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2017 Supreme(Pat) 36
IN THE HIGH COURT OF JUDICATURE AT PATNA
Hemant Gupta & Sudhir Singh, JJ.
Uma Kant Yadav, Son of Late Tarni Prasad Yadav and Ors. – Petitioners
Versus
The State of Bihar through the Chief Secretary and Ors. – Respondents
Civil Writ Jurisdiction Case No.10935 of 2015
Decided On : 19-01-2017
For the Petitioner:M/S. Aditya Narain Singh and Kundan, Kumar Sinha, Advocates
For the Respondent: Mr. Bishwa Bibhuti Kumar Singh, A.C. to P.A.A.G. 1.
Legislative competence of State legislature in determining eligibility for elections
Headnote:
Bihar Co-operative Societies Rules - Challenge to Clause 'f' of Rule 23 - Rule 23(1)(f) - Articles 14, 16, 21 of the Constitution of India - Section 66(2)(1) of Bihar Co-operative Societies Act, 1935 - Supreme Court judgments on eligibility for elections - Legislative competence of State legislature
Fact of the Case:
The writ application challenged the validity of Clause 'f' of Rule 23 of Bihar Co-operative Societies Rules, 1959, which made a person ineligible to contest elections if a criminal proceeding relating to any transaction of a registered society is pending against them, in violation of constitutional principles.
Finding of the Court:
The court found that the condition of eligibility in Clause 'f' of Rule 23 was within the legislative competence of the State legislature and not in violation of the Constitution.
Issues: Violation of constitutional principles in Clause 'f' of Rule 23
Ratio Decidendi: The court analyzed the legislative competence of the State legislature and referred to Supreme Court judgments on eligibility for elections to support its finding.
Final Decision: The writ application was dismissed, upholding the validity of Clause 'f' of Rule 23.
Hemant Gupta, J.
1. The challenge in the present writ application is to Clause- ‘f’ of sub rule (1) of Rule 23 of Bihar Co-operative Societies Rules, 1959 inserted by amending on 01.02.1997. The relevant Clause reads as under:-
“Rule 23(1) (f) “a criminal proceeding relating to any transaction of a registered society is pending against him in which cognizance has been taken”.
2. The challenge is on the ground that it is in violation of the principle enumerated in Articles 14, 16 and 21 of the Constitution of India. Clause ‘f’ holds a person guilty or found a person as criminal only because an allegation is made against him of committing a criminal offence relating to any transaction of a registered society without the conclusion of trial of the case.
3. In the writ application, the petitioners have sought to explain the meaning of cognizance to the effect that the cognizance is not the same as framing of the charges.
4. Rule 23(1) has been framed in exercise of power conferred on the State in terms of Section 66 (2) (1) of Bihar Co-operative Societies Act, 1935. It provides that the conditions of contesting elections can be fixed under the Rules. As per Clause-‘f’, if any criminal proceeding relating to any transaction of a registered Society is pending against a person in which cognizance has been taken, then such person is not eligible to contest elections. Since the election is to Co-operative Society, therefore, transaction of a Co-operative Society of which cognizance has been taken is relevant consideration to make the candidate ineligible for contest.
5. The election to any Institution is not a fundamental right. It is a statutory right; therefore, the State Legislative is competent to determine the condition of eligibility. The Supreme Court in a recent judgment reported as Rajbala v. State of Haryana, (2016) 2 SCC 445 was considering the categories of a person, who is incapable to contest the Panchayat Elections. One of the eligibility of the conditions was in respect to a person who did not possess the educational qualification. After considering the judgments reported as AIR 1952 SC 64 (N.P. Ponnuswami v. Returning Officer); 1982 (1) SCC 691 (Jyoti Basu Vs. Debi Ghoshal) and other judgments, concluded as under:
40. The next question is-whether such constitutional rights exist in the context of elections to the panchayats? Having regard to the scheme of Part IX of the Constitution, the purpose Bhanumati V. State of U.P., (2010)12 SCC 1, p. 14, para 33 for which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any reason to take a different view.
41. On the other hand, this Court in Javed v. State of Haryana (2003) 8 SCC 369, held that: (SCC p. 384, para 22)
“22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in panchayat may be said to be a constitutional right…”
42. We need to examine contours of the two rights, i.e. the right to vote (to elect) and the right to contest (to get elected) in the context of elections to Panchayats. Part IX of the Constitution does not contain any express provision comparable to Article 326 nor does it contain any express provisions comparable to Articles 84 and 173. The text of Article 326 does not cover electoral rights with respect to panchayats. Therefore, the following questions arise:
42.1. (i) Whether a non-citizen can become a voter or can contest and get elected for panchayats?
42.2.(ii) In the absence of any express provision, what is the minimum age-limit by which a person becomes entitled to a constitutional right either to become a voter or get elected to panchayats?
42.3 (iii) Are there any constitutionally prescribed qualifications or disqualifications for the exercise of such rights?
42.4. (iv) Questions (i) and (ii) do not arise on the facts of the pr
