Bombay High Court: The present petition challenged the rejection of a nomination filed by petitioner to contest as a candidate in the forthcoming elections of the Maharashtra Legislative Assembly in ‘the 173 Chembur Constituency’. The Division Bench of Arif S. Doctor and Somasekhar Sundaresan, JJ., disposed of the petition and opined that no case was made out for intervention within the scope of powers available under Article 226 of the Constitution, since not only was the oath not administered within the stipulated time by petitioner, but also, the nomination form itself was not signed by the proposer.
Background
On 30-10-2024, petitioner’s nomination form was rejected on the ground that the nomination form had not been signed by the proposer, although the name of the proposer had been stated in the form. Petitioner stated that he was under the bona fide belief that the proposer’s name ought to be mentioned, and his signature was not a pre-condition. Petitioner submitted that he was not given a reminder and was not allowed to rectify the defect at 11:00 am on 30-10-2024, which resulted in injustice being meted out to him and the same vitiated the impartial administration of the electoral process.
Petitioner submitted that he should have been allowed to rectify his defects and the Returning Officer arbitrarily rejected the nomination and this Court, in exercise of its jurisdiction under Article 226 ought to interfere and permit petitioner’s name to be included in the ballot paper since there was significant time before the actual conduct of the election scheduled for 20-11-2024.
Analysis, Law, and Decision
The Court stated that the elections involved in the present case were elections to the State Legislative Assembly, which were governed to Article 329 of the Constitution, the provisions of which were in pari materia and near-identical to the provisions of Article 243-O insofar as they contained a bar on Courts interfering in electoral matters and it had been held that such bar would include the exercise of jurisdiction under Article 226 of the Constitution.
The Court relied on State of Goa v. Fouziya Imtiaz Shaikh, (2021) 8 SCC 401 (‘Fouziya Imtiaz Shaikh Case’), wherein the Supreme Court while dealing with Panchayat and Municipal elections, had rendered a judgment on the inter-play between the scope for writ petitions under Article 226 and election petitions, interpreting the same provisions stipulating a bar on interference by courts in electoral matters.
The Court stated that in Fouziya Imtiaz Shaikh Case (supra), the principle was clearly laid down that writ courts must adopt a hands-off policy when the election process was on but might interfere either before the process commenced or after such process was completed, unless interference sub-served and facilitated the progress of the election. The Court stated that it could not be said that the writ courts were totally denuded of any jurisdiction whatsoever under Article 226, when there was a challenge made before the electoral process or after completion of the electoral process. Likewise, it must be noticed that an interference was warranted even when an election process was on, provided the interference subserved and facilitated the progress of election, rather than vitiating the election.
The Court noted that in Fouziya Imtiaz Shaikh Case (supra), it was stated that a writ court exercising jurisdiction under Article 226 would have a narrow scope of interference even during the electoral process, insofar as it meets the purpose of progressing and facilitating the election. The Court stated that the writ court must be careful to ensure that outside such narrow scope, no intervention was made that interfered with the progress of the election.
The Court stated that the present petition was filed on 05-11-2024, that is, one day after the final list of candidates was published on 04-11-2024. The Court opined that the interests of such candidates to contest against one another were already crystallized and any intervention after this stage would disturb their rights, and they would also have to be heard, thus, all of this would vitiate the smooth progress of the election process that was already underway, and the principles of intervention laid out in Fouziya Imtiaz Shaikh Case (supra) would not be met.
The Court stated that rectification of the objections pointed out by the Returning Officer had to be completed prior to 11:00 am on 30-10-2024, therefore, there was no scope for giving any discretion to the Returning Officer to go beyond such deadline and enable parties to have the ability to supplement and continue with rectifications even after such deadline as it was a matter of public record that the time at which the scrutiny would commence was well known in the schedule published by the Election Commission.
The Court noted that the oath which had to be administered had not been completed although a deadline of 12:00 noon on 29-10-2024, was communicated to petitioner, in the checklist of objections given to petitioner by the Returning Officer.
The Court stated that a nomination that was not even signed by the proposer could be regarded as being no nomination at all and the time deadline by which the oath had to be administered had not been met. The Court opined that in an election process, time as to performance of the activities specified in the schedule was of the essence and if there was any administrative decision that vitiated the progress of the process, a writ court might intervene, but in the present case, no case was made out for intervention since not only was the oath not administered within the stipulated time, but also, the nomination form itself was not signed by the proposer. Thus, the Court disposed of the present writ petition.
[Aashish Kishor Gadkari v. Election Commission of India, 2024 SCC OnLine Bom 3520, decided on 06-11-2024]
Advocates who appeared in this case :
For the Petitioner: Arshad Shaikh, Senior Advocate a/w. Prashant Trivedi i/b Khushboo Jain, for Petitioner.
For the Respondents: Akshay Shinde, for Respondents; Himanshu Takke, AGP, for State.
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