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Report No. 255

C. Appeal Procedure

10.11. Section 116A, RPA expressly provides for the right to appeal, both on a question of law and fact, against the High Court's order disposing an election petition under sections 98-99. This includes an appeal against the High Court's summary dismissal of an election petition under section 86(1), RPA, 454 although no appeal against an interim or final order can be filed before a Division Bench of the High Court. Upadhyaya Devshankaran v. Dhirendrasinh Solanki, AIR 1988 SC 915.

Being the first court of appeal, the Supreme Court may reappraise the evidence or reverse a factual finding if it finds that the High Court has improperly or (gravely) erroneously appraised or appreciated the evidence, Pradip Buragohain v. Pranati Phukan, (2010) 5 SCJ 815; Gajanan Bapat v. Dattaji Meghe, AIR 1995 SC 2284 thus requiring the apex Court to correct the injustice. Surinder Singh v. Hardial Singh, (1985) 1 SCC 961.

454. Explanation to Section 86(1), RPA

10.12. The statutory right to appeal was introduced pursuant to the 1966 amendment to the RPA. Before that, the decision of the election tribunal was final and conclusive under section 105, RPA, although in 1956, section 116A was introduced to allow appeals to High Courts.458 The position today is that a Special Leave Petition before the Supreme Court can only be filed against the High Court's interlocutory, 459 and not its final order. Dipak Ruhidas v. Chandan Sarkar, AIR 2003 SC 3701.

Additionally, the Supreme Court can summarily dismiss an election appeal, although such powers should only be exercised in exceptional circumstances. Bolin Chetia v. Jogadish Bhuyan, AIR 3005 SC 1872. Ordinarily though, the appeal is treated as a matter of right. Section 116A(2) also specifies a limitation period of 30 days, although the Supreme Court may condone the delay in filing the appeal if "if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period."

458. Mendiratta, supra note 161, at 1149

459. Ibid., at 1149-1150

10.13. Section 116B of the RPA provides for a stay of the operation of the order of the High Court under appeal. In Indira Gandhi v. Raj Narain, (1975) 2 SCC 159 the Supreme Court clarified the permissible conditions of stay, when it suspended the disqualification imposed upon the appellant as a consequence of the High Court's order vide section 8A; and permitted her to sign the Parliamentary Register, and attend the Lok Sabha's sessions on the condition that she would not participate in the House's proceedings nor vote nor draw remuneration in her capacity as MP.

However, for all other purposes, the appellant was to remain an MP. Additionally, given that the appellant was the Prime Minister, the Supreme Court also said, "Independently of the restrictions under para III on her Membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise to take part in the proceedings of either House of Parliament or a joint sitting of the Houses (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88 etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order."



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