1.1.

THAT THE WRIT OF CERTEORARI CAN BE ISSUED AGAINST THE

ORDER OF ELECTION COMMISION
1. It is submitted before the Hon’ble High Court that in case of a certiorari, 1 a stranger
may be allowed, by the court, at its discretion, to apply for the writ in exceptional
circumstances, viz., where the impugned order or decision.
(a) The matters in petition does not form the grounds for Election
Petition
(b) Has an adverse impact on public interest. 2
2. Article 226 of the Constitution confers on High Courts power to issue appropriate
writs to any person or authority within their territorial jurisdiction, in terms absolute
and unqualified, and Election Tribunals functioning within the territorial jurisdiction
of the High Courts would fall within the sweep of that power. The power of the High
Court under Art. 226 to issue writ of certiorari against decisions of Election Tribunals
remains unaffected by Art. 329(b) of the Constitution.3
3. The proceedings of judicial court or quasi-judicial bodies subordinate to the High
Court can be subjected to the writ of certiorari. 4 If the matter to be reviewed is one
which affects the public at large, 5 anyone can apply for a writ of certiorari. 6 It is the
duty of the High Court to quash an order which is manifestly illegal or ultra-vires. 7
Therefore any member of the public or organisation may bring it for judicial scrutiny.8
4. It is submitted that the impugned order of the Election Commission dated 5 th March,
2019 perpetuates illegality and hence is an error manifest on the face of the record.
An error apparent must be one which does not take prolonged argument to bring it to
the surface.9 The error apparent should be based on clear ignorance or disregard of the
provision of law.10 In other words, it is a patent error which can be corrected by
certiorari, but not a mere wrong decision.11
5. The concept of error of law on the face of record is not capable of precise or
exhaustive definition, there is an element of indefiniteness, inherent in its very nature
1
Satya Narayana Sinha v. S. Lal, AIR 1973 SC 2720
2
Kalyan Singh v. State of UP, AIR 1962 SC 1183.
3
Hari Vishnu Kamath vs Syed Ahmad Ishaque AIR 1955 SC 233
4
Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044
5
Peoples’ Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
6
Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578.
7
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
8
Bandhua Mukti Morcha v. Union of India, 1984 SC 802.
9
Satyanarayan Lakshaminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137.
10
Basappa T.C. v. T.C. Nagappa, AIR 1954 SC 440.
11
Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192.
 and it has to be determined judiciary on the facts of each case. It was observed that the
concept is comprised of many in imponderables; it is not capable of precise
definitions as no objective criteria can be laid down, the apparent nature of the error to
a large extent being dependent upon the subjective element. 12 Error in this context
means error of law13 and law in this context means and includes a mixed question of
fact and law.14
6. According to the facts of the present case, the NGT allowed the state government
to continue quarrying operations for a period of six months on the basis of
environmental clearances granted by the SEIAA and on the basis of guidelines
framed by them on 27.09.2012. However, the NGT in its order held that in view
of guidelines issued by the MoEF the guidelines issued by the SEIAA and the
environmental clearances granted on the basis of those guidelines actually
lapsed.34 Hence, although the NGT held that the clearances and guidelines
issued by SEIAA had been lapsed but the same continued to govern the PWD for
additional six months which is an error apparent on the face of record.

1.2. ARTICLE 329 DOES NOT BAR THE PRESENT PETITION

i. The matters in petition does not form the grounds for Election Petition
7. An Election petition is a procedure for inquiring into the validity of the election
results of Parliamentary or local government elections. Section 80 of the
Representation of People Act, 1951 states that “no election shall be called in question
except by an election petition presented in accordance with the provisions of Part VI
of the Act.”15 Article 329 of the Const. of Siland similarly creates a provision to bar
the interference by courts in electoral matters.16
8. It is submitted that the grounds for which an election petition can be filed are:17-
a. On the date of his election a returned candidate was not qualified or was
disqualified to be chosen to fill the seat.
b. Any corrupt practice (as explained below) has been committed by a returned
candidate or his election agent or by any other person with the consent of a
returned candidate or his election agent.
12
K.M. Shanmugham v. SRVS Pvt. Ltd., AIR 1963 SC 1626.
13
R. v. Minister of Agriculture, (1955) 2 All ER 129 (138) (CA)
14
Shafi v. Addl. Dt. & Sessions Judge, AIR 1977 SC 836.
15
Section 80, Representation of People Act, 1951.
16
Art. 329, Const. Of India, 1947.
17
Section 100, RPA
 c. By improper acceptance of any nomination.
d. By any improper reception, refusal or rejection of any vote or the reception of
any vote which is void.
e. By any non-compliance with the provisions of the Constitution or RPA or any
rules or orders made under this act.
9. It is submitted that in present case, the challenge is not made against any of these
grounds that has been laid down; rather the challenge is made on the grounds that
order dated 5th March, 2019 was unreasonable and manifestly arbitrary and that the
section 11 of the Representation of People Act is unconstitutional in nature.
ii. The petition does not challenge the “process of Election”
10. It is submitted before the Hon’ble High Court that the term “election” is defined as
the final selection of a candidate which may embrace the result of the poll when there
is polling or a particular candidate being returned unopposed when there is no poll. 18
In the wide sense, the word is used to connote the entire process culminating in a
candidate being declared elected.19
11. Article 329 of the Constitution specially bars any proceedings that calls “process of
election” in question.20 Any decision sought and rendered will not amount to “calling
in question an election” if it subserves the progress of the election and facilitates the
completion of the election. Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the election.
12. Subject to the above, the action taken or orders issued by Election Commission are
open to judicial review on the well-settled parameters which enable judicial review of
decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of
power being made out or the statutory body being shown to have acted in breach of
law.
13. In Digvijay Mote v. Union of India 21 this Court has held that the powers conferred on
the Election Commission are not unbridled; judicial review will be permissible over
the statutory body, i.e, the Election Commission exercising its functions affecting
public law rights. The power conferred on the Election Commission by Article 329
has to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but

18
Srinivasalu v. Kuppuswami
19
Sat Narain v. Hanuman Parshad
20
K. Venkatachalam v. A. Swamickan
21
1993 4 SCC 175
 in keeping with the guidelines of the rule of law and not stultifying the presidential
notification nor existing legislation.
14. Though, Art. 329 has conferred wide powers to election commission, Hon’ble
Supreme court on various occasions have held that these powers are subject to judicial
review under Art. 226 of The Constitution if following conditions are fulfilled: -
- If orders of Election Commission are contrary to the law enacted under
Article 32722
- If the order passed by EC is arbitrary, or malafide or unfair.23
- If the order is without or in excess of the Commission’s jurisdiction, being
in contravention of any Electoral Law24
- If the decision taken by the commission is perverse, unreasonable or for
extraneous reasons25
15. It is submitted before the Hon’ble High Court that the order passed by the Election
Commission on 5th March is unreasonable, arbitrary and malafide in nature. By the
virtue of this order, an individual who was ordinarily disqualified to contest election
will be elected as the Chief Minister of the State. It is to be understood that the Chief
Minister of any state holds the highest stature in any State. If any corrupt, criminal
and convicted person holds this stature then there is an anticipation of threat to
fundamental rights of public.
16. The governance is revolved around the political parties and its leader. They are
continuously engaged in performance of public duty and therefore it is important that
they become transparent. De-criminalization and de-communalization of politics is
essential in larger public interest as they perform public function and, therefore,
convicted person should be debarred to form political party and become political
office bearer for lifetime.
17. Thus, in the present case, Article 329 cannot prevent them from filing the writ petition
under Article 226 since, they were not challenging the 'commencement of polling'.
The present petition challenges the Constitutionality of the Section 11 of The
Representation of People act and the arbitrary order of The Election Commission
Dated 05.03.2020. Therefore, as a measure to implement the NCRWC, Election

22
Digvijay Mole .vs. Union of India,  [(1993) 4 SCC 175]
23
Ponnusami N.P. .vs. Returning Officer, [AIR 1952 SC 64]
24
Durgashankar Mehta .vs. Raghuraj Singh,  [AIR 1954 SC 520]
25
In the matter of Special Reference No.1 of 2002 [(2002) 8 SCC 237]
 Commission &Law Commission recommendations and curtail corruption this
Hon‘ble Court should allow the instant petition in public interest.

1.1. WRIT PETITION CAN BE FILED AGAINST THE ELECTION COMMISSION

1.2. ARTICLE 329 DOES NOT BAR THE PRESENT PETITION
iii. The matters in petition does not form the grounds for Election Petition
iv. The petition does not challenge the “process of Election”
2. Art 226 of The Constitution of Siland confers on High Courts power to issue appropriate
writs to any person or authority within their territorial jurisdiction, in terms absolute and
unqualified, and Election Tribunals functioning within the territorial jurisdiction of the
High Courts would fall within the sweep of that power. If we are to recognize or admit
any limitation on this power, that must be founded on some provision in the Constitution
itself.
3.
4. Thus, in the present case, Article 329 cannot prevent them from filing the writ petition
under Article 226 since, they were not challenging the 'commencement of polling'. The
 present petition challenges the Constitutionality of the Section 11 of The Representation
of People act and the arbitrary order of The Election Commission Dated 05.03.2020.
1.3. The order passed by Election Commission within the purview of judicial review
5. In Digvijay Mote v. Union of India 26 this Court has held that the powers conferred on the
Election Commission are not unbridled; judicial review will be permissible over the
statutory body, i.e, the Election Commission exercising its functions affecting public law
rights.
6. The power conferred on the Election Commission by Article 324 has to be exercised not
mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the
guidelines of the rule of law and not stultifying the presidential notification nor existing
legislation.
7. That the injury caused to public because many corrupt, criminal and convicted persons
have formed political party and threatens the fundamental right guaranteed under the
Article 19 by using money and muscle power.
8. The governance is revolved around the political parties and its leader. They are
continuously engaged in performance of public duty and therefore it is important that they
become transparent. De-criminalization and de-communalization of politics is essential in
larger public interest as they perform public function and, therefore, convicted person
should be debarred to form political party and become political office bearer for lifetime.
9. Political parties perform public functions, define parameters of governance & socio-
economic development. They must be transparent but their income tax returns reveal that
on an average merely 20% of their income comes from donation that they disclose to the
ECI and remaining 80% of income are shrouded in mystery. This gives rise to all kinds of
speculation about pernicious influence of illegal money which is not good for democracy
10. ECI has plenary power and authorize to withdraw recognition of parties in certain
contingencies but it does not use it power to de-criminalize/de-communalize them.
11. The Executive is unwilling to implement the NCRWC, Election Commission &Law
Commission recommendations and curtail corruption crime casteism and communalism,
the four menace of our democracy. Therefore, this Hon‘ble Court should allow the instant
petition in public interest.
12. Court further observed that only in extraordinary and exceptional circumstances, the High Court
can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or
nullity and/or ex facie without jurisdiction. Reliance was placed on Rule 14 and 24 of the
26
1993 4 SCC 175
 Himachal Pradesh Panchayati Raj (Election) Rules, 1994 in addition to the case of Union of India
v. Dudh Nath Prasad, (2000) 2 SCC 20 and Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66.
13. That, in a sense, is the key question that governs the fate of this appeal. Shri P. P.
Rao for the appellant contended that, however, wide Art. 329(b) may be, it does not
debar proceedings challenging, not the steps promoting election but dismantling it,
taken by the Commission without the backing of legality. 27
14. The Apex Court ruled that the words “notwithstanding anything in this Constitution” exclude the
jurisdiction under Article 226 of the Constitution of India. Articles 32726 and 32827 of the
Constitution of India begin with the words “subject to the provisions of this Constitution.” This
makes it clear that a law made by the Parliament under Articles 327 and 328 cannot exclude the
jurisdiction of the High Court under Article 226 while that jurisdiction is excluded in case of
Article. 329.28
15. The Supreme Court held that Article 329 (b) of the Constitution of India had the effect of ousting
the jurisdiction of the High Court under Article 226 with regard to the matters arising between
the commencement of the election and the final selection.
16. if the petitioner agitates a matter not affecting „the election‟ and the remedy for which is not
available in the election petition, a petition under Article 226 might possibly lie after completion
of the election.
17. When a statutory functionary makes an order based on certain grounds, its validity must be
judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape
of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to
court on account of a challenge, get validated by additional grounds later brought out. AIR 1952
Sc 16, Rel. on. (Para 8) Anno: AIR Comm. Const of India, Art. 226, Note 184.
18.

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https://indiankanoon.org/doc/1831036/
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