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The Domain and Power of the High Courts in the Adjudication of Election Disputes
by S. Rahul & P.B.V. Nageswara Rao*
Cite as : (2001) 8 SCC (Jour) 6
Article 329(b) of the Constitution states:
"329. Notwithstanding anything in this Constitution-
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature."
By virtue of Article 246(1) read with Schedule VII List I Entry 72 and Article 327 of the Constitution, Parliament is the appropriate legislature to designate the authority that shall adjudicate election petitions. The power to name an authority for the presentment of an election petition and the manner in which such an election petition is to be presented is vested solely with the appropriate legislature i.e. Parliament.
Parliament has enacted Section 80-A of the Representation of the People Act, 1951 providing that the "High Court" shall be the authority for presentment of election petitions under Article 329(b) of the Constitution. This was incorporated by an amendment in the year 1966 (Act 47 of 1966). Prior to this amendment, election petitions were presented to the Election Commission, which would constitute one-member Election Tribunals of the rank of District Judge, on an ad hoc basis for the trial of election petitions.
Chapters II and III of Part VI of the Representation of the People Act, 1951, lay down the procedure to be followed for the adjudication of election petitions. Various High Courts have framed rules for the trial of election petitions pursuant to being designated, by Section 80-A of the Representation of the People Act, 1951, as the authority for hearing election petitions.
In the light of the above, a question that arises is: "Are the High Courts empowered to make rules for the trial of election petitions?" It is the endeavour of the authors to address this precise issue in the present paper.
Article 329(b) of the Constitution begins with the words: "Notwithstanding anything in this Constitution...." This is a non obstante clause addressing a particular issue, in that it deals especially with election petitions, and therefore overrides every other provision of the Constitution that confers general powers, if any, implicitly on the judiciary to deal with the same.
Let us consider a hypothetical situation where the appropriate legislature has designated the Chief Secretary of the State as the authority to try an election petition, with all the other provisions of the Representation of the People Act, 1951, being as they are. Then, pertinent questions that would arise are: can the Chief Secretary frame rules generally and for the trial of the election petition? Can the Chief Secretary have the power to punish for any contempt committed in that context? The answer to these would be in the negative. The reasons for this being that the Representation of the People Act, 1951, vests in the Central Government the rule-making power under Section 169, after consultation with the Election Commission. So, none can frame any rule or exercise any power unless an enabling provision is included in the Representation of the People Act, 1951, authorising the same. The case-law of the Supreme Court seems to support this view. In N.P. Ponnuswami v. Returning Officer1, a Constitution Bench of the Supreme Court, consisting of six Judges unanimously held that Part VI of the Representation of the People Act, 1951 read with Article 329(b) of the Constitution constituted a complete code with regard to election disputes. The Supreme Court further observed that the Representation of the People Act, 1951 is a self-contained enactment so far as elections are concerned, meaning thereby that whenever the court has to ascertain the true position in regard to any matter connected with elections, the court has to look at the Representation of the People Act, 1951 and the Rules made thereunder only. In Mohinder Singh Gill v. Chief Election Commr.2, a five-Judge Bench of the Apex Court while reiterating the law laid down in Ponnuswami case1 opined that, the non obstante clause in Article 329 of the Constitution was quite apt to exclude the jurisdiction of the High Court. From the law laid down in these cases it can be concluded that the High Court acting as the authority under Section 80-A of the Representation of the People Act, 1951 can exercise powers within the four corners of the Representation of the People Act, 1951 only, in view of the limitations imposed by Article 329(b) of the Constitution.
In Satya Narain v. Dhuja Ram3, the Supreme Court observed that in the absence of any provision under the Act or the Rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act.
However, in Nawab Khan v. Vishwanath Shastri4, the question that fell for consideration was whether the presentation of an election petition to the Registrar under Rule 3, Chapter XV-A of the Allahabad High Court Rules, 1952 was lawful compliance of the provisions of Section 81 of the Representation of the People Act, 1951. The Court also took cognisance of the fact that Section 80 prohibits any election from being called in question except by way of an election petition presented in accordance with the provisions contained in Part VI of the Representation of the People Act, 1951. It held that when no manner of presentation of an election petition to the High Court is prescribed by the statute or the Rules framed thereunder then it is open to the High Court to frame appropriate rules to discharge its constitutional and statutory duty, namely, trial of election petitions.
An examination of the Rules framed by the High Court of Andhra Pradesh, namely, "Rules to Regulate the Trial of Election Petitions under the Representation of the People Act, 1951", might be undertaken to bring home the issues.
The Preamble to the Rules made by the High Court of Andhra Pradesh states that the High Court of Andhra Pradesh derives the power to frame the Rules in question under the following provisions:
(a) Clause 37 of the Letters Patent of the High Court of Madras;
(b) Section 32 of the Andhra State Act, 1953;
(c) Section 129 of the Code of Civil Procedure, 1901; and
(d) All other powers hereunto enabling.
Clause 37 of the Letters Patent of the High Court of Madras derives its validity after adoption of the Constitution in 1950, from Article 225 of the Constitution. This same general power cannot stand in the way of Article 329(b) of the Constitution, which begins with a non obstante clause with regard to a specific area, namely, election petitions. Therefore, the maxim generalia specialibus non derogant is applicable and Article 329(b) of the Constitution prevails, denying the High Courts any implied or inherent rule-making power that they may have in matters within the purview of Article 329(b).
Section 32 of the Andhra State Act, 1953, provides that the Letters Patent of the High Court of Madras shall apply mutatis mutandis to the High Court of Andhra, and therefore, it is also overridden by Article 329(b) of the Constitution with regard to election petitions as explained above.
Section 129 of the Code of Civil Procedure, 1908, talks of the power of the High Court to frame rules in respect of its original civil jurisdiction. Here one has to look at the nature of the authority trying election petitions. Any authority trying election petitions does so by virtue of being vested with such power by the appropriate legislature, as stipulated under Article 329(b) of the Constitution, and any other position which it/he may be holding otherwise is extraneous in this context. Thus, the High Court when it sits to adjudicate election petitions is an authority appointed by the appropriate legislature under Article 329(b) of the Constitution. The High Court is, therefore, not trying an original civil suit to assume unto itself the incidental rule-making power vested in it under Section 129 of the Code of Civil Procedure.
Article 225 of the Constitution saves the inherent jurisdiction and powers of the High Court after coming into force of the Constitution. However, since Article 225 of the Constitution begins with the words: "Subject to the provisions of this Constitution ...", this inherent power is overridden by an express prohibition of the nature of Article 329(b) of the Constitution.
The High Court cannot, thus, exercise any power, when adjudicating election petitions in the capacity of the authority designated by the appropriate legislature under Article 329(b) of the Constitution and Section 80-A of the Representation of the People Act, 1951, which it is not vested with, by the designating legislation. The reasoning for this stems from the fact that the authority designated under Article 329(b) of the Constitution can act only in the manner provided under the legislation framed in this regard by the legislature, namely, the Representation of the People Act, 1951. As already stated above, Section 169 of the Representation of the People Act, 1951, provides that the Central Government alone is empowered to make Rules after consultation with the Election Commission and in sub-section (3) thereof the Rules have to be laid before each House of Parliament for obtaining the approval in the manner provided therein.
The above view gets reinforcement if one examines the relevance of Section 117 of the Representation of the People Act, 1951 which requires the parties to make deposit in accordance with the Rules of the High Court. That means the High Court has its own Rules independent of the Rules to govern election petitions.
Another interesting aspect that one finds is that whereas Section 80-A(2) of the Representation of the People Act, 1951, stipulates that a Single Judge of the High Court shall ordinarily preside over the Bench constituted for this purpose, Rule 14(a)(ii) of the High Court of Andhra Pradesh Writ Proceedings Rules, 1977, provides that petitions relating to elections under the Representation of the People Act, 1951, shall be heard by a Bench of two Judges5
It is submitted that in the first place, the High Court does not have the power to fix the quorum contrary to the Representation of the People Act, 1951, though the High Court may have the power to do so with regard to all other matters generally. For example, see Rule 14 of the A.P. High Court Writ Proceedings Rules, 1977. In any case, the High Court does not have the power to frame rules to decide the number of Judges that would preside over the Bench to adjudicate election petitions, especially so, under the High Court of Andhra Pradesh Writ Proceedings Rules, 1977. It is pertinent to note that the High Court does not adjudicate election petitions in the capacity of a High Court but as the designated authority under Article 329(b) of the Constitution and Section 80-A of the Representation of the People Act, 1951.
The Full Bench of the High Court of Rajasthan in Ramdhan v. Bhanwarlal6 held that the High Court while trying an election petition under Section 80-A(2) of the Act is only acting in its ordinary jurisdiction as a court and the power to hear an election petition is conferred upon the High Court not by way of constituting a Special Tribunal having special jurisdiction but by extending the ordinary jurisdiction of the High Court to hear and decide election petitions. Thus, it held that the Single Judge of the High Court hearing an election petition functions as a High Court and not as a Special Tribunal or as a persona designata. It followed the view taken in this regard in Chhotalal Jivabhai Patel (Dr) v. Vadilal Lallubhai Mehta7, Kadiravan v. R. Thirumalaikumar8 and by the High Court of Madhya Pradesh in Laxmi Narayan Nayak v. Ramratan Chaturvedi9 These have, however, been overruled by the Supreme Court in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki10
In Upadhyaya v. Dhirendrasinh10 it was held that insofar as the jurisdiction and the right of appeal were concerned, no other Judge or Judges other than the Single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers under Section 116-A of the Representation of the People Act, 1951, in respect of orders passed under Sections 98 or 99 of the Act or under Article 136 of the Constitution in respect of other orders, can have any jurisdiction to deal with any matter arising out of election petitions filed under the Representation of the People Act, 1951. The Supreme Court further held that the Division Bench of the High Court which is normally entitled to hear an appeal against any order of a Single Judge under clause 15 of the Letters Patent of the High Court cannot hear an appeal against any interlocutory order passed in the course of the trial of an election petition as the Division Bench is not specified in the Representation of the People Act, 1951, as an appellate authority which can deal with questions arising out of an election petition. It was also held that conferment of the power to try an election petition does not amount to enlargement of the existing jurisdiction of the High Court. It held that it cannot be said that when once the jurisdiction to try an election petition is conferred on the High Court all other powers incidental to the ordinary original jurisdiction exercised by a Single Judge of a High Court would become applicable to an election petition filed under the Act.
A related issue which is closely associated with the present discussion and which comes up for consideration is, while trying an election petition, does the High Court have jurisdiction to take action for contempt of court? Addressing this issue, the Supreme Court in T. Deen Dayal v. High Court of A.P.11 held that the High Court has jurisdiction to take action for contempt of court as a court of record under Article 215 of the Constitution while trying an election petition. The reason for such a conclusion was that Section 80-A of the Representation of the People Act, 1951 provides that "the court having jurisdiction to try an election petition shall be the High Court". The jurisdiction to try an election petition is thus given to a court i.e. the High Court. The authority designated being the High Court, it therefore has the jurisdiction to take action for contempt of court as a court of record under Article 215 of the Constitution while trying an election petition.
It is submitted that the above reasoning of the Apex Court shall have far-reaching consequences. It is feared that by upholding contempt power in the face of the non obstante clause in Article 329(b) may pave the way for reading more powers with the High Courts. It would ultimately go against the very principle which was enshrined in Article 329(b) of the Constitution. By the mere use of the word court in Section 80-A of the Representation of the People Act, 1951 can it be concluded that all the powers of the court were sought to be vested by the legislature, in contradistinction to all the other express provisions pointing to the contrary?
- AIR 1952 SC 64
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- (1978) 1 SCC 405
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- (1974) 4 SCC 237
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- AIR 1993 All 104
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- (In practice though, it is noticed that election petitions are posted before and are tried by a Single Judge.)
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- AIR 1985 Raj 185 (FB)
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- (1971) 12 Guj LR 850
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- ILR (1970) 2 Mad 183
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- AIR 1986 MP 165 (FB)
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- (1988) 2 SCC 1
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- (1997) 7 SCC 535
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