Subsequent to the dismissal of election petition filed by Dr. Chandrikaben Chudasma challenging the election of two BJP leaders Jugalsinh Mathuji Lokhandwala and Union Minister of External Afairs S.Jaishankar to the Rajya sabha, S.Jaishankar filed caveat before the Supreme Court.
Brief facts:
Pursuant to the election of Mr.Amit Shah and Smirti Irani Zubin as members of the Lok Sabha, the post held by them previously fell vacant. Hence the Election Commission of India issued a press note dated 15/06/2019 declaring 6 seats as vacant and notified the schedule for elections which would be held separately. The said press note was challenged by one Paresh Dhanani which was duly dismissed by the Supreme Court without giving liberty to file an election petition. The election petitioner herein Dr. Chandrikaben Chudasma who contested opposite to the BJP leader Jugalsinh Mathuji Lokhandwala lost the election. Hence Dr.Chudasma filed an Election petition no.7 of 2019 praying
1. To set aside the election of Jugalsinh Mathuji Lokhandwala to the Rajya Sabha holding it as violation of Constitution of India and Representation of People Act.
2. To declare the elections conducted separately for the vacant seats of Amit Shah and Smiriti Irani wide notification ECI No.100/CSGH/1/2019 and ECI No.100/CSGH/2/2019 respectively as illegal and quash the same.
3. To direct ECI to hold election for both seats in joint election under single ballot system allowing proportional representation through single transferable votes.
Pending the election petition the respondent Jugalsinh Mathuji Lokhandwala filed an application under order VII rule 11 of CPC stating that the petition did not disclose the cause of action as mandated under clause 4 of the said provision. He further contended that the petition is in violation of section 81 read with section 100 of the Representation of People Act and the same is liable to be dismissed under section 86 of the said act. The application further contended that the election petition did not include S.Jaishankar as a party to the petition who has also won the election notified by the notification which is under dispute and the petitioner could not challenge the elections conducted separately in one common petition. However the petitioner defended saying that the petition has specifically alleged the violation of section 80(4) which should be treated as ground for challenge and hence the petition cannot be dismissed under order VII rule 11 of CPC.
Key features:
1. After hearing the rival submissions, the court reiterated that the right to contest in election or question an election is not a fundamental right but a statutory right.
2. The court observed that the pleadings in the election petition must be precise, unambiguous and specific failing which the petition shall be liable to be dismissed under section 86 of the Representation of People Act.
3. The court further observed that when the petition challenges both the notifications and the elections conducted subsequently thereto, non-joinder of S.Jaishankar as a party to the petition is fatal and is in violation of Section 82 of Representation of People Act.
4. The court held that when two separate elections were conducted as per two separate notifications for the vacant seats of Rajya Sabha, the petitioner cannot challenge both the elections in one common petition.
5. The court ruled that the relief with respect to the election petition is contemplated under section 84 and 98 of the Representation of People Act. Since the relief prayed by the petitioner to quash the election or declare the election as illegal is outside the scope of statutory provisions the same could not be granted.
6. The court held that since the petitioner is not a candidate opponent to Mr. S.Jaishankar, the petitioner cannot challenge his election to the Rajya Sabha under the guise of challenging both the notifications.
The Supreme Court thus dismissed the election petition for the aforesaid reasons on 4th February, 2020. It is pertinent to note here that a separate petition challenging the election of S.Jaishankar filed by one Gaurav Pandya is still pending before the Gujarat High Court. On the apprehension that Dr.Chandrikaben Chudasma would challenge the election of the Union Minister of External Affairs, S.Jaishankar to Rajya Sabha, he filed caveat petition before the Supreme Court of India.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
Reference:
1. R/Election Application No. 16 of 2019, Jugalsinh Mathurji Lokhandwala vs Chandrikaben Kanjibhai, Gujarat High Court, Order dated 4th February, 2020
2. Bar and Bench, S Jaishankar files caveat in supreme court apprehending challenge to hi election as Rajya Sabha MP, https://www.barandbench.com/amp/story/news%2Fs-jaishankar-files-caveat-in-supreme-court-apprehending-challenge-to-his-election-as-rajya-sabha-mp (last visited on 13th February, 2020).
