Election Petition Questioning Caste Certificate Of Elected Representative Maintainable Before High Court: Karnataka HC

The Karnataka High Court has held that Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990, does not take away the jurisdiction of the High Court to decide an election dispute questioning the caste of a returned candidate to the Legislative Assembly.Justice Anant Ramanath Hegde dismissed the application made under Order VII Rule 11 of the Code of Civil Procedure, 1908, by B Devendrappa seeking to dismiss the election petition filed by G Swamy challenging Devendrappa's election. Originally, Swamy–the petitioner had filed an election petition before the high court questioning the Devendrappa's (respondent) election to Jagaluru Vidhanasabha Constituency claiming that the Constituency is reserved for Scheduled Tribe whereas the respondent belongs to Other Backward Community and so is ineligible to contest the election.Meanwhile Devendrappa moved an application contending that the caste certificate, issued in his favour holds good till it is cancelled by the District Caste Verification Committee (DVCV). He claimed that only the DCVC formed under the Karnataka Scheduled Castes Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.,) Act, 1990, has the jurisdiction to decide on the validity of the caste certificate. Thus, the election petition questioning the respondent's caste is not maintainable and impliedly barred in view of the Act of 1990.Counsel for the petitioner opposed this, contending that it is only the High Court, under the Representation of the People Act, 1951 (Act of 1951) which has the jurisdiction to try the questions raised in the petition.The bench firstly noted that admittedly, Jagaluru Assembly Constituency is reserved for Scheduled Tribe. In case, the petitioner succeeds in establishing that respondent does not belong to the Scheduled Tribe, then the respondent's election has to be set aside, it said. Thus it held, “This being the position, the contention that there are no material facts constituting the cause of action has to be rejected.” On the issue of a bar on the high court to decide on the returned candidate's caste in an election petition, the court referred to sections 80 and 80A, 100(1)(a) and Section 5(a) of the Representation of the People (RP) Act which prescribes that only the High Court shall have the jurisdiction to decide the Election Petition, grounds for declaration of election as void and Qualification for membership of a legislative assembly.Then it said “On a conjoint reading of Sections 80, 80A, 100(1)(a) and Section 5(a) of the Act of 1951, it is explicit the election petition questioning the election of a returned candidate on the ground that the returned candidate does not possess the prescribed qualification has to be decided only by the High Court in the exercise of jurisdiction under Section 80A of the Act of 1951 and none else.” The court thereafter said that the object of the Karnataka Scheduled Castes Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.,) Act 1990, is to "facilitate the reservation in appointments in favour of members in the Schedule Castes, Scheduled Tribes and Other Backward Classes in certain sectors". It noted that the rules framed under the Act also provide for the procedure of issuing caste certificates, and appeals by the aggrieved person and also provide for the Committee to verify the caste and income certificate issued under the Act. It thereafter said, "This Act of 1990 does not deal with the election dispute at all. More importantly, the fundamental question is whether the State has the power to legislate over the matters concerning the election to a Legislative Assembly". The court further noted that the under Entry No.72 in List-I of Seventh Schedule of the Constitution of India, it is the "Parliament which has the power to legislate" relating to the election of the Member of the Parliament and the Member of the Legislative Assembly. It said that the power of the State is to legislate on matters relating to election to the Legislative Assembly is in Entry No.37 of List-II of the Seventh Schedule. This entry reads as under: a. Elections to the Legislature of the State subject to the provision of any law made by the Parliament. The court then observed, “Entry No.37 enables the State to make law relating to the Elections to the Legislature of the State, subject to the law made by the Parliament. However, the Act of 1951, the law made by the Parliament dealing with election to the Legislative Assembly is in force and the said Act does not provide any such power to the State. Thus, the Act of 1951 governs the election to the Legislative Assembly of a State.” Holding that in view of Article 254 of the Constitution of India, even assuming that there is any inconsistency in the Act of 1951 and Act of 1990, or that the provisions of both Acts overlap, the Act 1951 being the central legislation prevails over. Finally it held...

Election Petition Questioning Caste Certificate Of Elected Representative Maintainable Before High Court: Karnataka HC

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