1
UNIT - 1 most striking feature of the Councils Act of 1892 was that it
Introduction
Election is a procedure for aggregating preferences. It is a
process by which people elect a few of them to govern all of them
since total self-government is not practicable in the present form
of society. The constitution of India describes India as a
Democratic Republic. Democracy, apart from being a set of
ideals, is a political system. Generally accepted essential features
of this system are:
a. Equal rights to all individuals to participate in the
process
b. Rule by majority and
c. Freedom of expression
Democratic government is the government by consent and
consent is not assumed one but real one expressed freely by
specific process periodically. This process is election.
Elections have become integral part of our social and political life.
We elect our President and Vice President, legislatures,
representatives in local bodies like Municipal Councils and
Panchayats , in Co-operative societies, Union and associations and
various other bodies.
Evolution of Democracy and Election System
The Principle of representation, and in an indirect way of election,
was first incorporated in the Indian Councils Act of 18921. The
cautiously introduced elective element in the Councils. Although
the framers of the Act deliberately avoided the use of the word
'election' in the Act but the provisions of the Act contained a
scheme which required that all the members of the Legislative
Councils were not to be nominated by the Government. A certain
number of them were to be non-official members nominated by
the Head of the Government from amongst the panel
recommended by the local bodies, such as Municipal Committees,
District Boards, Chambers of Commerce, Zamindars and
University Senates. The Supreme Legislative Council was to
accept the non-official members recommended by the Provincial
Council of Madras, Bombay, Bengal and North-West Province and
also one representative of the Chamber of Commerce at Calcutta.
Thus the system of indirect election was introduced by the Act
of 1892 for the inclusion of non-official members in the
Legislative Councils of India.
The Indian Councils Act 1909
The Indian Councils Act 1909 (known as Morley-Minto Reforms)
constitutes a landmark in the constitutional history of India. The
most important aspect of the Act was the increase of the
representative element in the Legislative Councils and the
extension of their powers. An elective principle having been
introduced under the Act of 1892, the Act of 1909 extended
that principle somewhat further.
 2

The Act greatly increased the strength of the Supreme The Act initiated a 'sort of responsible government' in the
Legislative Councils. The numberof "Additional Members "which Provinces. The Act also introduced dyarchy in the Provinces.
was not more than sixteen under the Act of 1892 was raised to Matters of administration were first divided between the Centre
sixty. and the Provinces and then the Provincial subjects were further
bifurcated into the 'transferred', and 'reserved' subjects. The
The Indian Councils Act 1909 introduced the principle of election
'transferred' subjects were to be administered by the Governor
in the Supreme and the Provincial Legislative Councils. Twenty
with the aid of the Ministers responsible to the Legislative
seven out of sixty nine members of the Central Legislative Council
Council composed mainly of elected members. Thus, responsible
were elected from different electorates. Similarly the Provincial
government was sought to be created in a Limited sphere. The
Councils are suppose to have a fixed number of elected members
'reserved' subjects were to remain the responsibility of the
as was determined by the Regulations. Thus the elective principle
Governor and his Executive Council, which was not responsible to
which was hitherto cautiously and deliberately avoided was now
the Legislature. The governor General in Council continued to be
conceded to Indians by the Act of 1909. The system of election
responsible as before to the British Parliament through the
was, however, indirect. The people elected the members for their
Secretary of State for India. There was an intention however to
local bodies like Municipalities, District Board, etc. These local
make the Central Executive more responsible to the Legislature2.
bodies in turn elected the members for the Provincial Legislative
During the discussions in the Constituent Assembly, there
Councils. The members so elected to the Provincial Councils,
emerged almost from the very beginning a consensus of opinion
further chose the members for the Supreme Legislative Councils.
that the right to vote should be treated as a fundamental right
Thus the election to the Supreme Legislative Council was by a
of the adult citizen; and in order to enable him to exercise this
double indirect method and people had no direct contact with
right freely, an independent machinery to control the elections
these members.
should be set up, free from local pressures and political
Another important feature of the Indian Councils Act 1909 was influences3.
the introduction of separate and special electorates for
The Committee came unanimously to the conclusion that :
providing representation to certain classes and communities with
a view to safeguarding their interests. 1. Universal adult suffrage must be guaranteed by the
Constitution,
The Government of India Act 1919
2. Elections shall be free, secret and periodical, and

3. Elections shall be managed by an independent
Commission set-up under Union Law4.
The Fundamental Rights Sub-Committee and the Minorities Sub-
Committee agreed that the following should be included in the
list of fundamental rights :
1. Every citizen not below 21 years of age shall have the
right to vote at any election to the Legislature of the
Union and of any unit thereof, or, where the legislature
is bicameral, to the lower chamber of the legislature,
subject to such disqualifications on the ground of
mental incapacity, corrupt practice or crime as may be
imposed, and subject to such qualifications relating to
residence within the appropriate constituency as may be
required, by or under the law.
2. The law shall provide for free and secret voting and for
periodical elections to the Legislature.
3. The superintendence , direction and control of all
elections to the Legislature, whether of the Union or of
a unit, including the appointment of election tribunals,
shall be vested in an election commission for the Union
or the unit, as the case may be, appointed, in all cases,
in accordance with the law of the Union.
Nevertheless, the Advisory Committee, on Minorities,
Fundamental Rights, while agreeing in principle with this clause,
"recommended that instead of being included in the list of
3
fundamental rights, it should find a place in some other part of
the Constitution"5
The Constituent Assembly, framed the Indian Constitution,
though elected under limited franchise provided by the
provisions of the Indian Independence Act, 1947 aimed at
securing national and social revolution by adopting what has been
termed as a Democratic Constitution for a free India. The
Assembly's adoption of a democratic, centralized, parliamentary
constitution meant the members believed that to achieve the
objective of o g social revolution India must become a modern
state6.
India’s General Elections
As has been noted the Constitution entered into effect on 26th
January, 1950r It provided for direct election to Lok Sabha and
State Legislative Assemblies on the basis of universal adult
franchise. Preparations were immediately begun to hold these
elections. Inspite of all best efforts of Pandit Nehru the
elections were not held until some two years later, in late 1951
and early 1952 as the details of the law and procedure for holding
the elections had to be made by taking appropriate legislative
measures. The first General Elections attracted a good deal of
enthusiasm and attention in the country as well as abroad. In its
report the Election Commission of India observed that it was "a
great and fateful experiment unique in the world in its
stupendousness and complexities. The carrying out of this
unprecedented experiment attracted world-wide attention and
journalists, politicians and other observers came from numerous

foreign countries to study its working at first hand . The voting
"was scheduled at different times in different places, extending
over a period of some four months, from 25 October 1951 to 21
February 1952, although 46 most of the voters went to the polls
in January 1952. The size of the electorate was 173 million and
nearly 88 million of them actually voted. The total number of
seats was 489. The first Lok Sabha was constituted on 17 April,
47 1952. In the first Lok Sabha, 489 seats were filled by persons
chosen by direct election from territorial constituencies by adult
suffrage, 2 by persons nominated 48 by the President under a
constitutional provision and 8 by persons nominated by the
President under special circumstances. Thus the First Lok Sabha
was duly constituted in 1952 after the First General Elections.
The new Lok Sabha constituted on 20 June, 1991 is the Tenth.
Types of Election
There are four types of elections in India:
1. General Elections
These elections are conducted for electing the members of Lok
Sabha. The members elected during these elections are called
MP’s (Member of Parliament). General elections are held in every
5 years.
2. Assembly Elections
The State Assembly elections in India are the elections in which
the Indian voters choose the members of the Vidhan Sabha (or
4
State/Legislative Assembly). These elections are held every 5
years and the chosen members are called MLA’s.
3. Rajya Sabha Elections
The members of Rajya Sabha are elected by the governing body
of each state and union territory. There are 250 members in
Rajya Sabha, out of which 12 are selected by the President of
India. Out of 250, 238 are indirectly elected by the legislature
of each state and union territory.
4. President Elections
Elected members of the houses (Lok Sabha and Rajya Sabha),
state legislatures (Vidhan Sabha), are assigned the task of
electing the President of India. President serves for a period of
five years.
Election Process for the Lok Sabha (India)
Lok Sabha is composed of representatives of the people chosen
by direct election on the basis of the adult suffrage. The
maximum strength of the House envisaged by the Constitution is
552. This may include up to 530 members from the states, up to
20 members from the Union Territories. The president can
nominate two members from Anglo-Indian community.
Below mentioned are the various aspects of elections to the Lok
Sabha
Direct Election

The members of Lok Sabha are elected through direct election
by the people. Every citizen of the country, who is more than 18
years of age, can vote in the election irrespective of his/her
social status, religion, caste, race etc.
Territorial Constituency
Each state is divided into territorial constituencies for the
purpose of elections. One member of Lok Sabha is elected from
each constituency. That means, the number of seats for the
election are equal to the number of constituencies.
Readjustment of constituencies after each census: After every
census, there may be a need to readjust the constituencies; as
the delimitation is based on population and not on area.
Reservation of seats for SCs and STs: The constitution provides
for reservation of seats for Scheduled Castes (SCs) and
Scheduled Tribes (STs) in the Lok Sabha. The 95th Amendment
Act, 2009 extended the period of reservation for further ten
years till 2020.
As per the 87th Amendment Act, 2003, the number of seats to
be reserved for the Scheduled Castes (SCs) and Scheduled
Tribes (STs) in the Lok Sabha and Rajya Sabha shall be on the
basis of 2001 census.
Election Process for the Rajya Sabha
Rajya Sabha is the Upper House of Parliament, which cannot have
more than 250 members. Members of Rajya Sabha are not
elected by the people directly. They are elected by the members
5
of the legislative assemblies of the states in accordance with the
system of proportional representation by means of the single
transferable vote. Every State is allotted a certain number of
members. Representatives of union territories are chosen as
prescribed in the law enacted by Parliament7. Twelve members of
the Rajya Sabha are nominated by the President, who has earned
distinction in the fields of literature, art, science and social
service. Rajya Sabha is a permanent body. It is not subject to
dissolution but one-third of its members retire after every two
years. At present, Rajya Sabha comprises of 245 members.
Elections Process for the State Legislative Assemblies
Direct Election: The legislative assembly is composed of
representatives of the people chosen by direct election on the
basis of the universal adult suffrage. The maximum strength is
fixed at 500 and minimum strength at 60.
Nominated Member: The governor can nominate one member
from Anglo-Indian community if, in his opinion, the community is
not adequately represented in the House.
Territorial Constituencies: Each state is divided into territorial
constituencies for the purpose of elections. One member of
legislative assembly is elected from each constituency.
Readjustment after each census: After each census, a
readjustment is to be made in the total number of seats in the
legislative assembly of each state and the division of each state
into territorial constituencies.

Qualifications in Election Law
The term ‘qualification’ is used in the Election Law to denote basic
requirement which a person must satisfy to enjoy an electoral
right. The Concise Oxford Dictionary defines qualification to
mean as An accomplishment fitting a person for a position or
purpose”.
It is a condition that must be fulfilled before a right can be
acquired. Different qualifications may be prescribed for being an
elector and for being a candidate at an election. Qualifications
for being elected as a President of India or the Vice President of
India have been laid down in Constitution itself. Qualifications
for being a Member of Parliament or a State Legislature have
been laid down in the Constitution and in the Representation of
People Act, 19518. Qualifications for being a Member of a local
body like Municipal Councils or the Panchayats are laid down by
the Status governing those elections.
Qualifications may relate to age, residence, citizenship,
education, registration or holding of a minimum number of shares.
Qualifications are positive facts prescribed as condition without
existence of which the person is not entitled to enjoy his
electoral right. This has nothing to do with the personal qualities
like honesty, respect for truth, kindness, being learned or
spiritual man. These are all abstract qualities which a voter may
consider while weighing the relative merits of the candidate in
the field but those have nothing to do with the Election Law.
6
Suitability of the candidate to the post is not a qualification
essential in law. Anybody, who fulfills the minimum requirement,
is entitled. If the statute does not prescribe specific
qualification, it cannot be imported on the basis of logical
inferences. There is representation for graduates in the
Legislative councils of various states where the Legislature is
bicameral. Normally it is prescribed that a candidate should be
an elector in that election. However, no such requirement is
prescribed so far as the graduate constituencies are concerned.
Therefore, any person may contest and may represent the
graduates even though he himself is not a graduate.
Article 58 of the Constitution prescribes that no person shall be
eligible for election as President unless he is a citizen of India,
has completed age of 35 years and is qualified for election as a
Member of the House of People. Art. 66(3) of the Constitution
lays down the eligibility for election as Vice President. It
prescribes that he should be a citizen, should have completed 35
years of age and should have been qualified for election as
Member of the Council of State. Article 84 of the Constitution
lays down that a person shall not be qualified to be chosen to fill
a seat in Parliament unless he is a citizen of India and makes and
subscribes before some person authorised in that behalf by the
Election Commission an oath or affirmation according to the form
set out for the purpose in the Third Schedule and in the case of
a seat in the Council of States, not less than 30 years of age and
in the case of seat in the House of People, not less than 25 years

of age and possesses such other qualifications as may be
prescribed in that behalf by or under any law made by the
Parliament9.
Similar qualifications have been laid down by Article 173 of the
Constitution for membership to the State Legislature. Minimum
age of 25 years is prescribed in that behalf by or under any law
made by the Parliament. Similar qualifications have been laid down
by Article 173 of the Constitution for membership to the State
Legislature. Minimum age of 25 years is prescribed for being a
Member of the Legislative Assembly and 30 years for being a
Member of Legislative Council. Part II of the Representation of
People Act, 1951 containing section 3 to 6 prescribes additional
qualifications for membership of Legislatures.
Section 3 lays down that a person shall not be qualified to be
chosen as a representative of any State or the Union territory in
the Council of States unless he is an elector for a Parliamentary
constituency in that State or territory. Clause (b)
of S.4 prescribes that for an election to the House of People, one
must be an election for any parliamentary constituency. It is thus
clear that an elector of Parliamentary constituency in State can
be elected as a Member of the Council of States to represent
that State but for Loksabha i.e. House of People, one need not be
an elector from that State. It will suffice that he is an elector
from any constituency in India since the representation in the
House of People is not state wise. Where the names were duly
entered in the electoral roll and they did not suffer from any of
the disqualification mentioned in the Act, it was held that they
7
where the electors within the definition of the expression and
they were qualified to be chosen as candidates under S. 3 of the
Representation of People Act, 1951.
Similarly, Section 5 of the Act of 1951 requires that a candidate
for the election to the Legislative Assembly of a State must be
an elector for any Assembly constituency in that State. Section
6 of the said Act lays down that a person shall not be qualified
to be chosen to fill a seat in the Legislative Council of a State to
be filled by election unless he is an elector of the Assembly
constituency in that State. Legislative Councils have some seats
to be filled in by nomination by the Governor. Sub-section(2) of
Section.6 lays down that a person shall not be qualified to be
chosen to fill a seat in the Legislative Council of a State to be
filled by nomination by the Governor unless he is ordinarily
resident in that State.
Disqualification of Members
Disqualification in election law is ground which debars a person
from contesting or holding an elective post. Constitution of India
prohibits persons suffering from disqualification laid down under
the relevant provision to contest and hold the post of the
President and Vice-President, Member of Parliament or State
Legislature. These are constitutional disqualifications. Apart
from it, Article 102(1)(e) and Article (1)(e) of the Constitution of
India declares that a person would be disqualified from being
chosen as and for being the Member of Parliament or State
Legislature respectively, if he is so disqualified by or under law

made by Parliament. Constitution thus authorizes Parliament to
prescribe further disqualification.
The Representation of the People Act 1951 is the Act made by
Parliament in furtherance of this power. Chapter III of the said
Act by Section 8 to 10A lay down certain disqualification for
being a member of the Legislature. So also, State laws governing
local bodies like District, Taluka and Village Panchayats, Municipal
Corporations and Councils do prescribe
disqualification. Voluntary bodies like Co-operative Societies do
have power to frame bye-laws and they may prescribe
disqualification dis-entitling their members from contesting or
holding an elective post in the management of that body.
President , Vice- President and Legislators
Constitutional disqualification for the post of the President of
India under Article 58(2) of the Constitution is that he should
not be holding any office of profit under the Government of India
or the Government of any State or under any local or other
authority subject to the control of any of the State Government.
Similar provision has been made by Article 66(4) in respect of
the post of Vice-President. For the Membership of Parliament ,
Article 102 disqualifies a person holding office of profit under
the Government of India or the Government of any State other
than an office declared by the Parliament by law not to disqualify
its holder, being of unsound mind and was declared by competent
Court being an undischarged insolvent, having acquired the
citizenship of a foreign State or under any acknowledgment of
8
allegiance or adherence to a foreign state or is disqualified on
the ground of defection as per the provisions contained in the
10th Schedule of the Constitution. Article 191 of the Constitution
declares a person disqualified from being a member of the State
Legislature if he is subject to any disqualification listed in that
Article, which are identical to the disqualifications prescribed
under Article 102 of the Constitution for being a Member of the
Parliament.
Holding Office of Profit
The expression ‘office of profit’ has not been defined either in
the Constitution or in the Representation of people Act 1951.The
word ‘office’ is of indefinite content and as Lord Wright observes
in McMillan v. Guest [1942 AC 561], it can be taken to be ‘a
position or place to which certain duties are attached, especially
one of more or less public character’.
If a profit does actually accrue from office, it is an office of
profit, no matter how it accrues. A person who holds an office of
Oath Commissioner receives fees for his service but is not paid
any salary from the Government funds. But it is an office of
profit which enables him to make profit by receiving fees to
whom he administers 10.
Phrase ‘holding of office’ prima facie indicates that the office
and the holder must be separate and the office must be in
existence independently of its holder. An office or an
employment must be subsisting, permanent, substantive position
which had an existence independent from the person who filled

it, which went on and was filled in succession by successive
holders.
Before a person is held to be disqualified under Article 19(1)(a),
three things must be proved:
a. That he held an office
b. That it was an office of profit
c. That it was an office of profit under the Government of
India or the State Government
In Dr. Deoroa Laxman Ananda v. Keshava Laxman Borker [AIR
1958 Bom 314], Bombay High Court explained the object of the
provision ,it is to secure independence of the members of the
Legislature and to ensure that the Legislature does not contain
persons, who have received favour or the benefits from the
executive and who consequently, being under an obligation to the
executive, might be amenable to its influence. Provision appears
to have been made in order to eliminate or reduce the risk of
conflicts between the duty and self-interest , amongst the
members of the Legislature.
Being of Unsound Mind
Second constitutional disqualification is to be of unsound mind
and stand so declared by a competent Court in respect of the
membership of the Parliament which has been provided by Article
102 and in respect of membership to the Legislature under
Article 191. Both provisions keep the issue whether a person is
actually of unsound mind or not outside the jurisdiction of the
9
election authority. Declaration that a person is of unsound mind
should come from competent Court as provided in Indian Lunacy
Act 1912. Therefore, unless there is a declaration by the
competent Court, it cannot be agitated before the Returning
officer or the Election Tribunal that the candidate is of unsound
mind.
Undischarged Insolvent
Third constitutional disqualification is being an undischarged
insolvent. If a person is adjudged insolvent by competent
authority under the Presidency Towns Insolvency Act 1909, or
provincial insolvency Act , 1920 and is not yet discharged from
the said position, then he is disqualified from being member of
any legislature. If the order adjudging a person insolvent is
annulled automatically because of statutory provision, such
person does not remain undischarged insolvent and is not
disqualified.
Not Being Indian Citizen
Fourth Constitutional disqualification is not being a citizen of
India or voluntary acquisition of the citizenship of a foreign
State or being under acknowledgment of allegiance or adherence
to a foreign state. This has been provided by Article 102(1)(d)
and Article 191(1)(d). Enforcement of rights of the citizenship
are dealt with in Part II of the Constitution and Article 9
provides that if any person voluntarily acquires citizenship of a
foreign state, then he shall be deemed to be the citizen of India.
The Central Government is vested by Section 9(2) of the

Citizenship Act , the exclusive jurisdiction to determine the
question whether a person has acquired citizenship of a foreign
nation and it cannot be considered by any other Tribunal or Court.
Therefore, question will have to be determined by the Central
Government only in exercise of its power under Section 9(2) of
the Citizenship Act. Article 5 of the Constitution requires that a
person must have domicile in the territory of India to acquire
citizenship.
Defection
The tenth schedule appended to the Constitution contains
provisions as to the disqualification on the ground of defection.
If a member of the House belonging to any political party
voluntarily gives up his membership of such political party or
votes or abstains from voting in such House contrary to the
direction issued by a political party to which he belongs without
obtaining prior permission of such a party or the authority of the
party for such voting or abstention and when such voting or
abstention in contravention of the directives of the party is not
condoned within 15 days, of such voting of abstention , shall be
disqualified. Clause 5 of the said Schedule exempts Speaker,
Deputy speaker of the Lok Sabha and State legislative Assembly
and Deputy chairman of the Council of a State and Chairman and
Deputy Chairman of the Legislative Council of a State, if they
voluntarily give up membership of a political party after their
election to the said office or thereafter rejoins that or another
party. The decision on the question as to the disqualification is
to be taken by the Chairman or the speaker of the House to which
10
the person belongs and his decision is final. Clause 7 bars
jurisdiction of the Court to go into question of the
disqualification of a member of the House under the Tenth
Schedule.
Statutory Disqualification
Sub- Section (1) of Section 8 of the Act of 1951 gives the list of
offences under which convicted person shall stand disqualified
for a period of six years from the date of conviction irrespective
of the sentence. Sub- Section (2) gives the list of offences,
conviction under which will disqualify the person for a period of
six years commencing from the date of his conviction ending
after a period of six years from the date of his release provided
that the sentence of imprisonment passed on him is not less than
six months. The conviction of offences listed in sub-section (1)
would disqualify for six years irrespective of the sentence and
conviction for offences listed under sub- section(2) would
disqualify the person only of his sentences is for six months or
more but the total period of disqualification is more than what
would be normally under sub-section (1) because sub- section(2)
provides that he will be continued to be so disqualified for a
period of six years from date of his release. If a Member of
Parliament of the State Legislature is convicted, then the
disqualification will take effect after lapse of a period of three
months from the date of conviction and will not take effect if an
appeal or revision has been filed challenging the said conviction
and sentence until the appeal or application is disposed of by the
Court.

What Offences would Disqualify
The Representation of People’s Act 1951, classifies offences ,
the conviction under which would invite disqualification into three
categories. Offences under the first category would invite
disqualification irrespective of the quantum of sentence. These
are offences promoting enmity between different groups of
religion, race, place of birth, residence, language, etc and doing
acts prejudicial to maintenance of harmony, offences of bribery,
undue influence or personation at an election, offences relating
to rape, offences relating to cruelty towards a woman by husband
or a relative of husband or offences making statements creating
or promoting enmity or hatred or ill-will between classes of
society or making such statements at any place of worship or in
assembly engaged in performance of religious worship or religious
ceremony.
Second category is of those offences which would disqualify a
person from the date of such conviction and the disqualification
will continue until the end of period of six years since release, if
sentence is for a minimum period of six months.
In the third category disqualification will follow on the basis of
the sentence if it is not less than two years irrespective of the
nature of the offence.
Moral Turpitude
Where disqualification is consequence of conviction for specific
offences or quantum of sentence awarded, there is no difficulty
in applying these prohibitions. However in some
11
statutes disqualification is earned on conviction for offences
involving moral turpitude. For instance , Section 15(d) of the City
of Nagpur Corporation Act 1948, lays down that “no person shall
be eligible for election as a Councilor if he has been sentenced by
any Court to imprisonment or whipping for an offence involving
moral turpitude and punishable with imprisonment for a term
exceeding six months, or to transportation , unless a period of
five years or such period as State Government may allow in any
particular case, has elapsed since his release’.
Reservation for Scheduled Castes and Scheduled Tribes
The idea of reservations in favour of religious minorities was
dropped by consensus and the reservation was confined to the
Scheduled Castes and the Scheduled Tribes only. The Advisory
Committee’s report submitted to the Constituent Assembly
recommended joint electorates for elections to the Central and
Provincial legislatures. It recommended reservation only in favour
of Scheduled Castes or Scheduled Tribes. Plural member
constituencies were permitted but not the cumulative voting. It
was recommended that this reservation shall be for 10 years, the
position to be reconsidered at the end of the period.
Article 294 in the draft Constitution provided for reservation of
seats for Scheduled Castes and Scheduled Tribes in the
Legislative Assembly of every State, except in the autonomous
districts of Assam. Seats were also to be reserved for
autonomous districts in the Legislative Assembly of Assam. The
number of seats reserved for the Scheduled Castes and

Scheduled Tribes were to be as far as possible in proportion of
their ratio in the population. Draft Article 295-A provided that
the reservation shall cease to have effect on expiration of a
period of 10 years from the commencement of the Constitution.
Dr.Ambedkar told the Constituent Assembly that he was in
favour of longer time for reservation in favour of Scheduled
Castes and Scheduled Tribes as compared to other minorities but
the limitation has been imposed with the consent of the members
of Scheduled Castes also.
By Constitution (Twenty-third Amendment) Act, 1969, the period
of reservation in favour of Scheduled Castes and Scheduled
Tribes was extended to 30 years. A challenge to said Amendment
Act was negatived by Division Bench of Orissa High Court holding
that the right of franchise or the right to a public office by the
democratic process is not a fundamental right. Twenty-third
Constitutional Amendment has not interfered with the provisions
of Part III of the Constitution.
By 45th Constitution Amendment made by the Act of 1980, the
reservation period was extended from 30 year. Challenge to the
said amendment and extension was negatived by the learned
Single Judge of Rajasthan High Court holding the Amendment
Act intra vires.
Article 330 of the Constitution of India provides for reservation
of seats for Scheduled Castes and Scheduled Tribes. Seats so
reserved shall be in proportion of the population of the
12
Scheduled Castes and Scheduled Tribes in the State in relation
to the total seats allotted to that State or Union territory. Seats
reserved for the Scheduled Tribes in the autonomous districts
of Assam shall not be less than the proportion of the population
of the Scheduled Tribes in the said autonomous districts in
relation to the total population of the State of Assam. While
working out the reservation, the world ‘population’ shall be
construed to mean the population ascertained at the last
preceding census of which the relevant figures have been
published as per explanation to sub-Article (3).
Seats allocated to each State and reserved for Scheduled Castes
and Scheduled Tribes out of those have been shown in First
Schedule to the Act of 1950. Out of the total 543 seats 79 have
been reserved for the Scheduled Castes and 42 for the
Scheduled Tribes. Second Schedule gives total number of seats
in each of the State Legislatures and number of seats reserved
for Schedule Castes and Scheduled Tribes therein. Third
Schedule shows allocation of seats in the Legislative Council in
the five States which have a bicameral Legislature. There is no
reservation for Other Backward Classes and Women in
Legislatures.
However, Seventy-Third Amendment of the Constitution
inserting Part IX and Part IX-A in the Constitution made it
possible for the State Legislature to have seats reserved for
other backward classes in Panchayats and Municipal Council in
favour of the women. These reservations shall be in the total

seats and in all categories. Therefore, whenever certain seats are
reserved for the Scheduled Castes, one-third of those seats
shall be reserved for the Scheduled Castes women. Same is the
case with the reservation for Scheduled Tribes.
Art. 243-D and 243-T make it imperative to have reservation in
favour of Scheduled Castes, Scheduled Tribes and women.
Reservation for Scheduled Castes and Scheduled Tribes shall be
nearly as may be in proportion to the population of Scheduled
Castes and Scheduled Tribes in the Panchayat area and the
municipal area.
Candidate from reserved categories can contest general seats
also:
The purpose of reservation is to give special protection to the
Backward Classes which may not get adequate representation in
the absence of reservation. Reservation ensures that at least
minimum number of persons belonging to such class would get
elected. Reservation in favour of Scheduled Castes and
Scheduled Tribes does not mean that they are not entitled to
contest elections in unreserved constituency.
The reservation does not limit number of candidate of the
reserved category to be elected. Therefore, besides the
reserved seat, they can contest general seat and get elected thus
increasing the representation of such class in the House.
Art. 243-D(4) and Art. 243-T (4) of the Constitution direct the
reservation of Chairperson in local bodies in favour of Scheduled
13
Castes, Scheduled Tribes and women , and sub Art. (6) of both
these Articles enables State Legislatures to extend the same
benefit to Other Backward Communities. State legislatures have
now amended statutes relating to local bodies in conformity with
the constitutional requirement. Reservation of the Chairperson’s
post was challenged in a writ petition before Bombay High Court
on the ground that, a Chairperson’s post is a single post therefore
cannot be reserved as per Supreme Court’s own directions. High
Court ruled that, the observations of Supreme Court relate to
reservation in services and they do not apply to reservations in
the posts of Chairpersons. (Vinayakrao Gangaramji Deshmukh v.
P.C. Agrawal and others [AIR 1999 Bom 142])
When Chairpersons post is reserved for a category and a casual
vacancy because of death, resignation or any other reason arises,
the person elected in the casual vacancy will have to be of same
category for which post is reserved as he will hold office for
remainder of the term and not for usual full term (R. Prasanna
Kumar and another, etc. etc v. State of Karnataka and others
[AIR 1999 kar 271]). Since Posts of Chairpersons are reserved
for different categories for specific period, casual vacancy
arising in that period will be filled in for remainder of the period
reserved for that category and not for full term. Person who
would be elected will be from same category and will enjoy only
remaining period of reservations (Bhagwan Rambhau Karankal v.
State of Maharashtra [1997 (3) Mah LJ 81]).
Counting in Multi-Member Constituencies

When in a multi-number constituency one or more seats are
reserved for a category and one or more seats are unreserved,
normally the rules provide that the results of the seat shall be
declared first declaring persons securing highest number of
votes from the category successfully, and then the result of the
general seats is declared choosing persons securing highest votes
from the remaining candidates. Rule 34 of the Bombay Village
Panchayat Election Rules, 1959 directs that no completion of the
statement showing the number votes recorded, the Returning
Officer Shall from amongst the candidates qualified to be chosen
to fill in a reserved seat, if any, declare subject of the provisions
of Rule 5 the candidate who has secured the largest number of
votes to be elected to fill such reserved seat. Provided that if in
the same ward there is a reservation of seats for women and for
Scheduled Castes and/or Scheduled Tribes, the result of the
seat or seats reserved for Scheduled Castes or Scheduled Tribes
shall be declared first and then the results of seat or seats
reserved for women.
Sub-Rule (2) requires that the Returning Officer shall then
declare from among all other candidates, excluding those who
have been declared elected to fill the reserved seats, if any, the
candidate or candidates who have secured the largest number of
votes to be elected to fill the unreserved seats. This clearly
shows that after the results of the reserved seats is declared,
all candidates remaining in fray including candidates who had filed
nomination for the reserved seat will have to be considered for
14
declaration of result of the general seat and if such candidate
who was nominated for the reserved seat secures votes higher
than all the candidates for the general seats, then he will be
declared elected for the general seats.
Reservation for Women
The concept of reservation for women in the local bodies and the
Co-operative Societies is of recent origin. With the experience
of functioning of the democratic institution in the first 40 years
of independence, it was felt that the women who number about
50 per cent of the total population are not properly represented.
Though in the voting rights no distinction is made between the
male and female in India, inferior social status to which they are
subjected in male dominated society makes it difficult for them
to contest and get elected in the representative democracy.
Though the reservation has not yet been granted to them in the
legislatures, women have been given reservation in other bodies
like Panchayat, Municipalities and Co-operative Societies. 74th
Constitutional Amendment made in 1992 has now made it
imperative to have 1/3rd of the total number of seats in
Panchayats and Municipalities reserved for women. This
reservation is not only to be counted as against general seat but
it is in all categories including the reserved one. Therefore, in the
seat reserved for Scheduled Castes and Scheduled Tribes and
for the Backward Class, women belonging to that category shall
have 1/3rd seat reserved for them. Consequential amendments
have been made in different Panchayat and Municipal Acts.

While reservation of seats for the Scheduled Castes or
Scheduled Tribes generally adopted principle is to select the
constituency which contains largest number of that population
and these seats are rotated on this principle. But it is very
difficult to follow this practice so far as the reservation in
favour of women is concerned. Therefore, in an election under
the Hyderabad Municipal Corporation’s Act, 1956, constituency
for women was reserved on the basis of largest population of men
and women put together. This basis was objected to before the
Division Bench of Andhra Pradesh High Court in C. Satyanarayana
v. The Secretary Housing, Municipal Administration and Urban
Development Department. Govt. of A.P., Hydrabad [AIR 1981
Andhra Pradesh 81], the Division Bench negatived the challenge
and held that the basis is valid one. Learned Single Judge of
Gujarat High Court pointed out the necessity to rotate the
reservation from ward to ward and held that when 1991 census
was about to be completed, it is just unfair to hold elections on
the basis of 1981 census (Kumbhar Yakub Jusab v. Bhuj
Municipaliy [1991 (2) Guj LR 755]).
Reservation for women does not prohibit them to contest seats
unreserved and so also the seats reserved for other categories
like Scheduled Tribes or non-borrowers in Co-operative Society,
if they belong to that category. Therefore, a non-borrower
women can contest the election to the Managing Committee of a
Co-operative Society in Maharashtra on a Seat reserved for non-
borrowers. She is not disqualified merely because she is a women
and a separate reservation is carved out for her. She can also
15
contest a seat reserved for women since reservation for women
under Section 73 BBB is not restricted to the borrower women
under the Maharashtra Co-operative Societies Act 1960. Under
the Maharashtra Act, there can be only one seat reserved for
the non-borrowers in the Managing Committee of the Co-
operative Societies Act, 1960 to prevent a non-borrower member
from contesting the seat reserved for Scheduled Castes,
Scheduled Tribes, Weaker sections of the Society or women if
that non-borrower women belongs to that category (Tarabai
Bhimrao Kale v. The Returning Officer to the Elections [AIR 1994
BOM 192]). Section 16(2)(b-2) of the Orissa Panchayat Samiti
Act required that not less than 1/3 seats reserved for backward
class communities shall be reserved for women belonging to
backward class citizens. Total number of seats for backward
class was 7. One third of this number is 2.33. No specific
provision in the statute or rules stated that the fraction should
be in round figure. Looking to the mandate that not less than 1/3
of the total number of seat shall be reserved for women
belonging to backward class of citizens, authorities rounded .33
to 1 and reserved three seats. A writ petition challenging this
action on the ground that there is an excess reservation in favour
of women was rejected by the Orissa High Court (Bibhuti Keshari
v. State of Orissa and others [AIR 1998 Orissa 147]).

UNIT - 2
Introduction
An independent authority to conduct and supervise elections of
the Union and State Legislature and for the office of the
President and Vice President of India is created under Article
324 of the Constitution of India . K.M Munshi had proposed the
following Draft Article to be included in the fundamental rights:
Every citizen has the right to choose the Government and the
Legislature of the Union and his State on the footing of equality
in accordance with the law of Union or the Unit as the case may
be, in free, secret and periodical election”.
Composition of Election Commission
It was originally proposed that the superintendence, direction
and control of all elections to the Legislature including
appointment of Election Tribunal shall be vested in Election
Commission for the Union or the Unit as the case may be,
appointed in all cases in accordance with the law of the Union. But
in the Advisory Committee , Dr. Rajgopalachari suggested that
the provisions regarding elections should not be included in the
16
fundamental rights. Accepting the suggestion , Advisory
Committee recommended that instead of being included in the
chapter of fundamental rights, provision regarding setting up of
independent Election Commission along with guarantee of adult
franchise, and free and fair elections to be held periodically will
find a place in some other part of the Constitution, Dr. Ambedkar
and some other members had in their mind a Central Election
Commission assisted by a separate Election Commission for each
State subordinate to the Central Election Commission. However,
Constitutional Advisory in his Draft Constitution of October
1947 provided for only one Election Commission to be appointed
by the President which would have power of Superintendence,
direction and control of all elections including those of State
legislatures.
Article 324 provides that 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 and subject to the provisions of any law made by the
Parliament, the appointment of the Chief Election Commissioner
and other Election Commissioners, if any is to be made by the
President. When any other Election Commissioner is so appointed,
the Chief Election Commissioner shall act as the Chairman of the
Election Commission. President has power to appoint Regional
Commissioners after consultation with the Election Commission,
as he may consider necessary to assist the Election Commission.
Chief Election Commissioner cannot be removed from his office

except in like manner and on the like grounds as a Judge of the
Supreme Court and the conditions of service of the Chief
Election Commissioner shall not be varied to his disadvantage
after his appointment. Other Election Commissioners and the
Regional Commissioners shall not be removed from office except
on the recommendation of the Chief Election Commissioner.
Superintendence, direction and control of elections of
legislatures and to the offices of the President and vice-
President vests in the Election Commission1.
When the constitution of Election Commission was being
considered by Minority Sub- committee, it proposed in it’s report
that the Election Commission should be independent and quasi-
judicial in character. Proposal that the Election Commission
should be an independent body was widely accepted though
President of India appoints the chief Election Commissioner and
the Governors appoint the State Election Commissioners,
naturally under the advise of Council of Ministers, it is accepted
that after the appointment, they function independently without
any interference by the executive. The Election Commissioner ,
being a constitutional functionary, has been provided with an
adequate security of service with a view that he should be able
to perform his duties without any fear.
Though the Constitution made a provision for the appointment of
other Election Commissioners besides Chief Election
Commissioner, it was left to the discretion of the President
17
whether the Election Commission should be single member
Commission or a multi- member Commission.
Powers of Election Commission
Amplitude of the powers and width of the functions to be
exercised by the Election Commission under Art. 324 was
considered by Supreme Court in Mohinder Singh Gill and Another
v. Chief Election Commission, New Delhi and Others [AIR 1978
SC 851], The learned Judges observed-
“Art. 324 which we have set out earlier, is a plenary provision
vesting the whole responsibility for National and State elections
and, therefore, the necessary powers to discharge that
function."
But they also pointed out limitations on powers vested in the
Commission
Two limitations at least are laid on its plenary character in the
exercised thereof. Firstly, when Parliament or any State
Legislation has made valid law relating to or in connection with
elections, the Commission shall act in conformity with, not in
violation of, such provisions but where such law is silent Art. 324
is a reservoir of power to act for the avowed purpose of not
divorced from, pushing forward a free and fair election with
expedition. Secondly, the Commission shall be responsible to the
rule of law, act bona fide and be amenable to the norms of natural
justice in so far as confirmance to such canons can reasonably
and realistically be required of it as fair-play-in-action in a most

important area of the Constitutional order, viz., elections.
Fairness does import and obligation to see that no wrong-doer
candidate benefits by his own wrong. To put the matter beyond
doubt, natural justice enlivens and applies to the specific case of
order for total re-poll, although not in full panoply but in flexible
practicability. Whether it has been complied with is left open for
the Tribunal's adjudication."
General Electoral Roll
Electoral roll is a list of persons who are entitled to vote at an
election. Normally, an entry in the electoral roll is conclusive to
prove the elector’s right to vote at that election. When the name
of a person finds place in the electoral roll, his right to vote
cannot be questioned and if he is so included then he shall not
have that right. The electoral rolls are to be prepared in
accordance with the statutory provisions. Since the right to vote
is not a fundamental right under the Indian Constitution, and is
created by the Statute, it will have to be enjoyed within the four
corners of the statutory limitations.
The most important electoral roll is that of the Assembly
constituency. It is considered to be the primary roll. The
electoral roll for the Parliamentary constituency is a collection of
the electoral rolls for all the Assembly constituencies comprised
within that Parliamentary constituency. For the election of local
bodies, Statute prescribes that, that part of the electoral roll
of the Assembly constituency relating to the area of that local
authority or its constituency shall be the electoral roll for the
18
election of that local body. Electoral rolls for the local bodies like
Zilla Parishads, Taluka Panchayats, Village Panchayats, Muncipal
Councils and Corporations are not separately prepared by door to
door survey but those are normally parts of the Assembly rolls
arranged and corrected as per the specific statutory provisions
applicable. Electoral roll for voluntary bodies like co-operative
societies, societies registered under Societies Registration Act,
public trusts etc. is the list of valid members as on the qualifying
date who are entitled to vote at that election. In fact it is a copy
of membership register.
Roll for Legislatures
Indian Constitution has accepted the principle of adult suffrage.
Article 326 of the Constitution of India declares that the
elections to the House of people and to the Legislative Assembly
of every State shall be on the basis of adult suffrage; that is to
say, every person who is a citizen of India and who is not less than
18 years of age on such date as may be fixed in that behalf by or
under any law made by the appropriate Legislature and is not
otherwise disqualified under the Constitution or any law made by
the appropriate Legislature on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election. Voting
right is dependent on minimum age and ordinary residence in that
constituency. Art. 325 has prohibited discrimination on the
ground of religion, race, caste, sex or any of them in the matters
of right to register in the electoral roll. This is in conformity with

the fundamental right of equality before law under Article 14.
History of electoral rights shows that women had to fight a long
battle for acquiring the voting right equal to men in some of the
eastern democracies. In India, men and women got equal right
from the date of adoption of the Constitution. Before the
Constitution, the adult suffrage was not there and voting rights
were limited by property qualifications. Qualifying age of the
voter was brought down to 18 years by 61st Amendment to the
Constitution w.e.f. 1st April 1989, which was formerly 21 years.
Article 327 of the Constitution empowers the Parliament to make
any provision with respect to all matters relating to, or in
connection with, election of either House of Parliament or to the
Houses or either House of the Legislature of a State including
preparation of electoral rolls, delimitation of constituencies and
all other matters necessary for securing the due Constitution of
such House or Houses. Article 328 gives the same powers to the
State Legislatures in respect of their elections subject to the
provisions of the Constitution and any law made by the Parliament.
Poll Procedure
The Notification for the purpose of filing the seats of Members
of Rajya Sabha (Council of People) is to be published by the
President in the Gazette of India, on such dates as may be
recommended by the Election Commission calling upon the
constituencies to elect members in accordance with the
provisions of the Representation of People Act, 1951, The
Notification for general election to the State Legislative
19
Assembly and for the purpose of electing members to the State
Legislative Council is to be published by the Governor of that
State in the official Gazette of the State on such date as may
be recommended by the Election Commission calling upon the
constituency to elect the members. Therefore, the dates are
fixed and recommended to the President or the Governor, as the
case may be, by the Election Commission and people are already
in know of those dates. The process of nomination starts after
the actual publication of the notification in the official Gazette.
No notification for the purpose of general election of the House
of People or the Legislative Assembly of a State can be issued
prior to six months from the date on which the term of the
retiring member is due to expire. In respect of Council of States
and in respect of the Legislative Council of a State this period is
three months. The election process commencing from publication
of these Notifications, should start at such time as it would be
possible for the new members or the new House, as the case may
be, to take office immediately on expiry of the period of office
of the retiring members of the outgoing House. The Chief
Election Officer for each State and District Election Officer for
each district are to supervise the conduct of elections of
elections in the State and the district respectively subject to
the superintendence, directions and control of the Election
Commission.
Section 21 and 22 of the Act of 1951 require appointment of the
Returning Officers and Assistant Returning Officers for each

constituency. The Assistant Returning Officers are competent to
perform all or any of the functions of the Returning of the
Returning Officers subject to his control. However, the function
of scrutiny of the nominations is to be performed by the
Returning Officer only, unless he is unavoidably prevented from
performing that duty. The District Election Officer, with the
previous approval of the Election Commission, decides the number
of polling stations and their locations for every constituency. The
District Election Officer appoints Presiding Officer for each
polling station and such Polling Officers, as he thinks necessary
for each them. The Presiding Officer is responsible to keep the
polling station in order and to see that the poll is fairly taken.
The Polling Officers are to assist him. All these him. All these
officers are deemed to be on deputation to the Election
Commission. It is statutorily provided that the District Election
Officer shall not appoint any person who has been employed by
or on behalf of, or has been otherwise working for a candidate in
the said election, as any of these officers. The Returning Officer
to fill a seat or seats in Legislative Council of the State from the
members of the Legislative Assembly has to fix place of poll with
the previous approval of the Election Commission.
Supervisory Powers of the Election Commission
The primary function of the Election Commission, under the
provisions of the Constitution and the Representation of the
People Act, 1950, the Representation of the People Act, 1951 and
Rules as well as Orders made thereunder is ‘the superintendence,
direction and control of the preparation of the electoral roll of
20
all elections to Parliament and the State Legislatures and office
of the President and Vice-President2. It is the foremost duty of
the Election Commission to prepare the electoral rolls in
accordance with the provision of the Representation of the
People Act, 1950 and the Registration of Electors Rules, 1960.
'Registration of voters in the Registers of the constituencies, in
advance of the poll, is mandatory in almost all democratic
countries, with a difference in registration system and procedure
adopted. In England, the registration is semi-mandatory and
permanent registers of electors are maintained and updated
annually. Article 325 of the Constitution of India makes provision
for electoral roll for every territorial constituency irrespective
of religion, caste, race, sex of an elector. Further, Article 326,
as amended, stipulates that electoral rolls must contain all adult
citizen, not less then eighteen years of age on a date fixed by law
and not otherwise disqualified. Thus, the electoral rolls of all the
constituencies are prepared in accordance with the provisions of
the Representation of the People Act of 1950, under the
‘superintendence, direction and control’ of the Election
Commission (Charan Lal Sahu v. Neelam Sanjeeva Reddy [AIR
1978 SC 499]). The Election Commission prepares the electoral
rolls with reference to the first day of the year of preparation
or revision. The condition of registration of an elector is that he,
a. must be a citizen of India
b. must be eighteen years of age

c. must be ordinarily resident in the constituency in which
the elector seeks registration and,
d. should not suffer any disqualification for corrupt
practices or offences related with the elections. The
Election Commission also issues orders revisions of
electoral rolls for any constituency or part of a
constituency in such manner as it may think proper.
Besides preparation and revision of electoral rolls, the significant
power of the Election Commission is to superintend, direct and
control the conduct of elections. It is the solemn duty of the
Commission to conduct elections in a free, fair and peaceful
manner. In order to achieve this end, the Election Commission
discharges multiple functions. The function of the Commission
regarding conduct of elections begins from the day of the
notification of election and runs upto declaration of results and
during the entire process of elections the Commission remains
vigilant and sees that the conduct of election is going on
according to rules. Accordingly, the Election Commission is
empowered to issue certain notification. But for the elections to
the Lok Sabha and State-Legislature and Councils of Union
Territories, the notification is issued by the President, or
Governors or Administrators respectively. These notifications
are issued accordingly to the recommendation by the Election
Commission.
Process of Removal of Members and Chief Election Commissioner
21
Originally in 1950, the commission had only a Chief Election
Commissioner. Two additional Commissioners were appointed to
the commission for the first time on 16 October 1989 but they
had a very short tenure, ending on 1 January 1990.The Election
Commissioner Amendment Act, 1989 made the Commission a
multi-member body. The concept of a 3-member Commission has
been in operation since then, with the decisions being made by a
majority vote. The Chief Election Commissioner cannot be
removed from his post easily on account of any political reasons.
This is necessary so as to preserve the independence of election
commission. Chief Election Commissioner of India can be removed
from his office by the Parliament with a two-thirds majority in
both the Lok Sabha and the Rajya Sabha on the grounds of
proved misbehavior or incapacity. Other Election Commissioners
can be removed by the President of India on the recommendation
of the Chief Election Commissioner. A Chief Election
Commissioner has never been impeached in India3.
As per Constitution of India. Part-XV Article 324, Claus 5.
Subject to the provisions of any law made by Parliament, the
conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be such as
the President may by rule determine:
Provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like
grounds as a Judge of the Supreme Court and the conditions of

service of the Chief Election Commissioner shall not be varied to
his disadvantage after his appointment:
Provided further that any other Election Commissioner or a
Regional Commissioner shall not be removed from office except
on the recommendation of the Chief Election Commissioner.
Political Parties
By the Act No. 1 of 1989, Part IV (A) was inserted in the
Representation of the People Act, 1951. Section 29A makes it
obligatory that any association or body of individual citizens of
India calling itself a political party and intending to avail itself of
the provisions of that part, shall make an application to the
Election Commission for its registration as a political party for
the purpose of that Act. The existing bodies were asked to
register within 60 days from the commencement of the Amending
Act and other within 30 days from the date of their formation.
Sub-Section(7) of Section 27(A) provides that unless political
parties bear true faith and allegiance to the Constitution of India
as by law established, and to the principles of
socialism, secularism and democracy and uphold the sovereignty,
unity and Integrity of India , they shall not be registered. Only
registered political parties are considered for recognition at
National or State level. This recognition is primarily for the
purpose of allotment of symbols. Principles of socialism and
secularism are so abstract that it is very difficult to examine the
claim of political party whether they really believe in these
principles. One party claiming to be secular and blaming other
22
party to be communal is seen wooing voters on the basis of the
caste and other party criticizing it to be casteist. Political parties
are sometime motivated by immediate political gains and do
compromise the principle for which they stand. The adjudication
of such matters is not free from difficulties. It would not be
possible to refuse a registration to a political party if in its
constitution, it professes communal supremacy or adjures
socialism.
National Party
A registered party is recognised as a national party only if it
fulfills any one of the following three conditions:
1. The party wins 2% of seats in the Lok Sabha from at
least three different states.
2. At a general election to Lok Sabha or Legislative
Assembly, the party polls 6% of votes in four states and
in addition it wins four Lok Sabha seats.
3. A party gets recognition as a state party in four states.
All India Trinamool Congress became the 7th political party to be
recognized as a National Party in the country. BJP, Congress, CPI,
CPI(M), BSP & NCP are six other political parties to be
recognized as National Parties.
State Party
A registered party has to fulfill any of the following conditions
for recognition as a state party:

1. Secure at least 6% of the valid vote & win at least 2
seats in an Assembly General Election
2. Secure at least 6% of the valid vote & win at least 1
seats in a Lok Sabha General Election
3. Win at least 3% of the seats or at least 3 seats ,
whichever is more, in an Assembly General Election
4. Win at least 1 out of every 25 seats from a state in a
Lok Sabha General Election
5. Secure at least 8% of the total valid vote in an Assembly
or a Lok Sabha General Election
The biggest advantage of being recognized is getting the
reserved symbol. A party recognized as a state party gets a
reserved symbol within the state. All the candidates contesting
from that party will get the same symbol throughout the state.
For National Parties, the reserved symbol can be used across the
country by its contesting candidates. This is one the biggest
advantages since symbol plays a very important role in elections.
There are also other advantages to the recognized parties like
subsidized land for party offices, free air time on Doordarshan
& All India Radio, supply of electoral roll copies free of cost
during elections etc.
As on date, there are 7 national parties, 58 state parties and
more than 1700 registered parties that are unrecognized.
Independents and candidates from the unrecognized parties can
23
choose from the list of more than 100 free symbols available as
their election symbol.
Symbols
Symbols assume great importance in elections in countries like
India wherein large number of the electorate is illiterate. When
the votes were cast by putting a small card in the box of a
particular candidate and each candidate had separate box at each
polling station, voters were identifying the box in which they have
to put their vote with the help of election symbol which was
pasted prominently on the box allotted to that candidate. Under
the changed procedure, now voters have to put a mark on the
ballot paper which contains names and symbols of the
candidates. Voters identify the candidate mostly with the aid of
the symbol and put their mark on or around the said symbol in the
space reserved for such mark. Therefore, the main purpose of
the use of symbol is to establish the identity of the candidate.
Symbols also help in conveying to the voters as to which candidate
is sponsored by a recognized political party. If the voter has a
preference for a political party and wants to vote for a candidate
which is sponsored by that political party, then he marks the
symbol of that political party which is allotted to the sponsored
candidate. If the registered political party is old one and is in the
election fray for a long time, then the symbol becomes familiar
to the voter and it is easier for them to select the candidate who
is put up by the party of their choice.

Religious beliefs, and cultural traditions and social backgrounds
sometimes attach importance to a particular symbol and it may
be popular with the illiterate voter. Two bulloks with a yoke on
was the symbol allotted to Indian National Congress and it was
thought that the party might be getting more votes since the
symbol is popular amongst the large section of voters who are
agriculturists. But in recent years, it appears that people do not
attach much importance to the symbol and once they have made
choice of the candidate or the political party, they look for that
symbol whichever is allotted to it. If the political party has set
up a candidate, then that candidate must get the symbol reserved
for that political party, otherwise people may mistake him to be
an independent candidate and it may cause loss of some votes
which he otherwise would have received. The second eventuality
is when two symbols which are somewhat identical in nature may
sometimes mislead the voters and some votes which “A” would
have got may be cast in favour in “B”.
Election Symbol Order
To provide for specification , reservation, choice and allotment
of the symbols at elections in parliamentary and assembly
constituencies and for the recognition of political parties in
relation thereto, Election Commission of India in exercise of
powers under Article 324 of the Constitution of India made The
Election Symbols (Reservation and Allotment) Order, 1968. This
order regulates the reservation and allotment of symbols in
elections to legislatures. The validity of this order was challenged
24
on the ground that the Eelction Commission had no power to make
such order which is legislative in character.
Supreme Court in the case of Kanhiya Lal Omar v. R.K.Trivedi
[AIR 1986 SC 111], held that Article 324 of the Constitution of
India vests the power of superintendence , direction and control
of the conduct of election to State Legislature and his power
includes power to issue such order regulating the use of the
symbols in an election.
Reservation of Symbol
Act No. 1 of 1989 inserted in Part IV-A in the Representation of
the People Act, 1951, provided for registration of the political
party with the election commission. Consequentially , the Election
Symbols (Reservation and Allotment) Order, 1968 was amended.
Symbols have been classified as reserved symbols and free
symbols. Reserved symbols are to be allotted to the candidate
set up by the party for whom symbol is reserved and the free
symbol is to be allotted to other candidates4.
Candidates shall be allotted symbols to the exclusion of any other
candidate, and no other symbol, on fulfillment of the following
conditions, namely:
a. An application is made to the Commission by the party
for exclusive allotment of that symbol and not later
than the third day after the publication in the Official
Gazette of the notification calling the election;
b. If the block for that symbol is not already available,
that there is sufficient time for preparing the block ;

c. That sufficient time is available to the commission for
sending intimation to the returning officer of the
constituency on or before the last date for withdrawal
of candidature;
d. That in the opinion of the Commission there is no
reasonable ground for refusing the application for such
allotment .
Therefore, normally a candidate set up by the party recognised
in one state can get an election symbol reserved for that party
in one state, in constituencies in other states also provided
Election Commission is approached with proper application.
Splits and Amalgamations
Political uncertainty in India and frequent splits in political
parties and occasional amalgamation have given rise to good
amount of litigation before the Election Commission and the
Courts. When a party splits into two or more factions, question
often arises as to which of them is a true political party entitled
for the symbol reserved for that party. Para 15 and 16 of the
symbols Order 1968, deal with the power of Commission in
relation to splinter groups of rival sections of a recognised
political party and in case of amalgamation of two or more political
parties. They give power to the commission to decide which one
of such rival groups or none of such rival groups is the recognised
political party. Such a decision will have to be arrived at after
taking into account all available facts and circumstances and
25
hearing such representations of groups and other persons as have
desired to be heard5.
When Janata Dal was split into two parties known as Janata Party
and Janata Dal, symbol ‘Wheel’ was allotted to Janata Dal and
symbol ‘ Haldhar’ was allotted to Janata Party. Maharashtrawadi
Gomantak Party was split into two groups; one led by Shri Ravi
Naik and another by Shri Ramakant Khalap. Faction led by Shri
Ramakant Khalap was recognised to be true Maharashtra
Gomantawadi Party and the reserved symbol ‘lion’ was allotted to
it.
Election Expenses
Sec. 77 of the Act of 1951 requires that every candidate at an
election shall, either by himself or by his election agent, keep a
separate and correct account of all the expenditure in connection
with the election, incurred or authorised by him or by his election
agent between the date on which he has been nominated and the
date of declaration of the result thereof, both dates inclusive.
The account shall contain such particular as may be prescribed
and the total of the said expenditure shall not exceed such
amount as may be prescribed.
Earlier it was totally illusory and it was not possible for any
candidate, barring a very exceptional case, to really incur the
expenditure less than the limit prescribed by the statute. The
charges of conveyance, expenses of printing expenditure
incurred for holding public meetings, have factually all gone up so

high that the candidates are tempted to give incorrect but
technically complete statements of expenditure.
Section 77 of the Act requires three things :
a. Accounts should be maintained correctly
b. It should contain such particulars as may be prescribed
c. The total of such expenditure should not exceed the
prescribed amount
Not following the first two requirements may incur
disqualification under Sec.10A of the Act of 1951, which enables
the Election Commission on being satisfied that a person has
failed to lodge an account of election expenses within the time
and in the manner required by or under this Act and has no
good reason or justification for failure, to disqualify him for a
period of three years from the date of order by publishing an
order to that effect in the official Gazette. Not maintaining the
correct accounts or not mentioning the particulars required in
such accounts by itself is not a corrupt practice. The only
expenditure incurred by the candidate or his election agent is to
be considered and calculated for the purpose of enquiry under
this clause. Any expenditure incurred by third person to support
the candidature of a candidate voluntarily is not be included in
the expenditure of the candidate and should be kept out while
calculating the total expenditure.
Auditing of Party Funds
26
Audit guidelines of political parties, in order to improve
transparency in their finances, largely remain on paper. ICAI
guidelines on auditing of political parties which were also
endorsed by the Election Commission of India (ECI) in order to
improve transparency in the finances of political parties, remain
guidelines only and have not been actively taken up by the political
parties as a mandatory procedure to disclose details of their
income.
The government has introduced three major changes in the
mechanics of political funding in India- political parties can now
receive foreign funds; any company can donate any amount of
money to any political party; and any individual, group of people
or company can donate money anonymously to any party through
electoral bonds. All three provisions, it has been argued, instead
of increasing transparency, have made the process even more
opaque than earlier. Of course, the government has yielded to the
long-standing demand of the Election Commission of India (ECI)
to lower the limit for anonymous cash donations from Rs 20,000
to Rs 2,000, but this provision, its critics argue, will not change
anything on the ground. Indian elections have so far remained
free of any known foreign influence, but there is no denying that
money, especially unaccounted cash flowing from groups and
individuals with business interests, has often played a sinister
role in the campaigns of candidates. And, according to experts
and the opposition parties, the removal of a cap on corporate
donations and introduction of electoral bonds have further

strengthened corporate influence in political decision-making.
Among the known sources of donations to parties, between 2012
and 2016, corporate contributions formed a staggering 89 per
cent of the total funds. The 2017 Finance Act lifted the cap on
corporate contributions from 7.5 per cent of the net profit of a
company's past three financial years and removed the obligation
to report such contributions in the company's profit and loss
account. Besides, such donations do not require the approval of a
company's board of directors. This provision is a convenient
loophole for unscrupulous elements to route black money through
bogus companies.
Elections in India are indeed routinely conducted as festivals- of
unaccounted cash. According to the Centre for Media Studies
(CMS), a Delhi-based research organization, Rs 35,000 crore was
spent in the 2014 Lok Sabha election, though the official
estimate is just Rs 7,000-8,000 crore, which suggests the rest-
Rs 27,000 crore- was unaccounted for. The CMS estimate for
2014 did not include the money that changes hands in the process
of getting a party nomination, as several parties sell tickets
almost openly. For instance, in the 2014 general election,
candidates in Uttar Pradesh used nearly Rs 500 crore to get
tickets, organise rallies and woo voters, reveals an officer of the
state EC's financial intelligence unit. The CEC also points out that
the unaccounted expenses occur either before election
notification or after the results. According to a CMS report, in
the 2014 Lok Sabha poll, cash started flowing long before the
27
code of conduct was announced on February 5. Wherever
candidates were sure of getting party nominations, they went
about disbursing big sums to local mid-level workers or outlets
like provision stores, temples, chit fund offices and hawala
dealers for distribution down the line. Candidates also come up
with innovative ways to tie funds to electoral success and make
those whom they pay 'accountable'. A senior BJP leader from
Madhya Pradesh, who changed his constituency, gave out bikes to
key people in every village in the last election, but said that the
registration would be done only after determining if he got the
promised votes.
The guideline on submission of audited accounts was issued to
ensure that political parties don’t receive donations from sources
prohibited by the Representation of the People Act, which are
basically foreign sources as defined in the Foreign Contribution
(Regulation) Act. Apart from that, political parties also get tax
exemptions under the Income Tax Act provided they maintain
books of account so that its income can be correctly calculated,
maintain records of donors and their addresses when they are
making a voluntary contribution exceeding twenty thousand
rupees, and provided their account is audited by an accountant.
State Election Commission
By insertion of Part IX and IX-A in the Constitution of India
Constitution 73rd Amendment Act 1992, has entrusted the
superintendence , direction and control of the preparation of the
electoral rolls, and the conduct of , all elections to the Panchayats

and the Municipalities with the State election commission
consisting of State Election Commissioner to be appointed by the
Governor. It is expected that the State Election Commissioners
shall exercise their powers and be assertive in enforcing the
constitutional mandate and other other statutory provision .
State election commissioners have been given sufficient
protection by providing that that they shall not be removed from
office except in like manner and on the like grounds as a judge of
the High Court and the condition of service of the State Election
Commissioner shall not be varied to his disadvantage after his
appointment. It has also been provided that the Governor of the
State shall , when so requested by the State Election Commission
, make available to the State Election Commission such staff as
may be necessary for the discharge of the functions conferred
on the State Election Commission.
State Election Commissioner is a post carrying responsibilities of
great importance. Many State Governments had not established
proper local authorities and when established postponed their
elections for years together under one pretext or other
amending the statutory provisions. State Election Commissioners
will have to fall in line with the National Election Commission in
asserting strict observance of statute and rules and make the
constitutional amendment meaningful.
Monitoring of Electoral Expenditure of the Political Parties
The ECI has launched a robust Election Expenditure Monetary
System mechanism to curb the influence of money power in
28
elections. It was first implemented in 2010 in Bihar and
subsequently taken to other states till recently in the General
Elections. Some notable features of this mechanism include:
1. Separate bank account by each contesting candidate for
incurring all poll expenditures and incurring expenditure
via cheques / DDs only
2. A complaint-monitoring cell in each district with 24X7
toll free number
3. Flying Squads, Quick Response Teams, Static
Surveillance Teams headed by Executive Magistrates to
track illegal cash transaction or any distribution liquor
or any items for bribing/ inducement of the voters.
4. All airports in the State, major railway stations, hotels,
farm houses, ‘hawala’ agents, financial brokers, cash
couriers, pawn brokers and other suspicious
agencies/persons engaged in movement of cash are to
be kept under close surveillance by the Income Tax
Department and necessary action to be taken as per the
provisions of the Income Tax Act.
5. Monitoring of suspicious cash withdrawal from any bank
account during election process.
6. Expenditure Observers are appointed for each district
with senior officers from Income Tax Department,
Customs & Central Excise Department and other finance
& accounts services from outside the State to oversee

the election expenditure by the candidates during
election.
7. Assistant Expenditure Observers are appointed for
each constituency, to assist the Expenditure
Observers.
8. Shadow Observation Register is maintained in each
constituency for each candidate to record major
expenses observed during the election.
9. Video Surveillance Team is constituted with camera
persons and Govt. officials in each team to videograph
major election campaign expenses.
10. Accounting Team is constituted in each constituency to
maintain Shadow Observation Register and the folder
of evidence
11. Media Certification and Media Expenditure Monitoring
Committee (MCMC) constituted to monitor both print
and electronic media including cable network, social
media etc. for election advertisement and suspected
Paid News.
12. Campaign for ethical voting.
The above measures have gone a long way in curbing pernicious
effect of money power during the General Elections held in the
last few years. But, there is still a lot of distance to be covered
in this regard to eliminate the deep seated malady.
29
UNIT - 3
Universal Adult Suffrage
The concept of universal suffrage, also known as general suffrage
or common suffrage, consists of the right to vote of all adult
citizens, regardless of property ownership, income, race, or
ethnicity, subject only to minor exceptions.
In its original 19th-century usage by political reformers,
universal suffrage was understood to mean only universal male
suffrage; the vote was extended to women later, during the
women's suffrage movement.
There are variations among countries in terms of specifics of the
right to vote; the minimum age is usually between 18 and 25 years
(see age of majority) and "the insane, certain classes of convicted
criminals, and those punished for certain electoral offences"
sometimes lack the right to vote.
Article 326 of the Constitution of India
The elections to the House of the People and to the Legislative
Assembly of every State shall be on the basis of adult suffrage;
that is to say, every person who is a citizen of India and who is
not less than eighteen years of age on such date as may be fixed
in that behalf by or under any law made by the appropriate
Legislature and is not otherwise disqualified under this

Constitution or any law made by the appropriate Legislature on
the ground of non-residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled to be registered as a
voter at any such election.
Paradoxically, our Constitution which provides for Universal adult
suffrage was drafted by a Constituent Assembly that was
composed of members elected by restricted franchise.The
Motilal Nehru report of 1928 advocated unlimited adult franchise
and equal rights for women.
The resolution of the 1931 Karachi session of the Indian National
Congress adopted a resolution on Fundamental Rights and
Economic Policy which encapsulated the notion of universal adult
franchise.
India adopted the principle of universal adult franchise when the
present Constitution was enacted in 1949 which was implemented
on January 26, 1950.
System of Voting (Electoral System)
An electoral system is a set of rules that determine how elections
and referendums are conducted and how their results are
determined. Political electoral systems are organized by
governments, while non-political elections may take place in
business, non-profit organisations and informal organisations.
Electoral systems consist of sets of rules that govern all aspects
of the voting process: when elections occur, who is allowed to
vote, who can stand as a candidate, how ballots are marked and
30
cast, how the ballots are counted (electoral method), limits on
campaign spending, and other factors that can affect the
outcome. Political electoral systems are defined by constitutions
and electoral laws, are typically conducted by election
commissions, and can use multiple types of elections for different
offices.
Some electoral systems elect a single winner to a unique position,
such as prime minister, president or governor, while others elect
multiple winners, such as members of parliament or boards of
directors. There are a large number of variations in electoral
systems, but the most common systems are first-past-the-post
voting, the two-round (runoff) system, proportional
representation and ranked or preferential voting. Some electoral
systems, such as mixed systems, attempt to combine the benefits
of non-proportional and proportional systems.
The study of formally defined electoral methods is called social
choice theory or voting theory, and this study can take place
within the field of political science, economics, or mathematics,
and specifically within the subfields of game theory and
mechanism design. Impossibility proofs such as Arrow's
impossibility theorem demonstrates that when voters have three
or more alternatives, it is not possible to design a ranked voting
electoral system that reflects the preferences of individuals in
a global preference of the community, present in countries with
proportional representation and plurality voting.
Types of Electoral Systems

Plurality systems
Plurality systems, is a system in which the candidate(s) with the
highest amount of vote wins, with no requirement to get a
majority of votes. In cases where there is a single position to be
filled, it is known as first-past-the-post; this is the second most
common electoral system for national legislatures, with 58
countries using it to elect their legislatures. It is also the second
most common system used for presidential elections, being used
in 19 countries.
Majoritarian systems
Majoritarian voting is a system in which candidates have to
receive a majority of the votes to be elected, although in some
cases only a plurality is required in the last round of counting if
no candidate can achieve a majority. There are two main forms of
majoritarian systems, one using a single round of ranked voting
and the other using two or more rounds. Both are primarily used
for single-member constituencies.
Proportional systems
Proportional systems, is the most widely used electoral system
for national legislatures, with the parliaments of over eighty
countries elected by various forms of the system.
Party-list proportional representation is the single most common
electoral system and is used by 80 countries, and involves voters
voting for a list of candidates proposed by a party. In closed list
systems voters do not have any influence over the candidates put
31
forward by the party, but in open list systems voters are able to
both vote for the party list and influence the order in which
candidates will be assigned seats.
Representation of People Act, 1951 Section 62 & Right Vote India
1. No person who is not, and except as expressly provided
by this Act, every person who is, for the time being
entered in the electoral roll of by any constituency shall
be entitled to vote in that constituency.
2. No person shall vote at an election in any constituency
if he is subject to any of the disqualifications referred
to in section 16 of the Representation of the People
Act, 1950 (43 of 1950)
3. No person shall vote at a general election in more than
one constituency of the same class, and if a person votes
in more than one such constituency, his votes in all such
constituencies shall be void.
4. No person shall at any election vote in the same
constituency more than once, notwithstanding that his
name may have been registered in the electoral roll for
that constituency more than once, and if he does so
vote, all his votes in that constituency shall be void.
5. No person shall vote at any election if he is confined in
a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody
of the police:

Article 326 of the Constitution only permits the disqualification
of a voter under the Constitution or a law on the grounds of “non-
residence, unsoundness of mind, crime or corrupt or illegal
practice”. And confers that the Election to House and Assembly
shall be on the basis of Adult Suffrage; which in itself doesn’t
entitle citizens the right to vote; but entitles the class of
citizens to be enrolled as voter. It is 62 (1) of RPA, 1951 which
confers the citizens the Right to Vote; and when one is not
eligible to vote.
Hence “The Right to Vote” is neither Fundamental Right nor
Constitutional Right but a mere Statutory Right or Legal Right.
The right originates from the Constitution and in accordance with
the constitutional mandate contained in Article 326, the right
has been shaped by the statute, namely, RPA, 1951.
Voting Rights in India
With elections under way in many states of India, all Indian
citizens who are eligible to vote are given a chance to exercise
their franchise and participate in the electoral process. The
Indian Constitution has granted the right to vote to all Indian
citizens of sound mind above the age of 18, irrespective of an
individual’s caste, religion, social or economic status. This right is
universally granted to all Indians, with a few exceptions.
As per the Indian Constitution, all Indian citizens above the age
of 18 years who have registered themselves as voters are eligible
32
to vote. These individuals can vote in national, state, district as
well as local government body elections.
No individual can be detained or prevented from voting, unless
they fulfil the criteria for disqualification.
Every voter is allowed one vote only. A voter can vote at the
constituency where he has registered himself only.
Eligible voters have to register themselves in the constituency
where they live, upon which they will be issued photo election
identity cards (also known as EPIC cards). Individuals are not
permitted to participate in the electoral process if they have not
registered or do not possess a voter ID card.
Disqualification for Voting
The Indian Constitution has laid down the following rules
regarding disqualification of voters from the election process1:
• Individuals who are convicted of offences committed
under Section 171E (which deals with bribery)
and Section 171F (which deals with personation or
undue influence at an election) of the Indian Penal
Code are disqualified from participating in elections.
• Those convicted of offences under Section
125 (which deals with various electoral
offences), Section 135 and Section 136 of the
Representation of People’s Act face disqualification
from elections.

• If an individual votes in more than one constituency,
his vote is disqualified.
Eligibility to Contest Elections
Candidates willing to contest the elections for Legislative
Assembly of the states or Lok Sabha have to fulfil certain
criteria. They also have to submit a list of documents without
which their nomination will be rejected.
The person willing to contest the election has to be a citizen of
India and has to satisfy the following age criteria
• Lok Sabha (House of the People) – 25 years
• Vidhan Sabha (Legislative Assembly) – 25 years
• Rajya Sabha (Council of States) – 30 years
Qualification and Disqualification for Contesting Elections
• Vidhan Parishad (Legislative Council)- 30 years
A person must be enrolled in the current electoral roll of any of
the Parliamentary Constituencies for contesting elections from a
Parliamentary Constituency. For contesting elections to State
Legislature, the person must be enrolled in the current electoral
roll of any of the assembly constituencies of the State.
The following check list of documents must be submitted by
every contesting candidate.
• Nomination paper in Form 2Afor Lok Sabha election
and Form 2Bfor Assembly election.
33
• Affidavit in Form 26with all the columns filled up and
sworn before an Oath Commissioner or Magistrate of
First Class or before a Notary Public
• Additional affidavit regarding public dues
• Certified extract of electoral roll (when candidate is
an elector of a different constituency)
• Form A and Form B(applicable in the case of
candidates set up by political parties)
• Copy of Caste certificates (if the candidate claims to
belong to SC/ST)
• Security deposit
• Oath and affirmation
• For contesting an election as a candidate a person
must be registered as a voter. Sec 4 (d) of
Representation People Act, 1951 precludes a person
from contesting unless he is an elector in any
parliamentary constituency. Section 5 (c) of R. P. Act,
1951 has a similar provision for Assembly
Constituencies.
• A non-citizen cannot be a contesting candidate in the
elections. Article 84 (a) of the Constitution of India
envisages that a person shall not be qualified to be
chosen to fill up a seat in the Parliament unless he is
a citizen of India. Similar provision exists for State

Legislative Assemblies in Article 173 (a) of the
Constitution .
• As per Section 8 (3) of R. P. Act, 1951, if a person is
convicted of any offence and sentenced to an
imprisonment of 2 years or more, this will be
disqualification to contest elections .
• If is a person is on bail, after the conviction and his
appeal is pending for disposal, he is disqualified from
contesting an election as per the guidelines issued by
the Election Commission of India.
Delimitation Commission
Delimitation means the drawing of boundaries. The boundaries
may be domestic, national and International, but the most general
use of this term is in context with electoral boundaries. Article
82 makes provision for delimitation of the electoral
boundaries.It is the process of allocation of number of Seats and
their demarcation into territories. Under Article 82, the
Parliament by law enacts a Delimitation Act after every census.
After coming into force commencement of the Act,the Central
Government constitutes a Delimitation Commission.This
Delimitation Commission demarcates the boundaries of the
Parliamentary Constituencies as per provisions of the
Delimitation Act.
In India, the main basis for allocation of seats to various States
in the Lok Sabha is Population of the state.The division of each
state into the territorial constituencies is to be readjusted after
34
the completion of a census so that the Population-Seat ratiois
maintained within the state and throughout the Union. So the
purpose is the Rationalization of the structure and composition
of the electoral constituencies, on the principle of “ One vote and
one value”2.
When the constitution came in existence, it had fixed the number
of Seats to Lok Sabha as not more than 500. For the First
General Elections for Lok Sabha as well as legislative Assemblies
for 1951-52, the Election Commission had divided the entire
country into viable territorial divisions of parliamentary /
assembly Constituencies. However, after that this task was given
to the Independent Delimitation Commission. Accordingly,
separate delimitation commissions were set up in 1952 (basis of
1951 census), 1962 (basis of 1961 census), 1972 (basis of 1971
census). The 42nd Amendment Act 1976 had put a ban on any
further delimitation of the Constituencies till the year 2000. So
after the 42nd amendment act 1976, the total number of seats
in Lok Sabha and Rajya Sabha has remained the same. This ban
was imposed mostly on the account of the fear that a few states
to get more seats in the Lok Sabha on the basis of a large
population may not take much interest in the family planning. So,
indirectly this was done so that states may not be biased towards
the family planning measures. In the 2009 general elections, 499
out of the total 543 Parliamentary constituencies were newly
delimited constituencies. This affected the National Capital
Region of Delhi, the Union Territory of Puducherry and all the
 35

states except Arunachal Pradesh, Assam, Jammu & Kashmir, known as "majority-minority districts". Gerrymandering can also
Jharkhand, Manipur and Nagaland. Many instances, a be used to protect incumbents.
constituency with the same name may reflect a significantly
The primary goals of gerrymandering are to maximize the effect
different population demographic as well as a slightly altered
of supporters' votes and to minimize the effect of opponents'
geographical region.
votes.
Gerrymandering
These can be accomplished through a number of ways:
Gerrymandering is a practice intended to establish a political
• "Cracking" involves spreading voters of a particular
advantage for a particular party or group by manipulating district
type among many districts in order to deny them a
boundaries. The resulting district is known as a gerrymander;
sufficiently large voting bloc in any particular
however, that word is also a verb for the process. The term
district.Political parties in charge of redrawing
gerrymandering has negative connotations. Two principal tactics
district lines may create more "cracked" districts as
are used in gerrymandering: "cracking" (i.e. diluting the voting
a means of retaining, and possibly even expanding,
power of the opposing party's supporters across many districts)
their legislative power. By "cracking" districts, a
and "packing" (concentrating the opposing party's voting power in
political party would be able to maintain, or gain,
one district to reduce their voting power in other districts).A
legislative control by ensuring that the opposing
third tactic, shown in the top-left diagram in the graphic to the
party's voters are not the majority in specific
right, is homogenization of all districts (essentially a form of
districts.An example would be to split the voters in an
cracking where the majority party uses its superior numbers to
urban area among several districts wherein the
guarantee the minority party never attains a majority in any
majority of voters are suburban, on the presumption
district).
that the two groups would vote differently, and the
In addition to its use achieving desired electoral results for a suburban voters would be far more likely to get their
particular party, gerrymandering may be used to help or hinder a way in the elections.
particular demographic, such as a political, ethnic, racial, • "Packing" is to concentrate as many voters of one type
linguistic, religious, or class group, such as in U.S. federal voting into a single electoral district to reduce their
district boundaries that produce a majority of constituents influence in other districts.In some cases, this may
representative of African-American or other racial minorities, be done to obtain representation for a community of

common interest (such as to create a majority-
minority district), rather than to dilute that interest
over several districts to a point of ineffectiveness
(and, when minority groups are involved, to avoid likely
lawsuits charging racial discrimination). When the
party controlling the districting process has a
statewide majority, packing is usually not necessary
to attain partisan advantage; the minority party can
generally be "cracked" everywhere. Packing is
therefore more likely to be used for partisan
advantage when the party controlling the districting
process has a statewide minority, because by
forfeiting a few districts packed with the opposition,
cracking can be used in forming the remaining
districts.
• "Hijacking" redraws two districts in such a way as to
force two incumbents to run against each other in one
district, ensuring that one of them will be eliminated.
• "Kidnapping" moves an incumbent's home address into
another district.Reelection can become more difficult
when the incumbent no longer resides in the district,
or possibly faces reelection from a new district with
a new voter base. This is often employed against
politicians who represent multiple urban areas, in
which larger cities will be removed from the district
in order to make the district more rural.
36
These tactics are typically combined in some form, creating a few
"forfeit" seats for packed voters of one type in order to secure
more seats and greater representation for voters of another
type. This results in candidates of one party (the one responsible
for the gerrymandering) winning by small majorities in most of
the districts, and another party winning by a large majority in
only a few of the districts.
Nomination
Essentials of a valid Nomination:
Nomination is an act of suggesting a person as a representative
of that constituency. This formal suggestion is contained in a
form prescribed under statute and submitted to the authorities.
This act is nomination. Essentials of a valid nominations are-
• Candidate should be an elector to the said election
from any constituency;
• His proposer (and seconder, if law so required) should
be electors from the constituency for which the
candidate is being nominated;
• Candidate should be qualified and should not be
disqualified under the relevant law and the rules;
• Nomination should be in the prescribed form;
• Nomination form should be duly filled;
• Nomination form should accompany the required
annexure;
 37

• The form should be presented properly to the Nomination forms are appended to the Conduct of Elections
designated officer within the time prescribed; Rules, 1961. Form No. 2A is prescribed for the election to the
• It should accompany the required deposit; House of People, 2B for the Legislative Assembly, 2C for the
Council of States, 2D for the Legislative Council of a State by
• In the case of general election to that legislature, he
the members of the Legislative Assembly and 2E for the election
is nominated for more than two constituencies
of Legislative Council from constituencies other than from the
Procedure of election of Legislators members of the Legislative Assembly. These forms will have to
Sec. 33 of the Representation of People Act, 1951 prescribed be used for a valid nomination.
manner of presentation of nomination paper and requirements for
Candidate must be elector in that election
a valid nomination. The nomination paper of a candidate set up by
Normal rule followed in the elections law is that a candidate who
a recognised political party is required to be signed by the
wants to contest an election should be elector for the election in
candidate set up by a recognised political party is required to be
any constituency. Unless he is an elector, he cannot be qualified
signed by the candidate and by an elector of the constituency as
to contest. Exception to this general rule is the constituencies of
proposer. However, if the candidate is not set up by any
the Legislative Council. It has not been prescribed that to fill in
recognised political party, at least 10 proposer, who are electors
a seat from the local bodies constituency or graduates'
from the constituency, are required to subscribe the nomination
constituency, a person must be member of any of the local body
paper3.
or must be a graduate enrolled. As such, though these
Sec. 5B(1)(a) of the Presidential and Vice Presidential Elections
constituencies have been carved out to represent special
Act, 1952 requires that a nomination paper for the presidential
interest, any lay man can represent these constituencies and it is
elections will have to be subscribed by at least 50 electors as
not necessary that he should be an elector in these
proposer and 50 as seconders. This requirement was held to be
constituencies. In an election to the Graduates' Constituency,
valid by the Supreme Court, in the case of Charanlal Sahu v.
one need not be a graduate. It may look anomalous that non-
Neelam Sanjeev Reddy [AIR 1978 SC 499].
graduate should be a candidate in graduate constituency. If a
When a candidate is proposed by only one proposer and the
candidate possesses qualifications prescribed and has not
candidate is not nominated by any political party there is no
incurred any of the disqualifications mentioned in the
nomination in the eye of law (Sarabjeet Singh v. Mantor
Constitution or in the Act, other consideration becomes
Singh [1999 (1) Punjab LR 112]).
 38

irrelevant (S. Narayanaswami v. G. Pannerselvam & Ors [AIR 1972 Since the candidate is to represent the constituency, he must be
SC 2284] and N. S. Varadachari v. G. V. Pai [AIR 1973 SC 38]). nominated by the people of that constituency. The suggestion of
his candidature must come from an elector of that constituency.
It is not necessary that a candidate should be an elector in that
People outside the constituency have no right to suggest
constituency. A voter in a Parliament constituency in Kerala or
representative for a constituency to which they do not belong.
Tamil Nadu can contest election to the Lok Sabha from Madhya
Only the person whose name is included in the electrol roll of that
Pradesh, Rajasthan or Bihar. However, if a person wants to
constituency is competent to nominate a candidate as proposer
contest for the membership of Legislative Assembly or a
(or seconder if the law so requires). Proposer should be a person
Legislative Council, then he must be an elector from that State.
who has a right to vote in that election. The word, 'that election'
So also, for seat in Council of State (Rajya Sabha), a candidate
should be interpreted to mean in that ward and not in whole of
must be an elector from that State.
city if election is for a ward .
Exception to the general rule that candidate may be elector from
Scrutiny of Nominations
any constituency are:
Date of scrutiny specified by the Commission in its programme
1. In case of seat reserved for autonomus district of
notification and the RO has no discretion to change it. However
Assam, he is a member of Scheduled Cast of any
he has a discretion under the law to fix the time and place of
autonomus district and is elector for the Assembly
scrutiny. The RO has to give notice both in public notice in Form-
Constituency in which such seat or any other seat is
1 and also in the receipt which he has to give to each candidate in
reserved for that district;
acknowledgement of receipt of nomination. Scrutiny of
2. In cases of a seat is reserved for Sikkimese of Bhutia-
nominations is a quasi judicial function of the RO but that does
Lepcha origin Sikkim Assembly, he is a person either of not give him the status of Court. The RO himself should conduct
Bhutia or Lepcha origin and is an elector for any
the scrutiny. All nomination papers shpould be scrutinized one by
Assembly constitutency in the State other than the
one and decision accepting or rejecting should be recorded on
constituency reserved for Sanghas; each nomination paper separately. Even if one nomination paper
3. In case of a seat reserved for Sanghas is Sikkim of a candidate is accepted , his remaining nomination papers must
Assembly, he is an elector of Sangh constituency. also be scrutinised individually. RO can raise objection to any
nomination suo moto .
Proposer must be from that constituency

If the nomination of a candidate has been objected to, he should
be given reasonable opportunity of rebutting the same and, where
necessary scrutiny proceedings in relation to his nomination may
be adjourned. Scrutiny proceedings in relation to other
candidates, should however continue. Scrutiny can be adjourned
maximum upto the 3rd day which is normally the last date of
withdrawal for candidates and not beyond the date. If the
nomination of any candidate is rejected , copy of the order should
be furnished to the candidate urgently. Decision of RO rejecting
or accepting the nomination of a candidate is not subject to any
review or revision by any authority including the Courts and the
Election Commission until the process of the election is over. It
can be challenged only by means of Election Petition.
Grounds for Rejection Of Nomination Paper
Nomination paper of a candidate shall be rejected if :
a. He is not qualified or is disqualified on the date fixed
for scrutiny of nomination
b. Nomination paper is not signed by candidate or
subscribed by requisite number of proposers
c. requisite security deposit has not been made
d. Certified extract of entry in the electoral roll not
submitted , if candidate is contesting election from a
different constituency
e. Affidavits in Form 26 have not been submitted
39
f. Age or complete address of candidate has not been
mentioned in nomination paper
g. Nomination paper shall not be rejected on ground of
defect which is not of substantial character, like ,
defect in declaration relating to symbols.
h. Any wrong information or suppression of information in
candidate’s affidavit is not defect of substantial
character. However , failure to furnish affidavits is
defect of substantial character entailing rejection of
nomination.
Withdrawal of Candidature
1. Any candidate may withdraw his candidature by giving a
notice to Returning Officer in Form 5 (Conduct of
Elections Rules, 1961) signed by him and delivered
before 3 o’clock in the afternoon of the last date fixed
for such withdrawal. Any withdrawal after that hour is
invalid and has no legal effect.
2. Every notice of withdrawal must be delivered to
Returning Officer by
i. the candidate, or
ii. any of his proposers, or
iii. his election agent. If the proposer or the
election agent is submitting the withdrawal
notice, than along with the withdrawal notice
duly signed by the candidate, they should also

submit a written authorization from the
candidate authorizing the proposer or the
election agent to submit the notice.
3. If there is no such authority or if the person so
authorized by the candidate is neither his proposer nor
his election agent, the withdrawal is of no effect and
must be ignored.
4. The candidate set up by registered un-recognized
political parties and independent candidates may
authorize any one of his proposers to deliver his notice
of withdrawal to Returning Officer. Lastly, withdrawal
notice must be presented necessarily by any of the
above-mentioned persons in person and cannot be sent
or communicated in any other manner.
5. The notice of withdrawal should neither be delivered to,
nor be received by Returning Officer, on a day, which is
a public holiday, as defined in Section 2 (1) (h) of the R.
P. Act, 1951.
6. A candidate can give notice of withdrawal only after the
scrutiny of nominations is over; such notice can be given
on the date of scrutiny after the scrutiny is over or on
the next day, if it is not a public holiday, or, on the
second day after the date of scrutiny in terms
of Section 37 of R. P. Act 1951, and if the second day is
a public holiday, then on the next succeeding day which
is not a public holiday.
40
7. The notice of withdrawal can be delivered before three
o’ clock in the afternoon of the last date fixed for the
withdrawal of candidatures. On the day of scrutiny of
nominations and the next day, if it is not public holiday,
such notices can be delivered during the normal working
hours of the Returning Officer’s office, that is to say,
even before 11.00 A.M. or after 3.00 P.M.
8. Once a candidate has validly withdrawn, he cannot be
allowed to cancel such withdrawal and continue as a
candidate [Section 37(2) of the R. P. Act, 1951].
9. As soon as any valid notice of withdrawal is received by
Returning Officer, he will publish as notice thereof in
Form 6 (Conduct of Elections Rules, 1961) on his notice
board.
Code of Conduct
Election Commission of India's Model Code of Conduct is a set of
guidelines issued by the Election Commission of India for conduct
of political parties and candidates during elections mainly with
respect to speeches, polling day, polling booths, portfolios,
election manifestos, processions and general conduct. These set
of norms has been evolved with the consensus of political parties
who have consented to abide by the principles embodied in the
said code in its letter and spirit. The Model Code of Conduct
comes into force immediately on announcement of the election
schedule by the commission for the need of ensuring free and
fair elections. Much of it is designed to avert communal clashes

and corrupt practices. For example, politicians should not make
hate speeches, putting one community against another or make
promises about new projects that may sway a voter4.
The main points of the code of conduct are:
1. Government bodies are not to participate in any
recruitment process during the electoral process.
2. The contesting candidates and their campaigners must
respect the home life of their rivals and should not
disturb them by holding road shows or demonstrations
in front of their houses. The code tells the candidates
to keep it.
3. The election campaign rallies and road shows must not
hinder the road traffic.
4. Candidates are asked to refrain from distributing liquor
to voters. It is a widely known fact in India that during
election campaigning, liquor may be distributed to the
voters.
5. The election code in force hinders the government or
ruling party leaders from launching new welfare
programmes like construction of roads, provision of
drinking water facilities etc. or any ribbon-cutting
ceremonies.
6. The code instructs that public spaces like meeting
grounds, helipads, government guest houses and
bungalows should be equally shared among the
41
contesting candidates. These public spaces should not
be monopolised by a few candidates.
7. On polling day, all party candidates should cooperate
with the poll-duty officials at the voting booths for an
orderly voting process. Candidates should not display
their election symbols near and around the poll booths
on the polling day. No one should enter the booths
without a valid pass from the Election Commission.
8. There will be poll observers to whom any complaints can
be reported or submitted.
9. The ruling party should not use its seat of power for the
campaign purposes.
10. The ruling party ministers should not make any ad-hoc
appointment of officials, which may influence the voters
in favour of the party in power.
11. Before using loud speakers during their poll
campaigning, candidates and political parties must
obtain permission or license from the local authorities.
The candidates should inform the local police for
conducting election rallies to enable the police
authorities to make required security arrangements.
Ballot Paper
A ballot is a device used to cast votes in an election, and may be
a piece of paper or a small ball used in secret voting. It was
originally a small ball used to record decisions made by voters.

Each voter uses one ballot, and ballots are not shared. In the
simplest elections, a ballot may be a simple scrap of paper on
which each voter writes in the name of a candidate, but
governmental elections use preprinted ballots to protect the
secrecy of the votes. The voter casts their ballot in a box at a
polling station.
Postal Voting
Postal voting is voting in an election whereby ballot papers are
distributed to electors or returned by post, in contrast to
electors voting in person at a polling station or electronically via
an electronic voting system. Historically, postal votes must be
distributed and placed in return mail before the scheduled
Election Day; it is sometimes referred to as a form of early
voting. It can also be used as an absentee ballot. However, in
recent times the model in the US has morphed, in municipalities
that use postal voting exclusively, to be one of ballots being
mailed out to voters, but the return method taking on
alternatives of return by mail or dropping off the ballot in person
via secure drop boxes and/or voting centres.
Postal voting refers only to the means by which the ballots are
submitted, not to the method by which the votes are counted.
Election officials may count the votes by processing the mailed-
in ballots through electronic voting machines, or may count the
votes manually.
42
To enable as many voters as possible to participate, postal voting
can assist people who may not be able to attend a polling station
in person, for example because of a physical disability, absence
from the locality or some other reason. Postal voting is generally
available to voters upon application, sometimes with restrictions.
If no reason for a request is required, it may be called postal vote
on demand. Postal voting may be an option for voters in some
jurisdictions, while in some elections there may be all-postal
voting.
Electronic Voting Machine (EVM)
Electronic voting (also known as e-voting) is voting that uses
electronic means to either aid or take care of casting and
counting votes.Depending on the particular implementation, e-
voting may use standalone electronic voting machines (also called
EVM) or computers connected to the Internet. It may encompass
a range of Internet services, from basic transmission of
tabulated results to full-function online voting through common
connectable household devices. The degree of automation may be
limited to marking a paper ballot, or may be a comprehensive
system of vote input, vote recording, data encryption and
transmission to servers, and consolidation and tabulation of
election results.
A worthy e-voting system must perform most of these tasks
while complying with a set of standards established by regulatory
bodies, and must also be capable to deal successfully with strong
requirements associated with security, accuracy, integrity,
 43

swiftness, privacy, auditability, accessibility, cost-effectiveness, officer for each of the assembly and parliamentary
scalability and ecological sustainability. constituencies in consultation with the state government/union
territory administration. In addition, the Election Commission of
Electronic voting technology can include punched cards, optical
India also appoints one or more assistant returning officers for
scan voting systems and specialized voting kiosks (including self-
each of the assembly and parliamentary constituencies to assist
contained direct-recording electronic voting systems, or DRE). It
the returning officer in the performance of his functions in
can also involve transmission of ballots and votes via telephones,
connection with the conduct of elections.
private computer networks, or the Internet.
Presiding Officer (Speaker of Lok Sabha)
In general, two main types of e-voting can be identified:
The Speaker of the Lok Sabha is the presiding officer of the Lok
• e-voting which is physically supervised by
Sabha (House of the People), the lower house of the Parliament
representatives of governmental or independent
of India. The speaker is elected generally in the very first
electoral authorities (e.g. electronic voting machines
meeting of the Lok Sabha following general elections. Serving for
located at polling stations);
a term of five years, the speaker chosen from sitting members
• remote e-voting via the Internet (also called i-voting) of the Lok Sabha (House of people), and is by convention a
where the voter submits their votes electronically to
member of the ruling party or alliance.
the election authorities, from any location.
Election of the Speaker (Presiding Officer)
Returning Officer
Newly elected Member of Parliament from Lok Sabha elects the
The returning officer of a parliamentary or assembly
Speaker among themselves. It is desired Speaker should be
constituency is responsible for the conduct of elections in the
someone who understands Lok Sabha functions and it is someone
parliamentary or assembly constituency concerned as per the
accepted among the ruling and opposition parties.
Representation of the People Act, 1951. Returning officer is the
statutory authority to conduct the polling, counting process and MP’s propose a name to Pro-term speaker. These names are
to decide validity of ballot paper and election commission has no notified to President of India. President through their aid
power to overrule him or her. Secretary General notifies the election date. If only name is
proposed, Speaker is elected without any formal vote. However,
The Election Commission of India nominates or designates an
if more than 1 nominations are received,. a division (vote) is called.
officer of the government or a local authority as the returning

MPs vote for their candidate on such date notified by President.
Successful candidate is elected as Speaker of the Lok Sabha
until next general election.
Elector's Identity Card
The Indian voter ID card is an identity document issued by the
Election Commission of India to adult domiciles of India who have
reached the age of 18, which primarily serves as an identity proof
for Indian citizens while casting their ballot in the country's
municipal, state, and national elections. It also serves as general
identity, address, and age proof for other purposes such as
buying a mobile phone SIM card or applying for a passport. It also
serves as a Travel Document to travel to Nepal and Bhutan by
Land or Air. It is also known as Electoral Photo ID Card (EPIC).
It was first introduced in 1993 during the tenure of the Chief
Election Commissioner TN Seshan.
None of the Above (NOTA)
NOTA or 'None of the Above' has been provided as an option to
the voters of India in most elections. Through the usage of
NOTA, a citizen can choose not to vote for any candidates who
are contesting the elections. However, NOTA in India does not
guarantee dismissal of the winning candidate. Therefore, it’s only
a method to give a negative feedback. NOTA does not hold any
electoral value i.e. even if the maximum votes are for NOTA, the
candidate with maximum vote share will still be the winner.
44
Since it's introduction, NOTA has gained increasing popularity
amongst the Indian electorate, securing more votes than the
victory margin.
A writ petition was filed by People's Union for Civil Liberties
(PUCL). The Supreme Court of India judgment said, "We direct
the Election Commission to provide necessary provision in the
ballot papers/EVMs and another button called “None of the
Above” (NOTA) may be provided in EVMs so that the voters, who
come to the polling booth and decide not to vote for any of the
candidates in the fray, are able to exercise their right not to
vote while maintaining their right of secrecy." The Supreme
Court also observed that it is essential that people of high moral
and ethical values are chosen as people's representatives for
proper governance of the country, and NOTA button can compel
political parties to nominate a sound candidate.
Voter Verifiable Paper Audit Trail (VVPAT)
Voter verifiable paper audit trail (VVPAT) or verifiable paper
record (VPR) is a method of providing feedback to voters using a
ballot-less voting system. A VVPAT is intended as an independent
verification system for voting machines designed to allow voters
to verify that their vote was cast correctly, to detect possible
election fraud or malfunction, and to provide a means to audit the
stored electronic results. It contains the name of the candidate
(for whom vote has been cast) and symbol of the party/individual
candidate.
 45

The VVPAT offers some fundamental differences as a paper, chance for electoral fraud or malfunction and security experts.
rather than electronic recording medium when storing votes. A Non-document ballot voting systems allow only a recount of the
paper VVPAT is readable by the human eye and voters can "stored votes". These "stored votes" might not represent the
directly interpret their vote. Computer memory requires a device correct voter intent if the machine has been corrupted or
and software which potentially is proprietary. Insecure voting suffered malfunction.
machine records could potentially be changed quickly without
A fundamental hurdle in the implementation of paper audit trails
detection by the voting machine itself. It would be more difficult
is the performance and authority of the audit. Paper audit
for voting machines to corrupt records without human
systems increase the cost of electronic voting systems, can be
intervention. Corrupt or malfunctioning voting machines might
difficult to implement, often require specialized external
store votes other than as intended by the voter unnoticed. A
hardware, and can be difficult to use.
VVPAT allows voters the possibility to verify that their votes are
Systematic Voter’s Education and Electoral Participation
cast as intended and can serve as an additional barrier to
(SVEEP)
changing or destroying votes.
Qualitatively and quantitatively, the voter’s participation is
The VVPAT includes a direct recording electronic voting system
bedrock for a participative democracy. Similarly, the voter
(DRE), to assure voters that their votes have been recorded as
registration and electorate education are central to the election
intended. It is intended, and some argue necessary, as a means
management process. India faces a huge gap between what the
by which to detect fraud and equipment malfunction. Depending
voters should know and what they actually know in relation to
on election laws the paper audit trail may constitute a legal ballot
various components of the election process. Further, it has been
and therefore provide a means by which a manual vote count can
also observed that voter awareness alone does not convert the
be conducted if a recount is necessary.
voters into actually casting their votes.
In non-document ballot voting systems both mechanical voting
The Systematic Voter’s Education and Electoral Participation
machines and DRE voting machines , the voter does not have an
(SVEEP) programme of Election Commission of India is a landmark
option to review a tangible ballot to confirm the voting system
programme to inform, educate, motivate and facilitate voters and
accurately recorded his or her intent. In addition, an election
in turn make Indian democracy more participative and meaningful.
official is unable to manually recount ballots in the event of a
dispute. Because of this, critics claim there is an increased

In this programme, every aspect of the election process is
simulated to ensure enhanced voters participation in the polling.
It is the impact of this programme that during last few years,the
voter registration has continuously gone up and high voter
turnout with greater participation from youth and women has
become possible.
• The programme involved an array of simple policy
initiatives and activities intended to improve people’s
participation in the electoral process.
• The sole idea is to remove gaps in information,
motivation and facilitation of the voters and then
increase voter turnout in elections.
• The programme involved carrying out Voters’
Behaviour Surveys. These surveys found out
underlying reasons for under registration, problems in
gettingduplicate EPIC, correcting names on voter list
and various information gaps and low voter turn-out.
These surveys also helped to map the demographicsof
elector-segments with lower electoral participation.
• To increase the participation of youth and women, ECI
made some direct interventions such as making the
enrolment process easier and convenient and people
friendly.
To implement the SVEEP programme, the ECI created a SVEEP
wing to formulate policies, lay down the framework and to plan &
46
monitor interventions. TheSVEEP wing carries out continuous
discourse with voting public, civil society groups and media. Apart
from that, the ECI initiated some internal organizational changes
in the state level and had also created state and district level
core groups to coordinate and implement all SVEEP
activities.Further, the ECI collaborated with educational
institutions, youth organizations such as NYKS, NSS, NCC etc. to
tap new voters and promote greater awareness.
NRI Voting Option
Voting in an Indian election can be done in three ways — in person,
by post and through a proxy. Under proxy voting, a registered
elector can delegate his voting power to a representative. This
was introduced in 2003 for elections to the Lok Sabha and
Assemblies, but on a limited scale. Only a “classified service
voter” — a definition that includes members of the armed forces,
BSF, CRPF, CISF, General Engineering Reserve Force and Border
Road Organisation — is allowed to nominate a proxy to cast vote
on his behalf in his absence. A classified service voter can also
vote by postal ballot5.
The Representation of the People (Amendment) Bill, 2017,
proposes to amend Section 60 and extend the facility of proxy
voting to Indian voters living abroad. Introduced in Lok Sabha in
December and passed in August , the said rules (Registration of
Electors Rules, 1960) stipulate the physical presence of the
overseas electors in the respective polling station in India on the
day of polling. This causes hardship to the overseas electors in

exercising their franchise by being present in India on the day
of polling.
Many countries allow expatriates to vote, with different rules.
For instance, a British citizen living abroad can either travel back
to the UK to vote in person, or vote by post, or nominate a proxy
to do so, but this is subject to eligibility rules that factor in the
expatriate’s period of stay abroad and the period for which the
voter was registered in the UK. Those who were minors at the
time of leaving the country can also vote as long as their parent
or guardian was registered to vote in the UK6.
American expatriates can vote for federal office candidates in
primary and general elections, irrespective of how long they have
been living abroad. Once registered, an overseas Amercian voter
will receive a ballot paper by email, fax, or download, depending
on the US state. This has to be returned the same way as
received.
The Bill, which was passed by a voice vote in the Lower House,
proposes that overseas Indians, who are entitled to vote in India,
could now appoint a proxy voter to cast their votes. As of now,
overseas Indians were free to cast their votes in the
constituencies where they were registered. The Bill seeks to give
them the option of proxy voting, which till now was only available
to service personnel.
An expert committee of the Election Commission, working on the
issue, had in 2015 forwarded the legal framework to the Law
Ministry to amend the electoral laws to allow the overseas
47
Indians to use proxy voting.
Unofficial data with EC shows that only 10,000 to 12,000
overseas voters have exercised their franchise because they do
not want to spend foreign currency to come to India and vote.
The bill said the necessary provision of coming to India to cast
ballot caused hardship for overseas electors.
Electoral Manifesto Guidelines
The political party in power, while contesting the election, should
publish an affidavit of the status of the promises mentioned in
the manifesto for the previous election along with the current
election manifesto.
Political parties make many unrealistic promises during elections
that can’t be fulfilled. Common voters do not understand that the
promises are un-implementable and manifestos remain pieces of
paper due to short-term memory of citizens.
The promises made in election manifestos are not legally
enforceable. Election commission can’t act against parties making
unrealistic poll promises and not fulfilling them because the
manifesto promises cannot be constructed as “corrupt practices”
under the Representation of the People Act though they do
“influence” the people and “shake the roots of free and fair
elections”.
Though election commission has issued guidelines for political
parties to state the rationale for the promises in the manifestos
and the way and means to meet the financial requirement for

them, the political parties, after winning the election, don’t show
commitment to fulfil the promises7.
While conducting elections, citizens need to be made aware of
the status of the election manifesto promises made by the
political party in power.
It can be achieved if Election Commission of India issues
following guidelines for the political party (or parties in case of
an alliance) in power:
• While contesting the election, the political party in
power should submit an affidavit, to the election
commission, of the status of the promises mentioned
in the manifesto for the previous election.
• The political party in power should publish the
affidavit along with the current election manifesto.
Though the promises made in election manifestos are not legally
enforceable, people will be made aware of their status. These
guidelines will be helpful to make political parties more
responsible while making election manifesto promises as they will
have to put their status in public domain while contesting for the
election.
Freebies In Election Manifestos
In India, the culture of promising freebies in election manifesto
has been spreading extensively. The ethicality and legality of
such promises has been the subject of debate for a while now.
48
This issue was brought to the forefront when the issue was
tackled by the Supreme Court.Distribution of freebies in any
form is not prohibited by any law in force in India. The Courts
have already held that handing out of freebies is nota corrupt
practice. In fact, since the goal of our constitution-makers was
to build a welfare state, it is the responsibilityof political parties
to further that cause.Generally, political parties, especially the
national parties, release their election manifestos before the
Election Commission announces the date of elections. When
political parties promise certain freebies, the intention is not for
these promises to act as bribes or as a means of exercising undue
influenceon voters. It is just a statement to the people
highlighting how if brought to power,that party will serve its
voters. Thus, framing of manifestos is the right of political
parties, and must not be interfered with.Setting aside the issue
of the Election Commission’s right to regulate manifestos, the
rationality behind giving freebies itself can be questioned . In
many instances, freebies offer only temporary solutions to the
larger problem, instead of looking for a permanent solution to
resolve the problem once and for all. For instance, in the Delhi
Assembly Elections, almost all major parties have promised
reduction of power bills. However, in light of increasing costs of
inputs that are used to generate power and paucity of supply, the
government will have to heavily subsidize the distribution
companies. However, if instead of promising such freebies, the
parties aimed to promote power generation, and increase the
supply of electricity, the prices will automatically reduce with no

requirement of continuous subsidising. Similarly, there are
multiple election promises such as free Wi-fi which espouse an
excellent idea, but fail to state where the financial resources for
providing such facilities will be procured from, or paint even a
broad picture as to how the idea will be implemented. Hence, it
would be more beneficial for parties to offer people permanent
solutions to their problem in the election manifestos instead of a
slew of seemingly advantageous, but temporary stop-gap
measures.
Media and Exit Poll
In all democratic countries media, politicians and political
observers have become increasingly obsessed with forecasting
elections results. Political parties and media have been much
influenced by opinion polls in deciding on the timing of elections
as well as in shaping their campaign strategy. The purpose of
forecasts now extends beyond merely entertaining a curious
public eager to know what is going to happen. Politicians and
newspaper readers also look to public and private polls for help
on three questions: when will the election occur? Why and how
will the people use their vote? How will those votes be translated
into seats in parliament?8
In India till sometimes back before the emergence of 24 hours
news channel in India poll surveys were just of academic
importance, and not much credence or valued time was devoted
to analyze them. But with changing times and media's reach,
especially with the emergence of news channels, they became
49
more and more acceptable and recognizable. They have now
become a part of every election . In the 1950s, there were
virtually no market research organizations in India. The
dominance of the congress diminished any incentive to develop
political polls. The first national poll was carried out by the Indian
institute of public opinion (IIPO) before the 1957 general
election .
In the Indian democracy elections are not merely a process to
select and choose the governments. In India elections are
considered as a festival of democracy. Our country enjoy
elections and stand out as not only the largest but a triumphant
example of democracy. Despite of many failing of our political
parties and politicians no one can doubt the success of the
democratic process.
Elections are an inevitable part of democratic societies.
Democracies provide universal suffrage, the right to vote to its
citizens. Whether the constant hammering of media messages
has any perceptible impact on the behaviour of the people is a
matter of much empirical research. Political parties, candidates,
media organization and researchers, however, are interested to
know how people perceive the political campaigns, which by and
large are mediated through mass media. That people with
different demographic profile think and behave differently is
also a matter of interests to the campaigners as this helps them
preparing messages to suit the psyche of electorate with varying
backgrounds and tastes to get the “desired response”.

To know the success and failures of exit polls in India, the
analysis of election exit polls results have been done. The exit
polls results sample taken randomly during last 10-15 years
elections. It is noticeable that last 15 years are also the era of
emergence and rapid growth of television news channels in India9.
Elections surveys in India is more than 60 years old, but survey
conducted to measure the voting behaviour of Indians and
quantifying their political opinion and attitudes have become very
popular in India in recent times. The industry of opinion and exit
polls have flourished during last one and half decade. The large
number of surveys conducted among the Indian electorates
during last one decade is a testimony to industry in the country.
The last three general elections held in the year 2004, 2009 and
2014 shows a fierce competition in the Indian media for
conducting pre-poll surveys and exit polls. Infact the opinion polls
and exit polls results give byline/title to the print and electronic
media as headlines. There is no doubt that news television in India
is now clearly shaping the voter attitudes. The Election
Commission of India took the step to ban the exit polls in 200910.
The commission is trying to ban elections survey since long as the
commission think the publishing of poll surveys will have the
potential to influence the voters mind. Various agencies conduct
poll surveys prior to the poll on the likely voting pattern and
publish and disseminate the results of such surveys through
different media. Similarly, on the date of poll, actual result of
the election is sought to be predicted on the basis of information
collected from the voters. Results of such surveys, called „Exit
50
Poll‟, are published and disseminated after the poll is over. In the
case of an election, where poll is taken on a single day, there
cannot be any serious objection in publishing the results of Exit
Polls after the close of poll.
UNIT - 4
Election Petition
Right to vote and contest election is not a fundamental right. It
is a right given by the statute. Therefore, it will have to be
enjoyed within the limitations and prescribed by the statute and
by following procedure laid down by it. Right to contest the
election includes the right to challenge the election and these
rights are not common law rights. Therefore, an election petition
cannot be equated with plaint in a civil suit1.
A challenge to the election would only be maintainable if it is
permitted by the statute governing the election. Right to
challenge the election is a special right created by the statute.
Locus to challenge the election, forum before whom such
challenge is to be made and the manner in which the challenge is
to be made and decided are all determined by the statutory
provisions.
Section 80 of the representation of the People Act, 1951
provides that no election shall be called in question except by an
election petition presented in accordance with the provisions of
part II of the Act. Therefore, any challenge to the election is

maintainable only by election petition. It, therefore follows that
the jurisdiction of the civil courts to entertain a civil suit or any
other proceedings other than the election petition is totally
barred so far as the election of legislatures are concerned.
Apart from mandate of S.80 of the Act of 1951 laying down that
elections can be challenged only by an election petition, there is
constitutional prohibition against entertaining any challenge to
the elections of legislatures except by the election petition. This
prohibition is contained in Article 329 (b) which reads as under-
“No election to either House of parliament or to the House or
either House of the Legislature of a State shall be called in
question except by an election petition presented to such
authority and in such manner as may be provided for by or under
any law made by the appropriate Legislature.”
Therefore, no court could be able to entertain any challenge to
an election of the Legislature before the election petition can be
filed, i.e. before the completion of the election process.
Locus to Challenge
The right to challenge an election not being a common law right,
is not given to all individuals. The statute governing an election
specifies the persons who can challenge the election. Thus the
locus is statutorily determined. To decide the question whether
an election can be set aside, the court will have to consult the
provisions of law governing the particular election. They have to
function within the framework of that law and cannot travel
51
beyond it. The election petition challenging the election to the
post of President of India can be presented only by a person who
was a candidate at the presidential election or by 20 or more
electors joined together as petitioners.
When the election petition has not been filed by 20 or more
electors or by a candidate, then the election petition is not
maintainable. The claim by a person whose nomination paper is
rejected, that he is duly nominated, necessarily implies and
involves the claim that his nomination paper confirmed to the
requirement of the statute.
Sec. 5 (B) of the Presidential and Vice Presidential Election Act,
1952 prescribes that at least 10 electors should have subscribed
the nomination as proposers and another at least 10 electors as
the seconds. Therefore, a person, whose nomination paper was
not subscribed by at least such 20 persons, cannot be deemed to
be a validly nominated candidate and is not entitled to challenge
the said election.
Sec. 81 of the R.P. Act 1951 permits the challenge to the election
of any candidate at such election or any electorate. The
expression used for referring the candidate in Sec. 81 (1) is ‘any
candidate at such election’. The expression ‘candidate at the
election’ was judicially interpreted in the case of Shivkumar v.
V.G. Jog . It was held that the candidate who withdraws his
candidature under section 37 cannot be regarded as a candidate,
who was candidate at the election and it is unnecessary to implead
him as a party to the election petition. Distinction was made

between ‘candidate for election’ and ‘candidate at election’ and it
was pointed out that a candidate at election has reference to the
actual time when the voting takes place. The candidate at the
election would mean the candidate who was the candidate when
the actual polling took place and it would not include a person who
withdrew himself from the contest before the election was over
. of the poll in any election in that polling area is an offence
Electoral Offences
Apart from setting aside an election of the returned candidate
and disqualifying him or any other person, who has committed
corrupt practice, penalties have been provided for several
electoral offences under Chapter III of the Representation of
People Act, 1951 and Chapter IX-A of the Indian Penal Code. The
commission of an electoral offence is by itself not a corrupt
practice and will not be sufficient to vitiate the election.
Sec. 125 of the Act of 1951 Prescribes punishment for a term
which may extend to three years or fine or with both for any
person, who, in connection with an election under the Act,
Promotes or attempts to promote on grounds of religion, race,
case, community or any language, feelings of enmity or hatred
between different classes of citizens of India.
Sec. 125 is independent of the election disputes, it is not
necessary that an election dispute should be pending or the
person accused of this offence should have been held guilty by
the election Court. It would be sufficient if it is established that
the offence was committed in connection with an election. It is
52
not necessary that the offender should be a candidate, his agent
or must; have done something with the consent of such candidate
or his agent but the candidate or his agent also can be punished
under this section.
If a meeting is convened or held or attended in any polling area
during the period of 48 hours with the hour fixed for conclusion
under Sec. 126 and is punishable with fine, which may extend to
Rs. 250/-. Acting or inciting others to act in disorderly manner
for the purpose of transacting the business for which the
meeting was called together in an election is punishable
under Sec. 127 with imprisonment for a term, which may extend
to three months or a fine which may extend to Rs. 1000/- or with
both.
Sec. 129 prohibits officers such as District Election Officer,
Returning Officer, Presiding or Polling Officer or any officer or
clerk appointed by the Returning Officer or the Presiding
Officer to perform the duty in connection with the election to
do any act in furtherance of the prospects of the election of a
candidate. None of them or no member of a police force shall
endeavour to persuade any person to give his vote at an election
or to dissuade any person from giving his vote at an election or to
influence the voting of any person at an election in any manner.
The contravention may be penalised by imprisonment which may
extend to six months or with fine or with both. The offence
under Sec. 129 i.e. influencing voters is specifically made
cognizable.

Sections 130 and 131 prohibited canvassing or disorderly conduct
in or near the polling station and Sec. 132 prescribes penalties
for misconduct at the polling station. Sub-sec. (1) of Sec.
132 empowers the Presiding Officers or any person authorised
by him in this behalf or any Police Officer on duty to remove any
person from the polling station if he fails to obey the lawful
directions of the Presiding Officer and if such person re-enters
the premises, then he may be punished with imprisonment for a
term which may extend to three months or with fine or with both.
The offence is made cognizable. For an offence under Sec. 130
alleging that some exhibits or notices were put in within the
distance of 100 yards of the polling station, clear proof of the
distance between the exhibits and the polling station will have to
be established.
If an elector refuses to observe the procedure prescribed for
voting, the ballot paper issued to him may be cancelled under Sec.
132A. Illegal hiring or procuring of conveyance at elections can
be punished by fine which may extend to Rs. 1000/- under Sec.
1000/- under Sec. 133. Breach of an official duty without
reasonable cause can be punished with a fine which may extend
to Rs. 500/- under Sec. 134. The Government servants have been
prohibited from acting as election agent or polling agent or
counting agent of any candidate. The breach of this prohibition
is punishable with imprisonment which may extend to three
months or with fine or with both under Sec. 135 and if the
Presiding Officer has reason to believe that any person is
committing this offence, he may cause him to be searched by
53
police officer and if she is woman, she would be searched by any
woman with strict regard to decency. The offence of removing
the ballot paper is punishable with one year imprisonment or with
fine which may extend to Rs. 500/- or with both.
Bribery
Last decade has shaken public belief on the integrity of men in
the high offices as well as the whole political structure. At least
part of the money obtained by corrupt practices is utilized in the
elections. It may be for political propaganda or may be for direct
utilization in some of the corrupt practices. Corruption has
reached to alarming proportions in our socio-political life. Bribery
is perhaps oldest form of corrupt practice.
While considering scope of the words “offer of bribery” in the
election law, the Court should not place a narrow construction on
that expression. In fact, it should be interpreted to include all
kinds of offer of bribery in order to see that purity of the
election process is protected, and a wider meaning should be
given to the expression. It is not correct to say that an offer of
bribery cannot be held to be such unless a specific amount is
mentioned in the offer. No such requirement is laid down by law
and if the Court is to accept this proposition, it would lay the
field open for corruption in such a manner as to make the
provision totally ineffective. A candidate wanting to secure a vote
by bribery can always go and first ask the voter whether he is
prepared to accept money as a bribe and need offer a specific
sum only after the voter has signified his assent. It is also likely

that at the time of giving money itself, both the offerer and the
voter or the candidate, as the case may be, may arrive at an
instant understanding without any bargain as to the amount. It is
difficult to get evidence of actual payment and it is more
difficult to get evidence of the process of agreement to give and
accept the bribery. The very fact that a candidate goes and
offers some money is enough to show that he has already made
his offer to corrupt voter and secure his vote, though there may
still be a possibility that if subsequently the negotiations as to
the precise amount to be paid as bribery fail, he may not actually
succeed in his objective (Rajendra Prasad Jain vs Sheel Bhadra
Yajee & Ors [AIR 1967 SC 1445]).
Undue Influence
Section 123(2) of Representation of People Act 1951 defines
corrupt practices of undue influence to be any direct or indirect
interference or attempt to interfere on the part of the
candidate or his election agent, or by any other person with the
consent of the candidate or his election agent, with the free
exercise of any electoral right. The proviso of this sub-section
specifies, that threat to any candidate or any elector or any
person in whom a candidate or an elector is interested with injury
of any kind including social ostracism and ex-communication or
expulsion from any caste or community or inducement or attempt
to induce a candidate or an elector to believe that he or any
person in whom he is interested, will become or will be rendered
an object of divine displeasure would be undue influence.
54
In an election which is the part of the democratic system, the
candidates are entitled to canvass and impress or influence the
voters. However such an influence must be a proper one. Any
argument which the voter may take into consideration about the
merit or demerit of a candidate, would not be undue influence
since it is only submission to the independent judgement of the
voter. However when the voter is not allowed to arrive at his own
conclusion and is forced to act in one way or the other, the
influence is undue.
Though the Representation of People Act 1951 separately defines
‘undue influence’ in Sec. 123, the Presidential and Vice-
Presidential Elections Act, 1952 regulating the elections of these
two offices adopts the definition of undue influence as given in
the Indian Penal Code.
Sec. 18 of the Presidential and Vice-Presidential Elections Act
1952 gives grounds for declaration the election of a returned
candidate void. The corrupt practice of bribery or undue
influence at the election , if committed by the returned
candidate or by any person with the connivance of the returned
candidate, would invalidate the election of the returned
candidate.
The gist of undue influence at any election consists in voluntary
interference or attempt to interfere with the free exercise of
any electoral right. Any voluntary action which interferes with or
attempts to interfere with such free exercise of electoral rights
, would amount to undue influence . In order to establish undue

influence it must be shown that there was some threat to a voter
or atleast an element of compulsion in the appeal to him. There is
no basis in the definition of ‘undue influence’ for the proposition
that unless the returned candidate threatened or compelled the
voters to vote in a particular manner, the offence of ‘undue
influence’ was not complete.
The definition of undue influence is very wide in its terms and
includes four different forms of interference, that is :
a. Direct interference
b. Indirect interference
c. Direct attempt to interference
d. Indirect attempt to interference
It is true that inducement referred to in Section 123(2)(a)(ii) of
the Act must be of such a powerful type as would leave no free
will to the voter in the exercise of his choice. There would, of
course , be in such a case mental compulsion inn a sense but it is
not necessary that there should be physical compulsion or that a
threat must be actually held out by the person who interferes
or attempts to interfere.
Candidate has a right to canvass but no right to influence voter
improperly leaving no choice before him. It is difficult to lay down
in general terms where mere canvassing ends and interference or
attempt to interfere with the free exercise of any electoral
right begins. That is a matter to be determined in the light of
the circumstances of that case but there can be no doubt that if
55
what is done is merely canvassing , it would not be undue
infleunce. The legal phrase undue influence denotes something
legally wrong or violative of a legal right or duty. In order to
establish undue influence it must be proved that the influence
was such as to deprive the person affected of the free exercise
of will .
Appeal on the Ground of Religion
Use of the religion or caste to further prospects of a candidate
in election has been prohibited and held to be corrupt practice in
three different forms under Section 123 of the Representation
of People Act 1951.
Firstly, if it is used as means of undue infleunce for examination
by threat of divine displeasure or with social ostracism and ex-
communication or expulsion from any caste or community under
sub-section(2);
Secondly if there is an appeal on the ground of his religion, race,
caste, community or language or an appeal to the religious symbols
under sub-section (3);
Thirdly If it is used to promote or to attempt to promote the
feeling of enmity or hatred between different classes of citizen
of India under Clause (3A)
Appeal by Religious Leaders
Even religious leaders have a right to canvas for a candidate. So
long as they do not commit a corrupt practice by appealing on the
ground of religion or by threatening voters with consequence like
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divine displeasure or create enmity between the two sections of to the voters that every Sikh vote should got the representative
the society, their can be no objection for their canvassing. of Akali Dal in order to preserve the honour of the Panth, that it
was their duty to keep high the honour of the Panth by defeating
The Supreme Court of India has also accepted the right of a
the opponents of the Panth in the same way as they did in the
religious leader to canvas for a candidate. When a person
last Gurudwara election. By maintaining such order they will
canvasses for a candidate, his high place and status is bound to
reach their final goal of Punjabi Subha. The Supreme Court noted
influence the electorates. What would be an appeal on the ground
the fact that some of the political parties in India have
of religion, caste , race, community or language is a vexed
membership either limited to a religion, caste , or is
question. It is a matter of precaution, whether a particular appeal
predominantly confined to it. Supreme Court interpreted that
comes within the mischief of Section 123(3) . It is necessary to
the word ‘Panth’ though it primarily signifies Sikh religion, in the
note that what has been prohibited is appeal on the ground of his
context in which it is used in the pamplet obviously means Akali
religion, race, caste etc. Therefore the appeal must be requesting
Dal party and does not refer to religion.
the voters to vote for the candidate on the ground that he
Appeal on the Ground of Language
belongs to a particular religion or caste. Any direct or indirect
Language as one of the prohibited grounds to appeal to the voters
appeal to the voters not based on the religion or caste of the
was first time introduced by the Act No. 40 of 1961 and inserted
candidate or the canvasser may not amount to a corrupt
in Sec.123(3) . This clause must be read along with fundamental
practice.
rights which is guaranteed by Art.29(1) of the Constitution, for
The preamble of the Constitution declares India as a socialist,
asserting the meaning of corrupt practice. Right to conserve the
secular, republic and Section 29A requiring registration of the
language of the citizens includes the right to agitate for the
political parties with the Election Commission lays down that such
protection of the language; political agitation for conservation of
party shall have faith in the principles of socialism, secularism
language of a section of citizens cannot therefore be regarded
and democracy. If a political party or a candidate is assailed to
as a corrupt practice within the meaning of Sec.123(3) of the
be secular or a non-believer or an atheist and voters are appealed
Representation of the People Act , unlike Article 19(1), Article
not to vote for that party or candidate on this ground, this should
29(1) is not subject to any reasonable restrictions. The right
also be specifically listed as a corrupt practice.
conferred upon the section of the citizen residing in the
Religion Based Political Parties
territory of India or any part thereof to conserve their language,
In case of Kultar Singh v. Mukhtiar Singh [AIR 1965 SC 141], an
script or culture is made by the Constitution absolute. Therefore
election poster issued by Akali Dal candidate in Punjab appealed

if a political party agitates and fights election on the plank that
it would stand for the cause of furtherance of the interest of a
language, it cannot be held to be a corrupt practice.
Electoral Fraud
Electoral fraud, sometimes referred to as election manipulation
or vote rigging, is illegal interference with the process of an
election, either by increasing the vote share of the favored
candidate, depressing the vote share of the rival candidates, or
both. Although technically the term 'electoral fraud' covers only
those acts which are illegal, the term is sometimes used to
describe acts which are legal, but considered morally
unacceptable, outside the spirit of an election or in violation of
the principles of democracy. Electoral fraud can occur in advance
of voting if the composition of the electorate is altered. The
legality of this type of manipulation varies across jurisdictions.
Deliberate manipulation of election outcomes is widely considered
a violation of the principles of democracy. In many cases, it is
possible for authorities to artificially control the composition of
an electorate in order to produce a foregone result. One way of
doing this is to move a large number of voters into the electorate
prior to an election, for example by temporarily assigning them
land. Voter intimidation involves putting undue pressure on a
voter or group of voters so that they will vote a particular way,
or not at all. Absentee and other remote voting can be more open
to some forms of intimidation as the voter does not have the
protection and privacy of the polling location. Intimidation can
take a range of forms including verbal, physical, or coercion. In
57
its simplest form, voters from a particular demographic or known
to support a particular party or candidate are directly
threatened by supporters of another party or candidate or by
those hired by them. In other cases, supporters of a particular
party make it known that if a particular village or neighborhood
is found to have voted the 'wrong' way, reprisals will be made
against that community. Another method is to make a general
threat of violence.
Polling places in an area known to support a particular party or
candidate may be targeted for vandalism, destruction or threats,
thus making it difficult or impossible for people in that area to
vote. Vote buying occurs when a political party or candidate seeks
to buy the vote of a voter in an upcoming election. Vote buying
can take various forms such as a monetary exchange, as well as
an exchange for necessary goods or services. This practice is
often used to incentivise or persuade voters to turn out to
elections and vote in a particular way.
The use of religion, caste, community, tribe, and any other form
of group identity for electoral gain or for gathering political
support should not be allowed and the Representation of the
People Act, 1951,be suitably amended to give the Election
Commission powers to take deterrent actions against those
candidates and political parties who resort to it, such actions
should include, but not limited to, disqualifying candidates from
contesting elections and de-registering the offending political
parties. Political parties should also not be allowed to use overtly

religious, caste, community, tribe, and other such expressions and
words in their names.
Corporate Funding of Political Parties
Every political party, whether big or small needs to ‘sell’ to the
people, why they should vote for their party. Achieving without
proper execution of planned advertisements can be hard. The
question of funding arises with a motive to financially back up the
advertisement costs and other miscellaneous costs incurred by
the party to promote itself. There are various methods of getting
a political party funded. Most popular methods of funding of
political parties, however, are funding by Individual Person, Public
Funding and Corporate Funding2.
Public funding : State funding or public funding is where the
government provides funds to the political parties for election-
related purposes. The basic motive behind the state funding is to
allow a political party to gather funds without approaching
companies or people holding money as it often leads to such
contributors having influence over the political parties they fund.
Also, state funding helps save the high amount wasted in election
campaigns and provides fair opportunities to political parties
having limited sources funding them.
State Funding can be of two types:
• Direct Funding: giving direct funds to political
parties.
58
• Indirect Funding: other methods except direct
funding, such as free access to media, free access to
public places for rallies, free or subsidized transport
facilities, etc. fall under the category of indirect
funding.
Direct funding by the state is prohibited in India. However,
indirect funding is allowed in a regulated manner. Some examples
of indirect funding in India to the political parties are providing
free access, for campaigning, of state-owned television and radio
network, free electoral rolls, income tax exemption
under Section 13A of the Income Tax Act, 1961(hereinafter the
IT ACT), etc3.
Corporate funding : Corporate Funding corresponds to the
funding of the political parties by Corporate bodies in India. It
has been observed that most of the donations to political parties
are made by companies. In the year 2013-2014, 90% of the funds
of political parties came from big corporates in the countries.
Donation by corporate bodies is governed by the Companies Act,
2013.Section 182 of the Act provides that:
• a company needs to be at least three years old since
the date of its existence to be able to donate to a
political party,
• companies can donate a maximum of 7.5% of the
average net profits they made during three
immediately preceding financial years,

• such contribution must be disclosed in the profits and
loss accounts of the companies,
• no contribution shall be made without obtaining the
approval of the board of directors by passing a
resolution,
• if a company contravenes the provisions of this
section, it may be held liable to a pay fine which may
extend up to five times the amount contributed in
default and every officer guilty of such contravention
may be imprisoned for a term which may extend to six
months and with fine which may extend up to five
times the amount contributed in default.
As evident, corporate funding is a major player in the election
campaigns in India. It is a matter of common sense that no
company would fund a political party without any personal
interest. The more the funding, the more influence the company
has over the party. It is for this, corporate funding is criticized.
The primary statutory provision regarding funding of political
parties is in the RPA: Section 29B of the RPA entitles the
political parties to accept voluntary contributions made to them
by any person or a company except a government company.
Statutory Provisions: The rivalry between political parties in
India is aggressive, and it is not a matter of shock that immoral
methods are adopted by certain parties to acquire funds. It
includes funding through fake companies, funding through black
59
money and other methods. In order to regulate the fundings,
certain provisions are present in different acts in India. Apart
from the provisions regulating corporate funding mentioned
above, some other provisions are:
• Section 29C of the RPA mandates it for the political
parties to declare donations received by them from
any person or company if such donation by the person
or the company exceeds Rs.20,000. Such declaration
is to be made by making a report in each financial year
and submitting it to the Election Commission. Failing
to submit the report on time disentitles the party
from tax relief under the Income Tax Act, 1961.
• As per Section 2(e) of the Foreign Contribution
Regulation Act, 1976, accepting a contribution from
any foreign source is completely prohibited. It is
punishable with imprisonment which may extend up to
five years or fine or both. Such political party or
political representative may lose a seat and be
prohibited from participating in elections for a period
which may extend up to six years.
Solutions
Ban corporate funding: Funding of political parties by big
corporations has always been a matter of criticism. The huge
donations made by corporations buys them influence over the
political parties and hence puts democracy in jeopardy. Bombay
High Court in the year 1957 had warned India with its statement

“it is our duty to draw the attention of Parliament to the great
danger inherent in permitting companies to make contributions to
the funds of political parties. It is a danger which may grow apace
and which may ultimately overwhelm and even throttle democracy
in this country.” The Calcutta High Court had also warned that
corporate funding would mark the advent and entry of the voice
of the big business in politics and in the political life of the
country. However, despite all the warnings, the parliament after
banning the contribution by corporate bodies to political parties
in 1969, amended S.293A of the Companies Act, 1956 again and
Board of Directors of companies were yet again allowed to make
donations to political parties, unfortunately, with more ease than
earlier. Currently, S.182 of the Companies Act, 2013 regulates
corporate funding.
State funding: Once corporate funding is banned, state funding
may need to be provided to the political parties to help them raise
funds. Moreover, state funding can become a tool to help curb
the trend of donating black money to political parties. However,
as per the Election Commission, it is not the right time for India
to introduce direct state funding. It shall only be appropriate to
introduce state fundings if it is followed by some radical reforms
such as:
• de-criminalisation of politics in a democracy in
parties,
• holistic electoral finance reforms,
• robust transparency and audit,
60
• a strict legal regime for enforcement of anti-
corruption laws
RTI: If all political parties are brought under the scope of the
Right to Information Act, 2005, and their funding is disclosed,
whether below Rs.20,000/- or above, if an RTI application is filed
regarding the same, it will help make the funding of political
parties more transparent. This idea is hugely opposed by the
majority of the political parties.
Criminalization of Politics
The preamble of our constitution aims to provide ‘political justice’
to the people. When the criminal elements are becoming a part of
the legislature, then securing any form of justice, be it social,
economic or political, is a hollow promise. The sovereign of India
is crippled by these criminal elements who uses threat,
intimidation, violence and even sexual assault to win the election.
Over the last two decades, the influence of criminals in the
political arena has shown a tremendous increase. Earlier these
criminal elements used to influence the elections from outside
but now they have become a part of the political system by
contesting the elections themselves. Once an accused is elected
during the trial, he uses his position and power to dilute the case
or pressurizes the government to withdraw the prosecution
against him or her. All recent committees on politics and electoral
reform have observed the criminalization of our political system
almost unanimously. Criminalization of politics has many forms,
but perhaps the most alarming among them is the significant

number of elected representatives with criminal charges pending
against them.
The Vohra Committee Report on Criminalization of Politics was
constituted to identify the extent of the politician-criminal
nexus and recommend ways in which the menace can be combated.
The report of the National Commission to Review the Working of
the Constitution, cites the Vohra report as follows: “The nexus
between the criminal gangs, police, bureaucracy and politicians
has come out clearly in various parts of the country” and that
“some political leaders become the leaders of these gangs/armed
senas and over the years get themselves elected to local bodies,
State assemblies, and national parliament.” This point becomes
self-evident when one looks at the number of elected
representatives with pending criminal cases against them at all
levels in our federal system. According to an analysis by the
Association for Democratic Reforms, more than 30 percent of
current Lok Sabha MPs have declared criminal charges including
serious criminal charges like murder, kidnapping etc.
The Law Commission of India, in their 170th report in 1999,
proposed enactment of Section 8B of the Representation of the
People Act, 1951, by which framing of charges by court in respect
of any offence, electoral or others, would be a ground for
disqualifying the candidate from contesting election.
Publication of False or Defamatory Statements
The publication of any false statement in relation to a rival
candidate is sought to be prohibited by making it a corrupt
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practice. The object of this provision in the law is to see that the
unscrupulous or scandalous propaganda in the election campaigns
is avoided. Such false statements to come within the purview of
this corrupt practice should be made by a candidate or his agent
or by any other person with the consent of a candidate or his
election agent. Further such statement should as a matter of
fact be false and the publisher should either believe it to be false
or should not believe it to be true. Such statement to constitute
an offence be a statement in relation to the personal character
or conduct of a candidate or in relation to his candidature or
withdrawal and should be reasonably calculated to prejudice the
prospects of that candidate's election. In other words, to prove
that the corrupt practice of the above type has been committed
it must be shown:
first, that there has been a publication by a candidate or his
agent or by any other person with the consent of the candidate
or his election agent, of a definite statement;
secondly, the statement must be false;
thirdly the publisher must either believe it to be false or must
not believe it to be true;
fourthly, it must be a statement reasonably calculated to
prejudice the prospects of that candidate's election.
Any statement of fact which the publisher bonafide believes to
be true or any statement in relation to the public conduct of a
candidate in contrast to his private character or conduct would

not come within the purview of this corrupt practice. The
question as to what allegations can be said to amount to
allegations in regard to the personal character of conduct of a
candidate as distinguished from his public character may not be
easy to decide and in order to decide such a question the context
in which those allegations were made, the setting in which that
occurred and the circumstances in which those allegations were
published will have to be looked into.
UNIT - 5
Introduction
An effective legal system is crucial to fight against corruption,
as an ineffective or politicized judiciary is the best friend of
corruption. The first step in a judicial reform process is a review
of the country’s legal framework, to uncover weaknesses and
inconsistencies in the laws, as well as out-dated legislation that
should be removed from the civil and criminal codes.
Rising corruption in public life and remedial measures to curb this
menace have been a persistent concern worldwide. According to
a World Bank Group report1, businesses and individuals pay around
1 trillion USD in bribes each year, which is about 2% of the global
GDP. In a developing country like India, corruption has a greater
impact by acting as an impediment to both industrial growth as
well as socioeconomic growth of the low-income strata of society.
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In the recent People and Corruption: Asia Pacific – Global
Corruption Barometer survey2 India is perceived to have the
highest bribery rate of 69%, which means about 7 out of 10
persons have to pay a bribe to get their work done.
Despite several measures such as the Right to Information Act,
2005, Lokpal and Lokayuktas Act, 2013, and Black Money Act,
2015, corruption still remains an area of concern in the country,
probably due to the inadequate and ineffective execution of
these laws. Consequently, India’s rank on the Corruption
Perceptions Index slipped from 79 (in 2016) to 81 (in 2017) among
180 countries.
Diversity and Corruption in India
The British came to India via the East India Company and over
the decades they came to realise that India was neither a
geopolitical entity nor culturally homogeneous. The combined
influences of a shift in focus from trade to territory, and from
commerce to political and military power – rife with the
corruption of its private stockholders – further divided an
already diverse region. The thousands of small kingdoms that
made up the geography of India became weaker and more corrupt
as the years went on, in a way embedding the virus of corruption
in India. In 1947, finding itself reduced in power and ability after
the Second World War, the British Empire left India. Governance
came into the hands of the first prime minister of India,
Jawaharlal Nehru. In an effort to completely eradicate Western
influence, he made a strategic decision to adopt a socialist

approach vis-à-vis the economy. What followed over the next five
decades was painfully slow economic growth. Heightened
government controls resulted in reduced economic opportunities.
Increase in population, low per capita income, and slow GDP all
combined to create near hyperinflation. Low salaries of
government employees (such as bureaucrats and the police),
excessive regulations, complex tax and licensing systems, opaque
bureaucracy, lack of opportunities, discretionary powers,
government monopoly, and an antiquated legal system with a lack
of transparent laws and processes only further exacerbated an
already tainted and corrupt system.
The Central Vigilance Commission was created in 1964 and put in
charge of implementing the Prevention of Corruption Act,
focusing on high officials. Although over the years the powers
and mandate of the commission have been increased to make it
more effective, its focus is still more on bureaucracy than
politics.
Prevention of Corruption Act 1947
The Prevention of Corruption Act, 1947 did not redefine nor
expand the definition of offences related to corruption that
already existed in IPC. Similarly, it has adopted the same
definition of ‘Public Servant’ as in the IPC3 . However the law
defined a new offence ‘criminal misconduct in discharge of
official duty’ - for which enhanced punishment (minimum one year
to maximum seven years) was stipulated. In order to shift the
burden of proof in certain cases to the accused, it was provided
63
that whenever it was proved that a public servant had accepted
any gratification, it shall be presumed that the public servant
accepted such a gratification as a motive or reward
under sections 161,164 and 165 without the permission of the
authority competent to remove the charged public servant. The
Act also provided that the statement by bribe-giver would not
subject him to prosecution4 .
The Criminal Law (Amendment) Act, 1952 brought some changes
in laws relating to corruption. The punishment specified
under Section 165 of IPC was enhanced to three years instead of
existing two years. Also a new Section 165A was inserted in the
IPC, which made abetting an offences. It was also stipulated that
all corruption related offences should be tried only by Special
Judges.
Prevention of Corruption Act 1988
The Prevention of Corruption Act came into force in September
1988. It inculcated provisions of Prevention of corruption Act,
1987, Indian penal code, the Criminal Procedure Code and the
Criminal Law Act, 1952.
After and during Second World War corruption amongst the
officers and public servants considerably increased and the
provisions of IPC and CrPC were inadequate to cope up with this
situation. So for this matter the Prevention of Corruption Act,
1947 was passed. The Criminal Procedure Code declares the
offences against the public officer as non-cognizable, but under
this act it is obligatory for the court to make certain probability

of guilt against the accused. The investigation has to be taken by
Deputy Superintendent of Police. This act has shifted the burden
of proof from prosecution to the accused. The act has redefined
the meaning of ‘public servant’. The ‘public servant’ as per the
definition includes any person in service of a government and in
the pay of the government, or its department, its companies or
any undertaking or control of the government. The act extends
to whole of India except Jammu and Kashmir. MP’s and MLA’s
have been kept out of this act.
The salient features of the Act are as follows:
a. The term ‘Public Servant’ is defined in the Act. The
definition is broader than what existed in the IPC.
b. A new concept – ‘Public Duty’ is introduced in the Act
c. Offences relating to corruption in the IPC have been
brought in Chapter 3 of the Act, and they have been
deleted from the Indian Penal Code.
d. All cases under the Act are to be tried only by Special
Judges.
e. Proceedings of the court have to be held on a day-to-
day basis.
f. Penalties prescribed for various offences are enhanced.
g. Criminal Procedure Code (for the purpose of this Act
only) to provide for expeditious trial (Section22 of the
Act provides for amended Sections 243,309,317 and
397 of Cr.P.C).
64
h. It has been stipulated that the no court shall stay the
proceedings under the Act on the grounds of any error
or irregularity in the sanction granted, unless in the
opinion of the court it has led to failure of justice.
Other existing provisions regarding presumptions,
immunity to bribe giver, investigation by an officer of
the rank of Dy.S.P., access to bank records etc have
been retained.
Investigation of Corruption Cases under the Prevention of
Corruption Act, 1988:
Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the
provisions of the Criminal Procedure Code, 1973. According
to Section 17 of the Prevention of Corruption Act, 1988
investigation into cases under this Act should be done by police
officers not below the rank of Deputy Superintendent of Police
and it also enumerates the police officers who are entitled to
investigate. If a police officer not below the rank of an Inspector
of Police is authorized by the State Government on behalf by
general or special order, he may investigate such offence without
the order of a Metropolitan Magistrate or Magistrate of First
Class or make arrest without a warrant.
A major cause of delay in the trial of cases is the tendency of
the accused to obtain frequent adjournments on one plea or the

other. There is also a tendency on the part of the accused to
challenge almost every interim order passed even on
miscellaneous applications by the trial court, in the High Court
and later, in the Supreme Court and obtaining stay of the trial.
Such types of opportunities to the accused need to be restricted
by incorporating suitable provisions in the Cr.P.C. In order to
ensure speedy trial of corruption cases, the Prevention of
Corruption Act, 1988 made the following provisions:
a. All cases under the Act are to be tried only by a Special
Judges.
b. The proceedings of the court should be held on a day-
to-day basis.
c. No court shall stay the proceedings under the Act on
the grounds of any error or irregularity in the sanction
granted, unless in the opinion of the court it has led to
failure of justice.
Power to Appoint Special Judges
The Central and the State Governments are empowered to
appoint Special Judges by placing a notification in the Official
Gazette, to try the following offences:
a. Any offence punishable under this Act.
b. Any conspiracy to commit or any attempt to commit or
any abetment of any of the offences specified in clause
(a).
65
c. A person shall not be qualified for appointment as a
Special Judge under this Act unless he is or has been a
Sessions Judge or an Additional Session Judge or an
Assistant Sessions Judge under the code of Criminal
Procedure Code, 1973.
Section 3 of the Prevention of Corruption Act, 1988 empowers
the Central Government to appoint Special Judges, to try any
case. In Indira Narayan Ganguly v. State of West Bengal [1997
CRI. L. J. 2870], the Calcutta High Court held that any offence
punishable under the Act of 1988 can be tried only by a Special
Judge under Section 3 of the Prevention of Corruption Act, 1988.
Offences and Penalties under Prevention of Corruption Act, 1988
Sections 7 to 16 are incorporated in Chapter III of the
Prevention of Corruption Act, 1988 deals with the offences and
penalties. Sections 7 and 13 (1) (d) constitute two different
offences. In fact, there are vast differences between two,
though both the sections are meant to curb corruption.
In the case of Indur Dayaldas Advani v. The State Of Bombay
[AIR 1952 Bom 58], it was held that it is not necessary that the
act for doing which the bribe is given, be actually performed. A
representation by a public servant that he has done or will do an
act impliedly includes a representation that it was or within his
power to do the act.
Section 8 deals with taking gratification in order by corrupt or
illegal means, to influence public servant. Investigation of an
offence under Section 7 of the Prevention of Corruption Act,

1988 is required to be conducted by a police officer of the rank
specified under Sec. 17 of the Act. Previous sanction of the
competent authority is necessary for prosecution under section
as laid down in sec. 19 of the Act, for the court to take cognizance
of the offence. Special Judge has exclusive jurisdiction to try
the offences as per sections 3 and 4 of the Act. The Offences
are punishable with imprisonment for minimum period of six
months, extending up to 5 years and also with fine.
In Mahendra Prasad v. State [(2008) CCR 28 (Del)], The Delhi
High Court held that the appellant who was working in the Office
of Sub Registrar of Properties, Delhi was convicted for accepting
bribe from the complainant in the matter of supply of a certified
copy to the complainant and was given punishment of 2 and 4
years under Sections 7 and 13 (2) Prevention of Corruption Act,
1988 respectively.
Article 311 of the Indian Constitution
The Constitution of India reiterated the former Prevention of
Corruption Act, 1947 provision that no civil servant can be
prosecuted and punished by an authority subordinate to the one
which made the original appointment. Further guarantees are
provided for civil servants such as the right to be heard when
charged of corruption during the investigation (but not when
penalties are being imposed). Noteworthy is the provision which
makes the appointing authority to make the final determination
whether an inquiry is warranted at all (by giving its reasons in
writing).
66
Further, the President of India or the Governor of a State may
prevent an inquiry in the name of national security. While this
provision was originally intended to protect the civil servants
from harassment, it in fact turned out to be a hindrance in that
sometimes no consent was given by the appointing authority, or if
given, it came too late and/or only grudgingly.
Prevention of Corruption (Amendment ) Bill 2013
The primary law that regulates corruption related offences by
public servants is the Prevention of Corruption Act, 1988. The
1988 Act covers offences like that of taking a bribe, criminal
misconduct (including amassing of disproportionate assets) by a
public servant, and mandates prior government sanction for
prosecution.
Over the years, expert bodies such as the 2nd Administrative
Reforms Commission and the Law Commission of India examined
the 1988 Act and suggested changes to it5. This included inclusion
of the offence of bribe giving, limiting prior sanction for
prosecution to certain cases, and the procedure for attachment
of property of public servants accused of corruption.
Subsequently, in 2008, a Bill to amend the 1988 Act was
introduced in Parliament. The Bill sought to extend the
requirement of prior sanction for prosecution to former public
servants, and provide for attachment of property. However, it
lapsed with the dissolution of the 14th Lok Sabha.

In 2011, India ratified the United Nations Convention against
Corruption (UNCAC), 2005 and agreed to bring its domestic laws
in line with the UNCAC. The UNCAC covers giving and taking a
bribe, illicit enrichment and possession of disproportionate
assets by a public servant as offences, addresses bribery of
foreign public officials, and bribery in the private sector.
In August 2013, the Prevention of Corruption (Amendment) Bill,
2013 was introduced in Parliament to amend the 1988 Act. The
Statement of Objects and Reasons of the Bill states that it was
introduced to bring the 1988 Act in line with the UNCAC. The
Standing Committee submitted its report on the Bill in February
2014. Subsequently, in November 2014, the central government
referred certain amendments to the 2013 Bill to the Law
Commission of India which submitted its report in February
2015.In November 2015, the government circulated amendments
to the 2013 Bill, which were then referred to a Select Committee
of Rajya Sabha.
• The Prevention of Corruption (Amendment) Bill, 2013
amends the Prevention of Corruption Act, 1988.
Certain amendments to the Bill were circulated by the
government in 2015.
Key Issues
• The 1988 Act defines taking a bribe by a public
servant as accepting any reward other than a salary
for performing one’s official act. The 2015
amendments replace this to cover acts where a public
servant accepts any undue advantage other than legal
67
remuneration. Anyone who performs his public
function honestly would not be penalised.
• Under the Act, a bribe giver is charged with
abetment. The 2013 Bill makes giving a bribe to a
public servant a direct offence. The 2015
amendments add that if a person gives a bribe to
assist law enforcement authorities, he will not be
punished.
• The Act defines criminal misconduct which covers six
types of offences including:
i. abuse of position;
ii. use of illegal means;
iii. disregard to public interest. The 2013 Bill
retains only two offences:
i. misappropriating property; and
ii. amassing disproportionate assets.
• Under the 2015 amendments, prior sanction from the
Lokpal or Lokayukta must be obtained before
investigating a public servant.
• Under the 1988 Act, as well as the 2013 Bill and 2015
amendments, if a public servant takes an undue
advantage for performing his public function
improperly, he would be punished. However, the 2015
 68

amendments create an exception. It states that if a both be treated as offences under this provision. The
public servant ‘does not perform a public function or punishment for giving a bribe under all circumstances
activity dishonestly’, he would not be committing an is the same as that of taking a bribe, which is three
offence. This implies that if a public servant charged to seven years’ imprisonment, and a fine.
with taking a bribe proved that he performed his
Several experts have examined the issue of whether bribe giving
public functions honestly, he would not have
under all circumstances should be made an offence under the
committed the offence. The meaning and implications
1988 Act. The United Nations Convention against Corruption
of this provision is unclear.
(UNCAC) states that giving a bribe, either directly or indirectly,
The 2015 amendments define terms like ‘undue advantage’ should be made a punishable offence.
and what would constitute ‘improper performance of a
However, some experts have stressed the need to distinguish
public function’. However, the term ‘performance of a
between bribe givers based on the circumstances under which
public function dishonestly’ has not been defined in the
they give a bribe. In 2007, the report of the Second
1988 Act, the 2013 Bill or the 2015 amendments. In the
Administrative Reforms Commission recommended that the 1988
absence of a definition of what could constitute ‘dishonest
Act must distinguish between coercive and collusive bribe givers.
performance of a public function’, the types of actions of a
This implies that individuals who are coerced into giving a bribe
public servant that would qualify as ‘honest’ would be wide
for obtaining an entitlement (a ration card) may be treated
and open to interpretation. This could include actions that
differently from those who act in collusion with the bribe taker
are at variance with the purpose of the Act.
to obtain an undue advantage (securing a license over other
• Under the 1988 Act, a bribe giver may be penalised bidders). The Standing Committee that examined the 2013 Bill
for abetting the offence of taking a bribe. Under the had expressed a similar view.
2013 Bill and 2015 amendments, giving a bribe,
Under the 1988 Act, if a bribe giver makes a statement in court
directly or through a third party, is made an offence.
that he gave a bribe it would not be used to prosecute him for
Further, in the 2015 amendments clarification is
the offence of abetment. The 2015 amendments replace this
made that a bribe given to process a routine
provision. It states that if someone gives a bribe after informing
entitlement (like a ration card) or to obtain an unfair
law enforcement authorities, in order to assist them in their
advantage (securing a license over other bidders) will
investigation against the bribe taker, he will not be charged with

bribe giving. This may not address situations where a person is
forced to pay a bribe for an entitlement, and subsequently
reports the matter to the authorities.
The Standing Committee that examined the 2013 Bill noted that
individuals who report the matter after the payment of a bribe
in normal circumstances may be distinguished from those who a
pay a bribe in compelling emergent situations. While in the former
case no protection (from punishment) is necessary, in the latter
situation the court may take a decision based on facts and
circumstances of the case.
Lokpal and Lokayukta Act 2013
The Lokpal and Lokayuktas Act, 2013, commonly known as The
Lokpal Act, is an anti-corruption Act of Indian Parliament which
"seeks to provide for the establishment of the institution of
Lokpal to inquire into allegations of corruption against certain
public functionaries including Prime Minister, Ministers, MP’s ,
etc and for matters connecting them. The Bill was introduced in
the parliament following massive public protests led by anti-
corruption crusader Anna Hazare and his associates. The Bill is
one of the most widely discussed and debated Bills in India, both
by the media and the People of India at large, in recent times.
Salient Features
The Act allows setting up of anti-corruption ombudsman called
Lokpal at the Centre and Lokayukta at the State-level. The Lokpal
will consist of a chairperson and a maximum of eight members.
69
The Lokpal will cover all categories of public servants, including
the Prime Minister. But the armed forces do not come under the
ambit of Lokpal. The Act also incorporates provisions for
attachment and confiscation of property acquired by corrupt
means, even while the prosecution is pending. The States will have
to institute Lokayukta within one year of the commencement of
the Act. The Lokpal will have the power of superintendence and
direction over any investigation agency including CBI for cases
referred to them by the ombudsman.
As per the Act, the Lokpal can summon or question any public
servant if there exists a prima facie case against the person,
even before an investigation agency (such as vigilance or CBI) has
begun the probe. Any officer of the CBI investigating a case
referred to it by the Lokpal, shall not be transferred without the
approval of the Lokpal.
An investigation must be completed within six months. However,
the Lokpal or Lokayukta may allow extensions of six months at a
time provided the reasons for the need of such extensions are
given in writing.
Selection Process
A five-member panel comprising the Prime Minister, the Lok
Sabha Speaker, the Leader of the Opposition, the Chief Justice
of India and an eminent jurist nominated by the President,
selects the Lokpal.

The person who is to be appointed as the chairperson of the
Lokpal should be either of the following:
A. Either the former Chief Justice of India
B. Or the former Judge of Supreme Court
C. Or an eminent person with impeccable integrity and
outstanding ability, having special knowledge and
expertise of minimum 25 years in the matters relating
to anti-corruption policy, public administration,
vigilance, finance including insurance and banking, law
and management.
Lokpal is a multimember body, made up of one chairperson and
maximum of 8 members. Out of the maximum eight members, half
will be judicial members. Minimum fifty per cent of the Members
will be from SC / ST / OBC / Minorities and women. The judicial
member of the Lokpal should be:
A. Either a former Judge of the Supreme Court
B. Or a former Chief Justice of a High Court
Term of Office
1. The term of office for Lokpal Chairman and Members is
5 years or till attaining age of 70 years.
2. The salary, allowances and other conditions of service
of chairperson are equivalent to Chief Justice of India
and members is equivalent to Judge of Supreme Court.
70
3. If the person is already getting the pension (for being
a former judge), the equivalent pension amount will be
deducted from the salary.
4. If the chairperson dies in office or has resigned from
the post, President can authorize the senior-most
Member to act as the Chairperson until new chairperson
is appointed. If chairperson is not available for certain
functions due to leave, his job will be done by senior
most member.
Jurisdiction of Lokpal
The following come under the jurisdiction of Lokpal:
• Prime Minister of India
• All ministers of the Union
• Members of Parliament except for matters related to
article 105 of constitution.
• Any person who is or has been in-charge (director /
manager/ secretary) of anybody / society set up by
central act or any other body financed / controlled by
central government
• Any other person involved in act of abetting, bribe
giving or bribe taking
Lokpal Benches
A Lokpal Bench will be constituted by the Chairperson with two
or more members. Every Lokpal Bench has to have at least half

members as judicial members. If bench consists of Chairperson,
it will be headed by him. If the bench does not consist of
chairperson, it will be headed by a judicial member only. The
Lokpal benches will sit in New Delhi or any other places as decided
by Lokpal. The benches can be constituted and reconstituted by
Chairperson time to time.
Procedure
Lokpal first of all receives a complaint. On receiving the
complaint, it needs to decide if it would proceed further. Once it
decides to proceed further, it would order a preliminary inquiry
by either its own Inquiry Wing or other agency such as Delhi
Special Police Establishment. The Preliminary enquiry has to be
done within ninety (90) days of receiving complaint. It can be
increased to further 90 days for reasons recorded in writing.
Thus, preliminary enquiry has to be done in 6 months. The Inquiry
Wing or CBI can do the search and seizure operations. They would
make a report and this report will be taken up by a Lokpal bench
of minimum 3 members. This bench will give an opportunity to the
allegedly corrupt officer to be heard of. After this, the
following three alternatives will be there to proceed for:
• If the officer is guilty, Lokpal will grant sanction to
its Prosecution Wing or CBI to file charge sheet
against him. It can also direct initiation of
departmental proceedings.
• If the officer is found innocent, Lokpal would direct
the closure of report before the Special Court
71
against the public servant and now would proceed
against the complainant for making false complaints.
Powers of Lokpal
The Lokpal has following powers:
• It has powers to superintendence over, and to give
direction to CBI.
• If it has referred a case to CBI, the investigating
officer in such case cannot be transferred without
approval of Lokpal.
• Powers to authorize CBI for search and seizure
operations connected to such case
• The Inquiry Wing of the Lokpal has been vested with
the powers of a civil court.
• Lokpal has powers of confiscation of assets,
proceeds, receipts and benefits arisen or procured by
means of corruption in special circumstances
• Lokpal has powers to recommend transfer or
suspension of public servant connected with allegation
of corruption.
• Lokpal has power to give directions to prevent
destruction of records during preliminary inquiry.
Lokayukta
Lokayukta can be understood as an independent anti-corruption
statutory body established in states, to fight against corruption.

On the receipt of any complaint regarding corruption or bribery
of the public official working at the state level, members of
legislative assembly or ministers etc. Lokayukta comes into the
picture, to deal with it and investigate the case thoroughly.
Even before the Lokpal and Lokayukta Act, 2013 was enacted in
the country, many states have already set up Lokayukta for
combating corruption, of which Maharashtra was the pioneer
state. The composition of Lokayukta is different in different
states of the country. Lokayukta is the head of the body who can
be the Judge of the Supreme Court or Chief Justice/Judge of
the High Court. Moreover, there is an Uplokayukt, who can be a
Judge of High court or any central or state government employee
whose scale of pay is greater than or equal to Additional
Secretary to the Government of India.
Key Differences between Lokayukta and Lokpal
The point given below clarifies the difference between Lokayukta
and Lokpal:
1. Lokpal refers to a statutory organization, formed by
the government to address complaints lodged by the
citizens regarding corrupted public servants, ministers
and government secretaries, working at the central
level, to investigate the case and conduct trials. On the
other hand, Lokayukta is a similar body like Lokpal
formed by the state government to deal with
72
corruption, by inquiring the public servant against the
allegations and conducting trials of the cases.
2. All the state government employees, members of
legislative assembly, other ministers and secretaries to
the government are covered under the purview of
Lokayukta. In contrast, in the jurisdiction of Lokpal, all
the public servants are covered. Along with that the
Members of Parliament, ministers and other politicians,
secretaries to the government also comes in its scope.
3. A Lokayukta works at state-level, the appointment of
Chairperson is done by the Governor. As against, the
President appoints the Chairperson in case of Lokpal.
4. Lokpal is a multi-member government body, with a
Chairman and several other members. However, the
total number of members shall not exceed eight
members. Conversely, a Lokayukta is a three-member
body, including a Lokayukta, State Vigilance
Commissioner and a jurist.
Electoral Reforms
Purity of the public life in a democratic set up depends on the
purity of the process by which the Government governing the
public life is elected. The Representation of People Act, 1951 and
other elections laws in the past 45 years, has told us the need to
go in for drastic electoral reforms. Election Commission, in their
annual reports and otherwise also, have stressed the need of

change in the law and have made several suggestions. In
seventies, electoral reforms was one of the planks that enabled
the opposition to unite. A Charter of demands which Shri
Jayeprakash Narayan presented to the Speakers of Lok Sabha
and Chairman of the Rajya Sabha on March 6, 1975 had demanded
that elections must not be allowed to be influenced by use of
official machinery, money power and recourse of force.
The objectives of the intended changes in law can be spelt as
under:
a. Inherent defects in the system which do not permit
true public opinion and choice of the people to be
reflected in the results because of inequities and
distortions will have to be removed by suitable
correction of the system.
b. Play of the money power in the election ultimately
resulting into corruption in the public life needs to be
curbed.
c. The working of the political parties, so far as is relevant
with the elections in the country, needs to be strictly
regularized.
d. Procedure for the appointment of the Election
Commission and its powers are to be redefined.
e. Though the speedy disposal of the election petition is
desirable, too technical approach adopted by the
statutory provisions entailing dismissal of the election
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petition for a very minor and inconsequential lapse will
have to be changed.
f. Events on which a candidate has no control should not
be made a ground for setting aside an election which
would un-seat a duly elected candidate for no fault of
his. For instance, rejection of a nomination paper by the
Returning Officer.
g. Stricter penalties for electoral offences should be
thought for.
h. A better respect for Model of Code of Conduct should
be given by supporting it with penal consequences.
i. Measures to have speedier disposal of election dispute will
have to be introduced.
Election Commission’s Measures and Recommendations
Election Commission of India has consistently undertaken certain
electoral reforms which it could take on its own as well as at the
direction of Supreme Court. In 1997, Election Commission
directed all the Returning Officers (ROs) to reject the
nomination papers of any candidate who stands convicted on the
day of filing the nomination papers even if his sentence is
suspended. Election Commission has also made the following
recommendations to the Union Government to be made into law in
the form of electoral reforms for the decriminalization of
politics:-

• If a person is accused of a serious crime (that is,
where the law prescribes a punishment of not less
than 5 years for the alleged crime) and if a court of
Some other measures which could also be pondered over
law has framed criminal charges against the accused,
for decriminalization of politics include:-
then it shall be regarded as a reasonable ground for
the disqualification of accused from contesting
elections. The Election Commission is of the opinion
that framing the criminal charges by a court means
that the court prima facie believes that the accused
might have been involved in the alleged crime.
• If a person is found guilty by a Commission of Inquiry
then he shall be disqualified from contesting
elections.
• The (first past the post) FPTP electoral system shall
be replaced by the 2-ballot system under which a
candidate is declared elected from a territorial
constituency on the basis of majority principle. In a
multi-cornered contest if no candidate attains more
than 50% of valid votes polled, then the 2 candidates
who obtained the largest number of valid votes polled
alone shall be allowed to contest the next round of
elections. This system would make it difficult for a
criminal to get elected.
• Along with 2-ballot system, the negative vote shall
also be introduced. This step has already been taken
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with the help of above mentioned Supreme Court
judgment.
• Right to recall - It confers the power on the
registered voters in a constituency to recall their
elected representatives from the house on the
ground of non-performance. It could empower the
people at grassroot level. The elected representative
could be made truly accountable to the people. In such
scenario, political parties will be forced to nominate
eligible and desirable candidates to contest elections
because of the fear of removal of elected
representative. However, for such system to work
high level of political maturity is required on the part
of voters.
• State funding of elections - It means government
extending financial assistance to the political parties
to contest elections in part or in full, in kind or in cash.
The objective could be to control or eliminate the
outside pressure over government policies and
functioning by vested interests by funding political
parties and candidates during elections. It could help
in controlling the flow of unaccounted money and
muscle power of criminals during elections and
corruption in public life.
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