Judicial Review in Electoral Matters

In this article, you will read about judicial interference in electoral matters, its power to review, subject matter primarily under judicial review and some of the landmark judgements.

Jurisdiction in Electoral Matters

Judicial review is the authority granted to the Supreme Court and the High Court to examine the constitutionality of legislative and executive actions. The primary goal of judicial review is to protect the public and Fundamental Rights.

Bare Act PDFs

The constitutionally mandated Election Commission of India (ECI) holds India’s state and union elections. The Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the President and Vice President of India can all be elected through the ECI.

The High Court and Supreme Court can hear petitions challenging the Election Commissioners’ decisions, but once the election process has started, they cannot interfere with how the elections are conducted.

Election petitions are the only means through which the judiciary can review an election’s outcome. The Election Commission itself lacks the authority to examine the election results. Additionally, this election petition can only be submitted to the High Court concerning elections for the State Legislatures.

Election petitions are the only means through which the judiciary can review an election’s outcome. For state legislature elections, these petitions are submitted to the High Court. However, in the case of Parliament elections for the President or Vice President, the petitions can only be submitted before the Supreme Court, and the High Court lacks jurisdiction in such matters. It’s important to note that election-related concerns are outside the scope of jurisdiction for civil courts.

Power of Judicial Review in India

The Indian Constitution is thought to be safeguarded by the judiciary. Judicial review is the safeguard if the legislature passes a bill that conflicts with the Constitution. Likewise, if executive actions are such that they go against a fundamental principle of the Constitution, judicial review is the safeguard.

Bare Act PDFs

As a result, any passed law that conflicts with a basic right listed in Part III of the Constitution is void, as stated in Article 13. Therefore, the High Court is given the authority to conduct judicial reviews under Articles 226 and 227, and the Honorable Supreme Court is given the authority under Article 32.

In accordance with a number of important case laws, including Kesavananda Bharti vs State of Kerala (1973) and Indira Nehru Gandhi vs Raj Narain, judicial review was regarded as one of the fundamental elements of the Constitution.

Subject Matter Primarily Under Judicial Review

Judicial review is not restricted to specific subject matters. Nonetheless, the courts are empowered to exercise judicial review in the following situations:

1. Any measure passed by the legislature that is later proven to be arbitrary or to violate the fundamental principles of the Constitution may be ruled unconstitutional by the courts. Whether or not anything is considered “arbitrary” or in violation of the Constitution depends on how the judges perceive the situation.

2. Judicial review has the power to declare void administrative actions that are deemed to be infringing in nature.

3. In the case of Hamdard Dawakhana vs Union of India (1960), the Parent Act (the Drugs and Cosmetics Act, 1940) was taken into the ambit of judicial review, and it was declared void on the grounds of excessive delegation. The case involved a challenge to the Drugs and Cosmetics Act, which had granted wide powers to the government to make rules regulating the manufacture and sale of drugs and cosmetics. The court held that the delegation of powers was excessive and violated the principle of separation of powers, which is an essential feature of the Indian Constitution.

4. In India’s current Constitution, the main topic of the judicial review relates to:

  • (i) The enactment of legislative acts that are inconsistent with the constitutional provisions governing the division of powers.
  • (ii) When the legislature transfers crucial legislative authority to the executive branch or another body.
  • (iii) A Fundamental Right is violated.
  • (iv) Violating a number of additional constitutional prohibitions that are written into the Constitution.
  • (v) Breaking implicit constraints and limitations.

Involvement of the Judiciary in Electoral Cases

According to Article 329 of the Constitution, no other court may hear a case or procedure challenging a parliamentary or state legislative election.

To challenge the validity of an election, a petition must be filed following the procedure specified by the law. The Representation of the People Act, 1951, which was enacted by Parliament under Article 327 of the Constitution, governs various electoral matters. Part VI of the Representation of the People Act specifically addresses the procedures and legal provisions related to elections.

According to the Representation of the People (Amendment) Act 1966, election petitions can be heard by the High Court. The High Court now hears election petitions directly, and according to Articles 132, 133, and 136, one may appeal the High Court’s decision to the Supreme Court.

The Election Commission is not permitted to independently review any results once the voting is over and they have been made public. In relation to elections for the Parliament and State Legislatures, this can only be examined through the procedure of an election petition, which can be submitted before the High Court.

The jurisdiction to hear election petition cases lies exclusively with the respective High Courts of the states. Appeals against the decisions of the High Courts can be made to the Supreme Court of India by parties aggrieved by the High Court’s ruling. It is important to note that apart from the Supreme Court, challenges to the election of the President and Vice President cannot be filed in any other court or authority.

Cases Where Judicial Interference Has Helped Positively

In the following case, the courts looked into the situation and helped the EC understand the responsibility that was placed on them.

The Supreme Court summoned representatives of the EC in one of the incidences and conveyed their concern over the “hate speech” made by BSP leader Mayawati and UP Chief Minister Yogi Adityanath during their campaign.

The EC then took additional action by imposing a 72-hour and 48-hour ban on the two candidates’ ability to campaign, respectively.

The EC might act arbitrarily in some situations. Thus, the courts might utilize their authority to resist it. The High Court ruled that the EC’s decision to remove 20 AAP members from office for having a profit-making position was unlawful because they were not given a chance to be heard. It was decided to return the case to the EC for further hearing.

Cases Where Judicial Interference Might Cause Problems

Instances may arise where the decisions of the Election Commission (EC) fail to meet the satisfaction of certain parties. However, it should be noted that the Supreme Court has often declined to intervene and investigate election-related matters. In a specific case, the Supreme Court rejected an application made by a third party seeking scrutiny of the EC’s ruling. The Election Commission, being an independent constitutional body, holds the authority to make decisions in such matters.

In situations where parties are dissatisfied with the Election Commission’s judgments, they may not directly apply for judicial review of those judgments. The bench, presided over by Chief Justice Ranjan Gogoi, clarified that the EC’s decision, whether right or wrong, has been finalized. The aggrieved parties are advised to pursue separate writ petitions if they wish to contest the EC’s decision.

Landmark Judgments

Here are the summaries of two landmark judgements.

Indira Nehru Gandhi vs Raj Narain, 1975 AIR 2299

In this instance, Indira Gandhi’s opponent in the elections was a politician named Raj Narain. Ms Indira Gandhi easily won the elections. Raj Narain, however, brought a malpractice claim before the court.

As a result of the court’s ruling in Raj Narain’s favour, Ms Gandhi was ordered to step down as Prime Minister of the country. After being upset by this ruling, she filed an appeal with the Supreme Court. However, due to domestic unrest, the President proclaimed a national emergency while the appeal was pending before the Supreme Court.

Furthermore, during that time, the 39th Amendment was enacted, which specifically excludes the elections of the President, Prime Minister, Vice President, and Speaker of the Lok Sabha from judicial review by the courts. Consequently, the Supreme Court is barred from exercising its jurisdiction to hear the mentioned case.

The constitutionality of the 39th Amendment was thus contested in this instance. The change was declared unlawful and arbitrary by the court. The court ruled that it was essential to keep in mind the fundamental elements of the Indian Constitution. One of the basic structures is judicial review. Such an amendment jeopardized the nation’s foundational belief in free and fair elections.

Election Commission of India vs Ashok Kumar & Ors. (1978) 1 SCC 405

In Election Commission of India vs Ashok Kumar & Ors., the Election Commission of India published a notification stating that areas, where voting was to be done by ballot paper, were to have their votes mixed together rather than station by station, in accordance with the authority granted by Rule 59A of the Conduct of Election Rules, 1961.

In opposition to this specific notification, writ petitions were sent to the High Court, insisting that the counting be done station-by-station. The High Court granted the petitioner relief. This order infuriated the ECI, who submitted an SLP (Special Leave Petition) to the Supreme Court.

The Supreme Court reversed the High Court’s decision, arguing that Article 329(b) prevented the elections from being called into doubt until the process was still ongoing.


An electoral process cannot be subjected to judicial scrutiny. It does not, however, imply that the ECI has unrestricted authority. The courts may take the ECI’s decision under review.

Furthermore, judicial involvement was not permitted during the electoral process. This is done to prevent any more postponements of the election process since, in the event of judicial intervention, it would take a while for the court to review the matter and render a decision.

However, since our country’s courts serve as its peacekeepers, they occasionally have issued orders to the ECI directing it to enhance or monitor the electoral processes and ensure that the Model Code of Conduct is appropriately implemented.

Suhani Dhariwal
WritingLaw » Law Notes » Judicial Review in Electoral Matters in India Law Study Material
If you are a regular reader, please consider buying the Law PDFs and MCQ Tests. You will love them. You may also support us with any amount you like. Thank You.