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Heard Mr. K. Paul, learned counsel for the petitioner and Mr. N.D. Chullai, learned AAG assisted by Ms. R. Colney, learned GA for the respondent No. 1 and Dr. N. Mozika, learned Sr. counsel assisted by Ms. S.A. Shallam, learned counsel for the respondent No. 2 and 3.
This application has been filed, seeking for a mandamus to issue to the respondent/JHADC (respondent No. 2 and 3) to take necessary measures to amend the nomination paper, for the election to the post of Dolloi of Nartiang. The amendments deemed necessary by the petitioners is for the incorporation of columns in the nomination paper to include disclosure of Criminal Antecedents if any, of the candidates and also for publication of such declaration.
The facts surrounding the case is that the elections to the post of Dolloi of Nartiang Elaka have been notified vide notification dated 14.06.2019 and the schedule is published in the said notification itself. The election process as per the schedule was to commence from 18.06.2019 and to culminate on 29.07.2019. The grievance of the petitioners who are said to be electors in the Elaka, as noted earlier is with regard to the absence of the requirement to disclose the Criminal Antecedents if any, of the candidates.
I have heard learned counsels for the parties.
Mr. K. Paul, learned counsel for the petitioner submits that though the election process has already been set in motion and though scrutiny of nomination papers is over, he only seeks a limited direction from this court, without stalling or derailing the election process, only for the purpose of transparency for disclosure of Criminal Antecedents to enable the electors to judge the candidates on their character and merits. Learned counsel submits that in this context, it is necessary that a declaration be filed by the contesting candidates disclosing their criminal antecedents if any.
He submits that for effective exercise of the fundamental rights of the voters, the voters are entitled to have all relevant information about the candidates at an election. He further submits that the respondent authority in conducting the elections of Dalloi of Nartiang Elaka without specifying this requirement has acted against the constitutional scheme of things and that the matter being of extreme importance is liable to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India.
The learned counsel also draws the attention of this Court to the judgments and directions as set out by the Hon'ble Supreme Court, which was communicated by the Election Commission of India to the Chief Electoral Officers of all states, vide letter No. 3/4/2017/SDR/Vol. II dated 10th October, 2018; which has stipulated the requirements of disclosure regarding people with Criminal Antecedents contesting elections. In conclusion, he prays that it is necessary that appropriate directions be issued to the respondent authorities to forthwith take measures, to amend the nomination paper for Dolloiship election and to incorporate necessary columns in the nomination paper and further to make it mandatory for the candidates to publish the declaration for wide publicity in the newspapers with wide circulation in the Constituency.
Dr. N. Mozika, learned Sr. counsel assisted by Ms. S.A. Shallam, learned counsel for the respondent No. 2 and 3 firstly submits that the nature of the writ petition which has been preferred before this Court, it seems is in larger public interest and therefore is not adversarial. Learned counsel submits that however, the question as to whether directions as prayed can be passed at this stage is questionable, inasmuch as, the petitioner has approached this Court when the process of elections has already been set in motion by the notification dated 14.06.2019 and the scrutiny of nominations is already over, and in fact what remains is only for the votes to be polled and for the result to be declared.
He submits that though in the nomination paper there is no specific requirement for such declaration , the prevailing Act namely The Jaintia Hills Autonomous District (Establishment of Elaka and Village and Election, Appointment, Powers, Functions and Jurisdiction of Dolloi/Sirdar and WahehShnong) Act, 2015 at Section 8(5) has covered this aspect, as it has provided for certain conditions precedent for a person not to be eligible to be elected, and one of the conditions as mentioned therein is "the ground of any offence committed by him". He thus submits that there is adequate safe-guards already built in, by way of the Act and also submits that Section 10 of the said Act also provides for the filing of an election petition, if any dispute arises regarding any matter relating to or connected with the election of a Dolloi.
He contends that in view of this safeguard and the provision, which allows for challenging the election, no further directions are required as the law laid down, is wide enough to cover any eventuality. Learned Sr. counsel then has referred to the case of Resurgence India vs. Election Commission of India and Anr. Reported in 2014 SCC 189, wherein Section 33 (a) of the Representation of People Act has prescribed the said requirement in elections to the Legislative Assembly and the Lok Sabha. He submits that in the instant case, as specific requirements is not prescribed in the notification or in the nomination paper even if the candidates are directed by this Court to furnish the same, the respondent authority or the Returning officer will not be in a lawful position to reject the nomination, but a dispute if any, as to eligibility or otherwise, can be subject to challenge by an appropriate election petition filed under the Act.
Learned counsel submits that as per his instructions 3 (three) candidates are in the fray and if directed by this Court they can be asked to furnish a declaration in this regard before the Returning Officer but this cannot be the basis for re-scrutinizing their nominations.
On hearing the learned counsels for the parties and considering the materials and the prayer as made out by the petitioner, there can be no denial of the citizens right to know about the candidate representing them in public office. This is of great importance, and in the case of the Legislative Assembly and Parliament, this right is now an integral part of Article 19(1) (a) of the Constitution of India. In the instant case though the election is to a traditional office of Dolloi, with the changing times, these elections which are traditional and customary also need to adopt practices that are beneficial and aid the conduct of free, fair and transparent elections.
The prayers of the petitioner have great substance and the measures as sought, in all fairness, ought to be incorporated even in such elections. However, in the present case the election process as observed is already under way and there is no question of changing the requirements in the nomination paper at this stage, more so, when the process has commenced since 14.06.2019.
The submissions of the learned counsel for the respondents also carry some weight, inasmuch as, a person aggrieved is not without remedy. Section 8 Clause 5 of the Act and Section 10 which are relevant are extracted and quoted herein below.
"8. Qualification of Candidate for Election as a Dolloi/Sirdar:-
A person shall not be qualified to be elected and appointed as Dolloi/Sirdar unless:-
(1) .........................................................
(2) .........................................................
(3) .........................................................
(4) .........................................................
(5) He is not de-barred from contesting the election on the ground of any offence committed by him which renders him unfit to uphold the existing tradition and custom prevailing in the Elaka."
"10. Dispute regarding Election of Dolloi/ Sirdar:-
1) If any dispute arises regarding any matter relating to or connected with the election of Dolloi/Sirdar, the aggrieved party or parties concerned shall within 30 (thirty) days after publication of the result of the election in sub-section (3) of section 4, refer the dispute to the Executive Committee by a petition filed to the Secretary of the Executive Committee. The Executive Committee shall dispose of the matter within 60 (sixty) days.
Provided that the Executive Committee shall give due opportunity of being heard to the parties.
(2)(a) An appeal against the decision of the Executive Committee shall lie to a Tribunal constituted by the Executive Committee for the purpose and the Tribunal shall dispose of the matter as early as possible and shall not ordinarily exceed six months from the date of the receipt of the case records and the decision of the Tribunal shall be final.
(b) Any appeal before the Tribunal shall be filed to the Secretary, Executive Committee within 30 (thirty) days after the order of the Executive Committee is communicated to the party or parties concern.
(c) The Executive Committee shall constitute the Tribunal and also send the case records to it within 30 (thirty) days from the date of receipt of such appeal."
In the circumstances, therefore looking into the entire spectrum with regard to the conduct of elections and the law in relation thereto, it would be appropriate even at this stage to issue certain limited directions to ensure a certain element of transparency in the ensuing Dolloi of Nartiang elections.
It is therefore directed as follows:
(a) The Returning Officer shall direct the candidates to file a declaration as to their criminal antecedents if any, i.e. whether they are named accused or have been convicted in connection with any Criminal offence prior to the filing of the nomination
(b) The said declaration shall be filed before the Returning Officer on or before 24.07.2019.
(c) The concerned electors will be permitted to scrutinize the same in the office of the Returning Officer during office hours, until the date before polling, i.e. 25.07.20l9.
It is made clear that the declaration so furnished and any information giving therein by the candidates concerned shall not authorize the Returning Officer to cause disqualification of any candidate, as these directions have been passed only to ensure some transparency to enable the electors to know their candidates. Any dispute to eligibility or otherwise that may arise shall strictly be dealt with under the The Jaintia Hills Autonomous District (Establishment of Elaka and Village and Election, Appointment, Powers, Functions and Jurisdiction of Dolloi/Sirdar and WahehShnong) Act, 2015.
Before parting with the records it is hoped that the requirements as prayed for by the electors be incorporated in the nomination form for future elections that will be held henceforth to such posts, to be in tune with the Constitutional Scheme in such matters.
With the said directions this writ petition is accordingly disposed of.