Not Essential Criterion For Election: Calcutta High Court Dismisses Plea Against BJP MLA For Allegedly Falsifying Educational Qualifications
The Calcutta High Court has recently held that the election of a candidate as a Member of the Legislative Assembly (MLA), cannot be set aside on the ground of alleged irregularities in declaring his educational qualifications. The Court was seized of a plea moved by Trinamool Congress (TMC) MLA Gopal Seth, against Bharatiya Janata Party (BJP) MLA Swapan Majumdar, alleging that the latter...
The Calcutta High Court has recently held that the election of a candidate as a Member of the Legislative Assembly (MLA), cannot be set aside on the ground of alleged irregularities in declaring his educational qualifications.
The Court was seized of a plea moved by Trinamool Congress (TMC) MLA Gopal Seth, against Bharatiya Janata Party (BJP) MLA Swapan Majumdar, alleging that the latter had falsified his educational qualifications before the Election Commission of India (ECI) during the 2021 State Assembly Elections, by claiming that he was a graduate of the VIIIth standard, while there were no records that could be obtained from the concerned school.
In dismissing the plea, a single bench of Justice Sabyasachi Bhattacharya held:
The petitioner had challenged the election of Majumder because he had faked his educational qualifications, and argued that he had verified the information by making an RTI application to the concerned authorities, and filed a complaint before the ECI based on the same.
It was argued that the petitioner had filed immediate complaints to the ECI as well as the returning officer, but the ECI had asked him to wait through e-mails and did not take any steps in the interim, due to which the petitioner preferred the present challenge.
It was argued that under Article 192 of the Constitution, the procedure for such a scenario would be if any question arises as to whether a member of a House of the Legislature of a State has become subject to any disqualifications mentioned in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
Petitioners submitted that under Article 19(1)(e), a person would be disqualified as an MLA if he is rendered so by any law made by parliament, and interpreted the 'law' to mean the Representation of People's Act, 1950.
It was argued that under Section 146 of the Act, the ECI had been empowered with powers of a civil court to hold enquiries in such cases.
Further arguments were made to prove the respondent's disqualification along the lines of the RP Act as well as under the Conduct of Election Rules, 1961.
Counsel for the ECI contended that no prayer had been made against the ECI, and thus the petition was not maintainable against the ECI, since the petitioner did not contest the vote, and was neither a returned candidate.
Respondents counsel on the other hand, argued that the petitioner was a "fence-sitter" since he filed the plea after two years of the election being concluded, and did not even prefer an election petition at the relevant juncture.
It was argued that Article 192 of the Constitution was dependent on whether a question for disquaification arose at all, under Article 191, and the term 'disqualified' could be understood from Section 7(b) of the RP Act.
Counsel pointed out the RP Act had specifically laid out all the offences under which a candidate may be disqualified, and was exhaustive in nature.
It was argued that the allegation of having committed 'corrupt practises' under the RP Act was unsubstantiated, since the educational qualifications of the candidate were not publicised or revealed by the candidate or his agent.
The petitioner has not made any allegation of any publication by the candidate or his agent regarding his educational qualification. Thus, corrupt practices are also ruled out in the present case, it was submitted.
Court observed that the petitioner had alleged that the impropriety committed by the respondent was that he had given a false declaration of his educational qualifications, and age to the ECI. However, the court held that the documents allegeldy obtained by the petitioner through his RTI, would have to be proved before a competent criminal court to show that fraud had been played on the ECI.
The bench also pointed to the 'larger issue' on whether in a country like ours, where the vast majority of the people are uneducated if not illiterate, it is debatable whether educational qualification per se can be a test for the legitimacy of candidature of a person.
In holding that an uneducated electorate has the right to elect one of them as their representative, the Court found that the disqualifications contemplated under the RP Act, read with the Constitution of India would not apply in the present case.
Accordingly, it dismissed the plea.
Citation: 2023 LiveLaw (Cal) 343
Case: Gopal Seth Vs. Election Commission of India and others
Case No: W.P.A. No.16089 of 2023