How to file Election Petitions? Order XLVI of Supreme Court Rules 2013
1. In this Order, unless the context or subject-matter otherwise requires:-
(a) 'the Act' means the Presidential and Vice-Presidential Elections Act 1952;
(b) the words defined in Sections 2 and 13 of the Act shall have the respective meanings assigned to them by those Sections.
2. An application calling in question an election shall only be by a petition made and presented in accordance with the provisions of this Order.
3. The petition shall be made on a Court-fee stamp of the value of rupees twenty thousand and shall be signed by the petitioner or all the petitioners, if there are more than one, or by a duly authorised advocate on record of the Court, on his or their behalf.
4. The petition shall be divided into paragraphs numbered consecutively each paragraph being confined to a distinct portion of the subject and shall be printed or typed legibly on one side of standard A-4 size paper.
5. The petition shall state the right of the petitioner under the Act to petition the Court and briefly set forth the facts and grounds relied on by him to sustain the relief or reliefs claimed by him.
6. The allegations of fact contained in the petition shall be verified by an affidavit to be made personally by the petitioner or by one of the petitioners, if more than one:
Provided that where the petitioner is unable to make such affidavit by reason of absence illness or other sufficient cause it may with the sanction of the Judge in Chambers to be given at the time of the presentation of the petition be made by any person duly authorised by the petitioner and competent to make the same.
7. A petition calling in question an election may be presented on one or more of the grounds specified in sub-section
(i) of section 18 and section 19 of the Act by any candidate at such election, or in the case of Presidential election, by twenty or more electors joined together as petitioners;
(ii) in the case of Vice-Presidential election, by twenty or more electors joined together as petitioners.
8. Every petition calling in question an election shall bear a certificate from an Advocate designated as Senior Advocate to the effect that the petition discloses one or more substantial questions for challenging the election of the President or the Vice-President as the case may be.
9. Where the petitioner claims a declaration under clause (a) of Section 16 of the Act he shall implead the returned candidate as the respondent and "'here he claims a declaration under clause (b) of the said section he shall implead as respondents all candidates, other than himself, duly nominated at the election.
10. The petition may be presented at any time after the date of publication of the declaration containing the name of the returned candidate at the election under Section 12 of the Act, but not later than thirty days from the date of such publication.
11. The presentation of the petition shall be made by delivering it to the Registrar of the Court in his Chamber in the Court House, unless it is presented before the Judge in Chambers under rule 6.
12. The petitioner shall also lodge, along with the petition, at least twelve copies of the petition and of all documents which accompany it.
13. Upon the presentation of the petition, the petitioner, shall deposit a sum of Rupees fifty thousand in cash / by bank draft with the Registrar or officer nominated by him as Security for the payment of all costs that may become payable by the petitioner.
14. The petitioner presenting a petition shall be represented by an advocate and in case it is so necessary the Court may direct that legal aid be provided to the petitioner.
15. Upon presentation of a petition the same shall be posted before a bench of the Court consisting of five Judges for preliminary hearing and orders for service of the petition and advertisement thereof as the Court may think proper and also appoint a time for hearing of the petition. Upon preliminary hearing, the Court, if satisfied, that the petition docs not deserve regular hearing as contemplated in Rule 22 of this Order may dismiss the petition or pass any appropriate order as the Court may deem fit.
16. Unless otherwise ordered, the notice of the presentation of the petition, accompanied by a copy of the petition, shall within five days of the presentation thereof or within such further time as the Court may allow, be served by the petitioner or his advocate on record on the respondent or respondents, the Secretary to the Election Commission, the Returning Officer and the Attorney-General for India. Such service shall be effected personally or by registered post, as the Court or Registrar may direct. Immediately after such service the petitioner or his advocate on record shall file with the Registrar an affidavit of the time and manner of such service.
17. Unless dispensed with by the Judge in Chambers or the
Registrar, as the case may be, notice of the presentation of the
petition shall be published in the Official Gazette and also
advertised in newspapers at the
expense of the petitioner or petitioners, fourteen clear days before the date appointed for the hearing thereof in such manner as the Court or the Registrar may direct.
18. Every elector shall on payment of the usual fees be entitled within twenty-four hours after such payment, to be furnished by the petitioner or his advocate on record with a copy of the petition and of the affidavit in verification thereof and shall also be entitled upon payment of the prescribed ,fees to obtain copies from the Court.
19. A person on whom the notice of the presentation of the petition has been served or any other candidate or an elector who intends to appear on the hearing of the petition shall leave with, or send by registered post to, the petitioner or his advocate on record, notice of such intention signed by him or his advocate on record, if any.
Such notice shall be served or if sent by registered post, shall be posted in time to reach the addressee not later than two clear days before the day appointed for the hearing of the petition. No person who has failed to comply with this rule shall be allowed to appear on the hearing of the petition without the leave of the Court.
20. An affidavit intended to be used by a person other than the petitioner either in support of the petition or in opposition to the same shall be filed not less than five days before the date fixed for the hearing thereof and notice of the filing thereof shall be given to the petitioner or his advocate on record on the day on which the affidavit is filed. If any person fails to comply with this rule the affidavit, unless the Court otherwise directs shall not be used at the hearing of the petition.
21. An affidavit intended to be used in reply to an affidavit filed in opposition to, or in support of the petition shall be filed not less that two days before the date fixed for the hearing of the petition. Notice of such filing shall be given forthwith to the person by whom the affidavit in opposition to, or in support of the petition, as the case may be, was filed or to his advocate on record.
22. Every petition calling in question an election shall be posted before and be heard and disposed of by a Bench of the Court consisting of not less than Five Judges.
23. The petition shall not be withdrawn, save with the leave of the Court to be obtained upon application made for the purpose by notice of motion.
24. Where there are more petitioners than one, no application to withdraw a petition shall be made except with the consent of all the petitioners given in writing.
25. An application for leave to withdraw a petition which has
been advertised in accordance with the provisions of rule 17
shall not be heard at any time before the date fixed in the
advertisement for the hearing of
26. No application for withdrawal shall be granted if in the opinion of the Court such application has been induced by any extraneous or improper bargain or consideration.
27. When a petitioner applies for leave to withdraw his petition or asks that it be dismissed or that the hearing thereof be adjourned without mentioning sufficient cause or fails to appear in support thereof or if appearing does not apply for an order in terms thereof or if for any other sufficient reason the Court thinks so to do, the Court may, upon such terms as it thinks just, make an order permitting the petitioner to withdraw or striking off the petitioner from the petition and may, upon such terms as it thinks just, substitute as petitioner any other candidate or any other elector or body of electors who in its opinion would have a right to present a petition and is desirous of prosecuting the petition already admitted.
28. If no order for substitution of a new petitioner or petitioners be made by the Court under the rules but the Court only permits the withdrawal of the petition, or strikes off the petitioner or petitioners from the petition, notice of the order of withdrawal of the petition or striking off the petitioner or petitioners shall be published by the Registrar in the Official Gazette and in the newspapers in which the original petition had been advertised under rule 17 and the Court may, on the application made within fourteen days of the publication of such notice in the Official Gazette by any other candidate or in the case of Presidential election, another twenty electors, and in the case of Vice Presidential election another ten electors who might himself or themselves have been a petitioner or petitioners make an order upon such terms as it thinks fit, substituting such petitioner or petitioners in place of the petitioner or petitioners withdrawing or not appearing at the hearing or not proceeding with the petition. If no such application is made within the time aforesaid or, if made, the Court does not think fit to grant the same, the original petition shall stand dismissed.
29. Where the Court allows a candidate or any elector or body of electors to be substituted as petitioner or petitioners under rule 27 or rule 28, the Court shall appoint a date for the hearing of the petition and such substituted petitioner or petitioners shall within seven days from the making of the order file a clean copy of the petition with such consequential amendments as may be necessary by reason of the order of substitution therein and shall also file an affidavit verifying such amendments. The amended petition shall be treated as the petition for calling in question the election 30. Upon hearing the application for withdrawal or at the time of making an order for substitution, the Court may, if it thinks fit, by order direct that the amount deposited by the original petitioner or petitioners as security for the costs of the respondent be applied in payment of the costs incurred by him up to the date of the substitution of the new petitioner or petitioners, so far as it may be necessary, and the balance, if any, shall be refunded to the original petitioner or petitioners within seven days from the date of the order of substitution or such further time as the Court may allow.
31. Unless otherwise ordered by the Court, the substituted petitioner or petitioners shall deposit with the Registrar a sum of Rupees fifty thousand as and by way of security for the costs of the respondents.
32. An election petition shall abate by the death of a sole petitioner or in case of several petitioners on the death of the survivor or them:
Provided that there shall be no abatement after the hearing of the petition has been concluded.
33. The abatement of a petition shall not affect the liability of the amount deposited by the petitioner as security for costs or the estate or the petitioner or petitioners for the payment of costs previously incurred.
34. On the abatement of a petition under rule 32, notice of such abatement having taken place shall be published by the Registrar in the Official Gazette and the newspapers in which the original petition had been advertised and the Court may on the application made within fourteen days of the publication of such notice in the Official Gazette by any other candidate or body of electors who might have been a petitioner or petitioners as the case may be make an order, upon such terms as it thinks fit, substituting him or them in the place of the original petitioner or petitioners and the procedure prescribed in rule 29 and the provisions of rule 31 shall apply in relation to the substituted petitioner or petitioners.
35. If before the conclusion of the hearing of an election
petition any contesting respondent dies or gives notice that he
does not intend to oppose the petition and there is no other
respondent who is opposing the
petition, the Registrar shall cause a notice of such facts to be published in the Official Gazelle and the newspapers in which the original petition had been advertised and any candidate or in the case of Presidential election, twenty electors, and in the case of Vice-Presidential election, ten electors who might have been a petitioner or petitioners may, within fourteen days after such publication, apply to be substituted in the place of the respondent dying or not proceeding with his opposition to oppose the petition and the Court may make such order upon such terms as it thinks fit.
36. Subject to the provisions of this Order or any special
order or directions of the Court, the procedure on
an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction.
37. At the conclusion of the hearing of the election
petition, the Court shall make an order at once or on some
future day of which due notice shall be given by the Registrar
to all persons who appeared at the hearing
of the petition.
38. Soon after the conclusion of the hearing of the petition, the Registrar shall submit a statement to the Court showing the Court-fees and other expenses incurred by each party to the petition and the total number of days of hearing of the petition.
39. At the time of passing the final order under rule 37, the Court shall also make an order fixing the total amount of costs payable and shall further direct by and to whom the said costs shall be paid.
40. After the order of the Court has been announced, the Registrar shall send a copy thereof to the Central Government for publication in the Official Gazette.
(E) ELECTION PETITIONS