Writ jurisdiction can be invoked to further election process, not vitiate it: Bombay High Court

The Bombay High Court recently held that High Courts are empowered to exercise writ jurisdiction in election-related petitions only if such intervention would further the election process, rather than vitiate it [Aashish Kishor Gadkari v. Election Commission of India and Anr].

A vacation Bench of Justices Arif S Doctor and Somasekhar Sundareshan made the observation while dismissing a petition by Ashish Gadkari, an independent candidate from the 173 Chembur Constituency, challenging the rejection of his nomination for the upcoming Maharashtra Legislative Assembly elections.

Gadkari’s nomination had been rejected by the Returning Officer due to the absence of the proposer's signature on the nomination form. The petition was filed on November 5, 2024, just one day after the final list of candidates was published on November 4, 2024.

In its judgment, the Court noted that any judicial interference at this stage would disturb the established rights of other candidates and hinder the smooth progress of the election process.

"Therefore, to put in a nutshell, the law as it stands, is that it cannot be stated as an absolute proposition that the writ courts are totally denuded of any jurisdiction whatsoever under Article 226, when there is a challenge made before the electoral process or after completion of the electoral process. Likewise, it must be noticed that interference is warranted even when an election process is on, provided the interference subserves and facilitates the progress of the election, rather than result in vitiating the election," the bench noted.

The Court also referred to the apex court's judgment in State of Goa v Fouzia Imtiaz Shaikh, where a three-judge bench of the Supreme Court had reiterated the principle that courts must adopt a "hands-off" approach during the election process, intervening only if the process is yet to begin or after its completion, unless such intervention would help facilitate the election.

The High Court noted that the election process in this case had already progressed to a stage where candidates’ rights were crystallized, and that any judicial interference would disrupt the smooth conduct of the election.

"It is a matter of public record that the time at which the scrutiny would commence was well known in the schedule published by the Election Commission," the Bench added, while stressing that all parties involved were aware of the deadlines and procedures established by the Election Commission.

The Court further explained that the petitioner's failure to submit a complete nomination form, including the proposer's signature, could not be overlooked.

The Bench observed that while the petitioner had argued that he was under a "bona fide belief" that merely naming the proposer was sufficient compliance, the nomination rules clearly required the proposer’s signature to be part of the nomination form.

"Not only was the oath not administered within the stipulated time, but also, the nomination form itself is not signed by the proposer," the High Court noted, concluding that these procedural lapses left no scope for intervention.

The Court also pointed out that the petitioner had been notified of the necessary requirements well in advance.

"The oath which had to be administered had not been completed although a deadline of 12:00 noon on October 29, 2024 was indeed communicated to the Petitioner, as is seen from the checklist of objections given to the Petitioner by the Returning Officer."

In light of these facts, the High Court concluded that no case had been made out for judicial intervention.

"In an election process, time as to performance of the activities stipulated in the schedule is of the essence. If there is any administrative decision that vitiates the progress of the process, a writ court may intervene, but in the instant case, in view of the facts involved, no case has been made out for intervention since not only was the oath not administered within the stipulated time, but also, the nomination form itself is not signed by the proposer," the Court said.

Senior Advocate Arshad Shaikh along with Advocate Prashant Trivedi instructed by Advocate Khushboo Jain appeared for the petitioner.

Advocate Akshay Shinde appeared for the Election Commission of India

Additional Government Pleader Himanshu Takke appeared for the State

[Read Order]