In an important landmark judgment that will help strengthen the democracy in India, a bench of two-judges of the Supreme Court, comprising of Justice J. Chelameswar and Justice Rohinton Fali Nariman, has directed that in each High Court dedicated Benches should be created by the Chief Justice of the respective High Court to deal with the election petitions exclusively. This order came to be passed by the Supreme Court on 27 February 2015 in Civil Appeal Nos. 2538-40 of 2015 (Mohd Akbar v. Ashok Sahu & Ors.).
It is noteworthy that as per the provisions of Section 80-A of the Representation of the People Act, 1951, an election dispute arising out of an election to Parliament or a State Legislature is required to be decided by the High Court concerned. This section is reproduced as under:
“80-A. High Court to try election petitions.—(1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.”
It is unequivocally clear from the language of sub-section (2) in this section that the Chief Justice of the High Court shall, from time to time, assign one or more Judges to deal with the election petitions. This is the mandate of the law made by the Parliament. However, this mandate is unfortunately not complied with in its true spirit, since the judge so designated is generally not asked to handle election petitions exclusively or at least to give priority to the election petitions. Such judge is usually given other type of work also, due to which there is often delay in the decision of the election petitions.
In fact, it has been generally noticed that many of the election petitions are not decided even till the completion of the 5 years’ period for which a candidate is elected as MP or MLA, which means that the election petition becomes infructuous and of no meaning and of no consequence after that, since the elected member would have competed his 5 years’ tenure by the time the election petition is decided.
It is pertinent to point out that Section 86(7) of the Representation of the People Act, 1951, mandates an expeditious disposal of an election petition, preferably within 6 months, by laying down as under:
“(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.”
However, as mentioned above, this section is also almost never complied with since many of the election petitions are not decided even within the period of 5 years, what to speak of within 6 months!
For example, when the term of the 15th Lok Sabha (which was constituted in 2009 after the 2009 General Elections) ended in 2014, proceedings in 25 election petitions that challenged the election victories of 25 MPs of Lok Sabha, including the then Union Finance Minister Shri P. Chidambaram and the then Union Minister of State for Finance Shri Namo Narain Meena, were still pending before various high courts in India and had not been decided even in 5 years (see here). Thus, all these 25 MPs completed their full tenure of 5 years in the absence of verdicts in the election petitions filed against them even though their respective election victory had been challenged. In fact, what is more unfortunate is that none of the 110 election petitions filed after the 2009 General Elections to the Lok Sabha were decided within the period of 6 months laid down in Section 86(7) of the Representation of the People Act, 1951, as mentioned above.
If this is not the mockery of the democratic processes, then what is?
It is in this background that the direction given by the Supreme Court in the aforesaid case of Mohd Akbar v. Ashok Sahu & Ors. assumes importance. This decision of the Supreme Court deserves to be applauded whole-heartedly.
In this case, the appellant Shri Mohd Akbar was one of the contesting candidates for Kawardha Legislative Assembly Constituency during the General Election to Chhattisgarh Legislative Assembly that took place in 2013. Polling took place on 19.11.2013. The result was declared on 08.12.2013. In the election Shri Ashok Sahu was declared elected. Shri Mohd Akbar secured the second highest number of votes in the said election. On 20.01.2014, Shri Mohd Akbar filed Election Petition No. 4 of 2014 challenging the election of Shri Ashok Sahu on various grounds including the commission of certain corrupt practices. On 29.01.2014, the High Court issued summons to the respondents. However, even after several months, the election petition continued to remain pending due to various reasons at the preliminary stage itself.
That is how this issue came to be challenged before the Supreme Court. The Supreme Court took note of the delay by observing that “(s)ome 15 months after the election, the trial of the election petition has not yet commenced”.
The Supreme Court observed as under:
“It was the pious hope of the Parliament that election disputes under the Representation of the People Act, 1951 should be resolved expeditiously. The purpose is obvious. The tenure of the members of the Parliament as well as the Legislature of the State is relatively short. It is five years in the case of Lok Sabha and Legislative Assembly, and six years in the case of Rajya Sabha and Legislative Council. Therefore, if there is a dispute regarding the election of any member of any one of the said bodies, it is desirable that the dispute is resolved as early as possible for various reasons.
(i) Membership of the Legislative bodies under the scheme of our constitution is a sacred responsibility. The continuance of any member in such bodies who secured his election to such a body by legally impermissible means even for a day is most undesirable. Such continuance affords an opportunity to such a member to take part in the law making process affecting the destinies of the people.
(ii) Even from the point of view of the contesting candidates, unless the rights and the obligations are decided within a reasonable time, the adjudication and the consequences of the adjudication may eventually remain on paper without any tangible effect insofar as the participation of such parties in the legislative process.”
The Supreme Court further observed as under:
“However, we are sad to state that invariably the resolution of election disputes in this country takes unacceptably long periods in most of the cases. Very rarely an election dispute gets resolved during the tenure of the declared candidate reducing the adjudicatory process into a mockery of justice. Such delay coupled with a right of appeal to this Court makes the whole process of adjudication a task in a good number of cases. The reasons are many, we will only mention few;
(i) The stakes are very high for the parties. Nothing short of the membership of a constitutional body for a limited period. The power and glory that go with such membership is too high and valuable and the returned candidates naturally leave no stone unturned for protracting the litigation as long as possible.
(ii) The law of elections and election disputes is highly technical. Therefore, there is always scope for lot of objections and cross-objections regarding every step in the conduct of the election petition.
(iii) The absence of dedicated Benches in the High Court for resolution of the election disputes is another factor which contributes enormously to the delay in the adjudicatory process.”
In view of the gross delay that is caused in deciding the election petitions, the Supreme Court issued the following directions to improve this situation:
“We therefore deem it desirable that in each High Court dedicated Benches are created by the Chief Justice to deal with the election petitions exclusively. In other words, those judges assigned with the adjudication of election petitions preferably may not be burdened with any other work until the adjudication of the election petitions is completed. An exercise which may not be difficult especially the class of litigation occurs only once in 5 or 6 years and the number of cases would be very limited. We are conscious of the fact that it is not possible for laying down any absolute rules in this regard. Essentially it is for a Chief Justice of the High Court to run the administration and devise ways and means for expeditiously disposing of the cases brought before the High Court. We only gently remind that the kind of delay in the adjudication of election disputes exposes the High Court’s unpleasant criticism damaging the credibility of the institution. A situation which is certainly required to be avoided at any cost.”
Thus, it is hoped that the mandate of Section 80-A(2) and Section 86(7) of the Representation of the People Act, 1951, and the above specific directions given by the Supreme Court in the above landmark judgment will be scrupulously complied with by the High Courts. Such compliance will go a long way in strengthening the democratic processes in the country. Election gets reduced to being a farce if the disputes relating to unfair or corrupt practices in that election cannot be decided within a reasonable time period (and even within the full tenure of 5 years for which the winning candidate is elected). At the same time, it is also necessary that appeal, if any, filed against the decision in such election petition is also decided expeditiously by the Supreme Court itself.
The full judgment of the Supreme Court in this case can be seen here.
