Article 329(b) does not bar post-election writ relief where the elected member lacked the basic qualification to sit.
Article 329(b) bars interference with an election during the electoral process, but that bar does not extend to a post-election challenge where the elected person never possessed the basic constitutional and statutory qualification to be chosen. In that situation, Article 226 may be invoked even if an election petition is no longer available. The text also states that a candidate for a State Legislative Assembly must be an elector of a constituency in the State under Article 173(c) and Section 5(c) of the Representation of the People Act, 1951; a person lacking that qualification cannot validly continue to sit and vote, and restraint from functioning as a member is treated as consistent with the constitutional scheme.
Issues: (i) Whether the High Court's jurisdiction under Article 226 of the Constitution was barred by Article 329(b) in a case where the returned candidate was found not to possess the basic qualification of being an elector of the constituency. (ii) Whether, after the election process was over and no election petition had been filed within limitation, the returned candidate could be restrained from continuing as a member of the Legislative Assembly on the ground that his election and continuance offended Articles 173, 191 and 193 of the Constitution and Section 5 of the Representation of the People Act, 1951.
Issue (i): Whether the High Court's jurisdiction under Article 226 of the Constitution was barred by Article 329(b) in a case where the returned candidate was found not to possess the basic qualification of being an elector of the constituency.
Analysis: Article 329(b) bars judicial interference only in matters that call in question an election during the election process, the statutory remedy being an election petition under the election law. The cases relied on for the general bar concerned challenges to election steps, nominations, polling, or counting while the election was in progress. Here, however, the election process was over, the returned candidate was found to have secured the seat by impersonation and false assertion of electoral qualification, and the challenge was not to an ongoing electoral step but to continued occupation of a seat by a person lacking the constitutional and statutory qualification to hold it. In such a situation, the wide reach of Article 226 was not excluded, especially where the statutory election-petition remedy had become unavailable by lapse of time and the case disclosed a direct violation of the constitutional scheme.
Conclusion: The High Court's jurisdiction under Article 226 was not barred, and the writ petition was maintainable.
Issue (ii): Whether, after the election process was over and no election petition had been filed within limitation, the returned candidate could be restrained from continuing as a member of the Legislative Assembly on the ground that his election and continuance offended Articles 173, 191 and 193 of the Constitution and Section 5 of the Representation of the People Act, 1951.
Analysis: A person can be chosen to a State Legislature only if he satisfies the qualifications prescribed by Article 173(c) of the Constitution read with Section 5(c) of the Representation of the People Act, 1951, namely that he must be an elector for an Assembly constituency in the State. The appellant was found not to be an elector of the relevant constituency and therefore lacked the basic qualification to be chosen from that seat. Article 193 further contemplates a penalty where a person sits or votes knowing that he is not qualified. The Court distinguished the constitutional scheme relating to post-election disqualification from the scheme governing challenges to an election by petition, and held that allowing a person who was never qualified to continue to sit and vote would amount to a fraud on the Constitution. In these circumstances, the High Court could declare that he was not entitled to function as a member and restrain him from doing so.
Conclusion: The appellant was not qualified to be chosen or to continue as a member of the Legislative Assembly, and the restraint order was valid.
Final Conclusion: The appeal failed because the returned candidate lacked the fundamental constitutional and statutory qualification for membership, and the High Court was competent to prevent him from occupying the legislative seat notwithstanding the election-petition bar.
Ratio Decidendi: The bar under Article 329(b) does not preclude the High Court from exercising Article 226 jurisdiction after the election is over where the person elected never possessed the basic constitutional and statutory qualification to sit as a member, and a writ may issue to prevent continuance in office in such a case.
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