Electoral reform decisions by Supreme Court

The following Supreme Court judgments were directed towards bringing electoral reforms:

1. Persons in Custody to be debarred from contesting elections

As per the 2004 judgment of the Patna High Court in Jan Chaukidari v Union of Indiaupheld by the Supreme Court on 10 July 2013— all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election.

The judges relied on the Representation of the People Act (RPA), which says that one of the qualifications for membership of Parliament or State legislature is that the contestant must be an ‘elector’. Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies.

Reasoning Against the Judgement

For a person to be qualified for the membership of legislature, Representation of People Act, 1951 states that one has to be an ‘elector’ as defined in Section 2(e). Section 2(e) defines an elector as “a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950.”

As the law mentions Section 16 of RPA, 1950 as the basis of disqualification from being an elector, the SC relied on Section 62(5) which does not define ‘elector’ and only debars a person in jail from voting, not from contesting an election. Thus Section 62(5) distinguishes between an ‘elector’ and ‘voter’. The Supreme Court’s judgement effectively amends the law passed by the Parliament.

2. MPs, MLAs to be disqualified on date of criminal conviction 

In Lily Thomas v. the Union of India, the Supreme Court declared Section 8 (4) of the Representation of the People Act, 1951, (RPA) which allowed legislators a three-month window to appeal against their conviction — effectively delaying their disqualification until such appeals were exhausted — as unconstitutional.

Section 8 of the Representation of People Act, 1951 deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release.

But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.

The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.

Reasoning Against the Judgment:

The constitution enlists the disqualification criteria in Article 102(1) includes office of profit, unsound mind undischarged insolvency and citizenship.

This article also empowers the Parliament to make law specifying any other criterion for disqualification. In accordance with the constitutional mandate, the Parliament enacted the RPA 1951, mentioning the disqualification criteria in Section 8.

The Supreme Court has given two reasons for its verdict:

  1. First, it held Section 8(4) to be in violation of Article 102, and its corresponding provision for the States, Article 191, of the Constitution. A careful reading of the article 102 clearly empowers the Parliament to define the criterion for disqualification by enacting a law and none of the five clauses of Article 102(1) are attracted to invalidate Section 8(4).
  2. Second, the Supreme Court has held that Parliament had no legislative competence to enact Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th Schedule in the Constitution specifically allows Parliament to legislate on elections to Parliament or the State legislatures. It is well-settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power to legislate under Entry 97 to List 1.

3. Voter’s right to cast negative vote

With a view to bringing about purity in elections, the Supreme Court on Friday held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected.

The voter could press the ‘None of the above’ (NOTA) button in the electronic voting machine. The court directed the Election Commission to provide the NOTA button in the EVM.

The NOTA option would indeed compel political parties to nominate sound candidates. The bench noted that giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy.

Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.

The right to cast a negative vote will foster the purity of the electoral process and also fulfill one of its objectives, namely, wide participation of people. Not allowing a person to cast a negative vote would defeat the very freedom of expression and the right to liberty.

The Bench held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.

4. The VVPAT Ruling

Supreme Court (SC), in the case of Subramanian Swamy vs Election Commission of India (ECI), has held that VVPAT (Vote Verifiable Paper Audit Trial) is “indispensable for free and fair elections”.

In accordance to that, the Supreme Court has directed the ECI to equip Electronic Voting Machines (EVMs) with VVPAT systems to “ensure accuracy of the VVPAT system”. The Court directed the government to provide the key financial assistance to the ECI to cause VVPAT systems to be deployed along with EVMs.

Reiterating the stand of the Delhi High Court in an earlier judgment, the Apex Court maintained that costs and finances cannot and should not be a deterrent to the conduct of free and fair elections.

This ruling is obviously a victory for accountable voting in India, but it leaves a few questions unanswered. While this was an exclusive prerogative of the Executive to decide the manner in which fair and efficient elections can be held, but in this case the court not only decided the mechanism but also asked the government to allocate funds.

5. Ruling on election manifesto

On a petition filed by an advocate S Subramaniam Balaji, challenging the state’s decision to distribute freebies, the Supreme Court said that freebies promised by political parties in their election manifestos shake the roots of free and fair polls, the, and directed the Election Commission to frame guidelines for regulating contents of manifestos.

It was stated in the petition that the freebies amounts to bribery under Section 123(1). The Supreme Court rejected the contention that the promises made by a political party are violative of Section 123(1) of the RPA. The provisions of the RPA place no fetter on the power of political parties to make promises in the election manifesto, the court held.

Secondly, the court held that the concept of state largesse is essentially linked to the Directive Principles of State Policy. Whether the state should frame a scheme, which directly gives benefits to improve the living standards or indirectly does so by increasing the means of livelihood, is for the state to decide and the role of the court is very limited in this regard.

It held that judicial interference was permissible when the action of the government was unconstitutional and not when such action was not wise or when the extent of expenditure was not for the good of the state.

The court, however, agreed with the appellant that distribution of freebies of any kind undoubtedly influenced all people. “Freebies shake the root of free and fair elections to a large degree,” it said.

Considering that there was no enactment that directly governed the contents of the election manifesto, the court directed the E.C. to frame guidelines for the same in consultation with all the recognised political parties. The court also suggested the enactment of a separate law for governing political parties.

6. Stay on caste-based rallies in UP

The Allahabad high court stayed caste-based rallies in Uttar Pradesh, a move that will block off a key avenue that the major political parties use to expand their support base, especially before elections.

The Lucknow bench of the high court sent a notice staying caste-based rallies to four major political parties, the Union and the state governments, and the Election Commission. The four parties are the Congress, the Bharatiya Janata Party (BJP), the Samajwadi Party (SP) and the Bahujan Samaj Party (BSP).

Holding political rallies by certain groups to address issues specific to them and seeking to win their electoral support is a common practice in the country, most prominently in Uttar Pradesh, where two of the major parties have specific caste bases.

The petitioner said there had been a spurt of such rallies in the state, damaging social unity and harmony, and that they were against the spirit of the Constitution.

There is no legal bar to a caste rally, as long as no law is violated. In fact, Article 19(1)(b) of the Constitution gives citizens a Fundamental right to assemble peacefully.

A political party can call a meeting of a caste, for example, of Dalits to discuss the problems facing that community, and there is no law barring such a meeting. The aforementioned decisions of the Supreme Court and the Allahabad High Court may be perceived as making or amending the law, a function that is in the domain of the legislature.

7. Ruling on nomination Papers

The Supreme Court on 13th Sep, 2013 ruled that returning officer can reject nomination papers of a candidate for non-disclosure and suppression of information, including that of assets and their criminal background.

The apex court said that voters have fundamental right to know about their candidates and leaving columns blank in the nomination paper amounts to violation of their right.

The court passed the judgment on a PIL filed in 2008 by NGO Resurgence India, a civil rights group, which detected a trend among candidates of leaving blank the columns demanding critical information about them.

The Election Commission had supported the NGO’s plea that no column should be allowed to be left blank which tantamount to concealing information and not filing complete affidavit.

It had also taken a stand that the returning officer should be empowered to reject the nomination papers of a candidate who provides incomplete information by leaving some columns blank in the affidavit.

To summarize, The Representation of the People Act postulates the provisions for the allocation of seats in, and the demarcation of constituencies for electoral purposes, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories and matters connected therewith.

By B2B

Revisiting the Basics

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