Case: Pashupati Nath Singh Vs. Harihar Prasad Singh

chosen to fill a seat in the Legislature of a State 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 according to the form set out for the purpose in the Third Schedule."10. The form referred to reads as under :-"Form of oath or affirmation to he made by a candidate of election to the Legislature of a State -" "I, A. B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.".11. The words having been nominated" in this form clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate. Further, it is clear that none of the sections from Section 30 to Section 36 require that this oath should accompany the nomination paper. No reference has been made to the form of oath in Section 33 or Section 35, although in Section 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. In this case it is common ground that no oath or affirmation was attached to the nomination paper or was filed before the date fixed for the scrutiny.12. Mr. Gokhale, who appears for the petitioner, contends that on objection being taken under S. 36 (2) that the petitioner had not made and subscribed an oath or affirmation according to the form set out above, he was entitled to make and subscribe the oath or affirmation immediately before the objection was considered by the Returning Officer. He says that as soon as a candidate takes the oath or makes and subscribes the oath or affirmation he would become qualified within the terms of Art. 173 of the Constitution, and this qualification would exist "on the date fixed for the scrutiny" because the date of scrutiny of nomination paper - in this cave January 21, 1967- would not have passed away by the time the oath or affirmation is taken or subscribed.13. It seems to us that the expression on the date fixed for scrutiny" in S. 36 (a) means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualification must exist from the earliest moment of the day of scrutiny. It will be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of S. 36 (2) of the Act and other provisions.On the date of the scrutiny the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts In a particular case, an objection may be taken to the form of the oath, the form of the oath may have been modified or the oath may not have been sworn before the person authorised in this behalf by the Election Commission. It is not necessary under Art. 173 that the person authorised by the Election Commission should be the Returning Officer.14. In Paynter v. James, (1866-67) LR 2 C. P. 348, Bovill, C. J. quoted, with approval, the passage, from the judgment of Tindal, C. J. in Regina v. Humphery, (1939) 10 Ad and E 335 in which the following occurs :........We hold it therefore to be unnecessary to refer to instances of the legal meaning of the word upon which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject matter of the enactment."15. Bovill, C. J., observed that"that is a very clear statement of the various meanings of the word "on" or "upon"."16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to grant confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p. m. on the date fixed for the scrutiny to enable him to take the oath.17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."