Jurisprudence Related to Recriminatory Election Petition

 

Literal meaning of Recrimination means is kind of counter claim or accusation by way of asking additional relief. When in an election petition composite relief or double relief or additional relief is sought in counter, it shall be called recriminatory election petition. Here we have to understand first what election petition is?? Election petition means, when any dispute arises related to election of any returned candidate of Member of Parliament or state legislature, it can be challenged through Election petition before the High Court.  For example, if any person has won election by two votes. And it is challenged before the high court. At the recounting order by HC in the trial of the election petition, it is found that 10 ballot papers have been improperly rejected in the favour of the respondent and 04 ballot papers have been improperly accepted in favour of appellant.  At this stage if appellant urge before the court that there have been improper rejection of his votes and improper acceptance of the votes of the respondent as well and that such votes should be scrutinized. In this situation appellant to get remedy, he has to make recriminatory petition by asking composite relief. 

Therefore in an election petition, the returned candidate, whose election has been challenged or any other respondent to the election petition may recriminate and give evidence to prove that the election of such other candidate, in whose favour declaration has been claimed, would also have been void, had he been the returned candidate and had a petition been presented to challenge his election. It can be done if additional relief may be sought to the effect that, in addition to the election of the returned candidate being declared void, some other candidate at the election may be declared elected in place of the returned candidate. Such recrimination is not possible in an election petition where the only relief is claimed- i.e. the election of the returned candidate may be declared void.

Regarding the nature, scope and applicability of the law i.e. section 97 of the Representation of People Act, 1951, related to recriminatory petition judiciary came forward to make clarity and settle law. In the case of Jaber singh v/s Genda  Lal,  (AIR, 1964, 1200)- it was held by constitutional with majority bench of 4:1 that there are cases in which the election petition makes a double claim- it claims that the election of the returned candidate is void and also ask for a declaration that the petitioner himself or some other person has been duly elected. For such composite case section 100 as well as section 101 of RP Act, 1951 would apply, and in respect of the additional claim for a declaration that some other candidate has been duly elected, section 97 comes into play.  Thus section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person, in whose favour a declaration is claimed by the petition, cannot be said to be validly elected and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of election of the alternative candidate.

Therefore the result of  section 97 (1) of RP Act, 1951 is that in dealing with a composite election petition , the court enquire into not only the case made out by the petitioner, but also the counter claim made by the returned candidate.  If the returned candidate does not recriminate as per requirement of section 97, then he cannot make any attack against the alternative claim made by the petition.  In such cases inquiry would be limited to section 100 only. Thus section 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any  of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected.  The same law was applied by the supreme court in the cases of P Malaichami v/s M Andi Ambalam, Anirudh Prasad v/s Rajeshwari saroj das(1976), Bhag mal v/s Ch. Parbhu Ram (1985).  Analyzing the majority decision of  the constitutional bench in  the light of above sited cases supreme court  summed up the latest position of law  regarding recrimination of petition in the case of  TA Ahammed Kabeer v/s AA Azeez ( AIR 2003 SC 2271) as follows-

1.       In an election petition wherein the limited relief sought under section 100(1)(d)(iii) of RP Act, the scope of enquiry shall remain confined to two questions-a) finding out any votes having been improperly cast in favour of the returned candidate and , b) any votes  having been improperly  refused or rejected in regard to any other candidate.

2.       A recrimination can be filed under sec. 97(1) by the returned candidate or any other party, where additional declaration is claimed that any other than the returned candidate has been duly elected.

3.       For the purpose of enabling an enquiry that any votes have been improperly cast in favor of any candidate other than the returned candidate or any votes have been improperly refused in regard to the returned candidate, the  court  shall acquire jurisdiction to do so only on the two conditions being satisfied-

i.                     the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void and 

ii.                   the recrimination petition is filed under section 97(1).

4.       The recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleading, signing and verification as election petition required under section 83 and must accompanied with security under section 117 and 118 of RP Act.

The law on the subject further clarified by supreme court in the case of Arikala Narsa Reddy v/s Venkata Ram Reddy Reddygari ,(2014 (5) SCJ 339) . The ape court has elucidated that sec. 97 allowing the returned candidate to recriminate and raise counter pleas comes into play only in a composite  election petition where a declaration has been sought that the election of the returned candidate be declared void and the petitioner or other candidate may be declared elected . First part of enquiry in regard to validity of election of the returned candidate has to be tried within the narrow limits prescribed by sec. 100(1)(d)(iii), while the letter part of enquiry is on broader basis as per sec. 101(a).  In case no recrimination is sought for, no enquiry shall be made under section 101(a). Such recrimination must be given to the high court by the returned candidate or any other respondent within 14 days from the date of commencement of the trial of the election petition. (provio of sec. 97(1).