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PETITIONER:

AZHAR HUSSAIN

Vs.

RESPONDENT:

RAJIV GANDHI

DATE OF JUDGMENT25/04/1986

BENCH:

THAKKAR, M.P. (J)

BENCH:

THAKKAR, M.P. (J)

VENKATARAMIAH, E.S. (J)

CITATION:

1986 AIR 1253 1986 SCR (2) 782

1986 SCC Supl. 315 1986 SCALE (1)573

CITATOR INFO :

R 1987 SC1577 (4,10,28)

R 1987 SC1926 (4)

F 1990 SC 924 (29)

R 1990 SC1731 (9,10)

ACT:

Representation of the People Act, 1951 :

Section 80 to 83, 86 & 87 - Election Petition -

Mandatory requirement to furnish material facts and

particulars - Non compliance - Summary dismissal of election

petition - What are material particulars to be incorporated

in an Election Petition.

Civil Procedure Code, 1908 - Order 6 Rule 16 and Order

7 Rule 11(a) - Election Petition - Applicability of.

HEADNOTE:

The respondent having secured the highest votes in the

1984 general elections was declared elected as a Member of

the Lok Sabha from the Amethi Constituency of Uttar Pradesh.

On the last date for challenging the election, the

appellant, an elector from that constituency filed an

election petition challenging the election of the respondent

alleging various corrupt practices. The respondent upon

being served, instead of filing a written statement, raised

preliminary objection to the maintainability of the petition

contending that the petition was lacking in material facts

and particulars and was defective on that account, and that

since it did not disclose any cause of action it deserved to

be dismissed.

The High Court upheld the preliminary objection of the

respondent and dismissed the petition.

In the appeal to this Court on behalf of the appellant

it was contended : (1) that where the legislature wanted to

provide for summary dismissal of the election petition, the

legislature has spoken on the matter and that the intention

was to provide for summary dismissal only in case of failure

to comply with the requirement of sections 81, 82 and 117

and not section 83; (2) that the powers to reject an

election petition summarily under the provisions of the Code

of Civil

783

Procedure should not be exercised at the threshold, and that

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the Court must proceed with the trial, record the evidence,

and only after the trial of the election petition is

concluded that the powers under the Code of Civil Procedure

for dealing with the defective petition which does not

disclose cause of action should be exercised.

Dismissing the appeal,

^

HELD : 1. The results of an election are subject to

judicial scrutiny and control only with an eye on two ends.

First, to ascertain that the ’true’ will of the people is

reflected in the results and second, to secure that only the

persons who are eligible and qualified under the

Constitution obtain the representation. In order that the

"true will" is ascertained the Courts will step in to

protect and safeguard the purity of Elections, for, if

corrupt practices have influenced the result, or the

electorate has been a victim of fraud or deception or

compulsion on any essential matter, the will of the people

as recorded in their votes is not the ’free and true’ will

exercised intelligently by deliberate choice. It is not the

will of the people in the true sense at all. And the Courts

would, therefore, be justified in setting aside the election

in accordance with the law if the corrupt practices are

established. So also when the essential qualifications for

eligibility demanded by the constitutional requirement are

not fulfilled, the fact that the successful candidate is the

true choice of the people is a consideration which is

totally irrelevant notwithstanding the fact that it would be

virtually impossible