Supreme Court of India
SHALIGRAM SHRIVASTAVAversusNARESH SINGH PATEL
- Citation
- 2002 INSC 562
- Decided
- 19 December 2002
- Disposal
- Dismissed
- Bench
- R C LAHOTI
Holding
A Returning Officer is authorized under Section 36(2) of the Representation of People Act, 1951 to require candidates to furnish the prescribed proforma and may reject a nomination that fails to do so, as such failure is a defect of substantial character.
Summary
The Supreme Court examined an appeal against the Madhya Pradesh High Court’s order upholding the rejection of a candidate’s nomination in a bye‑election. The Election Commission had instructed Returning Officers to require candidates to fill a proforma disclosing information relevant to disqualification under Section 8 of the Representation of People Act, 1951. The candidate submitted a bare declaration in Form 2‑B but left the proforma blank and was absent at the time of scrutiny. The Court held that the Returning Officer, under Section 36(2) of the Act, is statutorily empowered to demand such information and that failure to comply constitutes a defect of substantial character justifying rejection. It further ruled that the Commission’s instruction, issued under Article 324, is binding and that the power to seek the information does not depend on the instruction. Consequently, the appeal was dismissed, confirming the rejection of the nomination.
Issues considered
- The validity and binding nature of the Election Commission’s instruction to furnish a proforma for Section 8 disqualification information.
- Whether the Returning Officer’s power under Section 36(2) of the Representation of People Act, 1951 includes the authority to require the proforma and reject a nomination for non‑compliance.
- Whether a mere declaration in Form 2‑B suffices for scrutiny of disqualification under Section 8.
- Whether the instruction issued by the Election Commission falls within the scope of Article 324 of the Constitution.
Legislation cited
- Conduct of Elections Rules, 1961
- Representation of People Act, 1951s. 30, s. 33, s. 34, s. 36, s. 8
Subjects
Election lawNomination scrutinyRepresentation of People ActSection 8 disqualificationReturning OfficerProforma requirementArticle 324Defect of substantial character
Judgment
SHALIGRAM SHRIVASTAVA A
v.
NARESH SINGH PATEL
DECEMBER 19, 2002
(R.C. LAHOTI, B~IJESH KUMAR AND H.K. SEMA, JJ.] B
Election Laws :
Representation of People Act, 1951:
c
Sections 36 and 8-Scrutiny of nominations-Candidate failing to fill
up proforma prescribed by Election Commissio~Returning Officer rejecting
nomination paper al the time of scrutiny-High Court upholding the
rejection-Held: Returning Officer was within his rights in rejecting nomination
paper since 110111i11ation paper suffered from defect of substantial character. D
Section 36(2)-Scrutiny of nomination papers-Power of Returning
Officer and scope of inquiry-Discussed.
Election Commission issued instructions that at the time of filing
nomination papers, candidate should also fill up prescribed proforma. This
was with a view to seek information to ascertain at the time of scrutiny as to E
whether the candidature is valid in the light of the provisions of Section 8 of
the Representation of People Act, 1951. A candidate did not fill up the
proforma, but tiled an alTKlavlt to the effect that the information in the proforma
was correct Returning Officer rejected the nomination papers at the time of
scrutiny. High Court upheld the rejection. Hence the present appeal. F
Dismissing the appeal, the Court
HELD: I.I. At the time of scrutiny of the nomination papers under
Section 36 of the Representation of People Act, 1951, in the light of section
8 of the Act providing for disqualification which a person may incur on being G
convicted, the Returning Officer is entitled to satisfy himself that a candidate
is qualified and not disqualified. It is one of his statutory duties. Section 36(2)
also statutorily authorises him to hold an enquiry on his own motions, though
summary in nature. Returning Officer furnishes a proforma to the candidates
to be filled on affidavit and filed on or before the date and time fixed for scrutiny
s~ H
586 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A of the nomination paper. Therefore, providing a proforma, eliciting necessary
and relevant information in the light of Section 8 of the Act to enquire as to
whether the person is qualified and not disqualified, is an act or function fully
covered under Section 36(2) of the Act. Returning Officer is ·authorized to
seek such information to be furnished at the time of or before scrutiny. If the
B candidate fails to furnish such information and also absents himself at the
time of scrutiny of the nomination papers, is obviously avoiding a statutory
enquiry being conducted by the Returning Officer under Section 36(2) of the
Act. It is bound to result in defect of a substantial character in the nomination.
(594-E-H; 595-A(
C 1.2. The bald declaration furnished in Form 2-B prescribed under Rule
4 of the Conduct of Elections Rules, 1961 for the nomination that the
candidate is qualified and not disqualified is not at all sufficient to scrutinize
the nomination paper from the angle of Section 8 of the Act. Such declaration
in the nomination paper may only be a mere basic statement necessary to fill
up the nomination paper but it contains no information or facts relevant for
D the purposes of scrutinising the nomination paper in the light of Section 8 of
the Act which falls in Part II of the Act. (598-B-q
1.3. Power which vests in the Returning Officer is not dependent upon
any instructions issued by Election Commission, therefore, it is not necessary
to enter into the controversy ·as to whether the instructions issued by the
E Election Commission are in exercise of its power under Article 324 or not.
Election Commission by its letter brought to the notice of Returning Officers
certain decisions of different High Courts iri regard to disqualification under
Section 8 of the Act. It was further desired that such a scrutiny be made by
the Returning Officers looking to the menace of criminalisation of politics.
F Barring the fact that the instructions apprised the Returning Officers of the
position under law in the light of Section 8 of the Act which implies that he
is authorized to seek necessary information for the purpose. Since such
information is necessary and rele\'ant for the purpose of scrutiny of the
nomination paper under Section 36(2), in the light of Section 8 of the Act, it
can well be furnished on a format provided to the candidate by Returning
G Officer and it becomes his duty to furnish such information so that a
Returning Officer may discharge his statutory duty to scrutinize the
nomination paper effectively, properly and in consonance with the provisions
of law. (598-E-G, 599-A-B(
1.4. In the instant case the candidate failed to furnish information as
H sought on the proforma given to him and also failed to be present personally
SHALi GRAM SHRIVASTAVA v. N.S. PA TEL [BRIJESH KUMAR, J.) 587
or through his representative at the time of scrutiny. The statutory duty/power A
of Returning Officer for holl!ing proper scrutiny of nomination paper was
rendered nugatory. No scrutiny of the nomination paper could be made under
Section 36(2) in the light of Section 8 of the Act. It certainly rendered the
nomination paper suffering from defect of substantial character and Returning
Officer was within his rights in rejecting the same. [599-E, Ff
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4023 of2001.
From the Judgment and Order dated 9.4.2001 of the Madhya Pradesh
High Court in Election Petition No. I of 2000.
Anoop Chaudhary, Sudhir Wala for Mahinder Singh Dahiya, for the C
Appellant.
S.V. Deshpande, Ms. Anuradha Rustogi and Pramit Saxena, for the
Respondent.
The Judgment of the Court was delivered by D
BRIJESH KUMAR, J. The defeated candidate in the bye-election held
in February, 2000 to the legislative assembly, Madhya Pradesh from Bhojpur
assembly constituency, filed an election petition in the High Court of Madhya
Pradesh challenging the declaration of the respondent as elected from the
aforesaid assembly constituency. The election petition has been dismissed, E
hence this appeal.
Briefly, the' facts are that nomination paper of one Bhagwan Singh was
rejected at the time of scrutiny on the ground that he had not filled up the
proforma prescribed by ihe Election Commission vide letter dated 28.8.97. The F
said proforma was required to be filled up to ascertain as to whether the
candidate had been convicted or not for any offence mentioned in Section
8 of the Representation of People Act, 1951 (for short the 'Act'). Interestingly,
the candidate, namely, Bhagwan Singh had filed an affidavit that information
given in the proforma was correct but the proforma itself was left blank. He
had though filled the nomination paper on Form 2-B as prescribed under Rule G
4 of the Conduct of Elections Rules, 1961 declaring that the candidate was
qualified and also not disqualified for being chosen to fill the seat. According
to the Election petitioner the nomination paper of Bhagwan Singh could not
be rejected on the ground that he had not filled up the proforma prescribed
under the letter dated 28.8.97, since no such proforma was statutorily provided H
588 SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.
A under the provisions of the Act nor under the rules framed thereunder. It is
contended that the commission could not legislate to prescribe a proforma;
at best it can only be an executive instruction of the Election Commission
whereas the petitioner had filled the form prescribed under the Rules which
did not suffer from any defect. Yet another ground taken up by the petitioner
B was that failure to comply with executive direction of the Election Commission
would not entail the consequence of rejection of the nomination paper much
less where it is not provided that failure to fill up the proforma would result
in rejection of the nomination paper.
The High Court considering the points raised by the petitioner came to
C the conclusion that non-submission of the declaration as required under the
instruction dated 28.8.97 is a defect of substantial character. Hence the
nomination paper was rightly rejected by t~e Returning Officer. At this juncture
it may also be mentioned that a question seems to have been raised, as to
whether election petition could be entertained, in view of the fact that Bhagwan
Singh, whose nomination paper was rejected neither approached the court nor
D he ever raised any objection to the rejection of his nomination paper, but this
point does not seem to have been pursued before the High Court nor this
court was addressed on the said point. We therefore, need not digress on that
question and proceed to consider the matter on merit of the appeal on the
grounds canvassed before us.
E Before entering into the merits of the other points it would be appropriate
to deal with one question raised by the appellant to the effect that the
instructions dated 28.8.97 contained in letter P-1 and the letter dated 6.1.98
have not been issued by the Election Commission. On the other hand it is
submitted that these letters have been issued by the officers of the Commission,
F hence Article 324 of the Constitution will not be attracted. This point though
argued at length, holds no water-and it is destined to be rejected. Referring
to letter dated 28.8.97 it is submitted that it has been issued only by the
Director (Law) of the Election Commission. It is further pointed out that the
said letter has been issued only. to operationalise the directive of the
Commission. The Commission had desired that at the time a nomination paper
G is filed, the candidate should also fill up the profonna annexed therewith
seeking inforniation with a view to ascertain, at the time of scrutiny, as to
whether his candidature is valid in the light of the provision of Section 8 of
the Act or not. The instructions of the Commission alongwith copy of the
letter of the Commission dated 28.8.97 were furnished to all Returning Officers
H and Assistant Returning Officers for their information, guidance and strict
SHALIGRAM SHRIV,ASTAVA v. N.S. PATEL [BRIJESH KUMAR, J.) 589
compliance. It may be pointed out that the letter written by the Director A
(Law) itself refers to the instructions issued by the Commission dated 28.8.97
under Article 324 of the Constitution. It has not been anybody's case that
letter dated 28.8.97 issued by the Director (Law) is the instruction issued by
the Election Commission under Article 324 of the Constitution. The letter of
· the Director (Law) only indicates the gist of the instructions of the Commission
issued on the same date. The appellant has chosen not to file the instructions B
issued by the Election Commission dated 28.8.97 under Article 324 of the
Constitution. It may further be indicated that the main document is the
proforma which is required to be filled up by the candidate as per instructions
of the Election Commission, seeking information which was considered
necessary at the time of scrutiny of the nomination paper. The letter dated C
January 6, 1998 issued by the Secreta!)' of the Election Commission clearly
indicates in para 2 that revised proforma was issued along with letter of the
Commission dated 28.8.97. Therefore there is no substance whatsoever in the
submission made on behalf of the appellant, with some vehemence too, that
the proforma as well as the instructions were issued by the officers of the
Election Commission and not by the Commission itself. Apart from what has D
been indicated above it may also be noticed that such a ground was never
canvassed before the High Court nor it has been taken in the special leave
petition; rather it has been mentioned at all the places that the instructions
and proforma were issued by the Election Commission. It is only on the basis
of oral submission that such a point was tried to be made out. For the above E
reasons we repel this contention of the appellant. We thus feel that mainly
two aspects of the matter require our consideration, the first being the status
of the instruction issued by the Election Commission and its binding nature
by virtue of Article 324 of the Constitution and the next point as to the nature
and scope of inquiry as well as the power of the Returning Officer under
Section 36 (2) of the Act at the time of scrutiny. That is to say suppose it is F
held that the instructions and the proforma issued by the Commission does
•
not have the force of instructions issued under Article 324 of the Constitution
on the ground that the field is already covered by legislation as canvassed or
on any other ground whatsoever; could the Returning Officer still in exercise
of its power under Section 36(2) of the Act, seek necessary infonnation and G
reject the nomination paper or not. We propose to deal with the second point
first. It will be appropriate to peruse the relevant provisions contained under
Sections 30, 33, 34 and 36 of the Act. They read as follows:-
"30. Appointment of dates for nominations, etc.- As soon as the
notification calling upon a constituency to elect a member or members H
590 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A is issued, the Election Commission shall, by notification in the Official
Gazette, appoint -
(a) the last date for making nominations, which shall be the [seventh
day] after the date of publication of the first mentioned notification
or, ifthat day is a public holiday, the next succeeding day which
B is not a public holiday;
(b) the date for the scrutiny of nominations, which shall be [the day
immediately following] the last date for making nominations or,
if that day is public holiday, the next succeeding day which is
not a public holiday;
C (c) the last date for the withdrawal of candidatures, which shall be
[the second day] after the date for the scrutiny of nominations
or, ifthat day is a public holiday, the next succeeding day which
is not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken
D which or the first of which shall be a date not earlier than the
[fourteenth day] after the last date for the withdrawal of
candidatures; and
(e) the date before which the election shall be completed.
.xxx xxx xxx
E
33. Presentalion of nomination paper and requirements for a valid
nomination - (I) On or before the date appointed under clause (a) of
Section 30 each candidate shall, either in person or by his proposer,
between the hours of eleven O'clock in the forenoon and three O'clock
in the afternoon deliver to the Returning Officer at the place specified
F in this behalf in the notice issued under section 31 a nomination
paper completed in the prescribed form and signed by the candidate
and by an elector of the constituency as proposer :
[Provided that a candidate not set up by a recognised political pa11y,
shall not be deemed to be duly nominated for election from a
G constituency unless the nomination paper is subscribed by ten
proposers being electors of the constituency.
Provided further that no nomination paper shall be delivered to
the Returning Officer on a day which is a public holiday.
H Provided also that in the case a local authorities' constituency,
SHALIGRAM SHRJVASTAVA v. N.S. PATEL [BRIJESH KUMAR, J.) 591
graduates' constituency or teachers' constituency, the reference to A
"an elector of the constituency as proposer" shall be construed as a
reference to ten per cent of the electors of the constituency or ten
such electors, whichever is less, as proposers.]
(IA) ......... .
B
(2) ........ .
(3)
(4) On the presentation of a nomination paper, the Returning
Officer shall satisfy himself that the names and electoral roll numbers
of the candidate and his proposer as entered in the nomination paper C
are the same as those entered in the electoral rolls:
[Provided that no misnomer or inaccurate description or clerical,
technical or printing e;ror in regard to the name of the candidate or
his proposer or any other person, or in regard to any place, mentioned
in the electoral roll or the nomination paper and no clerical, technical D
or printing error in regard to the electoral roll numbers of any such
person in the electoral roll or the nomination paper, shall affect the
full operation of the electoral roll or the nomination paper with respect
to such person or place is such as to be commonly understood; and
the Returning Officer shall permit any such misnomer or inaccurate E
description or clerical, technical or printing error to be corrected and
where necessary, direct that any such misnomer, inaccurate description,
clerical, technical or printing error in the electoral roll or in the
nominatiofl paper shall be overlooked.]
(5) F
(6)
((7) . . . . . . .
34. Deposits: [(I )A candidate shall not be deemed to be duly
nominated for election from a constituency unless he deposits or G
causes to be deposited,-
(a) ..... .
(b) ..... .
H
592 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A {2) ...... .
xxx xxx xxx
36. Scrutiny of nominations.- {I) On the date fixed for the scrutiny
of nominations under section 30, the candidates, their election agents,
one proposer of each candidate, and one other person duly authorised
B
in writing by each candidate but no other person, may attend at such
time and place as the Returning Officer may appoint; and the Returning
Officer shall give them all reasonable facilities for examining the
nomination papers of all candidates which have been delivered within
the time and in the manner laid down in section 33.
c (2) The Returning Officer shall then examine the nomination papers
and shall decide all objections which may be made to any nomination
a.nd may, either on such objection or on his own motion, after such
summary inquiry, if any, as he thinks necessary, [reject] any
nomination on any of the following grounds :-
D
[(a) [that on the date fixed for the scrutiny of nominations the
candidate) either is not qualified or is disqualified for being chosen
to fill the seat under any of the following provisions that may be
applicable, namely :-
E Articles 84, I 02, 173 and 191,
[Part II of this Act and sections 4 and 14 of the Government of
Union Territories Act, 1963 (2) of 1963)]; or
(b) that there has.been a failure to comply with any of the provisions
F of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the n"omination
paper is not genuine.]
(3) Nothing contained in [clause (b) or clause (c) of sub-section (2)
G shall be deemed to authorise the [rejection) of the nomination of any
candidate on the ground of any irregularity in respect ofa nomination
paper, if the candidate has been duly nominated by means of another
nomination paper in respect of which no irregularities has been
committed.
H (4) The Returning Officer shall not reject any nomination paper on
SHALIGRAM SHRlVASTAVAv. N.S. PATEL [BRIJESH KUMAR, J.) 593
the ground of any defect which is not of a substantial character. A
(5) The Returning Officer shall hold the scrutiny on the date appointed
in this behalf under clause (b) ofsection 30 and shall not allow any
adjournment of the proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or by causes beyond
his control: B
Provided that I case [an objection is raised by the Returning
Officer or is made by any other person] the candidate concerned may
be allowed time to rebut it not later than the next day but one following
the date fixed for scrutiny, and the Returning Officer shall record his
decision on the date to which the proceedings have been adjourned. C
(6) The Returning Officer shall endorse on each nomination paper
his decision accepting or rejecting the same and, if the nomination
paper is rejected, shall record in writing a brief statement of his
reasons for such rejection.
D
((7) For the purposes of this section, a certified copy of an entry
in the electoral roll for the time being in force of a constituency shall
be conclusive evidence of the fact that the person referred to in that
entry is an elector for that constituency, unless it is proved that he is
subject to a disqualification mentioned in section 16 of the
Representation of the People Act, 1950 (43 of 1950). E
(8) Immediately after all the nomination papers have been
scrutinized and decisions accepting or rejecting the same have been
recorded, the Returning Officer shall prepare a list of validly nominated
candidates, that is to say, candidates whose nominations have been'
found valid, and affix it to his notice board.] F
To summarise the legal position as emerging from the.above provisions
we find that Section 30 of the Act provides for fixing of dates for filing of
nomination paper for election of a member from a Constituency. Section 32
provides that a person may be nominated as candidate for election to fill a G
seat who is qualified to be chosen to fill that seat under the provisions of the
Constitution and the Act. Section 33 relates to presentation of nomination
paper and requirements for a valid nomination. The nomination is to be in the
prescribed form signed by the candidate and by an elector of the Constituency
as proposer. Other clauses of Section 33 indicate a number of requirements
ofa valid nomination. A notice of scrutiny of the .nomination paper indicating H
594 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A the date and time for the purpose. is to be issued and affixed in some
conspicuous place as provided under section 35 of the Act. Under Section 36
of the Act, a nomination paper is scrutinized by the Returning Officer. Sub-
section (2) of Section 36 provides that the Returning Officer on the objections
filed to any nomination, or on his motion may hold a summary enquiry in
connection thereof. A nomination can be rejected on the grounds: (i) the
B candidate is not qualified or is disqualified for being chosen to fill the seat
under any of the provisions namely, Articles 84, I02, 173 and 191 of the
Constitution or under Part II of the Act (Section 8 of the Act/alls in Part//);
(ii) the nomination paper can also be rejected on failure to comply with
provisions of Section 33 or Section 34 of the Act or; (iii) The signature of
C the candidate or the proposer on the nomination paper is not genuine. Sub-
section (4) of Section 36 provides that the Returning Officer shall not reject
any nomination paper on the ground of any defect which is not of substantial
character.
The prescribed form B-2 for tiling the nomination contains a declaration
D that the candidate is qualified and not disqualified. No further facts, details
or infonnation is contained in the prescribed fonn in relation to his qualification
or disqualification.
Section 8 of the Act which falls in Part II, provides for disqualification
which a person may incur on being convicted. It may be noted that every
E conviction may not result in disqualification. It depends upon the nature of
the offence and provisions under which the offence is committed, as also the
period of sentence awarded.
At the time of scrutiny the Returning Officer is entitled to satisfy himself
p that a candidate is qualified and not disqualified. Sub-section (2) of Section
36 authorises him to hold an enquiry on his own motions, though summary
in nature. The Returning Officer furnished a proforma to the candidates to be
filled on affidavit and tiled on or before the date and time fixed for scrutiny
of the nomination paper. Therefore providing a proforma, eliciting necessary
and relevant infonnation in the light of Section 8 of the Act to enquire as to
G whether the person is qualified and not disqualified, is an act or function
fully covered under sub-section (2) of Section 36 of the Act. The Returning
Officer is authorized to seek such information to be furnished at the time or
~efore scrutiny. If the candidate fails to furnish such infonnation and also
absents himself at the time of the scrutiny of the nomination papers, is
H obviously avoiding a statutory enquiry being conducted by the Returning
SHALIGRAM SHRIVASTAVAv. N.S. PATEL [BRIJESH KUMAR, J.] 595
Officer under sub-section (2) of Section 36 of the Act relating to his being A
not qualified or disqualified in the light of Section 8 of the Act . It is bound
to result in defect of a substantial character in the nomination.
The letter dated 28.8.97 issued by Director (Law) was addressed to the
Chief Electoral Officer of all the States and Union Territories and it drew
attention to the instructions issued by the Election Commission under Article B
324 of the Constitution saying that in view of decisions of some High Courts,
the disqualification of a candidate for election under Section 8 of the Act
would commence from the date of conviction, regardless of the fact whether
he is intending to be a candidate, is on bail or not except where the conviction
is covered under sub-section 4 of Section 8 of the Act.
c
To elicit the relevant information in regard to Section 8, the Commission
had indicated a proforma which was to be handed over to the candidates who
were supposed to fil.1 the same on affidavit. In this context we may peruse
Section 8 of the Act which reads as under:-
"8; Disqualification on conviction for certain offences - (I) A person D
convicted of an offence pun.ishable under -
.
(a) section I 53A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence, language,
etc., and doing acts prejudicial to maintenance of harmony) or Section
171 E (offence of bribery) or section 171 F (offence of undue influence E
or personation at an election) or sub- section (I) or sub-section (2) of
Section 376 or section 376A or Section 3768 or Section 376C or
section 3760 (offences relating to rape) or section 498A (offence of
cruelty towards a woman by husband or relative of a husband) or
sub-section (2) or sub section (3) of Section 505 (offence of making
F
statement creating or promoting enmity, hatred or ill will between
classes or offence relating to such statement in any place of worship
or in any assembly engaged in the performance of religious worship
or religious ceremonies) or the Indian Penal Code (45 of 1860), or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955 ), which G
provides for punishment for the preaching and practice of
"untouchability", and for the enforcement of any disability arising
therefrom; or
section 11 (offence of importing or exporting prohibited goods) or
the Customs Act, 1962 (52 of I 962); or
H
596 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A (d) sections 10 to 12 (offence of being a member of an association
declared unlawful, offence relating to dealing with funds of.an unlawful
association or offence relating to contraven•ion of an order made in
respect of a notified place) of the Unlawful Activities (Prevention)
Act, 1967 (37 of 1967); or
B (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(t) The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985); or
(g) section 3 (offence of committing terrorist acts) or section 4 (offence
C of committing disruptive activities) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of Sections
3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988
(41 of 1988); or
D (i) section 125 (offence of promoting enmity between classes in
connection with the election) or section 135 (offence of removal of
ballot papers from polling stations) or section 135A (offence of booth
capturing) or clause (a) of sub section (2) of section 136 (offence of
fraudulently defacing or fraudulently destroying any nomination paper)
E of this Act;
(j) section 6 (offence of conversion of a place or worship) of the
-Places of Worship (Special Provisions) Act 1991
(k) section 2 (offence of insulting the Indian National Flag or the
Constitution of India) or section 3 (offence or preventing singing of
F National Anthem) of the Prevention of Insults to National Honour
Act, 1971 (69of1971) shall be disqualified or a period of six years
from the date of such conviction.
(2) A person convicted for the contravention of -
G (a) any law providing for the prevention of hoarding or profiteering;
or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28of1961);
or
H
SHALIGRAM SHRIVASTAVA v. N.S. PATEL [BRIJESH KUMAR, J.] 597
(d) any provisions of the Commission of Sati .(Prevention) Act, 1987 A
(3 of.1988),
and sentenced to imprisonment for not less than six months, shall be
disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
B
(3) A person convicted of any offence and sentenced to imprisonment
for not less than two years [other than any offence referred to in sub-
section (I) or sub_ section (2) shall be disqualified from the date of
such conviction and <Shall continue to be disqualified for a further
period of six years since his release]
(4) Notwithstanding anything (in sub section (I) sub section (2) and
c
sub section (3) a disqualification under either sub section shall not,
in the case of a person who on the date of the conviction is a member
of Parliament or the Legislature of a State take effect until 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 D
the sentence, until that appeal or application is disposed of by the
court.
Explanation - In this section -
(a) "law providing for the prevention of hoarding or profiteering" E
means any law, or any order, rule or notification having the force of
law, providing for -
(i) the regulation of production or manufacture of any essential
commodity;
(ii) the control of price at which any essential commodity may be F
brought or sold;
(iii) the regulation of acquisition, possession, storage, transport,
distribution, disposal, use or consumption of any essential
commodity;
G
(iv) the prohibition of the withholding from sale of any essential
commodity ordinarily kept for sale;
(a) "drug" has the meaning assigned to it in the Drugs and Cosmetics
Act, 1940 (23 of 1940);
(b) "essential commodity" has the meaning assigned to it in the H
598 SUPREME COURT REPORTS (2002] SUPP. S S.C.R.
A Essential Commodities Act, 1955 (10 of 1955}
(c} "food" has the meaning assigned to it in the Prevention Food
Adulteration Act, 1954 (37 of 1954)."
According to the petitioner infonnatio i furnished in the Forril 2-B
prescribed under Rule 4 for the nomination is sufficient, as it contains the
B declaration of the candidate that he is qualified and not disqualified to be a
candidate for being chosen from the constituency. In our view the bald
declaration that the candidate is qualified and not disqualified is not at all
sufficient to scrutinize the nomination paper from the angle of Section 8 of
the Act. Clause (a} of sub-section (2) of Section 36 provides for scrutiny of
C the nomination paper to see whether he is disqualified for being chosen to fill
the seat or not, amongst others in the light of part II of the Act; as indicated
earlier, Section 8 falls in part II of the Act. Therefore, the declaration in the
nomination paper that the candidate is qualified and not disqualified may
only be a mere basic statement necessary to fill up the nomination paper but
it contains no infonnation or facts relevant for the purposes of scrutinising
D the nomination paper in the light of Section 8 of the Act which falls in Part
II of the Act.
For the purpose of scrutiny further infonnation is necessary. The scrutiny
may call for even suo motu inquiry by the Returning Officer though summary
E in nature. It is one of the statutory duties of the Returning Officer to scrutinize
the nomination paper in the light of section 8 of the Act and he is statutorily
authorised to hold a summary inquiry about the qualification and
disqualification of a candidate (See Birad Mal Singhvi v. Anand Purohit,
AIR (1988} SC 1796. Such a power which vests in the Returning Officer is
not dependent upon any instructions issued by the Election Commission,
F therefore, it is not necessary to en,er into the controversy which is sought to
be raised as to whether the instructions issued by the Election Commission
are in exercise of its power under Article 324 or not. The Returning Officer
is supposed to have the necessary infonnation at the time of scrutiny of the
nomination paper and for that purpose he can very well reqqire a candidate
G to furnish infonnation relevant for the purpose of section 8 of the Act before
or on the date of scrutiny. At best it can be said that the Election Commission
by its letter dated 28.8.1997 had brought to the notice of the Returning
Officers certain decisions of different High Courts in regard to disqualification
under Section 8 of the Act. It was further desired that such a scrutiny be
made by the Returning Officers looking to the menace of criminalisation of
H the politics. Barring the fact that the instructions apprised the Returning
SHALIGRAM SHRIVASTAVAv. N.S. PATEL [BRIJESH KUMAR, J,] 599
Officers of the position under law in the light of the judgments of the High A
Courts, nothing else was provided thereunder which was already not within
·' the power of the Returning Officer under the statutory provisions rather it
was a part of their duty to scrutinii.e the nomination papers in the iight of
Section 8 of the Act which implies that he Is authorised to seek necessary
information for the purpose. It can be suo motu as well.
B
Since such information is necessary and relevant for the purpose of
scrutiny of the nomination paper under Section 36(2), in the light of Section
8 of the Act, it can well be furnished on a format provided to the candidate
by the Returning Officer and it becomes his duty to furnish such information
so that a Returning Officer may discharge his statutory duty to scrutinii.e the C
nomination paper effectively, properly and in consonance with the provisions
. of law.
Here, we would like to point out that the directive of the Commission
states "when a candidate files his nomination paper the Returning Officer or,
as the case may be, the Returning Officer receiving the nomination paper D
shall hand over to him the enclosed letter, together with the proforma of
affidavit annexed thereto to ascertain at the time of scrutiny of nomination
as to whether the candidature is valid from the angle of Section 8 of RP Act,
1959", it would be better that for future the directive may find it feasible to
require the Returning Officer to hand over the proforma of affidavit while
issuing the nomination paper itself. E
In the case in hand the candidate had failed to furnish such information
as sought on the proforma given to him and had also failed to be present
personally or through his representative at the time of scrutiny. The statutory
duty/power of Returning Officer for holding proper scrutiny of nomination F
paper was rendered nugatory. No scrutiny of the nomination paper could be
made under Section 36(2) of the Act in the light of Section 8 of the Act. It
certainly rendered the nomination paper suffering from defect of substantial
character and the Returning Officer was within his rights in rejecting the
same.
G
The appeal, therefore, lacks merit and it is dismissed with costs.
N.J. Appeal dismissed.
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