Election Law: Withdrawal of Nomination.

Proper procedure or withdrawal of a contesting candidate.

Relevant law is section 37 of Representation of Peoples Act, which is as under:

37. Withdrawal of candidature.—
(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer,  or election agent who has been authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. 3[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.

Election result in case of fraudulent withdrawal:

When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. Continue reading

Doctrine of necessity and Bias

Doctrine of necessity overrides
the principle of apprehended bias

J. Jayalalithaa (cropped) Facts of the case:

Ms. J. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu on or, the AIADMK ticket in the General Elections held in June 1991 and on being elected as the leader of the party she was sworn-in as the Chief Minister of the State. On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and which contract was subsisting on the date of the petition, in view of sub-clause (e) of clause (1) of Article 191 of the Constitution read with Section 9A of the Representation of the People Act, 1951

The question was whether the Chief Election Commissioner against whom she had expressed her apprehension of Bias, should be recused from the proceedings or he has to act in an advisory capacity, in case of dead lock, on the basis of Doctrine of Necessity. Continue reading

Appointment of non-legislator as Chief Minister of State in India

Chief Minister can hold office without being an elected representative of people!

Unelected representative in democracy:

A grievance was raised that respondent Nos. 1 and 2 were not qualified to be appointed as Chief Minister and Minister respectively as they were members of the Rajya Sabha (Upper House of Parliament) and thus disqualified under Article 164(4) read with Article 164(1) of the Constitution. The basic stand is that since they were members of the Rajya Sabha the requirement of their being elected to the State Legislative Assembly within a period of 6 months does not apply to them as they are already legislators of the Rajya Sabha.

There is no bar in Constitution prohibiting appointment of a person as Minister or Chief Minister, without being a member of the State Assembly. Continue reading