Election laws, rules. procedures: India

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Contents

Declarations by poll aspirants

Election can be set aside, in case of false declaration in the nomination paper: SC

AmitAnand Choudhary, Election of candidates can be set aside if they lie about education: SC, Nov 02 2016 : The Times of India


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

AmitAnand Choudhary, ‘It Is Voter’s Fundamental Right To Know’, February 17, 2018: The Times of India


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

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 .

Electronic Voting Machines (EVMs)

A Short History

Baijayant `Jay' Panda, A Short History Of EVMs , April 12, 2017: The Times of India

EVMs , India Today

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

Dhananjay Mahapatra, As election fever runs high, EVM is the favourite whipping boy, January 28, 2019: The Times of India


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.

Apprehensions vs. ECI’s rebuttals

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

How safe is the Electronic Voting Machine in India; The Times of India, March 17, 2017

See graphic:

How safe is the Electronic Voting Machine in India?

Economics and profits of EVM manufacture

U Sudhakar Reddy, 53 years on, EVM-maker set for record revenue before polls, January 29, 2019: The Times of India


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

Voter Verified Paper Audit Trail (VVPAT): history and
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

Lok Sabha constituencies that represent small populations will be subject to higher verification than those that represent a larger number of voters.
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.

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.

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.

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

Ritika Chopra, 2019 Lok Sabha polls: Decoding the Model Code of Conduct, March 13, 2019: The Indian Express


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.

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)

March 13, 2019: The Hindu


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

The Supreme Court-appointed monitoring committee has held that the ‘sealing’ of illegal shops does not violate the model code of conduct.
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.

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

Procedures

21 day gap between declaration of dates, issue of notification

Bharti Jain, EC takes a different stand for not announcing Gujarat polls, October 18, 2017: The Times of India

 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.

Religion, caste, race, community

SC: Candidate using community to seek votes can be barred

Dhananjay Mahapatra & AmitAnand Choudhary, SC: Candidate using religion, caste, race, community to seek votes can be barred, Jan 03 2017: The Times of India


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

The Security deposit for Lok Sabha elections, 1951, 1996
From: April 2, 2019: The Times of India


See graphic:

The Security deposit for Lok Sabha elections, 1951, 1996

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.

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.

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 Commission of India

Election expenditure: India

Election laws, rules. procedures: India

Election Museum: Delhi

Elections in India: behaviour and trends (2014)

Elections in India: behaviour and trends (historical)

Elections in India: exit polls

Elections in India: opinion polls

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