Supreme Court Upholds Kerala High Court Decision on Election Petition: Abdulrasakh vs. K.P. Mohammed & Ors. (2018)

Introduction

Date of the Judgment: March 08, 2018
Citation: (2018) INSC 206
Judges: J. Chelameswar, J., Sanjay Kishan Kaul, J. (authored the opinion).

Can an election petition be dismissed if there are minor defects that are cured after the limitation period? The Supreme Court of India recently addressed this question in a case concerning the election to the Kerala Legislative Assembly. The core issue was whether the election petition filed by the respondents was within the prescribed limitation period and whether the High Court was correct in allowing the defects to be cured after the limitation period had expired. The bench comprised of Justice J. Chelameswar and Justice Sanjay Kishan Kaul, with Justice Kaul authoring the opinion.

Case Background

The appellant, Abdulrasakh, contested the 14th Kerala Legislative Assembly elections on May 16, 2016, as an independent candidate from the Koduvally Assembly Constituency. He was declared elected on May 19, 2016, after securing the highest number of votes. Subsequently, Respondent Nos. 1 and 2, who were voters from the same constituency, filed election petitions alleging corrupt practices, specifically under Section 123(4) of the Representation of the People Act, 1951. They claimed that the appellant had made false allegations against Respondent No. 3, a candidate, knowing them to be false. The election petition was initially filed on July 1, 2016, but was allegedly returned due to defects and re-presented on July 11, 2016. The appellant contended that the re-presentation was beyond the 45-day limitation period, which expired on July 3, 2016. The appellant also argued that the Registry had no power to return the petition for curing of defects, and even upon re-presentation, the petition remained defective. The Kerala High Court granted one week’s time to the respondents to cure the defects. The appellant then moved an application for summary dismissal of the election petition.

Timeline

Course of Proceedings

The election petition was initially filed on July 1, 2016, and certain defects were noted by the Registry. The appellant contended that the petition was returned by the Registry and re-presented on July 11, 2016, after the 45-day limitation period. The appellant also argued that the Registry had no power to return the election petition for curing of defects. The Kerala High Court, however, did not find merit in the appellant’s contentions. The High Court noted that the Registry had not returned the petition but had placed it before the judge as an unnumbered election petition. The Court allowed the respondents to cure the minor defects within one week. The High Court dismissed the appellant’s objections, leading to the present appeal before the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation and application of the following provisions of the Representation of the People Act, 1951:

• Section 123(4): Defines corrupt practices, including the publication of false statements about a candidate’s character or conduct, which can prejudice their election prospects.
  

  “The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.”

• Section 81: Specifies the requirements for presenting an election petition, including the limitation period of 45 days from the date of election of the returned candidate.
  

  “An election petition calling in question any election may be presented on one or more of the grounds specified in[sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five 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 the dates of their election are different, the later of those two dates].”

• Section 86(1): Mandates the High Court to dismiss an election petition that does not comply with the provisions of Section 81, 82 or 117 of the Representation of People Act, 1951.
  

  “The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.”

The interplay of these sections determines the maintainability of the election petition and the scope for curing defects.

Arguments

Appellant’s Arguments:

• Limitation: The appellant argued that the election petition was time-barred as it was re-presented on July 11, 2016, after the expiry of the 45-day limitation period on July 3, 2016. The initial filing on July 1, 2016, was defective, and the defects were cured only on July 11, 2016, which is beyond the limitation period.
• Registry’s Role: The appellant contended that the Registry had no power to return the election petition for curing of defects. The process of returning and re-presenting the petition was alien to the process of an election court.
• Defects in the Petition: The appellant argued that the production of documents in sealed covers was impermissible and that the failure to hand over the entire contents of the items produced in sealed cover violated Section 81(3) of the Representation of the People Act, 1951. The appellant also contended that the defects were cured by substituting the original page 57 with an ante-dated one. Additionally, the English translation of Annexure E was incomplete.
• Reliance on Authorities:
  • Satya Narain v. Dhuja Ram & Ors.: The appellant relied on this case to argue that the High Court Rules cannot confer power on the Registrar to permit correction of defects beyond the limitation period.
  • Sahodrabai Rai v. Ram Singh Aharwar: The appellant argued that the court should examine the Registry officer as a court witness due to doubts about the presentation and re-presentation of the petition.
  • M. Karunanidhi v. Dr. H.V. Hande & Ors.: The appellant contended that the non-supply of a proper photograph of the banner was fatal to the petition.
  • U.S. Sasidharan v. K. Karunakaran & Anr.: The appellant argued that non-supply of the video cassette with the election petition was fatal.
  • Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors.: The appellant relied on this case to argue that the copy supplied to the returned candidate was not a true copy.

Respondents’ Arguments:

• Incorrect Representation: The respondents argued that the appellant had misrepresented the facts. The mention of “E.P. filed: 11.07.16” was a mistake, and the election petition was presented on July 1, 2016. The Deputy Registrar’s endorsement shows that the scrutiny took place on July 5, 2016, and the defects were noted on July 7, 2016. The petition was placed before the judge on July 18, 2016, as an unnumbered election petition.
• Minor Defects: The respondents contended that the defects noted by the office were not material defects for rejecting the petition in limine, as per the parameters set out in Mithilesh Kumar Pandey. The court allowed the curing of minor defects within one week.
• Sufficiency of Copies: The respondents argued that copies of the contents in the phone, which they wanted to rely upon, were produced along with the copy of the election petition. The sufficiency of this could be considered later after the appearance of the parties.

Submissions Table

Issues Framed by the Supreme Court

The Kerala High Court framed the following preliminary issues:

1. Whether the election petition is barred by limitation?
2. Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act?
3. Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act?
4. Is there power in this Court to permit representation delay to be condoned when the original delay in presenting election petition itself is not permissible to be condoned and when there is no provision for any delay condonation?
5. Whether the defects cured and corrections made in the election petition after the period of limitation will relate back to the date of its presentation?
6. Whether defects cured and corrections made in the election petition after presentation are permissible and in compliance with the mandatory requirements as provided in Sections 81 & 83 of the Representation of People Act and Rules framed thereunder?
7. Whether the election petition is maintainable for non-compliance of mandatory requirements as provided in Sections 81, 82, 83 & 117 of the Representation of People Act and Rules framed thereunder and other requirements of law?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Satya Narain v. Dhuja Ram &Ors. [CITATION]: The court distinguished this case, stating that the present case involved the curing of defects under the court’s direction, not by the Registry.
• Sahodrabai Rai v. Ram Singh Aharwar [CITATION]: The court found no occasion to examine the Registry officer as the facts of the case were different.
• M. Karunanidhi v. Dr. H.V. Hande & Ors. [CITATION]: The court distinguished this case, stating that the facts were different.
• U.S. Sasidharan v. K. Karunakaran & Anr. [CITATION]: The court distinguished this case, stating that the facts were different.
• Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors. [CITATION]: The court followed the principles laid down in this case, which allow for the correction of clerical and typographical errors.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The court emphasized that the election petition was presented on July 1, 2016, and the defects were cured under the court’s direction, not by the Registry. This was crucial in determining that the petition was not time-barred.
• The court highlighted that the defects were minor and procedural in nature, and did not warrant the dismissal of the election petition. The court relied on the principles set out in Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors. [CITATION], which allow for the correction of clerical and typographical errors.
• The court noted that the Registry was aware that it could not permit the curing of defects and thus, placed the matter before the concerned judge.
• The court found that the copies of the contents of the mobile phone were provided to the appellant, and the non-supply of the physical chip did not impair the appellant’s defense.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The court’s reasoning was primarily based on the legal interpretation of the relevant provisions of the Representation of the People Act, 1951, and the principles laid down in previous judgments. The factual aspects of the case were considered to determine whether there was a delay in the presentation of the petition and whether the defects were minor in nature.

Logical Reasoning

Judgment

The Supreme Court dismissed the appeal, upholding the decision of the Kerala High Court. The court reasoned that:

• The election petition was presented within the limitation period on July 1, 2016.
• The defects were minor and were cured under the direction of the court, not by the Registry.
• The Registry was aware that it could not permit the curing of defects and thus, placed the matter before the concerned judge.
• The copies of the contents of the mobile phone were provided to the appellant, and the non-supply of the physical chip did not impair the appellant’s defense.

The court emphasized that the law relating to elections is technical and that an election petition must meet the technical requirements of the Representation of the People Act, 1951. However, the court also noted that minor clerical and typographical errors can be corrected.

Key quotes from the judgment:

“The whole premise of the plea of the appellant is based on the Registry permitting corrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81(1) of the said Act.”

“We are conscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people.”

“Similarly copies of the documents have been supplied to the appellant and multiple copies of the phone or the chip (which is kept in a sealed cover) are not mandated to be supplied when the material relied upon in the phone has been reproduced in CD and a transcription also provided.”

The bench consisted of two judges, J. Chelameswar and Sanjay Kishan Kaul, with Justice Kaul authoring the opinion. There were no dissenting opinions.

Key Takeaways

• Minor defects in an election petition can be cured after the limitation period if the petition was presented within the stipulated time and the curing is done under the court’s direction.
• The Registry cannot permit the curing of defects in an election petition; this power rests with the court.
• The non-supply of a physical device (like a mobile phone chip) is not fatal if the relevant contents are provided in other forms (like a CD and transcription).
• The law relating to elections is technical, and election petitions must meet the requirements of the Representation of the People Act, 1951.

Potential Future Impact: This judgment clarifies the procedure for filing election petitions and the scope for curing defects. It emphasizes that minor procedural errors should not be used to dismiss a petition if the core requirements are met. This could lead to more election petitions being heard on their merits rather than being dismissed on technical grounds.

Directions

No specific directions were given by the Supreme Court in this judgment.

Specific Amendments Analysis

There is no specific amendment discussed in the judgment.

Development of Law

Ratio Decidendi: The ratio decidendi of this case isthat minor defects in an election petition can be cured after the limitation period if the petition was presented within the stipulated time and the curing is done under the court’s direction. This emphasizes that the substance of the petition is more important than minor procedural defects. The court reiterated that the Registry does not have the power to allow the curing of defects, and this power rests solely with the court. The court also clarified that the non-supply of a physical device (like a mobile phone chip) is not fatal if the relevant contents are provided in other forms (like a CD and transcription). This judgment reinforces the principle that election petitions should be decided on their merits, rather than being dismissed on technicalities.

Change in Previous Legal Position: This judgment does not significantly change any previous legal position. Instead, it clarifies the existing legal principles, particularly those laid down in Mithilesh Kumar Pandey v. Baidyanath Yadav & Ors. [CITATION], which allow for the correction of clerical and typographical errors. The court distinguished the other cases relied upon by the appellant, stating that the facts were different. This judgment provides a clear interpretation of how the courts should treat minor defects in election petitions.