THANGARAJ Vs. M G RAMACHANDRAN

JUDGEMENT

(1.) These two election petitions, namely, Election Petitions Nos. 3 and 4 of 1985, challenge the election of the first respondent Thiru M.G. Ramachandran from Andipatti Assembly Constituency. E.P. No. 3 of 1985 has been filed by one of the unsuccessful candidates who lost his election by a margin of 3148 votes. E. P. No. 4 of 1985 is by one of the voters. By my order dt/- 14th Aug. 1986, Applications Nos. 4559 and 4560 of 1985 were allowed and several paragraphs of the election petitions were struck out, under Order VIR. 16 of the C.P.C. while paragraphs 24 and 30 were struck out under S.83 of the Representation of the People Act, 1951. Consequently, what remained to be examined were the allegations made in para 16, 17 and 18 of the election petitions. They deal with the scope of the notification issued by the Election Commission of India in S.O. 1111 dated 18th March, 1968 in pursuance of Cl.(a) of Arts.84 and 173 of the Constitution of India. The petitioners would contend that in so far as the first respondent was on the relevant date, confined to bed in Broklyn Hospital in New York, it is only para. 2(c) of the notification that would apply. Further, the Election Commission issued a telex message on 19/11/1984 under which it instructed the Ambassador of India or the Consulate General of India in New York as the case may be to authorise one of the Indian Medical Practitioners attending on the first respondent to administer the oath or affirmation to him. Therefore, it was contended, para 2(c) of the notification would exclude the operation of para 2(d) of the notification. In any event, the authorisation under the telex message dt/- 19/11/1984 is not for the Ambassador or the Consulate General of India but only for one of the Indian Medical Practitioners attending on the first respondent. Hence, the acceptance of the nomination would be void. These allegations were countered by the first respondent stating that there is no question of exclusion of one paragraph by the other. Nor again, the telex message would in any way take away the right of the first respondent to make and subscribe the oath or affirmation before the Officer who is empowered under the notification. It was under these circumstances I held in para 105 of my order dt/- 14th Aug. 1986 as follows :-

(2.) Mr. N. Ganapathy, learned counsel for the election petitioners refers to Art.173 of the Constitution and contends that the said article while prescribing the qualification of a period to be chosen to fill a seat in the Legislature of a State talks of the following requirements, namely (i) Citizen of India; (ii) Makes and subscribes oath in affirmation; (iii) before some person authorised in that behalf by the Election Commission and (iv) the oath or affirmation should be as set out in the Third Schedule. Therefore this Article confers power on the Election Commission to authorise a person in that behalf this is a power available under S.14 of the General Clauses Act. If the said Section is read with Art.367 of the Constitution, this power could be exercised as often and as is necessary. Merely because a notification, in this case, Notification S.O. 1111 dt/- 18th March, 1968, had come to be issued, that does not mean that the Election Commission is denuded of its power. That is only a general authorisation. Notwithstanding the same, it could still exercise the power of authorisation depending upon the exigencies of the situation. With this background, if one approaches the scope of the notification S.O. 1111 dt/- 18th March, 1968, it could be seen by a reading of the entire notification that para 2 is complementary to para 1 of the notification. That is because, it says "the Election Commission hereby authorises'. On an analysis of para 2, it would be seen that it refers to candidates belonging to special category; if a candidate falls under anyone of the categories he must satisfy that clause and that clause alone. There is a purpose in qualifying a candidate because the person who is empowered to administer the oath or affirmation will be familiar with the condition of the candidate. In the case on hand, the first respondent being in a foreign country during the relevant time, he was presumed to have been otherwise all the right and hence the diplomatic personnel was prescribed. However, where a candidate is confined to bed in a hospital, there is no scope for applying para 2(d). It is only para 2(c) that would apply. The absence of disjunctive clause makes it clear that each candidate falling under that category will have to make and subscribe the oath or affirmation only under the relevant clause. Therefore, para 2(c) will prevail over para 2(d).

(3.) The next contention of the learned counsel for the petitioners is that the special authorisation under para 2(e) cannot cover the same. This is because para 2(e) says "for any other reason" which will mean for a reason other than what has been aforesaid. The further contention of Mr. Ganapathy is that para 2(e) says of 'an application made to it'. Under Ex. P1 in this case a request was made by the Secretary of the AIADMK PARTY to the Election Commission; the Election Commission applied its mind and issued the telex message which contains instruction as to making and subscribing of oath or affirmation. That should prevail over the general authorisation. Section 2(i) of the Representation of the People Act, 1951 defines the word "sign". That says 'in relation to a person unable to write his name means authentication in such manner as may be prescribed.' The prescription is contained in S.2(2) of the Conduct of Elections Rules, 1961. The Section talks of a 'deemed signing'. It is in pursuance of this Ex. R.11, the telex message dt/- 19/11/1984 had come to be issued. Ex. R11 is attested by Mr. Ramdas, Consular Agent. If the telex message is to prevail, certainly there being no authorisation for Ram Dass, it should be held that the oath or affirmation has been made before a person not authorised. Therefore, under S.36 of the Representation of the People Act, 1951 which procedure is also found in the Hand Book of the Returning Officers, the nomination should have been rejected.