IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:21/12/2005
CORAM
THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN
AND
THE HON'BLE MR.JUSTICE M.THANIKACHALAM
W.P.NO.18782 OF 2005
AND
W.P.M.P.NO.32943 OF 2005
All India Anna Dravida
Munnetra Kazhagam
represented by Party Election
Wing Secretary, 226/275,
Avvai Shanmugam Salai
Royapettah, Chennai 600 014 ..Petitioner
-Vs-
1.The Chief Election Commissioner
Election Commission of India
Nirvachan Sadan
New Delhi 110 001
2.The Chief Electoral Officer
Public (Elections) Department
Chennai 600 009 ..Respondents
Prayer: Writ petition under Article 226 of the Constitution of India
praying to issue a writ of mandamus forbearing the respondents herein or their
subordinates or their agents or their men or anyone acting or claiming to act
on their behalf from taking any legal action against the functionaries of the
petitioner party in having forwarded the claims made by individual applicants
in Form-6 of the Registration of Electors Rules, 1960, either under the
Representation of the People Act, 1950 or any other Statutory provision.
!For Petitioner : Mr.N.Jothi, for
: assisted by Mr.L.P.Shanmugasundaram
: Mr.A.Kandasamy
For Respondent 1 : Mr.G.Rajagopalan, SC for
: M/s.G.R.Associates
For Petitioner in: Mr.R.Viduthalai, SC for
WPMP.No.32943/05 : M/s.A.V.Bharathi
:ORDER
(Order of the court was delivered by
Justice R.Balasubramanian)
The petitioner is a political party. The relief prayed for in the
writ petition is that, against none of the functionaries of the petitioner
political party, legal action be taken on the role of each of such
functionaries in having forwarded the claims made by individual applicants in
Form-6 of the Registration of Electors Rules, 1960, hereinafter referred to as
“the Rules”. In other words, if it is found that there is any falsity in
Form-6 of individual applicants submitted in bulk by any of the functionaries
of the petitioner political party as authorised by the Election Commission,
such functionaries shall not be proceeded against legally.Mr.N.Jothi learned
counsel appearing for the petitioner took us through section 31 of the
Representation of the People Act, 1950, hereinafter referred to as “RPA,
1950”, and contended that a careful reading of that section would exclude all
others, except the person making a statement/declaration which is false, from
being proceeded with under that section. According to him, the beginning
sentence of that section namely, “if any person makes in connection with”,
makes it abundantly clear that only the person, who makes a
statement/declaration in writing, which is false, etc………. , can be
prosecuted for any such falsity. Under Rule 26 of the “the Rules”, every
application under section 23 of “RPA, 1950” shall be made in duplicate in
Form-6, etc., Rule 13(1(a) of “the Rules”, declares that every claim shall be
made for inclusion of names in electoral roll in Form-6. In the prescribed
format, only the voter, who wants his name to be included in the electoral
roll, has to give the necessary details asked for in that fo rmat and
therefore it is he, who makes that statement as asked for and also gives the
declaration. Therefore reading section 31 of “RPA, 1950″, Rule 13(1)(a) of ”
the Rules” and the prescribed format namely, Form-6, it is not possible to
bring in any other person, other than the person who seeks to get his name
included, within the ambit of section 31 of “RPA, 1950”. For the first time,
the Election Commission of India had issued detailed guidelines by it’s
proceedings dated 19.06.2004 to be followed for the revision. Under the
guidelines, presenting applications in Form-6 in bulk is permitted and the
person so presenting the applications in Form-6 in bulk is called upon to sign
a letter in the prescribed format namely, IR-2005-2007. Though the
functionaries of the petitioner political party had signed in such forms, yet,
signing the form itself would not bring any of the functionaries of the
petitioner party within the ambit of section 31 of “RPA, 1950”. Under Article
20 of the Constitution of India, no person shall be convicted of any offence,
except for violation of a “Law” in force. The guidelines referred to above is
not “Law” legally made namely, either by the Parliament or by the Legislature.
In any event, the guidelines will not have the force of “Law”. When the
guidelines is neither “Law” nor has the force of “Law”, by reading section 31
of “RPA, 1950”, none of the functionaries of the petitioner party shall be
legally proceeded with, for any violation of the said section. In expanding
his arguments that “Law” enshrined in Article 20 of the Constitution of India
is ” Law” duly made by the Parliament or the State Legislature, learned
counsel relied upon a number of judgments of the Hon’ble Supreme Court of
India. He also contended that, assuming that the Election Commission is an
autonomous body by itself; it can frame it’s own guidelines in the revision of
electoral rolls and make it’s own legal provisions in regard thereto, yet, it
cannot do on a subject if it is already an occupied field. In other words,
falsity of a claim made in Form-6 is already made an offence under section 31
of “RPA, 1950” and therefore it is an occupied field. If it is so, then the
Election Commission of India cannot bring in any other class of persons, not
already covered under section 31 of “RPA, 1950”, within the ambit of the said
section.
2. Mr.G.Rajagopalan learned senior counsel appearing for the first
respondent would submit that it is true that submitting applications in Form-6
in bulk came to be introduced for the first time under the guidelines.
According to him, section 31 of “RPA, 1950″ is wide enough to proceed not only
against the individual, who files the claim in the prescribed format
containing a false statement/declaration, but also the person, who presents
that application duly signed by the applicant himself, if it is found to
contain any false statement/ declaration. Neither the guidelines commencing
from paragraph 8.7.4 till 8.7.5.1 nor the prescribed format of letter in Form
IR-2005-2007, create an offence for the first time and the persons who are
presenting such bulk applications are already covered under section 31 of ”
RPA, 1950″. The very object of introducing section 31 of “RPA, 1950” is to
see that no illegality is committed in the preparation of electoral rolls,
which in turn would see that a fair election is conducted. If the submission
of the learned counsel for the petitioner is accepted, then it would defeat
the very object itself namely, the mischief sought to be remedied would be
allowed to continue. If the object of introducing section 31 of “RPA, 1950”
is had in mind, then the submission made by the learned counsel for the
petitioner cannot be accepted at all since, if it is so done, it would destroy
the concept of a fair preparation of electoral rolls and a free democratic
election to be held. Learned senior counsel would then submit that the
election commission is the supreme body by itself and subject to the
Constitutional restrictions, it can, from time to time, issue guidelines with
reference to all matters relating to the conduct of elections and such a power
is traceable to Part 15 of the Constitution of India. Learned Government
Pleader appearing for the second respondent adopted the arguments of the
learned senior counsel appearing for the Election Commission of India. In
W.P.M.P.No.32943/2005, another political party wanted to get itself impleaded
on the ground that public interest is involved in the writ petition; any
decision rendered by this court on the point raised would have a far reaching
impact in the preparation of electoral rolls and if the writ petition is
allowed on a narrow reading of section 31 of “RPA 1950”, it will allow
persons, who are guilty of violating the process of preparation of electoral
rolls, to escape. The petitioner in this petition is represented by a learned
senior counsel namely, Mr.R.Viduthalai. We told in open court that, without
going into the merits or otherwise of the rights of the petitioner to get
itself impleaded, we would like to have the assistance of Mr.R.Viduthalai
learned senior counsel in deciding this case. Mr.R.Viduthalai learned senior
counsel agreed. Accordingly, dismissing this W.P.M.P and requesting
Mr.R.Viduthalai learned senior counsel to assist this court on the legal
issue, we heard him. Mr.R. Viduthalai learned senior counsel, who assisted
the court, submitted that it is not as though the petitioner alone has
presented bulk applications in Form-6 and such a procedure to receive
applications in Form-6 in bulk stands permitted throughout the length and
breadth of this country. Such authority to present applications in Form-6 in
bulk is not only given to a political party but also to the residents of a
welfare association or gaon sabha. Therefore if any person who presents bulk
applications in Form-6 and if in any or all those applications in Form-6 there
is any falsity in the statement/delcaration, then the persons who are so
presenting would also be liable. Learned senior counsel would also submit
that whenever a Statute is read, it must be read in it’s true spirit and the
interpretation of Statute should not defeat the object and purpose of the
provision itself.
3. We have carefully gone through the arguments advanced by the
learned counsel on all sides. Before we proceed to appreciate the rival
contentions, we are of the considered opinion that it is better to trace the
origin of section 31 of “RPA, 1950”. The Act came into force on 12.05.1950.
As the Act originally stood, sections 31 and 32 were not there. Sections 31
and 32 were introduced in “RPA, 1950” by Amending Act 58/1958. After section
30 of the principal Act, sections 31 and 32 were introduced and for our
purpose, we extract hereunder section 31 of “RPA, 1950” as it was originally
introduced.
“31. Making of false declarations: If any person makes in or in
connection with –
(a) a claim or an application for the inclusion in an electoral roll
of his name, or
(b) an objection to the inclusion therein, or an application for the
exclusion or deletion therefrom, of the name of any other person,
a statement or declaration in writing which is false and which he either knows
or believes to be false or does not believe to be true, he shall be punishable
with imprisonment for a term which may extend to one year, or with fine, or
with both.”
Section 31 introduced by Amending Act 58/1958 was substituted under section 4
of Amending Act 20/1960 with effect from 08.05.1960. Substituted section 31
reads as hereunder:
“31. Making false declarations: – If any person makes in connection
with –
(a) the preparation, revision or correction of a electoral roll, or
(b) the inclusion, or exclusion of any entry in or from an electoral
roll, a statement or declaration in writing which is false and which he either
knows or believes to be false or does not believe to be true, he shall be
punishable with imprisonment for a term which may extend to one year, or with
fine, or with both.”
The objects and reasons of Amending Act 20/1960 are as hereunder:
“Substitution of section 31 “Because of its limited scope, section
31 does not fully serve the purpose for which it was enacted. Under clause
(a) of this section a person commits an offence only if he makes a false
statement or declaration in writing in or in connection with a claim or
application to include his own name in the electoral roll but not when he does
so in respect of some other person. Furthermore, the section appears to be
applicable only to statements made in claims and objections made before
revising authorities or in applications made under section 23 of the Act for
inclusion of names but not to statements made before any other persons, as for
example, enumerators of the stage of the initial preparation or annual
revision of the rolls. Experience has shown that false statements are made at
this stage also in quite a number of cases. It is accordingly proposed to
widen the scope of section 31 …… “S.O.R.,Gaz. Of Ind.,1960, Extra.,
Pt.II, section 2, p.320.”
4. Now the point to be considered is, if in the bulk presentation of
claims in Form-6 presented by any of the functionaries of the petitioner
party, there is falsity in the statement/declaration etc., whether such act by
any of the functionary of the petitioner party could be brought within the
teeth of section 31 of “RPA, 1950”? The answer to that question has to
necessarily depend upon the interpretation of section 31 and understanding the
object and purpose behind the introduction of section 31 of “RPA, 1950” as it
stands today. Recently, the Hon’ble Supreme Court of India in the judgment
reported in 2005-4-L.W.Pg.328 (Swamy Atmananda & others Vs. Sri Ramakrishna
Tapovanam & others) laid down the principle of Statuto ry interpretation and
we extract hereunder the principle of interpretation enunciated therein:
“A Statute, as is well-known, must be read in such a manner so as to
give effect to the provisions thereof. It must be read reasonably. A Statute
must be construed in such a manner so as to make it workable.”
It is a well-known principle of Statutory interpretation that interpretation
should not be in such a manner which would defeat the object and purpose of
the Act. When a mischief is sought to be remedied by any Statutory provision,
the court is bound to interpret the Statute having that object in mind. In
the light of the settled position in law that objects and reasons always guide
the court to a safer and purposeful interpretation of a Statute, we applied
our mind to the objects and reasons behind the introduction of section 31 of
“RPA, 1950 ” as it stands today by section 4 of Amending Act 20/1960. The
objects and reasons are very clear. It unerringly shows that section 31 of
“RPA, 1950”, as introduced by Act 58/1958, was not wide enough to include
persons other than the person who presents the claim form itself. In fact,
the object very clearly enumerates that section 31, as it was introduced by
Amending Act 58/1958, would cover only persons who make the claim but not when
he does so in respect of some other person. The object also is clear that any
falsity in a statement/ declaration made otherwise than in Form-6 before any
other authority, including enumerators, shall also be brought within the
purview of section 31 of “RPA, 1950”. Therefore it is clear to our mind that
section 31 of “RPA, 1950” as it stands today, shall not have a narrow meaning
but it shall have a wider ambit of covering all persons, who may be the person
who files Form-6 or opposes it but also persons who make such a statement or
give a declaration for another person. The format in IR-2005-2007 for
submitting applications in bulk for inclusion of names in electoral rolls is
as hereunder:
————————————————————————————————–
Letterhead of recognised Political Party or Residents Welfare Association or
Gaon Sabha
————————————————————————————————–
To
The Electoral Registration Officer,
———————- Assembly Constituency
———————- (Name of the State)
Subject: Revision of electoral rolls w.r.t.01-01-2005 as the qualifying date.
Sir,
I am forwarding herewith ——– (total No.) original claim
applications in Form 6, submitted by the citizens of India ordinarily residing
at the address mentioned in each application and who according to the best of
my knowledge and belief are not disqualified for registration in the electoral
rolls for inclusion in the relevant part of the electoral roll.
I am also enclosing a complete list (as per the prescribed proforma)
of the ———— (total No.) claim applications being forwarded herewith
and the same is duly authenticated by me on each page.
I further submit that I am aware of the provisions of Section 140A of
the J&K R.P.Act, 1957 and Section 31 of the R.P.Act, 1950, under which the
making of a statement or declaration which is false and which the person
making that statement/declaration either knows or believes to be false or does
not believe to be true is a penal offence, and that I shall be liable for
penal action for any false statement/ declaration in the Forms being forwarded
herewith.
Yours faithfully,
Dated:
(Name in full)
President/Secretary
Name of the recognised Political
Party/
Residents Welfare Association or
Executive Officer by whatever name called
of the Gaon Sabha Village Council etc.
————————————————————————————————–
Under paragraph 8.7.5.1.i of the guidelines, unless the bulk presentation is
forwarded with a letter in the prescribed form, it shall not be received.
Signing a letter in the above format is only a procedural formality prescribed
to be followed by a person presenting bulk claims in Form-6.
5. In (2003) 6 SCC Pg.107 (Lalita Jalan & Another Vs. Bombay Gas
Company Limited & Others, interpretation of particular Statutes or provisions
penal in nature came up for consideration. In that case, the Supreme Court
was dealing with the ingredients of section 630 of the Companies Act. The
question that came up for consideration was whether the section applies only
to any officer or employee of a company or does it apply to the two categories
of persons mentioned above, even after they cease to be an officer or employee
of a company? The question namely, if the officer/employee of a company dies
during the course of his employment, whether the arm of section 630 of the
Companies Act can be extended to the legal representatives of such deceased
employee was also under consideration in that case. In interpreting that
section, the Supreme Court went behind the purpose for which section 630 was
enacted. In so doing, the Supreme Court went on to say that “the principle of
interpretation relating to criminal Statutes that the same should be strictly
construed will not be applicable and the principle that a Statute enacting an
offence or imposing a penalty is to be strictly construed is not of universal
application which must necessarily be observed in every case”. In that case
the Supreme Court referred to an earlier judgment of that court in the case
reported in AIR 1976 SC Pg.1929 (Muralidhar Meghraj Loya Vs. State of
Maharashtra) where it was held “any narrow and pedantic, literal and lexical
construction of food laws is likely to leave loop-holes for the offender to
sneak out of the mashes of law and should be discouraged and criminal
jurisprudence must depart from old canons defeating criminal Statutes
calculated to protect the public health and nations wealth. The Supreme Court
also noted that the view taken in Muralidhar’s case was the view taken in AIR
1977 SC Pg.435 (Kisan Trimbak Kothula Vs. State of Maharashtra). In AIR 1980
SC Pg.593 (State of Maharashtra Vs. Natwarlal Damodardas Soni), the Supreme
Court dealing with section 135 of the Customs Act and Rule 126-H(2)(d) of the
Defence of India Rules negatived narrow construction of a Statutory provision
which would emasculate the provisions and render them ineffective as a weapon
for combatting gold smuggling. It was also held in that judgment that
provisions have to be specially construed in a manner which will suppress the
mischief and advance the object which the Legislature had in view. Therefore
it is clear from the judgment of the Supreme Court in Lalita Jalan’s case and
the other judgments referred to in that judgment that a Statute must be read
in such a manner to suppress the mischief and advance the object which the
Legislature had in view and principle that a Statute enacting an offence or
imposing a penalty is to be strictly construed is not of universal application
which must necessarily be observed in every case. Ultimately, the Supreme
Court in Lalita Jalan’s case concluded that section 630 of the Companies Act
is wider in it’s amplitude and not only cover the officer or employee of a
company in office but also those who cease to be in office and also the legal
representatives of an officer or an employee dying while in service.
6. In the context of the law laid down by the Supreme Court in the
judgments referred to above, if we analyse the origin of section 31 of “RPA,
1950” as originally introduced by Amending Act 58/1958 and the substitution of
section 31 by Amending Act 20/1960 with it’s objects and reasons, it is
crystal clear to our mind that the mischief, which was available in section 31
as it was originally introduced in 19 58, was sought to be remedied and it was
accordingly remedied by Amending Act 20/1960. The expression “any person”
used in section 31 of “RPA, 1950” would include not only a person who makes a
claim but also persons other than the said person. Section 31, as it
originally stood, had brought within itself only two types of persons namely,
a person making in or in connection with a claim or an application for
inclusion in the electoral roll of his name and a person objecting to the
inclusion therein. Section 31 of “RPA, 1950”, as it stands, is very wider in
it’s ambit and the significant inclusion is clause (a) as it stands today,
which was not available in section 31 as it stood originally. Clauses (a) and
(b) of section 31 as it originally stood prior to Amending Act 20/1960 stand
re-drafted as section 31(b) in the present section. Therefore clause (a) of
section 31 of “RPA, 195 0” as it stands today is a new provision. By the
nature of the two provisions of section 31 of “RPA, 1950” as it stands today,
it is clear to our mind that each is mutually exclusive of the other and both
operate in different spheres. A definite meaning must be given to clause (a)
and clause (b) of section 31 of “RPA, 1950” as it stands today. In our
opinion, the person covered under clause (b) of section 3 1 of “RPA, 1950”
would not be prima facie covered under clause (a) of section 31 of “Rpa, 1950”
as it stands today. That is why, we have stated that each provision excludes
the other. Any request for inclusion of any entry in the electoral roll or
exclusion of all entries from a electoral roll would necessarily involve the
preparation, revision or correction of an electoral roll. If the Act under
clause (a) and (b) of section 31 is one and the same and the person to be held
responsible for any violation is also one and the same, then there is no need
for introducing clause (a) of section 31, which clause is disjunctive in
nature. Therefore we have no hesitation at all to hold that clause (a) and
clause (b) of section 31 of “RPA, 1950” would operate in different spheres.
Our interpretation of section 31 is well supported by the case laws referred
to by us earlier and therefore the arguments advanced by the learned counsel
for the petitioner that any person in section 31 of “RPA, 1950” can only be
the person, who makes the declaration in Form-6 and not any other person who
presents bulk applications supported by the letter in IR-2005-2007, if
accepted, would lead to absurdity and defeat the very object of introducing
section 31 by Amending Act 20/1960. A faint argument is advanced by the
learned counsel for the petitioner that there is a safeguard available to an
official under section 32(3) of “RPA, 1950” if he is shown to commit any
violation in the preparation, revision or correction of an electoral roll and
such violation as referred to in section 32(1) of “RPA, 1950” is also a
violation in section 31(a) of “RPA, 1950″. If that is so, there cannot be two
yardsticks, one for the person violating section 31(a) and the other for the
person violating section 32. There is a fallacy in this argument. Section 32
of ” RPA, 1950″ embraces within itself an official on duty committing
violation as referred to above. Section 31 does not deal with any violation
shown to have been committed by any official on duty and it relates only to
persons other than the officials. This distinction has been lost sight of by
the learned counsel for the petitioner in advancing the argument referred to
above.
7. For all the reasons stated above, we are of the firm opinion that
by the guidelines issued by the Election Commission of India, no new offence
is created nor any new set of person is brought within the purview of section
31 of “RPA, 1950”. Right from it’s substitution, by Amending Act 20/1960,
section 31 had brought within it’s fold not only persons making a claim for
inclusion or exclusion containing falsity but also persons who are presenting
such claim on behalf of another person. At the risk of repetition, we
reiterate that the act of a person who is authorised to present bulk
applications for inclusion or exclusion stands already covered under section
31 of “RPA, 1950” as it stands today and the guidelines do not create any new
offence or bring in any new class of offenders within the purview of section 3
1. In the light of our conclusion based on the interpretation of section 31
of “RPA, 1950”, we are of the considered opinion that no occasion has arisen
for us to go into the various case laws cited before this court that unless it
is shown that a provision duly made by the Parliament or Legislature is
violated, no person can be punished. For all the reasons stated above, we
find no merits in the writ petition and accordingly it is dismissed with no
order as to costs. W.P.M.P.No.20346/2005 is closed.
To
1.The Chief Election Commissioner
Election Commission of India
Nirvachan Sadan
New Delhi 110 001
2.The Chief Electoral Officer
Public (Elections) Department
Chennai 600 009
Leave to appeal to the Supreme Court is asked for. Unless a
substantial question law of public importance is involved, there is no
question of leave to appeal to the Supreme Court. In this decided case, we do
not find any substantial question of law of public importance and our decision
is based on a reading of section 31 of “RPA, 1950”. Leave refused.
Vsl (RBJ) (MTJ)
21.12.2005
Note: Issue order copy today itself.