Proper procedure or withdrawal of a contesting candidate.
Relevant law is section 37 of Representation of Peoples Act, which is as under:
37. Withdrawal of candidature.—
(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. 3[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.
Election result in case of fraudulent withdrawal:
When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.
This view is consistent with the implication of Cl.(b) of Section 101. When in an election petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes. In case falling under Clause (b) of Section 101 the Act requires merely proof of corrupt practice, and obtaining votes by corrupt practice: it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause(a). The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of filling of the nomination paper.
[Source: Vishwanatha Reddy vs Konappa Rudrappa Nadgouda. SC]
There were only two candidates in the fray, one from the Indian National Congress and the other from the Bhartiya Janata Party. The election petitioner while campaigning came to know that his nomination papers were withdrawn. As a prudent man he lodged an FIR.
The language employed in Section 37 of the Act is absolutely plain, unambiguous and unequivocal. It only admits of a singular interpretation. It is because the intention of the Parliament is that due care and caution has to be taken in letter and spirit so that no confusion is created. The issue of alert and careful exercise gains more significance when there are two candidates and that too from two National Parties. From this, it may not be understood, there will be any difference if there are two candidates, one from a National Party and the other from a regional party. The emphasis is on “two candidates” because if one’s withdrawal is allowed in complete violation of the statutory provision, the other candidate gets automatically declared elected, for there is no election, no contest.
When in transgression of the statutory provision, a candidate’s candidature is allowed to be withdrawn, it will tantamount to sacrilege of democracy. That is why, the mandate of Section 37 of the Act has been so carefully worded. The legislature has taken pains to provide safeguards since illegal acceptance of withdrawal has the potentiality to destroy the base of democracy and corrode its primary roots.
The sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held and freedom in the exercise of the judgment which engulfs a voter’s right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage, are never to be eroded. The responsibility of a returning officer being statutorily significant, he has to keep himself alive to every facet and not act in a manner that will create a dent or hollowness in the election process.
[Source: Kameng Dolo vs Atum Welly. SC]