Section 97: Recrimination When Seat Claimed
Section 97 of the Representation of the People Act, 1951 governs recrimination in an election petition where the petitioner asks not only to set aside the returned candidate's election but also to declare another candidate duly elected. It permits the returned candidate or another party, subject to strict conditions, to challenge the entitlement of the candidate whose seat is claimed.
Text of Section 97 - Recrimination when seat claimed
(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.
What does recrimination mean in an election petition?
Recrimination is a statutory defence to a further declaration that someone other than the returned candidate was duly elected. Where such relief is sought, the returned candidate or another party may attempt to establish that the proposed candidate's election would itself have been void on grounds that could have supported an election petition against that candidate. It is not an independent election petition or an unrestricted opportunity to challenge any candidate.
Conditions for raising recrimination under Section 97
1. A declaration in favour of another candidate must be claimed
Section 97 applies when the election petition seeks a declaration that a candidate other than the returned candidate was duly elected, as contemplated by Section 84. A petition seeking only to declare the returned candidate's election void does not, by itself, trigger the recrimination procedure.
2. Notice within fourteen days of commencement of trial
The returned candidate or another party intending to lead evidence by way of recrimination must give notice to the High Court within fourteen days from commencement of trial. The explanation to Section 86(4) defines commencement for Section 97 as the date fixed for the respondents to appear before the High Court and answer the petition's claims. It should not be assumed to mean the first day on which oral evidence is recorded.
3. Security and further security for costs
The party raising recrimination must provide security and further security as referred to in Sections 117 and 118. These requirements are express statutory preconditions to entitlement to lead recriminatory evidence.
4. Proper pleadings, particulars and verification
Under Section 97(2), the notice must be accompanied by the statement and particulars required by Section 83, and must be signed and verified in the same manner as an election petition. Material facts and, where applicable, full particulars of alleged corrupt practices must be pleaded.
Relationship with Sections 84, 100 and 101
Section 84 allows the petitioner to seek a declaration that another candidate was duly elected. Section 100 identifies grounds for declaring an election void, while Section 101 specifies the circumstances in which a candidate other than the returned candidate may be declared duly elected. Section 97 gives an opposing party a conditional opportunity to show why the candidate proposed to be declared elected would have been vulnerable to an election challenge.
Practical illustration
Suppose an election petitioner seeks to invalidate the returned candidate's election and also asks the High Court to declare the runner-up elected. The returned candidate may seek to prove, through a compliant recrimination notice, that the runner-up's hypothetical election would have been void on a legally recognized ground. To rely on such evidence, the returned candidate must meet the notice, security and pleading requirements of Section 97.
Official statutory and judicial resources
Read the Representation of the People Act, 1951 on India Code, consult the Election Commission of India for election administration resources, and use the Supreme Court of India portal for relevant judicial decisions. The statutory text, applicable amendments and High Court rules should be checked for the specific proceeding.