Elections

Elections – Part XV – Article 324 to 329

Elections are pivotal for democratic governance, allowing citizens to influence officials and chart the nation’s trajectory.
They establish a vital two-way communication channel between voters and representatives, legitimize government
authority, and scrutinize its exercise.

Election Commission: Ensures free and fair elections

» The Election Commission of India is an autonomous constitutional authority
responsible for administering Union and State election processes in India
and the election for the office of President and Vice President.
» It ensures the participation of all eligible citizens in the electoral process in
an inclusive voter-centric and voter-friendly environment.

General Principles to conduct elections in India:

Article 325: Universal Suffrage

No Person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll-on grounds of religion, race,
caste, or sex or any of them.
» There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or
to the House of either House of the Legislature of a state and no person shall be ineligible for inclusion in any such
roll or claim to be included in any special electoral roll for any such constituency on grounds of religion, race, caste,
sex or any of them.
Suffrage: it is the right of the person that his opinion in a particular matter will be concerned. In an election suffrage is
opinion about the representative. But then it needs modalities to express the opinion. Those modalities along with the
opinion leads to exercise of right to vote.
Suffrage gives right to vote, but suffrage doesn’t mean right to vote.

Article 326: Adult Suffrage

Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage
» every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed and not
otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-
residence, unsoundness of mind, crime, or corrupt or illegal practice is to be registered as a voter in India.

NRIs and Right to Vote:

» NRIs can be registered in a special electoral roll called the overseas electoral roll based on the address mentioned in the valid passport.
(Sec 20A of the Representation of People Act 1950 by an amendment in 2010)
» Act requires NRIs to be present in India to cast their vote
» In 2021, ECI suggested ETPBS, but it is not in effect yet for 2024

Presently, only the following categories of voters are allowed to cast their votes through ETPBS:
1. Members of the Armed Forces on Duty
2. Central Armed Police Forces
3. Indian Embassies
4. Diplomatic Missions,
5. Media persons
6. Voters above 80 years or with disabilities
7. Voters under preventive detention

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Article 327: Power of Parliament to make provision with respect to elections to Legislatures
Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all
matters relating to, or in connection with,
» elections to either House of Parliament
» House or either House of the Legislature of a State
» preparation of electoral rolls
» delimitation of constituencies

and all other matters necessary for securing the due constitution of such House or Houses.
In this context the Parliament has passed the Representation of People Act, 1950 and Representation of People Act, 1951
and various Delimitation Commission Acts.

KEY FEATURES OF REPRESENTATION OF PEOPLE ACT, 1950

» The act provides for allocation of seats, delimitation of constituencies, officers related to conduct of elections,
preparation of electoral roll, and manner of filling of seats in the Council of States allotted to Union Territories. ­
» Allocation of Seats in Lok Sabha should be on the basis of population of the states as per the latest census figures. ­

Preparation of Electoral Rolls: The act allows those persons who are ordinary resident of that constituency to be in electoral roll of that
constituency. (Service Voters are provided with exceptions)

Officers related to Conduct of Elections:

» Chief Election Officer (CEO) will be nominated or designated by the ECI in each state in consultation with the state
government to supervise the election work in the State/UTs.
» District Election Officer (DEO) will be nominated or designated by the ECI in consultation with the state government.
She works under the overall superintendence or control of the CEO.
» Electoral Roll Officers (ERO) is responsible for preparation and revision of the electoral roll for the constituency.
» Returning Officer (RO) in each constituency is responsible for conduct of elections and returning one elected candidate.
She is also nominated or designated by the ECI.
» Electoral Roll Officers (ERO) is responsible for preparation of electoral roll for each constituency.

KEY FEATURES OF REPRESENTATION OF PEOPLE ACT, 1951

» The act regulates the actual conduct of elections and by-elections ­
» Qualification for Contesting Election in India
» Disqualifications for Membership of Parliament and State Legislatures
» Administrative machinery for the conduct of Elections ­Registration of Political Parties ­
» Voting

Disqualification
Section 8 of the Act provides the grounds on which a person is disqualified from contesting elections in case he/she has been convicted for
the following offences.

Charges filed under the Indian Penal Code

» Promoting enmity between different groups of people divided on the basis of caste, colour, religion, place of birth, etc. and disrupting
an environment of harmony
» Offense of bribery and undue influence or personation in elections respectively
» Offense of rape or Cruelty towards a woman by the husband or a relative of a husband
» making controversial and hate provoking statements related to religion, communities, or classes

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 Civil Rights offenses
» Promoting or preaching the traditional practice of ‘untouchability’ which is abolished completely under Article-17.
» Committing offences that are aforementioned and which contradict the Civil Rights Act, 1955.

Contravention of acts
» breach of the Dowry Prohibition Act, 1961 and the Commission of Sati (Prevention) Act, 1987.
» Action against the Prevention of Insults to National Honour Act, 1971- Demeanour of the Indian National Flag or Constitution or
halting singing of National Anthem
» Contravention of the Foreign Exchange (Regulation) Act, 1973.
» Laws pertaining to prevention of the practice of hoarding and adulteration of food and drug items

Terrorism and unlawful activities

» Promoting terrorism or committing disruptive activities, being a member of an unlawful association.

Imprisonment
» A person sentenced for two or more years of imprisonment is disqualified from the date of conviction till six years after the release.
» As per the guidelines issued by the Election Commission, even if such a person is on bail or waiting for the appeal to be heard, he or she
is still disqualified and thus prevented from contesting elections.

Corrupt practices
» person found guilty of corrupt practices in the office is left to be determined by the President
» person holding an office under the Government of India, if convicted for corruption or disloyalty towards the state

Failure in disclosure of Election Account Expenses

» candidate not lodging election expenses as required, without any reasonable justification, may be disqualified

Remedies Available Against Disqualified Person:

» Right to challenge the grounds of disqualification in their respective high court jurisdictions (can also be challenged in the form of
appeal at Supreme Court).
» Election results can also be challenged by signing an election petition if a voter or a candidate suspects some malpractices.
» Section 11 RPA, 1951 authorizes and empowers the Election Commission to remove or reduce any disqualification except the conviction
is held under section 8A(grounds of corrupt practices).
» Candidate disqualified under the section 8A may submit a petition of appeal to the President for removal of such conviction and
disqualification
» Disqualified legislator under ADL, 1985, like any other disqualified individual, is allowed to appeal the verdict in higher courts of
authority.

Article 328: Power of Legislature of a State

Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the
Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection
with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls
and all other matters necessary for securing the due constitution of such House or Houses.

No state till date has made any such laws.

Article 329: Bar to interference by courts in electoral matters

» Prohibits the court to interfere in delimitation exercise: The validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or
328, shall not be called in question in any court.
» Election petition to designated authority as per law: No election to either House of Parliament or to the House or
either House of the Legislature of a State shall be called in question except by an election petition presented to such
authority and in such manner as may be provided for by or under any law made by the appropriate legislation.

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 The role of the Election Commission of India ends with the declaration of results, that is once the Returning Officer has signed the final
result sheet (Form 20). After that, an election petition is the only legal remedy available to interested parties to challenge it.
Through an election petition, filed within 45 days from the date of the poll results, a voter or a candidate can challenge the result in the High
Court of the concerned state.

Grounds to file an election petition:

Under Section 100 of RP Act, 1951 an election Petition can be filed on the grounds that:
» On the day of the election, the winning candidate was not qualified to contest.
» The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice.
Section 123 of the RP Act has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to
vote or refrain from voting on grounds of religion, race, community, and language.
» Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
» Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote
which is void.
» Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.

Under Section 84 of RP Act, the petitioner may seek that the results of all or the winning candidates may be declared void. In addition to that,
the petitioner may also ask court to declare her or any other candidate as the winner or duly elected.

Article 324: Superintendence, Direction, and Control for election activities is vested in Election Commission.
1) Elections to
» Parliament
» Legislature of every State
» elections to the office of President
» elections to the office of Vice-President

2) Composition: Chief Election Commissioner and such number of other Election Commissioners as the President may
from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall,
subject to the provisions of any law made in that behalf by Parliament, be made by the President.

Logically the first election was conducted without any law, with One CEC (Sukumar Sen) and no ECs.
In 1991, Parliament made the law- Election Commission (Service of Election commissioners and conduct of business) Act
1991 = The Election Commission Act.

3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of
the Election Commission.

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 Pre 1991 Act Scenario Post 1991 Act Scenario

Composition Composition
1. Single member body 1. Three member body
2. 1989- CEC + 2 ECs 2. CEC + 2 ECs
3. 1990 – again single member body

Is ECI an independent body?

Power Power
1. CEC – Judge of SC 1. Equal Power to CEC and ECs
2. ECs – Judge of HC 2. Decisions are taken:
3. ECs were subordinate to CEC, hence CEC decision was final » unanimously,
» based on majority
» casting vote

4) Regional Commissioners
For election activities of ECI, the President may also appoint after consultation with the Election Commission such
Regional Commissioner as he may consider necessary to assist the Election Commission.

5) Conditions of service and tenure shall be such as the President may by rule determine:
» Chief Election Commissioner removal to be similar to Judge of Supreme Court
» conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
» Any Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation
of the Chief Election Commissioner.

324 intends to make an independent election commission

}
New Law - THE CHIEF ELECTION
COMMISSIONER AND OTHER ELECTION
COMMISSIONERS (APPOINTMENT,
CONDITIONS OF SERVICE AND TERM
OF OFFICE) ACT, 2023

THE CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS (APPOINTMENT,

CONDITIONS OF SERVICE AND TERM OF OFFICE) ACT, 2023
The legislation aims to bring transparency to the appointment process of the commission, as per the directive from the
Supreme Court of India in the Anoop Baranwal v Union of India case, 2023.

Features:
» Replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business)
Act, 1991.
» CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee.
» Selection Committee - Prime Minister, a Union Cabinet Minister (Nominated by Prime Minister), and the Leader of
Opposition/leader of the largest opposition party in Lok Sabha.
» Appointment stands valid even when there is a vacancy in this Committee.
» Search Committee headed by the Minister of Law and Justice with two secretary level officers will propose a panel of

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 names to the Selection Committee.
» Eligibility for the Commissioner posts includes holding (or having held) a post equivalent to the Secretary to the
central government.
» Salary and conditions of service of the CEC and ECs will be equivalent to that of the Supreme Court Judge.
» Safeguards CEC and ECs from legal proceedings related to actions taken during their tenure, provided such actions
were carried out in the discharge of official duties.

Challenges:
1. Transparency and Independence
2. Executive Control over Judicial Benchmark
3. Disparity between Commissioners
4. Limiting Eligibility to Civil Servants

Power and Functions of ECI:

1. Superintendents, directs and controls the entire process of conducting elections to Parliament and Legislature of
every State and to the offices of President and Vice-President of India.
• decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections.
• prepares electoral roll, issues Electronic Photo Identity Card (EPIC)
• decides on the location of polling stations, assignment of voters to the polling stations, location of counting
centres, arrangements to be made in and around polling stations and counting centres and all allied matters

ECI has Reservoir of Power:

» In Kanhiyalal Omar vs R.K. Trivedi, 1985 the SC held that Election symbol (Reservation and Allotment) order 1968 is
valid and well within the jurisdiction of the ECI.
» The Court said that Superintendence, direction and control are broad terms and can mean many things. Thus,
it summarised, the court shall give the widest possible meaning to these words, by following Principle of liberal
interpretation.
» The SC stated that ECI has unlimited power, i.e. these powers are not restricted by the executive, but is restricted by
constitutional provisions, valid electoral laws, judgments of the court and principle of natural justice. Thus, it is a
reservoir of power.

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2. It grants recognition to political parties & allot election symbols to them along with settling disputes related to it.

The Election Symbol (Reservation and Allotment) Order, 1968 - An order to provide specification, reservation, choices, and allotment of
symbols at elections in Parliamentary and Assembly constituencies, for recognition of political parties etc.

Political Parties:
Political Party can be stated as an association or body of individual citizens of India registered with the Election
Commission as a political party under Section 29A of the Representation of People’s Act, 1951.

Classification of Political Parties:

Recognized Political Parties- National Unrecognized Political Parties Remaining-Registered unrecognised Politi-
party or a state party cal parties (RuPPs)

Currently, there are around 2,598 registered political parties, eight national parties and 50 state parties.

Recognition as a State Party:

Any of the following 5 criteria:
Seat and Vote: Only seat: Only votes:
1. 6 % vote in LA + 2 Members 3. Max of (3 % seats or 3 seats) in LA 5. 8 % votes in LS or LA
2. 6 % votes LS + 1 Member 4. Max of (4% seats or 1 seat) in LS

Recognition as a National Party:

Seat and Vote: Only seat: State criteria:

1. 6% votes in at least 4 states (LS or LA) + 4 seats 2. 2% of the total number of seats in LS 3. State party in at least 4 states.
to LS (any state or states) from at least 4 states

Perks of being a recognised political Party

1. Exclusive right to usage of symbol: ensures that the election symbol of that party can’t be used by any other political
party in polls across India.
2. Get land/buildings from the government to set up their party offices in capital.
3. Two sets of electoral rolls free of cost by the Election Commission. In addition to this the candidates contesting on the
ticket of National or state party get a copy of the electoral roll free of cost during the general elections
4. Recognized ‘State’ and ‘National’ party requires only one proposer to file nomination.
5. Election will be countermanded if the candidate dies before election and after nomination
6. 40 star campaigners’ during the electioneering: The expenditure incurred on the travelling and other expenses of star
campaigners is not included in the election expenditure of the party candidate.
7. Free Air time i.e. time slot on the national and state television & Radio to address the people and convey their message
to the mass people.
8. Priority on ballot display
9. Proposal – State funding of election

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