SC requested Governor of Maharashtra to ensure that a floor test be held on 27.11.2019

Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same. Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits.

SHIV SENA AND ORS VS UNION OF INDIA AND ORS-26/11/2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1393 OF 2019

SHIV SENA AND ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS

ORDER

1. There is no gainsaying that the boundaries between the jurisdiction of Courts and Parliamentary independence have been contested for a long time.1 However, there is a need and requirement for recognizing institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort. This case pertains to one such situation, wherein this Court is called upon to adjudicate and maintain democratic values and facilitate the fostering of the citizens’ right of good governance.

2. Before we pass any orders, we need to make a brief reference to the factual aspects giving rise to the petition herein. It was well
known that there existed a pre­poll alliance between the


1 Erskine May, Parliamentary Practice, 25th edition, 321 (2019).


Bharatiya Janata Party [for short ‘BJP’] and the Shiv Sena, who contested the Fourteenth Maharashtra Legislative Assembly elections jointly. On 24.10.2019, the results for the aforesaid elections were declared and no single party had the requisite majority in the House. On 09.11.2019, the Governor called upon the BJP to indicate its willingness to form the Government, being the single largest party with 105 seats. However, the BJP declined to form the Government on 10.11.2019, as the alliance with the Shiv Sena allegedly broke down.

3. Subsequently, the Governor invited the Shiv Sena to form the Government. In this regard, the Shiv Sena is said to have shown its willingness to stake a claim to form the Government, claiming to have support of the majority. However, the aforesaid endeavor was not fruitful either. Thereafter, the Governor’s effort to seek the Nationalist Congress Party’s [for short ‘NCP’] willingness to stake a claim to form the Government was also not successful. Ultimately, the Governor recommended President’s Rule on 12.11.2019, which was imposed by a Presidential Proclamation on the same day.

4. It is brought to our attention that the Petitioners, i.e., Shiv Sena, NCP and the Indian National Congress [for short ‘INC’] were in discussion to form a coalition government during this period, and accordingly, a press conference is supposed to have been held on 22.11.2019 regarding the same.

5. It has been canvassed before us that at 5:47 a.m., on 23.11.2019, the President’s Rule was revoked in exercise of powers conferred by clause (2) of Article 356 of the Constitution. Thereafter, the Governor, by letter dated 23.11.2019 invited Respondent No. 3 to form the Government. The oath of office and secrecy was administered accordingly to Respondent Nos. 3 and 4 at around 8.00 a.m. on 23.11.2019 at Raj Bhavan, Mumbai.

6. Aggrieved by the Governor’s action in calling upon Respondent No. 3 to form the Government, the Petitioners have approached this Court under Article 32 of the Constitution on 23.11.2019 with the following prayers:

“a. Pass an appropriate writ/order/direction declaring that action/order of the Hon’ble Governor dated 23.11.2019 inviting Shri Devendra Fadnavis to form the Government on 23.11.2019 as unconstitutional, arbitrary, illegal, void­ab­initio, and violative of Article 14 of Constitution of India; and accordingly quash the same;

b. Pass an appropriate writ/order/direction to the Hon’ble Governor to invite the alliance of Maha Vikas Aghadi comprising of the Shiv Sena, Indian National Congress and the Nationalist Congress Party which has the support of more than 144 MLAs to form the Government under the leadership of Shri. Uddhav Thackeray;

…”

7. At this juncture, it is necessary to extract some of the prayers for interim directions sought by the Petitioners in the present petition:

“a. Issue appropriate directions in terms of summoning a special session of the
Fourteenth Maharashtra Legislative Assembly with the only agenda of administering oath to the MLAs, immediately followed by the holding of a floor test on 24.11.2019;

d. Issue appropriate directions in terms of the order dated 24.02.1998 passed by this Hon’ble Court in Jagadambika Pal (supra) as well as Harish Chandra Singh Rawat (supra) directing that the proceedings of the House be video recorded and a copy of the video recording be placed on record of this Hon’ble Court;

e. Issue appropriate directions appointing a pro­ tem Speaker to preside over the conduct of the floor test;”

8. Further, the Petitioners have filed an affidavit indicating the urgency and requirement for hearing the matter on 23.11.2019 itself. Accordingly, the Hon’ble Chief Justice was pleased to place the matter before this Bench and the matter was heard on 24.11.2019 (Sunday) at 11:30 a.m. After hearing the parties, this Court passed the following order: “Issue notice.

It was brought to our notice by the learned Senior counsels appearing for the petitioners that they have served the respondents through e.mail. However, there is no representation for Respondent Nos.2, 3 and 4.

Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India is willing to produce the relevant record, if necessary, from the Governor also.

Mr. Mukul Rohatgi, learned Senior counsel who is appearing for some BJP MLAs and two independent MLAs, who are not parties to this Writ Petition, opposed the entertaining of the Writ Petition as well as passing of any order.

We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23­11­2019 inviting the Respondent No.3 to form a

Government on 23­11­2019 is unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at present. As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis

– Respondent No.3, even though none appeared for the State Government, we request Mr. Tushar Mehta to produce those two letters by tomorrow morning at 10.30 a.m. when the matter will be taken up, so that appropriate order will be passed.”

9. When the matter was taken up for hearing on 25.11.2019, the Solicitor General of India, produced the letters in compliance of the order of this Court dated 24.11.2019.

10. Heard the learned counsel appearing for both sides.

11. The learned Senior Counsel for Petitioner No. 1, Mr. Kapil Sibal submitted that prima facie, the action of the Governor revoking President’s Rule at 5:47 a.m. and administering the oath of office at around 8:00 a.m. reeks of mala fide. The learned Senior Counsel further submitted that Respondent No. 4 was never authorized to form the alliance with Respondent No. 3. Therefore, Respondent No. 3 must prove his majority on the floor of the House. For this purpose, as per established norms, the senior most member must be called for assuming the role of pro­tem Speaker, after which there must be an open ballot and the same should be captured in a video recording so as to ensure transparency.

12. Agreeing with the aforementioned submissions, learned Senior Counsel Dr. A.M Singhvi appearing for Petitioner Nos. 2 and 3 submitted that the Governor turned a blind eye by accepting the proposal of formation of the Government put forth by Respondent No. 3. The letter presented to the Governor, although allegedly signed by 54 elected members of the NCP, was unaddressed and did not have a covering letter or any other statement promising their alliance to the BJP. In the aforesaid context, the sole reliance on the aforesaid letter to prove majority was not prudent. Moreover, when both sides are agreeable to the conduction of a floor test, and an order directing the conduction of the same is not prejudicial to anyone, then there is no reason to defer the same.

13. On the other hand, learned Solicitor General submitted that the satisfaction of the Governor was based on the material placed before him, wherein it was indicated that Respondent No. 3 enjoyed the support of 105 elected members of the BJP, 54 elected members of the NCP and 11 independent elected members (170 in total). The Governor had, in his own wisdom, relied upon the letters of the Respondent Nos. 3 and 4 and he had no reason to disbelieve the same. The Governor is not obligated to conduct a roving enquiry into the same. The learned Solicitor General also contended that this Court cannot monitor the proceedings of the House as per the provision of Article 212 of the Constitution.

14. Adding to the aforesaid submissions, learned Senior Counsel Mr. Mukul Rohatgi appearing for Respondent No. 3 submitted that although a floor test is imperative, this Court cannot sit in appeal over the Governor’s order to set the dates for the floor test. It must be kept in mind that conducting a floor test is the discretion of the Speaker. In light of the above, no interim order can be passed in the aforesaid matter.

15. Lastly, learned Senior Counsel Mr. Maninder Singh appearing for Respondent No. 4 vehemently contended that the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.

16. We may note that, while the learned Solicitor General and learned Senior Counsel Mr. Mukul Rohatgi sought additional time to file affidavits in response, however we are of the opinion that the same might not be necessary at this stage.

17. Having heard the submissions of the learned counsel on the issues of maintainability, extent of judicial review and validity of the Governor’s satisfaction, we are of the opinion that they can be adjudicated at an appropriate time. There is no doubt that the contentions have to be answered, as the petitioners have raised questions concerning important constitutional issues touching upon the democratic bulwark of our nation. However, at this interim stage, we may note that it is imperative for this Court to be cognizant of the need to take into consideration the competing claims of the parties, uphold the democratic values and foster constitutional morality.

18. At the outset, we need to emphasize that recently, in the case of Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, Writ Petition (C) No. 992 of 2019, this Court had emphasized the requirement of imbibing constitutional morality by the constitutional functionaries. Undemocratic and illegal practices within the political arena should be curtailed.

19. In this context, this Court in Union of India v. Shri Harish Chandra Singh Rawat, (2016) SCC OnLine SC 618, held as follows:

“8. … This Court, being the sentinel on the qui vive of the Constitution is under the obligation to see that the democracy prevails and not gets hollowed by individuals. The directions which have been given on the last occasion, was singularly for the purpose of strengthening the democratic values and the constitutional norms. The collective trust in the legislature is founded on the bedrock of the constitutional trust…”

20. In a situation wherein, if the floor test is delayed, there is a possibility of horse trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test, in such a case, might be the most effective mechanism to do so. A similar view was expounded by B.P. Jeevan Reddy, J., in the celebrated nine­Judge Bench decision of this Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein he held as follows:

“395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people — and not the Governor

— the position would be clear beyond any doubt….There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all­pervasive violence, the Governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible in the House.”

(emphasis supplied)

21. This was also the opinion expressed by the Sarkaria Commission, Rajmannar Committee and the unanimous opinion expressed by the Committee of five Governors constituted by the President of India. In the aforementioned judgment, B.P. Jeevan Reddy, J., quoted the observations of the Committee of Five Governors with approval, as below:

“393.…The five Governors unanimously recommended that “the test of confidence in the Ministry should normally be left to a vote in the assembly … Where the Governor is satisfied, by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time… A Chief Minister’s refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying confidence of the legislature….”

22. Ex facie, Article 212 of the Constitution, relied on by the Respondents, would have no application as it relates to validity of proceedings in the Legislature of a State that cannot be called in question in any court on the ground of any alleged irregularity of procedure. Clause (2) states that no officer or member of the legislature of a State, in whom powers are vested by or under the Constitution for regulating the procedure, conduct of business or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of exercise of those powers by him. Sub­Article (2) has no application because no act of any officer or member of the Legislature of the State has been made the subject matter of the present Petition before this Court. This Court, nearly two decades back, in Jagdambika Pal v. Union of India, (1999) 9 SCC 95, had passed an order, after hearing counsel for the petitioner and the caveators, directing that a special session of the Uttar Pradesh Assembly will be summoned/ convened after two days on 26.02.1998 with the following directions:

“1. …

(ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.

(iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously.

(iv) The result of the composite floor test would be announced by the Speaker faithfully and truthfully.

2. The result is expected to be laid before us on 27­2­1998 at 10.30 a.m. when this Bench assembles again.

3. Ancillary directions are that this order shall be treated to be a notice to all the MLAs,

leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no major decisions would be made by the functioning Government except attending to routine matters, not much of any consequence.”

23. Six years later, in Anil Kumar Jha v. Union of India, (2005) 3 SCC 150, similar directions were passed by this Court after recording and taking notice of events that had taken place and few developments which were in the offing, as reported in the media, to observe and direct as follows:

“5. Though many a relief has been sought for in the writ petition, as also in the application for grant of ex parte stay, for the present, we are satisfied that a strong prima facie case on the averments made in the petition duly supported by affidavit, has been made out to issue the following interim directions and we order accordingly:

(1) The session of the Jharkhand State Assembly has already been convened for 10­3­2005 on which day the newly elected Members of the Legislative Assembly shall be administered oath. We direct the session to continue and on 11­3­2005 i.e. the next day and on that day the vote of confidence to be put to test.

(2) The only agenda in the Assembly on 11­3­2005 would be to have a floor test between the contending political alliances in order to see which of the political parties or alliance has a majority in the House and hence a claim for Chief Ministership.

(3) It is emphasised that the proceedings in the Assembly shall be totally peaceful, and disturbance, if any, caused therein shall be viewed seriously.

(4) The result of the floor test would be announced by the pro tem Speaker faithfully and truthfully.

(5) This order by the Court shall constitute notice of the meeting of the Assembly for 11­3­2005 and no separate notice would be required.

(6) Till 11­3­2005 there shall be no nomination in view of Article 333 of the Constitution and the floor test shall remain confined to the 81 elected members only.

(7) We direct the Chief Secretary and the Director General of Police, State of Jharkhand to see that all the elected Members of the Legislative Assembly freely, safely and securely attend the Assembly and no interference or hindrance is caused by anyone therein. Dr. A.M. Singhvi, learned Senior Counsel appearing for the State of Jharkhand through the Chief Secretary and the Director General of Police has very fairly assured the Court that even otherwise it is the duty of the State and its high officials to take care to do so and the direction made by the Court shall be complied with in letter and spirit.”

The aforesaid directions were interim in nature and were passed on the basis of averments made in the petition duly supported by an affidavit. Writ petitions were directed to be listed on the date of hearing fixed.

24. Ten years later, in Union of India v. Sh. Harish Chandra Singh Rawat, (2016) SCC Online SC 442, again an interim order was passed after the special leave petitions were taken up for hearing, though after concession which was made by Mr. Mukul Rohatgi, the then Attorney General for India, that the Union of India has no objection, which the Court had appreciated, to observe that the floor test should be conducted on a special session of Uttarakhand Legislative Assembly to be summoned/convened in which the only agenda would be the vote of confidence sought by the first respondent and apart from the said agenda nothing will be discussed. Directions were issued to the Chief Secretary and the Director General of Police, State of Uttarakhand, to see that all qualified Members of the Legislative Assembly, freely, safely and securely attend the Assembly and no hindrance is caused to them. The floor test was to commence at 11:00 a.m. and was directed to be completed by 1:00 p.m. There was another direction that the Confidence Motion having been put, a division of the House shall take place and members inclined to vote in favour of the Motion shall sit on one side/wing and those voting against the Motion shall sit on the other side/wing. The entire proceedings were to be video­graphed and video recording was directed to be placed before the Court for being perused. The special leave petitions were directed to be listed thereafter.

25. In Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758, the challenge raised was to a press note and communication from a leader of a party to the Governor of the State on the issue relating to whether a particular party had misrepresented the facts. Observing that the sensitive and contentious issue could be resolved by a simple direction requiring holding of the floor test at the earliest. This would remove all possible ambiguities and would result in giving the democratic process, the required credibility. By order dated 14.03.2017, the Governor of the State of Goa was requested to ensure that a floor test is held on 16.03.2017. Further, it would be the only agenda for the day so as to determine whether the Chief Minister administered the oath of office enjoys the support of the majority. The order further highlights that the floor test should be held as early as possible.

26. Lastly, we would refer to G. Parmeshwara v. Union of India, (2018) 16 SCC 46, wherein identical directions were issued in respect of formation of Government in the State of Karnataka to test whether the Chief Minister so appointed enjoyed the majority support of the House. Noticing the fact that the elected members of the Legislative Assembly, as in the present case, were yet to take oath and the Speaker was also not elected, the following procedure was directed to be followed for conducting the floor test:

“8…

(A) Pro­tem Speaker shall be appointed for the aforesaid purpose immediately.

(B) All the elected members shall take oath tomorrow (19­5­2018) and this exercise shall be completed before 4.00 p.m.

(C) The Pro­tem Speaker shall conduct the floor test on 19­5­2018 at 4.00 p.m. in order to ascertain the majority and it shall not be by secret ballot and these proceedings shall be conducted in accordance with law.

(D) Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever.”

It was directed that the floor test would be conducted immediately

the next date, i.e., the date following the order.

27. We may note that in the present case, oath has not been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent facts and circumstances, to curtail unlawful practices such as horse trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case. In this context, it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as specified in the III Schedule of the Constitution, and the Speaker is also yet to be elected, we request the Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019.

The following procedure is to be followed for conducting the floor test:

a. Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately.

b. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m.

c. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot.

d. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.

28. Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits. Rejoinder affidavit, if any, is to be filed within four weeks thereafter. The matter to be listed after twelve weeks.

J. (N.V. Ramana)

J. (Ashok Bhushan)

J. (Sanjiv Khanna)

NEW DELHI;

November 26, 2019.

Burden of proof in election cases

“In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes”.

Appreciation of evidence and burden of proof in election cases

Burden of proof resting on a person seeking a declaration of the voidness of election

It will be seen from the following decisions that it has been consistently laid down by the Supreme Court in a number of cases that burden of proof resting on a person seeking a declaration of voidness of election is very heavy in the sense that he is required to prove every charge of corrupt practice beyond reasonable doubt. In other words, the burden to be discharged by the petitioner in a case is the same as the burden on the prosecution to prove a criminal charge.

The first decision, which was cited at the Bar in this connection was the decision in the case of D. Venkta Reddy v. R. Sultan and others (A.I.R. 1976 SC 1599), where in it is observed.

“In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.

In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time, it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act.

Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to land further assurance is necessary.”

The Supreme Court in the case of Kanhaiyalal v. Mannalal & Ors. (A.I.R. 1976 SC 1886) reproduced with approval the following passage from the case of Rahimkhan v. Khurshid Ahmed (A.I.R. 1975 SC 290) dealing with the appreciation of oral testimony in election cases, namely.

“We must emphasise the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a- dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to qulp such oral versions and invalidate elections, a new meance to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kil-kenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man’s public life.”

In Amolak Chand Chhazad v. Bhagwandas Arya & Anr, (A.I.R. 1977 S.C. 813) also, it has been laid down that election petition alleging corrupt practice are proceedings of quasi-criminal nature and burden is on the person alleging corrupt practice to prove allegations beyond reasonable doubt.

Similarly, it is held in Rajendra Singh Yadav v. Chandra Sen & Ors. (A.I.R. 1979 SC 882) that it is well settled that allegation of corrupt practices have to be made and proved like a charge in a criminal case and that what is not pleaded cannot be allowed to be the subject matter of evidence, as also that the allegations must be proved beyond reasonable doubt and not merely by way of preponderance of probabilities. It is also pointed out in this case that it is not at all difficult for a defealted candidate to produce a few witnesses in support of allegations of corrupt practice after the event, even though the truth may be far different from what they state.

In the case of A. Younus Kunju v. R.S. Unit and others (A.I.R. 1984 S.C. 960), while reiterating the same position as to the onus of proof to be discharged by the election petitioner, the Supreme Court, has referring to the evidence before it pointed out,

“Admittedly, all these witnesses were the workers of the appellant. There is overwhelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position, workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses, they would support their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same be far from truth. In such circumstances, we do not think on the oral testimony of these four witnesses the charge of publication of objectional materials can be said to have been established.”

Of course in the two cases of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and others (A.I.R. 1985 SC 24) and S. Harcharan Singh v. S. Sajjan Singh and others (A.I.R. 1985 SC 236). The Supreme Court has sounded a note of caution by observing that there is no ritualistic formula nor a cut-and- driend test to lay down as to how a charge of undue influence can be proved, but if the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate of his supports or agent with his consent or with his agent’s consent that should be sufficient to vitiate the election of the returned candidate. It is also pointed out that while insisting on standard of strict proof, the court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice because such an approach would defeat and frustrate the very loudable and sacrosanct object of the Act in maintaining purity of the electoral process. This note of caution, however, does not in any way dilute the doctrine of insistence of proof beyond reasonable doubt in case of allegations of corrupt practice in an election petition.

It may be mentioned here that the above principle of having to insist on strict proof of allegations of corrupt practices are demanded.

Indian election glossary

1. Assistant Electoral Registration Officer: The Election Commission may appoint one or more persons as Assistant Electoral Registration Officers to assist an Electoral Registration Officer to prepare the electoral roll of the Constituency under his charge. Every Assistant Electoral Registration Officer shall, subject to the control of Electoral Registration Officer, be competent to perform all or any of the functions of Electoral Registration Officer.

2. Assistant Returning Officer: The Election Commission may appoint one or more persons as Assistant Returning Officer to assist a Returning Officer in conduct of election for the Constituency under his charge. Every Assistant Returning Officer shall, subject to the control of Returning Officer, be competent to perform the functions assigned in the statutes.

3. Booth Capturing: Booth capturing means unauthorized casting of votes by some person other than the genuine voter either by intimidating or threatening the polling officials to surrender the ballot papers or by preventing the voters from going to the polling stations.

4. Booth Level Officer: Booth Level Officer is a local Government/SemiGovernment
official, familiar with the local electors and generally a voter in the same polling area, who assists in updating the roll using his local knowledge. He, under the overall supervision of Electoral Registration Officer, is responsible for field verification, collection of information/data regarding electors and preparation of roll of a part of electoral roll in respect of the polling area, assigned to him.

5. Bribery: Bribery may be described as an inducement to a person, by wrong means, to do or not to do a thing which he may otherwise have not done or done. In the context of elections, bribery is the most common and rampant form of corrupt practice. It is any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or any election agent, with the object of inducing a person to stand or not to stand

6. Chief Electoral Officer: Chief Electoral Officer is an officer of the State Government, who supervises the work relating to preparation of electoral roll and conduct of all elections to Parliament and the Legislature of the State, subject to the overall superintendence, direction and control of the Election Commission.

7. Constituency: As amended from time to time, the Delimitation Order defines the territorial extent of each Assembly Constituency and the Parliamentary Constituency. A number of Assembly Constituencies comprise a Parliamentary Constituency. All Assembly and Parliamentary Constituencies are territorial, i.e. have fixed geographical boundaries. An exception is the Sangha Assembly Constituency in Sikkim which comprises of monks residing in recognized monasteries all over the State of Sikkim.

8. Corrupt Practice: A corrupt practice is committed by a candidate, or by someone else with his consent. It has effect of vitiating the whole election and can result in the said election being declared void. Corrupt practices at elections are specified in Section 123 of the Representation of the People Act, 1951.

9. District Election Officer: The Election Commission designates the head of district administration, variously known as Collector, Deputy Commissioner or District Magistrate, as District Election Officer of the district concerned. Subject to the superintendence, direction and control of Chief Electoral Officer, District Election Officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the preparation and revision of the electoral rolls, and conduct of elections to all Parliamentary, Assembly and Council Constituencies within the district. District Election Officer is responsible for providing polling stations and the publication of the list of polling stations and for providing polling staff at elections.

10. Election Manifesto: An election manifesto is a published document containing declaration of the ideology, intentions, views, policies and programmes of a political party, keeping an eye, in particular, on forthcoming elections and published and publicized on the eve of elections.

11. Electoral Offence: Electoral offence is a criminal act relatable to an election
specified under the Indian Penal Code. Commission of an electoral offence can
be taken cognizance of as soon as it is committed in the same manner in which
any other criminal activity is investigated and tried.

12. Electoral Registration Officer: For the purpose of preparation and revision
of electoral rolls of a constituency, the Election Commission, in consultation
with the Government of the State, designates/nominates an officer of the State
Government concerned, as Electoral Registration Officer. Electoral Registration
Officer is the statutory authority to prepare the electoral roll of the Constituency
under his charge.

13. Electoral Roll: Ordinarily known as ‘voter list’, electoral roll is a list of persons
registered as electors residing in a constituency. For proper management,
electoral roll of a constituency is divided into several parts which contain details
of electors of the corresponding polling areas.

14. EPIC: Electors Photo Identity Card (EPIC) is issued by Electoral Registration
Officer to all electors registered in the electoral roll of the Assembly Constituency
under him, for establishing the identity of the concerned elector at the time of
poll.

15. False Statement: False statement is publication by a candidate or his agent
or any other person with consent of the candidate or his election agent, of any
statement of fact which is false or not true, in relation to personal character or
conduct of any candidate calculated to prejudice the prospects of that candidate’s
election.

16. Freebie: Freebie is ‘something given without charge’. In common parlance,
freebies are the promises of giving certain tangible materials such as bicycles,
laptops, TVs or facilities like electricity connection, water connection or food
grains on nominal price or without any cost to a targete

19. Inducement: Inducement is persuasion, promise and gratification offered
through a third person, direct or indirect, to a voter to vote or refrain from
voting. The voter may not be a direct party in the bargain between the candidate/
his election agent and the third person but must be shown to have an indirect
interest in it.

20. Model Code of Conduct: The Model Code of Conduct is a set of norms
for guidance of political parties and candidates during election period, evolved
with the consensus of political parties. The Election Commission ensures its
observance by political parties including the ruling parties and candidates during
the period of elections so that nobody can disturb the level playing field for all
political parties involved in the electoral process.

21. Party in Power: The party in power is the political party which is in government
at the center or in the state. The Model Code of Conduct intends that no action
should be taken by a party in power in close proximity to the date on which
the elections are announced so as to derive any benefit therefrom during the
elections.

22. Photo Voter Slips: For convenience of voters on day of poll, pre-printed official
voter slips, containing photograph of voter and details available in the photo roll
such as Number and Name of Constituency, Part No., Name, Gender, EPIC
No., Relatives name, Serial No., Polling Station No. and Name and Date, Day
and Time of poll, are distributed to all enrolled voters by District Administration.
Photo Voter Slips are duly authenticated by Electoral Registration Officer and
distributed through Booth Level Officer as per the schedule for distribution
prepared by Returning Officer. The undistributed Photo Voter Slips shall be
kept by Booth Level Officer. No photocopy of Photo Voter Slip is allowed for
distribution purpose. Any unauthorized distribution/possession of Photo Voter
Slip shall be considered as violation of provisions of the Representation of the
People Act, 1951 and Indian Penal Code.

23. Polling Station: Polling station is the room/hall fixed for holding poll where
the electors of the concerned polling area cast their votes on the day of poll. It is
also referred to as ‘polling booth’.

24. Returning Officer: The Election Commission, in consultation with
the Government of the State, designates/nominates an officer of the State
Government concerned, as Returning Officer for a constituency for election to
State Legislature or Parliament.

25. Screening Committee: To examine references of Model Code of Conduct
from various departments of State Government, a Screening Committee is
constituted in every State during elections. The Screening Committee is headed
by Chief Secretary and consisted of two other members. After clearance from the
Screening Committee, the Model Code references are sent for the approval of
the Election Commission through the Chief Electoral Officer of that State.

26. SVEEP: Systematic Voters’ Education and Electoral Participation (SVEEP) is
a programme initiated by the Election Commission in 2011 to increase voter
awareness and facilitate electoral participation through voter registration and
turnout in the youths, women, tribal and other marginalized sections of the
society.

27. Threat of Divine Displeasure/Spiritual Censure: Any inducement or
attempt to induce electors to believe that they would become object of divine
displeasure or spiritual censure, if they cast votes or refrain from casting votes in
favour of a particular candidate.

28. Threat of Injury: The most common form of undue influence is to force a
voter to vote or not for a particular candidate, or not to vote in an election at all
by making threats of physical injury in case of any defiance of such dictate. Such
threats of physical injury may not be confined only to the voter concerned but
may also be directed against the third person, like, members of voter’s family or
any relatives or friends.

29. Undue Influence: Undue Influence, a major corrupt practice, implies to any
direct or indirect interference or attempt to interfere on the part of a candidate
or his election agent, with the free exercise of any electoral right. It amounts to a
threatening to any candidates or any elector or any person in whom the candidate
or elector is interested with injury of any kind including social ostracism and
excommunication or expulsion from any caste or community.

30. Vehicle: It means any vehicle used or capable of being used for the purpose
of road transport, whether propelled by mechanical power or otherwise. An
‘office vehicle’ will cover all vehicles belonging to the (i) Central Government,
(ii) State Government/UT Administrations, (iii) Public Section Undertakings
of the Central and State governments, (iv) Joint Sector Undertakings of
Central and State Governments, (v) Local Bodies, (vi) Municipal Corporations,
(vii) Municipalities, (viii) Marketing Boards (by whatever name known), (ix)
Cooperative Societies, (x) Autonomous District Councils or any other body in
which public funds, howsoever small a portion of the total, are invested and
also include those belonging to the Ministry of Defence and the Central Public
Organizations under the Ministry of Home Affairs and State Governments.

When recounting of the vote shall be ordered

the Constitution Bench in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , an Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order XI of Code of Civil Procedure. Inspection of documents under Rule 15 of Order XI of CPC may be ordered of documents which are referred to in the pleladings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents in the possession or power of the other party. The Returning Officer is not a party to an election Petition and an order for production of the ballot papers cannot be made under Order XI of Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interest of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot paper which power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order XI CPC may be exercised, subject to the statutory restriction about the secrecy of the ballot paper prescribed by Sections 94 and 128(1). However, the Constitution Bench has cautioned, by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interest of justice.

It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to.

So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate u/s 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act consistently with its (sic.) cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter, it is the truth as revealed by the result of recounting that has to be given effect to.

The apex Court summarised the law thus:

We have already stated that rigorous rule propounded by the Constitution Bench in Jabar Singh’s case has met with critcism in some of the subsequent decisions of this Court though by Benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh’s case has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh’s case is binding on us. Analysing the majority opinion in Jabar Singh’s case and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under:

(1) In an election Petition wherein the limited relief sought for is the declaration that the election of returned candidate is void on the ground u/s 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions : (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election Petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate.

(2) A recrimination by the returned candidate or any other party can be filed u/s 97(1) in a case where in an election Petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.

(3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election Court shall acquire jurisdiction to do so only on the two conditions being satisfied: (i) the election Petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination Petition u/s 97(1) is filed.

(4) A recrimination Petition must satisfy the same requirements as that of an election Petition in the matter of pleadings, signing and verification as an election Petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Section 117 and 118 of the Act.

(5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case, where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a recount the election Judge finds the result of recount to be different from the one arrived at by the Returning Officer or when the election Judge finds that there was an error of counting the bar is not attracted because of the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or recounting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of Sub-clause (iv), and not Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 100 of the Act.

Similar question was considered by the apex Court in Jibontara Ghatowar (supra), wherein the apex Court held thus:

So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate u/s 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out the true result of the recount though the actual finding as to the validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to.

Before upsetting an election, the Court ought to be satisfied beyond all doubt that the election is void

The law in England is that even ‘if the petitioner claims the seat or office, but the respondent does not oppose the petition, the petition ought to proceed to trial as the rights of the constituency or electoral area are concerned’.

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : M.B. Vishwanath, J )

GULABI POOJARTHI — Appellant

Vs.

SHOBHA — Respondent

C.R.P. No. 857 of 1995

Decided on : 17-07-1995

Karnataka Panchayat Raj Act, 1993 – Section 15, Section 20

Cases Referred

H.V. Venkatesh Vs. Election Officer 2835, (1994) ILR (Kar) 2835 : (1994) 4 KarLJ 680

ORDER

Vishwanath, J

1. Heard both Counsel. It has been laid down by this Court in H.V. Venkatesh Vs. Election Officer 2835, that the decision of the Munsiff in an Election Petition is revisable by this Court u/s 115 CP.C.

2. In this Revision Petition the petitioner in the lower Court has challenged the order passed by the learned Munsiff, Belthangady on 4.1.1995 in Mis.No. 4/1994 filed under Sections 15 and 20 of the Karnataka Panchayat Raj Act, 1993, setting aside the election of the Revision petitioner and declaring the respondent as duly elected.

3. It is clear from the material on record that the Revision petitioner had not filed objections to the Election Petition. The learned Munsiff proceeded to decide the Election Petition on merits even when the Revision petitioner had not filed objections and contested the matter, though represented by a Counsel.

4. ‘Before upsetting an election, the Court ought to be satisfied beyond all doubt that the election is void’. The law in England is that even ‘if the petitioner claims the seat or office, but the respondent does not oppose the petition, the petition ought to proceed to trial as the rights of the constituency or electoral area are concerned’.

5. It is argued by the learned Counsel for the respondent that the impugned order is an order on merits and cannot be set aside. I find it difficult to accept this argument, bearing in mind that the Revision petitioner had not even filed objections. Though the learned Munsiff has purported to pass an order on merits, it does not cease to be an exparte order.

6. I am of the opinion that this is a fit case in which opportunity should be granted to the Revision petitioner to file objections and contest the matter. Accordingly, the impugned order is set aside and the matter is remanded to the learned Munsiff with a direction to give sufficient opportunity to the Revision petitioner to file objections and contest the Election Petition.

7. Revision Petition is accordingly allowed, the impugned order is set aside and the matter is remanded. The Revision petitioner shall pay costs of Rs. 250/- to the petitioner in the lower Court.

Final Result : Allowed

(1995) ILR(Karnataka) 2961 : (1995) 3 KantLJ 514

NOTA can’t be permitted in RS polls, says SC

Date: 21.08.2018

The Supreme Court said the option of none of the above cannot be permitted in Rajya Sabha elections. Held :

NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and
corruption.

Read the original Judgment SC NOTA JUDGMENT

Role of Rajya Sabha vs Role of Upper House in the other Constitutions

The growth of ‘Bicameralism’ in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of ‘Second Chambers’ or Upper Houses of Parliament and better co-ordination between the Central government and those of the constituent units, was perhaps first laid down in definite terms with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the U.S.A., known as the Senate, was theoretically modeled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its composition and powers.Continue Reading

Whether residence or domicile are essential ingredients of structure and composition of the Upper House.

The key question is whether residence was ever treated as a constitutional requirement under Article 80(4). In re: Special Reference No. 1 of 2002 [(2002) 8 SCC 237], it was observed that:

“One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions.”

(ii) Legislative History The Constitution has established a federal system of Government with bi-cameral legislature at the Centre which is not something which was grafted in the Constitution for the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular constituency was considered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules.Continue Reading

Indian Parliament and Fedaralism

Supreme Court of India in Kuldip Nayar vs Union Of India & Ors decided on 22 August, 2006 held :

 

The composition of Parliament India’s Parliament is bicameral. The two Houses along with the President constitute Parliament [Article 79]. The Houses differ from each other in many respects. They are constituted on different principles, and, from a functional point of view, they do not enjoy a co-equal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of adult suffrage. It reflects popular will. It has the last word in matters of taxation and expenditure. The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is constituted by indirect elections. The Council of Ministers is not responsible to the Rajya Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha.Continue Reading