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Tuesday, August 03, 2021

Explained: How poll results are challenged, and when courts have set them aside

West Bengal Chief Minister Mamata Banerjee has filed an election petition in the Calcutta High Court challenging the Assembly election result of Nandigram constituency, where she had contested and lost.

Written by Ritika Chopra | New Delhi |
Updated: June 19, 2021 9:40:46 am
West Bengal Chief Minister Mamata Banerjee addresses a press conference at Nabanna (Source: CMO)

West Bengal Chief Minister Mamata Banerjee has filed an election petition in the Calcutta High Court challenging the Assembly election result of Nandigram constituency, where she had contested and lost. She has sought that Suvendhu Adhikari’s election be declared void on grounds of corrupt practice and discrepancies in the counting procedure conducted by the Returning Officer.

What is an election petition?

The Election Commission’s role ends with the declaration of results, that is once the Returning Officer has signed the final result sheet (Form 20). After that, an election petition is the only legal remedy available to a voter or a candidate who believes there has been malpractice in an election. Such a person can challenge the result through an election petition submitted to the High Court of the state in which the constituency is located. Such a petition has to be filed within 45 days from the date of the poll results; nothing is entertained by courts after that. Although the Representative of the People Act of 1951 suggests that the High Court should try to conclude the trial within six months, it usually drags on for much longer, even years.

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On what grounds can an election petition be filed?

  • Under Section 100 of the RP Act, an election petition can be filed on the grounds that:
  • On the day of the election, the winning candidate was not qualified to contest.
  • The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice. Section 123 of the RP Act has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community, and language.
  • Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
  • Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
  • Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.
(From left) The SC in 1975 set aside Indira Gandhi’s 1971 victory from Rae Bareli; Rajasthan HC declared void an Assembly poll that C P Joshi had lost in 2008; Mamata Banerjee has now challenged Suvendu Adhikari’s victory. (Express Archive)

What happens if the court finds that a contention of malpractice is correct?

This depends on relief that is claimed by the petitioner in her election petition. Under Section 84 of the RP Act, the petitioner may ask that the results of all or the winning candidates may be declared void. In addition to that, the petitioner may also ask the court to declare her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected. So the verdict on an election petition, if found in favour of the petitioner, may result in a fresh election or the court announcing a new winner.

Have there been any election results that were declared void because of an election petition?

There are many examples, the most famous being the Allahabad High Court verdict of 1975 which set aside Indira Gandhi’s election from Rae Bareli constituency, four years earlier, on grounds of corrupt practice. The election petition was filed by her nearest rival Raj Narain who had lost by over one lakh votes. The High Court found that Indira Gandhi’s election agent Yashpal Kapur, the District Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of Uttar Pradesh government helped in the arrangements for her election tour on February 1 and February 25, 1971. This amounted to a corrupt practice under Section 123 (7) of the RP Act.

Another high-profile case was that of Congress leader C P Joshi’s loss in the Rajasthan Assembly elections in 2008, by one vote. Kalyan Singh Chouhan of the BJP won, polling 62,216 votes against Joshi’s 62,215. An election petition was filed on the grounds of improper reception of some votes. The Rajasthan High Court declared this election void since it was found that Chouhan’s wife had cast her vote twice and a few other votes were improperly received. Joshi, however, wasn’t declared winner since that was not sought in the election petition.

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