Report No. 255

E. Comparative Practices

10.28. The IDEA Institute has developed a set of guidelines on the conduct and challenge of elections reproduced below:

• "The legal framework should provide that every voter, candidate and political party has the right to lodge a complaint with the competent electoral body or court when an infringement of electoral rights is alleged to have occurred.
• The law must require that the appropriate electoral body or court render a prompt decision to avoid the aggrieved party losing his or her electoral right.
• The law must provide a right of appeal to an appropriate higher level of electoral body or court with authority to review and exercise final jurisdiction in the matter. The decision of the court of last resort must be issued promptly.
• The legal framework should provide for timely deadlines for the consideration and determination of a complaint and the communication of the decision to the complainant."475

475. IDEA, International Electoral Standards: Guidelines for reviewing the legal framework of elections,
<http://www.idea.int/publications/ies/upload/electoral_guidelines-2.pdf>, at 93-94

10.29. The Venice Commission or the European Commission for Democracy through Law is another international body dealing with constitutional law, including election related procedures. More specifically, it is the independent consultative body of the Commission of Europe with independent experts as members. Item II.3.3 of the Venice Commission's Code of Good Practice in Electoral Matters stipulates the primary principles governing the process for filing an election petition to challenge an election, or for failure to comply with the electoral law. On the question of challenge, the Code states:

"If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results. There are two possible solutions:

• appeals may be heard by the ordinary courts, a special court or the constitutional court;
• appeals may be heard by an electoral commission the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second."

10.30. The Code further emphasises the importance of keeping the time limits to lodge appeals and issue rulings as short as possible, keeping the procedure simple, eliminating formalism to "avoid decisions of inadmissibility", granting wide standing, clearly specifying the jurisdiction of different courts/tribunals and the appeal powers.476

476. uropean Commission for Democracy through Law, Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report, Adopted by the Venice Commission at its 521st Session, October 2002, CDL-AD(2002)023rev-e, at 29-31
<http://www.venice.coe.int/webforms/documents/CDL-AD%282002%29023rev-e.aspx>

10.31. Finally, the third international body regulating the resolution of election disputes is the Office for Democratic Institutions and Human Rights (hereinafter "ODIHR"), the specialist institution in the Organisation for Security and Cooperation in Europe dealing with election matters and election observations. In its Resolving Election Disputes report, the ODHIR makes the following observations with respect to the prompt resolution of disputes:

"Considering that the conduct of an election requires prompt decisions and actions within a pre-determined timeframe, the procedures governing election disputes should differ from those provided for general civil disputes. This could be reflected in shorter deadlines and a single appeal process, which can be justified so long as sufficient time is provided to file complaints and appeals.

For each phase or facet of the electoral process (such as voter registration or the validity of the candidatures), the electoral law should expressly and systematically set deadlines for filing complaints and appeals by which either the courts or the electoral bodies must reach a decision."

10.32. ODIHR lays down a time period of two months to determine all complaints and appeals because of its emphasis on ensuring that election outcomes are not delayed and recognises the ability to challenge election outcomes as an arguably integral part of the right to free elections under Article 3 of the First Protocol to the ECHR.477 The ODIHR in addition delineates certain general principles along the lines articulated above.

477. ODIHR, Resolving Election Disputes in the OSCE Area: Towards a Standard Election Monitoring System, OSCE, (2000),
<http://www.osce.org/odihr/elections/17567?download=true> at 9-13

10.33. Apart from these international principles, it in instructive to look at the system in a similar parliamentary democracy, namely the United Kingdom. Election disputes in the UK are resolved by an election petition process before an election court, which comprises two judges of the Queen's Bench Division, who are on rota for the trial of parliamentary election petitions.

The election court has the same jurisdiction, power and authority as the High Court; it conducts a full trial, including determining the prevalence of corrupt practices, concluding with a certified determination to the Speaker of the House of Commons.478 The House of Commons is required to give effect to the election court's decision.

478. UK Law Commission, Electoral Law in the United Kingdom, SCOPING CONSULTATION PAPER, (June 2012), at para 4.8, (hereinafter "LCI UK"),
<http://lawcommission.justice.gov.uk/docs/electoral_law_scoping_consultation.pdf>

10.34. The procedure for challenging an election in the UK differs from India in the following significant aspects:479

479. Ibid. at chapter 4

• "The election court is not a "standing" court or a division of the High Court permanently in existence. Instead it is a temporary court (usually) constituted in the constituency where the particular election was conducted,480 and once it has concluded its task of deciding the petition, the election court cannot revisit or add to its decision subsequently. R v. Cripps ex parte Muldoon, [1984] QB 686

480. Section 123(3) of the UK Representation of Peoples Act, 1983 (hereinafter "UK RPA")

• The returning officer is deemed to be a respondent to the election petition if the administration of the election is under question, although they are not allowed to bring a petition.482

482. The Electoral Commission, Changing Elections in the UK, September 2012, at 5 (hereinafter "EC UK"),
<http://www.electoralcommission.org.uk/__data/assets/pdf_file/0010/150499/Challengingelections-in-the-UK.pdf>

• The Senior Master of the Queen's Bench Division fixes security for costs, although usually the initial cost of bringing a parliamentary election petition is over £ 5,000.483

483. Rule 4 of the Election Petition Rules 1960; Section 136, UK RPA. See also LCI UK, supra note 478, at paras 4.32 and 4.33

• The election petition must be filed within 21 days of the date of return, although there is "limited power to extend [this] time" period.484 Similar to India, courts have regarded compliance with time limits, formal requirements and security for costs as "mandatory", with no discretion to extend time (under the Civil Procedure Rules) or relax the requirements even under exceptional circumstances. Williams v.
  The Mayor of Tenby, (1879-80) LR 5 CPD 135; Absalom v. Gillett, [1995] 1 WLR 128 at p 128; Ahmed v. Kennedy, [2003] 1 WLR 1820 at [23]. See also LCI UK, supra note 478, at para 4.35. Nevertheless, in a case concerning the extension of time under the Election Petition Rules (instead of the 1983 RPA), the High Court granted the same citing the disproportionate relation of mandatory time limits to the legitimate aim of securing speedy redress of election disputes.

484. Section 122, UK RPA. Also see LCI UK, supra note 480,at para 4.33

• No appeal can be filed on a question of fact, although questions of law can be appealed via a "special case" to the High Court.487 A judicial review is also available for any error in law. R (Woolas) v. The Parliamentary Election Court, [2010] EWHC 3169 (Admin)

487. Sections 144, 146(4), UK RPA

• The election court has a mixture of inquisitorial (it can call and examine witnesses unilaterally) and quasi-criminal (the role of the Director of Public Prosecutions and the court's duty to report corrupt or illegal practices) characteristics."

10.35. In a bid to simply and expedite the process of challenging the electoral process or alleging that candidates committed electoral offences, which can take up to two years to decide,489 the UK Election Commission assessed the election challenge procedure on two ground.- accessibility and transparency; and the proceeding.- promptness, sanctions, and appeal. Along with the Law Commission, it has made the following recommendations:

489. EC UK, supra note 482, at 5

On accessibility and transparency,490

490. Ibid., at 12

Locus standi should be granted widely to facilitate the challenge of election outcomes and the UK RPA, 1983 should be amended to clarify the grounds of challenge and the scope of the election court's jurisdiction.491

491. Ibid., at 4,12. See also LCI UK, supra note 478, at para 4.30

• Challenge procedures should be simplified and a formalistic approach, rendering election petitions inadmissible for procedural errors, should be avoided.
• The cost of challenging an election should be none, or should be kept to a minimum to prevent deterring citizens from filing election petitions.
• A clear, coherent, consistent, and uniform body of law across different elections should govern the resolution of election disputes.
• The challenge process should be transparent and easy to understand.
• Citing the Election Commission's call for simpler and more accessible process of challenging elections, the Law Commission has criticised the "strict formality and general complexity of election petitions [that] constitute a high bar to access to the courts." It has further suggested that petitions should only be filed if they affect the outcome of the election.492

492. Ibid., at para 4.39

The proceeding.- promptness, sanctions, and appeal493

493. EC UK, supra note 482, at 12-13

• A decision on the challenge should ideally be given within two months, subject to exceptional circumstances.
• In the event of a successful challenge, appropriate sanctions such as annulment of election results and holding fresh elections should be permissibly authorised.
• Instead of the current provision only permitting the filing of a judicial review, the electoral law should provide a statutory right to appeal to a body capable of reviewing and exercising final jurisdiction in the matter. The appeal should be decided promptly.
• There should be a clear demarcation of the jurisdiction of the courts based on the type of case being heard.

10.36. In the United States, the system is vastly different, and contested election and recount rules vary by States, election types, criteria and procedures such as standing, procedures, grounds, and security deposits.494 Further, Article I, Section 5 of the US Constitution states that that each House shall be the judge of its own elections, returns, and qualifications of members.

Thus, the House is entitled to judge contested elections involving its seats, and is not bound by agreement of the parties or decisions of state tribunals, with its determination as to the right to the seat being final and nonjusticiable. Roudebush v. Hartke, 405 US 15 (1972); GPO, Election Contests and Disputes,
<http://www.gpo.gov/fdsys/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-23.pdf>
at 460.

At the federal level, election disputes are governed by the Federal Contested Elections Act, 1969, 2 USC §§ 381 that lays down the procedure by which defeated candidates may have their claim to the seat be adjudicated by the House.

494. National Clearinghouse on Election Administration, Contested Election and Recounts, (1990),
<http://www.eac.gov/assets/1/Documents/Contested%20Elections%20&%20Recounts%201.pdf> at iii, 5

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