This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This is an exhaustive article analysing the hypertechnical errors by the returning officer in the nomination application in the case of Ujjwal Kumar v. Chief Election Commissioner & Ors.
The Election Commission of India is a constitutional body empowered to conduct the state and union elections to Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. Their decision can be challenged by way of petitions before the high courts and the Supreme Court subject to certain provisions which restrict this judicial intervention once the election process has begun. The only remedy here is by way of an election petition to get the results of the election reviewed by the judiciary. In the present case of Ujjwal Kumar v. Chief Election Commissioner & Ors (2021), the writ jurisdiction of the Court was invoked based on the hypertechnical error made upon the checking of the nomination application which has been dealt with elaborately under the following subheads.
Brief facts of the case
The petitioner, Mr. Ujjwal Kumar, had applied for the nomination of a candidate for Trinamool Congress in the election for the Assembly Constituencies from Jaipur constituency in Purulia district but his application was rejected by the Election Commission (EC) citing an error in his affidavit. The returning officer rejected the nomination citing the reasons as the blank left in the third dependent column and no mention on whether any dues are left pending over a government accommodation. Aggrieved by this decision of the Election Commission, Kumar moved to the Calcutta High Court under Article 226 of the Indian Constitution on 11th March 2021 via video conferencing.
The contention of the petitioner
The counsel appearing for the petitioner argued on the following grounds:
- That the grounds assigned for the rejection of the nomination of the candidature in the checklist of documents were bad in law.
- That the column that has been alleged to have not been filled up by the petitioner is not applicable in the first place as it pertains to the third dependent of the electoral candidate.
- Relying on the concerned form and proforma, it is evident that the question of the third dependant would only arise when dependant nos.1 and 2 are mentioned.
- That the petitioner has already in his application disclosed that he has no dependant at all, therefore there is no question of naming any third dependant.
- That according to Section 36(5) of the Representation of Peoples Act, 1951, the rejection of the nomination candidature by the returning officer shall not be on any grounds of defect which are not of substantial characters such as an interruption by riot or open violence or situation beyond the control.
- That the ground was far from being substantial rather the non-mention of the third dependant was rather redundant and does not qualify as a defect in its true sense.
- That no opportunity to present was given to the petitioner in contravention to Section 36(5) of the Representation of Peoples Act, 1951. The mentioned Section provides that the candidate must be allowed time to rebut at least one day after the date of scrutiny.
- That no reason was furnished in the document uploaded on the official website for rejecting the nomination candidature of the petitioner, which is contrary to law.
- The other defect that was pointed out by the officer scrutinizing the nomination application was leaving vacant the column of declaration as to the address of petitioner’s government accommodation and any dues that remain payable. However, it is not applicable to the petitioner as the petitioner does not have any government accommodation and therefore the fulfillment of such conditions is hyper-technical in nature.
- Further, the petitioner still submitted a corrected form to the concerned officer the very next day, which was however not considered.
- That the service of copies of the writ petition and on mention of the matter being taken out of turn, the respondents did not appear.
Reasoning and decision of the Court
After the submissions of the contentions from the counsel for the petitioner, the Court went on to dispose of the matter ex parte considering the extreme urgency of the matter since the very next day was the last date for withdrawal of candidature. The Court referred to the relevant documents cited by the counsel and observed that the defects as pointed out by the concerned authorities were not of substantial nature and were not defects in a true sense since the columns left blank were not applicable to the petitioner as has been disclosed. Further, the right of hearing in pursuance of Section 36(5) of the Representation of Peoples Act, 1951 ought to have been given to the petitioner.
The Court set aside the impugned rejection, which was uploaded on the official government website, for being contrary to the law. It directed the respondents to permit the petitioner in the oncoming elections and consider the nomination application and attached affidavit as valid and in accordance with the law. Further, it stated that the respondents are to act based on this communication and not insist on producing a prior production of a certified copy.
Upon receiving the order of the Single Judge for considering the petitioner’s application, the respondents (now appellants) filed for an intra-court appeal challenging the aforementioned decision. The appeal was primarily based on the plea that the order was given by the Single Judge on the face of the bar on the courts from interfering in electoral matters of either House of Parliament or to the House, or either House of the Legislature of a State which is imposed under Article 329(b) of the Constitution of India. Further, the impugned order in this appeal was issued without notice to the statutory authorities involved under the Representation of Peoples Act, including the concerned returning officer.
In support of the appeal, the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi & others (1978) was referred. Herein, the appellant and the third respondent were candidates for election in the Parliamentary constituency. It was alleged by the appellant that at the final hour of counting when it seemed as he had won the election, mob violence broke out at the instance of respondent no.3, and certain postal ballots papers and ballot boxes were all destroyed which led to the postponing of result declaration by the returning officer. Thus, the poll was cancelled and a re-poll was ordered in the entire constituency. A petition was then filed under Article 226 alleging the cancellation of the poll as arbitrary and violative of a vestige of fairness. The respondents urged that the High Court has no jurisdiction to entertain the writ petition in view of Article 329(b) and the Commission’s action was within the powers under Articles 324 and 273. To that end, the HC dismissed the petition.
It was held that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality, or otherwise of the direction for cancellation integrated with the repoll. Article 329(b) imposes a blanket ban on the litigation challenge to electoral steps taken by the Election Commission. That the sole remedy for anyone who wants to challenge any election is an election petition. Other remedies are excluded due to the non-obstante clause used in Article 329(b). Part XV of the Constitution in itself covers the whole mechanism for the conduct of elections. Thus, these provisions read with the Act speak substantially the same language and form an integral scheme.
Moreover, paragraphs 28 and 30 of the case of the Election Commission of India v. Ashok Kumar (2000) were specifically referred to which stated that election disputes are not like other private civil disputes just between two parties since the stakes of the whole constituency are on trial. Extreme approaches need to be avoided in the determination of the fate of the constituency and the citizens in general. It has been held earlier by the Constitution Benches that the RP Act only provides for one remedy being an election petition which is to be presented after the election is over and not in any intermediate stage. The extent of Article 329(b) which has an overriding effect over Article 226 depends on the non-obstante clause which pushes out Article 226 in the case where dispute takes place in the form of calling in question an election.
While the respondents, in this case, argued that seeking judicial review in relation to the noted defects in the nomination application and the resultant decision will not amount to interrupting, obstructing, or protracting the election proceedings when any related question is raised before the decided time for withdrawal of the nominations. Further, there was no substantial defect in relation to the concerned material papers of the writ petition.
Decision-based on analysis of the error
The Court then examined Section 36(4) and Section 100(1)(c) of the Representation of Peoples Act and noted that the election process entails a stage of scrutinizing the nomination papers whose results are available for adjudication as per Section 100(1)(c). To that end, under Section 100(1)(c), the ground for improper rejection of nomination is void in the present case. Similarly, under Section 36(4), the returning officer shall not reject any nomination paper based on defects that are not of substantial nature. Correlating improper rejection and defect, not of substantial nature would favour keeping the issue open for consideration of the election petition. Both these grounds essentially form mixed questions of facts and law and can easily be understood comprehensively under Chapter III in Part VI of the Act. The Court said “such questions are not to be decided by writ court merely as if it is a jurisdictional issue or an issue of law only”
The Court then relied on the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. & others (1952), and on Manda Jaganath Vs. K.S. Rathnam and others (2004) wherein it was quoted that “The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded) and another after they have been completed by means of an election petition.”
Based on such views, the Court held that the possible erroneous actions of the returning officer which can be considered as amenable for correction in the writ jurisdiction will need to have the effects of obstructing/interfering with the free flow of the scheduled election or hinder the progress of the election. Thus, the Court under Article 226 cannot interfere with the orders of the returning officer if the conduct of the election is not hindered by the alleged erroneous order and the remedy for it lies in the election petition considering the progress of the election.
Thus, the order of the Single Judge was set aside and the appeal succeeded.
Thereafter the aggrieved candidate decided to move to Supreme Court after the decision of the Single Judge was set aside by the Division Bench. The petitioner filed a special leave to appeal before the Supreme Court through video conferencing on 25th March 2021 and the Court ordered to list the matter after the Holi holidays. Later on 9th April 2021, the Court dismissed the special leave petition as the petitioner prayed for withdrawal of the petition with liberty to seek remedy in accordance with the law.
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