JAYA PRADA'S WRIT PETITION AGAINST AZAM KHAN, DISMISSED
JAYA PRADA'S WRIT PETITION AGAINST AZAM KHAN, DISMISSED
-Rashi Tolani
BACKGROUND:
The Preamble of the Indian Constitution declares the country as a Sovereign, Socialist, Secular, Democratic and Republic. Thus, democracy is one of the basic inalienable features of the Constitution and forms the part of the basic structure. ‘Election’ has been defined as a process of choosing a person or persons for a position by ballot. In the Representation of People Act, 1951 election means to fill seats in either House of Parliament or House of the legislature of a state. Article 329 of the Constitution states that no election to either the House of Parliament or House of the legislature of a state can be called in question except by an Election Petition presented to authority as provided under the law. So this article debars the Supreme Court as well as other courts to entertain a suit or proceeding calling in question of any election. This is here referred to the Writ Petition filed by Jaya Prada against Azam Khan.
Election petition:
To challenge the validity
of the result of either parliamentary or local elections under law an election
petition must be filed in the High court of the particular state in which
election was conducted. Therefore, only the High Courts have the original jurisdiction
on deciding on election petition as given under Section 80A of the
Representation of the People Act, 1951.
Questions of law involved:
The respondent was challenged through Article 102 of the Constitution and the petitioner asked the court to issue a writ of quo warranto against the
respondent. The maintainability of the writ petition brought through Article
226 of the Constitution by the petitioners was challenged by the counsel
of the respondents.
CURRENT ISSUE: (Jaya Prada Nahata vs Mohd. Azam Khan)
A Writ Petition was filed by BJP leader Jaya Prada against Azam Khan under Article 226 of the constitution seeking the following reliefs:
- To issue a writ of quo warranto against Azam Khan (Member of Lok Sabha from Rampur), the respondent and ask him as to under what authority of law, is he holding the office in spite of being disqualified because he is holding an office of profit in the form of Chancellor of Maulana Mohd. Jauhar Ali University
- To issue a writ of certiorari to set aside his public office
The contention was that
Azam Khan holds an office of profit and should be disqualified as a Member of
the Parliament, in the view of the provisions of Article 102 of the
Constitution which states that ‘a person shall be disqualified as a member of
the parliament if he holds any office of profit under the Government, other
than the office declared by the parliament shall be disqualified.’
Azam Khan to this said that the writ petition filed is not maintained in the view of the constitutional bar contained in Article 329 of the Constitution as also said in the Poonuswami case where the High Court dismissed the petition filed under Article 226 on the ground that it had no jurisdiction to interfere in elections of legislative assembly of a state under the provisions of 329(b) and in appeal before the Supreme Court, it upheld the decision of the High Court. The counsel appearing for Election Commission of India submitted that the grounds raised in this petition are available under Section 100 of the Representation of the People’s Act, 1951 for maintaining an election petition.
The respondent also
argued as to how is this petition filed at Lucknow High Court considering the
cause of action which is the election of a member of parliament from Rampur
which does not fall within
the territorial jurisdiction of Lucknow
bench to which the petitioner replied stating the case of Raja Husain
vs Mohd. Azam Khan which was also entertained
before the Lucknow High Court seeking a writ of quo warranto on account of the
election of Azam Khan as a member of parliament from Rampur.
Having heard to all the arguments the bench comprising Justice Rajan Roy and Justice N K Jauhari dismissed on the ground of lack of territorial jurisdiction because the district of Rampur falls under the Allahabad High Court and not maintainable under the Lucknow bench. The court also said that the writ petition itself is not maintainable and therefore, only an election petition as stated under Article 329 of the Constitution can be moved. The counsel on the arguments of the petitioner based on the fact of an earlier writ petition of Raja Husain which was entertained by Lucknow High Court said that at that time the Minister was stationed at Lucknow and therefore that petition could be entertained.
The important principles
regarding the jurisdiction of High Court election matters and power to
entertain election petitions:
- The Representation of the People’s Act and the Constitution of India specifically express the rules that there are remedies for all the wrong done in the election process stated under Article 329(b).
- Section 80 of the Representation of the People’s Act, 1951 also states that the High Court has the jurisdiction on deciding under election petitions after the amendment of 1966.
- The election process once started cannot be interfered with the courts at any intermediary stage until its completion and declaration of result.
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