In Election Commission of India vs Ravishivappa Padasalagi @ Savadi & Others, the Division Bench of Karnataka High Court, while dealing with the issue of Subpoena the Ex- Chief ECI as a witness in the Election Petition, held that Constitutional functionaries or ex-functionaries are not subject to Subpoening, and that a very strong case must be made out for Subpoening the members or ex-members of constitutional bodies.
FACTS
In May 2018, general elections were conducted to elect the 15th Karnataka Legislative Assembly. However, the Speaker disqualified 17 members of the Legislative Assembly, which was challenged in the Supreme Court. To replace the vacancies created by the aforementioned disqualification, the appellant ECI issued the schedule for Bye-Elections in 15 constituencies via Press Note. The extension Notification, on the other hand, was issued for rescheduling the time. As a result, the 2nd respondent in this matter was elected to the Legislative Assembly. The 1st respondent in the subject Election Petition has contested his election. An Interlocutory Application was filed before the Election Court to summon Ex-Chief Election Commissioner of India' as a witness to depose on the circumstances and sufficient cause of the matter in order to prove the invalidity of election postponement.
The present Original Side Appeal is filed under Section 4 of The Karnataka High Court Act, 1961, praying to quash the order of issuance of summons to Ex-Chief Election Commissioner of India.
COURT OBSERVATION
The Division Bench of the Karnataka HC while deciding As to Leave of Appeal relied on the Apex Court Judgment in Jyoti Basu vs Debi Goshal (1982) 1 SCC 691; Whereby the court observed that persons other than who are contemplated under Section 82 of the 1951 Act cannot be joined as parties. As a result, Subpoena issued against the Ex- Chief Election Commissioner would cause a great injustice and enormous hardship.
Further the Court Observed that ordinarily, in civilized jurisdictions functionaries of the constitutional bodies are not subjected to subpoena. A very strong case has to be made out for summoning the members or ex-members of constitutional bodies. Subpoening an official as witness is one thing and summoning of official records, is another. In the former, the exercise of power is circumscribed depending upon the constitutional status and function of the person concerned and in the latter, it is not.
COURT JUDGMENT
The Karnataka HC, while allowing the appeal has held that Constitutional functionaries or ex-functionaries cannot be summoned as witnesses just for askance. The contention that these functionaries do not figure in the “Exemption Class” earmarked by CPC is too feeble a ground for issuing subpoena to them. As a result, impugned order of subpoena qua the Ex-Chief Election Commissioner is set at naught.
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