Lawsikho Blog

Learn about the concept of an election petition filed before the Supreme Court and how to draft them. If you are someone who wants to practice in the Supreme Court or if you are preparing for the Supreme Court Advocate on Record exam, then this article is a must-read for you.

Introduction

When you practice in the Supreme Court, it comes with its adrenaline rush because almost every matter is of national importance. Amid constitutional challenges and high-stakes litigation, there is one category of case that strikes at the very heart of our democracy: election petitions.

I am not referring to the petitions filed in High Courts over legislative assembly elections. I am talking about the rare and constitutionally significant petitions that challenge the election of the President or the Vice President of India—the two highest constitutional offices in the country.

Despite the gravity of these cases, there is hardly any structured information on how to draft one or what procedural and legal nuances to watch out for.

In this blog, I aim to bridge that gap. We will not just learn how to draft an election petition, but also what law governs it, and how the Supreme Court deals with it. 

Are you ready? Then let us begin.

What is an election petition, and when is it filed in the Supreme Court?

An election petition is a petition used to inquire into any issue related to elections.

In case of Parliamentary or local government elections, the High Court has the original jurisdiction to decide on election petitions under the Representation of the People Act,1951.

When it comes to the election of a President or Vice-President, only the Supreme Court has the exclusive jurisdiction to inquire into and decide all doubts and disputes, and its decision is final.

If the Supreme Court declares an election void, any actions performed by that person in their official capacity before the decision will remain valid.

What is the legal framework that governs election petitions filed before the Supreme Court?

• Under Article 71 of the Constitution of India, only the Supreme Court has the jurisdiction to inquire into and decide all doubts and disputes, and its decision is final.
• Order XLVI of the Supreme Court Rules, 2013 deals with Election Petitions.
• To regulate elections to the offices of President and Vice-President of India, the parliament enacted the Presidential and Vice-Presidential Elections Act, 1952. 

Who can file an election petition before the Supreme Court?

According to Order XLVI, Rule 7 of the Supreme Court Rules 2013, read with section 14A of the Presidential and Vice-Presidential Elections Act, 1952, the election petition can be filed:

• by any candidate at such an election, or 
• In the case of a Presidential election, twenty or more electors joined together as petitioners; 
• In the case of the Vice Presidential election, twenty or more electors joined together as petitioners.

What are the grounds for filing an election petition before the Supreme Court?

An election petition may be presented on one or more of the grounds specified in section 18(1) and section 19 of the Presidential and Vice-Presidential Elections Act, 1952.

Section 18 states the following grounds for declaring the election to be void:

• The returned candidate or someone with their consent committed bribery or undue influence;
• The election result was materially affected due to:

(i) improper acceptance or rejection of votes,
(ii) violation of constitutional or legal provisions, or
(iii) wrongful acceptance of a nomination of a non-winning candidate;

• That a candidate’s nomination was wrongly rejected, or the winner’s nomination was wrongly accepted.

Section 19 states that if a petitioner challenges the election of a returned candidate and also claims that they or another candidate should be declared elected, and the Supreme Court finds that the petitioner or such candidate actually received the majority of valid votes, the Court shall declare the election of the returned candidate void and declare the rightful candidate as duly elected.

For those who are unaware, a “returned candidate” means a candidate whose name has been published under section 12 as duly elected.

How to draft an election petition before the Supreme Court?

We will consider the following facts to draft this petition.

Brief facts

The Election Commission of India issued a Gazette Notification dated 15.04.2024 for the vacancy for the post of the President of India. Thereafter, a Public Notice dated 30.04.2024 was issued inviting nominations for the election of the President of India. The Public Notice contained the qualifications, along with relevant dates for filing, withdrawal, and closing of nominations. The last date for filing of the nominations was mentioned as 30.06.2024, whereas the last date for withdrawal of nominations was 25.07.2024.

 Mr. A, Mr. B, and Mrs. C filed their respective nominations before the Returning Officer on 01.06.2024, 08.06.2024, and 25.06.2024. Thereafter, the scrutiny of the said candidates was conducted by the Returning Officer as per the Presidential and Vice-Presidential Election Act, 1952, on 05.07.2024, 06.07.2024, and 09.07.2024, respectively.

After preparing the Electoral Roll, elections were held to elect the President of India on 05.08.2024, and the results were declared on 06.08.2024, and Mr. A was declared as the successful candidate.

 Mr. B and Mrs. C have challenged the said election on the grounds that at the time of filing the Nomination, Mr. A was the Chairman of the Indian Statistical Institute, Kolkata, and hence was holding an office of profit.

I have given the explanation in red to help you understand the purpose of each part of the petition.

Explanation: A synopsis is a brief summary of the matter and must include the Order being challenged, the nature of the dispute, the main grounds of the challenge, and the relief sought. It should highlight the important points that form the foundation of the case, ensuring the court understands the core issues at the outset. 

SYNOPSIS 

The present Petition is being filed by the Petitioners under Article 71 of the Constitution of India r/w Section 14 of the Presidential and Vice-Presidential Elections Act, 1952 r/w Order XLVI of the Supreme Court Rules, 2013, calling into question the Presidential Election dated 06.08.2024, whereby the Respondent herein was declared as the Returned Candidate. The Petitioners, vide the present Petition, are praying for a declaration of the aforementioned election as void.

The brief facts of the present case are that the Election Commission of India issued a Gazette Notification dated 15.04.2024 for the vacancy for the post of the President of India. Thereafter, a Public Notice dated 30.04.2024 was issued inviting nominations for the election of the President of India. The Public Notice contained the qualifications, along with relevant dates for filing, withdrawal, and closing of nominations.

The last date for filing of the nominations was mentioned as 30.06.2024, whereas the last date for withdrawal of nominations was 25.07.2024. Both the Petitioners and the Respondent, A,  filed their respective nominations before the Returning Officer on 01.06.2024, 08.06.2024, and 25.06.2024, respectively. Thereafter, the scrutiny of the said candidates was conducted by the Returning Officer as per the Presidential and Vice-Presidential Election Act, 1952, on 05.07.2024, 06.07.2024, and 09.07.2024, respectively.

After preparing the Electoral Roll, elections were held to elect the President of India on 05.08.2024, and the results were declared on 06.08.2024, where the Respondent was declared the successful candidate. The Petitioners have challenged the determination of the Respondent as the Returned Candidate on the ground that at the time of filing the Nomination, the Respondent was the Chairman of the Indian Statistical Institute, Kolkata, and hence was holding an office of profit. It is submitted that the same is a disqualification under Article 58 (2) of the Constitution of India, and as such, the election of the Respondent, being in violation of the said constitutional provision, ought to be held void.

Hence, this present Petition is being filed by the Petitioners before this Hon’ble Court for the said relief.

Explanation: The list of dates and events is a chronological sequence of significant events relevant to the case. It must be detailed to enable the court to understand the entire matter at the threshold.

LIST OF DATES AND EVENTS

Date	Event
15.04.2024	The Election Commission of India issued a Gazette Notification announcing a vacancy for the post of President of India to initiate the election process and fill the presidential office formally.
30.04.2024	The Election Commission issued a Public Notice inviting nominations for the election of the post of President of India. The notice mentioned the qualifications that are required for candidates, as per Article 58 of the Constitution, and also specified important dates.
01.06.2024	Petitioner B submitted their nomination papers to the Returning Officer for the Presidential Election as a candidate in the election process well before the deadline specified in the Public Notice. The Petitioner B submitted all required documents, in compliance with the provisions of the Presidential and Vice-Presidential Elections Act, 1952.
08.06.2024	Petitioner C submitted their nomination papers to the Returning Officer for the Presidential Election as a candidate in the election process well before the deadline specified in the Public Notice. The Petitioner C submitted all required documents, adhering to the provisions of the Presidential and Vice-Presidential Elections Act, 1952.
25.06.2024	Respondent A submitted their nomination papers to the Returning Officer for the Presidential Election as a candidate in the election process well before the deadline specified in the Public Notice. The Respondent A submitted all required documents in accordance with the provisions of the Presidential and Vice-Presidential Elections Act, 1952.
05.07.2024	The Returning Officer conducted the scrutiny of Petitioner B’s nomination papers, as per the Presidential and Vice-Presidential Elections Act, 1952. The scrutiny confirmed that Petitioner B’s nomination was valid.
06.07.2024	The Returning Officer conducted the scrutiny of Petitioner C’s nomination papers, in accordance with the Presidential and Vice-Presidential Elections Act, 1952. The scrutiny process assessed Petitioner C’s eligibility, confirming that the nomination met all legal requirements.
09.07.2024	The Returning Officer conducted the scrutiny of Respondent A’s nomination papers, as mandated by the Presidential and Vice-Presidential Elections Act, 1952.
05.08.2024	The Presidential Election was conducted to elect the President of India. Voting took place across designated polling stations, with electors casting their votes as per the Electoral Roll prepared by the Election Commission. The election adhered to the procedures outlined in the Presidential and Vice-Presidential Elections Act, 1952. The process was overseen by the Returning Officer to ensure fairness and compliance with legal requirements.
06.08.2024	Respondent A was declared as the successful candidate (Returned Candidate) in accordance with section 12 of the Presidential and Vice-Presidential Elections Act, 1952.
04.09.2024	Petitioners B and C filed the present election petition in the Supreme Court of India, challenging the election of the Respondent.

Explanation: This section of the petition must mention the court that is going to hear the case and the nature of the jurisdiction of the Court under which it will entertain the petition, along with the case number, names, and description of the parties and the position of the parties before the Commission.

IN THE SUPREME COURT OF INDIA

  CIVIL ORIGINAL JURISDICTION

        ELECTION PETITION NO. _[●]_ OF 2024

IN THE MATTER OF:

B 

Age:

Parent’s Name:

Address:

And 

C

Age:

Parent’s Name:

VERSUS

A

Age:

Parent’s Name:

The petitioner must implead the returned candidate or other candidates nominated in the election, depending on the nature of the relief sought.

PETITION UNDER ARTICLE 71 OF THE CONSTITUTION OF INDIA READ WITH SECTION 14 OF THE PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS ACT, 1952 READ WITH ORDER XLVI OF THE SUPREME COURT RULES, 2013 ON BEHALF OF THE PETITIONERS

TO

THE HON’BLE THE CHIEF JUSTICE OF INDIA

 AND HIS COMPANION JUSTICES OF THE 

HON’BLE SUPREME COURT OF INDIA

MOST RESPECTFULLY SHOWETH:

The petition will begin in the same manner as the synopsis, wherein you mention the challenge in brief.

1. That, the present Petition is being filed by the Petitioner(s) under Article 71 of the Constitution of India r/w section 14 of the Presidential and Vice-Presidential Elections Act, 1952 r/w Order XLVI of the Supreme Court Rules, 2013 calling into question the Presidential Election dated 06.08.2024, whereby the Respondent herein was declared as the Returned Candidate. The Petitioner(s) vide the present Petition is/are praying for a declaration of the aforementioned election as void.

As per Order XLVI Rule 5 of the Supreme Court Rules, 2013, the petition shall state the right of the petitioner under the Act to file the present petition in the Court.

2. The Petitioners submit that they have the right to approach this Hon’ble Court by way of the present petition, given that they were themselves candidates in the said Presidential election and therefore have the express right to challenge the election before this Court under the provisions mentioned earlier.
3. In particular, with respect to their right to challenge the election, the Petitioners herein were the contesting candidates in the Impugned Election, and were declared unsuccessful vide the result dated 06.08.2024. Therefore, the Petitioner has the locus standi to challenge the Impugned Election by way of this present Petition, and the Petition is filed within limitation.

You must give a brief description of the parties involved in the matter.

4. The Petitioners, B and C, are distinguished public figures and elected members of both Houses of Parliament and the Legislative Assemblies of the States. Petitioner B is a sitting member of the Lok Sabha, representing a recognised political party, and has actively contributed to parliamentary proceedings, establishing their eligibility and standing to contest the Presidential election. Petitioner C is a sitting member of the Rajya Sabha, affiliated with a prominent political party, and possesses significant experience in legislative matters, further affirming their qualification to participate in the election. The Respondent, A, is a sitting member of the Lok Sabha, who applied for a nomination as a candidate for the Presidency and was one of the candidates for the aforementioned election.

You start by mentioning the brief facts of the matter leading to the petition and attaching all relevant documents to the petition.

5. That, the brief facts of the present case are that:

1. That the Election Commission of India issued a Gazette Notification dated 15.04.2024 for the vacancy for the post of the President of India. Thereafter, a Public Notice dated 30.04.2024 was issued inviting nominations for the election of the President of India. A copy of the Gazette Notification dated 15.04.2024 and the Public Notice dated 30.04.2024 are hereto annexed as Annexure “P-1” and Annexure “P-2”.
2. The Public Notice contained the qualifications, along with relevant dates for filing, withdrawal and closing of nominations. 
3. The last date for filing of the nominations was mentioned as 30.06.2024, whereas the last date for withdrawal of nominations was 25.07.2024. 
4. Both the Petitioners and the Respondent, A, filed their respective nominations before the Returning Officer on 01.06.2024, 08.06.2024 and 25.06.2024, respectively. Thereafter, the scrutiny of the said candidates was conducted by the Returning Officer as per the Presidential and Vice-Presidential Election Act, 1952, on 05.07.2024, 06.07.2024 and 09.07.2024, respectively.
5. After preparing the Electoral Roll, elections were held to elect the President of India on 05.08.2024. In the said elections, the Respondent was declared the successful candidate on 06.08.2024.  A copy of the declaration of result dated 06.08.2024 is hereto annexed as Annexure “P-3”.
6. The Petitioners have challenged the determination of the Respondent as the Returned Candidate on the ground that at the time of filing the Nomination, the Respondent was the Chairman of the Indian Statistical Institute, Kolkata, and was drawing remuneration directly from the Government of India at the time of filing his nomination and the same amounts to office of profit.
7. It is submitted that the same is a disqualification under Article 58 (2) of the Constitution of India, and as such, the election of the Respondent, being in violation of the said constitutional provision, ought to be held void. In view of the aforementioned facts and the settled principles of law, the Respondent herein was not even eligible to contest for the post of the President of India, and hence, his candidature is void.

You start by mentioning the grounds in support of the petition. Remember that grounds always begin with “Because”. 

6. That the Impugned Election is void on the grounds: 

Holding an office of profit at the time of filing nomination disqualifies a candidate under constitutional provisions, rendering the election void as it violates the eligibility criteria.

1. BECAUSE the determination of the Respondent as the Returned Candidate ought to be held void, as at the time of filing the nomination, the Respondent was the Chairman of the Indian Statistical Institute, Kolkata, and was holding an office of profit. In the context of the meaning of “office of profit”, the Supreme Court, in the case of Ravanna Subanna v. G.S. Kaggeerappa [AIR 1954 SC 653], held as under:

“The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments, or allowance is attached. The word “profit” connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount   would   not   be   material;   but   the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.”

In the present case, since the Respondent was drawing remuneration from the Government of India, which amounts to an office of profit. Therefore, on this ground alone, the Respondent was ineligible to become the President of India as the Respondent had not resigned.

The failure of the Respondent to resign from the office of profit before nomination contravenes this constitutional mandate, making the declaration as a Returned Candidate legally invalid.

2. BECAUSE the same is a disqualification under Article 58 (2) of the Constitution of India, and as such, the election of the Respondent and his declaration as the Returned Candidate was in violation of the said constitutional provision.

Improper scrutiny undermines the integrity of the election process, as the Returning Officer has a duty to ensure compliance with constitutional and statutory eligibility requirements.

3. BECAUSE the Respondent’s nomination papers were erroneously scrutinised and the same ought not to have been approved since the Respondent was holding an office of profit.

The omission to address the disqualification before entering the election process invalidates the candidature.

4. BECAUSE the Respondent ought to have cured his disqualification prior to declaring his nomination and participating in the election process for the post of President of India, as was announced by the Election Commission of India.

Section 18(1)(c) of the Presidential and Vice-Presidential Elections Act, 1952 allows an election to be declared void if the nomination of the candidate was improperly accepted despite a material disqualification.

5. BECAUSE the Respondent was holding an office of profit, the nomination of the Respondent was wrongly accepted as a candidate and the Respondent’s election ought to be held void. In this regard, Section 18(1)(c) of the Presidential and Vice-Presidential Elections Act, 1952 provides that if the nomination of a candidate has been wrongly accepted, then the same is a valid ground to declare the election void, which squarely applies in the present case.

7. It is accordingly prayed that the Impugned Election is liable to be set aside on the grounds enlisted earlier in this petition.

Finally, you mention the prayer clause requesting the petition to be allowed, followed by a declaration. Here is how the prayer clause shall look in the present case

PRAYER

In view of the above, it is most respectfully prayed that this Hon‟ble Court may be pleased to:

1. Allow the present Petition and declare the Impugned Election dated 06.08.2024 of the Respondent as void.
2. Pass such other Order in the facts and circumstances of the case, as this Hon’ble Court may deem fit and proper in the interest of justice

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

Drawn and Filed By:

(Advocate-on-Record)

What is the period of limitation for filing an election petition in the Supreme Court?

Under Order XLVI rule 10 of the Supreme Court Rules, 2013, the petition must be filed not later than 30 days from the date of publication of the declaration containing the name of the returned candidate at the election under section 12 of the Act.

What is the process of adjudication after filing an election petition in the Supreme Court?

Under Order XLVI, Rules 15 to 21 of the Supreme Court Rules, 2013 deal with the process of adjudication.

• Upon presentation of a petition, it is posted before a Bench of five Judges for a preliminary hearing. If the Court is satisfied that the petition does not deserve a regular hearing, the Court may dismiss the petition or pass appropriate orders as it may deem fit.
• The petitioner or Advocate-on-Record must serve notice of the petition within five days of the presentation thereof or within such further time as the Court may allow, accompanied by a copy, to the respondents, the Election Commission Secretary, the Returning Officer, and the Attorney-General for India. Service can be personal or by registered post as directed by the Court or Registrar.
• Notice of the presentation of the petition must be published in the Official Gazette and advertised in newspapers at the petitioner’s expense, 14 clear days before the date of hearing. 
• Electors can obtain copies of the petition and related documents upon payment of fees.
• Anyone intending to appear at the hearing must provide notice to the petitioner or Advocate-on-Record, signed by them or their advocate. 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 condition shall be allowed to appear on the hearing of the petition without the leave of the Court.
• Affidavits intended to support or oppose the petition must be filed not less than five days before the date fixed for the hearing, and notice of the filing 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 shall not be used at the hearing of the petition without the direction of the Court.
• 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 than two days before the date fixed for the hearing of the petition. Notice of such filing shall be given 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

Under Order XLVI, Rules 15 to 21 of the Supreme Court Rules, 2013 deal with passing of orders and steps after conclusion of the hearing.

After the conclusion of the hearing of the election petition, the Supreme Court will promptly make an Order either immediately or on a specified future date, ensuring that due notice is provided by the Registrar to all individuals who participated in the hearing of the petition.

Following the conclusion of the hearing of the petition, the Registrar will submit a statement to the Court mentioning the court fees and other expenses incurred by each party involved in the petition, along with the total number of days the petition was heard. 

Upon passing the final Order under, the Court will also issue an Order specifying the total amount of costs to be paid and direct to whom these costs are payable.

Once the Order of the Court is announced, the Registrar will send a copy to the Central Government for publication in the Official Gazette.

This concludes the procedure of adjudicating election disputes before the Supreme Court of India.

Conclusion

By now, you have understood that drafting an election petition before the Supreme Court is not a copy-and-paste work, but it requires an understanding of the constitution.

You cannot treat it as a routine issue, as it questions the validity of an election to the highest constitutional office in the country.

It may seem overwhelming at first, but once you wrap your head around it, it will be rewarding to make a mark for yourself in practice.

 Hope this blog has given you a head start. Now make it count.

Frequently asked questions (FAQs)

1. What is the court fee and security deposit to be paid in an election petition filed before the Supreme Court?

As per Order XLVI Rule 3 of the Supreme Court Rules 2013, the court fees of Rs. 20,000 shall be paid on the election petition.

Under Order XLVI Rule 13 of the Supreme Court Rules 2013, the petitioner must, upon the presentation of the petition, deposit Rs. 50,000 in cash or by bank draft as security for payment of all costs that may become payable by the petitioner.

2. Is any certificate required to be filed along with the election petition?

As per Order XLVI Rule 8 of the Supreme Court Rules 2013, every petition must bear a certificate from a designated Senior Advocate stating that it raises substantial questions challenging the election.

3. How many judges on the bench listen to the election petition filed before the Supreme Court?

As per Order XLVI Rule 22 of the Supreme Court Rules, 2013, the petition shall be posted and be heard and disposed of by a Bench of the Court consisting of not less than Five Judges.

4. Can an election petition be withdrawn after filing it?

According to Order XLVI Rule 23 of the Supreme Court Rules, 2013, 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.

According to Order XLVI Rule 24 of the Supreme Court Rules, 2013, 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.

5. How many copies of the petition have to be filed with the registry of the court?

As per Order XLVI Rule 12 of the Supreme Court Rules, 2013, the petitioner must lodge, along with the petition, at least twelve copies of the petition and of all documents which accompany it.

6. What is the qualification for election as the President?

According to Article 58 of the Constitution, a person shall be eligible for election as President if he is a citizen of India, has completed the age of thirty-five years, and  is qualified for election as a member of the House of the People.

However, a person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.