SHAIJU J KOORAN Vs. STATE ELECTION COMMISSION THIRUVANANTHAPURAM
LAWS(KER)-2003-2-53
HIGH COURT OF KERALA
Decided on February 04,2003

SHAIJU J.KOORAN Appellant
VERSUS
STATE ELECTION COMMISSION, THIRUVANANTHAPURAM Respondents

JUDGEMENT

JAWAHAR LAL GUPTA, J. - (1.) Is the election of the respondents as Municipal Councillors and Panchayat Member vitiated on account of the fact that they had not subscribed to the oath, in the prescribed form, at the time of filing the nomination papers? This is the short question that arises for consideration in these two cases. Learned counsel for the parties have referred to the facts in Original Petition No. 29473 of 2000. These may be briefly noticed.
(2.) The elections to the Municipal Councils and the Panchayats in the State of Kerala were held in September, 2000. Respondent Nos. 4 to 25 were amongst those elected as Municipal Councillors in Irinjalakkuda Municipality. The petitioner alleges that while filing the nomination papers the elected Councillors had subscribed to an oath which did not conform to the Second Schedule of the Kerala Municipality Act, 1994. The words "will maintain sovereignty and integrity of India" were missing from the oath. On this basis, it is alleged that respondent Nos. 4 to 25 were not qualified to contest the election. Their nomination papers had been wrongly accepted. Their election cannot be sustained. Thus, the petitioner prays that a writ of quo warranto be issued and they be debarred from continuing to function as Municipal Councillors.
(3.) A counter-affidavit has been filed on behalf of the first respondent viz. the State Election Commission. In the affidavit it has been averred that there was a bona fide omission. While printing the forms, the amendment as made in the year 1999 was not given effect to. As a result, the candidates subscribed to the oath in the old form. In this form the undertaking to "uphold the sovereignty and integrity of India" was not there. Despite this categorical admission of facts, it has been pleaded that the proper remedy for the petitioner is to approach the Election Tribunal, which is the appropriate forum to decide the matter after recording evidence. It is a technicality which does not go to the root of the matter. Reference has also been made to Article 51-A(c) of the Constitution. On this basis it has been averred that an oath to abide by the Constitution "will impliedly cover an undertaking to uphold the sovereignty and integrity of India." On these premises the respondent maintains that the writ petition should be dismissed.;


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