The High Court of Delhi on Monday declared as improper the rejection of a woman’s candidature for Municipal Elections on the ground of her having failed to declare her gender in the nomination papers.
“In the face of all the aforesaid evidence and materials before the RO, could it be said that there could have been any reasonable doubt about the sex of the petitioner - on account of the fact she had not struck of the non applicable word i.e. ‘Male’ while filling the nomination form? The answer to the above query is an obvious and emphatic ‘No’. In the face of her other declarations and the documents filed by her along with her nomination including her two affidavits, no person with ordinary, average and reasonable intelligence can claim that there was any doubt about the fact that the petitioner is a female. The impugned order passed by the RO/SO is per se illegal, and a mindless and arbitrary exercise of his jurisdiction by the RO/SO,” Justice Vipin Sanghi observed.
The Court was hearing a Petition filed by one Ms. Saroj, challenging an order passed by the Scrutinizing Officer who had rejected her candidature for election as a municipal councilor in East Delhi Municipal Corporation. Her candidature was set up by the Bhartiya Janta Party for a Ward that was reserved for women belonging to the scheduled caste only. Her nomination papers were however rejected on the ground that she had failed to make a declaration in the papers that she was a woman, as she had not struck off the word ‘male’ from the papers.
Ms. Saroj had now submitted that the impugned order suffered from the vice of non application of mind and arbitrariness. She further submitted that the nomination papers contained her photographs, clearly evidencing the fact that she is a woman. Moreover, she had also declared the name of her ‘husband’ in the papers.
She further placed reliance on Rule 22(4) of the Delhi Municipal Corporation (Election of Councilor) Rules, 2012, which forbids the Scrutinizing Officer from rejecting a nomination paper “on the ground of any defect which is not of a substantial character”.
On the other hand, the Scrutinizing Officer had relied on Rule 19(3) which mandates a declaration to be made in the nomination papers by a woman.
The Court however opined that the Officer is bound to examine whether the defect in the nomination paper is of a non-substantial or substantial character. It further observed that in case of an irregularity in the nomination form of a candidate, an opportunity must be afforded to him/ her to satisfy that the defect is not of a substantial character, before rejecting the nomination form.
“Obviously, the enquiry would involve at least the perusal of the nomination form and all the documents filed along with it. If the doubt arising on account of the defect or irregularity in the nomination form can be satisfactorily addressed by a perusal of the other parts of the nomination form or the documents/ affidavits filed along with the nomination form, the defect or irregularity would, normally, be considered as one of a non-substantial character,” it further observed.
Justice Sanghi then noted that the Officer had failed to take the “substantial character” test, wrongfully rejecting the claim “on account of a hyper technical approach and on insubstantial grounds.”
Rapping the Officer for such approach, the Court thereafter observed, “It appears to this Court-and this submission was also advanced by Mr. Pushkarna, that the RO/SO go by a strict and hyper technical application of rules, and even the slightest defect in the nomination paper is considered as a ground for rejection thereof. It appears that no examination is undertaken by the RO/SO, as a matter of course, to address the issue whether the defect in any nomination form is of a substantial character or not. From the submission of Mr. Pushkarna, it appears that such a hyper technical and over cautious approach is adopted only to ward off allegations of discrimination by any prospective candidate. Such an approach of the RO/ SO is completely misdirected and it is bound to lead to failure in the performance of his statutory obligation by the RO/ SO.”
Read the Judgment here.