Holding

The Court held that the returned candidate’s nomination was valid, there was no false declaration or violation of the Symbols Order, no disqualification under the Constitution or the Act, and the alleged irregularities did not materially affect the election result.

Summary

The petitioner, G.S. Iqbal, challenged the election of K.M. Khader (the returned candidate) to the Lok Sabha on the grounds that the returned candidate was a member of two political parties at the time of filing his nomination, thereby violating Section 100(1)(d)(i) and (iv) of the Representation of the People Act, 1951, and that his nomination was improperly accepted. The Court examined the nomination papers, the candidate’s party membership, compliance with Sections 33, 34 and the Symbols Order, and whether any disqualification under Articles 84, 102 or the Tenth Schedule applied. It found that the returned candidate was duly a member of the registered DMK party, that the Tamil Nadu Indian Union Muslim League was not a registered party, and that there was no false declaration or breach of the Symbols Order. No non‑compliance with Sections 33 or 34 was pleaded or proved, and the margin of victory indicated no material effect on the result. Consequently, the Court upheld the election judge’s findings and dismissed the appeal.

Issues considered

Whether the returned candidate’s nomination was valid under the Representation of the People Act, 1951 and the Election Symbols Order.
Whether the returned candidate was a member of two registered political parties at the time of filing the nomination, violating Section 100(1)(d)(i) and (iv).
Whether there was any non‑compliance with Sections 33 or 34 of the Act.
Whether the returned candidate was disqualified under Articles 84, 102 of the Constitution or the Tenth Schedule.
Whether any alleged irregularity materially affected the result of the election.

Legislation cited

Constitution of Indias. Article 102, s. Article 84, s. Tenth Schedule
Election Symbols (Reservation and Allotment) Order, 1968s. 13
Representation of the People Act, 1951s. 100(1)(d)(i), s. 100(1)(d)(iv), s. 29A, s. 33, s. 34, s. 36(2)

Subjects

Election petitionRepresentation of the People ActNomination validityDual party membershipDisqualificationTenth ScheduleElection symbolsMaterial effectLok Sabha election

Judgment

[2009] 4 S.C.R. 655

• -< G.S. IQBAL A
v
K.M. KHADAR & ORS.
Civil Appeal No. 1198 of 2007
MARCH 19, 2009
B
[D.K. JAIN AND R.M. LODHA, JJ.]
Representation of the People Act, 1951- ss. 100(1)(d)(i)
and (iv), 33 and 34 - Election to Lok Sabha - Election of
returned candidate void uls. 100(1)(d)(i) and (iv) - Declaration
sought for- Ground for disqualification that returned candidatec
member of two political parties at the time of filing nomination
' - Dismissal of, by election judge - Held: Justified- Nomination
papers of the returned candidate complete on the date of
scrutiny - No false declaration by candidate nor violation of
._ + provisions of Symbols Orders - No evidence that returned D
candidate member of two registered political parties on date
of nomination - Entire electioneering done by two major pre-
poll formations, hence, no confusion in the mind of electorates
that to which alignment, a particular party and movement
belonged - Also no plea raised as regard non-compliance of E
ss. 33 and 34 or that the returned candidate incurred
disqualification - Election Symbols (Reservation and
Allotment) Order, 1968- s. 13 - Constitution oflndia, 1950-
Article 84.
In this appeal, the appellant-unsuccessful candidate F
challenges the order of High Court whereby the election
petition praying that the election of the returned candidate
be declared void under s. 100(1 )(d)(i) and (iv) of the
Representation of the People Act, 1951 was dismissed.
... _.,, G
Dismissing the appeal, the Court
-
HELD: 1.1 In the election petition, the petitioner
sought declaration of the election of returned candidate

655 H
656 SUPREME COURT REPORTS (2009) 4 S.C.R.

A to be void under section 100(1}(d}(i} and (iv) of the >- ·
Representation of the People Act, 1951. The returned
candidate contested the election in the 14th Parliamentary
Elections for Vellore Parliamentary Constituency as a DMK
candidate on its symbol is not in dispute. DMK is a party
B registered with the Election Commission as a political
party under section 29A of the Act, 1951 is also not
disputed. The returned candidate produced his
membership card of DMK party with the returning officer
before the scrutiny of nomination papers is satisfactorily
C established on record. From the oral evidence as well as
the documentary evidence produced by the returning
officer, it is seen that Forms A and B were in order and
met the requirement of Election Symbols (Reservation
and Allotment) Order, 1968. After careful sifting the
evidence of the returning officer and the documentary t ,.,.
0
evidence the designated Election Judge reached the
conclusion that the nomination papers of the returned
candidate were complete on the date of scrutiny and that
there was no false declaration by him. The designated
Election Judge also concluded that the returned
E candidate has not violated any of the provisions of the
Symbols Order and there was absolutely no illegality,
infirmity or impropriety in the acceptance of the ~
nomination papers of the returned candidate. Thus, there
is no justifiable reason to take a view different from that
F of desighated Election Judge. [Para 14) [664-B-F)
1.2 Tamil Nadu Indian Union Muslim League
(TNIUML) was not registered political party in Tamil Nadu
in so far as the 14th Lok Sabha Election is concerned
G within the meaning of the Act, 1951. Since it was not a .,.- ..
registered political party within the meaning of the Act,
1951, admittedly no symbol was allotted to that party in
that election. The petitioner relied upon Ex. P-18 which
only pertained to Panchayat Election and rightly held to
H have no application to Assembly and Parliamentary
GS. IQBAL V K.M. KHADAR & ORS. 657

elections. As a matter of fact the entire edifice built by the A
petitioner that returned candidate was a member of two
political parties has no factual or legal foundation. From
the material placed on record, the designated Election
Judge found that there was nothing to infer that the
returned candidate was a member of two registered B
political parties on the date of nomination. There is no
error in the finding recorded by him. [Para 15] [664-G-H;
665-A-C]
1.3 The submission that the returned candidate
claimed that he became a member of the DMK party on C
April 1, 2004 but he did not resign from the primary
membership of TNIUML before he joined the DMK and
thus, there was a clear legal bar for the returned candidate
to become a member of the DMK is misplaced as it
assumes that TNIUML was a registered political party with 0
the Election Commission for the purposes of the 14th Lok
Sabha election in Tamil Nadu. The material placed on
record lacks cogent evidence in establishing TNIUML as
a registered political party. The reliance placed on section
29A of the Act, 1951 is bereft of any substance. Moreover, E
as to whether the returned candidate as a member of
TNIUML could have become member of another political
party viz., DMK as per their bye-laws or vice-versa or not
is not of any significance in view of the fact that it is the
DMK party that nominated the returned candidate as its
candidate on its party symbol for contesting the 14th F
Parliamentary Election from No. 7 Vellore Parliamentary
Constituency. Further, it has come on record that in Tamil
Nadu with regard to the 14th Lok Sabha General Elections,
the political parties aligned themselves into two major poll
formations: (i) DPA-headed by DMK and (ii) NOA-headed G
by AIADMK. Thus, there was pre-poll alliance amongst
various political parties. In so far as TNIUML is concerned,
it aligned with DMK. There was unanimous resolution of
the executive committee of TNIUML that the returned
candidate would contest the 14th Lok Sabha General H
658 SUPREME COURT REPORTS [2009] 4 S.C.R

A Elections from No.7, Vellore Constituency in the Rising
Sun symbol of DMK party. In this view of the matter even
otherwise there was no impediment for the returned
candidate becoming the member of DMK party and
contesting election from No. 7, Vellore Parliamentary
B Constituency on the symbol of DMK. [Paras 16 and 17]
[665-D-H; 666-A-C]
1.4 On the date of the scrutiny of nomination, the
candidate must be qualified and must not, for the election
of Lok Sabha, have incurred disqualification under Articles
c 84 and 102 of the Constitution or there must not have been
non-compliance with any of the provisions of Section 33
or 34 of the Act, 1951. The petitioner neither specifically
pleaded nor proved that there has been non-compliance
with any of the provisions of Section 33 or 34 of the Act,
_,_ -
D 1951. Thus, on the date fixed by returning officer for
scrutiny of the nomination papers, there was no ground
made out for rejection of nomination of the returned
candidate under Section 36(2)(b) of the Act, 1951. The
returned candidate possessed the qualification prescribed
under Article 84 of the Constitution for membership of
E parliament. [Paras 19, 21and 22] (667-A-B; 670-8-D]

1.5 There is not even whisper either in the election
petition or the evidence let in by the petitioner that the
returned candidate is disqualified under Article 102(1 )(a)
F to (d) for being chosen as a Member of Lok Sabha. [Para
25] [671-G]
1.6 The Speaker of the House is a competent statutory
authority to decide the question as to whether the member
of a House has become subject to disqualification under
r ..
G Tenth Schedule. The question relating to disqualification
under Tenth Schedule has to be decided by the Speaker
and none else. The decision of the Speaker in this regard
is final, however, subject to judicial review on the
permissible grounds. In any view of the matter such an
H issue cannot be a subject matter for consideration in an
G.S. IQBAL V. K.M. KHADAR & ORS. 659

election petition under the Act, 1951. The submission is A
more in desperation than in substance and it is rejected
accordingly. [Para 29] [673-D-F]
1.7 The designated Election Judge did not commit
any error in observing that in order to make out a case
under Section 100(1 )(d)(iv), it was necessary for the 8
petitioner to specifically plead that the election in so far
as it concerned the returned candidate has been
materially affected by the non-compliance of the
provisions of the Act, 1951 or the rules made thereunder.
The designated Election Judge held that the entire C
electioneering in Tamil Nadu in the 14th Lok Sabha was
done by the two major pre-poll formations and hence, it
cannot be stated that it was not made known to the public
that to which alignment, a particular party and movement
belonged and, therefore, there was no confusion in the D
mind of electorates. Margin between the returned
candidate and the defeated candidate was 1,78,610 and
hence it cannot be said that the result of the returned
candidate has been materially affected by the· non-
compliance of the Provisions of the Act, 1951. The view E
of the designated Election Judge is concurred with. [Para
30] [673-G-H; 674-A-C]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1198
of 2007
F
From the Judgement and Order dated 28.03.2006 of the
Hon'ble High Court of Judicature at Madras, in Election Petition
No. 7 of 2004.
A. Palaniappan, S.D. Dwarkanath, Kailash Chand, for the
,. --t Appellants. G
M. Sundar, V. Jeevagiridharan, S.R. Setia, for the
Respondents.
The Judgement of the Court was delivered by
H
660 SUPREME COURT REPORTS (2009] 4 S.C.R.

A R.M. LODHA, J.
1. The unsuccessful election petitioner is in appeal
aggrieved by the judgment dated March 28, 2006 of the Madras
High Court whereby his election petition in challenging the
election of respondent no. 2 has been dismissed.
B
2. The appellant (hereinafter referred, 'the petitioner') is
an electorate of No. 7, Vellore Parliamentary Constituency,
having electoral No. 555 in the electoral list. General Elections
to constitute the 14th Lok Sabha took place in the months of
c April-May, 2004. To represent the said constituency, 19
candidates contested election; K.M. Khader Mohideen being
one of them. The petitioner is the general secretary of Dravida
Muslim Munnertra Kazhagam. This party supported AIADMK
candidates in the 14th Parliamentary election in Tamil Nadu.
D 3. K.M. Khader Mohideen contested the 14th Lok Sabha +~
elections, on the symbol of DMK party. The polling took place
on May 10, 2004 and the results were declared on May 13,
2004. He was declared elected from No. 7, Vellore
Parliamentary Constituency. We shall refer him hereinafter,
E 'returned candidate'.
4. The petitioner challenged the election of the returned
candidate by filing election petition on the grounds set out in
Section 100(1 )(d) (i) and (iv) of the Representation of People
Act, 1951 (for short , 'Act, 1951 ')
F
5. The petitioner set up the case that the returned candidate
did not belong to the DMK party; that he falsely alleged at the
time of filing the nomination that he belonged to DMK party; that
in fact the returned candidate belongs to Indian Union Muslim
G League party (IUML) and he is also the President of the Tamil r ._
Nadu Indian Union Muslim League (TNIUML); that IUML is a
registered as well as recognized political party in the State of
Kerala with a reserved symbol of "Ladder"; that the nomination
of the returned candidate suffered from violation of Section 13
H of the Eleiction Symbols (Reservation and Allotment) Order, 1968
G.S. IQBAL V K.M. KHADAR & ORS. 661
[RM. LODHA, J]

(for short, 'Symbols Order, 1968'), that the presentation of A
nomination paper by the returned candidate was not in
accordance with law and rather was a clear violation of the
provisions of the Act, 1951; that there was an improper
acceptance of nomination of the returned candidate; that the
entire electorate of the Vellore constituency were misled and B
deceived by the returned candidate that he belonged to DMK
party and because of the adoption of deceptive tactic and
~
camouflage of the returned candidate that he belonged to DMK
party which in fact he was not and, therefore, the result of the
election in No. 7, Vellore constituency was materially affected. c
The petitioner, thus, prayed that the election of the returned
candidate be declared void under Section 100 (1 )(d)(i) and (iv)
of the Act, 1951.
6. The returned candidate resisted the election petition
.... + and raised diverse pleas in the written statement: that the election D
petition was not maintainable and it lacked cause of action; that
it does not allege violation of any specific provision of the Act,
1951; that the nomination filed by him on May 19, 2004 was
objected to and the returning officer overruled the objection and
held that nomination was in order; that he produced his E
membership card of the DMK party before the returning officer;
that Forms A and B were filed at the time of nomination itself
~. and there was no violation of Symbols Order, 1968; that his
nomination was proper and did not suffer from any infirmity and
rightly accepted by the returning officer and that there was no F
violation of any law or there was no violation or non-compliance
with the provision of the Constitution or of the Act, 1951 or any
rules or orders made under the Act, 1951.
7. In view of the pleadings of the parties; the designated
~ ~1 Election Judge framed the following issues: G
(i) Whether the nomination filed by the second
respondent is valid in law as prescribed under the
Rules?
(ii) Whether the acceptance of the nomination of the H
662 SUPREME COURT REPORTS [2009] 4 S.C.R.

A second respondent is proper and valid in the light of
prescribed rules and regulations and the provisions
of Representation of the People Act, 1951?

(iii) Whether the presentation and acceptance of
nomination of the second respondent has materially
B affected the result of the elections?

8. The designated Election Judge examined the returning
officer as CW-1 and through whom Ex.C-1 to C-9 were marked.
The petitioner examined the general secretary of Muslim League
c party as PW.1, the organisation secretary of DMK party as PW.2
and examined himself as PW.3. He also produced 19
documents marked Ex. P-1 to P-19. The returned candidate
examined himself as RW.1 and produced 3 documents marked
Ex. R-1 to R-3.

D 9. The designated Election Judge after hearing the parties, + -
recorded his findings on all the three issues against the petitioner
and, accordingly, dismissed the election petition.

10. Mr. A. Palaniappan, learned counsel for the petitioner
strenuously urged that the returned candidate was not a valid
E member of DMK party on the date of filing of nomination papers
as he continued to be member of Tamil Nadu Indian Union
Muslim League which is State unit of Indian Union Muslim
League. Learned counsel would submit that the returned
candidate was member of two political parties at the time of
F filing the nomination and, thus, the acceptance of his nomination
was invalid being in violation of Section 100(1 )(d)(iv) of the Act,
1951. He would submit that the returned candidate had violated
the provisions of the Act, 1951 as well as Symbols Order, 1968.
According to him Symbols Order, 1968 provides that a
G candidate set up by a party shall be a member of that party
alone to use the symbol of that party but the returned candidate
continued to sustain his claim that he was a member of DMK
as well as IUML. The learned counsel contended that the fielding
of returned candidate by the DMK was in contravention of
H Section 29A of the Act, 1951 as he belonged to another political
G.S. IQBAL V. K.M. KHADAR & ORS. 663
[RM. LODHA, J]

party. The learned counsel would submit that the returned A
candidate continued to claim that he was a member of two
political parties simultaneously which is inconsistent with the
provisions of Tenth Schedule of the Constitution. The learned
counsel submitted that the returned candidate hoodwinked the
electorate by falsely alleging that he was a member of DMK B
party and stood in the Rising Sun symbol for which he was not
legally entitled and thereby he had procured and obtained
substantial v-0tes by misleading the electorates and, therefore,
his election was liable to be set aside.
11. On the other hand, Mr. M. Sundar, learned counsel for C
the returned candidate supported the view of the High Court.
12. Section 100 of the Act, 1951 sets out the grounds for
declaring election void. It is now more than well settled that the
grounds for declaring an election to be void must conform to
0
the requirement of Section 100 of Act, 1951.
13. In the election petition, the petitioner sought declaration
of the election of returned candidate to be void under Section
100(1 )(d)(i) and (iv). The said provisions read thus:
"100. Grounds for declaring election to be void E

(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion -
(a)
F
(b)
(c) .......

(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected - G
(i) by the improper acceptance or any nomination,
or
(ii)
H
664 SUPREME COURT REPORTS [2009] 4 S.C.R.

A (iii)

(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules of orders
made under this Act,

B the High Court shall declare the election of the returned
candidate to be void."

14. That the returned candidate contested the election in
the 14th Parliamentary Elections for Vellore Parliamentary
Constituency as a DMK candidate on its symbol is not in dispute.
C That DMK is a party registered with the Election Commission
as a political party under Section 29A of the Act, 1951 is again
not in dispute. That the returned candidate had produced his
membership card of DMK party with the returning officer before

D
the scrutiny of nomination papers is satisfactorily established
on record. From the oral evidence of CW.1 as well as the
documentary evidence produced by him (Ex. C-1 to C-9), it is
~ -
seen that Forms A and B were in order and met the requirement
of Symbols Order, 1968. After careful sifting the evidence of the
returning officer (CW.1) and the documentary evidence (Ex. C-
E 1 to C-9), the designated Election Judge reached the conclusion
that the nomination papers of the returned candidate were
complete on the date of scrutiny and that there was no false
declaration by him before him. The designated Election Judge
also concluded that the returned candidate has not violated any
F of the provisions of the Symbols Order and there was absolutely
no illegality, infirmity or impropriety in the acceptance of the
nomination papers of the returned candidate. Having considered
the matter thoughtfully, we find no justifiable reason to take a
view different from that of designated Election Judge.
G 15. Tamil Nadu Indian Union Muslim League (TNIUML)was
not registered political party in Tamil Nadu in so far as the 14th
Lok Sabha Election is concerned within the meaning of the Act,
1951. This fact is established by perusal of the list of registered
political parties published by the Tamil Nadu State Election
H Commission on 06.05.2004 (Ex.R-2) and the list of registered
G.S. IQBAL V. f\.M. KHADAR & ORS. 665.
[R.M. LODHA, J.]

---4 but unrecognized political parties in India published by the A.,
Election Commission of India on 27.09.2005 (Ex.R-3). Since it
was not a registered political party within the meaning of the
Act, 1951, admittedly no symbol was allotted to that party in that
election. The petitioner relied upon Ex. P-18 which only pertained
to Panchayat Election and rightly held to have no application to B
Assembly and Parliamentary elections. As a matter of fact the
_.... entire edifice built by the petitioner that returned candidate was
a member of two political parties has no factual or legal
"' foundation. From the material that has been placed on record,
the designated Election Judge found that there was nothing to c
infer that the returned candidate was a member of two registered
political parties on the date of nomination. We find no error in
the finding recorded by him.

16. It was submitted on behalf of the petitioner that the
.... returned candidate e<laimed that he became a member of the D
DMK party on April 1, 2004 but he did not resign from the primary
membership of TNIUML before he joined the DMK and thus,
there was a clear legal bar for the returned candidate to become
a member of the DMK.
17. The submission of the learned counsel is misplaced E
as it assumes that TNIUML was a registered political party with

.. • ..J the Election Commission forthe purposes of the 14th Lok Sabha
election in Tamil Nadu. We find that the material placed on record
lacks cogent evidence in establishing TNIUML as a registered
F
political party. The reliance placed by the learned counsel on
Section 29A of the Act, 1951 is bereft of any substance.
Moreover, as to whether the returned candidate as a member
ofTNIUML could have become member of another political party
viz., DMK as per their bye-laws or vice-versa or not is not of any
~ --; significance in view of the fact that it is the DMK party that G
nominated the returned candidate as its candidate on its party
symbol for contesting the 14th Parliamentary Election from No.
7 Vellore Parliamentary Constituency. Further, it has come on
record that in Tamil Nadu with regard to the 14th Lok Sabha
General Elections, the political parties aligned themselves into H
666 SUPREME COURT REPORTS [2009] 4 S.C.R.

A two major poll formations: (i) DPA - headed by DMK and (ii)
~-
NOA - headed by AIADMK. Thus, there was pre-poll alliance
amongst various political parties. In so far as TNIUML is
concerned, it aligned with DMK. It has come on record that there
was unanimous resolution of the executive committee ofTNIUML
1
B that the returned candidate would contest the 14 h Lok Sabha
General Elections from No.7, Vellore Constituency in the Rising
Sun symbol of DMK party. In this view of the matter even
otherwise there was no impediment for the returned candidate ,,
becoming the member of DMK party and contesting election I-

from No. 7, Vellore Parliamentary Constituency on the symbol
c of DMK.
18. Section 36 of the Act, 1951 deals with scrutiny of
nomination papers by the returning officer. Section 36(2) which
is relevant for the present purpose reads thus:
D "(2) The returning officer shall then examine the nomination ...
papers and shall decide all objections which may be made
to any nomination and may, either on such objection or on
his own motion, after such summary inquiry, if any, as he
thinks necessary refuse any nomination on any of the
E following grounds:-
(a) that on the date fixed for the scrutiny of nominations
the candidate either is not qualified or is disqualified
for being chosen to fill the seat under any of the ,,....
~
following provisions that may be applicable, namely:
F Articles 84, 102, 173 and 191
Part II of this Act, and Sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of
1963); or
G (b) that there has been a failure to comply with any of the ... '
provisions of Section 33 or Section 34;
Or
(c) that the signature of the candidate or the proposer
H on the nomination paper is not genuine."
G.S. IQBAL V. K.M. KHADAR & ORS. 667
[R.M. LODHA, J.]

19. What is really important is that on the date of the scrutiny A
of nomination, the candidate must be qualified and must not,
for the election of Lok Sabha, have incurred disqualification
under Articles 84 and 102 of the Constitution or there must not
have been non-compliance with any of the provisions of Section
33 or 34 of the Act, 1951. B
20. Sections 33 and 34 of the Act, 1951 provide thus:

-4 "33. Presentation of nomination paper and
requirements for a valid nomination-(1) On or before
the date appointed under clause (a) of section 30 each C
candidate shall, either in person or by his proposer,
between the hours of eleven O'clock in the forenoon and
three O'clock in the afternoon deliver to the returning officer
at the place specified in this behalf in the notice issued
.. J.. under section 31 a nomination paper completed in the D
prescribed form and signed by the candidate and by an
elector of the constituency as proposer:
Provided that a candidate not set up by a recognized
political party, shall not be deemed to be duly nominated
for election from a constituency unless the nomination E
pai:>er is.subscribed by ten proposers being electors of
~ the constituency:

(2) In a constituency where any seat is reserved, a F
candidate shall not be deemed to be qualified to be chosen
to fill that seat unless his nomination paper contains a
declaration by him specifying the particular caste or tribe
of which he is a member and the area in relation to which
that caste or tribe is a Scheduled Caste or, as the case G
may be, a Schedule i:ribe of the State.
(3) Where the candidate is a person who, having held
any office referred to in section 9 has been dismissed
and a period of five years has not elapsed since the H
668 SUPREME COURT REPORTS [2009] 4 S.C.R.

A dismissal. such person shall not be deemed to be duly ~-

nominated as a candidate unless his nomination paper is
accompanied by a certificate issued in the prescribed
manner by the Election Commission to the effect that he
has not been dismissed for corruption or disloyalty to the
8 State.

(4). On the presentation of a nomination paper. the
returning officer shall satisfy himself that the names and ·~

electoral roll numbers of the candidate and his proposer
as entered in the nomination paper are the same as those
c entered in the electoral rolls:

Provided that no misnomer or inaccurate description
or clerical, technical or printing error in regard to the name

D
of the candidate or his proposer or any other person, or
in regard to any place, mentioned in the electoral roll or _._ .
the nomination paper and no clerical, technical or printing
error in regard to the electoral roll numbers of any such
person in the electoral roll or the nomination paper, shall
affect the full operation of the electoral roll or the nomination
E paper with respect to such person or place in any case
where the description in regard to the name of the person
or place is such as to be commonly understood; and the
returning officer shall permit any such misnomer or
...
inaccurate description or clerical, technical or printing error
F to be corrected and where necessary, direct that any such
misnomer, inaccurate description. clerical, technical or
printing error in the electoral or in the nomination paper
shall be overlooked.

,.,
..;;J
(5) Where the candidate is an elector of a different ~- A

constituency, a copy of the electoral roll of that constituency
or of the relevant part thereof or a certified copy of the
relevant entries in such roll shall, unless it has been filed
along with the nomination paper, be produced before the ~-

returning officer at the time of scrutiny.
G.S. IQBAL V. K.M. KHADAR & ORS. 669
[R.M. LODHA, J ]

-~ (6) Nothing in this section shall prevent any candidate A
from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall
be presented by or on behalf of any candidate or accepted
by the returning officer for election in the same constituency.
8
(7) Notwithstanding anything contained in sub-section (6)-
~ or in any other_ provisions of this Act, a' person shall not be
~ nominated as a candidate for election,-
(a) in the case of a general election to the House of the C
People (whether or not held simultaneously from all
-i5 Parliamentary constituencies), from more than two
Parliamentary constituencies;
...................................
~
j. D
34. Deposits-(1) A candidate shall not be deemed to
·be duly nominated for election from a constituency unless
he deposits or causes to be deposited,-
(a) in the case of an election from a Parliamentary
constituency, a sum often thousand rupees or where E
the candidate is a member of a Scheduled Caste or
Scheduled Tribe, a sum of five thousand rupees; and
·~
., (b) in the case of an election from an Assembly or Council
constituency, a sum offive thousand rupees or where
the candidate is a member of a Schedulr;id Caste or
F
Scheduled Tribe, a sum of two thousand five hundred
rupees:
Provided that where a candidate has been nominated by
~ '..j more than one nomination paper for election in the same G
constituency, not more than one deposit shall _be required
of him under this sub-section.
(2) Any sum required to be deposited under sub-section
(1) shall not be deemed to have been deposited under H
670 SUPREME COURT REPORTS [2009] 4 S.C.R.

A that sub-section unless at the time of delive·ry of the
nomination paper [under sub-section(1) or, as the case
may be, sub-section (1A) of section 33) the candidate has
either deposited or caused to be deposited that sum with
the returning officer in cash or enclosed with the nomination
8 paper a receipt showing that the said sum has been
deposited by him or on his behalf in the Reserve Bank of
India or in a Government Treasury."
21. As a matter of fact, the petitioner neither specifically
pleaded nor proved that there has been non-compliance with
C any of the Provisions of Section 33 or 34 of the Act, 1951. Thus,
on the date fixed by returning officer for scrutiny of the nomination
papers, there was no ground made out for rejection of
nomination of the returned candidate under Section 36(2)(b) of
the Act, 1951.
0
22. Article 84 of the Constitution makes the provision for
qualification for membership of Parliament which reads thus:
"84. Qualification for membership of Parliament - A
person shall not be qualified to be chosen to fill a seat in
E
Parliament unless he -
(a) is a citizen of India, and makes and subscribes ._.
before some person authorized in that behalf by the
election Commission an oath or affirmation
F according to the form set out for the purpose in the
Third Schedule;
(b) is, in the case of a seat in the Council of States, not
less than thirty years of age and, in the case of a seat
in the House of the People, not less than twenty-five ~ ....
G years of age; and
(c) possesses such other qualifications as may be
prescribed in that behalf by or under any law made
by Parliament."
H
G.S. IQBAL V. K.M. KHADAR & ORS. 671
[R.M. LODHA, J.]
-·-4
. 23. That the returned candidate meets the aforesaid A
qualification prescribed under the Constitution _is not in dispute.
Thus, it has to be held that the returned candidate possessed
qualification for membership of parliament.
24. Article 102 of the Constitution is as follows:
B
"102. Disqualifications for membership - (1) A person
..f
shall be disqualified for being chosen as, and forbeing,
a member of either House of Parliament -
(a) if he holds any office of profit under the Government
of India or the Government of any State, other than
c
an office declared by Parliament by law not to
disqualify its holder;

.. ~
(b) if he is of unsound mind and stands so declared by
a competent court; D
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a E
foreign State;
. __.
(e) if he is so disqualified by or under any law made by
Parliament."
(2) A person shall be disqualified for being a member of F
either House of Parliament if he is so disqualified
under the Tenth Schedule".
25. There is not even whisper either in the election petition
,;. ·.4 or the evidence let in by the petitioner that the returned candidate
is disqualified under Article 102(1}(a) to (d) for being chosen G
as a Member of Lok Sabha. The learned counsel for the
petitioner would contend that a person shall be disqualified under
Article 102(1 }(e) and (2) for being chosen as a Member of
Parliament if he is so disqualified under the Tenth Schedule. He
H
672 SUPREME COURT REPORTS [2009] 4 S.C.R.

A would also contend that since the returned candidate continued
to be member of two political parties viz., DMK and TNIUML
even after his election, he has even otherwise incurred
· disqualification under the Tenth Schedule.

26. Tenth Schedule was added in the Constitution by the
8
Constitution (52°d Amendment) Act, 1985 whereby the
Provisions as to disqualification on the ground of defection have
been made part of the Constitution itself.
27. Paragraph 2 of the Tenth Schedule, provides for
C disqualification on the ground of defection which is as follows:
"2. Disqualification on ground of defection - (1)
Subject to the provisions of paragraphs 4 and 5, a member
of a House belonging to any political party shall be
disqualified for being a member of the House -
D
(a) if he has voluntarily gives up his membership of such
political party; or
(b) if he votes or abstains from voting in such House
contrary to any direction issued by the political party
E
to which he belongs or by any person or authority
authorized by it in this behalf, without obtaining, in
~-.
either case, the prior permission of such political
party, person or authority and such voting or
abstention has not been condoned by such political
F party, person or authority within fifteen days from the
date of such voting or abstention"
28. Paragraph 6 of the Tenth Schedule provides for
adjudicatory machinery for determination of the questions of
G disqualification on the ground of defection. It is thus:
"6. Decision on questions as to disqualification on
ground of defection - (1) If any question arises as to
whether a member of a House has become subject to
disqualification under this Schedule. the question shall be
G.S. IQBAL V K.M. KHADAR & ORS. 673
[RM. LODHA, J.]
__. referred for the decision of the Chairman or, as the case A
may be, the Speaker of such House and his decision shall
be final:

Provided that where the question which has arisen is as
to whether the Chairman or the Speaker of a House has
B
become subject to such disqualification, the question shall
be referred for the decision of such member of the House
~
as the House may elect in this behalf and his decision
shall be final.

(2) All proceedings under sub-paragraph (1) of this c
paragraph in relation to any question as to disqualification
of a member of a House under this Schedule shall be
deemed to be proceedings in Parliament within the
meaning of article 122 or, as the case may be proceedings
in the Legislature of a State within the meaning of Article D
212."

29. The Speaker of the House is, accordingly, a competent
statutory authority to decide the question as to whether the
member of a House has become subject to disqualification
under Tenth Schedule. The question relating to disqual!fit;ation
E
under Tenth Schedule has to be decided by the Speaker and
,. _j
none else. The decision of the Speaker in this regard is final,
however, subject to judicial review on the permissible grounds.
In any view of the matter such an issue cannot be a subject matter
for consideration in an election petition under the Act, 1951.
F
The submission is more in desperation than in substance and it
is rejected accordingly.

30. In our view, the designated Election Judge did not
;,,,. .... commit any error in observing that in order to make out a case G
under Section 100(1 )(d)(iv), it was necessary for the petitioner
to specifically plead that the election in so far as it concerned
the returned candidate has been materially affected by the non-
compliance of the provisions of the Act, 1951 or the rules made
thereunder. The designated Election Judge held that the entire H
674 SUPREME COURT REPORTS [2009] 4 S.C.R.

1
A electioneering in Tamil Nadu in the 14 h Lok Sabha was done
by the two major pre-poll formations and hence, it cannot be
stated that it was not made known to the public that to which
alignment, a particular party and movement belonged and,
therefore, there was no confusion in the mind of electorates. It
B was noticed that margin between the returned candidate and
the defeated candidate was 1,78,610 and hence it cannot be
said that the result of the returned candidate has been materially
affected by the non-compliance of the Provisions of the Act,
1951. We agree with the view of the designated Election Judge.
c 31. In the result, the appeal fails and is dismissed with
costs. Costs quantified at Rs. 25,000/-.

N.J. Appeal dismissed.

" ....