Article 329(b) and Election Petitions

Article 329(b) of the Constitution says that an election to Parliament or a state legislature can be challenged only through an election petition, filed before the authority and in the manner set by law. In simple words, once an election process starts, courts cannot stop or interrupt it through ordinary cases. Anyone unhappy with how the election was run must wait until the result is declared and then file an election petition. Today, election petitions are heard by the High Court.

Why does it exist?

Imagine a cricket match where any player could stop the game midway to argue every umpire decision in court. The match would never finish. Elections are similar. India holds elections to hundreds of seats on a fixed timetable. If every rejected nomination or disputed order could be taken to court while voting is under way, elections could be delayed endlessly. Article 329(b) makes sure the election is completed first, and disputes are settled afterwards in one proper forum.

What does Article 329 say?

It opens with "Notwithstanding anything in this Constitution", which means it overrides other provisions.

• Clause (a): Laws on delimitation (drawing constituency boundaries) or allotment of seats, made under Articles 327 or 328, cannot be questioned in any court.
• Clause (b): No election to either House of Parliament or a state legislature can be questioned except by an election petition, presented to an authority and in a manner provided by law.

Parliament made this law: the Representation of the People Act, 1951 (RPA), Part VI, "Disputes regarding elections".

Where did it come from?

Key milestones:

• N.P. Ponnuswami v. Returning Officer, Namakkal (1952): This was one of the Supreme Court's earliest election cases. A candidate's nomination for the Madras Assembly was rejected, and he went to the High Court under Article 226. The Supreme Court held that the word "election" in Article 329(b) covers the whole process, from the notification to the declaration of the result. So even a wrongly rejected nomination can be challenged only through an election petition after the election.
• Election Tribunals abolished (1966): At first, election petitions were heard by special Election Tribunals. The Constitution (Nineteenth Amendment) Act, 1966, along with changes to the RPA in the same year, ended this system. Election petitions now go to the High Court.
• Article 329A (1975): The 39th Amendment added Article 329A to place the elections of the Prime Minister and the Speaker beyond ordinary court review. In Indira Nehru Gandhi v. Raj Narain (1975), the Supreme Court struck down clause (4) of Article 329A because it violated the basic structure of the Constitution. The 44th Amendment, 1978 removed Article 329A altogether.
• Mohinder Singh Gill v. Chief Election Commissioner (1978): The court again read "election" in the widest sense and confirmed that the bar in Article 329(b) is strong.
• Election Commission of India v. Ashok Kumar (2000): The court drew a fine line. A court case that helps the election move forward (for example, correcting an order that would prevent a fair election) is not "calling in question" the election. But courts must be very careful and should not interrupt or delay the process.

How does an election petition work, step by step?

1. Who can file: Any candidate, or any elector (voter) of that constituency (Section 81).
2. Where: The High Court of the state (Section 80A). Usually a single judge hears it.
3. When: Within 45 days from the date the winning candidate is declared elected (Section 81). Late petitions are dismissed.
4. Trial: The High Court should try to finish the trial within six months (Section 86(7)).
5. Result: The court can dismiss the petition, declare the election void (Section 100), or declare another candidate elected (Section 101).
6. Appeal: Either side can appeal to the Supreme Court within 30 days of the High Court's order (Section 116A).

On what grounds can an election be declared void?

Section 100 lists the grounds. The main ones are:

• the winner was not qualified or was disqualified on the date of election;
• a corrupt practice was committed by the winner or their agent (bribery, undue influence, appeal on religion or caste, and others under Section 123);
• a nomination was improperly rejected (Section 100(1)(c));
• a nomination was improperly accepted, or votes were wrongly received or refused, and this materially affected the result.

Note an important difference: for an improper rejection, the petitioner does not need to prove that it changed the result. The law treats wrongly keeping a candidate out of the contest as serious enough in itself.

India's practice

Election petitions follow every general election. Data compiled by civil society groups show that on average more than 60 election petitions are filed after each Lok Sabha election, with the highest, 130, after the 2019 election. Elections to the Rajya Sabha are also covered by Article 329(b), so disputes about them also go to the High Court through an election petition.

Commonly confused concepts

• Article 329(b) vs Article 71: Disputes about the election of the President or Vice-President are decided only by the Supreme Court (Article 71). Disputes about elections to Parliament and state legislatures go first to the High Court (Article 329(b) with the RPA).
• Election petition vs writ petition: A writ petition (Article 32 or 226) is a quick way to enforce rights against the State. An election petition is a special, time-bound case under the RPA. For election disputes, the writ route is generally closed.
• Article 329(a) vs 329(b): Clause (a) protects delimitation laws from court challenge. Clause (b) routes election disputes into election petitions.
• Disqualification decided by the President vs an election petition: If an MP becomes disqualified after being elected, the President decides under Article 103, acting on the Election Commission's opinion. An election petition deals with defects in the election itself.

Issues, criticism and the way forward

• Delay: The law asks for a six-month trial, but many petitions take years. Sometimes the legislator's term ends before the case is decided, so the remedy becomes meaningless.
• No quick remedy: A person whose nomination is wrongly rejected cannot contest that election. The remedy comes only after the election is over, and a fresh election has to be held if they win the case. Critics argue for a limited, fast-track pre-poll remedy for obvious errors.
• Heavy load on High Courts: Election petitions add to already busy High Courts.
• Way forward: Suggestions include dedicated benches for election petitions, strict timelines, and clear guidelines for Returning Officers so that fewer disputes arise in the first place.

Concepts to Know

• Writ petition: A case filed directly in the Supreme Court (Article 32) or a High Court (Article 226) asking it to protect a right or correct an unlawful action by an authority.
• Delimitation: Fixing the boundaries of constituencies based on population.
• Basic structure doctrine: The rule, laid down in 1973, that Parliament cannot amend the Constitution in a way that destroys its core features, such as free and fair elections and judicial review.
• Returned candidate: The candidate declared elected.