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Synopsis

Supreme Court of India yesterday issued notice in former BJP MP Maneka Gandhi's appeal against Allahabad High Court's dismissal of her election petition challenging the election of Samajwadi Party's Rambhual Nishad in the Sultanpur Lok Sabha elections, 2024.

However, court has refused to entertain the prayer made in Gandhi's petition challenging Section 81 of the Representation of People Act, 1951. While doing so, Justice Surya Kant led bench underlined the need for periodic review of laws to assess their effectiveness and identify deficiencies, if any.

“For every law, there should be a legislative review. Reviews should not only be confined to judicial reviews. There should be legislative reviews of laws from time to time. You may have it every 20 years, 25 years or 50 years,” Justice Surya Kant added.

The bench also comprising Justice N Kotiswar Singh observed there ought to be an “expert body to find out whether a law has worked well, what was the object for which it was enacted, and has it really succeeded in achieving that object”. 

High Court's Lucknow Bench had dismissed Gandhi's petition for being barred by Section 81 read with Section 86 of the Representation of People Act, 1951.

The bench of Justice Rajan Roy had reserved judgment on August 5, 2024.

Court observed that the high court while hearing an election petition does not function as a Constitutional Court per se nor does it have extraordinary constitutional or inherent powers, therefore, the contention of counsel for Mrs Gandhi that the violation of constitutional right and right to information of the voters should have been considered was not acceptable.

Court clarified that the high court while hearing an election petition operates as an Authority under Article 329 (b) of the Constitution of India whose jurisdiction is circumscribed by the statutory provisions contained in the 1951 Act.

"Unless and until the election petition is maintainable and is not barred by limitation, the merits of the matter cannot be considered," held the court. 

Mrs. Gandhi's petition claimed that SP leader Rambhual Nishad did not fully disclose his criminal record in his nomination affidavit, listing only eight cases instead of twelve.

Specifically, the plea alleged that he failed to mention two cases from Pipraich police station and three from Bardhalganj police station in Gorakhpur district.

The petition called for Mr. Nishad's election to be declared void and for Mrs. Gandhi to be declared the winner. Nishad, a former minister from Gorakhpur, had defeated Gandhi in the Sultanpur constituency in the recent Lok Sabha elections by 43K+ votes.

As per Section 81 of the Representation of People Act, 1951, an election petition challenging election of a candidate can be filed within 45 days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.

However, it came to light that though Mr. Nishad was elected on June 4, 2024, and results of the election were declared on June 6, 2024, the present election petition was filed on July 27, 2024 i.e. beyond the period of 45 days prescribed in Section 81 of the Act of 1951.

High Court referred to Section 86 of the Act of 1951 which provides that the high court shall dismiss an election petition which does not comply with the provision of Section 81 or Section 82 or Section 117 of the Act of 1951.

It further stressed that Section 86 (1) of the Act of 1951 is mandatory and in the event an election petition is filed beyond the period of 45 days prescribed in Section 81 of the Act of 1951 the high court does not have any option but to dismiss the election petition in view of provision contained in Section 86 (1) of the Act of 1951.  "There is no provision under the Act 1951 which permits condonation of such delay and extension of the limitation proscribed in Section 81 of the Act 1951 on any ground," said the court. 

Further, referring to the top court's several judgment including Hukumdev Narain Yadav vs. Lalit narain Mishra (1974) and Charan Lal Sahu vs. Nand Kishor Bhatt (1973), the high court held that the Limitation Act, 1963, especially Section 5 thereof, is not applicable to election petitions.

"In fact, the applicability appears to be specifically excluded in view of the provision of Section 86 (1) of the Act 1951 which makes it mandatory for the High Court/ Election Judge to dismiss the election petition if it is not in conformity with the provision of Section 81 of the Act 1951," the single judge bench held.