Srinagar- The High Court of J&K and Ladakh has issued notice to the election commission of India (ECI) and the J&K government on a petition, challenging rules which among others prohibits a Government employee from taking part in politics.
Hearing a petition filed by one Zahoor Ahmad Bhat, a senior lecturer in the School Education Department, a division bench of Justice Atul Sreedharan and Justice Mohammad Yousuf Wani issued the notice for filing reply within four weeks after hearing counsel for the petitioner and Advocate General D C Raina.
In his arguments, advocate Shafqat Nazir, counsel for petitioner, among others submitted that challenge has been thrown to the vires of Rule 14 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971 as the same prohibit a Government employee for taking part in politics or anti-secular and communal activities.
The counsel submitted that his prayers are twofold i.e., firstly, that the Rule itself be declared ultra-vires and be quashed as it prevents the petitioner for taking part in the elections as a prospective candidate to the Legislative Assembly without resigning from his service as Senior Lecturer in Political Science in the School Education Department. In the alternative, the counsel argued that Rule 14 be interpreted in a manner that does not prohibit a Government employee from standing for elections to the State Legislature provided that if he is elected, he would have to resign from his Government service.
The counsel further argued that Rule 14 only prohibits that taking part in politics or anti-secular and communal activities and does not prohibit taking part in the electoral process as a prospective candidate to the Legislative Assembly. In support of the arguments, he has placed before the Court the rules governing Government servants in Uttar Pradesh, Karnataka, Tripura and the Central Services, where the corresponding provision prohibits the Government servant from taking part in election itself.
Under the circumstances, the counsel submitted that the omission of the word “elections” in Section 14 is a conscious omission in the rule.
On the other hand, Advocate General D. C. Raina drew the Court’s attention to sub-Rule 3 of Rule 13 which he submitted has to be read in conjunction with Rule 14.
As noted by the court in its order, the argument was made in order to clarify the ambiguity in the terms “politics”, “anti-secular” and “communal activities” as these words have not been defined in the rules.
Sub-Rule 3 of Rule 13 lays an embargo on the government employee from uttering, writing or discussing or criticizing in public, in any meeting or any association or body, any policy or action taken by the Government and also prohibited the Government employee from participating in any discussion or criticism.
On the basis of sub-Rule 3, the Advocate General submitted that participation in the electoral process and standing for election as a candidate to the UT (Legislature) is an impossibility without being critical of the existing Government and governance, existing policy of the governance and would be included through speeches, manifesto, in writing, canvassing etc. same, he said, would otherwise be discussed or criticized in public.
The Advocate General also submitted that while Rule 13(3) has not been challenged in the present petition, the examination of Rule 14 and whether it is ultravires is an impossibility.
The advocate General also referred to Section 134-A of the Representation of Peoples Act, 1951 which provides for penalty for Government servants for acting as election agent, polling agent or counting agent. He submitted that a Government servant if found acting as an election agent or a polling agent or a counting agent of a candidate at an election, shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.
He also submitted that 134-A when read in conjunction with Rule 14 and Rule 13(3), prohibits the petitioner from standing for election.
“As regards Section 134(A) of the RP Act 1951, prima facie we are unable to agree with the learned AG as Rule 134-A is a penal provision in an otherwise regulatory statute. Penal provisions have to be construed strictly as they provide for imprisonment and the loss of liberty,” the court said, adding, “Merely because, it finds a place in a regulatory statute cannot be a reason to resort to progressive interpretation of the said provision.”
Rule of interpretation, the court said, is clear and unambiguous and Penal provisions have to be construed strictly.
“Under the circumstances, this court on a prima facie appreciation of Section 134-A of the RP Act, 1951, is of the view that the penalty to be imposed is only for persons who are government servants, but acting as election agent, or a polling agent or a counting agent of a candidate and does not extend or provide any penalty for a government employee standing as a candidate himself,” the court observed.
Amid this, Hyder Rasool, a young law graduate and Reader of the Court also drew the Bench’s attention to two provisions which court found relevant for consideration in the case.
Firstly, he drew the Bench’s attention to Article 191 of the Constitution of India which provides for disqualification for membership for being chosen, as, and for being, a member of the Legislative Assembly or Legislative Council of a State by persons who are holding any office of profit under the Government of India or the Government of any State and, an analogous provision in the J&K Re-organization Act, 2019 and also analogous provisions of Section 27 of the J&K Re-organization Act 2019 which is in pari-materia with Article 191 of the Constitution of India.
“All the views taken in this order are prima facie and they will be all subject to different interpretation by this Court itself after hearing arguments,” the court said and issued notice to ECI and the J&K authorities.
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