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Report No. 255

D. Drawbacks in the Present System

10.14. There are three primary drawbacks in the current system of filing election petitions, namely the non-uniform and formalistic procedure for presenting the petition, the inordinate delay in the trial of the election petition, and the system of appeals on any question of law or fact that renders an appeal almost automatic.

10.15. First, the current procedure of filing election petitions differs amongst various High Court.- it varies from requiring the petitioner to file the petition before the Principal Seat of the High Court or the bench within whose exclusive jurisdiction the particular contested election was conducted. This issue is particular to those states, which share a common High Court (such as Maharashtra and Goa) and those Courts that have different benches, such as Tamil Nadu.

The difference in procedures was brought out above, by citing the examples of the Allahabad and Madhya Pradesh High Courts from Mendiratta's book. This is sought to be remedied by amending section 80A, RPA to provide that in such instances, the election petition shall be filed before the Principal Seat of the relevant High Court, while retaining the High Courts' existing discretion to decide to shift the hearing to another bench in the interests of justice or convenience.

10.16. Secondly, on the parties to the petition, section 82 currently requires a petitioner, who is claiming a declaration that they or any other candidate had been duly elected, to implead all the contesting candidates in the petition. However, to implead those candidates who had lost their security deposits, and hence, have no chance of being declared duly elected, only constitutes a waste of time and resources of both the petition and these candidates. Hence, section 82 on the parties to the petition should be amended to reflect this concern.

10.17. Thirdly, the final formalistic nature in the trial of the election petition is evident in section 86's mandate to summarily dismiss the election petition for non-compliance with the provisions of section 117, RPA on the security of costs. The rationale behind summary dismissal for non-compliance with the forty-five day time limit under section 81 and the requisite number of copies under section 83 is to ensure speedy trial and disposal of the petition.

For instance, until the petitioner does not submit as many copies of the petition as respondents, as required under section 83, the High Court is unable to issue notice to these respondents and hence trial cannot commence. Similarly, granting unfettered discretion to extend the time period beyond the stipulated the forty-five day time limit to file the election petition under section 81 can lead to interminable delays. However, unlike these instances, the election trial can continue even if the petitioner delays in filing the security for costs.

Therefore, section 86 should not permit a summary dismissal on those grounds and instead section 117 should be amended to allow the Court to grant an extension of time, as it deems reasonable, to comply with section 117 and dismiss the petition only on the failure to deposit the security for costs within this extended period. However, it is pertinent to note that currently section 117 provides only for a deposit of Rs. 2000, which is too low and has not been amended since 1996. Hence, the deposit amount should also increase to Rs. 10,000 in line with inflation.

10.18. Fourthly, currently election petitions are inordinately delayed, a fact recognised by the 4th ARC Report on Ethics, which stated that "such petitions remain pending for years and in the meanwhile, even the full term of the house expires thus rendering the election petition infructuous."464

464. ARC Report, supra note 119, at 16

10.19. To understand the extent of delay in the conclusion of trial, it is instructive to look at some facts and figures. The dissolution of the 15th Lok Sabha in February 2014 rendered infructuous 25 election petitions that were pending before the High Court challenging the poll victories of many MPs.465. These petitions, required to be filed within 45 days of the election results under section 81, RPA, and endeavoured to be tried as expeditiously as possible, within six months under section 86(7), were in fact pending for nearly five years.

Nevertheless, based on RTIs filed with the ECI, the Economic Times reported that of the 110 election petitions filed after the 2009 Lok Sabha Elections, none had been decided within six months. In at least 21 petitions, the trial was concluded only after three years. The Economic Times also found that in many cases, the appeal was stalled in the Supreme Court, thus denying the petitioner efficacious relief.466

465. Sanjay Patil, 5 petitions challenging election of MPs, including P Chidambaram to stay 'alive, ECONOMIC TIMES, 28th February 2014,
<http://articles.economictimes.indiatimes.com/2014-02-28/news/47774290_1_electionpetition-election-results-chief-election-commissioner>

466. Id.

10.20. The NCRWC in its 2001 presented the following table regarding the pendency and disposal of election petitions:467

467. NCRWC Consultation Paper, supra note 93, at para 15.1

Election held Number of election petitions filed Number of election petitions pending Percent pending (in %)
Lok-Sabha 1999 64 62 96.88%
Lok-Sabha 1998 49 13 26.53%
Lok-Sabha 1996 52 13 25%
Lok-Sabha 1991 86 15 17.44%
State Assemblies 2000
Bihar 12 12 100%
State Assemblies 1999
Andhra Pradesh 25 25 100%
Karnataka 26 26 100%
Maharashtra 32 32 100%
Arunachal Pradesh 2 2 100%
State Assemblies 1998
Madhya Pradesh 42 32 76.19%
Rajasthan 11 11 100%
Delhi 4 4 100%
Meghalaya 2 2 100%
Himachal Pradesh 10 5 50%
Gujarat 12 7 58.33%
State Assemblies 1996
Assam 11 4 36.36%
Haryana 20 5 25%
Kerala 17 11 64.71%
Tamil Nadu 8 6 75%
Pondicherry 3 3 100%
West Bengal 22 17 77.27%

10.21. Part of the problem lies in the continuous adjournments sought (despite the stipulations in section 86(6), RPA), the low priority accorded by the High Court in conducting and concluding the entire trial, and the almost automatic appeal (on both questions of fact and law) and stay application filed against a High Court's interim or final order.

This results in cases such as Sushma Swaraj's, whose 2009 Lok Sabha election was challenged by Raj Kumar Patel. Ms. Swaraj subsequently challenged the maintainability of the petition, and it took the High Court approximate four years to reject Ms. Swaraj's application in December 2013. Pursuant to this, she filed an interim application (an SLP) before the Supreme Court,468 which was finally dismissed as being infructuous because of the dissolution of the Lok Sabha in May 2014.

Sushma Swaraj v. Raj Kumar Patel, SLP (Civil) No. 2951/2014 on 5th May 2014 Similarly, Congress MLA, P. Veldurai's election to the Tamil Nadu Assembly (Cheranmahadevi constituency) in 2006 was set aside by the Supreme Court in 2011, five years later when he was campaigning for the next assembly elections in Tamil Nadu. P.H. Paul Manoj Pandian v. Mr. P. Veldurai, Civil Appeal No. 4129/2009 decided by the Supreme Court on 13th April 2011. See also Settle Election Disputes Quickly, The Hindu, 8th June 2012,
<http://www.thehindu.com/opinion/editorial/settle-election-disputesquickly/article3501800.ece >

468. SC stays proceedings against Sushma Swaraj on poll petition, Economic Times, 13th February 2014,
<http://articles.economictimes.indiatimes.com/2014-02-13/news/47305406_1_poll-petitionelection-petition-rajkumar-patel>

10.22. These instances and the above facts reveal how inordinate delays defeat the purpose of filing an election petition to challenge the poll victory of the returned candidate. This in turn renders the right to vote illusory when election petitions, the only remedial mechanism provided to the ordinary voter against corrupt practices, are decided or dismissed after a majority or the entire assembly/parliamentary period has passed.

Such a delay is detrimental to democracy, undermines the faith of the people in the electoral and judicial process and therefore, requires courts to give election petitions absolute priority. However, the Goswami Committee's proposal for ad hoc judges to clear the backlog does not address the underlying causes for delay and hence is not preferable.

10.23. One method of achieving this could be through an amendment to the law requiring strict abidance with the six-month stipulation in the RPA and to set up a permanent "election bench" to only deal with election petitions, a modification of the British 'election court' system described below. The delay is also partly a result of the overburdening of judges with other work, and the pressure caused by the pendency, which results in High Court judges reducing the priority in conducting election trials, since they take time and effort.

Similar recommendations were made to constitute "special courts" or "election benches" designated for election petitions in the High Court by the NCRWC;471 "special tribunals" under Article 323B comprising a High Court judge and a senior civil servant were recommended by the 4th ARC.472 The Goswami Committee on the other hand endorsed the appointment of ad hoc judges to relieve the regular judges from their normal duty so as to entrust them with the hearing of the election petitions.473

Moreover, similar to the Law Commission's recommendations to ensure expedited disposal under the Arbitration Act and the Commercial Courts Act in its 246th and 3rd Report respectively, the RPA should be amended to provide for daily hearings, minimum adjournments, time limits for filing written statements and case management.

471. NCRWC Report, supra note 13, at para 4.13.2.

472. ARC Report, supra note 119.

473. Goswami Committee Report, supra note 113, at Chapter IX, para 1.2.

10.24. In this context, it may be mentioned here that the Supreme Court of India, in a judgment pronounced on 27 February 2015, in the matter of Mohd. Akbar v. Ashok Sahu & Ors., Civil appeal No. 2538-40 of 2015, arising out of SLP(Civil) Nos. 2487-2489 of 2015 deemed it desirable to have dedicated Benches created by the Chief Justice of each High Court to deal with the election petitions exclusively.

As the tenure of the members of the Parliament and Legislative Assemblies are relatively short, the Supreme Court felt it desirable that the disputes relating to election are resolved as early as possible. The Supreme Court attributed various reasons for this, such as:

12. ..........

(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.

13. 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) ......

(ii) ......

(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."

10.25. Fifthly, on a related note, while efforts at reducing delay focus on expediting trial, there is no regulation of the time limit within which courts have to pass an order after the conclusion of arguments. This is no different in the RPA and thus, for the first time, the Law Commission is recommending such a time limit.

10.26. Sixthly, the delay in the conclusion of trial extends to the delay caused by the inevitable filing of appeal in the Supreme Court, both as a regular appeal on fact and law provided under section 116A and an interlocutory appeal filed as an SLP. The order of the High Court is subsequently stayed, permitting the returned candidate to remain an MP/MLA subject to certain restrictions. In many cases as noticed above, the petition finally becomes infructuous with the dissolution of the Parliament or Legislative Assembly. Hence, section 116A has to be amended to remove any appeal on fact, and to remove the unfettered discretion of the courts in accepting an appeal filed after limitation.

10.27. Finally, it is difficult to reform the current system of election trials unless there is adequate information available on the extent of the proble.- the number of trials pending, the average time spent in concluding a trial and in hearing the appeal, any courts with best practices etc.



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