Law Relating To Elections ContentsContentsCOM799557 PDF

CONTENTS
CHAPTER 1
INTRODUCTION AND MEANING OF ELECTION
* History of Elections in India 1
• Definition of the Term "Election" 4
• Meaning of the Term "Electioneering" 5
• Meaning of the Phrase "Electoral Right" 5

[2nd Edn.
2010(Pb)] • Meaning of the Word "Ballot" or "Casting of Vote" 5
• Electronic Voting System or Computerised Voting System 5
• Exit Poll 5
Q. For making the democracy more meaningful 6
• Principle behind the Term 'Election' 6
Q. Explain the system of election prevalent in India 6
• Systems of Election 6
Q . Single transferable vote system is designed to ensure more diverse 6

representation
Q. Now, only one vote to be cast by each elector 7
• Stages of Election 7
Q . Why the word 'election' used in wide sense in Part XV of the 7

Constitution of India?
• Electoral Right and Nature of Election Proceedings 8
Q. Right to elect is neither a fundamental right nor a common law right, it 8

is a statutory right
• Right to Vote 8
Q. Right to elect and right to be elected do not inherit in a person 8
Q . In what manner the Halsbury's Laws of England expressed the 9

expression "Commencement of the election"?
• Commencement of the 'Election' in Halsbury's Laws of England 9
Q. What are the principles of Election Law? 9
• Principles of Election Law 9
* Preamble to the constitution of india 10
• Expression 'We the People' in Constitution of India 10
09-05-2022 (Page 1 of 23) www.manupatra.com Jamia Millia Islamia

Q . Whether the authority is derived from the people, as recited in the 10
Preamble,is purely academic?
• The Words "Sovereign Democratic Republic": in our Constitution 11
Q. 'Sovereign Democratic Republic', means both externally and internally 11

India is sovereign
• Model Code of Conduct by Election Commission of India for the Guidance 11

of Political Parties and its Candidates
I. General Conduct 11
II. Meetings 12
III. Procession 13
IV. Polling Day 13
V. Polling Booth 14
VI. Observers 14
VII. Party in Power 14
* Frequently Asked Questions (Faqs) on select Model Code of Conduct 15
Q. What is the Model Code of Conduct? 15
Q. What is the Role of Election Commission in the Matter? 15
Q . From which Date the Model Code of Conduct is Enforced and 16

Operational upto which Date?
Q . What is Applicability of Code During General Elections and Bye- 16

elections?
Q. What are the Salient Features of the Model Code of Conduct? 16
* ON OFFICIAL MACHINERY 16
Q . Whether a Minister can Combine his Official Visit with Electioneering 16

Work?
Q. Whether Government Transport can be Used for Electioneering Work? 16
Q. Whether Government can Make Transfers and Postings of Officials who 16

are Related to Election Work?
Q. Suppose an Officer Related to Election Work has been Transferred by 16

t he Government before Enforcement of Model Code of Conduct and has
not taken over Charge at New Place. Can such Officer Take over Charge of
Office at New Place after Announcement of the Code?
Q. Whether a Minister of Union or State can Summon any Election-Related 17

Officer of the Constituency or the State for any Official Discussion During

the Period of Elections?
Q . Can an Official Meet the Minister on his Private Visit to the 17

Constituency where Elections are being held?
Q. Whether Ministers are Entitled for Official Vehicle During the Election? 17
Q. Whether Ministers or any other Political Functionaries can use Pilot Car 17
with Beacon Lights Affixed with Siren?
Q. Suppose there is a Visit of President/Vice President at any Place in the 17

State. Is a Minister Allowed to use VIP Car with other Protocol?
Q. Suppose a Vehicle has been Provided to Minister by the State and the 17
Minister is given an Allowance for Maintenance of such Vehicle. Can it be
used by the Minister for Election Purposes?
Q . Whether Facility of Official Vehicles can be Withdrawn from those 18

Ministers who Violate the Provisions of Model Code of Conduct?
* ON WELFARE SCHEMES, GOVERNMENT WORKS ETC. 18
Q. Is there any Restriction on Issue of Advertisement at the Cost of Public 18

Exchequer Regarding Achievements with a View to Furthering the
Prospects of the Party in Power?
Q . Whether a Minister or any other Authority can Sanction 18

Grants/Payments out of Discretionary Funds?
Q . Whether Money can be Withdrawn from Treasury Against the 18

Sanctioned Amount from the Discretionary Funds of Ministers to Prepare
Draft in the Names of Beneficiaries which may be Disbursed after Process
of Election is Completed?
Q . Suppose Work Order has been Issued in Respect of a Scheme or a 18

Programme. Can it be Started after Announcement of Election Programme?
Q. Whether State Government can Seek Clarification/Clearance/Approval in 18

Respect of any Proposal Directly from the Election Commission?
* ELECTION CAMPAIGN 18
Q . What are the Main Guidelines for Political Parties/Candidates while 18

making Election Campaign?
Q . Are their any Restrictions in Using Religious Places for Election 19

Propaganda?
Q . Can a Candidate go to the Office of Returning Officer for Filing a 19

Nomination with a Procession?
Q. How many Persons are Allowed at the Time of Scrutiny of Nominations 19

by the Returning Officer?

Q. Are there any Guidelines Regarding Use of Vehicles by Ministers/Political 19
Functionaries/Candidates, who have been Provided Security Cover by the
State?
Q. Whether there is any Restriction for Plying of Vehicles for Electioneering 19

Purposes?
Q. Whether a Vehicle for which Permission has been Taken for Election 20
Campaign in the Name of a Candidate, can be Used for Election Campaign
by Another Candidate?
Q . Can a Vehicle be Used for Electioneering Purposes Without Getting 20

Permit from the District Election Officer/Returning Officer?
Q . Whether there is any Restriction on Use of Educational Institutions 20

including their Grounds (whether Government Aided, Private or
Government) for Political Campaigns and Rallies?
Q . Is External Fitting/Modification Allowed in the Vehicles Used for 20

Campaigning?
Q. Is there any Restriction or Use of Rest Houses, Dak Bungalows or other 20

Government Accommodation for Campaign Office or for Holding any Public
Meeting for the Purpose of Election Propaganda?
Q . Are there any Conditions for Getting Government Aircraft/Helicopters 21

(Including Public Sector Undertakings) by Political Parties/Candidates?
Q. Is there any Restriction on Displaying Poster, Placard, Banner, Flag etc 21

of the Party Concerned or the Candidate on a Public Property?
Q . If Local Law/Bye-laws Permit Wall Writings and Pasting of 21

Posters,Putting up Hoardings, Banners etc. on Private Premises/Properties,
is it Necessary to Obtain Prior Written Permission from the Owner of the
Premises/Properties?
Q . Is there any Restriction on Displaying/Carrying Poster/ 22

Placard/Banner/Flag of the Party Concerned or of the Candidate on the
Vehicle During the Procession?
Q. Whether there is any Ban on Use of Plastic Sheets for Making use of 22
Posters/Banners During the Election Campaign?
Q. Is there any Restriction on the Printing of Pamphlets, Posters etc? 22
Q. Whether there is any Restriction on Air Dropping of Leaflets/Pamphlets 22

by the Political Parties/Candidates?
Q . Is Wearing of Special Accessories Like Cap, Mask, Scarf etc. of a 22

Candidate Permitted During the Campaigning?

Q. Whether Dummy Ballot Units of EVM can be Prepared by the Candidate 22
for the Purpose of Educating the Voters?
Q. Whether there is Restriction to Display to the Public any Election Matter 22

by Means of Cinematograph, Television or other Similar Apparatus?
Q. Whether a Candidate can Print and Distribute the Diary/Calendar/Sticker 23

Depicting his Image or Image of Gods/ Deities etc.
Q . Whether Distribution of Printed "Stepney Covers" or other Similar 23

Material Containing Symbol of Party/Candidate or Without Depicting it, is a
Violation?
Q . Are there Conditions/Guidelines for Setting-up and Operating of 23

Temporary Offices by Party or Candidate?
Q. Is there any Restriction on the Presence of Political Functionaries in a 23

Constituency after Campaign Period is over?
Q. Is such Restriction Applicable in the Case of Office Bearer of a Political 23

Party who is In-charge of Election in the State?
Q. Whether there is any Restriction for Holding Public Meeting or Taking 23

out Processions?
Q . Whether Loudspeakers can be Used for Public Meetings or for 24

Processions or for General Propaganda without Obtaining Permission from
Police Authorities?
Q. Whether there is any Time Limit for Using Loudspeakers? 24
Q. What is the Deadline after which no Public Meetings and Processions 24

can be Taken out?
Q . Whether there are any Guidelines for Political Parties/Candidates for 24

Issue of Unofficial Identity Slips to Voters?
Q. Is there any Restriction on Appointment of a Minister/M.P./M.L.A/M.L.C 24

or any other Person who is under Security Cover as an Election
Agent/Polling Agent/Counting Agent?
Q . Is a Candidate Allowed to Appoint Persons as Polling agents from 24

Anywhere?
Q. Who is the Authority to Issue Permits to Star Campaigners (Leaders)of 25

the Political Parties who Avail Benefit under Section 77(1) of the
Representation of the People Act, 1951?
Q. Whether Opinion poll or Exit poll can be Conducted, Published,Publicized 25

or Disseminated at any Time?
Q . Whether there is any Restriction for Transmitting Short Messages 25

Service (SMSs)?
* POLL DAY 25
Q . Are there any Guidelines for Setting-up of Election Booth by 25

Candidate/Political Parties Near Polling Station on the Day of Poll?
Q . Is it Necessary to Obtain Written Permission of the Concerned 26

Government Authorities or Local Authorities for Setting-up of Election
Booth?
Q. Is there any Restriction of Canvassing in or Near Polling Station? 26
Q. Whether the Use of Mobile Phone is Allowed in the Polling Station? 26
Q. Is there any Restriction of Going Armed to or Near Polling Station? 26
Q. How many Vehicles a Candidate is Entitled for on the Day of Poll? 26
Q. If the Candidate is Absent from the Constituency on the Day of Poll,can 26

the Vehicle Allotted in his Name be Used by any other Person?
Q. Can any Type of Entitled Vehicle be Used on the Day of Poll? 27
Q . Whether Political Party/Candidate can Make Arrangements for 27

Transporting Voter to and from Polling Station?
Q. Whether there are Restrictions on Plying of Government/Private Vehicles 27

on the Poll Day?
Q . Can a Leader of Political Party Use Private Fixed-wing Aircraft and 27

Helicopters for the Purposes of Supervising and Monitoring the Polling and
Counting Process on the Day of Poll and Counting?
* Proposals for Electoral Reforms 27
1 . Affidavits to be Filed by Candidates on Criminal Antecedents, Assets, 27

etc.
2. Need to Increase the Security Deposit of Candidates 28
3. Criminalisation of Politics 29
4. Restriction on the Number of Seats from which one may Contest 30
5. Exit Polls and Opinion Polls 30
6. Prohibition of Surrogate Advertisements in Print Media 32
7. Negative/Neutral Voting 33
8 . Appointment of Appellate Authority in Districts Against Orders of 33

Electoral Registration Officers
9 . Compulsory Maintenance of Accounts by Political Parties and Audit 33

Thereof by Agencies Specified by the Election Commission

10. Government Sponsored Advertisements 34
11. Political Advertisements on Television and Cable Network 34
12 Composition of Election Commission and Constitutional Protection of all 35

Members of the Commission and Independent Secretariat for the
Commission
13. Expenses of Election Commission to be Treated as Charged 36
14. Ban on Transfers of Election Officers on the Eve of Elections 36
15. All Officials Appointed in Connection with Conduct of Elections to be 37

Included in Clause (7) of Section 123
* PART-II-Pending Proposals 38
1. Anti-Defection Law 38
2. Use of Common Electoral Rolls at Elections Conducted by the Election 38

Commission and the State Election Commissions
3. Simplification of Procedure for Disqualification of a Person Found Guilty 39

of Corrupt Practice
4. Same Number of Proposers for all Contesting Candidates Amendment of 41

Section 33 of the Representation of the People Act, 1951
5 . Making of False Declaration in Connection with Elections to be an 42

Offence
6. Rule Making Authority to be Vested in Election Commission 42
7 . Registration and De-registration of Political Parties Strengthening of 42

Existing Provisions
* Election of the President of india 43
Q. What is the meaning of words 'electoral college' used in Article 54 of 43

the Constitution of India?
Q. Explain the manner of election of the President of India? 44
• Manner of Election of President of India 44
• Qualification for Election as President of India 44
Q. What is the eligibility for a person to be elected as President of India? 44
• Office of Profit 45
Q. Is it necessary for a candidate for election as President to take oath? 45
• Requirement of Oath for Candidates for election as President of India 45
* Election of Vice-President of India 45

Q. He is elected by the members of an electoral college 45
Q . He shall vacate membership of either House of Parliament or State 45

Legislature if any
Q. Explain the eligibility of a person for election as Vice-President 46
• Eligibility for Election as Vice-President of India 46
Q. Explain the ineligibility of a person for election as Vice-President 46
• Ineligibility for Election as Vice-President of India 46
Q. Vice-President to make and subscribe before the President an oath or 46

affirmation
• Oath or Affirmation by the Vice-President of India 46
* Parliament of India 46
Q. What is the System of Composition of Upper House? 46
• Composition of the Council of States 46
• Nomination of Members by President of India 46
* Election of representative of States and Union Territories 47
• Composition of the House of the People (Lok Sabha) 47
Q. What is the maximum permissible strength and composition of the Lower 47

House?
• Maximum Permissible Strength 47
Q . In what manner number seats of the Lower House allotted to each 47

State?
• Manner of Allocation of Seats 47
• Meaning of the Expression "Population" 48
• Readjustment after each Census 48
Q. What is the qualification for a person to be chosen to fill a seat in 48

Parliament?
• Qualification for Membership of Parliament 48
* The State Legislature 49
Q. Mention the States having two Houses? 49
• Composition of the Legislative Assemblies 49
Q. Maximum and Minimum Strength 49

Q. What is the procedure of composition of State Legislative Assemblies? 49
Q. Manner of Allocation of Seats 49
• Meaning of Expression "Population" 49
• Readjustment of Seats of State Assemblies 49
Q. Why the readjustment of seats is made? 50
Q. How many States are having Legislative Councils? 50
• The Legislative Councils 50
• Abolition and Creation of Legislative Councils in States 50
Q. How the Legislative Councils in States are abolished or created? 50
• Legislative Council is a Permanent House 50
• Maximum and Minimum Strength 50
Q. What is the Procedure of Composition of Legislative Council? 51
• Composition of Legislative Council 51
• Who can be Nominated by the Governor? 51
• Manner of Elections to Legislative Councils 52
Q. What is the qualification for a person to be chosen to fill a seat in the 52

Legislature of a State?
• Qualification for Membership of the State Legislature 52
* Part XV of the Constitution of India (Elections) 52
• Abolition of Post of Election Commissioners 54
Q. Only citizens of India of not less than eighteen years of age are eligible 54
to vote
Q . Who is empowered to make provisions with respect to elections to 55

either House of Parliament or State Legislatures?
• Declaration of Assets and Liabilities of a Candidate 55
Q . What is the Limitation of State Legislature to make provisions with 55

respect to elections?
• Election Funding 55
• Bar to Interference by Court in Electoral Matters 55
* Disputes Regarding Elections 56
• Part VI of the Representation of the People Act, 1951 56
• Challenge to Election 56

Q. What is meant by the expression "no election shall be called in question 56
except by way of election petition....." as used in Article 329(b) of the
Constitution of India?
• Appreciation of Evidence by High Court 58
• Grounds of Challenge to Election 58
Q . What are the grounds on which an election may be challenged by 59

means of a petition?
• Clauses (c) and (d) of Section 100: Distinction 59
Q. Can Civil Courts interfere in electoral matters? 60
• Jurisdiction of Civil Courts in Electoral Matters 60
* Election Petitions 61
• Who can try Election Petition? 62
Q . Briefly explain the 'computation of limitation period' in case of 63

presentation of election petition?
• Limitation in Case of Presentation of Election Petition 63
• Computation of Limitation Period 63
• 'General Election' cannot be Challenged as a Whole 65
Q. Can a general election as a whole can be challenged? 65
Q . What will be the effect when law amended during the pendency of 65
election petition?
• When Law Amended During the Pendency of Election Petition 65
• Disposal of Election Petition 65
• Who can be a Petitioner? 66
Q . What is the manner in which copies to be attached with election 66

petition?
• Copies to be Attached with Election Petition 66
Q. Who can join as a respondent to an election petition? 66
• Parties to the Election Petition 66
• Contents of Election Petition 67
Q. Explain briefly the contents of election petition with the help of decided 67
caselaws?
Q. What do you mean by 'material facts'? 68

Q. What do you understand by the term 'reasonable cause of action'? 68
Q. What is difference between 'material facts' and 'material particulars'? 68
Q. Can an election petitioner claim for any relief? 70
• Relief that may be Claimed by the Petitioner 70
Q. High Courts and Article 226 70
Q . Whether the High Court can be moved under Article 226 of the 71
Constitution with respect to the matter retated to election?
Q. Election Petitions to High Court 71
Q. How the election petition to the High Court be presented? Explain with 72
the help of decided cases
• Presentation of Election Petition 72
• Security for Costs 73
• Trial of Election Petitions 73
Q . Explain the manner in which the High Court can try the election 74
petition?
Q. Is there any specified time limit in which the High Court has to conclude 75
the trial?
• Time Limit to Conclude the Trial 75
Q. Is Code of Civil Procedure applicable in case of election petition? 75
• Applicability of Code of Civil Procedure to the Trial of Suits 75
Q. Is the Evidence Act applicable to the trial of election petiton? 76
• Applicability of Evidence Act to the Trial of Election Petitions 76
* Case Laws 76
Q. "Art. 329(b) of the Constitution of India prohibits the Courts" Do you 77

agree with the statement? Support your answer with N.P. Ponnusowami
case.
Q. Discuss the principles of law laid down in N.P. Ponnusowami v. Returning 78

Officers, case
Q. Briefly discuss the facts and law applied in Jyoti Basu v. Debi Ghosal, 80
case
Q. Briefly discuss the facts and law applied in The Election Commission of 81
India v. Shivaji, case
Q. Examine the various issues discussed by the Supreme Court in Mohinder 83

Singh Gill v. Chief Election Commissioners, case

CHAPTER 2
ELECTION COMMISSION OF INDIA
* Composition of Election Commission of India 87
Q. What is the procedure of composition of Election Commission of India? 87
Q. How the Chief Election Commissioner and other Election Commissioners 87

of India are appointed?
• Appointment of Chief Election Commissioner (CEC) and other Election 87

Commissioners of India
Q . Is there any pre-requisite qualification of CEC and ECs of India 88

prescribed by the Constitution?
• Qualifications for Chief Election Commissioner (CEC) and Election 88

Commissioners (ECs) of India
Q. Explain the condition of services of Chief Election Commissioner (CEC) 88

and Election Commissioners (ECs) of India
• Conditions of Service of Election Commissioner (CEC) and Election 88

Commissioners (ECs) of India
Q . Discuss briefly the legal and constitutional position of Election 89

Commission of India
• Legal and Constitutional Position of Election Commission of India 89
Q . Critically examine the changes in the composition of Election 90

Commission of India since its formation in 1950
• Changes in the Composition of Election Commission of India Since its 90

Formation
Q. How the Regional Election Commissioners are appointed? 93
• Regional Election Commissioners 93
• Secretariat of the Election Commission of India 94
Q. Discuss the powers and functions of Election Commission of India 94
• Functions of the Election Commission of India 94
Q. Primary Functions under the Constitution 94
Q . Critically analyse the expression 'Superintendence, Direction and 95

Control' used in Article 324 of the Constitution of India.
Q. Amplitude of Powers-Meaning of Superintendence, Direction and Control 95
Q. Can Election Commission of India advise the President and the Governor 97

in the matter of disqualification of sitting members of the Parliament and
State Legislature?if so, what are those disqualifications?
• Decision of Election Commission of India on Disqualifications of Members 97
Q. How the fate of a person guilty of corrupt practice in an election is 99

decided?
• Other Functions of Election Commission of India 99
Q. Explain the quasi-judical functions of the Election Commission of India 100
• Quasi-judicial Functions of Election Commission of India 100
Q. Can the functions of the Election Commission be delegated? 101
• Delegation of Functions of Election Commission of India 101
• Whether the Election Commission of India is Empowered to Issue 101

Directions Ordered by the High Court?
• What would be Position if the Election Commission of India would 102

Indefinitely Postpone the Election?
• Is Article 174 not Subject to the Decision of the Election Commission of 102
India under Article 324 as to the Schedule of Elections of the Assembly?
• Can the Election Commission of India Frame a Schedule for the Elections 174
to an Assembly on the Premise that any Infraction of the Mandate of
Article would be Remedied by a Resort to Article 356 by the President?
* CaseLaws 103
Q. Critically examine the decision in S.S. Dhanoa v. Union of India, case 104
Q. Critically examine the decision in A.C. Jose v. Sivan Pillai, case 105
Q. Discuss the principles of law laid down in determining as to who was 106
entitled to the election symbol of "Two Bulls and Yoke on" in Sadiq Ali
v.The Chief Election Commission of India, case On Election Symbol
Q . Whether the Election Commission of India got jurisdiction to decide 107

dispute?Discuss in the right of the decision in Sadiq Ali v. Election
Commission of India, case
CHAPTER 3
DELIMITATION OF CONSTITUENCIES
* Courts not to interfere in delimitation matter 109
* Delimitation of Parliamentary and Assembly Constituencies (Except 112

Assembly Constituencies in Jammu and Kashmir)
• Initial Delimitation in 1950-51 112
Q. Election Commission's Report on First General Election 112

Q. Write short note on initial delimitation of parliamentary and assembly 113
constituencies?
• Delimitation After 1951-census 113
Q. Election Commission's Report on Second General Elections 113
• Delimitation After 1961-Census 114
Q. Based on the Election Commission's Report on Fourth General Elections 114
• Delimitation After 1971-Census 114
Q. Based on Election Commission's Report on General Election 114
Q. Associate Members of Delimitation Commission 115
Q. Delimitation Commission: Powers and Procedure 115
Q. Write short note on power and procedure of Delimitation Commission. 115
• Delimitation After 1981 and 1991 Census 115
• Basic Principles to be Followed for Delimitation 115
Q. Discuss the basic principles to be followed for delimitation? 116
• Determination of Delimitation in Certain Cases 117
• Delimitation Commission's order with respect to the State of Jharkhand 118

not to have any legal effect
Q. Examine the process of delimitation? 118
• Process of Delimitation 118
Q. Based on Election Commission's Report on General Election to Legislative 118

Assemblies in 1974 and 1975
Q. What do you mean by term 'propulation'? 119
• Meaning of Population 119
* Council Constituencies 120
• Meaning 120
• Allocation of seats in the Legislative Councils 120
Q. Write short note on delimitation of council constituencies? 120
• Delimitation of Council Constituencies 120
CHAPTER 4
QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES SEEKING

ELECTION AND OF SITTING ELECTED MEMBERS OF PARLIAMENT AND STATE
LEGISLATURES

* Introduction 121
Q . Discuss the qualifications for membership of Parliament and State 122

Legislatures?
• Qualification for Membership of Parliament and State Legislatures 122
• Sine qua non Qualifications 123
(i) Person must be a Citizen of India 123
* Constitutional Provisions for CiTizenship 123
(ii) Oath or Affirmation 123
Q . Discuss the qualification for contesting candidate relating to the 124

concept of "oath and affirmation'.
• Oath or Affirmation to be made before Whom? 124
Q. Oath & affirmation to be made before whom? 125
Q. When oath or affirmation to be made? 126
Q. Discuss the manner to make or subscribe oath or affirmation. 127
• Manner to Make or Subscribe Oath or Affirmation 127
• Penalty for Sitting and Voting before Making Oath or Affirmation 127
Q. Discuss briefly the disqualification on the ground of 'age' with the help 128
of decided cases
(iii) Qualifying Age 128
* Extracts from the Representation of the People Act, 1951 129
• Section 3. Qualification for Membership of the Council of States 129
• Section 4. Qualifications for Membership of the House of the People 129
• Section 5. Qualifications for Membership of a Legislative Assembly 129
• Section 5A. Qualifications for Membership of Legislative Assembly of 130

Sikkim
• Section 6. Qualifications for Membership of a Legislative Council 131
• Section 7. Disqualifications for Membership of Parliament and State 131

Legislatures
• Section 8. Disqualification on Conviction for Certain Offences 131
• Section 8A. Disqualification on Ground of Corrupt Practices 133
• Section 9. Disqualification for Dismissal for Corruption or Disloyalty 133
• Section 9A. Disqualification for Government Contracts, etc. 134

• Section 10. Disqualification for Office under Government Company 134
• Section 10A. Disqualification for Failure to Lodge Account of Election 134

Expenses
• Section 11. Removal or Reduction of Period of Disqualification 134
* Tenth Schedule 135
• Provisions as to Disqualification on Ground of Defection 135
Q. Difference between 'defection' and 'split' 136
Q. Distinction between the Conception 'Defection' and 'Split' (in Paragraph 136
3)
Q. Scope of Para 6 138
Q. Scope of Para 7 138
Q. Short note on the Tenth Schedule of the Constitution of India 139
• Weaknesses in Anti-defection Law and Suggestions for Reform 140
Q. Briefly discuss the provisions of Anti-Defection Law. What suggestions 141

would you give for the change in the Anit-Defection Law?
Q. Do you agree with the view that the Anti-Defection Law has completely 141
failed to curb the evil of unprincipled defection? What are your suggestions
for reform of the Anti-Defection Law?
* CaseLaws 144
Q. When a person is Vice-Chancellor of an University 145
Q. When a person is a Chartered Accountant 146
Q. When a person is employed in a Municipality 148
Q. When a person is a Government Contractor 149
Q. When a person is holding the post of teacher 150
Q. When a person is a Government Contractor 151
• On the Ground of 'Government Contract' 151
Q. When the person is a Government Contractor 152
* Anti-Defection Law 154
Q. Briefly discuss the Constitutional validity of the Tenth Schedule in the 154
light of Kihoat Hollohon v. Zachilhu, case.
CHAPTER 5
NOMINATIONS OF CANDIDATES TO ELECTION

* Introduction 157
• Form of Nomination Paper to Fill Different Seats 157
• Appointment of Dates for Nominations etc., and Public Notice of Election 158
• Candidates and Proposer 159
Q. Basic Guidelines 159
Q. How many proposers required for the nomination of a candidate? 159
• Number of Proposers Required for Nomination 159
Q. For the House of the People and State Assemblies 159
Q. For the Council of States and Legislative Councils 159
Q. Discuss the requirements of the valid nomination? 160
• Requirements of the Valid Nomination 160
Q. Discuss the disclosure to be made by the candidate. 162
• Disclosure by the Candidate 162
• Rejection of Nomination Paper 163
• Invalid Nomination 164
Q. Discuss the maximum number of constituencies from which a candidate 165

can file nominations
• Provisions Related to the Maximum Number of Constituencies from which 165

Nomination can be Filed
• Presentation of Nomination Paper and Preliminary Scrutiny by Returning 165

Officer
Q. How the preliminary scrutiny of the nomination paper to be made by 166

Returning Officer?
Q . What do you mean by the scrutiny of nomination papers by the 166

Returning Officers? Discuss the provisions briefly and explain when the
Returning Officer can reject the nomination papers?
Q . "At an election for a valid nomination, every candidate is bound to 167

deposit security" Do you agree?
• Security Deposits 167
Q . How the notice is issued by the Returning Officer after nomination 168
received by him?
• Notice of Nominations 168
Q. Effect of improper rejection of nomination paper 169

• Scrutiny of Nominations 169
Q. Who are the persons authorised to attend at scrutiny of nominations? 169
• Presence of Authorised Persons at Scrutiny of Nominations 169
Q. How the scrutiny of nominations conducted? 170
• Conduct of Scrutiny 170
• Rejection of Nomination 170
Q . Discuss the grounds on which the Returning Officer can reject a 171
nomination paper
• Defects of Substantial Character 172
Q. What do you mean by defects of substantial character? 173
Q. What is effect when the candidate fails to mention the name of the 173
constituency?
• When Candidate Fails to Mention the Name of Constituency 173
Q. What is effect when the candidate fails to give full address? 174
• When Candidate Fails to Give Full Address 174
• When Candidate Fails to Give Correct Particulars of Electoral Roll 174

Numbers
Q. What is the effect when the candidate fails to give correct particular of 175
Electoral Roll Numbers (ERNs)?
Q. Is it necessary to prepare the list of validly nominated candidates? 176
• Preparation of List of Validly Nominated Candidates 176
Q. How the withdrawal of candidature is made? Is it irrevocable? 176
• Withdrawal of Candidature 176
• Notice of Withdrawal Irrevocable 177
• Acceptance of Notice 177
Q . How does the Returning Officer prepare and publish the list of 177
contesting candidates after the expiry of the period of withdrwal of
candidature?
• Publication of list of Contesting Candidates 177
• Nomination of Candidates at other Elections 178
Q. Consequences of improper rejection and acceptance of a nomination 180

paper

• Nomination and Grounds for Declaring Election to be Void 180
* CaseLaws 180
Q. Discuss the facts and law points of Rangilal Choudhury v. Dahu Sah 180
case
Q . Discuss the validity of the nomination when the proposer fails to 180
mention the name of the constituency in the nomination paper
Q . Discuss the validity of the nomination when the candidate puts the 182
mark of his thumb impression on the nomination paper which is presented
to the Returning Oficer by the proposer
Q. Ram, Ramesh and Ramu filed nomination papers for contesting election 183
to a Lok Sabha seat. On the day of scrutiny the Returning Officer rejected
Ram's nomination paper on the ground that Ram was holding an office of
profit under the Government of Delhi
Q. Ram wants to move immediately to the High Court of Delhi under Article 226
o f the Constitution for a writ of certiorari to quash the order of the
Returning Officer and to direct the Returning Officer to include his name in
the list of valid nominations
Q. Will Ram succeed in getting a relief from the High Court? Discuss. 183
Q. Consequence of improper acceptance of the nomination paper 185
Q. Case of improper acceptance of the nomination paper 187
Q. Case of improper acceptance of the nomination paper 188
Q. Deena, Deevan and Dudhnath were the candidates at an election for 188
Gujarat Legislative Assembly.
Q . Deena polled 17822 votes, Deevan got 17449 votes and Dudhnath 189
polled 6710 votes.Deena was declared elected. The election of Deena is
challenged on the ground of improper acceptance of the nomination paper
of Dudhnath at the time of the scrutiny of nomination papers by the
Returning Officer. Before the High Court during the trial of election petition
it is proved that Dudhnath's nomination was improperly accepted as he had
not attained the age of 25.
Q. How will you decide this election petition? Refer to the principles of 189
election law relating to the consequence of improper acceptance of a
nomination paper.
CHAPTER 6
CORRUPT PRACTICES
• Onus to Prove Corrupt Practice 193

Q. On whom the burden of proving the corrupt practice lies? 194
Q. Discuss the nature of proceeding followed in election petition making 196
allegation of corrupt practice
• Nature of Proceeding 196
Q . Whether an appeal on the ground of religion constitutes corrupt 197

practice? critically analyse
• Appeal on the Ground of Religion 197
Q. Meaning of word 'his' used in Section 123(3) of the Representation of 197

the People Act, 1951
Q. Whether the restriction imposed in Section 123(3) of the Act is violative 198
of the fundamental right of speech and expression guaranteed under
Article 19(1)(a)?
Q . "Appeal to 'Hindutva' or 'Hinduism' in election speeches constitutes 199

corrupt practice."
Q. Do you agree? 199
• Appeal to 'Hindutva' or 'Hinduism' in Election Speeches 199
• When Appeal to Religious Symbols 200
Q. Discuss the principles of law laid down by the Supreme Court regarding 201
'religious symbols'
• Where any Speech is not Corrupt Practice 202
Q. Appeal on the ground of caste or community in the election constitutes 202

corrupt practices. Discuss
• Appeal on the Ground of Caste or Community in the Election 202
Q . Does appeal on the ground of language in the election constitute 203

corrupt practice?
• Appeal on the Ground of Language in Election 203
• When Feelings of Enmity or Hatred Promoted 203
Q. Critically analyse the provision inserted under Section 123(3A) of the 204
R.P. Act, 1951?
Q. What is the consequence of publication of false statement during the 205

election?
• Publication of False Statement 205
Q. What is the meaning of expression 'statement of fact 'used in Section 205

123(4) of the R.P. Act, 1951?

• Meaning of the Expression 'Statement of Fact' Used in Section 123(4) of 205
1951-Act
Q. What are the ingredients to be satisfied to invoke Section 123(4) of the 207
R.P. Act, 1951?
• Ingredients to be Satisfied under Section 123(4) 207
Q. What do you mean by word 'Calculated' used in Section 123(4) of the 207
R.P. Act?
• Meaning of the Word 'Calculated' 207
* Free Conveyance 208
• According to Section 123(5) of 1951-Act 208
Q. "Hiring or procuring of vehicles for the conveyance of voters constitutes 208

corrupt practice"
Q. Do you agree with the statement? 208
• Ingredients to Satisfy Provisions under Section 123(5) 208
Q . Discuss the ingredients to be satisfied to invoke the provisions of 209

Section 123(5) of the R.P. Act, 1951?
* Election Expenditure 209
Q. Discuss the different provisions with respect to 'Election expenditure'. 210
• Scope and Object of Section 123(6) 210
Q. Critically analyse the scope and object of Section 123(6) of the R.P. 210
Act?
• When Expenditure is Accountable 211
Q. What do you mean by expression 'expenditure incurred or authorised'? 212
• Meaning of 'Expenditure Incurred or Authorised' 212
* Procuring Assistance of Government Servants 213
Q . "Obtaining or procuring of assistance of government servants 213

constitutes corrupt practice"
• According to Section 123(7) of the 1951-Act 213
Q. Do you agree with the statement? 213
• Scope of the Provisions 214
Q. Discuss the scope of Section 123(7) of the R.P. Act? 214
Q. What are the ingredients to invoke Section 123(7) of R.P. Act? 215
• Ingredients of the Provisions of Section 123(7) 215

Q . What is the nature of assistance obtained or procured by the 215
government servants constitutes the corrupt practice under Section
123(7) of the R.P. Act? Discuss with decided cases?
• Nature of Assistance 215
* Offences Relating to Elections under IPC 216
• Bribery Means 216
• Undue Influence at Elections 216
• Personation at Elections 216
• Punishment for Bribery 217
• Punishment for Undue Influence or Personation at an Election 217
• False Statement in Connection with an Election 217
• Illegal Payments in Connection with an Election 217
• Failure to Keep Election Accounts 217
* Case Laws 218
Q. Discuss the facts and decision in H.V. Kamath v. C.H. Nitraj Singh. 218
Q. Propaganda based on exemption from land revenue does not amount to 219
corrupt practice within the meaning of Section 123(1)(A) of the R.P.Act.
Q . Where the candidate procured vehicle in which few electors were 220
conveyed found not a corrupt practice within the meaning of the Act
Q. Appeal on the ground of religion 220
Q. Discuss the facts and law laid down in Kultar Singh v. Mukhtiar Singh, 221
case
Q. Where it was alleged that the Minister used discretionary funds to bribe 222
the voters
Q. "In Manohar Joshi v. N.B. Patil the appellant (Manohar Joshi) won the 223
case more on the ground of technical errors committed by the respondent
in the pleadings and the High Court in the interpretation of relevant
provisions of R.P. Act than on the non-commission of corrupt practices
under Section 123(3) and (3A) of the R.P. Act." Comment
Q. In an election to Maharashtra Legislative Assembly M, a BJP candidate 225

was declared elected by majority of votes. His election is being challenged
by N an elector of the constituency on the ground of commission of
corrupt practices by M under Section 123(3) and 123(3A) of the R.P. Act,
1951

Q . N alleged that M delivered several speeches in the constituency in 225
which he made the following statements
Q. (a) M said to voters that he was a good Hindu, whereas Z, his rival 226
candidate set up by Congress-I, was not a good Hindu because Z had a
Christian wife and was opposed to Hindutva or Hinduism.
Q . (b) M said that if he was elected the first Hindu State will be 226
established in Maharashtra
Q. Appeal on the ground of religion 226
Q. What do you mean by "undue influence"? Is it a different concept for 228

election law? Support your answer with reference to Narbada Prasad case
Q . In an election petition X, a defeated candidate, alleged that M the 228

returned candidate published a statement containing, inter alia, the
following remarks which led to his defeat "Any one who votes for X will be
committing a sin of Go-Hatya"
Q. Disucss in the light of decided cases whether X will succeed in setting 228
aside the election of M
Q. Briefly discuss the facts and the law laid down in Dev Kant Barooah 229
v.Golak Chandra case
Q . A's election to an assembly seat is challenged by B, a defeated 229

candidate on the ground of commission of corrupt practices under Section
123 of the R.P. Act 1951. The main allegation relates to the publication of
a pamphlet by A
Q. "B, was anti-national as he had supported the British Rule during the 229
Quit India Movement in 1942"
Q. A engaged you to defend his election. Repeal the allegations of B in the 229
election petition on legal grounds
Table of Cases 231
© Universal law Publishing Co.

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CONTENTS

INTRODUCTION AND MEANING OF ELECTION

* History of Elections in India 1

• Definition of the Term "Election" 4

• Meaning of the Term "Electioneering" 5

• Meaning of the Phrase "Electoral Right" 5

• Electronic Voting System or Computerised Voting System 5

Q. For making the democracy more meaningful 6

• Principle behind the Term 'Election' 6

Q. Explain the system of election prevalent in India 6

Q . Single transferable vote system is designed to ensure more diverse 6

Q. Now, only one vote to be cast by each elector 7

Q . Why the word 'election' used in wide sense in Part XV of the 7

• Electoral Right and Nature of Election Proceedings 8

Q. Right to elect is neither a fundamental right nor a common law right, it 8

Q. Right to elect and right to be elected do not inherit in a person 8

Q . In what manner the Halsbury's Laws of England expressed the 9

• Commencement of the 'Election' in Halsbury's Laws of England 9

Q. What are the principles of Election Law? 9

• Principles of Election Law 9

* Preamble to the constitution of india 10

• Expression 'We the People' in Constitution of India 10

09-05-2022 (Page 1 of 23) www.manupatra.com Jamia Millia Islamia

• The Words "Sovereign Democratic Republic": in our Constitution 11

Q. 'Sovereign Democratic Republic', means both externally and internally 11

• Model Code of Conduct by Election Commission of India for the Guidance 11

IV. Polling Day 13

VII. Party in Power 14

* Frequently Asked Questions (Faqs) on select Model Code of Conduct 15

Q. What is the Model Code of Conduct? 15

Q. What is the Role of Election Commission in the Matter? 15

Q . From which Date the Model Code of Conduct is Enforced and 16

Q . What is Applicability of Code During General Elections and Bye- 16

Q. What are the Salient Features of the Model Code of Conduct? 16

Q . Whether a Minister can Combine his Official Visit with Electioneering 16

Q. Whether Government Transport can be Used for Electioneering Work? 16

Q. Whether Government can Make Transfers and Postings of Officials who 16

Q. Suppose an Officer Related to Election Work has been Transferred by 16

Q. Whether a Minister of Union or State can Summon any Election-Related 17

09-05-2022 (Page 2 of 23) www.manupatra.com Jamia Millia Islamia

Q . Can an Official Meet the Minister on his Private Visit to the 17

Q. Suppose there is a Visit of President/Vice President at any Place in the 17

Q . Whether Facility of Official Vehicles can be Withdrawn from those 18

* ON WELFARE SCHEMES, GOVERNMENT WORKS ETC. 18

Q. Is there any Restriction on Issue of Advertisement at the Cost of Public 18

Q . Whether a Minister or any other Authority can Sanction 18

Q . Whether Money can be Withdrawn from Treasury Against the 18

Q . Suppose Work Order has been Issued in Respect of a Scheme or a 18

Q. Whether State Government can Seek Clarification/Clearance/Approval in 18

Q . What are the Main Guidelines for Political Parties/Candidates while 18

Q . Are their any Restrictions in Using Religious Places for Election 19

Q . Can a Candidate go to the Office of Returning Officer for Filing a 19

Q. How many Persons are Allowed at the Time of Scrutiny of Nominations 19

09-05-2022 (Page 3 of 23) www.manupatra.com Jamia Millia Islamia

Q. Whether there is any Restriction for Plying of Vehicles for Electioneering 19

Q . Can a Vehicle be Used for Electioneering Purposes Without Getting 20

Q . Whether there is any Restriction on Use of Educational Institutions 20

Q . Is External Fitting/Modification Allowed in the Vehicles Used for 20

Q. Is there any Restriction or Use of Rest Houses, Dak Bungalows or other 20

Q . Are there any Conditions for Getting Government Aircraft/Helicopters 21

Q. Is there any Restriction on Displaying Poster, Placard, Banner, Flag etc 21

Q . If Local Law/Bye-laws Permit Wall Writings and Pasting of 21

Q . Is there any Restriction on Displaying/Carrying Poster/ 22