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GAUHATI HIGH COURT
D. N. BARUAH, J, J.
Chandan Kumar Sarkar -Appellant
Versus
Chief Election Commissioner, New Delhi and others -Respondent
Civil Rule No, 1157 of 1994
Decided On : 16-09-1994
ELECTION - Power of Election Commission - Scope and ambit of Art. 324 of the Constitution - Plenary power of the Election Commission - Jurisdiction of the Election Commission to decide the legality and validity of an election - Ban on interference by courts in electoral matters under Art. 329(b) of the Constitution.
Fact of the Case:
The petitioner, a member of the Legislative Assembly, was returned from a constituency reserved for scheduled caste. He submitted his nomination paper as a candidate of Indian National Congress (I) and the nomination paper was accepted by the Returning Officer. No objection was raised by any candidate or their election agents against the nomination and the Returning Officer found the nomination paper valid. After the declaration of the result, no election case was filed against the petitioner. Subsequently, a memorandum was submitted to the Election Commissioner stating that the petitioner was not a member of the scheduled caste community and had obtained the certificate fraudulently by misrepresentation of facts. The Election Commission directed the State Government to conduct an enquiry into the allegations. The report of the enquiry suggested that the petitioner did not belong to the scheduled caste community. The Election Commission then issued an order making requests to various authorities, including the Speaker of the State Legislative Assembly, to take action.
Finding of the Court:
The Election Commission has the power of "superintendence", "direction" and "control" of the preparation of electoral rolls and the conduct of elections under Art. 324(1) of the Constitution. However, this power is subject to any law made by Parliament or the State Legislature under Arts. 327 and 328 respectively. The Election Commission also has plenary power to deal with situations not covered by any law made under Arts. 327 and 328. However, this plenary power is restricted to the purpose of preparation and holding of elections only. The Election Commission does not have the power to decide the legality and validity of an election after the declaration of the result. Any dispute regarding the validity of an election can only be challenged by way of an election petition under Art. 329(b) of the Constitution.
Issues: 1. Whether the Election Commission has the jurisdiction to decide the legality and validity of an election after the declaration of the result? 2. Whether the Election Commission can make requests to various authorities to take action in relation to an election after the declaration of the result?
Ratio Decidendi: 1. The Election Commission does not have the jurisdiction to decide the legality and validity of an election after the declaration of the result. Any dispute regarding the validity of an election can only be challenged by way of an election petition under Art. 329(b) of the Constitution. 2. The Election Commission cannot make requests to various authorities to take action in relation to an election after the declaration of the result. The Election Commission's power to make requests is restricted to the purpose of preparation and holding of elections only.
Final Decision: The petition was allowed and the impugned order of the Election Commission was set aside.
ORDER:-Petitioner, at present a member of Legislative Assembly, was returned from 35-Abhayapuri Assam Legislative constituency. This 35-Abhayapuri Assam Legislative constituency is reserved constituency for scheduled caste. The petitioner submitted his nomination paper as a candidate of Indian National Congress (I) before the Returning Officer, North Salmara, Abhayapuri Sub-Division. The nomination paper was scrutinised and the Returning Officer found it in order. During the scrutiny of the nomination paper no objection was raised by any of the candidate or their election agents against the nomination and the Returning Officer found the nomination paper valid and accepted the same thereby it was also accepted that the petitioner was a member of Scheduled Caste community i.e. Namasudra.
2. After declaration of the result no election case was filed against the petitioner. The petitioner thus became an M. L. A. The 6th respondent, thereafter, submitted a memorandum dated 20-12-93 to the lst respondent stating, inter alia, that the petitioner was not a member of scheduled caste community. His father Bijoy Chandra Sarkar was living at the village Jateswar, Police Station Falakata, District Jalpaiguri, West Bengal. The Pradhan of Jateswar II Gaon Panchayat had written that he was a Kayastha by caste The 6th respondent further stated in the said memorandum that though the petitioner was not a member of scheduled caste, he became a member of the Legislative Assembly from 35Abhayapuri constituency, reserved for scheduled caste. Besides, by virtue of the membership of the Assam Legislative Assembly, the petitioner had successfully got himself nominated to the Office of the Chairman of Assembly Committee on welfare of scheduled caste and scheduled tribes as well as a member of the Board of Directors of Assam State Development Corporation for Scheduled Caste Ltd. which he was otherwise not competent to hold. The 6th respondent requested, by the said memorandum, the Election Commissioner to take appropriate action and declare the election of the petitioner invalid under the law and to arrange for a fresh election. In the said memorandum the 6th respondent also stated that the petitioners name appeared in two constituencies, namely, 35-Ahhayapuri constituency in Assam and in 13 Falakata Legislative Assembly constituency, West Bengal. According to the 6th respondent his name could not appear in two constituencies.
3. On receipt of the memorandum, the 5th respondent directed that a thorough enquiry be made into the allegations and asked for a detailed report thereon. On receipt of the said direction from the 5th respondent, the State Government had asked Shri C. K. Das, Commissioner and Secretary, Revenue to conduct an enquiry into the allegations. Said Sri Das submitted a report to the Secretary to the Government of Assam, Political (B) Department on 10th February, 1994.
4. In the report the Commissioner and secretary Shri Das stated that the petitioner had produced a copy of the certificate issued by the District Magistrate / Deputy Commissioner of Bongaigaon dated 13-1-90 also some other certificate, viz., a certificate issued by the Chief Executive Councilor of Coalpara Mahkuma Parishad dated 15-1-83, countersigned on behalf of the then Sub-Divisional Officer, Coalpara, a scheduled caste certificate issued in the name of the petitioners father Bijoy Chandra Sarkar by the then M. L. A. of Abhayapuri South(S.C. constituency) dated 2-2-88. During that period as per the provisions of R. 3 of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Service and Post) Rules, 1983, a scheduled caste M. L. A. was authorised to issue caste certificate within the jurisdiction of the District which the M. L. A. represented.
5. By a letter dated 7-2-94 one Ratneswar Sarkar an Ex-M. L. A. and then President of North Salmara District "Anususit Jati Parishad" had given in writing that the above mentioned caste certificates were
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