An election petition refers to the procedure for challenging the result of

a Parliamentary election.
When a petition is lodged against an election return, there are 4 possible outcomes:[1]

1. The election is declared void. The result is quashed and a writ is issued for a new
election
2. The election is held to have been undue: the original return is quashed, and another
candidate is declared to have been elected.
3. The election is upheld, and the member returned is found to have been duly elected.
4. The petition is withdrawn. This may occur when the petitioner fails to attend a
hearing, or when Parliament is dissolved before the petition process is complete

The long inevitable procedural delays in courts ensure that a substantial number of these
petitions remain pending in courts even after the term of the office to which the election
relates comes to an end. In such cases, the election petition is dismissed by most courts as
having become infructuous — a word of Latin origin used in legal parlance to denote that a
particular proceeding has become fruitless or pointless. The effort here is to show that such
disposal is not the correct recourse in law.

Following the 2009 Lok Sabha elections, nearly 110 election petitions were filed in various
High Courts across the country challenging the election of various candidates. Not one of the
110 was concluded within the period of six months, as stipulated by the Act. Twenty five of
them remain pending even at the end of the five-year term of the 15th Lok Sabha.

These pending cases then get dismissed as infructuous. This happens when the issue involved
in the litigation is no longer alive. But then an election to the highest legislative body in the
country (or even to any of the other legislative bodies) is not merely a lis between
individuals. That is what the Supreme Court said in resounding terms in Sheodhan Singh vs.
Mohan Gautam.
The law relating to withdrawal and abatement of election petitions is exhaustively dealt
with in chapter IV of Part VI of the Representation of People’s Act. These provisions do
not provide for abatement of an election petition, either when the returned candidate
whose election is challenged resigns or when the Assembly is dissolved.

There is a significant rationale to this legal approach. It is that if a candidate is adjudged

to have indulged in corrupt electoral practice, he can be barred from contesting in
subsequent elections.

It may even be advisable to substitute the Election Commission in place of the petitioner in
appropriate cases. As emphasised by the Supreme Court, an election petition is not a lis
between two individuals but an attempt at preserving the purity of the electoral process. The
judiciary would be doing salutary service to this spirit of our election laws if it does not close
pending election petitions as infructuous but instead proceeds to take these cases to their
logical end.
 The word democracy is derived from the words ‘demos’ and ‘kratos’ meaning
people and authority respectively. Democracy is a concept, a political philosophy, an
ideal practiced by many nations culturally advanced and politically mature by resorting
to governance by representatives of the people elected directly or indirectly.

The Preamble to the Constitution of India provides a constitutional democratic

system to guide the fate of Indian people. The Preamble to the Constitution read
alongwith several its provisions clearly reflects that the democracy established in India is
that of a free and open society. In fact democracy is one of the basic inalienable features
of the Constitution of India and forms part of its basic structure.

According to Black election is the process of selecting a person to occupy a

position or office, usually a public office . The word election as used in the
Representation of the People Act, 1951 includes every stage from the time the
notification calling for election is issued till the declaration of the result . The expression
election means selection of a person by vote or even otherwise. Justice V. R. Krishan
Iyer in Mohinder Singh Gill v. Chief Election Commissioner was of the view that every
step from start to finish or the total process constitutes election, not merely the
conclusion of culmination. The Supreme Court in V.S. Achuthanandan v. P.J.
Francis held that free, fair, fearless and impartial elections are the guarantee of a
democratic polity. Effective mechanism is the basic requirement for having such
election. The Supreme Court in Jyoti Basu v. Devi Ghosal enunciated the Constitutional
position as follows: A right to elect, fundamental though it is to democracy, is ,
anomalously enough, neither a Fundamental Right nor a common Law Right. It is pure
and simple, a statutory right. So is the right to be elected. They have to function within
the framework of that law and cannot travel beyond it.

Section 100 of the RPA, 1951 deals with the grounds on which an election may
be challenged by means of election petition. The RPA, 1951 has been held to be a
complete and self-contained code within which must be found any right claimed in
relation to an election or an election dispute The constitutional provisions and the
Representation of People Act clearly express the rule that there is a remedy for every
wrong done during the election process. The remedy in respect of electoral process is not
extinguished by virtue of Art 329(b). The only thing it does is that the remedy is
postponed to the post-election stage. The constitutional position and mandate thus has
been clear – that the electoral process once started cannot be interdicted or interfered
with by courts, at any intermediary stage till its completion and culmination in the
declaration of the result. Without interrupting, obstructing or delaying the progress of the
election proceedings, judicial intervention is available if assistance of the court has been
sought for merely to correct or smoothen the progress of the election proceedings, to
remove the obstacle therein, or to preserve a vital piece of evidence if the same would be
lost or destroyed or rendered irretrievable by the time the results are declared and the
stage is set for invoking the jurisdiction of the court. The right to dispute a election is a
statutory right i.e. a creation of the statue and thus is subject to the limitations created by
the statute. The limits laid down by the statue in terms of forums which can be
approached cannot be transgressed.