NAME S.

MANEESH REDDY

ROLL NO. 1582

ROLL NO. (IN WORDS) FIFTEEN HUNDRED AND EIGHTY-TWO

SEMESTER IX

SUBJECT ELECTION LAW

NO. OF PAGES 18 (EXCLUDING THIS PAGE)

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QUESTIONS ANSWERED ARE 1,2,3,5, AND 6

Answer 1

According to Section 123 (3) of the People’s Representation Act of 1951, no candidate or his
agent can appeal for votes on the grounds of religion, race, caste, community or language. Any
violation of this would be deemed a corrupt practice under the law leading to disqualification
of the candidate.

The concerns under Section 123(3) of the Act have increased with the increase in the reach
through the print and electronic media none of which were seriously contemplated till about
fifteen years ago.

The appeal by a candidate or his agent or by any other person with the consent of a candidate
or his election agent to vote or refrain from voting for any person on the ground of his religion,
race, caste, community or language or the use of, or appeal to religious symbols or the use of,
or appeal to, national symbols, such as the national flag or the national emblem, for the
furtherance of the prospects of the election of that candidate or for prejudicially affecting the
election of any candidate.

JUDICIAL INTERPRETATION OF 123(3)

In Ziauddin v Brijmohan, it was alleged that the appellant had made speeches in the course
of his election campaign calculated to induce a belief in the voters that they will be objects of
divine displeasure or spiritual censure if they voted for another candidate Chagla. Further the
appellant had asked the voters to vote for him and not the other candidate on the ground that
he alone stood for all that was Muslim whereas opponent represented all that was against
Muslim religion

The Supreme Court observed that Section 123, sub s. (2), (3) and (3A) were enacted so as to
eliminate, from the electoral process, appeals to those divisive factors which arouse irrational
passions that run counter to the basic tenets of our Constitution, and, of any civilised political
and social order.

In Dr. Ramesh Prabhoo v. Prabhakar Kunte, the issue revolved around the three public
speeches of Bal Thackeray in the election campaign of Dr. Yashwant Prabhoo which were
appeals to the voters to vote for Dr. Prabhoo because of his religion, i.e., he being a Hindu, and

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the speeches also promoted or tended to promote enmity and hatred between different classes
of the citizens of India on the ground of religion.

The High Court has held such speeches amounted to corrupt practices under Section 123(3)
and accordingly, the election of the returned candidate has been declared to be void on the
ground contained in Sec. 100 of the Act.

The line has to be drawn by the Courts, between what is permissible and what is prohibited,
after taking into account the facts and circumstances of each case interpreted in the context in
which the statements or acts complained of were made.

In Abhiram Singh v C.D. Commachen it was held that an election will be annulled if votes
are sought in the name of the religion of the candidate.

The majority view interpreted Section 123(3) of the Representation of the People Act to mean
that this provision was laid down with an intent to clearly proscribe appeals based on sectarian,
linguistic or caste considerations.

A purposive interpretation was given whereby “his” would include the religion of candidate,
his agents, voters as well as any other person who, with the candidate’s consent, brings up
religion in an appeal for the furtherance of the prospects of the election. Thus elections would
be annulled when such an appeal hinges on religion of voters or candidate’s election agents or
by anybody else with the consent of the candidate.

The Constitutional ethos forbids mixing of religions or religious considerations with the secular
functions of the State and that religion remains a matter personal to the individual with which
neither the State nor any other individual has anything to do.

WHEN THE SPEECH WOULD AMOUNT TO CORRUPT PRACTICE UNDER 123(3)

The words `Hinduism' or `Muslims’ are not necessarily to be understood and construed
narrowly, confined only to the strict religious practices unrelated to the culture and ethos of the
people of India, depicting the way of life of the Indian people. Unless the context of a speech
indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of
life of the Indian people and are not confined merely to describe persons practising the Hindu
religion as a faith.

It is clear that for soliciting votes for a candidate, the appeal prohibited is that which is made
on the ground of religion of the candidate for whom the votes are sought; and when the appeal

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is to refrain from voting for any candidate, the prohibition is against an appeal on the ground
of the religion of that other candidate. The first is a positive appeal and the second a negative
appeal.

It is the kind of use made of these words and the meaning sought to be conveyed in the speech
with has to be seen and unless such a construction leads to the conclusion that these words were
used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote
for a candidate because he is not a Hindu, the mere fact that these words are used in the speech
would not bring it within the prohibition of sub-section (3) or (3A) of Section 123

CONCLUSION

For maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section
123 of the Representation of the People Act, 1951 must be given a broad and purposive
interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an
elector by a candidate or his agent or by any other person with the consent of a candidate or his
election agent to vote or refrain from voting for the furtherance of the prospects of the election
of that candidate or for prejudicially affecting the election of any candidate on the ground of
the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii)
any other person making the appeal with the consent of the candidate or (iv) the elector.

Thus, an appeal in the name of religion, race, caste, community or language is impermissible
under the RPA, 1951 and would constitute a corrupt practice sufficient to annul the election in
which such an appeal was made regardless whether the appeal was in the name of the
candidate’s religion or the religion of the election agent or that of the opponent or that of the
voter’s.

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Answer 2

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.

The Model Code of Conduct remains in place during the elections in respect of political parties
and candidates which remains in force from the date the elections are announced by the
Commission till the completion of elections. The MCC proscribes any electoral offences,
malpractices and corrupt practices such as impersonation, bribing and inducement of voters,
threat and intimidation to the voters are prevented by all means. In case of violation, appropriate
measures are taken.

The salient features of the Model Code of Conduct lay down how political parties, contesting
candidates and party in power should conduct themselves during the process of elections i.e.
on their general conduct during electioneering, holding meetings and processions, poll day
activities and functioning of the party in power etc.

MCC RESTRICTING PARTY IN POWER

The Election Commission ensures its observance by political party in power, including ruling
parties at the Centre and in the States and contesting candidates in the discharge of its
constitutional duties for conducting the free, fair and peaceful elections to the Parliament and
the State Legislatures under Article 324 of the Constitution of India.

Model Code restricts announcement of new schemes/projects and also grant of new reliefs after
the announcement of elections. The Election Commission has directed those ministers and
other authorities shall not-

• announce any financial grants, in any form,

• make promises thereof,
• lay foundation stones etc. of projects or schemes of any kind;
• make any promise of construction of roads, provision of drinking water facilities etc.,
• No political speech or speech enumerating or referring to the achievements of the
Government or party in power should be made.

which have the effect of influencing voters in favour of the party in power.

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MCC comes into operation from the day ECI announces the program for election. It has been
developed for maintaining a healthy and peaceful atmosphere conducive to the conduct of
smooth elections.

Model Code of Conduct is a set of guidelines issued by the Election Commission to regulate
political parties and candidates prior to elections, to ensure free and fair polls. This is in keeping
with Article 324 of the Constitution, which gives Election Commission the power to supervise
elections to the Parliament and state legislatures.

The idea behind MCC is that political parties and their candidates should have a respectable
competition with their opponents, have constructive criticism against the opponent's policies
and not resort to mudslinging and personal attacks. The MCC is intended to help the poll
campaign maintain high standards of public morality and provide a level playing field for all
parties and candidates.

Evolution of MCC

Model Code of Conduct was first introduced in Kerala ahead of the state Assembly election in
1960. It was a set of instructions to political parties regarding election meetings, speeches,
slogans, etc. In the 1962 general elections to the Lok Sabha, the MCC was circulated to
recognised parties, and state governments sought feedback from the parties.

However, it was only in 1974, just before the mid-term general elections, that the EC released
a formal Model Code of Conduct. This Code was also circulated during parliamentary elections
of 1977.

Till 12 September, 1979, the MCC was meant to only guide the conduct of political parties and
candidates. After September 1979, the EC was apprised of the misuse of official machinery by
parties in power. The EC was told that ruling parties monopolised public spaces, making it
difficult for others to hold meetings.

At the request of several political parties, just before the 1979 Lok Sabha election, the EC
released a revised Model Code of Conduct with seven parts, with one part devoted to the party
in power and what it could and could not do once elections were announced.

There have been several revisions to the MCC, the latest one being in 2014 when the
Commission introduced Part VIII on manifestos, pursuant to the directions of the Supreme
Court.

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Key provisions of Model Code of Conduct

The MCC contains eight provisions dealing with general conduct, meetings, processions,
polling day, polling booths, observers, party in power, and election manifestos. There are total
eight provisions under the MCC:

1. General Conduct: Criticism of political parties must be limited to their policies and
programmes, past record and work. Activities such as; using caste and communal
feelings to secure votes; criticising candidates on the basis of unverified reports; bribing
or intimidation of voters; and organising demonstrations or picketing outside houses of
persons to protest against their opinions, are prohibited.

2. Meetings: Parties must inform the local police authorities of the venue and time of any
meeting in time to enable the police to make adequate security arrangements.

3. Processions: If two or more candidates plan processions along the same route,
organisers must establish contact in advance to ensure that the processions do not clash.
Carrying and burning effigies representing members of other political parties is not
allowed.

4. Polling day: All authorised party workers at polling booths should be given identity
badges. These should not contain the party name, symbol or name of the candidate.

5. Polling booths: Only voters, and those with a valid pass from the Election Commission,
will be allowed to enter polling booths.

6. Observers: The Election Commission will appoint observers to whom any candidates
may report problems regarding the conduct of the election.

7. Party in power: The MCC incorporated certain restrictions in 1979, regulating the
conduct of the party in power. Ministers must not combine official visits with election
work or use official machinery for the same. The party must avoid advertising at the
cost of the public exchequer or using official mass media for publicity on achievements
to improve chances of victory in the elections. Ministers and other authorities must not
announce any financial grants, or promise any construction of roads, provision of
drinking water, etc. Other parties must be allowed to use public spaces and rest houses
and these must not be monopolised by the party in power.

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 8. Election manifestos: Added in 2013, these guidelines prohibit parties from making
promises that exert an undue influence on voters, and suggest that manifestos also
indicate the means to achieve promises.

However Political parties all across the country have been brazenly violating the MCC, we
have been witnessing such cases on a daily basis. Whether it is Prime Minister’s address to the
nation on Mission Shakti, or the release of his biopic just before the polls (although ECI has
put a stay on Modi Biopic), or his use of the word “Hindu” during his public rallies, or the
Rajasthan Governor’s remarks supporting return of PM Modi, or Uttar Pradesh’s Chief
Minister referring to the Indian Army as “Modi ji ki sena”, the list is getting longer by the day.

Thus, even though the MCC has been around for almost four decades, its observance is left to
parties and candidates. It is not a legally enforceable document, and the Commission usually
uses moral sanction to get political parties and candidates to fall in line.

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ANSWER 3

The Constitution of India, apart from enlisting certain qualifications for Members of Parliament
and Legislative Assembly, also enumerates certain disqualifications. One of these
disqualifications is holding an “office of profit”.

Disqualifying the holders of offices of profit is also an effort in this direction for protecting the
independence of the legislators. A person may not be able to discharge his functions as a
legislator and critique to the government if the government is in a position to influence him.

Even though there is no explicit definition of “office of profit”, it can be inferred from a reading
of Articles 102 and 191 that the disqualification arises when:

1. There is an office;
2. The office is one of profit; and
3. The office is under the Central or State government.

In Jaya Bachchan vs Union of India, Mrs. Jaya Bachchan was appointed as the Chairperson
of the Uttar Pradesh Film Development Council in 2004. A complaint was made that this
amounting to the holding of an `office of profit' on her part and thus, she was not entitled to
continue as a Member of the Rajya Sabha in view of Article 102(1)(a) of the Constitution.

Whether small sum of rupees two thousand a month as compensatory allowance along
with rent free accommodation and a car with driver received by Mr. Azhar Mahmood
amounted to Office of Profit?

Mere use of the word honorarium or compensatory cannot take the payment out of the purview
of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to
daily allowances in the nature of compensatory allowances, rent free accommodation and
chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of
pecuniary gain and hence constitute profit.

For deciding the question as to whether one is holding an office of profit or not, what is relevant
is whether the office is capable of yielding a profit or pecuniary gain and not whether the person
actually obtained a monetary gain. If the "Pecuniary gain" is "receivable" in connection with
the office then it becomes an office of profit, irrespective of whether such pecuniary gain is
actually received or not.

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Section 2 (a) defined Compensatory allowance as any sum of money payable to the holder of
an office by way of daily allowance, any conveyance allowance, house-rent allowance or
travelling allowance for the purpose of enabling the member to recoup any expenditure
incurred by the Member in performing the functions of that office”

In Ramakrishna Hegde v. State of Karnataka, the high court held to that the allowances given
to Hegde were included within the meaning of “compensatory allowance” given in s. 2a of the
Parliament (Prevention of Disqualification) Act and the court opined that “Merely because the
petitioner had some privileges as a State Guest or rank of a Cabinet Minister, it cannot be said
that he had pecuniary gain”.

However, in Jaya Bachchan v Union of India the Supreme court observed that for deciding
the question as to whether one is holding an office of profit or not, what is relevant is whether
the office is capable of yielding a profit or pecuniary gain and not whether the person actually
obtained a monetary gain.

If the "pecuniary gain" is "receivable" in connection with the office then it becomes an office
of profit, irrespective of whether such pecuniary gain is actually received or not.

If the office carries with it, or entitles the holder to, any pecuniary gain other than
reimbursement of out of pocket/actual expenses, then the office will be an office of profit for
the purpose of Article 102(1) (a).

However, since the post was capable of yielding profit to the petitioner, she held an office of
profit.

Two factors which emerged, in this case, were: a) the form of payment is not relevant as
monetary gain may be merely disguised as an honorarium; b) it is not relevant whether any
remuneration was actually received, it is only enough if such remuneration was receivable.

So the view expressed by the Karnataka High Court in Ramkrishna Hegde’s case does not
appear to be good in law in view of the recent pronouncement of the Supreme Court in Jaya
Bachchan where it was held that “payment of honorarium, in addition to daily allowances in
the nature of compensatory allowances, rent-free accommodation and chauffeur driven car at
State expense, are clearly in the nature of remuneration and a source of pecuniary gain and
hence constitute profit

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It can be understood from Jaya Bachchan’s case that it is not necessary for the person to receive
actual amount but the important factor is whether such office can receive amount and if the
answer is yes, then the such office would be considered office of profit and thus ground for
disqualification.

Thus, the allowances granted to Mr. Azhar Mahmood are similar in nature to those that were
granted to Jaya Bachchan and thus as per the observations of the Supreme Court such grants
would result in the office being an Office of Profit and Mr. Azhar Mahmood would be
liable to be disqualified for holding an Office of Profit.

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ANSWER 5

To ensure free and fair elections The Representation of the People Act, 1951 provides
qualifications and disqualifications for membership of Parliament and State Legislatures, and
through Section 8 of the Representation of the People Act, 1951 a bar of 6 years for contesting
elections, on any person who has been convicted for more than 2 years or fined under any
offence as specified in this section.

Despite the best intentions of the drafters of the Constitution and the Members of Parliament
at the onset of the Indian Republic, the fear of a nexus between crime and politics was widely
expressed from the first general election itself in 1952. The Vohra Committee report pointed
to the rapid growth of criminal networks that had in turn developed an elaborate system of
contact with bureaucrats, politicians and media persons. 8 A Consultation Paper published by
the NCRWC in 2002 went further to say that criminals were now seeking direct access to power
by becoming legislators and ministers themselves.

Disqualification under RPA

Parliament through the RPA has prescribed further qualifications and disqualifications for
membership to Parliament or to a Legislative Assembly.

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.

However, despite the provisions under RPA among others there still exists and continues to
increase/spread of criminalisation in politics that the purpose behind S. 8 of the RPA is not
being served. The consequences of such criminalisation and the possible reform measures that
may be considered shall be discussed in the following chapters.

In the 244th Law Commission Report it was observed that disqualification upon conviction has
proved to be incapable of curbing the growing criminalisation of politics, owing to long delays
in trials and rare convictions. Therefore, it was suggested that the law needs to evolve to pose
an effective deterrence, and to prevent subversion of the process of justice.
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Measures taken by Court in Decriminalisation of Politics

In Public Interest Foundation. v. Union of India, it was prayed before the Supreme Court
for guidelines or framework to be laid down by the Court to deal with the menace of
criminalisation of politics and debar those charged with serious offences from contesting
elections.

By a plain reading of Section 8(3), it is clearly evident that it talks about “a person convicted
of any offence” which implies that any one of the offences should have a conviction of more
than two years for attracting disqualification under Section 8(3). However, in K. Prabhakaran
v. P. Jayarajan the Supreme Court held that in Section 8(3) of the RPA, gravity of offence
has not to be seen but the duration of the imprisonment is important for disqualification.

In Ramesh Dalal vs. Union of India 2005, the Supreme Court held that a sitting Member of
Parliament (MP) or Member of State Legislature (MLA) shall also be subject to disqualification
from contesting elections if he is convicted and sentenced to not less than 2 years of
imprisonment by a court of law. In 1997, the Supreme Court directed the High Courts to not
suspend the conviction of a person if he is convicted under The Prevention of Corruption Act
1988.

In Lily Thomas v. Union of India, 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.

In Manoj Narula v. Union of India, the SC was dealing with the issue of criminal charges
and its effect on qualification/disqualification for the post of Union Ministers. It was argued
that it is the constitutional obligation on the part of the Prime Minister not to recommend any
person to be appointed as a Minister of the Council of Ministers or to the posts of Judges,
Governors or Presidents who has criminal antecedents or at least who is facing a criminal
charge in respect of heinous or serious offences. In this regard, the Court referred to the Law
Commission Report where it found that disqualification upon conviction has proved to be
incapable of curbing the growing criminalisation of politics, owing to long delays in trials and

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rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent
subversion of the process of justice.

In the opinion of the Law Commission, the filing of the police report under Section 173 of the
Code of Criminal Procedure is not an appropriate stage to introduce electoral disqualifications
owing to the lack of sufficient application of judicial mind at this stage. The stage of framing
of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of
charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has
significant potential in curbing the spread of criminalisation of politics.

Court then direct that in relation to sitting MPs and MLAs who have charges framed against
them for the offences which are specified in Section 8(1), 8(2) and 8(3) of the RP Act, the trial
shall be concluded as speedily and expeditiously as may be possible and in no case later than
one year from the date of the framing of charge(s).

Failure in Curbing Criminals in Politics

The reason for the failure in curbing criminalization can also be attributed to the following
reasons:-

• convictions among sitting MPs and MLAs is extremely low: as usually such MPs and
MLAs have dominant and persuasive influence which often takes away from an
impartial scrutiny of their charges,
• trials of such persons are subject to long delays as such MPs and MLAs usually have
an army of expert lawyers who have all the arms to exploit the procedural and legal
loopholes in order to delay a case even if the case seems to be against such accused,
other than these usual delays of the Court are also contributing reasons to such delays;
• law does not provide adequate deterrence to political parties granting tickets to persons
of criminal backgrounds. In this regard it must also be noted that the social educational
position of India is not great and thus there is an even greater social requirement to
sensitise and make people aware of the implications of a criminal person being a public
post holder.
Further, there is large-scale violation of the laws on candidate affidavits owing to lack of
sufficient legal consequences. As a result, the following changes should be made to the RPA:
i. Introduce enhanced sentence of a minimum of two years Under Section 125A of the RPA
Act on offence of filing false affidavits

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ii. Include conviction Under Section 125A as a ground of disqualification Under Section 8(1)
of the RPA.
iii. Include the offence of filing false affidavit as a corrupt practice Under Section 123 of the
RPA.
Recommendations

The Association for Democratic Reforms (ADR) has recommended that any person against
whom a charge has been framed by a court of law, in a criminal case for which the punishment
is imprisonment of two years or more should not be allowed to contest elections. In particular,
any candidate against whom charges have been framed for serious offences like murder, rape,
kidnapping etc. should be banned from contesting elections.

Justice B.P. Jeevan Reddy has recommended that the field of disqualification of candidates has
to be enlarged by providing that candidate against whom charges have been framed for offences
(under the IPC or any other enactment) punishable with death, imprisonment for life or for ten
years (with or without fine) shall stand disqualified, provided such charges are framed six
months prior to the date of scrutiny of the nomination papers. He also suggested the
introduction of a List System of elections. The List system would involve publication by the
Election Commission of a constituency-wise list of candidates having declared criminal
background.

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ANSWER 6

Scrutiny of nominations is a quasi-judicial function of the RO but that does not give him the
status of a Court. The enquiry into the question of validity or otherwise of a nomination paper
is a summary enquiry. All nomination papers should be scrutinized one by one and decision
accepting or rejecting should be recorded on each nomination paper separately.

When can Nomination Paper be rejected?

Section 100 of the RPA relates to Grounds for declaring election to be void and provides that
that the result of the election, in so far as it concerns a returned candidate, has been materially
affected by the Improper rejection of the Nomination paper may lead to declaration of election
void as per Sec. 100(1)(c).

Some of the grounds for rejection of nomination papers are:

• If you are not qualified to be an individual from the House of the People or of State
Legislative Assembly
• Failure to comply with any of the provisions of Section 52 and Section 53; or
• Whether the conditions are satisfied according to Section 33 or 34 of the Representation
of the People Act, 1951;
• Certified extract of entry in the electoral roll not submitted, if candidate is contesting
election from a different constituency;
• If even after notice by RO to file Affidavit or fresh affidavit with all columns filled
in,the same is not submitted by the candidate.

Procedure for rejection of nomination papers

The returning officer will hold the examination on the date designated for this sake under
provision (b) of Section 49 The returning officer will underwrite on every nomination paper
his choice tolerating or dismissing the equivalent and, if the nomination paper is dismissed,
will record as a hard copy a concise explanation of his purposes behind such rejection.

Following all the nomination papers have been investigated and choices accepting or
dismissing the equivalent have been recorded, the returning officer will set up a rundown of
legitimately named candidates and append it on his notification board.

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The remedy available in event of Improper Rejection of Nomination

If an election petitioner wants to put forth a plea that a nomination was improperly rejected, as
a ground for declaring an election to be void, it is necessary to set out the averments necessary
for making out the said ground. The reason given by the Returning Officer for rejection and
the facts necessary to show that the rejection was improper, should be set out.

Once the nomination paper of a candidate is rejected, the Act provides for only one remedy,
that remedy being by an election petition to be presented after the election is over, and there is
no remedy provided at any intermediate stage.

Section 100 of the RPA relates to Grounds for declaring election to be void and provides that
that the result of the election, in so far as it concerns a returned candidate, has been materially
affected by the improper acceptance or any nomination then such election may be declared
void as per Section 100(1)(d). Similarly, Improper rejection of the Nomination paper may lead
to declaration of election void as per Sec. 100(1)(c).

As per Sec. 36 (6), the returning officer shall endorse on each nomination paper his decision
accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing
a brief statement of his reasons for such rejection.

The condition precedent to the declaration of an election to be void is that the Tribunal should
be satisfied not only that there has been an improper rejection of a nomination paper but Also
that improper rejection has materially affected the result of the election

When there is an improper rejection of the nomination, then a writ petition is maintainable.
Otherwise, the person aggrieved by the improper rejection of his nomination would be unable
to participate in the poll and thereby prejudiced.

In Rangilal Choudhary v. Dahu Sao the Court agreed with the contention of the respondent
that his nomination paper was improperly rejected and therefore allowed the appeal and set
aside the election of the appellant. It was held that non-disclosure of the constituency of
nomination materially affects an application for which rejection is valid not improper.
Therefore, from the above it can be understood that the requirement is to have a substantial
error in the nomination form for it to be rejected properly. In case such is not the case then the
rejection would be an improper one and the election may be held to be void.

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In Vashist Narain Sharma vs Dev Chandra, the Supreme Court observed that the
determination of the result should not be judged by the mere increase or decrease in the total
number of votes secured by the returned candidate but by proof of the fact that the wasted votes
would have been distributed in such a manner between the contesting candidates as would have
brought about the defeat of the returned candidate.

Thus, as per Section 100 of the Representation of People Act if the Tribunal was of the opinion,
as it was in this case, that the result of the election had been materially affected by the improper
rejection of the nomination paper, "the Tribunal shall declare the election to be wholly void.

In Manda Jaganath vs. K.S. Rathnam it was laid down that even curable irregularities in a
nomination paper can be addressed in a properly constituted election petition and cannot be a
ground for setting aside the order of the Returning Officer.

In N.P. Ponnuswami it was observed that a writ petition could be barred if it seeks to call in
question a step in election, but if the approach to the Court is to facilitate free and fair
completion of election, such approach would not be barred.in Vinod Pandurang Bharsakade
v. Returning Officer, Akot Bombay HC was of the opinion that any dispute regarding elections
can only be raised after elections by raising election dispute.

In Election Commission of India vs. Ashok Kumar it was observed that the provisions of the
Constitution and the Representation of the People Act, 1951 when read together do not totally
exclude the right of a citizen to approach the Court so as to have the wrong done remedied.

Article 243-O(b) is a bar for entertaining a writ petition under Art. 226 against an order
passed by the Returning Officer rejecting nomination paper.

In Vashist Narain Sharma vs Dev Chandra the Court held that Improper rejection of
Nomination Paper would make the election void once proved and Improper acceptance of
Nomination Paper must be proved that the acceptance has ‘materially affected’ the election.
These words seems to indicate that the result should not be judged by the mere increase or
decrease in the total number of votes secured by the returned candidate but by proof of the fact
that the wasted votes would have been distributed in such a manner between the contesting
candidates as would have brought about the defeat of the returned candidate.

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Section 100(l)(c) and Section 100(l)(d)(i), provide a remedy to persons who are aggrieved by
an order improperly rejecting or improperly accepting any nomination. The rejection of a
nomination paper of a candidate who is qualified to be chosen for election and who does not
suffer from any of the disqualifications mentioned in Section 36(2) would be improper within
Section 100(l)(c),

Thus, when there is an improper rejection of the nomination, then a writ petition is
maintainable. Otherwise, the person aggrieved by the improper rejection of his nomination
would be unable to participate in the poll and thereby prejudiced.

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