Court cannot question election process till it is over, HC quotes Supreme Court judgement
Srinagar: Dismissing a candidate’s petition to hold re-election in Anantnag Lok Sabha constituency because the candidate was not allowed to campaign “for security reasons” by the returning officer, the J&K High court on Tuesday quoted a Supreme Court judgement that said the election process cannot be called into question by a court till its results were declared.
Shams Khawaja, the aggrieved candidate, had sought direction from the High Court to the Election Commission of India to reschedule the election in Anantnag constituency. Khwaja had submitted that he suffered discrimination at the hands of the returning officer who did not allow him to campaign in the areas of his choice, on the grounds that there were “security concerns”. Khwaja argued that this denial of permission amounted to blacking him out of the election and violated his Constitutional rights.
Justice Ali Mohammad Magrey took the pleas of the petitioner on record with the noting that the question was whether this writ petition under Article 226 and 227 of the Constitution of India was maintainable or not.
The court recorded in its judgement that the issue was no more res integra (untouched matter) as the law laid down by the Supreme Court was clear. The Supreme Court’s order was quoted:
“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 into question in any court.
“No election to either House of Parliament or to 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.
“The term ‘election’ has been interpreted to mean and include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result, meaning thereby that in terms of the mandate of Clause (b) of Article 329 of the Constitution of India, no step or proceeding can be called in question, except by an election petition.”
The court noted that as per the Representation of People’s Act 1951, the point in issue was contained in Chapter I of the Act – dealing with disputes regarding elections. Section 80 of the Act under the caption ‘Election Petition’ provides that no election shall be called into question except by an election petition presented in accordance with the provisions of the said part of the Act.
The High Court, therefore, ruled: “Section 80-A of the Act of 1951 provides that the Court having jurisdiction to try an election petition shall be the High Court. Going by the doctrinal maxim of stare decisis (legal principle of determining points according to precedent), the intent of Article 329 of the Constitution of India read with Section 80 and 80(a) of the Act of 1951 is to postpone the adjudication of any election dispute till the election proceedings are over, so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.”