New Delhi: The Election Commission has no obligation to countermand an election on the death of a registered political party candidate or an independent
candidate after the list is announced, the Supreme Court has ruled.
A bench of justices R M Lodha and H L Gokhale passed the ruling upholding an appeal filed by Independent MLA Jitu Patnaik, challenging a Orissa High Court order-directed trial on the petition of a defeated Congress candidate Sanatan
Mohakud from Champua Assembly Constituency.
Interpreting Section 52 of the Representation of Peoples Act, the apex court said poll can be countermanded only upon the death of a recognised political party`s candidate.
"Section 52 enjoins that if a candidate set up by a recognised political party dies before the poll, the poll must be adjourned.
It does not provide any obligation on the returning officer if a candidate of a registered political party, other than recognised political party or an independent
candidate, dies after the list of the contesting candidates as defined in Section 38 is published," said Justice Lodha writing the judgement.
In this case, an independent Akhila Kumar Mohanta died on April 13, 2009, after the list of candidates was announced but his name was not deleted and included in the Electronic Voting Machines (EVMs). Interestingly, he polled 550 votes in the elections held on April 23 while Congress candidate Sanatan Mohakud secured 27,555 votes, just 145 votes less than 27,700 votes polled by the winning independent candidate Jitu Patnaik.
Mohakud challenged Patnaik`s election contending the deceased also belonged to Congress but contested as an Independent after being refused a ticket. He submitted had Mohanta`s name been deleted after his death, the votes would have accrued to him.
The Congress candidate submitted the margin of votes between the returned candidate and himself was only 145 and had 550 votes not been cast in favour of the deceased candidate, the result of the election would have been otherwise.
He also argued the Election Commission, as per its "handbook", was bound to mask the name of the deceased candidate in EVMs, which it failed to do, thus adversely
affecting his prospects.
Rejecting the argument, the apex court said there was no duty imposed on the poll panel to carry out such an exercise and any such reference in the handbook would not have any statutory value.
"In this view of the matter, there was no duty imposed on the returning officer to mask the name of the candidate at Sl. no. 9, Akhila Kumar Mohanta, who was an independent candidate and who died on April 13, 2009, after publication of list of
validly nominated candidates being a contesting candidate as defined in Section 38.
"Moreover, the instructions in the handbook are only guidelines. These instructions have no statutory force," the apex court said allowing Patnaik`s appeal. The bench also rejected various other contentions raised by the Congress candidate.