India is a sovereign, socialist, secular democratic republic. Democracy is one of the inalienable basic features of the Constitution of India and forms part of its basic structure (Kesavanand Bharati v State of Kerala and Others AIR 1973 SC 1461). The concept of democracy, as visualized by the Constitution, pre-supposes the representation of the people in Parliament and State Legislatures by the method of election (N P Punnuswami v Returning Officer Namakkal AIR 1952 SC 64). For democracy to survive rule of law must prevail and it is necessary that the best available men should be chosen as people’s representatives for proper governance of the country (Gadakh Yashwantrao Kankararao v Balasaheb Vikhepatil AIR 1994 SC 678). And for the best available men to be chosen as people’s representatives, elections must be free and fair and conducted in an atmosphere where the electors are able to exercise their franchise according to their own free will. Thus, free and fair elections form the bedrock of democracy.
India has adopted the British Westminster system of parliamentary form of government. We have an elected President, elected Vice-President, elected Parliament and elected State Legislature for every State. Now, we also have elected municipalities, panchayats and other local bodies. For ensuring free and fair elections to these offices and bodies, there are three pre-requisites: (1) an authority to conduct these elections, which should be insulated from political and executive interference, (2) set of laws which should govern the conduct of elections and in accordance whereof the authority charged with the responsibility of conducting these elections should hold them, and (3) a mechanism whereby all doubts and disputes arising in connection with these elections should be resolved.
The Constitution of India has paid due attention to all these imperatives and duly provided for all the three matters.
The Constitution has created an independent Election Commission of India in which vests the superintendence, direction and control of preparation of electoral rolls for, and conduct of elections to the offices of President and Vice-President of India and Parliament and State Legislatures (Article 324). A similar independent constitutional authority has been created for conduct of elections to municipalities, panchayats and other local bodies (Articles 243 K and 243 ZA).
The authority to enact laws for elections to the offices of President and Vice-President and to Parliament and State Legislatures has been reposed by the Constitution in Indian Parliament (Articles 71 and 327). Laws relating to conduct of elections to municipalities, panchayats and other local bodies are framed by the respective State Legislatures (Articles 243 K and 243 ZA). All doubts and disputes relating to the elections to the office of President and Vice-President are dealt with by the Supreme Court (Article 71), whereas the initial jurisdiction to deal with all doubts and disputes relating to the elections to Parliament and State Legislatures vests in the High Court of the State concerned, with a right of appeal to the Supreme Court (Article 329). The disputed matters relating to elections to municipalities, etc. are decided by the lower courts in accordance with the laws made by the respective State Governments.
The law relating to the elections to the offices of President and Vice-President of India has been enacted by Parliament in the form of Presidential and Vice-Presidential Elections Act 1952. This Act has been supplemented by the Presidential and Vice-Presidential Elections Rules 1974 and further supplemented by the Election Commission’s directions and instructions on all aspects.
Conduct of elections to Parliament and State Legislatures are governed by the provisions of two Acts, namely, Representation of the People Act 1950 and Representation of the People Act 1951.
Representation of the People Act 1950 deals mainly with the matters relating to the preparation and revision of electoral rolls. The provisions of this Act have been supplemented by detailed rules, Registration of Electors Rules 1960, made by the Central Government, in consultation with the Election Commission, under Section 28 of that Act and these rules deal with all the aspects of preparation of electoral rolls, their periodic revision and updating, inclusion of eligible names, exclusion of ineligible names, correction of particulars, etc. These rules also provide for the issue of electoral identity cards to registered electors bearing their photographs at the State cost. These rules also empower the Election Commission to prepare the photo electoral rolls containing photographs of electors, in addition to their other particulars. In exercise of these powers, the Commission is now preparing the electoral rolls for all parliamentary and assembly constituted in India with the photographs of electors containing therein, apart from the issue of individual identity cards to them.
All matters relating to the actual conduct of elections are governed by the provisions of the Representation of the People Act 1951 which have been supplemented by the Conduct of Elections Rules 1961 framed by the Central Government, in consultation with the Election Commission, under Section 169 of that Act. This Act and the rules make detailed provisions for all stages of the conduct of elections like the issue of writ notification calling the election, filing of nominations, scrutiny of nominations, withdrawal of candidatures, taking of poll, counting of votes and constitution of the Houses on the basis of the results so declared.
The superintendence, direction and control of elections vested by the Constitution in the Election Commission empowers the Commission even to make special orders and directions to deal with the situations for which the laws enacted by the Parliament make no provision or insufficient provision. The classic example of filling such vacuous area is the promulgation of the Election Symbols (Reservation and Allotment) Order 1968 which governs the matters relating to recognition of political parties at the National and State level, reservation of election symbols for them, resolution of disputes between splinter groups of such recognised parties, and allotment of symbols to all candidates at elections, etc.
Another such vacuous area where the Election Commission exercises its inherent powers under Article 324 of the Constitution is the enforcement of the Model Code of Conduct for guidance of political parties and candidates. The Model Code is a unique document evolved by the political parties themselves to govern their conduct during elections so as to ensure that a level playing field for all political parties is maintained during elections and, in particular, to curb the misuse of official power and official machinery by the ruling party(ies) to further the electoral prospects of their candidates.
All post election matters to resolve doubts and disputes arising out of or in connection with the elections are also dealt with in accordance with the provisions of the Representation of the People Act 1951. Under this Act, all such doubts and disputes can be raised before the High Court of the State concerned, but only after the election is over and not when the election process is still on.
The above mentioned Representation of the People Acts 1950 and 1951 and the Registration of Electors Rules 1960 and Conduct of Elections Rules 1961 form complete code on all matters relating to elections to both Houses of Parliament and State Legislatures. Any person aggrieved by any of the decisions of the Election Commission or the authorities functioning under it has to find a remedy in accordance with the provisions of these Acts and Rules.
These Acts and Rules enable the Election Commission to issue directions and instructions to deal with various aspects of the preparation/revision of electoral rolls and the conduct of elections and leave all such matters of detail to be dealt with by the Commission. Pursuant thereto, the Commission has issued a plethora of directions and instructions which have been consolidated by the Commission in various compendia and the handbooks for the Electoral Registration Officers, Returning Officers, Presiding Officers, candidates, polling agents and counting agents.
The laws enacted by Parliament and supplemented by the Rules and by the Commission’s directions and instructions there under have come for scrutiny of the Supreme Court in several important matters from time to time and a significant contribution to supplement those laws and to reform the electoral system have been made by the Apex Court. To give a few important examples, the Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner (AIR 1978 SC 851) laid down that the Election Commission, being a creature of the Constitution, can supplement the laws made by the Parliament wherever the enacted law did not make a sufficient provision to deal with a situation arising in the course of the conduct of elections in a vast democracy like ours. It is in the exercise of such powers, that the Commission is enforcing the Model Code of Conduct which is a unique contribution to the cause of free and fair elections by the political parties themselves. Again, in the case of People’s Union for Civil Liberties (AIR 2003 SC 2363), the Supreme Court mandated that every candidate contesting an election to Parliament or a State Legislature must furnish, on affidavit, all details with regard to his criminal antecedents, if any, his assets and liabilities as also of his spouse and dependent children, as well as his educational qualifications so that electors, the ultimate rulers in democracy, can make an informed choice while electing their representatives. Further, in the case of Resurgence India [LAWS(SC)-2013-9-35], the Supreme Court has recently laid down that if any candidate fails to furnish the requisite information in the abovementioned affidavit, dispute being reminded by the returning officer to do so, his nomination paper will be liable to be rejected by the returning officer at the time of scrutiny of his nomination papers. Another significant contribution to the election law made by the Supreme Court has come in the case of People’s Union for Civil Liberties[LAWS(SC)-2013-9-87], that a voter has a right to express his dis-satisfaction with all the candidates in the constituency and to caste a negative vote. To operationalise this judgment of the Supreme Court, the Election Commission has provided an additional button on the voting machines with the inscription ‘NOTA’ (None of the above) by pressing which the voter has a right to express that he does not wish to vote for any of the candidate. This enables the voters to express their desire in secrecy but the law does not say that if the number of votes recorded for the NOTA option is more than the highest number of votes recorded by any of the candidates, it will adversely affect his election. In yet another landmark judgment in the case of Dr. Subramanian Swamy [LAWS(SC)-2013-10-20], the Apex Court held that the Electronic Voting Machines should have the provision for Voter Verifiable Paper Audit Trail (VVPAT) so that when a voter cast his vote, a paper slip is printed showing the name and symbol of the candidate for whom he has recorded his vote. This will enable the voter to satisfy himself that the vote cast by him has been properly recorded and accounted for the candidate of his choice.
S. K. Mendiratta
Legal Advisor, Election Commission of India
Courtesy: Press Information Bureau (pib.nic.in)
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