Is a writ petition barred by Article 329(b) of the Constitution where the reliefs claimed seek to declare the returned candidate's election void?

2.1. Before adverting to the rival contentions, it is necessary to briefly set out the facts, which are drawn substantially from the petitioner’s own affidavit filed in support of the writ petition.

2.2. The Election Commission of India notified the general election to the Tamil Nadu Legislative Assembly on 30.03.2026. The petitioner filed his nomination on the same date and contested from No.13, Kolathur Assembly Constituency on the symbol “Rising Sun”. Polling took place on 23.04.2026 and counting on 04.05.2026. On the latter date, the fourth respondent, the nominee of Tamilaga Vettri Kazhagam, was declared elected. The petitioner secured the second highest number of votes.

2.3. The petitioner relies on the judgment of the Supreme Court in Association for Democratic Reforms v. Election Commission of India[^1], by which certain directions were issued for a post-result mechanism permitting the candidates placed at serial numbers 2 and 3, behind the returned candidate, to seek checking and verification of the burnt memory of the Control Unit, Ballot Unit and VVPAT in 5% of the machines used in the constituency, for any tampering or modification. Pursuant to these directions, the Election Commission issued an Administrative and a Technical Standard Operating Procedure, the latest consolidated version being dated 17.06.2025.

2.4. On 07.05.2026, the petitioner applied for such checking and verification in respect of fourteen polling stations, being 5% of the 286 polling stations in the constituency, and deposited the prescribed fee. The process commenced only on 29.07.2026, after a delay of nearly three months, and continued until 05.08.2026, when the third respondent addressed the impugned communication to the petitioner enclosing certified copies issued by the engineer of Bharat Electronics Limited in respect of the fourteen polling stations, declaring the process to have been carried out successfully.

2.5. In the course of the verification, the petitioner’s authorised representative raised several objections. It was pointed out that the VVPAT units at Polling Station Nos.28 and 75 malfunctioned during the confirmatory mock poll; that the EVM carrying cases relating to Polling Station No.157 bore blank or irregularly sealed address tags, said to be in breach of Rule 49-T of the Conduct of Elections Rules, 1961; that two ballot units at Polling Station No.79 did not tally with the recorded address tags; and that, at Polling Station No.208, the Control Unit failed, on the very date of the impugned order, to detect a Ballot Unit said to bear the petitioner’s name. The petitioner also complains that eighteen technical clarifications sought from the Bharat Electronics Limited engineer, and a request for the video recording of the proceedings, were left unanswered, and that no signed technical failure report was furnished in respect of any of these occurrences.

2.6. On this foundation, the writ petition has been filed, praying, in substance, for three sets of reliefs: first, a writ of certiorarified mandamus quashing the impugned order dated 05.08.2026 and directing 100% counting of VVPAT slips for the constituency, together with checking and verification of all 286 machines deployed therein; second, a direction to preserve CCTV footage, custody registers, address tags and allied material; and third, a writ of declaration that the election of the fourth respondent as the returned candidate be declared void, and that the petitioner be declared the duly elected candidate for No.13, Kolathur Assembly Constituency.

4.1. Mr.Rajagopalan, learned Senior Counsel appearing for the Election Commission, referring to Article 329(b) of the Constitution of India and Section 80 of the Representation of the People Act, 1951, he submitted that the writ petition, in substance and effect, calls in question the election of the returned candidate and is, therefore, barred.

4.2. It is further submitted that the prayer for a recount, under the guise of 100% counting of VVPAT slips, is premature and not feasible to be considered in writ jurisdiction without the foundational facts, which ordinarily are required to be established before an Election Tribunal.

4.3. It is also submitted that the petitioner, if aggrieved, ought to have filed an election petition within forty-five days as prescribed under Section 80 of the Act, and cannot, merely because that period has since elapsed during the pendency of the administrative verification process, invoke the extraordinary jurisdiction of this Court to circumvent the bar.

4.4. He further submitted that, if writ petitions are entertained, it would amount to opening a Pandora’s box, permitting every candidate placed second or third, dissatisfied with the outcome of the post-result verification exercise, to bypass the statutory forum and rush to this court, thereby defeating the very scheme of the Act.

5.1. Mr.Dama Seshadri Naidu, learned Senior Counsel, also appearing for the Election Commission of India, addressed the Court on the same preliminary objection and elaborated upon it further. Learned Senior Counsel submitted that the writ petition, though outwardly framed as a challenge to an administrative order certifying the completion of the verification process, is, on a fair reading, an alchemy of artful drafting designed to circumvent Article 329(b) of the Constitution of India.

5.2. He drew attention to paragraph 38(f) of the affidavit, where the petitioner has expressly pleaded that the bar under Article 329(b) of the Constitution of India does not apply because the writ petition does not “call in question” the election, but is directed only at the verification process, and to paragraph 41, where reliance is placed on a decision of the Supreme Court in K.Venkatachalam v. A.Swamickan[^2], for the proposition that Article 226 of the Constitution of India may be invoked notwithstanding Article 329(b) of the Constitution of India, where the impugned act is contrary to law or the Constitution and no other remedy is available. Learned Senior Counsel submitted that these very paragraphs, far from assisting the petitioner, betray the true character of the relief sought, which is nothing short of a declaration that the election of the returned candidate is void and that the petitioner be declared elected in his place, a relief that lies at the very heart of an election dispute and can be granted, if at all, only by an Election Tribunal in a duly instituted election petition.

5.3. Learned Senior Counsel further relied upon Section 97 of the Act, which deals with recrimination by the returned candidate or any other party when a declaration is sought that a candidate other than the returned candidate has been duly elected. He pointed out that the petitioner has impleaded thirty-three other contesting candidates as parties, and submitted that this itself confirms that what the petitioner truly seeks is a determination that he ought to be declared elected, a determination that necessarily attracts the procedural safeguards, including notice of recrimination, available only in the trial of an election petition, and wholly foreign to a writ proceeding.

5.4. Learned Senior Counsel also relied upon Section 100 of the Act, and, in particular, sub-clauses (iii) and (iv) of clause (d) of sub-section (1), which speak of improper reception, refusal or rejection of votes, and of non-compliance with the provisions of the Constitution of India, the Act or the Rules materially affecting the result of the election. He submitted that the very irregularities pleaded by the petitioner, such as malfunctioning VVPAT units, alleged breach of Rule 49-T of the Rules, and the non-detection of a ballot unit by the Control Unit, are grounds that fall squarely within these statutory provisions, and that sub-clause (iv), being a residual clause, would in any event cover them. Such grounds, according to learned Senior Counsel, are triable only upon evidence, and require proof that the result of the election, insofar as it concerns the returned candidate, has been materially affected, an exercise wholly unsuited to writ jurisdiction.

5.5. Learned Senior Counsel further submitted that the decision in Association for Democratic Reforms (supra), heavily relied upon by the petitioner, is distinguishable on facts, and does not assist the petitioner’s case on maintainability, particularly having regard to the observations of the Supreme Court at paragraph 89 thereof, which reads thus:

“89. .... In arguendo, even if the CCE Report is taken on face value and it is believed that the EVM-VVPAT system can be hacked, can it be said that there is absence of a redressal mechanism for the same? Should there be hacking, resulting in violation of a right of an elector in any manner, and if there be proof adequate enough to upturn an election result, the law already has in place a remedy i.e. an election petition under Section 80 of the RoP Act. Such an election petition can be filed not just by an aggrieved candidate, but also by a voter, within 45 (forty-five) days from the date of declaration of the result of election. Since there is already a remedy in law to allay the fears that have been expressed by the petitioners, if and when a discrepancy in the results arises, the courts are not powerless to uphold the sanctity of the democratic process by appropriate intervention.” [emphasis supplied]

He submitted that the said judgment introduced the post-result verification mechanism as an additional safeguard for public confidence in the EVM system, and did not, even remotely, contemplate that an order passed under that mechanism could be assailed under Article 226 of the Constitution of India in a manner that bypasses the statutory election petition remedy.

5.6. He also placed strong reliance on a decision of the Supreme Court in Election Commission of India v. Ashok Kumar[^3], for the proposition, culled out from the two Constitution Bench decisions in N.P.Ponnuswami v. Returning Officer[^4] and Mohinder Singh Gill v. Chief Election Commissioner[^5], that intervention under Article 226 of the Constitution of India during or after the election process is permissible only in the narrowest of circumstances, and that a clear case of mala fides, together with the absence of any effect of retarding or protracting the election proceedings, must be made out before such intervention is countenanced. He submitted that no case of mala fides has been pleaded against the Election Commission or its officers anywhere in the affidavit, and that, on the contrary, the entire grievance is one of alleged procedural irregularity and non-application of mind, which are matters that fall squarely within Section 100 of the Act and are triable only by the Election Tribunal.

6.1. Mr.Kapil Sibal and Mr.J.Ravindran, learned Senior Counsel appearing for the petitioner, resisted the preliminary objection. Learned Senior Counsel submitted that the writ petition is directed not against the conduct of the election or its result, but against a distinct and separate post-result administrative process, viz., the checking and verification of the burnt memory of the EVMs, which the Supreme Court itself, in Association for Democratic Reforms (supra), has recognised as a mechanism independent of the election proceedings.

6.2. It is submitted that the impugned order is vitiated by non-application of mind and breach of natural justice, that vital evidence in the form of CCTV footage and custody records is liable to be lost unless preserved by an order of this Court, and that the forty-five day period for filing the election petition having lapsed on account of the delay attributable to the respondent authorities themselves, the petitioner has no other efficacious remedy.

6.3. Reliance is placed on the decision in K.Venkatachalam (supra) in support of the submission that Article 226 of the Constitution of India remains available where the act complained of is contrary to law and no recourse can be had to the provisions of the Act for appropriate relief.

The writ petition is, accordingly, dismissed as not maintainable, with liberty to the petitioner to pursue such remedy as may be available to him in law. There shall be no order as to costs. Connected miscellaneous petitions, if any, are closed.

One judgment a day. That's the whole habit.

LexStreak turns the Supreme Court's and the Madras High Court's output into a five-minute daily read for advocates — plain-language headnotes, the questions each judgment settles, and the full text when you need it.

Free forever plan · 30 seconds · data stays in India