UPSChub Polity

Part XV of the Indian Constitution deals with Elections. However, it only provides the foundational framework for holding elections; for example, it provides for the Election Commission to hold elections, universal adult suffrage, etc. The elaborate provisions are made by the Parliament and, in some cases, state legislatures too, as provided under Article 327.

Constitutional Provisions Regarding Elections

• Article 324: It provides for the Election Commission of India and vests in it the superintendence, direction and control of elections.
• Article 325: It provides for a general electoral roll for every constituency for the purpose of the elections to the Parliament or the state legislature. It also bars the inclusion of any person in the electoral roll on grounds only of religion, caste, race, sex or any of them.
• Article 326: It provides that elections to the Lok Sabha and state legislative assemblies are to be held on the basis of adult suffrage. All who are not less than 18 years of age are entitled to vote, provided s/he is not disqualified by a provision of the Constitution or law made by ‘appropriate legislature’ on the grounds of non-residence, unsound mind, criminal activity, or corrupt or unlawful practice.
• Article 327: It provides for the power of Parliament to make provisions with regard to the election of the Parliament and state legislatures, including preparation of electoral rolls, delimitation of constituencies and other necessary matters.
• Article 328: This article has a provision for the power of the state legislatures to make provisions with respect to elections to that legislature. However, the state legislature is only empowered to legislate on such matters where the Parliament has not made any provisions. It means the state legislature has subsidiary powers with respect to such matters.
• Article 329: This article bars the interference of courts in electoral matters.

Constitutional Provisions Related to Composition of Legislature

Parliamentary Laws Related to the Elections in India

While Articles 81, 170, and 171 provide for the composition of the Parliament, state legislative assemblies, and state legislative councils, the actual allocation of seats has to be made as per the law. Similarly, Articles 327 and 328 empower Parliament and the state legislature (limited powers) to make provisions with regard to the election to the Parliament and state legislatures, including preparation of electoral rolls, delimitation of constituencies, and other necessary matters.

Hence, the Parliament has enacted several legislations regarding the conduct of elections in India, including:

Representation of People Act, 1950

The RPA 1950 was passed before the first election in the Independent India to define the allocation of seats and the electors.

• Allocation of seats: It was enacted to provide for the allocation of seats in the Lok Sabha and the legislative assemblies and legislative councils in the states.
• Delimitation of constituencies: It also empowers the President to delimit, after consultation with the EC, the constituencies for the purpose of elections to the Lok Sabha and state legislative assemblies and councils.
• Election Officers: The Act provides for elections officers such as chief electoral officers, district election officers, electoral registration officers, etc. CEOs and DEOs head the state and the district electoral machinery, respectively, and are generally IAS officers. Their role is the registration of voters and correction of the names in the electoral rolls. CEO, DEO and electoral registration officers are all designated/nominated by the Election Commission of India in consultation with the State government. (Note: Officers related to the actual conduct of elections are defined in RPA 1951.)
• Registration of Voters: The Act provides for the registration of electors for Parliamentary constituencies and legislative assembly and council constituencies.

Conditions for registration as voters:

• Nobody shall be entitled to be enrolled in the electoral roll for more than one constituency.
• Nobody shall be entitled to be enrolled in the electoral roll for any constituency more than once.
• The person must be not less than 18 years of age on the qualifying date.
• The person should be an "ordinarily resident" in a constituency.

Disqualification of registration of Voters:

A person shall be disqualified from enrolling in an electoral roll if s/he:

• (a) Is not a citizen of India;
• (b) is of unsound mind and declared so by a competent court;
• (c) is disqualified from voting under any law concerning corrupt practices and other offences in connection with elections.

The Acts bars the jurisdiction of civil courts regarding the registration of a person in an electoral roll.

Representation of the People Act, 1951

The RPA 1951 deals with the actual conduct of elections to the Parliament and state legislature, and membership of these Houses was made under this act. The act contains the following provisions regarding electoral matters:

Qualifications for membership of Parliament and State Legislature:

• For Rajya Sabha: The person must be an elector in a parliamentary constituency in India.
• For Lok Sabha: The person must be an elector in a parliamentary constituency. In the case of seats reserved for SCs and STs, the person must be a member of the SC and ST community, respectively, in any state, besides being an elector in any parliamentary constituency in India. [Special provisions in case of Assam, Lakshadweep and Sikkim].
• For Legislative Assembly: The person must be an elector in any assembly constituency of that state. In the case of seats reserved for SCs and STs, the person must be a member of the SC and ST community, respectively, besides being an elector in any assembly constituency of that state.
• For membership of a Legislative Council: The person must be an elector in any assembly constituency in the state. To be qualified for nomination by the Governors, the person must be an ordinary resident of the state.

Disqualifications for membership (Sections 8, 8a, 9, 9a, 10)

The act provides for the disqualification of members of Parliament and state legislature on various grounds.

• Severe Offences & Communal Nature (Section 8(1)): If someone is only fined for committing a severe criminal offence or is imprisoned, they are disqualified from the date of conviction and will continue to be disqualified for a further period of six years since his/her release. Offences include: Promoting hostility (RPA 1951), booth capturing, promoting discord (IPC Sec 153A), Rape (Sec 376), Cruelty towards a woman (498A), Protection of Civil Rights Act (untouchability), Sati Act, UAPA, TADA, Religious Institutions Act, Places of Worship Act, FERA, NDPS, PCA, Customs Act, etc.
• Less Severe Offences (Section 8(2)): Conviction under these offences leads to disqualification if sentenced to imprisonment for six months or more. Disqualification is effective from the date of such conviction and continues for an additional six years since his/her release. Offences include: Dowry Prohibition Act, anti-hoarding/profiteering laws, food adulteration laws. (Note: If sentence is lower than six months, there is no disqualification).
• Other Offences (Section 8(3)): For any other criminal offence, if the sentence to imprisonment is for 2 or more years, it leads to disqualification from the date of conviction, and the disqualification continues further for 6 years after release.

Disqualification on the grounds of Corrupt practices (Section 8A)

A candidate can be disqualified from contesting elections if s/he is found guilty of "corrupt practices" (i.e. electoral malpractices) as defined in section 123 of this act. An election petition is filed in the High Court. Once the HC passes an order, the President decides, within three months, regarding the period of disqualification (max 6 years).

Section 123 "corrupt practices" include:

• Bribery;
• Undue influence (direct or indirect intervention);
• Appeal to vote or not to vote on the grounds of caste, religion, race, community or language or the use of religious/national symbols;
• Promoting enmity between classes;
• Providing illegal conveyance to voters;
• Incurring or authorising electoral expenses beyond Section 77 limits;
• Aiding, abetting or taking help from a government servant;
• Booth capturing.

Other Modes of Disqualification

• Dismissal for corruption or disloyalty (Section 9): A person who has held a position under the Central/State Gov and has been dismissed for corruption or disloyalty is disqualified for 5 years from dismissal.
• Government contracts (Section 9A): A candidate is disqualified for entering into a contract with the "appropriate government" for the supply of goods or services. Disqualification persists till such contract persists.
• Holding government offices (Section 10): Disqualified if managing agent, manager, or secretary in any corporation/firm (except cooperatives) where government owns at least 25% shares.
• Failure to lodge account of election expenses (Section 10A): Disqualified for 3 years for failing to furnish an account of electoral expenses in specified time/manner.

Power of the Election Commission to reduce disqualification

Section 11 of the RPA 1951 allows the Election Commission to remove any disqualification under the above-mentioned provisions or reduce the period of any such disqualification. Only one exception of Electoral "corrupt Practices" under Section 8A is provided by the act.

Disqualification from Voting [Section 11A]

A person stands disqualified from voting in any election for a period of 6 years if s/he is convicted for:

• Bribery or undue influence in elections
• Removal of ballot papers from polling station
• Promoting enmity between communities
• A government officer on election duty, found guilty of electoral malpractice.

Further, any person disqualified from membership by a decision of the President for corrupt practices shall also be disqualified for voting. Elimination (Section 11B): The EC is empowered to remove any disqualification under this provision.

Registration of Political Parties & Funding

• Registration [Section 29]: Any association or body of citizens calling itself a political party can make an application to the EC with a memorandum of its rules.
• Contributions: Every political party can accept voluntary contributions from any person/company (other than Gov companies). No party is eligible to accept funds from any "foreign source" under FCRA 1976. (Note: In 2017, the 5% net profit limit on corporate contributions was removed).
• FCRA Amendments: The Finance Act 2016 amended FCRA retrospectively (extended to 1967 in 2018) changing the "foreign source" definition. If nominal share value is within limits specified for foreign investment under FEMA 1999, the company is not a foreign source.
• Declaration to EC: Treasurers must report contributions of ₹20,000 received from any person/company. (Does not apply to electoral bonds. Cash donations of ₹2000 or more are prohibited via IT Act 1961).

Conduct of Elections & Important Amendments

RPA 1950 mainly deals with election machinery for registration and upkeeping voter lists. RPA 1951 provides for the election machinery for the actual conduct of elections.

• RPA (Amendment) Act, 1966: Abolished election tribunals; original jurisdiction for election petitions (except President/VP) granted to the High Court.
• RPA (Amendment) Act, 2002: Provided voters statutory right to information. Candidates must furnish information on prior convictions, pending accusations, and declare assets/liabilities.
• RPA (Amendment) Act, 2010: Confers voting rights to NRIs (citizens not present at place of ordinary residence due to employment, education, etc.).
• RPA (Amendment & Validation) Bill, 2013: A person in police custody or jail can file a nomination as a contestant, as long as their name is in the electoral roll.
• RPA (Amendment) Bill, 2017: Seeks to enable proxy voting for overseas voters.

Delimitation Acts

Articles 82 and 170 provide for readjustment of seats and division of states into territorial constituencies based on census. Articles 330 and 332 provide reservation for SC/ST and horizontal reservation for women.

• Freeze on Readjustment: To promote population control, the 42nd Amendment (1976) froze seat allocation and constituencies at the 1971 level. Extended till 2026 by the 84th Amendment (2001). This caused distortion due to uneven population growth.
• Readjustment Within States: The 87th Amendment (2003) permitted adjustment of boundaries within states based on the 2001 census without changing the total number of state seats.
• Delimitation Act, 2002: Passed to facilitate 2001 census delimitation. The Commission re-fixed SC/ST reserved seats based on 2001 census but kept total seats at 1971 levels. Delimitation acts were previously passed in 1952, 1962, 1972.

Anti-defection Law & Election Symbols Order

• Anti-defection Law: Passed via the 52nd Constitutional Amendment (1985) adding the 10th Schedule to curb "the menace of anti-defection", laying down disqualification grounds for defection.
• The Election Symbols (Reservation and Allotment) Order, 1968: Contains provisions regarding the recognition of political parties as National and State parties and the allotment of election symbols.