SC’s holiday bench hears YSRCP nomination plea, Pinarayi Vijayan’s challenge to FIR order

Today a Special Bench convened during the Supreme Court’s Dussehra holidays to hear two matters. The Bench of Justices Joymalya Bagchi and V. Mohana directed the Andhra Pradesh State Election Commission (SEC) to reconsider complaints that violence had prevented YSRCP candidates from filing nominations for local body elections. 

It also allowed former Kerala Chief Minister Pinarayi Vijayan, his daughter Veena T and son-in-law P.A. Mohammed Riyas to appeal against a Kerala High Court order directing an FIR in the CMRL–Exalogic alleged bribery case, concerning payments by CMRL to Veena’s IT firm.

YSRCP’s nomination complaints

The Court directed the Andhra Pradesh SEC to defer publication of the final list of candidates until 25 October and decide by 22 October whether to extend nomination deadlines in constituencies where candidates had been prevented from filing their papers because of violence. The order came on a plea by the Yuvajana Sramika Rythu Congress Party (YSRCP), which challenged the Andhra Pradesh High Court’s refusal to extend the nomination window.

The elections were notified on 14 October, with nominations open from 16 to 18 October. Before the notification, YSRCP had approached the High Court apprehending violence and seeking police protection, alternative nomination centres and an extension of time. A Single Judge dismissed the petition as premature. After nominations closed, the party placed further representations and supporting material before a Division Bench and sought an additional day to file its candidates’ papers. The Division Bench declined, holding that the relief fell outside the scope of the original petition and that it would be imprudent to interfere once the election process had begun.

Appearing for YSRCP, Senior Advocate Maninder Singh submitted that more than 63.5% of the party’s candidates across 19 urban local bodies had been unable to file nominations. He relied on videos of alleged violence, torn nomination papers and complaints made to the authorities. “We are struggling during this period to file,” he said. Senior Advocate Parameshwar, appearing for the SEC, disputed the allegations, submitting that YSRCP had not disclosed several High Court orders granting police protection to individual candidates and that the authorities had complied with those directions. He said the SEC had intervened where it found genuine law-and-order problems, including by postponing an election in one municipality. Senior Advocate Siddharth Luthra, opposing the plea, alleged that YSRCP supporters had also engaged in violence. Referring to videos and criminal cases, he argued that candidates who had obtained police protection orders had not subsequently complained that they were prevented from filing nominations. The submissions prompted questions from the Bench about whether the protection ordered by the High Court had enabled candidates to reach nomination centres safely. Justice Mohana observed, “This only shows that the stage is not safe,” and asked whether it was sufficient, after complaints of violence, to direct the State Police merely to “take care in future”. Justice Bagchi questioned whether the protection ordered by the High Court had “worked out or remained on paper”.

Justice Bagchi said judicial deference to the SEC’s constitutional authority over elections could not extend to situations where law and order threatened a fair contest. “The first line of election is of judicial deference. But there is no judicial deference when it comes to law and order,” he observed. He warned that violence could cast “its ugly shadow on fair and impartial election” and stressed that “equality of arms is one of the vital axes on which fairness depends”. The Court held that “free and fair elections is a basic structure of the Constitution” and that the right to participate in an election by filing nomination papers was a facet of that process. The Bench observed that judicial review “cannot be wholly muted” where candidates were prevented from filing nominations. It also noted that YSRCP had raised apprehensions about obstruction before the election process began.

The Bench declined to extend the nomination deadline for all candidates or order a blanket postponement. “We will not allow our judicial processes to become platforms of canvassing,” Justice Bagchi said. Instead, the SEC was directed to examine representations from YSRCP and individual candidates, whether submitted physically or electronically, along with supporting documents and video evidence. By 22 October, the SEC must decide whether candidates in particular constituencies were prevented from filing nominations because of law-and-order problems. Where it finds sufficient evidence, it may extend the deadline, giving affected candidates at least 48 hours from publication of its decision to file their papers, and amend the election notification accordingly.

The Court also directed the Director General of Police to ensure adequate police deployment and CCTV coverage at nomination centres and election offices, and to protect candidates seeking to file their papers. The SEC and police must report compliance when the matter returns to the Bench on 27 October. The Court left the assessment of individual complaints to the SEC rather than determining which party was responsible for the alleged violence. It also clarified that a candidate who establishes that obstruction prevented the filing of a nomination may raise the issue in an election petition as improper rejection of the nomination.

SC allows Pinarayi Vijayan to appeal against FIR in CMRL–Exalogic case

The Court set aside a Kerala High Court order refusing former Chief Minister Pinarayi Vijayan, his daughter Veena T and son-in-law P.A. Mohammed Riyas leave to appeal against a direction to register an FIR and investigate the CMRL–Exalogic case. The Court held that they could challenge the judicial order despite not having been heard by the Single Judge who issued it. The FIR remains in place, but the investigation has been stayed for one week to allow the petitioners to seek interim relief from the High Court.

The case concerns allegations that Cochin Minerals and Rutile Limited (CMRL) paid 2.78 crore to Exalogic Solutions, Veena’s now-defunct IT company, under the guise of consultancy fees. After investigating the matter under the Prevention of Money Laundering Act, 2002 (PMLA), the Enforcement Directorate (ED) shared information with State authorities under Section 66(2). The state constituted a Special Investigation Team (SIT) to examine the material and conduct a preliminary inquiry. On 9 October, a Single Judge of the Kerala High Court directed the State Vigilance and Anti-Corruption Bureau to register an FIR and investigate. When Vijayan, Veena and Riyas sought leave to appeal, the High Court’s Division Bench refused on 15 October, holding that an accused had no right to be heard before an FIR was registered.

Senior Advocate Siddharth Luthra, appearing for the petitioners, questioned why the Single Judge had ordered an FIR and investigation without hearing those affected and before the State’s preliminary inquiry had concluded. The Supreme Court distinguished between an FIR registered by the police on their own and one ordered by a court. “On the contrary, the registration of the FIR and commencement of investigation thereon was pursuant to a judicial order passed by the constitutional court,” Justice Bagchi observed. The Single Judge had also recorded that the ED’s material disclosed a cognisable offence. If the petitioners could not challenge that finding on appeal, the Bench said, it could “stare at their face” in separate proceedings challenging the FIR. The Court allowed them to pursue an appeal without deciding whether the allegations warranted investigation.

Counsel relied on Vijay Madanlal Choudhary v Union of India (2002) to argue that the State was obliged to act on the ED’s communication under Section 66(2) of the PMLA. Justice Bagchi rejected the suggestion that the judgement required the automatic registration of an FIR whenever the ED shared information with another agency. “Our problem is now we read judgments like statutes,” he said. The judgment contemplated information being acted upon “as per law”, rather than making the ED’s communication binding on State authorities. “Neither Vijay Madanlal Choudhary addresses that issue, nor will the PMLA be the super-administrator mandating everything everywhere,” he added.

Justice Bagchi also referred to Section 17A of the Prevention of Corruption Act, 1988 which prescribes safeguards for investigations involving public servants, and questioned whether an investigation could follow the High Court’s direction without those requirements being considered. The Bench also referred to Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides a procedure concerning judicial directions for investigation involving public servants. Justice Bagchi said the provision was cited only to “elucidate the expansive jurisdiction envisaged in the new Code with regard to a potential accused prior to registration of FIR, and nothing more”. The Court did not decide whether it applied to Vijayan’s case.

When Senior Advocate Zoheb Hossain defended the ED’s position, Justice Bagchi said the agency could investigate offences within its statutory remit, but further action on the information it shared had to be taken by the competent State authority under the applicable law. “Don’t extend your hand beyond your statutory limits,” he said. “Don’t use the process of statutory powers to meddle into the statutory domain of other entities,” he remarked. He added, “We are not against any FIR investigation.” The question, he said, was whether persons affected by a judicial direction could challenge it.

The Court clarified that its order did not address the merits of the corruption allegations or the validity of the ECIR subsequently registered on the basis of the FIR. It left the petitioners free to challenge the ECIR in separate proceedings. Towards the end of the hearing, Justice Bagchi observed, “However high you may be, you cannot be above the law.”