Election petition not an action at common law, but a special jurisdiction: Supreme Court

The Supreme Court on Thursday opined that an Election petition is not an action at common law, nor in equity, but a special jurisdiction to be exercised in accordance with the statute creating it.

"...a right to elect, though fundamental it is to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. Similarly, right to be elected and the right to dispute an election are also statutory rights. Since they are statutory creations, they are subject to statutory limitations", a bench of Justices Ajay Rastogi and Bela M Trivedi has observed.

It has been further observed that the concept familiar to common law and equity must remain strangers to election law unless statutorily embodied.

"Thus, the entire election process commencing from the issuance from the notification calling upon a constituency to elect a member or members right upto the final resolution of the dispute, concerning the election is regulated by the Representation of People Act 1951. The said R.P. Act therefore has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election dispute", the judgment adds.

These observations have been made by the division bench while dismissing an election petition filed against DMK leader Kanimozhi Karunanidhi, who was elected as a Member of Parliament from Thoothukudi Lok Sabha constituency in 2019.

Court noted that Kanimozhi had filed applications seeking dismissal of the Election petition in limine, for the non-compliance of the provisions of Section 83(1)(a) of the RP Act, read with Order VII, Rule 11 of CPC.

With regard to the non-compliance of the requirement of Section 83(1)(a) of the RP Act, namely - “an Election petition must contain a concise statement of material facts on which the petitioner relies", Court said that such non-compliance may entail dismissal of the Election Petition right at the threshold.

"“Material facts” are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election petition on the basis of the facts pleaded in the petition. They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact", top court has held.

Referring to the precise allegations made by the respondent-election petitioner, the Supreme Court opined that it clearly transpired that the election petitioner had made very bald and vague allegations without stating the material facts as to how there was non-compliance of any of the provisions of the Constitution of India or of the RP Act or of the rules made thereunder.

"Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition. As well settled not only positive statement of facts, even a positive statement of negative fact is also required to be stated, as it would be a material fact constituting a cause of action. The material facts which are primary and basic facts have to be pleaded by the Election petitioner in support of the case set up by him to show his cause of action and omission of a single material fact would lead to an incomplete cause of action, entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) CPC read with Section 83(1)(a) of the RP Act", the Court has held in conclusion.

Case Title: KANIMOZHI KARUNANIDHI vs. A. SANTHANA KUMAR & ORS