This document discusses Indian election law and related case law. It covers topics like Article 329 of the Indian Constitution which bars questioning of election laws and results except through an election petition process. It summarizes several important court cases that have established the jurisdiction of courts in electoral matters and affirmed that the right to stand for election is statutory rather than a fundamental right. The document concludes by emphasizing that Indian law should clearly define prosecutorial discretion in electoral cases and limit it according to specified grounds rather than vague references to state interests.

2. Index
1) Introduction
2) Article 329(a)&(b)
3) Case Laws:-
a) Ponnuswami NP v. Returning Officer AIR 1952 SC 64
b) Jamuna Prasad Mukhariya v. Lachhi Ram AIR 1954 SC 686
c) Meghraj Kothari v. Delimitation Commission AIR 1967 SC
669
d) Mohinder Singh Gill v. Chief Election Commissioner AIR
1978 SC 851
e) Venkatachalam v. A. Swamickan AIR 1999 SC 172
f) Mohd. Akbar v. Ashok Sahu & Ors. AIR 2015
4) Conclusion

3. Introduction
• Part XV of the Constitution describes elections by enacting
appropriate laws and settling a suitable machinery for the
conduct of election in India.
• Democracy is sustained by free and fair elections.
• Only free and fair elections to the various legislative bodies in
the country can guarantee the growth of democratic policy.
• India has been characterised as the biggest democracy in the
world because of the colossal nature of the elections held in the
country.
• The Constitution of India, 1950, the supreme law of the land,
visualizes the resolution of election disputes by judicial process
by ascertaining the facts relating to the election and applying the
law.
• It categorically provides that no election to either House of

4. Parliament or the Legislature of a State shall be called in question
except by an election petition presented to such authority and in
such manner as may be provided for under any law made by the
appropriate Legislature.

5. Article 329(a)&(b)
• Article 329(a) lays down that notwithstanding anything in the
Constitution, the validity of any law relating to the delimitation
of constituencies, or the allotment of seats to such
constituencies, made or purporting to be made under Article 327
or 328 ‘shall not be called in any court.’
• This provision thus immunizes the law pertaining to the matters
mentioned from being questioned in a court on any ground
whatsoever.
• The words ‘ notwithstanding anything in the constitution’, make
it clear that this clause overrides everything else in the
Constitution.
• Article 329(b) provides that “notwithstanding anything in the
Constitution”, no election to either House of Parliament or to a
House of a State Legislature “shall be called in question except

6. by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by the
appropriate legislature.”
• The Representation of the People Act 1951, as it stood before
1956, provided for a system of election tribunals to decide upon
disputed elections.
• That Act did not provide for any judicial review of the decisions
of the election tribunals.
• Section 105 of Representation of the People Act says, “Every
order of the Tribunal made under this Act shall be final and
conclusive.”
• Article 329(b) is primarily intended to exclude the jurisdiction of
all courts in regard to election matters and to lay down the only
mode through which an election can be challenged.
• If there is any ground relating to the non-compliance with the
provisions of the Act and the Constitution on which the validity

7. of any election process could be questioned, the person interested
in questioning the election has to wait till the election is over and
file an election petition thereafter questioning the election of the
successful candidate.
• Beyond the decision of the election tribunal, the ban of Article
329(b) does not bind.
• Once the election tribunal has decided, the prohibition under
Article 329(b) is extinguished and the Supreme Court’s overall
power to interfere under Article 136 springs into action.
• Similarly, a High Court could issue a writ to an election tribunal
under Article 226, as in the case of any other tribunal.
• This means that, the jurisdiction of the High Courts and that of
the Supreme Court starts where the jurisdiction of the election
tribunals end, that is, the jurisdiction of the court starts after an
election tribunal has given its decision on the election petition.
• So long as the poll process is on for election to Parliament or

8. State Assembly, the courts cannot interfere.
• The only remedy open to the aggrieved party is through an
election petition as envisaged by Art. 329(b) after the election is
over.

9. Case Laws
1. Ponnuswami NP v. Returning Officer AIR 1952 SC
64 :-
• Facts:-
The appellant filed his nomination paper from a
constituency for election to the State Assembly. The returning
officer rejected his nomination paper on certain grounds. The
question was whether the candidate could challenge the
decision of the returning officer through a writ petition under
Article 226.
• Held:-
The supreme Court answered in the negative. Keeping
in view the phraseology of Article 329(b), the Supreme Court
declared that the courts were barred from dealing with any
matter arising while the elections were in progress, and till an
election petition was disposed of by an election tribunal but not

10. thereafter. The courts would not interfere with the process of
election, i.e., from the time the notification is issued till the
election petition is disposed of. Any irregularity committed
during the course of election could be challenged through an
election petition after the election was over. The Supreme Court
also declared, “The right to vote or stand as a candidate for
election is not a civil right but is a creature of statute or special
law and must be subject to the limitations imposed by it.”
2. In Jamuna Prasad Mukhariya v. Lachhi Ram AIR
1954 SC 686, the Supreme Court has observed:
“The right to stand as a candidate and contest an election is not a
common law right. It is a special right created by statute and can
only be exercised on the conditions laid down by the statute. The
Fundamental Rights Chapter has no bearing on a right like this
created by statute.”

11. 3. In Meghraj Kothari v. Delimitation Commission
AIR 1967 SC 669, the Supreme Court held that:
“Because of Article 329(a), the orders made by the Delimitation
Commission regarding delimitation of constituencies and
published in the official gazette, could not be agitated in a court
of law.”
4. In Mohinder Singh Gill v. Chief Election
Commissioner AIR 1978 SC 851:
While speaking about power and the functions of the Election
Commission, Court said that the Election Commission has
power of cancelling a poll according to the principles of Natural
Justice. It can review its decision as to the expediency of holding
the poll on a particular day. Therefore, a writ petition
challenging the decision of the Election Commission is barred
by Article 329(b).

12. 5. In Venkatachalam v. A. Swamickan AIR 1999 SC
172, the Supreme Court has held that:
“Article 329(b) which bars interference of Court in electoral
matter does not come into play in a case which falls under
Articles 191 and 193 which provides for disqualification of
membership and penalty for sitting and voting when disqualified
and the whole of election process is over. In such case the High
Court can interfere under Article 226 and declare that he was not
entitled to sit in the State Assembly.
But neither Article 329(b)
nor the Representation of the Peoples Act(before its amendment)
which said that the decision by order of the Election Tribunal
shall be “final” could restrict the power if High Courts under
Article 226, and the power of the Supreme Court under the
Article 136.
The Constitution(19th Amendment)Act, 1966,
abolished the jurisdiction of Election Tribunals over election

13. disputes. The Amendment has vested this power in the High
Courts. The effect of vesting the power in the High Courts was
to expedite decision in election disputes.
6. In Mohd. Akbar v. Ashok Sahu & Ors. AIR 2015 :
• Facts:-
The appellant Shri Mohd Akbar was one of the contesting
candidates for Kawardha Legislative Assembly Constituency
during the General Election to Chhattisgarh Legislative
Assembly that took place in 2013. Polling took place on
19.11.2013. The result was declared on 08.12.2013. In the
election Shri Ashok Sahu was declared elected. Shri Mohd
Akbar secured the second highest number of votes in the said
election. On 20.01.2014, Shri Mohd Akbar filed Election
Petition No. 4 of 2014 challenging the election of Shri Ashok
Sahu on various grounds including the commission of certain
corrupt practices. On 29.01.2014, the High Court issued

14. issued summons to the respondents. However, even after several
months, the election petition continued to remain pending due to
various reasons at the preliminary stage itself.
• Held:-
The Supreme Court observed that “It was the pious hope
of the Parliament that election disputes under the Representation
of the People Act, 1951 should be resolved expeditiously. The
purpose is obvious. The tenure of the members of the Parliament
as well as the Legislature of the State is relatively short. It is five
years in the case of Lok Sabha and Legislative Assembly, and six
years in the case of Rajya Sabha and Legislative Council.
Therefore, if there is a dispute regarding the election of any
member of any one of the said bodies, it is desirable that the
dispute is resolved as early as possible.”
The Supreme Court said that, “We are sad to
state that invariably the resolution of election disputes in this
country takes unacceptably long periods on most of the cases.
Very rarely an election dispute gets resolved during the tenure of

15. the declared candidate reducing the adjudicatory process into a
mockery of justice. Such delay coupled with a right of appeal to
this Court makes the whole process of adjudication a task in a
good number of cases.” Therefore Supreme Court gave the
directions that in each High Court special bench should be
created by the Chief Justice of the respective High Court to deal
with the election petitions exclusively. As per the provisions of
Section 80-A of the Representation of the People Act, 1951, an
election dispute arising out of an election to Parliament or a
State Legislature is required to be decided by the High Court
concerned. This section is reproduced as under:
“80-A. High Court to try election petitions.—(1) The Court
having jurisdiction to try an election petition shall be the High
Court.
(2) Such jurisdiction shall be exercised ordinarily by a single
Judge of the High Court and the Chief Justice shall, from time to
time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one judge,

16. he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of
justice or convenience, try an election petition, wholly or partly,
at a place other than the place of seat of the High Court.”

17. conclusion
The laws should provide for a clear delineation of prosecutorial
discretion. In particular, the terminology used to define this
discretion should be strictly determined by law. Where the law
limits this discretion, the limitations should not be left
unspecified. The grounds for not prosecuting an electoral offence
should be clearly stated and not merely referred to as the
interests of the state or society. The provisions which set out
limitations on prosecutorial discretion should not conflict with
other provisions. Finally, the law should provide standards for
the exercise of prosecutorial discretion.