The subpoena (a writ ordering a person to attend court to answer questions) cannot be issued against the Chief Election Commissioner (CEC) and ex-Chief Election Commissioners in the Election Petitions (EPs) just for askance, ruled the High Court of Karnataka, while setting aside subpoena issued against Sunil Arora, an ex-Chief Election Commissioner.
A Division Bench comprising Justice Krishna S. Dixit and Justice P. Krishna Bhat delivered the verdict while allowing an appeal filed by the Election Commission of India questioning the subpoena issued against Mr. Arora by a single judge of the High Court.
“The constitutional functionaries or ex-functionaries cannot be summoned as witnesses just for askance. The contention that these functionaries do not figure in the “exemption class” earmarked by Civil Procedure Code, 1908, is too feeble a ground for issuing subpoena to them,” the court said.
The court also pointed out that “ordinarily the provisions of law that carve out an “exempted class of subpoena” do not intend to make such class exhaustive in the sense that all those dehors the class can be summoned as witness at askance.”
“Ordinarily, in civilised jurisdictions functionaries of the constitutional bodies are not subjected to subpoena. Since they have to act and take significant decisions in the discharge of duties fearlessly. Otherwise, they run the fear of being called as witnesses and that may push them to defensive mode affecting public interest,” the Division Bench observed.
The Division Bench also pointed out that “there is a catena of decisions wherein arraying of the Election Commission as a party to the election disputes is deprecated by the apex court.”
“A very strong case has to be made out for summoning the members or ex-members of constitutional bodies. The reason as to why the Election Commission of India cannot be made a party to the election petitions gives sufficient indication as to why its members or ex-members cannot be summoned as witnesses, the Division Bench observed, while pointing out that the issue of legality of postponement of election date can be gone into by summoning the official records of the Election Commission of India.
The single judge had issued subpoena to Mr. Arora on June 17, 2022, while hearing an EP, in which the legality of election of BJP candidate Mahesh Kumathalli in the byelection held in 2019 from the Athani Legislative Assembly constituency was questioned by one Ravi Shivappa Padasalagi, a defeated Independent candidate.
Subpoena was issued as the petitioner, during the adjudication of the EP, wanted to examine Mr. Arora on the legality of postponing of the date of byelections.
The Election Commission of India had postponed the date of byelections based on the apex court’s oral observation that it was desirable to postpone it till the issue of disqualification of 17 disqualified MLAs was adjudicated.