Elections in India

Elections in India

Articles 324 to 329 in Part XV of the Constitution make the following provisions with regard to the electoral system in our country:

  1. The Constitution (Article 324) provides for an independent Election Commission in order to ensure free and fair elections in the country. The power of supertendence, direction and conduct of elections to the Parliament, the state legislatures, the office of the President and the office of the Vice-President is vested in the Commission. At present, the commission consists of a chief election commissioner and two election commissioners.
  2. 2. There is to be only one general electoral roll for every territorial constituency for election to the Parliament and the state legislatures. Thus, the Constitution has abolished the system of communal representation and separate electorates which led to the partition of the country.
  3. No person is to be ineligible for inclusion in the electoral roll on grounds only of religion, race, caste, sex or any of them. Further, no person can claim to be included in any special electoral roll for any constituency on grounds only of religion, race, caste or sex or any of them. Thus, the Constitution has accorded equality to every citizen in the matter of electoral franchise.
  4. The elections to the Lok Sabha and the state assemblies are to be on the basis of adult franchise. Thus, every person who is a citizen of India and who is 18 years of age, is entitled to vote at the election provided he is not disqualified under the provisions of the Constitution or any law made by the appropriate legislature (Parliament or state legislature) on the ground of non-residence, unsound mind, crime or corrupt or illegal practice4.
  5. 5. Parliament may make provision with respect to all matters relating to elections to the Parliament and the state legislatures including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing their due constitution.

In exercise of this power, the Parliament has enacted the following laws:

  • Representation of the People Act of 1950 which provides for the qualifications of voters, preparation of electoral rolls, delimitation of constituencies, allocation of seats in the Parliament and state legislatures and so on.
  • Representation of the People Act of 1951 which provides for the actual conduct of elections and deals with administrative machinery for conducting elections, the poll, election offences, election disputes, by-elections, registration of political parties and so on.
  • Delimitation Commission Act of 1952 which provides for the readjustment of seats, delimitation and reservation of territorial constituencies and other related matters. 6. The state legislatures can also make provision with respect to all matters relating to elections to the state legislatures including the preparation of electoral rolls and all other matters necessary for securing their due constitution. But, they can make provision for only those matters which are not covered by the Parliament. In other words, they can only supplement the parliamentary law and cannot override it.
  1. The Constitution declares that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be questioned in any court. Consequently, the orders issued by the Delimitation Commission become final and cannot be challenged in any court.
  2. 8. The Constitution lays down that no election to the Parliament or the state legislature is to be questioned except by an election petition presented to such authority and in such manner as provided by the appropriate legislature. Since 1966, the election petitions are triable by high courts alone. But, the appellate jurisdiction lies with the Supreme Court alone.

Article 323 B empowers the appropriate legislature (Parliament or state legislature) to establish a tribunal for the adjudication of election disputes. It also provides for the exclusion of the jurisdiction of all courts (except the special leave appeal jurisdiction of the Supreme Court) in such disputes. So far, no such tribunal has been established. It must be noted here that in Chandra Kumar case(1997), the Supreme Court declared this provision as unconstitutional. Consequently, if at any time an election tribunal is established, an appeal from its decision lies to the high court.

ELECTORAL PROCESS:

Time of Elections

Elections for the Lok Sabha and every state Legislative Assembly have to take place every five years, unless called earlier. The President can dissolve Lok Sabha and call a General Election before five years is up, if the Government can no longer command the confidence of the Lok Sabha, and if there is no alternative government available to take over.

Schedule of Elections

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

 

·       The Commission normally announces the schedule of elections in a major press conference a few weeks before the formal process is set in motion.

·       The Model Code of Conduct for guidance of candidates and political parties comes immediately into effect after such announcement.

·       The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House.

·       As soon as Notifications are issued, candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

·       Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held on a number of days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer.

·       The Commission compiles the complete list of members elected and issues an appropriate Notification for the due constitution of the House.

·       With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned states, in case of State Assemblies, can then convene their respective Houses to hold their sessions.

 

 

Oath or Affirmation

It is necessary for a candidate to make and subscribe an oath or affirmation before an officer authorised by the Election Commission. For any particular election, the authorised persons are, principally, the Returning Officer and the Assistant Returning Officer for the constituency.

In the case of a candidate confined in a prison or under preventive detention, the superintendent of the prison or commandant of the detention camp in which he is so confined or is under such detention is authorised to administer the oath. And in the case of a candidate confined to bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent in charge of the hospital or the medical practitioner attending on him is similarly authorised. If a candidate is outside India, the Indian Ambassador or High Commissioner or diplomatic consular authorised by him can also administer oath/affirmation. The candidate, in person, is required to make the oath or affirmation immediately after presenting his nomination papers and in any case not laterthan the day previous to the date of the scrutiny.

Election Campaign

The campaign is the period when the political parties put forward their candidates and arguments with which they hope to persuade people to vote for their candidates and parties. Candidates are given a week to put forward their nominations. These are scrutinised by the Returning Officers and if not found to be in order can be rejected after a summary hearing. Validly nominated candidates can withdraw within two days after nominations have been scrutinised. The official campaign lasts at least two weeks from the drawing up of the list of nominated candidates, and officially ends 48 hours before polling closes. During the election campaign, the political parties and contesting candidates are expected to abide by a Model Code of Conduct evolved by the Election Commission on the basis of a consensus among political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during the election campaign

Polling Days

Polling is normally held on a number of different days in different constituencies, to enable the security forces and those monitoring the election to keep law and order and ensure that voting during the election is fair.

Ballot Papers and Symbols

After nomination of candidates is complete, a list of competing candidates is prepared by the Returning Officer, and ballot papers are printed. Ballot papers are printed with the names of the candidates (in languages set by the Election Commission) and the symbols allotted to each of the candidates. Candidates of recognised parties are allotted their party symbols. Voting Procedure Voting is by secret ballot.. Since 1998, the Commission has increasingly used Electronic Voting Machines (EMVs) instead of ballot boxes. In 2003, all state elections and by elections were held using EVMs. Encouraged by this, the Commission took a historic decision to use only EVMs for the Lok Sabha election in 2004. More than 1 million EVMs were used in this election.

Electronic Voting Machine  An Electronic Voting Machine (EVM) is a simple electronic device used to record votes in place of ballot papers and boxes which were used earlier in conventional voting system. The advantages of the EVM over the traditional ballot paper / ballot box system are given here:

(i) It eliminates the possibility of invalid and doubtful votes which, in many cases, are the root causes of controversies and election petitions.

(ii) It makes the process of counting of votes much faster than the conventional system.

(iii) It reduces to a great extent the quantity of paper used thus saving a large number of trees making the process eco-friendly.

  • It reduces cost of printing (almost nil) as only one sheet of ballot paper is required for each Polling Station

 

ELECTION MACHINERY

 

 

 

 

Election Commission of India (ECI)

 

 

Under Article 324 of the Constitution of India, the Election Commission of India is vested with the power of superintendence, direction and control of conducting the elections to the Lok Sabha and State Legislative Assemblies.

 

 

 

 

 

 

Chief Electoral Officer (CEO)

 

 

The Chief Electoral Officer of a state/ Union Territory is authorised to supervise the election work in the state/Union Territory subject to the overall superintendence, direction and control of the Election Commission. The Election Commission of India nominates or designates an Officer of the Government of the state / Union Territory as the Chief Electoral Officer in consultation with that State Government / Union Territory Administration.

 

 

 

 

District Election Officer (DEO)

 

 

 

 

Subject to the superintendence, direction and control of the Chief Electoral Officer, the District Election Officer supervises the election work of a district. The Election Commission of India nominates or designates an officer of the state Government as the District Election Officer in consultation with the state government.

 

 

 

 

 

 

 

 

Returning Officer (RO

 

 

The Returning Officer of a Parliamentary or assembly constituency is responsible for the conduct of elections in the Parliamentary or assembly constituency concerned. The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government / Union Territory Administration.

 

 

 

 

Electoral Registration Officer (ERO)

 

 

The Electoral Registration Officer is responsible for the preparation of electoral rolls for a Parliamentary / assembly constituency. The Election Commission of India, in consultation with the state / UT government, appoints an officer of the government or the local authorities as the Electoral Registration Officer.

 

 

 

 

Presiding Officer

 

 

The Presiding Officer with the assistance of polling officers conducts the poll at a polling station. The District Election Officer appoints the Presiding Officers and the Polling Officers. In the case of Union Territories, such appointments are made by the Returning Officers.

 

 

 

 

 

Observers

 

 

The Election Commission of India nominates officers of Government as Observers (General Observers and Election Expenditure Observers) for Parliamentary and assembly constituencies. They perform such functions as are entrusted to them by the Commission.

 

 

 

 

 

 

ELECTION COMMISSION

The Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country.

Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice-president of India shall be vested in the election commission.

Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.

It must be noted here that the election commission is not concerned with the elections to panchayats and muncipalities in the states. For this, the Constitution of India provides for a separate State Election Commission

COMPOSITION

Article 324 of the Constitution has made the following provisions with regard to the composition of election commission

 

1. 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.

 

2. The appointment of the chief election commissioner and other election commissioners shall 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. The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission.

 

5. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president.

 

 

The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.3 In case of difference of opinion amongst the Chief Election Commissioner and/or two other election commissioners, the matter is decided by the Commission by majority.

 They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. They can resign at any time or can also be removed before the expiry of their term.

 

 

INDEPENDENCE

Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:

  1. The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court. In other words, he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
  2. The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
  3. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.

 Though the constitution has sought to safeguard and ensure the independence and impartiality of the Election Commission, some flaws can be noted, viz.

  1. The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
  2. The Constitution has not specified the term of the members of the Election Commission.
  3. The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

 

POWERS AND FUNCTIONS

The powers and functions of the Election Commission with regard to elections to the Parliament, state legislatures and offices of President and Vice-President can be classified into three categories, viz,

  1. Administrative
  2. Advisory
  3. Quasi-Judicial In details, these powers and functions are:
  4. To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament
  5. To prepare and periodically revise electoral rolls and to register all eligible voters.
  6. To notify the dates and schedules of elections and to scrutinise nomination papers.
  7. To grant recognition to political parties and allot election symbols to them.
  8. To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them.
  9. To appoint officers for inquiring into disputes relating to electoral arrangements.
  10. To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
  11. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
  12. To advise the president on matters relating to the disqualifications of the members of Parliament.
  13. To advise the governor on matters relating to the disqualifications of the members of state legislature.
  14. To cancel polls in the event of rigging, booth capturing, violence and other irregularities.
  15. To request the president or the governor for requisitioning the staff necessary for conducting elections.
  16. To supervise the machinery of elections throughout the country to ensure free and fair elections.
  17. To advise the president whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.
  18. To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance5

RECENT TRENDS

ELECTORAL REFORMS

The union budget 2017-18 announced certain reforms to bring transparency in funding to political parties.

  REFORMS IN FUNDING TO POLITICAL PARTIES

  • The maximum amount of cash donation that a political party can receive will be 2000/- from one person.
  • Political parties will be entitled to receive donations by cheque or digital mode from their donors.
  • An amendment is being proposed to the Reserve Bank of India Act to enable the issuance of electoral bonds (India will be the first country in the world) in accordance with a scheme that the Government of India would frame in this regard.

 

 

 

Electoral bonds

 

• The bonds will only be issued by a notified bank. • It could only be bought using cheques or

digital payments.

• The bonds purchased by donor will be given to a political party for a fixed period of time.

• A political party using their notified bank account can convert these bonds into money.

• All political parties are required to notify their bank account to the Election Commission.

• This bond will be like a bearer cheque which will facilitate donor’s anonymity.

 

 

 

  • Every political party would have to file its return within the time prescribed in accordance with the provision of the Income-tax Act.
  • The existing exemption to the political parties from payment of income-tax would be available only subject to the fulfillment of above conditions.

Background

 Election Commission had asked the government to amend law to ban anonymous contributions of Rs. 2000 and more to political parties.

 Association for Democratic Reform highlighted in its report that 75% funding to parties came from anonymous sources between 2004-05 to 2014-15

CORPORATE FUNDING

Various changes have been introduced by the government in regards to the Corporate Donations to Political Parties, through Financial Bill, 2017 to further make the process transparent.

Background

Lack of transparency in electoral funding has long been an issue of debate in India.

A  report (Association for Democratic Reforms report) has shown that 2/3rd funds of political parties come from unknown sources.

Rules Governing Corporate Donation:

  • Companies Act 2013, Section 182- It lays down following norms for corporate donation:
  • A Company must be 3 years old to donate.
  • Company can donate a maximum of 7.5% of its average net profits it made in last 3 consecutive years.
  • Such contributions need to be disclosed in the profit & loss accounts of the company.
  • Contribution must be approved by the Board of Directors.
  • Company found guilty of violating the rules will be liable to pay fine that may extend up to five times the contributed amount

Changes Introduced through Finance Bill, 2017

  • The 7.5% (on average net profit) cap on funding has been removed.
  • The limit of 20,000 has been reduced to 2000 for revelation of the name of individual or company in an annual report.
  • To further cleanse the system donations can be made by purchasing electoral bonds issued by authorised banks. They could be purchased against cheque and digital payments only.
  • Political parties will have to file Income Tax Returns and the funding will be on record.
  • The companies are now allowed to keep the name of the party they contribute funding to as confidential in their profit and loss account, however the amount of donation is to be mentioned.
  • In FCRA a provison has been introduced that legalises donation from a foreign company, provided that its nominal value of share capital is within the limits specified for foreign investments under the FCRA, 1999, or rules and regulations thereafter. The proviso shall be inserted with effect from 26 September, 2010.

STATE FUNDING

Arguments in favour of state funding

State funding increases transparency inside the party and also in candidate finance, as certain restrictions can be put along with state funding

  • State funding can limit the influence of wealthy people and rich mafias, thereby purifying the election process
  • Through state funding the demand for internal democracy in party, women representations, representations of weaker section can be encouraged.  In India, with high level of poverty, ordinary citizens cannot be expected to contribute much to the political parties. Therefore, the parties depend upon funding by corporate and rich individuals

Arguments against state funding

Through state funding of elections the tax payers are forced to support even those political parties or candidates, whose view they do not subscribe to.

  • State funding encourages status quo that keeps the established party or candidate in power and makes it difficult for the new parties.
  • State funding increases the distance between political leaders and ordinary citizens as the parties do not depend on the citizens for mobilization of party fund.
  • Political parties tend to become organs of the state, rather than being parts of the civil society.

ISSUES RELATED TO RPA

. RELIGION AND ELECTIONS-SECTION 123(3) OF RPA

  1. A seven-judge Supreme Court bench ruled by a 4-3 majority that “religion, race, caste, community or language would not be allowed to play any role in the electoral process”  It also said that election of a candidate would be declared null and void if an appeal is made to seek votes on these considerations.

 Arguments in favour

  • Seeking votes in the name of religion could affect the secular concept of elections in our democracy, and hence such a thing could not be allowed.
  • Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation.
  • Seeking votes in name of religion may exclude some sections cause a deep feeling of insecurity among minorities, free thinkers, atheists etc.

Criticism

  • It is difficult to define what kind of an appeal is religious appeal.
  • This interpretation violates the right to freedom of speech under Article 19.
  • RPA already has provisions to curb hate speech or speech that spreads enmity.
  • A broad interpretation “outlaws” parties like Akali Dal whose very name violates this interpretation.
  • Imposing democratic processes involving caste and religion as corruption, may not be in touch with reality.

2.Recently Supreme Court has held that every voter has a fundamental right to know the educational qualification of a candidate.

  • According to the provisions of the Representation of the People Act 1951, Rules and Form that there is a duty cast on the candidates to give correct information about their educational qualifications.
  • Any false declaration can warrant rejection of nomination papers.
  • Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate

REFORMS PROPOSED BY ECI OVER THE YEARS

De-criminalization of politics.

  • For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more.
  • Under the existing law (ROP Act, 51) there is a disqualification once a person is convicted and sentenced to imprisonment of two years or more (in the case of certain offences mentioned in sub-sections (1) of Section-8, conviction itself leads to disqualification, even without any sentence of imprisonment).

The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed charges.

  • As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior to an election should be taken into account for that election.
  1. Political parties reforms
  • The Commission has suggested that legal provisions be made to regulate the functioning of political parties and the Commission should be empowered to regulate registration as well as de-registration of political parties.
  • The political parties should be legally required to get their accounts audited annually. The audited accounts should be put in public domain. There should be transparency in the fund raising and expenditure of political parties..
  • Income tax exemption for donations should be given only for those political parties which contest election and win seats in the Parliament/State Legislature.
  1. Misuse of religion for electoral gain–
  • A Bill was introduced in the Lok Sabha in 1994 [R.P. (second amendment) Bill,1994], whereby an amendment was proposed providing for provision to question before a High Court, acts of misuse of religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha in 1996. The Commission has proposed thatthe provision in that Bill should be considered again..
  1. Amendment of law to make `paidnews’ an electoral offence
  • The Commission has been proposed amendment in the Representation of People Act, 1951, to provide therein that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a minimum of two years imprisonment
  1. Punishment for electoral offences to be enhanced
  • Undue influence and bribery at elections are electoral offences under Sections 171B and 171C, respectively, of the IPC. These offences are non-cognizable offences, with punishment provision of one year’s imprisonment, or fine, or both.
  • Under Section 171-G, publishing false statement in connection with election with intent to affect the result of an election, is punishable with fine only.
  1. Government sponsored advertisements
  • For six months prior to the date of expiry of the term of the House, there should be a ban on advertisements on achievements of the Government.
  • Advertisements/dissemination of information on poverty alleviation and health related schemes could be exempted from the ban.
  1. Prohibition of Campaign during the Last 48 Hours
  • Section 126 of the Representation of the People Act, 1951, prohibits electioneering activities by way of public meetings, public performance, processions, advertisements through cinematograph, television or similar apparatus during the period of 48 hours before the time fixed for conclusion of poll. However, this Section does not include print media.

The Commission has proposed that Section 126 should apply equally to the print media also. • The Commission has further proposed that house to house visits by candidates/supporters should also be specifically prohibited during the said period of 48 hours, to allow the electors period of tranquil to decide their option. Necessary amendments should be carried out in Section 126.

 

  1. Punishment for false affidavit by candidates
  • Section -125A of R.P. Act, 51, provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by imprisonment upto six months or with fine.
  • There is no clear provision for follow-up action in the event of candidates filing false affidavits.
  • There are several complaints of false statements in affidavits, false statements mislead the electors.
  • In order to strengthen the disclosure provision, the Commission has recommended that Section-125A of R.P. Act, 51, should be amended to provide that any complaint regarding false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action Alternatively, complaint can lie directly to the Magistrate Court.
  1. Negative/neutral voting
  • In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions for a column `none of the above’ to enable a voter to reject all candidates if he sodesires.
  1. Amendment of law to provide for filing of election petition even against defeated candidates on the ground of corrupt practice
  • As per the existing law, election petition (EP) can be filed only for challenging an election of the returned candidate (winner).
  • If a defeated candidate has indulged in corrupt practice, there is no provision for election petition against such candidate.
  • Commission has recommended that the law should be amended to provide for filing of EP in cases of commission of corrupt practice by a losing candidate as well.

11.Ban on transfer of election officers on the eve of election

  • In the case of general election, there should be a ban against transferring any election related officer without the concurrence of the Commission for a period of six months prior to the expiry of the term of the House.
  1. Rule making authority to be vested in the Commission –

The Commission should be given the power to frame rules under the R.P. Act, 1950 and

  1. Totalizer for counting of votes
  • The proposal is for amendment of the Rules to provide for the use of totalizer for counting of votes at EVM elections.
  • Using totalizer , it would be possible to take out the results of votes polled in a group of 14 EVMs together as against the present practice of counting votes polling station wise.
  • In such a system of counting, the trend of voting in individual polling station areas would not be known. This will prevent intimidation and post election victimization of electors.

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Elections in India

Articles 324 to 329 in Part XV of the Constitution make the following provisions with regard to the electoral system in our country:

  1. The Constitution (Article 324) provides for an independent Election Commission in order to ensure free and fair elections in the country. The power of supertendence, direction and conduct of elections to the Parliament, the state legislatures, the office of the President and the office of the Vice-President is vested in the Commission. At present, the commission consists of a chief election commissioner and two election commissioners.
  2. 2. There is to be only one general electoral roll for every territorial constituency for election to the Parliament and the state legislatures. Thus, the Constitution has abolished the system of communal representation and separate electorates which led to the partition of the country.
  3. No person is to be ineligible for inclusion in the electoral roll on grounds only of religion, race, caste, sex or any of them. Further, no person can claim to be included in any special electoral roll for any constituency on grounds only of religion, race, caste or sex or any of them. Thus, the Constitution has accorded equality to every citizen in the matter of electoral franchise.
  4. The elections to the Lok Sabha and the state assemblies are to be on the basis of adult franchise. Thus, every person who is a citizen of India and who is 18 years of age, is entitled to vote at the election provided he is not disqualified under the provisions of the Constitution or any law made by the appropriate legislature (Parliament or state legislature) on the ground of non-residence, unsound mind, crime or corrupt or illegal practice4.
  5. 5. Parliament may make provision with respect to all matters relating to elections to the Parliament and the state legislatures including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing their due constitution.

In exercise of this power, the Parliament has enacted the following laws:

  • Representation of the People Act of 1950 which provides for the qualifications of voters, preparation of electoral rolls, delimitation of constituencies, allocation of seats in the Parliament and state legislatures and so on.
  • Representation of the People Act of 1951 which provides for the actual conduct of elections and deals with administrative machinery for conducting elections, the poll, election offences, election disputes, by-elections, registration of political parties and so on.
  • Delimitation Commission Act of 1952 which provides for the readjustment of seats, delimitation and reservation of territorial constituencies and other related matters. 6. The state legislatures can also make provision with respect to all matters relating to elections to the state legislatures including the preparation of electoral rolls and all other matters necessary for securing their due constitution. But, they can make provision for only those matters which are not covered by the Parliament. In other words, they can only supplement the parliamentary law and cannot override it.
  1. The Constitution declares that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be questioned in any court. Consequently, the orders issued by the Delimitation Commission become final and cannot be challenged in any court.
  2. 8. The Constitution lays down that no election to the Parliament or the state legislature is to be questioned except by an election petition presented to such authority and in such manner as provided by the appropriate legislature. Since 1966, the election petitions are triable by high courts alone. But, the appellate jurisdiction lies with the Supreme Court alone.

Article 323 B empowers the appropriate legislature (Parliament or state legislature) to establish a tribunal for the adjudication of election disputes. It also provides for the exclusion of the jurisdiction of all courts (except the special leave appeal jurisdiction of the Supreme Court) in such disputes. So far, no such tribunal has been established. It must be noted here that in Chandra Kumar case(1997), the Supreme Court declared this provision as unconstitutional. Consequently, if at any time an election tribunal is established, an appeal from its decision lies to the high court.

ELECTORAL PROCESS:

Time of Elections

Elections for the Lok Sabha and every state Legislative Assembly have to take place every five years, unless called earlier. The President can dissolve Lok Sabha and call a General Election before five years is up, if the Government can no longer command the confidence of the Lok Sabha, and if there is no alternative government available to take over.

Schedule of Elections

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

 

·       The Commission normally announces the schedule of elections in a major press conference a few weeks before the formal process is set in motion.

·       The Model Code of Conduct for guidance of candidates and political parties comes immediately into effect after such announcement.

·       The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House.

·       As soon as Notifications are issued, candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

·       Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held on a number of days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer.

·       The Commission compiles the complete list of members elected and issues an appropriate Notification for the due constitution of the House.

·       With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned states, in case of State Assemblies, can then convene their respective Houses to hold their sessions.

 

 

Oath or Affirmation

It is necessary for a candidate to make and subscribe an oath or affirmation before an officer authorised by the Election Commission. For any particular election, the authorised persons are, principally, the Returning Officer and the Assistant Returning Officer for the constituency.

In the case of a candidate confined in a prison or under preventive detention, the superintendent of the prison or commandant of the detention camp in which he is so confined or is under such detention is authorised to administer the oath. And in the case of a candidate confined to bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent in charge of the hospital or the medical practitioner attending on him is similarly authorised. If a candidate is outside India, the Indian Ambassador or High Commissioner or diplomatic consular authorised by him can also administer oath/affirmation. The candidate, in person, is required to make the oath or affirmation immediately after presenting his nomination papers and in any case not laterthan the day previous to the date of the scrutiny.

Election Campaign

The campaign is the period when the political parties put forward their candidates and arguments with which they hope to persuade people to vote for their candidates and parties. Candidates are given a week to put forward their nominations. These are scrutinised by the Returning Officers and if not found to be in order can be rejected after a summary hearing. Validly nominated candidates can withdraw within two days after nominations have been scrutinised. The official campaign lasts at least two weeks from the drawing up of the list of nominated candidates, and officially ends 48 hours before polling closes. During the election campaign, the political parties and contesting candidates are expected to abide by a Model Code of Conduct evolved by the Election Commission on the basis of a consensus among political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during the election campaign

Polling Days

Polling is normally held on a number of different days in different constituencies, to enable the security forces and those monitoring the election to keep law and order and ensure that voting during the election is fair.

Ballot Papers and Symbols

After nomination of candidates is complete, a list of competing candidates is prepared by the Returning Officer, and ballot papers are printed. Ballot papers are printed with the names of the candidates (in languages set by the Election Commission) and the symbols allotted to each of the candidates. Candidates of recognised parties are allotted their party symbols. Voting Procedure Voting is by secret ballot.. Since 1998, the Commission has increasingly used Electronic Voting Machines (EMVs) instead of ballot boxes. In 2003, all state elections and by elections were held using EVMs. Encouraged by this, the Commission took a historic decision to use only EVMs for the Lok Sabha election in 2004. More than 1 million EVMs were used in this election.

Electronic Voting Machine  An Electronic Voting Machine (EVM) is a simple electronic device used to record votes in place of ballot papers and boxes which were used earlier in conventional voting system. The advantages of the EVM over the traditional ballot paper / ballot box system are given here:

(i) It eliminates the possibility of invalid and doubtful votes which, in many cases, are the root causes of controversies and election petitions.

(ii) It makes the process of counting of votes much faster than the conventional system.

(iii) It reduces to a great extent the quantity of paper used thus saving a large number of trees making the process eco-friendly.

  • It reduces cost of printing (almost nil) as only one sheet of ballot paper is required for each Polling Station

 

ELECTION MACHINERY

 

 

 

 

Election Commission of India (ECI)

 

 

Under Article 324 of the Constitution of India, the Election Commission of India is vested with the power of superintendence, direction and control of conducting the elections to the Lok Sabha and State Legislative Assemblies.

 

 

 

 

 

 

Chief Electoral Officer (CEO)

 

 

The Chief Electoral Officer of a state/ Union Territory is authorised to supervise the election work in the state/Union Territory subject to the overall superintendence, direction and control of the Election Commission. The Election Commission of India nominates or designates an Officer of the Government of the state / Union Territory as the Chief Electoral Officer in consultation with that State Government / Union Territory Administration.

 

 

 

 

District Election Officer (DEO)

 

 

 

 

Subject to the superintendence, direction and control of the Chief Electoral Officer, the District Election Officer supervises the election work of a district. The Election Commission of India nominates or designates an officer of the state Government as the District Election Officer in consultation with the state government.

 

 

 

 

 

 

 

 

Returning Officer (RO

 

 

The Returning Officer of a Parliamentary or assembly constituency is responsible for the conduct of elections in the Parliamentary or assembly constituency concerned. The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government / Union Territory Administration.

 

 

 

 

Electoral Registration Officer (ERO)

 

 

The Electoral Registration Officer is responsible for the preparation of electoral rolls for a Parliamentary / assembly constituency. The Election Commission of India, in consultation with the state / UT government, appoints an officer of the government or the local authorities as the Electoral Registration Officer.

 

 

 

 

Presiding Officer

 

 

The Presiding Officer with the assistance of polling officers conducts the poll at a polling station. The District Election Officer appoints the Presiding Officers and the Polling Officers. In the case of Union Territories, such appointments are made by the Returning Officers.

 

 

 

 

 

Observers

 

 

The Election Commission of India nominates officers of Government as Observers (General Observers and Election Expenditure Observers) for Parliamentary and assembly constituencies. They perform such functions as are entrusted to them by the Commission.

 

 

 

 

 

 

ELECTION COMMISSION

The Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country.

Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice-president of India shall be vested in the election commission.

Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.

It must be noted here that the election commission is not concerned with the elections to panchayats and muncipalities in the states. For this, the Constitution of India provides for a separate State Election Commission

COMPOSITION

Article 324 of the Constitution has made the following provisions with regard to the composition of election commission

 

1. 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.

 

2. The appointment of the chief election commissioner and other election commissioners shall 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. The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission.

 

5. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president.

 

 

The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.3 In case of difference of opinion amongst the Chief Election Commissioner and/or two other election commissioners, the matter is decided by the Commission by majority.

 They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. They can resign at any time or can also be removed before the expiry of their term.

 

 

INDEPENDENCE

Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:

  1. The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court. In other words, he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
  2. The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
  3. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.

 Though the constitution has sought to safeguard and ensure the independence and impartiality of the Election Commission, some flaws can be noted, viz.

  1. The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
  2. The Constitution has not specified the term of the members of the Election Commission.
  3. The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

 

POWERS AND FUNCTIONS

The powers and functions of the Election Commission with regard to elections to the Parliament, state legislatures and offices of President and Vice-President can be classified into three categories, viz,

  1. Administrative
  2. Advisory
  3. Quasi-Judicial In details, these powers and functions are:
  4. To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament
  5. To prepare and periodically revise electoral rolls and to register all eligible voters.
  6. To notify the dates and schedules of elections and to scrutinise nomination papers.
  7. To grant recognition to political parties and allot election symbols to them.
  8. To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them.
  9. To appoint officers for inquiring into disputes relating to electoral arrangements.
  10. To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
  11. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
  12. To advise the president on matters relating to the disqualifications of the members of Parliament.
  13. To advise the governor on matters relating to the disqualifications of the members of state legislature.
  14. To cancel polls in the event of rigging, booth capturing, violence and other irregularities.
  15. To request the president or the governor for requisitioning the staff necessary for conducting elections.
  16. To supervise the machinery of elections throughout the country to ensure free and fair elections.
  17. To advise the president whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.
  18. To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance5

RECENT TRENDS

ELECTORAL REFORMS

The union budget 2017-18 announced certain reforms to bring transparency in funding to political parties.

  REFORMS IN FUNDING TO POLITICAL PARTIES

  • The maximum amount of cash donation that a political party can receive will be 2000/- from one person.
  • Political parties will be entitled to receive donations by cheque or digital mode from their donors.
  • An amendment is being proposed to the Reserve Bank of India Act to enable the issuance of electoral bonds (India will be the first country in the world) in accordance with a scheme that the Government of India would frame in this regard.

 

 

 

Electoral bonds

 

• The bonds will only be issued by a notified bank. • It could only be bought using cheques or

digital payments.

• The bonds purchased by donor will be given to a political party for a fixed period of time.

• A political party using their notified bank account can convert these bonds into money.

• All political parties are required to notify their bank account to the Election Commission.

• This bond will be like a bearer cheque which will facilitate donor’s anonymity.

 

 

 

  • Every political party would have to file its return within the time prescribed in accordance with the provision of the Income-tax Act.
  • The existing exemption to the political parties from payment of income-tax would be available only subject to the fulfillment of above conditions.

Background

 Election Commission had asked the government to amend law to ban anonymous contributions of Rs. 2000 and more to political parties.

 Association for Democratic Reform highlighted in its report that 75% funding to parties came from anonymous sources between 2004-05 to 2014-15

CORPORATE FUNDING

Various changes have been introduced by the government in regards to the Corporate Donations to Political Parties, through Financial Bill, 2017 to further make the process transparent.

Background

Lack of transparency in electoral funding has long been an issue of debate in India.

A  report (Association for Democratic Reforms report) has shown that 2/3rd funds of political parties come from unknown sources.

Rules Governing Corporate Donation:

  • Companies Act 2013, Section 182- It lays down following norms for corporate donation:
  • A Company must be 3 years old to donate.
  • Company can donate a maximum of 7.5% of its average net profits it made in last 3 consecutive years.
  • Such contributions need to be disclosed in the profit & loss accounts of the company.
  • Contribution must be approved by the Board of Directors.
  • Company found guilty of violating the rules will be liable to pay fine that may extend up to five times the contributed amount

Changes Introduced through Finance Bill, 2017

  • The 7.5% (on average net profit) cap on funding has been removed.
  • The limit of 20,000 has been reduced to 2000 for revelation of the name of individual or company in an annual report.
  • To further cleanse the system donations can be made by purchasing electoral bonds issued by authorised banks. They could be purchased against cheque and digital payments only.
  • Political parties will have to file Income Tax Returns and the funding will be on record.
  • The companies are now allowed to keep the name of the party they contribute funding to as confidential in their profit and loss account, however the amount of donation is to be mentioned.
  • In FCRA a provison has been introduced that legalises donation from a foreign company, provided that its nominal value of share capital is within the limits specified for foreign investments under the FCRA, 1999, or rules and regulations thereafter. The proviso shall be inserted with effect from 26 September, 2010.

STATE FUNDING

Arguments in favour of state funding

State funding increases transparency inside the party and also in candidate finance, as certain restrictions can be put along with state funding

  • State funding can limit the influence of wealthy people and rich mafias, thereby purifying the election process
  • Through state funding the demand for internal democracy in party, women representations, representations of weaker section can be encouraged.  In India, with high level of poverty, ordinary citizens cannot be expected to contribute much to the political parties. Therefore, the parties depend upon funding by corporate and rich individuals

Arguments against state funding

Through state funding of elections the tax payers are forced to support even those political parties or candidates, whose view they do not subscribe to.

  • State funding encourages status quo that keeps the established party or candidate in power and makes it difficult for the new parties.
  • State funding increases the distance between political leaders and ordinary citizens as the parties do not depend on the citizens for mobilization of party fund.
  • Political parties tend to become organs of the state, rather than being parts of the civil society.

ISSUES RELATED TO RPA

. RELIGION AND ELECTIONS-SECTION 123(3) OF RPA

  1. A seven-judge Supreme Court bench ruled by a 4-3 majority that “religion, race, caste, community or language would not be allowed to play any role in the electoral process”  It also said that election of a candidate would be declared null and void if an appeal is made to seek votes on these considerations.

 Arguments in favour

  • Seeking votes in the name of religion could affect the secular concept of elections in our democracy, and hence such a thing could not be allowed.
  • Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation.
  • Seeking votes in name of religion may exclude some sections cause a deep feeling of insecurity among minorities, free thinkers, atheists etc.

Criticism

  • It is difficult to define what kind of an appeal is religious appeal.
  • This interpretation violates the right to freedom of speech under Article 19.
  • RPA already has provisions to curb hate speech or speech that spreads enmity.
  • A broad interpretation “outlaws” parties like Akali Dal whose very name violates this interpretation.
  • Imposing democratic processes involving caste and religion as corruption, may not be in touch with reality.

2.Recently Supreme Court has held that every voter has a fundamental right to know the educational qualification of a candidate.

  • According to the provisions of the Representation of the People Act 1951, Rules and Form that there is a duty cast on the candidates to give correct information about their educational qualifications.
  • Any false declaration can warrant rejection of nomination papers.
  • Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate

REFORMS PROPOSED BY ECI OVER THE YEARS

De-criminalization of politics.

  • For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more.
  • Under the existing law (ROP Act, 51) there is a disqualification once a person is convicted and sentenced to imprisonment of two years or more (in the case of certain offences mentioned in sub-sections (1) of Section-8, conviction itself leads to disqualification, even without any sentence of imprisonment).

The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed charges.

  • As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior to an election should be taken into account for that election.
  1. Political parties reforms
  • The Commission has suggested that legal provisions be made to regulate the functioning of political parties and the Commission should be empowered to regulate registration as well as de-registration of political parties.
  • The political parties should be legally required to get their accounts audited annually. The audited accounts should be put in public domain. There should be transparency in the fund raising and expenditure of political parties..
  • Income tax exemption for donations should be given only for those political parties which contest election and win seats in the Parliament/State Legislature.
  1. Misuse of religion for electoral gain–
  • A Bill was introduced in the Lok Sabha in 1994 [R.P. (second amendment) Bill,1994], whereby an amendment was proposed providing for provision to question before a High Court, acts of misuse of religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha in 1996. The Commission has proposed thatthe provision in that Bill should be considered again..
  1. Amendment of law to make `paidnews’ an electoral offence
  • The Commission has been proposed amendment in the Representation of People Act, 1951, to provide therein that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a minimum of two years imprisonment
  1. Punishment for electoral offences to be enhanced
  • Undue influence and bribery at elections are electoral offences under Sections 171B and 171C, respectively, of the IPC. These offences are non-cognizable offences, with punishment provision of one year’s imprisonment, or fine, or both.
  • Under Section 171-G, publishing false statement in connection with election with intent to affect the result of an election, is punishable with fine only.
  1. Government sponsored advertisements
  • For six months prior to the date of expiry of the term of the House, there should be a ban on advertisements on achievements of the Government.
  • Advertisements/dissemination of information on poverty alleviation and health related schemes could be exempted from the ban.
  1. Prohibition of Campaign during the Last 48 Hours
  • Section 126 of the Representation of the People Act, 1951, prohibits electioneering activities by way of public meetings, public performance, processions, advertisements through cinematograph, television or similar apparatus during the period of 48 hours before the time fixed for conclusion of poll. However, this Section does not include print media.

The Commission has proposed that Section 126 should apply equally to the print media also. • The Commission has further proposed that house to house visits by candidates/supporters should also be specifically prohibited during the said period of 48 hours, to allow the electors period of tranquil to decide their option. Necessary amendments should be carried out in Section 126.

 

  1. Punishment for false affidavit by candidates
  • Section -125A of R.P. Act, 51, provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by imprisonment upto six months or with fine.
  • There is no clear provision for follow-up action in the event of candidates filing false affidavits.
  • There are several complaints of false statements in affidavits, false statements mislead the electors.
  • In order to strengthen the disclosure provision, the Commission has recommended that Section-125A of R.P. Act, 51, should be amended to provide that any complaint regarding false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action Alternatively, complaint can lie directly to the Magistrate Court.
  1. Negative/neutral voting
  • In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions for a column `none of the above’ to enable a voter to reject all candidates if he sodesires.
  1. Amendment of law to provide for filing of election petition even against defeated candidates on the ground of corrupt practice
  • As per the existing law, election petition (EP) can be filed only for challenging an election of the returned candidate (winner).
  • If a defeated candidate has indulged in corrupt practice, there is no provision for election petition against such candidate.
  • Commission has recommended that the law should be amended to provide for filing of EP in cases of commission of corrupt practice by a losing candidate as well.

11.Ban on transfer of election officers on the eve of election

  • In the case of general election, there should be a ban against transferring any election related officer without the concurrence of the Commission for a period of six months prior to the expiry of the term of the House.
  1. Rule making authority to be vested in the Commission –

The Commission should be given the power to frame rules under the R.P. Act, 1950 and

  1. Totalizer for counting of votes
  • The proposal is for amendment of the Rules to provide for the use of totalizer for counting of votes at EVM elections.
  • Using totalizer , it would be possible to take out the results of votes polled in a group of 14 EVMs together as against the present practice of counting votes polling station wise.
  • In such a system of counting, the trend of voting in individual polling station areas would not be known. This will prevent intimidation and post election victimization of electors.

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