Elections
Election commission: constitutional body created by Article 324, superintendence, direction,
conduct and control of elections.
ECI released Election Conduct Rules, 1961
In 1968: Election Symbols (Allotment & Reservation) order
Phrases- superintendence, direction, conduct and control of elections- empowers ECI with
Plenary powers- i.e. unrestricted by executive
But these powers are there to Supplement But not Supplant the law passed by Parliament.
i.e. if RPA silent in some cases- ECI can add provisions- but can’t replace existing provisions
Art 325: common electoral roll, no discrimination on the grounds of religion, race, caste or sex.
Art 326: Universal Adult Suffrage: earlier 21, 1980s reduced to 18 yrs
Art 327: Parliament can make a law through which conduct of elections to parliament as well as
state LA can be ensured.
RPA, 1950 & RPA, 1951.
Art 328: State LA can make laws with respect to elections to such legislature.
No state has made a law because Parliament already made it.
Art 329: bar to interference by courts in electoral matters [like delimitation process]
One can file a case but after the whole election process is over
Internal delimitation: was done in 2002
Total seats fixed but reserved seats might change with the change in the proportion of the
population of a SCS & STs
Election commission of India ECI
Composition: CEC & as many EC’s as appointed by President.
ECI (Conditions if Service if ECs & transactions of business) Act, 1991- appointed 2 ECs
In 1993- this law amended: 1 CEC & not more than 4 EC’s
But today- CEC & 2 EC’s
Powers: All have similar powers. Decision taken by Majority [i.e. 2 out of 3]
CEC would have a casting vote in case of a tie.
Meetings presided over by CEC.
CEC:
Appointed by President [recommended by government]
Removed: similar as the judge of the SC
After appointment salary cannot be varied to his disadvantage [can’t be reduced]
CEC [Misc Provisions] Act, 1951 talks about:
Qualification: anybody who is well-versed with the administration of the country- i.e.
anybody who has held government office at Central or state level for more than 10 yrs.
[usually senior IAS]
Tenure: till 65 yrs or 6 yrs [whichever is earlier]
Salary can be reduced if financial emergency is imposed.
Can’t to be appointed for second term.
EC’s:
Appointed by President [recommended by government]
Removed only on the advice of CEC [can’t to be removed without his advice]
But this advice of CEC is not binding on the president.
Tenure: till 65 yrs or 6 yrs [whichever is earlier]
Can be promoted to CEC- provided his total term as EC + CEC ≤6 yrs
Direct Democratic Devices
Right to Recall: After 2.5 yrs- people of that constituency can write to EC- voting
If a more than 50% of people participate in voting and more than 50% of people voted to
recall- then that individual will be recalled
In India there is no Right to Recall.
Put at Local bodies level in some states like Rajasthan & MP there is a right to recall.
Referendum:
Government of the day refer the Matter for asking the view of public.
In India we have no concept of a referendum.
Initiative:
Reverse exercise of referendum
Citizens ask the government to make a law on a particular matter or implement a matter.
In India we have no concept of a Initiative.
Plebiscite:
Smilar to referendum: Government of the day refer the Matter for asking the view of public.
But the matter is political. Eg: People of J-K want to live in Pak or Ind
Decision of public binding on government.
Indian Constitution does not recognize the Plebiscite.
India is signatory to Moscow declaration 1996: if country does not discriminate against his
citizens only on the grounds of Caste, Sex, Religion or Place of Birth- no state has the right to
come out of the union.
Election Process
Electoral rolls prepared by ECI.
Date: Decided by EC- may consult various institutions, but their suggestion not binding on EC
After dates are issued- Notification issued by President [LS election] & Governor [LA elction]-
announcing election- but they can issue this notification only on the advice of ECI
Model Code of Conduct [MCC]
Prior to 1979 general election: MCC was put together by EC
EC revised & amplified MCC in 1991 to the present form.
Comes into play as soon as dates are announced- stays till the declaration of results.
General Conduct ...
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.
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.
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.
Political parties and candidates shall ensure that their supporters do not create obstructions in or
break up meetings and processions Organized by other parties.
Party in Power ...
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.
Government transport including official aircrafts, vehicles, machinery and personnel shall not be
used for furtherance of the interest of the party in power;
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.
Ministers and other authorities shall not sanction grants/payments out of discretionary funds [i.e.
funds by centre to states] from the time elections are announced by the Commission;
From the time elections are announced by Commission, Ministers and other authorities shall not-
announce any financial grants in any form or promises thereof; or
(except civil servants) lay foundation stones etc. of projects or schemes of any kind; or
make any promise of construction of roads, provision of drinking water facilities etc; or
make any adhoc appointments in Government, Public Undertakings etc. which may have the
effect of influencing the voters in favour of the party in power.
Ministers of Central or State Government shall not enter any polling station or place of counting
except in their capacity as a candidate or voter or authorized agent.
Funds can be allocated to a state in case of emergency but with the prior permission of ECI.
Statutory Backing?
No statutory backing but some provisions get legal backing from IPC and RPA.
The violation of secrecy of voting, causing enmity among communities, the prohibition of public
meetings 48 hours prior to the conclusion of polls, besides other offences, are covered by the
Representation of People Act, 1951.
Besides, impersonation at voting, offering inducements to voters, or accepting gratification to do
something they never intended, amount to bribery under the Indian Penal Code.
To threaten or to intimidate voters and candidates is an act of interference with their respective
free electoral rights. The EC could invoke its 1968 order which pertains to the allotment of
election symbols, either to suspend or to derecognise political parties for violations of the code.
SC under Art 324 can withdraw symbol of Political party, Derecognize that political party
While these provisions have a legal backing, other provisions have moral right of the code of
conduct- even if one violates no legal action can be taken against- ECI may issue notice to him.
Process
After notification issued by president nomination papers are presented before the Returning
Officer [DC for LS & SDM for LA]- Oath/Affirmation administered by this a returning officer-
security deposit is returned if one gets 1/6 of total votes polled.
One can Withdraw after filling nomination papers
Scrutiny of this nomination papers- RO can reject papers- can file Election Petition in High Court
but only after the elections are over & results are declared.
If election petition is accepted- proven that the returning officer wrongly rejected my papers-
election will be re-conducted in that constituency.
Election Silence: 48 hours prior to the completion of voting is the period of election silence.
No campaigning can take place in this period.
EVM
First time use in 1982 in Paravur constituency in Kerala [bypoll]- SC declared it null and void as RPA
talked about ballot paper.
So 1988 RPA amended- EVM can also be used.
From 2004 in all elections and all constituencies EVM has been used.
An EVM consists of two Units - a Control Unit and a Balloting Unit - joined by a five-meter cable.
The Control Unit is with the Presiding Officer or a Polling Officer and the Balloting Unit is
placed inside the voting compartment.
EVMs can record a maximum of 3840 votes. As normally the total number of electors in a polling
station will not exceed 1500, the capacity of EVMs is more than sufficient.
EVMs can cater to a maximum of 64 [16 X 3]- If more than ballot paper.
In 2019, in Nizamabad constituency ECI used M3 voting machine- 12 control rooms were
connected 192 [16 X 12]- so ECI can tackle this problem with EVM only.
The EVMs have been devised and designed by Election Commission in collaboration with two
Public Sector undertakings viz., Bharat Electronics Ltd., Bangalore and Electronic Corporation of
India Ltd., Hyderabad
Advantages
The machines will record only five votes in a minute.
The presiding Officer or one of the Polling Officers can always press the "close" button as soon as
they see some intruders inside the polling station.
Controversy:
Netherlands banned it for lack of transparency.
Ireland, after three years of research worth 51 million pounds, decided to junk EVMs.
Germany declared EVMs unconstitutional and banned it.
In the US, California and many other states banned EVMs if they did not have a paper trail.
England and France have never used EVMs.
Defence:
Software used in these machines can never be altered. Therefore, there is no possibility of data
corruption.
EVMs are standalone machines. Most of the systems used in other countries are computer- based
and linked to the internet. Hence, these could be vulnerable to hacking.
Before every election, a first-level check is done for every EVM to be used in the election by the
engineers of the manufacturers, in the presence of political party representatives.
VVPAT: Voter Verifiable Paper Audit Trial: slip [Ballot slip] mentioning serial number, name and
symbol of the party is shown for 7 seconds- and then this slip drops in drop box.
In 2019- In every constituency VVPAT were also used.
Opinion and Exit polls
Opinion polls finding cannot be published or broadcast during the period of election silence.
Usually conducted 1 to 2 months before actual voting.
The ban on opinion polls in the electronic media does not extend to the print media.
Exit polls and post-poll: blanket ban on their publication before last man has voted
Exit polls: Conducted at Polling Booth
Post-poll: conducted after Voter has reached home.
Political parties
For any political party to contest election it has to be registered with the ECI- called registered
political party.
if and only if either the conditions specified in Clause (a) are, or the condition specified in Clause
(b) is, fulfilled by that party- some of these registered political parties are categorized as a
recognized political parties:
a) that such party -
has been engaged in political activity for a continuous period of 5 years; and
has, at the last general election in that State to LS, or, to LA of the State, returned-
either (i) at least 1 member to LS for every 25 members of that House from that State;
or (ii) at least 1 member to LA of that State for every 30 members of that LA;
b) that the total number of votes polled by all the contesting candidates set up by such party at
the last general election in the State to the LS, or to LA of the State, is not less than 6 % of the
total votes polled by all the contesting candidates at such general election in the State.
National political party: recognized political party in four or more states.
State political parties: recognized political party in less than four states.
After every two general elections list of national political parties and state political parties is
reviewed by ECI.
Benefits of being treated as recognized political party:
On EVM names are listed in alphabetical order but the first national political party > state political
party > registered political party or independents.
Electoral rolls are provided for free of cost by ECI.
Free airtime on all India radio and Doordarshan.
If a candidate from recognized political party dies just before a voting, election in that
constituency is adjourned and will be conducted later.
Land at prime locations at subsidized prices is provided to set up political offices.
Political parties and their funding [Political finance]
Earlier political party has to disclose its donor if donation is more than ₹20,000.
And if donations less than ₹20,000, it is said to be from unknown sources.
Arun Jaitley changed this law and reduced the limit to ₹2000.
Electoral Bonds:
Donor has to buy electoral bonds of various denominations from SBI [can only pay in cheque or
digital transaction], then deposit this electoral bond in the bank account of that political party- this
bank account will be under control of RBI- that party has 15 days to encash that bond.
These are Bearer Bonds- even that political party does not know who the donor is.
More than 90% of the donation under electoral bond scheme went to ruling government of BJP.
Foreign contribution regulation act [FCRA]
Originally passed as an ordinance in 1976, later made into a law.
Objective: to prevent foreign interference/influence in our political system.
Therefore foreign contributions made to judges, cartoonists, newspaper article writers, political
parties is not allowed.
If any institution wants to receive foreign contribution, it has to apply for FCRA licence.
In 2017, finance Bill was passed stating: if a Indian subsidiary of foreign company donates money
to political parties, these subsidiaries should not be treated as foreign companies- and should be
treated as Indian companies
This law was given retrospective effect as well.
The amendments to the Finance Bill 2017 propose to remove:
I. the limit of 7.5 percent of net profit of the last three financial years, for contributions that a
company may make to political parties.
II. The requirement of a company to disclose the name of the political party to which a
contribution has been made. [companies now not have to disclose the name of political party
in their profit or loss statement]
The Representation of The People Act, 1950
An Act to provide the allocation of seats in, and the delimitation of constituencies for the purpose
of election to, the LS and the Legislatures of States [LA & LC],
the qualifications of voters at such elections
the preparation of electoral rolls, and matters connected therewith [like Chief Electoral Officer,
District Election Officer]
The Representation of The People Act, 1951
Qualification for MP of RS: citizen who is a registered voter in any Parliamentary constituency.
Before 2003: has to be registered voter in that state.
Qualification for MP of LS: citizen who is a registered voter in any Parliamentary constituency.
In case of seat reserved for ST in autonomous district of Assam: ST voter from that
constituency only
Qualification for LA: registered voter in that state only.
Qualification for LC: registered voter in that state only. [also implies to nominated members]
Disqualifications:
section 153A (offence of promoting enmity between different groups on ground of religion, race,
place Of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony)
or section 171E (offence of bribery)
or section 171F (offence of undue influence or impersonation at an election)
or sub-section (1) or sub-section (2)of section 376 or section 376A or section 376B or section 376 C
or section 376D (offences relating to rape)
or section 498A (offence of cruelty towards a woman by husband or relative of a husband)
or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or
promoting enmity, hatred or ill-will between classes or offence relating to such statement in any
place of worship or in any assembly engaged in the performance of religious worship or religious
ceremonies) of the Indian Penal Code (45 of 1860);
the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment for the
preaching and practice of "untouchability", and for the enforcement of any disability arising
therefrom;
A person who having held an office under the Government of India or under the Government of
any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a
period of five years from the date of such dismissal.
A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in
the course of his trade or business with the appropriate Government for the supply of goods to, or
for the execution of any works undertaken by, that Government.
A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary
of any company or corporation (other than a cooperative society) in the capital of which the
appropriate Government has not less than twenty-five per cent share.
Other provisions
Notification of election by President or governor on the advice of ECI is issued under this act.
How to file the nomination forms.
How will be the voting taking place [EVM or Ballot]
Entire election machinery including officers.
Right to vote: not a constitutional right but a statutory right under this act.
every person in electoral roll of any constituency- entitled to vote in that constituency.
No person shall vote at an election in any constituency if he is subject to any of the
disqualifications referred to in section 16 of the Representation of the People Act, 1950.
No person shall vote in more than one constituency, and if votes, his votes in all such
constituencies shall be void.
No person shall vote in same constituency more than once, notwithstanding that his name
may have been registered in the electoral roll for that constituency more than once, and if he
does, all his votes in that constituency shall be void.
No person shall vote at any election if he is confined in a prison, whether under a sentence of
imprisonment or transportation or otherwise, or is in the lawful custody of the police.
Equality of votes: if number of votes same- returning officer use draw of lots to decide winner
Election petition: can be filed in the concerned HC, but only after entire election process is over.
Paid Holiday: election day should be paid holiday to all the employs [govt or private]
Liquor not to be sold, given or distributed on the polling day.
A candidate can contest elections simultaneously from two constituencies.
If member of Parliament or state legislature- convicted in a court of law for a period of more than
2 yrs- he is not convicted, instead three month window is provided to file appeal in a higher court.
But SC in Lily Thomas vs UOI, 2013: Sec 8(4) of RPA is unconstitutional- on the date of
conviction from any court- member is disqualified
Section 77 of the RPA, regulating the election expenses: extends from the date of nomination to
the date of declaration of results.
Candidate have to maintain EEA [Electoral expense account]- has to disclose to ECI after
elections are over.
This is the limit prescribed to candidates, on political party there is no limit.
If a candidate is unable to disclose EEA to ECI he will be disqualified for the period of 3 yrs
Law commission recommends that independent candidates should be barred from contesting
elections.
