Supreme Court Dismisses Karnataka Congress MLA NA Haris' Plea Against HC Entertaining Petition Challenging His Election

The Supreme Court today refused to interfere with Karnataka High Court's decision to continue hearing an election petition filed by BJP's K Shivakumar challenging the election of Congress MLA NA Haris from Shantinagar assembly constituency in the Karnataka Legislative Assembly Elections (2023).A bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan heard the matter and left it for the Karnataka High Court to decide the issues. "We are not inclined to interfere with the impugned order at this stage. The petitioner shall be at liberty to raise all the issues before the High Court at an appropriate stage", dictated Justice Kant.Haris had filed the present petition aggrieved by a Karnataka High Court order, whereby his application for dismissal of Shivakumar's election petition was rejected.Courtroom Exchange : Supreme CourtSenior Advocate Kapil Sibal (for Haris): His (Shivakumar's) argument is that the affidavit filed (Form 26, Rule 4A), I [...] the facts in that affidavit...affidavit requires all kinds of details...moveable/immovable assets, who are the directors...that's not part of the nomination. There has to be a summary enquiry. No Returning Officer can hold any summary enquiryJ Kant: Which part of Form 2B is being alleged to have been...?Sibal: None. Allegation is qua Form 26J Datta: Is it not to be read alongwith nomination paper in Form 2B? Nomination paper requires you to fill it up in Form 2B and 2B has to be accompanied by this affidavit in Form 26...if there is something wrong in the affidavit, and the Returning Officer either overlooking it or by a conscious decision, accepts the nomination paper, would it not amount to improper acceptance of nomination?Sibal: That's the question. There is a remedy for that. Section 100(1)(d)(4)...he has the right to challenge it, but he has to challenge it under (d)(4). Surely, this is a question your Lordships will have to decideJ Kant: He rightly refers to [...] only...how (4) will apply? It's part of the nominationJ Datta: It (affidavit) has to be filed alongwith nomination...standalone, the affidavit has no valueJ Kant: Let the High Court decideSibal: In every case, affidavits will always be contestedJ Kant: Look at the requirement, if you allow some liberty or leverage in filing incomplete/false affidavit, then it will amount to improper filingJ Datta: Let the High Court decide. This person has come over 5 years and this is what...by the time for hearing [...] term is over? What are we doing? This is [injustice]. After 5 years, term will be over. High Court will say sorry sir, you have a very good case, but now that time is over, infructuous. This is a point which can be decided.J Kant: The nomination form filled with any wrong information whether inadvertent or deliberate...serial no. (4) you are referring to is a very generalized provisionJ Datta: If you file the nomination, if you don't file the affidavit, what is the consequence?Sibal: Violation under fourJ Datta: No! Nomination paper will be cancelled. It cannot be acceptedJ Kant: Can you file a nomination form without affidavit?Sibal: Yes, I can. It can be challengedJ Kant: Then it'd be improper acceptanceSibal: It's a corrupt practiceJ Kant: Let us see what view High Court takesBackgroundBriefly put, Shivakumar filed the election petition alleging that acceptance of Haris' nomination was improper and it materially affected and vitiated the election. Further, he prayed that he be declared as the elected candidate. Haris, on the other hand, claimed that Shivakumar had not made any specific averment regarding how the acceptance of the nomination materially affected the election.Hearing the parties, a single judge of the High Court opined, "if the allegation in the Election Petition is that there is improper acceptance of nomination papers of the Returned Candidate, there would be no further requirement of making any further averment or pleading as to how such improper acceptance has materially effected the election results of the Returned Candidate and a general averment that the improper acceptance of the nomination of the Returned Candidate has materially affected the result of the elected candidate itself is sufficient."Be that as it may, the High Court added that the Election Petitioner would have to establish the manner in which or the reasons to hold the nomination form to be improperly accepted.On the second issue (ie, of Shivakumar seeking declaration as the elected candidate), the High Court said,"If the Election of the returned candidate is declared to be void, the same would not however result in the declaration of the election petitioner to be the returned candidate...even when recrimination is sought to declare the Election Petitioner as a successful candidate, the election petition cannot be rejected for the reason that no grounds under Section 101 of the RP Act, 1951 have been pleaded in the election petition."Case Title: N.A HARIS Versus K. SHIVAKUMAR AND ORS., SLP(C) No....

Supreme Court Dismisses Karnataka Congress MLA NA Haris' Plea Against HC Entertaining Petition Challenging His Election

Debby Jain

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