The Meghalaya High Court has rejected the plea for registration of a case of violation of election model of conduct against Williamnagar MLA Marcuise N. Marak who is currently a cabinet minister in the MDA government.
Tennydard M. Marak had moved a writ petition against the Election Commission of India in the High Court for the purported inaction on the part of the Election Commission, Chief Electoral Officer, and other officials on his complaints about the violation of the provisions of the Representation of the People Act, 1951 as well as the model code of conduct by Marcuise N. Marak during the general elections for the Meghalaya Legislative Assembly held in 2023 from Williamnagar Assembly Constituency.
The writ petitioner also pleaded with the High Court to direct the Election Commission of India for registration of a case against the NPP MLA on the basis of a complaint dated February 23, 2023 and FIR dated April 3, 2023.
However, in a verdict passed today, Justice Hamarsan Singh Thankhiew said that Article 329(b) of the Constitution of India imposes a strict bar to the interference by courts in electoral matters.
Furthermore, Justice Thangkhiew said that Section 80 of the Representation of People Act, 1951, has also made it clear that no election shall be called in question, except by an Election Petition presented in accordance with the provisions of that part which prescribes the presentation of an Election Petition before the High Court. The judge also stated that Section 81 and 86 prescribe the manner of presentation and trial of an Election Petition.
“The position of law being crystal clear, the writ petition seeking invocation of the writ jurisdiction of this court, in an attempt to unseat the respondent No. 7 (Marcuise N. Marak), is therefore not maintainable and is liable to be dismissed. Accordingly, the writ petition for the reasons aforementioned is dismissed,” Justice Thangkhiew said while also imposing a fine of Rs15,000 to the petitioner.
Tennydard’s lawyer J C Gaur in his pleadings submitted that the writ petitioner is not challenging the election of Marcuise Marak, but is aggrieved only against the action of the MLA, which constitutes offences punishable under Section 153A, 163 and 171F of the Indian Penal Code.
Gaur also told the High Court that inspite of the complaints, the Officer In-charge of Williamnagar Police Station, by letter dated April 28, 2023, had informed Tennydard that the matter is clearly under the Representation of People Act, 1951 and the Conduct of Election Rules, 1961, instead of proceeding with registration of the case. Gaur further submitted that the High Court under Article 226 of the Constitution has ample discretion to pass appropriate orders directing for investigation and for action to be taken as per the provision of the Representation of People Act, 1951.
However, Advocate General Amit Kumar told the court that the allegations contained in the writ petition are totally confined to allegations against Marcuise Marak for violation of the model code of conduct and as such, the writ petition on this ground itself is not maintainable, as the same is barred by Article 329(b) of the Constitution, which has laid down that no election to either House of Parliament or to the House of the Legislature of a State shall be called in question except by an Election Petition.
Kumar further submitted that Section 80 of the Representation of People Act, 1951, specifically provides that no election shall be called in question except by an Election Petition presented in accordance with the provisions of this part, and as such, the instant writ petition is liable to be dismissed.
The Advocate General also drew the attention of the court to the fact that, the verbal submissions as made by the lawyer for the petitioner is not reflected anywhere in the pleadings of the writ petition and that even the complaint dated February 23, 2023, on which action is sought, was not even filed by the petitioner but by another person namely a candidate from South Tura named Leslee K. Sangma.
Kumar also said that Tennydard had already approached the High Court by way of an Election Petition but withdrew the same on May 25, 2023 after realising that the petition was filed beyond the prescribed period of limitation and therefore, was not maintainable.
Deputy Solicitor General of India Dr. Nitesh Mozika who represented the Election Commission of India while endorsing the submissions made by the Advocate General also submitted that the results of the election were declared on March 2, 2023 and the complaint was submitted on March 23, 2023 after the election process was over and the model code of conduct is no longer in force.
According to Dr. Mozika, once elections are over the only remedy available to the petitioner, subject to establishing his locus standi, was to file and pursue an Election Petition, which the petitioner failed to do within the prescribed time limit of 45 days from the date of declaration of election results. As such, the writ petition is not maintainable and liable to be rejected, Dr. Mozika added.
