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Synopsis

In a significant ruling, the High Court of Jammu and Kashmir and Ladakh has dismissed the plea of Abdul Bari Naik, an assistant professor, who sought to contest the upcoming parliamentary elections as an independent candidate from the Anantnag-Rajouri Parliamentary seat. Bari, who was dismissed from service in 2021 on allegations of anti-national activities, had petitioned the court to challenge his disqualification from electoral participation.

Justice Sindhu Sharma dismissed Bari's plea, emphasising that he “was aware that he been dismissed from the office was disqualified for a period of five years of the dismissal till he provides a certificate from Election Commission that he has not been dismissed for corruption or disloyalty to the State.”

The petitioner argued that he is an activist with a significant history of serving the people of Jammu & Kashmir for many years. He asserted his active involvement in public life and expressed his desire to contest the upcoming parliamentary elections in 2024 from the Anantnag-Rajouri Parliamentary seat as an independent candidate. Despite completing all necessary formalities, the petitioner contended that his candidature had been rejected.

The petitioner pointed out that he had been dismissed from service through an order dated April 30, 2021, and while he had challenged this dismissal before the Central Administrative Tribunal, Srinagar Bench, it should not serve as a ground for rejecting his candidature in the parliamentary elections.

It was further argued by the petitioner that he was verbally instructed to obtain a certificate under Section 9 of The Representation of the Peoples Act, 1951, but hasn't received a decision despite compliance, maintaining that he fulfilled all necessary requirements to contest the elections and urged the court to intervene in order to enable him to participate in the electoral process.

Conversely, Appearing for the Election Commission of India, Advocate M.I. Dar contended that the petitioner's request for a certificate under Section 9 of The Representation of the Peoples Act, 1951, was denied due to his dismissal invoking Article 311(2) of the Constitution.

Senior AAG Mohsin Qadri, also opposed Bari’s plea, pointing out that while the petitioner obtained nomination forms, they were not submitted, making the rejection of his nomination form irrelevant. He emphasised that as the petitioner was dismissed from service, his nomination paper required a certificate from the Election Commission under Section 9(2) of the Act for validity.

Additionally, GA Jehangir Dar, raised a preliminary objection to the writ petition's maintainability, citing the already commenced electoral process. He referenced the constitutional bench judgment in ’N.P. Ponnuswami Vs. Namakkal Constituency and others’, arguing that interference by the court in electoral matters through a writ petition for filing nomination papers is not permissible.

The court noted that Bari had failed to disclose the rejection of his application during the consideration process by the Election Commission on April 18th and 19th, 2024.

The court further emphasised that since the Election Commission had already rejected the petitioner's request, he could not be considered a duly nominated person in accordance with the Representation of the Peoples Act, 1951.Additionally, it was held that even if the petitioner had submitted his nomination papers, they would not have been accepted due to his lack of status as a duly nominated candidate as per the provisions of the law.

Consequently, the writ petition was deemed not maintainable. Therefore, considering the facts and circumstances presented, the petition was dismissed on both grounds of maintainability and merit.

 

Cause Title: Abdul Bari Naik v Election Commission of India [WP(C) No. 800/2024]