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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 India — upheld 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.

Part IV provide for delegation of functions of Election Commission i.e. the functions of the Election Commission under the Constitution, the Representation of the People Act, 1950, and Representation of the People Act, 1951 Act or under the rules made there under may be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission on the basis of directions as may be given by the Election Commission in this behalf.

Chief Electoral Officer: 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.

Chief Electoral Officer of a State/ Union Territory is authorized to supervise the election work in the State/Union Territory subject to the overall superintendence, direction and control of the Election Commission.

District Election Officer: The EC nominates an Officer of the State Government as the District Election Officer in consultation with the State Government.

The district election officer is authorized to coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State subject to the superintendence, direction and control of the chief electoral officer.

With the previous approval of the Election Commission, DEO provides a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and publishes a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.

Observer: The Election Commission may nominate an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies. Earlier, the appointment of Observers was made under the plenary powers of the Commission.

But with the amendments made to the Representation of the People Act, 1951 in 1996, these are now statutory appointments. They report directly to the Commission. The Observer has the power to direct the returning officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if in his opinion booth capturing has taken place.

In case of stopping the counting of votes or non-declaration of result, a report shall be sent by the Observer to the EC, which issue appropriate directions.

Returning Officer: 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.

Same person can be appointed as the returning officer for more than one constituency. In addition, the Election Commission of India may appoint one or more Assistant Returning Officers for each of the assembly and parliamentary constituencies to assist the Returning Officer in the performance of his functions in connection with the conduct of elections. Every such person must be an officer of Government or of a local authority.

Every assistant returning officer, subject to the control of the returning officer, is competent to perform all or any of the functions of the returning officer except functions which relate the scrutiny of nominations unless the returning officer is unavoidably prevented from performing the said function. While Returning officer may always include an assistant returning officer in performing any function which he is authorized to perform him.

It is the general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by RPA, 1951and rules or orders made there under.

Presiding Officer: The district election officer appoints a presiding officer for each polling station. If a polling officer is absent from the polling station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the district election officer accordingly.

Same person can be the presiding officer for more than one polling station in the same premises. It is the general duty of the presiding officer at a polling station to keep order thereat and to see that the poll is fairly taken.

Polling Officer: A polling officer performs all or any of the functions of a presiding officer based upon his direction. 

If the presiding officer is absent from the polling station due to illness or other unavoidable cause, his functions shall be performed by such polling officer as has been previously authorized by the district election officer to perform such functions during any such absence. It is the duty of the polling officers at a polling station to assist the presiding officer for such station in the performance of his functions.

The returning officer, assistant returning officer, presiding officer, polling officer, and any other officer appointed so and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission during the election period and such officers shall be subject to the control, superintendence and discipline of the Election Commission.

When the term of the legislature is over, or the legislature has been dissolved and new elections have been called, the Election Commission puts into effect the machinery for holding an election.

In case of Lok Sabha elections have to be concluded before the limit of 6 months that is stated by the Constitution as the maximum possible duration of the last session of dissolved Lok Sabha and the recalling of new House.

Schedule of elections is usually announced by the Election Commission in a major press conference a few weeks ago before the formal process starts. The model code of conduct immediately comes into effect after such an announcement.

Formal process of an election starts with calling electorates to elect members of concerned legislature. As soon as notifications are issued, candidates can starts filling their nomination in the constituencies from where they wish to contest.

These are scrutinized by returning officer of the concerned constituency, after last date for filling the nomination is over (that is about a week). Validly nominated candidates can withdraw from the contest within two days from the date of scrutiny. About two weeks, before actual poll date, is given to contesting candidates for political campaign.

For national election polling is held on a number of days, this is because of the vast magnitude of operations involved and massive size of electorates. A separate date for counting is fixed and result is declared for every constituency by the concerned returning officer.

The complete list of the members elected is compiled by the commission and it issues an appropriate notification for due constitution of house. This marks the completion of election process.

It is necessary for a candidate to make and subscribe an oath or affirmation before an officer authorized by the election commission (Returning Officer or Asst. Returning officer).

The candidate, in person, is required to make the oath or affirmation immediately after presenting his nomination paper and in any case not later than the day previous to the date of scrutiny.

In the case of a candidate confined in a prison or under preventive detention, the superintendent of the prison or the commandant of the detention camp in which he is so confined or is under such detention is authorized to administer the oath and in the case of candidate confined to a 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 authorized.

If the candidate is outside India, the Indian Ambassador of High Commissioner or diplomatic consular authorized by him can also administer oath/affirmation.

Election Campaign

 

 

The campaign is the period when the political parties put forward their candidate and argument with which they hope to persuade people to vote for their candidates and parties.

Candidates are given a week to put forward their nomination. These are scrutinized by the Returning Officers and if not found in order can be rejected after a summary hearing.

The official campaign lasts at least two weeks from the drawing up of the list of nominated candidate and officially ends 48 hours before polling closes.

During the election campaign, political parties and contesting candidates are expected to abide by the 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.

It is intended to maintain the election campaign on healthy lines avoid clashes or conflict between political parties and their supporters and to ensure peace and order during the campaign period and thereafter until the results are declared. The model code also prescribes guidelines for the ruling party either at the centre or in the state so that a level field is maintained and ensures that ruling party does not use its official position for election campaign.

The model code also prescribes guidelines for the ruling party either at the centre or in the state so that a level field is maintained and ensures that ruling party does not use its official position for election campaign.

Once an election has been called, parties issue manifesto detailing the programmes they wish to implement if elected to government, the strength of their leaders and weaknesses of opposite party and their leaders.

Voting procedure

 

 

Voting is by secret ballot.

Polling stations are usually set up at public institutions such as schools and community halls.

To enable as many electors as possible to vote the officials of election commission try to ensure that there is a polling station within two kilometer of every voter, and that no polling station should have to deal with more than 1500 voters.

Each polling station is open for at least 8 hours on the day of the election.

Electronic Voting Machine

 

 

An EVM is a simple electronic device used to record votes in place of ballot papers. EC took a decision to use only EVMs in 2004 Lok Sabha elections. SC has passed a judgement to equip all EVMs with VVPAT (Voter Verifiable Paper Audit Trail).

It has following advantages over traditional voting mechanism:

1. It eliminates the possibility of invalid/doubtful vote which in many cases are the root causes of controversies and election petitions.
2. It makes the process of counting of votes much faster than the conventional system.
3. It is eco-friendly as it reduces the use of paper.

Election expenses

According to the section 77 of RPA, 1951, every candidate contesting in election to the House of the People or to the Legislative Assembly of a State, shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent.

Currently the limits on expenditure by candidates are as follows:

1. 1. Lok Sabha elections: maximum of 70 lakhs; for north eastern and hilly states – 54 lakhs rupees.
   2. State assembly election: maximum of 28 lakhs; for north eastern and hill states – 20 lakhs rupees.

Every contesting candidate at an election shall, within thirty days from the date of election of the elected candidate or, if there are more than one elected candidate at the election and the dates of their election are different, the later of those two dates, lodge with the district election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent.

Any association or body of individual citizens of India calling itself a political party should make an application to the Election Commission for its registration as a political party.

Every such application, duly signed by the Chief Executive Officer of the association or body (Secretary or any other designation) must be presented to the Secretary of the Election Commission.

It must contain the following particulars, namely:

1. the name of the association or body;
2. the State in which its head office is situated;
3. the address to which letters and other communications meant for it should be sent;
4. the names of its president, secretary, treasurer and other office-bearers;
5. the numerical strength of its members, and if there are categories of its members, the numerical strength in each category;
6. whether it has any local units; if so, at what levels;
7. whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.

The application must be accompanied by a copy of the memorandum or rules and regulations of the association or body and such memorandum or rules and regulations must contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.

After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission decides either to register the association or body as a political party, or not so to register it; and the Commission communicates its decision to the association or body. The decision of the Commission is final.

Every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company, but no political party can accept any contribution from any foreign source.

The treasurer or any other person authorized by the political party must prepare a report in each financial year listing the contribution in excess of twenty thousand rupees received by such political party from any person or company (Other than Government) in that financial year.

This report must be submitted to the Election Commission before the due date for furnishing a return of its income of that financial year. If the political party fails to submit a report then it shall not be entitled to any tax relief.

A recognized political party shall either be a National party or a State party. A political party shall be treated as a recognized National party, if, and only if:

1. If it secures six per cent of valid votes polled in any four or more states at a general election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four seats in the Lok Sabha from any state or states; or
2. If it wins two per cent of seats in the Lok Sabha at a general election; and these candidates are elected from three states; or
3. If it is recognised as a state party in four states.

At present there are 6 national parties in the country namely BJP, BSP, CPI, CPM, INC and NCP. A political party, other than a National party, shall be treated as a recognized State party in a State or States, if, and only if:

1. If it secures six per cent of the valid votes polled in the state at a general election to the legislative assembly of the state concerned; and, in addition, it wins 2 seats in the state assembly; or
2. If it secures six per cent of the valid votes polled in the state at a general election to the Lok Sabha from the state concerned; and, in addition, it wins 1 seat in the Lok Sabha from the state concerned; or
3. If it wins three per cent of seats in the legislative assembly at a general election to the legislative assembly of the state concerned or 3 seats in the assembly, whichever is more; or
4. If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to the state at a general election to the Lok Sabha from the state concerned; or
5. If it secures eight per cent of the total valid votes polled in the state at a General Election to the Lok Sabha from the state or to the legislative assembly of the state. This condition was added in 2011.

The status of national or state party is contingent on the performance of a political party’s performance the respective elections. Thus the number of National or State parties vary depending on the assembly or General elections.

The candidates of recognized parties are entitled for free supply of certain materials like such number of copies of electoral rolls, as finally published under the Representation of the People Act, 1950 and such other material as may be prescribed.

The Central Government in consultation with the Election Commission can decide items to be supplied to the recognized political parties.

Other exclusive benefits enjoyed by recognized parties are

1. Free airtime on Doordarshan and All in Radio for election campaign.
2. A recognized party needs not to have to get his nomination paper subscribed by at least 10 voters in his constituency.
3. The name of the candidates nominated by the recognized party are organized in alphabetical order and printed on the top of Ballot paper followed by candidates nominated by registered party and independent candidates.
4. If a candidate nominated by a recognized party passes away before the commencement of the polling then the election shall be adjourned and the political party concerned will be given one week time to re-nominate a candidate and there after the election process will be completed.
5. Recognized political parties are entitled to the allotment of symbols given for its exclusive use.
6. The proposed amendments to the Representation of People act, 1951 for the introduction of state funding of election provides for extending financial assistance only to the recognized party.

Chapter-I and Chapter-II of Part II of RPA, 1951 provides for qualifications for Members of Parliament (MPs) and Members of State Legislature (MLAs), which can be discussed under following heads:

Qualifications for Membership of Parliament

Qualification for membership of the Council of States (section 3 of RPA, 1951)

A person has to be an elector for a parliamentary constituency in India to be qualified to be chosen as a representative of any State or UT in the Council of States.

Thus, it is not necessary for a person to be an elector in that particular state or UT where he is contesting to be elected as a representative rather he can be an elector anywhere in India.

Section 3 of RPA in its original form required the condition of elector ‘in that state or territory’, but this requirement was dispensed by Representation of People (Amendment) Act, 2003 and it was substituted by elector ‘in India’.

In 2006, the Supreme Court upheld the validity of this change in ‘Kuldip Nayar case’.

Qualifications for membership of the House of the People (section 4 of RPA, 1951)

1. In order to contest a seat reserved for the Scheduled Castes/Scheduled Tribe (other than those in the autonomous districts of Assam) in any State or Union Territory, he must be a member of any of the Scheduled Castes/Tribe, whether of that State or Union Territory or of any other State or Union Territory (excluding the tribal areas of Assam), and must be elector for any Parliamentary Constituency. However, a member of Schedule Caste or Schedule Tribe can also contest a seat not reserved for them.
2. In order to contest a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he must be a member of any of those Scheduled Tribes and must be an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district; The protective mechanism as in case of Assam mentioned above applies to Lakshadweep and Sikkim.
3. In order to contest for any other seat, he must be an elector for any Parliamentary constituency.

Qualifications for membership of a State Legislature (Section 5 of RPA, 1951)

1. In order to contest a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State or Union Territory, he must be a member of any of those castes or of those tribes, as the case may be, and must be an elector for any Assembly constituency in that State or Union Territory;
2. In order to contest a seat reserved for an autonomous district of Assam, he must be a member of a Scheduled Tribe of any autonomous district and must be an elector for the Assembly constituency in which such seat or any other seat is reserved for that district; and
3. In order to contest any other seat, he must be an elector for any Assembly constituency in that State or Union Territory.
4. In order to be qualified to be chosen to fill any seat allocated to the Tuensang district in the Legislative Assembly of Nagaland for the period referred to in clause (2) of article 371A, he must be a member of the regional council referred to in that article.
5. Section 5A mentions some special provisions regarding Qualifications for membership of Legislative Assembly of Sikkim.

Qualifications for membership of a Legislative Council—

1. In order to be qualified to contest a seat of Legislative Council of a State or Union Territory to be filled by election, he must be an elector for any Assembly constituency in that State.
2. In order to be qualified to be chosen for a seat in the Legislative Council of a State or Union Territory to be filled by nomination by the Governor he must be an ordinarily resident in the State or Union Territory.

Provisions in RPA 1951 related to disqualifications for voting

Section 11A provides for disqualification arising out of a conviction and corrupt practices. It mentions that if any person is convicted of an offence punishable under Section 171E (offence of bribery) or Section 171F (offence of undue influence or personation at an election) of the Indian Penal Code; or under Section 125 (Promoting enmity between classes in connection with election) or section 135 (removal of ballot paper from polling station) or Section 136(2)(a) (found guilty of some electoral offences, while being an officer in connection with the election) of RPA1951, he will be disqualified for voting at any election for a period of six years from the date of conviction or from the date on which the order takes effect.

Further, it provides that a person disqualified by a decision of the President under 8A (through election petition for corrupt practice) for any period will be disqualified for the same period for voting at any election. However, Section 11B provides that election commission may, for reason to be recorded, remove any disqualification except under section 8A.

Process of notification of general elections

Election to the House of People

For general election to the House of the people, the President, by one or more notifications published in the Gazette of India on such date or dates, as may be recommended by the Election Commission, calls upon all Parliamentary constituencies to elect members.

No such notification can be issued at any time earlier than six months prior to the date on which the duration of that House would expire, except in the case of dissolution of the existing House of People.

Election to the Council of States

In case of biennial election to the Council of State for the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office the President, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, calls upon the elected members of the Legislative Assembly or, as the case may be, the members of the electoral college, of each State concerned to elect members.

No such notification can be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.

Similarly for the elections to state legislature, Governor plays the role mentioned for the President in case of House of People under exactly same conditions.

Elections form the support of Indian Democratic system. Indian democratic setup gives on us the right to elect the representatives of the state.

The Representation of People Act, 1951 is an act of Parliament of India which provides the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

The Act was endorsed by the provisional parliament under Article 327 of Indian Constitution, before the first general election. The act also manages issues like qualification and disqualification of members of both houses of Parliament (Lok Sabha and Rajya Sabha) and the state legislatures (State Legislative Assembly and State Legislative Council).

The acts were modified many times but one of the noteworthy alterations is the Representation of the People (Amendment) Act, 1966 (47 of 1966), which eliminated the election tribunals and transferred the election petitions to the High Court whose orders can be appealed to Supreme Court.

However, election disputes regarding the election of President and Vice-President are directly heard by the Supreme Court.

It was established that after India’s independence, an elected constituent assembly was set up to develop the constitution. Most of the articles of the constitution came into force on 26 January 1950, the Republic Day. Part XXI of the constitution contained the translational provisions.

Articles 379 and 394 of Part XXI which contained provisions for provisional parliament and other articles which contained provisions like citizenship came into force on 26 November 1949, the date on which the constitution was drafted. The provisional parliament enacted the Act vide Act No.43 of 1951 for the first general election conducted on 25 October 1951.

Representation of Peoples Act 1950 (RPA Act 1950) offers for the following conduct

1. Qualification of voters
2. Preparation of electoral rolls
3. Delimitation of constituencies
4. Allocation of seats in the Parliament and state legislatures

Highpoints of RPA Act 1951

1. Actual conduct of elections
2. Administrative machinery for conducting elections
3. Poll
4. Election offences
5. Election disputes
6. By-elections
7. Registration of political parties

The Representation of People Act, 1951 has great significance for good functioning of Indian egalitarianism because it checks the entry of persons with illegal background into the representative bodies.

Prominent features of the Representation of People’s Act

1. Part 21 of the Indian Constitution drafted by the Constituent Assembly had mentioned for a provisional parliament. The provisional parliament enacted Representation of People’s Act 1951, so that general elections could be conducted according to the rules mentioned.
2. Citation is Article No 43 of 1951.
3. Representation of People’s Act contains 13 parts (2 parts added as amendments). Each part is divided into different sections making it a total of 171 numbered sections (including those sections which were repealed later.).
4. Expressions not used in 1951 act, but listed in Representation of the People Act 1950 (43 of 1950) have the same meaning.
5. Chief Electoral Officer is mentioned in section 13A.
6. Corrupt practices are mentioned in section 123.
7. Election means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir.

The recent RPA (Amendment and Validation) bill which was initiated in Rajya Sabha during monsoon session was enacted on the same day and later was sent to Lower House Lok Sabha where the bill got finally passed on September 06, 2013.

The Bill seeks to modify the Representation of People Act, 1951 (RPA, 1951).

The two major amendments were done in Bill that includes:

1. A person can file his nomination even though he is shunned from being voting owing to be in jail or in police custody during elections or before.
2. The past act has not defined on what grounds, a person can be disqualified. In this act the grounds are clearly stated as disqualification can be on conviction for certain specified offences and can be on no other ground. As a result if one is proved for any conviction of any one of the offences, then his/her name will be wiped off from electoral roll and shall cease to be a voter.

What is Section 8 of Representation of Peoples Act 1951?

Section 8 deals with Disqualification of representatives on conviction for certain offences. This section states that:

• A person convicted of an offence punishable under certain acts of Indian Penal Code, Protection of Civil Rights Act 1955, Unlawful Activities (Prevention) Act 1967, Prevention of Corruption Act 1988, Prevention of Terrorism Act 2002 etc. shall be disqualified, where the convicted person is sentenced to —

1. only fine, for a period of six years from the date of such conviction;
2. imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

• A person convicted for the contravention of—

1. any law providing for the prevention of hoarding or profiteering; or
2. any law relating to the adulteration of food or drugs; or
3. any provisions of the Dowry Prohibition Act, 1961

• A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
• Notwithstanding anything 8[in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

The fourth point above was the controversial Section 8(4) clause of the Representation of Peoples Act which was struck down by the Supreme Court calling the Act ultra-vires of the Constitution and providing for disqualification of MPs/MLAs on the day of their conviction.

How is RPA, 1951 different from the provisions related to elections in Constitution of India?

Part XV of Indian Constitution is ELECTIONS, which includes Articles 324 to 329. This part of the Constitution provides for Election Commission (Art.324), universal suffrage (Art.325) and adult suffrage (Art.326).

Article 327 enables Parliament to enact provisions for elections and Article 328 provides that states can enact provisions for house or houses of the state legislature, if the Centre has not provided for the same.

Under Article 329, courts are barred from questioning the Delimitation Act brought by the Parliament and it also mentions that disputes related to elections can be called in question only by an election petition in a manner provided by and to the authority decided by the appropriate legislature.

Accordingly, the Parliament under Article 327 enacted certain provisions, among others, namely:

1. The Representation of People Act 1950, which provides for allocation of seats and delimitation of constituencies of the Parliament and state legislature, officers related to conduct of elections, preparation of electoral rolls and manner of filling seats in the Council of States allotted to Union Territories.
2. The Representation of People Act, 1951, which provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
3. Delimitation Commission Act of 1952, which provides for the readjustment of seats, delimitation and reservation of territorial constituencies and other related matters.
4. The Presidential and Vice-Presidential Election Act 1952, which provides for the conduct of Presidential and Vice- Presidential election and mechanism for the settlement of any dispute arising out of such elections.

Law Commission is an executive body that is intended to work for legal improvement. The members of the commission are mainly legal experts, who work as per the government’s mandate. The Commission is established for a fixed tenure and works as an advisory body to the Law Ministry.

The first Law Commission was established during the British regime in 1834. Before independence, India saw three more commissions being established. The first such commission in independent India was set up for a three-year term in 1955. Since then, 19 more Commissions have been established.

The Commission is supervised by a full-time Chairperson. Its membership primarily comprises legal experts, who are entrusted a mandate by the Government.

The 21st Law commission would be comprised of a full-time Chairperson, four full-time Members (including a Member-Secretary), Secretary, and Department of Legal Affairs as ex offcio Member, Secretary, Legislative Department as ex offcio Member.

The Commission is established for a fixed tenure (usually three years) and works as an advisory body to the Ministry of Law and Justice.

Before finalising its recommendations, the Commission needs to consult the law ministry. Law Commission works in synchronisation and under the general instruction of Ministry of Law and Justice. It generally acts as primary commission for law reform in the country.

Internally, the Law Commission works in a research-oriented manner. The Law Commission employs research analysts and law students who work in a research-oriented manner. The commission comprises of research employees of different ranks and secretarial staff who looks after the day-to-day functioning.

This executive body works towards outlining the problems and determining areas for law reform. After due diligence and extensive research, it prepares report, which is sent to the Law Ministry. Once the proposals are cleared by other relevant ministries, action is taken to implement those recommendations.

Although an ad-hoc body but the Law Commission has played a major role in law reform in India. At times, it’s also critical of the government’s policies.

The Supreme Court often follows the recommendations of the commission. However, since the commission’s proposals are not binding on the government, often the critical recommendations made by it are not implemented. The Law commission also works on specific issues when requested by the Supreme Court.

The Commission evaluations and judicial administration ensures that it is responsive so that delays are eliminated, arrears are cleared and disposal of cases is quick and cost-effective without sacrificing the cardinal principle that they are just and fair.

The Commission seeks to simplify procedure to control delays and improve standards of justice. It also promotes an accountable and citizen-friendly government which is transparent and ensures the people’s right to information.