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Bar to interference by courts in electoral matters under A-329

Bar to interference by courts in electoral matters under A-329

Judicial supervision of elections. Bar to interference by courts in electoral matters  under A-329.

Notwithstanding anything in this Constitution –

(a) The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;

(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.

Analysis

329 (a) Complete Bar on raising issue of delimitation of constituencies or allotment of seats to Such constituencies

329 (b) Election disputes of MP/ MLA only by way of election Petition before High court in prescribed manner under the Representation of People Act 1951. the judiciary has no power if the election process has begun; the judiciary does not intervene in the actual conduct of the polls. we can approach HC by way of writ but either before notification for election or after declarations of results. During the election process the Court can’t intervene .

No more Tribunal for resolving election disputes , now HC takes care of dispute: The Constitution (Nineteenth Amendment) Act, 1966, nullified the tribunals in India and instead gave the authority to the High Court to hear the trial of election petitions. The abolition of tribunals and the restoring of their powers to the High Court proved to be a turning point in the matters having a connection with elections in India. This made the High Court superior and their hold stronger. It also amended Article 324, sub clause (1) and accordingly the Election Commission is given the authority to supervise, direct, and oversee elections. The Representation of the People Act of 1951 was also modified and it rendered the electoral tribunals’ appointment and authority null and void. A special provision concerning the ability to appoint election tribunals for the adjudication of uncertainties and issues coming out of or concerning elections to Parliament and the Legislatures of States was eliminated.

The ECI has the power to administer the election to Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. 

The decision of the election commissions can be challenged by petitions in the High Court and Supreme Court but The judiciary has no power if the election process has begun; the judiciary does not intervene in the actual conduct of the polls. 

“Election petitions” are the only way through which the result of the elections could be reviewed by the judiciary. The EC per se has no power to review the results of the elections. 

Jurisdiction of Judicial review by court and appellate Court: Moreover, this election petition can only be filed before the High Court, in respect of elections to the Parliament and State Legislatures. If in a situation, where the election of President or Vice president is in question, the election petition can only be filed in the Honorable Supreme Court, and even, the High court is barred from the jurisdiction. The jurisdiction of the Civil Court stands barred in election matters.

As per Article 329, Constitution 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. In pursuance of clause (b) of Article 329 of the Constitution, Parliament enacted the Representation of the People Act, 1951. Part VI of the Act deals with election disputes. Election petitions are triable by High Court, as provided in the Representation of the People (Amendment) Act,1966. The election petitions are now heard directly by the High Court from which an appeal may be taken to the Supreme Court under Articles 132, 133, and 136. Once the polls are completed and the result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. The High Courts of the concerned states have been conferred with an exclusive jurisdiction to hear election petitions. Any party aggrieved by the decision of the High Court may file an appeal to the Hon’ble Supreme Court   Of India. As mentioned above, the election of President and Vice president could not be reviewed by any other court than the Supreme Court of India.

Election of President and Vice President Article 71(4) provides that the election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him. 

leading case laws

State of Goa v. Fauzia Imtiaz Shaikh, 2021 SCC OnLine SC 211  Scope of judicial interference in election matters relating to delimitation of constituencies and allotment of seats, specifically in municipal elections. Bar on judicial review due to A-329 (a)

Supreme Court: The 3-judge bench of RF Nariman, BR Gavai and Hrishikesh Roy, JJ reiterated the law relating to the bar to interference by courts in electoral matters relating to delimitation of constituencies and allotment of seats to such constituencies, specifically in the context of municipal elections. “So far as delimitation and allocation of seats is concerned, the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Article 329(a) of the Constitution.” The Court explained that the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections. “The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election.” The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf. Referring to a number of judgments, the Court summarized the following points: 

  1. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced. 
  2. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner. 

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election. 

  1. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason. 

V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election. 

  1. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats. 

VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision. 

VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with 87 delimitation of constituencies and allotment of seats to such constituencies. 

  1. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. 
  2. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.

 Ponnuswami  NP Vs. Returning officer AlR (1952) ( SC )

Bar Judicial intervention during election process due to A-329(b). Appellant filed his nomination Paper from a constituency for state assembly but returning officer rejected his nomination paper on Certain grounds. 

Question: whether a candidate could challenge the decision of returning officer through a writ Petition under A-226 ? 

Supreme court Answer in negative Keeping in view of A-329 (b), SC declared that Court has bar from dealing with any matter arising while election were in Progress. the court could not interfere with the Process of election. ie from the time of Notification issued till election petition is disposed of. Any irregularity committed diving the Course of elections Could be challenged through an election Petition after the election was over. A legislature performs a very important function in a democratic country and therefore matters of first importance i.e. election to be concluded as early as possible according to time schedule. Therefore it is necessary to postpone all Controversies and disputes arising out of the election till election over So that the election process is not unduly retarded or protracted.

Non-interference with the Process of election is a matter of Judicial policy matter of self imposed discipline and not a matter of Judicial Powers.

Indira Nehru Gandhi v. Raj Narain

In this case, Raj Narain was a politician who was standing against Indira Gandhi for elections. Ms Indira Gandhi won the elections with a sweeping majority. But Raj Narain filed a case in court for malpractice. The court held in favour of Raj Narain, and hence ordered that Ms Gandhi couldn’t continue to be the PM of the nation. Aggrieved by this decision she appealed to the Supreme Court. However, while the appeal was pending in the Supreme Court, an emergency was declared by the President due to internal disturbance. Also, during that period, the 39th constitutional amendment was passed, according to which the elections of the president, PM, vice-president and speaker of Lok- Sabha were out of the jurisdiction of the judicial review by courts. Hence barring the Supreme Court of the jurisdiction to entertain the said matter. 

Hence, the legality of the 39th Amendment was challenged in this case. The court held the amendment to be illegal and arbitrary. The court held that the basic structure of the Indian constitution must be kept in mind. Judicial review is one of the basic structures. Such an amendment was a danger to the free and fair election theory on which our country works.

KM. Shradha Devi v. Krishna Chandra Pant and Others (SC) (1978)

In this case, an election petition was filed which challenged the election of Shri Krishna Chandra Pant, held in 1978. 11 votes out of 421 votes were invalidated. Such invalidation was challenged in the High court. These votes had been cast under the system of proportional representation using a single transferable vote. The High Court allowed the inspection of only 4 of the 11 invalid votes, on the ground that the petitioner had given details about the rejection of these 4 votes only in her election petition. papers, only 2 were considered and it was found that the petitioner still lost the election. The petitioner appealed to the Supreme Court against this order, where the High court order was set aside. The Supreme Court was of the view that all 11 of the votes should have been examined. The Supreme Court held that the petitioner had to offer prima facie proof of errors in counting and if errors in counting were established, by providing proof of some errors in respect of some ballot papers, scrutiny and recounting could not be limited to those ballot papers only and that a recount could be ordered of all disputed ballot papers. The Supreme Court, therefore, sent the case back to the High Court for the reexamination of the case by a re-scrutiny of all the 11 ballot papers under dispute.  

Election Commission Of India  v. Ashok Kumar (2000) (SC)

facts: in this case manner of counting of vote was challenged as mala fide 

In this case SC has stated its modified view on maintenance of Writ Petition . Anything done towards Completing or in furtherance of the election proceeding can’t be described as a question in election. without interrupting, obstruction or delaying the Progress of the election proceeding Judicial intervention is available if assistance of the court has been sought merely to Correct or Smoothen the Progress of the election Proceeding, to remove the obstacle therein, 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. 

While exercising the powers conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published, according to which the areas where the voting was to be done by ballot paper, the counting of such votes were to be done by mixing the ballot papers and not station wise. Writ petitions were filed before the High court against this particular notification, claiming that the counting must be done station- wise. The High court ordered in favour of the petitioner. Aggrieved by this order, the ECI filed an SLP in the Supreme Court. The Supreme Court overturned the order of the High court, not because of effect of  retarding ,prohibiting , delaying or stalling the counting of votes or Progress of the election proceeding but HC order  not to have been made because in the petition there was merely a bald assertion if mala fide and from that even Prima facie mala fide could not be inferred. i.e HC order was wrong on merit.

It was also held that Election process start with issues of notification under the representation of People Act 1951, and Continue up to the declaration of result.

Conclusion

The judicial review of an election process can’t be done. But it doesn’t mean it gives unfettered power to the ECI. The decision of the ECI could be challenged in the courts. Also, during the election process, judicial intervention couldn’t be sought. This is to avoid any further delays of the election process, because in case the judicial intervention takes a long time to scrutinize the case and give its judgements. The courts are the peace-keepers of our country, hence, there are times when the courts have directed the ECI to improve or to monitor the election processes and to make sure that the MCC is followed properly. 

Name: CA P P SINGH
Qualification: LLM(P) LLB, FCA, CS, GSTCC, B.Sc. (H),
Company: PPSINGH AND ASSOCIAES
Location: NCR DELHI

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