Election laws, rules. procedures: India
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Booth preparation
Trial runs
From: April 20, 2019: The Times of India
See graphic, 'Before voting begins at any booth, election officials must conduct mock polls. EVMs and VVPATs undergo three tests'
Court judgements
A constituency cannot go unrepresented beyond a time limit HC
Swati Deshpande, Dec 13, 2023: The Times of India
MUMBAI: The High Court for directed the Election Commission of India (ECI) to immediately hold by-elections for a parliamentary constituency seat that fell vacant this March in Pune. It held as “unacceptable’’ the reasons cited by the ECI and Centre as its ‘difficulties’ in holding the Pune by-poll, and noted how by-polls were held in other States for vacancies that arose later.
No amount of administrative inconvenience can undermine the statutory obligation of the ECI to hold a by-poll, nor is it the concern of the Commission to decide the effectiveness of the candidate for the full or remaining term, observed the Bombay high court.
Citizens have a right to be represented and the vacancy cannot remain unfilled for over a year, said the HC. The by-poll is for a Pune Lok Sabha constituency following the demise of Member of Parliament (MP) Girish Bapat on March 29, 2023.
“The EC is charged with the duty to conduct poll,’’ said the HC division bench of Justices Gautam Patel and Kamal Khata noting there are only two exceptions when a by-poll cannot be held within a time limit.
Kushal Mor, counsel for the petitioner, said as a voter of the Constituency, he has a right to be represented in the Lok Sabha. Mor said the ECI has a legal obligation to conduct the polls in compliance with Section 151A of the Representation of Peoples Act (ROPA). But questioning a reply to his RTI pleas of why the by-poll can’t be conducted –including the short stint for a newly elected MP-- Joshi had approached the HC for orders to direct the ECI to conduct the by-poll.
The section specifies a time limit within which a by-poll must be held subject to two exceptions. One is if remaining term is less than a year. If duration between onset of vacancy and end of term of that particular seat is less than a year then election need not be held but no defence is taken under this provision, at all, the HC noted. Besides, the vacancy arose in March and next LS elections are in June 2024, the HC said.
The other exception is if the Centre certifies it is difficult to hold a by-poll within that period.
The reasons or difficulties cited by the ECI in a ‘certificate’ of practical reasons, against holding the by-poll were that the term for the returning candidate would be short and hence ineffective.
One of the reasons that “borders on the bizarre’’ the HC said was when it was “solemnly told that whole of the ECI machinery is far too busy since March 29, 2023 in preparation for general elections to the Lok Sabha to be bothered with a Pune by poll’’ for a parliamentary seat. “We are told this is a genuine difficulty. Which it is not,’’ said Justice Patel as he dictated the order in open court in a petition filed by Sughosh Joshi, a Pune resident and voter. “The word ‘difficult’ –in the relevant provisions under the Representation of People’s Act-- is not to be read in this manner to mean some administrative inconvenience,’’ said the HC.
“It is simply unthinkable…It will amount to sabotaging the entire democratic framework,’’ said the bench, hoping that this is not what the ECI wants.
The ECI represented by advocate Pradeep Rajgopal opposing the petition said it should be filed in the form of a PIL not a writ petition.
The HC said, circumstances where a law and order situation exists can lead to not holding of a by-poll, “but to say due to pre-occupation can't hold by-poll is wholly unacceptable.’’
“The certificate… in this case is decidedly peculiar,’’ the HC observed. It said two things, one that the returned candidate would have a short tenure. “ It is not for ECI to adopt a sliding scale…unthinkable that several months will go past and that an entire constituency be told that the constituency might as well wait for the next elections… That is an abdication of constitutional duties which we cannot possibly accept,’’ Justice Patel dictated in the order.
“The EC is not concerned with whether the returned candidate will or will not be effective in the remaining term left. The ECI cannot decide the effectiveness of the candidate in the remaining term or five years term. The fundamental concern is only the right to representation. It cannot let a constituency remain unrepresented beyond the prescribed period,’’ the HC held.
THE PUNE VACANCY
March 29, 2023: Vacancy in Pune LS Constituency
August 11, 2023: ECI and Central government correspond on difficulty in holding the bypoll
August 23, 2023: Certificate issued on difficulty in holding Pune by-election
OTHER BY-POLLS in 2023
HC order notes By-elections held elsewhere: Vacancy in Lakshadweep on January 11, 2023 for disqualification; by-poll notification issue on January 18, 2023; by-pol eventually withheld as Kerala HC suspended the disqualification April 13, 2023: by-poll notified for LS seat in Jalandhar; Election date May 10, 2023
October 13, 2013 by poll notified for Nagaland Assembly (1 AC); poll date November 7
August 10, 2023: by poll notified for 7 legislative Assemblies of Jharkhand, Tripura, Kerala, West Bengal, UP and Uttarakhand
WHAT High Court Said:
· Neither administrative pre-occupation nor burden on exchequer are reasons to refuse or not conduct a bypoll.
· In any Parliamentary democracy government is by the people. They are the voice of the people.
· If representative is no more another must be elected.
· The people cannot go unrepresented. That is wholly unconstitutional and is an anathema to our constitutional structure · This is the reason why the SC held that provisions of ROPA oblige authorities under it to ensure that no constituency remains unrepresented for an indefinite period
Power of the EC have never been held to be exempt from judicial scrutiny. They are not, in words of SC, unbridled. Judicial review is always permissible.
·Voters cannot be denied this right. This is a protection conferred by Statute
WHAT NEXT
ECI counsel Pradeep Rajgopal: The ECI will be going to the Supreme Court to challenge the HC order to hold the by-poll immediately.
Petitioner’s counsel Kushal Mor: We are hopeful that the ECI issues the by-poll notification at the earliest now, so that the democratic process is complied with.
Declarations by poll aspirants
Election can be set aside, in case of false declaration in the nomination paper: SC
Says Voters Have Fundamental Right To Know About Contestants' Antecedents
The Supreme Court ruled on Tuesday that voters had a fundamental right to know about the educational background of people contesting polls and that election of a candidate could be set aside for making false declaration on educational qualifications in the nomination paper.
The ruling came when a bench of Justice A R Dave and Justice L Nageswara Rao quashed the election of Manipur Congress MLA, Mairembam Prithviraj, for falsely declaring in his nomination papers that he had an MBA degree.
The court held that the right to vote would be meaningless unless citizens were well-informed about the antecedents of candidates, in cluding their educational qualification. It said all information about a candidate contesting elections must be available in public domain as exposure to public scrutiny was one of the surest means to cleanse the democratic governing system and have competent legislators.
“This court held that the voter has a fundamental right to information about the contesting candidates.The voter has the choice to decide whether he should cast a vote in favour of a person involved in a criminal ca se. He also has a right to decide whether holding of an educational qualification or holding of property is relevant for electing a person to be his representative,“ the bench said.
“It is clear from the law laid down by this court that every voter has a fundamental right to know about the educational qualification of a candidate. It is also clear from the provisions of the Representation of the People Act, Rules and form 26 that there is a duty cast on the candidates to give correct in formation about their educational qualifications,“ the bench said.
The Congress MLA contended that there was a “clerical error“ on the part of his lawyer and agent who had filed the nomination papers in 2012 and pleaded to the court not to quash his election as the defect was not of substantial nature. Prithviraj had mentioned in the nomination papers that he had passed MBA in 2004 from Mysore University .
The bench, however, rejected his plea saying the election result was materially affected by the false declaration and it had to be quashed. The court noted that he had made the false declaration in the 2008 assembly election as well.
“The contention of the appellant that the declaration relating to his educatio nal qualification in the affidavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, he was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in form 26 would amount to a false declaration.The said false declaration cannot be said to be a defect which is not substantial,“ the court said.
“It is no more res integra (issue not decided by court) that every candidate has to disclose his educational qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, he cannot be permitted to contend that the declaration is not of a substantial character,“ the bench added.
SC: Poll aspirants must reveal income sources of self, kin
In a landmark verdict aimed at bringing more transparency and curbing money power in elections, the Supreme Court on Friday ruled that a candidate would have to make public the source of his income along with that of his spouse and dependants.
Holding that voters have a fundamental right to know all the relevant information about the candidates including their sources of income, a bench of Justices J Chelameswar and S Abdul Nazeer directed the Centre to amend the Conduct of Election Rules and Form 26 to incorporate the provision on declaration of source of income. It also directed that the candidates would also have to provide information regarding contracts with any government agency or PSUs, either by them or spouse and dependants.
“The voter is entitled to have all relevant information about the candidates at an election. The information regarding the sources of income of the candidates and their associates would in our opinion, certainly help the voter to make an informed choice of the candidate to represent the constituency in the legislature. It is, therefore, a part of their fundamental right,” the bench said.
“The enforcement of such a fundamental right needs no statutory sanction. This court and the HCs are authorised by the Constitution to give directions to the state and its instrumentalities for enforcement of Fundamental Rights,” the apex court said.
‘Undesirable trends seen in first 50 years’
The SC said the experience of the first 50 years of the functioning of democracy in the country disclosed some undesirable trends that have crept into its working and it was necessary to deal with it on urgent basis to maintain purity of the electoral process.
The bench made it clear
that non-disclosure of the information by candidates wou- ld constitute a corrupt practice falling under heading undue influence as defined under the Representation of People Act, and the election of the candidate could be quashed if elected.
“We direct that Rule 4A of the RULES and Form 26 appended to the RULES shall be suitably amended, requiring candidates and their associates to declare their sources of income,” the bench said.
Candidates need declare only children’s assets: HC
Aamir Khan2, Candidates need declare only kids’ assets: HC, November 2, 2018: The Times of India
A candidate in his election affidavit is not required to give details of assets and liabilities of any other dependent except the children, a Delhi court held while discharging AAP MLA Som Dutt. A BJP candidate, who lost to Dutt in 2015, had accused the AAP legislator of not listing his parents as dependants in his election affidavit both in 2013 and 2015 and later claiming medical reimbursement in his parents’ names after becoming an MLA.
Additional chief metropolitan magistrate, Samar Vishal, has based his order on a provision of Representation of People Act, 1951. The provision states that a candidate has to declare his or her movable and immovable property, besides those of the spouse and dependent children only. The term dependent children is also defined under law as sons and daughters who have no separate means of earning and are wholly dependent on the elected candidate for their livelihood.
The complainant, Praveen Jain, had alleged that when Dutt was elected as an MLA, he applied for a medical facility card from the Delhi government and mentioned the names of his parents as dependants.
Jain said that Dutt on one hand had not shown his parents as dependants in the election affidavit and kept mum on their assets, but after election, he obtained the medical card that mentioned his parents as dependants while claiming medical reimbursement of Rs 3,421 from the Delhi government. It was therefore alleged that Dutt had cheated the Delhi government by claiming reimbursement.
Responding to the allegation of reimbursement, judge Vishal observed that the only reason Jain had alleged that Dutt’s parents were not dependent was that they were not shown as dependents in the election affidavit. “This does not seem to be a legally sustainable allegation. The accused was not legally bound to mention about the dependency of his parents in election affidavit,” said the court.
In the court’s view, the purpose of an affidavit and a medical card are different and the term dependency may connote different meanings in two different documents. It found no allegation where Jain claimed that Dutt’s parents are otherwise not dependent on him or had an income that would have disqualified the parents from being dependent. “The only basis of assailing their dependency as mentioned in the medical card was the election affidavit, which is not sufficient to come to the conclusion that the parents were not dependent..,” the court held.
Election symbols
For history and evolution, see India: A political history, 1947 onwards
Symbols and the law
A party that loses its recognition doesn't lose symbol immediately, Jan 9, 2017: The Times of India
Under which law are the political parties allotted symbols for contesting elections?
According to the Constitution, the superintendence, direction and control of elections to the Parliament as well as states assemblies are vested in the Election Commission of India (EC).Through the Election Symbols (Reservation and Allotment) Order, 1968, the EC provides for specification, reservation, choice and allotment of symbols in the elections.
How are parties allotted symbols?
The 1968 order states that different symbols are to be allotted to candidates contesting in parliamentary as well as assembly elections. For this purpose, symbols are classified as reserved and free. A reserved symbol is a symbol reserved for a recognised political party for exclusive allotment to the candidates put up by the party . Symbols other than the reserved ones are classified as free symbols. For this and other such issues, the EC classifies parties as recognised and unrecognised. A recognised political party is further classified as a national or state party.
How is a party recognised as state party?
A political party becomes eligible for recognition as a state party if in the last election to the state assembly the party got 6% of the valid votes and at least two of its candidates were elected to the assembly .Parties getting 3% of the total seats or at least three MLAs elected -whichever is more -also get recognised as state parties. Similarly , parties getting 6% of the valid votes in the last Lok Sabha election and getting at least one MP elected from the state, or a party that has got one MP elected per 25 contesting candidates from the state will also get recognised as a state party. A party that had won 8% or higher of the valid votes in the last state or Lok Sabha election held in the state is also recognised as a state party.
What are the conditions for recognition as national party?
To qualify as a national party , candidates of a party must have got more than 6% of valid votes in the last assembly or Lok Sabha election in four or more states, and in addition get at least four MPs elected from these states. Parties that have won at least 2% of the total seats in the Lok Sabha with candidates getting elected from at least three states also qualify as a na tional party . In addition, any party that is recognised as a state party in at least four states also qualifies as a national party .
What are the rules followed while allotting symbols to parties?
A candidate set up by a national party at any election will be allotted the symbol reserved for the party. Similarly , a candidate of a party recognised as a state party in any particular state will be allotted the symbol reserved for that party in all constituencies in that state.
Can a state party be allotted its reserved symbol in a state in which it is not recognised?
Yes, if a political party recognised as a state party in some state or states sets up a candidate in any other state or UT, it can be allotted the symbol reserved for it in its state of recognition provided that symbol is not reserved for any recognised state party in that state. It is, however, up to the EC to grant such permission if the commission doesn't have a reasonable ground for refusing such application.Because of this law, Samajwadi Party cannot contest election in Andhra Pradesh on the cycle symbol, as it is reserved for TDP in that state.
What if a party loses its recognition?
A party that loses its recognition doesn't lose its symbol immediately .A party that is unrecognised in the present election but was a recognised national or state party not earlier than six years from the date of notification of the election can be allotted its reserved symbol. The extension in the use of symbol doesn't mean the extension of other facilities provided to recognised parties like free time on Doordarshan AIR, free supply of copies of electoral rolls and so on.
What will happen in case of a split in a party?
In case of a split, it is up to the EC to decide which faction represents the original party. The decision of the commission is binding on all rival sections. It is to be noted that recognition should be given to a party only on the basis of its own performance in elections and not because it is a splinter group of some other recognised party .
How symbols are allotted
Oct 13, 2022: The Times of India
How does EC compile/update its list of notified free symbols?
■The Election Symbols (Reservation and Allotment) Order, 1968 provides for specification, reservation, choice and allotment of symbols to political parties or candidates in a parliamentary or assembly election. The EC, being the implementing authority of this order, has been notifying the list of poll symbols since the first general election, including those ‘reserved’ for exclusive use by candidates put up by recognised national and state parties and the ‘free’ ones allotted to candidates of registered unrecognised parties or independent contestants. All poll symbols are the property of the EC. Care is taken while preparing the list of free symbols so that they don’t resemble one another or a reserved symbol. Free symbols depict easily identifiable items that the voter, even if illiterate, can rely on to distinguish one candidate from another. The free symbols list — as last updated on September 23, 2021 — had 197 entries. The list is dynamic in the sense that some free symbols become reserved when a new party gets enough votes or is elected to get recognised at the state level. Also, when a recognised party loses the status of a state party, its reserved symbol is not touched for a minimum of six years.
Thereafter, the reserved symbol can be declared free. A new party can pick three symbols from the free list or propose a symbol not on the list. The EC evaluates the proposed symbol names and design to ensure that they do not bear resemblance to any other symbol. The symbols order also restricts allotment of a symbol reserved for a state party in states where it is not recognised; or one that has a religious or communal connotation.
Lastly, the EC had consciously decided in 1991 not to notify or allot any symbol that depicts an animal or bird after complaints were received about the animal being subjected to cruelty during campaigns. In 2005, the EC stopped allotting party names along religious/communal lines. This is why the EC denied two fresh symbols to the factions of Shiv Sena — ‘trishul’ and ‘mace’ — in view of their religious connotation.
What are reserved symbols and how often is this list reviewed?
■The reserved symbols are held only by recognised national and state parties. A state party recognised in one or more states is entitled to use its reserved symbol not only in those states but, in case it decides to contest from states where it is not recognised, it will have first right to its reserved symbol in that state. This is why the reserved symbol of a recognised state party is not allotted for use by candidates of other parties even in states where it is not recognised. Like the ‘free’ symbols list, the list of reserved symbols is dynamic, with a party retaining its reserved symbol as long as it fulfils conditions of recognition at the national or state level.
Are there broad dos and don’ts on what constitutes a symbol?
■The EC picks free symbols that are items of common use and have a distinct shape and form so that they can help a voter distinguish between one candidate from another in a ballot paper.
Also, the symbols order restricts allotment of symbols with a religious or communal connotation. Unrecognised or new parties and independents seeking to contest an election can either pick from the list of free symbols or propose three new ones. In the first case, they can give names of 10 symbols, in order of preference, from the list of free symbols notified in the order. Alternatively, they can propose three new symbols till three months before expiry of the assembly term, in order of preference.
Why are animals and birds etc off the list?
■Prior to March 1991, the EC had specified a number of birds and animals as election symbols. However, it was represented to the EC in the late 1980s that such birds and animals were being subjected to cruelty by candidates. In one case, it was reported that hundreds of pigeons were slaughtered at public meetings by parties and candidates contesting against the party with the ‘pigeon’ symbol. In March 1991, the EC took a policy decision not to specify any animal or bird as a poll symbol. The list of free symbols notified on March 5, 1991 thus deleted pigeon, eagle, horse, zebra, goat and fish from the list of symbols.
As for parties with reserved symbols depicting animals, the EC requested them to voluntarily surrender them. While All India Forward Bloc (having lion as its symbol) and Mizo National Front (with a tiger symbol) agreed to the EC’s request, BSP, AGP and Sikkim Sangram Parishad (all allotted ‘elephant’ as symbol) and Maharashtrawadi Gomantak Party and Hill State People’s Democratic Party (allotted ‘lion’ as symbol) refused to give up, arguing that these depicted big animals that could not be subjected to cruelty.
Can a party seek change in its ‘reserved’ symbol?
■Yes, there have been many such instances. Both Congress and BJP symbols have changed on account of splits and mergers. Like, the Congress symbol was ‘a pair of bullocks carrying yoke’ between 1952 and 1969; after Indira Gandhi launched her own faction INC(R), the symbol was changed to ‘cow with suckling calf’ even as the ‘original’ Congress retained the ‘bullocks carrying yoke’ symbol. The current Congress symbol, ‘palm’, was used first in 1977.
Similarly, Bharatiya Jana Sangh’s (BJS) original election symbol from 1951 to 1977 was ‘oil lamp’. After BJS merged with Janata Party in 1977, the symbol changed to ‘farmer with plough’. BJP’s current symbol, lotus, was allotted in 1980 when former Jana Sangh members split with Janata Party to form BJP.
Can a free and reserved symbol resemble each other?
■Not only can there not be any resemblance between a free and reserved symbol but also between any of the poll symbols, whether free or reserved. For instance, the ‘mace’ symbol sought by Sena’s Eknath Shinde faction was found too similar to a ‘spinning top’ and its other preference, the ‘sun (without rays)’ symbol, was similar to free symbols like apple, cabbage or football. The idea behind keeping poll symbols distinct from one another in shape, size and form is to avoid any confusion in the mind of the voter when he/ she looks at the ballot paper.
Electronic Voting Machines (EVMs)
A Short History
Baijayant `Jay' Panda, A Short History Of EVMs , April 12, 2017: The Times of India
They are to paper ballots what motor vehicles are to horse drawn buggies
Alleging vote fraud through tampering of Electronic Voting Machines (EVMs) is a time-honoured tradition by losing candidates and parties in India. This tradition began right from the very first instance of the use of EVMs, when the Election Commission (EC) tried out a pilot project during the Kerala assembly elections in 1982.
In fact, Communist Party of India (CPI) candidate Sivan Pillai challenged the use of EVMs even before the election could be held, but the Kerala high court did not entertain him. However, the fun was only just beginning since Pillai, despite his apprehensions, ended up winning.
Thereupon it was the turn of the losing Congress party to challenge the use of EVMs and Pillai's victory , setting in motion a practice that has since become de rigueur for any self-respecting loser of an Indian election. Not all losing candidates go to court against EVMs, of course, but it has almost come to be considered bad form if the loser does not at least hold a press conference to denigrate them.
Ironically, in that first instance Congress actually prevailed. Though the HC turned down its argument that the Representation of the People Act (1951) and Conduct of Election Rules (1961) did not provide for EVMs, on appeal the Supreme Court then ruled in its favour in 1984.
In the resultant re-election conducted with traditional paper ballots, its candidate beat Pillai. Although of course that by itself was no proof against the veracity of EVMs, it has remained a beacon of hope for election losers over the decades.
In any event the 1984 SC ruling against EVMs had been on a legal technicality , and not about their fundamental suitability. That flaw was corrected by a 1988 amendment to the RoP Act, providing the legal framework for use of EVMs. In yet another ironic twist of history that was passed by a Parliament dominated by Congress, the only beneficiary of EVMs being set aside in favour of paper ballots.
The incorporation of machines, technology and automation for electoral voting goes back to at least 1892, when the first “lever voting machine“ was used in New York, after decades of relying on paper ballots. Punch-card voting machines were introduced in the US in the 1960s, and were still in use in Florida four decades later, when their malfunctioning helped make the 2000 presidential election controversial. The US also saw the first EVMs introduced in 1975.
Automation helps improve the efficiency and speed of voting and counting. But it is even more important in overcoming fraud, as well as aiding the crucial democratic requirement of secret ballots, both aspects being much more vulnerable in manual voting. Those, and the huge logistical challenges of paper ballots, were exactly the reasons why India's EC pushed for EVMs, after widespread malpractices in the 1970s.
Democracy in India has made much progress over the decades, with the rest of the world going from being cynical about its survival, to now treating it as a triumphant role model. And since at least the era of TN Seshan in the early 1990s, the EC has arguably become our most respected institution, not to mention helping several other nations run their elections better. EVMs have played a significant role in this transition, which has seen a drastic reduction in voting malpractices.
Those who demand a rollback to paper ballots are wrong, and forget why we moved on from them. After all, despite the real risks of road accidents, we don't abandon motor vehicles and go back to horse drawn carriages. Instead, we implement safety measures like speed limits, seat belts and helmets.
Of course, no technology is infallible, and credible allegations of EVM tampe ring must be taken seriously . Fortunately, the EC does. In 2009, it conducted a highly publicised exercise, asking petitioners to demonstrate tampering. None could.
Similarly , the Delhi HC in 2004 and Karnataka HC in 2005 had rejected petitions challenging EVMs, after exami ning scientific and technical experts.
In a case last month of an EVM allegedly yielding votes for only one party , the EC enquiry found that the allegation was untrue. Such quick responses by the EC to specific allegations, random audits, and public demonstrations are Uday Deb essential to reinforce EVMs' reliability.
But two aspects of EVMs in India remain works in progress that are important to further improve the electoral system. First, the EC's proposal to use “Totaliser“ machines to aggregate the vote counting of multiple EVMs has been stymied by litigation as well as the government's disagreement. This relates to the core of why secret ballots are crucial for democracy . Without it, voters at any particular booth stand the risk of being victimised for not voting for powerful interests.
Finally , a new generation of EVMs was developed in 2011 with a feature for Voter Verified Paper Audit Trail (VVPAT). As the name implies, these make it vastly easier to audit and verify the votes cast if challenged. After an SC judgment to deploy these EVMs by 2019, the EC has already commissioned 20,000 of them, and is awaiting funding for the rest.
That would take EVMs' trustworthi ness beyond reproach, but would sadly end 35 years of a gloriously entertaining tradition.
History, and court orders
When fear, anxiety and apprehension cloud the aspiration to gain the trust and votes of citizens to wrest back the reins of power during an unusually heated run-up to the high stakes general elections, it is but natural for some political leaders to see demons when there are none.
Someone wise had said politics and war made strange bed fellows. That is because victory at the hustings or in conflicts is the natural and sole consideration for any political or military alliance. But many a time, strategic and well calculated alliances go horribly wrong.
Though win and loss are two sides of the electoral coin, political parties attempt to keep a facesaving excuse alive even before votes are cast in case they taste defeat. Is attempt to discredit electronic voting machines (EVMs) one such excuse?
The Election Commission has deployed EVMs since 1998 by to register and compute votes. Prior to that, it was done through ballot papers. Often, the powerful, with money and muscle, pounded voters and ballots into submission through booth capturing.
Election petitions by defeated candidates before 1998 commonly listed booth capturing as the ground to allege electoral malpractice and seek annulment of the election. After 1998, many election petitions alleged tampering of EVMs.
EVMs had a humble beginning. Scientists of Bharat Electronics Ltd had initially developed these machines to weed out malpractices genetically present in conduct of trade union elections.
When these machines passed the tests in trade union elections with flying colours, it got the EC thinking about using them in general elections. It approached BEL to design EVMs suitable for Lok Sabha and assembly polls.
Alleged susceptibility of EVMs to tampering have been at the core of numerous challenges in courts. The Madras HC in AIADMK vs EC (April 10, 2001) had said, “There is no question of introducing any virus or bugs for the reason that the EVMs cannot be compared to personal computers. The programming in computers, as suggested, has no bearing with EVMs. The computer would have inherent limitations having connections through internet and by their very design, they may allow
alteration of the programmes, but the EVMs are independent units and the programme in EVM is entirely a different system.”
The Karnataka HC in Michael B Fernandes vs C K Jaffer Sharief (February 5, 2004) had said, “EVMs have been put in use in the last general elections and in the last assembly election in UP and other states. The practical wealth of experience has dispelled abundantly the theoretical unfounded apprehensions of the possible misuse. Cost-wise also, use of EVMs is economical. Traditional manual method involves huge cost towards printing shares and counting expenses.”
The Bombay HC in Banwarilal vs Vilas Muttemwar (October 21, 2005) had said, “Next question is whether EVMs were susceptible for rigging nd whether rigging could have been done by using devices which could be operated from a remote distance, and without actual access to either the strong room or to the EVMs?”
The election petitioner had produced two technical experts who attempted to demonstrate that EVMs were hackable. But the HC after examining the evidence said, “The evidence of the petitioner’s witnesses does not inspire any confidence to prove the fact that EVMs are temperable or, on facts, that those were tampered with.”
After several judicial scrutinies established non-hackable nature of EVMs, the SC in 2013 gave two judgments — one, on a PIL by People’s Union for Civil Liberties and the other on an appeal filed by Subramanian Swamy. It had, respectively, ordered EC to make provision for ‘none of the above’ (NOTA) option and voter verifiable paper audit trail (VVPAT) with EVMs, to give full meaning to voters’ freedom of expression and enhance sanctity of votes.
But some political parties continue to adopt an unusual practice. They do not utter a word of praise for EVMs when their candidates emerge victorious in a neck-toneck contest but refrain from casting aspersions on these machines. But when they lose or apprehend loss, they revert to their usual facesaving tactics of discrediting EVMs even before the vote is cast.
Such tactics, in a way, discredit the scientists who devised EVMs. For, the Karnataka high court in Michael B Fernandes case had recorded, “It has come in evidence of the witness that countries like Singapore, Malaysia and USA are interacting with BEL for supply of EVMs suitable for their election requirements.” What is worse about such discrediting tactics is that it tends to undermine the intelligence of voters and their choices exercised through EVMs.
Political parties will do well to remember what Winston Churchill had said in the House of Commons on October 41, 1944, “At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper… no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”
In Mohinder Singh Gill case [1978 (3) SCR 272], the SC had added its view to Churchill’s and said, “If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For ‘be you ever so high, the law is above you’.”
We suggest political parties to trust ‘the little, large Indians’ ability to walk into the little booths, and press a little button on the little machines to make their choice as to who should hold the reins of power. With EVMs having proved their mettle in election after election, political parties will do well to focus on their strengths than attempt resurrecting paper ballots, which were susceptible to booth capturing by the mighty.
1980: Supreme Court junked the first EVM experiment in Kerala
Ajoy Sinha Karpuram, April 28, 2024: The Indian Express
The Supreme Court on April 26 put the stamp of its unequivocal approval on electronic voting machines (EVMs). Forty years ago, when a voting machine was first used at the Parur Assembly constituency in Kerala, the court had set aside the election and ordered a repoll in 50 of the 85 polling stations.
In 1982, the Election Commission of India (ECI) announced that the machine would be used as a pilot project in 50 out of 84 polling stations in the Parur constituency during that year’s Assembly elections in Kerala. The central government had not sanctioned the use of the machines, but the ECI used its constitutional powers under Article 324, which gives it the power of “superintendence, direction, and control” over elections.
In the result declared on May 20, 1982, Sivan Pillai (CPI) beat Ambat Chacko Jose (Cong) by 123 votes. Pillai got 30,450 votes, 19,182 of which were cast using voting machines.
Jose challenged the result in the trial court, which upheld the validity of voting via machines, and the result of the election. Jose appealed to the Supreme Court, where a Bench comprising Justices Murtaza Fazal Ali, Appajee Varadarajan, and Ranganath Misra heard the case.
What top court said
The ECI argued that its powers under Article 324 would supersede any Act of Parliament, and if there was conflict between the law and the ECI’s powers, the law would yield to the Commission.
In response, Justice Fazal Ali would write, “This is a very attractive argument but on a closer scrutiny and deeper deliberation…it is not possible to read into Art. 324 such a wide and uncanalised power”. The Bench unanimously held that introducing voting machines was a legislative power that only Parliament and state legislatures could exercise (Articles 326 and 327), not the ECI.
The ECI also relied on Section 59 of The Representation of the People Act, 1951 and Rule 49 of The Conduct of Elections Rules, 1961. Section 59 says “votes shall be given by ballot in such manner as may be prescribed”, and Rule states the ECI can publish a notification to “direct that the method of voting by ballot shall be followed…at such polling stations as may be specified in the notification”.
However, the court held that the “manner as may be prescribed” was by using ballot paper, not voting machines. The court also held that the word ‘ballot’ in its “strict sense” would not include voting through voting machines, and noted that the Centre as a rule-making authority “was not prepared to switch over to the system of voting by machines”.
The court observed that “if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time”.
Aftermath of ruling
A byelection was held on May 22, 1984, which Jose won. But the idea of voting machines would not be abandoned.
In 1988, the election law was amended to insert Section 61A, which allowed the ECI to specify the constituencies where votes would be cast and recorded by voting machines.
A decade later, EVMs were used at 16 Assembly seats in Madhya Pradesh, Rajasthan, and Delhi. This was expanded to 46 Lok Sabha seats in 1999 and, in 2001, state elections in Tamil Nadu, Kerala, Puducherry, and West Bengal were entirely conducted using EVMs.
By the 2004 Lok Sabha election, EVMs had completely replaced ballot papers at all 543 seats.
Apprehensions vs. ECI’s rebuttals
From: Bharti Jain, EC plans presentation for oppn on ‘safe EVMs’ today, February 4, 2019: The Times of India
Having consistently reposed its faith in EVMs, the Election Commission, which will meet leaders of several opposition parties on Monday, will once again try and clear their misgivings and educate them on the safeguards that make these machines completely tamper-proof.
Sources said the commission will share a detailed presentation on EVMs with the opposition leaders, seeking to highlight the distinction between defective EVMs and tampering of EVMs.
According to an EC functionary, while 1-2% of EVMs on an average develop defects during polls and are replaced with fully functional units, no incident of EVM tampering has ever been detected or proved. The EC maintains that going back to ballot paper would be a retrograde step when technology was being used for most transactions. Also, when ballots were used, 2,000 invalid votes were recorded in each constituency on an average, vote stuffing was easy and gave candidates with muscle power undue advantage, and counting of ballots was prone to delay and errors.
“All such defective EVMs are promptly replaced with good machines. No wrong vote is ever recorded even in a defective EVM,” a senior officer said.
How safe is the Electronic Voting Machine in India
See graphic:
How safe is the Electronic Voting Machine in India?
Economics and profits of EVM manufacture
Even as opposition parties demand a return to ballot papers for the general election ahead, Electronics Corporation of India Limited (ECIL) — the manufacturer of EVMs — is set to record the highest revenue in its 53-year history.
Sources told TOI that apart from new orders for EVMs and VVPATs, the entire lot of old EVMs have been replaced with the M3 version, which has only added to ECIL’s revenue. In 2017-18 the gross turnover of ECIL was Rs 1,275 crore. In the 2018-19 financial year, the Election Commission gave orders worth Rs 1,800 crore for EVMs and VVPATs, which is likely to boost ECIL’s turnover to Rs 2,400 crore.
ECIL also makes electronic fuses for the Army, legacy military radios, jammers, and passive autocatalytic recombiner devices for nuclear power plants. The annual report of ECIL for 2017-18 says it has a target of Rs 1,800 crore in turnover in its MoU with the Department of Atomic Energy for 2018-19.
An ECIL official told TOI: “The bulk orders are for EVMs and VVPATs for the general and state elections to be held in 2019. Our turnover will touch Rs 2,600 crore this year. As the old machines are replaced with the new version the revenue has increased.”
Bharat Electronics Limited (BEL), Bangalore, is another major manufacturer of EVMs and VVPATs. Recently, BEL products were used in the Telangana assembly elections.
Rear Admiral Sanjay Chaubey (Retired), chairman and managing director of ECIL, sated in his report for the previous financial year: “The Company has augmented the manufacturing facility in terms of infrastructure and machinery to meet the current requirement of EVMs and VVPATs of ECI for the forthcoming General Elections as per schedule.”
VVPAT (Voter Verified Paper Audit Trail): An alternative?
Srinivasan Ramani, March 31, 2019: The Hindu
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some features
From: Srinivasan Ramani, March 31, 2019: The Hindu
Another level of verification
While the introduction of EVMs in place of paper ballots increased people's and parties' trust in the polling process, some parties, in October 2010, asked the Election Commission to bring in a mechanism to verify the votes cast
The EC delegated the issue to its technical committee to gather the design requirements for the VVPAT system
In 2011, the Electronics Corporation of India Limited and Bharat Electronics Limited designed a prototype and demonstrated it to the committee
Mock polls were held in such places as Cherrapunji, Ladakh, Thiruvananthapuram and Jaisalmer for a field trial of the VVPAT
In 2013, the Conduct of Elections Rules, 1961, were amended to use VVPATs along with EVMs
How will the Election Commission ensure a tamper-proof counting process in the coming Lok Sabha election?
The story so far: The Election Commission indicated to the Supreme Court on Friday that if the 50% Voter Verified Paper Audit Trail (VVPAT) slip verification is carried out, it will delay counting by six days. Twenty-one Opposition parties had moved the Supreme Court against the EC’s guideline that VVPAT counting would take place only in one polling station in each Assembly segment in the coming Lok Sabha election.
What is the VVPAT and how does it function?
The Voter Verifiable Paper Audit Trail device is an add-on connected to the Electronic Voting Machine. It allows voters to verify if their vote has indeed gone to the intended candidate by leaving a paper trail of the vote cast. After the voter casts his or her mandate by pressing a button related on the ballot machine (next to the symbol of the chosen party), the VVPAT connected to it prints a slip containing the poll symbol and the name of the candidate. The slip is visible to the voter from a glass case in the VVPAT for a total of seven seconds and the voter can verify if the mandate that s/he has cast has been registered correctly. After this time, it is cut and dropped into the drop box in the VVPAT and a beep is heard, indicating the vote has been recorded.
Prior to voting, the VVPAT unit is calibrated to ensure that the button pressed on the ballot unit of the EVM is reflected correctly on the printed slips by the VVPAT. The presence of the slips that correspond to voter choice on the EVM helps retain a paper trail for the votes and makes it possible for the returning officer to corroborate machine readings of the vote. The VVPAT machines can be accessed only by polling officers. The units are sealed and can be opened during counting by the returning officer if there’s a contingency. The VVPAT has been a universal presence in all EVMs in the Assembly elections from mid-2017. Only a few VVPAT machines are tallied to account for the accuracy of the EVM. Currently slips in one randomly chosen VVPAT machine per Assembly constituency are counted manually to tally with the EVM generated count. The EC has stated that VVPAT recounts have recorded 100% accuracy wherever it has been deployed in Assembly elections.
'Why is the VVPAT necessary?
The EC began to introduce EVMs on an experimental basis in 1998, and it was deployed across all State elections after 2001. EVMs have made a significant impact on Indian elections. Prior to the deployment of EVMs, elections were held with ballot papers. In some States, the election process was vitiated by rigging, stuffing of ballot boxes and intimidation of voters. Besides this, ballot paper-based voting resulted in the casting of a high number of invalid votes — voters wrongly registering their choices instead of placing seals, and so on.
The EVMs allowed for elimination of invalid votes as the voting process was made easier — registering the vote by pressing a button. It also allowed for a quicker and easier tallying of votes. Cumulatively, the tallying and elimination of invalid votes reduced the scope for human error. Secondly, the EVMs made it difficult to commit malpractices as they allowed for only five votes to be registered every minute, discouraging mass rigging of the scale that was seen in earlier days when ballot papers were used. That said, there have been questions raised about the security of the EVMs and whether they can be manipulated and tampered with. The EC has addressed the possibility of tampering by gradually introducing newer security and monitoring features, upgrading EVMs with technological features that allow for dynamic coding and time-stamping of operations on ballot units and later, features such as tamper-detection and self-diagnostics. Furthermore, there are administrative steps that prevent EVMs from being stolen and tampered with. The introduction of the VVPAT adds another layer of accountability to the electoral process. The recount rules out any EVM tampering, despite the safeguards, through an “insider fraud” by EC officials or EVM manufacturers.
What problems have been encountered?
In the initial phase of VVPAT implementation in the Lok Sabha by-elections in States such as Uttar Pradesh, Bihar and Maharashtra and the Assembly election in Karnataka, there was a high rate of failure of VVPAT machines due to manufacturing glitches. In the Lok Sabha by-elections in 2017, the rate of VVPAT replacement, owing to glitches, was more than 15%, higher than the acceptable rates of failure (1-2%). In Karnataka, the failure and replacement rate was 4.3%. Coincidentally, the failure rate of the EVM unit (excluding the VVPAT) was very low. These glitches also caused severe disruptions to polling. To account for failure rates, the EC has tried to provide back-up machines to allow for swift replacement. The EC admitted later that the machines had high failure rates owing to hardware issues that occurred during the transport of EVMs and their exposure to extreme weather conditions. It sought to correct these problems by repairing components related to the printing spool of the VVPAT machines. The deployment of many corrected machines in the Assembly elections held recently in Madhya Pradesh, Rajasthan and Chhattisgarh resulted in much reduced replacement rates (close to 2.5% in Madhya Pradesh and 1.9% in Chhattisgarh). This suggests that the EC is relatively better prepared to handle VVPAT-related glitches in the upcoming Lok Sabha election, where the VVPATs will be deployed in nearly 10.5 lakh polling stations nationwide.
Is the current rate of VVPAT recounts enough?
Political parties, primarily of the Opposition, have demanded a greater VVPAT recount than the one booth per Assembly/Lok Sabha constituency rule that is now in place. The EC responded to a plea by the Opposition parties in the Supreme Court that there was a need for 50% VVPAT recount, saying such an exercise would delay the counting by six days. Statistically speaking, it does not require a 50% sample to adequately match VVPAT tallies with those of EVMs. The Indian Statistical Institute, Kolkata, has presented a report on possible and appropriate VVPAT counts to the EC, in which it said a sample verification of 479 EVMs and VVPATs of a total 10.35 lakh machines would bring the level of confidence in the process to 99.9936%. The logic behind counting only one booth per constituency in each State stems from the understanding that there are nearly 10.35 lakh polling stations and 4,125 Assembly constituencies in the country.
By counting the slips in at least one VVPAT in each Assembly constituency, the EC argues, a relatively high sample size of the EVMs (0.5%) is verified. Critics have argued that this sample size is not enough to statistically select a potentially tampered EVM within a high confidence level and adjusting for a small margin of error (less than 2%) as the unit of selection must be EVMs in each State rather than the entire country as a whole. One suggestion, by the former bureaucrat Ashok Vardhan Shetty, is for adjusting the VVPAT counting process to factor in the size of the State, population of the constituency and turnout to account for a higher confidence level and a low margin of error. This would entail the certain tallying of more than one VVPAT per constituency, in fact close to 30 per constituency in smaller States and less than five per constituency for larger States. The Supreme Court has said the EC must increase the VVPAT count to more than the current number.
SC, 2019: Count VVPAT slips of 5 booths in each assembly seat
Dhananjay Mahapatra, April 9, 2019: The Times of India
From: Dhananjay Mahapatra, April 9, 2019: The Times of India
Order To EC Will Delay Results By Four Hours
With opposition parties persistently calling for an enhanced paper trail count, the Supreme Court on Monday ordered the Election Commission to increase by five times the number of EVMs
whose vote count must be matched with VVPAT slips in each assembly segment.
This could, on average, mean 35-40 VVPAT counts per parliamentary constituency, and delay results in elections by around four hours, raising the possibility of formal declaration of winners and losers coming late into the night of May 23 when counting of votes is scheduled.
Though leaders of 21 non-NDA parties failed to convince the SC of the need to count VVPAT slips of 50% of EVMs in the Lok Sabha elections, their counsel A M Singhvi could claim moral victory as he succeeded in getting the EC to change its procedure of counting VVPAT slips of one randomly selected EVM per assembly segment.
2019/ Biggest EVM-VVPAT mismatch was 34 votes
Bharti Jain, July 24, 2019: The Times of India
The largest difference in VVPAT and EVM count in the eight cases of mismatch found in the recent general elections was in Shillong parliamentary constituency of Meghalaya. Two polling stations for which VVPAT slips were matched with the EVM count in Shillong showed up anomalies, one amounting to four slips and the other 34 slips.
A polling station in Rajampet in Andhra Pradesh showed a mismatch of seven between the VVPAT and EVM counts. The EVM and VVPAT count did not throw up a perfect match in Shimla constituency where a polling station showed a difference of one vote. In Rajasthan, the EVM tally differed from the VVPAT count by one vote in a polling station each in Chittorgarh and Pali constituencies. Manipur reported two cases of mismatch between VVPAT and EVM count. A polling station in Inner Manipur showed a difference of one vote while another polling station in Outer Manipur showed a gap of two.
Election Commission officials, who are determined to examine reasons for the mismatches, are yet to get access to the said EVMs and VVPATs as state chief electoral officers are still obtaining a list of election petitions filed in the respective high courts.
“Our information so far is that no election petition has been filed challenging the result in constituencies where the eight cases of mismatch were found. So, we should get to examine the EVMs and VVPATs soon,” an EC functionary told TOI.
Preliminary assessment by the EC of the eight mismatches — which amounted to barely 0.0004% of the total 20,687 random EVMs for which VVPAT slips were counted and too minor to make any difference to the result — attributed them to human error.
An official explained that in Shillong, where VVPAT slips were 34 less than the EVM count, and even in Rajampet where the mismatch was of seven votes, the discrepancy was possibly due to failure on part of the presiding officer to delete mock poll data, notwithstanding EC’s repeated instructions to do so.
The officer added that while a recount was usually taken in the event of EVM count not tallying with the number of VVPAT slips, it was possible that the same was dispensed with as the candidate/ agents did not insist on it, knowing it would not alter the result.
As for the difference of 1-2 slips, it is suspected to be an outcome of bundling of VVPAT slips. “The bundled slips may still be counted as one in a recount,” an EC official said.
2024: SC attests to integrity of EVMs; ‘possibility of hacking unfounded’
Amit Anand Choudhary, April 27, 2024: The Times of India
,_SC_judgement,_April_2024.jpg)
From: Amit Anand Choudhary, April 27, 2024: The Times of India
NEW DELHI: Supreme Court dismissed doubts about hacking and manipulation of Electronic Voting Machines (EVMs), termed pleas for return to the paper ballot system as “foible and unsound” and rejected the prayer for giving voters physical access to VVPAT slips, and for 100% counting of paper slips.
The court was unequivocal in attesting to the integrity of the machines, saying the possibility of hacking or tampering with EVM to tutor/favour results was unfounded.
“Accordingly, the suspicion that EVMs can be configured/manipulated for repeated or wrong recording of vote(s) to favour a particular candidate should be rejected,” it said.The verdict marked a big blow to the high-wattage campaign against EVMs, especially since 2014 when BJP under Narendra Modi pulled off a stunning victory.
A bench of Justices Sanjiv Khanna and Dipankar Datta, however, passed directions to further strengthen the integrity of the system and ordered that like EVMs, the symbol loading units shall be sealed and secured after completion of symbol loading process in the VVPATs (Voter Verifiable Paper Audit Trail). It also granted an option to the runner-up and the candidate finishing third to get burnt memory/microcontroller in 5% of EVMs — control unit, ballot unit and VVPAT unit — per assembly constituency/assembly segment of a parliamentary constituency checked and verified after the announcement of results for any tampering.
The apex court examined threadbare the administrative and technical safeguards in EVMs and concluded that there was no substance in the allegations. “Repeated and persistent doubts and despair, even without supporting evidence, can have the contrarian impact of creating distrust. This can reduce citizen participation and confidence in elections, essential for a healthy and robust democracy. Unfounded challenges may actually reveal perceptions and predispositions, whereas this court, as an arbiter and adjudicator of disputes and challenges, must render decisions on facts based on evidence and data,” the bench said.
Noting that the microcontroller used in EVM had one-time programmable memory and was unalterable once burned, the bench said, “To us, it is apparent that a number of safeguards and protocols with stringent checks have been put in place. Data and figures do not indicate artifice and deceit. Reprogramming by flashing, even if we assume is remotely possible, is inhibited by the strict control and checks put in place. Imagination and suppositions should not lead us to hypothesise a wrongdoing without any basis or facts. The credibility of the EC and integrity of the electoral process earned over years cannot be chaffed and over-ridden by baroque contemplations and speculations.”
Noting the almost flawless data on functioning of EVMs and VVPATs, the bench said there was only one case of mismatch, that too because of human error in 2019 when data of the mock poll was not deleted in an EVM. It added that voters had a right to question the working of the system but they must exercise caution while doing so.
On the plea seeking 100% counting of VVPAT slips and right of voters to physical access to the slips, the bench said, “While we acknowledge the fundamental right of voters to ensure their vote is accurately recorded and counted, the same cannot be equated with the right to get physical access to the slips.” It said giving physical access to VVPAT slips to voters was “problematic and impractical which will lead to misuse, malpractices and disputes”.
“We are not inclined to modify the directions to increase the number of VVPAT undergoing slip count for several reasons. First, it will increase the time for counting and delay declaration of results. The manpower required would have to be doubled. Manual counting is prone to human errors and may lead to deliberate mischief. Manual intervention in counting can also create multiple charges of manipulation of results. Further, the data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting,” it said.
The bench, however, asked EC to explore the possibility of deploying machines to count VVPAT slips and also barcoding the symbols loaded in VVPATs which would be helpful in machine counting.
The court was also unambiguous in ruling out a return to paper ballot which was junked following allegations of largescale malpractices.
“We must reject as foible and unsound the submission to return to the ballot paper system. The weakness of the ballot paper system is well-known and documented. In the Indian context, keeping in view the vast size of the Indian electorate of nearly 97 crore, the number of candidates who contest the elections, the number of polling booths where voting is held, and the problems faced with ballot papers, we would be undoing the electoral reforms by directing reintroduction of ballot papers. EVMs offer significant advantages. They have effectively eliminated booth capturing by restricting the rate of vote casting to votes per minute, thereby prolonging the time needed and thus check insertion of bogus votes,” the bench said.
E-postal ballot (online voting)
Allowed for armed forces/ 2016
E-postal ballot allowed for armed forces, Oct 25 2016 : The Times of India
The government has amended electoral rules to allow postal ballots to be sent electronically to the armed forces personnel, cutting delays experienced with their two-way transmission through post.
This would mean that armed forces personnel can now download the blank postal ballot sent to them electronically , mark their preference and post the filled-up ballot back to their respective returning officers.Two-way electronic transmission was not recommended by the Election Commission for security and secrecy reasons.
The armed forces personnel serving in remote and border areas would be greatly benefited since the present system of two-way transmission of ballot paper by the postal services has not been able to meet the expectations of the service voters. The issue had earlier come up before the Supreme Court where it was pleaded that an effective mechanism be created for armed forces personnel and their families to exercise their right to vote easily.
Independent candidates
… need 10 proposers
An Independent Needs 10 Backers Before the candidate gets the votes, s/he has to first get a voter, or voters (as the case may be), of that constituency to endorse the candidature at the time of filing of nomination. Candidates for a recognised national or state party need only one proposer. But an Independent or a candidate from a registered unrecognised party needs 10 proposers. An Independent may even submit a nomination with more than 10 proposers. Candidates of a state party recognised in another state but not in the state concerned, too, must have 10 proposers
Manifestoes, promises
False promises
Rohan Dua, Don't promise the moon to voters: EC, Nov 01 2016 : The Times of India
The election commission has decided to crack down on parties that go overboard with their manifesto promises. Officials will soon start vetting manifestos for the 2017 assembly polls in Punjab and UP.
Punitive action could be as harsh as withdrawing a party's symbol if it promises the moon without giving an affidavit on a stamp paper to the commission.
The decision was taken at a meeting on September 23, according to an internal note accessed by TOI. “... it is expected that manifestos reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on promises which can be fulfilled,“ it reads.
In 2012, the Shiromani Akali Dal had promised laptops to class 12 students but later backtracked because of a Rs 1.25 lakh crore debt.
Parties cannot be stopped from making promises: SC, 2023
Oct 7, 2023: The Times of India
NEW DELHI: The Supreme Court on Friday said it could not control political parties from making all kinds of election-eve promises but decided to seek responses from Madhya Pradesh, Rajasthan, the Centre and the Election Commission on a PIL that alleged that irrational cash doles announced by chief ministers of poll-bound states were pushing these states into financial crises.
"Before elections, all kinds of promises are made. We can't control it," said a three-judge bench led by Chief Justice of India D Y Chandrachud when a PIL filed by Bhattulal Jain came up for hearing. Jain's counsel said that cash doles promised by the CM of Madhya Pradesh, which is facing financial constraints, would put the state in a precarious condition financially and the burden would be passed on to the taxpayers after the polls.
Unaware of Jain's recent unsuccessful attempt before the Madhya Pradesh high court on this issue, the CJI asked petitioner's counsel why he had approached the SC directly without moving the HC. The counsel then said that Rajasthan chief minister had also announced similar cash doles.
The bench then decided to issue notice to the two states, the Union government and the EC, and tagged the petition with the pending PIL of Ashwini Upadhyay, who has sought a direction to the EC to frame guidelines to rein in parties from making election-eve promises for irrational freebies without quantifying the cost of such promises to the exchequer and future burden on taxpayers.
Cash doles, as part of poll eve strategy or otherwise, is nothing new and it has been prevalent in states ruled by both NDA and opposition INDIA alliance parties.
Minimum age of candidates
SC: We do not have the power to change age limit
‘Can’t take call on min age to contest’
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: Why not change the age limit for contesting the Lok Sabha and assembly elections to 21 years from the stipulated 25 years, when the age of voting has been reduced from 21 years to 18 years?
On Monday, this question from a PIL by one Kumar Gaurav left a Supreme Court bench comprising Chief Justice K G Balakrishnan and justices R V Raveendran and Deepak Verma thinking for a while. But, it countered the petitioner by asking: “What is the hurry? Why not have some experience of politics before entering the fray?” Well the counsel for the petitioner was not to be deterred and said it was the people’s fundamental right to choose a profession and politics has become one. He said most of the countries around the world have reduced the age limit for people’s representatives to 18 years and India should follow suit.
The bench said: “But this would require amendments to several Articles of the Constitution which prescribe the age limit. Can the SC do it? We do not have powers to reduce the minimum age stipulated for persons to contest Lok Sabha or assembly elections.”
Minimum education qualification for contestants
SC disagrees
The Times of India, September 22, 2015
AmitAnand Choudhary
SC frowns on edu bar for Haryana poll
The Supreme Court expressed concern over recent laws framed by some state governments fixing minimum education qualification for people to contest local body elections and questioned its validity as it would bar majority of the population from the contest.
“Let's settle the issue as it would be followed across the country ,“ a bench of Justices J Chelameswar and A M Sapre said while hearing a plea questioning the validity of a law passed in Haryana mandating educational qualification -Class 10 for men, Class 8 for women and Class 5 for Dalits -for those contesting panchayat polls. Attorney general Mukul Rohatgi, appearing for the state, contend ed that it was a progressive law and the SC should not interfere. The bench then referred to Article 326 of the Constitution, which lays down the grounds for disqualification, and asked, “Can a legislature prescribe other ground for disqualification?
It needs to be examined.“
After a brief hearing, the bench said it would allow the election process if the state agreed to drop education qualification criteria and asked the AG to take instructions from the government.
Voter has right to know candidate’s qualification: SC
The Hindu, November 4, 2016
Every voter has a fundamental right to know the educational qualification of a candidate, who has a duty not to lie about his or her academic past, the Supreme Court has held.
“Every voter has a fundamental right to know about the educational qualification of a candidate. There is a duty cast on the candidates to give correct information about their educational qualifications,” a Bench of Justices Anil R. Dave and L. Nageswara Rao held in a recent judgment.
The verdict came on appeals filed by Mairembam Prithviraj alias Prithviraj Singh and Pukhrem Sharatchandra Singh against each other challenging the judgment of the Manipur High Court. The HC had declared as “void” the election of Mr. Prithviraj in the 2012 polls on an NCP ticket against Congress nominee Mr. Sharatchandra from the Moirang Assembly seat in Manipur. It was alleged that Mr. Prithviraj, in his nomination papers, had said he was an MBA, which was found to be incorrect.
Upholding the HC verdict, Justice Rao said the apex court was not “in dispute that the Appellant did not study MBA in Mysore University” and the plea that it was a “clerical error” could not be accepted. “Since 2008, the Appellant was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial ... ,” the judgment said.
Model Code of Conduct
Definition
What is covered under the Model Code of Conduct for elections?
What is the philosophy behind the Model Code of Conduct?
The Model Code of Conduct (MCC) is a consensus document. In other words, political parties have themselves agreed to keep their conduct during elections in check, and to work within the Code. The philosophy behind the MCC is that parties and candidates should show respect for their opponents, criticise their policies and programmes constructively, and not resort to mudslinging and personal attacks. The MCC is intended to help the poll campaign maintain high standards of public morality and provide a level playing field for all parties and candidates.
Adherence to the Code is most important for the government or party in power, because it is they who can skew the level playing field by taking decisions that can help them in the elections. At the time of the Lok Sabha elections, both the Union and state governments are covered under the MCC.
How has the MCC evolved over the years?
Kerala was the first state to adopt a code of conduct for elections. In 1960, ahead of the Assembly elections, the state administration prepared a draft code that covered important aspects of electioneering such as processions, political rallies, and speeches. The experiment was successful, and the Election Commission decided to emulate Kerala’s example and circulate the draft among all recognised parties and state governments for the Lok Sabha elections of 1962. However, it was only in 1974, just before the mid-term general elections, that the EC released a formal Model Code of Conduct. This Code was also circulated during parliamentary elections of 1977.
Until this time, the MCC was meant to guide the conduct of political parties and candidates only. However, on September 12, 1979, at a meeting of all political parties, the Commission was apprised of the misuse of official machinery by parties in power. The Commission was told that ruling parties monopolised public spaces, making it difficult for others to hold meetings. There were also examples of the party in power publishing advertisements at the cost of the public exchequer to influence voters. At this meeting, political parties urged the Commission to change the Code. So the EC, just before the 1979 Lok Sabha elections, released a revised Model Code with seven parts, with one part devoted to the party in power and what it could and could not do once elections were announced.
The MCC has been revised on several occasions since then. The last time this happened was in 2014, when the Commission introduced Part VIII on manifestos, pursuant to the directions of the Supreme Court.
Part I deals with general precepts of good behaviour expected from candidates and political parties. Parts II and III focus on public meetings and processions. Parts IV and V describe how political parties and candidates should conduct themselves on the day of polling and at the polling booths.
Part VI is about the authority appointed by the EC to receive complaints on violations of the MCC. Part VII is on the party in power.
The evolution of the code, till 2024 March
March 16, 2024: The Indian Express
The MCC is a consensus document. This means that political parties have themselves agreed to keep their conduct during elections in check, and to work within the Code. The philosophy behind the MCC is that parties and candidates should show respect for their opponents, criticise their policies and programmes constructively, and not resort to mudslinging and personal attacks.
The MCC forbids ministers (of the central and state governments) from using official machinery for election work and from combining official visits with electioneering. Advertisements extolling the work of the incumbent government using public money are to be avoided. The government cannot announce any financial grants, promise construction of roads or other facilities, and make any ad hoc appointments in government or public undertaking during the time the Code is in force. Ministers cannot enter any polling station or counting centre except in their capacity as a voter or a candidate.
MCC’s origin in Kerala
Kerala was the first state to adopt a code of conduct for elections. In 1960, ahead of the Assembly elections in the state, the administration prepared a draft code that covered important aspects of electioneering such as processions, political rallies, and speeches.
The experiment was successful, and the EC decided to emulate Kerala’s example and circulate the draft among all recognised parties and state governments for the Lok Sabha elections of 1962.
However, it was only in 1974, just before the mid-term general elections, that the EC released a formal MCC. It also set up bureaucratic bodies at the district level to oversee its implementation.
This Code was also circulated during parliamentary elections of 1977. Until this time, the MCC was meant to guide the conduct of political parties and candidates only.
However, on September 12, 1979, at a meeting of all political parties, the Commission was apprised of the misuse of official machinery by parties in power. The Commission was told that ruling parties monopolised public spaces, making it difficult for others to hold meetings. There were also examples of the party in power publishing advertisements at the cost of the public exchequer to influence voters. At this meeting, political parties urged the EC to change the Code.
So the EC, just before the 1979 Lok Sabha elections, released a revised Model Code with seven parts, with one part devoted to the party in power and what it could and could not do once elections were announced. The MCC has subsequently evolved as an integral part of conducting fair and free elections.
MCC’s evolution
The MCC has been revised on several occasions since then. The last time this happened was in 2014, when the Commission introduced Part VIII on manifestos, pursuant to the directions of the Supreme Court.
Part I deals with general precepts of good behaviour expected from candidates and political parties. Parts II and III focus on public meetings and processions. Parts IV and V describe how political parties and candidates should conduct themselves on the day of polling and at the polling booths.
Speaking at a conference on electoral reforms in Lucknow, in January 2011, then Chief Election Commissioner (CEC) SY Quraishi said that political parties must be credited with the development of the MCC. Quraishi said the MCC was “enforced not by law but by an agreement made to this effect by all political parties… [it] worked wonders as restrictions imposed under it are carried out by all governments and political systems without failure”.
Few days earlier, speaking at the valedictory function of the diamond jubilee celebrations of the ECI, the CEC had said the MCC was indispensable for ensuring “honest, free and fair elections”, and despite the fact that it had no statutory backing, it continued to be effective because it elicited the “moral sanction” of public opinion and had evolved virtually as a “moral code of conduct”.
Since 1991, the MCC has come to be seen as an integral part of elections, making the electoral contest democratic by ensuring that the party in power and those who staked claims to power would abide by it.
Criticism and challenges
In May 1990, the Goswami Committee on Electoral Reforms under the then law minister Dinesh Goswami made significant recommendations for reforms. Among these was the suggestion that the weakness of the MCC could be overcome by giving it statutory backing and making it enforceable through law.
The Goswami Committee suggested bringing certain areas within the ambit of electoral law and making their violation an electoral offence.
The government went on to propose an amendment to the Representation of People’s Act, 1951, to make the violation of some of the provisions of the MCC punishable. This Bill was, however, not passed.
Over the years, many have argued that the lack of legal enforcement would hinder the enforcement of the MCC.
However, it is also argued that the EC can enforce MCC through the powers it has. Clause 16(A) in the Election Symbols (Reservation and Allotment) Order, for example, gives the EC the power to suspend or withdraw recognition of a political party “for failing to observe the Model Code of Conduct or follow the lawful directions or instructions of the Commission”.
Court decisions
Election code is no bar for the government to execute court orders: HC
Ajay Sura, April 26, 2024: The Times of India
Chandigarh: Punjab and Haryana HC has made it clear that the model code of conduct issued by the Election Commission is not a bar for governments in complying with orders passed by the HC, reports Ajay Sura. The HC clarified this as a few appointments, to be made in compliance with court orders, had been halted by administrative heads of departments of states and Chandigarh UT, citing model code of conduct.
“Therefore, it has become necessary to clarify that no code of conduct issued by the EC can be permitted to stand in the way of execution of the orders of the HC,” it ruled.
Model code starts as soon as assembly is dissolved: EC
Bharti Jain, Model code as soon as assembly is dissolved: EC, September 28, 2018: The Times of India
Blow To KCR In Poll-Bound Telangana
In an order that will have immediate impact in poll-bound Telangana where CM K Chandrashekar Rao will be reduced to leading a lame-duck government, the Election Commission has directed that the model code of conduct will henceforth kick in soon after premature dissolution of a state assembly.
The purpose behind the EC’s direction, communicated on Thursday to the cabinet secretary and all states and Union Territories, is to discourage caretaker state governments and the Centre from taking policy decisions or announcing pre-poll sops.
Until now, the model code of conduct was applicable only from the announcement of the election schedule by the EC even in the event of early dissolution of a state assembly.
The commission said it was guided by the Supreme Court verdict in the S R Bommai case that a caretaker government should merely carry on day-to-day governance and desist from taking any policy decisions.
While the poll code has come into force in Telangana in the wake of the EC’s direction, it will not apply to other states due for assembly polls later this year.
EC: Poll code just applies to T’gana for now
The Election Commission, acting on information furnished to us by way of representations from political parties and media reports (purportedly about unfair advantage to party in power with respect to Telangana), has decided that model code of conduct should come into force as soon as an assembly is dissolved prematurely. The directions were sent to all states and UTs simply because these are now our standing instructions for all future cases of premature dissolution,” chief election commissioner O P Rawat told TOI.
While the poll code has come into force in Telangana in the wake of the EC’s direction, it will not apply to other states due for assembly polls later this year. “This is because accountability mechanism is in place in those states. Some of these state assemblies are also planning a winter session,” chief election commissioner O P Rawat said.
The EC on Thursday said prohibitions such as use of official resources for non-official purposes and combining of official visit with electioneering work etc shall apply to all ministers and other authorities of the caretaker state government or those visiting the poll-bound state.
Asked how the EC would enforce the code when polls are yet to be announced, Rawat said the commission, as part of its responsibility to ensure preparedness for the polls, reviewed matters and issued instructions to state-level poll authorities well before the announcement. The EC is in the midst of summary revision of electoral rolls in Telangana, which is due to be published on October 8. Assembly polls to Telangana and four other states — Madhya Pradesh, Chhattisgarh, Rajasthan and Mizoram — are expected to be announced after that.
Prevention of violation of election code of conduct
cVIGIL app(lication)
cVIGIL App enables citizens to lodge complaints about violations of the Model Code of Conduct.
The user-friendly App, available on both Android and IOS mobiles, helps citizens to upload live incidents by clicking photo or taking video with description of the instance of model code violation without having the rush to the office of the returning officer to lodge the complaint.
All the complaints lodged through the App are to be addressed in real time within 100 minutes by the officials concerned.
‘Sealing’ of illegal shops does not violate Code: Panel
Paras Singh, April 5, 2019: The Times of India
From: Paras Singh, April 5, 2019: The Times of India
Panel Cites 2007 Precedent To Continue Drive
The monitoring committee has strongly protested in Supreme Court against the efforts by government and local bodies to stall the sealing drive under the pretext of model code of conduct.
Though the three-member committee has recommended that eviction from residential premises be postponed till the polling is completed, it has requested the court to issue directions to the three municipal corporations, NDMC and DDA to carry on with the sealing drive in other cases without any break.
The committee members said that despite repeated directions, the local bodies are stalling sealing on one ground or another. “Supreme Court on December 6, 2018 ordered action against C-type tenements, but only partial action has been taken by north corporation. Taking the plea of model code of conduct, it has shown inability to take action and suspended all sealing actions,” the panel’s report in SC said.
On April 1, the SDMC additional commissioner (engineering) had passed a note for temporary suspension of sealing and demolition. The note cites instructions from MoHUA secretary claiming no action that “disrupts one’s livelihood, shelter and may lead to unnecessary politicisation” should be taken.
The panel’s report cites a similar situation had arisen before the municipal elections in 2007 wherein the state election commissioner advised local bodies to approach Supreme Court, which ordered continuation of the sealing drive.
In March 2007, Supreme Court ordered: “We find it surprising that instead of seeking directions from the court, MCD thought it appropriate to seek clarification, direction, advise from state election commissioner so far as our orders are concerned. It is most unfortunate that the statutory body is acting in such a manner. Elections are scheduled on April 5, 2007. Since Ram Navami falls on March 27, let the sealing process start from March 28.”
The then commissioner of unified MCD had pleaded that largescale displacement of workers, law and order problems and impression that a particular party is being targeted might vitiate the poll atmosphere.
The committee stated that it has consulted police and the additional commissioner informed it that operations can be taken up depending upon the area. There may be law and order problem in some areas, which can be sorted out.
“The government is keen on putting a full stop on sealing for so-called electoral gains. This amounts to contempt of court. Unauthorised construction has been going on and continues to go on unhampered and any such break would make matters worse,” the committee report added.
Model Code of Conduct: adjudicating violations
2019: Lok Sabha elections
From: May 7, 2019: The Times of India
See graphic:
EC’s decisions on some alleged violations of the Model Code of Conduct during the 2019: Lok Sabha elections
None of the above (NOTA)
2017: SC won't ban NOTA in Gujarat Rajya Sabha elections
Dhananjay Mahapatra, SC won't ban NOTA in Guj RS polls, August 4, 2017: The Times of India
`Option In RS Polls Since 2014, Cong Can't Challenge It When It Wishes'
The Supreme Court rejected Congress's plea for a stay on `none of the above' (NOTA) choice for MLAs in the polls to three Rajya Sabha seats from Gujarat on August 8, fuelling the party's concerns over desertions from its ranks.
The defection of six of its MLAs to BJP had forced Congress to herd the rest to Bengaluru to prevent further poaching and diminution of its vote value in the Rajya Sabha elections where it is contesting the third seat with senior party member Ahmed Patel, political secretary to party president Sonia Gandhi, as its candidate.
Congress had rushed to the SC as it realised that MLAs could use NOTA as their choice in the elections despite a party whip. Exercise of NOTA option will not attract disqualification of the MLA for disobeying the whip.
The party , through legal stalwarts Kapil Sibal, A M Singhvi and Vivek Tankha, made a valiant attempt to impress upon a bench of Justices Dipak Misra, Amitava Roy and A M Khanwilkar that employing NOTA in an indirect election like Rajya Sabha polls was unconstitutional and illegal.
“NOTA is a sure recipe for bribing MLAs in a close contest that is in store in Gujarat assembly when on August 8 it elects three members from among four in the fray for the council of states.Party whip to vote for a candidate can be successfully defied by MLAs, who have been bribed by opponent political parties, by choosing NOTA option,“ Sibal said.
The bench was unimpressed by the late challenge to NOTA in Rajya Sabha elections and refused to stay it.The Election Commission had decided to include NOTA option in Rajya Sabha polls in January 2014 based on a 2013 SC judgment, which had asked the poll panel to pro vide the choice of NOTA to voters in the Lok Sabha and assembly elections.
“So many elections have been held since January 2014, including Rajya Sabha polls, with NOTA as a choice.Why did Congress not challenge it in the last three years? You (Congress) cannot rush to the court challenging constitutional validity of NOTA in Rajya Sabha polls as and when it suits you. The January 2014 notification was not any state spe cific. It affected political parties across the board. And you all are politically conscious persons, why no one challenged it? We cannot grant any interim order staying use of NOTA in the coming elections. It is an issue that needs to be debated,“ the bench said.
The bench agreed to examine the constitutional issue raised by Congress. It asked the EC to file its response in two weeks and posted the matter for de tailed hearing on September 13, defeating the relief Congress had rushed to the SC on Wednesday . The EC, through senior advocate Ashok Desai, echoed the SC's view. “So many elections have taken place. Why did no one challenge it? Why has it suddenly dawned on the eve of elections in Gujarat that NOTA in Rajya Sabha polls is unconstitutional?“ he asked.
Congress's attempt to draw strength from BJP's appeal on Wednesday to the EC not to employ NOTA in the Gujarat elections did not bear fruit.
The NDA government strategically distanced itself from the controversy .
The bench asked attorney general K K Venugopal whether the Centre had anything to do with EC's decision to include NOTA option in Rajya Sabha polls. Venugopal said, “The Union government cannot have anything to say on EC's decision. That is the reason why I did not even get up to make submissions.“
…But It May Serve As Elixir in Direct Polls: SC/ 2018
Dhananjay Mahapatra, Nota not an option in Rajya Sabha election, August 22, 2018: The Times of India
But It May Serve As Elixir For Direct Polls: SC
The Supreme Court struck down the four-year-old ‘none of the above’ option in Rajya Sabha polls, saying Nota defeated the fairness in indirect elections, destroyed democratic values and served “the Satan of defection and corruption”.
“The introduction of Nota in indirect elections may on first glance tempt the intellect but on keen scrutiny, it falls to the ground, for it completely ignores the role of an elector in such an election and destroys democratic values,” ruled a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
The EC had introduced Nota option in Rajya Sabha polls in 2014, a year after the SC had ordered the commission to give this option to voters in direct polls to register their protest that none of the candidates in the fray were suitable to represent them in Lok Sabha or assemblies.
The CJI-led bench was in complete agreement with the 2013 SC judgment, which had ordered introduction of Nota in direct elections. Writing the judgment, the CJI said, “Option of Nota may serve as an elixir in direct elections but in respect of the election to Council of States, which is different, it will not only undermine the purity of democracy but also serve the Satan of defection and corruption.
“It can be said without a speck of doubt that the decision taken by the Election Commission as regards introduction of Nota in the election of the members to the Council of States also runs counter to what has been stated above. Nota will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder.”
Stressing that democracy gained strength from citizens’ trust in the purity, probity, integrity and rectitude of a electoral process, the bench said, “Such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces.”
The challenge to Nota in Rajya Sabha elections was brought to the SC by Gujarat Congress through Shailesh Manubhai Parmar on the eve of last year’s polls involving Congress general secretary Ahmed Patel as the party faced desertion of its MLAs and alleged poaching by BJP. However, the BJP-led NDA supported the petitioner in seeking disbanding of Nota in Rajya Sabha polls, which witnesses indirect elections as well as open ballot unlike secrecy of voting associated with Lok Sabha and assembly polls.
The bench said, “The idea (Nota) may look attractive but its practical application defeats the fairness ingrained in an indirect election. More so where the elector’s vote has value and the value of the vote is transferable.” It quashed all circulars issued by the EC introducing Nota in Rajya Sabha polls while allowing Parmar’s petition.
Holding that the EC went beyond the SC’s 2013 mandate in its ruling on Nota given in People’s Union for Civil Liberties judgment, the bench said, “The commission cannot be allowed to conceive of certain concepts of ideas or, for that matter, think of a different dimension which would not fit into the legal framework.”
NRI voters
2017: Only 24,000 register
Only 24,000 overseas Indians have registered as voters, Aug 13, 2017: The Times of India
NEW DELHI: A little over 24,000 overseas Indians, who are entitled to cast their ballot in India, have registered themselves as voters.
Now, in a bid to attract more such Indian citizens living abroad to become voters here, the Election Commission has launched a portal which allows them to register online.
The portal also has a long list of frequently asked questions to help people understand the procedure. While there are no estimates on the number of overseas Indians eligible to vote in India, only 24,348 have registered with the poll panel. Out of these, 23,556 are from Kerala, 364 from Punjab and 14 from Gujarat, according to the data provided by the Commission.
According to the 'Overseas Indian Voters' portal, an overseas elector is a person who is a citizen of India and who has not acquired citizenship of any other country. The portal can be accessed through the Election Commission website: eci.nic.in.
Such people are eligible to be registered as voters in the constituency in which their place of residence in India, as mentioned in their original Indian passport in which visa endorsement has been made, is located.
Once their name is registered as a voter, the election officials of the constituency concerned will inform the overseas Indian by post on his or latest address abroad. But, the portal clarifies, that overseas electors are not issued an election photo identity card as they are allowed to cast vote in an election in the constituency in person at the polling station on showing their original passport.
Data shows that only 10,000 to 12,000 NRIs have voted because they do not want to spend foreign currency to come to India and exercise their franchise. Now, things may change as the Union Cabinet had on August 2 cleared a proposal to extend proxy voting to overseas Indians by amending electoral laws. While NRIs and overseas Indians are free to cast their votes in constituencies where they are registered, according to the proposal, they would also be allowed to use the option of proxy, which as of now is only available to service personnel.
An expert committee in the Election Commission working on the issue had, in 2015, forwarded the legal framework to the law ministry to amend electoral laws to allow overseas Indians use proxy voting. But for every election, the overseas voters will have to name a new person as their proxy.
The bill to allow the new provision for overseas voters could not be introduced in the Monsoon session of Parliament which ended
One nation, one election
A history of the idea
1967, 1982
Bharti Jain, TNN, Sep 2, 2023: The Times of India
Since 2014, the proposal for simultaneous elections to Lok Sabha and all state assemblies has been raised by the PM and the President and examined by different stakeholders, including the Law Commission (in its draft report submitted in 2018); Niti Aayog; Election Commission; and parliamentary standing committee on law and justice (in a report submitted in December 2015). All of them have endorsed the concept of ‘one nation, one poll’, agreeing that frequent polls force the model code of conduct to apply in perpetuity, affecting governance and triggering policy paralysis, while also draining the exchequer and parties’ coffers
Other concerns flagged were the need to pass at least five constitutional amendments, difficulties in aligning parliamentary and state poll schedules, and arranging logistics like additional EVMs, funds and manpower
➤ Simultaneous polls were the norm until 1967, but the premature dissolution of some state assemblies in 1968 and 1969 and advancing of parliamentary polls to 1971 in the wake of split in Congress, upset the synchronicity. Parliamentary and state poll cycles became increasingly disjointed on account of factors such as premature dissolution, defections, splits and fledgling coalitions
➤ Before 2014, the ‘one nation, one poll’ concept was favoured by the EC (1982), the Law Commission under Justice B P Jeevan Reddy (1999), then PM A B Vajpayee (2003) and BJP leader L K Advani (2010)
➤ EC sources said the poll panel would require ‘sufficient lead time’ to plan for simultaneous polls. The lead time could run into months as additional EVMs and VVPATs would need to be procured and replaced every 15 years
➤ The Law Commission led by Justice B S Chauhan, in its draft report submitted in 2018, had endorsed simultaneous elections but conceded that this was not possible within the existing framework of the Constitution
➤ It was pointed out that amendments in ‘not less than’ five Articles of the Constitution — Articles 83, 85, 172, 174 and 356 — would be needed. Also the amendments would need to be ratified by at least 50% of states
RECOMMENDATIONS OF THE PARLIAMENTARY
STANDING COMMITTEE IN 2015
1 Holding of elections in two phases | Elections to some legislative assemblies could be held along with Lok Sabha and the remaining during the mid-term of Lok Sabha
2 Schedule of byelections | Byelections to all seats that become vacant during a year may be conducted together during a pre-determined time period
SUGGESTIONS OF EC
➤ Any ‘no-confidence motion’ against the government should necessarily include a ‘confidence motion’ in favour of a government to be headed by a named individual as the future PM and voting should take place for the two motions together
➤ If there is still a situation where dissolution of Lok Sabha cannot be avoided, then the following options can be considered 1 If the remainder of the LS term is not long (period to be specified), there could be a provision for the President to carry out administration of the country, on the aid and advice of a council of ministers to be appointed by him till the next House is constituted 2 If the remainder of the term is long (period to be specified), then fresh election may be held and the term of the House should be for the rest of what would have been the original term
LAW COMMISSION’S DRAFT REPORT IN 2018
➤ Advancing or postponing election in certain states, such that elections to all assemblies and Lok Sabha may be held together. This may involve holding state polls in two phases — first along with Lok Sabha polls and then midway through the life of the LS, by curtailing or extending terms of assemblies
➤ All elections due in a calendar year may be conducted together. The timing of such election should be conducive to all state legislatures involved and the Lok Sabha (if dissolved earlier) Hung House/Assembly | If the government cannot be formed due to lack of majority/hung assembly, an all-party meeting may be called to resolve the stalemate. If this fails, mid-term elections may be held, but the life of the elected LS/ assembly will only be remainder of the five-year term
Procedures
21 day gap between declaration of dates, issue of notification
The Election Commission may have explained the delay in announcement of Gujarat polls by citing a 2001assurance it had given the Supreme Court that there would be a maximum 21day gap between declaration of dates and issue of notification but the poll body had earlier maintained that this gap would not apply to multi-state, multi-phase elections. Responding to a petition submitted to the President last year alleging that the EC had violated this assurance with a nearly 50-day gap between simultaneous announcement of polls in four states and a UT -Assam, West Bengal, Tamil Nadu, Kerala and Puducherry -in 2016, the poll watchdog said the 21-day rule could not be enforced for a state poll, dates for which are announced simultaneously along with those for others as part of a larger round which involves multiple phases too. The schedule of the Kerala polls did not conform to the 21-day gap and was justified by the EC.
“The EC submitted that it was an established convention that assembly polls in states where there is not much of gap in expiry of assembly terms are clubbed,“ said an EC official. However, it added that it was not possible or prac tical to observe the 21day gap for all states that go to polls together,“ the EC officer said. The EC, however, took a different stand while dealing with dates for two states; ie Gujarat and Himachal Pradesh.
Chief election commissioner A K Joti had, while announcing Himachal dates last week, cited the 2001assurance to the SC to justify delinking Gujarat polls. CEC Joti also cited the ongoing flood relief in Gujarat as a reason.EC sources had later said it was not necessary that counting for the two states would be held on the same day .
“The EC submitted that it was an established convention that assembly polls in states where there is not much of a gap in expiry of assembly terms are clubbed.However, it added that it was not possible or practical to observe the 21-day gap for all states that go to polls together,“ said an EC officer.
Ex-CECs contacted by TOI -T S Krishnamurthy ,S Y Quraishi, H S Brahma and two who did not want to go on the record -agreed that the model code allowed ongoing projects, including those relating to flood relief, to proceed unhindered. “It is ridiculous to suggest that the model code will interfere with disaster relief. It also does not come in the way of rallies and visits by ministers... only that they are restrained from an nouncing any sops or new schemes,“ said Quraishi. He added, “I wish EC had not broken the convention of clubbing polls in states.“
Quraishi and two other CECs said the delayed announcement for Gujarat had disturbed the level playing field, allowing the ruling party to offer pre-poll sops. Brahma and Quraishi, however, insisted the voters were far too smart to be “influenced by this“.
When contacted, EC said while it has always strived to limit the gap between announcement and notification to less than 21 days, a longer model code of conduct in Tamil Nadu and Kerala last year was unavoidable. “Apart from being flood hit, Tamil Nadu had already announced the examination schedule in March-April and the state government made a formal request to EC to hold the polls in May . As Tamil Nadu shares a long border with Kerala, we could not have held polls in the two states separately ,“ deputy election commissioner Umesh Sinha said.
“As for Himachal, all parties had asked for polling by November 15, in a single phase.Considering Gujarat, we took into account the flood situation and the festival season. Since there was no compulsion to hold the Gujarat polls in November and also to keep gap between the announcement and the notification to within three weeks, we held back its announcement. Still, to ensure that the results in one state do not affect results in the other, we said polling in Gujarat would be held before counting in Himachal,“ said Sinha.
Qualifications Required for elected representatives
Educational qualifications not essential: HC
Saibal Sen, Dec 11, 2023: The Times of India
Kolkata : The Calcutta High Court has rejected a plea challenging the election of Bengal’s BJP MLA Swapan Majumdar, which called for the nullification of his victory on the grounds of alleged misrepresentation of educational qualifications in his election affidavit.
“At the end of the day, mere educational qualification is not one of the essential criteria which is required to be satisfied by a candidate to vote or be elected,” the HC ruled.
The court reiterated that educational qualification, “not being an essential criterion for getting elected”, cannot be deemed a “defect of substantial character”.
The plea was filed by Gopal Seth, the chairperson of Bongaon municipality. Seth asserted that the Election Commission had not addressed his complaint, which alleged that the school where Bongaon (South) MLA Majumdar claimed to have passed class 8 had no records supporting this information. Justice Sabyasachi Bhattacharyya, emphasising the significance of education, said, “In a country like ours, where the vast majority of people are uneducated if not illiterate, it is debatable whether educational qualification per se can be a test for the legitimacy of candidature of a person.”
The court highlighted that an uneducated electorate has the right to elect a representative, and the absence of a specific educational qualification should not be considered a substantial defect in the nomination process.
Justice Bhattacharyya’s order underscored that proving someone has faked their educational qualification requires more than the mere production of a document— a response to an RTI query by the school in this case.
“It is only a competent Criminal Court which upon proper trial and adduction of evidence can arrive at the finding that there is sufficient material to show that the private respondent practiced fraud on the ECI and the electorate,” he said.
Religion, caste, race, community
SC: Candidate using community to seek votes can be barred
The Supreme Court ruled that seeking votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent would be a corrupt electoral practice rendering the person open to disqualification.
The order, which some political and official sources felt would be of limited utility in a country teeming with parties appealing to regional, caste-based and community identities, widened the scope of Section 123(3) of the Representation of the People Act in order to “maintain the purity of the electoral process“.
In addition, the apex court sought to deal a body blow to communal politics by ruling a candidate could be disqualified if an appeal is made by any religious leader to his community to vote for him if it is established that such an appeal was made with the consent of the candidate. The existing provision under Section 123(3) provides for disqualification if a candidate or his agent or anyone appeals to voters in the name of the candidate's religion, caste, race, language or community . In 1961, its ambit was sought to be widened by striking off words like “systematic appeal“ in the name of religion, caste, community or language“: a caveat which, many felt, blunted its effectiveness. In the event, however, the change also failed to realise the avowed objective because its application was restricted only to the candidate who sought votes on the strength of “his“ religion, caste, race, language or community . The widely perceived lacuna has been addressed by the seven-judge Constitution bench by a four to three majority , banning candidates from seeking votes in the name of religion, language, caste and community irrespective of whether he highlights his own identity or that of his rival.
This means, a Hindu candidate would be disqualified if he, his agent or anyone with his or his agent's consent appealed to voters not to vote for his opponent because he is a Muslim or Christian and vice-versa. An offence would be deemed to be committed even if such an appeal is made not by the candidate himself or an agent in case it is established that the person making the pitch had acted with the consent of the aspirant.
However, establishing the consent of the candidate could prove a challenging task, felt EC officials, even as they pointed out that usual time consumed by a disqualification petition meant that such cases could linger without curtailing a legislator's term. The majority judgment authored by Justices Madan B Lokur and L N Rao, with which Chief Justice T Thakur and Justice S A Bobde concurred, said the purposive interpretation of Section 123(3) was required, as felt by Parliament, to place a strong check on corrupt practices based on an appeal on the ground of religion during election campaign or otherwise.
Writing the main judgment, Justice Lokur said: “The concerns which formed the ground for amending Section 123(3) of the Act have increased with the tremendous reach already available to a candidate through the print and electronic media and now with access to millions through the internet and social media as well as mobile phone technology.“
“Therefore, now, more than ever it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing even tempo of life,“ he said.
“There is no doubt in our mind that keeping in view the social context in which sub-section 3 of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the counsel for appellants, which, as he suggested should be limited to the candidate's religion or that of his rival candidates,“ the majority judgment said.
The court then summarised its view with a long paragraph: “For maintaining the purity of electoral process and not vitiating it, sub-section (3) of the RP Act, 1951, must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for the furtherance of the prospects of the elections of that candidate or for prejudicially affecting the election of any candidate on the ground of religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.“
Widening scope of S. 123(3) of Representation of People Act
`Could be tough to establish consent of any candidate', Jan 03 2017: The Times of India
The Supreme Co urt ruled that seeking votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent would be a corrupt electoral practice rendering the person open to disqualification.
The order, which some political and official sources felt would be of limited utility in a country teeming with parties appealing to regional, caste-based and community identities, widened the scope of Section 123(3) of the Representation of the People Act in order to “maintain the purity of the electoral process“.
In addition, the apex court sought to deal a body blow to communal politics by ruling a candidate could be disqualified if an appeal is made by any religious leader to his community to vote for him if it is established that such an appeal was made with the consent of the candidate. The existing provision under Section 123(3) provides for disqualification if a candidate or his agent or anyone appeals to voters in the name of the candidate's religion, caste, race, language or community . In 1961, its ambit was sought to be widened by striking off words like “systematic appeal“ in the name of religion, caste, community or language“: a caveat which, many felt, blunted its effectiveness. In the event, however, the change also failed to realise the avowed objective because its application was restricted only to the candidate who sought votes on the strength of “his“ religion, caste, race, language or community . The widely perceived lacuna has been addressed by the seven-judge Constitution bench by a four to three majority , banning candidates from seeking votes in the name of religion, language, caste and community irrespective of whether he highlights his own identity or that of his rival.
This means, a Hindu candidate would be disqualified if he, his agent or anyone with his or his agent's consent appealed to voters not to vote for his opponent because he is a Muslim or Christian and vice-versa. An offence would be deemed to be committed even if such an appeal is made not by the candidate himself or an agent in case it is established that the person making the pitch had acted with the consent of the aspirant.
However, establishing the consent of the candidate could prove a challenging task, felt EC officials, even as they pointed out that usual time consumed by a disqualification petition meant that such cases could linger without curtailing a legislator's term. The majority judgment authored by Justices Madan B Lokur and L N Rao, with which Chief Justice T Thakur and Justice S A Bobde concurred, said the purposive interpretation of Section 123(3) was required, as felt by Parliament, to place a strong check on corrupt practices based on an appeal on the ground of religion during election campaign or otherwise.
Writing the main judgment, Justice Lokur said: “The concerns which formed the ground for amending Section 123(3) of the Act have increased with the tremendous reach already available to a candidate through the print and electronic media and now with access to millions through the internet and social media as well as mobile phone technology.“
“Therefore, now, more than ever it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing even tempo of life,“ he said.
“There is no doubt in our mind that keeping in view the social context in which sub-section 3 of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the counsel for appellants, which, as he suggested should be limited to the candidate's religion or that of his rival candidates,“ the majority judgment said.
The court then summarised its view with a long paragraph: “For maintaining the purity of electoral process and not vitiating it, sub-section (3) of the RP Act, 1951, must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for the furtherance of the prospects of the elections of that candidate or for prejudicially affecting the election of any candidate on the ground of religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.“
Politicians cannot seek votes in name of caste, creed or religion: Supreme Court
Jan 2, 2017, The Times of India
HIGHLIGHTS
The Supreme Court barred politicians from seeking votes in the name of religion, caste or creed
The court gave a wider meaning to Section 123 of the Representation of People Act to stamp out the use of religion and community affiliation from elections.
Politicians are barred from seeking votes in the name of religion, caste or creed the Supreme Court ruled in a landmark judgment, ahead of crucial assembly polls+ in five states. The court also ruled that seeking votes in this manner will be deemed a corrupt practice and not permissible.
The court's bench said today by a 4:3 majority that elections are a secular exercise and that the relationship between people and whom they worship is an individual choice. Therefore, the state is forbidden to interfere in such an activity, the court said.
A 7-judge constitution bench passed the judgement in the Hindutva case+ after hearing arguments from various petitioners/respondents. The top court was examining a politically explosive question arising out of a plea filed in 1990. That question - Will a religious leader's appeal to his followers to vote for a particular political party amount to electoral malpractice under Section 123 of the Representation of People Act.
The court gave a wider meaning to Section 123 of the Representation of People Act to stamp out the use of religion and community affiliation from elections. Chief Justice T S Thakur, justices M B Lokur, S A Bobde and L N Rao favoured rooting out religion from election, while Justices A K Goel, U U Lalit and D Y Chandrachud were in a minority on the issue.
Representation of the People (RP) Act
Section 123(3): national symbols and emblems; corrupt practices
PTI |Supreme Court raises series of questions in debate on Hindutva judgment.Oct 20, 2016
Referring to the terms "national symbols" and "national emblem" in section 123(3) of the Representation of the People (RP) Act, a seven-judge Constitution bench [of the Supreme Court] headed by Chief Justice of India TS Thakur said nobody can be allowed to use them to garner votes in the elections.
"Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted," asked the bench.
"This is specifically proscribed under this provision," senior advocate Shyam Divan said.
The hearing also saw the bench observing that Parliament has consciously "widened" the scope of the term "corrupt practices" in the poll law to curb "separatist and communal" tendencies.
"What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of 'corrupt practices' to curb separatist and communal tendencies during elections," the bench said.
The bench then raised a hypothetical question and asked if a 'Sikh granthi' seeks votes for a particular Hindu candidate, can it be said that this appeal "falls foul" of the provision in question.
It may not amount to "corrupt practice" under the specific section of the RP Act, Divan responded.
He also said that the term "his religion", used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.
The court is examining the "scope and width" of section 123(3) of the RP Act which deals with electoral malpractices amounting to "corrupt practices", among other things.
The relevant section of the RP Act deals with "corrupt practices" and reads: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols..., for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" would amount to corrupt practices.
On Wednesday, the apex court asked whether non-contesting spiritual leaders or clerics can be held accountable for "corrupt practices" under electoral law for asking voters to vote for a particular party or candidate.
"How can a person, who himself has neither contested nor returned as a winning candidate, be tried for allegedly resorting to corrupt practices under the Representation of the People (RP) Act," it had asked.
Senior advocate Arvind Datar, appearing for Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the High Court, referred to section 123(3) of the Act and had said that corrupt practice can only be established if either the "candidate or his agent" seek votes on the name of religion.
If any other person, like late Bal Thackeray and late Pramod Mahajan in the present case, sought votes on these grounds, referred to in the RP Act, then there has to be the "consent" of the candidate, he told the bench.
The issue assumes significance as questions were raised on its 1995 verdict which held that vote in the name of "Hindutva/Hinduism" did not prejudicially affect any candidate, and since then three election petitions are pending on the subject in the apex court.
The apex court's three-judge bench in 1995 had held that "Hindutva/Hinduism is a way of life of the people in the sub-continent" and "is a state of mind".
The judgment was delivered in the case of Manohar Joshi versus N B Patil which was authored by Justice J S Verma who found that the statement by Joshi that the 'first Hindu State will be established in Maharashtra' did not amount to appeal on ground of religion".
The issue of interpretation of section 123(3) again arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges.
A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh's appeal in which the same question and interpretation of Section 123(3) was raised.
While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.
Thereafter, the five-judge bench had referred Singh's matter also to the Chief Justice for placing it before a seven-judge bench.
Security deposit
1951, 1996
From: April 2, 2019: The Times of India
See graphic:
The Security deposit for Lok Sabha elections, 1951, 1996
Speeches during campaigns
Make generic statements in campaigns: HC
January 10, 2020: The Times of India
NEW DELHI: Delhi high court said chief minister Arvind Kejriwal’s bribery-related remarks during the Goa assembly election campaign in 2017 had “specific imputations” that were “not appropriate.”
The court advised the CM to make generic statements while hearing the AAP leader’s plea challenging the Election Commission’s two orders of 2017. The first censured him for remarks with a warning that a repeat of the same would invite action against him and the party and the second where EC ordered lodging of an FIR against Kejriwal for his comments.
Justice Sanjeev Sachdeva, however, added that no court could say what would be a correct statement to be made during election campaigns, but can only adjudicate if a statement was wrong, after it has been made.
“There cannot be an endorsement from the court on what you can say. But don’t make a statement as specific as you made last time. There were some specific imputations in the statement which were inappropriate. Make a general statement that does not point a finger,” the court remarked before posting the matter for April.
During a series of rallies in Goa on January 7-8, 2017, Kejriwal had allegedly asked the voters to “accept money from Congress and BJP candidates, but vote for AAP” drawing the ire of the Election Commission. BJP had filed two complaints against the CM, seeking his prosecution under various IPC sections for asking voters to accept money. Congress, too, had condemned his statement.
The poll panel had then directed that a complaint be lodged against Kejriwal under the provisions of the Representation of the People Act, which deals with bribing voters, and relevant sections under IPC.
Supreme Court judgments
Apex court gave teeth to poll panel and punch to voters
Dhananjay Mahapatra
The Times of India 2013/07/15
The body constitutionally mandated to conduct free, fair polls—the Election Commission— [used to] work as an alter ego of the government. Status quo on the election front, which netas seldom contemplated changing, continued since the first elections in 1952 till 1991. Both situations – nondeclaration of assets and criminal antecedents and the EC’s role - turned on its head thanks to landmark judgments by the Supreme Court.
1952-2023: 11 important judgements
April 20, 2024: The Times of India
1952: Months before the first general elections, in Jan 1952, SC in the Ponnuswami case ruled that the word ‘election’ in Article 329 (b) of the Constitution “connotes the entire electoral process commencing with the issue of the notification calling the election and culminating in the declaration of result, and that the electoral process once started could not be interfered with at any intermediary stage by Courts”. As a result, an aggrieved candidate can challenge poll anomalies only through an election petition after declaration of results.
1971: When Congress split in1969 and factions headed by Jagjivan Ram and S Nijalingappa laid claim to the party name, Election Commission (EC) ruled in the Jagjivan Ram faction’s favour on finding that it enjoyed majority support of Congress MPs, MLAs and delegates.
Later, in the Sadiq Ali case (1971), SC upheld EC’s methodology: “...there were obvious difficulties in ascertaining who were the primary members and in ascertaining their wishes… It can be legitimately considered that members of All India Congress Committee and the delegates reflected by and large the views of the primary members.”
EC ruled on the recent splits in Shiv Sena and NCP on the same basis as it did in the Congress case of 1969. 1975: On June 12, 1975, Allahabad HC quashed PM Indira Gandhi’s election from Rae Bareli, leading to declaration of Emergency. During pendency of PM’s appeal in SC, Parliament passed Election Laws (Amendment) Act, 1975, changing several Representation of People (RP) Act provisions. Parliament also enacted the 39th Constitutional Amendment Act, barring courts from scrutinising elections of PM and Speaker. SC in Nov 1975 upheld Indira’s election, but partly struck down the 39th amendment Act, as far as it barred courts from entertaining election petitions against PM and Speaker.
1977/1995: In July 1977, SC in Narendra Kheni case ruled that no addition or deletion to a voter list could be carried out by a returning officer or EC after the last date for filing nominations.
Changes made after this date, it said, “must be visited with fatality”. In Mohinder Singh Gill (1977) and T N Seshan (1995) cases, SC reiterated EC’s supremacy in superintending the conduct of polls and the CEC’s captaining authority over the Commission.
2002/2004: The turn of the century saw SC deliver a slew of landmark decisions protecting and expanding voter rights. In 2002, in Unionof India vs Association for Democratic Reforms, it ruled that electors have a fundamental right to know the antecedents of candidates, including their criminal record, education level and wealth. SC said the right to be informed supplements the right to choose and it flows from the fundamental right to freedom of speech and expression.
The NDA govt brought a Bill and introduced Section 33B in RP Act to exempt candidates from declaring criminal antecedents. In 2004, SC struck down this provision as unconstitutional and mandated candidates to declare criminal cases pending against them, including FIRs.
July 2013: In Lily Thomas case, SC struck down Section 8(4) of RP Act that allowed MPs and MLAs to continue as legislators even after being convicted in corruption cases or sentenced to two or more years in other criminal cases, if they appealed in a higher forum within 90 days of the conviction. After SC’s ruling, disqualification kicks in automatically and a legislator can get back their seat if a higher forum stays conviction and sentence.
Sept 2013: In PUCL case, SC introduced none of the above (NOTA) option for voters, saying it was “extremely important” to let a voter “express his disapproval with the kind of candidates that are being put up by the political parties” as growing disapproval would gradually bring about “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”. NOTA has not fared well in elections.
Oct 2013: In Subramanian Swamy case, SC forced an initially reluctant EC to implement, in a phased manner, the introduction of voter verifiable paper audit trail (VVPAT) in EVMs. SC said, “We are satisfied that the ‘paper trail’ is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the ‘paper trail’. EVMs with VVPAT system ensure the accuracy of the voting system.”
2014: SC in Manoj Narula case advised PM and CMs not to make persons with criminal antecedents ministers, keeping in view their role in the council of ministers and the sanctity of the oath they take. “This is what the Constitution suggests and that is the constitutional expectation from the PM. Rest has to be left to the wisdom of the PM. We say nothing more, nothing less,” SC said.
RECENT IMPORTANT VERDICTS
EC Appointments
➤ On March 2, 2023, an SC constitution bench unanimously ruled that selection of CEC and ECs would be done by a 3-member panel comprising the PM, Leader of Opposition and CJI. Later in the year, govt passed an Act on appointment of CEC/ ECs that replaced CJI with a Union cabinet minister. On Jan 12, 2024, SC declined to stay the new law. Court refused to intervene in the selection of 2 ECs in March although it berated the govt for the ‘hurry’ in which the appointments were made.
Electoral Bonds
➤ On Feb 15, 2024, a 5-judge bench led by CJI D Y Chandrachud struck down the electoral bonds scheme providing anonymity to political donors as ‘unconstitutional’ and violative of voters’ right to information under Article 19(1)(a). Electoral bonds as a mode of poll funding were introduced in 2017. The judgment and court’s subsequent stern directions to State Bank of India led to EB data coming into public domain.
T N Seshan
The EC used to be pliant to commands of the government on fixing dates of election, blinking at electoral malpractices and and was also amenable to requests for postponing elections. Then, chief election commissioner T N Seshan gave details of government interference in the EC’s work in his petition to the Supreme Court in 1993. The judgment on his petition by a five-judge constitution bench in 1995 quotes Seshan’s charges against the Cngress party in detail.
S S Dhanoa vs Union of India
In the case S S Dhanoa vs Union of India [1991 (3) SCC 567], the Supreme Court said, “The Election Commission as envisaged by the Constitution is an independent institution and has to function as such. In the discharge of its duties and functions, it is not amenable to the control of any other body.”
Seshan realized the importance of the ruling and used it to convert the paper tiger in Election Commission into a roaring, biting one. Since the Dhanoa ruling, the EC has not looked back. It has discharged its duty of conducting free and fair elections.
Union of India vs Association for Democratic Reforms [2002]
But what is the use of free, fair election if voters do not have a chance to make an informed choice? That is, they were not informed about antecedents of the candidates. The court settled this issue in Union of India vs Association for Democratic Reforms [2002 (5) SCC 294] and directed every candidate to declare his educational qualification, wealth and criminal records.
The SC in the 2002 judgment said, “To maintain the purity of elections and to bring transparency in the process of election, the commission can ask the candidates about the expenditure incurred by the political parties and this transparency would include transparency of a candidate who seeks election or re-election.
“In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.”
The 2002 judgment did not go down well with politicians, who ganged up as a class against it. Emboldened by consensus at the all-party meeting, the government first issued an ordinance and later brought in a legislation which substantially weakened the apex court ruling. The new law said only those who get elected were to declare their assets and criminal antecedents and not every candidate.
Amendment quashed by SC in 2003
This amendment was quashed by the SC in March 2003. It said the amendment restricting declaration of assets and criminal antecedents only to successful candidate breached the right to information of voters, vital for them to make informed choices.
In a democracy, the Constitution becomes the source of dynamic lawmaking for the people’s representative sitting in Parliament or Assembly. For the higher judiciary, it becomes a source for dynamic scrutiny of the enacted law and its interpretation.
2013’s judgments The Representation of the People Act applying the disqualification guillotine to elected representatives the moment they get convicted for offences and awarded more than two years imprisonment were aimed at bringing more transparency to the electoral process.
But what about speeding up appeals against conviction? Should the man who loses his seat in Parliament or assembly because of conviction wait for years to prove his innocence? Should he be disentitled to the right to speedy justice? The second judgment debarring politicians from contesting elections merely on arrest is based on the simple logic that arrested persons are disentitled to vote. But the ground situation is not simple. In the absence of reforms in policing system, the police continues to be under the thumb of the ruling party, which before the commencement of the period for filing of poll nominations could order arrest of potential rivals on frivolous charges and tinker with the electoral mandate. We will need a little more clarity on these two issues arising out of the two judgments.
Powers of EC to decide on star campaigner status
Dhananjay Mahapatra, November 3, 2020: The Times of India
The Supreme Court expressed serious reservations over the Election Commission’s power to strip the member of a political party of the status of “star campaigner” and stayed the EC’s October 30 order divesting Congress functionary Kamal Nath of the status for bypolls to 28 Madhya Pradesh assembly seats.
A bench of chief justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian told the EC, “We are staying the order. You do not have the power. Where do you get the power to decide who should be the member of a political party to enjoy star campaigner status? We will examine the issue.”
The bench issued notice to the EC and sought its response to Nath’s petition. Appearing for the EC, senior advocate Rakesh Dwivedi said the petition had become infructuous as campaigning had ended and voting was scheduled for Tuesday. He said the EC took the decision under the model code of conduct which was in force during electioneering. Nath had moved the SC on Saturday seeking quashing of the EC’s October 30 order revoking his “star campaigner” status for Congress. In his writ petition, he termed the EC’s decision “arbitrary and illegal” and passed behind his back on the complaint of BJP.
He said though the EC had given notice to him alleging repeated violations of model code of conduct, the decision to revoke his “star campaigne” status was taken unilaterally by the commission without giving him a chance to explain the frivolity of the charges.
Unopposed winners, uncontested seats
SC: ‘EC can’t notify unopposed winners’
July 5, 2018: The Times of India
A day after the Supreme Court expressed shock on how 20,159 out of 58,692 seats went uncontested in the recent panchayat elections in West Bengal, the state election commission on Wednesday told the court that complains were filed in only 1750 of the uncontested seats, indicating that there was no foul play in the election process.
Senior advocate Amarendra Sharan, appearing for the state EC, placed all data related to the elections before a bench headed by Chief Justice Dipak Misra and contended that all complaints filed before the commission were examined and appropriate action taken.
Sharan informed the bench that percentage of uncontested seats where complaints had been filed was a minuscule 2.98 percent of the total number of seats. He said as per law, results had to be declared forthwith after only one person filed nomination paper in a constituency.
The bench, after a brief hearing, adjourned the case for August 6 and said its interim order restraining the EC from notifying the winners of uncontested seats will continue. It, however, made it clear that further orders would be passed on the next date of hearing.
The bench had on Tuesday expressed surprise on the number of seats that went uncontested in the panchayat polls.
“It is shocking that 16,860 gram panchayat seats went uncontested. This means Chapter IX of the Constitution (which created grassroots level democracy) is not working. Look at the alleged statistics on nocontest seats in Birbhum, Bankura, Murshidabad and Poorva Bardhaman districts. We cannot remain oblivious to the ground reality. In Birbhum, all zilla panchayat seats went uncontested. We can understand a small percentage... But it is puzzling when such a large number of seats witnessed no contest. The EC is the guardian under law to conduct... elections. The ground situation is vivid when so many seats go uncontested,” the court had said.
See also
Chief Election Commissioners Of India
Election laws, rules. procedures: India
Elections in India: behaviour and trends (2014)
Elections in India: behaviour and trends (historical)
