Full Question -- Discuss the procedures to decide the disputes arising out of the election of a member of the parliament or state legislature under The Representation of the People Act 1951. What are the grounds on which the election of any returned candidate may be declared void? What remedy is available to the aggrieved party against the decision? Refer to the case laws.
answer- The procedures to decide the disputes arising out of the election of a member of the parliament or state legislature under The Representation of the People Act 1951 are as follows:
Presentation of petitions: Any candidate or elector can file a petition challenging the validity of an election within 45 days of the date of the election. The petition should contain the grounds and particulars of the challenge and should be signed and verified by the petitioner.
Jurisdiction lies with the High Court: The petition is heard by a single judge of the High Court designated by the Chief Justice. The High Court has the same powers as a civil court and can summon witnesses, examine documents, etc. The High Court can also transfer a petition to another High Court for convenience or expeditious disposal.
Appeal lies with the Supreme Court: Any party aggrieved by the decision of the High Court can appeal to the Supreme Court within 30 days of the decision. The Supreme Court can also grant special leave to appeal in any case involving a substantial question of law. The decision of the Supreme Court is final and binding on all parties.
Abatement of petitions: A petition abates if the sole petitioner dies or withdraws the petition, or if it is not prosecuted diligently by the petitioner. However, any other candidate or elector can apply to be substituted as a petitioner within 14 days of such abatement.
- Trial of petitions: The trial of a petition is conducted in accordance with the rules made by the High Court under section 90 of the Act. The trial should be continuous and concluded as early as possible. The High Court can also appoint special commissioners to take evidence or examine documents on its behalf.
- Security for costs: At any stage of a petition, the High Court can require the petitioner to give security for costs, either by depositing money in court or by furnishing a surety bond. If the petitioner fails to give security, the petition may be dismissed.
- Costs: The High Court can award costs to any party as it deems fit, having regard to all the circumstances of the case. The costs may include expenses incurred for witnesses, lawyers, etc.
- The **grounds** on which the election of any returned candidate may be declared void are as follows¹²³:
- Corrupt practice: Any act that falls under section 123 of the Act, such as bribery, undue influence, appeal to communal or religious sentiments, publication of false statements, hiring or procuring vehicles for voters, etc.
- Improper acceptance or rejection of nomination: Any decision by the returning officer that violates section 36 of the Act, such as accepting a nomination that is not valid or rejecting a nomination that is valid.
- Non-compliance with provisions of Constitution or Act: Any violation of any provision of the Constitution or the Act that affects the result of the election materially, such as holding an election without due authority, exceeding expenditure limits, etc.
- Improper reception or refusal of votes: Any error or irregularity by the returning officer or any other election official that affects the result of the election materially, such as allowing or disallowing votes without proper verification, counting or recounting votes incorrectly, etc.
The remedy available to the aggrieved party against the decision is to file an appeal to the Supreme Court within 30 days of the decision, as mentioned above. Alternatively, if no appeal is filed, the aggrieved party can file an application for review to the High Court within 30 days of the decision, on grounds such as discovery of new evidence, mistake or error apparent on record, etc.
Some case laws related to election disputes under RPA 1951 are as follows:
Mohinder Singh Gill vs Chief Election Commissioner (1978): This case involved a dispute over an election in Punjab where some ballot papers were found missing and some ballot boxes were found tampered with. The Supreme Court held that an election can be set aside only if there is non-compliance with any provision that affects its result materially. It also held that an election cannot be set aside on mere suspicion or conjecture.
S.R. Bommai vs Union Of India (1994): This case involved a dispute over an election in Karnataka where some legislators defected from their parties and supported another party. The Supreme Court held that defection is a corrupt practice under section 123(2) of RPA 1951 and that any person who is found guilty of defection shall be disqualified from being a member of parliament or state legislature.
Lily Thomas vs Union Of India (2013): This case involved a challenge to section 8(4) of RPA 1951, which allowed a convicted person to continue as a member of parliament or state legislature until the disposal of his appeal. The Supreme Court struck down section 8(4) as unconstitutional and held that a convicted person shall be disqualified from being a member of parliament or state legislature from the date of conviction.