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Any elector or candidate can file an election petition if he or she thinks there has been malpractice during the election. It is not an ordinary civil suit, but treated as a contest in which the whole constituency is involved. Election petitions are tried by the High Court of the state involved, and if upheld can even lead to the restaging of the election in that constituency. Hence an Election petition is a procedure for inquiring into the validity of the election results of Parliamentary or Assembly elections. In other words, it is a means under law to challenge the election of a candidate in a Parliamentary, State Assembly or any local body elections.

GROUNDS FOR FILING ELECTION PETITION

An Election Petition calling in question any election can be presented on one or more based on the following grounds that:

a) on the date of the election a returned candidate (a candidate who has been declared elected) was not qualified;

b) some corrupt practice was committed by a returned candidate or his election agent;

c) any nomination was improperly rejected; and

d) the result was materially affected.

If any of these is found true, the High Court where the petition is submitted declares the election of the returned candidate to be void. RP Act stipulates that a petition can be submitted by any candidate or elector within 45 days of the declaration of the result.

PROVISIONS UNDER REPRESENTATION OF PEOPLES' ACT, 1951

Chapter II (Presentation of election petitions to election commission), Chapter III (Trial of Election Petitions) and Chapter IV (Withdrawal and Abatement of Election Petitions) deal election petitions. The following provisos govern the concept of Election Petition:

Section

Title

80

Election petitions

80A

High Court to try election petitions

81

Presentation of petitions

82

Parties to the petition

83

Contents of petition

84

Relief that may be claimed by the petitioner

86

Trial of election petitions

87

Procedure before the High Court

93

Documentary evidence

98

Decision of the High Court

99

Other orders to be made by the High Court under Section

100

Grounds for declaring election to be void

101

Grounds for which a candidate other than the returned candidate may be declared to have been elected

102

Procedure in case of an equality of votes

103

Communication of orders of the High Court

109

Withdrawal of election petitions

110

Procedure for withdrawal of election petitions

112

Abatement of election petitions

116

Abatement or substitution on death of respondent

Law Commission in its 255th Report has proposed the following recommendations for making suitable amendments to RP Act 1951 through suitable legislation. Though none of them have yet to come into shape as a robust law so far. Hence the following proposals explores further scope to review the procedures under Election Petitions which needs legislation as they are pending for nearly two decades:

  1. An autonomous institution to deal with all Election related petitions should be constituted in every State Capital which must be empowered under the Jurisdiction of High Court headed by a Division Bench of Judges having a single appellate Jurisdiction at the Supreme Court.

  2. This Court should function under the statutory Rules and Provisions prescribed under the proposed Comprehensive law called ';Election Procedure Code” which is nothing but framing of New Laws on the basis of recommendations of all Law Commission Reports, Supreme Court Guidelines, Model Code of Conduct and other Regulations prescribed by ECI apart from the extant provisions of Representation of Peoples' Act, 1951.

  3. A separate Election Tribunal headed by a High Court Judge should be instituted at every District Headquarters to deal with all Election related violations under Model Court including non-fulfilment of election manifesto by the party elected to power.

  4. Costs related to adjudication of election petitions should be borne by the parties to the litigation and till it is disposed an estimated cost in terms of certain percentage should be collected from the political parties at the time of filing itself just like civil suit for land related disputes.

  5. Status of all such cases pending before these benches should be published and updated on daily basis under a separate link of High Court websites as recommended by Law Commission as Section 98A under ';Collection and disclosure of data by the High Court” wherein Election Commission shall prepare a monthly report compiling the information. In other words, detailed statistical information regarding the number of election petitions filed and pending, the status of each petition, the names of the parties, and designated election bench shall be maintained and constantly updated by each High Court on its website as a part of Collection and disclosure of data by the High Court.

  6. All Election related petitions should be disposed of within a time framework of maximum three months and ECI should notify compliance and will be subject to contempt of court for any deviation or delay in the implementation of verdicts.

  7. The Special Bench or the Election Tribunal should take suo moto notices of blatant violations of Conduct and Model Code prescribed for elections.

  8. Apart from the contesting candidate Any voter or local authority may question the validity of an election or the eligibility of a candidate to sit on the local authority by petitioning to this Special Election Court, on any of the following grounds:

  • The election is invalid due to major election offences committed at the election;
  • A member of the local authority was not eligible to be a candidate on the day of the election;
  • A member was elected in violation of the Election Procedure Code;
  • A member has become disqualified from serving on the council; or
  • A person was appointed when not eligible to be a candidate.
  1. The Special Court is empowered to appoint a Committee of eminent technocrats and scientists and their report could be relied upon for EVM related malpractices and technical discrepancies.

  2. All Frivolous election petitions or false complaints should be disposed of at the admission stage itself imposing the petitioner's heavy costs including imprisonment.

Disposal and the delay in adjudication of Election petition has always become deterrent in upholding the Constitutional concepts and democratic values as the pendency defeats the overall mandate of the Electors and the benefit is given unilaterally to the parties who enjoy power and dictate the laws of the land against public interest at large. Hence, sooner or later the related Election laws need to be revisited for overall improvement.


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