It is definitely most imperative to take into account that in a very significant move with far reaching implications, the Delhi High Court while raising its eyebrows in a most learned, laudable, landmark, logical and latest judgment titled Amit Kumar Diwakar vs Union of India through Secretary & Ors in W.P.(C) 14113/2024 that was pronounced as recently as on 07.10.2024 has not only rejected the plea against the election of the Bar Council of India (BCI) Chairman Mr Manan Kumar Mishra to Rajya Sabha finding that it not only lacks merit but is also an abuse of legal process aimed at circumventing the proper remedy rather also has displayed its huge anger by not only just dismissing the petition but also imposing with it a cost of Rs 25,000/- on the petitioner. It must be disclosed here that advocate Amit Kumar Diwakar moved the Delhi High Court via writ petition affirming and arguing that Mr Manan while holding the office of BCI Chairman cannot serve as a sitting member of the Rajya Sabha as the former position qualifies as an ‘officer of profit’. It must be also mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Sanjeev Narula also ruled holding that the Constitution explicitly outlines a procedural framework to address questions of disqualification under Article 102(1).
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjeev Narula sets the ball in motion by first and foremost putting forth in para 1 that:
The Petitioner, a practising Advocate, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, 1950, (Constitution) seeking directions to Respondent No. 1– Union of India and Respondent No. 2– Election Commission of India, to disqualify Respondent No. 5– Sh. Manan Kumar Mishra from the Rajya Sabha.
To put things in perspective, the Bench envisages in para 2 that:
The Petitioner contends that Respondent No. 5, while holding the office of Chairman, Bar Council of India, (BCI) a statutory body under the Advocates Act, 1961, cannot simultaneously serve as a sitting member of the Rajya Sabha. He places reliance on Article 102(1)(a) of the Constitution, which provides for disqualification of a Member of Parliament, if he holds any office of profit under the Government of India or any State, unless such office is exempted by the Parliament.
Do note, the Bench then very clearly notes in para 10 that:
A perusal of the aforesaid provisions makes it abundantly clear that the Constitution explicitly outlines a procedural framework to address questions of disqualification under Article 102(1). As stipulated in Article 103, when a question regarding the disqualification of a Member of Parliament arises, such a matter must be referred to the President of India for a decision. Crucially, before rendering any decision, the President is constitutionally mandated to obtain the opinion of the Election Commission, and act in accordance thereof. It is, therefore, the Election Commission’s opinion, which carries substantial weight, and is decisive in determining whether the grounds for disqualification are met. This carefully structured process highlights the importance of a thorough and impartial inquiry into the issue of disqualification. The role of the Election Commission, as an independent constitutional authority, ensures that such matters are evaluated with due scrutiny, free from external influences.
As a corollary and so also one must say quite significantly, it would be definitely worthwhile to note that the Bench then propounds in para 11 holding succinctly that:
In light of the foregoing, the Petitioner’s attempt to seek a writ of mandamus, directing the Ministry of Law and Justice to initiate steps to disqualify Respondent No. 5, is misplaced. The disqualification under Article 102(1) cannot occur automatically, solely based on certain allegations or presumptions. It necessitates a formal inquiry and a reasoned determination, as prescribed by the Constitution. The Petitioner’s plea, as borne out from his representation dated 26th September, 2024, is grounded in the assumption that Respondent No. 5 is allegedly holding an office of profit. This vague allegation cannot form the basis for this Court to issue directions to the Ministry, in disregard to the constitutional process. Therefore, the Petitioner’s request for a mandamus to the Ministry of Law and Justice as well as the Election Commission of India is untenable and cannot be entertained by this Court.
As we see, the Bench then further points out aptly in para 12 that:
Another crucial aspect that merits the attention of this Court is that Respondent No. 5 was already holding the office of Chairman of the BCI at the time of his election to the Rajya Sabha. There have been no subsequent disqualifications, which would necessitate his removal from the office of the Chairman. Therefore, although the Petitioner has framed the prayer as seeking a writ of mandamus for disqualification, the underlying issue herein is essentially a challenge to Respondent No. 5’s election to the Rajya Sabha.
To be sure, one must note here that the Bench then while citing the relevant case law points out in para 13 that:
In this regard, Section 80 of the Representation of the People Act, 1951 explicitly provides that an election can only be challenged by way of an election petition presented in accordance with the Act. In light of this statutory framework, a writ petition under Article 226 is not the appropriate forum for addressing an election dispute. If the Petitioner intends to question the validity of Respondent No. 5’s election, the proper recourse lies under Section 81 of the Act, which prescribes the mechanism for filing election petitions. Further, Article 329 of the Constitution puts a bar on courts to interfere in electoral matters. Sub-clause (b) of the said Article stipulates that no election to either house of Parliament shall be questioned except by an election petition presented to such authority and in such manner as provided by law made by the appropriate legislature. This provision reaffirms the exclusive legal mechanism established for election disputes, further highlighting that such challenges cannot be entertained by writ petitions under Article 226. This view is also supported by the judgement of the Supreme Court in Indrajit Barua & Ors. vs Election Commission of India, (1985) 4 SCC 722, the relevant portion of which is reproduced hereunder:
6. These are clear authorities - and the position has never been assailed - in support of the position that an election can be challenged only in the manner prescribed by the Act. In this view of the matter, we had concluded that writ petitions under Article 226 challenging the election to the State Legislature were not maintainable and election petitions under section 81 of the Act had to be filed in the High Court. The Act does not contemplate a challenge to the election to the Legislature as a whole and the scheme of the Act is clear. Election of each of the returned candidates has to be challenged by filing of a separate election petition. The proceedings under the Act are quite strict and clear provisions have been made as to how an election petition has to be filed and who should be parties to such election petition. As we have already observed, when election to a Legislature is held it is not one election but there are as many elections as the Legislature has members. The challenge to the elections to the Assam Legislative Assembly by filing petitions under Article 226 of the Constitution was, therefore, not tenable in law.
It is worth noting that while adding more to it, the Bench observes in para 14 that:
The principle laid down in Indrajit Barua is thus clear: election related disputes are subject to strict procedural requirements, and bypassing these by invoking Article 226 of the Constitution, would undermine the legislative intent behind the enactment of the Representation of the People Act. Hence, the Petitioner’s attempt to challenge the election of Respondent No. 5 through a writ petition cannot be sustained. The Supreme Court’s judgment in Tej Bahadur vs Narendra Modi (2021) 14 SCC 211 is particularly instructive in this regard, wherein the Court had made the following observations:
15. Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. The Explanation to Section 81 provides that an elector means a person who was entitled to vote at the election to which the election petition relates. In this case the election is to the Varanasi Parliamentary seat. Obviously, the appellant is not an elector registered in the Varanasi constituency since he is admittedly enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana. His locus thus depends entirely on the question whether he is a candidate or can claim to be a duly nominated candidate.
xx……………xx………………xx
25. Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition. In this sense the Election Petition can also be set to be barred by Section 81 read with Section 86(1) of the Act. The aforesaid judgement clarifies that the locus standi for filing an election petition is restricted to an elector as defined under Section 81(1), or a candidate within the meaning of Section 79(b) of the Representation of the People Act, 1951. The Court has emphasized that an individual who does not meet these criteria cannot maintain an election petition. In light of the aforesaid principles, it is evident that the Petitioner, neither being an elector, nor a candidate in the election in question, lacks the necessary locus standi to initiate an election petition.
Most forthrightly, the Bench while drawing the curtains on this robust judgment postulates in para 15 mandating that:
To conclude, the Petitioner has bypassed the mechanism for challenging elections, outlined in the Representation of the People Act. The constitutional and statutory framework stipulates that challenges to elections must be made in the prescribed manner under the Act, and the courts cannot allow writ petitions to serve as an alternative route to circumvent this established procedure. Therefore, the Petitioner’s decision to invoke this Court’s writ jurisdiction without filing an election petition, amounts to a misapplication of legal principles. The claim, disguised as a writ petition, is fundamentally an attempt to challenge the election of Respondent No. 5, which cannot be examined in the present proceedings.
Finally and far most significantly, the Bench then concludes by holding in para 16 that:
Consequently, this Court finds that the present petition not only lacks merit, but is also an abuse of the legal process, aimed at circumventing the proper remedy. Accordingly, the petition is dismissed with a cost of Rs. 25,000/-, to be deposited by the Petitioner with the Delhi State Legal Services Authority within four weeks from today.
All in all, it thus merits no reiteration that the bottom-line of this notable judgment by Delhi High Court is that time of the Court is very precious which all citizens of India must always be fully conscious of and if the litigants and petitioners even if they are advocates prefer to file petition without any strong merit in it and which appears to the Court to be clearly an abuse of the legal process as we see here that is aimed at circumventing the proper remedy as pointed out here by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjeev Narula then not only will the petition be just dismissed but even cost would be imposed as we see being done in this leading case. The Bench was undoubtedly thus most forthright in holding clearly that Diwakar’s decision to invoke the writ jurisdiction certainly amounted to misapplication of legal principles and so it was but natural that the petition had to be dismissed. No denying!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
