2.

1 The Order of 5th November ultra vires the Section 11 of Representation

of People Act, 1951
It is humbly contended before the Hon’ble Court that the order of condonation by the
Election Commission ultra vires the Representation of People Act, 1951. The election
commission cannot remove or reduce the disqualification made in pursuance under Section 8
of the R P Act, 19511. In the case of Nimmaka Jayaraju vs The Hon’ble Chief Minister of
A.P.2, it was held that no person is allowed to contest election until and unless he/she fulfils
all the requisite as mentioned in R P Act, 1951.

In the present case, Asad Khalid was convicted under Section 8 (1) (m) of the R P Act, 1951 3
and the punishment for the same was disqualification from contesting for a period of six
years since his release. But the Election Commission beyond their power condoned the
disqualification, thus allowing Asad Khalid to contest the election.

Hence it is humbly submitted that the order of 5 th November by the Election Commission
ultra vires the Section 11 of R P Act, 1951.

2.2 The Order of 5th November is in contravention of the concept of

democracy.

It is humbly contended before the Hon’ble Court that the order passed by the Election
Commission is in contravention of the concept of democracy. India being a democratic
country guarantee a right to elect, but this right is statutory in nature and has limitation. 4 In
case of Manoj Narula v. UOI5 A point of great public importance has been raised in this
petition. Broadly, the point is about the legality of the person with criminal background
and/or charged with offences involving moral turpitude being appointed as Ministers in the
Central and State Governments. In Niranjan Hemchandra Sashittal v. State of Maharashtra6
It is worth noting that immoral acquisition of wealth destroys the energy of the people
believing in honesty, and history records with agony how they have suffered. The only
redeeming fact is that collective sensibility respects such suffering as it is in consonance with
the constitutional morality.

1
Disqualification on conviction for certain offences, R P Act, 1951.
2
WRIT PETITION NOs.11286 of 2006
3
The Prevention of Corruption Act, 1988 (49 of 1988)
4
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691
5
(2014) 9 SCC 1
6
(2013) 4 SCC 642
In the present case, the conviction in the corruption case involves moral turpitude, and later
on arbitrary condonation is a point of great importance. Later on, it is humbly contended
before the Hon’ble Court that the Section 8 of R P Act, 19517 can be counted as the limitation
to the statutory right of right to elect.

The order passed by the Election Commission has created a feeling of confusion in the mind
of the general public of Siland whom to vote and also whether to vote or not, as candidate
with criminal antecedents are more of liability. Hence, it is humbly submitted before the
Hon’ble Court that the order of 5th November is in contravention of concept of democracy.

2.3 The Order of 5th November is not justiciable in nature and can be
challenged.

It is humbly contended before the Hon’ble Court that Order of 5 th November is

not justiciable in nature and has caused injury to the Petitioner and hence can be
challenged. In the case of Dwarkadas v. Sholapur Spinning Co.8, it was held one
who has suffered the justiciable injury because of any statute can challenge that
statute.

In the instant case, Asad Khalid have been granted time to prove his mandate as
a Chief Minister because of which the Petitioner has suffered a justiciable
injury. If Asad Khalid would not have been given time to proof his mandate,
there may be chance that the Petitioner could have form the Government.
Hence, it is humbly submitted that the Order of 5 th November passed under the
Section 11 of R P Act, 1951 is not justiciable in nature.

7
Disqualification on conviction for certain offences, R P Act, 1951.
8
(1954) SCR 674 (712)