If a person has not filed his nomination in accordance with Section 33 (3) of the Representation of Peoples Act, 1951, he cannot claim to be a duly nominated candidate: SC

 

Tej Bahadur v. Shri. Narendra Modi

Civil Appeal No. 2100 of 2020 decided on 24.11.2020

Bench: S.A.Bobde, CJI., A.S.Bopanna,. V. Ramasubramanian, J.

Facts: An election petition was filed against Mr. Narendra Modi seeking to quash his election to the 17^th Lok Sabha from the 77^th Parliamentary Constituency of Varanasi held in April-May 2019. The ground for declaring the election of the respondent as void is that the appellant’s nomination was improperly rejected and further that be that the nomination of the respondent was wrongly accepted for want of disclosure of certain facts. Further, it was argued that the election is vitiated on the ground of misuse of official power by the Returning Officer and the Election Observer.

After due service, the respondent Shri Narendra Modi filed the application for dismissal of the petition contending that the petition does not disclose any cause of action and the appellant had no locus to file the petition in the absence of a certificate. The Allahabad High Court after hearing parties, by a detailed order dismissed the Election Petition on the ground that the appellant had no locus to challenge the election of the respondent from the Varanasi Parliamentary Constituency since the appellant was neither an elector for such constituency nor was he a candidate.

The appellant was an employee of the Border Security Force, an office under the Government of India. He was dismissed from service and thereafter he filed two nominations. The nominations were found to be invalid by the returning officer because they were not accompanied by a certificate to the effect that the appellant has not been dismissed for corruption or disloyalty to the State as required by Section 9(2) read with Section 33 (3) of the Representation of Peoples Act, 1951 (hereinafter mentioned as the Act)

 

Clause (6) of Part IIIA of Form 2A of the nomination paper contains a query whether the candidate was dismissed for corruption or for disloyalty while holding office under the Government of India or Government of any State. In the first nomination form, the appellant stated ‘Yes’ against this query while in the reply to the same query in the second nomination form he stated ‘No’. Therefore, the Returning Officer issued notices for different answers. The notices also pointed out that his nomination form was not accompanied by the requisite certificate. He was required to submit a certificate of the Election Commission to prove that he was not dismissed from service on the ground of corruption or disloyalty to the State. The appellant could not furnish the certificates, thus the Returning Officer rejected the appellant’s nomination papers on the ground that it was not accompanied by a certificate from the Election Commission that his dismissal from service was not on the ground of corruption or disloyalty to the State.The instant appeal accordingly arises from an order passed by the Election Tribunal while considering and disposing the application filed under Order VII Rule 11 CPC seeking rejection of the Election Petition.

Issue: Is the appellant’s nomination as a candidate is valid and thus has a locus standi to question the election process or not?

 

Held: The Supreme Court held that the appellant’s nomination as a candidate was not valid and he has no locus standi to question the election. The Supreme Court said that Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. The Explanation to Section 81 provides that an “elector” means a person who was entitled to vote at the election to which the election petition relates. In this case the election is to the Varanasi Parliamentary seat. The appellant is not an elector registered in the Varanasi constituency since he is admittedly enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana.

Furthermore, the Court said that since the locus of the of petitioner depends entirely on the question whether he is a candidate or can claim to be a duly nominated candidate. In this process, the court said that the term ‘candidate’ is defined in Section 79 (b) of the Act. The first part of definition is intended to cover a person who has been duly nominated as a candidate. Inter-alia the second part covers a person who considers himself entitled to have been duly nominated as a candidate.

The Court said that a condition for a valid nomination of a person who has been dismissed from service is that the nomination paper of such person must be accompanied by a certificate to the effect that the person seeking nomination has not been dismissed for corruption or disloyalty to the State. In consequence of the absence of such certificate that person “shall not be deemed to be duly nominated as a candidate”.

Admittedly appellant’s nomination paper was not accompanied by a certificate to the effect that he had not been dismissed for corruption or disloyalty to the State. Therefore, the Court dismissed his SLP of the appellant.