Why courts do not issue writs against rejection of nominations? | Explained

T. Arivarasupandian's nomination rejection for parliamentary election challenged in Madras High Court, highlighting election laws.

The story so far: T. Arivarasupandian, 51, serving as a Superintendent in Theni district library in Tamil Nadu, had filed his nomination this year for contesting in Theni Parliamentary constituency election. However, the Returning Officer-cum-Collector R.V. Shajeevana rejected his nomination on the ground that a government employee could contest in elections only after resignation.

Immediately, he filed a writ petition in the Madras High Court questioning the rejection and contended that the election laws do not bar a government employee from contesting. His argument was that Article 84 of the Constitution lists down the qualifications such as age limit, being an Indian citizen and so on for a person to be chosen to fill a seat in the Parliament but it does not specifically impose any bar on a government servant. He further argued that the question of invoking Article 102(1), which states that a person holding an office of profit under the government shall stand disqualified from being a member of the Parliament, would arise only after the conduct of elections and not before it. He claimed that the Returning Officer could scrutinise a nomination only within the parameters laid down under Article 84 whereas it was for the President to exercise powers under Article 102(1). He further said that no provision of the Representation of the People Act (RPA), 1951 too prohibits a government servant from contesting elections.

The writ petitioner’s lawyer M. Sathiamoorthy took up an additional plea that the petitioner was actually in service with the local library authority, which was a body corporate, and therefore, he could not be dubbed as a government employee though his salary was paid from government funds. Stating that the Returning Officer had also wrongly relied upon Article 191(1), which relates to qualifications for being a member of the Legislative Assembly, the counsel urged the court set aside the nomination rejection order and permit the petitioner to contest in the Parliamentary election.

However, the High Court refrained from deciding the case on merits. It disposed of the writ petition with an observation that the petitioner could file an election petition after the declaration of results and raise all these grounds while challenging the entire election to Theni Parliamentary constituency. The order was passed after Election Commission of India’s standing counsel Niranjan Rajagopalan highlighted the bar, imposed under Article 329 of the Constitution, on interference by courts in electoral matters and cited a Constitution Bench judgement of the Supreme Court in N.P. Ponnuswami versus Returning Officer, Namakkal (1952).

On January 21, 1952, a Constitution Bench comprising the then Chief Justice of India M. Patanjali Sastri and Justices S. Fazl Ali, Mehrchand Mahajan, B.K. Mukherjea, S.R. Das and N. Chandrasekhara Aiyar had analysed Article 329 threadbare to conclude that neither the High Courts nor the Supreme Court could invoke their writ jurisdiction to interfere with a nomination rejection order especially when such rejection had been listed as one of the grounds under which an election petition could be filed.

Authoring the verdict for the Bench, Justice Ali pointed out that Section 100 of the Representation of the People Act (RPA), 1951 lists out improper rejection of a nomination as one of the grounds for declaring an election to be void. “The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 (writ jurisdiction) of the Constitution and another, after they have been completed, by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV (dealing with conduct of elections) of the Constitution and the Representation of the People Act,” the judge observed.

He went on to state that the RPA was a self-contained enactment so far as elections were concerned and that whenever someone had to ascertain the true position with regard to any matter connected with elections, they need to look at only the Act and the rules made thereunder. He highlighted that Section 80 of the Act had been drafted in almost the same language as it had been used in Article 329(b) of the Constitution and the Section reads: “No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.”