Powers of High Court to entertain election petitions

Democracy and Elections

The word democracy is derived from the words 'demos' and 'kratos' meaning people and authority respectively. It is a way or manner of living or stating it more specifically a form of governance where every individual directly or indirectly participates in the rule making. Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly.

The Preamble to the Constitution of India provides a constitutional democratic system to guide the fate of Indian people. It declares the country as a sovereign socialist secular democratic republic to bind the country into a single unit. The Preamble to the Constitution read alongwith several its provisions clearly reflects that the democracy established in India is that of a free and open society as opposed to an unfree and closed society . In fact democracy is one of the basic inalienable features of the Constitution of India and forms part of its basic structure.

The word 'election' implies persons who are to elect, (called the electors), the office to which election is to be made, and the person who is to be elected(called the candidate). According to Black election is the process of selecting a person to occupy a position or office, usually a public office . Election is thus defined as the choice of persons to fill public office, means the expression by vote, of the will of the people or of a numerous body of electors. Election has also been defined to mean the act or process of choosing a person or persons for an office, position or membership as by ballot . In the Representation of the People Act, 1951 the word election is defined as: election means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State. The word election as used in the Representation of the People Act, 1951 includes every stage from the time the notification calling for election is issued till the declaration of the result . The expression election means selection of a person by vote or even otherwise. When a person is nominated by way of selection on the basis of a given criteria from amongst several persons, then, in the broader sense, he is elected to the office.

The Supreme Court while dealing with the meaning of the word election as used in Article 329(b) has observed that the word in connection with the process of selection of proper representative has acquired both a wide and a narrow meaning:
(i) In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a candidate being returned when there is no polling.

(ii) In the wide sense the word is used to connote the entire process culminating in a candidate being declared elected.

Krishan Iyer J in Mohinder Singh Gill v. Chief Election Commissioner was of the view that every step from start to finish or the total process constitutes election, not merely the conclusion of culmination. The rainbow of operations, covered by the compendious expression 'election' thus commences from the initial notification and culminates in the declaration of the return of a candidate . There cannot be two views or doubts about the fact that 'free and fair elections' are a basic postulate of a free democratic society. The Supreme Court has observed:
Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, making his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions.

The inseparability and the inter-relation between elections and democracy has been succinctly stated by the apex court in the following words:
the concept of democracy as visualized by the Constitution presupposes the representation of the people in Parliament and State legislatures by the method of election. Hence a true, independent and liberal democracy cherishes free, fair and impartial elections because it is through them that true democracy is born.

II. Bar to interference under Constitution

It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. Constitution visualizes the resolution of election disputes by judicial process by ascertaining the facts relating to the election and applying the law . The Supreme Court in V.S. Achuthanandan v. P.J. Francis held that free, fair, fearless and impartial elections are the guarantee of a democratic polity. Effective mechanism is the basic requirement for having such election. For conducting, holding and completing the democratic process, a potential law based upon requirements of the society is concededly of paramount importance. A balanced judicial approach in implementing the laws relating to franchise is the mandate of this court.

Before examining the matter of jurisdiction it shall be of relevance to refer to Article 329 of the Constitution which reads:
329. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution
(a) ***
(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 has been observed by the Supreme Court that the non-obstante clause with which Art 329 of the Constitution begins debars us, as it debars any other court in the land, to entertain a suit or proceeding calling in question any election to Parliament or the State Legislature. The proceedings have to be initiated by an election petition and in such manner as may be prescribed by the statute.

The Supreme Court in Jyoti Basu v. Devi Ghosal enunciated the Constitutional position as follows: A right to elect, fundamental though it is to democracy, is , anomalously enough, neither a Fundamental Right nor a common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statue, there is no right to elect, no right to be elected and no right to dispute to an election. Statutory creations they are and subject to statutory limitations. The rights arising out of elections, including the right to contest or challenge an election, are not common law rights. They are creatures of the statutes which create, confer or limit those rights. Therefore, for deciding the question whether an election can be set aside on any alleged ground, the courts have to consult the provisions of law governing the particular election. They have to function within the framework of that law and cannot travel beyond it.

Prior to 1966 election petitions were presented to the Election Commission, which would constitute one-member Election Tribunals of the rank of District Judge, on an ad hoc basis for the trial of election petitions. In Hari Vishnu Kamath v. Ahmed Isheque it was held by the Supreme Court that Art 329(b) prohibited only the 'initiation' of proceedings, questioning an election, in any other manner other than by an election petition and once that proceeding was initiated by filing an election petition, the requirement of Art 329(b) was met and thereafter the trial of the petition by the election tribunal was subject to the general law and to the supervision of High Courts over tribunals.

Thus in order to avoid dual jurisdiction over the election matters the Election Commission recommended that trial of election petitions should be entrusted to the High Courts instead of election tribunals. Parliament thus enacted Section 80-A of the Representation of the People Act, 1951 providing that the "High Court" shall be the authority for presentment of election petitions under Article 329(b) of the Constitution. This was incorporated by an amendment in the year 1966 (Act 47 of 1966).

III. Extent of Power as provided under Representation of People's Act, 1951

The Representation of People's Act, 1951(hereinafter referred to as RPA,1951) was enacted by the Parliament in exercise of its powers under Art 327 . RPA, 1951 makes detailed provisions with regard to all matters and all stages connected with elections to various Legislatures. The RPA, 1951 has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute . Part VI of RPA, 1951 deals with disputes regarding elections and provides for manner of presentation of election petitions their trial and procedure thereof. Section 80 of RPA, 1951 provides that No election shall be called in question except by an election petition presented in accordance with the provisions this part. In furtherance of this provision it is provided that the court having jurisdiction to try election petitions shall be High Court. Such jurisdiction shall be exercised by a single judge of High Court and the Chief Justice shall from time to time assign one or more judges for that purpose.

The concepts of common law and equity are strangers to the branch of election law. The rights of free, fair and independence of elections are a matter of great importance and fundamental to any democracy. Hence, the entire election process commencing from the issuance of notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by RPA, 1951different stages of the process being dealt by different provisions of the Act.

Section 100 of the RPA, 1951 deals with the grounds on which an election may be challenged by means of election petition. Section 100 reads:
100. Grounds for declaring election to be void – (1) Subject to the provisions of sub-section (2), if the High Court is of opinion –
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963(20 of 1963): or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent: or
(c) that any nomination paper has been improperly rejected: or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by any agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied –
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide the election of the returned candidate is not void.

Thus section 100 provides two kinds of grounds to the petitioner: the grounds in clauses (a) to (c) are grounds of election petition as such while the grounds in clause (d) are available to a candidate only if the candidate as far as the result is concerned has been 'materially affected.' What shall amount to being materially affected has not been specified in RPA, 1951.

According to the Supreme Court whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion by which the number of wasted votes bears to the number of votes secured by the successful candidate. Thus if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes Secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected.

IV. Article 329(b) vis-à-vis Article 226

Article 329(b) of the Constitution begins with the words: "Notwithstanding anything in this Constitution...." This is a non obstante clause. But Article 226 confers extremely wide powers on the High Court . He question thus then that arises is whether the expanse of Article 329(b) is so wide that it cannot be bypassed by Article 226? The answer to this question has usually been answered in the affirmative by the courts. In other words the provisions of Art 329(b) have an over-riding effect on the provisions of Art 226.

In the Poonuswami case this question was considered by the Supreme Court. In this case the appellant was one of the persons who has filed nomination papers for election to the Madras Legislative Assembly from the Namakkal constituency. The Returning Officer rejected the appellant's nomination paper on certain grounds. The appellant thereupon moved the High Court under Art 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by the reason of the provisions of Art 329(b).

In appeal before the apex court the issue to be decided was whether the view expressed by the High Court is correct that its jurisdiction is affected by Art 329(b) of the Constitution. Upholding the observations of the High Court the Supreme Court observed that Art 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground and other grounds may be raised under the law to call the election in question. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art 329(b) and in setting up a special tribunal.

The Court further observed that any other meaning ascribed to the words used in the Art would lead to anomalies, which the Constitution could not have contemplated. One of them being that conflicting views may be expressed by the High Court at the pre-polling stage and the election tribunal at the stage when the matter is brought up before it. Hence, the state High Courts have no jurisdiction under Article 226 of the Constitution to entertain petition.

The Punjab and Haryana High Court in a significant judgment held that an election petition is a far more effective relief in case of wrong rejection of nomination papers. The court observed that it is unfortunate that some papers have been wrongfully rejected but law provides relief to the candidate through an election petition before the election tribunal, which may declare the election to be void altogether on the ground of wrong rejection of nomination papers. The Division Bench commenting upon the extent of Art 226 in election matters observed that the powers under Art 226 are available when exercise of said power sub-serves the progress of election. The High Court is empowered to act under Art 226 in order to facilitate the election.

This question again came up for consideration before the Supreme Court in Mohinder Singh Gill's case. The issue inter alia was formulated as: whether the writ petition challenging cancellation integrated with re-poll is barred under Art 329(b)? Answering the question in the affirmative it was held that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For the prima facie purpose of such a re-poll is to restore a detailed poll process and to complete it through the salvationary effort of a re-poll.

A writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by Art. 329(b). In the case of Inderjit Barua v. Election Commission the petitioners sought to escape from the bar of Art 329(b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the bar of Art 329(b) therefore does not stand in the way of writ petitions filed by them challenging the impugned elections. However the court rejected the contention of the petitioners holding that this escape route is not open to the petitioners. The court observed that there is in the Representation of People Act, 1951 no concept of election as a whole. Even where in form the challenge is to the elections as a whole, in effect and substance what is challenged is election from each constituency and Art 329(b) must therefore be held to be attracted.

A significant pronouncement of the Supreme Court in respect of the expanse of the writ jurisdiction of the High Courts under Art 226 in respect of election matters is K. Venkatachalam v. A. Swamickan. In this case the appellant before the Supreme Court was elected to the Tamil Nadu Legislative Assembly at the general election held from Lalgudi assembly constituency. No election petition was filed questioning his election. One year after his election one of the rival candidates filed a writ petition before the Madras High Court alleging that the appellant was not registered as an elector in the constituency. The High Court allowed the writ and declared that appellant was illegally elected . On appeal the Supreme Court upheld the decision of the High Court. The apex court observed at p.1734, para 27,28:

Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over..... (W)e are, therefore, of the view that te High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly.

However the Venkatachakam's case is a one-off instance and the only one known where a sitting member has been disqualified by means of a writ petition. Generally the powers of the High Courts under Art 226 with respect to election matters has been held to very limited and narrow.

In Jeet Mohinder Singh v. Harmindar Singh Jassi the Supreme Court added a word of caution and observed that the success of a candidate should not be lightly interfered who has won at an election should not be lightly interfered with. Any person seeking such interference must strictly conform to the requirement of law . Though the purity of election has to be safeguarded and the court should be vigilant, the setting aside of elections involves serious consequences not only for the returned candidate and the constituency but also for public at large in as much as re-election involves huge load on public funds and administration.

The domain and the extent of the writ jurisdiction under Art 226 thus is very restrictive . Barring a few notable exceptions when the courts have taken that extra step considering the circumstances of the case the courts have usually declined to entertain election matters under Art 226 keeping in view the bar imposed by Art 329(b).

The principles governing the exercise of powers of High Courts under Art 226 can thus be summarized in the words of the apex court itself. The Supreme Court has observed that erroneous actions which are amenable to correction in writ jurisdiction of the courts should be such as have the effect of interfering in the free flow of the scheduled election or hinder the progress of election which is of paramount consideration. If by an erroneous order the conduct of the election is not hindered then the courts under Art 226 of the Constitution should not interfere with the orders of the returning officers the remedy for which lies in an election petition only . The High Courts should observe a self-imposed limitation on their powers to act under Art 226 by refusing to pass orders which would inevitably result in indefinite postponement of elections to legislative bodies.

V. Conclusion
The important principles regarding the jurisdiction of High Courts in respect of election matters and their powers to entertain election petitions can thus be deduced and be stated as follows:
1. The constitutional provisions and the Representation of People Act clearly express the rule that there is a remedy for every wrong done during the election process. The remedy in respect of electoral process is not extinguished by virtue of Art 329(b). The only thing it does is that the remedy is postponed to the post-election stage.

2. The reason for the postponement of the remedy in respect of wrong done in connection with the elections is postponed to the post election stage because of a vital reason. Having regard to the important functions which the Legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be conducted as early as possible according to time schedule. All the controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

3. The constitutional position and mandate thus has been clear – that the electoral process once started cannot be interdicted or interfered with by courts, at any intermediary stage till its completion and culmination in the declaration of the result.

4. Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacle therein, or to preserve 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.

5. In deciding and entertaining matters related to the elections the courts cannot resort to help of principles of equity and common law in order to expand the scope of their jurisdiction in election matters. The right to dispute a election is a statutory right i.e. a creation of the statue and thus is subject to the limitations created by the statute. The limits laid down by the statue in terms of forums which can be approached cannot be transgressed.

Hence the width and amplitude of powers High Courts as this paper sought to identify in the first place can be suitably inferred from the above stated authorities and provisions of various statutes. 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.

The wide powers conferred to the High Courts under Art 226 of the Constitution however have a grey area as far matters in respect of elections are concerned. The court usually determine 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 sub-serve the purpose of successful completion of elections as per the time schedule.

Thus if the writ jurisdiction of the courts have been invoked during the pendency of elections this test shall serve as the guideline for to court to determine whether it should treat the matter as falling within the sweep of its wide powers under Art 226. However the conclusiveness and the guiding force of this test has still not been established. The various decisions of the apex court and the High Courts of the various states reveal that the courts are merely testing waters. The policy of determining its jurisdiction on a case-to-case basis under Art 226 seems to involve an element of fragility, vulnerability and uncertainty. Hence the need is to evolve suitable guidelines by the Election Commission and then consequently enact them in the RPA, 1951 so as to determine with certainty the extent to which the writ jurisdiction of the high Courts can be invoked and whether it can be invoked at all.

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