The Election Commission has opposed a public interest litigation filed by advocate Manohar Lal Sharma seeking disqualification of Bihar Chief Minister Nitish Kumar for “not disclosing” an FIR against him in a murder case in pre-nomination affidavits and sought its dismissal.
The stand of the election commission was sought by a bench headed by Chief Justice Dipak Misra in September last year.
Nitish was elected as a Member of the Legislative Council, has a six-year term, on April 19, 2012.
The FIR pertained to a complaint case in a murder in 1991.
The affidavit said Sharma’s plea was not maintainable as he did not avail of the specific statutory remedy provided under Section 125A of the Representation of People’s Act and rather chose to approach the commission directly.
“It is submitted that the present writ petition is not maintainable before this court on account of the fact that the petitioner herein willfully and deliberately chose not to avail of the specific statutory remedy provided under section 125A of the Representation of People Act, 1951, instead directly approached the Election Commission of India”, it said.
As per Section 125 A, if any voter spots any discrepancy or falsehood in the details provided by any candidate he has the option to file a complaint or FIR against the concerned candidate.
“ECI is not an investigative agency or authority and does not either possess the means or is responsible for conducting an enquiry in order to ascertain if the disclosures made by a particular candidate are true and correct. Furthermore, even the documents provided by the petitioner did not disclose any cause of action for the ECI to proceed against Nitish Kumar”, said the affidavit.
Citing another reason for the dismissal of the petition, the EC said the plea was also not maintainable as the relief prayed for clearly reveal that no fundamental rights of the petitioner or of the citizens of this country have been violated in any manner what so ever warranting the interference of the SC and the aspect was mandatory in a public interest litigation.
“It has been laid down in several decisions that the extraordinary original jurisdiction can only be exercised where the enforcement of any fundamental rights is concerned”, the affidavit said.
Sharma accused the Bihar Chief Minister of hiding his “criminal records” while filing election affidavits between 2004 and 2012 when he contested various elections.
Going into the merits of the case, the EC affidavit said “Nitish had disclosed the fact in 2012 but in so far as the year 2015 is concerned, what is interesting to note is that he did not contest the 2015 Assembly Elections and so there is no question of filing it”.
The affidavit is however silent on an allegation of “non-revelation from 2004 to 2012.
Sharma contended that EC being a quasi-judicial body had the power to take action on its own if concealment of certain facts was brought to its attention which he had done through his representation. But the EC replied that the “representation was received through mail but was not traceable due to technical glitch”.
The petition further claimed that Nitish never opted for bail in the non-bailable offence since 1991 due to his constitutional office power and succeeded in getting the police to file a closure report after 17 years.
Demanding that the investigation against the CM be conducted afresh, the petition has also asked for a generic declaration by the apex court that no person having FIR and criminal cases against him can be appointed to any constitutional office.