Election To Parliament Can Be Challenged Only Via Poll Petition: HC

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SRINAGAR — The Jammu and Kashmir High Court on Tuesday said election to either House of the Parliament can be called into question only through election petition even as dismissed a plea by a non-state subject contestant, seeking direction the Election Commission of India to refix the polling date regarding phase-III of polling on May 6 in the Anantnang parliamentary constituency.

“…it is held that the first proviso appended to Clause (b) of Article 329 of the Constitution of India does not affect the bar against calling in question an election to either House of the Parliament, except by an election petition presented to such authorities and in such manner as has been provided by and under the Act of 1951 made by the Parliament,” said a single bench of Justice Ali Mohammad Magrey while dismissing petition filed by Shams Khwaja of Gautam Buddha Nagar in UP, a lawyer, whose fate among the 18 candidates in the Anantnag Lok Sabha seat has been already sealed.

The non-state subject had claimed that he, being a citizen of India, a senior jurist and practicing Advocate based out of Delhi, had submitted his nomination for the Parliamentary Constituency on April 3 which was subsequently held valid on April 5 and after the date of withdrawal on April 8, he among others was declared a contesting candidate from the constituency.

In his petition, Shams submitted that he suffered discrimination at the hands of the local official electoral apparatus at various points in the process thereby tantamounting to sabotaging his electioneering. He submitted that on April 25 on the specific suggestion of the Returning Officer, he submitted his Election Campaign Program for the forthcoming next phase of Election—Districts Shopian and Pulwama and some areas of District Kulgam.

On 26/27 April, Khawaja said that he was informed by the Police Control Room that they are not allowing any political movement in the District for reason of unrest. Khawaja said that he stayed at his base in Pahalgam and could not campaign in District Kulgam for the Phase-II of polling scheduled on April 29.

He also submitted that same yardstick was adopted by the Returning Officer and all the other authorities while denying him to campaign in the areas of District Shopian and Pulwama, by supplying the reasons of security concern.

He said that non-consideration his request for allowing him to campaign in the areas of his choice, notified in advance, was brought to the notice of the Nodal Officer, but of no benefit.  He submitted that denial of the permission by ECI to conduct smooth campaigning in the areas of his choice notified in advance amounts to blacking out of the candidate and violation of his right guaranteed under Constitution and the laws for the whole phase-III.

After hearing both Khawaja and ECI, the court said that the question that falls for consideration is whether the petition under Article 226 and 227 of the Constitution of India against the decision of the Returning Officer is maintainable?

 “Article 329 (of the constitution) opens with the words “Notwithstanding anything in this Constitution” and then Clause (b) says that no election to either House of the 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 authorities and in such manner as may be provided for by or under any law made by the Legislature,” the court said.  The term “election” has been interpreted to mean and include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result, meaning thereby that in terms of the mandate of Clause (b) of Article 329 of the Constitution of India, no step or proceeding can be called in question, except by an election petition, the court observed further.

 “Not only is the bar created by Clause (b), the non-obstante clause with which the Article starts pushes out Section 80 of the Representation of the People Act, 1951, where the dispute takes the form of calling in question an election.” However, the court said, the constitutional provision does not leave an aggrieved person without a remedy. The remedy too is prescribed in the very same provision and that is an election petition, the court said.

 


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