Report No. 255

Chapter III: Trial of Election Petitions

86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.

(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned designated by the Chief Justice as the election bench for the trial of election petitions under sub-section (2) of section 80A.

(2A)(1) There shall be one or more election benches, comprising of one or more judges, as designated by the Chief Justice of the High Court under Section 80A(2), which shall only be dealing with election petitions presented in accordance with the provisions of this Part.

(2) The trial of an election petition shall be continued from day to day until its conclusion, and the election bench shall not grant any adjournments unless sufficient cause is made out and may impose costs, including exemplary costs, on the party seeking the adjournment.

(3) Every election petition shall be tried as expeditiously as possible and trial shall be concluded within six months from the date on which the election petition is presented to the High Court for trial.

Provided that if the trial is not concluded within six months, the designated election bench shall, for reasons to be recorded in writing, explain the cause for delay in a report to the Chief Justice of the High Court.

(4) The respondent(s) shall file the written statement within forty-five days from the date of service of summons.

Provided that if the election bench is satisfied that the respondent(s) were prevented by sufficient cause from filing the written statement within the said period of forty-five days, it may entertain the written statement within a further period of fifteen days, but not thereafter.

Provided further that on expiry of such fifteen-day period, the respondent(s) shall forfeit the right to file the written statement and the election bench shall not allow the written statement to be taken on record thereafter.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same election bench that Judge who may, in his its discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shall, ..... .....

(5) The High Court may, upon such terms as to costs ..... .....

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(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.

(6) < deleted >

(7) < deleted >

98. Decision of the High Court.- At the conclusion of the trial of an election petition [the election bench of the High Court] shall make an order-

(a) dismissing the election petition; or

(b) declaring the election of [all or any of the returned candidates] to be void; or

(c) declaring the election, of [all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected.

Provided that such order of the election bench shall be made within ninetydays from the conclusion of arguments.

98A. Collection and disclosure of data by the High Court.- (1) Complete information regarding the number of election petitions filed and pending, the status of each petition, the names of the parties, and designated election bench shall be maintained and constantly updated by each High Court on its website.

(2) The Election Commission shall prepare an annual report compiling the information mentioned in sub-section (1) from all the High Courts, and shall publish the said information annually on its website.

99. Other orders to be made by the High Court.- (1) At the time of making an order under section 98 [the election bench of the High Court] shall also make an order-

[(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording-

(i) a finding whether any corrupt practice has or has not been proved to have been committed *** at the election, and the nature of that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and]

(b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid:

Provided that [a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless-

(a) he has been given notice to appear before [the election bench of the High Court] and to show cause why he should not be so named; and

(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by [the election bench of the High Court] and has given evidence against him, of calling evidence in his defence and of being heard.

[(2) In this section and in section 100, the expression "agent" has the same meaning as in section 123.]

100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the election bench of the High Court is of opinion-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the election bench of the High Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the election bench of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice *** but the High Court is satisfied-

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent;

* * * * *

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt ***
practice on the part of the candidate or any of his agents, then the election bench of the High Court may decide that the election of the returned candidate is not void.

102. Procedure in case of an equality of votes.- If during the trial of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates,-

(a) any decision made by the returning officer under the provisions of this Act shall, in so far as it determines the question between those candidates, be effective also for the purposes of the petition; and

(b) in so far as that question is not determined by such a decision the election bench of the High Court shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote.