Delhi High Court rejects plea against election of BCI Chairman Manan Kumar Mishra to Rajya Sabha

The Delhi High Court recently imposed costs of ₹25,000 on a lawyer who sought disqualification of Bar Council of India (BCI) Chairman Manan Kumar Mishra from the Rajya Sabha [Amit Kumar Diwakar vs Union of India through Secretary & Ors].

Advocate Amit Kumar Diwakar moved the Court via writ petition, arguing that Mishra, while holding the office of BCI Chairman, cannot serve as a sitting member of the Rajya Sabha as the former position qualifies as an ‘officer of profit’.

Justice Sanjeev Narula ruled that the Constitution explicitly outlines a procedural framework to address questions of disqualification under Article 102(1).

“As stipulated in Article 103, when a question regarding the disqualification of a Member of Parliament arises, such a matter must be referred to the President of India for a decision. Crucially, before rendering any decision, the President is constitutionally mandated to obtain the opinion of the Election Commission, and act in accordance thereof. It is, therefore, the Election Commission’s opinion, which carries substantial weight, and is decisive in determining whether the grounds for disqualification are met,” the Court said.

It added that such structured process highlights the importance of a thorough and impartial inquiry into the issue of disqualification.

The role of the Election Commission, as an independent constitutional authority, ensures that such matters are evaluated with due scrutiny, free from external influences, the Court remarked.

Thus, the Court ruled that Diwakar’s attempt to seek a writ of mandamus to the Ministry of Law and Justice to initiate steps to disqualify Mishra was misplaced. 

The disqualification under Article 102(1) cannot occur automatically solely based on certain allegations or presumptions, the Court said.

Such decision necessitates a formal inquiry and a reasoned determination, as prescribed by the Constitution.

The Court also said the vague allegation of Mishra holding an ‘office of profit’ cannot form the basis for it to issue directions to the Ministry in disregard to the constitutional process.

“Therefore, the Petitioner’s request for a mandamus to the Ministry of Law and Justice as well as the Election Commission of India is untenable and cannot be entertained by this Court,”it ruled.

The Court also observed that Section 80 of the Representation of the People Act, 1951 explicitly provides that an election can only be challenged by way of an election petition presented in accordance with the Act.

It added that a writ petition under Article 226 is not the appropriate forum for addressing an election dispute.

“To conclude, the Petitioner has bypassed the mechanism for challenging elections, outlined in the Representation of the People Act. The constitutional and statutory framework stipulates that challenges to elections must be made in the prescribed manner under the Act, and the courts cannot allow writ petitions to serve as an alternative route to circumvent this established procedure.”

The Court further observed that Diwakar’s decision to invoke the writ jurisdiction amounted to misapplication of legal principles and dismissed the plea.

“Consequently, this Court finds that the present petition not only lacks merit, but is also an abuse of the legal process, aimed at circumventing the proper remedy. Accordingly, the petition is dismissed with a cost of Rs. 25,000/-, to be deposited by the Petitioner with the Delhi State Legal Services Authority within four weeks from today,” it ordered.

Advocate Amit Kumar Diwakar appeared in person.

Senior Advocate Maninder Singh with advocates Rangasaran Mohan, Amarpal Singh Dua, Preet Pal Singh, Tanupreet Kaur, Akanksha Singh, Unmukt Bhardwaj and Madhukar Pandey represented the BCI.

Additional Solicitor General Chetan Sharma with Central Government Standing Counsel Ripu Daman Bhardwa and advocates Vedansh Anand, Amit Gupta, Vinay Yadav, Saurabh Tripathi, Shubham Sharma, Kushagra Kumar and Abhinav Bhardwaj represented the Union of India.

Advocate Ved Prakash Sharma represented Manan Kumar Mishra.

Advocates Sandeep Kumar Mahapatra, Tribhuvan, Rajeev Sharma and Vinayak Sharma also appeared in the matter.

[Read Judgment]