 Elections (Articles 324 to 329-A)

o Salient Features of the Representation of the People Act of 1950 & 1951
The Representation of the People (RPI) Act, 1950 provides for the allocation of seats
in and the delimitation of constituencies for the purpose of election to the Lok Sabha and the
Legislatures of States, the qualifications of voters at such elections, the preparation of
electoral rolls for the Parliamentary as well as the Assembly constituencies along with the
manner of filling seats in the Rajya Sabha to be filled by representatives of Union Territories.
The Representation of the People (RPI) Act, 1951 provides for the conduct of elections of the
Houses of Parliament and to the House or Houses of the Legislature of each State, the
qualifications and disqualifications for membership of those Houses,1 the corrupt practices
and other offences at or in connection with such elections 2 and the decision of doubts and
disputes arising out of or in connection with such elections. 3 Detailed provisions have been
given under the RPI Act, 1951 relating to overall conduct of elections, election notification
and administration etc. along with the registration of political parties, nomination of
candidates, their scrutiny and removal, appointment and revocation of their election agents,
decisions regarding time for holding polls, counting of votes and publication of results etc.
The Representation of the People (Amendment) Act, 1966 (47 of 1966), abolished the
election tribunals and transferred the election petitions to the High Court whose orders can be
appealed to Supreme Court.4 However, election disputes regarding the election of President
and Vice-President are directly heard by the Supreme Court.

o Election Commission of India and Electoral Reforms

Election Commission of India is a permanent Constitutional Body. It was established

on 25th January 1950. The Commission is responsible for conducting fair and free elections
in India. It is necessary for the Commission to fulfill the constitutional objectives. The
Election Commission also acts in accordance with the laws made by the Indian Parliament
i.e. Representation of the People Act, 1950 dealing with the preparation and revision of
electoral rolls, the Representation of the People Act, 1951 dealing with all aspects of conduct

1
The Representation of the People Act, 1951, Chapter-II (sections 3-7)sections 3 prescribes qualifications for
Rajya Sabha Members; section-4 for Lok Sabha Members; sections 5 & 5A for Members for Legislative
Assemblies of states and Sikkim; sections 6 for Members for Legislative Councils of states;
2
ibid. Chapter-III (sections 7,8,8A,9,9A,10,10A,11,11A&11B) prescribes disqualifications for conviction for
certain offences, for corrupt practices, for corruption for disloyalty etc. and removal thereof.
3
ibid.
4
ibid. section 80-A.
of elections and post election disputes. The powers and functions of the Election Commission
are also subject to judicial review.
In India, Election Commission consists of a Chief Election Commissioner and some
other members (at present, there are two other members who are known as Election
Commissioners). They are appointed by the President of India. Parliament fixes the terms and
conditions of their service. The tenure of the Election Commissioners is 6 years. However,
they can be removed from office by the same procedure by which a judge of the Supreme
Court can be removed.
In TN Seshan, Chief Election Commissioner v. Union of India, 5 the Supreme Court,
while dealing with the removal of members of the Election Commission, held that “the
scheme of Article 324 in this behalf is that after insulating the [Chief Commissioner]…by the
first proviso to Clause (5), the Election Commissioners and the Regional Commissioners
have been assured independence of functioning by providing that they cannot be removed
except on the recommendation of the CEC.” The court further held that the recommendation
should be based on ‘intelligible and cogent considerations which would have relation to
efficient functioning of the Election Commission.’6
The main functions of the Election Commission are as follows:
 EC has supervisory control over the conduct of elections in India and deals
with election related problems. It can issue directions in this regard.
 EC is responsible to make electoral rolls and get them updated.
 To conduct the elections of President, Vice-President, members of both the
Houses of Parliament, members of Legislative Assemblies and Legislative
Councils of various States.
 Delimitation of Constituencies.
 To give recognition to political parties.
 EC deals with the allotment of symbols to the political parties.
 EC has power to cancel polls under certain circumstances.
 EC gives opinion to the President of India in case of emergency.
 EC advises the President or a Governor on matters relating to disqualification
of a legislator.
 EC conducts by-elections for filling up vacant seats in Parliament or any State
legislature.
5
(1995) 4 SCC 611
6
ibid. p. 620
In Special Reference No. 1 of 2002, re,7 the Supreme Court held that holding of election is the
exclusive domain of the Election Commission under Article 324 of the Indian Constitution.
In Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others,8
the Supreme Court observed that Article 324 operated in an area ‘area left unoccupied by
legislation’ and is wide enough to supplement the powers under the Act. Furthermore, in
Union of India v. Association for Democratic reforms9, the court stated that the Election
Commission can make all necessary provisions for conducting free and fair elections.
Since the Election Commission is responsible for conducting fair and free elections under
the Indian Constitution, it always works on bringing electoral reforms in the country.
Following are some Committees and Commissions on electoral reforms:10
 The Joint Parliamentary Committee on Amendments to Election Law (1971-72):
The 1972 Report of the Election Commission considered the advantages of the
proportional representation system while analyzing other legal systems.
 Tarkunde Committee Report of 1975: The Tarkunde Committee’s Report (1975)
said, “As in the case of Judiciary, the Election Commission must not only be
independent in theory but also manifestly appear to be so in the exercise of its powers
of organising and conducting elections. In the recent years, an impression is gaining
ground that the Election Commission is becoming less and less independent of the
Executive than in the earlier years of Independence, because the choice of the Chief
Election Commissioner has not always been based on criteria, which would command
the confidence of all sections of public opinion. The practice of making it a berth for
retiring Government officials has, perhaps, been responsible for the feeling that the
incumbent so benefitted will be beholden to the Government for his office.”11
 Goswami Committee on Electoral Reforms (1990): It recommended that a model
code of conduct relating to-the use of official machinery, transport, media, funds etc.,
should be framed.
 Vohra Committee Report (1993): It studied the problem of the criminalisation of
politics and of the nexus among criminals, politicians and bureaucrats in India.

7
AIR 2003 SC 87
8
(1978) 1 SCC 405
9
AIR 2002 SC 2112.
10
Law Commission of India, Report No.255, March 2015, titled “Electoral Reforms” available at <
http://lawcommissionofindia.nic.in/reports/Report255.pdf> accessed on August 12, 2016, at 4:50 p.m. IST.
11
Quoted in Era Sezhiyan, “Appointment of Election Commissioners,” The Hindu, May 21, 2001, available at <
http://www.thehindu.com/2001/05/21/stories/05211349.htm> accessed on August 12, 2016, at 4:50 p.m. IST.
  The Indrajit Gupta Committee on State Funding of Elections (1998): The
Committee endorsed state funding of elections, seeing “full justification
constitutional, legal as well as on ground of public interest” in order to establish a fair
playing field for parties with less money.12
 The Law Commission Report on Reform of the Electoral Laws (1999): It
concluded that total state funding of elections is “desirable” so long as political parties
are prohibited from taking funds from other sources.13
 The National Commission to Review the Working of the Constitution (2001): It
did not endorse state funding of elections but concurred with the 1999 Law
Commission report that the appropriate framework for regulation of political parties
would need to be implemented before state funding is considered.14
 The ECI-Proposed Electoral Reforms (2004): It recommended that the
Representation of the People Act, 1951 be amended.
 The Second Administrative Reforms Commission (2008): It worked upon the
blueprints for strengthening Indian public administration.
 255th Law Commission Report 2015: It proposed wide ranging reforms on the issue
of candidate expenditure limits; disclosure obligations of individual candidates and
political parties; and penalties imposable on political parties; as well as examining the
issue of state funding of elections.15

o Election Commission’s of India’s Model Code of Conduct

The Model Code of Conduct for guidance of political parties and candidates is a set of norms
which has been evolved with the consensus of political parties who have consented to abide
by the principles embodied in the said code and also binds them to respect and observe it in
its letter and spirit.16

For ensuring free and fair election, the Election Commission has power to frame
guidelines on all of those issues where there is no enactment or legislation. Considering the

12
“State Funding of Elections” available at < http://www.prsindia.org/theprsblog/?p=656> accessed on August
12, 2016, at 4:50 p.m. IST.
13
ibid.
14
ibid.
15
Report No. 255, titled “Electoral Reforms”, Law Commission of India, March 2015 available at <
http://lawcommissionofindia.nic.in/reports/Report255.pdf> accessed on August 12, 2016, at 4:50 p.m. IST.
16
“Model Code Of Conduct For The Guidance Of Political Parties And Candidates,” (2007), available at <
http://eci.nic.in/eci_main/faq/faq_mcc.pdf> accessed on August 12, 2016, at 4:50 p.m. IST.
situation in hand, the Supreme Court in S. Subramaniam Balaji v. State of T.N.,17 directed the
Election Commission to frame guidelines for governing the contents of the election manifesto
in consultation with all the recognized political parties. The court further directed to include
election manifesto guidelines in the Model Code of Conduct.
Having considered the suggestions/comments received from the political parties and
having regard to the directions of the Hon’ble Supreme Court, the Commission finalized the
guidelines on Election Manifestos. These guidelines are now part of the Model Code of
Conduct for the Guidance of the Political parties and Candidates. 18 The guidelines prohibit
political parties to make hatred speeches. The political parties should respect individuals’
rights while campaigning. During processions on public roads, the political parties should not
violate traffic rules. On the polling day, the political parties should co-operate with the
officers on election duty, etc.
o To ensure free and fair elections, and give impetus to the vision of the framers,
Parliament enacted The Representation of the People Act, 1951 which inter
alia provides qualifications and disqualifications for membership of
Parliament and State Legislatures, lays down corrupt practices that are
punishable by law, creates other offences in connection with such elections
and for the resolution of disputes arising out of or in connection with them.
The underlying rationale for the legislation is thus to create a systemic
framework conducive to free and fair elections. Implicit in this framework is
the need to prescribe certain qualifications and disqualifications, which are
deemed to be respectively essential or unsuitable for holders of public office.
o Indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664- “It
is beyond the pale of reasonable controversy that if there be any unamendable
features of the Constitution on the score that they form a part of the basic
structure of Constitution, it is that India is a Sovereign Democratic Republic.”
o Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, 424
at para 23- “Democracy is government by the people. It is a continual
participative operation, not a cataclysmic periodic exercise. The little man, in
his multitude, marking his vote at the poll does a social audit of his Parliament

17
(2013) 9 SCC 659
“Judgment dated 5.7.2A13 of the Hon'ble Supreme Court in SLP ( C) No. 21455 of 2008 and TC No. 112 of ?
18

011 -S.Subramaniam Balaji Vs. Govt. of TN& Others-framing of guidelines for election manifestos- FINAL
GUIDELINES – reg.” available at <http://eci.nic.in/eci_main1/current/ci_19022014.pdf> accessed on August
12, 2016, at 4:50 p.m. IST.
 plus political choice of this proxy. Although the full flower of participative
Government rarely blossoms, the minimum credential of popular government
is appeal to the people after every term for a renewal of confidence. So we
have adult franchise and general elections as constitutional compulsions… It
needs little argument to hold that the heart of the Parliamentary system is free
and fair elections periodically held, based on adult franchise, although social
and economic democracy may demand much more.”
o A three Judge Bench of the Supreme Court in Centre for Public Interest
Litigation v. Union of India (2011) 4 SCC 1 (the “CVC case”) raised the
standards of qualification for appointment to a public office. Holding it
imperative for the members to uphold and preserve the integrity of the
‘institution’, it was laid down that not the desirability of the candidate alone
but the “institutional integrity” of the office which should be the reigning
consideration in appointments to a public office. The spirit of this judgment,
applicable to all public offices, is that it is not only imperative for the
candidate for such office to have the highest standards of integrity, but
independently that the integrity of the institution must be preserved. Having
criminal elements in politics, no matter whether they are convicted or not,
indubitably tarnishes the latter, if not the former as well.
o The Vohra Committee report (Government of India, ‘Vohra Committee
Report on Criminalisation of Politics, Ministry of Home Affairs’ (1993)
http://indiapolicy.org/clearinghouse/notes/vohra-rep.doc )pointed to the rapid
growth of criminal networks that had in turn developed an elaborate system of
contact with bureaucrats, politicians and media persons. A Consultation
Paper published by the NCRWC in 2002 (National Commission to Review
the Working of the Constitution, ‘A Consultation Paper on Review of the
Working of Political Parties Specially in Relation to Elections and Reform
Options’ (2002) http://lawmin.nic.in/ncrwc/finalreport/v2b1-8.htm )went
further to say that criminals were now seeking direct access to power by
becoming legislators and ministers themselves
o Law Commission of India Report: ELECTORAL DISQUALIFICATIONS,
Report No. 244, February, 2014-The Law Commission of India (Chairperson:
Justice A.P. Shah) submitted its report on Electoral Disqualifications to the
Ministry of Law and Justice, on February 24, 2014. The report follows the
Supreme Court directive issued in December 2013, in the Public Interest
Litigation filed by the NGO Public Interest Foundation, related to
decriminalisation of politics. The report examined issues related to: (i)
disqualification of candidates with criminal background, and (ii) consequences
of filing false affidavits. Key recommendations include: Stage at which
disqualification is to be triggered The Commission examined the different
stages at which disqualification may be triggered, and decided upon the stage
of framing of charges. Conviction: The current practice of disqualification
upon conviction has been unable to curb the criminalisation of politics, owing
to long delays in trials and rare convictions. The law must evolve to act as an
effective deterrent. Filing of police report: At the stage of the filing of the
police report, there is no application of judicial mind. Thus, this would not be
the appropriate stage at which disqualification may be effected. Framing of
charges: The stage of framing of charges is based on adequate levels of
judicial scrutiny. By effecting disqualification at this stage, with adequate
safeguards, the spread of criminalisation of politics may be curbed. Safeguards
at the stage of framing of charges Certain safeguards must be included to
prevent misuse of this provision and to address the concern of lack of remedy
for the accused. These include: Only offences that attract a maximum
punishment of five years or above should be included within the ambit of this
provision. Charges filed within one year before the date of scrutiny of
nominations for an election will not lead to disqualification. The
disqualification will operate until acquittal by a trial court, or a period of six
years, whichever is earlier. For charges framed against sitting MPs or MLAs,
the trial must be expedited. It must be conducted on a day to day basis, and
completed within one year. If the trial is not concluded within a one year
period then the MP/MLA may be disqualified at the expiry of that period.
Alternatively, the MP/MLA’s right to vote in the House as a member,
remuneration and other perquisites attached to his office should be suspended
at the end of one year. Disqualification at the stage of framing of charges must
apply retroactively as well. Persons with charges pending (punishable by five
years or more) at the time of this law coming into effect must be disqualified
from contesting future elections. The safeguards for charges filed within one
 year of the date of scrutiny of nomination papers would apply. False affidavits
as grounds for disqualification. On the issue of filing of a false affidavit, the
Representation of the People Act, 1951 must be amended to reflect the
following: Conviction on the charge of filing of a false affidavit must be
grounds for disqualification. Punishment to be enhanced, from a maximum of
six months imprisonment, to a minimum of two years imprisonment. Filing of
a false affidavit should qualify as a ‘corrupt practice’ under the Act.
Consequently, trials of cases in relation to false affidavits must also be
conducted on a day to day basis. Further, a gap of one week should be
introduced between the last date for filing nominations and the date of
scrutiny. This would give adequate time to file an objection on nomination
papers.
o 255th Law Commission Report 2015 noted that “the current system
tolerates, or at least does not prevent, lobbying and capture, where a sort of
quid pro quo transpires between big donors and political parties/candidates”.
The report recommended that political parties should disclose all amounts over
Rs. 20,000 received by them, even if from a single donor. It has recommended
that the disqualification term for candidates who do not submit proper details
of expenditure within the prescribed time be extended, so that they are unable
to contest the next election. It has also recommended that candidates should be
compelled under some law to disclose all contributions received by them from
any person or company, and from the political party.---Summary--The law
Commission of India submitted its Report No. 255 on “Electoral
Reforms” to the Union Law and Justice Ministry. Informing this to the Media
persons here in New Delhi Justice Shri A. P. Shah, Chairman Law
Commission of India said the 201 page report has come after due
consideration and deliberations with the stake holders including of register
national and state political party and extensive and in-depth analysis of various
issues by the commission. He said this report is sequel of the request of
Ministry of Law and Justice made in January 2013 to the Twentieth Law
Commission of India to consider the issue of ‘Electoral Reforms’ in its
entirety and suggest comprehensive measures for changes in the law. While
working on the subject, the Supreme Court of India, in the matter of ‘Public
Interest Foundation & Others V. Union of India & Anr- Writ Petition (Civil)
No. 536 of 2011, directed the Law Commission of India to make its
suggestions on two specific issues, viz., (i) ‘curbing criminalization of
politics and needed law reforms’; and (ii) ‘impact and consequences of
candidates filing false affidavits and needed law reforms to check such
practice’.
 Election Finance: The Law Commission has proposed wide ranging
reforms on the issue of candidate expenditure limits; disclosure
obligations of individual candidates and political parties; and penalties
imposable on political parties; as well as examining the issue of state
funding of elections. Section 77 of the RPA, regulating the election
expenses incurred or authorized by candidates or their election agents,
currently extends from the date of nomination to the date of declaration
of results. This period should be extended by amending section
77(1) to apply from the date of notification of the elections to the
date of declaration of results. [Para 2.31(a)1]
Section 182(1) of the Companies Act, 2013 should be amended to
require the passing of the resolution authorising the contribution from
the company’s funds to a political party at the company’s Annual
General Meeting (AGM) instead of its Board of Directors. [Para
2.31(a)2]
The existing disclosure obligations of individual candidates are limited
to maintaining an account of electoral expenses under sections 77 and
78, RPA. This is sought to be amended by inserting a new section 77A
to require candidates or their election agents to maintain an account
and disclose the particulars (names, addresses and PAN card numbers
of donors and amounts contributed) of (i) any individual contribution
received by them from any person or company, not being a
Government company and (ii) any contribution by the political party
from the date of notification of elections, which have to be made by the
party by a crossed account payee cheque or draft or bank transfer.
[Para 2.31(b)3]
Political parties should be required to maintain and submit annual
accounts, duly audited by a qualified and practicing chartered
accountant from a panel of such accountants maintained for the
 purpose by the Comptroller and Auditor General, to the ECI every
financial year. These accounts will fully and clearly disclose all the
amounts received by the party and the expenditure incurred by it. The
ECI will then upload these accounts online or keep them on file for
public inspection on payment of fee. [Para 2.31(b)6]
Disclosure provisions governing political parties has been substantially
recast, with the existing 29C being deleted and replaced by a new
section 29D requiring all parties to: (i) mandatorily disclose all
contributions in excess of Rs. 20,000; (ii) include aggregate
contributions from a single donor amounting to Rs. 20,000 within its
scope; (iii) disclose the names, addresses and PAN card numbers (if
applicable) of these donors along with the amount of each donation
above Rs. 20,000; (iv) disclose such particulars even for contributions
less than Rs. 20,000 if such contributions exceed Rs. 20 crore or 20 %
of the party’s total contributions, whichever is less. Consequential
amendments will need to be made to the Election Rules and the IT Act.
[Para 2.31(b)7]
Anti Defection Law in India: The Law Commission recommends a
suitable amendment to the Tenth Schedule of the Constitution, which
shall have the effect of vesting the power to decide on questions of
disqualification on the ground of defection with the President or the
Governor, as the case may be, (instead of the Speaker or the
Chairman), who shall act on the advice of the ECI. This would help
preserve the integrity of the Speaker’s office. [Para 5.22]
Strengthening the office of the Election Commission of India: The ECI
should be strengthened by first, giving equal constitutional protection to all
members of the Commission in matters of removability; second, making the
appointment process of the Election Commissioners and the CEC consultative;
and third, creating a permanent, independent Secretariat for the ECI.
Article 324(5) of the Constitution should be amended to equate the removal
procedures of the two Election Commissioners with that of the Chief Election
Commissioner. Thus, equal constitutional protection should be given to all
members of the ECI in matters of removability from office. [Para 6.9]
The appointment of all the Election Commissioners, including the CEC,
should be made by the President in consultation with a three-member
collegium or selection committee, consisting of the Prime Minister; the Leader
of the Opposition of the Lok Sabha (or the leader of the largest opposition
party in the Lok Sabha in terms of numerical strength); and the Chief Justice
of India. Elevation of an Election Commissioner should be on the basis of
seniority, unless the three member collegium/committee, for reasons to be
recorded in writing, finds such Commissioner unfit. Amendments should be
made in the Election Commission (Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991 to reflect this. [Para
6.12.5]
A new sub-clause (2A) should be added to Article 324 of the Constitution to
provide for a separate independent and permanent Secretariat for the ECI
along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of
the Constitution. This will further improve the independence of the ECI. [Para
6.19 & 6.20]
Paid News and Political Advertisements
The issue of paid news and political advertisements should be regulated in the
RPA in the following manner:
a. The definitions of “paying for news”, “receiving payment for news” and
“political advertisement” should be inserted in section 2 of the RPA. [Para
7.48.4 & 7.48.5]
b. The consequences attached to those indulging in such practices should
be delineated by creating i. an electoral offence of “paying for
news” / “receiving payment for news” in a newly inserted section 127B of the
RPA - Not only will the incorporation of this electoral offence make paying
for news / receiving payment for news penal, the stringent punishment will
ensure that if the candidate themselves are found guilty, then, in all likelihood,
they will be disqualified pursuant to section 8(3) of the RPA; [Para 7.49.1]
ii. a corrupt practice of paying for news under newly inserted sub-
clause (iii) in section 123(2)(a) of the RPA. [Para 7.50]
c. In order to curb the practice of disguised political advertisement,
disclosure provisions should be made mandatory for all forms of media. The
purpose of disclosure is two fold; first, to help the public identify the nature of
the content (paid content or editorial content); and second, to keep the track of
transactions between the candidates and the media. Thus, a new section 127C
should be inserted in the RPA to deal with the non-disclosure of interests in
political advertising. The ECI can regulate the specifics of the disclosure
required. [Para 7.51.2]

Opinion Polls
Section 126(1)(b) of the RPA, which prohibits the display of any election
matter forty-eight hours before polling begins, is limited to display by means
of “cinematograph, television or other similar apparatus”; and does not deal
with the independence and robustness of the opinion polls themselves. Thus:
a. The ban on opinion polls in the electronic media does not extend to the
print media and section 126(1)(b) should be amended to prevent the
publication, publicity, or dissemination of any election matter by print or
electronic media. [Para 8.27.1]
b. Section 126(1)(b) should also provide for cognizance being taken only
on the basis of a complaint made by order of, or under authority from, the ECI
or the Chief Electoral Officer of the State. [Para 8.27.2]
c. The regulation of opinion polls is necessary to ensure that first, the
credentials of the organisations conducting the poll is made known to the
public; second, the public has a chance to assess the validity of the methods
used in conducting the opinion polls; and third, the public is made adequately
aware that opinion polls are in the nature of forecasts or predictions, and as
such are liable to error. Consequently, new sections 126C and 126D should be
inserted in the RPA. [Para 8.28.3]
Compulsory Voting
The Law Commission does not recommend the introduction of compulsory
voting in India and in fact, believes it to be highly undesirable for a variety of
reasons ----such as being undemocratic, illegitimate, expensive, unable to
improve quality political participation and awareness, and difficult to
implement. [Para 9.24]
The Right to Recall
The Law Commission is not in favour of introducing the right to recall
in any form because it can lead to an excess of democracy, undermines the
 independence of the elected candidates, ignores minority interests, increases
instability and chaos, increases chances of misuse and abuse, is difficult and
expensive to implement in practice, especially given that India follows the first
past the post system. [Para 12.20]
 Legally, the prevention of the entry of criminals into politics is accomplished by
prescribing certain disqualifications that will prevent a person from contesting
elections or occupying a seat in Parliament or an Assembly. Qualifications of
members of Parliament are listed in Article 84 of the Constitution, while
disqualifications can be found under Article 102. Corresponding provisions for
members of State Legislative Assemblies are found in Articles 173 and 191. Article
102 states that a person shall be disqualified from being chosen, and from being a
member of either House of Parliament if he holds an office of profit, if he is of
unsound mind and so declared by a competent court, if he is an undischarged
insolvent, if he is not a citizen of India and if he is disqualified by any other law made
by Parliament. Parliament through the RPA has prescribed further qualifications and
disqualifications for membership to Parliament or to a Legislative Assembly. Section
8 of the Act lists certain offences which, if a person is convicted of any of them,
disqualifies him from being elected, or continuing as, a Member of Parliament or
Legislative Assembly. Specifically, Section 8(1) lists a number of offences,
convictions under which disqualify the candidate irrespective of the quantum of
sentence or fine – these include certain electoral offences, offences under the Foreign
Exchange Regulation Act, 1973, the Narcotics Drugs and Psychotropic Substances
Act, 1985 the Prevention of Corruption Act, 1988 etc. Section 8(2) lists other
offences, convictions under which would only result in disqualification if
imprisonment is for six months or more. Section 8(3) is a residuary provision under
which if a candidate is convicted of any offence and imprisoned for two years or
more, he is disqualified. (Section 8(4), which existed previously, was struck down
by the Supreme Court in Lily Thomas v. Union of India, (2013) 7 SCC 653.)
Disqualification operates from the date of conviction and continues for a further
period of six years from the date of release. The scheme of disqualification upon
conviction laid down by the RPA clearly upholds the principle that a person who has
conducted criminal activities of a certain nature is unfit to be a representative of the
people. The criminal activities that result in disqualification irrespective of
punishment under S. 8(1) are either related to public office, such as electoral offences
or insulting the national flag, or are of grave nature, such as offences under terrorism
laws. S. 8(3), on the other hand, envisages that any offence for which the minimum
punishment is two years is of a character serious enough to merit disqualification. In
either case, it is clear that the RPA lays down that the commission of serious criminal
offences renders a person ineligible to stand for elections or continue as a
representative of the people. Such a restriction, it was envisaged, would provide the
statutory deterrent necessary to prevent criminal elements from holding public office,
thereby preserving the probity of representative government. However, it is clear from
the above account of the spread of criminalisation in politics that the purpose behind
S. 8 of the RPA is not being served. With respect to the filing of affidavits by
candidates, a candidate to any National or State Assembly elections is required to
furnish an affidavit, in the shape of Form 26 appended to the Conduct of Election
Rules, 1961, containing information regarding their assets, liabilities, educational
qualifications, criminal convictions against them that have not resulted in
disqualification, and cases in which criminal charges are framed against them for any
offence punishable with two years or more. Failure to furnish this information,
concealment of information or giving of false information is an offence under S. 125A
of the RPA. However, the sentence under S. 125A is only imprisonment for a period
of 6 months, and the offence is not listed under S. 8(1) or (2) of the RPA. Therefore,
conviction under S. 125A does not result in disqualification of the candidate. Neither
is the offence of false disclosure listed as a corrupt practice which would be a ground
for setting aside an election under Section 100. Therefore, there is currently little
consequence for the offence of filing a false affidavit, as a result of which the practice
is rampant.
o Role of Judiciary: The judiciary has sought to curb this menace of
criminalisation of politics through several seminal judgments and attendant
directions to the government and the Election Commission primarily based on
the aforesaid provisions. Specifically, orders of the Supreme Court seeking
to engender a cleaner polity can be classified into three types: first,
decisions that introduce transparency into the electoral process; second, those
that foster greater accountability for holders of public office; third, judgments
that seek to stamp out corruption in public life. The discussion below is not
meant to be an exhaustive account; it merely illustrates the trends in Supreme
Court jurisprudence relating to the question of de-criminalisation of politics.
In Union of India v. Association for Democratic Reforms (2002) 5 SCC 294
the Supreme Court directed the Election Commission to call for certain
information on affidavit of each candidate contesting for Parliamentary or
State elections. Particularly relevant to the question of criminalisation, it
mandated that such information includes whether the candidate is
convicted/acquitted/discharged of any criminal offence in the past, and if
convicted, the quantum of punishment; and whether prior to six months of
filing of nomination, the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or more, and in which
charge is framed or cognizance is taken by a court. The constitutional
justification for such a direction was the fundamental right of electors to know
the antecedents of the candidates who are contesting for public office. Such
right to know, the Court held is a salient facet, and the foundation for the
meaningful exercise of the freedom of speech and expression guaranteed to all
citizens under Article 19(1)(a) of the Constitution. Again in People’s Union
for Civil Liberties v. Union of India (2003) 2 SCC 549 the Supreme Court
struck down Section 33B of the Representation of People (Third Amendment)
Act, 2002 which sought to limit the ambit of operation of the earlier Supreme
Court order in the ADR case. Specifically it provided that only the information
that was required to be disclosed under the Amendment Act would have to be
furnished by candidates and not pursuant to any other order or direction. This
meant, in practical terms, that the assets and liabilities, educational
qualifications and the cases in which he is acquitted or discharged of criminal
offences would not have to be disclosed. Striking this down, the Court held
that the provision nullified the previous order of the Court, infringed the right
of electors’ to know, a constituent of the fundamental right to free speech and
expression and hindered free and fair elections which is part of the basic
structure of the Constitution. It is pursuant to these two orders that criminal
antecedents of all candidates in elections are a matter of public record,
allowing voters to make an informed choice. At the same time, the Supreme
Court has also sought to foster greater accountability for those holding elected
office. In Lily Thomas v. Union of India (2013) 7 SCC 653, the Court held
that Section 8(4) of the RPA, which allows MPs and MLAs who are convicted
while serving as members to continue in office till an appeal against such
conviction is disposed of, is unconstitutional. Two justifications were offered
— first, Parliament does not have the competence to provide different grounds
for disqualification of applicants for membership and sitting members; second,
deferring the date from which disqualification commences is unconstitutional
in light of Articles 101(3) and 190(3) of our Constitution, which mandate that
the seat of a member will become vacant automatically on disqualification.
Again in People’s Union for Civil Liberties v. Union of India (2013) 10 SCC
1. (hereinafter ‘NOTA’), the court held that the provisions of the Conduct of
Election Rules, 1961, which require mandatory disclosure of a person’s
identity in case he intends to register a no-vote, is unconstitutional for being
violative of his freedom of expression, which includes his right to freely
choose a candidate or reject all candidates, arbitrary given that no analogous
requirement of disclosure exists when a positive vote is registered, and illegal
given its patent violation of the need for secrecy in elections provided in the
RPA and widely recognised as crucial for free and fair elections. Thus by
allowing voters to express their dissatisfaction with candidates from their
constituency for any reason whatsoever, the Supreme Court order has a
significant impact in fostering greater accountability for incumbent office-
holders. When its impact is combined with the decision in Lily Thomas, it is
clear that the net effect of these judgments is to make it more onerous for
criminal elements entrenched in Parliament from continuing in their positions.
Third, the Supreme Court has taken several steps for institutional reform to
sever the connection between crime and politics. In VineetNarain v. Union of
India (1998) 1 SCC 226, a case concerning the inertia of the Central Bureau
of Investigation (CBI) in investigating matters arising out of certain seized
documents known as the ‘Jain diaries’ which disclosed a nexus between
politicians, bureaucrats and criminals, who were recipients of money from
unlawful sources, the Supreme Court used the power of continuing mandamus
to direct large-scale institutional reform in the vigilance and investigation
apparatus in the country. It directed the Government of India to grant statutory
status to the Central Vigilance Commission (CVC), laid down the conditions
necessary for the independent functioning of the CBI, specified a selection
process for the Director, Enforcement Directorate (ED), called for the creation
of an independent prosecuting agency and a high-powered nodal agency to co-
 ordinate action in cases where a politico-bureaucrat-criminal nexus became
apparent. These steps thus mandated a complete overhaul of the investigation
and prosecution of criminal cases involving holders of public office.
Addressing the problem of delays in obtaining sanctions for prosecuting public
servants in corruption cases, Vineet Narain also set down a time limit of three
months for grant of such sanction. This directive was endorsed by the
Supreme Court in Subramanium Swamy v. Manmohan Singh, (2012) 3 SCC
65 where the Court went on to suggest the restructuring of Section 19 of the
Prevention of Corruption Act such that sanction for prosecution will be
deemed to have been granted by the concerned authority at the expiry of the
extended time limit of four months. In these and other cases, the Supreme
Court has attempted to facilitate the prosecution of criminal activity,
specifically corruption, in the sphere of governance.
o Some other Supreme Court Judgments- Kihoto Hollohon v. Zachillhu and
Others,19 the Supreme Court considered free and fair election as basic structure of Indian
Constitution. In Union of India v. Association for Democratic Reforms and Another,20 the
Court held that the Election Commission has power to issue directions or orders on the
related subject matter in the absence of any legislation. The court further declared that
citizens’ freedom of speech and expression includes the right to know about the backgrounds
of candidates for public office. It would be helpful for the voter to choose the right candidate.
each candidate must submit an affidavit regarding the information of his/her criminal
antecedents; assets (both movable and immovable) of self and those of spouses and
dependents as well; and qualifications at the time of filing his/her nomination papers for
election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies. The Apex
Court again in PUCL v. Union of India21 guarded the citizen’s right to know the antecedents
about his or her candidate in election. The Election Commission, in pursuance of the above
referred order dated 2nd May, 2002 of the Hon’ble Supreme Court, directed that non-
furnishing of the affidavit by any candidate shall be considered to be violation of the order of
the Hon’ble Supreme Court and the nomination of the candidate concerned shall be liable to
rejection by the returning officer at the time of scrutiny of nominations for such non-
furnishing of the affidavit. It was further directed that furnishing of wrong or incomplete

19
1992 Supp (2) SCC 651
20
AIR 2002 SC 2112
21
AIR 2003 SC 2363
information shall result in the rejection of nomination papers, apart from inviting penal
consequences under the Indian Penal Code.22 People’s Union for Civil Liberties v. Union of
India,23 the Supreme Court recognized the right not to vote in the form of NOTA (none of the
above) option available on the electronic voting machine. Directions were issued to Election
Commission of India to make the NOTA (None of the above) option a practically feasible
and viable option for voters.
o In Raj Bala v. State of Haryana and others,24 the Supreme Court upheld a
Haryana State law mandating that only those having minimum educational
qualifications will be eligible to contest panchayat elections in the State.
o In Manoj Narula v. Union of India,25 the Supreme Court said that
criminalization of politics is an anathema to the sacredness of democracy. It
has been noted in the N.N. Vohra Committee that the nexus between
politicians, bureaucrats and criminal elements is on rise. 26 The pervasiveness
of criminalization of politics is very dangerous for the democratic society.
o In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and
others,27 the Court observed that the election law intends to exclude
candidates having criminal background in order to prevent criminalization of
politics. It would also be helpful for maintaining propriety in elections. The
court welcomes the election laws having such objective in their application.
In K. Prabhakaran v. P. Jayarajan,28 in the context of enacting
disqualification under Section 8(3) of the Representation of the People Act,
1951, it has been reiterated that persons with criminal background pollute the
process of election as they have no reservation from indulging in criminality to
gain success at an election.29
o Single Election in India
Pranab Mukherjee, the President of India, agreed to the idea of ‘one India one
election’, which would relieve the country of being in a continuous state of elections. The
22
“Supreme Court’s order dated 2nd May, 2002 relating to right to information of electors regarding criminal
antecedents, assets and liabilities and educational qualifications of candidates– implementation of the order.”
Available at < http://eci.nic.in/archive/press/current/PN_28062002.htm > accessed on August 12, 2016, at 4:50
p.m. IST.
23
(2013) 10 SCC 1
24
2015(9) SCALE 25
25
(2014) 9 SCC 1
26
Dinesh Trivedi, M.P. and others v. Union of India and others, (1997) 4 SCC 306
27
(1997) 6 SCC 1
28
AIR 2005 SC 688
29
Cited in Manoj Narula v. Union of India, (2014) 9 SCC 1
President was extremely clear in his opinion of conducting the Lok Sabha and the state
elections at the same time. He agreed that the continuous elections was a waste of
government funds and stalled the implementation of government programmes. The proposal
would definitely save the taxpayers’ money.30
o Time Frame within which the Election to the Assembly must be held
In re, Gujarat Assemble Election Matter 31 the main question raised in the
reference was regarding time frame within which the election to the Assembly must
be held. The Court opined that Article 174 and 324 of the Constitution operate in
different fields and, therefore, Article 174 applies to only ‘Live Assembly’ and not
‘Dissolved Assembly’ and, therefore, the duty of Election Commission to hold fair
elections under Article 324 of the Constitution is not a power curtailed by Article 174
of the Constitution, which provides that the gap between two sittings of Legislative
Assembly may not be beyond the period of six months.
o Religion and Elections
On 2nd January 2017, the Hon’ble Supreme Court of India in Abhiram Singh v C.D.
Commachen (Dead) By Lrs. & Ors., 32 ruled that the political parties cannot use religion or
caste to seek votes. The court said that it amounts to corrupt practices. It was said that the
relationship between the God and an individual is personal one and the State has no power to
intervene in such personal autonomy. A Constitution bench headed by Chief Justice of India
Justice TS Thakur by a 4:3 majority passed this order on the basis of Section 123(3) of the
Representation of People’s Act.
 Shiv Sena v. Union of India, decided by the Supreme Court on November 26,
2019- The Court ordered: “We may note that in the present case, oath has not been
administered to the elected members even though a month has elapsed since the
declaration of election results. In such emergent facts and circumstances, to curtail
unlawful practices such as horse trading, to avoid uncertainty and to effectuate
smooth running of democracy by ensuring a stable Government, we are of the
considered opinion that it is necessary to pass certain interim directions in this case. In
this context, it is necessary and expedient to conduct the floor test as soon as possible
30
“President Pranab Mukherjee supports ‘One India One election’, says continuous elections hamper
governance” The Financial Express, September 5, 2016, available at < http://www.financialexpress.com/india-
news/president-pranab-mukherjee-supports-one-india-one-election-says-continuous-elections-hamper-
governance/367962/> accessed on September 6, 2016, at 4:50 p.m. IST.
31
(2002) 8 SCC 237
32
In The Supreme Court Of India, Civil Appellate Jurisdiction, Civil Appeal No. 37 OF 1992, decided on
January 02, 2017, available at <http://judis.nic.in/supremecourt/imgs1.aspx?filename=44451> accessed on
January 6, 2017, at 2:10 p.m. IST.
to determine whether the Chief Minister, who was administered the oath of office, has
the support of the majority or not. Since the elected members of the Legislative
Assembly are yet to take oath as specified in the III Schedule of the Constitution, and
the Speaker is also yet to be elected, we request the Governor of the State of
Maharashtra to ensure that a floor test be held on 27.11.2019. The following
procedure is to be followed for conducting the floor test:
o a. Protem Speaker shall be solely appointed for the aforesaid agenda
immediately.
o b. All the elected members shall take oath on 27.11.2019, which exercise
should be completed before 5:00 p.m.
o c. Immediately thereafter, the Protem Speaker shall conduct the floor test in
order to ascertain whether the Respondent No. 3 has the majority, and these
proceedings shall be conducted in accordance with law. The floor test will not
be conducted by secret ballot.
o d. The proceedings have to be live telecast, and appropriate arrangements are
to be made to ensure the same.”