[Model Answer QP2022 GS2] Discuss the procedures to decide the disputes arising out of election of a Member of the Parliament or State Legislature under The Representation of the People Act 1951. What are the grounds on which the election of any returned candidate may be declared void? What remedy is available to the aggrieved party against the decision? Refer to the case laws.

Introduction

Article 327 and 328 of the Constitution confers the power on parliament and state legislature respectively to make rules for election to Parliament and state legislature. Consequently the Parliament has passed RPA, 1951 to provide grounds for disqualification of candidates and legislators.

The procedures to decide the election disputes under RPA 1951

Presentation of petitions: By candidate/elector to be within 45 days of the date of the election.
Jurisdiction lies with the High Court : by a Single Judge & Chief Justice & their assigned Judge/s.
Procedure before the High Court: Petition shall be tried by the procedure applicable under Code of Civil Procedure, 1908 & Indian Evidence Act, 1872.
The decision of the High Court: High Court shall make an order for dismissing the election petition/declaring the election any/all of the returned candidates to be void /void /another candidate to have been duly elected.

Grounds on which the election of any returned candidate may be declared void

Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release.
Even if a person is on bail after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.

Case References

Abhiram Singh v/s E.D. Commachen case	The promotion of feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, and community was considered unconstitutional.
Lily Thomas v/s Union of India	The Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires and held that the disqualification takes place from the date of conviction.
Jan Chaukidari v Union of India	all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election

Note: Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.

Remedy is available to the aggrieved party against the decision

Judicial petition: The person in question can file a petition in the high court and subsequently in the Supreme court to challenge the verdict of disqualification.
Right to challenge: The disqualified candidate holds the right to challenge the grounds of disqualification in their respective high court jurisdictions. The disqualification can also be challenged in the form of an appeal at the Supreme Court.
Election Commission:The Representation of the People Act, 1951- Section 11 authorizes and empowers the Election Commission (EC) to remove or reduce any disqualification except the conviction is held under section 8A.
President: Any candidate disqualified under section 8A, that is, on the grounds of corrupt practices may submit a petition of appeal to the President for removal of such conviction and disqualification.

Conclusion

The Representation of People Act (RPA) 1951 promises free and fair elections. RPA 1951 has evolved regarding the concept of corrupt practices which has enabled a voter to exercise his or her right freely and fearlessly.