"Democracy' and 'free and fair election' are inseparable twins. There is almost an inseverable umbilical cord joining them. The little man's ballot and not the bullet of those who want to capture power is the heartbeat of democracy. Path of the little man to the polling booth should be free and unhindered, and his freedom to elect a candidate of his choice is the foundation of a free and fair election.
Justice, Arijit Pasayat, Supreme Court of India.
Going back to dawn of republicanism in our soil, after first general elections in independent India in the year 1951-1952 the Election Commission of India mentioned in its Report viz.
"Previously republican forms of government existed in many parts of ancient India. There were numerous references to such governments in the Buddhist Literature. Even in the 4th Century B.C.; there was a republican federation known as Kshudrak-Malla Sangha which offered strong resistance to Alexander the Great. The Greeks had left descriptions of many other republican States in India, some of which were described by them as pure democracies while others were said to be "aristocratic republics".
This statement in the then Report of Election Commission of India clearly reminds that the present electoral system dates back to ancient history and polity of India i.e., vedic age, Vaishali Ganarajya, Emperiarism of Kalinga and Magadha and golden era of Guptas and Mauryas.
The Supreme Court in the case of Lakshmi Charan Sen v. Akm Hassan Uzzaman, AIR 1985 SC 1233 described the election as "oasis of democracy".
The masterly words "DEMOCRATIC REPUBLIC AND WE THE PEOPLE OF INDIA" in the PREAMBLE of our noble Constitution are enough to co-relate election of public officials with the people of India. In each and every country election and its process is the running stone behind the Democracy.
"The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the mode of election".1
The Supreme Court in a landmark case of Kesavananda Bharati v. State of Kerala, MANU/SC/0445/1973 : AIR 1973 SC 1461 held that "Democracy is one of the inalienable features of the Constitution of India and forms of its basic structure.
In an another case it was held by the Supreme Court that:
"Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, making his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions".2
'Elections' in India are not a new phenomena, introduced in our system during the British period. Even the second phase of urbanisation (around 600 B.C.) of Indian sub-continent is filled with the references to republics in the form of 'Oligarchy' prevailing in various parts of this country. The ancient historians have recorded that the people chose their own heads of Vajji (Modern Vaishali District in Bihar). In the phase of transition from Ancient to Medieval India, 'Gopala', founder of 'Pala Dynasty' of Bengal and Bihar was elected by the people. Even in South India, Uttarmerur Inscription of the great Chola King 'Parantaka I' gives information about the 'local elections', its procedures and eligibility of the candidates.
Even after the republics were absorbed within empires, the system of regulating the local corporate life through popular assemblies survived for a very long time. Almost every conqueror left the conquered States and communities to carry on their administrative social system in their own way. During the Sultanate period, the affairs of the trade corporations and the villages continued to be carried by the popular assemblies. The British period has witnessed the centralised administrative and legal system. This is the manifestation of destruction of village industries on the one hand and beginning of a modern communication system on the other hand.
The establishment of the Parliamentary Democratic form of government by the Constitution of India on the basis of adult franchise is like the rejoining of the historical thread. Franchise on a liberal scale had been common in various parts of ancient India, and by providing for universal adult suffrage, the present India achieves success of its electoral aspirations on a National, State, Block and Panchayat Level.
The election procedure, we have right now in India, having its evolution in the early part of the twentieth century, with the British Made Indian Councils Act, 1909 where the elective element for the natives in the legislative bodies in
____________
1. N.P. Ponnuswami v. Returning Officer, Namakkal, MANU/SC/0049/1952 : AIR 1952 SC 64.
2. Mohinder Singh Gill v. Chief Election Commissioner, MANU/SC/0209/1977 : AIR 1978 SC 851.
British India found its introduction. The legislative bodies created under the Indian Councils Act, 1909 continued upto 1915, when the Government of India Act, 1915 superseded the earlier Act. This Act of 1915 was further amended by the Government of India Act, 1919 to bring in the reforms, known as
Montagu-Chelmsford Reforms. Under this Act, a 'bicameral legislative' body was created at the Centre-the Council of State as the Upper House, and the Central Legislative Assembly as the Lower House. For the first time, the elected members constituted the majority in each of the Houses. Though, the Act provided for direct elections from the constituencies to both the Houses, only a limited number of persons were granted the right to vote on the basis of certain qualifications. This Act also fell far short of the demands and expectations of the Indian people. As a result, the British Parliament passed the Government of India Act, 1935. This Act envisaged a federal set-up of the British provinces and the Indian Princely States. It proposed to set-up a bicameral federal legislature, which consisted an Upper House, called the Council of State, and the Lower House, called the House of Assembly or Federal Assembly.
But the federal scheme as envisaged under the Government of India
Act, 1935 never became operational and remained a provision only on paper. In fact, the Act itself had foreseen such eventuality and had made transitory provisions in the Ninth Schedule of such Act in relation to, inter alia, the setting-up of a transitional Indian Legislature until the establishment of the proposed federation.
After the end of Second World War in 1945, Labour Party under the leadership of Clement Atlee came to power in Britain. The new government was more positive and reconciliatory towards the demands of the Indian people for freedom. In August 1946, the elections to the 'Constituent Assembly' of India were held and Congress emerged as the largest party. Pandit Jawaharlal Nehru, became de facto Prime Minister of Dominion India on September 2, 1946. On December 13, 1946, Pandit Nehru moved resolutions terming it as the 'Objective Resolutions', setting out the agenda and goal of the Constituent Assembly. On August 29, 1947, the Constituent Assembly set up a seven-member Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar and consisting of Krishnaswami Ayyar, N. Gopalaswami Ayyangar, K.M. Munshi, Md. Saadulla, B.L. Mitter and D.P. Khaitan, to examine Draft Constitution prepared by the office of the Constituent Assembly under Sir B.N. Rau and to revise it in the light of the directions which the Assembly had given from time to time in the course of its deliberation. The Constituent Assembly declared January 26, 1950 as the date of commencement of the Constitution, though some of the provisions, like citizenship of India, setting of the Election Commission of India, and certain transitory provisions, like, Articles 379 and 380 providing for interim Parliament and President of India, were bought into force on
November 26, 1949, vide Article 394. Therefore, on January 26, 1950, India became an Independent Sovereign Democratic Republic, ceasing to be a dominion within the British Empire and governed by its own Constitution 'given by the people of India for themselves'. On that momentous day, the Constituent Assembly transformed itself, under Article 379, into the provisional Parliament of India and functioned in that capacity till its last sitting on
March 5, 1952 whereafter the first House of the People was duly constituted on April 2, 1952 and the Council of States (Rajya Sabha) was constituted on
April 3, 1952 on the basis of the first general elections held under the Constitution between October 1951 and March 1952 after the passing of the Representation of the People Act, 1950 and 1951 respectively.
Thus the Constitution and the Representation of the People Acts operate as the fundamental documents for election system. The governmental organs owe their origin to the Constitution and derive their authority from, and discharge their responsibilities within the framework of election procedure in the Constitution.
Webster's dictionary defines 'election' as "the act or process of choosing a person for an office, position or membership by voting".
According to Black's law dictionary 'election' means choice of persons to fill public office means the expression by, vote of the will of the people or of a numerous body of electors.
'Legal glossary' of the Government of India says that, election in law is when a man is left to his own free will to take or do one thing or another, which he pleases; it is more frequently applied to the choosing between two rights by a person who drives one of them under an instrument in which an intention appears that he should not enjoy both. The word 'election' is also commonly applied to the choosing of representatives.
Section 2(d) of the Representation of the People Act, 1951 defines the term 'election' as "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".
The word 'election' implies persons who are to elect, (called the 'electors'), the office to which election is to be made, and the person who is to be elected (called the 'candidate'). The expression 'election' means selection of a person by vote or even otherwise. When a person is nominated by way of selection on the basis of a given criteria from amongst several persons, then in the broader sense, he is elected to the office.1
Explanation 3 to Section 21 of the Indian Penal Code defines the term "election" as an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character the method of selection to which is by or under any law prescribed as by election.
The Wharton's Law Lexicon, 14th Edition defines "election" as (1) the act of selecting one or more from a greater number for an office. (2) The exercise of his choice by a man left to his own free will to lake or to do one thing or another. It is the obligation imposed upon a person to choose between two inconsistent or alternative rights or claims.
____________
1. Dinesh Prasad Yadav v. State of Bihar, 1995 Supp (1) SCC 340.
The Supreme Court in case of Raj Narain v. Indira Nehru Gandhi, MANU/SC/0366/1972 : AIR 1972 SC 1302 defined "electioneering" as act of canvassing for votes, speaking in public and otherwise promoting the election of a particular candidate for Parliament.
Section 171A(b) of the Indian Penal Code defines "electoral right" as the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at any election.
In general parlance it means a ticket used in giving votes. In broader prospective it means to vote a person into an office or society by means of little tickets which are put into either side of a box privately, according to the inclination of the voter, or by writing the names of the candidates upon small pieces of paper and rolling them up, so that they cannot be read, which are put into a box, and, when the time limited for the voting is over, are taken out one by one by an impartial person.1
The Electronic Voting System as was followed in 14th and 15th Lok Sabha Elections and State Assemblies Elections in India, is not less than a "robust". It is a typical mechanism in this age of electronics and computer. This system helps in transition and also transmission of voting data statistics through a particular package or software.
It might comprise a central server, a voter computer and an official computer with regard to election and a technological channel connecting a central server to the voting computer. It is connected with a key pair associated with an election authority through the use of symmetric encrypton key and automatically the voter computer transmits a voter identifier to the central server and this has to identify blank ballot associated or connected with the voter identifier and transmits the associated blank ballot to the voter computer and then it accepts the voting inputs to give a shape of a complete ballot or vote and then the completed ballot is forwarded automatically to the central server and then it is stored. The private key helps in this system in many forms to make complete the voting system in electronic form.
Q. For making the democracy more meaningful
The only organ which is more active in democratic form of government is the T.V. Channels. In 14th Lok Sabha Elections all of the news channels played an important role in predicting the election results through the various cities and places. But this was found defective and in 15th Lok Sabha the Election Commission of India found many drawbacks and restrained the News
________________
1. Wharton's Law Lexicon, 14th Edition
Channels in practising the exit poll programme before the declaration of election results.
Q. Explain the system of election prevalent in India
"For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. The electorate by now is well educated about the justified means desirable during the election campaign and it looks forward to knowing the positive programmes of the candidates together with their comparative merits and choose from amongst them the one with the least demerits. The shift in the election campaign has, therefore, to be in positive direction to enable the electorate to cast its positive vote instead of the negative vote by rejecting those with greater demerits. This duty is cast more heavily on the senior leaders of all the political parties to ensure that the election campaign does not degenerate into a campaign of vilification, which may tend to promote violence during elections and lead to criminalisation of politics. There are hard realities of the present trend of election campaign and this trend must be reserved to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction".1
Q. Single transferable vote system is designed to ensure more diverse representation
Now, only one vote to be cast by each elector.
There are two systems of election prevalent in India:
(a) Proportional representation by a single transferable vote; and
(b) Multiple vote with distributive voting.
The first system is adopted where representation is desired to be given to each group according to its strength in the electorate and two or more than two persons are to be elected. Every voter is allowed to cast one vote in favour of any candidate of his choice or he gives his preferences, e.g.
|
Sl. No. |
Name of the candidate Preferences |
|
1. |
ABC 2 |
|
2. |
XYZ 1 |
|
3. |
CAD 4 |
|
4. |
YZX 3 |
and so on against such number of candidates, as are to be elected, on the ballot paper.
Election for the members of the Rajya Sabha in Parliament of India and the President are carried out using the single transferable vote system. The single transferable vote system is designed to ensure more diverse representation, by reducing the opportunity for blocks of voters to dominate minorities. The ballot paper lists all candidates standing for election and the voters list them in order of preference. A threshold number of votes, known as the 'quota' is set, which
______________
1. G.Y. Kanparrao v. Balasaheb V. Patil, MANU/SC/0599/1994 : AIR 1994 SC 678.
candidates have to achieve to be elected. For presidential elections the quota is set at one more than half the number of votes, ensuring that the winner is the candidate who gets a clear majority. For the Rajya Shabha the quota is set at the number of votes that can be attained by just enough MPs to fill all the seats but no more. Votes that are deemed surplus, those given to candidates who have already got a full quota of votes, or votes given to candidates who are deemed to be losing candidates, are transferred according to the voter's listed preferences, until the right number of candidates have been elected.
In the 'multiple vote with distributive voting' system, the voter is given as many ballot papers as the number of candidates to be elected and he marks every ballot paper for the candidate of his choice. Sometimes, one ballot paper carrying the names of all the candidates, is issued and the elector casts the mark against as many candidates as is the number of seats of be filled.
The instructions for the guidance of the two systems of voting are contained in Form 13D under Rule 23(1)(d) of the Conduct of Election Rules, 1961. The form contains directions to the electors in case of an election to the Council of States or to the Legislative Council of a State.
Firstly, it contains the process of multiple vote with distributive voting; and
Secondly, it describes the process of proportional representations with single transferable vote.
With the electoral reforms, now, multiple constituencies of Lok Sabha and the Legislative Assemblies, do not exist. Only one vote is to be cast by the elector for the candidate of his choice.
Q. Why the word `election' used in wide sense in Part XV of the Constitution of India?
"Election is a process. The word "election" has been used in Part XV of the Constitution of India in a wide sense that is to say, to connote the entire procedure to be gone through, to return a candidate to the Legislature. The use of the expression 'Conduct of Elections' in Article 324 of the Constitution of India specifically points to the wide meaning. The term may be taken to embrace the whole procedure which consists of several stages and include many steps whereby an "elected member" is returned, whether or not it be found necessary to take the poll. It is not used in a narrow sense".1
"The word 'election' as used in the Representation of the People Act, 1951 includes every stage from the time the notification calling for election is issued till the declaration of the result".2
"The term 'election' refers only to the process of casting votes and the declaration of results, ignores the fact that many things have to be done in preparation for, and in connection with elections which are not part of actual selection by the citizens of their representatives. A wide range has to be covered before elections can actually take place. The word 'election' covers every part
________________
1. N.P. Ponnuswami v. Returning Officer, Namakkal,MANU/SC/0049/1952 : AIR 1952 SC 64.
2. Ashraf Ali Khan v. Tika Ram, 20 ELR 470.
of the process. It is this wide sense that the word is used in Part XV of the Constitution of India".1
Q.
Section 171A of the Indian Penal Code defines 'electoral right' as "the right of a person to stand, or not to stand as, or to withdraw from being a candidate or to vote or refrain from voting at an election".
"The right to vote or the right to stand as a candidate at an election is a creature of statute or a special law and is subject to the limitations imposed by the statute or special law. The Representation of the People Act is a complete code for challenging an election and the election must be challenged only in the manner provided in that Act".2
"A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a Common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute there is no right to elect, no right to be elected and no right to dispute election. Statutory creations they are, and, therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the Common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to the Common law and equity must remain strangers to Election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those relating to the trial of the election disputes, Court is put in a straight-jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different "stages of the process being dealt with by the different provisions of the Act".3
Q. Right to elect and right to be elected do not inherit in a person
The voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question. The right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well.4
"Right to elect and right to be elected are statutory rights. These rights do not inherit in a person as such. As provided in Article 326 of the Constitution, the election to the House of the People add to the Legislative Assembly of every
____________
1. Election Commission of India v. Shivaji, MANU/SC/0379/1987 : AIR 1988 SC 61.
2. Subhash Desai v. Sharad J. Row, MANU/SC/0473/1994 : AIR 1994 SC 2277.
3. Jyoti Basu v. Debi Ghosal, MANU/SC/0144/1982 : AIR 1982 SC 983.
4. Lily Thomas v. Speaker, Lok Sabha, MANU/SC/0564/1993 : (1993) 4 SCC 234; People's Union for Civil Liberties v. Union of India, MANU/SC/0263/2009 : (2009) 3 SCC 200
State shall be on the basis of adult franchise. But in order to exercise that right, certain formalities are provided by the Representation of the People Act, 1950 and the rules made thereunder, are to be strictly complied with. It is not enough that a person is of 21 (now 18) years of age and is a citizen of India. He has to be registered as an elector under the Act and the Rules".1
Q. What are the principles of Election Law?
Halsbury's laws of England, expressed that "commencement of the 'election'" as "Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each when an election begins in such a way as to make the parties concerned responsible for breaches of election laws, the test being whether the contest is 'reasonably imminent'. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again does the nomination day afford any criterion. The election will usually begin at least earlier than the issuance of the writ. The question when the election begins must carefully be distinguished from that as to when "the conduct and the management of election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case".
The well-recognised principle of election law, both Indian and English, is that the election should not be held up and the person aggrieved should not be permitted to ventilate his individual interest, in derogation of that general interest of the people which requires that the election should be gone through according to the time schedule. It is, therefore, consonant both the provisions of Article 62 of the Constitution of India (Time of holding election to fill vacancy in the office of President of India and the office of person elected to fill casual vacancy), and with good sense, to hold that the word 'election' in Article 71 (Matters relating to, or connected with, the election of a President or
Vice-President) is the entire process of election. That is what Parliament understood to be the meaning of Article 71, as it is apparent from the Presidential and Vice-Presidential Election Act, 1952. The entire election process, culminating in a candidate being declared elected, is one and any doubts and disputes arising out of and in connection with any of the stages have to be enquired into and decided by the Supreme Court which, in point of time, must necessarily be after the completion of the entire process, compendiously called the 'election'.2
The judgment given is general in nature and is applicable to all disputes relating to elections, whether the election of the Parliament and State Legislatures or the Office of the President and the Vice-President.
_____________
1. Jagan Nath v. Jaswant Singh, MANU/SC/0094/1954 : AIR 1954 SC 210: 9 ELR 231.
2. Yamuna Prasad v. Jagdish Prasad Khare, 13 ELR 1.Preamble to the constitution of india
The Preamble to our Constitution declares:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION".
The Preamble can be divided into the following parts:
(a) The People of India in their Constituent Assembly adopted, enacted and gave to themselves "this Constitution".
(b) The People of India solemnly resolved to constitute India into a,
(i) Sovereign (ii) Democratic (iii) Republic.
(c) The People of India solemnly resolved to secure to all its citizens,
(i) Justice (ii) Liberty (iii) Equality, and (iv) Fraternity.
The Supreme Court through its vivid constitutionalism always tries to safeguard the objective of Preamble. In a tacit case1 observed that "it was well accepted by thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the Preamble of the Constitution, are to be achieved, the Indian polity had to be educated and educated with excellence.
Q. Whether the authority is derived from the people, as recited in the Preamble, is purely academic?
In Kesavananda Bharti v. State of Kerala,2 a question arose whether the court could inquire into the correctness of the declaration "we the people" because, factually, our Constitution was framed by the Constituent Assembly which was elected on a very narrow franchise, and the Constitution was not submitted to the people for ratification. On this point different views were expressed by Hegde J. and by Mathew J. in the Kesavananda's case. However it is not necessary to enter into this controversy, for the Indian Independence Act, 1947, undoubtedly gave legal authority to the Constituent Assembly of India to frame a Constitution for India. Whether the authority of the Constitution is derived from the British made Indian Independence Act, 1947 which partitioned British India into the Dominion of India and Pakistan, and which, as a consequence, altered the composition of the Constituent Assembly of India by certain
______________
1. P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.
2. MANU/SC/0445/1973 : AIR 1973 SC 1461.
exclusions and inclusions, or whether the authority is derived from the People, as recited in the Preamble, is purely academic.
As our Constitution being made by the "People", Prof. Where has said with his usual insight and brevity:
"In India 'the people' enact the Constitution 'in our Constituent Assembly', but that Assembly was composed of representatives elected by a minority of the people of India and the Constitution itself was never submitted to the people directly. It is not unreal in any case to speak of 'the people' enacting a constitution 'in' or 'through' a Constituent Assembly? It is seldom indeed that the people are asked even to approve a constitution ostensibly enacted in their name. Moreover, once a Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter not only the institutions which it establishes, but also the people itself. They may amend the Constitution, if at all, only by the methods which the Constitution itself provides".
Q. 'Sovereign Democratic Republic', means both externally and internally India is sovereign
When it is said that India is a Sovereign Democratic Republic, it means that both externally and internally India is sovereign. Where precisely internal sovereignty resides need not be considered at this place. The word "Democratic" by itself, or even in the phrase "democratic constitution", is ambiguous as pointed out by Prof. Finer.
However, though the Preamble does not tell us what kind of "Democratic" Republic is established in India, the enacting provisions of our Constitution show that, the Constitution has set up a Parliamentary Democracy of the type established in the federal Constitutions of Canada and Australia. The word "Republic" presents no particular difficulty.
The main objective in the Preamble is not liberty generally, but liberty of thought, expression. This objective in its absoluteness means different things to different men, and is not reflected in any Article of our Constitution. The liberty of thought and expression also covers the freedom of speech and expression conferred by Article 19(1)(a).
(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. Organising 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 organised by other parties. Workers or sympathisers of one political party shall not create disturbances at public meetings organised 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 one party 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 licence 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 licence.
(4) Organisers 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. Organisers 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 ordinarily be no deviation from the programme.
(2) The organisers shall give advance intimation to the local police authorities of the programme so as to enable the letter to make necessary arrangement.
(3) The organisers 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 organisers 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 organised 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 organisers 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 shall 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 fourty 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.
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 electioneering work and shall not also make use of official machinery or personnel during the electioneering work;
(b) Government transport including official aircrafts, vehicles, machinery and personnel shall not be used for furtherance of the interest of the party in power;
(ii) Public places such as maidans 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, dak 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 favour 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 authorised agent.
Q. What is the Model Code of Conduct?
The Model Code of Conduct is for guidance of political parties and candidates is a set of norms which has been evolved with the consensus of political parties who have consented to abide by the principles embodied in the said Code and also binds them to respect and observe it in its letter and spirit.
Q. What is the Role of Election Commission in the Matter?
The Election Commission ensures its observance by political party(ies) in power, including ruling parties at the Centre and in the States and contesting candidates in the discharge of its constitutional duties for conducting the free, fair and peaceful elections to the Parliament and the State Legislatures under Article 324 of the Constitution of India. It is also ensured that official machinery for the electoral purposes is not misused.
Further, it is also ensured that electoral offences, malpractices and corrupt practices such as impersonation, bribing and inducement of voters, threat and intimidation to the voters are prevented by all means. In case of violation, appropriate measures are taken.
Q. From which Date the Model Code of Conduct is Enforced and Operational upto which Date?
The Model Code of Conduct is enforced from the date of announcement of election schedule by the Election Commission and is operational till the process of elections are completed.
(a) During general elections to House of People (Lok Sabha), the Code is applicable throughout the country.
(b) During general elections to the Legislative Assembly (Vidhan Sabha), the Code is applicable in the entire State.
(c) During bye-elections, the Code is applicable in the entire district or districts in which the constituency falls.
The salient features of the Model Code of Conduct lay down how political parties, contesting candidates and party(s) in power should conduct themselves during the process of elections i.e., on their general conduct during electioneering, holding meetings and processions, poll day activities and functioning of the party in power etc.
Q. Whether a Minister can Combine his Official Visit with Electioneering Work?
The Ministers shall not combine their official visit with electioneering work and shall not also make use of official machinery or personnel during the electioneering work.
Q. Whether Government Transport can be Used for Electioneering Work?
No transport including official aircrafts, vehicles etc. shall be used for furtherance of the interest of any party or a candidate.
Q. Whether Government can Make Transfers and Postings of Officials who are Related to Election Work?
There shall be a total ban on the transfer and posting of all officers/officials directly or indirectly connected with the conduct of the election. If any transfer or posting of an officer is considered necessary, prior approval of the Commission shall be obtained.
Q. Suppose an Officer Related to Election Work has been Transferred by the Government before Enforcement of Model Code of Conduct and has not Taken over Charge at New Place. Can such Officer Take over Charge of Office at New Place after Announcement of the Code?
Status-quo-ante shall be maintained.
No Minister, whether of Union or State, can summon any election-related officer of the constituency or the State for any official discussions anywhere.
If Union Minister is travelling out of Delhi on purely official business, which cannot be avoided in public interest, then a letter certifying to this effect should be sent from the concerned Secretary of the Ministry/Department to the Chief Secretary of the concerned State, with a copy to the Election Commission.
Any official who meets the Minister on his private visit to the constituency shall be guilty of misconduct under the relevant service rules; and if he happens to be an official mentioned in Section 129(1) of the Representation of the People
Act, 1951, he shall also be additionally considered to have violated the statutory provisions of that Section and liable to penal action provided thereunder.
Q. Whether Ministers are Entitled for Official Vehicle During the Election?
Ministers are entitled to use their official vehicles only for commuting from their official residence to their office for official work provided that such commuting is not combined with any electioneering or any political activity.
Minister or any other political functionary is not allowed during election period, to use pilot car or car with beacon lights of any colour or car affixed with sirens of any kind whether on private or official visit, even if the State administration has granted him a security cover requiring presence of armed guards to accompany him on such visit. This prohibition is applicable whether the vehicle is government owned or private owned.
The Minister may leave with VIP car and other protocol from his headquarters to the place of visit of President/Vice President and return to his headquarters without attending any other function/meeting with any other political functionary. This restriction shall be applicable from the time he leaves the Headquarters and till he reaches back the headquarters.
Where a vehicle is provided by the State or the Minister is given an allowance for maintenance of the vehicle, he cannot use such vehicle for election.
The Chief Electoral Officer shall also recover the cost of propulsion from the ministers who may misuse their official position.
The advertisement regarding achievements of the party at the cost of public exchequer in the print and electronic media and the misuse of official mass media during the period of election is prohibited.
Whether a Minister or any other Authority can Sanction Grants/ Payments out of Discretionary Funds?
Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced.
The funds may either be kept in "Personal Ledger Account" of the concerned department or the release may be deferred till the completion of elections.
Work shall not be started in respect of which work order has been issued before announcement of election but the work has actually not started in the field. If a work has actually started in the field that can be continued.
Any proposal from State Government for seeking clarification/clearance/approval from the Election Commission should only be routed through Chief Electoral Officer, who will make his recommendation or otherwise in the matter.
What are the Main Guidelines for Political Parties/Candidates while Making Election Campaign?
During the election campaign, no party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. Further, 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.
Are their any Restrictions in Using Religious Places for Election Propaganda?
Religious places like Temple, Mosque, Church, Gurudwara or other places of worship shall not be used as forum for election propaganda. Further, there shall be no appeal to caste or communal feelings for securing votes.
Can a Candidate go to the Office of Returning Officer for Filing a Nomination with a Procession?
The maximum number of vehicles that will be allowed to come within the periphery of 100 mtrs. of Returning Officer's office has been restricted to three and maximum number of persons that will be allowed to enter the office of Returning Officer has been limited to five (including the candidate).
How many Persons are Allowed at the Time of Scrutiny of Nominations by the Returning Officer?
The candidate, his election agent, one proposer and one other person (who can be an advocate) duly authorized in writing by the candidate, but no other person, may attend at the time fixed for scrutiny of nominations by Returning Officer. [Refer: Section 36(1) of the Representation of the People Act, 1951]
In respect of persons covered by security, the use of State owned one bullet proof vehicle for the particular person (PP) will be permitted in all cases where the security agencies, including the intelligence authorities, have prescribed such use. The use of multiple cars in the name of stand-by should not be permitted unless so specifically prescribed by security authorities. The cost of propulsion of such bullet proof vehicles where such use of bullet proof vehicles is specified will be borne by the particular person. The number of vehicles to accompany the carcade including pilots, escorts etc. will be strictly in accordance with the instructions laid down by the security authorities and shall not exceed them under any circumstances. The cost of propulsion of all such vehicles, whether owned by Government or hired vehicles, will be met by the State Government.
The restrictions do not apply to the Prime Minister whose security requirements are governed by the Government's Blue Book.
Whether there is any Restriction for Plying of Vehicles for Electioneering Purposes?
Candidate can ply any number of vehicles (all mechanized/motorized vehicles including two-wheelers) for the purpose of election campaign but he has to seek prior approval of the Returning Officer for plying such vehicles and must display permit issued by Returning Officer in original (not photocopy) prominently on the windscreen of the Vehicle. The permit must bear the number of the vehicle and name of the candidate in whose favour it is issued.
Use of such vehicle for election campaign by another candidate shall invite action under Section 171H of the Indian Penal Code.
Such vehicle shall be deemed to be unauthorized for campaigning by the candidate and may attract penal provisions of Chapter IX A of the Indian Penal Code and shall, therefore, be immediately out of the campaigning exercise and shall not be used for further campaign.
Use of educational institutions including their grounds (whether Government aided, Private or Government) for political campaigns and rallies is not allowed.
Is External Fitting/Modification Allowed in the Vehicles Used for Campaigning?
External modification of vehicles including fitting of loudspeaker thereon, would be subject to the provisions of the Motor Vehicles Act/Rules as well as other Local Act/Rules. Vehicles with modifications and special campaign vehicles like Video Rath etc. can be used only after obtaining the requisite permission from the competent authorities under the Motor Vehicles Act.
Rest houses, Dak bungalows or other Government accommodation shall not be monopolized by the party in power or its candidates and such accommodation shall be allowed to use by other parties and candidates but no party or candidate shall be allowed to use as campaign office.
Further, it shall be ensured that-
(i) no functionary can use the Circuit House, Dak bungalow to set up campaign office as the Circuit Houses/Dak bungalows are only for temporary stay (boarding and lodging) during transit of such functionaries,
(ii) even casual meeting by members of political parties inside the premises of the Government-owned guesthouse etc. are not permitted and any violation of this shall be deemed to be a violation of the Model Code of Conduct,
(iii) only the vehicle carrying the person allotted accommodation in the guest house and not more than two other vehicles, if used by the person, will be permitted inside the compound of the Guest House,
(iv) rooms should not be made available for more than forty-eight hours to any single individual, and
(v) forty-eight hours before the close of poll in any particular area, there will be freeze on such allocations till completion of poll or re-poll.
While allowing the chartering of Government aircrafts/helicopters to political parties/candidates or private companies etc., the following conditions should be followed:-
(i) There should be no discrimination between the ruling party on the one hand and the other parties and contesting candidates on the other.
(ii) The payment will be made by the political parties or the contesting candidates and proper record maintained.
(iii) The rates and terms and conditions should be uniform for all.
(iv) The actual allotment should be made on the first-come first-served basis. For this purpose, the date and time of receipt of the application should be noted down by the authorized receiving authority.
(v) In the rare case when both the date and time of two or more applicants is the same, the allotment will be decided by draw of lots.
(vi) No individual, firm, party or candidate will be allowed to charter the aircraft/helicopter for more than three days at a time.
Candidate may display poster, placard, banner, flag etc. of the party concerned or the candidate on a public property subject to provisions of local law and prohibitory orders in force. For details, refer Commission's instructions No. 3/7/2008/JS-II, dated 7.10.2008.
If Local Law/Bye-laws Permit Wall Writings and Pasting of Posters, Putting up Hoardings, Banners etc. on Private Premises/Properties, is it Necessary to Obtain Prior Written Permission from the Owner of the Premises/Properties?
Candidate is required to obtain prior written permission from the owner of the properties/premises and photocopy(ies) of such permission should be submitted within three days to the Returning Officer or an officer designated by him for the purpose.
Candidate may display/carry one poster/placard/banner/flag of Candidate's party/or his own one vehicle during the procession subject to conformity with the provisions of Motor Vehicle Act and any other local laws/bye-laws.
The political parties and candidates should try to avoid the use of plastic/polythene for preparation of posters, banners etc. in the interest of environmental protection.
Is there any Restriction on the Printing of Pamphlets, Posters etc?
Candidate shall not print or publish, or cause to be printed or published any election pamphlet or poster which does not bear on its face names and addresses of the printer and the publisher thereof.
(Refer: Section 127A of the Representation of the People Act, 1951)
Provided that all the expenses in this regard have been booked against the election expenses of the candidate, on whose behalf the leaflets/pamphlets are being dropped.
Yes, provided they are accounted for in the election expenses of the candidate concerned. However supply and distribution of main apparels like saree, shirt, etc. by party/candidate is not permitted as it may amount to bribery of voters.
The dummy ballot units may be made of wooden, plastic or ply board boxes, half the size of the official ballot units and may be painted brown, yellow or grey.
Candidate can not display to the public any election matter by means of cinematograph, television or other similar apparatus during the period of forty-eight hours ending with the hour fixed for the conclusion of poll.
(Refer: Section 126 of Representation of the People Act, 1951)
This will amount to bribery under Section 171E of the Indian Penal Code.
In case, it is established that such material have been distributed, a complaint may be filed before the area Magistrate by District Administration against the distribution of the said material under Section 171 B of the IPC.
Such offices can not be opened by way of any encroachment either on public or private property/in any religious place or campus of such religious places/ contiguous to any educational institution/hospital/within 200 metres of an existing polling station. Further, such offices can display only one party flag and banner with party symbol/photographs and the size of the banner used in such offices should not exceed '4 feet X 8 feet' subject to the further condition that if the local laws prescribe a lower size for banner/hoarding etc., then the lower size prescribed by local law shall prevail.
After the closure of campaign period (starting from forty-eight hours before closure of poll), political functionaries etc. who have come from outside the constituency and who are not voters of the constituency should not continue to remain present in the constituency. Such functionaries should leave the constituency immediately after campaign period is over. This will not apply in the case of candidate or his election agent even if they are not voters in the constituency.
Such restriction is not insisted upon during the general elections to Lok Sabha/State Assembly only in respect of the office bearer who is in-charge of the State during the election period. Such office bearer shall declare his place of stay in the State Headquarters and his movement during the period in question shall remain confined normally between his party office and place of his stay. The above restrictions will be applicable to all other functionaries in all elections.
Whether there is any Restriction for Holding Public Meeting or Taking out Processions?
Prior written permission should be obtained from the concerned police authorities for holding of a meeting at any public or private place and for taking out processions.
Prior written permission should be obtained from the concerned police authorities for using loudspeakers.
Whether there is any Time Limit for Using Loudspeakers?
Loudspeaker cannot be used at night between 10.00 P.M. and 6.00 A.M.
What is the Deadline after which no Public Meetings and Processions can be Taken out?
Public meetings cannot be held after 10 PM and before 6.00 AM. Further, candidate cannot hold public meetings and processions during the period of forty-eight hours ending with the hour fixed for the conclusion of poll. Suppose, poll day is 15th July and hours of poll are from 8.00A.M to 5.00 P.M., then the public meetings and processions shall be closed at 5.00 P.M on the 13th July.
(Refer: Section 126 of the Representation of the People Act, 1951)
The unofficial identity slip, on white paper, shall contain only the particulars of the voter i.e., name, Serial number of voter, part No. in the electoral roll, no and name of Polling Station and date of Poll. It should not contain the name of candidate, his photograph and symbol.
A candidate cannot appoint a Minister/M.P./MLA/MLC or any other person who is under security cover, as an election/polling agent/counting agent, as his personal security shall be jeopardized with such appointment, because his security personnel will not under any circumstances be permitted to accompany him into the 100 metre perimeter of polling stations described as the "Polling Station Neighborhood" and within the polling booth and campus of counting centre and within the counting centre. Also any person having security cover will not be allowed to surrender his security cover to act as such agent of a candidate.
Is a Candidate Allowed to Appoint Persons as Polling agents from Anywhere?
Such person who is appointed by the candidate as a polling agent must be an ordinarily resident and elector of the concerned polling station area only and not from outside the concerned polling area. Such person must also have Elector's Photo Identity Card.
However, in the case of polling stations exclusively manned by the women polling personnel, the restriction of resident of same polling area shall not be applied for.
Who is the Authority to Issue Permits to Star Campaigners (Leaders) of the Political Parties who Avail Benefit under Section 77(1) of the Representation of the People Act, 1951?
In case the mode of road transport is to be availed of by Star Campaigners (Leaders) of political, the permit will be issued centrally by the Chief Electoral Officer. If such party applies for issue of permit for the same vehicle to be used by any leader for election campaigning throughout the State, the same may be issued for such vehicle centrally by the Chief Electoral Officer, which will be prominently displayed on windscreen of such vehicle(s) to be used by concerned leader(s). If different vehicles are to be used by such party leaders in different areas, then the permit can be issued against the name of the person concerned who will display it prominently on the windscreen of the vehicle being used by such leader.
The result of any opinion poll or exit poll conducted shall not be published, publicized or disseminated in any manner by print, electronic or any other media, at any time-
(a) during the period of forty-eight hours ending with the hour fixed for closing of poll in an election held in a single phase; and
(b) in a multi-phased election, and in the case of elections in difference States announced simultaneously, at any time during the period starting from forty-eight hours before the hour fixed for closing of poll in the first phase of the election and till the poll is concluded in all the phases in all States.
Whether there is any Restriction for Transmitting Short Messages Service (SMSs)?
Transmitting objectionable messages on SMSs during election is prohibited. For objectionable SMSs which may violate the law and ECI instructions issued in this behalf, the police authorities shall advertise special mobile numbers on which the receiver of such SMS can forward the said SMS with the mobile number of sender. The police authorities shall take action under the law.
Election booth can be set up beyond a distance of 200 metres from the polling stations, only with 1 table and 2 chairs with an umbrella or a piece of tarpaulin or cloth to protect the two occupants. Only one banner (3 x 41/2 feet) can be displayed showing the name of the candidate/party/election symbol at the booth. However, two election booths can be set up, if more than two polling stations have been set up in a building.
It is necessary to obtain the written permission of the Government authorities concerned or local authorities before setting-up of such booths. Written permission must be available with the persons manning the booth for production before the police/election authorities concerned on demand.
Is there any Restriction of Canvassing in or Near Polling Station?
Canvassing for votes etc. within a distance of one hundred metres of polling station is prohibited on the day of poll.
(Refer: Section 130 of the Representation of the People Act, 1951)
Whether the Use of Mobile Phone is Allowed in the Polling Station?
No person is allowed to either carry or use mobile phones, cordless phones, wireless sets etc. in 100 metre perimetre of the polling stations described as the "polling station neighbourhood" and within the polling booth.
Only Observer/Micro Observer, Presiding Officer and security personnel are allowed to carry mobile phone but they will keep their mobile phones in silent mode.
Is there any Restriction of Going Armed to or Near Polling Station?
No person is allowed to go armed with arms as defined in the Arms Act 1959 of any kind within the neighbourhood of a polling station on the day of poll.
(Refer: Section 134B of the Representation of the People Act, 1951)
How many Vehicles a Candidate is Entitled for on the Day of Poll?
(i) For an election to the House of the People, a candidate will be entitled to:
(a) One vehicle for candidate's own use in respect of the entire constituency. One vehicle for use of candidate's election agent for entire constituency.
(b) In addition, one vehicle for use of candidate's workers or party workers, as the case may be, in each of the assembly segments comprised in the Parliamentary constituency.
(ii) For an election to the State Legislative Assembly, a candidate will be entitled to:
(a) One vehicle for candidate's own use
(b) One vehicle for use of candidate's election agent
(c) In addition, one vehicle for use of candidate's workers or party workers.
Vehicle allotted for candidate's use is not allowed to be used by any other person.
Can any Type of Entitled Vehicle be Used on the Day of Poll?
The candidate or his agent or party workers or workers will be allowed to use only four/three/two-wheeler vehicles i.e., cars (of all types), taxis, auto rickshaws, rickshaws and two wheelers. In these vehicles not more than five persons including drivers are allowed to move on the day of poll.
Any arrangement, direct or indirect, to carry any voter to or from polling station by any kind of vehicle used for transport is a criminal offence.
(Refer: Section 133 of the Representation of the People Act, 1951)
Whether there are Restrictions on Plying of Government/Private Vehicles on the Poll Day?
Public transport like buses, mini buses are allowed to ply but it should be ensured that they are not used clandestinely for the conveyance of voters. Further, private cars, taxies carrying passengers to places other than polling booths like hospitals, airports, railway stations, bus stands, friends and relations houses, clubs, and restaurants will be allowed on the road. But they should not be allowed to come clandestinely near the polling areas for the conveyance of voters.
Leader of a political party is not allowed to use private fixed-wing aircraft and helicopters for the purposes of supervising and monitoring the polling and counting process on the day of poll and counting.
1. Affidavits to be Filed by Candidates on Criminal Antecedents, Assets, etc.
(a) In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has to file an affidavit in Form 26 appended to the Conduct of Election Rules, 1961, giving information on the following:-
(i) Cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court.
(ii) Cases of conviction for an offence other than any of the offences mentioned in Section 8 of the Representation of the People
Act, 1951, and sentenced to imprisonment for one year or more.
_____________
* Report on Electoral Reforms by Mr. T.S. Krishna Murthy, (Former) Chief Election Commissioner of India dated 30 July, 2004 vide D.O. No. 3/ER/2004.
In addition to the above affidavit, a candidate has to file another affidavit in the format prescribed by the Commission vide its order dated 27.3.2003, in pursuance of the Hon'ble Supreme Court's judgment dated 13.3.2003 in Civil Appeal No. 490 of 2002 (Peoples Union for Civil Liberties v. Union of India). In this affidavit, the candidate has to give information relating to all pending cases in which cognizance has been taken by a Court, his assets and liabilities, and educational qualifications.
With the Supreme Court striking down Section 33B of the Representation of the People Act, 1951, the directions of the Court in its order dated 13.3.2003, have become the law of the land in terms of Article 141 of the Constitution and therefore, to facilitate the candidates in filing their nomination papers, the Commission is of the view that there should be only one form of affidavit containing all vital information as required under Section 33A of the Representation of the People Act, 1951, and the directions of the Supreme Court referred to above. Such a measure will certainly reduce the confusion that prevails about the two separate sets of affidavits now required to be filed.
The Commission, therefore, recommends that Form 26 may be amended so as to include in it all the items mentioned in the Format of affidavit prescribed by the Commission's order dated 27.3.2003. While doing this, it is also suggested that a further column may be added in the format about the annual declared income of the candidate for tax purpose and his profession.
(b) It has been the experience in the past few elections that in some cases, the candidates leave some of the columns blank, and there have been cases where the candidates are alleged to have given grossly undervalued information, mainly about their assets. Section 125A provides for punishment of imprisonment for a term upto six months or with fine or with both, for furnishing wrong information or concealing any information in Form 26. The Commission is of the view that to protect the right to information of the electors as per the spirit of the judgment dated 13.3.2003 of the Supreme Court referred to above, the punishment here should be made more stringent by providing for imprisonment of a minimum term of two years and doing away with the alternative clause for fine. Conviction for offences under Section 125A should further be made part of Section 8(1)(i) of the Representation of the People Act, 1951, dealing with disqualification or conviction for certain offences. Such a provision will reduce instances of candidates wilfully concealing information or furnishing wrong information.
2. Need to Increase the Security Deposit of Candidates
Under Section 34 of the Representation of the People Act, 1951, each candidate for election to the House of the People is required to deposit an amount of Rs. 10,000 as security deposit. For State Assembly elections and elections to the Council of States and Legislative Councils, the security deposit is Rs. 5,000.
The amount of security deposit was last revised in 1996, raising the earlier amount of Rs. 500 for Lok Sabha elections and Rs. 250 for Assembly elections to the current levels. The revision was made primarily to discourage non-serious candidates from jumping to the electoral arena. There were instances in the past where hundreds of candidates filed nominations from some constituencies with the intention of upsetting the election process there. The revision in the security deposit in 1996 had the desired result in the Lok Sabha elections in 1998 and 1999, as there was a substantial decline in the number of candidates in these elections and in the assembly elections during this period. The average number of candidates at the Lok Sabha elections of 1998 was nine.
At the recently held general election to the House of the People and Legislative Assemblies, the number of contesting candidates showed an increasing trend again. A large number of such candidates are non-serious candidates and they predictably end up polling negligible number of votes. Too many candidates in the election fray puts unnecessary and avoidable stress on the management of elections and increases expenditure on account of security, maintenance of law and order, and requires extra number of balloting units of voting machines, etc. Prior to the recent elections, the Commission had made a proposal for increasing the security deposit to Rs. 20,000 in the case of election to the House of the People and Rs.10,000 for Legislative Assembly election. For candidates belonging to Scheduled Castes and Scheduled Tribes, the deposit amount would be half the respective amounts. However, there has been no response from the government to this proposal.
The Commission is also of the view that aforesaid Section 34 should be suitably amended so as to empower the Commission to prescribe the security deposit before every general election to the House of the People. Resorting to amendment of the Act will not be feasible before every general election.
3. Criminalisation of Politics
This is an issue being raised by the Commission from 1998 onwards. Disqualification for criminal offences is provided for in Section 8 of the Representation of the People Act, 1951. As per that Section, a person is disqualified from contesting election only on conviction by the Court of Law.
There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of law breakers becoming law makers and moving around under police protection.
The Commission had proposed that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. The Commission reiterates that such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses. The counter view to this proposal is based on the doctrine that a person is presumed to be innocent until he is proved guilty. The Commission is of the view that keeping a person, who is accused of serious criminal charges and where the Court is prima facie satisfied about his involvement in the crime and consequently framed charges, out of electoral arena would be a reasonable restriction in greater public interests. There cannot be any grievance on this. However, as a precaution against motivated cases by the ruling party, it may be provided that only those cases which were filed prior to six months before an election alone would lead to disqualification as proposed. It is also suggested that persons found guilty by a Commission of Enquiry should also stand disqualified from contesting elections. [The provisions in the Jammu and Kashmir Representation of the People Act are relevant in this regard]
In the midst of the recent general elections, the Patna High Court had passed an order that persons behind bars cannot contest elections. On the basis of an application moved by the Election Commission, this order was stayed by the Supreme Court with the observation that the High Court could not have passed the order during the course of the election process. However, the SLP [No. 9204-05/2004- ECI v. Jan Chowkidar (Peoples Watch)] is pending before the Supreme Court for final disposal. The Commission endorses that the law should be amended as proposed above.
4. Restriction on the Number of Seats from which one may Contest
As per the law as it stands at present [Sub-section (7) of Section 33 of the Representation of the People Act, 1951], a person can contest a general election or a group of bye-elections or biennial elections from a maximum of two constituencies.
There have been several cases where a person contests election from two constituencies, and wins from both. In such a situation he vacates the seat in one of the two constituencies. The consequence is that a bye-election would be required from one constituency involving avoidable labour and expenditure on the conduct of that bye-election.
The Commission is of the view that the law should be amended to provide that a person cannot contest from more than one constituency at a time. The Commission will also add that in case the legislature is of the view that the provision facilitating contesting from two constituencies as existing at present is to be retained, then there should be an express provision in the law requiring a person who contests and wins election from two seats, resulting in a
bye-election from one of the two constituencies, to deposit in the government account an appropriate amount of money being the expenditure for holding the bye-election. The amount could be Rs. 5,00,000 for State Assembly and Council election and Rs. 10,00,000 for election to the House of the People.
5. Exit Polls and Opinion Polls
Various agencies conduct poll surveys prior to the poll on the likely voting pattern and publish and disseminate the results of such surveys through different media. Similarly, on the date of poll, actual result of the election is sought to be predicted on the basis of information collected from the voters. Results of such surveys, called Exit Poll., are published and disseminated after the poll is over. In the case of an election, where poll is taken on a single day, there cannot be any serious objection in publishing the results of Exit Polls after the close of poll. However, in many general elections, poll has to be staggered over different dates mainly for law and order and security related reasons. In such cases, publishing the result of Opinion Poll on the earlier phases, will have the potential to influence the voting pattern in the subsequent phases. Similarly, the Opinion Polls, which are conducted during the run-up to the poll, are also likely to influence the minds of the electors. The Commission has been of the view that there should be some restriction or regulation on the
publishing/dissemination of the results of Opinion Polls and Exit Polls. The Commission had issued some guidelines in this regard in 1998. This was challenged in petitions before Courts and subsequently on the observation of the Hon'ble Supreme Court that the Commission did not have the power to enforce the guidelines, the same were withdrawn by the Commission.
In the context of the recent general elections, the Commission had convened a meeting of political parties on the 6th April, 2004, to discuss the issue of Opinion Polls and Exit Polls. The meeting was attended by representatives of all the six national parties and eighteen out of the forty-five State parties. The unanimous view of all the participating members was that conducting the Opinion Polls and publishing results thereof, should not be allowed from the day of issue of statutory notification calling the election and till the completion of the poll. It was suggested that in a multi-phased election where poll is taken on different dates, such prohibition in the conducting and publishing the result of Opinion Polls should be for the entire period starting from the date of notification of the 1st phase of election and until the completion of the poll in the last phase. On the subject of Exit Polls, all the political parties were of the view that in a multi-phased election, result of Exit Polls should not be allowed to be published until the completion of the poll in the last phase.
After obtaining the views of the political parties, the Commission had, on the same day (6.4.2004), recommended to the Law Ministry that there should be a specific provision in the Representation of the People Act, 1951, prohibiting publishing and disseminating the result of Exit Polls and Opinion Polls during the period mentioned in the above paragraph. The Law Ministry obtained the opinion of the Attorney-General for India, who opined that prohibiting the publication of Opinion Polls and Exit Polls would be a breach of Article 19(1) of the Constitution of India. He suggested that certain guidelines could be laid down to provide that while disseminating results of poll surveys, the agency concerned should provide the public with sufficient information regarding the name of political party/organization which commissioned the survey, the identity of the organization conducting the survey and the methodology employed, the sample chosen and the margin of error, etc., and that it is open to the Commission in exercise of its plenary powers under Article 324 to issue directions requiring the media to comply with the guidelines.
The Commission reiterates its view that there should be some restriction on publishing the results of Opinion Polls and Exit Polls. Such a restriction would only be in the wider interests of free and fair elections. Regarding the argument about the right to freedom of information sought to be linked to the dissemination of results of Opinion and Exit Polls, it has to be noted that the past experience shows that in many cases, the result of elections have been vastly different from the results predicted on the basis of the Exit Polls. Thus, the information claimed to be disseminated turned out to be disinformation in many cases.
The Commission recommends that there should be a restriction on publishing the results of such poll surveys for a specified period during the election process. In many of the western democracies, there exist such restrictions for various periods. [A Writ Petition (Civil) No. 207 of 2004, Shri D.K. Thakur v. Union of India seeking prohibition on Exit Polls/Opinion Polls is pending before the Hon'ble Supreme Court].
6. Prohibition of Surrogate Advertisements in Print Media
Under Section 127A(1) of the Representation of the People Act, 1951, no person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof. Sub-section (3) of the said section defines printing as any process for multiplying copies of a document, other than copying it by hand.
It has been observed that surrogate advertisements appear in print media, especially newspapers, for and against particular political parties and candidates during election period. As per Section 77(1) of the Representation of the People Act, 1951, expenditure involved in such advertisements in connection with the election of any candidate has to be added to the account of election expenses of the candidate, required to be maintained under that Section. Further, Section 171H of IPC prohibits incurring of expenditure on,
inter alia, advertisement, circular or publication, for the purpose of promoting or procuring the election of a candidate, without authority from the candidate. The surrogate advertisements defeat the purposes of the aforesaid provisions of law.
The Commission has continuously been making efforts to regulate such advertisements by urging all Newspaper establishments, to follow the requirements of Section 127A of the Representation of the People Act, 1951, in the matter of advertisements related to elections. One Newspaper firm has taken the stand that Sections 77 and 127A of the Representation of the People
Act, 1951, or Section 171H of IPC are not applicable to Newspapers.
The Commission is of the view that there should be clear provision to deal with cases of surrogate advertisements in print media. For this purpose,
Section 127A of the Representation of the People Act, 1951 may be suitably amended, adding a new sub-section (2A) to the effect that in the case of any advertisements/election matter for or against any political party or candidate in print media, during the election period, the name and address of the publisher should be given along with the matter/advertisement.
Sub-section (4) should also be suitably amended to include in its ambit the new proposed sub-section.
The Commission has received proposals from a very large number of individuals and organizations that there should be a provision enabling a voter to reject all the candidates in the constituency if he does not find them suitable. In the voting using the conventional ballot paper and ballot boxes, an elector can drop the ballot paper without marking his vote against any of the candidates, if he chooses so. However, in the voting using the Electronic Voting Machines, such a facility is not available to the voter. Although, Rule 49-O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the Register of Electors and the marked copy of the electoral roll, the secrecy of voting is not protected here inasmuch as the polling officials and the polling agents in the polling station get to know about the decision of such a voter.
The Commission recommends that the law should be amended to specifically provide for negative/neutral voting. For this purpose, Rules 22 and 49B of the Conduct of Election Rules, 1961 may be suitably amended adding a proviso that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column. None of the above, to enable a voter to reject all the candidates, if he chooses so. Such a proposal was earlier made by the Commission in 2001 (vide letter dated 10.12.2001).
(A petition by the People's Union for Civil Liberties seeking such a provision filed at the time of the recent general elections is pending before the Hon'ble Supreme Court)
8. Appointment of Appellate Authority in Districts Against Orders of Electoral Registration Officers
As per Section 24 of the Representation of the People Act, 1950, the Chief Electoral Officer of the State is the appellate authority in relation to any order of the Electoral Registration Officer under Section 22 or 23 of that Act. As approaching the Chief Electoral Officer, whose office is in the State headquarters will be difficult and inconvenient to the intending appellants in many cases, the Commission had recommended in 1998 that Section 24 of the Representation of the People Act, 1950 should be amended to provide for an appeal against the order of the Electoral Registration Officer to the District Election Officer in the district itself.
The Commission considers that the political parties have a responsibility to maintain proper accounts of their income and expenditure and get them audited by agencies specified by the Commission annually. While making this proposal in 1998, the Commission had mentioned that there was strong need for transparency in the matter of collection of funds by the political parties and also about the manner in which those funds are expended by them. Although in an amendment made, vide the Election and Other Related Laws (Amendment) Act, 2003, a provision has been made regarding preparation of a report of contributions received by political parties in excess of Rs. 20,000, this is not sufficient for ensuring transparency and accountability in the financial management of political parties. Therefore, the political parties must be required to publish their accounts (at least 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 Commission reiterates these proposals with the modification that the auditing may be done by any firm of auditors approved by the Comptroller and Auditor-General. The audited accounts should be available for information of the public.
10. Government Sponsored Advertisements
(a) It has been seen that on the eve of election, the Central and various State Governments embark on advertisement spree in the guise of providing information to the public. The expenditure on such advertisements is obviously incurred from the public exchequer. It is common knowledge that the advertisements are released with an eye on the elections, to influence the electors. In the Model Code of Conduct for the Guidance of Political Parties and Candidates, there is a Clause [Item VII(iv)] which prohibits issue of advertisement at the cost of public exchequer during election period, for the prospects of the party in power. The Model Code of Conduct comes into operation only from the date on which the Commission announces an election. The advertisements released prior to the announcement of elections, as is the practice usually resorted to, cannot be prohibited under the Model Code.
Apart from the fact that public money is spent for partisan interests of the party in power in such advertisements, this practice is also contrary to the spirit of free and fair election, as the party in power gets an undue advantage over other parties and candidates. The Commission proposes that where any general election is due on the expiration of the term of the House, advertisements of achievements of the governments, either Central or State, in any manner, should be prohibited for a period of six months prior to the date of expiry of the term of the House and in case of premature dissolution, the date of dissolution of the House. Here, advertisements/dissemination of information on poverty alleviation and health related schemes could be exempted from the purview of such a ban.
(b) There is also the practice of putting up banners and hoardings in public places, depicting achievements of governments. This should be banned, if possible. Otherwise, there should be specific provisions that name or symbol of any political party or photograph of any of the leaders of the party should not appear on such hoardings/banners.
11. Political Advertisements on Television and Cable Network
The issue of advertisements on television and cable networks, led to a lot of confusion during the recent general election. The Cable Television Network (Regulation) Rules, 1994, prohibit advertisements of political nature. This issue was raised before the Andhra Pradesh High Court, which suspended the operation of Rule 7(3) of the Cable Television Network (Regulation) Rules, 1994, relating to prohibition of advertisements of political nature. The matter went to the Supreme Court and the Apex Court, by its order dated 13.4.2004, modified the High Court's order and directed the Commission to monitor the advertisements on television and cable networks during the recent general elections. For future elections, the issue needs to be settled. The Government may consider amending the relevant provisions of the Cable Television Network (Regulation) Rules, 1994 to provide for suitable advertisement Code and monitoring mechanism.
Election Commission of India is an independent constitutional body created by the Constitution of India vide Article 324. Clause (1) of Article 324 has vested the superintendence, direction and control of the preparation of 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 of India in the Election Commission.
Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from to time fix and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
The President has, by Order dated 1.10.1993 under Clause (2) of Article 324, fixed the number of Election Commissioners as two until further orders. Although the Constitution permits the President to fix the number of Election Commissioners at any number without any limit, it is felt that in the interest of smooth and effective functioning of the Election Commission, the number of Election Commissioners should not be unduly large and should remain as two as presently fixed, in addition to the Chief Election Commissioner. The
three-member body is very effective in dealing with the complex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three-member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner.
In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is available to the Chief Election Commissioner.
The independence of the Election Commission upon which the Constitution makers laid so much stress in the Constitution would be further strengthened if the Secretariat of the Election Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts, etc. Independent Secretariat is vital to the functioning of the Election Commission as an independent constitutional authority. In fact, the provision of independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill.
13. Expenses of Election Commission to be Treated as Charged
The Commission had sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government had moved in the 10th Lok Sabha. The Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994, with the objective of providing for the salaries, allowances and pension payable to the Chief Election Commissioner and other Election Commissioners and the administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be expenditure charged upon the Consolidated Fund of India. Similar provisions already exist in respect of the Supreme Court, Comptroller and Auditor-General and the Union Public Service Commission, which are, like the Election Commission, independent constitutional bodies. To secure its independent functioning the Commission is of the opinion that the Bill, which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs reconsideration.
14. Ban on Transfers of Election Officers on the Eve of Elections
The Commission had recommended in 1998 that Section 13CC of the Representation of the People Act, 1950, and Section 28A of the Representation of the People Act, 1951 should be amended to provide that no transfer shall be made, without the concurrence of the Commission, of any officer referred to therein, as soon as a general election/bye-election becomes due in any Parliamentary or Assembly constituencies. Such transfers, often made on grounds other than administrative exigencies, disrupt the arrangements then underway for conducting smooth and peaceful elections. The Commission reiterates these recommendations. It is suggested that in the case of a general election either to the House of the People or to State Legislative Assembly, the ban may come into operation for the period of six months prior to the date of expiry of the term of the House concerned and in case of premature dissolution, the date of dissolution of the House.
As per clause (7) of Section 123 of the Representation of the People
Act, 1951, obtaining or procuring the assistance of specific categories of officials mentioned in that clause, for the furtherance of the prospects of a candidate's election, is a corrupt practice. The categories of officials mentioned in the clause are as follows:
(a) gazetted officers
(b) stipendiary Judges and Magistrates
(c) members of the armed forces of the Union
(d) members of the police forces
(e) excise officers
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions, and
(g) such other class of persons in the service of the government as may be prescribed.
In the general election to the House of the People in 1999, there was a case where a candidate cast his vote in a polling station where his name was not registered, with the permission of the Presiding Officer concerned. The issue was raised in an election petition before the Madras High Court, and the High Court observed in its judgment that although the candidate was guilty of corrupt practice, the election could not be set aside for the technical reason that the Presiding Officer in that polling station did not belong to any of the categories of officials mentioned under Clause (7) of Section 123. The High Court had also expressed the hope that the anomaly in the law would be removed.
The Commission had then recommended that Clause (7) of Section 123 of the Representation of the People Act, 1951, should be amended by including all officials appointed in connection with the conduct of elections in the category of officials mentioned in the said clause. The Commission reiterates these proposals so that similar situations do not pose any technical difficulty in future elections.
(Proposal made in Chief Election Commissioners letter dated 15th July, 1998, addressed to the Law Minister and reiterated in letter dated 22nd November, 1999 addressed to the Prime Minister) All questions of post-election disqualification of a sitting member of Parliament or of a State Legislature are decided by the President or, as the case may be, the Governor of the State concerned, on the opinion of the Election Commission, except the question of his disqualification under the provisions of the Tenth Schedule to the Constitution of India. The latter question alone is referred to, and decided by, the Speaker/Chairman of the House concerned [Articles 103 and 192 of the Constitution]. All political parties are aware of some of the decisions of the Hon'ble Speakers, leading to controversies and further litigations in courts of law. Some suggestions have been made in certain quarters, even by a former Speaker of Lok Sabha, that the questions of disqualification of members on the ground of defection should also be decided by the President and Governors, on the opinion of the Election Commission of India, which is now a three-member Constitutional body.
The Commission sees substance in the above suggestion that the legal issues of disqualifications under the Tenth Schedule should also be left to the President and the Governors of the States concerned, as in the case of all other post-election disqualifications of sitting MPs, MLAs and MLCs, under
Articles 103 and 192 of the Constitution. As in the other cases of the disqualifications under the said Articles 103 and 192, in the case of disqualifications under the Tenth Schedule also, the President or the Governor may act on the opinion given by the Election Commission.
The three-member Commission gives its opinion to the President/Governors in the matters of post-election disqualification after giving full opportunity to the parties concerned. If decisions relating to anti-defection matters are rendered by the President or the Governor, on the opinion of the Commission, the same would receive more respect and acceptability from the common people. The Commission would like to make it clear that it is not making the above proposal on its own so as to extend its jurisdiction, but is merely clarifying that it would not shirk its responsibility of tendering opinion to the President/Governors in such matters, if such a duty is cast upon it.
(Proposal made in Chief Election Commissioner's letter dated 22nd November, 1999 addressed to the Prime Minister) Superintendence, direction and control of the preparation and revision of electoral rolls for elections to the House of the People and the State Legislative Assemblies is the function entrusted to the Election Commission by Article 324(1) of the Constitution. Likewise, superintendence, direction and control of the preparation and revision of electoral rolls for elections to the Local Bodies has been entrusted to the State Election Commissioners by Articles 243K and 243ZA of the Constitution, as inserted by the Constitution 73rd and 74th Amendments
Acts, 1992.
The preparation and revision of electoral rolls for Parliamentary and Assembly Constituencies are governed by the provisions of the Representation of the People Act, 1950 made by Parliament, whereas, the preparation and revision of rolls for local bodies elections are regulated by the State laws of the State concerned. Most of the State laws provide that the electoral rolls prepared by the Election Commission for Parliamentary and Assembly elections should be the basis for the preparation and revision of rolls for local bodies elections. Whereas, in some of the States, it is further provided that the Parliamentary and Assembly rolls will be adopted in toto for local bodies elections, in other States, the Parliamentary and Assembly rolls are to be adopted only as the draft rolls for local body elections and they are subjected to further modifications by way of inclusions and deletions. In some of the cases, even the qualifying dates for the Parliamentary/Assembly rolls and local body rolls are different. This not only creates confusion among the electors because their names may be present in one roll but absent in the other, or vice versa, but also results in duplication of effort and expenditure.
In almost all the cases, the same machinery at the field level is entrusted the job of preparing and revising rolls for both types of elections. The electoral rolls for Parliamentary and Assembly constituencies are prepared and revised under the strict superintendence, direction and control of the Election Commission, with due care and caution and by incurring considerable expenditure. It will be a huge national saving, if there are common rolls for all elections, and the Parliamentary and Assembly rolls are used for local bodies elections also, by being adopted and rearranged, by the method of Cut and Paste according to the wards or polling areas of the local bodies.
This will not pose any problems to the electoral machinery in the field as it is the same at the ground level. This may need some minor amendments to the local laws of the States concerned, but will sub-serve great national interest of economy in government expenditure on elections. It may be important to note that in order to reduce such expenditure, many of the common items of polling materials like, ballot boxes, are already being used for all elections to Parliament, State Legislatures and Local Bodies.
3. Simplification of Procedure for Disqualification of a Person Found Guilty of Corrupt Practice
(Proposal made in Chief Election Commissioner's letter dated 15th July, 1998, addressed to the Law Minister and reiterated in letter dated 22nd November, 1999 addressed to the Prime Minister). The current procedure for disqualification of a person found guilty of corrupt practice is that after a High Court pronounces its judgment in an election petition, finding a person guilty of corrupt practice, the case of every such person goes to the President of India under Section 8A(1), through the concerned State Legislature Secretary or the Secretary-General of Lok Sabha or Rajya Sabha, as the case may be. Thereafter, from the President it comes under Section 8A(3) to the Election Commission, where a judicial hearing is given to the affected party and the period of disqualification is judged by the Commission and its opinion in this regard communicated to the President, who thereafter decides the period of disqualification according to such opinion.
Since the elements that go into what can be construed as a corrupt practice under the Act are numerous in number and keeping in mind the political reality in the country, it may not be correct to have a uniform automatic disqualification for six years for all those found guilty of corrupt practices, as is being advocated in certain quarters. Therefore, the existing system whereby there is flexibility in the quantum of punishment to be meted out to a candidate found guilty of corrupt practice, having regard to the nature and gravity of the corrupt practice committed, should continue. Because, what is termed as a corrupt practice under the laws relating to elections varies from acts that are extremely objectionable, to those of a small technical infringement. For example, a candidate using a cycle-rickshaw or a three-wheeler or his own car for providing conveyance to a handful of voters commits, technically speaking, the same corrupt practice as does a candidate who hires fleet of cars, trucks and trolleys to ferry large crowds of voters to and from polling stations. Both these candidates cannot, and should not, be put on par in the matter of quantum of punishment. The Election Commission, which is a multi-member body, is in close touch with the polity and is aware of the political reality that exists in the country.
Therefore, the Election Commission is in the best position to decide, on the gravity of the corrupt practice and the period of disqualification that it should attract. It may again be mentioned here that Election Commission arrives at those findings after giving a judicial hearing to the person convicted of corrupt practice.
What is required to be done is to ensure that a decision on such questions of disqualification be rendered expeditiously, as the period of disqualification in such cases cannot exceed six years from the date of order of the High Court/Supreme Court. Under the existing provisions of Section 8A of the Representation of the People Act, 1951, the case of a person found guilty of corrupt practice by an order under Section 99 of the Act, is to be submitted to the President of India by the authority specified by the Central Government. The Government of India, by its notification dated 25.5.1976, has specified the Secretary General of the House of the People or the Council of States, in relation to an election to the House of the People or the Council of States, as the case may be, and the Secretary of the State Legislative Assembly or the Legislative Council, as the case may be, in relation to an election to the State Legislature concerned, as the authority to submit cases of disqualification to the President of India. Needless to add here, often, for very obvious reasons, there is inordinate delay in the reference to emanate from the Secretaries of the Houses concerned. In one case, such reference was made by the Secretary of the House concerned after nearly five years, and in another, after more than two years. The procedure could be simplified considerably and the required objective ensured if the Secretary to the Election Commission of India is specified as the authority under sub-section (1) of Section 8A to submit cases of disqualification under that Section to the President. This could be done by issuing a simple amendment to the notification dated 25.5.1976 of the Ministry of Law and Justice issued under that section.
(Proposal made in Chief Election Commissioner's letter dated 22nd November, 1999 addressed to the Prime Minister) As per the existing provisions of Section 33(1) of the Representation of the People Act, 1951, as amended in August, 1996, the nomination of a candidate set up by a recognised political party should be subscribed by one elector as proposer, and, in the case of an independent candidate or a candidate set up by a registered unrecognised political party, it should be subscribed by ten electors as proposers.
This amended provision, instead of being helpful to recognised parties and their candidates, has resulted in great disadvantage to them. First of all, it has cut short, by at least three precious days, the time available to the parties for making the selection of their candidates. Previously, this process of selection could go on till the last date for the withdrawal of candidatures. But now, under the amended law, this process has to be completed by them well before the last date for making nominations, as the party authorisation in Forms A and B in respect of their sponsored candidates has now to reach the Returning Officers concerned, latest by 3.00 p.m. on the last date for making nominations. Further, the experience of the general elections held in 1998 and 1999 has shown that there were instances of misunderstanding of the amended provisions, leading to rejection of nomination of several candidates. Such cases mainly related to candidates of recognised State parties, contesting elections in States where such parties were not recognised.
There were also instances where candidatures of substitute candidates set up by recognised National parties were rejected, as their nominations were not subscribed by 10 proposers, to enable them to continue in the process of election, till the last date for withdrawal of candidatures to enable the party to adopt them as their candidates in the event of the main candidate having withdrawn or wishing to withdraw from the contest. In one case, the election of a returned candidate to the Himachal Pradesh Legislative Assembly has been recently set aside by the High Court and Supreme Court, for no fault of the returned candidate, as the Returning Officer failed to apply the provisions of the amended law properly and wrongly rejected the nominations of certain other candidates.
In order to restore the lost advantage to the parties and to prevent recurrence of the above-mentioned incidents of rejection of nominations, it is proposed that the provisions of the said Section 33(1) may be made uniform for all candidates and the number of proposers may be fixed as (10) ten in all cases. It will not cause any inconvenience to the recognised parties and, on the contrary will be greatly beneficial to them, as will be seen from the above.
5. Making of False Declaration in Connection with Elections to be an Offence
(Proposal made in Chief Election Commissioner's letter dated 15th July, 1998 addressed to the Law Minister) Making of any false statement or declaration before the Election Commission, Chief Electoral Officer, District Election Officer, Presiding Officer or any authority appointed under the Representation of the People Act, 1951, in connection with any electoral matter, should be made an electoral offence under the said Act, on the lines of Section 31 of the Representation of the People Act, 1950 which makes any false declaration or statement in connection with the preparation/revision of electoral rolls or inclusion/exclusion of any name in/from the electoral roll an electoral offence.
6. Rule Making Authority to be Vested in Election Commission
(Proposal made in Chief Election Commissioner's letter dated 15th July, 1998 addressed to the Law Minister) Rule making authority under the Representation of the People Act, 1950 and Representation of the People Act, 1951, should be conferred on the Election Commission, instead of on the Central Government, who should, however, be consulted by the Election Commission while framing any rule.
7. Registration and De-registration of Political Parties Strengthening of Existing Provisions
(Proposal made in Chief Election Commissioner's letter dated 15th July, 1998 addressed to the Law Minister) Political parties are registered with the Commission under the provisions of Section 29A of the Representation of the People Act, 1951. The Section, as it stands, suffers from certain looseness by which just about any small group of persons, if they so desire, can be registered as a political party, by making a simple declaration under Section 29A(5). This has resulted in mushrooming and proliferation of a large number of non-serious parties, which causes a considerable systems load in the management of elections. By way of example, more than 650 parties are presently registered with the Election Commission, out of which only 150 or so contested in the general elections of 1998. The same trend was there in 1996 general elections as well as in 1991 general elections. Since the lay public is not aware as to how easy it is to get a political party registered with the Election Commission, probably, the motivation for the non-serious parties to get registered is to give some sort of a distorted aura of their status and standing in their localities, particularly in rural and mofussil areas. The Commission feels that election is a serious process and this tendency of small groups of individuals, who have no serious interest or desire to contest elections, should not easily be allowed to get the official stamp from the Commission as active political parties.
In addition to there not being sufficient conditions under Section 29A to deny registration to a political party, the section also suffers from a serious infirmity that once registered, a political party would stay registered in perpetuity, even if, it does not contest any election over decades of its existence. This is because there is no specific provision to de-register a party. Similarly, certain political parties, which have served their purpose and have presently become defunct, which is normal in the functioning of a democracy, also stay on the rolls of the Commission as functioning political parties. It can readily be seen that the state of affairs is not a happy one. The Commission, therefore, suggests that under the existing Section 29A of the Representation of the People Act, 1951, another clause may be introduced authorising the Election Commission to issue necessary orders regulating registration and de-registration of political parties.
According to Article 54 of the Constitution of India the President is elected by the members of an Electoral College consisting of-
(a) the elected members of both the Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
By the Constitution (Seventieth Amendment) Act, 1992, an Explanation added to Article 54 for the purposes of Electoral College, thereby the 'State' includes the National Capital Territory of Delhi and the Union Territory of Pondicherry.
Therefore, it is clear that only the elected members of both the Houses of Parliament and of the State Legislative Assemblies are the electors for a presidential election.
If a State Legislative Assembly is suspended and kept under suspended animation, the members of such suspended Legislative Assembly are eligible to be included in the Electoral College for the presidential election.
The Supreme Court in a case1 observed that-
"The electoral college as mentioned in Article 54 is independent of the Legislatures mentioned in Article 54. None of the Legislatures mentioned in Article 54 has for the purpose of that Article any separate identity vis-a-vis the electoral college. The words "electoral college" consisting of an Article 54 mean that the electoral college shall consist of persons mentioned therein. The words 'consisting of' refer to the strength of the electoral college. The House of Parliament and the Legislative Assemblies are mentioned in Article 54 only for the purpose of showing the qualifications of members of electoral college. The dissolution of the Assembly means that there are no elected members of that dissolved Assembly. The electoral college is always ready to meet the situation at the expiry of the term of office or any vacancy caused by death, resignation or removal of members of the electoral collage. They are no longer members of the electoral college consisting of the elected members of both the Houses of Parliament and elected members of the Legislative Assemblies of the States and are, therefore, not entitled to cast votes at the Presidential election".
_______________
1. P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.2. MANU/SC/0445/1973 : AIR 1973 SC 1461.
Article 55 of the Constitution prescribes:
(1) As far as practicable, there shall be uniformity in the scale of representation of the different States at the election of the President.
(2) For the purpose of securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and the Legislative Assembly of each State is entitled to cast at such election shall be determined in the following manner:-
(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly;
(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as many be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of the elected members of both the Houses of Parliament, fractions exceeding one-half being counted as one and other fraction being disregarded.
(3) The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
Explanation.-In this Article, the expression "Population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 1971 census.
Article 58(1) has laid down that no person shall be eligible for election as President unless he-
(a) is a citizen of India,
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the House of the People.
Article 58(2) says that a person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
The Explanation of this Article provides that, a person shall not be deemed to hold any office of profit by reason only that he is the President or
Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.
If the "pecuniary gain" is receivable in connection with the office, then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.1
It is provided under the Constitution that the candidates for election to the House of the People have to make and subscribe an oath or affirmation in the form prescribed in the Third Schedule to Constitution. But, for the candidates for election as President no oath is prescribed.
In Baburao Patel v. Zakir Hussain,2 the Supreme Court held that the candidate for election as President was not required to take any oath for becoming eligible for such election under Article 58 of the Constitution. The Election Commission could not prescribe the form of oath and lay down a new qualification for a candidate for Presidential election under Article 324 of the Constitution as the law does not prescribe any oath for such candidate.
In Charan Lal Sahu v. Giani Zail Singh,3 it was held by the Supreme Court that, although one of the qualifications for election as President prescribed under Article 58 is that candidate must be qualified for election as a member of the House of the People and Article 84(a) prescribes an oath or affirmation set out in the Third Schedule as an essential qualification for being chosen to fill a seat in Parliament, the Third Schedule does not prescribe any form of oath or affirmation for a person who desires to contest a Presidential election.
The failure to take oath cannot render the Presidential election unconstitutional.
He is elected by the members of an electoral college
He shall vacate membership of either House of Parliament or State Legislature if any
Explain the eligibility of a person for election as Vice-President
Article 66(1) of Constitution provides that, the Vice-President is elected by the members of an Electoral College consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election is cast by secret ballot.
Again Article 66(2) says that, the Vice-President shall not be a member of either House of the Parliament or of a House of a Legislature of any State, and if a member of either House of the Parliament or of a House of the Legislature of any State be elected Vice-President, he shall be deemed to have vacated his
_________
1. Jaya Bachchan v. Union of India, MANU/SC/2395/2006 : AIR 2006 SC 2119.
2. MANU/SC/0351/1967 : AIR 1968 SC 904.
3. MANU/SC/0204/1983 : AIR 1984 SC 309.
seat in that House on the date on which he enters upon his office as Vice-President.
According to Article 66(3):
No person shall be eligible for election as Vice-President unless he-
(a) is a citizen of India;
(b) has completed the age of thirty-five years; and
(c) is qualified for election as a member of the Council of States.
Vice-President to make and subscribe before the President an oath or affirmation
Article 66(4) says that, a person shall not be eligible for election as
Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any other local authority subject to the control of any of the said Government.
But a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.
Though for a candidate who is contesting for the post of Vice-President, no oath or affirmation is prescribed any where. But, Article 69 prescribes that every Vice-President shall, before entering upon his office, make and subscribe before the President, or some person appointed in that behalf by him an oath or affirmation.
According to Article 79 of the Constitution of India, there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as:
(i) The Council of States (Rajya Sabha); and
(ii) The House of the People (Lok Sabha).
Article 80(1) provides that, the Council of States shall consist of-
(a) twelve members to be nominated by the President; and
(b) not more than two hundred and thirty-eight representatives of the States and of the Union Territories.
Therefore, the maximum number of members in the Council of States (Rajya Sabha) can be 250.
According to Article 80(3), the members to be nominated by the President shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-
· Literature;
· Science;
· Art; and
· Social Service.
|
Election of representative of States |
Election of representative of Union Territories |
|
1 |
2 |
|
The representative 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 [Article 80(4)]. |
The representative of the Union Territories in the Council of State shall be chosen in such manner as Parliament may by law prescribe [Article 80(5)]. |
Article 80(2) of the Constitution provides that, the allocation of seats in the Council of States to be filled by representatives of the States and of the Union Territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule to the Constitution of India.
What is the maximum permissible strength and composition of the Lower House?
Unlike the Council of States, the House of the People is not a permanent House. The House of the People is also known as the Lower House of the Parliament, consisting of the representatives of the people of India, chosen directly by them. The Union Council of Ministers is collectively responsible to this House.
In what manner number seats of the Lower House allotted to each State?
Article 81 restricts the strength of the House of the People to 550 elected members. Besides, Article 331 provides that if the President is of opinion that the Anglo-Indian Community is not adequately represented in the House of the People, he can nominate not more than two members of that community to the House of the People (Lok Sabha).
According to Article 81(1), out of 550 elected members not more than 530 members shall be chosen by direct election from territorial constituencies in the States and not more than 20 members to represent the Union Territories.
Article 81(2) provides that, there shall be allocated to each State a number of seats in the House of the People in such manner that the ratio between the number and the population of the State is, so far as practicable, the same for all States:
Provided that this provision shall not be applicable for the purpose of allocation of seats in the House of the People to any State so long as the population of that State does not exceed six millions. In addition to this, each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State.
In R.C. Poudyal v. Union of India,1 it was observed by the Supreme Court that "........ so long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational State policy some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral State Legislature".
According to Article 81(3) of the Constitution of India, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published. Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published which is construed as a reference to the 1971 census and 2001 census as well.
What is the qualification for a person to be chosen to fill a seat in Parliament?
Article 82 of the Constitution provides that, upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine. Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House. Again, provided that such readjustment shall take effect from such date as President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment. Provided further that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust-
(i) the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and
(ii) the division of each State into territorial constituencies as may be adjusted on the basis of the 2001 census.
According to Article 84 of the Constitution of India, a person shall not be qualified to be chosen to fill a seat in Parliament 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 and affirmation according to the form set out for the purpose in the Third Schedule (to Constitution);
(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
__________
1. MANU/SC/0292/1993 : AIR 1993 SC 1804.
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
Mention the States having two Houses?
India is a union of States and every State has its own separate State Legislature.
Article 168(1) of the Constitution provides that, for every State there shall be a Legislature which shall consist of the Governor, in the States of Andhra Pradesh, Bihar, Maharashtra, Karnataka and Uttar Pradesh, two Houses and in other States, one House. Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.
What is the procedure of composition of State Legislative Assemblies?
According to Article 170(1), the Legislative Assembly of each State shall consist of not more than five hundred and not less than sixty members chosen by direct election from territorial constituencies in the State. In addition to this, it is provided in Article 333, the Governor of a State may, if he is of opinion that the Anglo-Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly.
Article 170(2) provides that, each State shall be divided into territorial constituencies in such manner that the ratio between the 'population' of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State.
The expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published. Provided that the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the
year 2026 have been published, be construed as a reference to the 2001 census.
Why the readjustment of seats is made?
How many States are having Legislative Councils?
According to Article 170(3), upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine. Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly. Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment. Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust-
(i) the total number of seats in the Legislative Assembly of each State as readjusted on the basis of the 1971 census; and
(ii) the division of such State into territorial constituencies as may be adjusted on the basis of the 2001 census.
This clause has been provided in the Constitution in order to keep pace with the changing demographic conditions. It was held by the Supreme Court in R.C. Poudyal v. Union of India,1 that, "the system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position".
Unlike Legislative Assembly, Legislative Council belongs to only in few States. In other words, every State has a Legislative Assembly, but all States do not have a Legislative Council. Article 168(1)(a) of the Constitution of India provides that, at present Legislative Council is in only five States, namely, Andhra Pradesh, Bihar, Karnataka, Maharashtra and Uttar Pradesh.
The State of Jammu and Kashmir has also a Legislative Council, but all matters relating to it, are regulated by the Jammu and Kashmir Constitution and the Jammu and Kashmir Representation of the People Act, 1957.
How the Legislative Councils in States are abolished or created?
Article 169(1) of the Constitution of India, empowers Parliament that, it may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of not less than two-thirds of the members of the Assembly present and voting.
The Legislative Council of concerned State may be abolished by Parliament by law, but these Councils, are not subject to dissolution and are ever continuing. Upper Houses of a concerned State Legislature is a bicameral legislature.
What is the Procedure of Composition of Legislative Council?
Article 171 of the Constitution restricts that, the total number of members in the Legislative Council of a State having such a Council shall not exceed one- third of the total number of members in the Legislative Assembly of that State:
Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.
__________
1. MANU/SC/0292/1993 : AIR 1993 SC 1804.
Unlike the elected members of the Parliament (both the Council of States and the House of the People), who represent the common people of the territorial constituencies, the members of a State Legislative Council represent variety of interests. The members of the State Legislative Councils are the representatives of:
(i) graduates of any university or persons having equivalent qualifications. (The territorial Council constituencies known as "graduates, constituencies");
(ii) persons engaged in teaching in educational institutes. (The territorial Council constituencies known as "teachers, constituencies");
(iii) members of municipalities, district boards and such other local authorities; and (The territorial Council constituencies known as "local authorities constituencies");
(iv) members of the Legislative Assembly of the State.
Besides, the Constitution has empowered the Governor to nominate few members to the Legislative Council.
The members of the Legislative Councils of the States have been granted the status of special representatives. Article 171(3) of the Constitution of India provides that of the total number of members of the State Legislative Council the special representation is being provided in the following manner:
(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutes within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor.
Where Article 171(3)(e) empowers the Governor to nominate few members to the Legislative Council of that concerned State. Article 171(5) throws light on the provisions to whom Governor can nominate as a member to the Council. According to this, persons having special knowledge or practical experience in respect of such matters as the following, namely:-
· Literature;
· Science;
· Art;
· Co-operative movement; and
· Social service,
can be nominated by the Governor.
What is the qualification for a person to be chosen to fill a seat in the Legislature of a State?
Article 171(4) provides that, the members to be elected or chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament and the election shall be held in accordance with the system of proportional representation by means of the single transferable vote.
According to Article 173 of the Constitution of India, 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 case of a seat in a Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
Under Article 324 the superintendence, direction and control of elections is vested in a Chief Election Commissioner and such number of Election Commissioners as the President of India may fix. President in consultation with Chief Election Commissioner may appoint Regional Commissioners. Again, he can be removed from the office in like manner as a Supreme Court Judge.
Article 324 reads:
Superintendence, direction and control of elections to be vested in an Election Commission,-
(1) 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 or elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
Scope of Article 324.-Article 324, operates in areas left unoccupied legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections', are the broadest terms.
The Supreme Court in Election Commission of India v. Ashok Kumar,1 held that, the words "superintendence, direction and control" have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.
____________
1. MANU/SC/0540/2000 : (2000) 8 SCC 216.
In N.P. Ponnuswami v. Returning Officer, Namakkal,1 the Supreme Court held that, "the word 'election' has been used in Part XV of the Constitution of India in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the Legislature".
Again, in Mohinder Singh Gill v. Chief Election Commissioner,2 the Apex Court held that, the world 'election' has a very wide connotation commencing from the presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
Only citizens of India of not less than eighteen years of age are eligible to vote
The abolition of post of Election Commissioners by the President and consequential termination of the service of the incumbent of the abolished post, cannot be made a ground of action. There is no illegality in such termination of service.3
However, the wide powers of the Election Commission relating to direction and central may be, its orders must be traceable to some existing law and cannot violate the provisions of any law including State Acts. But the precautionary measures which can be taken without violating any statutory provision would not be illegal.4
Article 325 of the Constitution restricts that, there is to be only one electoral roll for every territorial constituency and no person is ineligible for election to either House of Parliament or State Legislature on the grounds of religion, race, caste, sex or any of them.
Article 325 reads:
No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.-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 ineligile 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.
While Article 326 restricts:
Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.-The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence,
_______________
1. MANU/SC/0049/1952 : AIR 1952 SC 64.
2. MANU/SC/0209/1977 : AIR 1978 SC 851: (1978) 1 SCC 405.
3. S.S. Dhanoa v. Union of India, MANU/SC/0399/1991 : AIR 1991 SC 1745.
4. Dasappa v. Election Commission, AIR 1992 Karn 230.
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
Article 327 provides:
Power of Parliament to make provision with respect to elections to Legislatures.-Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
Article 328 empowers the Legislature of a State to make provision with respect to elections to such Legislature:
Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
What is the Limitation of State Legislature to make provisions with respect to elections?
The Representation of the People (Third Amendment) Act of 2002 inserted Section 75A in the Representation of the People Act, 1951 with regard the provision for declaration of assets and liabilities by a candidate whereby every elected candidate for a House of Parliament shall, within 90 days from the date on which he makes and subscribes an oath of affirmation, according to the form set out for this purpose in Third Schedule to the Constitution of India, for taking his seat in either House of Parliament furnish the information relating to the movable and immovable property of which he, his spouse and his dependant children are jointly or severally owners or beneficiary, and his liabilities to any public financial institution and his Liabilities to the Central Government or the State Government.
These informations are to be given to the Chairman of the Council of States (Rajya Sabha) or the Speaker of the House of People (Lok Sabha).
Faced with serious criticisms of attempts made by vested interest to corrupt the process of election by clandestinely providing funds in the form of black money to the political parties, the Parliament amended the Companies Act, 1956, the Income Tax Act, 1961 and the Representation of the People Act, 1951.
Article 329 reads:
Notwithstanding anything in this Constitution:
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Elections can be free and fair, if they are transparent and subject to judicial scrutiny. Our election law based on both the above aspects.
The Supreme Court in V.S. Achuthanandan v. P.J. Francis,1 held that, free, fair, fearless and impartial elections are the guarantee of a democratic polity. Effective mechanism is the basic requirement for having such election. For conducting, holding and completing the democratic process, a potential law based upon requirements of the society tested on the touchstone of the experience of times is concededly of paramount importance. A balance judicial approach in implementing the laws relating to franchise is the mandate of this Court.
Every election to any elected body or elective office is subject to judicial scrutiny. Our Constitution, prescribes the manner in which, a dispute relating to an election to any elected body or elective office, shall be submitted for resolution by judicial process.
Article 329 provides that:
Bar to interference by courts in electoral matter.-Notwithstanding anything in this Constitution-
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency,2 the issue before the Apex Court was-what was the role of the Courts vis-a-vis electoral matters and what was the meaning of 'election' in Article 329(b)? The Supreme Court observed that, the question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the
______________
1. (1999) 2 LRI 200.
2. MANU/SC/0049/1952 : AIR 1952 SC 64
extraordinary jurisdiction of the High Court under Article 226 of the Constitution, and another after they have been completed by means of an election petition.
The Apex Court held that, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. But, those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the Article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by High Court at the pre-polling stage and by the election tribunal, which is to be independent body, at the stage when the matter is brought up before it.
The conclusion may be summed up briefly as follows:
(1) Having regard to the important functions which the Legislatures have to perform in democratic countries, it has always been recognised to be matter of first importance that elections should be concluded as soon as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that of no significance and if any irregularities are committed while it is in the progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
Similarly in Election Commission of India v. Ashok Kumar,1 the Apex Court observed that:
(i) If an election (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of
_____________
1. MANU/SC/0540/2000 : (2000) 8 SCC 216.
notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(ii) Any decision sought and rendered will not amount to 'calling in question an election' if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(iii) Subject to the above, the action taken or orders issued by the Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as, on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(iv) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and the stage is set for invoking the jurisdiction of the court.
(v) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of
Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precisions and supporting the same by necessary material.
The High Court/appellate Court should attach great value to the appreciation of evidence by trial Court moreso when the trial Judge recording findings of fact is the same who had recorded the evidence.1
What are the grounds on which an election may be challenged by means of a petition?
Section 100 of the 1951 Act deals with the grounds on which an election may be challenged by means of election petition. Section 100 reads:
___________
1. Baldev Singh Mann v. Surjit Singh Mann, MANU/SC/8309/2008 : (2009) 1 SCC 633.
Grounds for declaring to be void-
(1) Subject to the provisions of sub-section (2), if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice 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; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide the election of the returned candidate is not void.
Can Civil Courts interfere in electoral matters?
Where two candidates 'P' and 'M' were set up by unrecognised political parties. Both their nomination papers were subscribed each by ten electors of the constituency as proposers. The Returning Officer had no other option but to accept their nomination forms as none of them was otherwise disqualified and the nomination forms also did not suffer from any other infirmity. The nomination paper of 'P' did not mention the choice of any symbol. The nomination paper of 'M' mentioned 'telephone', the symbol of the Himachal Vikas Congress, as the symbol of first preference and left the second and third preferences blank. The Election Commission could have allotted an appropriate symbol to each one of the two candidates to which he was entitled subject to nomination having been accepted by the Returning Officer. The Designated Election Judge was, therefore, right in rejecting the said nomination papers. Illegal rejection of a nomination is by itself a ground under Section 100(1)(c) of the Representation of the People Act for setting aside an election without further proof of the result of the election of the returned candidate having been materially affected.1
In L.R. Shivaramagowda v. T.M. Chandrashekar,2 it was held by the Supreme Court that, in order to declare an election to be void under Section 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. One will reach in vain for an averment in the election petition that the candidate had spent for the election an amount exceeding the prescribed limit or that the result of the election was materially affected by the failure of the appellant to give true and correct account of expenditure. In the absence of either averment, it was not open to the complainant petitioner to adduce evidence to that effect. It cannot be denied that these two matters are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts.
Therefore, in Section 100(1)(c) the petitioner has nothing to prove further as to the effect of any of those things on the result of the election, as the law presumes that any of those grounds are sufficient by themselves for the whole election to be declared void.
But when election petition is filed in which any of the grounds mentioned in Section 100(1)(d) are taken as the basis for challenging the election, the petitioner has not only to prove and establish the facts alleged but has also to prove further that those facts had materially affected the result of the election in so far as the returned candidate is concerned.
Under Section 30 of the Representation of the People Act, 1950, it is expressly provided that civil courts shall have no jurisdiction to interfere in electoral matters. Here, civil courts mean the courts subordinate to the High Courts, which are also a creation of the Constitution.
Section 30 of 1950 Act reads:
No civil court shall have jurisdiction-
(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or
(b) to question the legality of any action taken by or under the authority of an Electoral Registration Officer, or of any decision given by any authority appointed under this Act, for the revision of any such roll.
_____________
1. Krishna Mohini v. Mohinder Nath Sofat, MANU/SC/0681/1999 : (2000) 1 SCC 145.
2. MANU/SC/0756/1998 : (1999) 1 SCC 666.
Similarly, under Section 170 of the Representation of the People Act, 1951 provides that:
"No Civil Court shall have jurisdiction to question the legality of any action taken or of any decision given by the returning officer or by any other person appointed under this Act in connection with an election".
From the time of the very first general elections an election petition is a special statutory proceeding governed by the provisions of Article 329(b) and the law made thereunder. The Supreme Court in Jyoti Basu v. Devi Ghosal,1 enunciated the Constitutional position in the following words:
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a Fundamental Right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on consideration of alleged policy because policy in such matters, as those, relating to the trial of election disputes, court is put in a straight jacket. Thus, the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right upto the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People
Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and
self-contained code within which must be found any right claimed in relation to an election or an election dispute.
Again, in Azhar Hussain v. Rajiv Gandhi,2 the Apex Court explained that:
In a democratic polity 'election' is the mechanism devised to mirror the true wishes and the will of the people in the matter of choosing their political managers and their representatives who are supposed to echo their views and represent their interest in the Legislature. The results of the election are subject
______________
1. MANU/SC/0144/1982 : AIR 1982 SC 983.
2. MANU/SC/0284/1986 : AIR 1986 SC 1253.
to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the 'true' will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the 'true will' is ascertained the Courts will step in to protect and safeguard the purity of elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not the 'free' and 'true' will exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all. And the Courts would, therefore, it stands to reason, be justified in setting aside the election in accordance with law if the corrupt practices are established. So also when the essential qualifications for eligibility demanded by the constitutional requirements are not fulfilled, the fact that the successful candidate is the true choice of the people is a consideration which is totally irrelevant notwithstanding the fact that it would be virtually impossible to re-enact the elections and reascertain the wishes of the people at the fresh elections the time scenario having changed.
In case of Fulena Singh v. Vijay Kumar Sinha,1 it was held by the Supreme Court that the Laconic and unreasoned orders are unsustainable. Allowing the interlocutory applications as a matter of course without assigning reasons may have serious bearing on the main application which is awaiting trial and disposal.
Briefly explain the `computation of limitation period' in case of presentation of election petition?
Article 329(b) of the Constitution provides that, no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
In Hari Vishnu Kamath v. Ahmed Isheque,2 it was held by the Supreme Court that Article 329(b) prohibited only the 'initiation' of proceedings, questioning an election, in any manner other than by an election petition and once that proceeding was initiated by filing an election petition, the requirement of
Article 329(b) were met and, thereafter, the trial of the petition by the election tribunal was subject to the general law and to the supervision of High Courts over tribunals.
In these circumstances, the Election Commission recommended that the trial of election petitions should be entrusted to the High Courts instead of the election tribunals. In the light of this recommendation-
1. the jurisdiction of Election Commission to appoint Election Tribunal was taken away in 1966; and
2. A new Section 80A, was inserted in 1957-Act, that the Court having the jurisdiction to try an election petition shall be the High Court.
_____________
1. MANU/SC/0124/2009 : (2009) 5 SCC 290.
2. 10 ELR 216.
The first day of the period of limitation is required to be excluded for the convenience of the parties and if the declaration of the result is delayed or is done late in the night, the candidate or elector would hardly get any time for presentation of the election petition. Law comes to the rescue of such parties to give full forty-five days period for filing the election petition. Nevertheless, any petition presented on the date of election of the returned candidate would be certainly within the period of limitation as it is a presentation on the day of election of returned candidate.1
Section 80(1) of the Representation of the People Act, 1951 provides that, an election petition calling in question any election may be presented within
forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. This means that the election petition can be filed only after the result of the election declared.
The expression 'the date of election' is provided in Section 67A of the Representation of the People Act, 1951 according to that, the date on which candidate is declared by the returning officer under the provisions of Section 53 or Section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.
"The first day of the period of limitation is required to be excluded for the convenience of the parties and if the declaration of the result is delayed or is done late in the night, the candidate or elector would hardly get any time for presentation of the election petition. Law comes to the rescue of such parties to give full forty-five days period for filing the election petition. Nevertheless, any petition presented on the date of election of the returned candidate would be certainly within the period of limitation as it is a presentation on the day of election of returned candiate".1
Section 9 of the General Clauses Act, 1897 provides that, "In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any other period of time to use the word to".
Therefore, in the computation of the period of 45 days for the filing of an election petition, the date on which the result of the election was declared by the returning officer, is to be excluded.
In Ramlal v. Rewa Coal Fields Limited,2 the Supreme Court held that the litigant has a right to avail limitation upto the last day. Accordingly, an election petition can be filed on the 45th day also. Further, the last day will mean the whole of the day and upto the normal closing hours of the High Court.
_____________
1. T.P. Chaterjee v. D.N. Sharma, AIR 2000 SC 36.
2. MANU/SC/0042/1961 : AIR 1962 SC 361: (1961) 2 SCJ 556.
However, the Courts have the discretion to condone the delay in the filing of a suit or petition, if the inability to present it on the last day of limitation and each day thereafter, till it is actually presented, is explained to the satisfaction of the Court under Section 5 of the Limitation Act, 1963. But the Supreme Court in Hukumdev Narain v. Lalit Narain Mishra,1 held that the 1951-Act is a
self-contained Code and that the provisions of Section 5 of the Limitation Act do not apply to the presentation of election petitions. Thus, the High Court has no discretion or power to condone the delay on any ground at all.
Whether the applicability of Section 10 of the General Clauses Act to the presentation of election petitions under the RP Act is excluded (which explains 'computation of time')? No doubt the RP Act is a self-contained Code even for the purpose of the limitation prescribed therein. This, however, does not answer the question. It has to be seen whether the context excludes the applicability of Section 10 of the General Clauses Act which is in the part therein relating to the General Rules of Construction of all Central Acts. The legislative history of prescribing limitation of presentation of election petitions in accordance with sub-section (1) of Section 81 is also significant for a proper appreciation of the context. Admittedly, Section 10 of the General Clauses Act applied when by virtue of the requirement in the then existing sub-section (1) of Section 81, the period of limitation was prescribed by Rules framed under the RP Act, in
Rule 119 of the 1951 Rules. This was expressly provided by Rule 2(6) of the 1951-Rules. There is nothing to indicate that providing the period of limitation in sub-section (1) of Section 81 itself by substitution of certain words by Act No. 27 of 1956 instead of prescribing the limitation by rules, was with a view to exclude the applicability of Section 10 of the General Clauses Act. The change appears to have been made to provide for a fixed period in the Act itself instead of leaving that exercise to be performed by the rule making authority. An express provision in Rule 2(6) of the 1951 Rules was required since the General Clauses Act ipso facto would not apply to Rules framed under the Central Act, even though it would to the Act itself. The context supports the applicability of Section 10 of the General Clauses Act instead of indicating its exclusion for the purpose of computing the limitation prescribed in sub-section (1) of Section 81 for presentation of election petition.2
In case when the 45 days period expired during the vacation of the Court, the petition is time-barred. In Mohd Ali v. Azad Mohd.,3 the period of 45 days prescribed for filing an election petition expired during the period of summer vacation of the High Court. When the election petition filed on the re-opening of the High Court after the summer vacation, it was held by the High Court the petition is time-barred because for the purpose of hearing the election petition the High Court was not closed during the summer vacation. The Supreme Court upheld the judgment of the High Court and found no merit in the appeal. As in November, 1995 notification, it was clearly mentioned that the High Court shall remain open during the summer vacation.
______________
1. MANU/SC/0247/1973 : AIR 1974 SC 480.
2. Manohar Joshi v. Nitin B. Patil, MANU/SC/0217/1996 : AIR 1996 SC 796.
3. MANU/SC/0545/1999 : AIR 1999 SC 3429.
Can a general election as a whole can be challenged?
What will be the effect when law amended during the pendency of election petition?
A general election as a whole cannot be called in question by means of one election petition or by writ petition. In Indrajit Barua v. Election Commission,1 the Supreme Court held:
"In the first place, Article 329(b) of the Constitution bars any challenge to the impugned elections by a writ petition under Article 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the bar of Article 329(b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the bar of Article 329(b), therefore, does not stand in the way of the writ petitions filed by them challenging the impugned elections. But we do not think this escape route is open to the petitioners. There is in the Representation of the People Act, 1951, no concept of election as a whole. What that Act contemplates is election from each constituency and it is that election which is liable to be challenged by filing an election petition. It may be that there is a common ground which may vitiate the elections from all the constituencies but even so it is the election from each constituency which has to be challenged though the ground of challenge may be identical. Even where in form the challenge is to the elections as a whole, in effect and substance what is challenged is election from each constituency and Article 329(b) must, therefore, held to be attracted".
In Raj Narain v. Indira Gandhi,2 the Apex Court observed:
"The law makers, assembled in Parliament, are presumed to know and understand their business of making laws for the welfare and well-being of the mass of the people of this country, for the protection of democracy and of free and fair elections, in accordance with the needs of the democratic process, better than Courts know and understand this".
The amendments so made in the law were given retrospective effect and made applicable even in relation to election petitions pending before High Courts and the election appeals under consideration of the Supreme Court.
On the appeal to the Supreme Court, the Apex Court applied the provisions of the amended law while deciding finally the election appeal.3
The Court should take judicial notice that the candidate who has lost by narrow margin would ordinarily make efforts and gather all kinds of material against the elected candidate and level all kinds of allegations of corrupt practice whether substantiated or not in early disposal of cases.4
_______________
1. MANU/SC/0169/1985 : AIR 1986 SC 103.
2. 57 ELR 49.
3. Indira Nehru Gandhi v. Raj Narain, MANU/SC/0304/1975 : AIR 1975 SC 2299.
4. Baldev Singh Mann v. Surjit Singh Dhiman, MANU/SC/8309/2008 : (2009) 1 SCC 633.
What is the manner in which copies to be attached with election petition?
Section 81(1) of the Representation of the People Act, 1951, clearly specifies that, an election petition can be filed by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
The meaning of candidate has been provided in Section 79(b) of 1951-Act as, 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election. Again, under Section 81(1) of 1951-Act, a person whose nomination is rejected is also a candidate for this purpose.
Further, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
In Subhash Arya v. Charanjit Singh,1 it was held that, if an elector changes his residence after the election, he still can maintain an election petition, if he was elector at the election under challenge in the petition.
Who can join as a respondent to an election petition?
Under Section 81(3) of the Representation of the People Act, 1951, it is provided that, every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
In Vinod v. Kirpal Singh,2 Court held that, copy of election petition to be supplied to other party should be photostat copy only certified by petitioner to be a true copy.
According to Section 82 of the Representation of the People Act, 1951:
A petitioner shall join as respondent to his petition-
(a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
Section 79(f) provides that 'returned candidate' means a candidate whose name has been published in report of the result as duly elected.
Again, 'contesting candidate' means:
· a candidate whose nomination was found valid on scrutiny; and
· who did not withdraw his candidature.
_____________
1. AIR 1981 Del 23.
2. AIR 1987 P&H 110.
The expression 'any other candidate' in Section 82(b) was defined by the Apex Court in Kanta Kathuria v. Manak Chand Surana,1 as a candidate at the election to which the election petition relates, and not a candidate in some other constituency.
Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency, it may be none else. Section 82 is headed 'Parties to the petition' and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while Clause (b) of Section 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Section 86(4) any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sections 82 and 86(4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.2
Thus, other than the candidates at the elections, no one can join as a respondent to an election petition.
Explain briefly the contents of election petition with the help of decided caselaws?
What do you mean by `material facts'?
What do you understand by the term `reasonable cause of action'?
What is difference between `material facts' and `material particulars'?
Can an election petitioner claim for any relief?
Section 83 of the Representation of the People Act, 1951 provides that:
(1) An election petition,-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt
___________
1. MANU/SC/0275/1969 : AIR 1970 SC 694.
2. Joyti Basu v. Debi Goshal, MANU/SC/0144/1982 : AIR 1982 SC 983.
practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleading:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
Here 'material facts' mean:
(a) facts necessary to formulate a complete cause of action;
(b) all the preliminary facts which must be proved by the party to establish a cause of action;
(c) the basic facts which constitute ingredients of particular corrupt practice;
(d) all facts which are essential to clothe the petitioner with the complete cause of action;
(e) the facts which if established would give the petitioner the relief asked for;
(f) the facts on the basis of which the Court could give direct verdict in favour of the election petitioner in case the returned candidate did not appear to oppose the petition; and
(g) facts which if not proved, the petition must fail.
Again, a 'reasonable cause of action' means, a cause of action with some chances of success when only the allegations in the pleading are considered. So long as the claim discloses some cause of action or raises some question, the mere fact that the case is weak and not likely to succeed is not ground for striking it out.
There is a difference between the 'material facts' and 'particulars'. The function of particulars is to present as full a picture of a cause of action which such information in detail to make the opposite party understand the case he will have to meet. There may be some overlapping between 'material facts' and 'particular' but the two are quite distinct. The distinction is one of decree. The 'material facts' are those which the party relies upon and which if it does not prove, he fails.
In Samant N. Balakrishna v. George Fernandez,1 Supreme Court observed that:
Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that
__________
1. 41 ELR 260.
the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information.
Again, in Udhav Singh v. Madhav Rao Scindia,1 the Supreme Court distinguished the expression 'material facts' and 'material particulars' as follows:
Like the Code of Civil Procedure, this Section 83 also envisages a distinction between 'material facts' and 'material particulars'. Clause (a) of sub-section (1) corresponds to Order 6, Rule 2 while Clause (b) is analogous to Order 6, Rules 4 and 6 of the Code of Civil Procedure. The distinction between 'material facts' and 'material particulars' is important because different consequences may flow from deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete
_______________
1. MANU/SC/0302/1975 : AIR 1976 SC 744.
allegations of such a charge are liable to be struck off under Order 6,
Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the Court has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are 'material facts'. In the context of a charge of corrupt practice, 'material facts' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are 'material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
'Particulars', on the other hand, are 'the details of the case set up by the party'. 'Material particulars' within the contemplation of Clause (b) of Section 83(1) would, therefore, mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of Clause (a). 'Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
Section 84 of the Representation of the People Act, 1951, provides that:
"A petition may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected".
Therefore, in an election petition, the election petitioner can pray for two types of relief:
(1) that the election of the returned candidate may be declared void; and
(2) that, in place of the returned candidate, either the petitioner himself (if he was a candidate) or some other candidate may be declared as having been duly elected the impugned election.
Article 226 of the Constitution of India empowers High Courts to issue certain writs. Few judgments have solved the question whether the High Court can be moved under Article 226 of the Constitution or not?
The Supreme Court held that, "The words 'arising out of a or in connection with' which are used in Article 324(1) [as the Article then stood] and the words 'with respect to all matters relating to or in connection with', which are used in Articles 327 and 328, show that the framers of the Constitution knew that it was necessary to use different languages when referring, respectively, to matters which happened prior to and after the result of the polling, if they had intended included rejection of nomination paper within the ambit of the prohibition contained in Article 329(b), they would have used similar language in that Article. The word 'election' as used in Article 329(b) was held to mean what it normally etymologically means, namely the result of polling or the final selection of a candidate the word election was taken to comprehend the entire process starting from the notification calling upon the constituency to elect a member and culminating in the candidate being declared elected. A person aggrieved by any of these stages has to wait till the result is declared. And then, the election of the returned candidate can be avoided by an election petition. Anything done within this process is not open to the writ jurisdiction of the High Court.1
"An election petition is a statutory proceeding to which neither the common law nor the principles of equity apply, but only those rules which the statute makes and applies. The entire election is regulated by the Act of 1951. Outside of the statute there is no right to elect, no right to be elected and no right to dispute an election".2
"Once the election process was set in motion according to law any illegality or irregularity committed while the election process is in progress or the conduct of the election is vitiated by any illegality or irregularity in its process, the proper remedy is to lay the action before the Tribunal constituted under that Act by means of an election petition and have the dispute adjudicated without the election process being interdicted or retarded in its mid way. The High Court or this Court while exercising the constituent plenary power under Article 226 or 32 or under Article 136, as the case may be, would decline to interfere with the election process and relegate the parties to take recourse to the alternative remedy of the election petition provided under the statute".3
Section 80 of the Representation of the People Act, 1951, provides that "No election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act.
"It is crystalline that the election contemplated in Article 329(b) of the Constitution and Section 80 of the R.P. Act covers the entire process from the issue of the notification under Section 14 to the declaration of the results under Section 66 of the Act. Whatever be the nature of these processes at different stages during the said period the High Court cannot exercise the power under
_____________
1. N.P. Ponnuswami v. Returning Officer, Namakkal, MANU/SC/0049/1952 : AIR 1952 SC 64.
2. Jyoti Basu v. Debi Ghosal, MANU/SC/0144/1982 : AIR 1982 SC 983, 986.
3. Rama Chandra G. Shinde v. State of Maharashtra, MANU/SC/0404/1994 : AIR 1994 SC 1673 (1682).
Articles 226 and 227 of the Constitution in view of the statutory prohibition contained in Article 329(b) of the Constitution and Section 80 of the R.P. Act".1
Section 80A empowers High Court to try election petition:
"Sub-section (2) of Section 80A provides that the jurisdiction which the High Court has to try an election petition shall be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for the purpose. Perusal of
sub-section (2) of Section 80A, makes it manifest that it is only a Judge of the High Court assigned for the purpose by the Chief Justice, who can exercise the jurisdiction which is vested in the High Court to try an election petition by sub-section (1) of that section".2
"High Court is not competent to decide question of citizenship in election petition".3
The election petition has to be presented under Section 81(1) of the 1951-Act to the High Court on one or more grounds specified in Section 100(1) and Section 101 within the prescribed period of forty-five days.
"It is not necessary to present election petition by candidate an elector in person only".4
"On the Preliminary objection by the High Court in this case the true copies of the affidavits had been served on the first respondent and his counsel. The Apex Court has no doubt that there was sufficient compliance of the provisions of Section 81(3) read with Section 81(1)(c) of the Act, even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act. Unfortunately, this aspect of the matter has been completely ignored by the High Court. Hence the order of the High Court dismissing the election petition in limine is unsustainable".5
"Presentation of election petition to Registrar of High Court is valid".6
However, in Chandra Kishore Jha v. Mahavir Prasad,7 it was held by the Supreme Court that, the High Court Rules do not prescribe any other mode of presentation of an election petition except in the open Court either before the designated election Judge or before the Bench hearing civil applications and motions, where the designated election Judge is not available on account of temporary absence or otherwise. The presentation of an election petition to the Registrar has not been prescribed as a mode of presentation of an election petition by the Rules. Therefore, an election petition could, under no
______________
1. T.D. Rajalakshmi v. District Election Officer, MANU/KE/0482/1999 : AIR 1999 Ker 140 (143).
2. Krishna Gopal v. Prakash Chandra, (1974) 1 SC 128.
3. B.P. Dixit v. Rajeev Gandhi, MANU/SC/0567/1986 : AIR 1986 SC 1534.
4. Bhanwar Singh v. Naurang Singh, MANU/RH/0023/1987 : AIR 1987 Raj 83.
5. A.R. Deshmukh v. Onkar N. Wagh, MANU/SC/0022/1999 : AIR 1999 SC 732 (736).
6. Nawab Khan v. Vishwanath Shastri, MANU/UP/0031/1993 : AIR 1993 All 104.
7. MANU/SC/0594/1999 : AIR 1999 SC 3558.
circumstances, be presented to the Registrar to save the period of limitation. It is well settled salutary principle that if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.
While Section 81(3) provides that, every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a 'true copy' of the petition.
The object of the provision is that the High Court Registrar should be in a position to issue notice to the respondents soon after the presentation of the petition, without any delay in preparing the copies of the petition for service on the respondents.1
Meaning of the expression 'true copy' mentioned in Section 81(3):
In Mithilesh Kumar Pandey v. Baidyanath Yadav,2 the Apex Court held that a 'true copy' of an election petition means a copy which is wholly or substantially the same as the original petition. Where there are insignificant or minimal mistakes or only clerical or typographical mistakes which are of no consequence, the same might be overlooked; but where the copy served on the respondent contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the respondent, the same will tantamount to non-compliance of the provisions of Section 81(3) and attract the provisions of Section 86(1) for summary dismissal of the petition.
Section 117 provides that, at the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the cost of the election petition. It further says that, during the course of trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct.
Where an election petition is jointly filed by more than one petitioner, only one security deposit of Rs. 2000 is sufficient and it is not necessary that each of the petitioners should make a separate deposit.3
Explain the manner in which the High Court can try the election petition?
Is there any specified time limit in which the High Court has to conclude the trial?
Section 86 of the 1951-Act deals with 'trial of election petitions'.
Section 86(1) of the Act provides that, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 (relating to filing of petition within the prescribed period, presentation of petition in the prescribed manner, number of true copies to be attached with the petition) or Section 82 (relating to joinder of necessary parties to the petition) or Section 117 (relating to the deposit of security for costs). Further, an order of the High Court
____________
1. Satya Narain v. Dhuja Ram, MANU/SC/0063/1973 : AIR 1974 SC 1185.
2. MANU/SC/0161/1984 : AIR 1984 SC 305.
3. Y.S. Desai v. J.A. Rane, AIR 1974 Goa 4.
dismissing an election petition under this sub-section shall be deemed to be an order made under Section 98(a).
In Manohar Singh v. Nitin Bhaurao Patil,1 the Supreme Court observed that:
"Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub-section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and
sub-section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition. Section 117 requires verification of the deposit of security in the High Court in accordance with Rules of the High Court. Thus, the compliance of Sections 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act. There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act, which is a judicial function. For the reason, the non-compliance of Section 83 is not specified as a ground for dismissal of the election petition under Section 86."
As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under
sub-section (2) of Section 80A [Section 86(2)].
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. [Section 86(3)]. The underlying object behind this sub-section is that where common question have been raised, then it would not only save the time of the parties and the Court with expeditious disposal, but also avoid the conflicting views of different Judges on the similar matter.
Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition [Section 86(4)]. The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the
_____________
1. MANU/SC/0217/1996 : AIR 1996 SC 796.
petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition [Section 86(5)]. The amendment under this sub-section is permissible only in respect of the particulars of alleged corrupt practice in the petition and not in respect of the material facts. In Samant N. Balakrishna v. George Fernandez,1 M.P. The Supreme Court held that, the power of amendment is given in respect of particulars but there is a prohibition against an amendment 'which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition'. One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second parts creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added, if the charge is use of employed may be amplified. But if the charged is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different cause of action. The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded [Section 86(6)].
Is Code of Civil Procedure applicable in case of election petition?
Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial [Section 86(7)]. Thus, Judges are instructed under this sub-section to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
Is the Evidence Act applicable to the trial of election petiton?
Subject to the provisions of this Act and of any Rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witneses or witnesses if it is of the opinion that the evidence of such witness or witness is not material for the decision of the petition or that the party tendering such witness or
___________
1. 41 ELR 260.
witnesses is doing so on frivolous grounds or with a view to delay the proceedings [Section 87(1)].
Therefore, where the R.P. Act, 1951 or Rules made thereunder, which exist in Code of Civil Procedure 1908, the provisions of the R.P. Act 1951 and Rules made thereunder shall prevail upon those of the Code of Civil Procedure.
The provisions of the Indian Evidence Act, 1872, shall be deemed to apply in all respects to the trial of an election petition [Section 87(2)]. Therefore, the Evidence Act 1872 is applicable to the trial of an election petition.
Facts:-
Some Articles of the Constitution and some sections of the Representation of the People Act, 1951 refer to seats in connection with election to the House of the People. For instance when Article 81(2)(b) provides for the same ratio throughout the State between the population of each constituency and the number of seats allotted to it, it refers to seats, but in the context the use of the word "Seats" was inevitable. Similarly Article by which lays down the qualification for the Members of Parliament begins by saying that a person shall not be qualified to be choosen "to fill a seat" in Parliament unless he satisfies the tests prescribed by its Clauses (a), (b) and (c).
Issue:-
The expression "to fill a seat" has to be used in the circumstances of the matter. The same comment can be made about the use of the word "seat" in Articles 101(2) and 330.
Decision:-
There is no doubt that when a candidate is duly elected from any constituency to the House of People he fills a seat in the House as an elected representative of the said constituency and so the expression "filling the seat" is naturally used whenever the context so requires.
Facts:-
This is clear from the sub-section (3) of Section 123 of the Representation of the Peoples Act, 1951 that it prohibits an appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of race, religion, caste, community or language or the use of or appeal to religious symbols.
Issue:-
Sub-section (3A) of Section 123 of the Representation of the People Act, 1951 whether prohibits the promotion or attempt to promote fuelings of enmity and hatred between different classes of the citizens of India on the grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospectus of the election of that candidate or for prejudicially affecting the election of any candidate.
Decision:-
A breach of the provisions of the sub-sections (3) and (3A) of Section 123 of the Representation of the People Act, 1951 are deemed to be corrupt practices.
Facts:-
By the writ petitions under Article 32 of the Constitution, the petitioners sought to challenge the amendments made in the Representation of the People Act, 1951 through the Representation of the People (Amendment)
Act, 2003. By the said amendment the requirement of "domicile" in the State concerned for getting elected to the Council of States or Rajya Sabha was deleted, which according to the petitioners violated the principle of federalism, a basic feature of Constitution. There was a further challenge to the amendments made in Sections 59, 94 and 128 of the Representation of the People Act, 1951 which an open ballot system was introduced which, according to the petitioners, violates the principle of "secrecy" and was essence of free and fair elections as also the voter's freedom of expression which is a basic feature of the Constitution and the subject-matter of the fundamental right under
Article 19(1)(a) of the Constitution.
Issue:-
Two issues arose for determination before the Supreme Court. The first issue relates to content and significance of the word "domicile" and the need if any for a domiciliary link between persons who could represent a State in the Council of States and the State concerned. The second issue dealt with the importance of the concept of "secrecy" in voting under the constitutional scheme.
Decision:-
The members of the lower Houses are elected from
pre-designated constituencies through universal adult suffrage. The demarcation of these constituencies is in accordance with the distribution of population, so as to accord equity in the value of each vote throughout the territory of the country. However, with the existence of constituent States of varying areas and populations, the representation accorded to these States in the Lower House becomes highly unequal. Hence the composition of the Upper House has become an indicator of federation so as to more adequately reflect the interests of the constituent States and ensure a mechanism of checks and balances against the exercise of powers by Central authorities that might affect the interest of the constituent States.
Facts:-
The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal constituency in Salem district. The Returning Officer rejected the appellant's nomination paper on certain grounds. The appellant thereupon moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer to include his name in the list of valid nominations to be published.
The High Court dismissed the appellant's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution.
Issue:-
Whether the view expressed by the High Court is correct, that its jurisdiction is affected by Article 329(b) of the Constitution?
Decision:-
The Apex Court found that in view of the provision of
Article 329(b) of the Constitution and Section 80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with the order of the Returning Officer.
The word "election" has by long usage in connection with the process of selection of proper representatives in democratic institution acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of candidate which may embrace 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 and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs.
The scheme of Part XV of the Constitution and the Representation of the People Act, 1951, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. It follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the Article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal which is to be an independent body, at the stage when the matter is brought up before it. Therefore, questioning the rejection of a nomination paper is "questioning the election" within the meaning of
Article 329(b) of the Constitution and Section 80 of the Representation of the People Act, 1951.
Having regard to the important functions which the Legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election", and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress.
The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.
The State High Courts have no jurisdiction under Article 226 of the Constitution to entertain petition regarding improper rejection of nomination papers. The view of the High Court was correct. Appeal dismissed.
Facts:-
The first appellant, Joyti Basu, the Chief Minister and appellants two and three Buddhadeb Bhattacharya and Hashim Abdul Halim, were two Ministers of the Government of West Bengal. They have been impleaded by the first respondent as parties to an election petition filed by him questioning the election of the second respondent to the House of the People from the
19-Barrackpore Parliamentary Constituency in the mid-term Parliamentary election held in January, 1980. There were five candidates who sought election from the Constituency, Mod. Ismail, the first respondent, whose candidature was sponsored by the Communist party of India (Marxist) was, elected securing 2,66,698 votes as against Debi Ghosal, a candidate sponsored by the Indian National Congress led by Smt. Indira Gandhi who secured 1,62,770 votes. The first respondent filed an election petition in the High Court of Calcutta questioning the election of the second respondent Mohd. Ismail on various grounds. It was averred in the election petition that the Chief Minister and the other Ministers of the Government of West Bengal who were impleaded as parties to the election petition had colluded and conspired with the returned candidate to commit various alleged corrupt practices. Apart from denying the commission of the various alleged corrupt practices, the Chief Minister and the other Minister claimed in their written statements that the election petitioner was not entitled to implead them as parties to the election petition. They claimed that as they were not candidates at the election they could not be impleaded as parties to the election petition. The Chief Minister and two of the other Ministers, Hashim Abdul Halim and Buddhadeb Bhattacharya filed an application before the High Court of Calcutta to strike out their names from the array of parties in the election petition. The application was dismissed by the Calcutta High Court on the ground that the applicants (appellants) were proper parties to the election petition and, therefore, their names should not be struck out of the array of parties. The appellants have preferred the appeal after obtaining special leave of this Court under Article 136 of the Constitution.
Issue:-
Who may join as a party to an election petition?
Decision:-
The Supreme Court observed that, a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutory embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Practice are made against him. It is clear that the contest of the election is designed to be confined to the candidate at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents. It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Section 99 and proceed with further action. In our view the Legislative provision contained in Section 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the Legislative intent that such person may not be permitted to the joined as a party to the election petition.
The Apex Court further observed that, there is yet another viewpoint. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, Section 97 enables the returned candidate or any other party to 'recriminate' i.e., to give evidence to prove that the election of such candidates would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under Section 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert the petition into a 'free for all' fight.
The Court held that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is, therefore, allowed with costs and the names of the appellants and in the appeal are directed to be struck out from the array of parties in the election petition.
The Governor of Maharashtra by a notification dated 18th September, 1987 issued under Section 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members representing the said constituencies on the expiration of their terms of office. On the same day the Election Commission of India, the appellant herein, issued a notification under Section 30 of the Act fixing the calendar of events for the purpose of holding the election accordingly. Osmanabad-cum-Latur-cum-Beed Local Authorities Constituency was one of the six constituencies referred to above. According to the notification issued by the Election Commission the last date for making nominations was 25th September, 1987. The date for the scrutiny of nominations was 26th September, 1987. The last date for the withdrawal of candidatures was 28th September, 1987 and the date on which the poll, if necessary, was to be taken was 18th October, 1987. The entire election process had to be completed within 21st October, 1987. Respondents 1 to 5 Shivaji son of Vishwanath Gangane, Prof. K.S. Shinde, Prabhakar son of Bapurao Pudale, Shankarrao Madhavrao Mane and Ashok son of Rangnath Magar filed a writ petition under Article 226 of the Constitution, before the High Court of Bombay (Aurangabad Bench) challenging the validity of the notification issued by the Election Commission on 18th September, 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and the Zilla Parishad of Latur District which were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and, therefore, the members of the said Zilla Parishad who were entitled to take part in the said elections had been deprived of their right to participate in the said election. In this circumstances the Election Commission considered it fair to postpone the date of poll to some later date in order to secure compliance with the spirit underlying the Section 30(d) of the Act which contemplated on interval of 20 days between the last date of withdrawal of candidatures and date of poll. A review petition was filed by the respondents and the interim order passed by the High Court.
On considering the writ petition learned single Judge passed an interim order ex parte directing the postponement of the last date of withdrawal of candidates. Aggrieved by the interim order passed in the writ petition postponing the last date of withdrawal of candidatures and the interim order passed in the review petition, the Election Commission filed appeal by special leave.
Issue:-
Whether the postponement of last date of withdrawal of candidate and interim order stayed the holding of election even though the Election commission had postponed the date of poll, by the High Court can be justified?
Decision:-
The Supreme Court observed that, Article 329(b) of the Constitution provides that not withstanding anything contained in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The disputes regarding the elections have to be settled in accordance with the provisions contained in Part VI of the Act. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. The expression 'election' is defined by Section 2(d) of the Act as 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. Thus a dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act. Section 80A of the Act provides that the Court having jurisdiction to try an election petition shall be the High Court. An election petition has to be presented in accordance with Section 81 of the Act. In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away. the word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace 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 and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs.
Where the High Court entertained a writ petition challenging the notification fixing the calendar of events for the purpose of holding the elections to Legislative Council from certain local authorities constituency and, first, by an interim order, postponed the last date for withdrawal of candidatures and the High Court after itself dismissing the writ petition on the ground that it had no jurisdiction to interfere with the process of election at that stage in view of the provisions of Article 329(b) of the Constitution, entertained a review petition on the ground that 20 days clear interval was not there between the last date of withdrawal of candidatures and the date of poll and by interim order stayed the holding of election even though the Election Commission had postponed the date of poll to secure compliance of spirit of Section 30(d), both the interim orders, the one postponing the last date of withdrawal of candidatures and the other staying the poll were without jurisdiction.
Issue (1):-
What is the amplitude of powers and width of functions to be exercised by Election Commission under Article 324, including power to cancel poll in the entire constituency?
Decision of the Supreme Court:-
Functions as referred to in Article 324(6) include powers as well as duties. It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with function. The Chief Election Commissioner has to pass appropriate orders on receipt of reports from the returning officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders. Moreover, the power has to be exercised with promptitude. Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Representation of the People Act or the Rules made in that behalf, or under Article 324(1). The Commission is entitled to exercise certain Powers under Article 324 itself on its own right, in an area not covered by the Representation of the People Acts and the Rules.
It is clear even from Section 58 and Section 64A of the Representation of the People Act, 1951 that the Legislature envisaged the necessity for the cancellation of poll and ordering of repoll in particular polling stations where situation may warrant such a course. When provision is made in the Act to deal with situations arising in a particular polling station, it cannot be said that if a general situation arises whereby numerous polling stations may witness serious mal-practices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision. The fact that a particular Chief Election Commissioner may take certain decisions unlawfully, arbitrarily or with ulterior motive or in mala fide exercise of power, is not the test in such a case. The question always relates to the existence of power and not the mode of exercise of power although Section 58 and
Section 64A mention "a polling station" or "a place fixed for the poll" it may, where necessary embrace multiple polling station. It is true that in exercise of powers under Article 324(1) the Election Commission cannot do something impinging upon the power of the President in missing the notification under Section 14 of the Representation of the People Act. But after notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the election without reference to any outside agency. There is no limitation in Article 324(1) front which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. The election Commission is competent in an appropriate case to order re-poll of an entire constituency where necessary. It will be an exercise of power within the ambit of its functions under Article 324.
Issue (2):-
Whether the writ petition challenging cancellation integrated with
re-poll is barred under Article 329(b).
Decision:
The catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For the prima facie purpose of such a re-poll is to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. A writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is, therefore, barred by Article 329(b).
Issue (3):-
Whether order for the fresh poll even during the course of election by the Election Commission is valid?
Election covers the entire process from the issue of the notification under Section 14 of the Representation of the People Act to the declaration of the result under Section 66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order therefore, with the amended date, is passed as an integral part of the electoral process. When the Election Commission amended its notification and extended the time for completion of the election by ordering a fresh poll, it is an order during the course of the process of 'election'. Even if it is a wrong order it does not cease to be an order passed by a competent authority charged with the conduct of elections with the aim and object of completing the elections. Although that is not always decisive, where the impugned order has been passed in the exercise of power under Article 324(1) of the Constitution and Section 153 of the Representation of the People Act, such an order, relating, as it does, to election cannot be questioned except by an election petition under the Act. If during the process of election, at an intermediate or final stage, the entire poll has been 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 the appropriate forum by means of an election petition in accordance with law. The petitioner, then, will have a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll.
Facts:-
The object of immunity conferred under Article 105(2) of the Constitution of India is to ensure the independence of the individual Legislatures. Such independence is necessary for healthy functioning of the system of Parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105(2) which would enable the Member of Parliament to claim immunity from prosecution in a criminal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament.
Issue:-
The place of members of Parliament above the law would not only be repugnant to healthy functioning of Parliamentary democracy but also would be sub-versive of the rule of law which is also an essential part of the basic structure of the Constitution.
Decision:-
It is settled law that in interpreting the constitutional provisions the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution.
Facts:-
Whether the right to vote is a Constitutional right or fundamental right under Article 19(1)(a) of the Constitution of India, cannot be accepted. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as species of freedom of expression.
Issue:-
Whether right to vote has been treated to be carrying within it the Constitutional right of freedom of expression.
Decision:-
The right to vote cannot be said about the right to stand for election since that is a right regulated by the statute. The right to be elected is indisputably a statutory right i.e., the right to stand for elections can be regulated by law made by Parliament. It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations.
Facts:-
The Delimination Commission published its proposals in terms of Section 9(2)(a) of Delimitation Act, 2002, whereby it proposed to include Mhow Assembly Constituency in Indore Parliamentary Constituencies by deleting it from Dhar Parliamentary Constituency. Thereafter suggestions and objections were raised which were considered by the Commission in the public sittings called by it. It was final determination of the Commission included Mhow Assembly Constituency in Dhar Parliamentary Constituency by deleting the same from Indore Parliamentary Constituency as originally proposed. Consequently Depalpur Assembly Constituency was deleted from Dhar Parliamentary Constituency and added to Indore Parliamentary Constituency.
Issue:-
The controversy centered around the final determination of the delimination of Indore Parliamentary Constituency.
Decision:-
The Delimitation Commission's power to determined delimitation of constituency is not unlimited but is structured by the provisions of the Delimination Act, 2002 and more particularly by Sections 8 and 9 of the Act apart from the Constitution (84th Amendment) Act, 2001 and Constitution (87th Amendment) Act, 2003 which have inter alia amended Articles 81, 82, 170, 330 and 332 of the Constitution of India. The effect of these amendments to the Constitution is that each Parliamentary Constituency in each State shall be an integral multiple of the number of seats comprised therein and no Assembly Constituency shall extend to more than one Parliamentary Constituency. Further the Delimitation Commission could not have retained Dapalpur Assembly Constituency and as well as Mhow Assembly Constituency in Indore Parliamentary Constituency in which event Indore Parliamentary Constituency would have nine Assembly Constituencies while Dhar Parliamentary Constituency would have had only seven Assembly Constituencies resulting in an avoidable malappropriation.
© Universal law Publishing Co.