1. Election of a candidate to a State Legislative Assembly — Lack of basic qualification as an elector — Challenge via writ petition under Article 226. (Para 1 , 2 )
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1999 Supreme(SC) 558
SUPREME COURT OF INDIA
D. P. WADHWA, J.
M. N. VENKATACHALIAH
Vs.
A. Swamickan
Decided on April 26, 1999
Important Points
A person who is not an elector in the electoral roll of the Assembly constituency from which he is elected lacks the basic qualification for membership of the Legislative Assembly and is liable to a penalty for sitting and voting as a member when he knows that he is not qualified.
Subject
Election Law - Qualification of Candidate
Act Referred
CONSTITUTION OF INDIA: Art.226, Art.191, Art.173, Art.193, Art.329(b)
REPRESENTATION OF THE PEOPLE ACT: S.5, S.81, S.100
REPRESENTATION OF THE PEOPLE ACT: S.5, S.81, S.100
Headnote
ELECTION LAW - QUALIFICATION OF CANDIDATE - ELECTOR - ARTICLE 173 OF THE CONSTITUTION - SECTION 5 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - ARTICLE 329 (B) OF THE CONSTITUTION - JURISDICTION OF HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION - ARTICLE 193 OF THE CONSTITUTION - PENALTY FOR SITTING AND VOTING WHEN NOT QUALIFIED.
Fact of the Case:
Appellant, Venkatachalam, was elected as a member of the Tamil Nadu Legislative Assembly from the Lalgudi Assembly Constituency in the 1984 general elections. A year after the election, a writ petition was filed by Swamickan, the defeated candidate, alleging that Venkatachalam was not an elector in the electoral roll of the Lalgudi Assembly Constituency and had impersonated another person with the same name to file his nomination. The High Court, in exercise of its jurisdiction under Article 226 of the Constitution, declared that Venkatachalam was not qualified to be a member of the Legislative Assembly and restrained him from functioning as such. Venkatachalam appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the High Court had rightly exercised its jurisdiction under Article 226 of the Constitution in entertaining the writ petition and declaring that Venkatachalam was not entitled to sit in the Tamil Nadu Legislative Assembly. The Court held that Venkatachalam lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of the People Act, 1951, which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The Court further held that Venkatachalam was liable to a penalty under Article 193 of the Constitution for sitting and voting as a member of the Legislative Assembly when he knew that he was not qualified for membership.
Issues: 1. Whether the High Court had jurisdiction under Article 226 of the Constitution to entertain the writ petition challenging the election of Venkatachalam. 2. Whether Venkatachalam possessed the necessary qualification to be elected as a member of the Legislative Assembly from the Lalgudi Assembly Constituency. 3. Whether Venkatachalam was liable to a penalty under Article 193 of the Constitution for sitting and voting as a member of the Legislative Assembly when he knew that he was not qualified for membership.
Ratio Decidendi: 1. The bar under Article 329 (b) of the Constitution to interference by courts in electoral matters does not apply to cases where the election process is complete and the person elected lacks the basic qualification for membership of the Legislative Assembly. 2. A person who is not an elector in the electoral roll of the Assembly constituency from which he is elected lacks the basic qualification for membership of the Legislative Assembly under Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of the People Act, 1951. 3. A person who sits and votes as a member of the Legislative Assembly when he knows that he is not qualified for membership is liable to a penalty under Article 193 of the Constitution.
Final Decision: The Supreme Court dismissed the appeal and upheld the judgment of the High Court declaring that Venkatachalam was not entitled to sit in the Tamil Nadu Legislative Assembly and restraining him from functioning as such. The Court also directed the State government to recover the penalty from Venkatachalam for the days he sat as a member of the Legislative Assembly.
Legal Category Hierarchy
Table of Contents
2. Maintainability of writ petition under Article 226 versus the bar under Article 329(b) of the Constitution and the limitation of election petitions under the Representation of the People Act. (Para 3 , 20 )
3. Article 329(b) bars interference during the election process, but Article 226 remains available to address fundamental constitutional disqualifications and fraud after the process is complete. (Para 12 , 16 , 24 , 26 )
4. The bar under Article 329(b) does not preclude Article 226 jurisdiction to declare a member unqualified if they lack basic constitutional qualifications and the election process is over. (Para 26 )
5. Appeal dismissed — High Court's declaration that the appellant was not qualified to be a member of the Legislative Assembly upheld — Penalty under Article 193 ordered. (Para 27 , 28 , 29 )
6. Does Article 329(b) of the Constitution provide an absolute bar to writ petitions under Article 226 in all electoral matters?
No. While it bars interference during the election process to ensure prompt completion, it does not preclude Article 226 jurisdiction to address fundamental constitutional disqualifications or fraud after the election process is complete. (Para 12 , 16 , 26 )
7. What is the distinction between disqualifications under Article 192 and pre-existing disqualifications?
Article 192 applies only to disqualifications a member becomes subject to after being elected. Pre-existing disqualifications present at the time of nomination cannot be decided by the Governor under Article 192. (Para 21 , 22 , 23 )
8. What are the consequences for a person who sits or votes in the Legislative Assembly while knowing they are not qualified?
Under Article 193 of the Constitution, such a person is liable to a penalty of five hundred rupees for each day they sit or vote, recoverable as a debt due to the State. (Para 6 , 24 , 28 )
( 1 ) DIVISION bench of the High court of Judicature at Madras by its judgment dated 23/04/1986 in Writ Appeal declared that K. Venkatachalam, appellant before us, was not qualified to sit as a member of the Legislative Assembly in Tamil Nadu as he did not possess the basic qualifications prescribed in Clause (c) of Article 173 of the Constitution read with Section 5 of Representation of the People Act, 1951 (for short the Act ). The division bench held that the appellant was not an elector for Lalgudi Assembly Constituency and, therefore, did not possess the necessary qualification to be chosen from that constituency. High court passed the impugned judgment in exercise of its jurisdiction under Article 226 of the Constitution. A single Judge of the High court had, however, earlier dismissed the writ petition challenging the election of the appellant on the ground that it was not maintainable under Article 226 of the Constitution in view of bar contained inclause (b) of Article 329 of the Constitution.
( 2 ) GENERAL elections to the Legislative Assembly in Tamil Nadu were held in December, 1984 and both Venkatachalam, the appellant and Swamickan, respondent were the candidates. In the result declared Venkatachalam was elected. A year after the date of election of Venkatachalam, petition under Article 226 of the Constitution was filed by Swamickan for a declaration that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in question. He also prayed alternatively for writ of quo warran to directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not present any petition calling in question the election of Venkatachalam undersection 81 of the Act. He alleged that Venkatachalam impersonated him for another person of the same name in the electoral roll of Lalgudi Assembly Constituency and thus sworn a false affidavit that he was elector of that constituency. It was alleged that the act of Venkatachalam was fraudulent and a criminal act, which came to be known to Swamickan after he scrutinized the entire electoral roll of the Lalgudi Assembly Constituency.
( 3 ) BY judgment dated 3/12/1985 a learned single Judge of the High court dismissed the writ petition holding that Article 329 (b) of the Constitution was a complete bar when remedy was available under the Act. Aggrieved Swamickan filed writ appeal which, as noted above was allowed by the division bench of the High court by judgment dated 23/04/1986. High court held that it was notpowerless in exercise of its jurisdiction under Article 226 of the Constitution from declaring that the election of Venkatachalam was illegal inasmuch as he did not possess the basic constitutional and statutory qualifications. Aggrieved Venkatachalam got leave to appeal to this court. His main contention has been that having regard to the provisions of Article 329 (b) of the Constitution, High court could not exercise its jurisdiction under Article 226 of the Constitution and further that a writ of quo warranto could not be issued after lapse of one year at the instance of the candidate who was I defeated in the elections.
( 4 ) THERE is no dispute and in fact there is no challenge to the finding of the High court that Venkatachalam was not an elector in the electoral roll for the Lalgudi Assembly Constituency for general elections of December, 1984 and that he in blatant and fraudulent manner represented to be an elector of that constituency while using the similarity in the name of another person. This act on the part of the appellant could well make him face criminal prosecution under laws of the country. High court while giving the declaration against the appellant went into wider issues. It consi
