CHAPTER 5

Nominations of candidates to election

Introduction

The whole process of election can be divided into four phases:

(i) Nomination of candidates;

(ii) Campaigning period;

(iii) Polling; and

(iv) Counting of votes.

In the first phase i.e., nomination of candidates, the election activities are mainly confined to
those who aspire to contest as candidates of political parties and those who aspire to contest as
independent candidates. ‘Nomination’ means an offering of a candidate as a contestant for any
elective office. It is the duty of every candidate to satisfy himself that he fulfils every requisite
qualification before jumping into election fray. Section 32 of the Representation of the People
Act, 1951 envisages that any person may be nominated as a candidate for election to fill a seat
if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this
Act. But, Section 36(2)(b) of the said Act of 1951 provides that, if any person is suffering from
any disqualification, the Returning Officer shall reject the nomination after summary inquiry.

Form of Nomination Paper to Fill Different Seats

Every aspiring candidate to fill the seat of Parliament or State Legislature has to formally offer
his candidature in a form prescribed for the purpose, and in no other manner. Such forms of
nomination papers are prescribed in the Conduct of Election Rules, 1961.

Nomination for election to Nomination to be made in

The House of the People Form 2A

The Council of States Form 2C

Appointment of Dates for Nominations etc., and Public Notice of Election

Section 30 of the Representation of the People Act, 1951 provides appointment of dates for
nomination, etc. According to this section, as soon as the notification calling upon a
constituency to elect a member or members is issued, the Election Commission shall, by
notification in the Official Gazette, appoint,—

(a) the last date for making nominations, which shall be the seventh day after the date of
publication of the first mentioned notification or, if that day is a public holiday, the next
succeeding day which is not a public holiday;

(b) the date for the scrutiny of nominations, which shall be the day immediately following the
last date for making nominations or, if that day is a public holiday, the next succeeding day
which is not a public holiday;

(c) the last date for the withdrawal of candidatures, which shall be the second day after the date
for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which
is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which
shall be a date not earlier than the fourteenth day after the last date for the withdrawal of
candidatures; and

(e) the date before which the election shall be completed.

Section 31 of the Act provides that on the issue of a notification under Section 30, the Returning
Officer shall give public notice of the intended election in such form and manner as may be
prescribed, inviting nominations of candidates for such election and specifying the place at
which the nomination papers are to be delivered.

Candidates and Proposer

Basic Guidelines

• A candidate need not necessarily be an elector in the constituency from where he is contesting
elections (except few exceptions);

• Every proposer subscribing the nomination of a candidate must be an elector registered in the
same constituency;

• For every election to Parliament or State Legislatures (except Jammu and Kashmir State
Legislature), each and every nomination of a candidate must be subscribed by a prescribed
number of proposers.
It was held in R.K. Bose v. Binod Kanungo, that under the law, a Government servant cannot
contest an election to Parliament or a State Legislature, but there is no bar under the law
prohibiting a Government servant from proposing the nomination of a candidate.

Now the question arises, why a candidate needs proposers to file nominations? The answer is
very simple, the underlying idea of prescribed proposers subscribing to a nomination is that
there are certain electors in the constituency who desire him to be chosen as their representative
and his nomination has come from the constituency itself. But, under the law the proposers of
a candidate must also vote for him at the time of the poll.

How many proposers required for the nomination of a candidate?

Number of Proposers Required for Nomination

For the House of the People and State Assemblies

Before the amendment of Section 33(1) of the Representation of the People Act, 1951 in the
year 1996, only one proposer was required to subscribe to the nomination of a candidate for an
election to the House of the People or to the State Assemblies. But, when the new provisions
have been inserted by the Representation of the People (Amendment) Act, 1996, to the effect
that whereas only one proposer shall be sufficient to nominate a candidate who is set up by a
recognised party at an election, at least ten proposers shall be required to subscribe the
nomination of a candidate who is set up by an unrecognised political part or who stands as an
independent candidate. The need for this amendment was to curb the nomination of frivolous
candidates.

For the Council of States and Legislative Councils

According to Section 39(2)(aa) and the proviso to Section 33(1) of the Representation of the
People Act, 1951, in case of any election to the Council of States or to a State Legislative
Council, every nomination paper of a candidate shall be subscribed by ten per cent of the
elected members or of the members of the Legislative Assembly of a State or of the members
of the Electoral College of a Union Territory, as the case may be, as ten members concerned,
whichever is less, as proposers.

Therefore, it is quite clear that, where the membership strength of the State Assemblies exceeds
100, only 10 proposers are required.
Requirements of the Valid Nomination

For a candidate to be validly nominated so that his nomination does not suffer from any mistake
or defect at time of scrutiny, his nomination must fulfil following requirements:—

Discuss the requirements of the valid nomination?

• The candidate must be ‘qualified’ under the Constitution and the law;

• The candidate must not be ‘disqualified’ under the Constitution and the law enacted by
Parliament;

• The nomination must be made in the prescribed Form of the nomination paper as mentioned
above in this chapter;

• Required number of proposers must subscribe the nomination paper;

• The nomination paper must be signed by the candidate and each of the proposers at the
appropriate places;

• Receipt showing the requisite security deposit must be accompanied with the nomination
paper;

• In case a candidate belongs to a Scheduled Caste or Scheduled Tribe, a certificate issued from
the competent authority showing the same, must be accompanied with the nomination form,
where—

— he is contesting from a reserved seat; and

— he is claiming concession in the matter of his security deposit for contesting election from
a general constituency.

• If the candidate is contesting from a different constituency, the complete copy of—

— current electoral roll; or

— the relevant part thereof; or

— a certified copy of the relevant copy of the relevant entries, in such electoral roll in which
the name of the candidate is registered, must be accompanied with the nomination paper.
• In case a candidate was dismissed from Government service and five years have not passed
since the date of his dismissal, the nomination paper must also be accompanied by a certificate
issued from the Election Commission in terms of Section 9 of the Representation of the People
Act, 1951, which provides ‘disqualification for dismissal for corruption or disloyalty’.

• The nomination paper must also be accompanied by the information with regard to his
conviction, if any, in the duly verified proforma prescribed by the Election Commission for
this purpose;

• The nomination paper duly accompanied by the aforesaid documents must be presented to
the Returning Officer or any authorised Returning Officer;

• The candidate must also make and subscribe the requisite oath or affirmation, as prescribed
under the Constitution, after the presentation of his nomination paper to the Returning Officer.

Sections 33(1) to 33(6) of the Representation of the People Act, 1951 provides the details of
‘presentation of nomination paper and requirements for valid nomination’.

(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either
in person or by his proposer, between the hours of eleven o’clock in the forenoon and three
o’clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in
the notice issued under Section 31 a nomination paper completed in the prescribed form and
signed by the candidate and by an elector of the constituency as proposer:

Provided that a candidate not set up by a recognised political party, shall not be deemed to be
duly nominated for election from a constituency unless the nomination paper is subscribed by
ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the Returning Officer on a day
which is a public holiday:

Provided also that in the case of a local authorities’ constituency, graduates’ constituency or
teachers’ constituency, the reference to ‘an elector of the constituency as proposer’ shall be
construed as a reference to ten per cent of the electors of the constituency or ten such electors,
whichever is less, as proposers.

(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative
Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted
under the Constitution), the nomination paper to be delivered to the Returning Officer shall be
in such form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the candidate as assenting to
the nomination, and—

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty
electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency
as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the
constituency as proposer:

Provided further that no nomination paper shall be delivered to the Returning Officer on a day
which is a public holiday.

(2) in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified
to be chosen to fill that seat unless his nomination paper contains a declaration by him
specifying the particular caste or tribe of which he is member and the area in relation to which
that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in Section 9 has
been dismissed and a period of five years has not elapsed since the dismissal, such person shall
not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied
by a certificate issued in the prescribed manner by the Election Commission to the effect that
he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the Returning Officer shall satisfy himself that
the names and electoral roll numbers of the candidate and his proposer as entered in the
nomination paper are the same as those entered in the electoral rolls:

Provided that no misnomer or inaccurate description or clerical, technical or printing error in

regard to the name of the candidate or his proposer or any other person, or in regard to any
place, mentioned in the electoral roll or the nomination paper and no clerical, technical or
printing error in regard to the electoral roll numbers of any such person in the electoral roll or
the nomination paper, shall affect the full operation of the electoral roll or the nomination paper
with respect to such person or place in any case where the description in regard to the name of
the person or place is such as to be commonly understood; and the Returning Officer shall
permit any such misnomer or inaccurate description or clerical, technical or printing error to
be corrected and where necessary, direct that any such misnomer, inaccurate description,
clerical, technical or printing error in the electoral roll or in the nomination paper shall be
overlooked.

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of
that constituency or of the relevant part thereof or a certified copy of the relevant entries in
such roll shall, unless it has been filed along with the nomination paper, be produced before the
Returning Officer at the time of scrutiny.

(6) Nothing in this Section shall prevent any candidate from being nominated by more than one
nomination paper:

Provided that not more than four nomination papers shall be presented by or on behalf of any
candidate or accepted by the Returning Officer for election in the same constituency.

Discuss the disclosure to be made by the candidate.

Disclosure by the Candidate

The word “elections” includes the entire process of election which consists of several stages
and it embraces many steps, some of which may have an important bearing on the process of
choosing a candidate. Fair election contemplates disclosure by the candidate of his past
including the assets held by him so as to give a proper choice to the candidate according to his
thinking and opinion. In Common Cause’s case the Court dealt with a contention that elections
in the country are fought with the help of money power which is gathered from black sources
and once elected to power, it becomes easy to collect tons of black money, which is used for
retaining power and for re-election. If on an affidavit a candidate is required to disclose the
assets held by him at the time of election, the voter can decide whether he could be re-elected
even in case where he has collected tons of money.

In Union of India v. Association for Democratic Reforms, the Election Commission is directed
to call for information on affidavit by issuing necessary order in exercise of its power under
Article 324 of the Constitution of India from each candidate seeking election to the Parliament
or a State Legislature as a necessary part of his nomination paper, furnishing therein,
information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the
past—if any, whether he is punished with imprisonment or fine.

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending
case, of any offence punishable with imprisonment for two years or more, and in which charge
is framed or cognizance is taken by the Court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse
and that of dependents.

(4) Liabilities, if any, particularly whether there are any overdues of any public financial
institution or government dues.

(5) The educational qualifications of the candidate.

Article 19(1)(a) of the Constitution and ‘Right to know’ about the candidates contesting
elections.

Citizens’ right to know, which is derived from the concept of “freedom of speech and
expression”. The people of the country have a right to know every public act, everything that
is done in a public way by the public functionaries, MPs or MLAs are undoubtedly public
functionaries. Public education is essential for functioning of the process of popular
government and to assist the discovery of truth and strengthening the capacity of an individual
in participating in the decision-making process. The decision-making process of a voter would
include his right to know about public functionaries who are required to be elected by him.

Rejection of Nomination Paper

Rejection of the nomination form not giving full and proper postal address. Defect not rectified
at the time of scrutiny. Thus rejection of the nomination paper is not improper.

The onus of proving the factual position was on the petitioner. He had to prove that his
nomination paper had been wrongly rejected. The respondent was under no obligation to fill
up the lacuna left by the petitioner. Consequently, there is no occasion to draw an inference
against the respondent.

Candidate proposed or seconded by Government servant, held, not irregular.

The defect of omission of mentioning age in the nomination form was a defect of a substantial
character and is not in any way cured simply by production of the certified copy of the entry in
the electroral roll along with the nomination paper. Thus, there is non-compliance of the
provision and as such, its rejection is proper.

Rejection of nomination paper of candidate whose name was not found available at serial
number of electoral roll mentioned in nomination paper, it is not improper as defect was of
substantial nature.

Rejection of nomination paper of a candidate on ground of defect in electoral roll without

affording opportunity to rebut it, is improper.

Where serial number of vote of proposer mentioned in nomination paper did not correlate with
serial number mentioned in voters list, nomination paper is liable to be rejected.

When there is difference in age of candidate in election as entered in electoral roll and
nomination paper, the rejection of nomination paper mere on such ground is not proper.

When there is substantial defect in nomination paper during election process of MLA, the
rejection of nomination paper is proper.

Invalid Nomination

In election for reserved seat for Scheduled Caste when nomination filed without specifying
declaration as to caste but certificate as to caste appended, nomination is invalid and hence
election is also invalid.

Where candidate as Scheduled Caste in election not specifying caste by declaration in

nomination paper but appending certificate of SDO specifying his caste, nomination paper is
valid.

Failure of candidate to specify his age in statutory Form 2B for nomination is defect of
substantial character.

Discuss the maximum number of constituencies from which a candidate can file
nominations.

Provisions Related to the Maximum Number of Constituencies from which Nomination

can be Filed

Before August, 1996, a candidate had no restriction in regard to the number of constituencies
from which he could contest elections. In August, 1996, Clause (7) in Section 33 of the 1951-
Act was inserted and through this amended law, restriction was imposed. Now a candidate
cannot be nominated from more than two Parliamentary constituencies, whether the general
election is held simultaneously or not from all Parliamentary constituencies. Likewise, he
cannot be nominated from more than two Assembly constituencies. Section 33(7) of the
Representation of the People Act, 1951 provides:

A person shall not be nominated as a candidate for election,—

(a) in the case of a general election to the House of the People (whether or not held
simultaneously from all Parliamentary constituencies), from more than two Parliamentary
constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held
simultaneously from all Assembly constituencies), from more than two Assembly
constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council,
from more than two Council constituencies in the State;

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted
to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or more Parliamentary
constituencies which are held simultaneously, from more than two such Parliamentary
constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more
Assembly constituencies, which are held simultaneously, from more than two such Assembly
constituencies;

(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to
a State, which are held simultaneously, for filling more than two such seats;

(h) in the case of bye-elections to the Legislative Council of a State having such Council from
two or more Council constituencies which are held simultaneously, from more than two such
Council constituencies.
Presentation of Nomination Paper and Preliminary Scrutiny by Returning Officer

How the preliminary scrutiny of the nomination paper to be made by Returning Officer?

What do you mean by the scrutiny of nomination papers by the Returning Officers?
Discuss the provisions briefly and explain when the Returning Officer can reject the
nomination papers?

At an election for a valid nomination, every candidate is bound to deposit security Do you
agree?

Section 33(4) of the Representation of the People Act, 1951 provides that—

“On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the
names and electoral roll numbers of the candidate and his proposer as entered in the nomination
paper are the same as those entered in the electoral rolls:

Provided that no misnomer or inaccurate description or clerical, technical or printing error in

regard to the name of the candidate or his proposer or any other person, or in regard to any
place, mentioned in the electoral roll or the nomination paper and no clerical, technical or
printing error in regard to the electoral roll numbers of any such person in the electoral roll or
the nomination paper, shall affect the full operation of the electoral roll or the nomination paper
with respect to such person or place in any case where the description in regard to the name of
the person or place is such as to be commonly understood; and the Returning Officer shall
permit any such misnomer or inaccurate description or clerical, technical or printing error to
be corrected and where necessary, direct that any such misnomer, inaccurate description,
clerical, technical or printing error in the electoral roll or in the nomination paper shall be over-
looked”.

In the preliminary scrutiny, the Returning Officer is required to check and satisfy himself that
the name of the candidate and names of the proposers and their electoral roll numbers as given
in the nomination paper are identical as entered in the relevant electoral roll. But, if the name
and electoral roll number of the candidate and of his proposers are the same as entered in the
relevant electoral roll, the Returning Officer has no jurisdiction under Section 33(4) to permit
correction of any entry either in the electoral roll or in the nomination paper.

In Samar Singh v. Kedar Nath, the name of the candidate given in his nomination paper was
‘Samay Singh S/o S.P. Singh’ and the same was printed in the electoral roll. When the list of
the candidate was prepared, the said candidate made an application before the Returning
Officer to correct his name as ‘Samar Singh S/o S.P. Singh’ but his application was rejected by
the Returning Officer. The Supreme Court held that the Returning Officer had no jurisdiction
to make any correction as the proviso to Section 33(4) authorised him only to ignore any
inaccurate description or printing error or to get the same corrected if there is any variation
between the entries mentioned in the nomination paper and the electoral roll and that there
would be no occasion for him to exercise his power under the proviso to Section 33(4) if no
such variation is found at the presentation of the nomination paper.

The main reason behind the preliminary scrutiny is—

— to avoid any objection on the different grounds at the later stage of scrutiny of nominations;

— the Election Commission has instructed the Returning Officers that they should remind the
candidates by means of written memoranda where they find that any candidate has not
produced the copy of the relevant electoral roll or any other required documents.

In Brij Mohan v. Sat Pal, it was held by the Supreme Court that, if there exists any discrepancy,
that might not be a ground for rejection of the nomination paper but if the same is not properly
explained or rectified at the time of the final scrutiny, it can constitute a defect of substantial
character and accordingly a ground for rejecting the nomination paper.

Security Deposits

For a valid nomination at an election, every candidate is bound to deposit a specified sum,
commonly known as ‘security deposit’.

Section 34 of the Representation of the People Act, 1951 provides that,

(1) A candidate shall not be deemed to be duly nominated for election from a constituency
unless he deposits or causes to be deposited,—

(a) in the case of an election from a Parliamentary constituency, a sum of ten thousand rupees
or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five
thousand rupees; and

(b) in the case of an election from an Assembly or Council constituency, a sum of five thousand
rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of
two thousand five hundred rupees:
Provided that where a candidate has been nominated by more than one nomination paper for
election in the same constituency, not more than one deposit shall be required of him under this
sub-section.

(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been
deposited under that sub-section unless at the time of delivery of the nomination paper under
sub-section (1) or, as the case may be, sub-section (1A) of Section 33 the candidate has either
deposited or caused to be deposited that sum with the Returning Officer in cash or enclosed
with the nomination paper a receipt showing that the said sum has been deposited by him or on
his behalf in the Reserve Bank of India or in a Government Treasury.

Prior to 1996, the amount of security deposit was only Rs. 500 for an election to the House of
the People, and Rs. 250 for an election to the Council of States or for an election to a State
Legislative Assembly or State Legislative Council. These amounts of security deposit were too
low and encouraged large number of frivolous candidates without any serious intention to
contest in the election. Therefore, amounts of security deposit was raised in 1996 to maintain
the true spirit of democracy.

However, if a candidate belongs to Scheduled Caste or Scheduled Tribe, the amounts of

security deposit to be paid by him would be half of the normal security deposit, irrespective of
the fact whether he is contesting election from a general or reserved constituency.

In case a candidate filed more than one nomination paper in the same constituency, he is
required to make only one security deposit. But, when he is contesting elections from more
than one constituency, he shall have to make separate security deposits in each constituency.
The security deposit is to be made by a candidate:

— in cash with the Returning Officer at the time of the delivery of his nomination paper; or

— advance in the Reserve Bank of India; or

— in a government treasury.

When the deposit has been made in the Reserve Bank or in a government treasury, a receipt
issued by the bank or the treasury must be enclosed with the nomination paper.

In C.L. Sahu v. F.A. Ahmed, the Supreme Court held that the security deposit cannot be made
by means of a cheque.
How the notice is issued by the Returning Officer after nomination received by him?

Notice of Nominations

It is the duty of the Returning Officer under Section 35 of the Representation of the People Act,
1951, to issue ‘public notice’ of each of the nomination received by him.

The above-mentioned section says that, the Returning Officer shall, on receiving the
nomination paper, inform the person or persons delivering the same on the date, time and place
fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number,
and shall sign thereon a certificate stating the date on which and the hour at which the
nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to
be affixed in some conspicuous place in his office a notice of the nomination containing
descriptions similar to those contained in the nomination paper, both of the candidate and of
the proposer.

Effect of improper rejection of nomination paper

Scrutiny of Nominations

The scrutiny of nominations is a highly sensitive function carried on by the Returning Officer.
Section 100(1)(c) of the Representation of the People Act, 1951, provides that if the nomination
of any candidate is improperly rejected or if there is any lapse on the part of the Returning
Officer in this regard, it might ultimately result in the entire election being declared void by the
High Court on this ground alone. In Krishna Mohini v. Mohinder N. Sofat, the election of the
returned candidate was declared void by the Himachal Pradesh High Court on the ground that
the Returning Officer of the constituency had improperly rejected the nomination papers of two
candidates on unsustainable grounds.

Therefore, the Election Commission has suggested all the Returning Officers, not to reject any
nomination paper unless they are sure that the ground of rejection is legally sustainable.

Who are the persons authorised to attend at scrutiny of nominations?

Presence of Authorised Persons at Scrutiny of Nominations

Section 36(1) of the Representation of the People Act provides that,—

“On the date fixed for the scrutiny of nominations under Section 30, the candidates, their
election agents, one proposer of each candidate, and one other person duly authorised in writing
by each candidate, but no other person, may attend at such time and place as the Returning
Officer may appoint; and the Returning Officer shall give them all reasonable facilities for
examining the nomination papers of all candidates which have been delivered within the time
and in the manner laid down in Section 33”.

Thus, each candidate can be represented by four persons (including himself) on the date fixed
for the scrutiny of nominations, viz.,

(i) the candidate;

(ii) election agent;

(iii) one proposer; and

(iv) one person duly authorised in writing by the candidate.

This section also provides that, at the time of scrutiny of nominations, the Returning Officer is
bound to provide all reasonable facilities to the candidate and their representatives. It should
be noted that the absence of the candidate and his representatives at the time of scrutiny of
nominations is not a ground for rejection, therefore, it is not a legal necessity that a candidate
and/or his representatives should be present at the time of scrutiny of nominations. But the
presence of candidate or his representative is desirable, so that when the objection is raised
with regard to the nomination paper there is no one to rebut it. In this way, if the Returning
Officer finds substance in the objection raised in relation to nomination of any candidate, he
must be justified in rejecting the same.

In Yasin Shah v. Ali Akbar Khan, an objection was raised with regard to the nomination of one
of the candidates, as the signature of his proposer on the nomination paper was not genuine. In
absence of the candidate or his proposer, the verification was not possible, thus, the Returning
Officer rejected the nomination paper. On appeal to the Supreme Court, it was held to be valid
rejection.

How the scrutiny of nominations conducted?

Conduct of Scrutiny

Section 36(2) of the Representation of the People Act, 1951, empowers, that,—

The Returning Officer shall examine the nomination papers and shall decide all objections
which may be made to any nomination and may, either on such objection or on his own motion,
after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the
following grounds:—

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or
is disqualified for being chosen to fill the seat under any of the following provisions that my
be applicable, namely:—

Articles 84, 102, 173 and 191,—

Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20
of 1963); or

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section
34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

In Rakesh Kumar v. Sunil Kumar, it was held by the Supreme Court that the scrutiny of
nominations is a quasi-judicial function of the Returning Officer. It was also held that he is not
to act as a judicial court in discharging it.

During the scrutiny of nominations, an objection with regard to the validity of nomination paper
of a candidate can be raised either by any of the candidates or by any of their proposers, election
agents, or authorised representatives present. Even, such objection can be raised by the
Returning Officer, if he has any doubt in respect of any nomination paper.

The enquiry of a nomination paper by the Returning Officer into the question of validity or
otherwise, is a summary enquiry and the rival candidates have not to be given legal right to
lead evidence as in a judicial proceedings.

Rejection of Nomination

Discuss the grounds on which the Returning Officer can reject a nomination paper.

Under the law the Returning Officer is authorised to reject the nomination of a candidate on
the following grounds:—

(i) If the candidate either is not qualified or is disqualified for being chosen as member of
Parliament or, as the case may be, of the State Legislature, on the date fixed for the scrutiny of
nominations; or
(ii) If there has been failure to comply with any of the provisions of Section 33, relating to the
presentation of nomination papers in the prescribed form; or

(iii) Failure in depositing requisite security in the manner prescribed under Section 34; or

(iv) If it is found that the signature of the candidate or any of his proposers on the nomination
paper is not genuine, as provided under Section 36(2).

Section 36(3) says that,—

Nothing contained in Clause (b) or Clause (c) of sub-section (2) of Section 36 shall be deemed
to authorise the rejection of the nomination of any candidate on the ground of any irregularity
in respect of a nomination paper, if the candidate has been duly nominated by means of another
nomination paper in respect of which no irregularity has been committed.

Therefore, if a candidate has filed more than one nomination paper, all of his nomination papers
shall be scrutinised individually. If any of his subsequent nomination papers is found not to be
valid, it does not affect his candidature as such, as at least one nomination paper should be
declared valid, to be nominated validly. In the light of this reason the Election Commission has
instructed all the Returning Officers that they should scrutinise all the nomination papers filed
by a candidate together, even if they have been filed on different dates and times.

Section 36(4) provides that,—

The Returning Officer shall not reject any nomination paper on the ground of any defect which
is not a substantial character.

This means, the Returning Officer should be sure of the ground on which he decides to reject
a nomination paper, as any improper rejection of a nomination paper has a very serious
consequence as mentioned in this chapter.

Section 36(6) of the Act envisages,—

The Returning Officer shall endorse on each nomination paper his decision accepting or
rejecting the same and, if the nomination paper is rejected, shall record in writing a brief
statement of his reasons for such rejection.

Thus, after the scrutiny of each nomination paper, the Returning Officer has to endorse his
decision on each nomination paper, either accepting or rejecting the same. In case of rejection,
he has to record brief written statement of the reasons to reject the same. In Mohinder Singh v.
Gulwant Singh, the Supreme Court held that, where the Returning Officer accepts the
nomination paper, he need not State the reasons.

In Parmeshwar Kumar v. Lahtan Chaudhary, it was held that, the Returning Officer can, if he
deems appropriate, adjourn the scrutiny proceedings to allow a candidate to rebut the objection
raised in regard to his nomination, even if no time is requested for, where the candidate is
absent at the time of scrutiny.

In Rakesh Kumar v. Sunil Kumar, two candidates had filed their nomination papers claiming
to be set up by the same recognised national party and had also submitted the requisite
authorisation from the party in prescribed forms for election from north Ludhiana Assembly
Constituency in Punjab in 1997. The Returning Officer raised a suo motu objection that a
political party could not set up two candidates in the same constituency and that he would treat
both the candidates as independent candidates. One of the candidates made an application in
writing to the Returning Officer to allow him 24 hours’ time to produce official confirmation
from the party in favour of his candidature. The Returning Officer, however, did not accept the
request of the candidate and rejected the nominations of both the candidates, as their
nomination papers were not subscribed by 10 proposers as required in the case of independent
candidates. The Supreme Court observed that the Returning Officer had adopted a wrong
procedure and improperly rejected the nomination of the two candidates. The Supreme Court
observed that the Returning Officer would have been justified in rejecting the nomination paper
of the aforesaid candidate had he not sought an opportunity to rebut the objection raised by the
Returning Officer or was unable to rebut the objection within the time allowed by the Returning
Officer. It was obligatory on the part of the Returning Officer to allow time to the candidate
concerned to rebut the objection and the refusal to grant such opportunity and rejection of the
nomination paper of the candidate was an arbitrary exercise of the discretion vested in the
Returning Officer. The Apex Court also observed that the Returning Officer appeared to be
labouring under the impression that the candidate ‘cannot be given further time to change such
authorisation after scrutiny’. Under the proviso to Section 36(5), the scrutiny itself would have
been postponed to the adjourned time and, therefore, it was not a case of meeting the objection
after scrutiny of the nomination papers. Holding the rejection of the nomination of the said two
candidates as improper and illegal, the Supreme Court also declared the election of the returned
candidate as void, though for no fault on his part.
Defects of Substantial Character

What do you mean by defects of substantial character?

With the decisions of the Apex Court, the law has crystalised that there are some defects which
are curable at the stage of scrutiny of nominations and the Returning Officer can allow such
defects to be rectified at that stage and are not considered to be defects of substantial character.
But there are several material defects which cannot be cured at that stage and may entail
rejection of the nomination paper being defects of substantial character.

The foregoing discussions will show that:

(a) the failure to declare age in the nomination paper;

(b) failure to sign the nomination paper by the candidate or by any of his proposers in the
manner prescribed;

(c) failure to comply with the requirement to produce the evidence of being a registered elector
where a candidate is contesting election from a different constituency; and

(d) failure to submit the written authorisation within the prescribed time and in the prescribed
forms from the party where a candidate claims to have been set up by a recognised national or
State political party, have been held by the Supreme Court to be defects of substantial character.
There are several other defects too which have been held by the courts to be defects of
substantial character.

What is effect when the candidate fails to mention the name of the constituency?

When Candidate Fails to Mention the Name of Constituency

In Rangilal Choudhury v. Dabu Sao, the candidate had by mistake entered ‘Bihar’ instead of
‘Dhanbad’ in the space meant for indicating the name of the constituency in the nomination
paper. It was observed that the mistake occurred due to error in the printing of the form of
nomination paper in Hindi. In such circumstances, the defect of not mentioning the name of
the constituency was held not to be a defect of substantial character for which his nomination
should have been rejected by the Returning Officer. But it deserves to be noted that in that case
the election in question was only a bye-election and the Returning Officer could not be in any
manner of doubt that the nomination paper had been filed for that bye-election from Dhanbad
Assembly constituency. But the situation might be different in a general election and
particularly where the same officer may have been appointed as Returning Officer for more
than one constituency. In the absence of the name of the constituency in the nomination paper,
he may be at a loss to determine to which constituency under his charge such nomination paper
pertains.

In Prahladdas Khandelwal v. Narendra Kumar Salave, the failure to mention in the nomination
paper the name of the constituency from which the candidate was contesting election was held
by the Supreme Court to be a defect of substantial character. In that case, in the nomination
form in Hindi, the candidate mentioned his own name after the word ‘main’ (i.e., I) in the space
which was meant for indicating the name of the constituency. The Supreme Court observed
that the form on which the nomination of the candidate was made the one which had been
statutorily prescribed and there was a complete omission to mention the name of the
constituency for which he was being nominated as a candidate. Further, it was observed that
the Assistant Returning Officer had also drawn the attention of the candidate to the above-
omission and yet the defect was not cured. In the circumstances, the Supreme Court held that
the above defect was of a substantial character and did not fall within those provisions where
the Returning Officer was enjoined either to get the defect rectified or ignore it.

What is effect when the candidate fails to give full address?

When Candidate Fails to Give Full Address

In the nomination paper, there is provision for mentioning the address of the candidate. Non-
supply of postal address of the candidate or supplying such cryptic address which virtually
amounts to non-supply of address is failure to comply with the provisions of Section 33(1).
Such defect has been held to be a defect of substantial character by the Supreme Court in
Dharam Singh Rathi v. Hari Singh. In that case, the address of the candidate was given only as
‘Smalkha Mandi’ and it was held to be insufficient to identify the candidate.

When Candidate Fails to Give Correct Particulars of Electoral Roll Numbers

In Brij Mohan v. Sat Pal, the Supreme Court observed that, it is not possible to say generally
that all errors in regard to electoral roll numbers of the candidates and their proposers in the
electoral rolls or nomination papers do not constitute defects of a substantial character. They
would not be defects of a substantial character only if at the time of the scrutiny, the Returning
Officer either by himself with the materials placed before him during the scrutiny or with the
assistance of the candidate or his proposer or any other person, is able to find out the correct
serial number of the candidate and the proposer by reference to the correct part number of the
electoral roll. If that is not the case, he would be committing a grave error by accepting the
nomination paper without verifying whether the proposer is a voter in that constituency. In this
case, the Returning Officer found discrepancy in the names, serial numbers and part numbers
of the candidate and his proposer as mentioned in the nomination paper on the one hand and
the names of persons found in the electoral roll with reference to those numbers on the other.
The postal address of the candidate given in the nomination paper was not a sure guide for the
Returning Officer to trace the correct part number of the electoral roll in regard to the candidate
and his proposer. The Supreme Court observed that the Returning Officer who is expected to
hold only such summary enquiry as he thinks fit was not expected to himself find out the correct
part number of the electoral roll by making a roving enquiry and questioning the candidate or
his proposer. He asked the candidate, who was present before him, to point out the entries in
the electoral roll where his name and that of his proposer were to be found as electors, but the
candidate was not in a position to do so and the rejection of his nomination by the Returning
Officer in these circumstances was held by the Supreme Court to be valid.

In Mathura Prasad v. Ajeem Khan, the column in the nomination paper meant for stating the
serial number of the candidate in the electoral roll was left blank. The Returning Officer pointed
out this defect to the proposer of the candidate who was present at the scrutiny of nominations,
but he could not supply the omission and went to fetch the candidate himself who was not
present. The candidate did not turn up by the time the Returning Officer completed the scrutiny
of nominations and the Returning Officer thereupon rejected the nomination paper of that
candidate. The single Judge of the Punjab and Haryana High Court who tried the election
petition took the view that the Returning Officer could have himself found out the electoral roll
number of the candidate without the assistance of other persons and that the defect in the
nomination paper could not be held to be of a substantial character. But the Supreme Court
reversed the decision of the High Court holding that the Returning Officer acted properly in
rejecting the nomination in the above circumstances, as he had not only granted ample time,
but even brought the defect to the notice of the proposer which was still not removed. The
Supreme Court further observed that even if assuming that by making some effort, the
Returning Officer could have ascertained the identity of the candidate, there was no statutory
duty cast on him to do so and make a roving enquiry to remove such defect himself.
Likewise, in Rafiq Khan v. Laxmi Narayan Sharma, the electoral roll number of the proposer
of the candidate was wrongly mentioned as 136 in the nomination paper, whereas his correct
electoral roll number was 138, i.e., only two steps away. The candidate and his proposer could
not show the correct electoral roll number to the Returning Officer at the time of scrutiny of
nominations. The rejection of the nomination paper on account of the above discrepancy by the
Returning Officer was held by the Supreme Court to be justified, observing that the defect was
one which was not capable of being cured without the assistance of the candidate or his
proposer. In Lila Krishna v. Mani Ram Godara, also, the Supreme Court held that the defects
in the electoral roll numbers could be permitted to be corrected or overlooked by the Returning
Officer at the time of scrutiny if the candidate or anyone else assisted him in establishing proper
identification of the candidate or his proposer, but if no such assistance is forthcoming in the
absence of the candidate or his proposer or agent or authorised representative, the Returning
Officer would be justified in treating the defect as of substantial character and rejecting the
nomination on that ground.

However, in V. Giri v. N.K. Sahi, a discrepancy in the age of the candidate as mentioned in the
electoral roll and as given by him in his nomination paper was held to be a mere inaccurate
description within the meaning of the proviso to Section 33(4) and not a defect of substantial
character, so long as the candidate was above the minimum qualifying age of 25 years.

What is the effect when the candidate fails to give correct particular of Electoral Roll
Numbers (ERNs)?

Is it necessary to prepare the list of validly nominated candidates?

Preparation of List of Validly Nominated Candidates

Section 36(8) of the Act, provides that,—

“Immediately after all the nomination papers have been scrutinized and decisions accepting or
rejecting the same have been recorded, the Returning Officer shall prepare a list of validly
nominated candidates, that is to say, candidates whose nominations have been found valid, and
affix it to his notice board”.

Such list is prepared by the Returning Officer in Form 4 appended to the 1961-Rules and a
copy thereof is affixed on the notice board of his office. Under the instruction of the Election
Commission, the Returning Officer has to send a copy of the list to the Chief Electoral Officer
of the State by fastest means of communication. A copy of the list is also furnished to the
Election Commission for its record.

How the withdrawal of candidature is made? Is it irrevocable?

Withdrawal of Candidature

Every candidate who is validly nominated has been given right to reconsider, whether he wants
to contest election or not. Therefore, the law permits the withdrawal of candidature under
Section 37 of the Representation of the People Act, 1951, which envisages—

(1) Any candidate may withdraw his candidature by a notice in writing shall contain such
particulars as may be prescribed and shall be subscribed by him and delivered before three
o’clock in the afternoon on the day fixed under Clause (c) of Section 30 to the Returning Officer
either by such candidate in person or by his proposer, or election agent who has been authorised
in this behalf in writing by such candidate.

(2) No person who has given a notice of withdrawal of his candidature under sub-section (1)
shall be allowed to cancel the notice.

(3) The Returning Officer shall, on being satisfied as to the genuineness of a notice of
withdrawal and the identity of the person delivering it under sub-section (1), cause the notice
to be affixed in some conspicuous place in his office.

As Clause (1) says, any validly nominated candidate may withdraw his candidature by giving
a notice in writing to that effect upto 3.00 p.m. on the last date fixed for the withdrawal of
candidatures in the programme notification issued by the Election Commission. Such last date
for withdrawal of candidatures shall be the second day after the date of scrutiny of nominations
or, if that day is a public holiday, the next succeeding day which is not a public holiday. But
here law is silent as to the time upto which the candidatures may be withdrawn on any
intervening day. In this regard, the Election Commission has clarified that the withdrawal of
candidatures on these days can be made during the normal working hours of the office of the
Returning Officer, and not necessarily upto 3.00 p.m. on those days.

The notice for withdrawal of candidature must be given in writing and subscribed by the
candidate himself in Form 5 appended to the 1961-Rules.

Section 37(1) also provides that the following persons are authorised to submit notice of
withdrawal of candidature:
(a) candidate himself; or

(b) any one of his proposers; or

(c) his election agent.

Further, Section 37(1) also envisages that a notice of withdrawal of candidature must be
presented only in person by any of the above-mentioned persons and it cannot be sent or
communicated to the Returning Officer in any other manner.

Notice of Withdrawal Irrevocable

Section 37(2) says that, once a candidate has given a notice of withdrawal of candidature,
thereafter, he has no option or discretion to withdraw or cancel his notice. Therefore, once a
notice is given it is irrevocable.

Acceptance of Notice

Clause (3) of Section 37 provides that the Returning Officer shall accept the notice of
withdrawal of candidature, only when he is satisfied to the genuineness of the notice as well as
with regard to the identity of the person presenting the notice. Such satisfaction on the part of
the Returning Officer is necessary as if he accepts any fake notice, the name of the candidate
would be excluded from the list of the candidates, consequently such candidate would be
deprived of his right to contest election.

How does the Returning Officer prepare and publish the list of contesting candidates after the
expiry of the period of withdrwal of candidature?

Publication of list of Contesting Candidates

Section 38 of the Representation of the People Act, 1951 envisages that,—

(1) Immediately after the expiry of the period within which candidatures may be withdrawn
under sub-section (1) of Section 37, the Returning Officer shall prepare and publish in such
form and manner as may be prescribed a list of contesting candidates, that is to say, candidates
who were included in the list of validly nominated candidates and who have not withdrawn
their candidature within the said period.

(2) For the purpose of listing the names under sub-section (1), the candidates shall be classified
as follows, namely:—

(i) candidates of recognised political parties;

(ii) candidates of registered political parties other than those mentioned in clause (i);

(iii) other candidates.

(3) The categories mentioned in sub-section (2), shall be arranged in the order specified therein
and the names of candidates in each category shall be arranged in alphabetical order and the
addresses of the contesting candidates as given in the nomination papers together with such
other particulars as may be prescribed.

As this section says, after the expiry of the time permitted for the withdrawal of candidatures
at any election, the Returning Officer shall prepare the list of contesting candidates; i.e., the list
of those validly nominated candidates who have not withdrawn their candidatures.

Consequences of improper rejection and acceptance of a nomination paper.

Nomination and Grounds for Declaring Election to be Void

The High Court with respect to the nomination shall declare election void under Sections
100(1)(c) and 100(1)(d)(i) of the Representation of the People Act, 1951, on the following
grounds:—

(i) any nomination has been improperly rejected [Section 100(1)(c)]; or

(ii) the result of the election, in so far as it concerns a returned candidate, has been materially
affected by the improper acceptance of any nomination [Section 100(1)(d)(i)].