Right To Contest Election Or Question It Via Election Petition Neither Common Law Nor Fundamental Right: Supreme Court

The Supreme Court reiterated that the right to contest election or question the election through an Election Petition is neither a common law nor fundamental right, rather a statutory right governed by the Representation of People Act, 1951 (RP Act).

The Court was deciding a civil appeal preferred against the judgment of the Gauhati High Court in an Election Petition by which it dismissed the same under Order VII Rule 11 of the Civil Procedure Code (CPC), seeking rejection of the Election Petition of the original election petitioner.

The two-Judge Bench of Justice Aniruddha Bose and Justice Bela M. Trivedi said, “At the outset, it may be noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. Outside the statutory provisions, there is no right to dispute an election. The RP Act is a complete and self-contained code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of Civil Procedure Code are applicable to the extent as permissible under Section 87 of the RP Act.”

Senior Advocate Kapil Sibal appeared on behalf of the appellant while Senior Advocate Jaideep Gupta appeared on behalf of the respondents.

Factual Background -

On March 5, 2021, General Election to the Legislative Assembly of Assam was notified by the Election Commission of India (ECI), whereunder the last date for filing of nomination papers March 12. On March 11, the appellant named Karim Uddin Barbhuiya filed his nomination papers as a candidate of All India United Democratic Front (AIUDF) along with the Declaration, by way of an affidavit in Form-26 of The Conduct of Election Rules, 1961. The last date for scrutiny of nomination papers was March 15. On April 1, the election for the Legislative Assembly Constituency no. 10, Sonai was concluded and the appellant secured 71,937 votes out of total votes polled, while the respondent named Aminul Haque Laskar secured 52,283 votes in his favour.

On June 4, the respondent filed the Election Petition before the High Court under Section 100(1)(b) and Section 100(1)(d)(i) of RP Act questioning the election of the appellant, mainly making four allegations - (a) false declaration of educational qualification of B.A. (b) suppression of the educational qualification of Diploma in Engineering (c) suppression of bank loan details of M/s. Allied Concern and (d) suppression of un-liquidated provident fund dues. On June 24, the High Court issued notice in the said Election Petition. On August 23, the appellant filed an application under Order VII Rule 11, CPC read with Section 86 of the RP Act for rejection of the Election Petition. On April 26, 2023, the High Court passed the judgment dismissing the application filed by the appellant and hence, he was before the Apex Court.

The Supreme Court in the above context of the case observed, “It is also pertinent to note at this juncture that a charge of “Corrupt practice” is easy to level but difficult to prove because it is in the nature of criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of “Corrupt practice” is the same as is applicable to a criminal charge. Therefore, Section 83(1)(b) mandates that when the allegation of “Corrupt practice” is made, the Election Petition shall set forth full particulars of the corrupt practice that the Election Petitioner alleges, including as full a statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.”

The Court added that the pleadings with regard to the allegation of corrupt practice have to be precise, specific, and unambiguous, whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. It further said that if it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act.

“We are afraid, Mr. Gupta has failed to point out from the pleadings of the Election petition as to how the appellant had interfered or attempted to interfere with the free exercise of any electoral right so as to constitute “undue influence” under Section 123(2) of the Act. … So far as the ground contained in clause (d) of Section 100(1) of the Act, with regard to improper acceptance of the nomination of the Appellant is concerned, there is not a single averment made in the Election Petition as to how the result of the election, in so far as the appellant was concerned, was materially affected by improper acceptance of his nomination, so as to constitute a cause of action under Section 100(1)(d)(i) of the Act”, it also noted.

The Court remarked that though it is true that the Election Petitioner is not required to state as to how corrupt practice had materially affected the result of the election, nonetheless it is mandatory to state when the clause (d)(i) of Section 100(1) is invoked as to how the result of election was materially affected by improper acceptance of the nomination form of the appellant.

“As transpiring from the Election Petition, the respondent no. 1 himself had not raised any objection in writing against the nomination filed by the Appellant, at the time of scrutiny made by the Returning Officer under Section 36 of the Act. According to him, he had raised oral objection with regard to the education qualification stated by the Appellant in the Affidavit in Form-26. If he could make oral objection, he could as well, have made objection in writing against the acceptance of nomination of the Appellant, and in that case the Returning Officer would have decided his objection under sub-section (2) of Section 36, after holding a summary inquiry”, it said.

Furthermore, the Court observed that even if it is accepted that the respondent raised an oral objection with regard to the educational qualification of the appellant before the Returning Officer at the time of scrutiny, he has failed to make averment in the Election Petition as to how appellant’s nomination was liable to be rejected by the Returning Officer on the grounds mentioned in Section 36(2) of the Act, so as to make his case fall under clause (d)(i) of Section 100(1) that there was improper acceptance of the nomination of the appellant.

“The non-mentioning of the particulars as to how such improper acceptance of nomination had materially affected the result of the election, is apparent on the face of the Election Petition. … As stated earlier, in Election Petition, the pleadings have to be precise, specific and unambiguous. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC”, it emphasised.

The Court concluded by saying that an omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition under Order VII Rule 11 read with Section 83 and 87 of the RP Act.

Accordingly, the Apex Court dismissed the appeal.

Cause Title- Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors. (Neutral Citation: 2024 INSC 282)

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