Mohamed Imranullah S.
MADURAI: In an election contested by more than two candidates, courts cannot declare a runner-up as the winner, while nullifying the election of the successful candidate on the ground of disqualification, the Madras High Court has ruled.
Partly allowing a civil revision petition on the election for the president of the Poyyakkaraipatti panchayat here, Justice V. Ramasubramanian said votes polled in favour of a returned candidate could be considered invalid or ‘thrown away,’ only if there were two candidates in the fray. “This is on account of the fact that if the Returning Officer himself had rejected the nomination of such a candidate on the basis of disqualification, it would have been an uncontested election,” the 70-page judgment read.
On the other hand, wherever there were more than two contestants, the doctrine of thrown-away votes could be invoked only if it was established that the voters had full knowledge of such disqualification, yet they had voted in the manner they did. Further, such knowledge should be explicit as dealt with in an English judgment in Beresford Hope Vs. Lady Sandhurst (1889), wherein a woman contested an election, in which only men alone were allowed to contest.
“Courts have assigned the term ‘notoriety of basic fact’ for such cases. In cases where the disqualification is not so notorious, votes polled in favour of the returned candidate cannot be treated as invalid,” Mr. Justice Ramasubramanian said.
He said that if the disqualification of a returned candidate was kept suspended by a stay or injunction granted by a court, the votes polled in favour of such a candidate could not be treated as invalid or thrown-away votes.
“The stay order was itself a message sufficient for the electors to presume that such a candidate was entitled to have their votes. Therefore, the question of discarding their votes as invalid post-facto would infringe upon the freedom of choice available to the electors in a democratic republic,” the judge said.
Referring to the Representation of People Act and the Tamil Nadu Panchayat Elections Rules, he said: “The legislature has not treated the election as a race or a sporting event, in which if the winner is declared disqualified, the runner-up will automatically get elevated.”
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