Section 116B: Stay of Operation of High Court Orders
Section 116B of the Representation of the People Act, 1951 governs when the High Court or the Supreme Court may stay an election-petition order made under Section 98 or Section 99. It also explains the legal effect of a stay and the authorities who must receive the stay order.
Text of Section 116B
Section 116B - Stay of operation of order of High Court
(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or section 99 before the expiration of the time allowed for appealing therefrom and the High Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.
(2) Where an appeal has been preferred against an order made under section 98 or section 99, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from.
(3) When the operation of an order is stayed by the High Court or, as the case may be, the Supreme Court, the order shall be deemed never to have taken effect under sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court or, as the case may be, the Supreme Court, to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned.
Meaning and scope of Section 116B
Election petitions are decided by the High Court under Part VI of the Act. Section 98 concerns the final orders in an election petition, including dismissal, declaration that an election is void, or declaration that another candidate was duly elected. Section 99 concerns findings about corrupt practices and naming persons proved to have committed them, subject to statutory safeguards. Section 116B allows the operation of these orders to be suspended while an appeal is contemplated or pending, but a stay is discretionary rather than automatic.
When and where can a stay be requested?
Before an appeal is filed: High Court
Under Section 116B(1), an application may be made to the High Court before the appeal period expires. The applicant must show sufficient cause. The High Court may impose terms and conditions. Once an appeal has been preferred to the Supreme Court, a stay application cannot be made to the High Court under this provision.
After an appeal is filed: Supreme Court
Under Section 116B(2), after an appeal against a Section 98 or Section 99 order is preferred, the Supreme Court may stay that order upon sufficient cause and on appropriate conditions. Section 116A provides for an appeal to the Supreme Court on questions of law or fact, ordinarily within 30 days from the High Court order, subject to the Supreme Court's power to entertain a delayed appeal for sufficient cause.
Effect of a stay under Section 116B(3)
Under Section 107(1), an order under Section 98 or 99 ordinarily takes effect as soon as the High Court pronounces it, subject to the stay provisions. If its operation is stayed under Section 116B, subsection (3) provides that the order is deemed never to have taken effect under Section 107(1). This statutory effect relates to the operation of the order during the stay; the stay does not, by itself, finally reverse the underlying judgment or dispose of the appeal.
The court granting the stay must immediately send a copy to the Election Commission and the relevant Speaker or Chairman of the House of Parliament or State Legislature concerned.
Practical points for election disputes
- Identify the challenged order: the provision specifically covers orders under Sections 98 and 99.
- Check the stage: before filing the appeal, the High Court may entertain a timely stay application; after filing, the Supreme Court is the forum under Section 116B.
- Explain sufficient cause: a stay requires judicial satisfaction and may be subject to conditions.
- Distinguish stay from appeal: filing an appeal does not itself suspend the High Court's order.
- Ensure communication: the court must transmit the stay order to the specified constitutional and election authorities.
Frequently asked questions
Does filing an election appeal automatically stay the High Court order?
No. Section 107 ordinarily gives immediate effect to the order, and a stay must be granted under Section 116B.
Can the High Court grant a stay after an appeal is filed?
No. Section 116B(1) expressly prohibits a stay application to the High Court after an appeal has been preferred to the Supreme Court.
What happens when a stay is granted?
Under Section 116B(3), the stayed order is deemed never to have taken effect under Section 107(1), and the court must immediately communicate the stay to the specified authorities.
Official legal sources
For the authoritative consolidated legislation and amendments, consult India Code (Government of India). For election administration information, visit the Election Commission of India. For court procedure, see the Supreme Court of India. The statutory text and applicable rules should be checked against official publications before filing.