K.A. Jaison v. Election Commission of India & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WP(C).No.25790 OF 2020(W)** **PETITIONER:** **K.A.JAISON, AGED 52 YEARS S/O. ANTONY, KARAKKATTU HOUSE, CHARAL P.O, KANNUR 670 706** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA** ## **RESPONDENTS:** - **1 ELECTION COMMISSION OF INDIA REPRESENTED BY CHIEF ELECTION COMMISSIONER OF INDIA, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI 110 001** - **2 CHIEF ELECTION COMMISSIONER OF INDIA, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI 110 001** - **3 STATE ELECTION COMMISSION, REPRESENTED BY STATE ELECTION COMMISSIONER, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033** - **4 STATE ELECTION COMMISSIONER, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033** - **5 RETURNING OFFICER, AYYANKUNNU GRAMAPANCHAYAT, KANNUR DISTRICT 670 704** - **6 ASSISTANT RETURNING OFFICER, AYYANKUNNU GRAMAPANCHAYAT, KANNUR DISTRICT 670 704** **R3-4 BY SHRI.MURALI PURUSHOTHAMAN, SC, KSEC SRI. C.M. NAZAR SPL GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** W.P.(C) No.25790 of 2020 ..2.. ## **P.B.SURESH KUMAR, J.** **-----------------------------------------------** ## **W.P.(C) No.25790 of 2020** **-----------------------------------------------** **Dated this the 25th day of November, 2020** ## **J U D G M E N T** The petitioner has submitted nomination for the election to Ayyankunnu Grama Panchayat from Ward No.2. The nomination submitted by the petitioner has been rejected by the Returning Officer as per Ext.P6 order holding that the petitioner has not signed on the oath taken by him before the Returning Officer at the time of submission of the nomination. The case of the petitioner is that it was the duty and responsibility of the Returning Officer to obtain his signature in the oath, and the rejection of the nomination of the petitioner for the reason not attributable to him, but attributable solely to the Returning Officer cannot be a ground to reject the nomination of the petitioner. The petitioner, therefore challenges Ext.P6 order on that ground in this proceedings. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the State Election Commission. 3. The learned Standing Counsel for the State W.P.(C) No.25790 of 2020 ..3.. Election Commission has raised a preliminary objection as to the maintainability of the writ petition. According to him, in the light of Article 243-O(b) of the Constitution, the writ petition is not maintainable. 4. Article 243-O of the Constitution reads thus: ## “ **243-O. Bar to interference by Courts in electoral matters.** — Notwithstanding anything in this Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” It is seen that the question whether the jurisdiction of the High Court under Article 226 of the Constitution could be invoked to challenge an improper rejection of a nomination paper, while the election is in progress, has been answered in the negative by a Constitution Bench of the Apex Court in **N.P. Ponnuswami v. The Returning Officer** , **Namakhal Constituency, Namakkal, Salem Dist** [AIR 1952 SC 64], in the context of the _pari materia_ provision in Article 329(b) of the Constitution, holding that irregularities vitiating the W.P.(C) No.25790 of 2020 ..4.. election cannot be made the subject matter of a dispute before any court while the election is in progress. In **Mohinder Singh Gill and another v. The Chief Election Commissioner** , **New Delhi and others** [AIR 1978 SC 851], another Constitution Bench of the Apex Court however demarcated the area which is available for interference by the High Court under Article 226 of the Constitution. The relevant passage of the judgment dealing with the same reads thus: "But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrary wise. For example, after the President notifies the nation on the holding of elections under S.15 and the Commissioner publishes the calender for the poll under S.30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the Court's review of that order will facilitate the flow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all." In **Manda Jaganath v. K.S.Rathnam and thers** [AIR 2004 SC 3600], after referring to **Mohinder Singh Gill,** the Apex Court W.P.(C) No.25790 of 2020 ..5.. held, in the context of a decision taken by the Returning Officer in declining to allot to a candidate the symbol reserved for his political party, that the question whether the Returning Officer is justified in taking such a decision is not a matter for the High Court to decide in exercise of its writ jurisdiction. Paragraph 12 of the judgment in the said case dealing with the said conclusion reads thus: **12** . In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. After arriving at the conclusion aforesaid, referring to the passage from **Mohinder Singh Gill** extracted above, the Apex Court has explained in **Manda Jaganath,** the scope of interference under Article 226 of the Constitution thus: "Of course, what is stated by this Court hereinabove is not exhaustive of a Returning Officer's possible erroneous action which are amenable to correction in the writ jurisdiction of the Courts. But the fact remains that such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the Courts under Art.226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only." W.P.(C) No.25790 of 2020 **==> picture [20 x 8] intentionally omitted <==** In the light of Article 243-O(b) of the Constitution and the decisions of the Apex Court referred to above, I am of the view that only if the impugned decision/action has the effect of interfering in the free flow of the scheduled election or hinder the progress of the election, this court would be justified in entertaining the writ petition. The case on hand does not satisfy the aforesaid requirement of law. The writ petition, in the circumstances, is closed without prejudice to the right of the petitioner to challenge the decision impugned in the writ petition in an election petition instituted in accordance with the relevant statute. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** ds ..7.. W.P.(C) No.25790 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOMINATION FORM EXHIBIT P2 TRUE COPY OF THE RECEIPT AND NOTICE OF SCRUTINY REGARDING NOMINATION PAPER NO. ARO GO69/II(6) DATED 19-11-2020 ISSUED BY THE 6TH RESPONDENT** **EXHIBIT P2A TRUE COPY OF THE RECEIPT AND NOTICE OF SCRUIINY REGARDING NOMINATION PAPER NO. ARO GO69/II(7) DATED 19-11-2020 ISSUED BY THE 6TH RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE FORM OF OATH EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 2011-2020 ISSUED BY THE 6TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE DECISION OF THE RETURNING OFFICER DATED 20-11-2020 WITH RESPECT TO NOMINATION NO. ARO G.069/2(60** **EXHIBIT P6 TRUE COPY OF THE DECISION OF THE RETURNING OFFICER DATED 20-11-2020 WITH RESPECT TO NOMINATION NO. ARO G. 069/(7)** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 20-11-2020 SUBMITTED BY THE PETITIONER WITH RESPECT TO NOMOINATION NO. ARO G.069/2(6)** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 20-11-2020 SUBMITTED BY THE PETITIONER WITH RESPECT TO NOMINATION NO.ARO G 069/2(70** **EXHIBIT P9 TRUE COPY OF THE DOCUMENT PRINTED FROM THE OFFICIAL WEBSITE OF THE 4TH RESPONDENT FROM THE LINK** W.P.(C) No.25790 of 2020 ..8.. **HTTP//SEC.KERALA .GOV. IN/INDEX.PHP/CONTENT/INDEX/ELECTIONOFFICIALS** **EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGES OF THE HANDBOOK FOR THE RETURNING OFFICER**