“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”
Karnataka High Court: Krishna S. Dixit J dismissed the petition being devoid of merits.
The facts of the case are such that the petitioner, a Returned Candidate of Karle Grama Panchayat whose election having been set at naught, the first respondent was declared as having been duly elected in her stead by the Election Tribunal, knocked the doors of Writ Court for assailing the order dated 10-11-2021.
The Court relied on judgment Jyoti Basu v Debi Ghoshal , (1982) 1 SCC 691and observed that the case does not involve infraction of any of the Fundamental Rights. It relates to only statutory rights namely, right to continue in office till the expiry of elected tenure. Matters relating to election are it to the grass root electoral bodies such as Grama Panchayats or to the Parliament do fall within the realm of law of elections, as legislated.
The Court remarked the jugular vein of the election petition was the validity of four ballot papers namely, which were excluded from the Court in favour of the first respondent – Election Petitioner on the ground that they belonged to a different constituency.
The election tribunal observed “The materials on record clearly indicates that the 4 votes rejected as not genuine appears to be not proper for the reason that the said Ballot papers have been handed over by the officials themselves to the voters. The intention of the voter in making the mark on the symbol under which petitioner contested the election go to show that the said vote was casted in favour of the petitioner. Further, the Ballot papers which were admittedly handed over by the respondent No.3 to the voters have been treated as not genuine, which cannot be accepted because admittedly the same are issued by respondent No.3.
On election symbols, the Court observed that the election symbols of the candidates or their political parties through which they are put in the fray assume a lot of significance. These symbols are normatively by the jurisdictional authorities constituted under law. The election symbols play a vital role inasmuch as, ordinarily, the electors identify their candidates on the basis of symbols with which they contest in the elections, and vote. It is more so in the case of election to ‘grass-root’ level local bodies like the one in this case.
The Court observed that in the present case, though the ballot papers belonged to other constituency, there is irrefutable evidence on record that they were utilized for the election in this constituency; they had the same electoral symbol; they were taken & used for the constituency in question after scrutiny by the jurisdictional authorities; the voters acted upon the same accordingly.
The Court thus held, “the Election Tribunal rightly faltered their exclusion from counting and thereby, reckoned them to the account of Respondent–Election Petitioner, who eventually has been declared as duly elected, after invalidating the election of Returned Candidate.”[Prabhamani v. Hemalatha, 2022 SCC OnLine Kar 628, decided on 01-04-2022]
For petitioner: Mr. Sathish SP
For respondent: Mr. Basavaraju HT and Prathima Honnapura