FORUM FOR FILING ELECTION PETITION

This article is written by Vani Khandelwal of 3^rd Semester of Symbiosis Law School, Nagpur

ABSTRACT

This article titled “Forum for filing Election Petition” starts with a brief introduction to definition of an election petition. It then proceeds to talk about who all can file an election petition and the appropriate forum for the same. Contents of election petition as per section 83 of the Representation of People’s Act, 1951 is also discussed in details. The grounds required to file the petition is stated in brief. Further, various important sections of the Representation of People’s Act, 1951 is discussed along with the trials and withdrawal of an election petition. Election Petition related to presidential and vice-presidential elections is stated in the latter part of the article along with a few case laws to get a better idea of the same. Lastly, the article ends with a conclusion on the topic.

Keywords: Forum, Election, High Court, Petition, Representation of People’s Act

1. INTRODUCTION

1.1 Election Petition

A process for challenging the legitimacy of the outcomes of local or parliamentary elections is known as an election petition. To put it another way, it is a legal way to contest the choice of a candidate in a local, assembly, or parliamentary election.[1]

If a voter or candidate believes there has been electoral fraud, they may file an election petition as a legal remedy. It is viewed as a war in which the entire constituency is taking part rather than as a typical civil dispute. The High Court of the relevant state hears election petitions, and if they are upheld, the election in that constituency may be postponed. Any petition of this kind that is submitted more than 45 days after the poll results date is not taken into consideration by the courts. Although the High Court is mandated by the 1951 Representative of the People Act (RP Act) to try to complete the trial within six months, in practice it frequently takes much longer, sometimes even years. [2]

1. Election petition can be filed by whom?

Any candidate or voter with a personal interest in the election may submit an election petition to the High Court’s designated officer.

Article 329(b) 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”[3]

1.3 Forum for filing an Election Petition

Election petitions are submitted to the high court of the state in where the election was held. As a result, only the High Courts have the initial authority to rule on election petitions. The Single Judge of the High Court will often exercise this competence, and the Chief Justice will occasionally designate one or more judges to do so.[4]

1.  Contents of an Election Petition

Section 83 of the Representation of People’s Act, 1951 states:

” (1) An election petition. —

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

²[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition].”

 1.5 Example of Election Petition in India

Due to Ashok Chavan and Madhu Koda understating their election, an election petition was filed against them. Now, in accordance with the Supreme Court’s decision from May 5, 2013, in the cases of Mr. Ashok Chavan and Mr. Madhu Koda, the Election. The Commission has been given 45 days to undertake an investigation and reach a decision on the issues.[5]

• GROUNDS FOR FILING ELECTION PETITION

A candidate’s election may be declared void and null under Section 100 of the Representation of the People Act, 1951.

A petition for an election may be submitted for one or more of the following reasons:

1. A returning candidate could not occupy the seat on the day of his election or was otherwise ineligible.
2. Any corrupt action (as defined below) has been carried out by a returned candidate or his election agent, or by any other person acting with the approval of a returned candidate or his election agent.
3. Any nomination improperly accepted.
4. Obtaining a vote improperly, refusing to accept it, rejecting it, or getting an invalid vote.
5. Any infraction of the RPA, the Constitution, or the regulations or instructions provided under this act.[6]
6. REPRESENTATION OF PEOPLE’S ACT, 1951

Section 80 of the Representation of People’s Act, 1951 prohibits challenging any election other than through the filing of an election petition. The election petition must be submitted to the High Court whose local jurisdiction includes the election in question.

After the election results are announced, the petition must be submitted within 45 days.[7]

Section 100 of the Act states grounds based on which an election can be declared void. The grounds are as follows:

1. On the day of the election, the candidate was ineligible under the Constitution and the Act.
2. Any unethical behavior has been carried out by the incumbent candidate, his election agent, or anybody else with their knowledge or approval.
3. Any nomination was wrongfully denied.
4. Due to inappropriate acceptance, any nomination, or other corrupt behavior carried out in the returning candidate’s best interests, the election’s outcome as it relates to that candidate has been impacted. Unlawful rejection, refusal, or receipt of a vote; disobedience with any instructions, rules, or provisions of the Act or the Constitution.[8]

3.1 Trial of Election Petitions

The election petition may be dismissed by the High Court if it is filed beyond the allotted time (45 days), if the parties are not joined, or if the specified fees are not paid. Such a dismissal of the petition shall constitute an order. The Court may consider multiple petitions relating the same election either jointly or individually depending on the circumstances. Anyone who has not yet been included as a respondent may apply to the court to be included as a respondent. However, this application must be submitted within 14 days of the trial’s start date.[9]

•  Withdrawal of Election Petition

No election petition may be withdrawn without the court’s permission. Other petitioners must be notified via notice when an application for withdrawal is submitted. Additionally, it needs to be published in the official gazette. In cases when there are many petitioners, the application may only be withdrawn with the agreement of all parties.

If the High Court believes that the request for leave is motivated by a bargain or other consideration that cannot be permitted in the interests of justice, the request will not be granted. The court may impose any expenses it deems reasonable if the leave is granted. [10]

• Corrupt practices under section 123 of the Act

a. Bribery is the act of a candidate or his/her agent giving a present, promise, or other kind of pleasure to a voter or to another candidate running for office.

b. Unlawful influence: exerted by the candidate or a representative of the candidate, whether direct or indirect; includes making threats, attempting to persuade voters or potential candidates, announcing a public policy or action, or just exercising a legal right, among other things.

c. Invoking force or coercion.

d. Request for voters to abstain on the basis of religion, race, caste, community, or language made by a candidate or his election representative. This also includes the instigation or effort to instigate animosity or hatred between various groups of Indian society due to religion, race, caste, community, or language by a candidate, his agent, or any other person with the candidate’s or his election agent’s permission in order to increase the likelihood of that candidate’s election or to influence the election of any other candidate.

e. The use of national symbols, such as the national anthem or flag, to enhance the candidate’s chances of winning the election or to negatively impact the chances of any other candidate.

f. The candidate’s or his election agent’s publication of any untrue fact that he either knows to be untrue or does not know to be true, relating to the personality or behavior of another candidate or pertaining to his or her candidacy. A similar assertion can also include a statement that is logically meant to harm that candidate’s chances of winning.

g. Sections 25 and 29(1) of the Representation of People Act of 1951 prohibit a candidate or his election agent from using, hiring, or permanently fixing a vehicle.

h. Making erroneous claims regarding the cost of elections.

i.  Helping to advance the chances of elections by aiding or seeking to procure the services of government employees. These public employees may be officers, magistrates, personnel of the armed forces, police officers, excise officers, and revenue officers other than village revenue officers, such as lambardars and deshmukhs, are all examples of revenue officers.

j. Booth capture by a candidate or an election agent for that candidate.[11]

• ELECTION PETITON WITH REFERENCE TO PRESIDENTIAL ELECTIONS

The Presidential and Vice-Presidential Elections Act, 1952 discusses the election of the President and Vice President of India, as well as any related conflicts.

A presidential or vice-presidential election, depending on the situation, may only be challenged by an election petition, according to Section 14 of this Act. The Supreme Court is where the election petition must be filed, and there are provisions imposed under both the Act and Article 145 that must be followed during the trial.[12]

Supreme Court in the case of N.P. Ponnuswami v. Returning Officer, Namakkal[13] concluded that Article 226 of the Constitution does not give High Courts the authority to hear complaints alleging the illegal rejection of nomination papers submitted in conjunction with an election.

In the case of Kailash v. Nanhku & ors[14] it was ruled that the rigidity and intricacy of the system that must be followed in trying election petitions, the Code of Civil system, is not appealing. It is used here very loosely and simply as a general guideline. The rule of procedure states that the defendant’s request for a written statement extension cannot be granted automatically; rather, it must be handled by the judicial mind.

The court also said, “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.”[15]

• RECENT DEVELOPMENTS

Simply making blatant, broad, and unsupported accusations would not qualify as “material facts” in an election, the Supreme Court recently emphasized. In order to establish the case establishing cause of action, the election petitioner must plead the relevant facts.[16]

Prior to 1966, the Election Commission, which would have one-member Election Tribunals with the status of District Judge, would receive election petitions on an as-needed basis for review. The Supreme Court determined in one of the cases that Art. 329(b) only applied to the ‘initiation’ of proceedings questioning an election and did not apply to the ‘conduct’ of those proceedings once those proceedings were started by filing an election petition. Once that requirement of Art. 329(b) was satisfied, the election tribunal’s trial of the petition was then subject to general law and to the High Courts’ supervision of tribunals.[17]

Thus, the Election Commission advised that the High Courts be given the responsibility of hearing election petitions rather than election tribunals in order to prevent having two sets of legal authorities over election-related concerns. As a result, Section 80-A of the Representation of the People Act, 1951 was enacted by Parliament, which established the “High Court” as the authority for the presenting of election petitions under Article 329(b) of the Constitution. Act 47 of 1966, an amendment, was passed in order to include this.[18]

• CONCLUSION

The obligation of the Electoral Commission stops with the declaration of the results; beyond that, an election petition is the only available legal recourse for a voter or candidate who believes there has been election fraud. In parliamentary or local government elections, an election petition is a way to challenge the validity of the results. To put it another way, it is a legal process for challenging a candidate’s election in a Parliamentary, Assembly, or local election.

Only in a constitutional court can the outcome of an election, which is the culmination of the largest democratic process in history, be contested. Due to the importance of elections to the public, it is essential that conflicts related elections be resolved quickly. The court system and other authorities must make every effort to guarantee that only those who are deserving and chosen are in positions of power. The court has noted numerous times that the standards set forth for the trial of such petitions must not be strict. They must be made adaptable enough to take into account the Constitution’s stated goals.

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[1] What is an election petition? Forum IAS, Article at https://blog.forumias.com/what-is-an-election-petition-all-you-need-to-know/

[2] Election Petition, Article at https://prepp.in/news/e-492-election-petition-indian-polity-notes#petition

[3] Procedure for filing an election petition in Supreme Court; Article at https://www.lawinsider.in/columns/procedure-of-filing-an-election-petition-in-the-supreme-court

[4] What is an election petition; https://adrindia.org/sites/default/files/FAQ%20on%20What%20is%20an%20election%20petition_English.pdf

[5] What is an election petition; https://adrindia.org/sites/default/files/FAQ%20on%20What%20is%20an%20election%20petition_English.pdf

[6] Election Petition, Article at https://prepp.in/news/e-492-election-petition-indian-polity-notes#petition

[7] Election Petition, Article at https://prepp.in/news/e-492-election-petition-indian-polity-notes#petition

[8] Section 100 of the Representation of People’s Act, 1951

[9] Procedure for filing an election petition in Supreme Court; Article at https://www.lawinsider.in/columns/procedure-of-filing-an-election-petition-in-the-supreme-court

[10] Procedure for filing an election petition in Supreme Court; Article at https://www.lawinsider.in/columns/procedure-of-filing-an-election-petition-in-the-supreme-court

[11] Section 123 of the Representation of People’s Act,1951

[12] Procedure for filing an election petition in Supreme Court; Article at https://www.lawinsider.in/columns/procedure-of-filing-an-election-petition-in-the-supreme-court

[13] N.P. Ponnuswami vs Returning Officer, Namakkal AIR 1952 SC 64

[14] Kailash vs Nanhku & Ors (2005) 4 SCC 480

[15] Procedure for filing an election petition in Supreme Court; Article at https://www.lawinsider.in/columns/procedure-of-filing-an-election-petition-in-the-supreme-court

[16] Live law; https://www.livelaw.in/supreme-court/supreme-court-election-petition-material-facts-requirement-kanimozhi-karunanidhi-228054

[17] Legal Service India; Available at https://www.legalserviceindia.com/article/l268-Powers-of-High-Court-to-entertain-election-petitions.html

[18] Legal Service India; Available at https://www.legalserviceindia.com/article/l268-Powers-of-High-Court-to-entertain-election-petitions.html