( 1 ) JAWAHIR Singh has filed this writ petition under Art. 226 of the Constitution of India with the prayers that :- (i) quash order dated 28-8-1997 issued by the Election Commission of India (Annexure 1) (ii) a mandamus should go commanding respondents to issue appropriate direction to all the Returning Officer of the State to ignore the direction contained in order dated 28-8-1997 (Annexure 1) while deciding objection at the time of scrutiny of nomination papers and a further direction not to reject any nomination of a candidate who has been convicted but his appeal is pending and he is enlarged on bail in the course of elections to the Lok Sabha etc. (iii) declare Section 8 (3) of the Representation of People Act, 1951 ultra vires the Constitution.

( 2 ) SRI Sandip Saxena has put in appearance on behalf of the respondents namely, Election Commission of India and the Union of India.

( 3 ) SRI P. M. N. Singh, learned counsel for the petitioner, has placed the averments made in the writ petition and two decisions reported in AIR 1961 Punjab 178 Dhanji Ram Sharma v. Union of India and AIR 1971 SC 330, Manni Lal v. Parmai Lal. It may be mentioned that Shri Singh has argued the matter with ability.

( 4 ) ARTICLE 324 of the Constitution of India has created the apex-election authority by the name of Election Commission. The entire Chapter deals with the provisions relating to the elections that may be conducted from time to time in our Country be it for the Parliament or the State Legislature. The very first sub-Article of Art. 324 begins with words that"the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under the Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission ). "

( 5 ) THE Election Commission is to be headed by a Chief Election Commissioner and, therefore, in the very nature of the thing it is within the powers of the Election Commissioner to issue directions as he thinks necessary for carrying out the constitutional obligation placed upon him.

( 6 ) THE aforesaid Circular dated 28-8-1997, summarised only to highlight the arguments of Sri Singh, would read as under :-ORDER Subject : Criminalisation of Politics -- participation of criminals in the electoral process as candidates -- disqualification on conviction for offences-effect of appeal and bail-regarding. Whereas, the country is facing the serious problem of criminalisation of politics in which criminals, i. e. persons convicted by Courts of law for certain offences, are entering into election fray and contesting as candidates; andwhereas, Section 8 of the Representation of the People Act, 1951 lays down the conditions under which a person would be disqualified on grounds of conviction. . . . . . . . . . . . Whereas. . . . . . . . . . . . . . . . . . . . Whereas. . . . . . . . . . . . . . . . . . . . . (the exact wordings are omitted because in these three paragraphs the wordings of sub-section (1), (2) and (3) of Section 8 of R. P. Act have been referred to ). Whereas, sub-section (4) of of Section 8 of the Representation of the People Act, 1951 states that none of the above mentioned disqualification will take effect in case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, till three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court; and Whereas it has been observed that even those persons who are not the sitting members of Parliament or State Legislature on the date of conviction, contest election if they have filed an appeal or application for revision and have been granted bail during pendency of such ap

Click Here to Read the rest of this document