Radhika M
Election is a big affair in India. The election process of World’s Biggest Democratic country is not simple though. All the process of election like nomination, scrutiny, campaigning, polling, declaration of results comes with its own complexities and makes the process very much prone to disputes. And such disputes cannot be casually dealt like any other case.
As a democratic nation, we deserve to be ruled by the persons of our choice. And that right shall not be tainted by any malpractice. And it is because of this notion, our constitution sets out prescribed principle that should be followed while dealing with disputes regarding elections.
What is an election petition?
Article 329(b) of Constitution of India mandates that,
“No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature”
Section 80 of the Representation of People’s Act, 1951 (hereinafter as Act) directs that no election shall be called in to question except by way of filing of an election petition. The election petition shall be filed in the High Court in whose local jurisdiction the impugned election has been held.
The petition must be presented within 45 days of declaration of election results. As per Section 100 of the Act, an election can be declared void under the following grounds. They are
- The candidate was not qualified as per the Constitution or under the Act on the date of election.
- Any corrupt practice has been committed by the returning candidate or by his election agent or by any person with the consent of returning candidate or his agent.
- Any nomination has been improperly rejected.
- The result of the election as far as it concerns to the returning candidate has been affected due to
- the improper acceptance or any nomination
- any corrupt practice committed in the interests of returning candidate
- improper refusal, rejection, or reception of any vote
- noncompliance of any rules, orders, provisions of the Act or the Constitution
If the corrupt practice has been committed by an agent who is not the election agent without the knowledge of returning candidate or his election agent, the Court may not declare such election void.
Contents of petition
As per section 83 of the Act, an election petition shall contain
- The statement of facts which the petitioner relies
- Full particulars of the alleged malpractice, name of the persons who committed the obvert act, date and place of commission of such practice
The petition shall be signed and verified by the petitioner as required by the Code of Civil Procedure, 1908. If there is an allegation regarding the involvement of any corrupt practice, the petition shall be accompanied by an affidavit supporting the same.
As per section 84, the petitioner in addition to the claim that the election of the returned candidate is void may claim a further declaration that he himself or any other candidate has been elected.
Also under Section 97 of the Act, if such a declaration is filed, the returned candidate or any other person may give evidence to prove that the election of such a candidate would have been void if he had been the returned candidate. And a petition to that effect should be filed within fourteen days of commencement of trial.
Trial of Election Petitions
The High Court may dismiss the election petition if it is filed after the prescribed period (45 days) or if there is non-joinder of parties or fails to deposit the costs prescribed. Such a dismissal of petition will be deemed as an order.
If there is more than one petition regarding the same election, the Court may them together or separately as the facts demand. Any person who has not been added as a Respondent may file an application before the court to join him as a respondent. But such an application has to be filed within 14 days of commencement of trial.
As per Section 86(5) of the Act, the court may allow an amendment to the petition so as to include the particulars of an alleged corrupt practice. But it cannot be allowed if the amendment is sought to add particulars of a corrupt practice which is not already set out in the petition. Every election petition must be tried expeditiously and if possible, be continued from day to day until its conclusion. And if there is an adjournment, the court shall record reasons for the necessity of the same. The petition shall be disposed within six months, if possible.
The court has the power to refuse examination of any witness, if it thinks that such an examination is not necessary for deciding the petition or it will cause unnecessary delay. Also, no documentary evidence will be inadmissible on the ground that it is not duly stamped or registered. By virtue of Section 94, no person shall be required to disclose for whom he voted at the election.
As per Section 95 of the Act, no one shall be excused from answering any question as to any matter relevant to the adjudication of election petition on the ground that it may criminate him or tend to criminate him or may expose him to any penalty or forfeiture. A person who answers all the questions put forward to him by the court is entitled to receive a certificate of indemnity.
The certificate of indemnity shall be a defence to him against the charges made under Chapter IXA of Indian Penal Code, 1860 (Offences relating to election) arising out of any matter to which the certificate relates. But it will not prevent him from being disqualified in connection with an election. An answer given by a witness would not be admissible as evidence against him in any criminal or civil proceedings except in the case of prosecution for perjury.
Decision of the High Court
As per Section 98 of the Act, at the conclusion of the trial the court shall make an order
- Dismissing the petition or
- The election of the returned candidate or any or all the candidates to be void
- The petitioner or any other candidate has been duly elected.
The court may declare petitioner or any other candidate to have been duly elected if its of the opinion such person has obtained majority of valid votes or if it was not for the corrupt practice, the petitioner or any such candidate would have obtained majority of valid votes.
As per Section 99 along with passing of above orders, the court may also record if there is any finding relating to the commission of any corrupt practice. If there is any such finding, the court may also record the nature of corrupt practice and name of persons who are guilty of such act.
As soon as the decision is made, the High Court shall intimate the substance of the decision to the Election Commission and to the Speaker or Chairman of the House of Parliament or State legislature. The appropriate authority shall cause the decision to be published in the Official Gazette. The decision of the Court shall take effect as soon as it is pronounced.
If the election of a returned candidate is declared to be void, the acts and proceedings in which he took participation as a member of House of Parliament or State legislature will not be invalidated. He shall not be made liable for any such act.
Withdrawal of election petition
No election petition can be withdrawn except with the leave of the court. When an application for withdrawal is filed, the same must be communicated to other petitioners by issuing notice. And the same must be published in Official Gazette. If there are more than one petitioner, the application can be withdrawn only with the consent of all the parties.
The leave shall not be granted, if the High Court is of the opinion that it is motivated by bargain or consideration which shall not be allowed in the interests of justice. If the leave is granted the court may impose such kind of costs which it thinks to be appropriate. The court may direct that the notice of withdrawal shall be published in the Official Gazette or in any other manner as prescribed.
A person who himself might have been the petitioner can file an application before the Court to substitute him in the place of petitioner. The application has to be filed within fourteen days of the publishing of notice and the court may allow such substitution on the payment of costs.
Appeal to Supreme Court
An appeal shall be filed within thirty days from the date of the order of High Court. But the Supreme Court can condone any delay if sufficient causes are shown.
An application for stay of operation of the order passed by the High Court can be made to the High Court itself before the expiration of time allowed to prefer an appeal. If sufficient cause is shown, the Court may allow the stay of order. If an appeal has been already filed in the Supreme Court, High Court cannot entertain an application for stay of order.
The same must be prayed before the Supreme Court and the Court will decide on the same. If a stay order has been passed by any of the courts, it shall be intimated to the Election Commission and speaker or the Chairman of House of Parliament or State legislature as the case may be.
The Supreme Court shall try the petition as an ordinary appeal arising out of the order from the High Court in exercise of its original civil jurisdiction. As soon as the Supreme Court reaches a conclusion, it shall intimate the substance of the decision to Election Commission and Chairs of House of Parliament or State legislature as the case may be. It shall also be published in the Official Gazette.
Election petition in connection with presidential elections
There is Presidential and Vice-Presidential Elections Act, 1952 (hereinafter as this Act) deals with the process of election of President and Vice President of India as well as disputes relating to it.
Section 14 of this Act says that a presidential or vice presidential election as the case may be challenged only by way of an election petition. The election petition shall be filed in the Supreme Court and shall be tried as per the rules made under the Act and rules made by the Supreme Court under Article 145.
The petition shall be filed within 30 days of publication of results. The grounds of declaring the election void and making any other candidate eligible is same as mentioned above.
The Supreme Court in the case of N.P. Ponnuswami vs Returning Officer, Namakkal[1] held that High Courts have no jurisdiction under Article 226 of the Constitution to entertain petitions regarding improper rejection of nomination papers filed in connection with an election.
Supreme Court in the case of Kailash vs Nanhku & Ors[2] held that rule of procedure that is to be followed in trying election petitions ie, Code of Civil Procedure is not attracted with its rigidity and technicality. It is incorporated here with much flexibility and only serves as guideline. The extension of time sought by defendant to file written statement shall not be granted mechanically under the rule of procedure but rather should be dealt with the application of judicial mind.
The parties shall not be allowed to cause delay in the case. The court also propounded that “ In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed there under or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter.”
Again, the Supreme Court in the case of Mohinder Singh Gill & Anr vs The Chief Election Commissioner[3] observed that the sole remedy available to an aggrieved party to challenge an election is to file an election petition. All other remedies including the constitutional remedy under Article 226 will be inoperative in such cases due to the blanket ban under Article 329(b).
Conclusion
The result of an election which is the product of world’s largest democratic process can be challenged only in a constitutional court by filing election petition. It is necessary that disputes regarding elections must be adjudicated expeditiously owing to the public importance it possesses. All endeavours must be made by the judicial and other authorities to ensure that only the deserved and chosen candidates rule the land. As observed by the court in various instances, the rules prescribed for the trial of such petitions must not be rigid. They must be made flexible enough to accommodate the purposes set out by the Constitution.
References
- Constitution of India, 1950
- Representation of People’s Act, 1951
- The Presidential and Vice – Presidential Elections Act, 1951
- N.P. Ponnuswami vs Returning Officer, Namakkal AIR 1952 SC 64 ↑
- Kailash vs Nanhku & Ors (2005) 4 SCC 480 ↑
- Mohinder Singh Gill & Anr vs The Chief Election Commissioner 1978 AIR 851 ↑