Congress candidate Meenakshi Natarajan’s nomination for a Rajya Sabha seat from Madhya Pradesh was rejected by the returning officer (RO). Consequently, all the three seats from the state that were up for grabs were declared as won by BJP candidates. Thus, one seat that was otherwise legitimately due to the Congress was grabbed by the ruling alliance.
Can an RO invalidate a candidature to Rajya Sabha on the ground of non-disclosure of a case of which no court has taken cognisance? And if an officer does so, perhaps under pressure or temptation, is it that even the Supreme Court cannot promptly set it right because of the bar for interference in electoral matters? These pivotal questions arose when a Bench consisting of Justices Prashant Kumar Mishra and Atul S Chandurkar dismissed the petition moved by Natarajan.
She had been issued a notice by a Telangana court under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The allegation against her was not of any overt act. A woman had alleged that, as the All-India Congress Committee’s officer in charge, Natarajan had failed to take organisational action against a person accused of attempting to molest her. The Telangana court that issued the notice, however, did not take cognisance of the case, whose non-disclosure led to the rejection of Natarajan’s candidature. It was recently reported that the Telangana court has returned the complaint.
The disclosure of cases during nomination is mandated by Section 33A of the Representation of the People Act (RP Act), 1951, read with Form 26 of the affidavit in support of candidature. The Act says that when a charge is framed for an offence punishable for two years or more, one needs to state it. At any rate, in Natarajan’s case, even cognisance was not taken.
In the Public Interest Foundation (2018) case, the Supreme Court had said that candidates should fully fill the form and state all the pending criminal cases. Form 26 and its supporting rule were changed to what they are now based on this judgement. Item 5 on the form is for “pending criminal cases”. The form repeats the phrase throughout.
Thus, because of the judgement—and not because of any statute—the modified form asks about all pending criminal cases. And because of this, some scholars think that Natarajan’s case was weak, though the rule and the form, obviously, go against the stipulations in the parent statute, that’s the RP Act of 1951. This dichotomy could be problematic and might warrant a judicial decision.
Yet, legally, the additional requirement to disclose all pending cases should not have been used to fence out Natarajan. The reason is simple: the judgement in Public Interest Foundation came before the promulgation of BNSS in 2023, which replaced the Criminal Procedure Code. Unlike the CrPC, the BNSS’s Section 223 contemplates a hearing on the question of taking or not taking cognisance. Under Sections 200 and 204 of the erstwhile CrPC, no such hearing was contemplated.
As such, the Public Interest Foundation judgement did not consider the fundamental change in the basic law, affected by way of the BNSS. When Public Interest Foundation was decided in 2018, mere issuance of summons or notice by a trial court would directly make it a pending criminal case. Post BNSS, even if a notice is issued, the court can return the complaint, as happened in Natarajan’s case, or dismiss it. Once it is returned without taking cognisance, the case vanishes right from the inception.
Thus, the very foundation of the additional requirements in Form 26 is now shattered as far as Natarajan’s case is concerned. The Supreme Court was duty-bound to consider this issue, particularly when the deceptive form has its genesis in the Public Interest Foundation decision.
The dismissal of the writ petition has facilitated a clear act of injustice and unfairly deprived Natarajan of her legitimate right. This happened because the court did not go into a foundational question about the RO’s power to reject a candidature, even if there was an omission as alleged.
By not disclosing a pre-cognisance notice, the candidate does not get any advantage; by disclosing about it, she is not put to any disadvantage. There is no indication in the parent Act that the RO can conduct a roaming enquiry into the assertions and omissions pertaining to cases. The Election Commission, by way of FAQs, has on many occasions categorically said that the RO cannot reject the candidature for such a reason.
The Supreme Court lost sight of this vital aspect. If at all there is wrongful acceptance of a nomination and, consequently, an erroneous election result, that should have been the matter requiring a subsequent challenge by way of an election petition. Such a situation would not have led to an apparent injustice of depriving a candidate’s right to contest and to reap the benefit of the votes due to her. Asking such a candidate to move the high court with an election petition practically subverts the balance of justice.
Given the situation, the top court should have noted the apparent arbitrariness and illegality in the RO’s decision. For such an intervention, there is no bar under Article 329 of the Constitution, since the court would not be preventing an election but ensuring a fair one. That the bar under Article 329 is not absolute and does not preclude the court from dealing with electoral process was well settled in MS Gill vs Chief Election Commissioner (1977). In that case, the court, while stating the general bar on judicial interference after commencement of an election, was cautious enough to carve out exceptions with a great sense of judicial pragmatism.
Giving an example of a situation of the Election Commission prompting ROs for selective acceptance of nomination, the court had said that such arbitrary actions cannot claim immunity. It said that in such a situation, “the commissioner is preventing an election, not promoting it”, adding, “Election, wide or narrow be its connotation, means choice from a possible plurality, monolithic politics not being our genius or reality, and if that concept is crippled with by the commissioner’s act, he holds no election at all.”
These were prophetic words indeed from Justice V R Krishna Iyer, as one learns from the Madhya Pradesh incident. Sadly, prophets on the Bench cannot always claim followers.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)