PROCEDURE OF ELECTION IN INDIA

PROCEDURE OF ELECTION IN INDIA

1.) Introduction: To conduct the election in India ‘Representative of the People Act’ has been passed by the Parliament on 25 October 1951. This act was passed by the Indian Provincial Parliament before first general elections. Basically, the act provides the actual conduct of elections in India. Furthermore, the act deals with details like qualifications and disqualifications of the members of Parliament (LokSabha and RajyaSabha) and the State Legislatures (State Legislative Assembly and State Legislative Council). In this act, the mode of conduct of elections is highlighted in detail. Part V of the Representation of the people Act, 1951 is ‘Conduct of Elections’  which has eight Chapters from Sections 30 to 78 of the Act.

2.) Valid Nomination of Candidate: A nomination is an official suggestion of someone as a candidate in an election or for a job.A nomination is offering oneself as a candidate for any elective office and the person must be qualified and must not be disqualified under the Constitution or any other statute. He must fulfill the qualification for membership of Parliament and State Legislature under the provisions of the Constitution and the law. If the person is found suffering from any disqualification his candidature will be rejected while the scrutiny of nomination. According to the existing law and practice, there is a total period of ‘eight days’ for filling nomination from the date of notification calling the election and the last date of nominations, both dates inclusive and no nomination can be filed on any intervening public holiday, during this period of eight days.

3.) Forms of Nomination: The candidate, for election to any House of Parliament or of a State Legislature, has to file a form prescribed in 1961 rules. The relevant forms appended to the 1961 rules can be either in English or in any of the language used for official purposes of the State. In case of no availability of officially printed form, the handwritten, typewritten or primary printed copies of forms can be used and the election commission permits it.

‘The House of the People’ Form 2A is used for the nomination of election of the House of the People from any Parliamentary Constituency of India.

‘The Council of States’ Form 2C is applicable to the candidate to file nomination for an election to the Council of States.

‘State Legislative Assembly’ – Form 2B is applicable to the candidate to file nomination for State Legislative other than the states of Jammu and Kashmir and Sikkim.

4.) Candidate and Proposers: Every proposer to the nomination of a candidate must be an elector registered in the same constituency, whereas, it is not compulsory for candidate to be an elector from the same constituency. Even though the government servant is prohibited from contesting in the election to a Parliament or a State Legislature he can be proposer to the candidate. Initially in Section 33(1) of 1951 Act, previously there was only one proposer for the candidate to the nomination of a candidate for an election but it was later amended in August 1996 prescribing one proposer from the recognized political party and independent candidate through the amendment under section 33(1) of 1951 Act.

5.) Security Deposit: Previously every candidate had to pay duly nominated fee whichwas Rs. 500/- for House of People and Rs. 250/- for Council of States. After amendment it became as follows-

  • Rs. 25000/- for House of People
  • Rs. 10000/-for Council of States

But when the candidate belongs to Scheduled Caste or Scheduled Tribes for all elections, irrespective of General Constituency or Reserved Constituency, he has to make 50 per cent of the amount of security deposit. The mode of payment of security deposit by candidate can be in two forms, either in cash, or, the payment shall be made in government treasury. The cash payment is done to the Returning Officer at the time of delivery of his nomination paper. Another kind of payment,is made in RBI or in government treasury. A receipt is issued by the bank, or in this behalf must be enclosed with the nomination paper. The payment through chequeis not accepted.

6.) Scrutiny of Nomination Paper: After filing of the nomination papers by the candidates, the next stage is scrutiny of nomination papers. These are the following points for the scrutiny of nominations =

  • The scrutiny is done by Returning Officer immediately after last date of nominations. But when the next day is public holiday then the scrutiny of nominations will take place after next day provided, it again is not a public holiday.
  • The Returning officer scrutinizes the nomination papers and it cannot be delegated to Assistant Returning Officer, unless he is prevented as per the section 22(2) of the RPA 1951.
  • The people presentat the scrutiny will have the right to have all reasonable facilities for examining the nomination papers of all the candidates.
  • These are the following objections that can be raised during the scrutiny of nominations-
  • It is not allowed to raise any flimsy or technical objections in regard to any nomination paper
  • The persons present should oppose any objection raised against your nomination on flimsy or technical ground.
  • Section 36(4) of the RPA, 1951, clearly lies down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
  • Rule 4 of the Conduct of Elections Rules, 1961, lays down that the failure to complete or; defect in completing a declaration regarding symbols in the nomination paper, is not a defect of substantial character.
  • When any objection is raised against the nomination paper. The candidate should try to impress upon the Returning Officer he should not reject any nomination paper on the ground of any defect which is not of a substantial character.
  • Rule 4 of the Conduct of Elections Rules ,1961 lays down the failure to complete or defect in competing a declaration regarding symbols in the nomination paper is not a defect of substantial character.
  • When any objection is raised against the nomination paper the candidate should try to impress upon the Returning Officer that he should not reject the nomination paper on any flimsy or technical ground.
  • Inform the Returning Officer that if he rejects any nomination paper on any such ground it will improper rejection.
  • Omission of age of the candidate in the nomination paper is a defectthat can lead to rejection of the nomination paper of the candidate.
  • Date, Time and Place: The date of scrutiny of nominations is notified by the Election Commission and the Returning Officer has no discretion to change the date of scrutiny of nominations. However the returning officer has the power to divide the time and the place of the scrutiny of nominations on the date fixed for the purpose.
  • Persons to be Present: According to the law any four persons in the case of each candidate may attend the place of scrutiny and they are:
  • Candidate himself
  • Candidate’s election agent
  • One proposer of the candidate
  • One other person authorized in writing by the candidate

7.) Grounds on Rejection of Nomination: The grounds to challenge by means of an election petition are covered by the provisions of Section 100 of the 1951 Act. Under section 100(1),the High Court is to declare the Election of a returned candidate void on any of the grounds mentioned below-

  • That the returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution.
  • That any corrupt practice has been committed by a returned candidate or his election agent or by any person with the consent of returned candidate or his election agent.
  • That any nomination has been improperly rejected.
  • That the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) By the improper acceptance or any nomination.

(ii) By any corrupt practice committed by him or his election agent.

(iii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void.

(iv) By any non compliance with provisions of the Constitution or of this Act or any rules or orders made under this Act.

In Section 100(2), the High Court may decide the election of the returned candidate is not void. In the leading case of ‘J.H Patel v. Subhan Khan’,the respondent was not allowed to raise a plea in support of the allegation that his nomination paper was improper and rejected by the returning officer. The nomination of the petitioner was rejected on the ground that he had not made and subscribed the requisite oath or affirmation within the time permissible. It was later realized during scrutiny that he was contesting from another constituency. He had taken oath from another constituency and therefore, his nomination should not be rejected when he took his plea before the High Court.The High Court held his nomination to have been improperly rejected by the returning office and declared the election of the returned candidate to be void. When the matter went in appeal, the Supreme Court observed that the petitioner before the High Court had deliberately not disclosed to the returning officer a fact which was within his personal knowledge and whereby he engineered the rejection of his nomination. The Supreme Court held that in these circumstances the said petitioner had not come to the court withthe clean hands and hence was not entitled to seek indulgence of court and could not be allowed to raise a new point in the election of the returned candidate.

8.) Withdrawal of Election Petition: No petition can be withdrawn at the conclusion of the trial and without the permission of the High Court. Withdrawal of election shall not be done without the permission of High Court under Section 109 of the Act. The procedure is given under Section 110 as follows-

(1) When there is more than one petitioner the election petition shall not be made without the consent of all petitioners.

(2) No application for withdrawal shall be granted if, in the opinion of the High Court such application has been induced by any bargain or consideration which ought not to be allowed.

(3) If the application is granted-

  • The petitioner shall be ordered to pay the costs of the respondents there, or the portion however the High Court may think fit.
  • Also, the High Court shall direct that notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify.
  • A person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Courtmay think fit.

9.) Counting of Votes: Chapter V of the Representative of People Act, 1951 deals with counting of votes from section 64 to 67 A. The procedure in the act is as follows-

Under Section 64 of the Act Determination of the total of number of voters who voted according to the voter’s list determined. The Reconciliation of ballots in the boxeswith the number of voters is done which should match with the total number of persons who cast ballots. Later the ballots are sorted by candidates. Then the counting is done. During the procedure the challenged ballots are kept aside. (Challenged votes are those which are considered invalid, may be, due to over vote, under vote, basically voter intention is unclear or the ballot is marked in such a way that it can be tracked to the voter. Then the statement of the vote or the results are compiled, signed, and transmitted to the local office before being transmitted to the regional or national level. No interruption is made in the process until the statement of the vote of the voting station is released and sent to the local office of the electoral management body. After the completion of the counting, all the electoral material is taken for the secure storage. According to section 66 results are declared. The Report of the result is given to concerned authority under section 67 of the Act. The Report is given by the returning officer to the appropriate authority or election commission.

10.) Publication of Election Results and Nomination: The Chapter VII of the Act deals with ‘Publication of Election Results and Nominations’ from the sections 71 to 75 of the Act 1951. Section 71 of the Act says Publication of results of elections of the Council of States and of names of persons nominated by the President. After the elections held in any year in pursuance of the notifications issued under Section 12, there shall be notified by the appropriate authority in the Official Gazette the names of members elected of the electoral colleges for the various constituencies at the end of election together with the names of persons nominated by the President of States. Section 73 of the Act1951 discusses about Publication of General Elections to the House of the People and the State Legislative Assemblies and of names persons nominated.

References

Acts:

1. P.M. Bakshi, The Constitution of India ? Universal Publishing Company Ltd., 2014

2. The Representation of Peoples’ Act, 1950 (Bare Act), Universal Publishing Company

Ltd., 2014

3. The Representation of Peoples’ Act, 1951(Bare Act), Universal Publishing Company

Ltd., 2014

4. The Registration of Elector Rules, 1960(Bare Act), Universal Publishing Company

Ltd., 2014

5. The Conduct of Election Rules, 1961(Bare Act), Universal Publishing Company Ltd.,2014

Books:

1. V.S. Rama Devi & S.K. Mehendiratta, Election Law, Practice and Procedure,

Butterworths Publishers, 2013

2. P.C. Jain & Kiran Jain, Election Law and Practice, Chawla Publishers, 2012

Cases-

Subhan Khan vs J.H. Patel And OtherAIR 1996 Kant 167, 1995 (3) KarLJ 559

Websites:

1. http://aceproject.org/ace-en/topics/vc/vce/default

https://eci.gov.in/files/category/128-counting-of-votes/

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