In June 2021, West Bengal chief minister Mamta Banerjee field an election petition in the Calcutta High Court challenging the assembly election result of Nandigram constituency, where she lost to Suvendhu Adhikari of BJP. She demanded that the latter’s election be declared void on grounds of corrupt practice and discrepancies in the counting process. This is not the first time that the result of an election has been challenged. There have been many occasions in the Indian politics when the election results were challenged in the high courts through the mechanism of election petition. The recent incident has again brought the issue to the fore.
Election Petition
The Election Commission is responsible for holding free and fair elections, registering political parties, limiting legal expenses, checking criminal records against politicians, disclosing social background of candidates, and so on. Once the results are declared, its role comes to an end. But if a voter or a candidate is not satisfied with the election result and believes that some kind of malpractice was involved then such a person can challenge the result through an election petition submitted to the high court of the state in which the constituency is located. Such a petition has to be filed within 45 days from the date of the poll results. Although the Representation of the People Act of 1951 (RPA 1951) suggests that the high court should try to conclude the trial within six months, but in practice such trials usually drag on for much longer, even years.
Grounds to File an Election Petition
Under Section 100 of the Representation of People Act 1951, an election petition can be filed on the following grounds:
- The winning candidate was not qualified to contest on the day of the election.
- The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice. Section 123 of the RPA has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community, and language.
- Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
- Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
- Non-compliance with the provisions of the Constitution or the RPA or any rules or orders made under the act.
If the contention of malpractice is found to be correct by the court, then under Section 84 of the RPA, the petitioner may demand that the results of all or the winning candidates may be declared void. Apart from this, the petitioner may also request the court to declare his/her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected. Therefore, if the verdict on an election petition comes in favour of the petitioner, it may result in a fresh election or the court announcing a new winner.
Principles of High Courts and Election Petition
The high courts have been specifically conferred jurisdiction to deal with election petitions under RPA, 1951. These election petitions are filed in respect of any disputes after the elections are over and not during the continuation of the election process. Thus, high courts have an exclusive jurisdiction to hear election petitions. Any party aggrieved by the decision of the high court may file an appeal to the Supreme Court which shall be a final authority on the matter. There is no dispute as regards this jurisdiction under the statute. However, the wide powers conferred to the high courts under Art 226 (Article 226 empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them) have a grey area as far election matters are concerned. The court usually determines on the facts of circumstance of the case whether they can treat the matter as under the writ jurisdiction. The basic test that is applied is whether the orders of the court as sought for by the petitioner would subserve the purpose of successful completion of elections as per the time schedule.
The principles of high courts in respect of election matters and their powers to entertain election petitions are as follows:
- The constitutional provisions and the RPA clearly express that there is a remedy for every wrong done during the election process. The remedy is not extinguished by virtue of Art 329(b)—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—it only postpones the remedy to the post-election stage.
- Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be conducted at the earliest. All the controversial matters and all disputes arising out of elections should be postponed till after the elections are over to avoid any undue procedural delay. It means, once started, the electoral process cannot be interfered with by courts, at any intermediary stage till its completion and culmination in the declaration of the result.
- Judicial intervention is available without interrupting, obstructing, or delaying the progress of the election proceedings, if assistance of the court has been sought for correcting or smoothening the progress of the election proceedings, for removing the obstacle therein, or for preserving a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared, and the stage is set for invoking the jurisdiction of the court.
- To decide and entertain matters related to the elections, the courts cannot resort to principles of equity and common law to expand the scope of their jurisdiction. The right to dispute an election is a statutory right, and the limits, laid down by the statue in terms of forums which can be approached, cannot be transgressed.
However, there are various decisions of the apex court and the high courts of the various states, which show that the courts are merely testing waters. This is because the policy of determining its jurisdiction on a case-to-case basis under Article 226 also involves an element of fragility, vulnerability, and uncertainty. As such, suitable guidelines by the Election Commission should be evolved and then consequently be enacted in the RPA, 1951. This will help to ascertain whether or not the writ jurisdiction of the high courts can be invoked and to what extent?
Instances of Election Results Declared Void
There are quite a few examples when election results were declared void; the most famous is the Allahabad High Court verdict of 1975 which set aside Indira Gandhi’s election from Rae Bareli constituency, on grounds of corrupt practice. The election petition was filed by her nearest rival Raj Narain who had lost by over one lakh votes. The high court found that Indira Gandhi’s election agent Yashpal Kapur, the District Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli, and the Home Secretary of Uttar Pradesh government had helped in the arrangements for her election tour on February 1 and February 25, 1971. This amounted to a corrupt practice under Section 123 (7) of the RPA.
Another high-profile case was that of Congress leader CP Joshi’s loss in the Rajasthan Assembly elections in 2008 by one vote. Kalyan Singh Chouhan of the Bhartiya Janata Party (BJP) won, polling 62,216 votes against Joshi’s 62,215. An election petition was filed on the grounds of improper reception of some votes. The Rajasthan High Court declared this election void since it was found that Chouhan’s wife had cast her vote twice and a few other votes were improperly received. Joshi, however, was not declared winner since that was not sought in the election petition.
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