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Electoral Process and Election Commission of India:

Conduct of Elections, Rules, Electoral Reforms.

Elections:

Enshrined in Part XV from Articles 324 to 329 in the Constitution.

The provisions are in relation to the electoral system practiced in India:
a. The Constitution under Article 324 talks about establishment of Election
Commission to conduct free and fair elections in the country. It further states that
the Election Commission has the power, superintendence and control to conduct
and direct elections of President, Vice-President, Parliament and state legislatures.
The Commission at present consists of 1 Chief election commissioner and 2
election commissioners.

Note: The elections of panchayats and municipalities are conducted by State

election commission.

b. The Constitution talks about establishing only one general electoral role for every
constituency for elections of both Parliament and state legislatures.
c. No person should be ineligible to participate in the elections and thus no person
can claim to be included on the basis of religion, race, caste, sex and so on.
d. The elections will be based on Adult Franchise and the elections to the Lok Sabha
and the state assemblies are to be on the basis of adult franchise. Thus, every
person who is a citizen of India and who is 18 years of age, is entitled to vote at the
election provided he is not disqualified under the provisions of the Constitution or
any law made by the appropriate legislature (Parliament or state legislature) on the
ground of non-residence, unsound mind, crime or corrupt or illegal practice.

Note: 61st Constitutional Amendment Act 1988 reduced the voting age from 21
years to 18 years in 1989.

e. Parliament and state legislatures respectively may make provision with respect to
all matters relating to elections to the Parliament and the state legislatures
including the preparation of electoral rolls, the delimitation of constituencies and all
other matters necessary for securing their due constitution.
f. The Constitution declares that the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies cannot be
questioned in any court. Consequently, the orders issued by the Delimitation
Commission become final and cannot be challenged in any court.
g. The Constitution lays down that no election to the Parliament or the state
legislature is to be questioned except by an election petition presented to such
authority and in such manner as provided by the appropriate legislature.

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Since 1966, the election petitions are triable by high courts alone. But the appellate
jurisdiction lies with the Supreme Court.

Article 323 B empowers the appropriate legislature (Parliament or state legislature) to

establish a tribunal for the adjudication of election disputes. It also provided for the
exclusion of the jurisdiction of all courts (except the special leave appeal jurisdiction of
the Supreme Court) in such disputes. So far, no such tribunal has been established.

In L. Chandra Kumar case (1997), Supreme Court declared this provision (present in
Clause 3rd of Article 323B) unconstitutional, meaning that if and when the election
tribunal is established, an appeal for its decision lie to the High Court.

Election Machinery:
Election Commission of India: Under Article 324, the Election Commission is
appointed as the supreme body who overlooks and supervises the conduct of
elections of Parliament, State legislatures, President, and the Vice President.
Chief Electoral Officer: As per Section 13A of Representation of People Act 1950
and Section 20 of Representation of People Act 1951, the Chief Electoral Officer is
appointed to supervise the election work in State/UT as per the superintendence
direction and control of the Election Commission of India.

The Chief Electoral Officer is appointed/nominated from the Office of State/UT

administration by the Election Commission after consultation with State/UT
administration.

District Election Officer: As per the Section 13AA of Representation of People Act
1950, the election work at the district is supervised by the District Election Officer as
the superintendence, direction, and control of the Election Commission.
The Officer is designated/nominated from the office of State Government by the
Election Commission after consultation with the State Govt.
Returning Officer: The Returning officer is responsible to conduct elections at the
respective Parliamentary/state assembly constituency as per the Section 21 of
Representation of People Act 1951.
The Election Commission of India nominates or designates an officer of the
Government or a local authority as the Returning Officer for each of the assembly
and parliamentary constituencies in consultation with the State Government/Union
Territory Administration. In addition, the Election Commission of India also appoints
one or more Assistant Returning Officers for each of the assembly and
parliamentary constituencies to assist the Returning Officer in the performance of his
functions in connection with the conduct of elections.
Electoral Registration Officer: The officer is responsible for preparation of
electoral rolls for parliamentary/state assembly constituency.

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Under section 13B of the Representation of the People Act, 1950, the Election
Commission of India, in consultation with the State / UT Government, appoints an
Officer of the Government or the Local Authorities as the Electoral Registration
Officer. In addition, the Election Commission of India also appoints one or more
Assistant Electoral Registration Officers to assist the Electoral Registration Officer in
the performance of his functions in the matter of preparation / revision of electoral
rolls.
Presiding and Polling Officer: The Presiding officer with the assistance of polling
officer conducts the poll at the polling station. As per the Section 26 of
Representation of People Act 1951, they are appointed by the District Election
Officer (in case of States) and by Returning Officer (in case of UT).
Observers: Various kinds of Observers are nominated by the Election Commission
for a close watch to election process. These Observers are the officers of
Government and are given different kinds of duties as assigned by Election
Commission in various parliamentary and assembly constituencies:
a. General Observers: They are appointed to keep a close watch on election process
to ensure free and fair elections.
b. Expenditure Observers: Expenditure Observers from Central Government Services
are appointed to keep a close watch on election expenditure of the candidates and
to ensure that no inducement is offered to the electors during the entire election
process for exercise of their franchise.

Election Process:
The elections to Lok Sabha and State Assembly elections takes place every five
years, unless called earlier. The President and the Governor respectively can
dissolve the assembly and call for fresh elections before five years if the party in
power no longer retain confidence in Lok Sabha or State legislative assembly
respectively and that there is no alternative option available to replace them.
The Elections in India for Lok Sabha and State Legislative assemblies follows the
First Past the Post system while for elections of President, VP and Rajya Sabha
members, the system of proportional representation by means of single transferrable
post is followed.
As per the Constitution, there should be not more than 6 months gap in conducting
elections between last session of the dissolved House and the new House.
The Commission usually announces the dates for elections via press conference
before the process for the same is set in motion.
The Model Code of Conduct comes into effect after the announcement of
elections. The model code of conduct is basically the list of guidelines that is given to
the candidates and political parties for elections to discipline and manage their
conduct with respect to speeches, election manifestos, election campaigns and
processions, information on polling day and booths, general conduct etc.
The formal process of elections starts with the notification given to the electorate
with respect to elections, after which the candidates can start filling their nominations

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in the constituencies, they wish to contest elections from. The nomination is
investigated/scrutinized by the Returning Officer.
Two weeks’ time is given to the parties and the candidates for election campaigns
after the announcement of the elections, which generally ends 48 hours before the
polling date.
As per the section 126 of Representation of People Act 1951, 48 hours before the
elections are scheduled and till it is concluded, a silence period has to be maintained
under which no candidate and political party are allowed to campaign. This silence
period is given to allow the people i.e. the electorate to be provided the time to think
on who they want to vote for.
An oath or affirmation must be given by the candidate in person immediately after
presenting his nomination or in some cases before the date of the scrutiny, to the
officer authorized by the Election Commission i.e. Returning Officer or Assistant
Returning Officer (in normal scenario). In extra-ordinary situations, like when the
candidates is confined to prison or is in preventive detention, then the oath is given
to superintendent of the prison and in case if the candidate is bed ridden in hospital,
then the oath can be given to medical in charge of the hospital or medical
practitioner attending on him/her. In case the candidate is outside India, then the
oath should be provided to the Ambassador or High Commissioner or a diplomatic
consular authorized by him.
Because of the vast magnitude of operations and the massive size of the electorate,
polling is held on a number of days for the national elections. A separate date for
counting is fixed and the results declared for each constituency by the concerned
Returning Officer.
The Commission compiles the complete list of members elected and issues an
appropriate Notification for the due constitution of the House. With this, the process
of elections is complete and the President, in case of the Lok Sabha, and the
Governors of the concerned states, in case of State Assemblies, can then convene
their respective Houses to hold their sessions.
Electronic Voting is the standard means of conducting elections using Electronic
Voting Machines, sometimes called "EVMs" in India. The use of EVMs and
electronic voting was developed and tested by the state-owned Electronics
Corporation of India and Bharat Electronics in the 1990s. They were introduced in
Indian elections between 1998 and 2001, in a phased manner. The electronic voting
machines have been used in all general and state assembly elections of India since
2004.
Prior to the introduction of EVMs, paper ballots and manual counting was used to
count the votes. However, soon the authenticity of EVMs were being questioned
under various petitions in High Court and Supreme Court.
Therefore, VVPAT system i.e. Voter Verified Paper Audit Trail system was
introduced after the SC judgement in People’s Union for Civil Liberties vs. Union of
India case (2013) and was used on trial basis in 2014 general elections.

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EVMs and accompanying Voter-verified paper audit trail (VVPAT) are now used in
every assembly and general election in India and a small percentage of the VVPATs
are verified. On 9 April 2019, Supreme Court of India ordered the Election
Commission of India to use VVPAT paper trail system in every assembly
constituency but verify only about 2% of the EVMs i.e., 5 polling stations per
constituency before certifying the final results. The Election Commission of India has
acted under this order and deployed VVPAT verification for 20,625 EVMs in
the 2019 Indian general election.
Election Petitions Any elector or candidate can file an election petition if he or she
thinks there has been malpractice during the election. An election petition is not an
ordinary civil suit but treated as a contest in which the whole constituency is
involved. Election petitions are tried by the High Court of the state involved, and if
upheld can even lead to the restaging of the election in that constituency.

Important Book Names:

Paul R. Brass: The Politics of India Since Independence.
Paul R. Brass, The 1984 Parliamentary Elections in Uttar Pradesh.

Election Laws:
The Parliament to conduct elections in a free and fair manner and to provide it a
legal framework brought forward the Representation of People Act 1950 (RPA
1950), RPA 1951 and the Delimitation Commission 1952,1962, 1972 and 2002
(presently followed).
Representation of People Act 1950:

Key provisions of RPA Act 1950:

Provisions for delimitation of constituencies.
Provides for seat allocation in House of People, Legislative Assemblies and
Legislative councils.
Provides procedure for electoral rolls preparation and the manner of filling seats.
Lays down guidelines on qualification of voters.
Provide appointments of Chief Electoral Officer, District Election Officer,
Electoral Registration Officer.

Delimitation Commission:
Article 82 of the Indian Constitution talks about power of Parliament to enact
Delimitation Act that will establish a Delimitation Commission after every census.
This Delimitation Commission demarcates the boundaries of the Parliamentary
Constituencies as per provisions of the Delimitation Act.
After every census, a readjustment is to be made in (a) allocation of seats in the Lok
Sabha to the states, and (b) division of each state into territorial constituencies.
Parliament is empowered to determine the authority and the manner in which it is to

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be made. Accordingly, the Parliament has enacted the Delimitation Commission
Acts in 1952, 1962, 1972 and 2002 for this purpose.
The 42nd Amendment Act of 1976 froze the allocation of seats in the Lok Sabha to
the states and the division of each state into territorial constituencies till the year
2000 at the 1971 level. This ban on readjustment was extended for another 25 years
(ie, upto year 2026) by the 84th Amendment Act of 2001, with the same objective of
encouraging population limiting measures.
The 84th Amendment Act of 2001 also empowered the government to undertake
readjustment and rationalisation of territorial constituencies in the states on the basis
of the population figures of 1991 census. Later, the 87th Amendment Act of 2003
provided for the delimitation of constituencies on the basis of 2001 census and not
1991 census. However, this can be done without altering the number of seats
allotted to each state in the Lok Sabha.’
The present delimitation of constituencies has been done on the basis of the 2001
census figures under the provisions of Delimitation Act, 2002.

Representation of People Act 1951:

Key Provisions:
It regulates the actual conduct of elections and by-elections.
It provides administrative machinery for conducting elections.
It deals with the registration of political parties.
It specifies the qualifications and disqualifications for membership of the Houses.
It provides provisions to curb corrupt practices and other offences.
It lays down the procedure for settling doubts and disputes arising out of elections.

Note: The 104th Constitutional Amendment Act 2019 extends the reservation for
SC and ST seats for 10 years in LS and state assemblies on the basis of ratio of
population and abolishes the 2 seats reserved for the Anglo-Indian Community.

Anti-defection Law:
The 52nd CA Act 1985 2provided for the disqualification of MPs and MLAs on the
ground of defection from one party to another.
10th schedule was added in the Constitution for this purpose.
The 91st CA Act 2003 deleted the exemption provided in the 10th schedule regarding
the provision of disqualification being not applicable in the case of a spilt.
The deciding authority for disqualification of an MP and MLA on grounds of defection
is the presiding officer of the respective House. However, it is subjected to judicial
review. (Kihoto Hollohan case,1993).
A member of a House belonging to any political party becomes disqualified for being
a member of the House, (a) if he voluntarily gives up his membership of such
political party; or (b) if he votes or abstains from voting in such House contrary to

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any direction issued by his political party without obtaining prior permission of such
party and such act has not been condoned by the party within 15 days.
An independent member of a House (elected without being set up as a candidate by
any political party) becomes disqualified to remain a member of the House if he joins
any political party after such election.
A nominated member of a House becomes disqualified for being a member of the
House if he joins any political party after the expiry of six months from the date on
which he takes his seat in the House, meaning he may join any political party within
six months of taking his seat in the House.
Exemptions from disqualification on grounds of defection has been provided in the
following two cases (a) If a member goes out of his party as a result of a merger of
the party with another party. A merger takes place when two-thirds of the members
of the party have agreed to such merger. (b) If a member, after being elected as the
presiding officer of the House, voluntarily gives up the membership of his party or
rejoins it after he ceases to hold that office. This exemption has been provided in
view of the dignity and impartiality of this office.
It must be noted here that the provision of the Tenth Schedule pertaining to
exemption from disqualification in case of split by one-third members of legislature
party has been deleted by the 91st Amendment Act of 2003. It means that the
defectors have no more protection on grounds of splits.

Electoral Reforms:
Various committees time and again have formed to look into better functioning of
electoral system, election machinery, conduct of political parties etc. Few of them are as
follows:
Joint Parliamentary Committee on Amendments to Election Laws (1971- 72).
Tarkunde Committee was appointed in 1974 by Jaya Prakash Narayan (JP) during
his “Total Revolution” movement. This unofficial committee submitted its report in
1975.
Dinesh Goswami Committee on Electoral Reforms (1990)1
Vohra Committee on the Nexus between Crime and Politics (1993)
Election Commission of India Recommendations on Electoral Reforms (1998).
Indrajit Gupta Committee on State Funding of Elections (1998)
Law Commission of India 170th Report on Reform of the Electoral Law. (1999)
National Commission to Review the Working of the Constitution (2000- 2002).It was
headed by M.N. Venkatachaliah.
Election Commission of India Report on Proposed Electoral Reforms (2004).
Second Administrative Reforms Commission of India Report on Ethics in
Governance (2007). It was headed by Veerappa Moily.
Tankha Committee (Core Committee) was appointed in 2010 to look into the whole
gamut of the election laws and electoral reforms.
J.S. Verma Committee Report on Amendments to Criminal Law (2013).

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Law Commission of India 244th Report on Electoral Disqualifications (2014).

Law Commission of India 255th Report on Electoral Reforms (2015).

Some important electoral reforms were:

Lowering of Voting Age
Electronic Voting Machine (EVMs)
Restriction on contesting from more than 2 constituencies
Prohibition of Arms
Prohibition on sale of liquor
Booth Capturing
Disqualification for Insulting the National Honour Act (1971).
The ceiling on election expenditure
Voting through postal ballot: In 2013, the EC decided to expand the ambit of postal
ballot voting in the country. Previously, only Indian staff in missions abroad and
defence personnel in a limited way, could vote via postal ballots. Now, there are 6
categories of voters who can use the postal ballot: service voters; special voters;
wives of service voters and special voters; voters subjected to preventive detention;
voters on election duty and Notified voters.
Awareness Creation: The government decided to observe January 25th as ‘National
Voters Day’ to mark the EC’s founding day.
Introduction of NOTA
Introduction of VVPAT (Voter Verified Paper Audit Trail)
Transparency in election funding: Electoral bonds (2017)

Election Commission of India

Permanent and independent body established to supervise, direct, control and
conduct free and fair elections in India.
Article 324 of the Constitution provides that the power of superintendence, direction
and control of elections to parliament, state legislatures, the office of president of
India and the office of vice president of India shall be vested in the election
commission.
Note: Election commission of India is not involved with the elections to panchayats and
municipalities in the states. For this, the Constitution of India provides for a separate
State Election Commission.

Composition: Article 324 lays down the composition for EC of India: It states:
a. The Election Commission shall consist of the chief election commissioner and such
number of other election commissioners, if any, as the president may from time to
time fix.
b. The appointment of the chief election commissioner and other election
commissioners shall be made by the president.
c. 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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d. The president may also appoint after consultation with the election commission
such regional commissioners as he may consider necessary to assist the election
commission.
e. The conditions of service and tenure of office of the election commissioners and
the regional commissioners shall be determined by the president.

From 1950 to 1989, the EC was a singly member body consisting of only Chief Election
Commissioner. It became a multi-member body consisting of one Chief Election
Commissioner and 2 Election Commissioner in 1993.
The chief election commissioner and the two other election commissioners have
equal powers and receive equal salary, allowances, and other perquisites, which are
similar to those of a judge of the Supreme Court.
In case of difference of opinion amongst the Chief election commissioner and/or two
other election commissioners, the matter is decided by the Commission by majority.
Tenure: Six years or until the age of 65 years, whichever is early. They can resign
and can be removed from the office too.
The Election Commission is assisted by deputy election commissioners. They are
drawn from the civil service and appointed by the commission with tenure system.
They are assisted, in turn, by the secretaries, joint secretaries, deputy secretaries
and undersecretaries posted in the secretariat of the commission.
Further they are also assisted by Chief Electoral officer, District Election Officer,
Returning Officer, Presiding Officer, Electoral Registration Officer, Polling Officer
and Observers.
Independence of the office is maintained through –
a. Security of the tenure i.e. He cannot be removed from his office except in same
manner and on the same grounds as a judge of the Supreme Court.
b. Fixed Service Conditions: The service conditions of the chief election
commissioner cannot be varied to his disadvantage after his appointment.
c. Expenses Charged on Consolidated Fund of India.
d. Conduct cannot be discussed.
e. Any other election commissioner or a regional commissioner cannot be removed
from office except on the recommendation of the chief election commissioner.
f. Note: Unlike SC and HC judge who are banned from practice after retirement.
Such is not the case with Election Commissioners.
Powers and Functions: The EC performs administrative, advisory, and quasi-
judicial functions:

a. Main goal is to supervise, direct, control and conduct free and free elections in
India.
b. To prepare and periodically revise electoral rolls and to register all eligible voters.
c. To fix territorial constituencies boundaries as per Delimitation Commission Act.
d. To publish notifications with respect to date and schedule of elections.
e. To scrutinize and manage nomination of candidates to contest elections.
f. To ensure model of conduct is followed strictly.
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g. To grant recognition to political parties and allot election symbols to them.
h. To act as a court for settling disputes related to granting of recognition to political
parties and allotment of election symbols to them.
i. To advise the President and Governors on matters relating to the disqualifications
of the members of Parliament and MLAs, respectively.
j. To cancel polls in the event of rigging, booth capturing, violence and other
irregularities.
k. To advise the president whether elections can be held in a state under president’s
rule in order to extend the period of emergency after one year.
l. To register political parties for the purpose of elections and grant them the status of
national or state parties on the basis of their poll performance.

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