HARI SHANKER JAIN Vs. SONIA GANDHI

JUDGEMENT

(1.) General elections for constituting the 13th Lok Sabha took place in the months of September/October, 1999. In 25-Amethi Parliamentary Constituency there were 27 candidates in the fray out of whom Smt. Sonia Gandhi, the respondent was declared elected on 7-10-1999. The two appellants namely Hari Shanker Jain and Hari Krishna Lal had also contested the election but lost. Three election petitions were filed before the High Court of Allahabad laying challenge to the election of the respondent of which two were filed by the appellants before us. The two election petitions filed by Hari Shanker Jain and Hari Krishna Lal, the appellants before us, and a third election petition filed by an elector-Prem Lal Patel were respectively registered as Election Petitions Nos. 1 of 1999, 4 of 1999 and 5 of 1999. In all the three election petitions the respondent, without filing written statement, moved applications under Order 6, Rule 16 read with Order 7, Rule 11 and Section 151 of the CPC supported by affidavit submitting that the respective election petitions did not raise any triable issue before the High Court; that the pleadings were lacking in precision and were vague, unspecific, ambiguous and irrelevant, to some extent also scandalous, and hence amounted to abuse of the process of the Court; and that the pleadings did not disclose any cause of action worth being tried by the High Court and therefore the pleadings were liable to be struck off and the election petition liable to be dismissed. The applications were opposed by the election petitioners filing replies thereto. The learned designated Election Judge heard the applications filed by the respondent and formed an opinion that none of the three petitions disclosed any cause of action or triable issue and as such none was maintainable under Section 86 of the Representation of the People Act, 1951. By a common order all the three petitions were directed to be dismissed with costs. Prem Lal Patel, the petitioner in Election Petition No. 5 of 1999, has accepted the order of the High Court and given up pursuing the challenge to the election of the respondent. However, Hari Shanker Jain and Hari Krishna Lal have filed these appeals under Section 116-A of the Representation of the People Act, 1951 (hereinafter, 'RPA, 1951', for short).

(2.) We will briefly set out the gist of the pleas raised by the two appellants in their respective election petitions to appreciate the nature of controversy arising for decision in these appeals. The details of the pleadings would be relevant but only a little later and at that stage we will revert back to the pleadings in such details as may be necessary. Suffice it to note for the moment that both the petitioners admit the respondent having acquired Indian citizenship by registration under Section 5(1)(c) of the Indian Citizenship Act, 1955 on the ground of her having married Shri Rajiv Gandhi, a citizen of India (later Prime Minister of India). Both the election petitioners dispute the validity of the certificate of citizenship issued to the respondent and submit that she, being an Italian citizen, did not satisfy the pre-requisites for entitlement to registration as a citizen of India and even otherwise, could not have become a citizen of India and is not a citizen of India. In addition, election petitioner Hari Shanker Jain has also laid challenge to the vires of Section 5(1)(c) of the Citizenship Act submitting that provision is ultra vires of the Constitution. We are not referring here to other parts of the pleadings and details thereof as we propose to set out the same in the later part of the judgment where it would be necessary and apposite.

(3.) The learned designated Election Judge held that the challenge to citizenship cannot be adjudicated upon by the High Court in an election petition. So also the plea that the respondent's name was wrongly entered in the voters list could be raised before the Election Commission and not before the High Court in an election petition. The respondent was holding a certificate of citizenship granted under Section 5(1)(c) of the Citizenship Act which was final and binding and unless cancelled by the Central Government, the same could not be called in question in an election petition. The learned designated Election Judge also held that question of vires of any law could not be raised before nor could be gone into by him within the limited jurisdiction conferred on High Court hearing an election petition under RPA, 1951. In the opinion of learned designated Election Judge the two election petitions did not raise any triable issue nor disclose any cause of action and hence were not maintainable under Section 86 of the RPA, 1951. The preliminary objections raised by the respondent were allowed and all the election petitions dismissed in limine.