In a significant opinion given on petitions seeking the disqualification of sitting BJP MLA from Aldona, Goa, Glen Ticklo, the Election Commission has turned them down saying they are “not maintainable under Article 192(1) of the Constitution” since “the jurisdiction of the Governor to decide a question of disqualification of a sitting member of the Legislative Assembly arises only in disqualifications incurred after election as a member of the Assembly.”
The Commission also made it clear that any complaint on pre-poll disqualification of contestants could be filed only as an election petition in the High Court.
The petitioners — Sudip N. Tamankar and Melwyn Fernandes, both from Goa — had sought Mr. Ticklo’s disqualification from the Assembly under Article 191(1) (d) of the Constitution “as he is a Portuguese citizen who voluntarily acquired Portuguese citizenship/nationality by getting his birth entered in the Central Registry of Births (CRB), Lisbon on 27.11.2009.” As per Portugal’s laws, registration of birth in the CRB amounts to acquiring citizenship.
“Thus, this would be a case of alleged disqualification as well as lack of qualification at the time of contesting election. In view of the well settled constitutional position the question of the alleged disqualification of Ticklo, being a case of pre-election disqualification, if at all any disqualification was attracted, cannot be raised before the Governor,” the EC noted.
The petitioners also alleged that at the time of filing nomination, Mr. Ticklo did not fulfil criteria mentioned in Article 173 of the Constitution.
The EC, in its opinion, said “it is well settled that under Article 192(1) the jurisdiction of the Governor to decide question of disqualification of a sitting member of the Assembly arises only in disqualifications incurred after-election as a member of the Assembly.” The present petition thus is not maintainable before the Governor, the Commission said.
The EC’s jurisdiction to inquire into the question of the alleged disqualification, on being referred to it by the Governor, also arose only in case of post-election disqualification. “Any question of pre-election disqualification, i.e. disqualification from which a person was suffering at the time of, or prior to his election, can be raised by means of an election petition .” The EC referred to previous orders of the Supreme Court to justify its opinion.
The Goa unit of BJP has been maintaining that Mr. Ticklo was not holding a Portuguese passport. All Goans born before the State was liberated were technically Portuguese nationals until they decided to stay back after 1961. Those who decided to stay back during Goa's liberation were Indians and those who left were Portuguese citizens, the party maintained.
