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Synopsis

The Delhi High Court has appointed Justice P. Krishna Bhat, former judge of Karnataka High Court, as the Administrator to conduct the elections of the Basketball Federation of India in accordance with National Sports Development Code, 2011 (Code) and Model Election Guidelines (MEG).

The court was dealing with a batch of three petitions relating to the election of the office bearers and members of the Executive Committee of the Basketball Federation of India (BFI) for the term 2023-2027.

One of the petitions was filed by the Pondicherry Basketball Association to appoint any retired judge of the high court or Supreme Court to supervise and monitor the conduct of elections. The second petition was filed by 15 individuals, 13 of whom alleged their “illegal ousting from contesting the elections” whereas two others were supporting the candidature of those 13. The 13 petitioners were aggrieved by an order passed by the Returning Officer (RO) on 10.02.2023 rejecting their nominations.

The third petition was filed by 21 individuals challenging the declaration of result by the RO on 13.02.2023 alleging that the same was done without holding any election.

The question before the court, as determined, were: (i) whether the nomination forms submitted by the petitioners suffered from substantial defect and, consequently, whether the decision of rejecting the nomination forms by the RO could be said to be correct or not and (ii) whether the decision of the RO en bloc rejecting the nomination forms was arbitrary or illegal so as to call for interference under Article 226 of the Constitution of India.

The court on the issue of maintainability of the present writ petitions under Article 226 observed that determination of the issue involved in the present writ petition did not require any adjudication on facts so as to call for evidence or to allow for the parties to cross-examine witnesses. It observed that what was required to be seen was the comparison of two forms (nomination forms) and to determine whether the forms submitted by the petitioners were rightly rejected by the RO or such a decision needed to be interfered with. Hence, in the absence of any alternative efficacious remedy and in view of the issue involved in the instant writ petitions, the court held that the present writ petitions filed against the rejection of the nomination forms by the RO were maintainable.

While dealing with the core issue as to whether the decision of rejecting nominations required to be interfered with, the single judge bench of Justice Purushaindra Kumar Kaurav observed that the purpose of nomination form or its scrutiny was not to limit the number of potential candidates and exclude qualified individuals from running for office.

"Any restriction or unreasonable scrutiny can undermine the principle of equal opportunity and lead to a less representative governance. The same will have the effect of undermining public trust in the election process and may result in poor governance. Erosion of public trust in the democratic process cannot be countenanced," said the court. 

The nomination forms submitted by all the petitioners were similar. The court observed that the only difference in the nomination form submitted by the petitioners was it being differently structured and the essential information required in the nomination form was not lacking. It was only with respect to the structuring of the form that an objection was raised by the RO. The order passed by the RO, rejecting the nomination forms was almost similar with respect to all the candidates.

The court further observed that Section 36(4) of the Representation of the People Act, 1951 (RP Act) requires that the RO shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

"The defect of substantial character is not defined under the RP Act, however, generally, the same refers to significant error or omission that may disqualify a candidate from being eligible to contest the election. Substance would mean the essence, the essential quality, as opposed to its mere form. Under the provisions of the Act itself, due care has been taken to ensure that there should not be any arbitrary or illegal rejection without any substantial reason at the stage of scrutiny of the nomination form. If there is any objection raised by any person or even by the RO, the concerned candidate is allowed to rebut it with an appropriate explanation," court observed.

The court further observed that the Handbook for Returning Officer, February, 2019, published by the Election Commission of India, deals with scrutiny. Court said that a careful reading of the same would indicate that the grounds for rejection of nomination papers are only those that hit the basic eligibility of the candidate or leaves the question of eligibility undetermined and at the hand of the RO.

"Any minor errors such as in the name of the constituency, the description of an electoral roll number, the choice of symbols, some discrepancy between the age, name, or other particulars of the candidate or his proposer as given in the nomination paper and in the electoral roll and so on are considered to be insubstantial grounds, hence make no ground for rejection," Court held. 

The court concluded that the RO had erred in rejecting en bloc nomination forms of a large number of candidates on a singular non-significant ground. The reason for rejection of nomination form being insignificant and flimsy, the court concluded that the rejection order passed by the RO deserved to be set aside.

Accordingly, the court set aside the order dated 10.02.2023 rejecting the nomination forms of all the petitioners on similar grounds en bloc. Consequently, the declaration of result dated 13.02.2023 was also set aside.

The high court further clarified that the term of the office bearers of the BFI stood expired on 18.02.2023, therefore, the present elected body did not have any right to continue as the officer bearers of the BFI.

The court suspended the interim order dated 16.02.2023 wherein it had directed the present office bearers to continue to function with the rider that no policy decision would be taken without the leave of the high court. Court allowed the three writ petitions and passed a slew of directions as follows:

1. Justice P. Krishna Bhat, the former judge of the High Court of Karnataka to be appointed as an Administrator of BFI with immediate effect;
2. The Administrator shall decide whether the present RO should continue to conduct the election or has to be replaced by another RO. The Administrator shall be at liberty to appoint another RO as he may deem appropriate. The Administrator shall take all steps as may be necessary to conduct the elections of BFI in accordance with the SportsCode and MEG;
3. The election process, however, will continue from the stage of submission of nomination forms after treating the rejected nomination forms as valid.
4. The Government of India, Ministry of Youth and Sports Affairs and BFI are directed to ensure compliance of the present order and to render all assistance and cooperation to the Administrator.
5. The Administrator shall function till the newly elected body takes over the charge of BFI. There shall be an endeavor to conclude the election process at the earliest.
6. The high court left it open to the Administrator to charge appropriate remuneration for his assistance as per his discretion which shall be payable by BFI without any delay.
7. All concerned will cooperate with the Administrator for early conduct of the elections.

Case Title: PONDICHERRY BASKETBALL ASSOCIATION v. UNION OF INDIA and other connected matters