This article is written by Amandeep Kaur, student of Symbiosis Law School, Pune. The author in this article has discussed the various laws related to elections in India.
The Economic Intelligence Unit (EIU) has released the Democracy Index of 2019 and out of 167 countries, India has been ranked at the 41st place with a score of 7.3/10. The reason behind its low ranking is the fundamental weakness which the country is facing due to various reasons. In India, elections for the centre are conducted every 5 years, according to a prescribed set of rules and regulations.
Governmental Structure of India
- Structure of the Union Government– India has a parliamentary form of government. The President of India is the head of the state and exercises his powers directly or through the officers subordinate to him.
- Structure of the State Government- The State legislature comprising of Vidhan Sabha and Vidhan Parishad is headed by the Chief Minister of that particular state whose election process is similar to the Prime Minister. The Chief Minister is also responsible for electing the governor of the state legislature.
Requirements of free and fair Elections
The constitution of India has mentioned many requirements for conducting free and fair elections but the major requisites are:
- Free and independent authority– In order to conduct elections an authority is needed, this authority should be independent and free from any political interference.
- Rules and regulations– The set of rules and regulations required for governing the elections will be held by the authority appointed to conduct the elections.
- Redressal mechanism– If any doubts or disputes arise during the conduct of elections, a redressal mechanism is needed in order to address those doubts and resolve disputes.
Election Commission of India
Several methods have been adopted by the lawmakers in order to ensure free and fair elections and one of them is appointing a commission for conducting elections known as the Election Commission of India. Article-324 of the Constitution of India provides for the appointment of EC and vests various functions in it.
Structure of the Election Commission
The Election Commission was established in 1950 and at that time it had just one member known as the Chief Election Commissioner but later in 1989 before the elections its membership was increased to three members in total but its membership was again changed to one member after the elections. Later in 1993, it was made a multi-member commission by adding two more members to it. Now it consists of one Chief Election Commissioner (CEC) and two other election commissioners. All three members have the same powers and are appointed by the President of India on the advice of the Council of Ministers for a term of 6 years or they continue their office till the age of 65. The members of the commission usually are retired IAS officers.
Removal of the Members
The CEC can be removed before the expiry of its term by the President if such recommendation is made by both the Houses of Parliament with a special majority. The other two members i.e. the election commissioners can be removed by the President of India.
Functions of the Election Commission
The election commission is vested with various functions by the Indian constitution. The wide range of functions are:
- Voters’ list– the commission supervises in preparing of up-to-date voters’ list. The commission ensures that the voters’ list contains all the names of the registered and eligible voters and no names for the non-eligible and non-existent voters and therefore ensures that the list does not have any errors or mistakes.
- Election schedule and timings– the commission is responsible for fixing the date and timing of elections and for preparing the election schedule. The election schedule includes all notifications of the elections, date from which nomination can be filed, last date for filing nominations, last date of scrutiny, last date of withdrawal, date of polling, date of counting and declaration of results.
- Ensure free and fair poll– the commission has the power to ensure that the elections are conducted without any biases and unfairness. Therefore it has the power to take any decisions in this relation. It can cancel or postpone the elections for the entire country, or for a particular state, or for a particular constituency if it feels that a free and fair election is not possible due to some reason.
- Model of conduct– it is a set of rules and regulations implemented by the commission for the political parties and the candidates before and during the elections.
- Re-polling or Re-counting– the commission can also order for recounting of votes in a particular constituency or state or the country if it feels that the counting process lacked fairness and unbiasedness. It can also order for a re-poll in a particular constituency or a state.
- Recognition and party symbols– it is the election commission who accords recognition to the political parties and allot symbols to each party.
Elections Laws in India
There are various laws related to the conduct of elections in India. The elections for both the centre and the state are conducted differently but the laws governing the conduct of elections of the Parliament and State Legislature are almost the same. These are as follows:
The Representation of the People Act, 1950
This act provides for the allocation of seats in Lok Sabha and Legislative Assemblies, delimitation of constituencies, qualifications of voters, manner of filling the seats of Rajya Sabha by Union Territory representatives etc.
- The election commission should appoint or nominate a Chief electoral officer for each and every state with the consultation of the state government.
- Appointment of district level election commissioners should also be done by the Election Commission with the consultation of the state government.
- The Central government has the power to make any rules under this Act with the consultation of the Election Commission.
- This Act bars the power of the Civil Courts to question the legality of any action of electoral registration officer regarding revision of electoral roll.
The Representation of the People Act, 1951
This Act provides for the conduct of elections to the Parliament and State Legislatures, qualifications, disqualifications, various offences, various doubts and disputes etc. Following are some of the rules laid down under this Act:
- Everybody or association who wants to stand as a candidate in the elections have to get itself registered with the Election Commission of India. It is on the EC to register a political party or not after considering various relevant factors and particulars.
- Any change in the name and address of the political party should be communicated to the Election Commission.
- A person cannot represent the people in either Lok Sabha or Rajya Sabha if he is not eligible to vote.
The Registration of Electors Rules, 1960
The rules contained in this Section are related to the preparation of electoral rolls, their periodic updating and revision. This act also provides the process for registration of eligible voters and the issuance of voter ID cards with the photograph of the voter. The inclusion of eligible and registered voters in the electoral rolls and the exclusion of non-eligible and non-existing voters are included in this act. The election commission prepares the electoral rolls during the elections which contain the name, photograph and the other particulars of the voter because of the rules mentioned under this Act.
Conduct of Election Rules, 1961
This Act deals with each and every stage of conduct of elections in detail. It holds the issuing of writ notification for conducting elections, filing of nominations, scrutiny of nominations, withdrawal of candidates. This rule also governs the counting of votes and taking of polls. In the end, this rule also categorises the constitution of the Houses on the basis of the results. Many amendments have been made in this rule such as the Conduct of Election Rules (Amendment), 2013 and the Conduct of Election Rules (Amendment), 2016.
Election Symbols Order, 1968
This is the order which empowers the Election Commission to recognise political parties and allot them symbols. The commission under para 15 of this order also has the power to decide disputes arising among rival groups or sections of a political party who is claiming the symbol. Under this paragraph, only the Election Commission has the power to decide all the issues arising on any disputes or a merger.
Presidential and Vice-Presidential Rules, 1974
This Act is particularly made for the conducting of elections for both the President and Vice-President. This act consisted of 41 sections in total and provides the whole process for conducting elections such as:
- Voting by electors under preventive detention
- Adjournment of the poll in emergencies
- Place and time for counting of votes
- Maintenance of secrecy of voting
- Production and inspection of election papers
- Copies of return of election
Sec-41 of this Act repealed the Presidential and Vice-Presidential Elections Act, 1952.
Anti-defection Law, 1985
This law was introduced during the tenure of Rajiv Gandhi by the 52nd Constitutional Amendment and is contained in the Tenth Schedule of the constitution which is also known as the Anti-defection law. If a member of a House belonging to a particular party voluntarily gives up the membership of his political party or votes or abstains from voting, contrary to the directions of his political party or if an independent member joins a political party after the election then that particular member will come under the situation of defection.
The need for such a law was felt especially when a legislator from Haryana named ‘Gaya Lal’ changed his party three times in a fortnight. After that incident, it took 17 years for the Parliament to pass such a law. Under this law, any member of a house will be disqualified by the Chairman or the Speaker of the house if any complaint is received regarding that member with respect to defection.
Election expenditure by a political party or a candidate
A political party or the candidate cannot spend on the election campaigns according to their desires but there is a limit set by the Election Commission. As mentioned in Rule 90 of Conduct of Election Rules, 1961 a party or a candidate can spend between Rs 50 lakh to Rs 70 lakh depending on the state for which they are going to conduct Lok Sabha elections. For conducting the Assembly elections the limit for spending is between Rs 20- 28 lakhs.
The candidates are supposed to keep a separate account for their election expenses and file it to the concerned authority. If the Election commission finds out that the account filed by the candidate is wrong or they have spent beyond the cap, then this will lead to their disqualification for up to 3 years under Sec-10A of the Representation of People Act, 1951.
Universal Adult Suffrage
Article-326 of the Indian Constitution provides for the adult suffrage which means that any citizen of India either male or female who is not less than 18 years of age has the right to vote. The rule of Adult Franchise was adopted when the constitution of India was enacted in 1949 and was implemented in 1950. Initially before the enactment of the constitution voting rights were not available to the women but the Motilal Nehru report of 1928 advocated unlimited adult franchise and equal rights for women. Moreover, the minimum age for a person to be eligible voting was 21 years during the implementation of the constitution but after the 61st Amendment Act, the minimum age required for voting has been changed from 21 years to 18 years.
Right to Vote
Right to vote has been enshrined in Article 326 of the Indian Constitution. The right to vote is neither a fundamental nor a constitutional right but is merely a statutory or legal right. This right came into existence because of the constitution and accordingly, is enshrined in it but the right has been shaped by a statute called the Representation of People Act, 1951.
Model code of conduct
It is a set of rules and regulations framed and implemented by the Election Commission of India to be followed by the political parties and the candidates during the conduct of elections. In order to make it more convenient for the political parties and the candidates, the rules are divided into subcategories.
- No party or candidate shall indulge in any activity leads to the expansion of the existing differences and hatred between different castes or communities or religions.
- Activities which are related to ‘corrupt practices’ such as bribing of voters, impersonation of voters, transport or conveyance of voters to and from polling station shall be strictly avoided by the parties or the candidates as these are regarded as offences under election law.
- An individual’s right to peace and undisturbed home-life shall not be violated under any circumstances by way of protesting against their opinions before their houses or by organizing demonstrations.
- The private property of an individual shall not be used without his permission by the political party or candidate himself or by its followers for pasting notices, suspending banners etc.
- The political parties or the candidate shall not use religion or communal feelings of the public for securing votes for their party.
- The schedule and the venue of the meetings shall be informed by the party or a candidate to the police within a reasonable time so that arrangements can be made for controlling the traffic and for maintaining peace and order.
- If the use of loudspeakers or any other facility in the meeting requires prior permission or license then the party or the candidate shall apply for such licence or permission to the authority concerned.
- The organizers of the proposed meeting themselves shall not take any action against a person or a group who is disturbing the meeting but shall seek the assistance of the police.
- The time and the venue of the starting of the procession or a rally, the route to be followed during the procession and the time and place where it will end should be decided beforehand by the party or the candidate and it should not deviate from the plan.
- Intimation to the local police authorities should be given within reasonable time by the organizers so that they can make the necessary arrangements.
- The procession shall try not to disturb the right of the people to the road as much as it is possible and the police authority shall comply with that.
- If a situation arises where two or more political parties or candidates decide to take processions over the same route or some part of it, then the organizers shall establish contact with each other and shall adopt such measures which shall not cause and clash of the processions or any traffic hindrances.
All political parties and candidates-
- For ensuring peace and order during the poll day shall cooperate with the officers on the election duty and therefore should ensure that there is no obstruction in the exercising of the right to vote of the people.
- Shall not serve or distribute liquor among the public on polling day and during 48 hours preceding it.
- Shall provide with suitable badges or identity cards to their authorized workers.
- Shall make sure that no unnecessary crowd is collected near the camps set up by the political parties and candidates near the polling booths.
No one shall enter the polling booths without a valid pass from the Election Commission, except the voters.
The Election Commission appoints a particular set of observers to observe the conduct of elections on the polling day. If any party or a candidate have any issues or problems regarding the conduct of elections they may bring that issue to the notice of the observer.
India is the second most populated country in the world and is called the largest democracy too. It is true that it is lagging behind in the Democracy Index but one should consider the fact it is not easy to maintain democracy in one of the most populated countries and India has been successful in maintaining the democracy for almost 70 years. There are many loopholes in the election laws which need to be looked upon in order to improve the country’s rank in the Democracy Index. Therefore the legislature and the judiciary are trying to get an insight into these loopholes and are making amendments.