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V.Abdullah Sait vs Union Of India on 16 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.04.2019

CORAM

THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE Mr.JUSTICE SUBRAMONIUM PRASAD

W.P.(MD).No.9137 of 2019

V.Abdullah Sait … Petitioner

v.

1.The Chief Election Commissioner of India,
Nirvachansadan,
Ashoka Road, New Delhi – 110 001.

2.The Chief Electoral Officer,
State of Tamil Nadu,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.

3.The Chief Secretary,
State of Tamil Nadu,
Secretariat, Fort St.George,
Chennai – 600 009.

4.The Home Secretary,
State of Tamil Nadu,
Secretariat, Fort St.George,
Chennai – 600 009.

5.The Director General of Police (DGP),
State of Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.

6.The District Collector,
Collectorate,
http://www.judis.nic.in Tuticorin District.
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7.The Superintendent of Police,
Office of Superintendent of Police,
Tuticorin District.

8.The District Collector,
Vellore District Collector Office,
Vellore, Tamil Nadu.

9.The Superintendent of Police,
Office of Superintendent of Police,
Vellore District.

10.Mrs.Kanimozhi Karunanidhi
Women’s Wing Secretary,
Dravida Munnetra Kazhagam,
DMK Candidtate,
Tuticorin Constituency.

11.Mr.D.M.Kathir Anand,
S/o. Durai Murugan,
Vellore Constituency,
DMK Candidate, Vellore. … Respondents

Prayer: The Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Mandamus, directing the respondents 1 to 9 to
take action against the respondents 10 and 11 for violation of model code of
conduct, to disqualify them from the contesting polls, consider and pass
orders on the basis of petitioner’s representation dated 05.04.2019.

For Petitioner : Mr.A.K.Sriram
for Mr.K.Neelamegam

For Respondents : Mr.Niranjan Rajagopalan
for R1, R2, R5 to R9
Mr.E.Manoharan
Additional Government Pleader
for R3 and R4

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ORDER

(The Order of the Court was made by S.Manikumar, J.,)

Alleging that Ms.Kanimozhi, Women’s Wing Secretary, Dravida

Munnetra Kazhagam, DMK Candidate, Tuticorin Constituency, 10th

respondent and Mr. D.M.Kathir Anand, S/o. Durai Murugan, Vellore

Constituency, DMK Candidate, Vellore, 11th respondent are indulging in

corrupt practices and that a sum of Rs.12 Crores, has been seized from one

Mr.Poonsolai Srinivasan, Rs.19 Crores from Mr.Damodaran and Rs.5 Crores

from Mr.Afsal Ali and totally Rs.36 Crores and all the above said persons are

relatives and assistants of Durai Murugan, M.L.A., Ex.Minister and

contending that despite representations have been made to the Chief

Election Commissioner, Union of India, New Delhi – 1st respondent, seeking

for disqualification of respondents 10 and 11, no action has been taken and

therefore, the petitioner has contended that left with no other opportunity,

he has filed the instant Public Interest Litigation for a Writ of Mandamus,

directing the respondents 1 to 9 to take action against respondents 10 and

11 for violation of model code of conduct, to disqualify by them from

contesting polls, by considering the petitioner’s representation dated

05.04.2019.

2. On the above averments, Mr.A.K.Sriram, learned counsel for the

petitioner, made submissions and insisted for consideration of petitioner’s
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representation, dated 05.04.2019, by the Chief Election Commissioner, New

Delhi – 1st respondent.

3. Responding to the above, Mr.Niranjan Rajagopalan, learned

counsel for Election Commission of India, submitted that prayer sought for,

should not be granted, for the reason that FIRs have been registered,

against respondents 10 and 11 respectively. Citing Sections 8 and 8-A of the

Representation of the People Act, 1951, he submitted that mere

registration of FIR does not attract disqualification.

4. Learned counsel for the respondent submitted that considering a

similar prayer for disqualification of the contestants against whom, charge

sheets were filed for heinous and grievous offences, the Hon’ble Supreme

Court in Public Interest Foundation and others vs. Union of India,

reported in 2019 (3) SCC 224, after considering the statutory provision and

law, at Paragraph 25 held as follows :

“thus the prescription as regards
disqualification is complete is in view of the language
employed in Section 7(b) read with Sections 8 to 10-A
of the Act. It is clear as noon day and there is no
ambiguity. The legislature has very clearly enumerated
the grounds for disqualification and the language of
the said provision leaves no room for any new ground
to be added or introduced.”
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It is further held that the legislature has very clearly enumerated the

grounds for disqualification and the language of the said provision leaves no

room for any new ground to be added or introduced.

5. Insofar as Mr.Kathir Anand, 11th respondent is concerned, on the

complaint of one M.Siluppan, the Personnel Assistant, Accounts,

Government Gazetted Official to the Collector of Vellore District,

Collectorate, Vellore, a case in F.I.R.No.205 of 2019 has been registered on

10.04.2019 under Section 125A(i), 171(E) and 171(B) IPC on the file of the

Katpadi Police Station.

6. As regards 10th respondent is concerned, on the complaint of the

Flying Squad (FST-3) of Tiruchengode Constituency, the police has

registered a case in Crime No.107/2019 under Section 171(H) r/w 171(E) and

143 IPC dated 28.03.2019 against DMK M.L.A M/s.Anitha Radhakrishnan and

DMK M.P. Mrs.Kanimozhi and others, on the file of Tiruchengode Police

Station.

7. Therefore, Mr.Niranjan Rajagopalan, learned counsel for the

Election Commission of India submitted that for the alleged violation of

model code of conduct, First Information Report has been registered against

the respondents 10 and 11 respectively and therefore, he sought for

dismissal of the writ petition.

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Heard Mr.A.K.Sriram, learned counsel for the petitioner and

Mr.Niranjan Rajagopalan learned counsel for respondents 1, 2, 5 to 9 and

Mr.E.Manoharan, learned Additional Government Pleader for respondents 3

and 4 and perused the materials available on record.

8. On an earlier occasion in W.P.No.11744 of 2019, dated 15.04.2019,

this Court considered, a similar prayer, as to whether, disqualification can

be issued, when the contestant has not been convicted for any criminal case

and taking note of the statutory provisions and decision of the Hon’ble

Supreme Court in Public Interest Foundation and other V. Union of India

and Another, reported in (2019) 3 SCC 224, we ordered as hereunder :

“Added further, Section 100 of the Representation of
the People Act, 1951, deals with grounds for declaring
election to be void. As per Section 100(1)(d) of the said Act,
subject to the provisions of sub-section (2), if the High Court
is of opinion, that the result of the election, insofar as it
concerns a returned candidate, has been materially affected,

(i) by the improper acceptance or any nomination, or (ii) by
any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent,
or (iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or (iv) by any
non—compliance with the provisions of the Constitution or of
this Act or of any rules or orders made under this Act, then
the High Court shall declare the election of the returned
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19. If Mr.Manzoor Alikhan, is elected, the petitioner is
not remediless. In the light of Section 100(1)(d) of the
Representation of the People Act, 1951, the petitioner can
always approach this Court, by way of election petition for a
declaration of the election results of Mr.Manzoor Alikhan, to
be void.

20. Section 8 of the Representation of the People Act,
1951, deals with disqualification on conviction for certain
offences. Section 8-A of the said Act, deals with
disqualification on the ground of corrupt practices. Sections 8
and 8(A) of the said Act, are extracted hereunder:-

“8. Disqualification on conviction for certain
offences.—(1) A person convicted of an offence punishable
under—

(a) Section 153-A (offence of promoting enmity between
different groups on ground of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or Section 171-E (offence of
bribery) or Section 171-E (offence of undue influence or
personation at an election) or sub-section (1) or sub-section
(2) of Section 376 or Section 376-A or Section 376-B or
Section 376-C or Section 376-D (offences relating to rape) or
Section 498-A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or sub-

section (3) of Section 505 (offence of making statement
creating or promoting enmity, hatred or ill-will between
classes or offence relating to such statement in any place of
worship or in any assembly engaged in the performance of
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religious worship or religious ceremonies) of the Indian Penal
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Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955),
which provides for punishment for the preaching and
practice of “untouchability”, and for the enforcement of any
disability arising therefrom; or

(c) Section 11 (offence of importing or exporting prohibited
goods) of the Customs Act, 1962 (52 of 1962); or

(d) Sections 10 to 12 (offence of being a member of an
association declared unlawful, offence relating to dealing
with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37
of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973);
or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985); or

(g) Section 3 (offence of committing terrorist acts) or Section
4 (offence of committing disruptive activities) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (28
of 1987); or

(h) Section 7 (offence of contravention of the provisions of
Sections 3 to 6) of the Religious Institutions (Prevention of
Misuse) Act, 1988 (41 of 1988); or

(i) Section 125 (offence of promoting enmity between classes
in connection with the election) or Section 135 (offence of
removal of ballot papers from polling stations) or Section
135-A (offence of booth capturing) or clause (a) of sub-
section (2) of Section 136 (offence of fraudulently defacing
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or fraudulently destroying any nomination paper) of this Act;

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or

(j) Section 6 (offence of conversion of a place of worship) of
the Places of Worship (Special Provisions) Act, 1991, or

(k) Section 2 (offence of insulting the Indian National Flag or
the Constitution of India) or Section 3 (offence of preventing
singing of National Anthem) of the Prevention of Insults to
National Honour Act, 1971 (69 of 1971); or

(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988);
or

(m) the Prevention of Corruption Act, 1988 (49 of 1988); or

(n) the Prevention of Terrorism Act, 2002 (15 of 2002);
shall be disqualified, where the convicted person is
sentenced to—

(i) only fine, for a period of six years from the date of such
conviction;

(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or
profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961);

and sentenced to imprisonment for not less than six months,
shall be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six
years since his release.

(3) A person convicted of any offence and sentenced to
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imprisonment for not less than two years other than any
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offence referred to in sub-section (1) or sub-section (2) shall
be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.

(4) Notwithstanding anything in sub-section (1), sub-section
(2) and sub-section (3) a disqualification under either sub-
section shall not, in the case of a person who on the date of
the conviction is a member of Parliament or the legislature
of a State, take effect until three months have elapsed from
that date or, if within that period an appeal or application
for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by
the court.

Explanation.—In this section—

(a) “law providing for the prevention of hoarding or
profiteering” means any law, or any order, rule or
notification having the force of law, providing for—

(i) the regulation of production or manufacture of any
essential commodity;

(ii) the control of price at which any essential commodity
may be brought or sold;

(iii) the regulation of acquisition, possession, storage,
transport, distribution, disposal, use or consumption of any
essential commodity;

(iv) the prohibition of the withholding from sale of any
essential commodity ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs and
Cosmetics Act, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in
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the Essential Commodities Act, 1955 (10 of 1955);

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(d) “food” has the meaning assigned to it in the Prevention
of Food Adulteration Act, 1954 (37 of 1954).

8-A. Disqualification on ground of corrupt
practices.—(1) The case of every person found guilty of a
corrupt practice by an order under Section 99 shall be
submitted, as soon as may be within a period of three
months from the date such order takes effect, by such
authority as the Central Government may specify in this
behalf, to the President for determination of the question as
to whether such person shall be disqualified and if so, for
what period:

Provided that the period for which any person may
be disqualified under this sub-section shall in no case exceed
six years from the date on which the order made in relation
to him under Section 99 takes effect.

(2) Any person who stands disqualified under
Section 8-A of this Act as it stood immediately before the
commencement of the Election Laws (Amendment) Act, 1975
(40 of 1975), may, if the period of such disqualification has
not expired, submit a petition to the President for the
removal of such disqualification for the unexpired portion of
the said period.

(3) Before giving his decision on any question
mentioned in sub-section (1) or on any petition submitted
under sub-section (2), the President shall obtain the opinion
of the Election Commission on such question or petition and
shall act according to such opinion.”

21. Reading of the above, makes it clear that
disqualification is attracted only on conviction, as explained
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in the said Act. As rightly contended by Mr.Niranjan
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Rajagopalan, learned counsel for Election Commission of
India, Mr.Manzoor Alikhan, has not been convicted for any of
the offences, as stated in Section 8 of the Representation of
the People Act, 1951 and therefore no disqualification is
attracted. In the case on hand, even FIR in Crime No.2915 of
2017 on the file of the Inspector of Police, Choolaimedu
Police Station, Chennai, for the alleged offences, under
Section 482 of Cr.P.C., has been quashed by this Court in
Crl.O.P.No.1125 of 2018.

22. Added further, on the issue, as to whether,
pendency of criminal cases, where charge sheet has been
filed for heinous and grievous offence, could be taken as
disqualification to contest in a election for MP’s and MLA’s,
the Hon’ble Supreme Court in Public Interest Foundation’s
case (cited supra) discussed the same and ultimately, at
paragraph No.25, ordered that
“thus the prescription as regards disqualification is
complete is in view of the language employed in Section 7(b)
read with Sections 8 to 10-A of the Act. It is clear as noon day
and there is no ambiguity. The legislature has very clearly
enumerated the grounds for disqualification and the language
of the said provision leaves no room for any new ground to be
added or introduced.”

23. It is also worthwhile to consider paragraph
Nos.2 to 24 of the said judgment, which are reproduced
hereunder:

“2. The constitutional functionaries, who have
taken the pledge to uphold the constitutional principles, are
charged with the responsibility to ensure that the existing
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political framework does not get tainted with the evil of
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corruption. However, despite this heavy mandate prescribed
by our Constitution, our Indian democracy, which is the
world’s largest democracy, has seen a steady increase in the
level of criminalisation that has been creeping into the
Indian polity. This unsettlingly increasing trend of
criminalisation of politics, to which our country has been a
witness, tends to disrupt the constitutional ethos and strikes
at the very root of our democratic form of government by
making our citizenry suffer at the hands of those who are
nothing but a liability to our country.

3. The issue that emerges for consideration before
this Bench is whether disqualification for membership can be
laid down by the Court beyond Articles 102(a) to (d) and the
law made by Parliament under Article 102(e). A three-Judge
Bench hearing the matter was of the view [Public Interest
Foundation v. Union of India, 2016 SCC OnLine SC 1731] that
this question is required to be addressed by the Constitution
Bench under Article 145(3) of the Constitution. Be it stated,
a submission was advanced before the three-Judge Bench
that the controversy was covered by the decision in Manoj
Narula v. Union of India [Manoj Narula v. Union of India,
(2014) 9 SCC 1] . The said submission was not accepted
because of the view expressed by Madan B. Lokur, J. in his
separate judgment.

4. In the course of hearing, the contour of the
question was expanded with enormous concern to curb
criminalisation of politics in a democratic body polity. The
learned counsel for the petitioners submitted that having
regard to the rise of persons with criminal antecedents, the
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fundamental concept of decriminalisation of politics should
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be viewed from a wider spectrum and this Court, taking into
consideration the facet of interpretation, should assume the
role of judicial statesmanship. Mr K.K. Venugopal, learned
Attorney General for India and other learned counsel, per
contra, would submit that there can be no denial that this
Court is the final arbiter of the Constitution and the
Constitution empowers this wing of the State to lay down the
norms of interpretation and show judicial statesmanship but
the said judicial statesmanship should not ignore the
fundamental law relating to separation of powers, primary
responsibility conferred on the authorities under the
respective powers and the fact that no authority should do
anything for which the power does not flow from the
Constitution. In essence, the submission of Mr Venugopal is
that the Court should not cross the “Lakshman Rekha”.
Resting on the fulcrum of constitutional foundation and on
the fundamental principle that if the Court comes to hold
that it cannot legislate but only recommend for bringing in a
legislation, as envisaged under Article 102(1)(e) of the
Constitution, it would not be appropriate to take recourse to
any other method for the Simon pure reason that what
cannot be done directly, should not be done indirectly. We
shall advert to the said submission at a later stage.

5. Article 102 reads as follows:

“102. Disqualifications for membership.—(1) A
person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of
India or the Government of any State, other than an office
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declared by Parliament by law not to disqualify its holder;

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(b) if he is of unsound mind and stands so declared by a
competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign
State;

(e) if he is so disqualified by or under any law made by
Parliament.

Explanation.—For the purposes of this clause a person shall
not be deemed to hold an office of profit under the
Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for
such State.

(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under the
Tenth Schedule.”

6. In this context, we may also refer to Article 191
of the Constitution that deals with disqualifications for
membership. It is as follows:

“191. Disqualifications for membership.—(1) A person shall
be disqualified for being chosen as, and for being, a member
of the Legislative Assembly or Legislative Council of a State—

(a) if he holds any office of profit under the Government of
India or the Government of any State specified in the First
Schedule, other than an office declared by the Legislature of
the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a
competent court;

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(c) if he is an undischarged insolvent;

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(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign
State;

(e) if he is so disqualified by or under any law made by
Parliament.

Explanation.—For the purposes of this clause, a person shall
not be deemed to hold an office of profit under the
Government of India or the Government of any State
specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is
so disqualified under the Tenth Schedule.”

7. On a perusal of both the articles, it is clear as
crystal that as regards disqualification for being chosen as a
Member of either House of Parliament and similarly
disqualification for being chosen or for being a Member of
Legislative Assembly or Legislative Council of a State, the
law has to be made by Parliament.

. In Lily Thomas v. Union of India [Lily Thomas v.
Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 :
(2013) 3 SCC (Cri) 641 : (2013) 2 SCC (LS) 811] , it has been
held: (SCC p. 669, para 26)
“26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on
the other hand, have conferred specific powers on
Parliament to make law providing disqualifications for
membership of either House of Parliament or Legislative
Assembly or Legislative Council of the State other than those
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specified in sub-clauses (a), (b), (c) and (d) of clause (1) of
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Articles 102 and 191 of the Constitution. We may note that
no power is vested in the State Legislature to make law
laying down disqualifications of membership of the
Legislative Assembly or Legislative Council of the State and
power is vested in Parliament to make law laying down
disqualifications also in respect of Members of the
Legislative Assembly or Legislative Council of the State. For
these reasons, we are of the considered opinion that the
legislative power of Parliament to enact any law relating to
disqualification for membership of either House of
Parliament or Legislative Assembly or Legislative Council of
the State can be located only in Articles 102(1)(e) and
191(1)(e) of the Constitution and not in Article 246(1) read
with Schedule VII List I Entry 97 and Article 248 of the
Constitution. We do not, therefore, accept the contention of
Mr Luthra that the power to enact sub-section (4) of Section
8 of the Act is vested in Parliament under Article 246(1) read
with Schedule VII List I Entry 97 and Article 248 of the
Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the
Constitution.”
We have no hesitation in saying that the view expressed
above in Lily Thomas [Lily Thomas v. Union of India, (2013) 7
SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 :
(2013) 2 SCC (LS) 811] is correct, for Parliament has the
exclusive legislative power to lay down disqualification for
membership.

9. In Manoj Narula [Manoj Narula v. Union of India,
(2014) 9 SCC 1] , the question centred around the
interpretation of Article 75 of the Constitution. The core
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issue pertained to the legality of persons with criminal
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background and/or charged with offences involving moral
turpitude to be appointed as ministers in the Central and the
State Governments. The majority referred to the
constitutional provisions, namely, Articles 74, 75, 163 and
164, adverted to the doctrine of implied limitation and, in
that context, opined thus: (SCC p. 45, para 64)
“64. On a studied scrutiny of the ratio of the
aforesaid decisions, we are of the convinced opinion that
when there is no disqualification for a person against whom
charges have been framed in respect of heinous or serious
offences or offences relating to corruption to contest the
election, by interpretative process, it is difficult to read the
prohibition into Article 75(1) or, for that matter, into Article
164(1) to the powers of the Prime Minister or the Chief
Minister in such a manner. That would come within the
criterion of eligibility and would amount to prescribing an
eligibility qualification and adding a disqualification which
has not been stipulated in the Constitution. In the absence
of any constitutional prohibition or statutory embargo, such
disqualification, in our considered opinion, cannot be read
into Article 75(1) or Article 164(1) of the Constitution.”

10. There has been advertence to the principle of
constitutional silence or abeyance and, in that context, it
has been ruled that it is not possible to accept that while
interpreting the words “advice of the Prime Minister”, it can
legitimately be inferred that there is a prohibition to think
of a person as a minister if charges have been framed against
him in respect of heinous and serious offences including
corruption cases under the criminal law. Thereafter, the
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majority addressed the concepts of “constitutional
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morality”, “constitutional governance” and “constitutional
trust” and analysed the term “advice” employed under
Article 75(1) and stated that formation of an opinion by the
Prime Minister in the context of Article 75(1) is expressed by
the use of the said word because of the trust reposed in the
Prime Minister under the Constitution and the said advice, to
put it differently, is a constitutional advice. Reference was
made to the debate in the Constituent Assembly which had
left it to the wisdom of the Prime Minister because of the
intrinsic faith in him. Discussing further, it has been stated:
(Manoj Narula case [Manoj Narula v. Union of India, (2014) 9
SCC 1] , SCC p. 54, para 96)
“96. … At the time of framing of the Constitution,
the debate pertained to conviction. With the change of time,
the entire complexion in the political arena as well as in
other areas has changed. This Court, on number of occasions,
as pointed out hereinbefore, has taken note of the
prevalence and continuous growth of criminalisation in
politics and the entrenchment of corruption at many a level.
In a democracy, the people never intend to be governed by
persons who have criminal antecedents. This is not merely a
hope and aspiration of citizenry but the idea is also
engrained in apposite executive governance.”
And again: (SCC p. 55, para 98)
“98. … That the Prime Minister would be giving
apposite advice to the President is a legitimate
constitutional expectation, for it is a paramount
constitutional concern. In a controlled Constitution like ours,
the Prime Minister is expected to act with constitutional
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responsibility as a consequence of which the cherished values
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of democracy and established norms of good governance get
condignly fructified. The Framers of the Constitution left
many a thing unwritten by reposing immense trust in the
Prime Minister. The scheme of the Constitution suggests that
there has to be an emergence of constitutional governance
which would gradually grow to give rise to constitutional
renaissance.”

11. Lokur, J. opined: (Manoj Narula case [Manoj
Narula v. Union of India, (2014) 9 SCC 1] , SCC pp. 70-71,
para 132)
“132. While it may be necessary, due to the
criminalisation of our polity and consequently of our politics,
to ensure that certain persons do not become Ministers, this
is not possible through guidelines issued by this Court. It is
for the electorate to ensure that suitable (not merely
eligible) persons are elected to the legislature and it is for
the legislature to enact or not enact a more restrictive law.”
Proceeding further, the learned Judge stated: (SCC p. 72,
para 137)
“137. In this respect, the Prime Minister is, of
course, answerable to Parliament and is under the gaze of
the watchful eye of the people of the country. Despite the
fact that certain limitations can be read into the
Constitution and have been read in the past, the issue of the
appointment of a suitable person as a Minister is not one
which enables this Court to read implied limitations in the
Constitution.”

12. Lokur, J. had also, in his opinion in Manoj
Narula case [Manoj Narula v. Union of India, (2014) 9 SCC 1] ,
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reproduced the words of Dr B.R. Ambedkar in the
21

Constituent Assembly on 25-11-1949 and the sentiments
echoed by Dr Rajendra Prasad on 26-11-1949. Dr Ambedkar
had said: (SCC pp. 72-73, para 138)
“138. … ‘As much defence as could be offered to
the Constitution has been offered by my friends Sir Alladi
Krishnaswami Ayyar and Mr T.T. Krishnamachari. I shall not
therefore enter into the merits of the Constitution. Because
I feel, however good a Constitution may be, it is sure to turn
out bad because those who are called to work it, happen to
be a bad lot. However bad a Constitution may be, it may
turn out to be good if those who are called to work it,
happen to be a good lot. The working of a Constitution does
not depend wholly upon the nature of the Constitution. The
Constitution can provide only the organs of State such as the
Legislature, the Executive and the Judiciary. The factors on
which the working of those organs of the State depend are
the people and the political parties they will set up as their
instruments to carry out their wishes and their politics. Who
can say how the people of India and their parties will
behave? Will they uphold constitutional methods of achieving
their purposes or will they prefer revolutionary methods of
achieving them? If they adopt the revolutionary methods,
however good the Constitution may be, it requires no
prophet to say that it will fail. It is, therefore, futile to pass
any judgment upon the Constitution without reference to
the part which the people and their parties are likely to
play.’ (CAD Vol. 11, p. 975)”

13. The learned Judge Lokur, J. in Manoj Narula
case [Manoj Narula v. Union of India, (2014) 9 SCC 1]
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reproduced the words of Dr Rajendra Prasad, which ring till
22

today: (Manoj Narula case [Manoj Narula v. Union of India,
(2014) 9 SCC 1] , SCC p. 73, para 139)
“139. … ‘Whatever the Constitution may or may
not provide, the welfare of the country will depend upon the
way in which the country is administered. That will depend
upon the men who administer it. It is a trite saying that a
country can have only the Government it deserves. Our
Constitution has provisions in it which appear to some to be
objectionable from one point or another. We must admit
that the defects are inherent in the situation in the country
and the people at large. If the people who are elected are
capable and men of character and integrity, they would be
able to make the best even of a defective Constitution. If
they are lacking in these, the Constitution cannot help the
country. After all, a Constitution like a machine is a lifeless
thing. It acquires life because of the men who control it and
operate it, and India needs today nothing more than a set of
honest men who will have the interest of the country before
them.’ (CAD Vol. 11, p. 993)”

14. Kurian Joseph, J., in Manoj Narula case [Manoj
Narula v. Union of India, (2014) 9 SCC 1] concurring with the
opinion, has stated: (Manoj Narula case [Manoj Narula v.
Union of India, (2014) 9 SCC 1] , SCC p. 76, para 152)
“152. No doubt, it is not for the Court to issue any
direction to the Prime Minister or the Chief Minister, as the
case may be, as to the manner in which they should exercise
their power while selecting the colleagues in the Council of
Ministers. That is the constitutional prerogative of those
functionaries who are called upon to preserve, protect and
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defend the Constitution. But it is the prophetic duty of this
23

Court to remind the key duty holders about their role in
working the Constitution. Hence, I am of the firm view, that
the Prime Minister and the Chief Minister of the State, who
themselves have taken oath to bear true faith and allegiance
to the Constitution of India and to discharge their duties
faithfully and conscientiously, will be well advised to
consider avoiding any person in the Council of Ministers,
against whom charges have been framed by a criminal court
in respect of offences involving moral turpitude and also
offences specifically referred to in Chapter III of the
Representation of the People Act, 1951.”

15. The thrust of the matter is whether any
disqualification can be read as regards disqualification for
membership into the constitutional provisions. Article 102(1)
specifies certain grounds and further provides that any
disqualification can be added by or under any law made by
Parliament. Article 191 has the same character.

16. Chapter III of the Representation of the People
Act, 1951 (for brevity, “the Act”) deals with disqualification
for membership of Parliament and the State Legislatures.
Section 7 deals with definitions. It is as follows:
“7. Definitions.—In this Chapter—

(a) “appropriate Government” means in relation
to any disqualification for being chosen as or for being a
member of either House of Parliament, the Central
Government, and in relation to any disqualification for being
chosen as or for being a member of the Legislative Assembly
or Legislative Council of a State, the State Government;

(b) “disqualified” means disqualified for being
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chosen as, and for being, a member of either House of
24

Parliament or of the Legislative Assembly or Legislative
Council of a State under the provisions of this Chapter, and
on no other ground.”

17. The word “disqualified” clearly states that a
person be disqualified from being a member under the
provisions of the said chapter and/or on no other ground.
The words “no other ground” are of immense significance.
Apart from the grounds mentioned under Articles 102(1)(a)
to 102(1)(d) and Articles 191(1)(a) to 191(1)(d), the other
grounds are provided by Parliament and Parliament has
provided under Sections 8, 8-A, 9, 9-A, 10 and 10-A which
read thus:

“8. Disqualification on conviction for certain
offences.—(1) A person convicted of an offence punishable
under—

(a) Section 153-A (offence of promoting enmity between
different groups on ground of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or Section 171-E (offence of
bribery) or Section 171-E (offence of undue influence or
personation at an election) or sub-section (1) or sub-section
(2) of Section 376 or Section 376-A or Section 376-B or
Section 376-C or Section 376-D (offences relating to rape) or
Section 498-A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or sub-
section (3) of Section 505 (offence of making statement
creating or promoting enmity, hatred or ill-will between
classes or offence relating to such statement in any place of
worship or in any assembly engaged in the performance of
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religious worship or religious ceremonies) of the Indian Penal
25

Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955),
which provides for punishment for the preaching and
practice of “untouchability”, and for the enforcement of any
disability arising therefrom; or

(c) Section 11 (offence of importing or exporting prohibited
goods) of the Customs Act, 1962 (52 of 1962); or

(d) Sections 10 to 12 (offence of being a member of an
association declared unlawful, offence relating to dealing
with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37
of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973);
or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985); or

(g) Section 3 (offence of committing terrorist acts) or Section
4 (offence of committing disruptive activities) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (28
of 1987); or

(h) Section 7 (offence of contravention of the provisions of
Sections 3 to 6) of the Religious Institutions (Prevention of
Misuse) Act, 1988 (41 of 1988); or

(i) Section 125 (offence of promoting enmity between classes
in connection with the election) or Section 135 (offence of
removal of ballot papers from polling stations) or Section
135-A (offence of booth capturing) or clause (a) of sub-
section (2) of Section 136 (offence of fraudulently defacing
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or fraudulently destroying any nomination paper) of this Act;

26

or

(j) Section 6 (offence of conversion of a place of worship) of
the Places of Worship (Special Provisions) Act, 1991, or

(k) Section 2 (offence of insulting the Indian National Flag or
the Constitution of India) or Section 3 (offence of preventing
singing of National Anthem) of the Prevention of Insults to
National Honour Act, 1971 (69 of 1971); or

(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988);
or

(m) the Prevention of Corruption Act, 1988 (49 of 1988); or

(n) the Prevention of Terrorism Act, 2002 (15 of 2002);
shall be disqualified, where the convicted person is
sentenced to—

(i) only fine, for a period of six years from the date of such
conviction;

(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or
profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961);

and sentenced to imprisonment for not less than six months,
shall be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six
years since his release.

(3) A person convicted of any offence and sentenced to
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imprisonment for not less than two years other than any
27

offence referred to in sub-section (1) or sub-section (2) shall
be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.

(4) Notwithstanding anything in sub-section (1), sub-section
(2) and sub-section (3) a disqualification under either sub-
section shall not, in the case of a person who on the date of
the conviction is a member of Parliament or the legislature
of a State, take effect until three months have elapsed from
that date or, if within that period an appeal or application
for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by
the court.

Explanation.—In this section—

(a) “law providing for the prevention of hoarding or
profiteering” means any law, or any order, rule or
notification having the force of law, providing for—

(i) the regulation of production or manufacture of any
essential commodity;

(ii) the control of price at which any essential commodity
may be brought or sold;

(iii) the regulation of acquisition, possession, storage,
transport, distribution, disposal, use or consumption of any
essential commodity;

(iv) the prohibition of the withholding from sale of any
essential commodity ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs and
Cosmetics Act, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned to it in
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the Essential Commodities Act, 1955 (10 of 1955);

28

(d) “food” has the meaning assigned to it in the Prevention
of Food Adulteration Act, 1954 (37 of 1954).
8-A. Disqualification on ground of corrupt practices.—(1) The
case of every person found guilty of a corrupt practice by an
order under Section 99 shall be submitted, as soon as may be
within a period of three months from the date such order
takes effect, by such authority as the Central Government
may specify in this behalf, to the President for
determination of the question as to whether such person
shall be disqualified and if so, for what period:
Provided that the period for which any person may be
disqualified under this sub-section shall in no case exceed six
years from the date on which the order made in relation to
him under Section 99 takes effect.

(2) Any person who stands disqualified under Section 8-A of
this Act as it stood immediately before the commencement
of the Election Laws (Amendment) Act, 1975 (40 of 1975),
may, if the period of such disqualification has not expired,
submit a petition to the President for the removal of such
disqualification for the unexpired portion of the said period.

(3) Before giving his decision on any question mentioned in
sub-section (1) or on any petition submitted under sub-
section (2), the President shall obtain the opinion of the
Election Commission on such question or petition and shall
act according to such opinion.

9. Disqualification for dismissal for corruption or disloyalty.
—(1) A person who having held an office under the
Government of India or under the Government of any State
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has been dismissed for corruption or for disloyalty to the
29

State shall be disqualified for a period of five years from the
date of such dismissal.

(2) For the purposes of sub-section (1), a certificate issued
by the Election Commission to the effect that a person
having held office under the Government of India or under
the Government of a State, has or has not been dismissed for
corruption or for disloyalty to the State shall be conclusive
proof of that fact:

Provided that no certificate to the effect that a person has
been dismissed for corruption or for disloyalty to the State
shall be issued unless an opportunity of being heard has been
given to the said person.

9-A. Disqualification for Government contracts, etc.—A
person shall be disqualified if, and for so long as, there
subsists a contract entered into by him in the course of his
trade or business with the appropriate Government for the
supply of goods to, or for the execution of any works
undertaken by, that Government.

Explanation.—For the purposes of this section, where a
contract has been fully performed by the person by whom it
has been entered into with the appropriate Government, the
contract shall be deemed not to subsist by reason only of the
fact that the Government has not performed its part of the
contract either wholly or in part.

10. Disqualification for office under Government company.—
A person shall be disqualified if, and for so long as, he is a
managing agent, manager or secretary of any company or
corporation (other than a cooperative society) in the capital
of which the appropriate Government has not less than
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twenty-five per cent share.

30

10-A. Disqualification for failure to lodge account
of election expenses.—If the Election Commission is satisfied
that a person—

(a) has failed to lodge an account of election expenses within
the time and in the manner required by or under the Act,
and

(b) has no good reason or justification for the failure,
the Election Commission shall, by order published in the
Official Gazette, declare him to be disqualified and any such
person shall be disqualified for a period of three years from
the date of the order.”

18. From the aforesaid, it is decipherable that
Section 8 deals with disqualification on conviction for certain
offences. Section 8-A provides for disqualification on ground
of corrupt practices. Section 9 provides for the
disqualification for dismissal for corruption or disloyalty.
Section 9-A deals with the situation where there is subsisting
contract between the person and the appropriate
government. Section 10 lays down disqualification for office
under government company and Section 10-A deals with
disqualification for failure to lodge account of election
expenses. Apart from these disqualifications, there are no
other disqualifications and, as is noticeable, there can be no
other ground. Thus, disqualifications are provided on certain
and specific grounds by the legislature. In such a state, the
legislature is absolutely specific.

19. The submission of the learned counsel
appearing for the petitioners is that the law-breakers should
not become law-makers and there cannot be a paradise for
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people with criminal antecedents in Parliament or the State
31

Legislatures. Reference has been made to the
recommendations of the Law Commission which has seriously
commented on the prevalent political atmosphere being
dominated by people with criminal records.

20. It has also been highlighted by the petitioners
that criminalisation in politics is on the rise and the same is
a documented fact and recorded by various committee
reports. The petitioners also highlight that the doctrine of
fiduciary relationship has been extended to several
constitutional posts and that if members of Public Service
Commission, Chief Vigilance Commissioner and the Chief
Secretary can undergo the test of integrity check and if
“framing of charge” has been recognised as a disqualification
for such posts, then there is no reason to not extend the said
test of “framing of charge” to the posts of Members of
Parliament and State Legislatures as well. To further
accentuate this stand, the petitioners point out that such
persons hold the posts in constitutional trust and can be
made subject to rigours and fetters as the right to contest
elections is not a fundamental right but a statutory right or
a right which must confirm to the constitutional ethos and
principles.

21. The petitioners are attuned to the principle of
“presumption of innocence” under our criminal law. But they
are of the opinion that the said principle is confined to
criminal law and that any proceeding prior to conviction,
such as framing of charge for instance, can become the basis
to entail civil liability of penalty. The petitioners, therefore,
take the stand that debarring a person facing charges of
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serious nature from contesting an election does not lead to
32

creation of an offence and it is merely a restriction which is
distinctively civil in nature.

22. The intervenor organisation has also made
submissions on a similar note as that of the petitioners to
the effect that persons charged for an offence punishable
with imprisonment for five years or more are liable to be
declared as disqualified for being elected or for being a
Member of Parliament as a person charge-sheeted in a crime
involving moral turpitude is undesirable for a job under the
government and it is rather incongruous that such a person
can become a law-maker who then control civil servants and
other government machinery and, thus, treating legislators
on a different footing amounts to a violation of Article 14 of
the Constitution.

23. Mr Venugopal, learned Attorney General for
India, refuting the aforesaid submission, would urge that
Parliament may make law on the basis of the
recommendations of the Law Commission but this Court, as a
settled principle of law, should not issue a mandamus to
Parliament to pass a legislation and can only recommend.
That apart, submits Mr Venugopal, that when there are
specific constitutional provisions and the statutory law, the
Court should leave it to Parliament.

24. It is well settled in law that the court cannot
legislate. Emphasis is laid on the issuance of guidelines and
directions for rigorous implementation. With immense
anxiety, it is canvassed that when a perilous condition
emerges, the treatment has to be aggressive. The petitioners
have suggested another path. But, as far as adding a
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disqualification is concerned, the constitutional provision
33

states the disqualification, confers the power on the
legislature, which has, in turn, legislated in the imperative.”

24. In the light of the statutory provisions, and the
orders passed by this Court in Crl.O.P.No.1125 of 2018 and
Crl.O.P.Sr.No.6139 of 2019 respectively, extracted in the
foregoing paragraphs, facts stated in the supporting affidavit
to this writ petition, are nothing but repetition, the same
cannot be considered, for issuance of Mandamus. Prayer
sought for, is rejected.”

10. The above decision in W.P.No.11744 of 2019, dated 15.04.2019, is

squarely applicable to the facts of this case. The First Information Report

has been registered against the respondents 10 and 11 respectively.

Thereafter direction to take action on the representation dated 05.04.2019,

cannot be granted. Disqualification cannot ordered when there is no

conviction. Hence, writ petition is dismissed. No costs.

(SMKJ) (SPJ)

16.04.2019

Index : Yes / No
Speaking Order: Yes / No
Internet:Yes/No

ms

To

1.The Chief Election Commissioner of India,
Nirvachansadan, Ashoka Road, New Delhi – 110 001.
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2.The Chief Electoral Officer,
34

State of Tamil Nadu,
Public (Elections) Department,
Secretariat, Fort St.George,
Chennai – 600 009.

3.The Chief Secretary,
State of Tamil Nadu,
Secretariat, Fort St.George,
Chennai – 600 009.

4.The Home Secretary,
State of Tamil Nadu,
Secretariat, Fort St.George,
Chennai – 600 009.

5.The Director General of Police (DGP),
State of Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.

6.The District Collector,
Collectorate,
Tuticorini District.

7.The Superintendent of Police,
Office of Superintendent of Police,
Tuticorin District.

8.The District Collector,
Vellore District Collector Office,
Vellore, Tamil Nadu.

9.The Superintendent of Police,
Office of Superintendent of Police,
Vellore District.

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35

S.MANIKUMAR, J.,
AND
SUBRAMONIUM PRASAD, J.,

ms

W.P.(M.D).No.9137 of 2019

16.04.2019

http://www.judis.nic.in

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