ELECTIONS

INTRODUCTION
Elections enable every adult citizen of the country to participate in the process of government
formation. Elections in India include elections to elect members of the Lok Sabha, Rajya Sabha,
State Legislative Assemblies (Vidhan Sabhas) Legislative Councils (Vidhan Parishad) and of,
President and Vice-President of India. Elections are also held for local bodies such as
municipalities, municipal corporations and Panchayati Raj justifications. These elections are
held on the basis of universal adult franchise, which means all Indians of 18 years of age and
above have the right to vote, irrespective of their caste, colour, religion, sex or place of birth.
Election is a complex exercise. It involves schedules rules and machinery.

"Election is a process. The word "election" has been used in Part XV of the Constitution of
India in a wide sense that is to say, to connote the entire procedure to be gone through, to return
a candidate to the Legislature. Articles 324 through 329 of Part XV of the Constitution cover
election-related provisions. The use of the expression 'Conduct of Elections' in Article 324 of
the Constitution of India specifically points to the wide meaning. The term may be taken to
embrace the whole procedure which consists of several stages and include many steps whereby
an "elected member" is returned, whether or not it be found necessary to take the poll. It is not
used in a narrow sense" "The word 'election' as used in the Representation of the People Act,
1951 includes every stage from the time the notification calling for election is issued till the
declaration of the result”. “The term 'election' refers only to the process of casting votes and
the declaration of results, ignores the fact that many things have to be done in preparation for,
and in connection with elections which are not part of actual selection by the citizens of their
representatives. A wide range has to be covered before elections can actually take place. The
word 'election' covers every part of the process. It is this wide sense that the word is used in
Part XV of the Constitution of India"

FIRST GENERAL ELECTIONS IN INDIA

Democracy took a giant step forward with the first general election held in 1951-52 over a four-
month period. These elections were the biggest experiment in democracy anywhere in the
world. The elections were held based on universal adult franchise, with all those twenty-one
years of age or older having the right to vote. There were over 173 million voters, most of them
poor, illiterate, and rural, and having had no experience of elections. The big question at the
time was how would the people respond to this opportunity.

Many were sceptical about such an electorate being able to exercise its right to vote in a
politically mature and responsible manner. Some said that democratic elections were not suited
to a caste-ridden, multi-religious, illiterate and backward society like India's and that only a

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benevolent dictatorship could be effective politically in such a society. The coming elections
were described by some as 'a leap in the dark' and by others as 'fantastic' and as 'an act of faith.'

India's electoral system was developed according to the directives of the Constitution. The
Constitution made a provision for an Election Commission. It was to be headed by a Chief
Election Commissioner, to conduct elections. It was to be independent of the executive or the
parliament or the party in power.

Organization of the elections was a wondrous task. There was a house-to-house survey to
register the voters. With over 70 per cent of the voters being illiterate, the candidates were to
be identified by symbols, assigned to each major party and independent candidates, painted on
the ballot-boxes (this was later changed to symbols on the ballot papers). The voters were to
place the ballot papers in the box assigned to a particular candidate, and ballot was secret. Over
224,000 polling booths, one for almost every 1000 voters, were constructed and equipped with
over 21/2 million steel ballot-boxes, one box for every candidate. Nearly 620,000,000 ballot
papers were printed. About a million officials supervised the conduct of the polls. Of the many
candidates, whoever got the plurality, or the largest number of votes would be elected. It was
not necessary for the winning candidate to have a majority.

In all, candidates of over fourteen national and sixty-three regional or local parties and a large
number of independents contested 489 seats for the Lok Sabha and 3,283 seats for the state
assemblies. Of these, 98 seats for the former and 669 for the latter were reserved for the
Scheduled Castes and the Scheduled Tribes. Nearly 17,500 candidates in all stood for the seats
to the Lok Sabha and the state legislatures. The elections were spread out over nearly four
months from 25 October 1951 to 21 February 1952. (Later this period was reduced to nineteen
days in 1957 and seven to ten days in subsequent elections).

Suitable conditions were created for the free participation of the opposition parties in the
elections, including Jan Sangh and CPI. The Opposition was, however, quite fragmented. 'The
first general elections were marked by a vigorous election campaign by Jawaharlal Nehru.
Showing remarkable energy, he covered nearly 40,000 kilometres and addressed thirty-five
million people or a tenth of India's population during his election tour.

ELECTION PROCESS IN INDIA

Broadly, there are 3 levels to which elected officials can be appointed: Centre, State, and Local
Bodies. Elections in India are held to elect members of the Lok Sabha, Rajya Sabha, State
Assemblies, Legislative Council, to the posts of President, Vice-President, Local Bodies,
Municipal Corporation, Gram Panchayat, Zila Panchayat and Block Panchayat. The stages of

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the election process of India can be thought to begin with the delimitation of constituencies
wherein the entire area (the whole country in the case of Lok Sabha elections and that particular
state in the case of Legislative Assembly elections) is divided into constituencies. Thereafter,
the electoral roll i.e. voters' list for each constituency is prepared/revised and published. The
Election Commission (EC) normally announces schedule of elections 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 notification 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 scrutinized by the Returning Officer
of the constituency concerned. The next stage is the campaign by all the candidates and the
parties. The election campaign ends 48 hours before the polling. The last step is the counting
of votes and declaration of result.

TYPES OF ELECTIONS IN INDIA

India is divided into States (and Union Territories), each of which has a Governor who serves
as the state's head; however, the Chief Minister is the head of the party or political coalition
that won a majority in the regional elections, also known as State Assembly Elections, which
are used to elect the State's executive body, actually has de facto executive authority. The Chief
Minister of each State has executive authority within that State and collaborates with the Indian
Prime Minister or their ministries on issues that need both Central and State attention. Other
(usually smaller) Union Territories are ruled by someone the President of India appoints. Some
Union Territories also vote for an Assembly and have a regional administration. India's federal
agency, the Election Commission, was established in accordance with the Constitution's
requirements and is in charge of overseeing and conducting all elections in the country. This
organisation is in charge of ensuring impartial, fair, and free elections. The electoral
commission controls members' behaviour before, during, and after elections in accordance with
the law

1. Election Process for the Lok Sabha

Lok Sabha is the lower house of India's bicameral Parliament, or popular chamber/ House
of the People, with the Rajya Sabha functioning as the upper house. The Lok Sabha is made
of representatives of people elected by direct election on the basis of Universal Adult
Suffrage. Members of Lok Sabha are referred to as MPs, or members of parliament. These
members are elected from various union territories and states. Elections for Lok Sabha seats
are conducted every five years.

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Composition of Lok Sabha

Article 81 deals with the Composition of the Lok Sabha. This article provides that the
maximum number should be as follows:

 Not more than 530 representatives of the States.

 Not more than 20 representatives from the Union Territories
 Not more than 2 members of the Anglo-Indian Community as nominated by the
President, only if he/she is of opinion that the Anglo Indian Community is not
adequately represented in the parliament.
 This makes the total strength of the Lok Sabha i.e. 530+20+2= 552

Qualifications

Article 84 of the Constitution lays down the qualifications for membership of Parliament. A
person to be qualified for the membership of the Lok Sabha should possess the following
qualifications:

 He must be a citizen of India and make and subscribe before some person authorized
in that behalf by the Election Commission an oath or affirmation according to the
form set out for the purpose in the Third Schedule to the Constitution;
 He must be not less than 25 years of age;
 He must possess such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament.

Disqualifications

Article 102 of the Constitution lays down that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament –

 If he holds any office of profit under the Government of India or the Government of
any State, other than an office declared by Parliament by law not to disqualify its
holder;
 If he is of unsound mind and stands so declared by a competent court;
 If he is an undischarged insolvent;
 If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State;
 If he is so disqualified by or under any law made by Parliament.

The Parliament has laid down the following additional disqualifications in the Representation
of People Act (1951):

 He must not have been found guilty of certain election offenses or corrupt practices in
the elections.
 He must not have been convicted for any offense resulting in imprisonment for two or
more years. But, the detention of a person under a preventive detention law is not a
disqualification.
 He must not have failed to lodge an account of his election expenses within the time.
 He must not have any interest in government contracts, works, or services.

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  He must not be a director or managing agent nor hold an office of profit in a
corporation in which the government has at least 25 percent share.
 He must not have been dismissed from government service for corruption or
disloyalty to the State.
 He must not have been convicted for promoting enmity between different groups or
for the offense of bribery

Process for Election of the members of Lok Sabha

The members of the Lok Sabha are elected on the basis of the following principles:

 Universal Adult Franchise (Article 326): Every citizen who has attained the
minimum age of 18 years(61st amendment act) has the right to vote in the elections
to the Lok Sabha. However, it is essential that his name should stand included in the
voters list of his constituency.
 Reservation of Seats for SCs and STs: Some constituencies are reserved for
Scheduled Castes and Scheduled Tribes. These are called Reserved Constituencies.
From each reserved constituency only candidates belonging to SCs or STs, as the case
may be, can contest elections. However, all the voters of each such constituency
exercise their right to vote for electing one candidate belonging to SC or ST as their
representative. Presently 131 seats stand reserved (84 for SCs and 47 for STs).
 Single Member Territorial Constituencies: The whole country is divided into as
many territorial constituencies as is the number of members of the Lok Sabha to be
elected. From each constituency, one MP is elected.
 Direct Election and Simple Majority Vote Victory system: All the members of the
Lok Sabha are directly elected by the people. Any voter can cast his vote to elect any
candidate of his choice from his constituency. A candidate securing the largest number
of votes from amongst all the contestants from a constituency gets elected as the
representative of the people of his constituency in the Lok Sabha

2. Election Process for the Rajya Sabha

Rajya Sabha is the Upper House of Parliament, which cannot have more than 250 members
according to the Constitution of India. Members of Rajya Sabha are not elected by the people
directly. They are elected by the members of the legislative assemblies of the states in
accordance with the system of proportional representation by means of the single transferable
vote. Rajya Sabha has a process of indirect elections where the State assemblies select
members as per the proportion of seats available. The seats in Rajya sabha are allocated
according to the proportion of the population. Uttar Pradesh has the largest population, and it
has the most seats allocated in Rajya sabha. In contrast, states like Nagaland and Mizoram are
sparsely populated and have one seat. Rajya Sabha can never be dissolved, and the members
are elected for six years.

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Composition of Rajya Sabha
Article 80 of the Constitution lays down the maximum strength of the Rajya Sabha as 250,
out of which 12 members are nominated by the President and 238 are representatives of the
States and of the two Union Territories.

The present strength of Rajya Sabha, however, is 245, out of which 233 are representatives of
the States and Union territories of Delhi and Puducherry and 12 are nominated by the
President.

The members nominated by the President are persons having special knowledge or practical
experience in respect of such matters as literature, science, art and social service.

Process of Rajya Sabha Election

The representatives of the States and the Union Territories in the Rajya Sabha are elected by
the method of indirect election.

The representatives of each State and two Union territories are elected by the elected
members of the Legislative Assembly of that State and by the members of the Electoral
College for that Union Territory, as the case may be, by the system of proportional
representation using the single transferable vote.

3. Elections Process for the State Legislative Assemblies

Direct Election: The legislative assembly is composed of representatives of the people

chosen by direct election on the basis of the universal adult suffrage. The maximum strength
is fixed at 500 and minimum strength at 60.

Nominated Member: The governor can nominate one member from Anglo-Indian community
if, in his opinion, the community is not adequately represented in the House.

Territorial Constituencies: Each state is divided into territorial constituencies for the purpose
of elections. One member of legislative assembly is elected from each constituency.

Readjustment after each census: After each census, a readjustment is to be made in the total
number of seats in the legislative assembly of each state and the division of each state into
territorial constituencies.

87th Amendment Act, 2003 provided for readjustment of parliamentary constituencies in

each state on the basis of 2001 population census without changing the number of seats
allotted to each state.

Reservation of seats for SCs and STs: The constitution provides for reservation of seats for
Scheduled Castes (SCs) and Scheduled Tribes (STs) in the legislative assemblies.

4. Elections Process for the Legislative Council

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The total number of members in the legislative council of a state having such a council shall
not exceed one-third of the total number of members in the legislative assembly of the state.
However, the strength of the legislative council should not be less than fourty except Jammu
and Kashmir. The actual strength of a council is fixed by the parliament. The composition of
legislative council is partly through indirect election partly through special constituencies and
partly by nomination.

ELECTION LAWS IN INDIA

There are various laws related to the conduct of elections in India. The elections for both the
centre and the state are conducted differently but the laws governing the conduct of elections
of the Parliament and State Legislature are almost the same. These are as follows:

1. The Representation of the People Act, 1950

This act provides for the allocation of seats in Lok Sabha and Legislative Assemblies,
delimitation of constituencies, qualifications of voters, manner of filling the seats of Rajya
Sabha by Union Territory representatives etc.

 The election commission should appoint or nominate a Chief electoral officer for
each and every state with the consultation of the state government.
 Appointment of district level election commissioners should also be done by the
Election Commission with the consultation of the state government.
 The Central government has the power to make any rules under this Act with the
consultation of the Election Commission.
 This Act bars the power of the Civil Courts to question the legality of any action of
electoral registration officer regarding revision of electoral roll.

2. The Representation of the People Act, 1951

This Act provides for the conduct of elections to the Parliament and State Legislatures,

qualifications, disqualifications, various offences, various doubts and disputes etc. Following

are some of the rules laid down under this Act:

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  Everybody or association who wants to stand as a candidate in the elections have to get
itself registered with the Election Commission of India. It is on the EC to register a
political party or not after considering various relevant factors and particulars.
 Any change in the name and address of the political party should be communicated to
the Election Commission.
 A person cannot represent the people in either Lok Sabha or Rajya Sabha if he is not
eligible to vote.

3. The Registration of Electors Rules, 1960

The rules are related to the preparation of electoral rolls, their periodic updating and revision.
This act also provides the process for registration of eligible voters and the issuance of voter
ID cards with the photograph of the voter. The inclusion of eligible and registered voters in the
electoral rolls and the exclusion of non-eligible and non-existing voters are included in this act.
The election commission prepares the electoral rolls during the elections which contain the
name, photograph and the other particulars of the voter because of the rules mentioned under
this Act.

4. Conduct of Election Rules, 1961

This Act deals with each and every stage of conduct of elections in detail. It holds the issuing
of writ notification for conducting elections, filing of nominations, scrutiny of nominations,
withdrawal of candidates. This rule also governs the counting of votes and taking of polls. In
the end, this rule also categorises the constitution of the Houses on the basis of the results.
Many amendments have been made in this rule such as the Conduct of Election Rules
(Amendment), 2013 and the Conduct of Election Rules (Amendment), 2016.

5. Election Symbols Order, 1968

This is the order which empowers the Election Commission to recognise political parties and
allot them symbols. The commission under para 15 of this order also has the power to decide
disputes arising among rival groups or sections of a political party who is claiming the symbol.
Under this paragraph, only the Election Commission has the power to decide all the issues
arising on any disputes or a merger.

6. Presidential and Vice-Presidential Rules, 1974

This Act is particularly made for the conducting of elections for both the President and Vice-
President. This act consisted of 41 sections in total and provides the whole process for
conducting elections such as:

 Voting by electors under preventive detention

 Adjournment of the poll in emergencies

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  Place and time for counting of votes
 Maintenance of secrecy of voting
 Recounting
 Production and inspection of election papers
 Copies of return of election
Sec-41 of this Act repealed the Presidential and Vice-Presidential Elections Act, 1952.

7. Anti-defection Law, 1985

This law was introduced during the tenure of Rajiv Gandhi by the 52nd Constitutional
Amendment and is contained in the Tenth Schedule of the constitution which is also known as
the Anti-defection law. If a member of a House belonging to a particular party voluntarily gives
up the membership of his political party or votes or abstains from voting, contrary to the
directions of his political party or if an independent member joins a political party after the
election then that particular member will come under the situation of defection.

The need for such a law was felt especially when a legislator from Haryana named ‘Gaya Lal’
changed his party three times in a fortnight. After that incident, it took 17 years for the
Parliament to pass such a law. Under this law, any member of a house will be disqualified by
the Chairman or the Speaker of the house if any complaint is received regarding that member
with respect to defection.

IMPORTANT CASE LAWS RELATED TO ELECTIONS IN INDIA

1. Indira Nehru Gandhi V. Raj Narain

Facts Of The Case: –

Smt.Indira Nehru Gandhi Was Elected To The House Of The People By Rae Bareli
Parliamentary Constituency In March 1971. Her Election Was Challenged By One Of The
Rival Candidates Shri Raj Narain, Before The Allahabad High Court By An Election Petition
On Various Grounds Such As Indira Gandhi Used Bribery, Government Machinery, And
Resources To Gain An Unfair Advantage In Contesting The Election. Narain said Gandhi used
government workers as campaign workers and held events in his district.

Issue Before The High Court – A writ petition was filed before the High Court to decide
Whether The Election Was ‘Null And Void’ On The Grounds Of Corrupt Practices.

High Court’s Judgement –

The Court Allowed The Election Petition And Declared The Election Of Smt. Indira Nehru
Gandhi As Void And Barred Gandhi From Holding Elected Office For Six Years On The
Grounds That She Procured The Assistance Of A Gazetted Officer Of The Government Of
India, The District Magistrate And Superintendent Of Police, Rae Bareli, The Executive

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Engineer, PWD, And The Engineer, Hydel Department, For Her Election Campaign And Had
Thus Committed Corrupt Practices Under Section 123 (7) Of The Representation Of The
People Act, 1951.

Appeal To Supreme Court And Amending Of Laws -

Aggrieved By The Order Of The Allahabad High Court, Smt. Indira Nehru Gandhi Filed An
Appeal Before The Supreme Court. Shri Raj Narain also filed a cross-appeal. During The
Pendency Of These Appeals, Parliament Passed: –

The Election Laws (Amendment) Act, 1975. By This Amendment Act, Several Provisions Of
The Representation Of The People Act, 1951 Were Amended Retrospectively.

The Constitution (Thirty-Ninth Amendment) Act, 1975. By This Amendment Act, A

New Article 329-A Was Inserted Into The Constitution To Provide, Inter Alia, That The
Election To Parliament Of A Person, Who Holds The Office Of Prime Minister Or Speaker Of
The Lok Sabha At The Time Of Such Election Or Is Appointed As Prime Minister Or Speaker
After Such Election, Shall Be Called In Question Only Before A Specially Prescribed
Authority [And Not Before The High Court Under Article 329 (B) Of The Constitution].

In appeals, the constitutionality of two changes was called into question because lawmakers
were in jail and couldn’t vote.

Judgment: –

The Supreme Court upheld the 1975 Election Laws (Amendment) Act and the Constitution
(39th Amendment) Act in the current appeals. The Supreme Court upheld the election of Smt.
Indira Gandhi To The House Of The People, Allowing Her Appeal And Rejecting The Cross-
Appeal Of Shri Raj Narain.

2. Kihoto Hollohon V. Zachilhu And Ors

Facts Of The Case: -

Some Members Of The Nagaland Legislative Assembly Were Disqualified By The Speaker Of
The Assembly Under The Tenth Schedule To The Constitution Of India, As Inserted By The
Constitution (Fifty-Second Amendment) Act, 1985, On The Ground Of Defection. They
Challenged The Order Of The Speaker Before The High Court Of The State. Several Other
Similar Orders Of The Speakers Of The Legislative Assemblies Of Manipur, Meghalaya,
Madhya Pradesh, Gujarat, And Goa Were Also Under Challenge Before The Various High
Courts. The Tenth Schedule Was Inserted By The Constitution (Fifty-Second Amendment)
Act, 1985. The Combined Petitions Challenged The Constitutional Validity Of The Tenth
Schedule Introduced By The Constitution (Fifty-Second Amendment) Act, 1985, Which
Amended Four Articles - 101(3)(A), 102(2), 190(3)(A), And 191(2). This Amendment Is Often
Referred To As Anti-Defection Law.

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Issue In The Case: - Whether The Changes Made By The 52nd Amendment Constitutionally
Valid Or Not?

Judgement: –

The Supreme Court Struck Down Para 7 Of The Tenth Schedule On The Ground That It Made,
In Terms And In Effect, Changes In Articles 136, 226, And 227 Of The Constitution And,
Therefore, Should Have Been Ratified By The Specified Number Of State Legislatures Under
The Proviso To Clause (2) Of Article 368 Of The Constitution, Which Was Not Done. The
Supreme Court, By 3:2, Upheld The Validity Of The Remaining Paragraphs Of The Tenth
Schedule, Holding That The Order Of The Speaker Under The Tenth Schedule Was Justiciable
And Subject To Judicial Review By The High Courts And Supreme Court Under Articles 226
And 227 And 136 Of The Constitution.

Minority View: -

Minority judges said the most important part of the constitution was broken because it says
disqualifying members after they are elected should be decided by a president or governor.

All Of Which Who High Constitutional Functionaries Are. The Election Commission Had A
Similar Opinion As That Of The Minority Judges In The Present Case. In The Year 1977,

It Made Recommendations And Suggested That The Disqualification On The Grounds Of

Defection Could Also Be Referred To The Election Commission For Tendering Opinion To
The President Or The Governor, As The Case May Be. The President Or The Governor Shall
Act-On Such Opinion Tendered By The Election Commission, As It Was In The Case Of Other
Disqualifications Referred To In Articles 102 And 191 Of The Constitution.

It Was Thus Held That Para 6 Of The Tenth Schedule Does Not Introduce A Non-Justiciable
Area. The Power To Resolve The Disputes Of The Speaker/Chairman Is Judicial.

3. B.K. Rai & Another V. Union Of India & Others

Facts Of The Case: -

On 1st October 1993, The President Of India, In The Exercise Of Powers, Fixed The Number
Of Election Commissioners (Other Than The Chief Election Commissioner) At Two. By A
Further Notification, The President Appointed Dr. M.S.Gill And Shri G.V.G.Krishnamurty As
Election Commissioners. Simultaneously, The President Also Promulgated An Ordinance
Entitled The Chief Election Commissioner And Other Election Commissioners (Conditions Of
Service) Amendment Ordinance, 1993 To Amend The “Chief Election Commissioner And
Other Election Commissioners (Conditions Of Service) Act, 1991”. The Ordinance Brought In
The Following Changes: –

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The Chief Election Commissioner And Other Election Commissioners Were Placed At Par In
The Matter Of Their Salary And Allowances (Which Were To Be The Same As Admissible
To A Judge Of The Supreme Court Of India).

The chief election commissioner and other election commissioners could not be older than 65
when appointed.

It said the Chief Election Commissioner and other Election Commissioners should have the
same decision-making power, and if they had different opinions, the majority would decide.

The Ordinance Also Renamed The Principal Act Of Chief Election Commissioner And Other
Election Commissioners (Conditions Of Service) Act, 1991 As The “Election Commission
(Conditions Of Service Of Election Commissioners And Transaction Of Business) Act, 1991”.

This Ordinance Was Later On Replaced By A Parliamentary Act (4 Of 1994) On 4th January
1994, Without Any Changes. As Mentioned Above, The Amendments Made By The Ordinance
Were Challenged By Shri T.N.Seshan, The Then Chief Election Commissioner, As Being
Unconstitutional Before The Supreme Court. He Also Challenged The Appointment Of Dr.
M.S.Gill And Shri G.V.G. Krishnamurty, Alleging Malafides Against The Government.

Issue’s Present: –

Whether The Ordinance And The Act Enforced Were Constitutional?

Whether The Appointment Of Two Election Commissioners Was Valid?

Judgment: –

The Supreme Court Dismissed The Writ Petition Of Shri T.N.Seshan. The court upheld the
challenged ordinance and act, as well as Dr. M.S. Gill and Shri G.V.G. Krishnamurty’s
appointment as Election Commissioners. The Court Also Pointed Out The Adverse Conduct
Of Shri T.N.Seshan As Chief Election Commissioner.

4. Sandeep Vinod Kumar Singh And Another V. Election Commission Of

India And Another
Facts Of The Case –

A Bio-Pic Of ‘PM Narendra Modi” Starring Actor Vivek Oberoi, Was Restrained From Being
Released And Being Promoted By ECI Vide Order Dated 10.04.2019 On The Grounds That
The Movie Has The Potential To Disturb The Level Playing Field During The Elections Thus,
Should Not Be Displayed In The Electronic Media”. The Said Order Was Challenged By The
Petitioner, Who Sought Quashing Of The Order Dated 10.04.2019.

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Issues Present: – Whether The Order Of ECI To Restrain Producers Of The Film “PM
Narendra Modi” From Releasing It During The Operation Of The Model Code Of Conduct
Valid And Justifiable?

Judgement: – The Hon’ble Supreme Court Asked The Election Commission To File A Report
Regarding The Film In A Sealed Cover After Watching It. The Election Officials Post
Watching The Film Presented A Report Before The Court. The Supreme Court threw out the
petition after reading the report and avoiding the case’s details.

5. Lok Prahiri V. Union Of India And Others

Facts Of The Case: –

Lok Prahari asked candidates’ sources of income when they filed nomination papers. The
Petition Was Filed In The Context Of An Alleged Substantial Increase In The Assets Of
Various MPs/MLAs/MLCs. A Petition Was Filed Seeking Amendments In Form 26, Including
The Source Of Income Of Candidate, Spouse,

And Dependents, To Provide For Rejection Of Nomination Papers Of The Candidates And
Disqualification Of MPs/MLAs/ MLCs Deliberately Furnishing Wrong Information About
Their Assets In The Affidavit And To Consider Amending Section 9-A Of The Act To Include
Contracts With Appropriate Government And Any Public Company By The Hindu Undivided
Family/Trust/Partnership Firm(S)/Private Company (Companies) In Which The Candidate
And His Spouse And Dependents Have A Share Or Interest.

Issues Involved: –

Whether Rule 4A And Form – 26 Have To Be Amended To Mandate The Aforementioned

Information From A Candidate?

Whether Non-Disclosure Of Assets Amount To Corrupt Practices?

Judgement: –

The Supreme Court Directed Necessary Amendments May Be Made In Form 26 And Rule
4A Of The Conduct Of Elections Rules, 1961 To Require Candidates To Declare On Affidavit
The Source Of Their Income As Well As Their Associates’ Source Of Income.

The Hon’ble Court Also Accepted The Prayer Seeking Information About The Contractual
Relationship Of Associates Of Candidates With Appropriate Governments And Also Held That
Non-Disclosure Of Such Information Would Amount To Corrupt Practice Under Section
123(2) Of The Representation Of The People Act, 1951.

By the next election, a permanent system for political monitoring and investigating legislators’
asset growth must be in place. This system would look at lawmakers with 100% asset growth.

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This Monitoring Body Is Then Required To Publish The Information And Recommend
Suitable Action

ELECTION COMISSION IN INDIA

Introduction
The Election Commission is a body which is responsible for making sure and conducting free
and fair elections in the country. This power has been vested to the body by Article 324 of the
Constitution of India. Since its establishment in 1950 and till 15th October 1989, the Election
Commission had functioned as a single member body consisting of the Chief Election
Commissioner. But on 16th October 1989, the President of India appointed two more election
commissioners to cope up with the increased work of the election commission, this was done
due to the fact that the voting age had been reduced to 18 years from 21 years. And in October
1993, the President of India appointed two more election commissioner and since then, to this
day, the Election Commission has been functioning as a multi-member body consisting of three
election commissioners.

Election commission

 The Election Commission is an independent and permanent body which is established

by the Constitution of India to ensure free and fair elections in the entire nation.

 Article 324 of the Constitution of India provides for the power of superintendence,
direction, and control of the elections for the parliament, state legislatures, the office of
the President of India and the office of the Vice-President of India, is vested in the
Election Commission’s jurisdiction. Hence, the election commission is a body which is
common to both the Central Government as well as the State Governments.

 The election commission is not at all concerned with the elections of panchayats and
municipalities in the states, for these elections, there is a separate body which is called
as the State Election Commission.
 The Mission of the Election Commission: The Election Commission of India has to
maintain its independence, integrity, and autonomy and it must also ensure ease of
accessibility, inclusiveness, and ethical participation. It must also adopt the highest
standards of professionalism for free, fair, and transparent elections in India to
strengthen the trust which the people have in the electoral democracy and governance.
 The Vision of the Election Commission: The Election Commission of India has to be
an Institution of excellence by intensifying active involvement through participation
and deepening as well as strengthening the situation of Democracy in India

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Composition of the Election Commission
As per Article 324, the Constitution of India has made many provisions with respect to the
composition of the election commission, these are,

6. The Election commission will consist of the chief election commissioner and
any number of other election commissioners, if any, as per the President of
India’s assent.
7. The appointments of the chief election commissioner and any other election
commissioner will be done by the President of India himself.
8. When another election commissioner is appointed then in such cases, the chief
election commissioner will have the authority to act as the chairman of the
election commission.
9. The President of India can also appoint regional commissioners as he deems
necessary to assist the election commission, this can be done after consulting
with the election commission.
10. The tenure and the conditions of the work to be done by the election
commissioners and the regional commissioners will be determined by the
President of India.

The chief election commissioner and the two other election commissioners have equal powers
and they also receive equal salary and allowances, these are similar to those of a Judge of the
Supreme Court.

Tenure: They hold the office for a period of 6 years or till they attain the age of 65 years,
whichever happens first and they can also resign at any time or can be removed before the
expiry of their tenure.

Independency of Election Commission

Article 324 of the Constitution of India has made many provisions which safeguard and
ensures that the Election Commission is independent and impartial in its functioning, these are
the following provisions,

1. The chief election commissioner has been provided with the stable tenure and he
cannot be removed from his office except in the manner and grounds on which a
Supreme Court’s Judge is removed from his office. He can be removed by the
President of India on the basis of a resolution passed for such an outcome by both
the Houses of the Parliament with a special majority (2/3rd of the members present
and voting) which is either on the grounds of misbehaviour or incapacity to work.
2. The conditions of the chief election commissioner’s service cannot change to his
disadvantage after his appointment is done.
3. Any other commissioner (election commissioner or regional commissioner) cannot
be removed from his office unless it is done on the recommendations of the chief
election commissioner

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Powers and Functions of the Election Commission of India
The powers and functions of the Election Commission with respect to the Parliament, the state
legislature, and the offices of the President and the Vice-President of India, are can be
categorised into three kinds, these are,

Administrative Powers

The important responsibility of superintendence, direction and control of the conduct of

elections covers powers, duties and functions of many sorts, these are essentially the
administrative powers of the election commission of India. Article 324 vests many functions
in the Commission which may be powers or duties, essentially administrative and even
judicative or legislative.

Advisory Powers

The Election Commission of India has been vested with this power in the cases where if a
person is found to be guilty of any corrupt practices during an election either by a High Court
in an election petition or by the Supreme Court in an election appeal, the President of India
decides whether such a person should be disqualified for contesting elections in the future or
not and, if so, for what time period. Before taking a decision on the occurrence of such a
scenario, the President of India requests to obtain the opinion of the Election Commission and
may act according to such opinion as per the situation.

Quasi-Judicial Powers

The Election Commission has another important function to perform under the law. All
associations or the bodies of citizens calling themselves as political parties and willingly
wishing to contest the elections under the name and banner of a political party have to get
themselves registered with the Election Commission. Such a function of registration of political
parties by the Election Commission has been held by the Supreme Court to be a quasi-judicial
function of the Election Commission of India.

Hence, the Powers and Functions of the Election Commission include

1. To Notify the dates and the schedule of the elections and to scrutinise the nomination
papers.
2. To prepare and revise electoral rolls and register all the eligible voters.
3. To determine the areas of the electoral constituencies throughout the territory of
India.
4. To grant recognition to the political parties and assign the election symbols to the
political parties.
5. To act as a Court for settling disputes which are related to granting recognition to
the political parties and in the allotment of election symbols to these political parties.

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 6. Determining the code of conduct to be followed by the parties and the candidates at
the time of the elections.
7. Appointment of officers for inquiring into disputes related to electoral arrangements.
8. Preparing a roster for publicity of the policies of the political parties.
9. Advising the President of India on the matters related to the disqualifications of the
members of the Parliament.
10. Advising the Governor of a state on the matters related to the disqualifications of
the members of the state legislature.
11. Cancelling of polls in cases of rigging, booth capturing, or any other irregularity.
12. Requesting the President of India or the Governor of a State for commandeering the
staff for conducting the elections.
13. Supervising the machinery of the elections throughout the territory of India and
ensuring fair and free elections in the country.
14. Advising the President of India on the scenario of President’s rule in the state.
15. Registering the political parties for elections and granting them the status of a
national or a state political party on the account of their poll performance.

Caselaw : Brundaben Nayak v. Election Commission of India and another 1965 AIR 1892,
1965 SCR (3) 53.-If any question gets raised whether any sitting member of the Parliament or
of the State legislature has become a subject to disqualification for continuing as a member
under the Constitution of India (on grounds other than that of the ground of defection) or any
law. Such a matter is decided by the President of India in cases which involve the members of
the Parliament and in cases which involve the member of the State Legislature then the
governor of that state has to decide on such a matter. And he is bound by the opinion of the
Election commission in these matters as established in this case.

Hence, in this case, it was held that the President of India and the governors of States are bound
by the opinion of the Election Commission of India in such matters and they are not required
to even consult the council of ministers in this regard.

Guiding principles of good governance by Election Commission of India

The election commission of India has itself laid down the guiding principles of good
governance, these are,

1. Upholding the values that are enshrined in the Constitution, i.e. equality, equity,
impartiality, independence. As well as rule of law in superintendence, direction, and
control over the electoral governance.
2. Conducting elections with the highest standard of fairness, transparency, integrity,
credibility, freeness, accountability, autonomy, and professionalism, as much as
possible.

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 3. Ensuring the participation of all the eligible citizens in the election process in a
voter-friendly environment.
4. Engaging with the political parties and all the stakeholders in the interest of the
election process.
5. Promoting awareness about the election process among the voters, political parties,
election functionaries, candidates and people at large and enhancing and
strengthening the confidence and trust of the people in the electoral system of India.
6. Developing the human resource for effective delivery of the electoral services.
7. Making sure that quality infrastructure is built for smooth conduct of the electoral
process.
8. Adopting new and improved technology in all areas involving the election process.
9. Contributing to the reinforcement of democratic values by maintaining and
reforming the confidence and trust of the people of the nation in the electoral system
of India.
10. To strive for the adoption of new and innovative practices for achieving excellence
and overall realization of the vision and mission of the Election Commission of
India.

Conclusion
Over the decades, the Election Commission of India has conducted a good number of elections
in India and there have been many changes to the electoral reforms to strengthen the democracy
and enhance the elections in India. However, the elections in India have become or are still
plagued to this day. This is due to many reasons, the reasons for such events happening may
be, to win votes, the political parties resort to using foul methods or corrupt practices in order
to gain an advantage in the Elections.

The Election Commission of India tries its level best to wipe out the virus of malpractices from
its roots. This is done through the usage of the new and improved technology which is ever
growing and developing every day. The Election Commission of India has taken many steps in
the recent past to overcome the corrupt practices that may exist. Through schemes for use of
State-owned Electronic media for broadcasting by Political parties, providing electors with
identity cards, and simplifying the procedure for maintenance of accounts and filling the same
by the candidates, etc

ELECTORAL REFORMS IN INDIA

INTRODUCTION

Elections lie at the very heart of democracy. It is through elections that people in a democracy
participate in public affairs and express their will. It is again through elections that power
changes hands in a peaceful and orderly manner in a democracy and the authority of
government gets clothed with legitimacy. „Elections, thus not only sustain democracy but

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enliven it as well. Holding of free and fair election is, therefore, a sine qua non of democracy.
India is both the largest and one of the most populous democracies in the world. This apart, in
comparison to most of the developed democracies of the world, problems of illiteracy,
poverty, etc. still continue in India as is the case with most of the developing countries. Its
electorate is not only vast but also quite diverse reflecting the plurality of caste, religion,
region, language, etc. of its social mosaic. Conducting periodic elections in the country by
encouraging large-scale popular participation is a stupendous task. Going by India’s record in
this regard, periodic elections as a means of smooth transfer of power have been a regular and
successful feature of India’s democracy in the past seventy years. Not only this, Indians have
time and again reposed faith in elections as the most potent means of non-violent and
peaceful protest against all acts of omissions and commissions of Government. Elections
have thus become integral to India’s democracy as elsewhere in other successful liberal
democracies, the world over. However, certain aberrations have come to the fore in the very
working of the electoral system over the years. The need to address such disturbing factors
have generated a debate on electoral reforms in the country. The Election Commission which
is under the Constitution is vested with the actual power of superintendence, direction and
control of elections in the country, has, from time 2 to time, come up with concrete
proposals/suggestions based on objective difficulties encountered in the conduct of elections.
Politicians, through the platform of parties and Parliament including its various committees
constituted for the purpose, have given vent to their desire for reform. Governments have also
undertaken certain redemptive measures based on the recommendations of various
committees. The process of reforms as well as the debate in this regard have almost been an
on-going process.

First-Past-the-Post-System’

As far as the issue of electoral reforms in India is concerned, the overall focus has been the
system that governs representation to the popular chamber in Parliament as well as to the
various State Legislative Assemblies in the country. The system of representation here refers
to the one commonly known as the „First Past-the-Post-System‟. Of all the candidates
contesting, it is the one who wins largest number of votes as compared to all others
individually, gets elected.

1. Universal Adult Franchise

One of the central features of the Electoral System in India is that it is based on the Universal
Adult Franchise enunciated in Article 326. While the Constitution under article 326 makes it
one of the cardinal features of the electoral system, the Representation of People Act, 1950
vide its Section 23 effectuates it. There shall be one electoral roll for every territorial
constituency for election to either House of Parliament or to the State Legislature and no
person shall be excluded from such roll-on grounds only of religion, race, caste, sex or any of
them”.

2. . Multiparty System

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Apart from the above, other function which also paved the way for electoral reforms in India
include increase in the number of regional parties from time to time as a result of multiparty
system that is followed in India in comparison to by party system in many countries.
Alongside, there has been a substantial increase in the number of independent candidates.
This has impinged upon the stability of Government in power. Moreover, this has also helped
the phenomena of political defections, coalition politics, etc. Apart from these, increasing
electoral expenses over the years has been a cause of concern. As a result, elections seem to
have increasingly become an affair of the affluent. This has also, in turn, contributed to the
rise of political corruption. In additional to these, electoral malpractices like booth capturing
or poll rigging, violence and popular apathy towards participation in the polls are some of the
issues which also need to be addressed and resolved in the interest of free and fair election.
Electoral Reforms in India
The need for electoral reforms was increasingly felt towards the late 1960‟s in India. Till then
the electoral system had functioned quite satisfactorily except for few of aberrations in the
form of some malpractices like rigging or violence which are rather small in number. There
was one party rule at the Centre and in most of the States. But this scenario began to change
after the Fourth General elections held in 1967. Regional parties and rule by coalition of
parties began to emerge in the States. The emergence of alternative party governments in the
State witnessed the accentuation of some of the negative traits and distortions in the political
system which manifested themselves in a greater degree in electoral politics.
A parliamentary Committee was constituted for the first time in 1970 to suggest amendments
to Election Law from all angles. But with the dissolution of Lok Sabha in December 1970, the
life of this Committee also came to an end. Subsequent to the Constitution of a new Lok Sabha
in 1971, Parliament formed a Joint Parliamentary Committee on Amendments to Election Law
headed by Shri Jagannath Rao. In subsequent years, a number of Committees viz. the Tar
Kunde Committee (1974), the Dinesh Goswami Committee (1990), V.K. Krishna Iyer
Committee (1994) and the Indrajit Gupta Committee (1998) have been constituted to examine
issues relating to electoral reforms. Apart from these, the Election Commission has also, from
time to time, made proposals for reforms. Starting from 1970, the Election Commission has
submitted its recommendations on electoral reforms in 1977, 1982, 1990, 1992 and 2004. This
apart, political parties through the platform of all-party meetings have also suggested for
electoral reforms. The Law Commission (i.e. the 15th Law Commission) was also constituted
in November, 1977 for an exhaustive study of the Representation of the People Act, 1951 with
a view to finding out and identifying the measures necessary in the direction of electoral
reforms. The Law Commission has submitted its 170th report regarding reform of the Election
System. In addition, Government has also initiated redemptive measures from time to time.
Proposals for reforms
Recommendations of Law Commission
The Supreme Court of India, in the matter of „Public Interest Foundation & Others V. Union
of India & Anr- Writ Petition (Civil) No. 536 of 2011, directed the Law Commission of India
to make suggestions on two specific issues, viz., (i) „curbing criminalization of politics and
needed law reforms‟; and (ii) „impact and consequences of candidates filing false affidavits
and needed law reforms to check such practice‟. In the light of this judgment, the Commission

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worked specifically on these two areas and, after series of discussions, followed by a National
Consultation held on 1st February 2014, submitted its 244th Report titled „Electoral
Disqualification‟ on 24th February 2014 to the Government of India. The law Commission of
India submitted its Report No. 255 on “Electoral Reforms” to the Union Law and Justice
Ministry. Justice Shri A. P. Shah, Chairman of the Law Commission of India presented the 201
page report after due consideration and deliberations with the stakeholders including of
registered national and state political parties and extensive and in-depth analysis of various
issues by the commission.
Following is the summary of the report on various issues discussed in the report:
1. Election Finance
The Law Commission has proposed wide ranging reforms on the issue of expenses incurred
by candidate such as limits; disclosure obligations of individual candidates and political parties;
and penalties imposable on political parties; as well as examining the issue of state funding of
elections.
The electoral bond scheme introduced in 2018 is a method of political funding. It aimed at
ensuring enhanced accountability to defeat the growing menace of black money and to promote
transparency in funding and donations received by the political parties. Only a political party
registered of the Representation of the People Act, 1951, and which has secured more than one
per cent of the votes polled in the last election to the Lok Sabha would be eligible to receive
the bonds.
The Commission does not consider a system of complete state funding of elections or matching
grants to be feasible, given the current conditions of the country.
2. Regulation of Political Parties and Inner Party Democracy
Democratic theory can be thought of to include accounts of both procedural and substantive
democracy. Procedural democracy can be said to refer to the practice of universal adult
franchise, periodic elections, secret ballot, while substantive democracy can be said to refer to
the internal democratic functioning of the parties, which purportedly represent the people. This
section deals with the internal democratic functioning of parties and the question of how parties
should function and regulate themselves.
3. Proportional Representation
It is clear that both the electoral systems come with their own merits and demerits –
proportional representation theoretically being more representative, while the FPTP system
being more stable. It is also clear, from the experience of other countries that any changes in
India‟s electoral system will have to follow a hybrid pattern combining elements of both direct
and indirect elections. This, in turn will necessitate an increase in the number of seats in the
Lok Sabha, which raises concerns regarding its effective functioning.
4. Anti Defection Law in India
The Law Commission recommends a suitable amendment to the Tenth Schedule of the
Constitution, which shall have the effect of vesting the power to decide on questions of
disqualification on the ground of defection with the President or the Governor, as the case may

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be, (instead of the Speaker or the Chairman), who shall act on the advice of the ECI. This would
help preserve the integrity of the Speaker‟s office.
The Supreme Court delivered a verdict recently that could have far-reaching consequences for
legislative assemblies.
The Court made two important declarations. First, the Speakers of both the State Assemblies
and the Parliament have to decide on disqualification petitions for members within three
months except for the existence of an extraordinary circumstance. It also held that courts have
the powers to intervene if the proceedings are delayed. Second, the court recommended to
Parliament that it strongly considers removing the Speakers‟ disqualification powers and
forming an independent tribunal to take up these petitions. The rationale for this suggestion is
that Speakers invariably come from the ruling parties and act in a partisan manner.
5. Strengthening the office of the Election Commission of India
The ECI should be strengthened by first, giving equal constitutional protection to all members
of the Commission in matters of removability; second, making the appointment process of the
Election Commissioners and the CEC consultative; and third, creating a permanent,
independent Secretariat for the ECI.
6. Paid News and Political Advertisements
Amendment in the RP 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 under chapter-
III of part-VII of RP Act, 1951 with punishment of a minimum of two years imprisonment. In
order to curb the practice of disguised political advertisement, disclosure provisions should be
made mandatory for all forms of media.
7. Opinion Polls
Under Section 126 of Representation of the People Act, 1951, which prohibits, apart from
holding, convening or attending any public meeting or procession, “display to the public any
election matter by means of cinematography, television or other similar apparatus”, during the
period of forty-eight hours ending with the hour fixed for the conclusion of the poll.
Contravention of the above prohibition is a penal offence punishable with imprisonment upto
2 years or with fine or with both.
8. Compulsory Voting
The Law Commission does not recommend the introduction of compulsory voting in India and
in fact, believes it to be highly undesirable for a variety of reasons described above such as
being undemocratic, illegitimate, expensive, unable to improve quality political participation
and awareness, and difficult to implement.
9. Election Petitions
Wide-ranging reforms have been suggested by the Election Commission to deal with “disputes
regarding elections”.
10. NOTA and the Right to Reject

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 The Law Commission currently rejects the extension of the NOTA principle to introduce a
right to reject the candidate and invalidate the election in cases where a majority of the votes
have been polled in favour of the NOTA option.
11. The Right to Recall
The Law Commission is not in favour of introducing the right to recall in any form because it
can lead to an excess of democracy, undermines the independence of the elected candidates,
ignores minority interests, increases instability and chaos, increases chances of misuse and
abuse, is difficult and expensive to implement in practice, especially given that India follows
the first past the post system.
12. Totaliser for Counting of Vote
The Commission reiterates and endorses the ECI‟s suggestion for introducing a totaliser for
the counting of votes recorded in electronic voting machines to prevent the harassment of
voters in areas where voting trends in each polling station can be determined. Prior to the
introduction of EVMs, ballot papers could be mixed under Rule 59A of the Election Rules,
although this was not permitted for EVMs. Using a totaliser would increase the secrecy of votes
during counting, thus preventing the disclosure of voting patterns and countering fears of
intimidation and victimisation.
13. Restriction on Government Sponsored Advertisement
The Commission recommends regulating and restricting government sponsored
advertisements six months prior to the date of expiry of the House/Assembly to maintain the
purity of elections; prevent the use of public money for partisan interests of, inter alia,
highlighting the government‟s achievements; and ensure that the ruling party or candidate does
not get an undue advantage over another in the spirit of free and fair elections.
14. Restriction on the Number of Seats from which a Candidate May Contest
The Law Commission recommends an amendment of section 33(7) of the RPA, which permits
a candidate to contest any election (parliamentary, assembly, biennial council, or bye-elections)
from up to two constituencies. In view of the expenditure of time and effort; election fatigue;
and the harassment caused to the voters, section 33(7) should be amended to permit candidates
to stand from only one constituency.
15. Independent Candidates
The Law Commission recommends that independent candidates be disbarred from contesting
elections because the current regime allows a proliferation of independents, who are mostly
dummy/non-serious candidates or those who stand (with the same name) only to increase the
voters‟ confusion. Thus, sections 4 and 5 of the RPA should be amended to provide for only
political parties registered with the ECI under section 11(4) to contest Lok Sabha or Vidhan
Sabha elections.
16. Preparation and Use of Common Electoral Rolls
The Law Commission endorses the ECI‟s suggestions regarding the introduction of common
electoral rolls for Parliamentary, Assembly and local body elections

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Conclusion
It is an accepted fact that the electoral process in the country has developed certain
shortcomings over the years which need to the corrected. But this should be done through
extensive debate and discussion and in a gradual and continuous manner. Successive
Governments at the Centre have realized the importance of the issues relating to electoral
reforms. Suggestions made either by the Election Commission or by the various committees
on electoral reforms from time to time, have been regularly considered and also implemented
While considering the proposals and suggestions of reforms of the electoral process, it has also
been underlined that consensus of political parties in the country is necessary. Government
recognized that electoral reforms is a continuous process and it shall be the endeavour of all
the stakeholders including Government, Election Commission of India, Law commission, etc.
to implement such proposals on electoral reforms on which consensus emerges, from time to
time.

IMPORTANT CASE LAWS RELATED TO ELECTORAL REFORMS IN INDIA

a. Association for Democratic Reforms vs. Union of India (2000)12 and People’s
Union of Civil Liberties & Anr. vs. Union of India & Anr (2003):
The verdicts established the filing of affidavits by candidates as the right of the voter. The SCI
stated that freedom of expression was promoted by information about candidates in election
fray and supported Article (19)(1) (a) as did the right to vote, which was a constitutional right.
“The casting of vote in favour of one or the other candidate marks the accomplishment of
freedom of expression of the voter.” The SCI did not find constitutional Section 33B inserted
by the Representation of People (3rdAmendment) Act, 2002 as it “imposes blanket ban on
dissemination of information other than that spelt out in the enactment irrespective of the need
of the hour and the future exigencies and expedients.” The ban would operate even if the
disclosure of information might be “deficient and inadequate.” While upholding adequacy of
Section 33A on right to information about pending cases, the SCI stated there was “no good
reason for excluding the pending cases in which cognizance has been taken by SCI from the
ambit of disclosure.” Declaration of assets and liabilities to Speaker or Chairman of the House
by elected members was found to be ineffective by the SCI to promote right to information of
voters and their freedom of expression in vote. The SCI felt that the Parliament “ought to have
made a provision” for disclosure of assets and liabilities of elected candidate and their family
at the time of nominations. “Failure to do so has resulted in the violation of guarantee under
Article 19(1)(a),” the SCI observed.
(b) Lily Thomas vs. Union of India & Ors.22:
The SCI had decided on disqualification of convicted candidates and examined whether this
was ultra vires the Constitution on those elected members who have appealed against their
convictions within three months and had their appeals pending. The Court stated that under
Section 8(1)(2)(3) of RPA, the disqualification was triggered on date of conviction for the
offences listed and remained in force. However, as such candidates would not have been aware
of the forthcoming Court order, they were saved, but those who were convicted in future would

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be subject to the law. The SCI observed that sitting Members of Parliament and State
Legislatures convicted for offences mentioned in Section 8(1)(2)(3) and whose appeals were
pending, “should not, in our considered opinion, be affected by the declaration now made by
us in this judgment.’’ The Court also stated that convicted Members of Parliament or State
Legislatures who faced disqualification under Section 8 (1)(2)(3) after the date of the judgment,
would “not be saved by subsection (4) of Section 8 of the Act which we have by this judgment
declared as ultra vires the Constitution notwithstanding that he files the appeal or revision
against the conviction and /or sentence.’’
(c) People’s Union for Civil Liberties vs. Union of India &Anr.:
The SCI in its order in favour of NOTA said that it was “extremely important in a democracy’’
that voters could reject a candidate in election in secrecy. “When the political parties will realize
that a large number of people are expressing their disapproval with the candidates being put up
by them, gradually there will be a systemic change and the political parties will be forced to
accept the will of the people and field candidates who are known for their integrity,’’ the SCI
had said in its verdict. The Court also observed that at present a voter who disapproved of the
candidates expressed his or her dissatisfaction mainly by not voting, which gave an opportunity
to “unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative
one.’’ Also, the SCI stated that the negative vote would give a clear signal about voter
disapproval. Giving the example of the Abstain choice in the form of a button for
Parliamentarians to vote, the verdict stated that NOTA button was the same, as “the voter is in
effect saying that he is abstaining from voting since he does not find any of the candidates to
be worthy of his vote.’’
(d) Dr. Subramanian Swamy vs. Election Commission of India:
After the introduction of the Electronic Voting Machines (henceforth, EVMs), the ECI
contemplated the introduction of a paper trail of the vote that was pilot tested. The SCI studied
the results of the introduction of Voter Verified Paper Audit Trail(henceforth, VVPAT) system
in Noksen Assembly constituency in Nagaland and the ECI had reported that it was
successfully used in 21 polling stations. The paper slips produced by VVPAT would not be
counted by Returning Officer unless applied for by a candidate. But to ascertain that there was
no discrepancy in the pilot case, the ECI had counted the paper slips in Noksen and found them
to be accurate. Following the success of VVPAT, the ECI had decided to introduce it in a phased
manner in the country and had sought sanction from government “for procurement of 20,000
units of VVPAT [10,000 each from M/s Bharat Electronics Limited (BEL) and M/s Electronics
Corporation of India Limited (ECIL)] costing about Rs. 38.01 crore.’’The SCI noted that the
paper trail provided verification to the voter of his or her vote and was indispensable for free
and fair elections. The Court also observed that voters’ confidence in EVMs would be
“achieved only with the introduction of the “paper trail”. It felt VVPAT could restore voter
confidence and make the system more transparent.
(e) Krishnamoorthy vs Shiv Kumar & Ors:
The SCI had argued that as mandated by law, the disclosure of criminal antecedents by a
candidate was a “categorical imperative.’’ Nondisclosure hinders the ``free exercise of electoral
right’’ as voters were prevented from making an informed choice and is therefore, an
interference with their right to vote. As the candidate himself would have the knowledge of the

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pending cases against himself where cognisance has been taken or charges framed, the non-
disclosure of the same during filing of nomination “would amount to undue influence and,
therefore, the election is to be declared null and void by the Election Tribunal under Section
100(1)(b) of the 1951 Act.”

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