PARTIES TO ELECTION PETITION, CONTENTS OF ELECTION PETITION, GROUNDS FOR CHALLENGE TO ELECTION AND TRIAL OF ELECTION PETITION

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This article is written by Anam Siddiqui of BALLB of 3^rd Semester of Sadanlal Savaldas Khanna Girls Degree College, Prayagraj , an intern under Legal Vidhya

Abstract:

This article is going to deal with the parties to election petition, contents of election petition, grounds for challenge to election and trial of election petition. Through the petitions elections cane be challenged. Elections are the essential pre-requisite in forming a democratic country. India, being one of the largest democracies in the world, have free and fair elections as one of it’s important fundamental principle. It becomes important to ensure that all procedures relating to the elections are conducted fairly and no corrupt practices are involved. Therefore, provisions relating to elections are mentioned in constitution also.

Keywords: Political rights, Universal adult franchise, political criminalization, Election petition, Election Commission of India.

Introduction:

Elections are the fundamental basis of formation of the democracy in a country. These elections should be free and fair otherwise, there will be no benefit of forming such system, if corrupt practices are involved. Indian Constitution provides legal right to its citizens in respect of the political process. These have played very important role in India in forming a democratic nation. The constitution of India ensures people’s participation in political process. Political rights granted to citizens are mentioned as follows:

Right to vote: All citizens who are major, i.e., attained the age of 18 years are eligible to vote irrespective of their caste or creed (universal adult franchise).

Right to participate in political process: Citizens have right to contest elections, join or can form political parties.

Right to freedom of speech and expression: Citizens can express their opinions freely and criticise the measure of the government but subjected to reasonable restrictions mentioned in the view of public interest.

But due to some issues, political rights face problems in India.

Absence of goal orientation among voters, low casting of votes, corrupt practices, political criminalization, less opportunity to weaker sections and malfeasant practices involved in elections are challenges to free and fair election in India.

Election Commission of India:

Article 324 provides for the appointment of election commission to superintend, direct, control elections. The election commission is an independent, autonomous body and the constitution ensures that it should function freely without any executive interference.

It consists of a chief election commissioner and other such election commissioners as requires and fixed by the president.

It has to superintend, direct and control the preparation of electoral rolls and also the conduct of elections parliament, state legislatures, president or vice-president.[1]

Election Petition:

An Election petition can be defined as a process for checking the validity of the results of the parliamentary or local government elections. By the virtue of an election petition, the election of a candidate in the parliament, assembly or any local election can be challenged.

Such petition should be filed within 45 days after the election results. Petition filed after such period is not maintainable.[2]

A sum of Rs.2000 has to be deposited to the concerned High Court (rules may vary according to different high courts).

Such Election petitions are filed in the specific high court of the state in which election was held. The high court of the specified sate have jurisdiction on such election petition. The matter can be decided by a single judge of the high court and chief justice can assign more than one judge from time to time.

Parties to election petition:

An election petition can be filed to the authorised officer of the High Court by any candidate or any elector[3] of the election.

The Supreme court held in the case of Tej Bahadur vs. Shri Narendra Modi (2020), that only an elector or a candidate to the election have locus standi to file such election petition because their particular interest is involved.

Bench comprising of the then CJI. S.A. Bobe, Justice. A.S. Bopanna and Justice. V. Ramasubramanian, dismissed the election petition stating the lack of locus standi under Section 83 of The Representation of the Peoples Act, 1951.

Contents of Election Petition:

An election petition shall consist of:

A proper brief statement containing material facts on which the petitioner relies,
Facts of those corrupt practices which the petitioner alleges which includes: the name of party alleged to have committed such corrupt practices; date and place of commission of such practice in the form of affidavit;
Schedule or annexure to the petitioner shall be signed by the petitioner and verified.
An affidavit in the support of the allegations of the corrupt practices in the prescribed format shall be submitted along with the petition.

The petitioner may claim that he/she himself/herself has been duly elected along with the claim to declare the election of particular candidate void.

Corrupt Practices:

Corrupt practices under Section 123 of The Representation of people’s Act, 1951 are as follows:

Bribery (any gift, offer, promise or enjoyment of any kind by the candidate or through the agent to the elector or any other candidate contesting the same election);
Undue Influence: any direct or indirect influence by the candidate or though the agent; threatening or attempting to induce elector or any other candidate, declaration of any public policy or action or the exercise of a legal right;
Using force;
Requesting electors not to cast their vote on the basis of religion, race, creed, caste, language or community;
Influencing the election of their candidate negatively by use of national symbols, emblem or flag;
Making false statements regarding spendings of election;
Involvement of vehicles prohibited under Section 25 and 29(1) of The Representation of people’s Act, 1951;
Making false statements regarding the personal character of any other candidate;
Booth capturing by the candidate or the agent;
Instigating or attempting to obtain a government service post for prospects of election. It includes the post of gazetted officers, magistrates, members of the armed forces, police officers, excise officers, revenue officers other than the village revenue officers e.g lambardars, deshmukhs etc

Grounds of challenging an election:

Section 100 of The Representation of people’s Act, 1951, provide provision for declaring the election of any candidate as void. If the high court states that:

On the date of the election the candidate was not qualified to be chosen for the seat.
Any corrupt practice as mentioned, has been committed by the candidate or the agent or by any other person with the consent of the candidate or the election agent.
By improper acceptance of any nomination.
By any improper reception, refusal or rejection of any vote or the reception of any vote which is void.
By any non-conformity with the provisions of the Constitution or RPA or any rules or orders made under this act.
The result of the election has been materially effected.

Trial of election petition:

Election petition should be filed within 45 days after the election results. Petition filed after such period is not maintainable.
A sum of Rs.2000 has to be deposited to the concerned High Court (rules may vary according to different high courts).
Election petitions are filed in the specific high court of the state in which election was held. The high court of the specified sate have jurisdiction on such election petition.
Where more than one election petitions are presented to the High Court in respect of the same election, then all of them are subjected for trial to the same judge who may, in his discretion, try them separately or in one or more groups.
The Representation of Peoples Act makes a suggestion that every election petition shall be tried as fast and efficient as possible and as far as practicable for the interests of justice. Every endeavor, its suggests, that the High Court to finalize the trial for the election petition within six months from the date on which the election petition was put on trial.
Any of the acts or proceedings in which the candidate has participated as being a Member of Parliament or State Legislature, shall not be invalidated if the election of the candidate is declared void. He shall not be liable to punishment or penalty on the ground of such participation.
Election petition drop off: An election petition can be dropped off only on the death of the petitioner(s). The High Court shall, thereafter, publish the same in such a manner as it may deem fit.
Election petition withdrawal: Any election petition may be withdrawn only by leave of the High Court. Where an application for withdrawal is made, notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette.
The High Court, after reaching out to the conclusion of the trial of an election petition, shall communicate the essence of the decision to the Election Commission of India and the Speaker of the House or Chairman of the State Legislature as the case may be. The High Court shall also send an authenticated copy of the decision to the ECI.
An appeal shall lie to the Supreme Court on any question related to matter of law and fact from every order made by a High Court.
Every appeal shall be maintainable within a period of thirty days from the date of the order of the High Court. Supreme Court may maintain an appeal after the said period of thirty days if the appellant had sufficient cause for not preferring the appeal within such period.
An election petition usually stands ineffective by reasons of deluge of time, expiry of the membership of the elected candidate, death of the party related to the petitioner.

Cases of Election petition filed:

Madhu Koda vs. state of Jharkhand(2012) & Ahok Chavan vs state of Maharashtra (2017): An election petition was filed against Ashok Chavan and Madhu Koda for falsely stating his election expenses on newspaper advertisements during the 2009 elections. The Supreme Court given judgement on date 5th of May, 2013 in the matter of both Mr. Ashok Chavan and Mr. Madhu Koda, and ordered the Election Commission to conduct an enquiry and decide on the matters within a period of 45 days.
Smt. Umlesh Yadav vs. Election commission of India and Ors. , 2013: Umlesh Yadav (woman MLA from Uttar Pradesh) was disqualified by the Election Commission of India for filing an incorrect amount of expenses incurred by her during the elections.
Indira Gandhi vs. Raj Narain, (1975): An election petition lied against Indira Gandhi for indulging in unfair and corrupt electoral practices. She was found guilty by the Allahabad High Court and was disqualified from contesting elections for a period of six years.
An election petition was filed against Chidambaram on the grounds of corrupt practices and manipulation of vote turnouts was dismissed by the High court.

Conclusion:

An election should be free and fair. It is very important. Election petitions are a means to check the legality of the election results. It is very important to ensure the purity and fairness in an election. The only legal remedy granted to the voters and the candidates regarding mal practices in an election is the election petition. An election petition is not considered as a civil matter but a fight in which whole constituency is involved.

References;

Prepp, https://prepp.in/news/e-492-election-petition-indian-polity-notes, (last visited 20 Nov 2023)
Association for Democratic Reforms, https://adrindia.org/sites/default/files/FAQ%20on%20What%20is%20an%20election%20petition_English.pdf, (last visited 20 Nov 2023)

[1] Dr. J.N. Pandey, Constitutional law of India, 833, (60^th ed. 2023)

[2] Prepp, https://prepp.in/news/e-492-election-petition-indian-polity-notes, (last visited 20 Nov 2023)

[3] An elector is a person who is entitled to vote at the particular election to which the election petition is related.

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