Supreme court: What procedure is to be followed by candidate if any irregularity is committed during election process?

There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence.  After referring to Ponnuswamy, it was observed: {Para 27}

In NP Ponnuswamy v. Returning Officer, Namakkal Constituency a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time Schedule and all 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. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed, while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the 'election; and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8515 of 2018.

Decided On: 24.08.2018

West Bengal State Election Commission and Ors. Vs. Communist Party of India (Marxist) and Ors. 

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: 2018 INSC 744,MANU/SC/0902/2018, ( 2018) 18 SCC 141.

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Bombay HC: The High court should not entertain writ petition challenging rejection of nomination paper by returning officer in election dispute

Division Bench decision of this Court in Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and Anr. reported in MANU/MH/1064/2002 : 2003(4) Mh. L.J. 359. It was contended that any grievance that the petitioners may have, in relation to the orders rejecting their nominations, ought to be raised after the elections are over by raising appropriate election dispute.{Para 2}

68. For the reasons aforesaid, while agreeing with the view in Vinod Pandurang Bharsakade (supra), we answer the fundamental question as formulated in paragraph 27 in the negative. As a sequel thereto, we answer the questions referred by the Division Bench in the manner as follows:-

(i) Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate its completion in the sense enunciated in Mohinder Singh Gill (supra) and explained in Ashok Kumar (supra) though it may not always amount to intervention, obstruction or protraction of the election;

(ii) Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration; and

(iii) The law laid down in Vinod Pandurang Bharsakade (supra) represents the correct view of law; consequently, we hold that the decision in Smt. Mayaraju Ghavghave (supra) and Sudhakar s/o. Vitthal Misal (supra) do not lay down the correct law;

 IN THE HIGH COURT OF BOMBAY

Writ Petition (ST.) Nos. 26 and 28 of 2021

Decided On: 13.01.2021

Karmaveer Tulshiram Autade and Ors. Vs. The State Election Commission, Mumbai and Ors.

Hon'ble Judges/Coram:

Dipankar Datta, C.J., A.S. Gadkari and G.S. Kulkarni, JJ.

Citations: AIR 2021 BOMBAY 90, AIRONLINE 2021 BOM 6, MANU/MH/0033/2021

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Bombay HC: What basic principles should the court follow while deciding election dispute?

The Hon'ble Apex Court in the case of Election Commission of India, through Secretary, Appellant v. Ashok Kumar & others, respondents, reported in MANU/SC/0540/2000 : AIR2000SC2979 , has in paragraphs 32 and 33 held as under:

"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove.

1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceeding commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to the judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

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 proceeding, to remove the obstacles 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 stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons."

9. The Hon'ble Supreme Court has held that if the election is called in question and when such questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings of election. Needless to say that the petitioner has an alternate remedy of filing an election petition challenging the said elections.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3980 of 2001

Decided On: 03.12.2001

Rekhabai Vs. State Election Commission and Ors.

Hon'ble Judges/Coram:

V.M. Kanade, J.

Citation: 2002(2) ALL MR 742, MANU/MH/0884/2001.

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Whether courts can interfere in Election process?

The main question arises for consideration is whether the Writ Petitions filed under the guise of Public Interest Litigation are maintainable in view of the bar in Article 329(b) of the Constitution of India, before culmination of the Election process. Article 329 of the Constitution of India takes away the jurisdiction of the Courts in certain matters relating to Election, which are governed by Part XV of the Constitution. Clause (b) of Article 329 excludes the jurisdiction of the Courts to entertain any matter relating to Election. The question as to whether the word "Election" in Article 329(b) of the Constitution would embrace the whole procedure of Election or whether it is not confined to the final result, came up for consideration before the Constitutional Bench of the Hon'ble Supreme Court in N.P. Ponnuswami's case. In the said case, the Hon'ble Supreme Court has interpreted Article 329(b) of the Constitution of India and held that the word "Election" in the said provision would include the entire process of Election commencing with the issue of notification and terminating with the declaration of election of a candidate and that a petition under Article 226 of the Constitution of India challenging the validity of any of the facts forming any part of that process would be barred.

IN THE HIGH COURT OF MADRAS

W.P. Nos. 18159, 18196 of 2016 and W.M.P. No. 15940 of 2016

Decided On: 18.05.2016

Satta Panchayat Iyakkam (SPI) and Ors.
Vs.
 The Chief Election Commissioner, Election Commission of India and Ors.

Hon'ble Judges/Coram:K. Kalyanasundaram and D. Krishnakumar, JJ.

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Supreme court:Requirement of Minimum Qualification for Contesting Election is constitutional

Coming now to the question of constitutional
validity of Section 175 (1)(v) of the Act which provides
that candidate must possess certain minimum
educational qualification if he/she wants to contest
an election. In my opinion, introduction of such
provision prescribing certain minimum educational
qualification criteria as one of the qualifications for a
candidate to contest the election has a reasonable
nexus with the object sought to be achieved.
8. In fact, keeping in view the powers, authority and
the responsibilities of Panchayats as specified in
Article 243-G so also the powers given to Panchayat
to impose taxes and utilization of funds of the
Panchayats as specified in Article 243-H, it is
necessary that the elected representative must have
some educational background to enable him/her to
effectively carry out the functions assigned 
Panchyats in Part IX. It is the legislative wisdom to

decide as to what should be the minimum
qualifications, which should be provided in the Act.
 No one can dispute that education is must for
both men and women as both together make a healthy
and educated society. It is an essential tool for a
bright future and plays an important role in the
development and progress of the country.
In my view, therefore, Section 175 (v) of the Act is
intra vires the Constitution and is thus
constitutionally valid.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 671 OF 2015
Rajbala & Others … Petitioners
Versus
State of Haryana & Others … Respondents
Dated;December 10, 2015.

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