Challenging the bye-election to the Rampur Legislative Assembly Constituency in December 2022, the petitioner alleged that the whole election process was a farce as hundreds of voters, especially from Muslim-majority areas, were stopped from voting.
—-
A Supreme Court bench comprising Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala refused to entertain a public interest litigation (PIL) challenging the bye-election to the Rampur assembly constituency of the Uttar Pradesh Vidhan Sabha held on December 5, 2022, holding it outside the court jurisdiction under Article 32.
The petition, Sulaiman Mohd. Khan versus Election Commission of India, filed by advocate and petitioner-in-person Sulaiman Mohd. Khan, requested the court to declare that Rampur’s bye-elections were null and void on the grounds that hundreds of voters were stopped from casting their voting, thus violating all constitutional guarantees of free and fair elections.
The Rampur assembly seat fell vacant when the incumbent legislator, Samajwadi Party (SP) leader Md. Azam Khan, was disqualified from the Vidhan Sabha after being convicted last October for offences under Sections 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 505(1)(b) (statements conducing to public mischief) of the Indian Penal Code for making an inflammatory speech.
Subsequently, the Election Commission of India (ECI) announced a notification declaring the schedule for bye-polls, including for the Rampur assembly constituency. The SP candidate, Asim Raja, a close aide of Khan, eventually lost to Bharatiya Janata Party (BJP) candidate Akash Saxena. Saxena is the first non-Muslim candidate to have won in the Rampur constituency.
The CJI-led bench questioned the petitioner on why he did not file an election petition before the concerned high court, which, in this case, is the Allahabad High Court. The petitioner responded that they had filed the petition when the results were yet to be declared, because it was an issue that needed immediate attention, as a case of gross undermining of democracy. However, the bench countered that since the results have already been declared, the only plea lies through an election petition.
The term ‘election petition’ is mentioned in Section 80 of the Representation of the People Act, 1951. Section 80A, inserted into the Act in 1966, specifically mentions that a high court has the jurisdiction to try an election petition.
Senior advocate Sanjay Hedge, appearing for the petitioner, told the court that the rights of the voters were suppressed and only the Supreme Court could do something about it. However, since the court was reluctant to entertain their plea, they requested a withdrawal of the petition. The court remarked that its jurisdiction concerning larger public interest is completely misconceived. The petition was dismissed as withdrawn.
About the petition
The petitioner contended that the present PIL arose as a result of blatant ‘unconstitutionalism’ which occurred during the Rampur assembly elections.
According to the petition, the police authorities and the administration, including returning officers, used unconstitutional means to stop voters from Muslim-majority areas from casting their votes, as these people usually do not vote for the candidate of the BJP (the ruling party in the state and at the Centre).
The petition claimed that voters were pushed, abused and brutally beaten by the police authorities to stop them 100-200 metres from polling booths. The police also raided houses of voters before the polling day and warned them of police action if they cast their votes against BJP. There are also claims that suspicious men, dressed in police uniforms with concealed identities and allegedly linked to the BJP, threatened the voters of Muslim-majority areas from voting. The petitioner, who is a voter in the Rampur district, also alleged that attempts were made to stop him from voting as well but he managed to cast his ballot somehow. As a result of these malpractices, the total polling percentage fell to a historic low of 33. 94 percent , the petition stated.
The petitioner named the ECI, the Uttar Pradesh State Election Commission, the returning officers of Rampur assembly constituency and all other concerned authorities who were responsible for conducting fair and free elections, as respondents.
ECI is an independent constitutional body under Article 324 of the Constitution of India. It is responsible for conducting elections at the national and state levels.
The petition stated that in more than 250 of the total 400 polling booths, police authorities prevented the general public from exercising their right to vote. The petitioner pointed out that he has already written complaints to the concerned authorities, including the District Magistrate of Rampur. A written complaint has also been sent to the Chief Election Commissioner, he added.
The petitioner urged that in light of the massive and large-scale fraud, the whole election process should be quashed and the bye-election should be declared unconstitutional, illegal and, resultantly, null and void. Further, the petition requested the court to pass orders for a thorough inquiry by an independent body into this issue.
Lastly, the petitioner urged that the Supreme Court lay down guidelines for free and fair elections.
