Allahabad HC Dismisses Ex-BSF Jawan's Petition Challenging Election Of PM Modi From Varanasi [Read Judgment]

A single bench of Justice Manoj Kumar Gupta dismissed the petition filed by the former soldier, who was dismissed  from service after he had posted videos on social media ruing the poor quality food being served to troops.

"…the petitioner is neither an elector nor a candidate at the election which he seeks to challenge and would therefore have no locus to file election petition," said Justice Gupta.

While dismissing the petition, the court held that when a candidate was dismissed from Government service within a period of five years before the filing of the nomination, he is under obligation to file certificate from the Election Commission that his dismissal was not on ground of disloyalty or corruption.

Besides, it clarified that time to meet any objection raised by the Returning Officer in the nomination form is not necessarily next 24 hours.

Yadav was declared the Samajwadi Party candidate from Varanasi in 2019 polls but could not contest the election as his nomination was rejected by the Returning Officer for want of a certificate issued by the Election Commission to the effect that he had not been dismissed from the service of Government of India, on ground of corruption or disloyalty to the State.

He had moved court saying Modi's election be declared void while also demanding action against the Returning Officer for misusing his official position.

The Prime Minister's counsel said Yadav had no locus to file such a petition.

While dismissing the petition, Justice Gupta decided some major points of contention as under:

Claim of being duly nominated only if nomination form meets statutory requirement

The HC held that Yadav could not have filed the election petition as he was neither nominated nor could he be deemed to be duly nominated.

The court relied on Section 33 of The Representation of the People Act, 1951 which states that if a person in government service is dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

"The word 'deemed' embodies a rule of evidence. The object of these provisions is to reduce dispute relating to qualification of the person filing nomination. It presumes existence of certain facts which may possibly be true, but not necessarily always. The manner in which the presumption could be falsified is specified in the statute itself. Thus, in case of a reserved seat, even if a candidate belongs to one of the reserved class, but fails to make declaration, specifying his caste or tribe, he is presumed not qualified to be chosen to fill that post. Likewise, when a candidate was dismissed from Government service within five years of filing of the nomination, he is under obligation to file certificate from the Election Commission that his dismissal was not on ground of disloyalty or corruption, failing which, he will be presumed to be not duly nominated.

Concededly, in the instant case, the petitioner was dismissed from service of Government of India on 19.4.2017. He filed his nominations on 24.4.2017 (As Independent) and 29.4.2019. The period of five years had not elapsed by that time. Resultantly, the nomination were not in consonance with the statutory requirements. The petitioner cannot therefore claim to have been duly nominated," said the court.

The court also relied on Hari Kishan Lal vs. Atal Bihari Bajpai where also the Allahabad HC had held in year 2003 that the person filing election petition if not a "duly nominated candidate", will have "no locus standi to file an election petition".

Time to meet objection is till the next day, not next 24hrs

Another submission put forth by Yadav was that the procedure adopted by the Returning Officer in rejecting his nomination was invalid and that he should have been given at least time of 24 hours, or till the end of next working day, to meet the objections.

The bench noted that Yadav had filed his nomination as official candidate of Samajwadi Party on 29.4.2019, the last date for filing of nomination. He was issued a checklist by Returning Officer on the same date at 1:43 p.m., without raising any objection in regard to the nomination papers.

On 30.4.2019, the date fixed for scrutiny, he received a notice from the Returning Officer at 3:03 p.m., followed by another notice on the same date, at 6:15 p.m., stating that he had not filed certificate issues by the Election Commission.

He was given time up to 11 AM on 1.5.2019, i.e., the following day to furnish such certificate from the Election Commission to enable the Returning Officer to take decision on his nomination papers.

"…In strict consonance with the legislative mandate, time was granted to the petitioner to meet the objection by 11 a.m. on the next date, i.e. 1.5.2019. The contention that he should have been granted at least 24 hours time or till the end of next working day, does not have force. The provision only stipulates that time to rebut shall be allowed, which shall not be later than the next day, following the date fixed for scrutiny. It would not mean that for fulfilling the requirement of the said provision, time till end of next working day has to be granted.

The Returning Officer has also to take decision on the same date to which proceedings have been adjourned. For taking decision, he will also need time, as when nomination is rejected, he has to record brief reasons for such rejection. The provision has to be interpreted to advance the election scheme. Every step has to be taken with full promptitude to ensure completion of the election process in time. The principles of natural justice are applicable to the extent specifically provided. The petitioner cannot claim right to be dealt with more liberally if it is not permissible under the scheme of the statute," said Justice Gupta.

Yadav had unsuccessfully challenged in the Supreme Court the rejection of his nomination.

Click here to download the order