Instead of keeping them pending for five years and dismissing them as infructuous, the judiciary should take these cases to their logical end

A recurring sequel to general elections to the Lok Sabha (as also elections to the State Assemblies and local authorities) is that petitions are filed in many courts challenging the elections on diverse grounds. The long inevitable procedural delays in courts ensure that a substantial number of these petitions remain pending in courts even after the term of the office to which the election relates comes to an end. In such cases, the election petition is dismissed by most courts as having become infructuous — a word of Latin origin used in legal parlance to denote that a particular proceeding has become fruitless or pointless. The effort here is to show that such disposal is not the correct recourse in law.

Concluding the trial

Section 86 (6) of the Representation of People’s Act, 1951 mandates that trials in election cases shall, as far as is practicable, proceed on a day-to-day basis and Section 86 (7) directs the court to endeavour to conclude the trial within six months from the date on which the petition is presented to the High Court.

Following the 2009 Lok Sabha elections, nearly 110 election petitions were filed in various High Courts across the country challenging the election of various candidates. Not one of the 110 was concluded within the period of six months, as stipulated by the Act. Twenty five of them remain pending even at the end of the five-year term of the 15th Lok Sabha.

These pending cases then get dismissed as infructuous. This happens when the issue involved in the litigation is no longer alive. But then an election to the highest legislative body in the country (or even to any of the other legislative bodies) is not merely a lis between individuals. That is what the Supreme Court said in resounding terms in Sheodhan Singh vs. Mohan Gautam. The Court pointed out that “no one can be allowed to corrupt the course of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly being dissolved. The Public are interested in seeing that those who had corrupted the course of an election are dealt with in accordance with Law.”

In this case, the election of one Mohan Lal to the Uttar Pradesh Assembly was challenged by one of the candidates who lost the election on the ground that the respondent was guilty of corrupt practices during the election. The U.P. Assembly was dissolved by the President during the pendency of the election petition. An objection was raised before the High Court on behalf of Mohan Lal, contending that the election petition had ceased to be maintainable on account of completion of the term of the U.P. Assembly. This argument was rejected by the High Court and later by the Supreme Court, with Hegde. J. holding that in the interests of maintaining the purity of the electoral process, it was necessary that those who had corrupted the course of an election be dealt with in accordance with law. The court further emphasised: “In an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner.”

Rationale behind legal approach

The law relating to withdrawal and abatement of election petitions is exhaustively dealt with in chapter IV of Part VI of the Representation of People’s Act. These provisions do not provide for abatement of an election petition, either when the returned candidate whose election is challenged resigns or when the Assembly is dissolved.

There is a significant rationale to this legal approach. It is that if a candidate is adjudged to have indulged in corrupt electoral practice, he can be barred from contesting in subsequent elections.

Again, even if the petitioner in the election petition loses interest in pursuing the petition, it is open to the court to substitute any of the other contestants/respondents in place of the petitioner and continue the proceedings. It may even be advisable to substitute the Election Commission in place of the petitioner in appropriate cases. As emphasised by the Supreme Court, an election petition is not a lis between two individuals but an attempt at preserving the purity of the electoral process. The judiciary would be doing salutary service to this spirit of our election laws if it does not close pending election petitions as infructuous but instead proceeds to take these cases to their logical end.

(N.L. Rajah is an advocate at the Madras High Court and Member, Forum for Electoral Integrity.)

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