SC - Right To Contest Election Not A Fundamental Right: It Is Only A Right Conferred By Statute

In a most significant development, we got to witness how as recently as on September 9, 2022, none other than the Supreme Court of India in a most learned, laudable, landmark and latest judgment titled Vishwanath Pratap Singh vs Election Commission of India in Petition(s) for Special Leave to Appeal (C) No(s).13013/2022 and cited in 2022 LiveLaw (SC) 758 minced just no words to hold that the right to contest an election is not a fundamental right but only a right conferred by a statute. To say the least and yet most effectively, the Apex Court states right in the beginning itself that, "The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act. Referred to Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445." It is also mentioned then about this judgment that it is arising out of impugned final judgment and order dated 10-06-2022 in WP(C) No.9475/2022 passed by the High Court of Delhi at New Delhi.

It must also be mentioned here that the Bench of Apex Court comprising of Hon'ble Mr Justice Hemant Gupta and Hon'ble Mr Justice Sudhanshu Gupta observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh also imposed a cost of Rs one lakh on him. It certainly merits no reiteration that all politicians must abide by what has been laid down so explicitly in this leading case. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost putting forth in the opening para itself that, "Application for permission to appear and argue in-person is allowed."

While stating the key object of the present special leave petition, the Bench then discloses in the next para of this learned judgment that, "The challenge in the present special leave petition is to an order passed by the High Court of Delhi on 10.06.2022 whereby a writ petition filed by the petitioner claiming a mandamus to decide the candidature of the petitioner to file his nomination for Rajya Sabha Elections 2022, was dismissed."

To put things in perspective, the Bench then envisages in the next para of this remarkable judgment that, "The petitioner filed a writ petition before Delhi High Court raising a grievance that a notification for election to Rajya Sabha was issued on 12.05.2022 to fill up the seats of members retiring from 21.06.2022 to 01.08.2022. The last date for submission of the nomination was 31.05.2022."

While continuing in a similar vein and stating how the petitioner felt his right was infringed, the Bench then lays bare in the next concise para of this robust judgment that, "The stand of the petitioner is that he collected nomination form but was not allowed to file his nomination without a proper proposer proposing his name. The petitioner sought his candidature without proposer which was not accepted and, therefore, he claims that his fundamental right of free speech and expression and right to personal liberty has been infringed."

Most notably, the Bench of Apex Court then minces no words absolutely to hold unambiguously in the next para of this rational judgment that, "We find that the writ petition before the High Court was entirely misconceived and so is the present special leave petition. The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. In Javed v. State of Haryana, (2003) 8 SCC 369, this Court held that:-

"22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right — a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.

23. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [AIR 1952 SC 64 : 1952 SCR 218] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892] this Court held in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691] : (SCC p. 696, para 8)

"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.""

No less significant is what is then laid down in the next para of this forthright judgment wherein it is stated that, "In a later judgment reported as Rajbala v. State of Haryana, (2016) 2 SCC 445, this Court held that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament. It was held as under:-

"39. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the "appropriate legislature". The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by Parliament.""

Most forthrightly, the Bench then also propounds in the next para wherein it is expounded that, "Thus, the petitioner did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament. The Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act."

As a corollary, the Bench then hastens to add in the next para of this noteworthy judgment directing that, "In view of the said fact, we dismiss the present special leave petition with cost of Rs.1,00,000/- (Rupees one lakh only). The said cost be paid to the Supreme Court Legal Aid Committee within four weeks."

Finally, the Bench then concludes by holding in the final para of this notable judgment that, "Pending application(s), if any, stands disposed of."

In conclusion, we thus see that the petitioner is left with no option but has to comply with what has been held and pay the cost of Rs 1 lakh accordingly as directed by the Apex Court. This definitely clearly manifests that the Apex Court is not at all happy with what the petitioner claimed and we have discussed this in detail as hereinbefore elaborated upon. The bottom-line of this learned judgment to be picked up is that politicians must stop thinking themselves above all law for whom no one can lay down any restriction within which they have to function!

It definitely merits no reiteration that the sum and substance of this most commendable judgment is that the right to contest election is definitely not a fundamental right as the Apex Court clearly held also which politicians however have an age old tendency to most wrongly assume it to be. The Apex Court also made it indubitably clear that it is a right conferred by the statute as we have discussed also threadbare. More than anyone else, it is none other than the politicians themselves who always ought to remember this and pay heed to what the Apex Court has laid down so very elegantly, eloquently and effectively in this leading case! There can be just no denying or disputing it!