Though Sparingly Needed To Be Exercised, Jurisdiction Under Article 226 Is Not Barred In Election Matters: Delhi HC
While placing reliance in case of Ashok Kumar & Ors. [(2000) 8 SCC 216], the Delhi High Court held that even where there is alternative remedy available still the Court has a narrow scope to adjudicate by exercising powers under Article 226 of the Constitution it the dispute raised is capable of being adjudicated, even in election matters concerning State or other authority.
A Single Judge Bench of Justice Purushendra Kumar Kaurav, while listening to writ petitions relating to election to various posts of the Executive Committee of Basketball Federation of India (BFI) observed that “It is settled law that the existence of an alternative remedy does not affect the jurisdiction of the court to issue writs and there is no absolute bar against the same. It is a rule of policy, convenience, and discretion rather than a rule of law. There cannot be a blanket ban on the exercise of such jurisdiction as that would effectively mean that the writ court is denuded of its jurisdiction, provided under Article 226 of the Constitution of India, and consistently held by the courts of this land to be plenary, to entertain such writ petitions.”
Senior Advocates Mukul Rohatgi, Dr. Abhishek Manu Singhvi, Rajiv Nayar, Dayan Krishnan and Sandeep Sethi appeared for the Petitioners, whereas, Advocate Darpan Kumar appeared for the Respondents.
Going by the background of the case, it was Petitioners case that second Respondent (Basketball Federation of India) did not follow Model Election Guideline (MEG)/ Sports Code and rather its incumbent President had appointed a Returning Officer (third Respondent – RO) who is a former District Judge from his own State i.e., the State of Karnataka in order to influence the election of the office bearers and members of the Executive Committee of BFI. Hence, the Petitioners challenged illegal ousting of candidates from contesting elections on a hyper technical ground due to which they were prevented from submitting nomination forms. It was also alleged that the Returning Officer after publishing names of the candidate in nomination list, had on the next day rejected some of the forms and left only as much number of candidates as a required in Form No.3 for election, due to which all of them were elected unopposed. In the meanwhile, interim relief was granted and operation of the letter relating to election was stayed. Hence, present petition.
After considering the submissions, the Bench elucidated that this court is not absolutely barred from exercising its writ jurisdiction in case of availability of alternate remedy, and that there is a narrow scope for the court to interfere in election matters.
The Bench also added that such power of exercising jurisdiction under Article 226 comes with a caveat, that it should be used sparingly and in extraordinary matters.
While refraining from going into the issue of transparency and fairness of the decision of the RO and confining its adjudication on issues of rejection of nomination forms and the defect, the Bench highlighted that “under the facts of the present case, whether the election stands concluded or not will not detain this court from exercising its powers under Article 226 of the Constitution of India.”
While examining Section 53(2) of the Representation of the People Act, 1951 (RP Act) and comparing it with clauses of the Sports Code/ MEG, the High Court observed that there is no specific provision under clause 9(1) which binds the RO to elect the candidate if he is unopposed.
Therefore, while further adding that without formal declaration in Form 15, the election cannot be said to be concluded, the High Court remarked that as the Respondent is a State or other authority within the meaning of Article 12 of the Constitution, the question whether the election is a concluded one or not, should not be dealt with by this court.
Upon the argument submitted by the RO on the issue of rejection of Nomination forms that they were not in line with Form No.2, the Bench compared the two Forms and analyzed Section 36(4) of the RP Act in which it is provided that defect should be of a substantial character, and that if an objection is raised by the RO, the candidate should be provided an opportunity to rebut it.
Also, upon perusal of Handbook relied by the RO, the Bench found that the rejections were based on insubstantial grounds, and hence, set aside order of the RO rejecting the nomination forms of the Petitioners.
Therefore, while holding that the electoral process shall continue from the stage of the nomination process, the High Court appointed Justice P. Krishna Bhat, the former judge of the High Court of Karnataka as an administrator, and allowed existing officer bearers to continue with their positions restricting their power from making any policy changes.
Cause Title: Pondicherry Basketball Association and Ors. v. Union of India and Ors.