NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL. XIV Trimester, B.A.LL.B (Hons) End Term Examination, December 2019 - Elective: Law of Elections Model Answer 1. Mrs. X was elected to the Rajya Sabha from the State of Uttar Pradesh and took oath accordingly to become a Member of Parliament. Thereafter, the Government of Uttar Pradesh, by Official Memorandum, appointed Mrs. X as the Chairperson of Uttar Pradesh Film Development Council and accorded the rank of a Cabinet Minister with the facilities mentioned below: (i) Honorarium of Rs. 5,000 per month; (ii) Daily allowance @ Rs, 600 per day within the State and Rs. 750 outside the State. Rs. 10,000 per month towards entertainment expenditure. ) Staff car with driver, telephones at office and residence, one P.S., one P.A. and ‘to class TV employees. (iv) Body Guard and night escort. (v) Free accommodation and medical treatment facilities to her and family members. (vi) Free accommodation in government cireuit houses/guest house and hospitality while on tour. ‘The election of Mrs. X was challenged by Mrs. Y. a Ifyou are a Counsel for the petitioner, Mrs. Y, on what grounds can you challenge the election of Mrs. X as Member of Parliament? That Mrs. X was holding an office of profit being a Member of Rajya Sabha ~ The office of Chairperson, Uttar Pradesh Film Development Council is not included in the Parliament (Prevention of Disqualification) Act, 1959 ~ This office as Chairperson entitles her to draw Pecuniary benefits in terms of honorarium, entertainment expenditure, staff car with driver free medical treatment for self and her family and other services having pecuniary value therelore, Mrs. X is liable to be disqualified by the President in accordance with che provisions of the Constitution, Article 103 as she is holding an office of profit provided uncer Article 102 (1) (a). ». Ifyou are the Attorney General, on what grounds can you defend the election of Mrs. X? Mrs. X was not holding any office of Profit at the time of election — she was appointed Chairperson subsequently by the State Government based on her excellence in the eld of cinema ~ This does not in any way come in eonflict with her obligations as the M.P of Rajya Sabha ~ Although the office carried the financial benefits as indicated, she had not taken any Of the benefits so far as she is from a very affluent family - Therefore, the membership of Mrs. X in Rajya Sabha cannot be disqualified. The very fact that she has not availed any of the serviees or the honorarium or reimbursement for the services rendered clearly proves that she was not holding any office of Profit that would disqualify her. ©. Ifyou are a judge of the Supreme Court, how will you decide? Give reasons. The applicable provisions of the Constitution are Articles 102 and 103, A law has been enacted by the Parliament, the Parliament (Prevention of Disqualification) Act, 1959, inwhich the Office of the Chairperson, U.P Film Development Couneil is not provided for — In the second place, the office entitles Mrs. X to all the financial and other benefits ~ The contention that she belongs to an affluent family and was not interested in those perks are not relevant here. Even if she has not received any of the benefits, she continues to hold the office of profit as defined by this court in many cases. Therefore, the disqualification is proper and constitutional d. If you are a Researcher for the Law Commission of India on Electoral Reforms, what suggestions will you make in this regard? Give reasons, Although the intentions of the framers of the Constitution is very clear and objective, the subsequently enacted Parliament (Prevention of Disqualification) Act, 1959 seems to be diluting the objectives sought to be achieved — The power to include any office by way of frequent amendments to this enactment to take the protection of law and prevent disqualifications needs to be curtailed — The Supreme Court’s further endorsement that such power to amend the law can also be retrospective in nature gocs against the norms and objectives of democracy and constitutional values / constitutional morality - ‘There is every need to enable the members of Parliament to discharge their primary function of participation in the law making and not implementation of any law ~ This divide between legislative power and executive power needs to be kept divided — failing which, the combined legislative and executive power in the hands of legislators, either at the centre or at the states would derail the concept of Checks and balances- 2. The Election Commission issued a notification by virtue of its powers under Article 324 of the Constitution to introduce the Electronic Voting Machine in the electoral Process. In one of the by-elections in Kerala, the Election Commission introduced the Electronic Voting Machines in 89 of 184 polling booths. Mr. A was declared elected. Mr. 8 who lost the election with a very narrow margin, wants to challenge the election of Ir. A. a. Ifyou are a Counsel for Mr. B, on what grounds can you challenge the election of Mr. A? The use of EVMs has no authority of law as the ECI does not possess the power to introduce such EVMs ~ The existing provisions of the Representation of People Act, 1951, provides for ‘Ballot’ and ‘Ballot Box’ — Any procedure followed in derogation of this Act would be both illegal and unconstitutional ~ Assuming that the measures taken by the ECT is appropriate, the administration of EVMs only in 89 pol 2 booths and in the rest of the booths the ballot paper and ballot boxes were used is arbitrary and hence beyond the competence of the ECI — The people also did not get adequate information about the use of EVMs ~ The voter is not able to see that the vote cast to a particular candidate is credited in his or her favour and therefore the element of trust is totally missing in this procedure — All these legal and procedural violations form a solid ground to declare the election conducted invalid and reorder polls in those booths where EVMs were used b. If you are the Advocate General of Kerala, on what grounds can you defend the election of Mr. A? ‘The ECI has enormous powers as declared by the Supreme Court in a plethora of cases — Mohinder Singh Gill v. CEC or AIADMK v. CEC or other judicial decisions — Therefore the ECI has the plenary power to bring necessary changes to the procedure in the conduct of elections - EVMs were tested earlier and the conduct of elections by EVMs was notified wellin advance ~ Therefore, the petitioner is secking to confuse the whole issue by raising objections now on legal and constitutional principles — Based on the plethora of decisions of the Supreme Court, holding Article 324 is a reservoir of power for the ECI, the High Court may uphold the powers of the ECI and declare the election as valid. €. Ifyou are a judge of the High Court, how will you decide? Give reasons. Appreciating the contentions of the Advocate General, the High Court of Kerala holds the use of EVMs is valid and consequently the election also as valid, However, keeping in mind the legal and constitutional objections raised by the petitioner, Certificate for appeal to the Supreme Court is granted to the petitioner. d. Ifyou are a Researcher for the Law Comi n of India on Electoral Reforms, what suggestions will you make in this regard? Give reasons, The EC in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity reserved for the legislature... Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures — the Parliament may make necessary amendments to the Representation of People Act, 1951, to incorporate the use of EVMs as these machines have made the electoral process more easier and interesting - The ECI should also take necessary steps to educate the voters all over India keeping in mind the educational and other backwardness of people ~ The ECI cannot exercise powers that have already been legislated by the Parliament - Briefly explain and critically evaluate the creation of multi member Election Commission of India in the light of constitutional, statutory provisions and judicial decisions. Article 324 provides for an EC that may either be a single member or multi member body, the number to be determined by law made by the Parliament - Till 1991, the ECI had only one member body with the CEC as the chief — In 1991, the President issued notification to create ‘two more ECs and abolition of these post as well - The Notifications issued to abolish the ost of Election commissioners was mala fide ~ done in haste — non-application of mind as the posts were created about three months back ~ for such abolition, the President vannot act independently, but must be guided by a law made by the Parliament ~ if not, it would amount to total execittive interference in the working of the ECI at will - therefore, the autonomy and independence of the ECI is at state — Subsequently, the Parliament enacted a law and amended the law through an Ordinance - Reliance on the decision of the Supreme Court in S.S. Dhanoa v. Union of India and T.N. Seshan v. Union of India — There is no violation of Art, 123 as the Ordinance has been approved by the Parliament ~ further, the new enactment does not specify the number and therefore appointment of other Election Commissioners would be unconstitutional ~ Sections 9 and 10 go against the spirit of Article 324 and may be struck down as the status of the CEC is diluted by these provisions The number of members in the ECI be specified in the Act by necessary amendment ~ once this number is fixed, the President may act within the number so specified — sections 9 and 10 ‘be amended to restore the status of CEC in accordance with Article 324 — transparency in the appointment be followed to secure the status of the ECI ~ Dr. Subramanyan Swamy v. CEC, in which the court directed the CEC not to sit in the decision making, but under ‘doctrine ofnecessity’ may take side if there is a split decision between the two ECs ~ Due eredit will be given for reference to the law, Ordinance and the judicial decisions 4. Briefly explain and critically evaluate the process of Presidential election in India from the notification to the declaration of results. What are the principles laid down by the Constitution and the Supreme Court with regard to the challenges to the Presidential election. Article 54 Electoral college consisting of elected members of both the Houses of Parliament and State Legislative Assemblies - Article 55 provides for the manner of the election — uniformity in the seale of representation of different states inter se as well as parity between the states as a whole and the Union — quotient for determining the value votes of each Member of State Legislative Assembly as well as a Member of Parliament — Proportional representation and by means of single transferable vote — Presidential and Vice Presidential Elections Act, 1952 and Rules of 1974 as amended from time to time ~ Election Commission to nominate the Retuming Officer in consultation with the Government with the Secretary General of Lok Sabha and Rajya Sabha alternating ~ Fifty electors to propose and fifty to second the nomination — four nominations can be filed with one Deposit of Rs. 15,000/- made to the Treasury or the Reserve Bank of India — If a candidate whose nomination has been found correct, dies any time before the poll, the Election will be countermanded — candidates securing one sixth of the number of votes necessary to secure the return of a candidate will lose the caution deposit ~ Voters can vote either in Parliament or in theit respective states after duly notifying the same to the Returning Officer - Each Ballot Paper will indicate the value of such votes east — the ballot of Members of Parliament will be Green in colour while that of the Members of state Legislative Assemblies, pink in colour — After polling on a designated date, the valid votes will be counted first to determine the proportion of votes to win the election ~ the form of ballot paper as well as the technique of transferring the votes through the illustration and the judicial process that may follow will get due credit, - The principles laid down by the Supreme Court with regard to the Presidential election by citing relevant judicial decisions will be given due credit. 5. Briefly explain and critically evaluate the qualifications and disqualification provided under the Constitution and the laws for the election to the Parliament. Discuss the same in the light of statutory provisions and judicial decisions, The qualifications for membership of the Council of States are provided w/s 3, House of the People are provided w/s 4. From being a member of elector for a Parliamentary constituency in India (s.3); reservation in favour of SC and ST must be from that caste (Ss.4 and 5) and be an elector of any Parliamentary constituency (s.4) — Disqualifications are provided under Articles 102 and 191 — (a) Holding Office of Profit; (b) Unsound mind; (c) undischarged insolvent; (d) not being an Indian Citizen; and other disqualifications by or under any law made by the Parliament ~ Disqualification under X schedule is also provided — The RoP Act provides for some disqualifications under s. 8 on conviction for certain offences; on corrupt practices (s.8A); for dismissal for corruption or disloyalty (s.9); for having government contracts (s. 9A); Disqualfication for an office under Government Company (s.10); and for failure to lodge account of election expenses (s.10A) — judicial decisions on these qualifications and disqualifications with critical analysis will be given due eredit. 6. What is meant by corrupt practices? Briefly explain and critically evaluate the same in the light of statutory provisions and judicial deCorrupt practices means any of the practices specified in sec. 123 of the RoP Act, 1951 ~ It includes (a) Bribery; (b) Undue Influence; (c) Appeal to vote or not to vote on the ground of religion, race, caste etc.,; (d) Promotion of enmity or hatred between different classes of citizens of India; (e) publication of false statement relating to personal character or conduct of any candidate; (f) hiring of vehicles or vessels for free conveyance for electors; (g) incurring of authorization of expenditure in contravention of s.77 of RoP Act, 1931; and (h) obtaining or procuring assistance from government servants ~ relevant judicial decisions and critical opinion expressed will be given due credit. 7. Write critical note on any TWO of the following: (a) Proportional representation The purpose of proportional representation is to secure a representative assembly reflecting with more or less mathematical exactness the various divisions of electorate ~ It uses either single transferable vote (Hare system) or List System — Merits and demerits of this system with suitable illustrations will be given due credit — This system of election is used in the election of President, Vice President and Members of the Couneil of States in India (b) Universal Adult suffrage The earlier system allowed only property owning and tax paying members to vote ~ slaves and Women were not allowed to vote — thus it remained a privilege of few — with democratic and constitutional order being established in many countries, the political right of every citizen to vote without any qualification whatsoever, came to be known as the Universal Adult suffrage — however, citizenship and specific age limit for voting continues to be the minimal restrictions on the right to vote — Article 326 ensures this, yet the citizens should stand clear of other legal and constitutional restrictions like non-residence, unsoundness of mind, crime or corrupt or illegal practice. (c) Chief Electoral Officer Section 13A of the Representation of People Act, 1950, provides for the Chief Electoral Officer for each State — This is the first and the foremost link between the ECI and the States in the conduct of elections ~ The Election Commission may in consultation with the Government of the State may either nominate or designate an officer of the State as the CEO — The CEO is mandated to supervise the Preparation, revision, and correction of electoral rolls or conduct of elections subject to the supervision and control of the ECI — He/she has District Election Officers, electoral and Assistant electoral Officers for the preparation of rolls and Retuming Officers, Assistant Returning Officers, Polling Officers and other personnel in the conduct of election (d) Electronic Voting Machines and VVPAT In Subramanyam Swamy v. ECI, the Supreme Court played a very proactive role in making the use of technology in the electoral process to infuse public trust in the entire electoral process — the EVMs, although technologically sound, did not provide the public trust as citizens did not know whether the vote cast has been credited to the right candidate of not — the Voter Verifiable Paper Audit Trail (VVPAT) emerged as the saluting to boost the public trust in elections- this is a unit connected to the EVMs that would display the symbol as well as the name of the candidate on a printed paper that could be verified by the voter within a span of 7 seconds ~ after 7 seconds, the printed paper would get deposited in a box- later in the event of any dispute, the electronic voting result can be verified with the physical ballots cast ~ so far it has provided 100% accuracy — recent trends in the political parties criticising the EVMs — comments on this would be given due credit,