Tit-bits

Part 15. Elections - Articles 324-329

Overview

Constitutional Office	Election	Appointed By	Tenure and security	Removed By	Election disputes	Removal Process
President	Only Elected members of Parliament and State assemblies	CJI	5 years	Parliament	SC	Both Nominated and elected members of Parliament	Secret ballot
Vice President	Both Elected and nominated members of Parliament	President	5 years	Parliament	SC	Absolute majority of RS and then LS	Secret ballot
LS Members	Direct election				President Speaker		EVM
RS Members	Indirect. Elected by the MLAs		6 years		President Speaker		Open ballot

Who conducts elections

Elections for	Conducted by
President, Vice President, LS, RS, State Assembly, State Council	Central Election Commission
Panchayats, Municipalities	State Election Commission
Cooperatives	State legislature will determine

State Election Commissions are independent of Central Election Commission/Election Commission of India

No clear cut provision regarding the submission of reports by State Election Commission

So if in a Question says SEC submits report to Central Election Commission/President, it is wrong

Who resolves election disputes

Election disputes of	Resolved by
President, Vice president	Supreme court
LS RS	Disqualification on basis of Constitution and RP Act 1951 - President on recommendation of CEC Disqualification on basis of Anti defection law - Presiding officer of LS, RS Election disputes related to Members of Parliament and state legislature by High Court
State Assembly and Council	Disqualification on basis of Constitution and RP Act 1951 - Governor on recommendation of CEC Disqualification on basis of Anti defection law - Presiding officer of Assembly, Council Election disputes related to Members of Parliament and state legislature by High Court
panchayats, municipalities	State legislature will determine
Cooperatives	State legislature will determine

Election petitions are trailable only by High Court. Appeals to SC. Election petitions are not ordinary civil suit but treated as a contest in which whole constituency is involved. While, appeals against orders of Electoral Registration Officers can be done in District Magistrate or ADM. Further appeal lies to Chief Electoral Officer
Election Petitions for elections to LS/State assemblies

Any Elector/Candidate can file election petitions
Election Petitions are tried by respective High Courts
If upheld, can even lead to restaging of election in that constituency
It is not an ordinary civil suit and it is treated as a contest in which whole constituency is involved

Election officers

Officer	Represent	Appointed by	Duties
Chief Electoral Officer	For a state	ECI designates in consultation with State Govt	Supervise election work in state subject to overall superintendence and direction of ECI
District Election Officer	For a district	Chief Electoral Officer nominates in consultation with State Govt	Supervise election work in district
Electoral Registration Officer	Constituency level	ECI designates in consultation with State Govt	Preparation of electoral rolls
Returning Officer	Constituency level	ECI designates in consultation with State Govt	Conduct of elections in constituency and result declaration
Presiding Officers		District Election Officer appoints	Conducts poll at polling station
Polling officers		District Election Officer appoints	Conducts poll at polling station
Observers		ECI nominates	Report to commission directly

Regional Commissioners - 324(4)

Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause ( 1 )

Political parties speeches for conservation of language does not amount to corrupt practice under Representation of People Act 1951
Three month time limit for the specified authorities to submit the case of persons found guilty of corrupt practice to President
Political parties cannot issue whips to MLAs in case of election of members to Rajyasabha
Rajyasabha election - open ballot [Pres ident and Vice president - secret ballot]
In Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in ballot box.

While, in case of independent MLAs, they do not have to show their votes to anyone at all

Both Parliament & State legislature empowered to constitute tribunals for election disputes. So far no such tribunal constituted
Only Parliament is empowered to enact a law that provides qualification and service conditions of CEC. No such law enacted
Provisions related to preparation of electoral rolls can be made both by Parliament and state legislature
State legislature can even make provisions w.r.t to matters relating to elections to state legislatures. However, State legislature can only supplement the provisions of Parliament in this regard but cannot override it.
Bye elections to a constituency need not be conducted if the remainder of the term of member whose vacancy is to be filled is less than one year
Maximum no. of. constituencies that can be contested by the same candidate is 2
Prisoners does not have right to vote as per Representation of People Act 1951

But people under preventive detention has right to vote

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. (no supremacy of CEC)
Referendum - Proposed legislation is referred to electorate for direct settlement
Plebiscite - Obtaining opinion of people on any important issue
Initiative - People can propose bill for enactment
Recall - Voter can remove representative if he failed to discharge duties

Representation of People Act (RPA) 1950

RPA 1950 provides the following

Qualification of voters
Electoral rolls
Delimitation of constituencies
Allocation of seats in Parliament and state legislatures

Representation of People Act (RPA) 1951

RPA 1951 provides the following

Actual conduct of elections

Notification, administrative machinery

Poll
Election offences
Election disputes
Byelections
Registration of political parties
Rules for mode of conduct of elections
Qualification and disqualification of members of legislature

Section 11 allows ECI to reduce or remove the disqualification attached to a conviction

Representation of Peoples Act empowers EC to cancel polls only if there is an evidence of booth-capturing or use of muscle power.
Section 123(3) - Canvassing on the ground of religion, race, caste, community is a corrupt electoral practice

"The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community....” is a corrupt electoral practic

Recent SC judgements held that even the voter is included in the above list "his"

Arguments for seeking votes in the name of religion, caste, race

The Constitution recognises the position of religion, caste, language and gender in the social life of the nation. Some social groups faced with histories of discrimination and injustice.
If the election candidate is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language, it would reduce democracy to an abstraction [centuries of structural and institutional discrimination].
Social mobilisation is a powerful instrument of bringing marginalised groups into the mainstream. With-out addressing them, grave injustice will be caused to them

Delimitation Commission

Statutory body established for delimiting constituencies based on population
As per Article 82, Parliament is empowered to enact Delimitation Act after every census under which Delimitation Commission is constituted
Commission orders have a force of law and cannot be challenged in the courts
Its reports are laid before Upper House and the state legislative assembly concerned, but changes/modifications are not possible by them.
Delimitation in J&K is done under state Constitution

Electoral bonds

Govt introduced electoral bonds for donors to purchase to fund political parties
Bond is a debt security
Electoral bonds make the donors anonymous but it will not make electoral funding transparent

Features

Electoral Bond would be a bearer instrument in the nature of a Promissory Note and an interest free banking instrument
A citizen of India or a body incorporated in India will be eligible to purchase the bond. [only from SBI]
A person being an individual can buy Electoral Bonds, either singly or jointly with other individuals.

Electoral Bond (s) would be issued/purchased for any value, in multiples of Rs.1,000, Rs.10,000, Rs.1,00,000, Rs.10,00,000 and Rs.1,00,00,000 from the Specified Branches of the State Bank of India (SBI).

Max 1 crore denomination
Electoral bonds with denomination of Rs 1 crore accounted for more than 91 per cent of the amount raised.

Electoral bonds will not carry the name of payee
Electoral Bonds would have a life of only 15 days during which it can be used for making donation only to the political parties registered under section 29A of the Representation of the Peoples Act, 1951 and which secured not less than one per cent of the votes polled in the last general election to the House of the People or a Legislative Assembly.
Electoral Bonds under the Scheme shall be available for purchase for a period of 10 days each in the months of January, April, July and October, as may be specified by the Central Government. An additional period of 30 days shall be specified by the Central Government in the year of the General election to the House of People
The Electoral Bond(s) shall be encashed by an eligible political party only through a designated bank account with the authorised bank within 15 days
Registered political parties and those received not less than 1 percent of votes in last Loksabha and assembly election are eligible to be received
Political parties need to file returns to EC of the quantum of money received through electoral bonds
Donors will be eligible for tax deduction while parties will be eligi ble for exemption
The Electoral Bonds have some built in security features to eliminate chances of forgery or presentation of fake bonds. These include a random serial number invisible to the naked eye.

It is not available for trading on stock exchanges and cannot be used as collateral for loans. It is available only in physical form.

ECI objections

This scheme would enable the creation of shell companies for the sole purpose of making political donations and no other business
It would compromise transparency
Foreign influence on Indian elections

Unchecked foreign funding of political parties, leading to foreign influence on India’s policy aking
New foreign regulations allows FII to invest in Govt bonds

Model Code of Conduct

It is not statutory
It is a set of guidelines laid down by the Election Commission to govern the conduct of political parties and candidates in the run-up to an election.

Do's and Don’ts f elections

Level playing field for all political parties, to keep the campaign fair and healthy, avoid clashes and conflicts between parties, and ensure peace and order.
Its main aim is to ensure that the ruling party, either at the Centre or in the states, does not misuse its official position to gain an unfair advantage in an election.
The Model Code of Conduct comes into force the moment on the announcement of the poll schedule and remains in force till the results are declared.

It is also applicable to a “caretaker” government on premature dissolution of a State Assembly,

It applies to all political parties, their candidates and polling agents, the government in power, and all government employees.

Can EC postpone or countermand polls ?

Under Article 324 of constitution, EC is provided with extraordinary powers that should be used sparingly
Representation of Peoples Act empowers EC to cancel polls only if there is an evidence of booth-capturing or use of muscle power.
But no provision to postpone elections on the grounds of money power. EC resort to Artic le 324 to countermand in extraordinary cases
Election Commission of India sought amendment to RPA to include specific powers to postpone or countermand polls on the grounds of use of money power

Reform Committees

1990 Dinesh Goswami Committee	Electoral Reforms
1993 Vohra Committee	Nexus b/w Crime and politics
1998 Indrajit Gupta Committee	State funding of elections
1999 Law Commission of India	Report on reform of electoral laws Internal democracy, financial transparency and accountability in the working of the political parties.
2000-02 National Commission to review working of constitution	MN Venkatachaliah
2004 ECI	Proposed Electoral reforms
2007 Second ARC report	Report of Ethics in Governance
2010 Tankha Committee	Election laws and electoral reforms

EC Composition Issues

As per Article 324(2),

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President

However, until now, no law has been made by Parliament leaving gaps which leaves the appointment of such a crucial post solely to the executives
Recently, Supreme Court had asked the centre why no enabling law has yet been framed.
Gaps are

The constitution has not prescribed the qualifications (legal, educational, administrative, or judicial) of the members of election commission.
The constitution has not debarred the retiring Election commissioner from any further appointment by the government.
There is also no clarity regarding the power division between the Chief Election Commissioner and other Election Commissioners.
The CEC and the Election Commissioners enjoy the same decision-making powers which are suggestive of the fact that their powers are at par with each other.
Although the provision to Article 324 (5) of the Constitution safeguards the CEC from arbitrary removal, the same provision is silent about the procedure for removal of the two EC. It only provides that they cannot be removed from office except on the recommendation of the CEC.

Decision making by majority
Service conditions and tenure of Election Commissioners (not CEC - 6 years) and regional commissioners is decided by President

National Party Status

Under the revised rules of EC, a party’s performa ce over two consecutive Lok Sabha or assembly elections is considered, as opposed to one previously, for granting recognition as a national party.
Privileges of National Parties ·
Unique symbol ·
Free airtime on public broadcasters AIR and Doordarshan during the Lok Sabha elections. · < /span>
Two free copies of electoral rolls
Their candidates need only one proposer to file their nomination papers. ·

Deploy 40 star campaigners whose expenditure is not clubbed with the election expenses of an individual candidate.

Criteria to be National Party

at least six percent(6%) of the valid votes polled in any four or more states, at a general election to the House of the People or, to the State Legislative Assembly; and in addition, it wins at least four seats in the House of the People from any State or States
OR It wins at least two percent (2%) seats in the House of the People (i.e., 11 seats in the existing House having 543 members), and these members are elected from at least three different States.
OR A party has got recognition as a state party in at least four states.

Criteria to be State party

it secures at least six percent ( 6%) of the valid votes polled in the State at a general election, either to the House of the People or to the Legislative Assembly of the State concerned; and in addition, it wins at least two seats in the Legislative Assembly of the State concerned (OR 1 Lok Sabha seat)
OR it wins at least three percent (3%) of the total number of seats in the Legislative Assembly of the State, or at least three seats in the Assembly, whichever is more.
OR eight percent of the valid votes polled in the state at a General elections to Lok Sabha /Assembly

Benefits received by recognised political parties recognised by EC

Exclusive allocation of election symbols.

Every national party is allotted a symbol exclusively reserved for its use throughout the country.
Similarly, every state party is allotted a symbol exclusively reserved for its use in the state or states in which it is so recognised.

Access to electoral rolls.
Time for political broadcast on state owned television and radio-stations.

Register and De register of political parties

EC has the mandate to register a political party, while it lacks power under electoral laws to deregister a political party.
Have power to delist them
There are over 1,780 registered, but unrecognised political parties in the country
Section 29A of Representation of People’s Act, 1951, lays down various provisions in regards to t registration and recognition of political parties in India

Totalizer machine

ECI seeks to introduce totaliser machines for counting of votes.
It is an interface, to which a cluster of EVMs can be connected simultaneously and the consolidated result of the group of EVMs can be obtained without disclosing the votes polled by a candidate polling-station-wise
Totalizer machine mixes votes from various booths for counting.
In the current system, votes from each Electronic voting machine are counted separately and hence reveal the voting trends in each polling station which leaves the voters in that vicinity open to harassment, intimidation and post-election victimization ( for e.g. delaying infrastructure developing or other welfare activities).
It will add an extra layer of security to the voting process thus upholding the basic principle of secret ballot as the present EVMs do not provide any avenues for mixing of votes
Mixing of votes as mandated under the Rule no 59A of the Election Rules which states “mixing of votes in cases where it is considered ‘absolutely necessary’<
However, it has been argued that it camouflages the booth-wise performance of candidates which is essential for parties to devise “booth-management” strategies ( king at booth level to mobilise voters).

VVPAT Voter Verifiable Paper Audit Trail

VVPAT provides feedback to voters to verify if the vote has gone to the intended candidate

VVPAT is an independent verification printer machine attached to EVM
Whenever voter presses EVM button, a paper slip is printed through VVPAT
Slip contains poll symbol and name of the candidate
After the voter views the slip, the VVPAT machine drops the slip into sealed box attached to the EVM after 7 seconds (sealed box can only be accessible by authorised persons)Constituency level

NOTA None Of The Above

NOTA in India does not provide for a ‘right to reject’. Irrespective of the no.of votes polled for NOTA, the candidate with the maximum votes wins the election.
In People’s Union For Civil Liberties v. Un on Of India (September 27, 2013), the Supreme Court had ruled that a None of the Above (NOTA) option “may be provided in EVM so that voters are able to exercise their “rig not to vote while maintaining their right of secrecy”If a situation arose where the number of NOTA votes exceeded the number of votes polled by any of the candidates, the candidate with the highest number of votes would be declared winner.
NOTA option is also applicable to Rajyasabha polls
NOTA is now just a symbolic instrument but not provide for right to reject
When right to reject is provisioned, then NOTA will become meaningful instrument
NOTA polling figures are still small.
On an average, the maximum NOTA vote share has not crossed 2.02% of the total votes polled in any election cycle.

Part 15 - Elections