Entry made in the Electoral Ball of a voter cannot be questioned except by the prescribed procedure.

The Honourable Chief Justice.

This writ petition has been originally filed seeking a writ of quo warranto to declare that the 1st respondent i.e, Mr.T.T.V.Dinakaran as being disqualified to be a member of the Lok Sabha representing 75 Periyakulam Constituency in Theni District of State of Tamil Nadu, and consequently, for a direction to the Election Commission of India to declare that the above Lok Sabha seat as vacant. During the course of argument when it was pointed out that the writ of quo warranto does not lie and the writ petition is liable to be dismissed on that ground, Dr.Subramanian Swamy has sought to amend the prayer in the writ petition seeking a mandamus to declare the election of the 1st respondent as null and void, and on allowing the said plea of amendment, again arguments were heard.

2. The first respondent is Mr. T.T.V. Dinakaran, who has been elected as a Member of Parliament from Periyakulam Constituency in the Lok Sabha elections during the year 1999. The second respondent is the Election Commission of India and the third respondent is the Secretary General of Lok Sabha. The last date for filing nomination was 24.8.1999 and the election was held on 11.9.1999.

3. The case of the petitioner, who is a renowned politician and statesman Dr. Subramanian Swamy, is that the first respondent was not a Resident of India and had declared his status as Non-Resident Indian staying in Singapore and as such, he was ineligible to contest the election. He has appeared as a party-in-person and made elaborate submissions that the first respondent has got business interests in Singapore, that he is a Director of some companies and holds a Non-Resident Indian status in Singapore and that a Non - Resident Indian cannot contest election, as the prerequisite for being a voter and a contestant is the residence in India and not outside the country. Dr. Subramanian Swamy invokes the provision contained in Article 102 (1) (d) of the Constitution for disqualifying the first respondent from continuing him further as a Member of Lok Sabha. The above Article reads,

"A person shall be disqualified for being chosen as and for being a Member of either Houses of Parliament if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign state."

He also refers to Sections 16 and 19 of the Representation of People Act, 1950 as also the Handbook for Chief Electoral Officers and page 273 of the book 'How India Votes - Election Laws, Practice and Procedure (First Edition)' by V.S. Rama Devi and S.K. Mendiratta. Section 16 (1) (a) of the Representation of People Act deals with disqualification for registration in electoral rolls and reads,

'A person shall be disqualified for registration in electoral roll if he is not a citizen of India............."

Section 19 prescribes conditions of registration and one of the said conditions being that a person should ordinarily be a resident in a constituency. Section 20 (1) of the Act says that a person cannot be called an ordinary resident of a place merely because he owns or is in possession of a dwelling house in a constituency. Paragraph 5.1 of the Handbook also explains that the persons, who have gone out of the country for business or employment, should be treated as having moved out of that place and mere ownership or possession of a building or other immoveable property will not bestow on the owner, the residential qualification. Page 273 of the book 'How India Votes - Election Laws, Practice and Procedure (First Edition)' also mentions,

"It deserves to be specially noted that only those Indian citizens living abroad are eligible to be enrolled as electors in India who are employed under the Government of India for they are required to live abroad in public interest. Other Indian citizens, who are living abroad on their own volition in their own private interest are not eligible to be enrolle