The article is written by Stuti Jain, from Vivekananda Institute of Professional Studies pursuing B.B.A.LLB (Hons) Course. This article explains whether a judicial review is possible in the decisions of the election commission or not.
Table of Contents
Introduction
Judicial review is the power conferred to Hon’ble High Court and Supreme Court, to check the constitutionality of the acts of legislature or executive. Guarding the fundamental rights and rights of the public is what the main essence of judicial review is. Election Commission of India (ECI), is a constitutional body which is responsible to conduct the state and union elections in India. The ECI has the power to administer the election to Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. The decision of the election commissions, yes, is challengeable by the petitions in High Court and Supreme Court but The judiciary has no power if the election process has begun; the judiciary does not intervene in the actual conduct of the polls. ”Election petitions” are the only way through which, the result of the elections could be reviewed by the judiciary. The EC per se has no power to review the results of the elections. Moreover, this election petition can only be filed before the High Court, in respect of elections to the Parliament and State Legislatures. If in a situation, where the election of President or Vice president is in question, the election petition can only be filed in the Honorable Supreme Court, and even, the High court is barred from the jurisdiction. The jurisdiction of the Civil Court stands barred in election matters.
Power of judicial review in India
Judiciary is considered to be the protector of the Indian Constitution. In India, the constitution is the supreme law of the land. In case parliament makes any law that contradicts the constitution, Judicial review comes as the protector if executive actions are such that it violates the basic feature of the constitution, again, the judicial review comes as a protector. Hence according to Article 13, if any law is passed which is inconsistent with the fundamental right, that is enumerated in part III of the constitution, shall be considered as void. Hence, the power of judicial review is entrusted under Article 226 and 227 in the High court; and Under Article 32 to the Honorable Supreme Court. As per many leading case laws, like (Kesavananda Bharti v. State of Kerala (1973) 4 SCC; Indira Nehru Gandhi v. Raj Narain; Judicial review was considered as one of the basic features of the constitution.
Involvement of judiciary in electoral cases
- As per Article 329, Constitution debars any other court in the land, to entertain a suit or proceeding calling in question any election to Parliament or the State Legislature. The proceedings have to be initiated by an election petition and in such manner as may be prescribed by the statute. In pursuance of clause (b) of Article of the Constitution, Parliament enacted the Representation of the People Act, 1951. Part VI of the Act deals with election disputes. Election petitions are triable by High Court, as provided in the Representation of the People (Amendment) Act,1966. The election petitions are now heard directly by the High Court from which an appeal may be taken to the Supreme Court under Articles 132, 133, and 136. Once the polls are completed and the result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. The High Courts of the concerned states have been conferred with an exclusive jurisdiction to hear election petitions. Any party aggrieved by the decision of the High Court may file an appeal to the Hon’ble Supreme Court Of India. As mentioned above, the election of President and Vice president could not be reviewed by any other court than the Supreme Court of India.
- Election of President and Vice President Article 71(4) provides that the election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.
Subjects primarily under judicial review
There are no particular subject matters under which judicial review is bound to happen, however, in the following cases, the courts have the power to exercise the judicial review:
- In case any law, made by the legislature, is found to be arbitrary and against the basic structure of the constitution, it may be declared void by the courts. It depends on the interpretation of the judges, as to what they seem “arbitrary” and against the constitution.
- Even administrative actions that are infringing in nature could be declared as void under judicial review.
- In the case of Hamdard Dawakhana v. Union of India, the parent act perse was taken into the ambit of judicial review and was declared void on the ground of excessive delegation.
- The fundamental subject of Judicial Review in the present constitution of India relates to – i) Enactment of legislative Act in violation of the constitutional mandates regarding the distribution of powers. ii) Delegation of essential legislative power by the legislature to the executive or any other body. iii) Violation of fundamental rights. iv) Violation of various other constitutional restrictions embodied in the constitution. v) Violation of implied limitations and restrictions.
- As Lord Diplock, who was a High court judge in England and Wales, the judicial review of any administrative action can be exercised on the following grounds as suggested by Lord Diplock:
i) Illegality
ii) Irrationality
iii) Procedural Impropriety /Fairness
Challenges and limitations of the election commission
- EC is considered to be the very baseline of democracy, since the manner in which the elections are going to be conducted, or the leaders that are suitable for the election are all determined by EC per se. The responsibility of EC becomes even more challenging due to the presence of so much diversity in India with different religions, castes, languages, etc. India. In 2004 Lok Sabha elections, there were 1351 candidates from 6 National parties, 801 candidates from 36 State parties, 898 candidates from officially recognised parties and 2385 Independent candidates. The Election Commission employed almost 4 million people to run the election. In order to carry out the elections in India is definitely not an easy task. With such a diversity in the country, the possibility of riots or communal violence is common. In order to maintain peace during the elections, Police, security guards etc. Has to be essentially deployed.
- The EC has a Model code of conduct (MCC) that guides the political parties and candidates for their behaviour, to ensure fair elections. This MCC guides their conduct during campaigns as well. It was much easier for the EC to make sure that such code is abided by in past years. However, with the increasing use of social media and other electronic forms of mediums of communication, it has become more difficult for EC to ensure discipline. What it takes is just some seconds to disseminate the information to a large population through electronic means. Also, it’s very difficult to make any particular person or party liable for the posts on social media. There is a long way to find the solutions for this exact problem.
- It’s the duty of EC to reach out to as many people as possible and convince them to vote. However, it’s not an easy task to do since there are a lot of groups that still don’t have access to TVs or newspapers, or any such media.
Incidents that hinder transparency in the election commission
Transparency is the term for a clear and open process, which is understandable and accountable to the electorate. Transparent procedures encourage participation in and support of the electoral system. Transparency is essential to the electoral process because it eliminates the appearance of impropriety and limits the possibility of electoral fraud.
- In one of the incidents, the EC refused the RTI request, claiming it can’t disclose the dissent for granting the clearances given to politicians for violating MCC. The reasoning that was put forward by the authorities was that it could potentially endanger the life and physical safety of a person or assistance given in confidence for law enforcement or security purposes.
- The electoral bonds were introduced with the Finance Bill (2017). An electoral bond is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of State Bank of India. The citizen or corporate can then donate the same to any eligible political party of his/her choice. The main problem of transparency accompanied by these electoral bonds is that one can’t make anyone accountable for the funding that the political parties receive.
Do judicial interference guarantee transparency and fair elections
Cases where judicial interference has helped in a positive way
- This is one example where courts have looked into the matter and made the EC realize about the duty that they are entrusted with. At one of the incidents, The honourable Supreme Court summoned representatives of EC and expressed their displeasure over the “hate speech” delivered by BSP supreme Mayawati and UP Chief Minister Yogi Adityanath during their campaign. The EC took further action, by barring the two leaders from campaigning for 72 hours and 48 hours, respectively.
- In some of the cases, the EC might act arbitrarily. The courts hence might use their powers to combat it. EC’s decision to disqualify 20 members of AAP for holding the office of profit, was held to be bad in law by the High court since they were not given the opportunity to be heard. The case was referred back to the EC for a fresh hearing.
Cases where judicial interference might cause problems
The Supreme Court in itself has in many cases refused to review the elections matters. a third party’s request to the Supreme Court to review the decision of EC was rejected by the Supreme Court. EC is in itself a constitutional body. There might be incidents where the parties might not be satisfied with the decisions of EC. In this case, it’s not possible that each of such aggrieved parties applies for the judicial review of the decisions of EC.“ Rightly or wrongly, the EC has decided the issue. You can now challenge it in separate writs,” said the bench led by CJI Ranjan Gogoi.
Landmark judgments
Indira Nehru Gandhi v. Raj Narain
In this case, Raj Narain was a politician who was standing against Indira Gandhi for elections. Ms Indira Gandhi won the elections with a sweeping majority. But Raj Narain filed a case in court for malpractice. The court held in favour of Raj Narain, and hence ordered that Ms Gandhi couldn’t continue to be the PM of the nation. Aggrieved by this decision she appealed to the Supreme Court. However, while the appeal was pending in the Supreme Court, an emergency was declared by the President due to internal disturbance. Also, during that period, the 39th amendment was passed, according to which the elections of the president, PM, vice-president and speaker of Lok- Sabha were out of the jurisdiction of the judicial review by courts. Hence barring the Supreme Court of the jurisdiction to entertain the said matter.
Hence, the legality of the 39th Amendment was challenged in this case. The court held the amendment to be illegal and arbitrary. The court held that the basic structure of the Indian constitution must be kept in mind. Judicial review is one of the basic structures. Such an amendment was a danger to the free and fair election theory on which our country works.
Km. Shradha Devi v. Krishna Chandra Pant and Others
In this case, an election petition was filed which challenged the election of Shri Krishna Chandra Pant, held in 1978. 11 votes out of 421 votes were invalidated. Such invalidation was challenged in the High court. These votes had been cast under the system of proportional representation using a single transferable vote. The High Court allowed the inspection of only 4 of the 11 invalid votes, on the ground that the petitioner had given details about the rejection of these 4 votes only in her election petition. papers, only 2 were considered and it was found that the petitioner still lost the election. The petitioner appealed to the Supreme Court against this order, where the High court order was set aside. The Supreme Court was of the view that all 11 of the votes should have been examined. The Supreme Court held that the petitioner had to offer prima facie proof of errors in counting and if errors in counting were established, by providing proof of some errors in respect of some ballot papers, scrutiny and recounting could not be limited to those ballot papers only and that a recount could be ordered of all disputed ballot papers. The Supreme Court, therefore, sent the case back to the High Court for the reexamination of the case by a re-scrutiny of all the 11 ballot papers under dispute.
Election Commission Of India v. Ashok Kumar & Ors.
In Election Commission Of India vs Ashok Kumar & Ors., While exercising the powers conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of India issued a notification published, according to which the areas where the voting was to be done by ballot paper, the counting of such votes were to be done by mixing the ballot papers and not station wise. Writ petitions were filed before the High court against this particular notification, claiming that the counting must be done station- wise. The High court ordered in favour of the petitioner. Aggrieved by this order, the ECI filed an SLP in the Supreme Court. The Supreme Court overturned the order of the High court, claiming that, according to Article 329(b), the elections couldn’t be called in question until the process is not finished.
Conclusion
The judicial review of an election process can’t be done. But it doesn’t mean it gives unfettered power to the ECI. The decision of the ECI could be challenged by the courts. Also, during the election process, judicial intervention couldn’t be sought. This is to avoid any further delays of the election process, because if in case the judicial intervention takes a long time to scrutinize the case and give its judgements. The courts are the peace-keepers of our country, hence, there are times when the courts have directed the ECI to improve or to monitor the election processes and to make sure that the MCC is followed properly.
References
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