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SC Sets Aside Election Of People Party Of Arunachal’s Kameng Dolo [Read Judgment]

Apoorva Mandhani
17 May 2017 8:29 AM GMT
SC Sets Aside Election Of People Party Of Arunachal’s Kameng Dolo [Read Judgment]
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In a major blow to People Party of Arunachal (PPA), the Apex Court recently upheld the declaration of the 2014 election of MLA Kameng Dolo as void under Representation of the People’s Act, 1951, paving way for fresh elections.

The controversy related to the illegal withdrawal of the nomination of Mr. Atum Welly, which resulted into unopposed election of Mr. Dolo. The Court was now hearing an Appeal filed under Section 116A of the Representation of the People Act, 1951, challenging an order passed in February this year by the Gauhati High Court, which had quashed Mr. Dolo’s election from Pakke- Kessang (ST) Legislative Assembly Constituency. The High Court had set aside the election as void under Section 100(1) (d) (iv) of the Act.

Mr. Dolo’s election was challenged on the ground that Section 37 of the Act had not been complied with, and that acceptance of Mr. Welly’s withdrawal had materially affected the election. Mr. Dolo had, on the other hand, contended that the election needs to be construed strictly, and that such interpretation must be adopted which upholds the election of the returned candidate.

On an appreciation of the evidence, the Court concluded that neither the candidate nor his election agent had delivered the notice of withdrawal. It thereafter ruled that there had been total non-compliance of Section 37 of the Act. Sub-clause 1 of Section 37 mandates that such notice needs to be delivered in writing, to the Returning Officer either by the candidate in person or by his election agent on his behalf. Sub-clause 3 of Section 37 necessitates the satisfaction of the returning officer as to the genuineness of the notice of withdrawal and the identity of the person delivering it.

The Court, in this regard, observed, “We are singularly concerned with the interpretation of Section 37 of the Act and the illegal acceptance of withdrawal of a candidature by the returning officer. As the provision would reflect, the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The language employed in Section 37 of the Act is absolutely plain, unambiguous and unequivocal. It only admits of a singular interpretation. It is because the intention of the Parliament is that due care and caution has to be taken in letter and spirit so that no confusion is created. The issue of alert and careful exercise gains more significance when there are two candidates and that too from two National Parties. From this, it may not be understood, there will be any difference if there are two candidates, one from a National Party and the other from a regional party. The emphasis is on “two candidates” because if one’s withdrawal is allowed in complete violation of the statutory provision, the other candidate gets automatically declared elected, for there is no election, no contest.”

The Court further pointed out that in the case at hand, there was no contest at all, and that due to the flagrant breach of Section 37 of the Act, the election had been materially affected. It thereby declared that the election was void under Section 100(1) (d) (iv) of the Act.

The Bench comprising Justice Dipak Misra and Justice A.M. Khanwilkar observed that though it is a settled law that election of a candidate who has won at an election should not be lightly interfered with but it has also to be borne in mind that one of the essentials of election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of that law or by corrupt practices.

It therefore observed, “We are disposed to think so, when in transgression of the statutory provision, a candidate’s candidature is allowed to be withdrawn, it will tantamount to sacrilege of democracy. That is why, the mandate of Section 37 of the Act has been so carefully worded. The legislature has taken pains to provide safeguards since illegal acceptance of withdrawal has the potentiality to destroy the base of democracy and corrode its primary roots. The principle stated in Krishnamoorthy v. Sivakumar, are to the effect that the sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held and freedom in the exercise of the judgment which engulfs a voter’s right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage, are never to be eroded. The responsibility of a returning officer being statutorily significant, he has to keep himself alive to every facet and not act in a manner that will create a dent or hollowness in the election process.”

Read the Judgment here.

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