Article 329(b): A Rejected Nomination Can Be Questioned Only by an Election Petition

For the appellant. Article 329(b) did not affect the High Court's jurisdiction, and he was entitled to certiorari (para 2). Election there meant the result of the poll or the final selection, since an election petition can be filed only after polling. Articles 324, 327 and 328 use wider words, such as arising out of or in connection with, so Article 329(b) left nominations outside it; and as section 36 was made under Article 327, which is subject to the Constitution, the Returning Officer's order stayed open under Article 226 (para 9). The wider words of Article 71(1) on presidential elections pointed the same way (paras 27-28). A remedy after the election was inadequate (paras 3-4), and if nomination were part of the election, section 36 would be ultra vires (para 36).

For the respondents. The judgment sets out no separate submissions for the respondents. It records points conceded at the bar: Article 329(b), unlike laws made under Articles 327 and 328, excludes the Article 226 jurisdiction over the matters it covers; it ousts the courts from matters between the start of polling and the final selection; and in England an improper rejection has always been raised by an election petition after the election (paras 8, 20-21).

Election means the whole process

The word election has acquired both a narrow meaning, the final selection of a candidate, and a wide one, the entire process culminating in a candidate being declared elected. Agreeing with Srinivasalu v. Kuppuswami (Madras) and Sat Narain v. Hanuman Prasad (Lahore), Fazl Ali J. held that Part XV uses the word in the wide sense; the expression conduct of elections in Article 324 points the same way, and the treatises show an election as a process of several stages (paras 10-11).

Questioning a rejection is questioning the election

Improper rejection of a nomination paper is one of the grounds on which section 100 of the 1951 Act allows an election to be declared void (para 12). Under the election law, the rejection's only significance is that it can be used as a ground to call the election in question. Article 329(b) prescribes the manner in which, and the stage at which, such grounds may be raised, so by necessary implication they cannot be raised in any other manner, at any other stage or before any other court. Any other reading would make the special tribunal pointless and allow the High Court before polling and the tribunal afterwards to take conflicting views (para 13). Part XV is a code in itself, and Article 329 covers all electoral matters (paras 14, 21).

No writ while the election is in progress

The 1951 Act is self-contained and nowhere allows anything connected with elections to be questioned at an intermediate stage (para 15). Under the rule in Wolverhampton New Water Works Co. v. Hawkesford, a right created by a statute that gives a special remedy must be enforced by that remedy only; the Act provides one, an election petition presented after the election is over (paras 16-17). That the Act was made subject to the Constitution did not help the appellant: the opening words of Article 329(b), notwithstanding anything in this Constitution, are apt to exclude the High Court's jurisdiction over any matter arising while the elections are in progress (para 18). Similar English words have never been held to permit certiorari or mandamus against a rejection (paras 19-20). Elections should keep to their time schedule, and irregularities that would vitiate one go to a special tribunal by election petition, not to a court mid-way (para 22). Drawing on Theberge v. Laudry, the right to vote or stand is a creature of statute (paras 23-25).

Article 71(1) and section 36

The contrast with Article 71(1) lost much of its force once it was accepted that one idea can be expressed in different ways. Article 329(b) follows the wording of the election rules made under the Government of India Acts of 1919 and 1935; its negative form suits a provision meant to oust the jurisdiction of all courts in electoral matters and lay down the only mode of challenge, while Article 71(1) is affirmative because it confers a special jurisdiction on the Supreme Court (paras 29-35). The section 36 argument had no bearing on the result: scrutiny is only a stage in the election process, and a Returning Officer who performs that duty does not call any election in question (para 37).