Introduction

The whole process of election can be divided into four phases:

(i) Nomination of candidates;

(ii) Campaigning period;

(iii) Polling; and

(iv) Counting of votes.

In the first phase i.e., nomination of candidates, the election activities are mainly confined to those who aspire to contest as candidates of political parties and those who aspire to contest as independent candidates. ‘Nomination’ means an offering of a candidate as a contestant for any elective office. It is the duty of every candidate to satisfy himself that he fulfils every requisite qualification before jumping into election fray. Section 32 of the Representation of the People Act, 1951 envisages that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. But, Section 36(2)(b) of the said Act of 1951 provides that, if any person is suffering from any disqualification, the Returning Officer shall reject the nomination after summary inquiry.

Form of Nomination Paper to Fill Different Seats

Every aspiring candidate to fill the seat of Parliament or State Legislature has to formally offer his candidature in a form prescribed for the purpose, and in no other manner. Such forms of nomination papers are prescribed in the Conduct of Election Rules, 1961.

Section 30 of the Representation of the People Act, 1951 provides appointment of dates for nomination, etc. According to this section, as soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint,—

(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the fourteenth day after the last date for the withdrawal of candidatures; and

(e) the date before which the election shall be completed.

Section 31 of the Act provides that on the issue of a notification under Section 30, the Returning Officer shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered.

Candidates and Proposer

Basic Guidelines

• A candidate need not necessarily be an elector in the constituency from where he is contesting elections (except few exceptions);

• Every proposer subscribing the nomination of a candidate must be an elector registered in the same constituency;

• For every election to Parliament or State Legislatures (except Jammu and Kashmir State Legislature), each and every nomination of a candidate must be subscribed by a prescribed number of proposers.

• It was held in R.K. Bose v. Binod Kanungo,¹ that under the law, a Government servant cannot contest an election to Parliament or a State Legislature, but there is no bar under the law prohibiting a Government servant from proposing the nomination of a candidate.

Now the question arises, why a candidate needs proposers to file nominations? The answer is very simple, the underlying idea of prescribed proposers subscribing to a nomination is that there are certain electors in the constituency who desire him to be chosen as their representative and his nomination has come from the constituency itself. But, under the law the proposers of a candidate must also vote for him at the time of the poll.

How many proposers required for the nomination of a candidate?

Number of Proposers Required for Nomination

For the House of the People and State Assemblies

Before the amendment of Section 33(1) of the Representation of the People Act, 1951 in the year 1996, only one proposer was required to subscribe to the nomination of a candidate for an election to the House of the People or to the State Assemblies. But, when the new provisions have been inserted by the Representation of the People (Amendment) Act, 1996, to the effect that whereas only one proposer shall be sufficient to nominate a candidate who is set up by a recognised party at an election, at least ten proposers shall be required to subscribe the nomination of a candidate who is set up by an unrecognised political party or who stands as an independent candidate. The need for this amendment was to curb the nomination of frivolous candidates.

For the Council of States and Legislative Councils

According to Section 39(2)(aa) and the proviso to Section 33(1) of the Representation of the People Act, 1951, in case of any election to the Council of States or to a State Legislative Council, every nomination paper of a candidate shall be subscribed by ten per cent of the elected members or of the members of the Legislative Assembly of a State or of the members of

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the Electoral College of a Union Territory, as the case may be, as ten members concerned, whichever is less, as proposers. e.g.,

Therefore, it is quite clear that, where the membership strength of the State Assemblies exceeds 100, only 10 proposers are required.

Requirements of the Valid Nomination

For a candidate to be validly nominated so that his nomination does not suffer from any mistake or defect at time of scrutiny, his nomination must fulfil following requirements:—

Discuss the requirements of the valid nomination?

• The candidate must be ‘qualified’ under the Constitution and the law;

• The candidate must not be ‘disqualified’ under the Constitution and the law enacted by Parliament;

• The nomination must be made in the prescribed Form of the nomination paper as mentioned above in this chapter;

• Required number of proposers must subscribe the nomination paper;

• The nomination paper must be signed by the candidate and each of the proposers at the appropriate places;

• Receipt showing the requisite security deposit must be accompanied with the nomination paper;

• In case a candidate belongs to a Scheduled Caste or Scheduled Tribe, a certificate issued from the competent authority showing the same, must be accompanied with the nomination form, where—

— he is contesting from a reserved seat; and

— he is claiming concession in the matter of his security deposit for contesting election from a general constituency.

• If the candidate is contesting from a different constituency, the complete copy of—

— current electoral roll; or

— the relevant part thereof; or

— a certified copy of the relevant copy of the relevant entries, in such electoral roll in which the name of the candidate is registered, must be accompanied with the nomination paper.

• In case a candidate was dismissed from Government service and five years have not passed since the date of his dismissal, the nomination paper must also be accompanied by a certificate issued from the Election Commission in terms of Section 9 of the Representation of the People Act, 1951, which provides ‘disqualification for dismissal for corruption or disloyalty’.

• The nomination paper must also be accompanied by the information with regard to his conviction, if any, in the duly verified proforma prescribed by the Election Commission for this purpose;

• The nomination paper duly accompanied by the aforesaid documents must be presented to the Returning Officer or any authorised Returning Officer;

• The candidate must also make and subscribe the requisite oath or affirmation, as prescribed under the Constitution, after the presentation of his nomination paper to the Returning Officer.

Sections 33(1) to 33(6) of the Representation of the People Act, 1951 provides the details of ‘presentation of nomination paper and requirements for valid nomination’.

(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o’clock in the forenoon and three o’clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:

Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday:

Provided also that in the case of a local authorities’ constituency, graduates’ constituency or teachers’ constituency, the reference to ‘an elector of the constituency as proposer’ shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.

(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the Returning Officer shall be in such form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and—

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday.

(2) in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in Section 9 has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:

Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the Returning Officer at the time of scrutiny.

(6) Nothing in this Section shall prevent any candidate from being nominated by more than one nomination paper:

Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same constituency.

Discuss the disclosure to be made by the candidate.

Disclosure by the Candidate

(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past—if any, whether he is punished with imprisonment or fine.

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependents.

(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.

(5) The educational qualifications of the candidate.

Article 19(1)(a) of the Constitution and ‘Right to know’ about the candidates contesting elections.

Rejection of Nomination Paper

Invalid Nomination

Before August, 1996, a candidate had no restriction in regard to the number of constituencies from which he could contest elections. In August, 1996, Clause (7) in Section 33 of the 1951-Act was inserted and through this amended law, restriction was imposed. Now a candidate cannot be nominated from more than two Parliamentary constituencies, whether the general election is held simultaneously or not from all Parliamentary constituencies. Likewise, he cannot be nominated from more than two Assembly constituencies. Section 33(7) of the Representation of the People Act, 1951 provides:

A person shall not be nominated as a candidate for election,—

(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies, which are held simultaneously, from more than two such Assembly constituencies;

(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;

(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.

Presentation of Nomination Paper and Preliminary Scrutiny by Returning Officer

How the preliminary scrutiny of the nomination paper to be made by Returning Officer?

What do you mean by the scrutiny of nomination papers by the Returning Officers? Discuss the provisions briefly and explain when the Returning Officer can reject the nomination papers?

At an election for a valid nomination, every candidate is bound to deposit security Do you agree?

Section 33(4) of the Representation of the People Act, 1951 provides that—

“On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:

Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be over-looked”.

In the preliminary scrutiny, the Returning Officer is required to check and satisfy himself that the name of the candidate and names of the proposers and their electoral roll numbers as given in the nomination paper are identical as entered in the relevant electoral roll. But, if the name and electoral roll number of the candidate and of his proposers are the same as entered in the relevant electoral roll, the Returning Officer has no jurisdiction under Section 33(4) to permit correction of any entry either in the electoral roll or in the nomination paper.

The main reason behind the preliminary scrutiny is—

— to avoid any objection on the different grounds at the later stage of scrutiny of nominations;

— the Election Commission has instructed the Returning Officers that they should remind the candidates by means of written memoranda where they find that any candidate has not produced the copy of the relevant electoral roll or any other required documents.

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Security Deposits

For a valid nomination at an election, every candidate is bound to deposit a specified sum, commonly known as ‘security deposit’.

Section 34 of the Representation of the People Act, 1951 provides that,

(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited,—

(a) in the case of an election from a Parliamentary constituency, a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees; and

(b) in the case of an election from an Assembly or Council constituency, a sum of five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of two thousand five hundred rupees:

Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.

(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that sub-section unless at the time of delivery of the nomination paper under sub-section (1) or, as the case may be, sub-section (1A) of Section 33 the candidate has either deposited or caused to be deposited that sum with the Returning Officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury.

Prior to 1996, the amount of security deposit was only Rs. 500 for an election to the House of the People, and Rs. 250 for an election to the Council of States or for an election to a State Legislative Assembly or State Legislative Council. These amounts of security deposit were too low and encouraged large number of frivolous candidates without any serious intention to contest in the election. Therefore, amounts of security deposit was raised in 1996 to maintain the true spirit of democracy.

However, if a candidate belongs to Scheduled Caste or Scheduled Tribe, the amounts of security deposit to be paid by him would be half of the normal security deposit, irrespective of the fact whether he is contesting election from a general or reserved constituency.

In case a candidate filed more than one nomination paper in the same constituency, he is required to make only one security deposit. But, when he is contesting elections from more than one constituency, he shall have to make separate security deposits in each constituency. The security deposit is to be made by a candidate:

— in cash with the Returning Officer at the time of the delivery of his nomination paper; or

— advance in the Reserve Bank of India; or

— in a government treasury.

When the deposit has been made in the Reserve Bank or in a government treasury, a receipt issued by the bank or the treasury must be enclosed with the nomination paper.

How the notice is issued by the Returning Officer after nomination received by him?

Notice of Nominations

It is the duty of the Returning Officer under Section 35 of the Representation of the People Act, 1951, to issue ‘public notice’ of each of the nomination received by him.

The above-mentioned section says that, the Returning Officer shall, on receiving the nomination paper, inform the person or persons delivering the same on the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer.

Constituency Form used for notice

Parliamentary constituency Form 3A

Assembly constituency Form 3A

Council of States constituency Form 3B

State Legislative Council constituency Form 3B

Council constituency Form 3C

The notice contains:

• Name of each candidate;

• Age of the candidate;

• Address;

• Party affiliation;

• Electoral roll number; and

• Proposers and their electoral roll numbers.

The notice is issued to provide due information to the general public about candidates in elections.

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Effect of improper rejection of nomination paper

Scrutiny of Nominations

Therefore, the Election Commission has suggested all the Returning Officers, not to reject any nomination paper unless they are sure that the ground of rejection is legally sustainable.

Who are the persons authorised to attend at scrutiny of nominations?

Presence of Authorised Persons at Scrutiny of Nominations

Section 36(1) of the Representation of the People Act provides that,—

“On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint; and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33”.

Thus, each candidate can be represented by four persons (including himself) on the date fixed for the scrutiny of nominations, viz.,

(i) the candidate;

(ii) election agent;

(iii) one proposer; and

(iv) one person duly authorised in writing by the candidate.

This section also provides that, at the time of scrutiny of nominations, the Returning Officer is bound to provide all reasonable facilities to the candidate and their representatives. It should be noted that the absence of the candidate and his representatives at the time of scrutiny of nominations is not a ground for rejection, therefore, it is not a legal necessity that a candidate and/or his representatives should be present at the time of scrutiny of nominations. But the presence of candidate or his representative is desirable, so that when the objection is raised with regard to the nomination paper there is no one to rebut it. In this way, if the Returning Officer finds substance in the objection raised in relation to nomination of any candidate, he must be justified in rejecting the same.

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How the scrutiny of nominations conducted?

Conduct of Scrutiny

Section 36(2) of the Representation of the People Act, 1951, empowers, that,—

The Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:—

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that my be applicable, namely:—

Articles 84, 102, 173 and 191,—

Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

During the scrutiny of nominations, an objection with regard to the validity of nomination paper of a candidate can be raised either by any of the candidates or by any of their proposers, election agents, or authorised representatives present. Even, such objection can be raised by the Returning Officer, if he has any doubt in respect of any nomination paper.

The enquiry of a nomination paper by the Returning Officer into the question of validity or otherwise, is a summary enquiry and the rival candidates have not to be given legal right to lead evidence as in a judicial proceedings.

Rejection of Nomination

Discuss the grounds on which the Returning Officer can reject a nomination paper.

Under the law the Returning Officer is authorised to reject the nomination of a candidate on the following grounds:—

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(i) If the candidate either is not qualified or is disqualified for being chosen as member of Parliament or, as the case may be, of the State Legislature, on the date fixed for the scrutiny of nominations; or

(ii) If there has been failure to comply with any of the provisions of Section 33, relating to the presentation of nomination papers in the prescribed form; or

(iii) Failure in depositing requisite security in the manner prescribed under Section 34; or

(iv) If it is found that the signature of the candidate or any of his proposers on the nomination paper is not genuine, as provided under Section 36(2).

Section 36(3) says that,—

Nothing contained in Clause (b) or Clause (c) of sub-section (2) of

Section 36 shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

Therefore, if a candidate has filed more than one nomination paper, all of his nomination papers shall be scrutinised individually. If any of his subsequent nomination papers is found not to be valid, it does not affect his candidature as such, as at least one nomination paper should be declared valid, to be nominated validly. In the light of this reason the Election Commission has instructed all the Returning Officers that they should scrutinise all the nomination papers filed by a candidate together, even if they have been filed on different dates and times.

Section 36(4) provides that,—

The Returning Officer shall not reject any nomination paper on the ground of any defect which is not a substantial character.

This means, the Returning Officer should be sure of the ground on which he decides to reject a nomination paper, as any improper rejection of a nomination paper has a very serious consequence as mentioned in this chapter.

Section 36(6) of the Act envisages,—

The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

Defects of Substantial Character

What do you mean by defects of substantial character?

With the decisions of the Apex Court, the law has crystalised that there are some defects which are curable at the stage of scrutiny of nominations and the Returning Officer can allow such defects to be rectified at that stage and are not considered to be defects of substantial character. But there are several material defects which cannot be cured at that stage and may entail rejection of the nomination paper being defects of substantial character.

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The foregoing discussions will show that:

(a) the failure to declare age in the nomination paper;

(b) failure to sign the nomination paper by the candidate or by any of his proposers in the manner prescribed;

(c) failure to comply with the requirement to produce the evidence of being a registered elector where a candidate is contesting election from a different constituency; and

(d) failure to submit the written authorisation within the prescribed time and in the prescribed forms from the party where a candidate claims to have been set up by a recognised national or State political party, have been held by the Supreme Court to be defects of substantial character. There are several other defects too which have been held by the courts to be defects of substantial character.

What is effect when the candidate fails to mention the name of the constituency?

When Candidate Fails to Mention the Name of Constituency

What is effect when the candidate fails to give full address?

When Candidate Fails to Give Full Address

When Candidate Fails to Give Correct Particulars of Electoral Roll Numbers

What is the effect when the candidate fails to give correct particular of Electoral Roll Numbers (ERNs)?

Is it necessary to prepare the list of validly nominated candidates?

Preparation of List of Validly Nominated Candidates

Section 36(8) of the Act, provides that,—

“Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board”.

Such list is prepared by the Returning Officer in Form 4 appended to the 1961-Rules and a copy thereof is affixed on the notice board of his office. Under the instruction of the Election Commission, the Returning Officer has to send a copy of the list to the Chief Electoral Officer of the State by fastest means of communication. A copy of the list is also furnished to the Election Commission for its record.

How the withdrawal of candidature is made? Is it irrevocable?

Withdrawal of Candidature

Every candidate who is validly nominated has been given right to reconsider, whether he wants to contest election or not. Therefore, the law permits the withdrawal of candidature under Section 37 of the Representation of the People Act, 1951, which envisages—

(1) Any candidate may withdraw his candidature by a notice in writing shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three o’clock in the afternoon on the day fixed under Clause (c) of Section 30 to the Returning Officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate.

(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice.

(3) The Returning Officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.

As Clause (1) says, any validly nominated candidate may withdraw his candidature by giving a notice in writing to that effect upto 3.00 p.m. on the last date fixed for the withdrawal of candidatures in the programme notification issued by the Election Commission. Such last date for withdrawal of candidatures shall be the second day after the date of scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday. But here law is silent as to the time upto which the candidatures may be withdrawn on any intervening day. In this regard, the Election Commission has clarified that the withdrawal of candidatures on these days can be made during the normal working hours of the office of the Returning Officer, and not necessarily upto 3.00 p.m. on those days.

The notice for withdrawal of candidature must be given in writing and subscribed by the candidate himself in Form 5 appended to the 1961-Rules.

Section 37(1) also provides that the following persons are authorised to submit notice of withdrawal of candidature:

(a) candidate himself; or

(b) any one of his proposers; or

(c) his election agent.

Further, Section 37(1) also envisages that a notice of withdrawal of candidature must be presented only in person by any of the above-mentioned persons and it cannot be sent or communicated to the Returning Officer in any other manner.

Notice of Withdrawal Irrevocable

Section 37(2) says that, once a candidate has given a notice of withdrawal of candidature, thereafter, he has no option or discretion to withdraw or cancel his notice. Therefore, once a notice is given it is irrevocable.

Acceptance of Notice

Clause (3) of Section 37 provides that the Returning Officer shall accept the notice of withdrawal of candidature, only when he is satisfied to the genuineness of the notice as well as with regard to the identity of the person presenting the notice. Such satisfaction on the part of the Returning Officer is necessary as if he accepts any fake notice, the name of the candidate would be excluded from the list of the candidates, consequently such candidate would be deprived of his right to contest election.

Section 38 of the Representation of the People Act, 1951 envisages that,—

(1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of Section 37, the Returning Officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

(2) For the purpose of listing the names under sub-section (1), the candidates shall be classified as follows, namely:—

(i) candidates of recognised political parties;

(ii) candidates of registered political parties other than those mentioned in clause (i);

(iii) other candidates.

(3) The categories mentioned in sub-section (2), shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed.

As this section says, after the expiry of the time permitted for the withdrawal of candidatures at any election, the Returning Officer shall prepare the list of contesting candidates; i.e., the list of those validly nominated candidates who have not withdrawn their candidatures.

The list of contesting candidates is prepared in:

A copy of the prepared list is furnished to each of the contesting candidates or their election agents apart from being affixed in the office of the Returning Officer. As stated earlier, this list is also furnished to the Chief Electoral Officer and to the Election Commission.

The Election Commission has directed the Returning Officer that the alphabetical order of names of candidates should be determined according to the Devanagri script in Hindi, in case of elections to Parliament, and according to the script of the official language of the concerned State, in the case of elections to State Legislatures. Such determination should be made with reference to first letter of the name of the candidate as given by him in his nomination paper, it does not matter whether the given name is the proper name or surname.

Nomination of Candidates at other Elections

Section 39 of the Representation of the People Act, 1951 provides that,—

(1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a Union territory to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint—

(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the seventh day after the last date for the withdrawal of candidatures; and

(e) the date before which the election shall be completed.

(2) The provisions of Sections 31 to 38, excluding sub-sections (2) and (5) of Section 33 and Clause (a) of sub-section (1) of Section 34, shall apply in relation to any such election as they apply in relation to an election in any constituency:

Provided that:—

(a) any references in the said provisions to the electoral roll of the constituency shall, unless the context otherwise requires, be construed, in the case of an election by the members or the elected members of the Legislative Assembly of the State, as references to the list of members or elected members, as the case may be, of that Assembly maintained under sub-section (1) of Section 152, and in the case of an election by the members of the electoral college of a Union territory as references to the list of members of such electoral college maintained under sub-section (2) of that section;

(aa) the reference in the opening paragraph of sub-section (1) of Section 33 to “an elector of the constituency as proposer” shall be construed as a reference to “ten per cent of the elected members or of the members of the Legislative Assembly of a State or of the members of the electoral college of a Union territory, as the case may be, or ten members concerned, whichever is less, as proposers”:

Provided that where a result of the calculation of the percentage referred to in this clause, the number of members arrived at is a fraction and if the fraction so arrived at is more than one-half it shall be counted as one, and if the fraction so arrived at is less than one-half it shall be ignored;

(ab) in the case of an election to the Legislative Council of a State by the members of the Legislative Assembly of that State, Clause (a) of sub-section (2) of Section 36 shall be construed as including a reference to sub-clause (d) of Clause (3) of Article 171;

(b) any references in the said provisions to Section 30 shall be construed as references to sub-section (1) of this section; and

(c) at the time of presenting the nomination paper, the Returning Officer may require the person presenting the same to produce either a copy of the electoral roll, or part of the electoral roll, in which the name of the candidate is included or a certified copy of the relevant entries in such roll.

Consequences of improper rejection and acceptance of a nomination paper.

Nomination and Grounds for Declaring Election to be Void

The High Court with respect to the nomination shall declare election void under Sections 100(1)(c) and 100(1)(d)(i) of the Representation of the People Act, 1951, on the following grounds:—

(i) any nomination has been improperly rejected [Section 100(1)(c)]; or

(ii) the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination [Section 100(1)(d)(i)].

Case Laws

Discuss the facts and law points of Rangilal Choudhury v. Dahu Sah case.

Rangilal Choudhury v. Dahu Sah, MANU/SC/0218/1961 : AIR 1962 SC 1248

Facts:—

There was a bye-election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar Legislative Assembly from the Dhanbad Constituency. Nomination papers for the same were to be filed on or before November 8, 1958. A large number of persons filed their nomination papers on or before that date and among them were the appellant Rangilal Choudhury and the respondent Dahu Sah. The nomination paper of the respondent was rejected by Returning Officer after scrutiny on November 11, 1958.

The only ground on which the nomination paper was rejected by the Returning Officer was that the proposer nominated the candidate for election from Bihar and not Dhanbad Assembly constituency. The nomination was made on a Hindi form printed for the purpose by the Government. Unfortunately, the printed form did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People Act 1951. The heading in the specimen printed form in the Rules requires the name of the State in which the election is held to be filled in the blank space there, but in the printed form supplied to the respondent the name of the State was already printed in the heading and therefore there was no blank space in the heading of the specimen printed form.

Discuss the validity of the nomination when the proposer fails to mention the name of the constituency in the nomination paper

Issue:—

Whether the nomination paper of Dahu Sah was rightly rejected by the Returning Officer? Whether the defect can be called a defect of substantial character?

Decision:—

Election Tribunal held that the nomination paper was rightly rejected and thereafter dismissed the petition.

High Court:

The High Court in this connection referred to the evidence of the respondent who states that when his nomination paper was taken up for scrutiny, the Returning Officer compared the name in the nomination paper with those in the electoral rolls. The Returning Officer found no difficulty in tracing the names of the proposer and the candidate in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it was held that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper.

Supreme Court:

The Court observed that the provisions of Section 33(4) of the Act, which casts a duty on the Returning Officer to satisfy himself that the names and electoral roll number of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The Returning Officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the Returning Officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll number are given, it seems that the Returning Officer found no difficulty in checking that the proposer as well as the candidate are voters on the electoral roll. Therefore, the defect in columns 2 and 5 was that if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character. It is true that in this case there was a defect in filling up the blank space by the proposer inasmuch as he wrote the word “Bihar” before the words “Assembly constituency” instead of the word “Dhanbad”, which he should have done; and if there were nothing else in the form to disclose the constituency for which the nomination was being made there would have been a substantial defect in the nomination form which would justify the Returning Officer in rejecting the same. In the specimen form in the Rules, the blank space is meant for the State in which the election is being held; but because of the mistake in printing the heading in this case, the blank space could only be filled-up with the name of the constituency, and that was what was done. This name was filled in apparently but the candidate himself and not by the proposer. But equally clearly the name of the constituency was there when the proposer in his turn came to fill-up that part of the form which he had to fill. It seems that the proposer was thus mislead, as the name of the constituency was already there in the heading to write the word “Bihar” in the second blank space in his proposal instead of the word “Dhanbad” indicate the constituency. The question however is whether in these circumstances it can be called a defect of a substantial character which would justify the rejection of the nomination paper. It seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purpose of the nomination to this bye-election. The form however as put in clearly shows in the heading the particular Assembly constituency for which the election was being held. Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the “Bihar” instead of the word “Dhanbad” in the blank relating to the constituency as it was already there in the heading, it would in our opinion be not improper in the circumstances of this case to say that the proposer was nominating the candidate for the constituency which was already mentioned in the heading. Therefore that in view of the mistake that occurred in the printing of the constituency for which the election was being held was already in the heading the mistake of the proposer in putting in the word “Bihar” instead of the word “Dhanbad” which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad Assembly constituency. The Returning Officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was bye-election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper.

The Apex Court held that, the High Court was right and in the circumstances of the case for the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be up held on this further ground, which was not even urged before the Returning Officer.

Discuss the validity of the nomination when the candidate puts the mark of his thumb impression on the nomination paper which is presented to the Returning Oficer by the proposer.

Laljibhai v. Vinod Chandra, MANU/GJ/0111/1963 : AIR 1963 Guj 297

Facts:—

Shri Laljibhai Jodhabhai, the petitioner, was an elector in the Deesa Legislative Assembly Constituency of Gujarat when the last general election was held in the month of February, 1962. The Vinod Chandra Patel was a candidate who had stood for election from the said constituency. On 20th January, 1962, nomination papers were filed proposing the respondent as a candidate for the election. There were also filed four nomination papers proposing the name of Jivrajbhai Kesarbhai Desai. There were also other nomination papers filed proposing the names of other candidates for the purpose of election. Scrutiny of the nomination papers was held on 23rd January, 1962 objections were heard and after hearing the objection the Returning Officer rejected all the four nomination papers which had been filed proposing the name of Jivrajbhai Kesarbhai Desai. In giving his decision, the Returning Officer observed:

“On scrutiny of the nomination papers it is seen that the proposers in all the four nomination papers have put the mark of their impression and were presented to the Returning Officer by the candidate himself. There was no proposer present at the time of the presentation of the nomination papers in the office room of the Returning Officer. As this has not been done at the time of presentation, I could not satisfy myself as regards the identity of the proposers as required under Rule 2(2) of the Conduct of Election Rules, 1961.”The polling took place on the 23rd of February, 1962, and the respondent was declared to have been elected at the election. The petitioner filed an election petition on 9th of April, 1962, claiming that the election of the respondent was liable to be set aside.

Issue:—

Whether the nomination of Jivrajbhai Kesarbhai Desai was improperly rejected?

Decision:—

The High Court observed that, the nomination papers have been exhibited and they clearly show that the thumb marks of the proposer have not been attested as required under the Conduct of Election Rules, 1961. The thumb marks under the Rules, are required to be placed in the presence of the Returning Officer or the Presiding Officer or such other person as may be specified in that behalf by the Election Commission. The same has not been done.

The expression ‘signed’ in Section 33 of the Act can only signed by writing one’s name in one’s own handwriting except in the case of persons who are unable to write their names. In those cases the provisions set out about in
Rule 2(2) have to be complied with.

It was urged that Mashru Deva, one of the persons who had proposed the name of Jivrajbhai Kesarbhai Desai was not a person who could be regarded as one unable to write his own name and his father’s name. In the light of these observations, the High Court held that, the defect in each of the said four forms was a defect of a substantial character and all the four nomination papers of Jivrajbhai Kesarbhai Desai were rightly rejected by the Returning Officer and the petitioner is not entitled to any relief on the ground of the invalid rejection of the nomination papers that had been filed proposing the name of Jivrajbhai Kesarbhai Desai.

Ram, Ramesh and Ramu filed nomination papers for contesting election to a Lok Sabha seat. On the day of scrutiny the Returning Officer rejected Ram's nomination paper on the ground that Ram was holding an office of profit under the Government of Delhi.

Will Ram succeed in getting a relief from the High Court? Discuss.

N.T. Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422

Facts:—

During the general elections which were held in 1957, six persons including the appellant, Veluswami Thevar, respondent No. 2, Challepandian, and respondent 4, Arunachalam, were nominated for election to the Legislative Assembly of the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time of the scrutiny which was on 1st February, 1957, Challepandian raised an objection to the nomination of Arunachalam on the ground that he was the Head Master of the National Training School, Tiruchandur, which was a Government aided school, and that he was therefore disqualified under Clauses (d) and (e) of Section 7 of the Representation of the People Act, 1951 as holding an office of profit under the Government. In upholding this objection, the Returning Officer observed:

“Sir S. Arunachalam is not present at the time of scrutiny of nominations nor any authorised agent of his could take notice of the objection and file a reply. In view of the objection which has not been cleared by Sir S. Arunachalam by satisfying me that he is not holding an office of profit in a concern in which the State Government has financial interest, the objection is upheld and Sir S. Arunachalam is disqualified under Sections 7(d) and (e) of Act 43 of 1951. Accordingly his nomination is rejected”.

The five nomination papers were accepted; two of the candidates subsequently withdrew from the election; the other three went to the polls, and on 10th March, 1957, the appellant who secured the largest number of votes was declared elected.

On 18th April, 1957, Raja Nainar, respondent 1, who was not a candidate but a voter filed election petition praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one.

Election Tribunal held that the question to be decided by it was whether there was a valid nomination paper, and that to decide that, it could go into grounds other than these which were put forward before Returning Officer, in that view dismissed the application. This order was challenged by Raja Nainar in writ petition under Article 226, therein, contended that it was not competent to the Tribunal to enquire into any other grounds which had been put forwarded before the Returning Officer.

Issue:—

Whether in an election petition questioning the propriety of the rejection of nomination paper under Section 100(1)(c) of the Act, it is open to the parties to raise grounds of disqualification other than those put forward before the Returning Officer?

Decision:—

Supreme Court: A candidate may be subject to more than one disqualification and his nomination paper may be question on all those grounds. Supposing that the Returning Officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that under Section 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on these objections? According to the respondent, it is not, so that if the decision of the Returning Officer on the objection on which he rejected the nomination paper is held be bad, the Tribunal has no option but to set aside the election under Section 100(1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. It is no doubt true that if on its true construction, a statute leads to anomalous results the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute two views are possible one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies. Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a questions raised in an election petition as to about the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the Returning Officer on the materials placed before him and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in Section 36(2).

As the question has also been raised as to the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the course of an inquiry before the Election Tribunal. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted but then, it is well-settled that where there is another remedy provided, the court may properly exercise its discretion in declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in application under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceeding infructious. It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under Section 116A, and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders.

In the result, Apex Court allowed the appeals, and set aside the orders of the court below, and dismissed the writ petitions filed by the respondent.

Consequence of improper acceptance of the nomination paper

Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513

Facts:—

Eight candidates filed nominations to the UP State Legislative Assembly from Ghazipur (South East) Constituency, three withdrew their candidature and the contest was confined to the remaining five.

Vashist Narain Sharma, first respondent, having secured the highest number of votes was declared duly elected. Three electors filed a petition under Section 81 of the Representation of the People Act, 1951 praying that the election of the returned candidate to declare void and that respondent No. 2 V.N. Rai be declared to have been duly elected and in the alternative the election be declared wholly void. The election was sought to be set aside on the grounds, inter alia, that the nomination of Mahadev respondent No. 3 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected.

Issue:—

Whether the nomination of one of the rival candidates Dudh Nath was improperly accepted by the Returning Officer? Whether that affected the result of the election?

Decision:—

Election Tribunal: The Tribunal found that Dudh Nath respondent No. 4 whose name was entered on the electoral roll Gahmar Constituency Ghazipur (South East) ‘personated’ (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency Ghazipur (South East) that the Returning Officer had improperly accepted his nomination, and that the result of the election was thereby materially affected. Allegations of major and minor corrupt practices and
non-compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on these points. And held that:

“We are of opinion that the language of Section 100(1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.”

Supreme Court:

The Court observed that, the question has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand, such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law.

How this State of things can be remedied is a matter entirely for the Legislature to consider. The English Act to which we have referred lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare an opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.

The Tribunal misdirected itself in not comprehending what had to find and proceeded merely upon a mere possibility. These finding upon the matter is speculative and conjectural. The order of the Tribunal has to be set aside and Court hold that it is not prayed that the result of the election has been materially affected by an improper acceptance of the nomination, assuming that the case falls within the purview of Section 36(5) and that finding is correct.

So, the court upheld the election of the Vashist Narain Sharma and set aside the order of the Tribunal.

Case of improper acceptance of the nomination paper

Chhedi Ram v. Jhilmit Ram, MANU/SC/0205/1983 : (1984) 2 SCC 281

Facts:—

At the General election to the Uttar Pradesh Vidhan Sabha held in 1979, Jhilmit Ram was elected from the Jakhsuie constituency reserved for the Scheduled Castes. He secured 17,822 votes. Chhedi Ram runner-up secured 17,449 votes. There were four other candidates of whom Moti Ram secured 6710 votes. Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency, that his nomination has been improperly accepted and that the result of the election was materially affected.

Issue:—

Whether the nomination of Moti Ram was improperly accepted and that affected the result of the election?

Decision:—

Election Tribunal: Found that Moti Ram was a Kahar by caste and not a member of the Scheduled Castes. It rejected the evidence offered on behalf of Moti Ram that he was a Gond and not a Kahar and recorded a finding that deliberate attempt had been made to manufacture evidence to show that Moti Ram was a Gond. The Tribunal also noticed that Moti Ram himself was not prepared to enter the witness box to give evidence. Having arrived at the finding that Moti Ram’s nomination had been improperly accepted, however, the Tribunal was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been materially affected as a result of the improper acceptance of the nomination. The election petition was, therefore, dismissed.

Supreme Court:

Observed that, under Section 100(1)(d)(i) of the Representation of the People Act, 1951 the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, insofar as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. True, the burden of establishing that result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election.

The answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion by which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was improperly accepted is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the votes secured by next highest candidate it would be next to impossible to conclude that the result of the election has been materially affected. But on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probablity is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes not merely that the number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one-third, Surely, in that situation, the result of the election may safely be said to have been affected.

It does not, however, mean that whenever the number of wasted votes and whatever the margin of difference between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, Court would invariably hold that the result of the election had been affected. In an appropriate case having regard to the margin of difference between the votes secured by successful candidate and the candidate securing the next highest number of votes and the proportion which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that result of the election has been materially affected has been discharged.

The Apex Court held that, “we affirm the finding of the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes.” Appeal allowed.

Case of improper acceptance of the nomination paper

Shiv Charan Singh v. Chandra Bhan Singh, AIR 1988 SC 637

Facts:—

The appellant and 10 other candidates contested the election from the aforesaid assembly constituency. The Returning Officer declared the appellant duly elected on his having obtained majority of valid votes. Chandra Bhan Singh, respondent No. 1, filed Election Petition as an elector and another Election Petition was filed by Mukand Ram, respondent No. 2, also an elector before the High Court of Rajasthan under Section 80 of the Act, challenging the validity of the appellant’s election to the Legislative Assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning Officer which materially affected the result of the election of the returned candidate. The appellant appeared and contested both the election petitions, and pleaded before the High Court that Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper. He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya Lal’s nomination paper. Both the election petitions were consolidated and tried jointly by the High Court. The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of the their cases before the High Court. The High Court by its order dated 22nd October, 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning Officer. The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes, the result of the election was materially affected. On these findings the High Court declared the appellant’s election void and directed the Election Commission to hold fresh election.

Deena, Deevan and Dudhnath were the candidates at an election for Gujarat Legislative Assembly.

Issue:—

Whether the improper acceptance of nomination paper by the Returning Officer could be a ground to declare election void under this facts and circumstances?

How will you decide this election petition? Refer to the principles of election law relating to the consequence of improper acceptance of a nomination paper.Decision:—

The Apex Court observed that, the election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returning candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes.

In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden, howsoever difficult it may be, is discharged, the election cannot be declared void. The court relied on the principle laid down in Cheddi Ram’s case (MANU/SC/0205/1983 : AIR 1984 SC 146), as what should be the difference of votes secured by the successful candidates and next successful candidate to materially affect the result of the election, and held that, the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times, while the difference in Cheddi Ram’s case was 20 times. Further in Cheddi Ram’s case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes. On these facts even on the basis of Cheddi Rams case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant’s election. In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law.

The election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper of Kanaiya Lal. Therefore, the election of the returned candidate could not be declared void.

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