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ALL INDIA ANNA DRAVIDA versus THE CHIEF ELECTION COMMISSIONER

High Court of Madras

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All India Anna Dravida v. The Chief Election Commissioner - W.P.NO.18782 OF 2005 [2005] RD-TN 862 (21 December 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:21/12/2005

CORAM

THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN AND

THE HON'BLE MR.JUSTICE M.THANIKACHALAM W.P.NO.18782 OF 2005

AND

W.P.M.P.NO.32943 OF 2005

All India Anna Dravida

Munnetra Kazhagam

represented by Party Election

Wing Secretary, 226/275,

Avvai Shanmugam Salai

Royapettah, Chennai 600 014 ..Petitioner -Vs-

1.The Chief Election Commissioner

Election Commission of India

Nirvachan Sadan

New Delhi 110 001

2.The Chief Electoral Officer

Public (Elections) Department

Chennai 600 009 ..Respondents Prayer: Writ petition under Article 226 of the Constitution of India praying to issue a writ of mandamus forbearing the respondents herein or their subordinates or their agents or their men or anyone acting or claiming to act on their behalf from taking any legal action against the functionaries of the petitioner party in having forwarded the claims made by individual applicants in Form-6 of the Registration of Electors Rules, 1960, either under the Representation of the People Act, 1950 or any other Statutory provision. For Petitioner : Mr.N.Jothi, for

: assisted by Mr.L.P.Shanmugasundaram : Mr.A.Kandasamy

For Respondent 1 : Mr.G.Rajagopalan, SC for

: M/s.G.R.Associates

For Petitioner in: Mr.R.Viduthalai, SC for

WPMP.No.32943/05 : M/s.A.V.Bharathi

:ORDER



(Order of the court was delivered by

Justice R.Balasubramanian)

The petitioner is a political party. The relief prayed for in the writ petition is that, against none of the functionaries of the petitioner political party, legal action be taken on the role of each of such functionaries in having forwarded the claims made by individual applicants in Form-6 of the Registration of Electors Rules, 1960, hereinafter referred to as "the Rules". In other words, if it is found that there is any falsity in Form-6 of individual applicants submitted in bulk by any of the functionaries of the petitioner political party as authorised by the Election Commission, such functionaries shall not be proceeded against legally.Mr.N.Jothi learned counsel appearing for the petitioner took us through section 31 of the Representation of the People Act, 1950, hereinafter referred to as "RPA, 1950", and contended that a careful reading of that section would exclude all others, except the person making a statement/declaration which is false, from being proceeded with under that section. According to him, the beginning sentence of that section namely, "if any person makes in connection with", makes it abundantly clear that only the person, who makes a statement/declaration in writing, which is false, etc.......... , can be prosecuted for any such falsity. Under Rule 26 of the "the Rules", every application under section 23 of "RPA, 1950" shall be made in duplicate in Form-6, etc., Rule 13(1(a) of "the Rules", declares that every claim shall be made for inclusion of names in electoral roll in Form-6. In the prescribed format, only the voter, who wants his name to be included in the electoral roll, has to give the necessary details asked for in that fo rmat and therefore it is he, who makes that statement as asked for and also gives the declaration. Therefore reading section 31 of "RPA, 1950", Rule 13(1)(a) of " the Rules" and the prescribed format namely, Form-6, it is not possible to bring in any other person, other than the person who seeks to get his name included, within the ambit of section 31 of "RPA, 1950". For the first time, the Election Commission of India had issued detailed guidelines by it's proceedings dated 19.06.2004 to be followed for the revision. Under the guidelines, presenting applications in Form-6 in bulk is permitted and the person so presenting the applications in Form-6 in bulk is called upon to sign a letter in the prescribed format namely, IR-2005-2007. Though the functionaries of the petitioner political party had signed in such forms, yet, signing the form itself would not bring any of the functionaries of the petitioner party within the ambit of section 31 of "RPA, 1950". Under Article 20 of the Constitution of India, no person shall be convicted of any offence, except for violation of a "Law" in force. The guidelines referred to above is not "Law" legally made namely, either by the Parliament or by the Legislature. In any event, the guidelines will not have the force of "Law". When the guidelines is neither "Law" nor has the force of "Law", by reading section 31 of "RPA, 1950", none of the functionaries of the petitioner party shall be legally proceeded with, for any violation of the said section. In expanding his arguments that "Law" enshrined in Article 20 of the Constitution of India is " Law" duly made by the Parliament or the State Legislature, learned counsel relied upon a number of judgments of the Hon'ble Supreme Court of India. He also contended that, assuming that the Election Commission is an autonomous body by itself; it can frame it's own guidelines in the revision of electoral rolls and make it's own legal provisions in regard thereto, yet, it cannot do on a subject if it is already an occupied field. In other words, falsity of a claim made in Form-6 is already made an offence under section 31 of "RPA, 1950" and therefore it is an occupied field. If it is so, then the Election Commission of India cannot bring in any other class of persons, not already covered under section 31 of "RPA, 1950", within the ambit of the said section.

2. Mr.G.Rajagopalan learned senior counsel appearing for the first respondent would submit that it is true that submitting applications in Form-6 in bulk came to be introduced for the first time under the guidelines. According to him, section 31 of "RPA, 1950" is wide enough to proceed not only against the individual, who files the claim in the prescribed format containing a false statement/declaration, but also the person, who presents that application duly signed by the applicant himself, if it is found to contain any false statement/ declaration. Neither the guidelines commencing from paragraph 8.7.4 till 8.7.5.1 nor the prescribed format of letter in Form IR-2005-2007, create an offence for the first time and the persons who are presenting such bulk applications are already covered under section 31 of " RPA, 1950". The very object of introducing section 31 of "RPA, 1950" is to see that no illegality is committed in the preparation of electoral rolls, which in turn would see that a fair election is conducted. If the submission of the learned counsel for the petitioner is accepted, then it would defeat the very object itself namely, the mischief sought to be remedied would be allowed to continue. If the object of introducing section 31 of "RPA, 1950" is had in mind, then the submission made by the learned counsel for the petitioner cannot be accepted at all since, if it is so done, it would destroy the concept of a fair preparation of electoral rolls and a free democratic election to be held. Learned senior counsel would then submit that the election commission is the supreme body by itself and subject to the Constitutional restrictions, it can, from time to time, issue guidelines with reference to all matters relating to the conduct of elections and such a power is traceable to Part 15 of the Constitution of India. Learned Government Pleader appearing for the second respondent adopted the arguments of the learned senior counsel appearing for the Election Commission of India. In W.P.M.P.No.32943/2005, another political party wanted to get itself impleaded on the ground that public interest is involved in the writ petition; any decision rendered by this court on the point raised would have a far reaching impact in the preparation of electoral rolls and if the writ petition is allowed on a narrow reading of section 31 of "RPA 1950", it will allow persons, who are guilty of violating the process of preparation of electoral rolls, to escape. The petitioner in this petition is represented by a learned senior counsel namely, Mr.R.Viduthalai. We told in open court that, without going into the merits or otherwise of the rights of the petitioner to get itself impleaded, we would like to have the assistance of Mr.R.Viduthalai learned senior counsel in deciding this case. Mr.R.Viduthalai learned senior counsel agreed. Accordingly, dismissing this W.P.M.P and requesting Mr.R.Viduthalai learned senior counsel to assist this court on the legal issue, we heard him. Mr.R. Viduthalai learned senior counsel, who assisted the court, submitted that it is not as though the petitioner alone has presented bulk applications in Form-6 and such a procedure to receive applications in Form-6 in bulk stands permitted throughout the length and breadth of this country. Such authority to present applications in Form-6 in bulk is not only given to a political party but also to the residents of a welfare association or gaon sabha. Therefore if any person who presents bulk applications in Form-6 and if in any or all those applications in Form-6 there is any falsity in the statement/delcaration, then the persons who are so presenting would also be liable. Learned senior counsel would also submit that whenever a Statute is read, it must be read in it's true spirit and the interpretation of Statute should not defeat the object and purpose of the provision itself.

3. We have carefully gone through the arguments advanced by the learned counsel on all sides. Before we proceed to appreciate the rival contentions, we are of the considered opinion that it is better to trace the origin of section 31 of "RPA, 1950". The Act came into force on 12.05.1950. As the Act originally stood, sections 31 and 32 were not there. Sections 31 and 32 were introduced in "RPA, 1950" by Amending Act 58/1958. After section 30 of the principal Act, sections 31 and 32 were introduced and for our purpose, we extract hereunder section 31 of "RPA, 1950" as it was originally introduced.

"31. Making of false declarations: If any person makes in or in connection with -

(a) a claim or an application for the inclusion in an electoral roll of his name, or

(b) an objection to the inclusion therein, or an application for the exclusion or deletion therefrom, of the name of any other person, a statement or declaration in writing which is false and which he either knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both."

Section 31 introduced by Amending Act 58/1958 was substituted under section 4 of Amending Act 20/1960 with effect from 08.05.1960. Substituted section 31 reads as hereunder:

"31. Making false declarations: - If any person makes in connection with -

(a) the preparation, revision or correction of a electoral roll, or (b) the inclusion, or exclusion of any entry in or from an electoral roll, a statement or declaration in writing which is false and which he either knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both."

The objects and reasons of Amending Act 20/1960 are as hereunder: "Substitution of section 31  "Because of its limited scope, section 31 does not fully serve the purpose for which it was enacted. Under clause (a) of this section a person commits an offence only if he makes a false statement or declaration in writing in or in connection with a claim or application to include his own name in the electoral roll but not when he does so in respect of some other person. Furthermore, the section appears to be applicable only to statements made in claims and objections made before revising authorities or in applications made under section 23 of the Act for inclusion of names but not to statements made before any other persons, as for example, enumerators of the stage of the initial preparation or annual revision of the rolls. Experience has shown that false statements are made at this stage also in quite a number of cases. It is accordingly proposed to widen the scope of section 31 ...... "S.O.R.,Gaz. Of Ind.,1960, Extra., Pt.II, section 2, p.320."

4. Now the point to be considered is, if in the bulk presentation of claims in Form-6 presented by any of the functionaries of the petitioner party, there is falsity in the statement/declaration etc., whether such act by any of the functionary of the petitioner party could be brought within the teeth of section 31 of "RPA, 1950"? The answer to that question has to necessarily depend upon the interpretation of section 31 and understanding the object and purpose behind the introduction of section 31 of "RPA, 1950" as it stands today. Recently, the Hon'ble Supreme Court of India in the judgment reported in 2005-4-L.W.Pg.328 (Swamy Atmananda & others Vs. Sri Ramakrishna Tapovanam & others) laid down the principle of Statuto ry interpretation and we extract hereunder the principle of interpretation enunciated therein: "A Statute, as is well-known, must be read in such a manner so as to give effect to the provisions thereof. It must be read reasonably. A Statute must be construed in such a manner so as to make it workable." It is a well-known principle of Statutory interpretation that interpretation should not be in such a manner which would defeat the object and purpose of the Act. When a mischief is sought to be remedied by any Statutory provision, the court is bound to interpret the Statute having that object in mind. In the light of the settled position in law that objects and reasons always guide the court to a safer and purposeful interpretation of a Statute, we applied our mind to the objects and reasons behind the introduction of section 31 of "RPA, 1950 " as it stands today by section 4 of Amending Act 20/1960. The objects and reasons are very clear. It unerringly shows that section 31 of "RPA, 1950", as introduced by Act 58/1958, was not wide enough to include persons other than the person who presents the claim form itself. In fact, the object very clearly enumerates that section 31, as it was introduced by Amending Act 58/1958, would cover only persons who make the claim but not when he does so in respect of some other person. The object also is clear that any falsity in a statement/ declaration made otherwise than in Form-6 before any other authority, including enumerators, shall also be brought within the purview of section 31 of "RPA, 1950". Therefore it is clear to our mind that section 31 of "RPA, 1950" as it stands today, shall not have a narrow meaning but it shall have a wider ambit of covering all persons, who may be the person who files Form-6 or opposes it but also persons who make such a statement or give a declaration for another person. The format in IR-2005-2007 for submitting applications in bulk for inclusion of names in electoral rolls is as hereunder:

-------------------------------------------------------------------------------------------------- Letterhead of recognised Political Party or Residents Welfare Association or Gaon Sabha

-------------------------------------------------------------------------------------------------- To

The Electoral Registration Officer,

---------------------- Assembly Constituency

---------------------- (Name of the State)

Subject: Revision of electoral rolls w.r.t.01-01-2005 as the qualifying date. Sir,

I am forwarding herewith -------- (total No.) original claim applications in Form 6, submitted by the citizens of India ordinarily residing at the address mentioned in each application and who according to the best of my knowledge and belief are not disqualified for registration in the electoral rolls for inclusion in the relevant part of the electoral roll. I am also enclosing a complete list (as per the prescribed proforma) of the ------------ (total No.) claim applications being forwarded herewith and the same is duly authenticated by me on each page. I further submit that I am aware of the provisions of Section 140A of the J&K R.P.Act, 1957 and Section 31 of the R.P.Act, 1950, under which the making of a statement or declaration which is false and which the person making that statement/declaration either knows or believes to be false or does not believe to be true is a penal offence, and that I shall be liable for penal action for any false statement/ declaration in the Forms being forwarded herewith.

Yours faithfully, Dated:

(Name in full) President/Secretary Name of the recognised Political Party/

Residents Welfare Association or Executive Officer by whatever name called of the Gaon Sabha Village Council etc. -------------------------------------------------------------------------------------------------- Under paragraph 8.7.5.1.i of the guidelines, unless the bulk presentation is forwarded with a letter in the prescribed form, it shall not be received. Signing a letter in the above format is only a procedural formality prescribed to be followed by a person presenting bulk claims in Form-6.

5. In (2003) 6 SCC Pg.107 (Lalita Jalan & Another Vs. Bombay Gas Company Limited & Others, interpretation of particular Statutes or provisions penal in nature came up for consideration. In that case, the Supreme Court was dealing with the ingredients of section 630 of the Companies Act. The question that came up for consideration was whether the section applies only to any officer or employee of a company or does it apply to the two categories of persons mentioned above, even after they cease to be an officer or employee of a company? The question namely, if the officer/employee of a company dies during the course of his employment, whether the arm of section 630 of the Companies Act can be extended to the legal representatives of such deceased employee was also under consideration in that case. In interpreting that section, the Supreme Court went behind the purpose for which section 630 was enacted. In so doing, the Supreme Court went on to say that "the principle of interpretation relating to criminal Statutes that the same should be strictly construed will not be applicable and the principle that a Statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case". In that case the Supreme Court referred to an earlier judgment of that court in the case reported in AIR 1976 SC Pg.1929 (Muralidhar Meghraj Loya Vs. State of Maharashtra) where it was held "any narrow and pedantic, literal and lexical construction of food laws is likely to leave loop-holes for the offender to sneak out of the mashes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal Statutes calculated to protect the public health and nations wealth. The Supreme Court also noted that the view taken in Muralidhar's case was the view taken in AIR 1977 SC Pg.435 (Kisan Trimbak Kothula Vs. State of Maharashtra). In AIR 1980 SC Pg.593 (State of Maharashtra Vs. Natwarlal Damodardas Soni), the Supreme Court dealing with section 135 of the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules negatived narrow construction of a Statutory provision which would emasculate the provisions and render them ineffective as a weapon for combatting gold smuggling. It was also held in that judgment that provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the Legislature had in view. Therefore it is clear from the judgment of the Supreme Court in Lalita Jalan's case and the other judgments referred to in that judgment that a Statute must be read in such a manner to suppress the mischief and advance the object which the Legislature had in view and principle that a Statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. Ultimately, the Supreme Court in Lalita Jalan's case concluded that section 630 of the Companies Act is wider in it's amplitude and not only cover the officer or employee of a company in office but also those who cease to be in office and also the legal representatives of an officer or an employee dying while in service.

6. In the context of the law laid down by the Supreme Court in the judgments referred to above, if we analyse the origin of section 31 of "RPA, 1950" as originally introduced by Amending Act 58/1958 and the substitution of section 31 by Amending Act 20/1960 with it's objects and reasons, it is crystal clear to our mind that the mischief, which was available in section 31 as it was originally introduced in 19 58, was sought to be remedied and it was accordingly remedied by Amending Act 20/1960. The expression "any person" used in section 31 of "RPA, 1950" would include not only a person who makes a claim but also persons other than the said person. Section 31, as it originally stood, had brought within itself only two types of persons namely, a person making in or in connection with a claim or an application for inclusion in the electoral roll of his name and a person objecting to the inclusion therein. Section 31 of "RPA, 1950", as it stands, is very wider in it's ambit and the significant inclusion is clause (a) as it stands today, which was not available in section 31 as it stood originally. Clauses (a) and (b) of section 31 as it originally stood prior to Amending Act 20/1960 stand re-drafted as section 31(b) in the present section. Therefore clause (a) of section 31 of "RPA, 195 0" as it stands today is a new provision. By the nature of the two provisions of section 31 of "RPA, 1950" as it stands today, it is clear to our mind that each is mutually exclusive of the other and both operate in different spheres. A definite meaning must be given to clause (a) and clause (b) of section 31 of "RPA, 1950" as it stands today. In our opinion, the person covered under clause (b) of section 3 1 of "RPA, 1950" would not be prima facie covered under clause (a) of section 31 of "Rpa, 1950" as it stands today. That is why, we have stated that each provision excludes the other. Any request for inclusion of any entry in the electoral roll or exclusion of all entries from a electoral roll would necessarily involve the preparation, revision or correction of an electoral roll. If the Act under clause (a) and (b) of section 31 is one and the same and the person to be held responsible for any violation is also one and the same, then there is no need for introducing clause (a) of section 31, which clause is disjunctive in nature. Therefore we have no hesitation at all to hold that clause (a) and clause (b) of section 31 of "RPA, 1950" would operate in different spheres. Our interpretation of section 31 is well supported by the case laws referred to by us earlier and therefore the arguments advanced by the learned counsel for the petitioner that any person in section 31 of "RPA, 1950" can only be the person, who makes the declaration in Form-6 and not any other person who presents bulk applications supported by the letter in IR-2005-2007, if accepted, would lead to absurdity and defeat the very object of introducing section 31 by Amending Act 20/1960. A faint argument is advanced by the learned counsel for the petitioner that there is a safeguard available to an official under section 32(3) of "RPA, 1950" if he is shown to commit any violation in the preparation, revision or correction of an electoral roll and such violation as referred to in section 32(1) of "RPA, 1950" is also a violation in section 31(a) of "RPA, 1950". If that is so, there cannot be two yardsticks, one for the person violating section 31(a) and the other for the person violating section 32. There is a fallacy in this argument. Section 32 of " RPA, 1950" embraces within itself an official on duty committing violation as referred to above. Section 31 does not deal with any violation shown to have been committed by any official on duty and it relates only to persons other than the officials. This distinction has been lost sight of by the learned counsel for the petitioner in advancing the argument referred to above.

7. For all the reasons stated above, we are of the firm opinion that by the guidelines issued by the Election Commission of India, no new offence is created nor any new set of person is brought within the purview of section 31 of "RPA, 1950". Right from it's substitution, by Amending Act 20/1960, section 31 had brought within it's fold not only persons making a claim for inclusion or exclusion containing falsity but also persons who are presenting such claim on behalf of another person. At the risk of repetition, we reiterate that the act of a person who is authorised to present bulk applications for inclusion or exclusion stands already covered under section 31 of "RPA, 1950" as it stands today and the guidelines do not create any new offence or bring in any new class of offenders within the purview of section 3 1. In the light of our conclusion based on the interpretation of section 31 of "RPA, 1950", we are of the considered opinion that no occasion has arisen for us to go into the various case laws cited before this court that unless it is shown that a provision duly made by the Parliament or Legislature is violated, no person can be punished. For all the reasons stated above, we find no merits in the writ petition and accordingly it is dismissed with no order as to costs. W.P.M.P.No.20346/2005 is closed. To

1.The Chief Election Commissioner

Election Commission of India

Nirvachan Sadan

New Delhi 110 001

2.The Chief Electoral Officer

Public (Elections) Department

Chennai 600 009

Leave to appeal to the Supreme Court is asked for. Unless a substantial question law of public importance is involved, there is no question of leave to appeal to the Supreme Court. In this decided case, we do not find any substantial question of law of public importance and our decision is based on a reading of section 31 of "RPA, 1950". Leave refused. Vsl (RBJ) (MTJ)

21.12.2005

Note: Issue order copy today itself.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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