Calcutta High Court (Appellete Side)
Gopal Seth vs Election Commission Of India And Others on 8 December, 2023
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No.16089 of 2023
Gopal Seth
Vs.
Election Commission of India and others
For the petitioner : Mr. Kishore Dutta,
Mr. Sanjib Dutta,
Mr. Anindya Sundar Chatterjee
For the respondent nos.1 & 2 : Mr. Anuran Samanta
For the State : Mr. Sk. Md. Galib,
Ms. Sujata Mukherjee
For the private respondent : Mr. Arindam Paul
Hearing concluded on : 29.11.2023
Judgment on : 08.12.2023
Sabyasachi Bhattacharyya, J:-
1. The petitioner is a valid voter of the State of West Bengal and has
challenged the election of respondent no.14 to the West Bengal
Assembly in the 2021 elections. The moot question which has been
raised is whether the respondent no.14 faked his educational
qualification while participating as a candidate in the said elections.
2. The elections were held between March 27, 2021 to April 29, 2021.
The petitioner made an application seeking information under the
Right to Information Act from the concerned Authorities and received
a reply on April 14, 2021 regarding the academic qualification of the
private respondent. Immediately on April 15, 2021 a complaint was
lodged to the Chief Election Commission of India.
3. Allegedly, thereafter, a complaint was also registered before the
Returning Officer on May 2, 2021 which is, of course, after the
election was over. On the complaint to the Election Commission of
India (ECI), the petitioner was asked to wait vide e-mails dated April
18, 2021 and May 3, 2021 issued by the ECI. It is, thus, submitted
that the petitioner complained during the election itself. Since the ECI
asked the petitioner to wait but did not take steps indefinitely, the
petitioner after waiting for a considerable period has preferred the
instant challenge.
4. It is argued that although a previous election petition of one Alo Rani,
also challenging the election of the private respondent, was dismissed.
Such dismissal was only on the ground that the writ petitioner therein
was a Bangladeshi citizen and there was no adjudication on merits on
the issue involved.
5. The petitioner submits that as a voter of the same electorate, that is,
the State of West Bengal, although of a different constituency than the
private respondent, the petitioner has every right to point out an
irregularity in the election of the private respondent.
6. Learned senior counsel for the petitioner argues that under Article
192 of the Constitution of India, if any question arises as to whether a
member of a House of the Legislature of a State has become subject to
any disqualifications mentioned in Clause (1) of Article 191, the
question shall be referred for the decision of the Governor and his
decision shall be final. The Governor, before giving the decision, is to
obtain the opinion of the Election Commission and to act according to
such opinion. Since the petitioner approached the ECI in time and
the ECI asked the petitioner to wait for its adjudication, it is
submitted that the provisions of Article 192 are attracted.
7. Under Article 191(1)(e) a person shall be disqualified for being chosen
as and for being a member of the Legislative Assembly if he is so
disqualified by or under any law made by Parliament.
8. Learned senior counsel argues that the "law" referred to in Article
191(1)(e) is the Representation of the People Act, 1951 (hereinafter
referred to as, "the 1951 Act").
9. In Section 146 of the same, the powers of the ECI to hold enquiry in
connection with tendering any opinion to the President under Article
192 have been enumerated, conferring powers equivalent to the Civil
Court on the ECI in some respects.
10. Learned senior counsel for the petitioner relies on Section 7(b) of the
1951 Act which defines "disqualified" as disqualified for being chosen
as and for being a member inter alia of the Legislative Assembly under
the provisions of the said Chapter.
11. Section 36(4) of the 1951 Act provides that at the time of scrutiny of
nomination, the Returning Officer shall not reject any nomination
paper on the ground of any defect which is not of substantial
character. In the present case, the fraud practiced on the electorate
and the Election Commission by the private respondent, it is argued,
tantamounts to a defect of substantial character disqualifying the
respondent no.14 from getting elected and being a member of the
Legislative Assembly.
12. Section 100(1)(d)(i) of the Act of 1951 provides that if the High Court is
of the opinion that the result of the election insofar as it concerns a
returned candidate has been materially affected by the improper
acceptance of any nomination, the High Court may declare the
election of the returned candidate to be void.
13. It is submitted that under the said provision, this Court ought to
declare that the submission of nomination of the respondent no.14
was void, thus, disqualifying him from continuing as a member of the
Legislative Assembly.
14. Learned senior counsel also cites Section 125A of the 1951 Act which
provides for penalty for filing false affidavit and furnishing false
information, etc.
15. Learned senior counsel next cites Rules 4 and 4A of the Conduct of
Election Rules, 1961 (for short, "the 1961 Rules") which deal with
nomination paper.
16. It is, thus, argued that the respondent no.14 be declared to be
disqualified, his election to the Legislative Assembly itself being void.
17. Learned counsel for the ECI argues that no prayer has been made as
such against the ECI and the writ petition is not maintainable against
the ECI. It is next submitted that the petitioner did not contest the
vote and is not a returned candidate; hence, he has no locus standi to
prefer the instant challenge.
18. The private respondent being a returned candidate and no dispute
regarding his election having been raised by the other candidates at
the relevant juncture, it is contended that the writ petition ought to be
dismissed.
19. It is argued on behalf of the private respondent that Alo Rani, a
returned candidate, had previously preferred a writ challenging the
private respondent‟s election which was dismissed on August 13,
2021. An appeal preferred against the same was also dismissed. It is
argued that the petitioner is a fence-sitter, having waited for two years
awaiting the outcome of the challenge preferred by Alo Rani, and has
only preferred the instant writ petition after Alo Rani became
unsuccessful.
20. The challenge sought to be made now, it is argued, was to be made
before the appropriate authority by way of an election petition. Once
the election process starts, the ECI has no role to play.
21. It is also argued by the private respondent that no receipt has been
annexed to the writ petition regarding the alleged complaint to the
Returning Officer.
22. For deciding the present challenge, the first provision which is to be
looked into is Article 191 of the Constitution. Clause (1)(e) of the said
Article stipulates that a person shall be disqualified for being chosen
as and for being a member of the Legislative Assembly of a State if he
is so disqualified by or under any law made by Parliament.
23. The powers of the Governor follow, to the extent that if any such
question arises as to whether a member of a House of the Legislature
of a State has become subject to any of the disqualifications
mentioned in Clause (1) of Article 191, the question shall be referred
for the decision of the Governor and his decision shall be final.
24. Clause (2) of Article 192 only enumerates that before giving a decision
on such question, the Governor shall obtain the opinion of the
Election Commission and shall act according to the same. Section 146
of the 1951 Act provides the modalities and procedure for enquiry by
the ECI to give such opinion.
25. Thus, Article 192 is dependent on whether a question arises at all for
disqualification of membership of an MLA under Article 191. Since
the petitioner has only relied on Clause (1)(e) of the said Article, we are
restricted to enquire into whether any question of disqualification
arises under the concerned law made by Parliament, that is, the 1951
Act.
26. The term "disqualified" as per Section 7(b) of the 1951 Act means
disqualified for being chosen as and for being a member, inter alia, of
the Legislative Assembly of a State. However, the said definition is
qualified by the phrase "under the provisions of this Chapter, and no
other ground". Thus, by virtue of the Amendment of 2013 to the 1951
Act, which has been given effect from July 10, 2013, the
disqualification contemplated in Section 7(b) is restricted to the
provisions of Chapter III and on no other grounds.
27. Under Chapter III, Sections 8 to 11 are arrayed. Section 8 relates to
conviction on certain offences, Section 8A to corrupt practices. There
has been no known conviction of the private respondent, nor has any
such conviction been alleged.
28. Insofar as corrupt practices is concerned, Section 2(1)(c) of the 1951
Act defines „corrupt practice‟ as that provided under Section 123 of the
Act. Section 123 of the Act, in sub-section (4), contemplates as a
corrupt practice the publication by a candidate or his agent or by any
other person with the consent of a candidate or his election agent of
any statement of fact which is false and which he either believes to be
false or does not believe to be true in relation to the personal
character or conduct of any candidate or in relation to the candidature
or withdrawal of any candidate, being a statement reasonably
calculated to prejudice the prospects of that candidate‟s election.
Educational qualification, even if construed to be a sufficient factor to
prejudice the prospects of the candidate‟s election, could not be said
to have been published by the candidate in the present case. The
petitioner has not made any allegation of any publication by the
candidate or his agent regarding his educational qualification. Thus,
corrupt practices are also ruled out in the present case. The other
provisions of Section 123 are also not applicable in any manner.
29. Section 9 under Chapter III of the 1951 Act speaks about dismissal
from Government service for corruption and disloyalty, Section 9A of
subsistence of Government contracts, Section 10 of the Managing
Agent, Manager or Secretary of office under Government company,
none of which is applicable to the private respondent here. Section
10A provides for failure to lodge account of election expenses, which is
also not applicable. Section 11, the last Section in Chapter III of the
1951 Act, provides that the Election Commission may, for reasons to
be recorded, remove any disqualification under the Chapter or reduce
the period of any such disqualification.
30. Thus, the private respondent cannot be said to satisfy any of the
conditions of disqualification under Chapter III of the 1951 Act, which
are the only grounds to disqualify him as per Section 7(b). Hence, on
the face of it, the „disqualification‟ as envisaged in Article 191(1)(e) of
the Constitution of India does not apply in the present case.
31. Section 36(4) is on an entirely different footing. It speaks about the
scrutiny of nomination on the date fixed for such purpose. Sub-
section (1) of Section 36 provides that on the said date, the
candidates, their election agents, one the proposers of each candidate
and one other person duly authorised in writing by each candidate
but no other person may attend. By necessary implication, it is the
said persons only who have the right to lodge a complaint before the
Returning Officer. Hence, the question of applicability of Section
36(4), regarding rejection or non-rejection by the Returning Officer for
defect of substantial character does not arise in the present case at
all, since the petitioner is not a person mentioned in Section 36(1).
32. The other Section which has been sought to be placed by the
petitioner is Section 100 of the 1951 Act. Learned senior counsel for
the petitioner has relied on Section 100(1)(d)(i) which provides that the
High Court, if of the opinion that the result of the election concerning
a returned candidate has been materially affected by the improper
acceptance or any nomination, the High Court shall declare the
election of the returned candidate to be void.
33. The said Section, as per its caption, provides grounds for declaring the
election itself to be void and generally does not pertain to a particular
candidate. However, if we look at Section 100(1)(d)(i), the High Court
may declare the election of the particular returned candidate to be
void if it is of the opinion that the result of the election insofar as it
concerns the said candidate has been materially affected by the
improper acceptance of any nomination.
34. The expression "improper" in the said Section acquires utmost
relevance here. The impropriety pleaded by the petitioner is alleged
false declaration of his age by the private respondent. The petitioner
seeks to substantiate his allegations solely on the basis of an
information obtained from the Headmaster and Secretary of the
Mondal Para High School where the private respondent allegedly
studied. In the document containing such information, we find that
the Head Master writes that there is no record/information about the
private respondent in the Admission Register of the school. On the
assumption that as per the application of RTI of the petitioner, the
present age of the private respondent was 39, the date of birth of the
said candidate was taken to be 1982 and the expected year of
admission in Class V to be 1990-92. The records of the Admission
Register of the students of the school for the academic years 1989-90
to 1995-96 showed no record of studentship of the private respondent.
However, mere production of such document before the writ court,
without anything else, is utterly insufficient to come to the serious
conclusion that the private respondent faked his educational
qualification. It is only a competent Criminal Court which upon
proper trial and adduction of evidence can arrive at the finding that
there is sufficient material to show that the private respondent
practised fraud on the ECI and the electorate. In criminal cases, the
standard of proof is beyond reasonable doubt. The document which
has been produced, in the absence of any corroborative material, is
insufficient to clinch the said allegation against the private respondent
beyond reasonable doubt. In the least, the said document is to be
proved by its author in a proper trial and the right of cross-
examination to be afforded to the accused.
35. There is a larger issue which is required to be considered here. In a
country like ours, where the vast majority of the people are
uneducated if not illiterate, it is debatable whether educational
qualification per se can be a test for the legitimacy of candidature of a
person. Let it be understood clearly that this is not to denigrate or
alleviate the intrinsic worth of education or the essential requirement
of education for a country to flourish and for an individual to stand up
for his rights. However, at the end of the day, mere educational
qualification is not one of the essential criteria which is required to be
satisfied by a candidate to vote or be elected. An uneducated
electorate has the right to elect one of them as their representative in
the State Legislative Assembly. Hence, seen from such perspective, it
cannot be said that even if there was some irregularity in the
declaration regarding educational qualification of the private
respondent, the same would be regarded as "improper acceptance of
any nomination" to vitiate his election itself. Even if we read Section
100 with Section 36(4), a nomination paper may not be rejected on the
ground of any defect which is not of a substantial character.
Educational qualification, not being an essential criterion for getting
elected, would not be a defect of a substantial character.
36. More importantly, as held earlier, Section 36 questions can be raised
only at the juncture of scrutiny of nomination and by the persons as
mentioned in sub-section (1) of Section 36. The petitioner, not being
one of such persons, was in the first place not entitled to raise such
challenge at all. Thus, the texture of Section 36(4) cannot and ought
not to be borrowed while construing Section 100(1)(d)(i).
37. In such view of the matter, I do not find that the disqualifications as
contemplated in Chapter III of the 1951 Act, read in the light of Article
191(1)(e) of the Constitution of India, to be satisfied in the present
case.
38. Insofar as Article 190 is concerned, Clause (3)(a) stipulates that if a
member of a House of the Legislature of a State become subject to any
of the disqualifications mentioned in Clause (1) or Clause (2) of Article
191, his seat shall thereupon become vacant. Thus, Article 190 also
refers back to a disqualification under Article 191.
39. However, in the light of the discussions above, none of the criteria for
disqualification of the private respondent as an election candidate or
as a member of the West Bengal Legislative Assembly has been made
out in the present case.
40. Hence, WPA No.16089 of 2023 is dismissed on contest without any
order as to costs.
41. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
