An elected representative cannot be disqualified if his parents are beneficiaries of a government programme: Bombay HC

In a landmark order, the Bombay High Court at the seat of Nagpur last week dismissed a motion to disqualify an MP on the grounds that his father was benefiting from a government housing scheme. The HC held that the law allows a member of the house to be disqualified only if they themselves become a beneficiary of a government plan.

A bench of judges Sunil Shukre and Anil Pansare ruled that if an elected representative’s parents are beneficiaries of a government program, the elected person cannot be disqualified.

The bench was hearing a written motion filed by a Ravidant Bopche seeking to disqualify the election of an area MP, whose name is not mentioned in the HC’s order or on its website.

Bopche claimed the MP’s father was a beneficiary of a government program under which he received a grant to build a “Pack House”.

“This indicates that the deputy is the indirect beneficiary of a government project and, therefore, disqualified from being elected to the elections for the State Legislative Assembly,” argued Bopche’s attorney.

However, the state’s attorney for the Elections Commission pointed out that the petition is untenable because it is filed beyond the statute of limitations. The lawyer further pointed out that Bopche could have filed an electoral petition to challenge the election of the deputy, but he did not choose to do so and therefore can no longer file it and seek redress.

The bench, accordingly, said: “We are of the view that Bopche cannot be allowed to invoke the jurisdiction of the writs, otherwise it would amount to disrespecting the right of limitation. The principle is that what cannot be done directly cannot be allowed to be done indirectly.”

Furthermore, Bopche cited the provisions of the Constitution of India which allow for the disqualification of an elected person if he becomes a beneficiary of any scheme offered by the Union or any of the state governments.

“The provision clarifies that disqualification can only be permitted where the legislature holds an office of profit under the government of India or the government of any state,” the bench said. “In the present case, it is an admitted fact that the father of the deputy and not the legislator himself, who is the beneficiary of the governmental scheme,” noted the bench, adding: “The law speaks of the disqualification of the deputy and not his father or his mother.”

“Here, the disqualification was not merited by the MP himself, and therefore we do not believe that Bopche can benefit from Section 191 (1) (a) of the Constitution of India for taking action. and cause in this petition,” the bench said in dismissing it.

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Posted: Monday February 14th 2022, 9:12 PM IST

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