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Dilip Rao
Dilip Rao
8 years ago

Both judgments are fatally flawed. The textual reading of art.102(1)(e) and 191(1)(e) in Lily Thomas signifies a failure to carefully read and comprehend simple English. Art.102(1)(e) states:

"A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament."

If I say "Mr.X bought apples and oranges", it is the same thing as saying "Mr.X bought apples and Mr.X bought oranges". If one recalls primary school arithmetic/algebra, this is what is known as the "distributive property", viz., a * (b + c) = a * b + a * c. Accordingly, the provision 102(1)(e) can be expanded to read: "A person shall be disqualified for being chosen as a member of either House of Parliament if he is so disqualified by or under any law made by Parliament and A person shall be disqualified for being a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". Note that the condition for the two is identical, viz. "if he is so disqualified by or under any law" but how that condition applies in each case might be different. Parliament may well choose to pass a law to disqualify the first group but not the second. To give another analogy, suppose an instruction manual reads, "The department secretary shall purchase pens and printing paper as sought by members of the faculty from the campus bookstore", it means the precondition for purchase is identical, viz. he/she will order pens/paper "as sought by members of the faculty" but how it applies could well differ in each instance: faculty members may have run out of only printing paper and may ask only for that. No sane person would read it to mean every time he/she orders paper, pens also should be ordered. Similarly, the clause "if he is so disqualified by or under any law" may well apply differently depending on what conditions parliament has laid down for each
category – nothing prevents it from applying requirements to one and not the other.

Jan Chaukidar is worse. s.2(1)(e), RPA, 1951 reads:

"" elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)."

The relevant s.16(1)(c), RPA, 1950 states:

"Disqualifications for registration in an electoral roll: A person shall be disqualified for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections."

It is self-evident that so long as the person is not disqualified for an electoral offence, he/she remains an elector. A long list of other disqualifications is included in s.7-11. Right to vote under s.62 is not one of them. Thus, even a casual reading shows that the judgment has no basis. This tendency to simply make up stuff out of whole cloth is affecting the Court's credibility. It is about time the honorable judges give some thought to it.

Vasujith Ram
Vasujith Ram
8 years ago

Dear Mr. Dilip Rao,

I have written this post on the assumption that the reasoning of the Court in these two cases are sound.

But I agree with you on both your arguments. I find your argument Art. 102(1)(e) and Art. 191(1)(e)to very interesting. Even when it was pointed in EC v Saka Venkata Rao that Art. 191 lays down "the same set of disqualifications for election as well as for continuing as a member", there was hardly any discussion as to why it is so. This must definitely be given some thought.

With regard to your argument about the reasoning in the Jan Chaukidar case, I am in full agreement. In fact this error has been pointed out by Mr. Anup Surendranath on this blog. Please see http://lawandotherthings.blogspot.in/2013/07/the-error-in-cec-v-jan-chaukidar.html

Regards

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Why an Accused Can contest the election but cannot vote? – Indian Society for Legal Research
2 years ago

[…] Chaukidar Together: Logically a Strange & Dangerous Result, Lawandotherthings , Available at:  http://lawandotherthings.com/2013/08/reading-lily-thomas-and-jan-chankidar/  (Accessed on December 02, […]