IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 09/02/2004.
Coram:
The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice
and
The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA
W.P. No.4081 of 2002 and W.P.M.P. No.5732 of 2002
Dr. Subramanian Swamy Petitioner
Vs.
1. T.T.V. Dinakaran
Member of Parliament,
Periyakulam, Theni Dist.
2. The Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
NEW DELHI 110 001.
3. Secretary General
Lok Sabha Secretariat,
NEW DELHI 110 001. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Declaration for the reasons stated therein.
For Petitioner : Dr. Subramanian Swamy
Party in Person
For 1st Respondent : Mr. B. Kumar, Sr. Counsel,
for Mr. A. Jinasenan
For 2nd Respondent : Mr. G. Rajagopalan,
Sr. Counsel
For 3rd Respondent Mr. J. Madanagopal Rao,
S.C.G.S.C.
:O R D E R
THE HONOURABLE THE 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
enrolled as electors in India as, ‘ordinary residence’ in the
Constituency is a condition precedent for registration as an
elector of such constituency. They are, however, entitled to
have their names registered electors once they come back and
resume their ordinary residence in the country.”
Dr. Subramanian Swamy has also relied upon the legal
propositions laid down by the Supreme Court in HARI PRASAD
MULSHANKER TRIVEDI v. V.B. RAJU (1974) (3) S.C.C. 415) and K.
VENKATACHALAM v. A. SWAMICKAN (AIR 1999 SC 1723).
4. The first respondent has filed a counter questioning
the locus standi of the petitioner on the ground that his
election was already contested by one Mr. P. Selvendran, who
had contested on behalf of the D.M.K. party, that the same
objection was raised to his nomination and that objection was
overruled permitting the first respondent to contest the
election, that he has won the election and against the
declaration of his election, Election Petition No.1 of 2000 has
been filed and that the same has been dismissed, that the
said dismissal had become final and that this writ petition is
not maintainable. On factual side, the allegations are denied
stating that he is not a Non-Resident Indian and that he had been
residing in India and that what was material was the residence at
the time of filing nomination and that even assuming that he was
in any way connected with any business in Singapore
during the years 1995 96, there is no material to show that he
has ever been out of India from 1995 till this date and that his
Indian passport has been impounded restricting his movements and
that his being a voter raised a presumption that he is a citizen
and resident and so long as his name continues in the voter’s
list, he is deemed to be a citizen and resident and cannot be
disqualified on mere assumptions.
5. Mr. B. Kumar, learned senior counsel, appearing for
the first respondent, reiterates the same and makes legal
submissions that the first respondent was in Singapore for a
brief spell and came to India in March 1995 and did not stir out
of India. He also refers to the finding given by a Division
Bench of this Court in MRS. ANURADHA v. THE JOINT
SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF
FINANCE AND ANOTHER (H.C.P. No.240 of 1996, dated 27.08.1996).
He also relies upon the judgment of the Constitutional Bench of
the Supreme Court in HARI PRASAD’s case (supra) laying down the
proposition that the High Court cannot sit as an Election Court
and that only an Election Court can examine with regard to the
qualification of a person whether as a voter or a contestant. He
has also submitted that the petitioner had also approached the
President of India, who has rejected his contention after duly
consulting the Election Commission, i.e. the second respondent
and that there is absolutely no merit in the legal contentions
apart from the fact that the writ petition is not maintainable on
the ground of locus standi. He submits that the ratio laid down
in VENKATACHALAM’s case (supra) by the Supreme Court is not
applicable as the facts are different. He also relies upon the
ruling of the Supreme Court in P.R. BELAGALI v. B.D.
JATTI (AIR 1971 S.C. 1348) and HARI SHANKER JAIN v. SONIA
GANDHI (JT 2001 (7) SC 289).
6. In his reply argument, Dr. Subramanian Swamy
reiterates his arguments that impounding passport is no ground to
plead ordinary residence in India and the stress is on the
permanent residence in India and not the temporary restrictions
because of the impounding of the passport,
that the first respondent, having been permanently residing in
Singapore, cannot be called as an ordinary resident in India,
that the order by the President, the judgment in H.C.P. or
Election Petition, cannot have any
relevance to this writ petition as this writ petition is filed
invoking the extraordinary powers of this Court as the first
respondent has played fraud and misrepresentation and that the
proposition laid down by the Supreme Court in VENKATACHALAM’s
case (supra) holds on all fours in this case
and that the writ petition is to be allowed in terms prayed for.
7. (i) In P.R. BELAGALI v. B.D. JATTI (supra), it
was held by a Three-Judge Bench that Section 100 (d) (iv) does
not entitle the Court in an election petition to set aside any
election on the ground of non- compliance with the provisions of
the Act of 1950 or any Rules made thereunder with the exception
of Section 16 thereof and that in an election petition the
correctness of the electoral roll cannot be gone into. It was
held that the entire scheme of the Act of 1950 and the amplitude
of its provisions show that the entries to an electoral roll of a
constituency can only be challenged in accordance with the
machinery provided by it and not in any other manner or before
any other forum unless the question of violation of the
provisions of the Constitution is involved. It was further held
that the question whether the returned candidate was ordinarily a
resident in a Constituency under Section 19 (b) of the Act of
1950 during the material period and was entitled to be registered
in the electoral roll, could not be the subject matter of enquiry
except in accordance with the provisions of the Act, 1950. The
said proposition was accepted by a 5 Judge Bench of the Supreme
Court in HARI PRASAD’s case (supra).
(ii) The same was reiterated by another three Judge Bench of
the Supreme Court in SHYAMDEO PD. SINGH v. NAWAL KISHORE
YADAV (2000 (8) S.C.C. 46). It was held in the above case of
Shyamdeo Prasad that inclusion of person or persons in the
electoral roll by an Authority empowered under law to prepare the
electoral rolls, though they were not qualified to be so
enrolled, could not be made a ground to set aside
the election of a returned candidate under sub-clause (iii) or
(iv) of clause (d) of sub-Section (1) of Section 100 of the
Representation of People Act, 1951 and that a person enrolled in
the electoral list by an Authority empowered by law to prepare an
electoral roll or to include a name therein, is entitled to cast
a vote unless disqualified under sub-sections (2) to (5) of
Section 62 of the Representation of People Act of 1951 and a
person enrolled in the electoral roll cannot be excluded from
exercising his right to cast vote on the ground that he did not
satisfy the eligibility requirement as laid down in Sections 19
or 27(5) of Representation of People Act, 1950.
(iii) IN A. SWAMICKAN v. K. VENKATACHALAM (AIR 1987
Madras 60), a question arose as to whether the writ petition is
maintainable to disqualify an elected member of a Legislative
Assembly without filing an Election Petition. It was held by the
Division Bench of this Court that ordinarily an Election Petition
is the only recourse for setting aside the election but in an
extraordinary situation like the one in which there was an
impersonation, the High Court will be failing in its duty in not
exercising jurisdiction if the Constitutional disability is
brought to its notice. In the said case, K. Venkatachalam was
not a voter but another person with the same name Venkatachalam
was the voter and impersonating the other Venkatachalam, this
Venkatachalam has filed his nomination and it was accepted.
Later on, it was brought out very clearly that the candidate
Venkatachalam had impersonated the other Venkatachalam by taking
undue advantage of the similarity in name and in those
circumstances, the constitutional provisions were invoked and he
was disqualified to continue as a Member of the Legislative
Assembly and the said decision was affirmed by the Supreme Court
in K. VENKATACHALAM v. A. SWAMICKAN (supra). It was held by
the Supreme Court that where the appellant
(K.Venkatachalam) was not in the electoral roll for Assembly
Constituency for General Election and he filed his nomination
impersonating himself for another person of the same name in the
electoral roll, he lacked the basic qualification under clause
(c) of Article 173 of the Constitution read with
Section 5 of the Act which mandated that a person to be elected
from an Assembly Constituency has to be an elector of that
Constituency. It was held that bar under Article 329 (b) will
not come into play when the case falls under Articles 191 and 193
and whole of the election process is over, and that Article 226
of the Constitution is couched in widest possible terms and
unless there is clear bar to jurisdiction of the High Court, its
powers under Article 226 of the Constitution can be exercised
when there is any act which is against any provision of law or
violative of Constitutional provisions and when recourse cannot
be had to the provisions of the Act for
the appropriate relief.
(iv) The Full Bench of this Court in HAJA SHAREEF K.S. v.
HIS EXCELLENCY THE GOVERNOR OF TAMIL NADU (1984 WLR Supp.
96) has got no application here as in that case it was held that
a Member of the Legislative Assembly, who has been appointed
Honorary Consul of a foreign country, incurs disqualification
under Article 191 (1) (d) of the Constitution of India.
8. The facts of the present case attract the legal principles
enunciated by the Supreme Court in BELAGALI’s Case (Supra), which
was approved by a Larger Bench in HARI PRASAD’s Case (Supra), and
again reiterated in the latest judgment in HARISHANKAR’s Case
(Supra). The judgments in either K.VENKATACHALAM’s Case (Supra)
or HAJA SHAREEF’s Case (Supra) have got no bearing on the facts
of the present case.
9. In view of the discussion of the judicial precedents
referred to supra, the legal proposition which emerges is that
once a person is shown as voter in the electoral roll it raises a
statutory presumption that he is entitled to both contest and
vote and the said rights cannot be curtailed by any other
process otherwise than resorting to Section 22 of the
Representation of the People Act, 1950. The undisputed fact is
that as on date, the 1st respondent is an elector and his name
finds place in the electoral roll. In the result, this writ
petition is dismissed. No costs. Consequently, connected
W.P.M.P. is
also dismissed.
(B.S.R., C.J.) (F.M.I.K., J.)
09.02..2004.
Internet: Yes/No
bh/sm
Copy to:-
1. The Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
NEW DELHI 110 001.
2. Secretary General
Lok Sabha Secretariat,
NEW DELHI 110 001.