The verdict of the Supreme Court rejecting the petition of the Congress leader, Meenakshi Natarajan, which challenged the decision to reject her Rajya Sabha nomination on the purported grounds of the non-disclosure of a pending criminal case bears public attention. The defendant’s argument was that in the said case, the trial court had only issued summons. Section 33 (A) of the Representation of the People Act mandates — this is illuminating — disclosures of only those cases in which the quantum of punishment is two years or more, where charges have been framed, and where the court has taken cognisance of the charge. In this instance, the police did not lodge a criminal first information report: the principal complaint was against another Congress leader and Ms Natarajan was only accused of not taking requisite action against the accused. The defence was of the view that the stage of cognisance had not been reached. Yet, the returning officer deemed it fit to reject her nomination, paving the path to the upper House for three members of the Bharatiya Janata Party from Madhya Pradesh.
In its judgment, the Supreme Court stated that Ms Natarajan’s petition had been filed under Article 32 — dealing with the enforcement of fundamental rights — which, if it were to be accepted, would be in violation of subclause (B) of Article 329 that bars judicial involvement in electoral matters. In essence, the highest court reiterated that constitutional courts cannot interfere even in instances of alleged violation of statutory principles and natural justice. The Supreme Court’s order put the seal on the Election Commission of India’s declaration that the BJP candidates had been elected unopposed. The apex court’s judgment adheres to the legal textbook. But does it, in its wake, reveal a structural flaw in the constitutional edifice? Can it be said, conceiving of a hypothetical situation, that there is merit in constitutional courts keeping electoral matters at an arm’s length even when a shadow falls on the conduct of personnel or institutions involved in the electoral process? It is not as if laws pertaining to the electoral office are foolproof from bias. Consider the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act. It enables executive outreach, given that the selection panel constitutes the prime minister, a Union minister and the leader of the Opposition. Perhaps it is time for the stakeholders to scrutinise these structural — constitutional? — anomalies closely.