing a mark on the nomination paper was that he was unable to write his name for any reason whatsoever. A person whose right hand may be disabled and who is not able to write with his left hand! will clearly fall within R. 2(2) or even a person I whose both hands are disabled and unable to write will also be covered by R. (2).
12. It was further contended that R. 2(2)(a) contemplated that a person must be present before the Returning Officer and he must place a mark on his nomination paper in the presence of the Returning Officer or the Presiding Officer or such other officer as may be specified. The argument appears to be that the thumb mark has not been put on the nomination paper before an officer who falls under any of the categories in R. 2(2)(a).
13. It is obvious that all these contentions relate only.to the validity of the nomination peper and must, having regard to the express bar created under Art. 329(b) be left for determination in an election petition. In Mohinder Singh v. Chief Election Commr., : 2SCR272 , after discussing the, decision in Ponnusami's case, : 1SCR218 , and the provisions of the Constitution, the Supreme Court laid down the proposition as follows -
'(1) Article 329(b) is a blanket ban on litigative challenge to electoral steps taken by the Election Commission and its officers for carrying. forward the process of election to its culmination in the formal declaration of the result.
(2) Election, in this context, has a very wide connotation, commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.' The third proposition laid down by the Supreme Court reads as follows-'The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Art. 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice within the parameters set by the existing law.
14. Having regard to the settled law and the decision of the Supreme Court in Mohinder Singh's case, : 2SCR272 , it is impossible to accept the contention of the learned counsel that we should entertain the petitions and, in effect hold that the nomination paper was improperly accepted because there was some infirmity with regard to the status or authority of the person before whom the oath was made and subscribed by the fourth respondent. We may make it clear that we should not be understood to have adjudicated upon any factual aspect of the case raised by the petitioner. If and when an election petition is filed, all the factual and, legal aspects of the controversy, which are now raised will have to be gone into.
15. All these three writ petitions are rejected.
16. The learned counsel asked for leave to appeal to the Supreme Court. The same is rejected.
17. Petitions dismissed.