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Friday, Jun 25, 2004

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WITHOUT JURISDICTION

THE ELECTION COMMISSION has plainly exceeded its constitutional brief while dealing with the Rajya Sabha elections in Uttar Pradesh. By asking the Returning Officer to reconsider his decision to reject the nominations of two Congress candidates, the Commission has contravened a slew of judicial pronouncements and disregarded the well-settled and salutary principles that contribute to the smooth and uninterrupted flow of the electoral process. It is not entirely clear why the Returning Officer, R.P. Pandey, rejected the nominations of Messrs. H. Aggarwal and M.M. Shukla but reports suggest this was done on procedural grounds, that is, because their papers suffered from certain technical flaws. The Congress, which has alleged that the rejection is "unconstitutional and unlawful," has insinuated that the Returning Officer was acting at the behest of the ruling Samajwadi Party — a charge that has not been backed by any evidence. But the political controversy has been overshadowed by the legal one — sparked by the Election Commission's decision to act beyond its jurisdiction. The simple truth is that the Commission is not empowered to act on appeals against a Returning Officer's decision — which is exactly what it did by asking Mr. Pandey to reconsider "relevant matters" and pass such orders "as he may deem fit." Returning Officers act as quasi-judicial authorities when accepting or rejecting nomination papers and the courts have made it clear that the Election Commission cannot overrule or review the exercise of such quasi-judicial power.

This point was reinforced only recently by the Supreme Court in connection with a case with a striking similarity. The background: following the rejection of the nomination papers of a candidate who wanted to contest the Haryana Assembly election in 2000, the Election Commission directed the Returning Officer to conduct a fresh scrutiny. In its judgment delivered on January 23, 2004, the Supreme Court held that the Election Commission's directive was "not only illegal but also without jurisdiction." The three-member Bench also stressed that "once the nomination paper of a candidate is rejected, the [Representation of the People] Act provides only for one remedy, that remedy being by an election petition to be presented after the election is over; there is no remedy provided at any intermediate stage" (Ram Phal Kundu vs Kamal Sharma). The larger purpose behind this is to ensure that the electoral process, once formally initiated, is smooth, uninterrupted and insulated from any kind of intervention — even from the judiciary. Such a purpose finds expression in Article 329 (b) of the Constitution, which specifically excludes the jurisdiction of courts to entertain matters relating to election disputes except through election petitions.

The Election Commission's communication to Mr. Pandey may have been couched in the form of a request, but a message from a superior to a subordinate that suggests the review of a decision is in the nature of a directive. The Commission has compounded its mistake by directing the Uttar Pradesh Chief Electoral Officer to be present as the "central observer" during the re-scrutiny of the nomination papers by Mr. Pandey. This is likely to have the unfortunate, and unintended, effect of creating the impression that, after committing the blunder of calling for a review, it has got itself entangled in the very process of review. The Commission may believe it has good reasons to think the Returning Officer erred by rejecting the nomination papers. But the solution cannot lie in its usurping the role of an appellate body — which, as the Courts have pointed out, the Election Commission is decidedly not under the Constitution or any statute.

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