UNIT 1

DEMOCRACY AND REPRESENTATION:

1.ELECTION:

Election is a method for drawing public opinion. Since it is a democracy, the candidate must know
what the public wants. There is no single definition.

Election means an act or process of choosing a person for an office position or membership by voting.

Section 2(d) of Representation of People Act, 1951 talks about the definition of election. Election
means an election to fill a seat or seats in either house of parliament or in the house or either house of
the legislature of a state.

The word election implies persons who are to elect (Called to be electors), the office to which election
is to be made and the person who is to be elected is called the candidate.

Punnooswamy v. Returning Officer, AIR 1952 SC 64- Defined what election is. The word election
has by long usage in connection with the process of selection of proper representation in democratic
institutions, acquired both the wide and narrow meaning. In the narrow sense, it means that the final
selection which may impress the result of the poll when there is polling or a particular candidate being
returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire
process culminating in a candidate being declared elected.

Mohinder Singh Gill v. CEC, AIR 1978 SC 851- ―Election covers the entire process from the
issuance of the notification under Section 14 of the Representation of People Act, 1951 to the
declaration of result under Section 66 of the act. Even when a poll that has already been taken place,
has been cancelled and a fresh poll has been ordered or election commission amends its notification
and extend time for completion of election, it is an order during the course of election even if it is a
wrong order, it cannot be questioned during the process. If during the process of election at an
intermediate or final stage, the entire poll has wrongly cancelled and a fresh poll has been wrongly
ordered, that is a matter which may be agitated after declaration of the result on the basis of the fresh
poll, by questioning the election in an appropriate form by means of an election petition.‖- Justice
Krishna Iyer

Electoral Right to Vote and Contest:

 Article 326- Adult Suffrage:
Election contest is not an action in law but is purely a statutory proceeding unknown to common law.

M. Karunanidhi v. H.V. Hande- AIR 1983 SC 558- Right to Vote or Right to stand as a Candidate
is a creature of the statute or a special law and is therefore subject to the limitations imposed by that
statute or special law.
Jyoti Basu v. Devi Ghosal- AIR 1982 SC 983- A Right to Elect, fundamental though it is to
democracy, is neither a fundamental nor a common law right, it is pure and simple statutory right so is
the right to be elected.

2.EVOLUTION OF ELECTION SYSTEM AND ELECTORAL PROCESS IN INDIA

Introduction

A democratic system cannot function effectively without a well organized election

system. It is only through the apparatus of election that the involvement and participation of the
people can be ensured in a democratic political system. The government gets its legitimacy through
free, fair and periodic popular elections. A good electoral system is, therefore, the bed-rock of
genuine representative government. The electoral system must operate in an efficient and impartial
manner. Stressing the importance of electoral administration, Pollock observed,‖ Unless public
elections are conducted with accuracy and efficiency, not only the public services are discredited
but the whole democratic system is endangered.‖

Features of Indian Election System

1. Direct Election of Representatives- The Indian Constitution provides for the direct elections of the
representatives of the people. Members of the Lok Sabha (Art.81) and the State Legislative
Assemblies (Art.170) are chosen by direct election from territorial constituencies in the
States. Members of the Municipalities (Art.243 R) and Village Panchayats (Art.243 C) are directly
elected by the people.

2. System of Indirect Election- The members of the Rajya Sabha and the State Legislative
Councils are indirectly elected. According to Art.80 Clause 4 ―The representatives of each State in
the Council of States shall be elected by the elected members of the Legislative Assembly of the
State in accordance with the system of proportional representation by means of the single
 transferable vote.‖ The President and the Vice-President of India are also indirectly elected in
accordance with a system of proportional representation.

3. Joint Electorates- The system of communal electorates, which had been introduced by the British
vide the Minto Morley reforms in 1909 and continued till 1947, was done away with by the Indian
Constitution. This system was replaced and the system of joint electorates was introduced by the
Constitution of India. All eligible voters without any discrimination form a common electorate for
electing their representatives. This is very clear from Art.325 which states that, ―There shall be
one general electoral roll for every territorial constituency for election to either House of
Parliament or to the House or either House of the Legislature of a State and no person shall be
ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any
such constituency on grounds only of religion, race, caste, sex or any of them.‖

4. Universal Adult Franchise- The Indian Constitution provides for universal adult franchise i.e. all
citizens have the eligibility to vote without any discrimination. Art.326 of the Constitution
states that the elections to the House of the People and to the Legislative Assembly of every State
shall be on the basis of adult suffrage. Earlier 21 years was the minimum voting age, which was

lowered to 18 years by the 61st Constitutional Amendment Act, 1988.

5. Reservation of seats for Scheduled Castes and Scheduled Tribes- Art.330 of the Indian
Constitution provides for the reservation of seats for the Scheduled Castes and the Scheduled

Tribes in the House of the People. The 95th Constitutional Amendment Act 2009 amended Art
334 to extend the reservation of seats for SCs and STs in the Lok Sabha and states assemblies from
Sixty years to Seventy years. At present, the number of constituencies reserved for Scheduled Castes
has increased from 79 to 84, after the delimitation of constituencies. Likewise, the number of seats
reserved for Scheduled Tribes has increased from 41 to 47.Art.332 Provides for the reservation of
seats for the Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. At
present the Kerala State Legislative Assembly has 14 SC and 2 ST representing constituencies.

6. Provision for Nominations- There is also provision for nominations of members to the Union
Parliament and the State Legislatures in the Indian Constitution. The President can nominate 12
members to the Rajya Sabha from amongst persons having special knowledge or practical
experience in respect of such matters, namely literature, science, art and social service, vide Art.80 of
the Indian Constitution. Also, as per Art.331, the President may nominate not more than two
members of the Anglo-Indian community to the Lok Sabha, if the President is of the opinion that the
Anglo-Indian community is not adequately represented in the Lok Sabha. Likewise the Governor of a
 State has the power to nominate members to the Legislative Council‘s of States having bi-
cameral legislatures, from amongst persons having special knowledge or practical experience in
respect of such matters, namely literature, science, art, co-operative movement and social service,
vide Art.171 of the Indian Constitution. Further the representation of the Anglo-Indian community in
the Legislative Assemblies of the States by the Governor is provided in Art.333 of the Indian
Constitution.

7. Territorial and Single Member Constituencies- Indian election system provides for the creation
of single-member territorial constituencies. All the voters in a particular and defined territory
constitute one constituency. Each territorial constituency elects one representative. Each Constituency
is divided into as many constituencies as is the number of seats in its Legislative Assembly. In Kerala
there are 140 Legislative Assembly constituencies. For elections to the Lok Sabha 7 Assembly
constituencies are combined to constitute a single Lok Sabha constituency from which one MP is
elected.

8. Delimitation of Constituencies- The task of delimiting the constituencies for the Assembly and
Parliament elections is performed by a Delimitation Commission. After every census the
boundaries of the constituencies are delimited or redrawn. The Delimitation Commission
is a three member body constituted as per the Delimitation Act, 1952 enacted by the Parliament.
The Chief Election Commissioner is an ex-officio member of this commission. The two other
members are nominated by the President from serving or retired judges of the Supreme Court or High
Courts. The decisions of the Delimitation Commission are final and cannot be challenged in any
court.

9. Secret Ballot System- Voting in elections is done on the secret ballot basis. The voters can exercise
their votes in accordance with their wishes and opinions. Special steps are taken to ensure and
maintain secrecy in the elections. Secret Ballot is essential for ensuring a free and fair electoral
mandate.

10. Qualifications and Disqualifications for Membership of Legislative Bodies- The Indian
Constitution has specified certain qualifications and disqualifications for membership of the
legislative bodies at the centre and the states. Art.84 specifies the qualification for membership of
Parliament, while Art.173 provides the qualification for membership of the State Legislatures.
Likewise the disqualifications for membership of the Parliament are covered in Arts.101-104;
whereas the disqualifications for membership of the State Legislatures is covered in Arts.190-193.
The Representation of the People Act, 1951 also has specified certain qualifications and
 disqualifications for the membership of the Parliament and the State Legislatures.

11. Regular Revision of Electoral Rolls- The function of revising the electoral rolls enumerating the
names of all the eligible voters is entrusted to the Election Commission. After each census, which is
held in every ten years, the electoral rolls are revised with addition or deletion of names. The
Election Commission also revises the electoral rolls before any election. It is essential that a person
has his name in the electoral rolls in order to exercise his franchise on the day of the election.

12. Relative Majority Vote Victory System- The victory in the election is determined on the basis of
relative majority of votes or the first past the pole principle. In other words, the candidate who secures
more number of votes than every other fellow contestant in the constituency is declared elected as
representative to the Lok Sabha or the State Legislative Assembly, as the case may be.

13. Introduction of Electronic Voting Machines- The Election Commission has introduced the
Electronic Voting Machines (EVMs) for the recording and counting of votes. The EVMs reduce the
time in both casting a vote and declaring the results compared to the old paper ballot system. EVMs
were first used in 1982 in the by-election to North Paravur Assembly Constituency of Kerala for a
limited number of polling stations (50 polling stations). Sinc2004, EVMs are being used for the
conduct of Parliament and Assembly elections.

14. Single Independent Machinery for the conduct of Elections in India- The Election
Commission of India has been entrusted the responsibility of the conduct of elections in India.
Art.324 of the Constitution lays down that, ― The superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and Vice-President held under
this Constitution shall be vested in an Election Commission.‖

15. Election Petition for Settlement of Election Disputes- The Constitution lays down the method
for the settlement of election disputes. The election of any representative can be challenged through a
petition before the High Court and the appeals against the decisions of the High Court can go to the
Supreme Court. The election of a successful candidate can be challenged on the ground of breach of
provisions of the Representation of the People Act or alleged electoral malpractices committed by the
candidate.

16. Power of the Parliament and State Legislatures to make provisions in respect of Elections-
Art.327 of the Indian Constitution vests the Parliament with the power to make provision with respect
 to all matters relating to the elections to either House of the Parliament. Similarly, Art. 328 vests the
Legislature of the States to make provision with respect to elections to the House or either House
of the Legislature of the State. Under the provision of Art.327, the Union Parliament passed the
Representation of the People Act, 1951. However, till today no state Legislature has exercised the
power available under Art. 328.

Thus, the Indian Constitution provides for a well structured election system which has been designed
to meet the objective of holding free and fair elections at periodic intervals. There are several
constitutional provisions and Parliamentary Acts to ensure the functioning of the democratic process
in an efficient manner.

Electoral Process in India

The electoral process in India is operationalised in different stages.

1. Delimitation of Constituencies- The first step in conducting the elections can be described as the
delimitation of constituencies which is done by a three member Delimitation Commission appointed
after every census by the President. Single member territorial constituencies are demarcated by this
commission. The proportion of population in all constituencies is approximately equal. The decisions
of the Delimitation Commission are final and cannot be challenged in any court.

2. Preparation of Electoral Rolls- The electoral rolls, containing the names of the eligible voters in
each constituency, have to be prepared before the conduct of elections. These electoral rolls are
revised after each census as well as after regular intervals.

3. Notification of Elections and Appointment of Returning Officers and other staff.-When

general elections are to be held, the President sends a communication to the Election
Commission. After consulting the central and state governments, the Election Commission announces
the poll calendar i.e. the dates for filing the nomination papers, scrutiny of nomination papers and
withdrawal of names by the candidates. The Election Commission then appoints the Returning
Officers for the various constituencies. The Regional Election Commissioners help the Election
Commission in the smooth conduct of elections.

4. Filing of nominations Papers- The candidates seeking to contest in an election have to file their
nomination papers with the Returning Officer of their respective constituencies in the forms
prescribed by the Election Commission. The name of each candidate has to be proposed by a
 voter and seconded by another voter. Candidates can be sponsored by political parties or can be
independents owing allegiance to no political party. Every candidate has to make a security deposit at
the time of filing the nomination. For Lok Sabha every candidate has to make a security deposit of
Rs.10, 000/- and for State Legislative Assembly, Rs. 5,000/-. Candidates belonging to the Scheduled
Castes and Scheduled Tribes are required to deposit Rs. 5,000/- for contesting Lok Sabha elections
and Rs. 2,500/- for Legislative Assembly elections. The security deposit is forfeited if the candidate

fails to get at least 1/6th of the valid votes polled.

5. Scrutiny of Nomination Papers- After the last date for the filing of the nomination, all the
nomination papers is scrutinized by the Returning Officer in the presence of the candidates. The
Returning Officer then notifies the names of those candidates whose nomination papers are found in
order.

6. Withdrawal of Nominations- The candidates are allowed to voluntarily withdraw their nominations
by the date fixed by the Election Commission. A candidate has to apply in writing to the Returning
Officer.

7. Election Campaign- Once the candidates are fielded for the election, the political parties start their
election campaign. Different political parties announce their policies and programmes in the form of
election manifesto. Many campaign techniques are involved in the election process such as, holding
public meetings, distribution of handbills and pamphlets, door to door canvassing, broadcasting and
telecasting speeches of political leaders. The official campaign lasts at least two weeks from the
drawing up of the list of nominated candidates, and officially ends 48 hours before polling closes.

8. Polling of Votes- The date of the polling and the polling hours are fixed by the Election
Commission. In order to conduct polling, large number of polling booths is set up in each
constituency. Each polling station is placed under the charge of a Presiding Officer, who is assisted
by polling officers, to conduct the poll. Voters after establishing their identity, record votes on
the ballot paper given and deposit it in the ballot box/ or record vote in the Electronic Voting
Machine. After the polling ends, the sealed ballot boxes or voting machines are dispatched to
the office of the Returning Officer for counting.

9. Counting of Votes and Declaration of results- On a fixed day and time the Returning Officer
and his staff members open the ballot box or the voting machine in the presence of the agents of the
candidates and counts and records the votes polled by each candidate. A candidate who gets the
maximum number of valid votes is declared elected. The Returning Officer makes the announcement
 of the results and sends them to the Election Commission.

10. Election Petition for Settlement of Disputes-After the declaration of results, the election of a winning
candidate can be challenged either by the defeated candidates or by a voter or a group of voters. An
election petition can be filed can be filed before the High Court within a fixed period. The petition can
be preferred on grounds of electoral mal-practices or irregularities in the conduct of elections. The
candidate can appeal in the Supreme Court of India against the decision of the High Court.

3.TYPES OF ELECTIONS:

Elections form the backbone of democracy wherein people elect their political representatives and
decide the composition of the government. Holding free and fair elections on a state and national level
is integral to upholding the principles of democratic set up in India. From parliamentary elections to
the presidential polls, India goes through the electoral process at regular intervals
Apart from the Presidential and Vice-Presidential Elections Act of 1952 and the Representation of the
People Act of 1951, elections are conducted as per the provisions of the Conduct of Elections Rules,
1961. It‘s interesting to note how each election has its unique set of requirements and how
meticulously these requirements are met.

A.Lok Sabha Elections

After every five years, the entire country gears up to decide their representatives in the Lower House
of Parliament. For Lok Sabha elections (or General Elections), the country is split into different
constituencies, and the winner is elected from each constituency. As per Article 324 of the Indian
Constitution, the power of superintendence, direction and control of the conduct of elections is vested
with the Election Commission of India. In its efforts to ensure smooth conduct of the mammoth
electoral exercise, the commission is assisted by two Deputy Election Commissioners, who are
appointed from the national civil services.

Rajya Sabha Elections

Unlike Lok Sabha, the members of Rajya Sabha are not directly elected by the electorates. The
elections to the Upper House of the Parliament happen through the Legislative Assembly of each state
by using the single transferable vote system. Out of the maximum strength of 250 members, 238 are
elected by the legislative assemblies and 12 are nominated by the President of India. The
representatives of states and Union Territories in the Rajya Sabha are elected by the elected members
of the Legislative Assemblies in accordance with the system of proportional representation. With one-
third of its members retiring every two years, the elections to Rajya Sabha happen at respective
intervals.

B.State Legislature Elections

Elections to the Legislative Assembly (Vidhan Sabha) are conducted in the same way the Lok Sabha
elections are carried out. Electorates consisting of citizens in a state above the age of 18 vote for their
state representatives. Each legislative Assembly is formed for a five-year term following which all
seats again go to the polls.
The elections to Legislative Council (Vidhan Parishads) replicate the same process as that of Rajya
Sabha, wherein the representatives are chosen by the members of the lower house. Besides, the
Governor also nominates certain members from the field of art, science, literature, social service and
co-operative movement. The elections to these legislative councils are held under the system of
proportional representation.
At the state level, the entire electoral process is monitored and supervised by the Election
Commission. The Chief Electoral Officer (CEO) of the state has the responsibility of ensuring that the
polling takes place as per the constitutional provisions. The CEO is helped by a team of supporting
staff.

C.Presidential and Vice-Presidential Elections

The President is indirectly elected by an electoral college consisting of the elected members of Lok
Sabha, Rajya Sabha and the members of the legislative assemblies of every state and union territory.
The presidential election is conducted before the present president‘s term gets over.
As per the provision of Article 55 of Indian Constitution, a uniformity has to be maintained in the
scale of representation of the different states. Hence, the election of the President is held in
accordance with the system of proportional representation and the voting happens through a secret
ballot.
The Vice-President is elected by a direct vote of all members of Lok Sabha and Rajya Sabha. The
system of proportional representation is followed and the votes are cast through a secret ballot. It‘s the
Election Commission that conducts the election to the office of the Vice-President.

D.By-elections in India: A Phenomenon worth Observing

It won‘t be an exaggeration to say that most by-elections in India either pass unnoticed or they are
sidelined by the charisma of general elections. The events building up to by-elections are reported
within limited news space and only a particular constituency exudes interest in the proceedings. You
must be feeling that I am directing my rants at those who ignore by-election trends. But honestly, all I
seek is a little less indifference towards this format of elections. By-elections tell us a lot about the
wider political canvas.

What is by poll election in India and why by-elections are held?

Allow me to give you a brief overview of why and how by-elections are held. Just to remind you, by-
election is held with a definite purpose, which is to fill a political office that has become vacant. A
member of a legislative assembly often leaves his position vacant on various grounds, especially when
he/she becomes inept. It could be the person‘s untimely death or a criminal conviction, which makes
him ineligible to continue in office.
In a democracy like India, where political verdicts are people-driven and unpredictability is the norm,
by-elections are a necessary enabler for restoring stability. You don‘t have to force yourself hard to
remember instances wherein by-elections were called because of voting irregularities and myriad
other reasons. These elections occur between regularly scheduled elections and give people the
opportunity to redeem their situation. If a state has suffered in the hands of an incompetent
government in the first phase, it can get back its pie of prosperity by bringing a better alternative to
the forefront.
By-elections have become a commonality in India, partly because of the misuse of provision of a law
under the Representation of the People Act that allows a candidate to contest elections from two
constituencies. When the candidate wins from both the constituencies, he/she has to vacate one of the
seats. This triggers by-election as one of the seats that is rendered vacant. Prominent politicians such
as Mulayam Singh and Narendra Modi seem to be all set to contest from two constituencies during the
upcoming Lok Sabha polls.
India has also witnessed several by-elections after an individual decides to shift allegiance and switch
party. A very latest example could be seen in Gujarat where seven seats fell vacant after Congress
MLAs switched sides and joined BJP. The by-polls for the seven assembly seats will be held on April
30.
If we go back to 2011, we have another classic instance of by-elections to behold. Trinamool
Congress came to power in West Bengal after ending the Left domination of over three decades. At
that time, Mamata Banerjee was still an MP in the Lok Sabha. It was mandatory for her to become a
member of the state legislature to bag the position of a Chief Minister. One of the MLAs from Bengal
had to step down to let her contest from that constituency. This led to a by-election. Simultaneously,
after she stepped down from her position as a member of Lok Sabha, the Kolkata (South)
parliamentary constituency fell vacant, and this again called for a by-election.

What is the significance of general election, mid-term election and by- election?

In the Parliamentary form of Government in India, there are generally three types of elections through
which the members of legislature are elected.
General Elections:
It is held when the legislature completes its term of five years. All the members of legislature are
elected through this election. As it is widely spread it, costs a huge amount and a serious notice is
taken all over the nation.
Mid-term Election:
If the Government falls due to Lok of Confidence in the Lok Sabha or the state Assembly before
completion of its full-term and no alternative government is possible, mid-term elections are held.
Such elections have been frequent recently due to lack of absolutely majority to a single duty. Due to
defections and with drawl of Support by members, such election becomes necessary, causing
undesired burden of expense over public.
By Election:
It is held in case of vacation of any seat during the term of legislature. It may be by death, region
cancellation of election commission or such other reasons.
(a) When the New Lok Sabha come to seat, and yet the speaker is not selected, the president appoints
a proton speaker to preside over the Lok Sabha, till the new sneaker is elected for that newly elected
Lok Sabha.
(b) Central Vigilance Commission along with three other vigilance commissioners keeps watch and
vigilance over any corrupt practices by higher officers and executives of centre. It observes CBI's
finding.
(c) Article 21 of the Constitution is a fundamental right tendered to Right to life and Personal liberty.
It has wide scope which includes rights to privacy, education, water, pollution free environment and
right against bondage labour, against any exploitation.
(d) The President can divide, after the consultation with the Election Commission under Article 102
(i) if member is -
(i) Not a Citizen
(ii) Undercharged involvement
(iii) declared of unsolved mind by Court.
(iv) Holding any office of Profit
(e) Parliamentary Secretary holds the Rank of Minister who helps minister in their acts. A Lok Sabha
Secretary helps the speaker of Lok Sabha in Proceedings and acts of Lok Sabha.
(f) If any member of the House hide or keep secret from the house any information or present it
wrongly, other member can pass this motion.

E.Direct and Indirect Elections :

In direct elections, people directly vote for the candidates and elect their representatives. The
following are examples of direct elections in which people over the age of 18 years participate by
casting their votes:

Lok Sabha elections, in which the Members of Parliament (MP) are elected.
Elections to the state Legislative Assembly, in which the Members of Legislative Assemblies(MLAs)
are elected.

Elections to the local governing bodies, in which members of the local governing bodies like the
municipal corporation or the panchayat is elected.

Merits of direct elections in India

As the voters elect their representatives directly, direct elections are considered to be a more
democratic method of election. It educates people regarding the government activities and helps in
choosing appropriate candidates. Also, it encourages people to play an active role in politics. It
empowers people and make the rulers accountable for their actions.

Demerits of direct elections

Direct elections are very expensive. It incurs huge expenditure on the public exchequer. For example
in the nine phased 2014 Lok Sabha elections, a whopping 30,000 crore was spent by the government,
political parties and candidates. Out of which, the Election Commission alone spent 3,426 crores.
Illiterate voters sometimes gets misguided by false propaganda and sometimes vote taking in to caste,
religious and various other sectarian considerations. This may result in the election of undeserving
candidates. There are also instances of Cash for vote Since conducting direct elections are a massive
exercise, ensuring free and fair elections at all the polling booths may not be possible. There are some
instances of booth capturing, violence, intimidation of election officials etc. which undermines the
credentials of the election process. Role of money power in direct elections cannot be negated. There
are instances of some political candidates influencing the voters through payments in the form of
cash, goods, or services. Poor voters expect bribes from political candidates during election time. This
in turn leads to wide scale corruption and malpractices. It is a well known fact that money power has
the potential to swing at least some elections. These practices are a regular feature of elections in
South India especially in the states of Tamil Nadu and Andhra Pradesh. Election campaigns
sometimes results in violence, tension, law and order problems and affects the day to day life of
people.

Indirect elections

In Indirect elections voters elect their representatives who in turn elect their representatives to the
formal offices like the President‘s office. Simply put, public do not cast their votes directly. Instead,
they put the responsibility on the hands of their representatives, whom they elected through direct
elections. In India, election to elect members of both the Rajya Sabha and the state legislative councils
and the elections to the offices of President and vice president are held through indirect elections.

Merits of Indirect elections

Indirect elections are less expensive. It is more suited to elections in large countries.

Demerits of Indirect elections

Since the number of voters are very small. There exists possibility of corruption, bribery, horse
trading etc. It is less democratic because people do not have direct opportunity to elect, they instead
do through their representatives. So, this may not reflect the true will of the people.

Similarities between Direct and Indirect Elections:

There are also many similarities between indirect and direct elections. Let us see what the similarities
are.
• Although the process of voting differs in direct and indirect elections, finally the intention of both
the methods is to vote for a suitable person who can come into power and hold public office.
• Not only this, both type of elections allows equal representation of voters across all states
irrespective of the size of the state.
 • The population of every state is revised every ten years to make sure that the number of people
voting or voters are equal to the state population. This equal representation is applicable for both -
directly elected elections and indirect elections.
• In both these types of elections, it is seen that the winner generally has to be the one who secures
majority of the votes.
Even if direct and indirect elections differ in process, there is one important aspect that is common,
and that is, the benefit and welfare of the citizens and of the nation.

4.TYPES OF REPRESENTATION:

A. Majority Election System

With the majority election system, only one member of parliament is to be elected per constituency
[area and group of voters living therein that is taken as a unit in the election process].

Basic Idea
The most qualified personality shall be selected to represent the constituency.

Characteristics, Pros and Cons

 With the majority election system, small parties have no chance to win a mandate unless there are
some constituencies with a population having political views differing much from those in the rest of
the country. With the size constituencies in big nations do have (some 100,000 voters) this is rather
unlikely. Therefore the majority election system will inevitably lead to parties uniting or building
blocks (tight alliances) until only two major players remain on the political scene. So voters are
forced to select between the candidates of two big parties basically. While the this tends to create a
stable parliamentary majority for the government it is not likely to represent a pluralistic
modern society adequately.
 Supporters of a minority party might feel not being represented by the member of parliament rooted in
their region because he or she represents the other party and other political concepts.
 In a big nation, one member of parliament is going to represent some 100,000 inhabitants. Evidently
these people do not live in towns of exactly this size. To assign fairly equal numbers of inhabitants to
every constituency, several villages and and small towns must be grouped to form a constiuency
while large cities must be divided into several constituencies. There is no "natural", evident rule of
assignment.
In the past years it has repeatedly been reported that minor changes in the definition of
 constituencies were deliberately planned by governments of several countries (U.K., France and
others) to ensure that their party could win a few mandates in a situation where government and
opposition party have almost the same strength.
The trick herein is the following: if there is a constituency with a solid majority for the government
party, subtract a few towns voting overwhelmingly for the government and add them to a neighboring
constituency where the government party just needs a few percents more of the votes to win the
election and exchange these towns for a few towns known to be voting for the opposition - so the
government's party will win both seats.

In principle, this kind of manipulation is just s much electoral fraud as counting some votes twice
or having some votes uncounted. The problem is: the existing old borders of a constituency might
have been created by the same kind of manipulation by a former government and it is almost
impossible to find a really neutral solution.

While the majority election system seems to be straightforward and simple at first glance, it leads to
rather complex decisions that are not transparent to voters. This is definitely not a basis to create
trust in democracy.

B. Proportional Representation System

With the proportional representation system several members of parliament are to be elected per
constituency. Basically every political party presents a list of candidates and voters can select a list,
that is they vote for a political party. Parties are assigned parliamentary seats proportionally to the
number of votes they get.
There are two types in this system.
1.Party list and 2. Single transferable vote

Basic Idea
Political parties play a key role in creating political solutions (even in a majority election system).
A reasonable number of competing parties will create more and better ideas while just two big
parties (resulting from the majority election system) tend to be at a deadlock with inflexible positions.

Characteristics, Pros and Cons

 With several parties there is more choice and voters are more likely to find a party that does
represent their major political convictions than would be possible in a two-party system.
 Supporters of a small party are likely to be represented by at least one member of parliament rooted in
their region and sharing their political views and convictions.
 The size of constituencies is bigger and there are less possibilities to manipulate their borders than
with the majority election system. Usually the borders of the constituencies are fixed by historical
considerations (provinces, federal states, counties etc.). As several seats are assigned to parties
proportionally to votes even within a constituency, the borders of a constituency are not as relevant to
the election result as in a majority election system.
 With an increased number of represented parties a majority for a single party becomes less
probable. If the government must be based on too many small parties they may disagree when new
issues emerge. This may become a danger to political stability and cause anticipated elections
absorbing the attention of politicians. If instability gets notorious in a country, the state as a whole
will just not be able to perform the tasks it should.
 Small parties may also abuse their position to get support for special interests (for examples
subsidies for institutions related to the party) in exchange for support for the government policy. This
is nothing less than a form of corruption.
 In most countries with proportional elections the parties decide who will represent them in parliament.
There may be a difference between the party hierarchy deciding on the top places on the party's list of
candidates and the voters preferences.

In some countries, there are additional rules to make sure that voters may have some influence which
candidates will represent them. The most sophisticated system of this kind has been established in
Switzerland: Voters may replace candidates on a party list by other candidates (even from a different
party) and favourite candidates may appear twice on a list (while the total number of candidates on a
list may not exceed the number of seats, of course). For those who think this is too complicated for
them there is always the possibility to use an unchanged party list. This way, a major drawback of the
proportional election system is eliminated while preserving the obvious advantages of proportional
representation.

5.GENERAL PRINCIPLES OF ELECTION:

Legal framework of Elections

Article 327- Power of parliament to make provisions with respect to elections. Gives power to
parliament to frame any law with respect to election of both parliament and legislature of any state.
Article 328- Power of legislature of a state to make provisions with respect to elections.
Under Article 327
Representation of the people act, 1951
Registration of Electors‘ Rules
Delimitation Act
Representation of the people act, 1950
Conduct of Election Rules, 1961

Process of Election-

1. Preliminaries- Application of Delimitation Act and Representation of the people act, 1950
because they provide for selection of seats and delimitation of constituencies for the purpose of
election to house of the people and legislature of the state. Therefore, we find that 1950 Act read with
Electors‘ Rules provides for qualification of voters and preparation of electoral rolls covering the
preliminary phase of elections.
2. Pre Poll Stage- It comprises of the provisions dealing with qualifications and disqualifications
for membership of parliament and the state legislature. Also, disqualifications for voting,
administrative machinery for conduct of elections, nomination of candidates, scrutiny of nomination
of candidates, appointment of election agents, general procedure and the actual polling is covered in
this phase.
3. Post Poll Stage-It consists of counting of votes, publication of results, the logic of accounts of
elections or expenses by the contesting candidates and settlement of disputes regarding elections.
Therefore, Representation of the people act, 1951 is relevant for the second and the third phase. It
ensures free and fair elections.

Punnoswamy v. Returning Officer- The representation of people act, 1951 is a self-content

enactment so far as elections are concerned. Wherever one has to ascertain the true position in regard
to any matter connected with elections, one has to only to look at the act and the conduct of election
rules, 1961 made thereunder.

Chaturbhuj Vitthaldas Jasani v. Mareshwar Prasharan- The act is to maintain the purity of
elections to the legislature and to avoid a conflict between duty and interest. The right to vote or stand
as a candidate for election is not a civil right but a creature of statute or special law and must be
subject to the limitations imposed by it.

Electoral Roll- Every qualified citizen has a Right to vote, the essential pre requisite is that name
should be correctly registered in the electoral rolls. This objective is fulfilled by Representation of the
people act, 1950. It provides for preparation, machinery and maintenance of electoral rolls as well as
to correct any defects in it.

An up to date list of voters or persons who are entitled to vote is called Electoral Rolls.
The word Roll means Electoral Roll for a constituency and normally an entry in the electoral roll is
conclusive proof of the elector‘s right to vote at that election. When the name of the person finds
place, his right to vote cannot be questioned, since right to vote is not a fundamental right under the
Indian Constitution and is created by the statute. Even, the election of a candidate once elected is -not
open to challenge on the ground of electoral roll being defective. (Lakshmi Charan Sen‘s Case)

Common Electoral Roll- Article 326

There shall be one general electoral roll- Article 325 and Section 19 of Representation of the people
act, 1950.

Machinery for Preparation and Revision of Electoral Roll-

Superintendence and Guidance, the control for Parliament and Legislative assemblies is done through
1. Maintenance is vested in Election Commission. It is usually done by Chief Electoral Officer of
the State.
2. For each district of a state, there is a District Election Officer and he is supposed to co-ordinate
and supervises all the electoral rolls. This is in the control of Chief Electoral Officer of the State. The
registration of electors falls entirely on the administrative machinery and governed by the
Representation of the people act, 1950.
3. Section 23 talks about inclusion of names in Electoral Rolls.
4. Section 22 talks about Correction of Entries in Electoral Rolls.

CEC v. R.S. Dhani- AIR 1957 SC 304- The Supreme Court has held that it is an essence of fair
elections that proper electoral rolls should be maintained and for this purpose it is necessary that after
the preparation of electoral roll, opportunity should be given to parties concerned to scrutinize
whether the persons enrolled as electors possess the requisite qualification. Opportunity should also
be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein
and for entertaining objections to such enrolment unless this is done the entire obligation cast upon
the authorities holding the election is not discharged and the elections held on the basis of such
imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance
of the parties concerned.
Shankar Babaji Sawant v. Sakharan V. Salunkhe- AIR 1965 SC 1424- The Supreme Court held that
an error or defect in the entry or defect in the electoral roll does not disqualify him from voting. It is
open to him to satisfy the Presiding Officer that he is really the elector to whom the entry related.
Rule 25(4) of Conduct of Election Rules, 1961 makes it obligatory on the Presiding Officer to
overlook merely clerical or printing errors if he is satisfied about the identity of the elector.

R. Chandran v. M. Marrapan- AIR 1973 SC 2362- Once a person‘s name has been included in the
electoral roll, his qualification to be included in that roll cannot be questioned either when he tries to
cast his vote or to stand for an election or even after the election is over. It is not necessary to refer to
all of them or to quote from them. The only exception has been made in respect of requirement of
article 173 of the Constitution. Such election of the candidate should be held to be void on the ground
of constitutional disqualification of the candidate and not on the ground that his nomination was
improperly accepted by the returning officer. Similarly, when name of a person is entered in the
electoral roll, the fact that he is ordinary resident of that constituency cannot be questioned in an
election petition.

Section 14 talks about Qualifying Date.

Section 24 talks about Appeals.
Inaccuracy of Electoral Rolls

Baburao v. Manikrao and others- AIR 1999 SC 2028- The fact that a person‘s name finds place in
more than two assembly constituencies does not make him disqualified from contesting election to the
legislative assembly. There is nothing to suggest in Section 16 in the 1950 Act that if a person‘s name
finds place in more than one constituency that would automatically entail disqualification from
contesting in any one of the constituencies. It is relevant to note 2(1)(e) of 1950 Act refers to
disqualifications under Section 16 of 1950 Act, while interpreting the word elector and has not
mentioned any contravention of Section 17 of the 1950 Act as disqualification. No doubt, Section 17
of the 1950 Act expressly states that no person shall be entitled to be registered in the electoral roll
from more than one constituency. Objection under section 17 could have been raised to prevent
person‘s name from being included in the other constituency. One reading Section 16 of the 1950 Act
and Article 173 and Article 191 of Constitution of India, nothing could be found that nomination of
such candidates ought to have been rejected.

DOCTRINES:
A. CONCEPT OF FREE AND FAIR ELECTIONS:

This concept includes even preliminary stages to election such as delimitation of constituencies,
preparation, revision or amendment of electoral rolls and many others. Mainly, concept of free and
fair election relates to political liberty and equality. ‗Free and Fair‗ in matters of election connotes
that no one, under the electoral process, is in bondage of another, having his personal rights, social
and political liberty, free thinking and choice subjected to a legal discipline. While exercising his right
to vote one is not under undue influence of party discipline, religion, caste, creed, sex, language and
also one is not under the strain of corrupt practices and so on. Thus, free and fair elections are the
foundations of democratic form of government. To ensure the purity in elections the following
essential conditions must be fulfilled:

(i)There should be a set of election laws which must cover the entire process of elections with the
primary object to create and maintain that sort of atmosphere in which the electorate can choose their
representatives by the exercise of their free will without any pressure or hidrance or undue influence
from any quarter.

(ii)The election law must contain equal and justful demarcation of constituencies, principle of one
man one vote and the secrecy of voting, a just procedure for casting votes and for counting and
declaration of election results.

(iii)The conduct of elections must be assigned to an independent authority who can function
impartially and who is free from external pressures from the party in power or executive of the day.
There should not be any encroachment by government or other agency in exercise of his powers and
duties assigned to him under law. The conduct of election should be left unhindered in the hands of
the election machinery.

(iv)As a necessary requisite, there must be co-operation between the wings of government and
citizenry, each of them discharging the duties assigned to them by law. Any civil authority or
government official must not exercise a power unless exercise of it is authorised by some specific rule
of law and the people should obey the law.
(v)The supervision of disputed elections should be assigned to some judicial authority who can
determine the question whether there has been a valid election on the basis of facts and election
law which should contain the requisite qualifications for candidates, the method of voting, definition
of corrupt practices by candidates and their election agents, etc. and other cognate matters. The
election disputes must be resolved expediously in conformity of the procedure laid down by law.
Thus, the cumulative effect of above all factors needs proper observance, implement and enforcement
of all constitutional and other laws relating to elections. In short, to conduct election in conformity of
law is to maintain the purity of it and non-conformity of such laws would result in impure elections.

In Indira Nehru Gandhi v. Raj Narain,ii Justice HR. Khanna observed, ―the principle of free and fair
election is an essential postulate of democracy which in turn is a part of the basic structure of the
Constitution of India. This leads us to peruse the provisions of the Constitution in the light of
established principles of free and impartial election‖. Khanna, J. further observed, ―Democracy can
indeed function only upon faith that elections are free and fair and not rigged and manipulated, that
they are effective instruments of ascertaining popular will both in reality and form and are not mere
rituals calculated to generate illusion of defence to mass opinion.

OBSTACLES IN FREE AND FAIR ELECTION : CURRENT TRENDS

(a) Criminalisation of Politics

Over the past few years we have been reading about corruption in public life in which politicians
and officials have bled the nation filling their own coffers, diverted to personal use. Public funds
have been misappropriated and have destroyed the moral and ethical environment of the nation.
Corruption has become the norm in public life and honesty an aberration. Daily in the news papers,
there are reports about the politicians who have either directly participated in crimes or have
allegedly been guilty of abetting such activities through gangsters, musclemen and underworld
dons. Corruption in public life and criminalisation of politics are two sides of the same coin. Pappu
yadav, Akhilesh pratap singh, D.P. yadav and many more who use the criminal way to win the
election which is strictly prohibited in our election system. In the early days criminals and goonda
elements were by and large kept away from direct involvement in the political process, but today
they have acquired a political base of their own and are a law unto themselves. Since it is the reach
of power that determines the degree of immunity, persons with criminal antecedents have found a
way to foist themselves on the Legislature.

The nexus between criminal gangs, police, bureaucracy, politicians and industrialists has come out
openly in various parts of the country. The Vohra Committee Report gives enough hints to come to
the conclusion that criminalisation of politics and corruption in high levels is destroying the very
system and edifice of our parliamentary democracy, political authorities, the civil servants and even
the judiciary.
(b) Marketability and Defections

The Vote for Note Scam, Cash for the election is some example for marketability in the election.
The endless game of defections and toppling of governments is perhaps the most glaring example
of the erosion of the democratic and moral values in the parliamentary life of India. In the era of
outside support and the coalition governments in the States and at the Centre, it is an admitted fact
that the representatives of the people in the Assemblies and Parliament accept money to support a
particular Government. Hence, Members of Parliament or State Assemblies became a marketable
commodity and a subject of sale and purchase or horse-trading. Politics of India gradually
degenerated into a struggle for power for personal ends. General interest and well-being of the
people is a secondary thing for the present day politicians. This is a depressing feature of
India‗s parliamentary democracy.

(c) Money Power in Elections:

Jharkhand Rajya-Sabha election is crying shame on our democratic system. Money power is a
crucial factor in elections since modern devices of election propaganda are expensive. The
availability of large funds ordinarily tends to increase the number of votes a candidate will receive.
The history of election law has witnessed activism shown by the judiciary in interpreting the
provisions of law relating to election expenses and attempt by the political leadership to nullify the
effect of such activistic approach of the Supreme Court, by way of amending the provisions of law.
According to Section 77(1) of the Representation of the People Act, 1951 ‗every candidate at an
election shall, either by himself or his election agent, keep a separate and correct account of all
expenditure in connection with the election incurred or authorized by him or by his election agent,
between the date on which he has been nominated and the date of declaration of result thereof both
dates inclusive‗. Section 77(3) prescribes that the total of the amount mentioned in clause (1) shall
not exceed such amount as may be prescribed.

Whether expenditure by a candidate‗s political party, friends, and relatives, etc. could be treated as
the expenses incurred or authorized by the candidate was the issue in many election petitions. The
court‗s earlier view was that expenses incurred by the political party, friends, etc. to advance the
election prospects of a candidate did not fall within Section 77.

(d) Communalism, Casteism and Mushrooming of Political Parties

The M.L.A. of MIM Akbarudeen Ovishi‘s statement is really a black point on our country. A
country where all the religious community live with a religious spirit and
brotherhood…. These types of statement and religious slogan which effect the election are really
bed and affect our constitutional sprit….. It is common knowledge that however perfect the
theoretical framework of a Constitution might be, its successful working rests in the last resort on a
whole range of social, economic and political factors, on the culture and traditions of the country‗s
people and their attitude towards nationalism. The Constitution of India laid the foundations of
democratic republic embodying the ideals of Constitutionalism as they have evolved in the
Western political traditions. The Constitution promises secularism, social justice and political
equality. It aims at promoting fraternity among all citizens assuring dignity of the individual and
the unity and integrity of the nation.

Yet this constitution functions in a social environment not altogether conducive to the smooth
operation of democratic institutions. The social matrix of the Indian society is deeply embedded in
the complex Indian caste-structure. Communalism in India has been a long standing problem. One
of the factors that has kept India back from advancing to nationhood, is the existence of different
religions which keeps the nation divided in many aspects of life. Keeping in view the traditional
background of Indian socio-political set-up, we must confess that religion, caste or community
has continued to play its role in electoral politics. Various castes and communities are becoming
more and more self- conscious as well as assertive and accordingly organised. Though, the
elections have familiarised the masses with the technique of ballot-box democracy but they have
also provided the masses with the increasing prominence of communalism and castism as a
political factor, and with the means for asserting their interests and demands. The emergence of
new elites through the means of elections presents new challenges to the working of the
Constitution.

CONCLUSION:

The fundamental features of Indian democracy are parliamentary form of government, rule of law,
free, fair and periodical elections, secular democracy, civil liberties, judicial review, unity and
integrity of the nation. Thus, the concept of democracy as visualised by the Constitution
presupposes the preservance of these ideals by the elected representatives of the people in
Parliament and State Legislatures. But the political parties in our country have not risen to the
expectations of ‗the people. They have shaken the people‗s confidence in parliamentary
democracy just for their selfish ends.
In our multi-party system, it seems that no single party is likely to secure majority in
Parliament. The Anti-defection law permits split and merger of political parties and there is no
provision in the Constitution which bars the legislators from frequently asserting their no-
confidence against the government.

Castism and communalism have been frequently invoked for building sectarian vote-banks and for
getting and remaining in power. The political parties are promoting this tendency. Social
fragmentation which the Constitution desired to eliminate has been progressively on an increase.
This trend has also given rise to regional splinter parties and has posed a danger to the unity and
integrity of the nation. Thus, the purpose of common electoral roll or universal right to vote or to
contest election seems to be defeated. Reservation of seats in the Legislature has become a tool of
allurement of weaker Sections.

As a most essential requisite of free and fair elections, an independent authority, the Election
Commission of India is entrusted with the task of conducting elections. Under Article 324, the
office of Chief Election Commissioner is permanent but office of the other Commissioners is
multi-member Election Commission. So far as removal of Election Commissioners is concerned,
the Constitution and the Statute gives more protection to the Chief Election Commissioner.

Criminalisation of the politics is the greatest dangerous factor of the present political system. A
large number of criminals have acquired political positions in the country and their number is
increasing. The nexus between criminal gangs, police, bureaucracy, politicians and businessmen
has been exposed. It is now an established fact that criminalisation of politics and corruption in
high levels is destroying the edifice of our parliamentary democracy. The black money earned by
notorious trades is misused to develop a network of muscle power to be used by politicians during
elections for violence, booth capturing, rigging; intimidating voters and even killing rival
candidates.

The most glaring example of the erosion of democratic and moral values is the evil of political
defections. It is believed that corruption, bribery and lust of power is behind this problem. Sale and
purchase of legislators and the defections or counter-defections are the root causes of instability in
the present era of coalition governments. The object of Tenth Schedule has not been achieved due
to the exclusion of ‗merger and split‗ of political parties from the application of Anti-defection
law.
Communalism and castism in India keeps the nation divided in many aspects of life including
politics. These divisions among the masses directly strike with the secular democracy
enshrined in the Constitution.

One of the vital evils inhibiting the system of democracy is the mounting of fighting elections. The
law regulates election expenses with a view to ensure the fairness and avoid extraneous influence
of illegitimate money power in elections. But there is no provision to regulate the flow of
unaccounted funds into the coffers of political parties. To some extent even if the money
contribution is regulated by law, there exist no ban on the assistance which may be given by the
contributors in kind, e.g. providing vehicles, petrol, accommodation, pandals and other election
materials, posters, pamphlets, etc. The loophole in the law is deliberate and conscious. It can be
removed by amending the relevant provisions of law.

B. POPULAR SOVEREIGNITY:

India is a Sovereign Democratic Republic. The opening words of the Preamble to the Constitution
emphasise the ultimate authority of the people of India from whose will the Constitution emerged.
The Preamble proclaims the solemn resolution of the people to constitute India, into a Sovereign,
Socialist, Secular, and Democratic Republic.

The principle of popular sovereignty implies, firstly, that the ultimate authority of all governmental
agencies springs from the will of the people as expressed in the Constitution and, secondly, that
authority is renewed from time to time through popular elections at regular intervals.

Further, under our Constitution, those who wield the executive power of the Government are
responsible to the legislatures and through them, to the people.
Thus, in the affairs of the State, it is the will of the people that prevails ultimately, and not the will of
a few individuals, however important or powerful.

This principle is reaffirmed in several places in the Constitution, particularly in Part XV which deals
with elections. The elections to the House of the People (Lok Sabha) and the Legislative Assembly of
every State have to be held on the basis of adult suffrage.
Further, such elections must take place at least once every five years. The Constitution also ensures
the democratic ideal of ―one man, one vote, one value‖ irrespective of his wealth, education, social
status or importance otherwise.
This was perhaps the most fundamental and far-reaching decision of the founding fathers of our
Constitution. It was, indeed, an act of faith, a homage to the people of India and implicit in the liberal
outlook of India‘s freedom struggle. India, thus, became the largest democracy in the world.
In 1952, when India went to the polls for the first time under the Constitution, the number of eligible
voters was around 173 million. In 1984, for the eighth general elections the number was as large as
389 million.

For the ninth general elections held in November 1989, the number of eligible voters was about 499
million, which included 35 million in the 18-21 age group who became eligible for the first time
following the sixty-first Constitutional Amendment in 1988 amending Article 326. For the 1991
general elections, the electorate swelled to more than 514 million, in 1999 to 620 million and in 2004
it rose to 650 million.

The framers of the Constitution were not satisfied by merely providing for universal adult suffrage.
They wanted also to ensure free elections by creating an independent constitutional authority—the
Election Commission of India—to be in charge of everything connected with the elections.
Free elections are a reality in India. They secure for the electors both the freedom of choice from
among the competing candidates who stand for different programmes and policies, and the secrecy of
the ballot.

The fourteen general elections that independent India has so far had, at almost regular intervals since
1952, have demonstrated that in spite of their poverty and widespread illiteracy and difficulties in
communication, the people in general have been able to exercise robust common sense in electing
candidates of their choice and, thus, exercised their supreme authority in setting up a democratic,
responsible government.

India has also been well known for the high percentage of voter participation in all the elections.
Numbers and percentages apart, a very significant feature of these elections is the remarkable
involvement of the common citizen with the machinery and functions of democratic self-government,
the steady growth of political consciousness and the highly competitive character of Indian politics.

6.QUALIFICATION AND DISQUALIFICATION OF MEMBERS:

Qualification of candidates and members

The purpose behind fixing the legal qualification for the position of legislature is quite clear that only
competent and fit persons should occupy a seat in democratic institutions like parliament which has
dominant role of making laws for the country.

What does candidature mean?

A. The first condition for contesting the election is to file nomination as the candidate.

B. Khadersheriff v. Manuswami Gondar, AIR 1955 SC 775- The Supreme Court held that when a
question arises whether a person had become a candidate at a given point of time, what has to be seen
is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate
for election so that it can be said that he had himself come out as a prospective candidate that can only
be communicated to the outside world by declaration or by conduct from which it could be inferred
that he intends to stand as candidate and for that very purpose, nomination, the foundation of
candidate‘s right to go to courts. Therefore, nomination to election is an integral part of election
process.

C. Constitutional Qualifications-
a. Article 84 for Parliament and Article 173 for State Elections. Graduate Constituencies-
Legislative Councils (Article 173(3)(b)).

b. Citizenship- Article 5 to Article 8 and Citizenship Act, 1955 pursuant to Article 11 read with
Item 17 of List I of Schedule VII of the Constitution making elaborate provisions for the acquisition
and termination of citizenship subsequent to the commencement of the constitution. Therefore it is a
relationship between sovereign and the subject. So far as Indian Constitution is concerned, no
distinction is drawn in the status of citizen whether a born citizen or a citizen by registration.

c. Age of Candidate- Article 84 and Article 173.

d. Brijendra Gupta v. Jwala Prasad, AIR 1960 SC 1049- A candidate had omitted to mention age
in his nomination paper. Consequently, his nomination paper was rejected by the returning officer.
The returning officer can reject nomination on the ground of any defect provided the defect is of
substantial nature. Election tribunal also had that the omission or defect was of substantial character
but the High Court allowed the appeal on the ground that at the time of scrutiny, the candidate had
offered to supply the omission but was not allowed to do so and that returning officer was bound to
make a summary enquiry before rejecting nomination paper and therefore, the rejection was bad in
law. Supreme Court on appeal reversed the decision of High Court and held that the failure to specify
the age on the nomination paper amounts to a defect of substantial character under Section 36(4) of
the Representation of people act, 1951.
e. Oath of Allegiance- It refers to the obligation of the subject to be loyal to the state and follow
its constitution and laws made thereunder. Therefore, it is necessary for a candidate seeking election
to a seat in a state or central legislature to take oath or make affirmation that he will bear true faith and
allegiance to the constitution of India and that he will uphold the sovereignty and integrity of India.
This oath has to be taken after the nomination and this should exist at the time of scrutiny. Article 102
and Article 191- Disqualifications for Membership. Since not taking oath is a disqualification,
nomination of a candidate could be rejected on this ground.

D. Statutory Qualifications-
a. Section 3- Qualification for membership of Council of States.
b. Section 4- Qualification for Membership of House of the people.
c. Section 5- Qualification for membership of Legislative Assembly.
d. Section 5A- Sikkim
e. Section- Legislative Council. Section 20 of 1950 Act explains ―ordinarily resident‖.
f. Normal rule is that person should be elector of that constituency.
g. Constitutional Qualification and Statutory Qualifications do not vary in case of Scheduled
Castes and Scheduled Tribes.

h. G.Ram v. Rihiram Kaundal- Candidate did not specify his caste in the nomination paper. But
he provided an annexure certifying that the appellant belonged to scheduled caste ‗loha‘. High Court
said that Section 33 of 1951 Act requires that nomination must be in a prescribed form which is a self-
content one. The filing of any certificate along with the form is not contemplated. It set aside the
election. The Supreme Court said that the high court was in error and said that the certificate must be
treated within the meaning of the said section.

E. Disqualification of Candidate and Members- Article 102 and Article 191 of Constitution of
India. Article 190 talks about Vacation of Seats.

a. Office of Profit- Parliament (Prevention of Disqualification Act), 1959- Talks about Offices
which are not office of profit.
b. Priya Lal v. Roshan Lal- Object of this provision is to secure independence of members of
parliament and to ensure that parliament does not contain persons who have received favours or
benefits from executive and who consequently are under an obligation to the executive, might be
amenable to its influence, that there should not be any risk of conflict between duty and self-interest
amongst members of parliament.

c. Guru Govind Basu v. Sankari Prasad- AIR 1964 SC 254- Supreme Court laid down a test for
determination whether an office is under a government or it is an office of profit.
i. Whether the Government makes the appointment?
ii. Whether the Government has the right to remove or dismiss the holder?
iii. Whether the Government pays the remuneration?
iv. What are the functions of the holder of office?
v. Does the Government exercise any control over the performance of these functions?

Siva Murti Swami Inamdar v. Agadi Sanganna Andanappa- 1971 3 SCC 870- It must be established
that the person was holding office under Union or State Government. Thereafter, one must see
disqualification relating to office has been removed by any parliamentary legislation. The office in
question must have been held by the government and to that some pay be attached. The word profit
connotes the idea of pecuniary gain. Therefore, if there is really a gain, its quantum would not be
material, but the amount of money receivable in connection with the office he holds may be material
in deciding whether the office really carries any profit.

The test given in above two cases must co-exist and if one of the elements is absent, the test of the
person holding the office under the government is not satisfied.
Being of Unsound Mind-Lunacy Act, 1912- It must come from a competent court under this statute.
Undischarged Insolvent- A person must be declared under Presidency Towns Insolvent Act or
Provincial Insolvency Act, 1920 by the competent authority.

Not being Indian Citizen- A person who does not hold citizenship of the country cannot contest
election.

Kedar Pandey v. Narain Vikram Shah- AIR 1968 SC 160- When a person can be said to have
changed his domicile of origin? Supreme Court observed that law attributes every person at birth, a
domicile of origin, this domicile may be changed and a new domicile may be required. The former
kind of domicile is received by operation of law at birth while the latter kind of domicile is acquired
later by the actual removal of the individual to another country accompanied by his animous manendi.
Therefore, any individual who is not under disability may at any time change his existing domicile
and acquire for himself a domicile of choice by residing in a country other than that of his domicile of
origin with a intention of continuing to reside there indefinitely. He should have formed a deliberate
intention to settle there. Thus, domicile and citizenship are two different concepts. Within the
meaning of article, domicile along with 5 years residence is necessary to make a person as Indian
Citizen, mere domicile is not a sufficient qualification for membership of the legislature.

Defection- 52nd Amendment- Schedule 10 of the Constitution Introduced.

Statutory Disqualifications

1. Conviction for certain offences- RP Act, 1951 Section 8, 8A, 9, 9A, 10 and 11. Raghubeer
Singh v. Surjeet Singh, 1994 Supp 3 SCC 160- The differentiation made in subsection 2 and 3 of
section 8 as regards ―further six years since his release‖ was challenged as discriminatory on the
ground that there is no rational for providing different periods of disqualifications in section 8. The
Supreme Court rejected the contention holding that the classification of offences is
permissible. Jawahar Singh v. ECI, AIR 1999 Allahabad 18.

2. Chandra Raha v. Kahendra Nath, AIR 1961 SC 334.

3. Mani Lal v. Parmailal, AIR 1971 SC 330- The respondent was convicted under IPC after his
nomination paper was accepted. He won the election. During the pendency of Election Petition, his
conviction was set aside. The SC said that the returned candidate cannot be said to be disqualified on
the date of the election. If, before, or, during the pendency of the petition, his conviction is set aside
and he is acquitted, the order of acquittal in appeal wipes out the conviction and sentence
retrospectively.

4. SM Banerjee v. Krishna Agrawal- AIR 1960 SC 368- if the nomination paper expressly does
not disclose any disqualification but there is non-compliance with constitutional and statutory
provisions, then it can be challenged under Section 100(d)(iv) for declaring the election void. If
Returning officer accepts the nomination paper of a candidate who has been dismissed due to the
above reason and five years period has not elapsed since, then it would be a ground for setting aside
his election on improper acceptance of nomination paper.

5. Mangilal v. K.R. Powar- AIR 1971 SC 1943- Contracts with Government- The chairman of
BoD of a company entered into a contract for supply of electricity with government. The court held
that it would not incur disqualification since supply of electricity cannot be considered to be a contract
entered into by the chairman of the board in the course of his trade or business and it is settled law
that a company registered under the Companies‘ Act is a separate entity distinct from its shareholders.
6. Chaturbhuj Vitthaldas Dasani v. Moreshwar Parsharam- AIR 1954 SC 236- Whether a
contract for the supply of goods terminates when the goods are supplied or does it continue till the
payment is finally made after the contract is fully discharged by performance of both sides. The court
said that the interest in contract continues even if supply is completed and the payment is awaited.

7. A person is disqualified if and so long is manager of the corporation and person has 25% shares.
Co-Operative Society is excluded.

8. Failure to lodge account of election expenses- 77(2) and 78 of Election Rules, 1961 and
Section 10A of RP Act.

9. Shatrucharia C. Raju v. V.P. Kumar Deo- AIR 1992 SC 1959- The court said that the
submission of details of expenses in the prescribed manner is mandatory and failure to do so without
justification incurs disqualification and therefore the candidate has to comply with the provision of
law in that very manner to the satisfaction of the election commissioner.

10. A.C. Pradhan v. Union of India- AIR 1997 SC 2814- Unless Election law permits, no authority
can prohibit the election candidate and the right to contest or vote is not a fundamental but a statutory
right.

11. Nomination of paper-The person proposes himself as the candidate as representative of that
constituency and he has to submit the form in the prescribed manner. The nomination form has to be
duly filled in.

12. Bajendra Gupta v. Jwala Prasad- Non- compliance with Section 33 (nomination) would justify
the rejection of nomination paper provided of course that the defect arising out of non-compliance is
of substantial character. Section 100(1)(c) of RP Act- essentials of a valid nomination.
a. Nomination should be in the prescribed form and it should be duly filled by the candidate and
signed by him
b. It should accompany the required documents and annexures.
c. It should accompany the required deposits.
d. The candidate should be an elector to the said election from any constituency.
e. Candidate should be qualified and should not be disqualified under the relevant rules.
f. His proposer and seconder should be electors from the constituency from which the candidate is
nominated and should have signed the nomination paper.
g. In case of general election to that legislature, he is not nominated for more than 2 constituencies.
h. The form should be presented to designated officer in the manner and within the time
prescribed.

13. Harjeet Singh Mann v. Umrao Singh- AIR 1980 SC 701- Delay in the presentation of
nomination paper- The appellants alleged that the proposer of the candidate went to the returning
officer after 2 P.M. Nomination was filed 10 minutes after 3 PM. Thus, there was non-compliance
with Section 33(1). Returning Officer had no option but to reject the nomination.

14. Name and Serial Number in Electoral Roll- Rangi Lal Chaudhri v. D. Sahu- The court dealt
with a situation where the appellant was elected as a member of legislative assembly from Dhanbad.
Nomination paper of respondent was rejected because the proposer proposed to candidate to contest
from Bihar and not Dhanbad. Tribunal said it was rightly rejected. High court reversed the decision.
The Supreme Court came to the conclusion that since the mistake has occurred on account of
inconsistency in Hindi Form, the defect is not of a substantial character under Section 36(4) of RP
Act, 1951.

15. Ram Avdhesh Singh v. Sumitra Devi- The Supreme Court said that misdescription of electoral
roll number or proposer or their names in the nomination paper is not to be considered a material
defect.

16. Rafique Khan v. L.N. Sharma- the Supreme Court reviewed the earlier case laws. The defect
which can be per se noticed at Section 33 (4) and later at Section 36(4), the same cannot be said to be
of non-substantial character.

17. Ranjeet Singh v. Preetam Singh- AIR 1966 SC 1626- The object of producing the copy under
Section 33(5) is to enable the returning officer, is to check whether the candidate and the proposer are
qualified, one for the purpose of standing and other for the purpose of proposing. If this qualification
is not maintained, the entire process becomes faulty. Non- compliance with this clause will prove fatal
in the election.

18. Errors of Substantial Character- There are no definitions as to defects which can be called as
substantial character. Devkant Barua v. Kushi Ram- AIR 1961 SC 1125- The nomination form
contained the statement that the respondent no. 1 was nominated as the candidate for election from
Navgaon Assembly constituency stating the electoral roll no. of the proposer and candidates
respectively. The entry was misspelled. Supreme Court held that the defect was not of substantial
character.

19. Vivekananda Giri v. Nand Kishore Sahay- AIR 1984 SC 856- The candidate stated his age in
the nomination paper to be 33 years while age in the electoral roll was given as 37 years. The
Supreme Court held that the defect was not of substantial character. Thus, his nomination was
wrongly rejected.

20. Roll of returning officer in scrutiny- Returning Officer occupies a pivotal position in the whole
electoral process. And for every election, the election commission, in consultation with the
government designates an officer of government or of a local authority. Based on his decisions, a
nomination paper is to be accepted and rejected. It is the general duty of the returning officer to do all
such acts as may be necessary for effectuating the conduct of elections in a manner provided by the
RP Act, 1951.

7.WITHDRAWAL OF CANDIDATURE:

Conduct of Election Rules, 1961- The candidate must fill in the form and apply before the last date for
withdrawal of candidature [Section 30(c)].

Mohd. Younis Saleem v. Shiv Kumar Shasthri- AIR 1974 SC 1218- Whether gift offer or promise to
a candidate from withdrawing from a contest after a time prescribed for withdrawal is over would
come under the mischief of Section 123(A)(a) of RP Act, 1951. Since purity of election is the most
important object of the act, a narrow meaning to the word withdraw to refer only to legal withdrawal
would forfeit the purpose, so the court has to give meaning to the word withdraw keeping in mind the
object and scheme of the act with a view to effectuate the intention of legislature to ensure purity of
elections. Else, there would be an assured where actual withdrawal after the time limit will be free
from the vice of corrupt practice. Whereas, that prior to it will not be so. Such an intention cannot be
attributed to the legislature from deletion of the words ―retire from contest‖. The word withdraw is
comprehensive enough to also connote ―retire from contest‖.

Ummed v. Raj Singh- Justice Bhagwati agreed that the provision should be construed so as to the
supress the mischief and advance the remedy but that does not mean a construction should be adopted
which ignores the plain natural meaning of the words or disregards the context or colloquation in
which they occurred. It was held that the scheme of the act should be taken into consideration in order
to find out the true meaning of the words. Since Section 37 prescribed for procedure of Withdrawal of
candidature, the term must be interpreted in the backdrop of Section 37. The only mode in which a
candidate can withdraw his candidature and cease to be a candidate is that set out in section 37 until
the last date for withdrawal of candidature, the candidate has locus paenitentiae and he can withdraw
by giving a notice in writing to that effect under Section 37. But once the date is passed, he becomes a
contesting candidate and he has no choice. The term ―withdraw‖ in Section123 has to be interpreted in
light of its meaning under previous Sections.

8.RESERVATION:

India has a caste based social system. The Preamble of the Constitution of India has emphasized
upon social economic and political justice as well as equality of opportunity and status. For securing
this objective there was the need to give special protections to certain sections of the society and to
ensure an overall socio-economic development in the country.

Right to Equality before law to all persons, Prohibition of discrimination, abolition of untouchability
(Art.17) have been provided in the fundamental rights. Art.38 of the Directive Principle of State
Policy calls upon the State to strive for promoting the welfare of the people. The Constitution of India
accepts the principle of protective discrimination for safeguarding the interest and special needs of
certain classes of the citizens including persons belonging to schedule caste, schedule tribes and other
backward lasses.

The Constitution of India incorporated several measures for protecting the interests of the members of
scheduled castes and scheduled tribes and also the backward classes. The Constituent assembly
decided that for securing equal participation in social and political life, it was essential to provide for
reservation of seats, in the Union Parliament (Art. 330) and State Legislatures (Art.332) as well as in
educational institutions and jobs in the civil services (Art.335). Along with the provision for
reservations of jobs for the SC‘s and ST‘s, now the system of reservation for other backward classes
has also been brought into effect. The 93rd Constitutional Amendment Act 2005 has inserted
clause (5) in Art.15 which provides for the state for making special provision relating to admission to
educational institutions including private institutions for the advancement of any socially and
educationally backward classes of citizens or for the SC‘s and the ST‘s. Part XVI of the Constitution
stands entitled as special provisions relating to certain classes. Initially it was for a period of 10 years
that reservations were applicable. But the period of reservation has been enhanced. The 95th
Constitutional Amendment Act 2009 amended Art.334 to extend the reservation of seats for SCs
and STs in the Lok Sabha and states assemblies from Sixty years to Seventy years. Many castes want
their inclusion in the list of SC‘s and ST‘s to get privileges and benefits. Critics of policy of
reservation say that it is unhealthy and harmful for the development of the Indian Political system.
Art. 338 mentions about the Constitution of the National Commission for Scheduled Castes and Art.
338 A mentions the composition of a National Commission for the Scheduled Tribes. Art. 341 lays
down that the President of India on the advice or recommendations of the Governor of the State can
order the inclusion of any caste in the list of scheduled castes. A similar provision is given in Art. 342
regarding the scheduled tribes. Women's Reservation Bill is a pending bill in India which proposes
to provide thirty three per cent of all seats in the Lower house of Parliament of India the Lok Sabha
and state legislative assemblies shall be reserved for women. The Upper House Rajya Sabha passed it
on 9 Mar 2010.The seats to be reserved in rotation will be determined by draw of lots in such a way
that a seat shall be reserved only once in three consecutive general elections. While Parliament
debates and fights over the Women Reservation Bill, 50 per cent reservation for women at the grass
root-level development process in Kerala has been implemented in the elections to local bodies in the
state held in 2010.

9.LOCAL BODIES ELECTION:

India has been known to be the land of villages, as majority of the population live in villages. It is
widely accepted that self-governing institutions at the local or village level are essential for national
growth and for effective people‘s participation. Local governments are an integral and indispensable
part of the democratic process. ―Grass roots of democracy‖, based on small units of government
enables people to feel a sense of responsibility, inculcate the values of democracy and ensure people‘s
participation in public affairs and developmental work. In a vast, diverse and complex country like
India, democratic decentralization is both a political and administrative necessity. Self-governing rural
local bodies are described in the Indian context as institutions of democratic decentralization or
panchayati raj.

Background

The Indian constitution enforced on January 26, 1950 gave constitutional importance to local self-
government by including it in the State list in the Seventh Schedule. Also, Article 40 of the Chapter
on Directive Principles of State Policy entrusts the States to take steps to organise village panchayats.
The Community Development programme was launched in 1952 and the National Extension Service
in 1953, to bring all-round development of the people in rural areas and to ensure people‘s
participation. But these programmes did not succeed, and the government appointed a committee
headed by Balwant Rai Mehta in January 1957 to examine the question of reorganization of
the district administration. The committee submitted its report in 1958 and recommended

A scheme of ―democratic decentralization‖ with a three-tier structure of local self-

government from the village level, block level and district level.

All programmes of social and economic development should be formulated through these
institutions.
Rajasthan and Andhra Pradesh were the first states to adopt panchayati raj institutions in
1959, followed by other states. However, there was no uniform pattern of Panchayati raj and came
into existence in different states with all kinds of variations. It met with failure in many states due to
political factionalism, scarcity of economic resources and bureaucratic hindrances.

In this overall context, the Janata Government, in December 1977 appointed a committee, under the
chairmanship of Ashok Mehta, to review the working of the Panchayati Raj set-up and recommend
remedial measures. The committee submitted its report containing 132 recommendations in August
1978. In order to bring about uniformity in the Panchayati raj set-up for the whole country, a model
bill was prepared. However, the collapse of the Janata Government at the centre a few months later
put a full stop to any further progress in this direction.

Since the middle of 1980‘s, there has been a growing interest within the Union Government and
several State Governments in reviving the role of panchayati raj. The Planning Commission also had
emphasized on the need for expanding and energizing the role of panchayati raj in promotion
and management of rural development. One important step taken by the Union Government in 1984
was that the Prime Minister wrote to Chief Ministers of State governments to take appropriate steps
and action without further delay for holding overdue elections to Panchayati raj institutions as well as
for revitalising their functioning. Another important step taken by the Government was to appoint two
committees - one in 1985 under the chairmanship of G.V.R.Rao and another in 1986 under the
chairmanship of L.M Singhvi – to suggest ways and means for strengthening panchayati raj. The
Union government also convened workshops of senior administrators concerned with panchayati
affairs and conferences of panchayati raj leaders.

Taking into account the views of these committees, workshops and conferences, the union
government decided to amend the Constitution of India in order to provide a firm basis to the essential
features of the panchayati raj. The landmark 73rd amendment of the constitution provided for
an elaborate system of establishing Panchayats as units of self governments. The 73rd Constitutional
Amendment was passed by Parliament on 22nd December 1992. The 74th Constitutional
Amendment deals with the establishment of Municipalities. These two constitutional amendments
were notified by the Central Government through Official Gazette on April 20, 1993 as it got
ratification by the State legislatures and was assented by the President of India. After notification
the Panchayati Raj institutions have now become part of the constitution. Madhya Pradesh was
the first state to introduce the Panchayati raj system based on the 73rd constitutional Amendment.

73rd Constitutional Amendment Act, 1992

This amendment has added a new Part IX titled ―Panchayats‖ in the Indian Constitution, consisting of
16 articles – Article 243 to 243 O. It has also added the Eleventh Schedule, which elaborates Article
243 G, dealing with Powers, authority and responsibilities of the Panchayats.

This Act provides that the Panchayat bodies will have a duration of five years, with elections
mandatory after this period. Under the Act the establishment of Panchayats and the devolution of
necessary powers and authority on the Panchayati Raj institutions are vested in the state governments.
It provides for a three-tier panchayati raj system at the village, intermediate and district levels. Small
states with population below twenty lakh have been given the option not to constitute the panchayats
at the intermediate level. The 73rd Amendment Act envisages the Gram Sabha (Article 243A) as the
foundation of the Panchayati Raj System to perform functions and powers entrusted to it by the state
legislatures. ‗Gram Sabha‘ means a body consisting of persons registered in the electoral rolls relating
to village comprised within the area of Panchayat at the village level.

Article 243 C provides for the composition of panchayats. All members of the village panchayats,
intermediate panchayats and district panchayats shall be chosen by direct election from territorial
constituencies in the panchayat area. Minimum age of a person to become a member of a Panchayat is
21 years.
Article 243 D provides for the reservation of seats for scheduled castes and scheduled tribes and for
women. One-third of the total seats in the panchayat are reserved for women. Reservation of seats for
SC‘s and ST‘s will be in proportion to their population in the state. Such reserved seats may be
allotted by rotation to different constituencies.

Article 243 G provides for the powers, authority and responsibilities entrusted to the Panchayats to
prepare plans for economic development and social justice in respect of matters listed in Eleventh
Schedule of the Constitution. This schedule contains 29 items which include agriculture and allied
activities, minor irrigation schemes, land reforms, water management & watershed development,
khadi village & cottage industries, rural housing, roads & bridges, primary and secondary education,
adult education, libraries, markets and fairs, primary health centers, family welfare, women and
child development, welfare of weaker sections etc. According to Article 243H, panchayats have
the power to impose taxes, tolls and fees and to receive finance from the state government in the form
of grants.

As a result of the enactment of the 73rd constitutional amendment about 2,27,698

Panchayats at the village level; 5906 panchayats at intermediate level and 474 panchayats at the
district level have been constituted in the country. These Panchayats are being manned by about 34
lakh elected representatives of Panchayats at all levels, thus providing a broad representative base at
the grass roots level.

74th Constitutional Amendment Act 1992

The 74th constitutional Amendment has added a new Part IX A titled ―Municipalities‖ in the Indian
Constitution, consisting of 18 articles – Article 243P to 243 ZG. It has also added Twelfth Schedule,
which elaborates Article 243 W dealing with powers, authority and responsibilities of the
Municipalities.

Article 243 Q provides for the establishment of the following three types of municipalities for urban
areas:

i. A Nagar Panchayat for a transitional area, that is an area in transition from a rural area to a
urban area;
ii. A Municipal Council for a smaller urban area; and
iii. A Municipal corporation for a larger urban area.

Article 243 R provides for the composition of municipalities. All the seats in a Municipality shall be
filled by persons chosen by direct elections from territorial constituencies in the Municipal area. For
this purpose, each Municipal area shall be divided into territorial constituencies to be known as wards.

Article 243 S provides for the constitution and composition of ward committees, consisting of one or
more wards, within the area of a Municipality having a population of three lakh or more.
Article 243T provides for reservation of seats for scheduled castes and scheduled tribes in every
Municipality. Out of the total number of seats to be filled by direct elections, at least one third would
be reserved for women. Such seats maybe allotted by rotation to different constituencies in a
Municipality.
Article 243 U provides that every Municipality shall have a duration of five years, but it may be
dissolved earlier.

Article 243 W provides for the powers, authority and responsibilities entrusted to the
Municipalities to prepare plans for economic development and social justice, perform functions and
implement schemes in respect of matters listed in the Twelfth schedule. This schedule contains 18
items which include urban planning including town planning, regulation of land-use, construction of
buildings, roads & bridges, water supply, public health, sanitation, solid waste management, slum
improvement, safeguarding the interests of weaker sections of society, burial grounds, provisions of
urban amenities and facilities such as parks & playgrounds, registration of births and deaths, street
lighting, parking lots, regulation of slaughter houses etc.

Article 243 X confers powers on the Municipalities to impose taxes, duties, tolls etc. and to receive
finance from the state government in the form of grants-in-aid. The Finance Commission shall review
the financial position of the Municipalities and make the necessary recommendations.

Apart from giving constitutional recognition to Municipalities, the 74th Amendment lays down that
in every state two District Planning Committees shall be constituted –
(i) at the district level, a District Planning Committee. (Article 243 ZD)
(ii) In every metropolitan area, a Metropolitan Planning Committee (Article 243 ZE).

Thus the 74th Constitutional Amendment Act, 1993 was a landmark in constituting urban local
governments in India.

Following the 73rd and 74th Constitutional Amendment Acts significant reorganization of the
Panchayati raj system took place in several states of India for its effective implementation. States
statutory amendments have been made for providing substantive changes in the Panchayati raj.
Political parties are also playing an effective role in the election and working of Panchayati raj
institutions. There is no doubt that the present Panchayati raj system is certainly a step forward in the
direction of decentralization of powers to the people at the grassroots level.
UNIT 2
ELECTION COMMISSION:

1.THE ELECTION COMMISSION OF INDIA- COMPOSITION

There exists a single independent machinery for the conduct of elections in India. The Election
Commission of India has been entrusted the responsibility of the conduct of elections in India.
Art.324 of the Constitution lays down that, ― The superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and Vice-President held under
this Constitution shall be vested in an Election Commission.‖

The Constitution provides that the Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners as the President may from time to
time fix. When any other Election Commissioner is so appointed the Chief Election Commissioner
shall act as the Chairman of the Election Commission. The Chief Election Commissioner and other
Commissioners are appointed by the President subject to the provisions of the law made by the
Parliament. The term of the Election Commissioners is six years from the date of appointment or till
the attainment of 65 years, whichever is earlier. The CEC and other commissioners can quit office by
submitting their resignations to the President. The President can also remove the election
commissioners before the expiry of the full term upon the recommendation of the
Parliament. Any Election Commissioner can be removed by the President only when a resolution
charging him with proven misbehaviour or incapacity is passed by each House of the Parliament with
a majority of the total membership and 2/3rd majority of the members present and voting.

The founding fathers of the Indian Constitution on, 25th January 1950 gifted to the nation a precious
institution by the name of Election Commission of India to ensure representative democracy. Sri.
Sukumar Sen was the first Election Commissioner. In order to encourage more young voters in the
political process, the Government of India decided to celebrate 25th January as National Voter‘s
Day. The National Voter‘s Day was launched on 25th January 2011.

The Election Commission was made a multi-member body in October 1993.Apart from the Chief
Election Commissioner Sri.T.N. Seshan, two more Election Commissioners were appointed- Sri
G.V.G. Krishnamurthy and Dr. M.S. Gill. The Election Commission of India continues to be a three
member commission- one Chief Election Commissioner and two other Election Commissioners. The
present CEC is Dr. S.Y. Quraishi, with Sri. V.S.Sampath and Sri. H.S. Brahma are t6he other
two election commissioners.

POWERS AND FUNCTIONS OF THE ELECTION COMMISSION

The Election Commission of India has to perform multifarious duties assigned to it under the
Constitution. Some of the principal functions of the commission are:

1. Demarcation of Constituencies

To facilitate the process of elections a country has to be divided into several constituencies. The task
of delimiting the constituencies is generally performed by a delimitation committee. As an outcome
of the recommendation of the Election Commission the Parliament enacted the Delimitation Act,
1952. The Delimitation Commission was to consist of three members, two of whom were to be
nominated by the President from serving or retired judges of the Supreme Court or High courts while
the Chief-Election Commissioner was to be an ex-officio member.

2. Electoral Rolls

The second important but tedious function of the Election Commission is to prepare for identification
the up-to date list of all the persons who are entitled for voting at the poll.

3. Recognition of Political Parties and allotment of symbols

A new part (Part IV A) has been added to the Representation of the People (Amendment) Act, 1951,
on registration of political parties. Section 29 A now inserted for provides for registration with the
commission, of associations and bodies of individual citizens of India as political parties for purposes
of this Act. This provision came into force from June 15, 1989. A recognized political party has been
classified either as a National party or as a State party under the paragraph 7 of the Elections Symbol
Order, 1968.

Another important function of the Election Commission is to allot symbols to the political parties and
the candidates, and also to accord the recognition to the political parties. The Commission has
specified certain symbols as reserved and others as free. The reserved symbols are only available for
candidates sponsored by the political parties and the free symbols are equally available to other
candidates.

4. Scrutiny of the Nomination Papers

Another function of the Election Commission is to examine the nomination papers of the candidates.
These papers are accepted if found in order, but rejected otherwise. This duty is performed by the
Returning Officer who notifies to all the contesting candidates the date, time and place for the formal
scrutiny of nomination papers.

The Returning Officer summarily but judicially examines all the nomination papers and decides the
objection raised. He is also to see whether the requisite requirements of security deposits, election
symbol, election agent etc. have also been fulfilled. He is empowered to reject the nomination papers
either by upholding the rejection raised by a rival candidate or on his own motion or any of the
following grounds : (a) that the candidate either is not qualified or is disqualified to fill the seat
under any of the relevant constitutional provisions viz. Article 84, 102,173 and 191; (b) that the
provision of Section 33 and 24 of the Representation of the people‘s Act,1951 have not been compiled
with and ; (c) that the signature of the candidate or the proposer on the nomination paper is not
genuine.

5. The Conduct of the poll

Another stupendous task that the Election Commission has to undertake is the conduct of the poll
throughout the whole of India. In a Parliamentary or Assembly Constituency, the Returning Officer is
to make necessary arrangements for conduction the poll with prior approval of the Election
Commission. The commission can order a re-poll in the whole constituency under compulsion
of circumstances. Article 324 confers on the Election Commission necessary powers to conduct the
elections including the power to countermand the poll in a constituency and ordering a fresh poll
therein because of hooliganism and breakdown of law and order at the time of polling or counting of
votes.

6. Election Expenses

Another must controversial function that the Election Commission has to perform is to scrutinize the
accounts of election expenses submitted by contestants in elections. In India every contesting
candidate is required to maintain and file the accounts of his election expenses within a prescribed
period of 45 days, after publication of the result of his election. Within 10 days from the last date of
filling the returns, the Returning Officer submits to the Election Commission a list of all the
candidates and their agents together with their returns as also his observations in respect of candidates
who have failed to lodge returns in the specified time and in accordance with the procedure prescribed
by law. The Commission scrutinizes the accounts and decides whether the returns are in proper form
and whether they have been lodged in time. In case of default it notifies the candidates for their agents
of their disqualification by publishing these in official Gazette.

2.POLITICAL PARTIES

Political parties are indispensable for the working of a democratic government. In fact,
political parties are the life and blood of democracy. According to Bagehot ―Party government is the
vital principle of representative government.‖ In the words of Prof. Harold Laski, ―There is no
alternative to party government save dictatorship in any state of the modern size and they are
inevitable in a democracy.‖ In every democratic country the party system is an extra-legal growth. It
exists outside the legal framework of the state and is not referred to in the Constitution. Political
parties express and form public opinion and are the chief mechanism of informing and influencing the
electorate. Organisation and mobilization of the electorate is an important function of the political
parties.

Definition

By a political party we mean a group of citizens more or less organized who hold common views,
ideas on public questions and acting as a political unit seeks to obtain control of the government in
order to further the policy which they profess MacIver defines a political party, ―As an association
organized in support of some principle or policy which by constitutional means it endeavors to make
the determinant of government.‖ According to Gilchrist a party may be defined as, ―an organized
group of citizens who profess to share the same political views and who by acting as a political unit
try to control the Government.‖ Leacock compares it, ―With a joint stock company to which each
member contributes his share of political power.‖

Functions

Political parties generally perform the following functions:

 blic

to power.

Evolution of Party System in India

The contemporary party system in India developed originally in the context of the struggle for
freedom. The centre of political activity during the National Movement was the Indian National
Congress which was founded in the year 1885. In the pre-independence years, the Indian National
Congress was the first organized political party of Indians. In course of time, the Congress attracted
cross- sections of Indian community and became a mass organization. Later on in 1906, the Muslim
League, in 1916 the Hindu Maha Sabha and in 1924 the Communist Party were formed. After
Independence the adoption of a democratic federal system set the stage for the emergence of several
political parties both at the National and the regional levels.

Features of Indian Party System

1. A multi-party system –As a pluralist society, India has a multi-party system with several political
parties continuously engaged in the political process. Several political parties functioning in the
Indian parliamentary democracy, the Congress, Bharathiya Janata Party, Communist Party of
India, Communist Party of India (Marxist), Bahujan Samaj Party, Janata Dal, Samata Party,
Nationalist Congress Party at the national level and political parties like the National Conference,
DMK, AIDMK, Telugu Desam, Akali Dal, Assam Ganaparishad, Samajwadi Party, Rashtriya Janata
Dal, Trinamool Congress, Jharkhand Mukti Morcha etc at the regional level. Six political parties stand
recognized as National level political parties (BSP, BJP, Congress, CPI, CPM, NCP) while around 45
parties are recognized as state level or regional political parties. In addition there are about 400 other
registered parties. Although initially the party system in India worked as a one party dominant system,
the opening of the era of coalition governments since 1989 has strengthened the multi-party system in
India.

2. One Party Dominance System – The Indian party system was known as the one party dominant
system because of the dominant position of the Congress party between 1947-
1967; 1971-1977 as well as from 1980-89. The Congress party exercised a monopoly of power at the
centre and, with a few exceptions, had been in control in most of the states. Rajni Kothari asserted that
the Congress party, based upon a broad consensus, was able to accommodate diverse interest and
factions within its fold.

3. Endless proliferation of political parties – There has been a mushroom growth of national,
regional, communal and adhoc parties in India. No other democratic country in the world has such a
multiplicity of political parties. The party structure has also been rapidly changing due to splits,
defections, alliances and counter-alliances. This unusual growth of political parties is the result of
a series of complex and inter-related development such as the emergence of new social aspirations,
the political skill of the regional leaders and the excessive centralism and monopolistic policies of the
Congress. Moreover, the formation and functioning of political parties is not regulated by law. This
proliferation of political parties is not in the national interest as it hinders the emergence of a strong
and effective opposition party.

4. Fragmented Opposition- A peculiar feature of the Indian party system is that although there are a
number of opposition parties and groups, they do not constitute a credible national alternative.
Ideological incompatibility, personal differences among party leaders and the refusal of the parties to
merge their identity in the new organization also prevents the emergence of a credible national
alternative. However, in the context of the coalition era, political parties have been coming forward
to set up political alliances to form coalition governments.

5. Lack of Ideological Commitment- Ideology equips a party with a meaningful end and the
motivation necessary for mobilizing its organization to achieve that end. Despite their emphasis on
ideological commitment, the main aim of all political parties in India has been to capture power.
Today Indian politics has become more issue-oriented rather than ideologically committed. Political
parties lack a clear cut ideology. As Francine Frankel has opined ―Elections have been won not on the
basis of the inherent strength of the ideology of a political party but on the basis of issues of
immediate concern to the electorate.‖
6. Organizational Drawbacks- Another feature of the Indian party system is
the organizational looseness of political parties and lack of party discipline. From the
organizational point of view, the Indian party system has suffered at the hands of both the
leaders and their followers. Most of the parties do not have democratically organized
structures. Several political parties maintain no membership registers, keep no accounts,
hold no organizational elections and lack organizational discipline. Parties are dominated by
the ‗top leaders‘ or the ‗party elites‘. A leader of towering personality can make or break a
political party.

7. Dominance of Personality-Cult- Party politics in India is characterized by the

dominance of individuals in the political parties. Political parties stand organized around
charismatic personalities and their leadership. Parties are often formed not on ideological or
programmatic basis but around politically influential individuals. Such parties become a
group of power seekers whose fortunes depend on their leader and never acquire a mass
base.

8. Dominance of Caste and Communal Forces- Political parties are ridden by caste and
communal considerations to a large extent in India. It is evident right from the selection of
candidates for contesting elections from the various constituencies, to the distribution of
ministerial portfolios after the winning of elections. Every political party keeps in mind the
caste and communal composition of the constituency while choosing the candidate.
Attempts are made to influence the electoral behavior also on the basis of caste and
communal identities. Parties are also dominated by caste and communal leaders.

9. Inner Factionalism and Groupism- Factions and Groupism within political parties has
become a common feature of Indian party system. Internal factionalism and groupism is
found in almost all the political parties. Groups owing loyalties to different leaders are
present in different political parties. Such factional leaders compete among themselves for
political influence within the party and the government. Such factionalism tends to keep the
parties in a constant state of flux.

10. Emergence of regional political parties- In India several regional political parties have
grown in number and influence. These parties articulate and seek to defend a regionally-
based ethnic or religio-cultural identity. Some of the prominent regional political parties are
the DMK and the AIDMK in Tamilnadu; Akali Dal in Punjab; Assam Gana Parishad in
Assam; National Conference in Jammu & Kashmir; Telugu Desam in Andhra Pradesh; Shiv
Sena in Maharashtra. Another new development is the growing influence of these regional
parties in the government formation at the centre in the context of ‗hung

11. Parliament‘ and coalition politics. A process of power sharing between national
and regional political parties has been instrumental in the formation of government at the
centre.

12. Politics of Defection- Defection is the term used for opportunistic transfer of loyalties
from one political party to another for selfish and power seeking reasons, without
resigning the membership from the legislature. It is also known as ‗floor crossing‘. During
1951-67 political defections took place on a very limited scale. After the Fourth General
Elections, 1967, Indian political system came to experience a spate of political defections. In
1985, the Parliament passed the 52nd Amendment Act for checking defections. It
outlawed defections and constituted a bold attempt to check the evil practice of political
defections. The 52nd Amendment Act, 1985, added a new Schedule—the Tenth
Schedule to the Constitution.

13. Politics of Populism- Almost all the political parties adopt and follow populistic policies
and raise populistic slogans for securing their vote banks. Waving of loans, increased
reservations, free water and electricity, food grains at very low prices etc. are some of such
schemes. Such populistic decisions do not take into account the increasing revenue needs of
the state and ultimately leads to financial crisis.

14. Irrelevance of Party Manifestos- As part of the election campaign, every contesting
party issues its manifesto. But the document has become a mere formality and is loosing its
significance. No party refers to its manifesto seriously and there is not much difference in
the contents of various manifestos. Every election manifesto comes up with populist policies
and promises. Moreover the differences among major political parties on critical issues of
domestic policies are hardly visible.

15. Use of Extra-Constitutional Means to Power- Political parties have been using
non- parliamentary and extra-constitutional means for gaining power instead of resorting to
peaceful and constitutional means. All the political parties resort to strikes, gheraos,
bandhs etc for securing party gains. During elections some political parties resort to
malpractices like booth capturing, rigging, forced voting, poll violence and forcible
prevention from voting.

16. Era of Coalition Politics- The era of coalition politics has dawned in India. In the
context of ‗hung parliament‘, when no political party gets a clear cut majority in the
legislature, a coalition government has to be formed with several political parties coming
together. Since 1996 coalition governments have been in power at the centre and in several
states.

Indian party system has been the product of the social, economic, cultural, linguistic,
religious and regional pluralism which has been a basic feature of Indian society. Indian
party system has been a fast changing and developing multi-party system. It has come out
of the age of one-party dominant-multi party system and now is developing as a real
multi-party system. The existence of several political parties both national and regional, has
kept the Indian political party scenario very complex.

Classification of Political Parties

In India political parties are classified into the following-

1. All India Political Parties or National Parties- All India political parties have been
officially defined as those national parties with broad based national support and able to win
at least six percent of valid votes polled in any four or more States at the general elections to
the Lok Sabha and in addition win at least four seats in the Lok Sabha from any State or
States. Another criterion is that a political party wins at least two percent of seats in the Lok
Sabha i.e. at least 11 seats in a house of 543, and its elected members are from at least three
different states. These parties emphasize on national issues in the parliamentary elections.
Eg.- Indian National Congress, Bharathiya Janata Party, Communist Party of India,
Communist Party of India (Marxist), Bahujan Samaj Party, Janata Dal, Samata Party.

2. Regional Parties- They clearly represent sub-regional nationalism based upon the
common language, culture and history of a region. These parties try to aggregate regional
interests regardless of the caste and religious affiliation of their members and their power
base and voting strength are confined to a particular geographic area. E.g.– DMK, AIDMK
in Tamil Nadu; Telugu Desam (Andhra Pradesh); the National Conference
(Jammu&Kashmir); Assam Gana Parishad (Assam).

3. Communal Parties- Include those parties and organizations that are exclusive in their
memberships; that is they accept as members only persons of a particular religion or ethnic
community. They seek to protect and promote the interest of that particular community only.
E.g. - Muslim League (Kerala); Akali Dal (Punjab); Shiv Sena (Maharashtra) etc.

4. Ad-hoc parties- Consists of those organized around powerful persons or local and state
issues. Such parties may not survive very long; some may appear only for a short period and
then disappear completely or merge into other parties. The Bangla Congress, Kerala
Congress etc are examples of such ad-hoc parties.

REGIONALISM

In India, even prior to Independence, regionalism was used as a tool by the imperialist to
promote their policy of keeping India divided. Regionalism was deliberately encouraged, as
a result of which people in each region thought more in terms of their region rather than of
India as a whole. Regionalism means love of a particular region or state in preference to the
country as a whole. A region is defined territorial unit including particular language, tribes
or ethnic groups, music, folk dance, folk arts, particular social settling and cultural pattern.

State and local political leaders exploit regional feelings of the people, in order to maintain
and strengthen their leadership. They try to talk of regional imbalances and regional
backwardness and exploit the feelings of the people of a particular region. Regionalism grew
due to four factors:
1. Lack of balanced economic and social development. 2. Increasing awareness among the
people that they were neglected in matters like education, job opportunities, setting up of
factories, construction of dams, allocation of central funds and grants. 3. Personal and selfish
ends of politicians. 4. Creation of linguistic states which reinforced and stirred demands for
increased state autonomy.
Regionalism has been a big hindrance in the process of national integration and nation-
building. It continues to plague Indian political system in several forms.
(i). Demands for secession. (ii). Demands for separate statehood. (iii). Demands for full
statehood. (iv). Demand for autonomy. (v). Demand for regional autonomy within a state.
(vi). Inter-state disputes. (vii). Sons of the Soil Policy.(viii). Militant Regionalism (ix).
Linguistic Regionalism.

ROLE OF REGIONAL PARTIES

The establishment of a strong centre had given rise to demands for decentralization of
administration and increased autonomy for states. These demands have manifested in the
formation and consolidation of regional parties. The creation of linguistic states have
reinforced regionalism and brought forward demands for increased state autonomy. The
main objectives of regional parties are: revival of regional culture, linguistic heritage or
religion; administration and political decentralization and devolution of power; giving a new
dimension to the centre state relations.

Several factors have been responsible for the emergence of regional political parties in India.
The presence of distinct cultural, ethnic, religious, linguistic and caste groups within India
has greatly helped the process of growth of regional parties. Religious factor, regional
imbalances, anti- centralism, political splits etc. are other factors responsible for the
emergence of regional political parties in India.

The role of regional political parties has been progressively increasing in the Indian political
system. Firstly, regional parties have posed the most powerful challenge to India‘s ‗one
party dominant system‘. Secondly, regional parties have made a strong impact on the nature
and course of Centre-state relations. The State leaderships have become more demanding
with their dealings with the Central leadership and the centre is becoming more responsive
to the needs and demands of the regional parties. Thirdly, regional parties have made
politics more competitive and popular participation in the political process has become more
extensive. Fourthly, in the context of the present era of coalition politics, several regional
parties have been emerging as key players in national politics. During 1999-2004, 23
regional political parties shared power at the centre as partners of the NDA. Since 2004 the
UPA is governing at the centre consisting of around 20 political parties including regional
political parties. Emergence and growing number and popularity of regional political parties
have helped in a new thinking which admits a positive role that regional parties can play in
the process of nation building. Participation of regional political parties in national politics
has been a new factor of Indian politics and federalism.

It can be concluded that the role of regional political parties in the Indian political system
has been enormous. On the one hand they have helped in the development of participatory
political culture and provided a check against the overshadowing tendencies of the Central
government; on the other they are also a source of strength for the development of the
federal process in India

3.REGISTRATION AND RECOGNITION OF NATIONAL AND STATE PARTIES:

Recognition of Political party as State or National Party & associated benefits

Any Indian citizen who is more than 25 years old and is registered as a voter can contest
elections even without forming a party. Similarly, associations can also contest elections
without getting registered by the Election Commission. They, however, will not be
identified as political parties and hence will not be eligible for availing of benefits under
the provisions of the Representation of the People Act, 1951 (RPA).

Benefits of registering a party :

 Firstly, the RPA allows political parties to accept contributions voluntarily offered
to it by any person or company other than a government company.
 Candidates of registered parties get preference in allotment of election symbols.
Other Candidates are identified as independents and do not get preference in symbol
allocation.
 Registered political parties, in course of time, can get recognition as `State Party‘ or
National Party‘ subject to the fulfillment of the conditions prescribed by the
Commission in the Election Symbols (Reservation and Allotment) Order, 1968, as
amended from time to time.
 If a party is recognised as a State Party‘ it is entitled for exclusive allotment of its
reserved symbol to the candidates set up by it in the State in which it is so
 recognised, and if a party is recognised as a `National Party‘ it is entitled for
exclusive allotment of its reserved symbol to the candidates set up by it throughout
India. Recognised `State‘ and `National‘ parties need only one proposer for
filing the nomination and are also entitled for two sets of electoral rolls free of
cost at the time of revision of rolls and their candidates get one copy of electoral
roll free of cost during General Elections.
 They get broadcast/telecast facilities over Akashvani/Doordarshan during general
elections.
 Political parties are entitled to nominate ―Star Campaigners‖ during General
Elections.
 A recognized National or State party can have a maximum of 40 ―Star
campaigners‖ and a registered un-recognised party can nominate a maximum of 20
‗Star Campaigners‖. The travel expenses of star campaigners are not to be accounted
for in the election expense accounts of candidates of their party.

A political party shall be treated as a recognised political party in a State, if and only if
the political party fulfills any of the following conditions:

 At General Elections or Legislative Assembly elections, the party has won 3% of

seats in the legislative assembly of the State ( subject to a minimum of 3 seats).
 At a Lok Sabha General Elections, the party has won 1 Lok sabha seat for every 25
Lok Sabha seat allotted for the State.
 At a General Election to Lok Sabha or Legislative Assembly , the party has polled
minimum of 6% of votes in a State and in addition it has won 1 Lok Sabha or 2
Legislative Assembly seats.
 At a General Election to Lok Sabha or Legislative Assembly, the party has polled
8% of votes in a State.


For Recognition as National Party:

 The party wins 2% of seats in the Lok Sabha (11 seats) from at least 3 different
States.
 At a General Election to Lok Sabha or Legislative Assembly, the party polls 6% of
votes in four States and in addition it wins 4 Lok Sabha seats.
  A party gets recognition as State Party in four or more States.
Both national and state parties have to fulfill these conditions for all subsequent Lokshabha
or State elections. Else, they lose their status.

4.SYMBOLS:

Political Party- It has to be a party which has some political aims and objects ultimately
with a view of gaining power.
A political party must represent a section of the people without which it cannot be called a
political party and this has its origin in Constitution of India, article 19(1)(a).
Political party is a group or body of citizens united for promoting the national interest in
some particular principles in which all of them are agreed.
The issues or objectives of a political party:
1. Social Welfare
2. Good Governance
3. Every modern state is full of complex problem (Article 38, 39, 40 and 44), so the
political parties have to select the most important issue and make the public conscious and
formulate public opinion for electing their representatives.

Clause 2 (h) of Election Symbols (reservation and allotments) order, 1968- Political
party means an association or body of individual citizens of India registered with the
commission as a political party under paragraph 3 and includes a political party deemed to
be registered with the commission under the proviso to sub-paragraph (2) of that paragraph.

Registration of Political Parties- Section 29A of RP Act, 1951

Recognition of Political Parties- The Election Commission of India under Article 324
made an order called as Election Symbols (Reservation and Allotment) Order, 1968.
To get recognition, a political party must fulfil certain condition
1. Has been engaged in political activity for a continuous period of five years.
2. Has at the general election in the state for the time being in existence returned at least a
certain amount of number (Refer to Rules)
3. A certain number of valid votes must be acquired by the party.
Two Categories- National Party and State Party
National Party- 4 States or more
State Party- 4 States or Less

Election Commission can derecognize such parties as political party.

Shiromani Akali Dal v. Election Commission of India, AIR 1994 Punjab and Haryana 77-
It was challenged that Election Commission has no right to derecognize a political party.
Petitioners said that this Election Symbol Orders is vague and insufficient. They also
challenged that as per paragraph 6, if a party fails to participate in election, it would mean
derecognition. (A.K. Roy v. Union of India, AIR 1982 SC 710)

M/S Girdhari Lal and Sons v. Balbeer Nath Mathur, AIR 1996 SC 1499- Court said that
Election Commission do not have power to derecognize. Court was not competent to strike
down a provision of law on the ground of vagueness by amending or adding to the statute.
Allotment of Symbols- A reserved symbol is a symbol which is reserved for a recognised
political party for exclusive allotment to contesting candidates set up by that party.
A free symbol is a symbol other than a reserved symbol.

Disputes in Election Symbols

Para 15 and Para 16 of Election Symbols (Reservation and Allotment) Order, 1968

Sanyukta Socialist Party v. ECI- AIR 1967 SC 898- The Supreme Court held that although
no power is given to the election commission to fulfil its own wishes on parties and
candidates, it can in a suitable case restore the lost advantage to a party before a symbol can
be said to be finally assigned to the other party.
Saddik Ali v. ECI- AIR 1972 SC 187- It was held that the commission while deciding the
matter under Paragraph 15 does not decide dispute about property of political parties. The
proper forum for adjudication of such disputes is the civil court.

C.Parshuram Naidu v. N.Venkataramaiyya Naidu- AP High Court Case- Whether the EC

has power to order change of symbol allotted to a candidate? EC has power to revise
allotment of symbols only and not to change it. The High Court held that the jurisdiction of
the commission is preserved to issue the order for change of symbols subsequent to
allotment and this jurisdiction is conferred by virtue of powers under article 24, Rule 10(4)
Election Rules and Paragraph 18 Election Symbols Order, 1968.

Jamil v. Gul Mohammad- AIR 1980 Rajasthan 166- The HC expressed the view that
though the political party is debarred from making a representation to the returning officer
for election symbol after 3 PM on the last date of withdrawal of candidature, yet the powers
of Election Commission under article 324 read with Rule 10(4) of 1961 are unfettered to
issue directions or instructions to the returning officer to change or allot particular symbol to
a particular candidate.

All Party Hill Leaders Shillong v. Captain W.A.Sangma- AIR 1990 SC 19- The change in
symbol had materially affected the election of the petitioner. The HC allowed the petition
and declared the election of the returned candidate to be void. The SC set aside the order of
the HC. While admitting the importance of symbols for the purpose of holding election, the
SC held that the petitioner must discharge his burden of proof that his election was
materially affected because of infringement of Rule 10(5) of Conduct Rules. Mere assertion
in petition is not sufficient. The violation of 10(5) would not make ipso facto, the election
void.

A.Dake v. Swami – AIR 1973 SC 1944- Similar symbols (Boat and Aeroplane). Court said
this does not make any difference in outcome of the votes. They are frivolous assertions. It
creates hurdles in the administrative process.

5.ELECTION EXPENSES:

What is NOT election expenditure?

Section 77 of the RoPA, 51 says that the expenditure incurred by leaders of a political party
on account of travel by air or by any other means of transport for propagating programme of
the political party is not considered to be the election expenditure. Further, any expenditure
which is done for service of the Government and discharge of official duty is also not
considered to be election expenditure.
The Expenditure Limit

The section 77 of RoPA 1951 mandates that every candidate at an election needs to keep a
separate and correct account of all poll expenditures between the date on which he was
nominated to date on which results are declared. Thus, legislation mandates for maintenance
of records, but there is no such statutorily defined limit on poll expenditures. However, we
have a ceiling on election expenses fixed by the Government of India. As per the current
norms, the maximum limit of election expenses per candidate is as follows:

Lok Sabha Constituencies

70 Lakh for all States except Arunachal Pradesh, Goa and Sikkim. 54 Lakh for Arunachal
Pradesh, Goa and Sikkim = 54.00 Lakhs 70 Lakh for NCT of Delhi 54 Lakh for other Union
Territories.

Assembly Constituencies

28 Lakh for bigger states and NCT of Delhi 20 Lakh for smaller states and UTs. These
ceilings are fixed by the Union Government by order and NOT by election commission.
Election commission however recommends the same to the government. The objective of
these provisions is to encourage candidates to declare their poll expenses truthfully in the
interest of greater transparency.

All Political parties sponsoring candidates for the elections are required to maintain day to
day accounts for all election campaign expenses and submit the accounts to the Commission
within 90 days of Lok Sabha Elections and 75 days of Assembly Elections.

6.STATE ELECTION COMMISSIONS:

Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth

Amendment) Act, 1992, whereunder, the constitution of State Election Commissions and
appointment of State Election Commissioners are contemplated to superintend, direct and
control the preparation of the electoral rolls for, and the conduct of elections to Panchayats
and Municipalities. Panchayats have been defined in Article 243(d) read with Article 243B
to mean institutions, by whatever name called, of self-Government at the village,
intermediate and district levels. Municipalities as defined in Article 243B(e) read with
Articles 243Q, mean (a) Nagar Panchayats, by whatever name called, for areas in transition
from rural areas to urban areas, (b) Municipal Councils for smaller areas and (c) Municipal
Corporations for larger urban areas.

Under Article 324 of the Constitution the Election Commission is concerned only with the
superintendence, direction and control of the preparation of the electoral rolls for and
conduct of all elections to Parliament and to the legislature of every State and of elections to
the offices of the President and the Vice-President under the Constitution. The Election
Commission of India is, thus, an authority distinctly separate from the Election Commission
of the States and Union Territories by virtue of its mandate and jurisdiction assigned under
the Constitution. It has no role in the preparation of the electoral rolls for or the conduct of
elections to the Panchayats and Municipalities.

7.ELECTION EXPENDITURE MONITORING SYSTEM :

The ECI has launched a robust Election Expenditure Monetary System mechanism to curb
the influence of money power in elections. It was first implemented in 2010 in Bihar and
subsequently taken to other states till recently in the General Elections. Some notable features
of this mechanism include:

 Separate bank account by each contesting candidate for incurring all poll expenditures
and incurring expenditure via cheques / DDs only.

 A complaint-monitoring cell in each district with 24X7 toll free number

 Flying Squads, Quick Response Teams, Static Surveillance Teams headed by

Executive Magistrates to track illegal cash transaction or any distribution liquor or
any items for bribing/ inducement of the voters.
 All airports in the State, major railway stations, hotels, farm houses, ‗hawala‘ agents,
financial brokers, cash couriers, pawn brokers and other suspicious agencies/persons
engaged in movement of cash are to be kept under close surveillance by the Income
Tax Department and necessary action to be taken as per the provisions of the Income
Tax Act.

 Monitoring of suspicious cash withdrawal from any bank account during election
process.

 Expenditure Observers are appointed for each district with senior officers from
Income Tax Department, Customs & Central Excise Department and other finance &
accounts services from outside the State to oversee the election expenditure by the
candidates during election.

 Assistant Expenditure Observers are appointed for each constituency, to assist the
Expenditure Observers.

 Shadow Observation Register is maintained in each constituency for each candidate to

record major expenses observed during the election.

 Video Surveillance Team is constituted with camera persons and Govt. officials in
each team to videograph major election campaign expenses.

 Accounting Team is constituted in each constituency to maintain Shadow Observation

Register and the folder of evidence.

 Media Certification and Media Expenditure Monitoring Committee (MCMC)

constituted to monitor both print and electronic media including cable network, social
media etc. for election advertisement and suspected Paid News.

 Campaign for ethical voting.

UNIT 3
ELECTORS AND ELECTORAL PRACTICES:

1.UNIVERSAL ADULT SUFFRAGE:

What does Universal Adult Suffrage mean?

The Article 326 of the Indian Constitution grants universal adult suffrage, according to
which, every adult citizen is entitled to cast his/her vote in all state elections unless that
citizen is ―convicted of certain criminal offences‖ or ―deemed unsound of mind.‖ As per this
concept, the right to vote is not restricted by caste, race, sex, religion or financial status.

Developments Leading to Adoption of Universal Adult Suffrage

During the pre-independence era, only 13 per cent of Indian citizens used to enjoy the right
to vote. The demand for universal adult suffrage had been gaining momentum few decades
prior to the independence. The Motilal Nehru report was among the first proponent of
―unlimited adult franchise and equal rights for women.‖
It was in 1928 when Dr B.R. Ambedkar appeared before the Simon Commission and
insisted on incorporating universal adult franchise in the Constitution of India. According to
him, elections were ―a weapon in the hands of the most oppressed sections of society‖ and
voting rights will give them the politico-legal equality. Ambedkar found a like-minded
colleague in Pt. Jawaharlal Nehru, who also subscribed to his liberal views.
Later, the Indian National Congress called for political equality at the 1931 Karachi session.
The party argued that it would be one of the crucial strides towards making the electoral
process more participatory and inclusive. There were doubts in the minds of our constitution
makers and the issue of adult franchise was debated in the Constituent Assembly by many
senior leaders before it abolished all the previous restrictions and provided for universal
adult suffrage.

Importance of Universal Adult Suffrage

The introduction of universal adult suffrage is considered one of the most important
decisions that changed India for the better. Granting voting rights to all is no mean
achievement for the founding fathers of Indian Constitution, especially Dr B.R. Ambedkar.
It provided the government with ―unchallengeable legitimacy against any military
intervention‖ or secessionist movements. Besides achieving gender equality by giving
women the right to vote, it eliminated untouchability and ensured equal opportunities for
backward class people as well.
The concept of universal adult suffrage along with free and fair voting are looked upon as
the ―guarantors of minority rights.‖ It also had a trickle-down impact on poverty alleviation.
By allowing voting rights to all citizens, the poor found an opportunity to choose the
political administrators and increase the scope of governance at a local level. The direct
outcome is prosperity at grassroots level and development of infrastructure.
Another significant transformation that has become evident over the years is the
representation of backward sections in Parliament. The composition of the members of
Parliament has changed to include individuals from those communities, who become the
voice of the oppressed.

2.SYSTEM OF VOTING:

Elections to the Lok Sabha are carried out using a first-past-the-post electoral system. The
country is split up into separate geographical areas, known as constituencies, and the
electors can cast one vote each for a candidate (although most candidates stand as
independents, most successful candidates stand as members of political parties), the winner
being the candidate who gets the maximum votes.

3.ELECTORAL RIGHT TO VOTE AND CONTEST:

Article 326- Adult Suffrage

Election contest is not an action in law but is purely a statutory proceeding unknown to
common law.

M. Karunanidhi v. H.V. Hande- AIR 1983 SC 558- Right to Vote or Right to stand as a
Candidate is a creature of the statute or a special law and is therefore subject to the
limitations imposed by that statute or special law.

Jyoti Basu v. Devi Ghosal- AIR 1982 SC 983- A Right to Elect, fundamental though it is to
democracy, is neither a fundamental nor a common law right, it is pure and simple statutory
right so is the right to be elected.

4.ELIGIBILITY TO CONTEST:

Any Indian citizen who is registered as a voter and is over 25 years of age is allowed to
contest elections to the Lok Sabha or State Legislative Assemblies. For the Rajya Sabha the
age limit is 30 years.

Every candidate has to make a deposit of Rs. 10,000/- for Lok Sabha election and 5,000/- for
Rajya Sabha or Vidhan Sabha elections, except for candidates from the Scheduled Castes and
Scheduled Tribes who pay half of these amounts. The deposit is returned if the candidate
receives more than one-sixth of the total number of valid votes polled in the constituency.
Nominations must be supported at least by one registered elector of the constituency, in the
case of a candidate sponsored by a registered Party and by ten registered electors from the
constituency in the case of other candidates. Returning Officers, appointed by the Election
Commission, are put in charge to receive nominations of candidates in each constituency, and
oversee the formalities of the election.

In a number of seats in the Lok Sabha and the Vidhan Sabha, the candidates can only be
from either one of the scheduled castes or scheduled tribes. The number of these reserved
seats is meant to be approximately in proportion to the number of people from scheduled
castes or scheduled tribes in each state. There are currently 79 seats reserved for the
scheduled castes and 41 reserved for the scheduled tribes in the Lok Sabha.
5.NOTIFICATION FOR ELECTION:

When the five-year limit is up, or the legislature has been dissolved and new elections have
been called, the Election Commission puts into effect the machinery for holding an election.
The constitution states that there can be no longer than 6 months between the last session of
the dissolved Lok Sabha and the recalling of the new House, so elections have to be
concluded before then.

In a country as huge and diverse as India, finding a period when elections can be held
throughout the country is not simple. The Election Commission, which decides the schedule
for elections, has to take account of the weather - during winter constituencies may be snow-
bound, and during the monsoon access to remote areas restricted -, the agricultural cycle - so
that the planting or harvesting of crops is not disrupted, exam schedules - as schools are used
as polling stations and teachers employed as election officials, and religious festivals and
public holidays. On top of this there are the logistical difficulties that go with holding an
election - sending out ballot boxes or EVMs, setting up polling booths, recruiting officials to
oversee the elections.

The Commission normally announces the schedule of elections in a major Press Conference
a few weeks before the formal process is set in motion. The Model Code of Conduct for
guidance of candidates and Political Parties immediately comes into effect after such
announcement. The formal process for the elections starts with the Notification or
Notifications calling upon the electorate to elect Members of a House. As soon as
Notifications are issued, Candidates can start filing their nominations in the constituencies
from where they wish to contest. These are scrutinised by the Returning Officer of the
constituency concerned after the last date for the same is over after about a week. The
validly nominated candidates can withdraw from the contest within two days from the date
of scrutiny. Contesting candidates get at least two weeks for political campaign before the
actual date of poll. On account of the vast magnitude of operations and the massive size of
the electorate, polling is held at least on three days for the national elections. A separate date
for counting is fixed and the results declared for each constituency by the concerned
Returning Officer. The Commission compiles the complete list of Members elected and
issues an appropriate Notification for the due Constitution of the House. With this, the
process of elections is complete and the President, in case of the Lok Sabha, and the
Governors of the concerned States, in case of State Legislatures, can then convene their
respective Houses to hold their sessions. The entire process takes between 5 to 8 weeks for
the national elections, 4 to 5 weeks for separate elections only for Legislative Assemblies.

6.CONSTITUENCIES AND DELIMITATION:

The country has been divided into 543 Parliamentary Constituencies, each of which returns
one MP to the Lok Sabha, the lower house of the Parliament. The size and shape of the
parliamentary constituencies are determined by an independent Delimitation Commission,
which aims to create constituencies which have roughly the same population, subject to
geographical considerations and the boundaries of the states and administrative areas.

How Constituency Boundaries are drawn up

Delimitation is the redrawing of the boundaries of parliamentary or assembly constituencies

to make sure that there are, as near as practicable, the same number of people in each
constituency. In India boundaries are meant to be examined after the ten-yearly census to
reflect changes in population, for which Parliament by law establishes an independent
Delimitation Commission, made up of the Chief Election Commissioner and two judges or
ex-judges from the Supreme Court or High Court. However, under a constitutional
amendment of 1976, delimitation was suspended until after the census of 2001, ostensibly so
that states‘ family-planning programs would not affect their political representation in the
Lok Sabha and Vidhan Sabhas. This has led to wide discrepancies in the size of
constituencies, with the largest having over 25,00,000 electors, and the smallest less than
50,000.Delimitation exercise, with 2001 census data released on 31st December 2003, is
now under process.

7.GERRY MEANDERINGS:

In the process of setting electoral districts, gerrymandering is a practice that attempts to

establish a political advantage for a particular party or group by manipulating district
boundaries to create partisan-advantaged districts.
Gerrymandering refers to the practice in which state legislatures draw congressional
districts in a particular way in order to increase the likelihood of certain political parties or
interest groups winning or losing elections.

Why is gerrymandering not illegal?

Racial gerrymandering originally referred to manipulating legislative district lines to under-

represent racial minorities. Tactics such as "packing" black voters into a given district or
"cracking" them to make black voters a minority in all districts can be illegal.

8.SCRUTINY OF NOMINATION PAPERS

A. (i) on the day fixed for the scrutiny of nomination papers, the returning officer shall, at the
appointed hours, take up the scrutiny of nomination papers. The candidate or the proposer or
seconder of each of the candidate may be present at the time and place when nomination
papers are scrutinized.

(ii) the returning officer shall examine the nomination papers and shall decide all objections
which may be made by any candidate or his proposer or seconder in respect of any
nomination and may, either on such objection, necessary, either accept or reject any
nomination.

PROVIDED that the nomination of a candidate shall not be rejected, namely, on the ground
of an incorrect description of his name or the name of his proposer or seconder or of any
other particulars relating to the candidate or his proposer or seconder, as entered in the list of
members referred to in paragraph 4(a) if the identity of the candidate, proposer or seconder,
as the case may be, is established beyond reasonable doubt.

(iii) The returning officer shall endorse on each nomination paper his decision accepting or
rejecting the same as the case may be, and if the nomination paper is rejected, he shall record
in writing a brief statement of his reasons for such rejection.
(iv) The returning officer shall not allow any adjournment of the proceedings except when
proceedings are interrupted or obstructed by riot or affray or by causes beyond his control.

(v) The list of valid nominations as decided by the returning officer shall be published on the
notice board of the society containing the names in the alphabetical order in English and
address of the candidate as given in the alphabetical order in English and a address of the
candidate as given in the nomination paper on the same day on which the scrutiny of the
nomination paper is completed.

B. Any candidate may withdraw his candidature by notice in writing signed by him and
delivered in person or by the person duly authorized by him at any time after the presentation
of the nomination papers but before the date and time specified in the election programme for
such withdrawal. A notice of withdrawal of candidate once given shall irrevocable.

9.WITHDRAWAL OF CANDIDATURE:

Conduct of Election Rules, 1961- The candidate must fill in the form and apply before the
last date for withdrawal of candidature [Section 30(c)].

Mohd. Younis Saleem v. Shiv Kumar Shasthri- AIR 1974 SC 1218- Whether gift offer or
promise to a candidate from withdrawing from a contest after a time prescribed for
withdrawal is over would come under the mischief of Section 123(A)(a) of RP Act, 1951.
Since purity of election is the most important object of the act, a narrow meaning to the word
withdraw to refer only to legal withdrawal would forfeit the purpose, so the court has to give
meaning to the word withdraw keeping in mind the object and scheme of the act with a view
to effectuate the intention of legislature to ensure purity of elections. Else, there would be an
assured where actual withdrawal after the time limit will be free from the vice of corrupt
practice. Whereas, that prior to it will not be so. Such an intention cannot be attributed to the
legislature from deletion of the words ―retire from contest‖. The word withdraw is
comprehensive enough to also connote ―retire from contest‖.
Ummed v. Raj Singh- Justice Bhagwati agreed that the provision should be construed so as to
the supress the mischief and advance the remedy but that does not mean a construction
should be adopted which ignores the plain natural meaning of the words or disregards the
context or colloquation in which they occurred. It was held that the scheme of the act should
be taken into consideration in order to find out the true meaning of the words. Since Section
37 prescribed for procedure of Withdrawal of candidature, the term must be interpreted in the
backdrop of Section 37. The only mode in which a candidate can withdraw his candidature
and cease to be a candidate is that set out in section 37 until the last date for withdrawal of
candidature, the candidate has locus paenitentiae and he can withdraw by giving a notice in
writing to that effect under Section 37. But once the date is passed, he becomes a contesting
candidate and he has no choice. The term ―withdraw‖ in Section123 has to be interpreted in
light of its meaning under previous Sections.

Notice of Withdrawal

1.1 Any candidate may withdraw his candidature by giving you a notice in Form 5 signed by
him and delivered before 3 O'clock in the afternoon of the last date fixed for such withdrawal.
Any withdrawal after that hour is invalid and has no legal effect. Every notice of withdrawal
must be delivered to you by (i) the candidate, or (ii) any of his proposer, or (iii) his election
agent. The said proposer or the election agent must, however, have been authorised in writing
by the candidate to deliver the notice of withdrawal on his behalf. If there is no such authority
or if the person so authorised by the candidate is neither his proposer nor his election agent,
the withdrawal is of no effect and must be ignored.

Under the amended law, nominations of candidates set up by registered un-recognised

political parties and independent candidates have to be subscribed by ten proposers. The
candidate may authorise any one of them to deliver his notice of withdrawal to you and it will
be valid and must be given effect to if it has been delivered to you in time.

1.2 The scheme of sections-30 and 33 of the Representation of the People Act, 1951, is such
that a public holiday should be ignored for election purposes. Accordingly, the notice of
withdrawal should neither be delivered to, nor be received by you, on a day which is a public
holiday, as defined in section 2 (1) (h) of the said Act.

1.3 The Commission is of the view that a candidate may give notice of withdrawal only after
the scrutiny of nominations is over; such notice can be given on the date of scrutiny after the
scrutiny is over or on the next day, if it is not a public holiday, or, on the second day after the
date of scrutiny in terms of section 37 and if the second day is a public holiday, then on the
next succeeding day which is not a public holiday.

1.4 The notice of withdrawal can be delivered before three O'clock in the afternoon of the last
date fixed for the withdrawal of candidatures. On the day of scrutiny of nominations and the
next day, if it is not a public holiday, such notices can be delivered during the normal
working hours of the RO's office, that is to say, even before 11.00 A.M. or after 3.00 P.M.

Valid withdrawal not to be cancelled

Once a candidate has validly withdrawn, he cannot be allowed to cancel such withdrawal
and to continue as a candidate [Section 37(2)].

10.DEATH OF CANDIDATE:

Section 52- Death of a candidate.

Manner of Voting- Voting by Ballot, Postal Ballot, Voting Machine- With fake name,
people used to cast multiple votes, sometimes electoral rolls are also faulty. Section 59
and Section 60.

Proxy Voting- It would mean allowing a voter to authorize some confident of his i.e. wife,
father, brother or friend to cast the vote on his behalf and in law, proxy would mean,
lawfully constituted agent authorized in writing to vote for on behalf of the voter.

11.ELECTION CAMPAIGN:

The campaign is the period when the political parties put forward their candidates and
arguments with which they hope to persuade people to vote for their candidates and parties.
Candidates are given a week to put forward their nominations. These are scrutinised by the
Returning Officers and if not found to be in order can be rejected after a summary hearing.
Validly nominated candidates can withdraw within two days after nominations have been
scrutinised. The official campaign lasts at least two weeks from the drawing up of the list of
nominated candidates, and officially ends 48 hours before polling closes.
During the election campaign the political parties and contesting candidates are expected to
abide by a Model Code of Conduct evolved by the Election Commission on the basis of a
consensus among political parties. The model Code lays down broad guidelines as to how the
political parties and candidates should conduct themselves during the election campaign. It is
intended to maintain the election campaign on healthy lines, avoid clashes and conflicts
between political parties or their supporters and to ensure peace and order during the
campaign period and thereafter, until the results are declared. The model code also prescribes
guidelines for the ruling party either at the Centre or in the State to ensure that a level field in
maintained and that no cause is given for any complaint that the ruling party has used its
official position for the purposes of its election campaign.

Once an election has been called, parties issue manifestos detailing the programmes they
wish to implement if elected to government, the strengths of their leaders, and the failures of
opposing parties and their leaders. Slogans are used to popularise and identify parties and
issues, and pamphlets and posters distributed to the electorate. Rallies and meetings where
the candidates try to persuade, cajole and enthuse supporters, and denigrate opponents, are
held throughout the constituencies. Personal appeals and promises of reform are made, with
candidates travelling the length and breadth of the constituency to try to influence as many
potential supporters as possible. Party symbols abound, printed on posters and placards.

Free Campaign time on state owned electronic media

By Election Commission, all recognised National and State parties have been allowed free
access to the state owned electronic media-AIR and Doordarshan- on an extensive scale for
their campaigns during elections. The total free time allocated extends over 122 hours on the
state owned Television and Radio channels. This is allocated equitably by combining a base
limit and additional time linked to poll performance of the party in recent election
12. MODEL CODE OF CONDUCT:

I. General Conduct

(1) No party or candidate shall include in any activity which may aggravate existing
differences or create mutual hatred or cause tension between different castes and
communities, religious or linguistic.
(2) Criticism of other political parties, when made, shall be confined to their policies
and programme, past record and work. Parties and Candidates shall refrain from
criticism of all aspects of private life, not connected with the public activities of the leaders
or workers of other parties. Criticism of other parties or their workers based on unverified
allegations or distortion shall be avoided.
(3) There shall be no appeal to caste or communal feelings for securing votes. Mosques,
Churches, Temples or other places of worship shall not be used as forum for election
propaganda.
(4) All parties and candidates shall avoid scrupulously all activities which are ―corrupt
practices‖ and offences under the election law, such as bribing of voters, intimidation of
voters, impersonation of voters, canvassing within 100 meters of polling stations, holding
public meetings during the period of 48 hours ending with the hour fixed for the close of
the poll, and the transport and conveyance of voters to and from polling station.
(5) The right of every individual for peaceful and undisturbed home-life shall be respected,
however much the political parties or candidates may resent his political opinions or
activities. Organizing demonstrations or picketing before the houses of individuals by way
of protesting against their opinions or activities shall not be resorted to under any
circumstances.
(6) No political party or candidate shall permit its or his followers to make use of any
individual‘s land, building, compound wall etc., without his permission for erecting flag-
staffs, suspending banners, pasting notices, writing slogans etc.
(7) Political parties and candidates shall ensure that their supporters do not create
obstructions in or break up meetings and processions organized by other parties. Workers or
sympathisers of one political party shall not create disturbances at public meetings
organized by another political party by putting questions orally or in writing or by
distributing leaflets of their own party. Processions shall not be taken out by oneparty along
places at which meetings are held by another party. Posters issued by one party shall not be
removed by workers of another party.

II. Meetings

(1) The party or candidate shall inform the local police authorities of the venue and time
any proposed meeting Well in time so as to enable the police to make necessary
arrangements for controlling traffic and maintaining peace and order.
(2) A Party or candidate shall ascertain in advance if there is any restrictive or prohibitory
order in force in the place proposed for the meeting if such orders exist, they shall be
followed strictly. If any exemption is required from such orders, it shall be applied for
and obtained well in time.
(3) If permission or license is to be obtained for the use of loudspeakers or any
other facility in connection with any proposed meeting, the party or candidate shall
apply to the authority concerned well in advance and obtain such permission or license.
(4) Organizers of a meeting shall invariably seek the assistance of the police on duty for
dealing with persons disturbing a meeting or otherwise attempting to create disorder.
Organizers themselves shall not take action against such persons.

III. Procession

(1) A Party or candidate organizing a procession shall decide before hand the time and
place of the starting of the procession, the route to be followed and the time and place at
which the procession will terminate. There shall ordinary be no deviation from the
programme.
(2) The organizers shall give advance intimation to the local police authorities of the
programme so as to enable the letter to make necessary arrangement.
(3) The organizers shall ascertain if any restrictive orders are in force in the localities
through which the procession has to pass, and shall comply with the restrictions
unless exempted specially by the competent authority. Any traffic regulations or
restrictions shall also be carefully adhered to.
(4) The organizers shall take steps in advance to arrange for passage of the procession so
that there is no block or hindrance to traffic. If the procession is very long, it shall be
organized in segments of suitable lengths, so that at convenient intervals, especially at
points where the procession has to pass road junctions, the passage of held up traffic could
be allowed by stages thus avoiding heavy traffic congestion.
(5) Processions shall be so regulated as to keep as much to the right of the road as possible
and the direction and advice of the police on duty shall be strictly complied with.
6) If two or more political parties or candidates propose to take processions over the same
route or parts thereof at about the same time, the organizers shall establish contact well in
advance and decide upon the measures to be taken to see that the processions do not clash or
cause hindrance to traffic. The assistance of the local police shall be availed of for arriving
at a satisfactory arrangement. For this purpose the parties shall contact the police at the
earliest opportunity.
(7) The political parties or candidates shall exercise control to the maximum extent
possible in the matter of processionists carrying articles which may be put to misuse by
undesirable elements especially in moments of excitement.
(8) The carrying of effigies purporting to represent member of other political parties
or their leaders, burning such effigies in public and such other forms
demonstration shall not be countenanced by any political party or candidate.

IV. Polling Day

All Political parties and candidates shall –

(i) co-operate with the officers on election duty to ensure peaceful and orderly polling and
complete freedom to the voters to exercise their franchise without being subjected to any
annoyance or obstruction.
(ii) supply to their authorized workers suitable badges or identity cards.
(iii) agree that the identity slip supplied by them to voters hall be on plain (white)
paper and shall not contain any symbol, name of the candidate or the name of the party;
(iv) refrain from serving or distributing liquor on polling day and during the forty eight
hours preceding it.
(v) not allow unnecessary crowd to be collected near the camps set up by the political
parties and candidates near the polling booths so as to avoid Confrontation and tension
among workers and sympathizers of the parties and the candidate.
(vi) ensure that the candidate‘s camps shall be simple .They shall not display any posters,
flags, symbols or any other propaganda material. No eatable shall be served or crowd
allowed at the camps and
(vii) co-operate with the authorities in complying with the restrictions to be imposed on the
plying of vehicles on the polling day and obtain permits for them which should be displayed
prominently on those vehicles.

V. Polling Booth

Excepting the voters, no one without a valid pass from the Election Commission shall enter
the polling booths.

VI. Observers

The Election Commission is appointing Observers. If the candidates or their agents

have any specific complaint or problem regarding the conduct of elections they may bring
the same to the notice of the Observer.

VII. Party in Power

The party in power whether at the Centre or in the State or States concerned, shall ensure
that no cause is given for any complaint that it has used its official position for the purposes
of its election campaign and in particular –
(i) (a) The Ministers shall not combine their official visit with el ectioneering work
and shall not also make use of official machinery or personnel during the electioneering
work.
(b) Government transport including official air-crafts, vehicles, machinery and personnel
shall not be used for furtherance of the interest of the party in power;
(ii) Public places such as maidens etc., for holding election meetings, and use of helipads for
air-flights in connection with elections shall not be monopolized by itself. Other parties and
candidates shall be allowed the use of such places and facilities on the same terms and
conditions on which they are used by the party in power;
(iii) Rest houses, dark bungalows or other Government accommodation shall not be
monopolized by the party in power or its candidates and such accommodation shall be
allowed to be used by other parties and candidates in a fair manner but no party or candidate
shall use or be allowed to use such accommodation (including premises appertaining
thereto) as a campaign office or for holding any public meeting for the purposes of
election propaganda;
(iv) Issue of advertisement at the cost of public exchequer in the newspapers and other
media and the misuse of official mass media during the election period for partisan
coverage of political news and publicity regarding achievements with a view to furthering
the prospects of the party in power shall be scrupulously avoided.
(v) Ministers and other authorities shall not sanction grants/payments out of discretionary
funds from the time elections are announced by the Commission; and
(vi) From the time elections are announced by Commission, Ministers and other authorities
shall not –
(a) announce any financial grants in any form or promises thereof; or
(b) (except civil servants) lay foundation stones etc. of projects or schemes of any kind;
or
(c) make any promise of construction of roads, provision of drinking water
facilities etc.; or
(d) make any ad-hoc appointments in Government, Public Undertakings etc. which
may have the effect of influencing the voters in favor of the party in power.

Note : The Commission shall announce the date of any election which shall be a date
ordinarily not more than three weeks prior to the date on which the notification is likely to
be issued in respect of such elections.

(vii) Ministers of Central or State Government shall not enter any polling station or place of
counting except in their capacity as a candidate or voter or authorized agent.
13.POLL:

Polling Days

Polling is normally held on a number of different days in different constituencies, to enable

the security forces and those monitoring the election to keep law and order and ensure that
voting during the election is fair.

Ballot Papers & Symbols

After nomination of candidates is complete, a list of competing candidates is prepared by the

Returning Officer, and ballot papers are printed. Ballot papers are printed with the names of
the candidates (in languages set by the Election Commission) and the symbols allotted to
each of the candidates. Candidates of recognised Parties are allotted their Party symbols.

14.ELECTRONIC VOTING MACHINE (EVM):

An Electronic Voting Machine consists of two Units – a Control Unit and a Balloting Unit –
joined by a five-meter cable. The Control Unit is with the Presiding Officer or a Polling
Officer and the Balloting Unit is placed inside the voting compartment. Instead of issuing a
ballot paper, the Polling Officer in-charge of the Control Unit will press the Ballot Button.
This will enable the voter to cast his vote by pressing the blue button on the Balloting Unit
against the candidate and symbol of his choice.

EVMs can record a maximum of 3840 votes. As normally the total number of electors in a
polling station will not exceed 1500, the capacity of EVMs is more than sufficient.

Advantages of EVM:

The most important advantage is that the printing of millions of ballot papers can be
dispensed with, as only one ballot paper is required for fixing on the Balloting Unit at each
polling station instead of one ballot paper for each individual elector. This results in huge
savings by way of cost of paper, printing, transportation, storage and distribution. Secondly,
counting is very quick and the result can be declared within 2 to 3 hours as compared to 30-
40 hours, on an average, under the conventional system. Thirdly, there are no invalid votes
under the system of voting under EVMs. The importance of this will be better appreciated, if
it is remembered that in every General Election, the number of invalid votes is more than the
winning margin between the winning candidate and the second candidate, in a number of
constituencies. To this extent, the choice of the electorate will be more correctly reflected
when EVMs are used.

Can booth – capturing be prevented by the use of EVMs?

By booth-capturing, if one means, taking away or damaging of ballot boxes or ballot papers,
this evil cannot be prevented by the use of EVMs as EVMs can also be forcibly taken away
or damaged by miscreants. But if one looks at booth capturing as a case of miscreants
intimidating the polling personnel and stamping the ballot papers on the symbol and
escaping in a matter of minutes, this can be prevented by the use of EVMs. The EVMs are
programmed in such a way that the machines will record only five votes in a minute. As
recording of votes has necessarily to be through Control Unit and Balloting Unit, whatever
be the number of miscreants they can record vote only at the rate of 5 per minute. In the case
of ballot papers, the miscreants can distribute all the 1000 odd ballot papers assigned to a
polling station, among themselves, stamp them, stuff them into the ballot boxes and run
away before the police reinforcements reach. In half- an –hour, the miscreants can record
only a maximum of 150 votes by which time, chances are the police reinforcement would
have arrived. Further, the presiding Officer or one of the Polling Officers can always press
the "close" button as soon as they see some intruders inside the polling station. It will not be
possible to record any vote when once the ‗close‘ button is pressed and this will frustrate the
efforts of the booth-capturers.

15.HIRING OF VEHICLES:

Sub-Section (5) of Section 123 of the Representation of People Act, 1951 prohibits hiring or
procuring of the vehicles or vessels for transportation of voters to or from the polling
stations because this exercise may cause influence on voters and thereby hamper free
exercise of their franchise.
16.RETURNING OFFICER:

The Election Commission of India nominates or designates an officer of the Government or

a local authority as the Returning Officer for each of the assembly and parliamentary
constituencies in consultation with the State Government/Union Territory Administration. In
addition, the Election Commission of India also appoints one or more Assistant Returning
Officers for each of the assembly and parliamentary constituencies to assist the Returning
Officer in the performance of his functions in connection with the conduct of elections.
The Returning Officer of a parliamentary or assembly constituency is responsible for the
conduct of elections in the parliamentary or assembly constituency concerned as per section
21 of the Representation of the People Act 1951.

Roll of returning officer in scrutiny- Returning Officer occupies a pivotal position in the
whole electoral process. And for every election, the election commission, in consultation
with the government designates an officer of government or of a local authority. Based on
his decisions, a nomination paper is to be accepted and rejected. It is the general duty of the
returning officer to do all such acts as may be necessary for effectuating the conduct of
elections in a manner provided by the RP Act, 1951.

17. PRESIDING OFFICER:

The Role of the Presiding Officer (PO)

The Presiding Officer is responsible for the efficient operation of the Polling Station to
which he/she is assigned, ensuring that it functions in an orderly manner at all times. The
relevant duties of the Presiding Officer which electors may observe while at the Polling
Station are as follows:

· Ensures that all signs and notices are in place – those before Polling Day and others of
Polling Day.

· Determines the six-digit number for the stamp (official mark) in the presence of Polling
Day Staff and Polling Agents.
· Ensures that the persons, other than voters (e.g. Certified Political Party Agents), attending
the Polling Station are authorized to enter and are in possession of Identity Cards issued by
GECOM.
· Determines when required, whether an elector is eligible to cast his or her vote.
· Administers voting by proxies

· Makes entries in the Poll Book if such are required.

· Assist differently abled electors to cast their votes.

· Knowledgeably and efficiently administers oaths/affirmations.

· Deals with Certificates of Employment.

· Ensures that all electors requiring assistance are treated in a dignified manner.

· Ensures that Polling Agents and observers are permitted to monitor the process without
interfering with electors or with the proceedings.

· Ensures the queues are moving smoothly and orderly.

· Ensures that all persons waiting to vote do so before the poll is declared closed, once they
are in the queue at 6:00pm.

The Role of the Assistant Presiding Officer (APO)

The Assistant Presiding Officer is really the second-in-charge of the Polling Station, and
assists the Presiding Officer with a number of the essential duties. In addition there are a
number of specific duties that the Assistant Presiding Officer must perform, and which can
be observed by electors entering a Polling Station. These duties are:

· Double-checking the National ID Card of all electors against the GECOM Registration
record.
· Entering on the counterfoil of the ballot paper, the serial number of the elector as it appears
on the Official List of Electors.

· Stamping the Official Mark (Six Digit Number) on the back of the ballot paper (Top and
Bottom).
· Using the specimen ballot paper, the APO enlightens (if necessary) the elector on the
procedure associated with marking the ballot paper, thusly therefore choosing the Political
Party of his or her choice.

· Demonstrating to and instructing the elector on how to fold the ballot paper after marking
vote.

· Delivering the ballot paper to the elector and directing him or her to the voting
compartment and the Ballot Clerk.

NB: The Presiding Officer assists with the above functions when he or she (PO) is not
attending to special cases.

In our next installment we will focus on the duties of the other three elections officials (Poll
Clerk, Ballot Clerk and the Information Clerk) that must be present on behalf of GECOM in
every polling station on Elections Day.

18. POLLING OFFICERS:

The polling agents play a very important part in the actual taking of poll, which is the most
vital part of the entire process of election. The task of Presiding Officer and Polling Officers
at the polling station will be made easy and smooth if the polling agents discharge their
duties within their own realm in a cooperative spirit. For this purpose, they should know
their functions clearly and carry them out intelligently under the law.

(a) to help the Presiding Officer to detect and prevent impersonation of voters by
challenging persons whose identity as real elector is doubtful,
(b) to help in having the voting machine properly secured and sealed according to the rules
before, during and after the close of poll, and

(c) to see that all election records relating to the poll are secured and sealed properly after
the close of poll as required by law.

(d)to see that the serial numbers of Control Unit and the Ballot Unit of the EVM being used
in the polling station are in conformity with the details provided by the Returning Officer.

Number of polling agents

Every contesting candidate is entitled to appoint one polling agent and two relief agents to
act as the polling agents at each polling station. Only one of them can, however, remain
present inside the polling station at a time. They can relieve each other from time to time.
Any relief agent can take the place of the polling agent whenever he goes out. Whichever of
them is inside the polling station is treated as polling agent of the candidate for the time
being and has the same rights and responsibilities as given to the polling agent by law.
However no polling agent shall he allowed to leave the polling station or allowed
substituting themselves by their relieving agents after 3.00 p.m.
.

19. ELECTORS' PHOTO IDENTITY CARDS (EPIC)

In an attempt to improve the accuracy of the electoral roll and prevent electoral fraud, the
Election Commission ordered the making of photo identity cards for all voters in the country
in Aug, 1993. To take advantage of latest technological innovations, the Commission issued
revised guidelines for EPIC Program in May 2000. More than 450 million Identity cards has
Been distributed till now.
20.NOTA

History of NOTA - how it came into being, whose idea was it?

The idea of a ―None of the above‘ ballot option originated in 1976 when the Isla Vista
Municipal Advisory Council passed a resolution to put forward this choice in the official
electoral ballot, in County of Santa Barbara, California, in the USA.
Walter Wilson & Matthew Landy Steen, then council ministers, presented a legal resolution
to make some changes in the ballot procedure for the elections. The ‗None of the above‘
(NOTA) option was introduced for the first time, in 1978, in a ballot by the State of Nevada.
In California, a total of $ 987,000 was spent in promoting this ballot option but it was
defeated by a margin of 64% to 36% in the March 2000 general election. This new ballot
option would have been declared as a new voting system for all elective offices of US State
& Federal governments, if voters would have passed it.

Who introduced NOTA?

In India, in 2009, the Election Commission of India asked the Supreme Court that to offer
the voter a ‗None of the above‘ option at the ballot as it would give voters the freedom of
not selecting any undeserving candidate. The Government was not in favour of such an idea.

―The People‘s Union for Civil Liberties‘‖ which is an NGO, filed a public interest litigation
statement to favour NOTA. Finally on 27th September 2013, the right to register a ‗None of
the above‘ vote in elections was applied by the Supreme Court of India, which then ordered
the Election Commission that all voting machines should be provided with a NOTA button
so as to give voters the option to choose ‗none of the above‘.

Need for introducing NOTA

In our country, it often happens that a voter does not support any of the candidates in the
election, but they have no choice but to select a candidate. According to the judges of the
Supreme Court of India, the introduction of ‗None of the above‘ i.e. NOTA option to voters
would lead to systemic change in polls and political parties will be forced to project clean
candidates. In a voting system, the voter should be allowed to indicate disapproval of all of
the candidates. The very purpose of introducing this option is to empower the voter to reject
all candidates if they do not like any and all the candidates listed in the EVM (electronic
voting machine). The political parties would be left with option other than to nominate clean
candidates on their behalf in the elections. Candidates with criminal or immoral
backgrounds would have no option but to abstain from contesting elections.

Positive Points of NOTA

Although there are lots of negative points about ‗None of the above‘ option in elections to
voters, the positive points also cannot be ignored. The very intention of the Supreme Court
of India was to force the political parties to project candidates with clean background as
their candidates. The candidates who win the election become part of the legislature,
governing the country. It was, therefore, felt mandatory that candidates with criminal or
immoral or unclean backgrounds are deterred from contesting the elections. If this option of
‗None of the above‘ is implemented with its true intent, the whole political scenario of the
country will drastically change from the present scenario.

Negative Points of NOTA

Some of the countries who initially introduced such option to the voters, later discontinued
or abolished the system. In countries where voting machines contain a NOTA button, there
are chances of it receiving a majority of the vote and hence ―winning‖ the election. In such a
case, Election Commission may opt any of these options a) keep the office vacant, b) fill
office by appointment, c) hold another election. The State of Nevada, in such a situation, has
a policy of no effect whatsoever and the next highest total wins.

21.DECLARATION OF RESULTS:

Q 1. Who is responsible for the counting of votes and declaration of result of

anelection?
Ans. The Returning Officer
According to Sec. 64 of the R. P. Act, 1951, votes are counted by or under the supervision /
direction of the Returning Officer of the Constituency. When the counting is completed, the
Returning officer declares the result as per provisions of Sec. 66 of R. P. Act, 1951.

Q 2. After the declaration of results in all constituencies, which authority will

constitute the new Lok Sabha – President or the Election Commission?

Ans. Election Commission of India (ECI)

According to Sec. 73 of the R. P. Act, 1951, after the results of all Parliamentary
constituencies are declared, the Election Commission will constitute the new Lok Sabha by
notifying in the official gazette, the names of the elected members.

22.VVPAT:

What is Voter-Verified Paper Audit Trail (VVPAT) ?

Bringing transparency in electoral process and preventing malpractices is one of the

formidable challenges that India has been trying to tackle for years. Even after the
transformation from ballot paper system to electronic voting machines, not much headway
could be made to rule out manipulation of poll results. As experts and individuals from the
political fraternity started raising concerns about the vulnerability of EVMs, the government
felt the need to further delve into the issue and introduce a more viable option.

About VVPAT

Voter-Verified Paper Audit Trail (VVPAT) is a method of providing feedback to voters. It‘s
completely an independent verification system. For those uninitiated, VVPAT is a printer-
like machine attached to every EVM that allows voters to verify that their vote has been cast
correctly. Once a voter presses button of his choice in the EVM, a printed paper appears
containing the name of the candidate and poll symbol so that he can verify it. After the voter
views the receipt it goes inside a container linked to the EVM, which can be accessed only
by the polling officers. This latest system is one step further towards prevention of electoral
fraud.
History behind VVPAT System in India

During an All Party Meeting in 2010, political parties floated the suggestion of
incorporating VVPAT along with the EVMs. Based on the suggestion, an Expert Committee
was called into action to examine the possibility of a paper trail. The election commission
also asked Bharat Electronics Limited (BEL) and Electronics Corporation of India Limited
(ECIL) to create a prototype of VVPAT system.
As per the Technical Experts Committee‘s recommendation, the system was field tested
across five states in July 2011. Years later, the Supreme Court directed the Election
Commission to introduce the VVPAT system during the 2014 general elections to ensure
free and fair polls. BJP leader Subramanian Swamy has been advocating the use of such a
device and it‘s on the basis of his plea that the court ordered the commission to ensure that
EVMs have a paper trail system. Moreover, there had been a spate of protests over the
vulnerability of EVMs.
The decision to introduce VVPAT is also governed by the objective of ruling out any
possibility of malpractices and satisfying the voters.

Introduction of VVPAT System in India

The Election Commission has been planning to introduce VVPAT system since 2011 when
it started exploring the possibility of conducting first field trials. Although the system was
first experimented during the Nagaland by-elections in 2013, Mizoram was the first state to
introduce VVPAT on a large scale. It was used in 10 assembly constituencies of Aizawl
district. On a national level, the system was introduced in 8 of 543 parliamentary
constituencies during the 2014 general elections. It was used in 516 polling stations across
eight states.

23. SVEEP:

Systematic Voter‘s Education and Electoral Participation (SVEEP) was launched by Election
Commission of India to inform, educate, motivate and facilitate voters and in turn make
Indian democracy more participative and meaningful. In SVEEP, every aspect of the election
process is simulated to ensure enhanced voters‘ participation in the polling. This programme
has been successful in increasing voter registration and high voter turnout with greater
participation from youth and women. This programme was started in 2014 from Bihar. The
Election Commission has created a SVEEP wing to plant and implement the interventions.
For successful implementation, ECI has collaborated with:
 Government, public, civil society groups, media and NGOs.
 Educational institutions, youth organizations such as NYKS, NSS, NCC etc.

Various Components of SVEEP

Voters‘ Behaviour Survey

Formulation of State and District level SVEEP plans
Personnel for State level
State and District level core groups
Collaboration with Government departments
Collaboration with CSOs, Media and organisations
National Voters Day
Identification of National and State Icons
In 2011, Election Commission of India launched the National Voters Day to be celebrated on
25 January every year as a part of the SVEEP Programme.

24. NRI VOTING OPTIONS:

India has large number of its citizens living abroad temporarily or permanently on account of
education, employment and other related reasons. These citizens were not able to participate
in election process i.e. registration and voting due to the then prevailing law which required
that only a citizen ordinarily resident within the territorial limits of a constituency in the
country is eligible to be registered as voter in that constituency. Consequently, a huge
population of citizens of India living abroad also known as non-resident Indian (NRIs)
were not able to enrol themselves as voters in their home constituencies and were not able to
exercise their franchise.
Following demands from various sections of NRIs, the provisions of the Representation of
the People Act, 1950, that provide, among others, the procedure for preparation and revision
of electoral rolls for parliamentary and assembly constituencies was amended by ―The
Representation of the People (Amendment) Act, 2010 (36 of 2010)‖ w.e.f. 10.02.2011 to
insert a new Section 20A to make special provisions for citizens of India residing outside
India to get enrolled as an elector in the electoral roll. By the above amendment, it was
provided that every citizen of India who has not acquired citizenship of any other country and
is otherwise eligible to be registered as a voter and who is absenting from his place of
ordinary residence in India owing to his employment, education or otherwise is eligible to be
registered as a voter in the constituency in which his place of residence in India as mentioned
in his passport is located. The provisions of the Registration of Electors Rules, 1960 were
also amended accordingly and a new Form 6A was inserted for making application for such
enrolment by NRIs (now described in these Rules as ‗overseas electors‘). A copy each of the
Representation of the People (Amendment) Act, 2010 and Registration of Electors
(Amendment) Rules, 2011 is annexed hereto as Annexures- 1 & 2.

Current Procedure for enrolment for overseas electors

For enrolment, Non Resident Indian (NRI) has to file an application for the purpose in
prescribed Form 6A of Registration of Electors Rules, 1960 before the Electoral
Registration Officer/Assistant Electoral Registration Officer of the Assembly constituency
within which the place of ordinary residence of the applicant in India as given in his/her
passport falls. The application accompanied by duly self-attested photo copy of the
relevant pages of the passport containing the photograph and all other particulars of the
applicant and the page containing the valid visa endorsement along with one recent passport
size coloured photograph with a light background (preferably white) showing the full
face of the applicant can be filed either in person before the concerned Electoral Registration
Officer/ Assistant Electoral Registration Officer in India or sent by post addressed to him or
can be filed online on website of Chief Electoral Officer of the concerned State or website of
Election Commission of India. While filing Form 6A on line, the copy of the passport and
copies of other necessary documents like visa are also required to be uploaded.

Existing Provisions for voting by overseas electors

In the absence of any other enabling provisions for voting, an overseas elector registered in
the electoral roll can vote in an election in the Constituency, in person, at the polling station
in which he is registered as an overseas elector. The guidelines for registration and voting
by NRIs were issued by the Election Commission vide letter No. 3/1/2010/SDR dated 14th
February, 2011 to the Chief Electoral Officers of all States/Union Territories and letter No.
3/1/2010/SDR dated 14th February, 2011 addressed to the Foreign Secretary. Copies of
these letters are annexed as Annexure -3 (collectively). As mentioned above, India has very
large diaspora in the world. According to the Ministry of Indian Overseas Affair
Government of India, the population of NRIs is little over 10 million. The distribution of
NRIs over various countries can be perused at Annexure-4

25. ELECTORAL MANIFESTO GUIDELINESS:

1. The Supreme Court in its judgment dated 5th July 2013 in SLP(C) No. 21455 of 2008
(S. Subramaniam Balaji Vs Govt. of Tamil Nadu and Others) has directed the
Election Commission to frame guidelines with regard to the contents of election
manifestos in consultation with all the recognized political parties. The guiding
principles which will lead to framing of such guidelines are quoted below from the
judgment:-
(i) ―Although, the law is obvious that the promises in the election manifesto cannot be
construed as ‗corrupt practice‘ under Section 123 of RP Act, the reality cannot be ruled out
that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the
root of free and fair elections to a large degree‖.
(ii) ―The Election Commission, in order to ensure level playing field between the
contesting parties and candidates in elections and also in order to see that the purity of
the election process does not get vitiated, as in past been issuing instructions under
the Model Code of Conduct. The fountainhead of the powers under which the
Commission issues these orders is Article 324 of the Constitution which mandates the
Commission to hold free and fair elections.‖
(iii) ―We are mindful of the fact that generally political parties release their election
manifesto before the announcement of election date, in that scenario, strictly
speaking, the Election Commission will not have the authority to regulate any act
which is done before the announcement of the date. Nevertheless, an exception can be
made in this regard as the purpose of election manifesto is directly associated with the
election process‖.
2. Upon receiving the above directions of the Hon‘ble Supreme Court, the Election
Commission held a meeting with the recognized National and State Political Parties
for consultation with them in the matter and took note of their conflicting views in the
matter. During consultations, while some political parties supported the issuance of
such guidelines, others were of the view that it is their right and duty towards voters to make
such offers and promises in manifestos in a healthy democratic polity. While the
Commission agrees in principle with the point of view that framing of manifestos is the
right of the political parties, it cannot overlook the undesirable impact of some of the
promises and offers on the conduct of free and fair elections and maintaining level playing
field for all political parties and candidates.
3. The Constitution under Article 324 mandates the Election Commission, to conduct
elections inter alia to the Parliament and the State Legislatures. Having due regard to the
above directions of the Supreme Court and after consultation with the Political
Parties, the Commission, in the interest of free and fair elections , hereby directs that
Political Parties and Candidates while releasing election manifestos for any election to the
Parliament or State Legislatures, shall adhere to the following guidelines :-
(i) The election manifesto shall not contain anything repugnant to the ideals and principles
enshrined in the Constitution and further that it shall be consistent with the letter and spirit
of other provisions of Model Code of Conduct.
(ii) The Directive Principles of State Policy enshrined in the Constitution enjoin upon the
State to frame various welfare measures for the citizens and therefore there can be no
objection to the promise of such welfare measures in election manifestos. However, political
parties should avoid making those promises which are likely to vitiate the purity of the
election process or exert undue influence on the voters in exercising their franchise.
(iii) In the interest of transparency, level playing field and credibility of promises, it is
expected that manifestos also reflect the rationale for the promises and broadly indicate the
ways and means to meet the financial requirements for it. Trust of voters should be sought
only on those promises which are possible to be fulfilled.

26.FREEBIES:

In India, the culture of promising freebies in election manifesto has been spreading
extensively. The ethicality and legality of such promises has been the subject of debate for a
while now. This issue was brought to the forefront when the issue was tackled by the
Supreme Court.

S.Subramaniam Balaji v. Government of Tamil Nadu

In the above case, the Court delved into the legality of promising freebies in election
manifestos. The Court opined that freebies shook the ‗root of free and fair elections to a large
degree.‘ However, the distribution of colour TVs, laptops, mixer-grinders etc. by the
government in accordance with the laws currently prevalent in the country cannot be ruled as
being against ‗public purpose‘. The Supreme Court ruled that promises made in an election
manifesto cannot be construed as a ‗corrupt practice‘ under section 123 of the Representation
of the People Act, 1951. And since no legislation governs election manifestos, it directed the
EC to frame appropriate guidelines.

Arguments furthered by political parties

Distribution of freebies in any form is not prohibited by any law in force in India. The Courts
have already held that handing out of freebies is not a corrupt practice. In fact, since the goal
of our constitution-makers was to build a welfare state, it is the responsibility of political
parties to further that cause. Generally, political parties, especially the national parties,
release their election manifestos before the Election Commission announces the date of
elections. The Election Commission‘s guidelines kick in only after the dates have been
announced, and in this instance the Election Commission will have no authority to monitor
the promises made in the Election Manifesto. When political parties promise certain freebies,
the intention is not for these promises to act as bribes or as a means of exercising undue
influence on voters. It is just a statement to the people highlighting how if brought to power,
that party will serve its voters. Thus, framing of manifestos is the right of political parties,
and must not be interfered with.

Arguments furthered by the Election Commission

Article 324 of the Constitution gives the Election Commission powers to issue any orders
that may be required to enable it to hold free and fair elections. Hence, there is no limitation
on its power to monitor political parties‘ activities. Also, the Supreme Court specifically
directed the Election Commission to frame guidelines with regard to freebies, hence, there is
an underlying assumption that the EC does have the authority to monitor promises made in
manifestos. An exception favouring the EC is warranted in the specific instance of election
manifestos because they are associated with the election process, and have no value on a
standalone basis. Also, it is the EC‘s responsibility to ensure a level playing field for all
parties and candidates, and also ensure that the voters are not taken for a ride. Hence, it is the
EC‘s responsibility to look into election manifestos.

Model Code of Conduct for the Guidance of Political Parties and Candidates

The Election Commission in Chapter VIII of its Model Code of Conduct titled ‗Guidelines on
Election Manifestos‘, has enumerated the rules that political parties must follow while
making poll-time promises in their election manifestos. The guidelines are as follows:- The
Election Manifesto shall not contain any promises that go against the ideals and principles
enshrined in the Constitution India was envisioned as a welfare state under the Directive
Principles of State Policy in the Constitution. Therefore, there can be no bar on the state
adopting welfare measures. But, political parties must refrain from making promises that
undermine the purity of the election process or aim to exert undue influence on the voters
There must be transparency w.r.t to the promises and how the parties aim to implement their
promises. The promises must also be credible. Wherever freebies are offered, parties must
broadly state how they plan to gather the funds and finances to fulfil such promises.

Alternatives to freebies

Setting aside the issue of the Election Commission‘s right to regulate manifestos, the
rationality behind giving freebies itself can be questioned. In many instances, freebies offer
only temporary solutions to the larger problem, instead of looking for a permanent solution to
resolve the problem once and for all. For instance, in the Delhi Assembly Elections, almost
all major parties have promised reduction of power bills. However, in light of increasing
costs of inputs that are used to generate power and paucity of supply, the government will
have to heavily subsidize the distribution companies. In the Budget for Delhi presented in
July 2014, there was already a provision of Rs. 260 crores to cover the cost of subsidizing
households. This figure is set to increase substantially once the new government is in place in
Delhi. Therefore, this plan of subsiding electricity will not work in the long-term. However, if
instead of promising such freebies, the parties aimed to promote power generation, and
increase the supply of electricity, the prices will automatically reduce with no requirement of
continuous subsidising. Similarly, there are multiple election promises such as free Wi-fi
which espouse an excellent idea, but fail to state where the financial resources for providing
such facilities will be procured from, or paint even a broad picture as to how the idea will be
implemented. And this occurs despite the Election Commission‘s guidelines being in place.
Hence, it would be more beneficial for parties to offer people permanent solutions to their
problem in the election manifestos instead of a slew of seemingly advantageous, but
temporary stop-gap measures.

27. FREEDOM OF EXPRESSION:

Every citizen of India has the personal liberty and freedom to exercise his/her fundamental
rights, as enshrined in the Constitution. Article 19 is one of the key Articles that guarantee
freedom of speech and expression. Some of the landmark judgments in the history of India
have been taken as per the provisions mentioned in Article 19.

Concept and Purpose of Article 19

The primary purpose of Article 19 is to protect certain rights regarding freedom of speech.
According to this Article, every citizen has the right to freedom of speech and expression;
assemble peacefully (without arms); form associations or unions; move freely throughout the
country; reside and settle in any part of India; and practise any profession, or carry on any
occupation.
The Article 19 explicitly states that the right to freedom of opinion and expression also
includes the freedom to hold opinions without interference and ―to seek, receive and impart
information and ideas through any media and regardless of frontiers.‖ Article 19 (5) of the
Constitution ―purportedly empowers‖ the states to enact legislation of their own for
protecting indigenous people.
In the interests of the sovereignty, integrity, and security of India, the states can enact any law
that imposes ―reasonable restrictions‖ on the exercise of the rights mentioned in Article 19.
Moreover, the Defamation clause under this Article prevents any citizen from making any
statement that injures the reputation of another. It is to be noted that the privileges under this
article remain suspended during the proclamation of emergency.
Benefits of Article 19

Although the Constitution of India does not specifically mention the freedom of press, it is
implicitly defined under the Article 19 (1a). It has been included as part of freedom of speech
and expression. Therefore, the press is also subject to restrictions that are provided under the
Article 19 (2).
In fact, the Right to Information (RTI) emerges as a fundamental right under this Article as
the prerequisite for enjoying the freedom of speech and expression is access to knowledge
and information. Therefore, RTI becomes a constitutional right and an important aspect of the
right to free speech and expression. Access to information also helps the citizens perform
their fundamental duties mentioned in Article 51A.

Amendments to Article 19

First amendment to Article 19 was made on 18 June 1951 when the Nehru government
introduced clauses against ―abuse of freedom of speech and expression‖. The clauses 2, 3 and
4 of Article 19 were amended in 1963 to enable the states to make laws and impose
restrictions on the exercise of the rights to preserve the sovereignty and integrity of India.
Immediately after the revocation of emergency in 1978, the 44th amendment was passed
wherein the Article 19 was amended for the third time. It annulled the right to acquire, hold
and dispose of property. The latest amendment to Article 19 happened in 2012. Under the
97th amendment to the Indian Constitution, the right to form cooperative societies was
included as a fundamental right under Article 19 (1c). The objective of the amendment was to
―encourage economic activities of cooperatives which in turn help the progress of rural
India.‖

Violation of Article 19

Recently, there have been instances of individuals being arrested under section 66A of the
Information Technology (IT) Act for posting ‗objectionable comments and caricatures‘ of
political figures on social media. This has led to a furore among the citizens of the country
who have claimed that Section 66A curbs freedom of speech and expression and violates
Articles 14, 19 and 21 of the Constitution.
Another form of violation of Article 19 that‘s rampant in India is the hate speeches that we
often get to hear from the political leaders. These hate speeches come with malicious
intention of ―outraging the religious feelings‖ and hence they incite communal violence and
endanger public tranquility, which is against the principle of Article 19.

28. RIGHT TO KNOW

Right to Know is an inherent attribute of every person. Right to know differs only in one
sense with right to information. Right to know is a natural right and right to information is a
provision given by government to its people. Natural rights do not have any value legally
until they are legally considered. Hence right to know as such implied in the freedom of
speech and expression which is a legally considered right must have to be given a special
value. Right to information as such will bring transparency of the government activities and
allow the people to find remedies for those things by which they suffered.

Article 21 enshrine ‗right to life and a person liberty‘ are compendious term which include
within themselves variety of right and attributes. Some of them are also found in article 19
and thus have two sources at the same time. In R.P Ltd v Indian express news paper the SC
reads right to know in article 21. The SC held that right to know is a necessary ingredient of
participatory democracy. In view of translational development when distance are shrinking
international communities are coming together for cooperation in various sphere and they are
moving toward the global preparative in various field including human right ,the expression
liberty must receive and expanded meaning . The Supreme Court is limited mere absence of
bodily restrain. It is wide enough to expand full range of right to hold a particular opinion and
right to sustain and nurture that opinion Article 21 confer on all person a right to know which
include right o receive information. The ambit and scope of article 21 is much wider as
compared to article 19(1)(a).

Thus the court are required expand it scope by the way of judicial activism. In PUCLv UOI
the supreme court observed that fundamental right themselves have no fixed content, most of
them are empty vessel into which each generation must pour its content in the light of its
experience .The attempt of the court should be to expand the reach and ambit of the
fundamental right by the process of judicial interpretation. There cannot be any
discrimination between fundamental right mention in chapter III of the constitution and the
declaration of such right on the basis of judgment render by supreme court.

Over past two decades, right to know laws have become one of the most innovative and
effective means for protecting the environment and public health. These laws, also known as
information disclosure statute, serve number of board and important societal interests. Right
to know laws helps to improve the efficient functioning of the market. Armed with better
information, consumer can make informed decision, and press for safer products. Better
informed worker can negotiate for less toxic working conditions, or demand wages premiums
for hazardous jobs. Investor in securities market can act more knowledgeably; indeed, studies
shows that stock prices significantly to the release of environmental information; upward
when information reveals a firm‘s superior performance; downward when poor performance
is revealed.

Right to know laws also serve fundamental liberty and autonomy interest. They provide
individuals with knowledge of the risk involved in their choice and allow them to decide
whether or not encounter these risks.

Right to know laws also promote a democratic decision making and the power of ordinary
citizens. Equipped with better information, citizens can participate on a more equal footing it
regulated entities permitting, land use and other political decisions. Local resident and
member of the public can exert pressure on firm to reduce risky activities or eliminate
unnecessary toxic exposures. Right to know laws also can improve health and safety, by
facilitating emergency planning, avoiding accidents, and helping the government determine
area In need of additional regulation. They also provide strong incentive for firm to undertake
self-regulation and reduce risky activities; when companies face a choice between, say ,
disclosing harmful substances in their product and reformulating the product to eliminating
the harmful substances, often they chose to eliminate the substances.
Making People Aware of Their Right To Know

The Right to Information Act, 2005 got the assent of the President of India on 15.6.2005 and
was published in The Gazette of India on 21.6.2005. It applies to whole of the country except
the State of J&K w.e.f 15th June, 2005. The West Bengal Right to Information Rules, 2006
were framed by the Administrative Reforms Cell of Personnel and Administrative Reforms
Department of Government of West Bengal and published in the Kolkata Gazette
Extraordinary on 29.3.2006.
The RTI Act, 2005 is the culmination of responses generated at different corners of the
country including the Government at the Centre, to people's demand for right to know
initiated by Mazdur Kisan Shakti Sangathan in 1990 in a sleepy village named Devdungri of
Rajasmand district of central Rajasthan. From 1997 onwards in several landmark judgments
Supreme Court of India and High Courts of different States observed that Articles 19(1) and
21 of Constitution of India, i.e., right to freedom of speech and expression and right to life
and liberty include right to information. Right to live loses much of its meaning if a citizen's
right to information is denied. In the preamble to the Act this has been widely acknowledged
as a necessity by way of commitment for creation of an informed citizenry, to contain
corruption and enhance accountability and transparency in the working of every public
authority.

Right to privacy v Right to know

The conflict between right to know and the privacy by imaging relationship and situation
pertinent to both concluded that the right to know and right to privacy are two of the most
ambiguous legal area today facing government the court, the public and individuals. The
welfare of the society is the primary duty of every civilized state. In Mr X v Hospital Z the
supreme court held that it was open to hospital authorities or the doctor concerned to revel
such information to the person related girl whom he intended to marry and she had right to
know about the HIV status of the appellant. A three judge bench of the supreme court held
that the disclosure of HIV positive status justified as a girl has right to know , there was no
need to for this court to go further and declare in general as to what right and obligation arise
in such context as to right to privacy.

An encroachment upon one's privacy is only shielded if the offender is the state and not a
private entity. If the offender is a private individual then there is no effective remedy except
in tort where one can claim damages for intruding in his privacy and no more. In R.Rajagopal
v State of TN the Supreme Court held that the right to privacy is a right to be let alone. None
can publish anything concerning the above matters without his consent, whether truthful or
otherwise and whether laudatory or critical. If he does so, he would be violating the right to
privacy of the person concerned and would be liable in an action for damages.
The right to privacy is not however, absolute; reasonable restriction can be placed thereon in
public interest under article 19(5) MATHEW, J.., observed in Govind case.

Conclusion:

Every citizen has a right to impart and receive information as part or his right to know. The
state is not only under the obligation to respect this right of the citizen but equally under an
obligation to ensure condition under which this right can be meaningful and effectively
enjoyed by one and all. Right to know is the basic indivisible from a democratic polity. This
right include right to acquire information and it disseminate it. Right to information is
necessary for self expression, which is an important means of free conscience and self -
fulfillment. It enables people to contribute on social and moral. issue .it is the best way to find
a truest model of anything, since it is an only through it that widest possible of ideas can be
circulated .the right can be only limited by reasonable restriction under a law for the purpose
mention in article 19(2)of our constitution. Despite all these shortcomings, legislation
guaranteeing the right to information is a major step towards ensuring a participatory
developmental process in the country. For the law to be truly effective, it will need the active
participation of the community at large, including non-government organizations and the
press, who will need to simplify and disseminate the possibilities under the new law to
citizens.

29.MEDIA COVERAGE

In order to bring as much transparency as possible to the electoral process, the media are
encouraged and provided with facilities to cover the election, although subject to maintaining
the secrecy of the vote. Media persons are given special passes to enter polling stations to
cover the poll process and the counting halls during the actual counting of votes.
30.EXIT POLLS:

An election exit poll is a poll of voters taken immediately after they have exited the polling
stations. Unlike an opinion poll, which asks for whom the voter plans to vote, or some similar
formulation, an exit poll asks for whom the voter actually voted. A similar poll conducted
before actual voters have voted is called an entrance poll. Pollsters – usually private
companies working for newspapers or broadcasters – conduct exit polls to gain an early
indication as to how an election has turned out, as in many elections the actual result may
take hours or even days to count.

When properly conducted, exit polls should predict election results with a high degree of
reliability. Unlike telephone opinion polls that ask people which candidate they intend to vote
for several days before the election, exit polls are surveys of voters conducted after they have
cast their votes at their polling places. In other words, rather than a prediction of a
hypothetical future action, they constitute a record of an action that was just completed.
Around the world, exit polls have been used to verify the integrity of elections.
UNIT 4
ELECTORAL DISPUTES:

1.ANTI – DEFECTION LAW

The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act. It
was included in the year of 1985 by 52nd amendment.
-defection.

Disqualification under anti-defection law

According to the 10th Schedule of the Constitution, a member can be disqualified in two
circumstances.

First, if he/she ―voluntarily gives up membership of a party‖ (paragraph 2(1)(a)). Second, a

member also incurs disqualification when he/she votes (or abstains from voting) contrary to
the directive issued by the party (paragraph 2(1)(b)).

In the 1994 Ravi Naik vs. Union of India case, the Supreme Court (SC) said: ―Even in the
absence of a formal resignation from membership, an inference can be drawn from the
conduct of a member that he has voluntarily given up his membership of the political party to
which he belongs.‖

Expulsion under anti-defection law

Under the anti-defection law, even an expelled legislator is required to follow the whip issued
by the party on whose ticket he was elected to the House and vote for his/her original party
during a floor test.

In G Viswanathan vs Hono‘ble Speaker, Tamil Nadu State Assembly, the Supreme Court
ruled in 1996 that an expelled member was bound by the party‘s whip even after expulsion,
and failure to adhere to it would result in his/her disqualification from the House.

―Paragraph 2(1) read with the explanation clearly points out that an elected member shall
continue to belong to that political party by which he was set up as a candidate for election as
such member. This is so notwithstanding that he was thrown out or expelled from that party,‖
the SC ruled.

However, the top court provided relief to Samajwadi Party leaders Amar Singh and Jaya
Prada on November 15, 2010, declaring that they could not be disqualified from Parliament
under the anti-defection law even if they defied the whip of their former party.

The matter was referred to a larger bench to resolve contradictions on the important
constitutional issue and still remains pending before the Supreme Court.

Split and merger under anti-defection law

According to the Tenth Schedule, it requires at least two-third members of a legislature party
to form a new political group, or ‗merge‘ with another political party without getting
disqualified under the anti-defection law.

Paragraph 3 of the Tenth Schedule originally recognised a ‗split‘ if at least one-third

members of the legislature party decided to form or join another political party.

However, this provision was done away with by the 91st amendment to the Constitution in
2003. The amendment, which came into force in January 2004, does not recognise a ‗split‘ in
a legislature party.

Instead, it recognises a ‗merger‘ that requires at least two-third members of a legislature party
to join another political formation or form a new one without inviting the wrath of the anti-
defection law.

Speaker‘s decision subject to judicial review

Paragraph 6 of the Tenth Schedule clearly said that the Speaker‘s or the Chairperson‘s
decision on questions of disqualification on ground of defection shall be final as all such
proceedings shall be deemed to be proceedings in Parliament within the meaning of article
122 or, as the case may be, proceedings in the Legislature of a State within the meaning of
article 212.
Further, Paragraph 7 said, ―Notwithstanding anything in this Constitution, no court shall have
any jurisdiction in respect of any matter connected with the disqualification of a member of a
House under this Schedule.‖

While upholding the Constitutional validity of the Tenth Schedule, a Constitution Bench of
the Supreme Court in Kihoto Hollohan vs Zachillhu and Others (1991) declared paragraph 7
unconstitutional. It also said the Speaker‘s decision was subject to judicial review as he acted
as a tribunal while deciding cases under the anti-defection law.

Reforms to anti-defection law: 91st amendment

The issue of mass defection because of the 1/3rd rule was remedied through the 91st
amendment which increased the bar from one third to two third. Thus at least two-thirds of
the members of a party have to be in favour of a ‗merger‘ for it to possess validity in the eyes
of the law.

What is not defection?

 A split in a political party won‘t be considered a defection if a complete political party

merges with another political party.
 If a new political party is created by the elected members of one party
 If he or she or alternative members of the party haven‘t accepted the merger between
the two parties and opted to perform as a separate group from the time of such a
merger.

Does anti-defection law curtail the right of free speech of legislators?

This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992
(Kihoto Hollohan vs Zachilhu and others). It held that the law does not violate any rights or
freedoms, or the basic structure of parliamentary democracy.

Reforms:

-defection law should be applied only to confidence and no-confidence motions

(Dinesh Goswami Committee on electoral reforms, 1990) or only when the government is in
danger (Law Commission (170th report, 1999).
 the decision should be made
by the president or the governor on the advice of the Election Commission. This would make
the process similar to the disqualification procedure as given in Representation of Peoples
Act (RPA).

2.ELECTION PETITION:

1. What is an election petition?

An Election petition is a procedure for inquiring into the validity of the election results of
Parliamentary or local government elections. In other words, it is a means under law to
challenge the election of a candidate in a Parliamentary, Assembly or local election.

2. Where can we file an election petition?

Election petitions are filed in the High Court of the particular state in which the election
was conducted. Therefore, only the High Courts have the original jurisdiction on deciding
on election petitions. Such jurisdiction shall be exercised ordinarily by the Single Judge
of the High Court and Chief Justice shall from time to time assign one or more Judges for
that purpose.

3. Who can file an election petition?

An election petition can be filed by any candidate, or an elector1 relating to the election
personally, to the authorized officer of the High Court

4. What is the limitation period of an election petition?

An election petition calling in question an election shall be filed within the time period of
forty-five days from the date of declaration of results.
5. What is the cost for filing an Election Petition?

The petitioner shall have to deposit a sum of Rs. 2000/= in accordance with rules of the
concerned High Court. However, the fees may vary according to the individual rules of a
particular High Court.

6. What are the contents of an election petition?

An election petition should consist of –

a) A concise statement of the material facts on which the petitioner relies

b) Full particulars of any corrupt practice that the petitioner alleges, including the names
of the parties alleged to have committed such corrupt practice and date and place of the
commission of each such practice in the form of an affidavit.
c) Any schedule or annexure to the petition shall be signed by the petitioner and
verified.
d) The petition shall also be accompanied by an affidavit in the prescribed form in
support of the allegation of such corrupt practice

7. What relief can be claimed by the petitioner in an election petition?

A petitioner may, in addition to claiming that the election of a particular candidate is

void, can also claim that he/she himself/herself has been duly elected.

8. What are the grounds for filing an election petition or declaring an election void?

The election of a particular candidate can be declared void under section 100 of the
Representation of People Act, 1951, if the High Court is of the opinion that -

a) On the date of his election a returned candidate was not qualified or was disqualified
to be chosen to fill the seat.
b) Any corrupt practice (as explained below) has been committed by a returned
candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent.
c) By improper acceptance of any nomination.
d) By any improper reception, refusal or rejection of any vote or the reception of any
vote which is void.
e) By any non-compliance with the provisions of the Constitution or RPA or any rules or
orders made under this act.

9. What constitutes corrupt practices?

Under Section 123 of the Representation of People Act, 1951, following are considered
corrupt practices:

a) Bribery (any gift, offer, promise or gratification of any sort by the candidate or his/her
agent to the voter or to another candidate contesting elections)
b) Undue influence: direct or indirect influence exercised by the candidate or his/her
agent; includes threats, attempts to induce voters or other candidates, declaration of
public policy or action or the mere exercise of a legal right etc.
c) Use of Force/coercion
d) Appeal by a candidate or his election agent to refrain from voting on grounds of
religion, race, caste, community or language. This also includes the promotion of, or
attempt to promote, feelings of enmity or hatred between different classes of the citizens
of India on grounds of religion, race, caste, community, or language, by a candidate or his
agent or any other person with the consent of a candidate or his election agent to improve
prospects of the election of that candidate or for affecting the election of any other
candidate.
e) Use of national symbols, national emblem, national flag to further the prospect of the
election of the candidate or for prejudicially affecting the election of any other candidate.
f) Publication by the candidate or his election agent of any false statement of fact which
he either believes to be false or does not believe to be true, in relation to the personal
character or conduct of any other candidate, or in relation to his/her candidature. Such a
statement can also include a statement which is reasonably calculated to prejudice the
prospects of that candidate's election.
g) Use of/hiring/permanent fixing of vehicles by a candidate or his election agent
prohibited under Section 25 and 29(1) of the Representation of People Act, 1951. h)
Making false statements relating to elections expenditure.
i) Abetting or attempting to obtain the service of government servants for the furtherance
of the prospects of elections. These government servants can be gazetted officers,
magistrates, members of the armed forces, police officers, excise officers, revenue
officers other than the village revenue officers e.g lambardars, deshmukhs etc.
j) Booth capturing by a candidate or his/her election agent.

10. What is the position in the Court of Law when more than one election petition is
presented to the High Court in respect of the same election?

Where more election petitions than one are presented to the High Court in respect of the
same election, all of them shall be referred for trial to the same judge who may, in his
discretion, try them separately or in one or more groups.

11. What is the timeline for a trial in an election petition?

The Representation of Peoples Act recommends every election petition shall be tried as
expeditiously as possible and as far as practicable for the interests of justice. Every
endeavor, its suggests, should be made on the part of the High Court to conclude a trial
for an election petition within six months from the date on which the election petition is
presented to the High Court for trial.

12. What happens to the acts/activities done by an elected representative during the
course of his/her membership, after his/her election is declared void?

When the election of a candidate is declared void, any of his acts or proceedings in which
that candidate has participated as a Member of Parliament or State Legislature, shall not
be invalidated by reason of that order, nor shall such candidate be subjected to any
liability or penalty on the ground of such participation.

13. How can an election petition be withdrawn?

Any election petition may be withdrawn only by leave of the High Court. Where an
application for withdrawal is made, notice thereof fixing a date for the hearing of the
application shall be given to all other parties to the petition and shall be published in the
official gazette.

14. How and when does an election petition abate?

An election petition can abate only on the death of the sole petitioner or of several
petitions. The High Court shall, thereafter, publish the same in such a manner as it may
deem fit.

15. Where should the High Court communicate its final orders as against an election
petition?

The High Court shall as soon as after the conclusion of the trial of an election petition,
intimate the substance of the decision to the Election Commission of India and the
Speaker of the House or Chairman of the State Legislature as the case may be. The High
Court shall also send an authenticated copy of the decision to the ECI.

16. Where can one appeal against an order of the High Court?

An appeal shall lie to the Supreme Court on any question (whether of law and fact) from
every order made by a High Court.

17. What is the limitation period for filing an appeal in the Supreme Court against
an order of the High Court?

Every appeal shall be preferred within a period of thirty days from the date of the order of
the High Court. Supreme Court may entertain an appeal after the expiry of the said period
of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the
appeal within such period.

18. When does an election petition stand infructuous?

An election petition usually stands infructuous by reasons of efflux of time, expiry of the
membership of the concerned candidate, death of the party related to the petition.

Examples of election petitions that have been filed.

- An election petition was filed against Ashok Chavan and Madhu Koda for understating
his election expenses on newspaper advertisements during the 2009 elections. Now as per
the Supreme Court ruling dated 5th of May, 2013 in the matter of both Mr. Ashok
Chavan and Mr. Madhu Koda, the Election Commission has been ordered to conduct an
enquiry and decide on the matters within a period of 45 days.

- Election Commission of India had disqualified Umlesh Yadav (woman MLA from Uttar
Pradesh) for filing an incorrect amount of expenses incurred by her during the elections.
- An election petition had been filed against Indira Gandhi for corrupt electoral practices
and she was disqualified from contesting elections for a period of six years.
- An election petition had been filed against Chidambaram on the grounds of corrupt
practices and manipulation of votes.

3.ELECTORAL OFFENCES:

Section 123- Corrupt Practices- Safeguard the purity of the elections and people don‘t
mess with election laws.

Ghasiram v. Dal Singh- AIR 1968 SC 1191- Justice Hidayatullah- Dispersion of

discretionary grants by ministers. There is a thin line between corrupt practice and evil
practice depending upon the soundness of the evidence. Section 123 is a ground for setting
aside under section 100 of the act. So if the HC is of the opinion that any corrupt practice by
a returned candidate or result of the election in so far as it concerns the returned candidate
had been materially affected, the election of the returned candidate is liable to be declared as
void under Section 100(2).

It is quasi-criminal in nature hence it must be proved beyond reasonable doubt.

A.Bribery-

Banke Bihari Das v. Chitranjan Das- Motive of a candidate by giving gifts is at most to
make him popular in his constituency.

S.B. Adithya v. S. Kandaswami- It was alleged that the respondents payed two sums to two
candidates in order to drop them out of the election contest. They withdrew but could not be
made party to the election petition. Court said though gift cannot be made without acceptance
of it but the acceptance is deliberately omitted from the corrupt practices, therefore
acceptance of gift is not bribery. Section 123 was amended after this judgment.

Omkar Singh v. Kashi Ram- SC considered the issue and observed that so long as the
payment is made only for the expenses, it will not fall within the mischief of Section 123 of
the act.

Trilochan Singh v. Karnal Singh- Respondent contended that the gratification given to the
retired community cannot constitute as bribery. The HC said following

1. It gives satisfaction or pleasure to individuals.

2. The gift or promise to give gratification is of some value.

3. The gift or promise by a candidate is made with corrupt motive of directly or indirectly
inducing the persons gratified to vote in his favour or to induce other electors in his favour.

Section 123- The term "gratification" is not restricted to pecuniary gratifications or

gratifications estimable in money and it includes all forms of entertainment and all forms of
employment for reward but it does not include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and duly entered in the account of election
expenses referred to in section 78.

Basically, it means satisfaction and in the context in which it is used must have something
valuable and must satisfy person‘s object desire whether or not that thing is estimable in
terms of money. Thus offer to give employment or treating voters may constitute bribery if
motive of allurement was to obtain favour in election. However in support of such corrupt
practice must satisfy the test which is applied for the proof of criminal charges.
Mohan Singh v. Bhanwar Lal- AIR 1976 SC 1366- The returned candidate offered to help
one of the other candidates to get employment in a sugar factory. The offer was in order to
induce him to withdraw his nomination. SC said that the acceptance of offer which
constitutes a motive or reward for withdrawing from the candidature must be an acceptance
of gratification or a thing of some value though not necessarily estimable in terms of money
but a mere offer to help in getting employment is not such offer of gratification within the
meaning of Section 123 (1)(B) as to constitute it as a corrupt practice.

Bribery and Charity- Offer to pay or promise for the purpose of inducement for the persons
having religious inducement over a particular community may constitute as bribery especially
when the money in invested during the elections.

Sarla Devi v. Birendra Singh- Returned Candidate did the auspicious ceremony of digging a
well and promised to have a well for harijans. There was no allegation that the promise was
made with a corrupt motive and it was done to induce harijans. HC said that there is no proof
to establish the motive. So, all kinds of charity cannot constitute as bribery and it depends
upon the facts and circumstances of each case that whether ill motive could be inferred or
not.

B.Undue Influence-

Undue influence, that is to say, any direct or indirect interference or attempt to interfere on
the part of the candidate or his agent, or of any other person with the consent of the candidate
or his election agent, with the free exercise of any electoral right.

Lal Singh v. Vallabh Das- AIR 1967 Guj. 62- It is meant to ensure freedom to the elector. It
is designed to prevent persons from deflecting the elector from enjoying that freedom by
influencing him in a manner which would be regarded to be undue i.e. by creating an
atmosphere or situation by which choice of a candidate will be made not on the merits of the
candidates of the parties or their programs and instead selecting them on extraneous
conditions such that a selection would affect spiritually or the person in whom they are
interested or would create a feeling that they would personally gain or lose in matters which
do not relate to the policies or programs on which governments are run if they cast their vote
in favour or against a candidate.
There can be undue influence. Even at the stage where the elector prepares his mind by going
into the merits and demerits of the candidate, the elector could be affected. After this mental
process as well, the elector to be unduly influenced while casting of votes.

Shiv Kirpal Singh v. V.V. Giri- AIR 1970 SC 2097- Canvassing is permissible. If there is an
interference or attempted interference, it does not contemplate with the mental process of the
person. Undue influence will start at the time of casting of votes and not at the mental process
stage.

Manubhai Nandlal Amorse v. Popat Lal Mani Lal Joshi- AIR 1969 SC 734- In considering
the speeches, the status of the speaker and the character of the audience are relevant
considerations.

Sometimes there is a debate as to the qualification and competency of other candidates.

M.C. Vardhachari v. D. Vasant Pai- Candidates in elections are not only entitled to raise
political issues they can also raise social economic and criminal issues, the candidate is free
to put his viewpoints so long as there is no comment upon the character of the contestants.

C.Issuing of Whip- Tenth Schedule-

The legislators are bound to act upon the advice of the legislating party.

Babu Rao v. Zakir Hussain- AIR 1968 SC 904- The whip directed to the members marked
first preference in the name of Dr.Zakir Hussain as President. No second preference was
given. No threat for non-compliance was given. The directions prevented the electors to
freely exercise their choice. Supreme Court said it is not undue influence because electors
were free to do in spite of the advice.

Relevant Provision-

Without prejudice to the generality of the provisions of this clause any such person as is
referred to therein who—

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is
interested, with injury of any kind including social ostracism and ex-communication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in
whom he is interested, will become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of
such candidate or elector within the meaning of this clause;

D.Declaration of Public Policy or promise during the Eve of Election-

This does not constitute as corrupt practice.

Upendra Lal v. Narayani Devi- On the eve of election, an ordinance was promulgated
granting exemption on payment of land revenue in certain cases. Around 30,000 tenants were
benefitted by such measure. HC said the action was general in character and would not
amount to undue influence simply because several persons took benefit of it.

Section 123(3)- Appeal on ground of caste, community and religion. This section enhances
the integrity and secularism of our country.

S.R. Bommai v. Union of India- AIR 1194 SC 1918- Supreme Court said that the
introduction of religion into politics is not merely in negation of constitutional mandate but
also a positive violation of constitutional obligation of duty, responsibility or obligation and
positive prescription, prohibition especially enjoyed by RP Act, 1951. The party which seeks
to ensure votes through caste orientation policy disintegrates people on the ground of religion
and caste. It divides the people and disrupts the social structure on grounds of religion and
caste which is obnoxious and anathema to constitutional culture and basic features.

Subash Desai v. Sharad J. Rao- Supreme Court rejected the contention that these provisions
violated right to religion. When the framers guaranteed every citizen, right to freely profess,
practice his religion that right does not extend to creating hatred between persons of two
different religions. These sections never purport to curb the right to religion under the
constitution. They only purport to curb the appeal on the ground of religion and promoting
enmity during the election by the contestant or his agents for the prospects of the election
prospects of that candidate or for prejudicially affecting other candidates.

4.RELIGION BASED POLITICAL PARTIES

Kultar Singh v. Mukhtar Singh- AIR 1965 SC 141- Observations of the Supreme Court-
1. The appellant was adopted as its candidate by the Akali Dal. This party is a recognized
political party notwithstanding the fact that all its members are only Sikhs.

2. It is well known that there are various parties which subscribe to different political and
economic ideologies but the membership of them are either confined to or predominantly
held by members by particular communities or religions so long as law does not prohibit
formation of such parties and in fact recognizes them for the purpose of election and
parliamentary life. It would be necessary to remember that an appeal made by a candidate of
such parties for votes if successful lead to their elections and in an indirect way may
conceivably be influenced by considerations of religion, race, caste, community or language.

3. This infirmity cannot be avoided so long as parties are allowed to function and are
recognized though there composition may be predominantly based on membership of
particular communities or religion.

Manohar Joshi v. N.B. Patil- SC said that the word Hindutva by itself does not invariably
mean Hindu religion. It is the context and the manner of its use which is material for deciding
the meaning of hindutva in a particular case. A mere statement that first hindu state will be
established in Maharashtra is not an appeal for votes on the ground of his religion but the
expression of such a hoe.

N.Ramalingam v. M.Karunanidhi- 49 ELR 399- The petitioner alleged that the respondent
spoke that he belongs to an inferior caste and higher caste people are interested in defeating
him. The Madras HC reflects the identity of the candidate of the voter about his community
and is not sufficient to establish or appeal on the ground of his caste or community.
Introducing voters about the caste or community is not a corrupt practice. It appears that an
appeal to vote on the ground of caste or community depends on the motive or the intention of
the maker so as to cover it as a corrupt practice under Section 123(3).

Use of religious and national symbols-

Indira Gandhi v. Raj Narain- Symbol Cow and Calf. SC rejected the contention and
observed that the best class of the evidence as to what is and what is not as to be reasonably
regarded as symbol according to custom and outlook of the people of the country consist of
contemporaneous decision of the courts. It is useless to quote passages from ancient texts
about cow and support of use of cow as a religious symbol. The use of the picture of
excellent and useful picture of animal is used so frequently today for other purposes that for
representation, a cow and a calf, expect something special or have religious significance.

Jagdev Singh v. Pratap Singh- AIR 1965 SC 183- There was an election to Lok Sabha from
Jhajjar Constituency. The returned candidate Jagdev Singh used Om flag which was a
religious symbol to appeal to hindu voters. Court referred to the Sanskrit English dictionary
and noted that om is a sacred exclamation which may be uttered and end of the reading of the
vedas or previous to any prayer. It is also regarded as particle of auspicious recitation but it is
difficult to regard om which is preliminary to an incarnation or to religious books as having
religious significance. Om may be regarded as having high spiritual or mystical efficacy. It is
used at the commencement of recitation of religious prayers but the attribute of religious
significance will not necessarily impart to its use on a flag, the character of a religious
symbol in the context in which the expression religious symbol occurs in the section with
which we are concerned. A symbol stands for and represents something material or abstract.
In order to be a religious symbol, there must be a visible thing or a concept which is religious.

Mohd. Yusuf v. Bhairon Singh Shekhawat- The Rajasthan High court said that in election
speeches reference to ram, Krishna, laxmi etc or associating lotus with laxmi in election
symbol does not per se amount to use of religious symbol or appeal on the ground of religion.
Publication of Diwali greeting of goddess laxmi which was sent by a candidate to a voter was
not treated as an election symbol.

Section 123 (3A)

Ibrahim Suleman v. M.C. Mohammad- Question was whether a political party could be
treated as a class of citizen as contemplated by Section 123 (3A) since; communal political
parties are allowed to function.The candidate gave provocative speech and Kerala HC held it
had a communal tone. But the SC said that even though it had communal tone, but communal
parties are allowed to function in the politics.

Dr. Das Rao Deshmukh v. Kamal Kishore Nana Sahib- The appellant was a nominee of
the Shiv Sena party and was the returned candidate to Maharasthra Legislative assembly.
Respondent filed Election petition on ground of religion and promoting of enmity between
different classes. It was based on a poster with the permission of candidate to teach Muslim a
lesson.

The speeches of Shiv sena also had communal overloads. Both the HC and SC were of the
view that the publication of the poster which had an appeal to vote and it should attract both
123(3) and 123(3A).

5.CORPORATE FUNDING OF POLITICAL PARTIES:

Government and citizens both are interrelated to each other and since political parties are a
link between them, they are always expected to be accountable to the public at large. It is
essential to have comprehensive and transparent accounting methods and systems so that the
true financial position of the parties could be revealed. A political party that agrees to take
funds from a company but is reluctant to make full disclosure is disallowed to receive such
funds.

Amongst the various sources of funding to the political parties, company is one of them.

Relevant provisions for political parties‘ donations and contributions in India

According to Sec 29B of the Representation of People‘s Act, every political party is
entitled to accept contribution offered to it by any person or company voluntarily, other than
a Government company. No political party is allowed to accept any contribution from any
foreign source as defined under Sec 2 of the Foreign Contribution (Regulation) Act, 1976.

According to Sec 29C of the Representation of People‘s Act, the political parties are
required to declare the details of contributions of more than Rs. 20,000 and prepare a report
for the same in each financial year. Here, contribution includes contributions from both
private persons as well as companies.

It is made mandatory for the political parties to submit to the Election Commission of India a
list of donations they receive of over Rs. 20,000, giving names and addresses of the donors
(Sec 29-C, RPA). If they fail to do so, then such political parties are disentitled from getting
any tax relief under that Act.
Sec 182 of Companies Act, 2013 states that the companies donating contributions to the
political parties must be in existence for a minimum period of three years. Also, the
companies can donate only up to 7.5% of its profit in a year and is bound to disclose the
amount in its profit and loss account. This exercise of the power of the companies can take
place only with the approval of the board of directors through a resolution. If a company
violates any of the provisions of this section, the company shall be punishable with fine
which may extend to five times the amount so contributed; and every officer of the company
who were involved in such violation shall be punishable with imprisonment for a term which
may extend to six months and shall also be liable to fine of 5 times the amount contributed.

The government enacted the ‗Electoral Trusts Scheme, 2013‘ in order to streamline the
process of funding and to ensure the transparency of corporate funding to the political parties‘
poll expenses. According to this scheme, Electoral Trust companies were set up and were
promised tax benefits in proportion to the funds they provided to various political outfits.

The Corporate Affairs Ministry amended its ‗Name Availability Guidelines‘ for the
companies to enable registration of non-profit companies. The companies were required to
have the phrase ‗Electoral Trust‘ before their names and get registered, so as to differentiate
them from other companies, as allowed under Sec 25 of the Companies Act, 1956 under the
Electoral Trusts Scheme, 2013. The companies were supposed to have an affidavit to the
effect that they would be limited only for the purpose of registration of companies under the
Electoral Trust Scheme of Central Board of Direct Taxes.

The companies were allowed tax benefits on one condition, i.e. only if they distribute 95% of
total contributions received by them in any financial year to the registered political parties
within that year itself. The Electoral Trust companies were not allowed to accept
contributions from foreign citizens or companies. They need to take the PAN number of all
contributors who were resident Indians and passport number of NRI citizens at the time of
receiving the contribution.

Current Status of Political Funding

Under the current legal requirements, political parties are generally not completely
transparent in their finances and thus a huge proportion of their income remains unaccounted
for. There are unknown sources of funding reported by political parties in their annual
disclosure report such as ‗sale of coupons‘, ‗Aajiwan Sahayog Nidhi‘, ‗relief fund‘,
‗miscellaneous income‘, ‗voluntary contributions‘, ‗contribution from meetings/morchas‘ etc.
for which there is no information available in the public domain.

BSP has been an excellent example of such lack of transparency in the political parties‘
disclosure. Since last 8 years, it has not disclosed even a single name of the donor who has
contributed above Rs. 20,000 to them, though every year its total income has been in crores.

This egregious level of opacity in the financial disclosure of political parties certainly creates
a suspicion towards the dubious sources of income which ultimately effects our electoral
process.

The AAP Controversy

Just 4 days before the Delhi elections, AAP has been engulfed into a big controversy, a
controversy over political funding. AAP has been charged with the allegation of money
laundering from AVAM (AAP Voluntary Action Manch) for 4 companies which have funded
the party with 50 lakh each, namely Goldmine Buildcon, Skyline metal, Infolance software &
Sunvision agencies, are believed to be bogus companies. ‗HAWALA AT MIDNIGHT‘ has
been the breaking news these days. These companies are found to have fake addresses and no
profits or loss accounts since 3 years. The directors of these companies are directors of more
than 1 company. One Hem Prakash Sharma is a director of 56 companies and Dharmendra
Upadhyaya of 18 companies, which indicates a suspicion.

Though the companies are registered with ROC, it is not enough to prove the genuineness of
the company as it provides information only regarding its registered address, its existence and
its paid-up capital. Whether the company is doing business currently or not is not provided
under ROC.

AAP rules say that all donation up to Rs 10Lakh are vetted by the Advisory Committee and
for donations above that, it is scanned by the Political Advisory Committee.

BJP has also alleged that AAP has flouted foreign exchange law as it routed money from a
foreign company which is not supposed to donate money to an Indian Company. However, a
recent disclosure from Mrs. Mann, who made this donation along with her husband, threw
some light on this issue. AVAM had alleged against AAP that the money was paid to them by
cheque and a dubious transaction has taken place. Mrs. Mann stated that the basic facts
offered by AVAM are incorrect and they paid through credit card and not through cheque.
Since she claims to be an Indian citizen, it is not even the violation of Sec 3(1) of Foreign
Contribution (Regulation) Act, 1976 which restricts political parties to accept contributions
from foreign companies.

Although AAP has tried clearing its hands from this allegation, the controversy is still on.

Need for strict implementation

There is a grave need for a strict mechanism for ensuring that there is final transparency and
accountability on the part of the political parties. In order to put forward a true picture of the
financial position of the political parties, there must be a standardized procedure and
framework of reports. Institute of Chartered Accounts of India (ICAI) has taken a step
towards this direction on the request of the Election Commission of India (ECI). ADR
considers it the top most priority.

6.ROLE OF BLACK MONEY IN INDIAN ELCTION:

Black Money Issue Runs Across the Political Spectrum

The issue of bringing back black money kept in foreign banks was first made a public issue
by the BJP‘s Lal Krishna Advani during the General Elections in 2009. This compelled the
then prime minister Dr Manmohan Singh to make a statement that his government would
bring back the black money. But nothing much happened partly because of the government‘s
own inaction and partly because of the technicalities involved. The issue, therefore, caught
the fancy of the masses and Modi did exploit it to the hilt in the last elections!

As Prime Minister, Narendra Modi had decided to bring back the black money and expose
the culprits within ―100 days‖ of coming to power. Though he could not succeed in this
objective, his initiative to constitute a Special Investigation Team (SIT) in this regard on the
very first day in office was a positive step.

However, the subsequent government measures struck the wrong chords. First, when the
Modi government selectively revealed a few names, many turned out to be the BJP‘s donors.
Second, the Supreme Court snubbed the government by rejecting the Attorney General‘s
argument that the full list of 782 Indians with illegal foreign bank accounts could not be
disclosed till the completion of investigations and fixing of charges. Third, the apex court
made the government submit the full list in a sealed cover before it.

Such developments have caused embarrassment to the government for two reasons –

1. No party, including the BJP, can deny the acceptance of donations from dubious donors

2. The complexities involved in the bi-lateral agreements involving cooperation on the issue
of tracing and bringing back black money from foreign shores

Complexities involving black money

To begin with, in case the names of the account holders are leaked without any evidence
against them of stashing black money, it could jeopardise any future treaties on information
sharing with countries where the black money is supposedly deposited. The Swiss authorities
had earlier blinked as late as in October this year and agreed to offer the requested
information to India in a time-bound manner after much difficulties and repeated refusals on
apparent grounds that India‘s request for assistance in tracking Indian tax evaders was based
on stolen data from a Geneva branch of HSBC by a former employee of the bank.

But, wasn‘t the BJP aware of these complexities when Modi made such deadline-driven
promise in his election campaigns before the General Elections?

Political Parties: Opaque Financial Functioning

Now let‘s dwell on the issue of the involvement of political parties in accepting donations
from dubious sources and not maintaining proper books of accounts. The governing rules are
inadequate. Consider that the political parties are not required to account for any contribution
lesser than Rs 20,000!

Even where rules seem adequate, none of the political parties follow them. Take for example
a provision introduced in 1985 that made it possible for firms to donate five per cent of their
average net profit from the past three years directly to political parties. Still, 93.8 per cent and
91.3 per cent of the incomes reported respectively by the Congress and the BJP before the
last General Elections had come from ―unlisted sources‖.

An important development to introduce transparency in corporate funding though was the

introduction of a new law in January 2013 to allow the corporate sector to set up electoral
trusts that could make tax-deductible donations to any political party. The 2014 elections saw
many big corporate houses making donations to political parties but there has been a growing
feeling that these new electoral trusts too proved inadequate since black money kept pouring
through circuitous routes to the political parties. (Over Rs 300 crore that was seized by the
Central Election Commission during the last general elections is a glaring example).

Political parties in Indian seem to circumvent rules with impunity particularly in matters
related with money. Here is another example – the Central Board of Direct Taxes (CBDT) in
2008 found that an astounding 103 candidates who had contested the 2004 General Elections
had provided false affidavits to the Election Commission on their movable and immovable
assets and their Income Tax returns did not match with their declaration under oath! To add
salt to the injury, there were 195 cases where IT returns were not even filed by the
candidates!

Black Money: Challenging Task before the Modi Government

Elections require huge money and black money inarguably plays the most important role here
as it conveniently escapes the dragnet of the Election Commission and beats the cap on
election expenses.

This explains why the regulatory mechanisms to curb unaccounted money have proved
inadequate and little surprise that his detractors take Modi‘s claims of bringing back the black
money with a pinch of salt. As it goes, Caesar‘s wife should be above suspicion and Modi
needs to pass this acid test for his own credibility.

7.CRIMINALISATION OF POLITICS:

After 60 years of India‘s independence the lives of commoners is far worse than under
Britishers. The benefits of independence have reached only few, thus creating islands of few
ultra rich people surrounded by vast sea of utterly poor. The rich people in nexus with those
in power are getting favourable laws enacted to suit their ends. Those in power are
shamelessly enjoying 5-star luxuries all at tax payer‘s expense, while more then 50 million
are starving to death. The criminalization of politics, executive & judiciary is almost
complete. The corruption has spread its tentacles far & wide, there is corruption from womb
to tomb, from maternity hospital to grave yard. The injustices mated out, the atrocities
perpetrated by public servants are worse than Britishers.

The biggest confounding factor in the political environment of business is criminalization of

politics: people with criminal backgrounds becoming politicians and elected representatives.
Around 20% of the members of the current Lok Sabha have criminal cases pending against
them. The charges in several of these cases are of heinous crimes such as murder, robbery,
kidnapping, and not just violation of Section 144, or something similar.

It is well known that all parties take the help of criminal elements to dominate the election
scene in India. But this process is influencing the mind and the will of the people both to gain
the majority to rule the country according to their will. The system of democracy is now
changing into the dictatorship of some. Because the democracy of India are now in hands of
the criminal who are not capable any way to hold the post if legislature.

Components:-

(1) Muscle Power:-

The influence of muscle power in Indian politics has been a fact of life for a long time. As
early as in 1977, the National Police Commission headed by Dharam Vira observed: ``The
manner in which different political parties have functioned, particularly on the eve of periodic
election, involves the free use of musclemen and ‗Dadas‘ to influence the attitude and
conduct of sizable sections of the electorate. The Panchayat elections, like other elections in
the recent past, have demonstrated once again that there can be no sanity in India as long as
politics continues to be based on caste and Gangsterism.

The politicians are thriving today on the basis of muscle power provided by criminals. The
common people who constitute the voters are in most cases too reluctant to take measures
that would curtail the criminal activities. Once the political aspect joins the criminal elements
the nexus becomes extremely dangerous. Many of politicians chose muscle power to gain
vote bank in the country, and they apply the assumption that, if we are unable to bring faith in
the community then we can generate fear or threat to get the power in the form of election.

(2) Money Power:-

The elections to Parliament and State Legislatures are very expensive and it is a widely
accepted fact that huge election expenditure is the root cause for corruption in India. A
candidate has to spend lakhs of rupees to get elected and even if he gets elected, the total
salary he gets during his tenure as an MP/MLA will be meagre compared to his election
expenses. How can he bridge the gap between the income and expenses? Publicly through
donations and secretly through illegal means. The expenditure estimation for an election
estimated as Rs 5 per voter as election expenditure, for 600 million voters, and calculation of
all the expenses in a general elaction estimated around Rs 2,000 crore. Then there is the
period between elections. This requires around Rs 250 crore. Then there are state elections
and local elections. All told, the system has to generate around Rs 5,000 crore in a five year
cycle or Rs 1,000 crore on average each year. Where is this money to come from? Only
criminal activity can generate such large sums of untaxed funds. That is why you have
criminals in politics. They have money and muscle, so they win and help others in their party
win as well.

Reasons of This Criminalization:

(1) Vote Bank:

The political parties and independent candidates have astronomical expenditure for vote
buying and other illegitimate purposes through these criminals or so called goondas. A
politician‘s link with them constituency provides a congenial climate to political crime.
Those who do not know why they ought to vote comprise the majority of voters of this
country. Therefore majority of the voters are manoeuvrable, purchasable. Most of them are
individually timid and collectively coward. To gain their support is easier for the
unscrupulous than the conscientious.

We have long witnessed criminals being wooed by political parties and given cabinet posts
because their muscle and money power fetches crucial votes. Elections are won and lost on
swings of just 1% of the vote, so parties cynically woo every possible vote bank, including
those headed by accused robbers and murderers. Legal delays ensure that the accused will die
of old age before being convicted, so parties virtuously insist that these chaps must be
regarded as innocent till proved guilty.

(2) Corruption:-

In every election all parties without exception put up candidates with a criminal background.
Even though some of us whine about the decision taken by the parties, the general trend is
that these candidates are elected to office. By acting in such a manner we fail to realize that
the greatest power that democracy arms the people is to vote incompetent people out of
power.

Independence has taken place through a two-stage process. The first stage was the corrupting
of the institutions and the second stage was the institutionalization of corruption. As we look
at the corruption scene today, we find that we have reached this stage because the corrupting
of the institutions in turn has finally led to the institutionalization of corruption. The failure to
deal with corruption has bred contempt for the law. When there is contempt for the law and
this is combined with the criminalization of politics, corruption flourishes. India is ranked 66
out of 85 in the Corruption Perception Index 1998 by the German non-government
organization Transparency International based in Berlin. This means that 65 countries were
perceived to be less corrupt than India and 19 were perceived to be more corrupt.

(3) Loop Holes In The Functioning Of Election Commission:

The Election Commission must take adequate measures to break the nexus between the
criminals and the politicians. The forms prescribed by the Election Commission for
candidates disclosing their convictions, cases pending in courts and so on in their nomination
papers is a step in the right direction if it applied properly. Too much should not be expected,
however, from these disclosures. They would only inform people of the candidate‘s history
and qualifications, but not prohibit them from casting their votes, regardless, in favour of a
criminal.
For the past several general elections there has existed a gulf between the Election
Commission and the voter. Common people hardly come to know the rules made by the
commission. Bridging this gap is essential not only for rooting out undesirable elements from
politics but also for the survival of our democratic polity. This is an incremental process, the
rate of success of which is directly proportional to the increase in literacy rate in India. The
electorate have made certain wrong choices in the past, but in the future national interest
should guide them in making intelligent choices.

(4) Denial of Justice And Rule of Law:

Criminalization is a fact of Indian electoral politics today. The voters, political parties and the
law and order machinery of the state are all equally responsible for this. There is very little
faith in India in the efficacy of the democratic process in actually delivering good
governance. This extends to accepting criminalization of politics as a fact of life. Toothless
laws against convicted criminals standing for elections further encourage this process. Under
current law, only people who have been convicted at least on two counts be debarred from
becoming candidates. This leaves the field open for charge sheeted criminals, many of whom
are habitual offenders or history-sheeters. It is mystifying indeed why a person should be
convicted on two counts to be disqualified from fighting elections. The real problem lies in
the definitions. Thus, unless a person has been convicted, he is not a criminal. Mere charge-
sheets and pending cases do not suffice as bars to being nominated to fight an election. So the
law has to be changed accordingly.

8.PUBLICATION OF FALSE OR DEFEMATORY STATEMENT

Section 123(4) - Publication of false statement

1. Publication of any statement of fact by a candidate or his agent or by any other person
with the consent of that candidate or his agent.

2. The statement of fact is false and the candidate believes it to be false or does not believe
it to be true.

3. The statement is in relation to the personal character of the candidate.

4. The said statement is one which is being reasonably calculated to prejudice the
prospects of the other candidate in the election.
Subash Desai v. Sharad J. Rao- AIR 1992 SC 2277- The onus of proving the ingredients of
Section 123(4) is on the petitioner. However, if the petitioner asserted and stated on oath that
the statement of fact published by the returned candidate was false and the said statement has
been published by the candidate knowing it to be false, it would be deemed that the petitioner
has discharged his onus.

Section 123(4)- Mental and Moral Character- There must be allegations with regard to a
candidate personally reflecting the mental or moral character of him. Immorality includes
acts of violence, corruption, these allegations are personal in character, the law says that even
if such acts are alleged to have been done during his political character that may constitute an
allegation regarding personal character of the candidate.

Section 123(5)-

Jas Bhai Chunni Bhai Patel v. Anwar Beg- AIR 1965 SC 586-

A. Hiring or procuring of vehicle.

B. By a candidate or his agent.

C. For the free conveyance of the elector.

The section also speaks on use of such vehicles which connects two parts, namely, hiring or
procuring of the vehicle and the use. The requirement is that therefore, in addition to
providing the hiring the carriage of electors, it should also be proved that the electors use the
vehicle free of cost to themselves.
UNIT 5:

CORRUPT PRACTICES:

1.PREVENTION OF CORRUPTION ACT

The Prevention of Corruption Act came into force in September 1988. It consolidated the
provisions of the Prevention of Corruption Act, 1947, some sections of the Indian Penal
Code, the Criminal Procedure Code, and the Criminal Law Act, 1952. The sole idea was to
bring all relevant provisions in a single Act. Finding that bribery and corruption among
public servants had considerably increased during and after the Second World War and many
unscrupulous officers had amassed huge wealth, and the existing provisions of the IPC and
the CrPC were inadequate to tackle this problem, the Prevention of Corruption Act, 1947 was
passed.

In the Criminal Procedure Code, offences relating to public servants are not cognisable, but
the 1947 Act made it obligatory for the court to make certain presumptions of guilt against
the accused. The 1947 Act shifted the burden of proof from the prosecution to the accused.
The investigation against the accused was to be made by an officer not below the rank of
Deputy Superintendent of Police.

The 1947 Act declared such corrupt acts offences as taking bribe, misappropriation, obtaining
a pecuniary advantage, possessing assets dis-appropriate to income, and abusing official
position. However, the authority for prosecution was vested only in the department
authorities and not in the Central Bureau of Investigation (CBI).

2.LOKPAL AND LOKAYUKTHA ACT:

The Administrative Reforms Commission (ARC) set up in 1966 recommended the

constitution of a two-tier machinery of a Lokpal at the Centre, and Lokayukts in the states.

Its main motive is to provide speedy, cheaper form of justice to people.

Lokpal is to be a three member body with a chairperson who is or has been a chief justice or
judge of the Supreme Court; and its two other members who are or have been judges or chief
justices of high courts around the country.
Service Conditions and Appointment of Lokpal:

As mentioned in the draft bill appended to the interim reports of the commission, the lok pal
is to be appointed by the President, on the advice of the Prime Minister in consultation with
the Chief Justice of India and the leader of opposition in Lok Sabha. The person who is to be
appointed as a Lokpal must have served his connection, if any with any political party, his
membership in parliament or the legislatyre of the state or any office of profit. He can hold
office for five years with eligibility for re-appointment. He shall not be removed except by
the procedure of the impeachment, as in the case of Supreme Court judges. His status and
salary shall be the same as that of the CJI.

Jurisdiction of Lokpal:

The Lokpal is empowered to investigate into administrative action taken by or with approval
of a minister or secretary of union or state government either on receiving a written complaint
by an aggrieved person or suo motu, relating to mal-administration, undue favour or
corruption. But the Lokpal is not to undertake any investigation in respect of which the
aggrieved person has any remedy before a court of law or statutory tribunal.

Functions of the Lokayukta:-

(1) Investigating into the citizen ―grievances‖ of injustice and hardship caused by
maladministration.

(2) Inquiry into allegation of abuse of office, corruption or lack of integrity against public
servant. Such additional function in relation to the redress of grievances and eradication of
corruption as may be specified by the Governor, by notification.

Such additional functions may include:-

(a) Supervision over an investigation of anti corruption agencies, authorities, and offers.

(b) Investigation in any action not mentioned in the act ―notwithstanding‖ anything contained
therein, if required by the governor by an order.
The Lokayukta and Uplokayukta shall present annually a consolidated report on the
performance of their functions under the act to the governor. In Prof. S.N. Hegde vs the
Lokayukta, Bangalore and others, an important question arose about the jurisdiction of the
Lokayukta, under the Bangalore Lokayukta Act. In this case, the high court has held that if
the Lokayukta has to entertain and investigate a complaint against a public servant other than
C.M. a minister or a secretary or a member of the state legislature he has no such power
unless it is conferred on him by a notification by the state government. The Lokayukta has no
jurisdiction to investigate a complaint against the vice-chancellor under the provisio0ns of the
act. Such a jurisdiction is clearly barred in view of section 14 of the Universities Act, so that
Lokayukta has no jurisdiction under the notification to investigate the complaints against
them.

Key Features of Lokpal and Lokayukta Act, 2013 are as Follows:

The Lokpal consists of a Chairperson and a maximum of eight members of which 50% shall
be judicial members. The Lokpal Chairperson or member shall not be connected with any
political party and one member will be an eminent jurist nominated by the President. The
selection of Chairperson and members of Lokpal shall be through a Selection committee
consisting of:

Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice
of India or sitting Supreme Court judge nominated by CJI, Eminent jurist to be nominated by
the President of India on the basis of recommendations of the four members of the Selection
Committee.

 All ministers including Prime Minister with some safeguards and senior public
servants are covered by the ombudsman, excluding the public servants under Army,
Navy and Coastal guard.
 All entities receiving donations from foreign source in the context of the Foreign
Contribution Regulation Act (FCRA) in excess of 10 lakh rupees per year are brought
under the jurisdiction of Lokpal.
 Lokpal will have power of superintendence and direction over any investigation
agency including CBI for cases referred to them by Lokpal.
 Directorate of Prosecution headed by a Director of Prosecution under the overall
control of Director.
 The appointment of the Director of Prosecution, CBI will be made on the
recommendation of the Central Vigilance Commission.
 Transfer of officers of CBI investigating cases referred by Lokpal with the approval
of Lokpal.
 The Bill lays down clear time lines for Preliminary enquiry & investigation and trial
and towards this end, the Bill provides for setting up of Special Courts.

3.ELECTORAL REFORMS:

Important Electoral Reforms proposed by the Election Commission

1. De-criminalization of politics –
background from becoming legislators, the Commission has made a proposal for
disqualifying (from contesting election) a person against whom charges have
been framed by a Court for an offence punishable by imprisonment of 5 years or
more. Under the existing law (Section-8, ROP Act,51) there is a disqualification
once a person is convicted and sentenced to imprisonment of two years or more.

As a precaution against foisting false cases on the eve of election, it has been
suggested that only those cases in which charges are framed six months prior to an
election should be taken into account for that election.

2. Political party‘s reforms –

provisions be made to regulate the functioning of political parties and the
Commission should be empowered to regulate registration as well as de-registration
of political parties.

The political parties should be legally required to get their accounts audited annually.
The audited accounts should be put in public domain. There should be transparency
in the fund raising and expenditure of political parties.

Income tax exemption for donations should be given only for those political parties
which contest election and win seats in the Parliament/State Legislature.
3. Misuse of religion for electoral gain – A Bill was introduced in the Lok Sabha
in 1994 [R.P. (second amendment) Bill,1994], whereby an amendment was
proposed providing for provision to question before a High Court, acts of misuse of
religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha in
1996. The Commission has proposed that the provision in that Bill should be
considered again.
4. Amendment of law to make `paid news‘ an electoral offence- The Commission
has been proposed amendment in the Representation of People Act, 1951, to
provide therein that publishing and abetting the publishing of `paid news‘ for
furthering the prospect of election of any candidate or for prejudicially affecting the
prospect of election of any candidate be made an electoral offence under chapter-III
of Part-VII of Representation of People Act, 1951 with punishment of a minimum of
two years imprisonment.

5. Punishment for electoral offences to be enhanced- Undue influence and

bribery at elections and publishing false statement are electoral offences.
Considering the gravity of the offences in the context of free and fair elections, the
punishments has been proposed to be enhanced and made cognizable.

6. Government sponsored advertisements – For six months prior to the date of

expiry of the term of the House, there should be a ban on advertisements on
achievements of the Government.

7. Prohibition of Campaign during the Last 48 Hours-

Representation of the People Act, 1951, prohibits electioneering activities by
way of public meetings, public performance, processions, advertisements during
the period of 48 hours before the time fixed for conclusion of poll. However, this
Section does not include print media. The Commission has proposed that Section
126 should apply equally to the print media also. The Commission has further
proposed that house to house visits by candidates/supporters should also be
specifically prohibited during the said period of 48 hours, to allow the electors
period of tranquil to decide their options.
8. Punishment for false affidavit by candidates – The Commission has
recommended that Section-125A of R.P. Act, 51, should be amended to provide
that any complaint regarding false statement in the affidavit filed by the candidates in
connection with the nomination paper shall be filed before the Returning Officer
(RO) concerned within a period of 30 days from the date of declaration of the
election and that it shall be the responsibility of the RO to take proper follow-up
action. The complaint can also lie directly to the Magistrate Court.

9. Negative/neutral voting – In the ballot paper and on the ballot unit, after the
particulars relating to the last candidate, there should be provisions for a column
`none of the above‘ to enable a voter to reject all candidates if he so desires.

10. Amendment of law to provide for filing of election petition even against
defeated candidates on the ground of corrupt practice-
election petition (EP) can be filed only for challenging an election of the winning
candidate.

The Election Commission has recommended that the law should be amended to
provide for filing of EP in cases of commission of corrupt practice by a losing
candidate as well.

11. Ban on transfer of election officers on the eve of election – In the case of
general election, there should be a ban against transferring any election related
officer without the concurrence of the Commission for a period of six months prior
to the expiry of the term of the House.

12. Rule making authority to be vested in the Commission –The Commission

should be given the power to frame rules under the R.P. Act, 1950 and1951.

13. Use of Totalizer for counting of votes-The proposal is for amendment of the
Rules to provide for the use of totalizer for counting of votes at EVM elections.
Background of Law of Elections:
Origin-

Definition of Election:
• Section 2 (1)(d) of the Representation of the People Act

• "election" means an election to fill a seat or seats in either House of Parliament or in

the House or either House of the Legislature of a State other than the State of Jammu
and Kashmir.

Nature, Scope and Object:

• Nature: Model for many emerging democracies, free & fair elections

• Scope: Exercise of governmental powers shall be conditioned & controlled

• Object: Democratic Society-Public Conscience-Accountability

• Growth: Commission & Committee Reports-ECI made changes

• Contemporary Outlook: Ensuring the public policy through electing the rep.

• Challenges: (Rule of Law) Rule of Power vs. Rule of Life

History:
• History: Ancient, Medieval and Modern

• Traces of electoral practices-ex Kudovolai System of Chola Kingdom

• Source: Inscriptions of Cholas

• Even before 4th Century BC

 • Source: Election Commission of India‘s Report relating to I General Election and
Buddhist Literature

• Republican Federation kshudark-mallasangha- offered strong resistance to

Alexander Great (The Greek left descriptions of many including elections)

• Every adult male has the right to vote

• Vote – chhanda – wish

• Ballot papers – multi-colour voting tickets – shalakas – pin

• Collector of ballot papers (special officer) – shalakagrahak – collector of pins

Modern History:
• British Period-Colonial Master (1600-1947)

• Transfer of power from East India Co. to British Crown

• 1858 – Govt. of India Act

• Appoint Secretary of State for India

• 1861 & 1892 – Indian Councils Act

• First time Legislative Bodies were introduced

• Law Commission

• 1909 – Indian Councils Act (Morley-Minto Reforms)

• Introduction of elective elements

• Legislative council (27 elected in 68)

• Elite voters only allowed (restrictive electoral roll practices)

• Reservation for Muslim voters and candidates

• 1905,1919 and 1935 Govt. of India Act

Constitutional Assembly Debates:

• Draft Article 8A (after present Article 13)-29 Nov. 1948

• Proposal made by Shri Lokanath Mishra (Amd. No. 273 of new list)

• ―(1) Every citizen who is not less than 21 years of age and is not otherwise
disqualified under this Constitution or any law made by the Union Parliament or by
 the Legislature of his State on any ground, e.g., non-resisdence, unsoundness of mind,
crime of corrupt or illegal practice, shall be entitled to be registered as a voter at such
elections.

• (2) The elections shall be on the basis on adult suffrage as described in the next
preceding sub-clause but they may be indirect.(panchayat to Parliament election)

• (3) The Primary Members shall have the right to recall the member they elected to the
Parliament or the Assembly of the State

• (4) A voter shall have the right to election and the cost of election shall be met by the
State.

• (5) Every candidate will be elected by the people and even if there is no rival, no
candidate shall be elected unless he gets at least 1/3 of the total votes‖.

• Election come on the basis of adult suffrage (21 years)

• Democracy of intelligent will-frame our election rules of adult suffrage

• ―If we really mean that adult suffrage will be educating the people and election will
be an instructive process, we can have no other way of achieving our object‖

• Recall members they elected is very real fundamental right

• If rep. only bother about his party and high command not about people

• Bearing the cost by State-

• A poor man, a good worker, an honest man but neither the money nor the party
backing

• come to Assembly is not a profession or a profiteering business

• Comes to serve the people

• Otherwise, some landlord/capitalist will build up a party to set up candidates

• Opposed by Shri. Algu Rai Shastri

• No relation/Irrelevant to fundamental right

• Legal right-legislations shall be formed and determined (procedure of elections)

• Financial risk involved in bearing election expenses

• State-freedom to seek election-recall-highly expensive (finally defeated polls)

• Ensure democracy and smooth functioning of the Govt.

• This amd. be rejected outright and should never be accepted

 • But Article 8-A inserted but the motion was negatived.

• Election Commission of India

• Independent Agency-Constitutional Authority

• Purpose: Free and Fair Elections

• Art. 324 to 329 of Constitution of India

• Art. 289 to 291 of Draft Constitution

Indian Constitutional Frame Work on EC:

• Art. 324 (1) - Superintendence, direction & control + Preparation of electoral rolls +
all elections

• Art. 324(3) - CEC – Chairman

• Art. 324 (4) - Regional Commissioners

• Art. 324 (5) - Conditions of Service & Tenure

• Art. 324 (6) - Staff of Election

• Art. 312-A - Power of Parliament to vary or revoke conditions of service of officers of

certain services

• Art. 325 – preparation of electoral roll without discrimination

• Art. 326 – Adult suffarage

• Art. 327 - Power of Parliament to make provision with respect to elections

• Art. 328 - Power of Legislature of a State to make provision with respect to elections
to such Legislature

• Art. 324 to 329 – Election Commission

• Art. 55 & 66 - Election of President & Vice President

• Art. 84, 102 & 103 (Qualifications & Disqualifications for MP in Election)

• Art. 173, 191 & 192 (Qualifications & Disqualifications for MLA in Election)

• Art. 341 & 342 – Reserved Constituencies for SC/ST

• Art. 40 & 243 to 243ZG – Local Bodies (73rd & 74th Consti. Amd.) + List II-E5

• Art. 243K & 243 ZA – Elections to the Panchayats & Municipalities

• Art. 246 r/w Schedule VII-(List I- E72 & List II-E37)

Election Commission:

 Composition, Powers and Functions of the Election Commission

 Supervisory Powers of the Election Commission

 Process of Removal of Member and Chief Election Commissioner

 State Election Commissions

Composition-

 High Powered & Independent Body

 Success of Parliamentary Democracy decided by free and fair election

 Chief Election Commissioner

 CEC – Chairman [Art. 324(3)]

 Other Election Commissioners

 Regional Commissioners [324 (4)]

 Conditions of Service & Tenure [324 (5)]

 Appointment by President subject to Law made by Parliament (RPA I & II)

 Staff [324 (6)]

Multi-member Commission-

 It was not a multi member body from the beginning. It was a single member body
when it was first set up in 1950.

 Up to15th October, 1989 with only the Chief Election Commissioner.

 From 16th October, 1989 upto the 1st January, 1990, it became a threemember body
with R.V.S.Peri Sastri (C.E.C) and S.S.Dhanoa and V.S.Seigell as Election
Commissioners.

 From 2nd January, 1990 to 30th September, 1993, it was a single-member

Commission and

 Recommendation of Goswami Committee Report 1990

 Again from 1st October, 1993 it has become a Three-member Commission.

 T.N. Seshan v. Union of India, (1995) 4 SCC 611

Independence of Commission-

 Recommendations of Goswami Report

 Protection of salary of CEC & other ECs on the analogy of CJI & Judges of SC

 The expiry of the terms of office, of CEC & other ECs should be made ineligible not
only for any appointment under the Government but also to any office including the
post of Governor the appointment to which is made by the President.

Conditions of Services & Tenure-

 Art. 312-A - Power of Parliament to vary or revoke conditions of service of officers of

certain services

 The Chief Election Commissioner and the two Election Commissioners draw salaries
and allowances at par with those of the Judges of the Supreme Court of India as
provided for by

 The Chief Election Commissioner and other Election Commissioners (Conditions of

Service) Rules, 1992.

 Removal of CEC like removal of SC judge

 But not applicable to other commissioners

 S.S. Dhonnoa v. Union of India, AIR 1991 SC 1745

Source of Powers & Functions-

 Constitution is a main source to EC and its powers

 ECI has the supervisory role over the State Election Commissions

 Powers of EC subject to Articles 324,327,328

 Art. 327 - Power of Parliament to make provision with respect to elections

 Art. 328 - Power of Legislature of a State to make provision with respect to elections
to such Legislature

Powers & Functions-

 Constitution of India

 Article 324 (1)

 Superintendence, direction & control

 Preparation of electoral rolls

 Conduct of all elections to Parliament and to legislature of every State

  Conduct of all elections to the office of President & VP

 Appointment of Election Tribunals

 Articles-84, 103, 173, 192,

 Decision on questions as to disqualifications of members

 Shall obtain the opinion of the EC

 Art. 103 – MP – President

 Art. 192 – MLA – Governor

 EC – has to implement the directions issued by the SC

 Ensure that the election process is completed in a free and fair manner

P & VP Election Act, 1952-

 President & VP are elected by electoral college consisting of elected members of both
Parliament & State Legislatures

 System of Proportional representation

 President (Art. 55)

 Vice President (Art. 66)

 Returning Officer (sec. 3)

 Nomination of vacancy and filling-official gazette (Sec. 4)

 Public notice of intended election inviting nominations (Sec. 5)

 Scrutinizing nominations (Sec. 5E)

 Fresh election decided by EC according to the report of Returning officer (Sec. 8)

 Counting of votes and declaring election results and published in OG (Sec. 9-12)

 Central Govt. has to consult EC for making rules (Sec.21)

 Applying rules of disqualifications for MPs, MLAs

 To qualify the voter and constituencies

 Appointing Returning Officer

 Disqualification of members (Sec. 8A)

  Delegation of powers to Deputy EC and Secretary to EC

 Dist Election Officer functioned according to EC

 Approving the polling stations

 Registration and Regulation of the Political parties

 Scrutiny the nominations

 Conduct fresh poll in case of destruction of ballot box

 To ensure the right to vote

 Monitor the election expenses

State Election Commission:

 Article 243 (k) Elections of Panchayats

 The Goswami Committee considered the suggestion for appointment of a full-time

Chief Electoral Officers in States. The consensus is that Chief Electoral Officers,
when so appointed, should exclusively be entrusted with the election work and not
saddled with any other items of work.

Deputation by Election Commission:

 Section 28A treating such officers as are drafted for election duties, on deputation to
the Election Commission, disciplinary proceedings could be taken against them
directly by the Election Commission itself.

 Keeping this in view, the Goswami Committee recommends that the matter should be
further examined as to how best the Commission's control over the officers during the
election period could be made more effective and complete in all respects including
framing of charges, launching of prosecution and disciplinary proceedings against
concerned officers for breach of duty during the period of his deputation to the
Election Commission.

 placing certain restrictions on the transfer of officers connected with the election work
when the election is in prospect

POLITICAL PARTIES:

Certain Problems with regard to Political Parties-

 Mushroom growth of political parties

 Selection of candidates by political parties

  Observance of Code of Conduct by political parties

RPA II – 1951-

 PART IVA

 REGISTRATION OF POLITICAL PARTIES

 29A. Registration with the Commission of associations and bodies as political parties.

 29B. Political parties entitled to accept contribution.

 29C. Declaration of donation received by the political parties.

 PART VA

 FREE SUPPLY OF CERTAIN MATERIAL TO CANDIDATES OF RECOGNISED

POLITICAL PARTIES

 78A. Free supply of copies of electoral rolls.

 78B. Supply of certain items to candidates, etc.

THE CONDUCT OF ELECTIONS RULES, 1961-

 PART VIIA

 Contributions report, equitable sharing of time on electronic media and material to

be supplied to recognised political parties [85 A to D]

 85A. Definitions

 (c) ―political party‖ has the meaning assigned to it in clause (f) of sub-section (1) of
section 2;

 (d) ―recognised political party‖ has the meaning assigned to it in the Election
Symbols (Reservation and Allotment) Order, 1968.

 85B. Form of contributions report.—The report for a financial year under sub-
section (1) of section 29C shall be

 submitted in form 24A by the treasurer of a political party or any other person
authorised by the political party in this behalf, before the due date for furnishing a
return of its income of that financial year under section 139 of the Incometax Act,
1961 (43 of 1961), to the Election Commission.

 85C. Allocation of equitable sharing of time on electronic media.—

 (1) The Election Commission shall, for the purposes of allocating equitable sharing
of time on the cable television network and other electronic media under
 subsection(1) of section 39A, categories the cable television networks and electronic
media into the two separate categories

 (2) For allocating equitable sharing of time on the cable television network and other
electronic media owned or

 controlled or financed wholly or substantially by funds provided to them by the

Central Government for the purposes of this rule, ―past performance of a recognized
political party‖

 85D. Supply of material by the Government.—The Central Government shall, at

the time of any general

 election to be held for the purposes of constituting the house of the People or the
Legislative Assembly of a State provide to the Election Commission such number of
copies of electoral roll, as finally published under the

 representation of the People Act, 1950

THE ELECTION SYMBOLS (RESERVATION AND ALLOTMENT) ORDER, 1968:

 An order to provide for specification, reservation, choice and allotment of symbols at

elections in Parliamentary and Assembly Constituencies, for the recognition of
political parties in relation thereto and for matters connected therewith.

 6. Classification of political parties.—

 (1) For the purposes of this Order and for such other purposes as the Commission
may specify as and when necessity therefor arises, political parties are either
recognised political parties or unrecognised political parties.

 (2) A recognised political party shall either be a National party or a State party.

 6A. Conditions for recognition as a National party.—A political party shall be

treated as a recognized National party, if, and only

 if,— either (A) (i) the candidates set up by it, in any four or more States, as the last
general election to the House of the People, or to the Legislative Assembly of the
State concerned, have secured not less than six per cent. of the total valid votes polled
in their respective States at that general election; and

 (ii) in addition, it has returned at least four members to the House of the People at the
aforesaid last general election from any State or States

 6B. Conditions for recognition as a State party.—A political party, other than a
National party, shall be treated as a recognised
 State party in a State or States, if, and only if,— either (A)(i) the candidates set up by
it, at the last general election to the House of the People, or to the Legislative
Assembly of the State concerned, have secured not less than six per cent. of the total
valid votes polled in that State at that general election; and

 (ii) in addition, it has returned at least two members to the Legislative Assembly of
the State at the last general election to that Assembly

 6C. Conditions for continued recognition as a National or State party.—If a

political party is recognized as a National party under paragraph 6A, or as a State
party under paragraph 6B, the question whether it shall continue to be so recognized
after any subsequent general election to the House of the People or, as the case may
be, to the Legislative Assembly of the State concerned, shall be dependent upon the
fulfilment by it of the conditions specified in the said paragraphs on the results of that
general election.

 8. Choice of symbols by candidates of National and State parties and allotment

 9. Restriction on the allotment of Symbols reserved for State parties in States where
such parties are not recognised

 10. Concessions to candidates set up by a State party at elections in other States or

Union territories

 14. Power of Commission to issue instructions to unrecognised political parties for

their expeditious recognition of fulfilment of conditions specified in 4[paragraph 6A
or paragraph 6B].—The Commission may issue for the benefit of unrecognised
political parties such instructions as it may think necessary for their expeditious
recognition when they have 4[fulfilled any of the conditions for such recognition
specified in paragraph 6A or paragraph 6B.]

 15. Power of Commission in relation to splinter groups or rival sections of a

recognised political party

 16. Power of Commission in case of amalgamation of two or more political parties

 16A. Power of Commission to suspend or withdraw recognition of a recognised

political party for its failure to observe Model Code of Conduct or follow lawful
directions and instructions of the Commission

 17. Notification containing lists of political parties and symbols

 18. Power of Commission to issue instructions and directions.

Registration of Political Parties:

 Sec. 29A of the RPA, 1951

 The Goswami Committee took note of that before insertion of the provisions in the
Representation of the People Act, 1951 in 1988 (vide section 29A) the registration
and recognition of political parties were fully regulated by the Election Symbols
(Reservation and Allotment) Order, 1968 which is operated by the Election
Commission.

 The powers of the EC in regard to registration of political parties under the Symbols
Order has been taken away. The Election Commission has to apply the new
provisions for the registration of political parties.

Regulating Political Parties-

 Urgent need to regulate the proliferation of political parties

 Small groups of people to form political parties by making only a simple declaration

 In its 2001 report, the National Committee to Review the Working of the
Constitution states that ―it is a desirable objective to promote the progressive
polarisation of political ideologies and to reduce less serious political activity.‖

 According to the Election Commission, a large number of non-serious parties create

excessive load on the electoral system. Of the more than 1100 parties registered with
the Election Commission in 2009, only about 360 actually contested the general
election that year. The Commission also states that part of the problem is that there is
no specific provision to de-register a party.

 The National Commission to Review the Working of the Constitution adds that while
proliferation of smaller parties creates ―confusion‖, any tightening of regulation on
the subject must also take into account ―the need to reflect the aspirations of a plural
society.‖

 Commission recommended that ―the rules and by-laws of the parties seeking
registration should include provisions for:

 A declaration of adherence to democratic values and norms of the Constitution in

their inner party organisations,

 A declaration to shun violence for political gains.

 A declaration not to resort to casteism and communalism for political mobilisation,

but to adhere to the principles of secularism in the achievement of their objectives,

 A provision for party conventions to nominate and select candidates for political
offices at the grass root and State levels
 A code of conduct (which each political party should evolve for itself),

 Some institutional mechanism for planning, thinking, and research on crucial socio-
economic issues facing the nation and educational cells for socialising their party
cadres and preparing them for responsibilities of governance,

 Implementation of legal provisions regarding representation to women and weaker

sections of society in party offices and in candidacy for elections to Houses of
Legislatures‖

Auditing of Finances of Political Parties-

 The high cost of elections provides a logic for corruption in the public arena. This
affects not only candidates, but parties as well.

 In an order dated March 27, 2003, the Election Commission of India issued an order,
in pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples
Union for Civil Liberties & Another Vs. Union of India case, that candidates for
electoral office must submit an affidavit disclosing his assets and liabilities. This
order, however, does not apply to political parties.

 The 2004 report of the Election Commission declared that political parties should be
required to publish their accounts (or at least an abridged version) annually for
information and scrutiny of the general public and all concerned, for which purpose
the maintenance of such accounts and their auditing to ensure their accuracy is a pre-
requisite.

 The auditing may be done by any firm of auditors approved by the Comptroller and
Auditor General. The audited accounts should then be made public.

 The Election and Other Related Laws (Amendment) Bill, 2002 (introduced in Lok
Sabha on 19th March, 2002) sought to introduce section 29D in the Representation of
the People Act, 1951 in this regard.

 In 2001 the National Commission to Review the Working of the Constitution

recommended that ―audited political party accounts like the accounts of a public
limited company should be published yearly with full disclosures under
predetermined account heads‖.

 As per Vohra Committee Report, All political parties should have open audited
accounts which must be published annually

 The Law Commission, in its 1999 report, recommended steps be taken to amend the
Representation of the People Act, 1951, to insert a new section 78A requiring the
maintenance, audit and publication of accounts by political parties.
Facilities to Recognised Political Parties –

 Indrajit Gupta Committee Report – 1998

 If National Party, allotted national head quarters in National capital New-Delhi with
suitable accommodations

 It should be rent-free accommodations

 One rent-free telephone with STD facility

 State Party – similar facilities in St. HQ

 At the time of election, NP & SP may be granted sufficient free air time on the State
owned Doordharsan & All India Radio for propaganda and election related
programmes

 The same extended to other Pvt. Channels and Cable TVs

Monitoring the Electoral Expenses of Political Parties:

 1998-Indrajit Gupta Committee Report

 Committee recommended that the regulatory measures so as to bring transparency &

monitoring of excessive expenses

 The State funding to recognised political parties is recommended for curbing the role
of money power (particularly black money) in election

 No political party which has failed to submit its annual return for the previous
assessment year under the Income Tax Act should be eligible for any State funding

 Each political party receiving State subsidy should also file a complete account of its
election expenditure during the election period, at every general election, to the ECI,
as observed by the SC in the case of Common Cause v. Union of India (AIR 1996
SC 3081)

 The large monetary resources do not sway or cloud the rational thinking and judgment
of electors with extravagant and ostentatious use of money power placing the parties

 Candidates with lower financial resources at a disadvantageous position, certain

regulatory measures are considered essential

Regulatory measures in form of reasonable restrictions -

 Restrictions on

 Wall writings,
 Display of cut-outs, hoardings, banners

 Hoisting of flags

 Use of more than a specified number of vehicles

 Holding of public meetings beyond specified hours

 Display of posters at places other than those specified by district or electoral

authorities

Famous Quotations –

 ―Political parties are voluntary associations of citizens of India and the very purpose
of formation of such associations is to take up and pursue political activities with the
ultimate object of achieving or sharing State power‖

 ―Political Parties are basically the representatives of the Indian Citizenry, in essence
they constitute the foundations of democratic governance‖

 ―Political parties are being politically viable and also financially viable too‖

 ―Public funding of political parties is also in keeping with the Declaration on Free and
Fair Elections adopted unanimously‖

 ―Establish the conditions for competition in legislative elections on an equal basis‖

 ―Regulate the funding of political parties and electoral campaigns, ensure the
separation of party and State and establish the conditions for competition in legislative
elections on equal basis‖

 Each political party receiving State subsidy should also file a complete account of its
election expenditure during the election period, at every general election, to the ECI,

 ―Each political party receiving State Subsidy should file a complete account to the
Election Commission of India of its election expenditure during the election period‖

 ―Any public funding of political parties has to be combined with such regulatory
measures as may bring complete transparency in the financial management of party
funds however raised‖

Qualifications and Disqualifications:

Of Elections for Parliament and State Legislatures

Candidates-

 Candidates who are to be elected to the electoral office by the electorate.

 He must acquire the legal status of candidacy/candidature

 Nomination process plays a crucial role in acquiring this legal status (competent
individuals are accepted as candidates by the concerned authorities)

 This competence (Qualifications and Disqualifications) has two sources –

Constitution & Statutory like RPA of 1951

 Goal: principle of purity

Sources-

 Constitution of India

 Articles 84, 102 & 103 (MP)

 Articles 173, 191 & 192 (MLA)

 Statutory Provisions (RPA II-1951) - PART II

 QUALIFICATIONS AND DISQUALIFICATIONS

 CHAPTER I.—Qualifications for Membership of Parliament

 3. Qualification for membership of the Council of States.

 4. Qualifications for membership of the House of the People.

 CHAPTER II.—Qualifications for Membership of State Legislatures

 5. Qualifications for membership of a Legislative Assembly.

 5A. Qualifications for membership of Legislative Assembly of Sikkim.

 6. Qualifications for membership of a Legislative Council.

 CHAPTER III.—Disqualifications for Membership of Parliament and State

Legislatures

 7. Definitions.

 8. Disqualification on conviction for certain offences.

 8A. Disqualification on ground of corrupt practices.

 9. Disqualification for dismissal for corruption or disloyalty.

 9A. Disqualification for Government contracts, etc.

 10. Disqualification for office under Government company.

 10A. Disqualification for failure to lodge account of election expenses.

 11. Removal or reduction of period of disqualification.

Constitution Mandate for MP:

 Art.84. Qualification for membership of Parliament.-

(a) is a citizen of India, and makes and subscribes before some person authorised in
that behalf by the Election Commission an oath or affirmation according to the form
set out for the purpose in the Third Schedule;

(b) is, in the case of a seat in the Council of States, not less than thirty years of age
and, in the case of a seat in the House of the People, not less than twenty-five years of
age; and possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament.

 Art.102. Disqualification's for membership.-

 (1) A person shall be disqualified for being chosen as, and for being, a member of
either House of Parliament-

 (a) if he holds any office of profit under the Government of India or the Government
of any State, other than an office declared by Parliament by law not to disqualify its
holder;

 (b) if he is of unsound mind and stands so declared by a competent court;

 (c) if he is an undischarged insolvent;

 (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a

foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;

 (e) if he is so disqualified by or under any law made by Parliament.

 Explanation- For the purposes of this clause a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for such State.

 (2) A person shall be disqualified for being a member of either House of Parliament if
he is so disqualified under the Tenth Schedule.

 Art.103. Decision on questions as to disqualifications of members.- (1) If any

question arises as to whether a member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause (1) of Article 102, the
question shall be referred for the decision of the President and his decision shall be
final.
 (2) Before giving any decision on any such question, the President shall obtain the
opinion of the Election Commission and shall act according to such opinion.

 Art.173.Qualification for membership of the State Legislature.- A person shall not

be qualified to be chosen to fill a seat in the Legislature of a State unless he -

(a) is a citizen of India, and makes and subscribes before some person authorised in
that behalf by the Election Commission an oath or affirmation according to the form
set out for the purpose in the Third Schedule;

(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years
of age and in the case of a seat in the Legislative Council, not less than thirty years of
age; and possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament.

 Art.191.Disqualifications for membership.- (1) A person shall be disqualified for

being chosen as, and for being, a member of the Legislative Assembly or Legislative
Council of a State-

(a) if he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court; if he is an

undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a

foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

 Explanation.- For the purposes of this clause, a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for the Union
or for such State.
(2) A person shall be disqualified for being a member of the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth Schedule.

 Art.192. Decision on questions as to disqualifications of members.- (1) If any

question arises as to whether a member of a House of the Legislature of a State has
become subject to any of the disqualifications mentioned in clause (1) of Article 191,
the question shall be referred for the decision of the Governor and his decision shall
be final.
 (2) Before giving any decision on any such question, the Governor shall obtain the
opinion of the Election Commission and shall act according to such opinion.

Constitutional Qualifications:

 Citizenship

 Age

 Oath/Affirmation

 (Constitutional Amendment of 1963 – additional qualification for candidates – an

oath/affirmation of allegiance to the Constitution and to uphold the sovereignty and
integrity of India at any time after the filling the nomination paper, but before the date
of scrutiny of it)

 Made before Returning Officer (once is enough)

 Hussain Khan v. S. Nijalingappa case – while under the notification of EC the O/A
had to be made before the Returning Officer of the particular constituency

Statutory Qualifications:

 Elector

 (a person whose name is entered in the electoral roll of the constituency for the time
being in force)

 Sec. 33(5) gives 3 options (presentation of nomination paper and its validity)

 (i) a copy of electoral roll of constituency

 (ii) a copy of relevant part of ER where his name appears

 (iii) a certified copy of relevant entry in ER

 PH Jagat Singh v. PH Narsibhai held that filing of corrigendum without original

entry (ER) does not fulfill the requirement.

 Caste in case of Reserved Constituencies

 Reserved for SC/ST

 According to Constitution (Art. 342) wide importance to terms tribe and tribal
community- Presidential Order is final

 Art. 341 – Constitution Scheduled Castes Order, 1950 as modified by the SC/ST
(Modification) Order, 1956 – that particular caste of tribe mentioned in this list
 If inter-caste marriage or conversion of religion, 3 factors have to be considered

 The reactions of the old body, intentions of the individual himself and rules of the
new order

Women Reservation:

 1993 - A random one third of village council leader in gram panchayat to be reserved
for women (73rd Amd ex: SC/ST women)

 Women's Reservation Bill (108th Consti Amd Bill)

 Bill was first introduced in the Parliament in 1996 by the H.D. Deve Gowda
government – proposes to amend the Constitution of India to reserve 33% of all seats
in the the Lok Sabha and in all state Legislative Assemblies for women on rotation
basis & not suggest on caste basis

 Rajya Sabha passed the bill on 9/3/2010 as of now bill is pending -LS

 Reservations to women are matters of right and not of charity

 The opponents (mostly men) it would only perpetuate the gender inequality and not
solve it. A reservation will only fill the halls of Parliament with wives and daughters
of those unfortunate politicians whose constituencies fell under the reserved category
that year. But, Bill is an extremely important piece of legislation that has the capacity
to change the structure of Indian politics

Constitutional Disqualifications:

 Unsoundness of Mind, Insolvency and Alien

 Office of profit u/ Govt. of India or State

 Legislative mandate & administrative office are incompatible and ought not to be
intrusted to the same hands

 Exceptions -The office of Minister and Offices declared by Parliament and St

Legislatures by law not to disqualify the holders

 Biharilal v. Roshan Lal – object – a person who is elected should be free to carry his
duties fearlessly without being subjected to any kind of Governmental pressure.

 ‗Profit‘ connotes the idea of pecuniary gain for discharging duties

 Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa – SC laid down test for
finding it

 Govt. makes appointment

 Govt. has the right to remove/dismiss

 Govt. pays remuneration

 Functions carried for Govt.

 Govt. exercises any control over the performance of these functions

Statutory Disqualifications:

 Constitution does not exhaust the grounds of disqualifications

 Parliament is empowered to pass an enactment for laying down the new grounds for
disqualifications

 Conviction for an offence (disqualified for 6 years from date of such conviction +
further 6 years if sentenced to imprisonment not less than two years)

 Contract with Govt. (for supplying goods or executing any work with appropriate
government --- central govt. –MP or St govt. - MLA) ex: Govt. Contract u/A 299

 Object – Konappa v. Viswanath case

 Candidate must be party to the contract and should be in course of his trade/business
with appropriate govt. for supply of goods

 It should subsist/survive on date of scrutiny of NP

 Corrupt Practices at an Election

 Office under a Govt. Co. or Corporation

 Dismissal for corruption or Disloyalty to the State – Govt. servant – disqualified for 5
years (As per Sec. 33 (3), valid only after attaching certificate with NP)

 Failure to lodge Account of Election Expenses

 Improper rejection/acceptance of NP–u/s100 void

 Qualifications/Disqualifications decided on the basis of scrutiny of nomination u/s 36

or By Court (Sec. 100 – declaring election to be void)

Candidate‘s Identity :

 Union of India v. Association for Democratic Reforms (2002) – The elector has the
right to know his candidate u/A 19(1)(a) for exercising his/her voting right in election
(Freedom of vote & Right to vote)

 In an order dated March 27, 2003, the Election Commission of India issued an order,
in pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples
Union for Civil Liberties & Another Vs. Union of India case, that candidates for
electoral office must submit an affidavit disclosing his assets and liabilities.
Reports and Challenges in Law of Elections:

 Report on Committee on Election Expenses

 Turkunde Committee Report

 Citizens for Democracy on the Suggestions of Shri Jayaprakash Narayan

 March 19, 1978

 Report of the Committee on Electoral Reforms-May 1990-Govt. of India,

Ministry of Law and Justice, Legislative Committee -Goswami Committee

 Vohra Committee Report-July 1993

 Government of India, to take stock of all available information about the activities of
crime syndicates/mafia organizations ,who allegedly had developed links with and
were being protected by some Government functionaries and political personalities.
The Committee after considering the matter presented its report to the Government of
India which laid it before both Houses of Parliament on 1 August 1995.The report
was discussed in the Houses of Parliament on 8 , 23 and 24 August, 1995.

 Committee on State Funding on Elections- December 1998- Indrajith Gupta

Committee
  1999 LCR - 170 - Reforms of Electoral Laws

 2001 NCRWC -1- PARTY SYSTEM IN INDIA_ AN AGENDA FOR REFORMS

 2001 NCRWC -2- REVIEW OF ELECTION LAWS

 2004 PROPOSED_ELECTORAL_REFORMS

 2007 COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND

JUSTICE

 2014 LCR - 244 - Electoral Disqualification

 2015 LCR - 255 - Electoral Reforms

Challenges-

 Criminalisation of Politics

 Financing of Elections

 Conduct and Better Management of Elections

 Regulating Political Parties

 Auditing of Finances of Political Parties

  Adjudication of Election Disputes

 Review of Anti-Defection Law

 Election Offences

Criminalisation of Politics-

 Disclosure of criminal antecedents of candidates

 Eligibility of candidates with criminal cases pending against them

 Negative or Neutral Voting

 Chapter 4 of the report of the National Commission to Review the Working of the
Constitution, cites the Vohra report as follows: ―The nexus between the criminal
gangs, police, bureaucracy and politicians has come out clearly in various parts of the
country‖ and that ―some political leaders become the leaders of these gangs/armed
senas and over the years get themselves elected to local bodies, State assemblies, and
national parliament.‖

 In its report on Proposed Election Reforms, 2004, the Election Commission of India
recommended that an amendment should be made to Section 125A of the R.P. Act,
1951 to provide for more stringent punishment for concealing or providing wrong
information on Form 26 of Conduct of Election Rules, 1961 to minimum two years
imprisonment and removing the alternative punishment of assessing a fine upon the
candidate.

 The Law Commission of India Report on Reform of the Electoral Laws, 1999,
suggested that an amendment be made to the Representation of the People Act, 1951,
to insert a new section 4A after section 4 to make declaration of assets and criminal
cases pending against the candidate part of the qualifications necessary for
membership to the House of the People.

Financing of Elections:

 Official limits on campaign expenditure

 Disclosure audit of assets and liabilities of candidates

 Curbing the cost of campaigning

 State Funding of Elections

Conduct and Better Management of Elections:

 Irregularities in polling

 Proliferation of candidates
  Measures for Election Commission

 Restrictions on Government sponsored advertisements

 Restriction on the number of seats which one may contest

 Amendment of law to provide for filing of election petition even against defeated
candidates on the ground of corrupt practice

 Restrictions on opinion polls

 Prohibition of Campaign during the Last 48 Hours

 Ban on transfer of officers likely to serve elections

 False declaration in connection with elections to be an offence

 Punishment for electoral offences to be enhanced

 Restoring the cycle of biennial retirement in the Rajya Sabha/Legislative Councils

 Expenditure ceiling for election to Council Constituencies

 Misuse of religion for electoral gain by political parties

 Totalizer for counting of votes

 Re-examination of the provision of Teachers‘ and Graduates‘ Constituencies

 Victimization of officers drafted for election duties

 Disqualification for failure to lodge election expenses

Regulating Political Parties:

 Proliferation of political parties is stated as a major concern by many previous

committees. Section 29A of the Representation of the People Act, 1951, allows for
small groups of people to form political parties by making only a simple declaration.

Auditing of Finances of Political Parties-

 In an order dated March 27, 2003, the Election Commission of India issued an order,
in pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples
Union for Civil Liberties & Another Vs. Union of India case, that candidates for
electoral office must submit an affidavit disclosing his assets and liabilities. This
order, however, does not apply to political parties.

 The high cost of elections provides a logic for corruption in the public arena. This
affects not only candidates, but parties as well.
  Sections 86(6) and 86(7) of the Representation of the People Act, 1951, provide that
the High Court shall make an endeavour to dispose of an election petition within six
months from its presentation and also as far as practicably possible conduct
proceedings of an election petition on a day to day basis.

 As per report ―Ethics in Governance‖ of the Second Administrative Reforms

Commission, ―such petitions remain pending for years and in the meanwhile, even the
full term of the house expires thus rendering the election petition infructuous.

Review of Anti-Defection Law:

 Defection has long been a malaise of Indian political life.

 The Anti-Defection provisions of the Tenth Schedule of the Constitution, enacted in

1985, fixed a certain number above which group defections were permitted. The
National Committee to Review the Working of the Constitution noted that although
individual defections became rare after this, group defection were ―permitted,
promoted and amply rewarded.‖

 The 91st Amendment to the Constitution, 2003, changed this by making it mandatory
for defectors to resign their positions regardless of whether they defected as an
individual or as part of a group.

 The power to decide on questions as to disqualification on ground of defection should

vest in the Election Commission instead of in the Chairman or Speaker of the House
concerned.