Once Election Process Ends, State Election Commission Has No Jurisdiction To Cancel Result: Kerala High Court

Recently, the Kerala High Court held that as per Article 243K of the Constitution, the State Election Commission does not have any power to interfere once the election process to the panchayat is over and therefore, it cannot pass an order cancelling election result.Justice P.V. Kunhikrishnan was considering a plea by the Vice-President electee of Kottungal Grama Panchayat who had contested the election to the panchayat as a candidate of the BJP.After the declaration of the final results of the Panchayat elections, the Returning Officer concerned had conducted election to the offices of the President and Vice-President of the Panchayat. When the votes were counted, the petitioner and the UDF candidate had secured equal number of votes, resulting in a tie. Therefore, the Returning Officer proceeded with the procedure of selection by draw of lots and the UDF candidate's name was drawn. Thus, the UDF candidate was eliminated from the election process and the petitioner was declared elected as the Vice-President of the Panchayat. The Returning Officer even issued an official notice formally declaring the petitioner as elected and, he took oath and assumed charge.Following all this, the State Election Commission (SEC) issued an order cancelling the election of the Vice-President of the Panchayat stating that the procedure adopted by the Returning Officer was incorrect. The Returning Officer was directed to conduct fresh election for the post. Aggrieved, the petitioner approached the High Court.The petitioner argued that the order was unsustainable since he was not given an opportunity of hearing. He also stated that the procedure adopted by the Returning Officer did not suffer from any issues and it was accordance with the Kerala Panchayat Raj (Election of President and Vice- President) Rules, 1995.Another point canvassed was that the Election Commission is funcuts officio after the election process is completed and therefore, it has no authority to call for cancellation and conduct of fresh election. It was submitted that the only option available is to approach the competent civil court in accordance with the Kerala Panchayat Act.The Standing Counsel for the SEC pointed out that the election was not in accordance with the Rules and this fact was reported by the Returning Officer himself. After hearing the parties, the Court considered three questions. One of the questions was that in which situations the High Court can interfere with election conducted to the post Vice President when alternative remedy is provided under Section 153(4) of the Act. The second question was whether the SEC can interfere with the Vice-President election by invoking Article 243K of the Constitution. The final question was whether, in the present case, the Court can invoke writ jurisdiction.If No 'Dispute Arises', High Court can Interfere with Election to President/Vice-PresidentTo address the first question, the Court examined Section 153(14) of the 1994 Act, which refers to election of president and vice-president. It also placed reliance on Julie Sabu v. State Election Commission, Tvm [2024 (2) KHC 106] and remarked that civil court needs to be approached only in cases where a 'dispute arises', being something that will necessarily have to be decided, and not merely when someone 'raises a dispute'.“This Court was considering a similar provision to Section 153(14) of the Act, which is available in the Kerala Municipality Act,1994, as Section 12(6). This Court observed that the Legislature has used the expression 'arises' instead of 'raise'. Anybody can raise a dispute, and in all those cases, the parties need not be relegated to the civil court. Only if there is a dispute arises, the parties need to be referred to the civil court. Therefore, if no 'dispute arises', this Court can invoke the jurisdiction under Article 226 of the Constitution of India to interfere with an election to the post of President or Vice-President,” the Court clarified.SEC has No Jurisdiction to Interfere Once Election is OverThe Court noticed that the SEC had invoked power under Article 243K of the Constitution while passing the impugned order cancelling election and therefore, went on to examine the provision.It also referred to the Division Bench decision in Shailamma Issac v. Returning Officer and Others [2014 (2) KHC 17] and remarked:“A reading of Article 243K, it is clear that the Election Commission is vested with powers of superintendence, directions and control of the preparation of the electoral rolls and for the conduct of elections to the panchayats. Once the election is over, the Election Commission is functus officio…it is clear that the State Election Commission has no jurisdiction to interfere with the Election conducted for the post of Vice- President once the election is over. Once the result is declared, the Election Commission becomes functus officio, and the Election Commission has no jurisdiction to interfere with the election.”'Dispute ...

Once Election Process Ends, State Election Commission Has No Jurisdiction To Cancel Result: Kerala High Court

K. Salma Jennath

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Once Election Process Ends, State Election Commission Has No Jurisdiction To Cancel Result: Kerala High Court

K. Salma Jennath

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