On 30 June 2021, the request of Roshi Bhadain for leave to appeal to the Privy Council has been rejected. He wanted to overturn the Supreme Court’s decision of refusing a judicial review pertaining to the General Elections of 2019.
As a refresher, in January 2020, Roshi Bhadain asked for permission from the Supreme Court for Judicial Review on the decision of the Electoral Supervisory Commission (ESC) and the Electoral Commissioner. Unlike the twelve other contestants, he did not go through for the conventional process of an election petition contesting the count of votes in specific constituencies.
As opposed to an election petition, a judicial review may have the effect of rendering the whole general elections invalid. Roshi Bhadain contended that the Constitution gives him the right to contest the General Election due to the irregularities – and potentially illegalities – of the actions of the ESC and Electoral Commissioner. Among the grounds presented in his affidavit, he explained the irrationality of the numbers of votes and voters.
The Supreme Court set the application for judicial review aside on 20 October 2020. They held that the proper way to contest an election in accordance to the Constitution was through the specific remedy of an election petition. The judges N. Devat and D. Chan qualified the request of Roshi Bhadain as “a disguised attempt to circumvent the procedural requirements of an electoral petition”.
On 6 November 2020, Roshi Bhadain requested permission from the Supreme Court to appeal to the Judicial Committee of the Privy Council. The request was heard by Judges N. Devat and M.I Maghooa.
The grounds relied on by Roshi Bhadain in his request for permission to appeal can be categorized in two. He firstly argued that a judicial review was a valid recourse when contesting the election. Secondly, he contended that the questions in the case were of great public importance and should, therefore, be heard by the Privy Council.
The Supreme Court gave its judgment on the 31 June 2021 and denied permission for appeal. They held that only the question of interpretation of the Constitution could be brought to the Privy Council and not any question on its application. Furthermore, they stated that there were ‘no genuinely disputable issue’ justifying an appeal to the Privy Council as contended by Roshi Bhadain.
The judges emphasized that invalidating the General Election is likely to set an ‘evil precedent’. They agreed with Miss V. Nirsimloo, the counsel for the Electoral Commissioner, that “public interest involved in having a measure of certainty as soon as may be in composition and proper functioning of such an important public institution as the legislative assembly cannot be understated”.
