REGISTERED No. D-(D)-72
The Gazette of India
EXTRAORDINARY
PART II—Section 3—Sub-section (ii)
PUBLISHED BY AUTHORITY
No. 448] NEW DELHI, MONDAY, OCTOBER 11, 1976/ASVINA 19, 1898
Separate paging is given to this Part in order that it may be filed as a separate compilation
MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS
(Legislative Department)
NOTIFICATION
New Delhi, the 11th October 1976
S.O. 673(E).—The following Order made by the President is published for general information:—
ORDER
Whereas the election of Shri Lhomithi Sema, the returned candidate from the Dimapur Assembly Constituency in the State of Nagaland at the general election to the Legislative Assembly of that State held in February, 1974, was declared void by the Gauhati High Court (High Court of Assam Nagaland, Meghalaya, Manipur and Tripura), Kohima Bench by its judgment dated the 26th September, 1974 in Election Petition No. 1 of 1974;
And whereas an appeal of the returned candidate to the Supreme Court against the judgment of the said High Court, was dismissed by the Supreme Court as withdrawn, by its order dated the 24th November, 1975;
And whereas the Secretary, Legislative Assembly of the State of Nagaland, being the authority specified by the Central Government for the purpose of sub-section (1) of section 8A of the Representation of the People Act, 1951 (hereinafter referred to as the said Act) under the Notification of the Government of India in the Ministry of Law, Justice and Company Affairs (Legislative Department), No. 367(E). dated the 25th May, 1976, has submitted the case to the President, for determination of the question as to whether the said Shri Lhomithi Sema shall be disqualified, and if so, for what period;
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1928 T HE GAZETTE OV INDIA EXTRAORDINARY PART II—SEC. 3(11) 'And whereas tht President has sought the opinion of the Election Commission in the matter in pursuance of sub-section (3) of said section HA;
And whereas the Election Commission has, in its opinion (vide Annexure), recom- mended the imposition of a disqualification on the said Shri Lhomithi S"ma for a period of threo years from the 24th November, 1975;
Now, therefore, I, Fakhruddin Ali Ahmed, President of India, in exercise of the powers conferred on me under sub-section (3) of section 8A of the said Act, do hereby impose a disqualification on the said Shri Lhomithi Sema for a period of three years from ih" 24th November, 1975.
FAKHRUDDIN ALI AHMED, Rashtrapati Bhawari, New Delhi, the 30th Sept., 1976.
President of India.
ANNEXURE
ELECTION COMMISSION OF INDIA
Before the Chief Election Commissioner
In re: Reference ffpm the President under section 18^(3) read with section SA(l)
of the Representation of the .People Act,. 1951 regarding the case of
Shri Lhomithi Sema.
This is the first reference to the Commission from the President of India under section 8A{3) road wilh section 8A (1) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) as amended by the Election Laws (Amendment) Act, 1975. The opinion of the Election Commission is soug'nt on the question as to whether Shri Lhomithi Sema, whose election to the Legislative Assembly of Nagaland in 1974 had been set aside on the ground of the commission of certain corrupt practices, should be disqualified in terms of section 7(b) read with section 8A (1) of the Act and if so, for what period.
2. Shri Lhomithi Scma (hereinafter referred to as the 'returned candidate1) contested the general election to the Legislative Assembly of Nagaland held in February 1974 from Dlmapur Assembly constituency and was declared elected. Subsequently, his election was challenged before the Gauhati High Court, Kohima Bench, by Shri Neisatuo Keditsu, one of the contesting candidates (hereinafter referred to as the 'election petitioner'). The allegation levelled against the returned candidate in the election petition was that he had been guilty of the commission of three corrupt practices, namely, (i) Incurring or autho- rising an expenditure exceeding the permissible maximum of Rs. 2500/-; (ii) bribery; and (iii) undue influence.
3. The issue relating to undue influence was not pressed beforo the High Court by the election petitioner. By its judgment dated 26 September, 1974, the High Court declared the election of Shri Sema to be void and recorded a finding in terms of section 99 (1) of the Act in regard to the commission of the Other two corrupt practices. The High Court held that the first two descriptions of corrupt practices mentioned above, had been proved to have been committed by Shri Sema. The Court found that Shri Sema had (i) incurred or authorised expenditure in contravention of section 77 of the Act and (ii) had indulged in bribery by throwing a feast as a gratification of the people of Natunbasti with the object directly or indirectly of inducing the electors of that Basti to vote for him in the election.
4. On the issue of the corrupt pfactice defined In section 123(6), the High Court held that four items of expenditure amounting to Rs. 1188.20 had not been included in the account of election expenses filed by the returned candidate; if that amount was added to the declared amount of Rs. 2309.20, the total expenditure incurred or authorised by Shri Sema would exceed the permissible limit of Rs. 2500/-, These items were (i) Rs. 967/- found to have been spent by Shri Sema on fuel charges on the vehicles used by him; (ii) Rs. 20/- spent by the Nagaland National Organization (N.N.O.) Sadar Committee, Diraapur, with his consent on the purchase of four rubber blocks; (iii) a sum of Rs. 81.20 paid for electoral rolls and a copy of candidates' Hand Book purchased by him and by the NNO Sadar Committee, Dimapur, with his consent or that of his election agent; and (iv) Rs. 120/- which one Vikeshi Sema had paid oni behalf of the returned candidate towards the rent of one room taken for electioneering purposes.
5. The facts which are held to have been established at the trial of the election petition in respect of the charge of bribery were briefly as follows:—•
A meeting of the NNO party was held at the House of one Utilemba on 19 January, 1974. Food articles i.e rice, pork and mutton were served and these food articles were
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supplied by the returned candidate. Rum was also served to the participants in the meet- ing and the liquor had also been provided by the returned candidate. The meeting had been addressed by the one Shri Anwar Hussain, Secretary of the NNO, Dimapur and by the returned candidate. Both had commended the NNO candidates to those assembled. The High Court held that it had been established that the meeting was meant to advance the election prospects of the respondent by appealing to the electors of No. 2 Dimapur constituency residents in Natunbasti to exercise their franchise in favour of the returned candidate.
6. An appeal was filed on 11 October, 1974 by the returned candidate in the Supreme Court against the decision of the High Court. By its order dated 17 October, 1974, the Supreme Court stayed the operation of the judgment and the order dated 26 September, 1974 of the Gauhati High Court, Kohima Bench. Meanwhile, the Legislative Assembly, of Nagaland was dissolved by the Governor of Nagaland in the exercise of his Constitu- tional authority with effect from 20 May, 1975. By its order dated 24 November, 1975, the Supreme Court dismissed the appeal of the returned candidate as withdrawn.
7. On receipt of the reference from the President, the Election Commission issued a notice to the returned candidate offering him an opportunity of being heard before ten- dering its opinion to the President under section 8A(3) of the Representation of the People Act, 1951. A hearing was held for the purpose on 10 August, 1976. The returned candi- date appeared in person. He submitted written submission which have been brought on record. He also made a brief oral submission to the effect that his appeal before the Supreme Court had been withdrawn by him as he could not afford the enormous expense involved in prosecuting the appeal. He stated that if he had pursued the appeal he thought that he had every chance of winning the case and having tho findings and order of the High Court set aside. He 'also stated that the finding of the High Court in regard to the charge of bribery by holding a feast was based mainly on the evidence of one person in whose house the meeting of the NNO was 'held and that he had not incurred any expenditure or arranged the feast. He therefore prayed that his case be considered sympathetically.
8. The findings of the High Court are clear and unambiguous. The Election Com- mission cannot obviously arrogate to itself the character or functions of an appellate authority in relation to the Gauhati High Court. This role belongs to the Supreme Court before which an appeal was filed but withdrawn, The Commission is bound, in the cir- cumstances, by the findings of fact and law recorded by the Gauhati High Court.
9. The Act provides for a maximum limit to election expenditure incurred by a candi- date or on his authority, and defines bribery in the context of elections. It brings the violation of thw expenditure limit and the commission of bribery in the context of an election both under the definition of "corrupt practices". Under sections 8A and HA of the Act provision is made for disqualification for being a member of cither House of Parliament or of the Legislature of a State and for voting at any election. J nesc provisions are made in order to ensure honesty in the process of election and to secure to the electorate the right of an unrestricted free exercise of choice amons candidates. These are basic requirements of any real democracy and there can be no two opinions as to whether or not persons guilty of "corrupt practices" at elections should be disquali- fied under sections 8A and 11A of the Act. The answer must clearly be in the affirmative and I tender opinion accordingly under section 8A(3) of the Act.
10. The question of an appropriate period of disqualification remains. Tt is well known that Nagaland te largely tribal and has not until recently been fully in the main- stream of the national life in the political, economic or social fields. A modern demo- cracy with its machinery and its ethical requirements is a relatively new institution m this tribal area. A certain degree of clemency would therefore be not out of place in c^ses of the present kind. Nevertheless, the punishment of disqualification would not be effec- tive unless the person committinn "corrupt practices" is excluded from taking part at least in one general election. The findings of the High Court of .Gaurnt, take effect as fom 24 November, 1975 on which date the Supreme Court dismissed the appeal and vacated the order statins the judgment and thr order of ih,-Gaiihati High Court Ordinarily, the Nagaland Assembly would have continued until February 1979 as the last Pcneia election to the Assembly was held in February 1974. But in cwrc.se of his cons ilutional authority, tho Governor of Nagaland dissolved the Txmshtive Assembly w.th effect from 20 Mav 1975 The State k now under President's rule. Tt ,s not possible t
.through fne constitution of a duly elected Assembly by a general election may not be delay
I93O T HE GAZETTE OF INDIA EXTRAORDINARY PART I I — S E C. 3(ii)cd longer than two years. Under article 356 of the Constitution the Presidential Procla- mation cannot remain in force beyond 20 May, 1978 in the ordinary course. A general election to constitute a new Assembly in the State of Nagaland can therefore be taken as nearly certain not later the middle of 1978. T therefore consider that the imposition of a disqualification for a period of three years from the final finding in his case U.&. 24 November, 1975) under section 8A(1) of the Act would ensure that the returned candidate shall be prevented from being chosen as a member of the House of the People or of the Nagaland Assembly at least at one general election. I tender opinion accordingly under section 8A(3) of the Act that a disqualification of three years commencing from 24 November, 1975 could be appropriately imposed on the returned candidate in the instant case.
(Sd.) T. SWAMINATHAN, Chief Election Commissioner of India.
N EW DELHI; 26 Augiwt, 1976
[No. F.7(17)/76-I.eg.'II1
E. VENKATESWARAN, Jt. Secy.
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1932 T HE G A ZETTE OF INDIA EXTRAORDINARY PA"T II—SEC. 3(U)1933
1034 T HE G A Z E T TE 0F INDIA EXTRAORDINARY PART M—SEC. 3(il)