Conduct of Elections in India- Indian Polity UPSC Notes

Conduct of Election in India

The Representation of People Act of 1951 provides for the conduct of elections in India. It defines the roles and responsibilities of government officials and the procedures for the conduct of elections, such as on the matters of nomination, campaigning, polling, counting, declaration of results and offences.

Administrative Machinery for the Conduct of Elections

Article 324 of the Constitution vests the power of superintendence, direction and control of elections to the Lok Sabha and state legislative assemblies to the Election Commission.

Besides the Constitution, the Election Commission exercises powers and functions under the RPA 1950 and the RPA 1951.

Neither the Constitution nor the RPA laws provide any permanent cadre to the Election Commission. However, they are allowed to make use of the state machinery to conduct the elections. Thus, in consultation with the state government, it nominates the following officers for the conduct of elections:

1. Chief Electoral Officers (CEO)

The Election Commission nominates an officer of the state governments (or a UT) as a Chief Election Officer in consultation with the concerned state government.

• The CEO supervises the conduct of all elections in the state under the supervision, direction and control of the Election Commission.
• The Election Commission designates and nominates the officers of the state governments and union territories as CEO in consultation with the concerned state government and union territory.

2. District Election Officer (DEO) & Observers

The district election officer coordinates and supervises all work in the district or in the area within his/her jurisdiction under the superintendence, direction and control of the Chief Electoral Officer.

They are responsible for providing a sufficient number of polling stations in a constituency. Generally, District Magistrates are nominated as the DEOs.

Observers

The observers are government officers who are nominated by the Election Commission to watch the conduct of elections in a constituency or a group of constituencies and to carry out such other functions as may be entrusted to him/her by the Election Commission.

3. Returning Officer (RO) and Assistant Returning Officers (ARO)

• They are responsible for the conduct of elections in an assembly or parliamentary constituency. In that capacity, S/he performs the following functions:
  1. Supervises election in each constituency
  2. Accepts Nomination Papers of Candidates
  3. Publishes list of candidates in the constituency
  4. Certifies election agents & counting agents
  5. Counting of votes & declaration of result
• The Commission may appoint one or more ARO/s to assist the returning officers.

4. Presiding Officer

1. The District Election Officer (DEO) shall appoint a presiding officer for every polling station and such polling officer/s as s/he thinks necessary.
2. It is the duty of the presiding officer to maintain order at the polling station and ensure that the elections are conducted fairly.
3. In case of absence of the polling officer, the presiding officer may appoint a person who is present at the polling station as polling officer and inform the district election officer accordingly.

The Elections Process

The entire election process takes a couple of months to be completed. and here are following elections process:

1. Election Notification

Though the Election Commission announces the holding of the election in advance, the election actually starts when the Commission issues a formal declaration inviting a constituency to choose its representative. This is referred to as ‘Notification’.

2. Dates for the nomination:

As soon as the notification of elections is issued, the Election Commission notifies the following:

1. The last date for making nominations is the 7^th day after the publication of notification;
2. The day of scrutiny of nominations which is the day immediately after the last day of making nominations.
3. The last day for withdrawal of candidature which is the 2^nd day after the day of scrutiny of nominations.
4. The gap between the date/s on which the polls will be held and the last day of withdrawal of candidature cannot be less than 14 days (before 1996, it was 20 days).
5. The date before which the election will be completed.

3. Nomination of candidates

Any person can be nominated as a candidate for elections if s/he is qualified under the provisions of the Constitution and the Representation of the People Act, 1951.

• Nomination can be filed either in person or by his/her proposer between 11 AM and 3 PM to the returning officer. An Independent candidate (or candidate from an unrecognised part) requires 10 proposers from the constituency.
• A person cannot contest from more than 2 seats, both in elections and by-elections, to Lok Sabha, Rajya Sabha, state legislative assemblies and legislative councils.

• A person can be nominated by more than one nomination paper; however, the number of nomination papers per constituency cannot exceed 4.

• Information to be furnished (section 33A): Beside other information, the candidate also has to furnish the following information through an affidavit while filing the nomination papers:
  1. Whether the candidate is accused of any offence with imprisonment for two years or more, in which a charge has been framed by the Court.
  2. Convicted for any criminal offence

No candidate is liable to furnish any such information which is not required to be disclosed or furnished under this act.

• Deposit: ₹25,000 for election to Parliament (₹12,500 for SC/ST); ₹10,000 for election to state legislature (₹5000 for SC/ST); in all cases, candidates who fail to secure at least one-sixth (16.7%) of the valid votes in their constituencies will have their deposit forfeited.
• Scrutiny of Nominations: On a fixed date, the Returning Officer permits and facilitates the candidates, their election agents, and one proposer to examine the nomination papers of all the candidates. The Returning Officer then personally examines the nomination papers and decides on any objections raised, if any.

• Withdrawal of Candidature: Any candidate can withdraw their candidacy by submitting a written notice to the returning officer before 3 o’clock in the afternoon on the specified day, either in person or through their proposer or election agent.

Contestants restricted to two constituencies: This provision restricts the candidates from being nominated from more than 2 constituencies in a general election or bye-election to Lok Sabha and state assembly elections. Similar restrictions also apply to biennial elections and byelections to Rajya Sabha and Legislative Councils.

4. Publication of list of contesting candidates

After the expiry of the date of withdrawal, the returning officer prepares and publishes the final list of validly nominated candidates. The list of candidates is classified in the following manner:

1. Candidates of recognised political parties;
2. Candidates of registered political parties (other than candidates of recognised parties);
3. Other candidates.

The names of each category are mentioned in alphabetical order.

5. Polling Process

1. Fixing times for poll: The Election Commission fixes the hours during which polling will take place.
2. Procedures to prevent personation of actors
   • Marking with indelible ink on the thumb.
   • Production of ID card before polling officer of the polling station.
3. Right to vote: Every person who is, for the time being, enrolled in the electoral roll of any constituency will be entitled to vote in that constituency (Except as expressly provided by this act or if s/he is in prison).

6. Counting of Votes

At every election, votes are counted by or under the supervision and direction of the returning officer (RO), and each contesting candidate, his election agent and his 5 counting agents shall have a right to be present at the time of counting.

In situations of equality of votes: After the counting is completed, if equality of votes is found to exist between the top two candidates, then the returning officer decides the winner by drawing a lot.

Candidate’s agents and their rights

1. Election Agent: A candidate can appoint any person other than himself/herself as his/her election agent by giving notice to the concerned returning officer.
2. Polling agents: A candidate or his election agent is empowered to appoint a number of agents (as prescribed under this act) as polling agents for each polling station.
3. Counting Agents: A candidate or his election agent can appoint one or more persons as counting agents to be present at the place of the counting. 

Disqualification for Being an Election Agent

Any person who has been disqualified under the Constitution or this act for being a member of either the House of the Parliament or state legislature or disqualified for voting at elections will also be disqualified for being an election agent as long as the disqualification continues.

Death of a Candidate of a Recognised Party Before Polling

If a candidate of a recognised party dies before the polling and his/her nomination has been found valid, the returning officer adjourns the poll to a date to be notified later and reports the fact to the Election Commission. The Election Commission then calls upon the concerned recognised party to nominate another candidate within 7 days of receiving notice.

Declaration of Assets and liabilities:

All members of Parliament, within 90 days of taking oath or affirmation, must furnish the following documents:

1. The movable and immovable property of which s/he, his/her spouse, and his/her dependent children are jointly or separately owners or beneficiaries;
2. His/her liabilities to any public financial institution, central or state government, Chairperson of the Rajya Sabha or the Speaker of the Lok Sabha.

Election Expenses

1. Every candidate (or through an election agent) shall keep a separate and correct account of all expenditures in connection with the election incurred by him/her or by his election agent between nomination and the declaration of the result.
2. In 2022, the Election Commission has enhanced the expense for parliamentary constituencies to 95 lakhs (earlier 70 lakhs) and for assembly constituencies to 40 lakhs (earlier 28 lakhs).
3. The expenditure incurred on travel expenses of “star campaigners” are not counted in the account of a candidate of that political party. For recognised parties, the number of such leaders cannot exceed 40, and for unrecognised parties, such numbers cannot exceed 20. 

Multiple Elections

• Vacation of seats when elected to the both Houses of the Parliament:
  1. If a person is elected to both Houses of Parliament and has not taken a seat in either House, s/he may inform the Election Commission (within 10 days of an election) as to which House s/he wants to serve. His/her seat in the other House which s/he does not wish to serve falls vacant.
  2. In case he fails to intimate within the aforementioned period, his/her seat in the Rajya Sabha falls vacant. 
• Vacation of seats by individuals currently serving as members of one House upon their election to another House of Parliament:
  1. If a person who is already a member of the Lok Sabha and is elected to the Rajya Sabha, his/her seat in the Lok Sabha falls vacant.
  2. If a person who is already a member of the Rajya Sabha is elected to the Lok Sabha, his/her seat in the Rajya Sabha falls vacant.
• Election to more than one seat in either the House of Parliament or in the House or either House of the State Legislature:

If a person is elected to more than one seat in either House of Parliament or in the House or either House of the State legislature, then, unless within the prescribed time s/he resigns all but one of the seats, all the seats shall become vacant.

Dispute regarding elections

1. Only the High Court has the original jurisdiction to try an election petition;
2. Appeal against order of the High Court: An appeal against the order of the High Court lies to the Supreme Court.
3. Basis for declaring election to be void: Under section 100 of the Representation of People Act, 1951, a candidate’s election may be deemed invalid if the High Court is of the opinion that:
   • On the date of his/her election, an elected candidate was not qualified or was disqualified to be chosen to fill the seat.
   • If the returned candidate or his election agent, or any other individual acting with the approval of an elected candidate or his election agent, has engaged in any corrupt practice (as defined by section 123).
   • By improper acceptance of any nomination.
   • By any improper reception, refusal or rejection of any vote or by reception of an illegitimate vote
   • By any non-compliance with the provisions of the Constitution or Representation of the People Act or any rules or orders made under this act.
4. Grounds for which another candidate other than the returned candidate (elected) may be declared elected: After declaring the election of the elected candidate void, the High Court can declare the petitioner or any other such candidate as elected if it is of the opinion:
   • The petitioner or such other candidate received the majority of the votes;
   • If the returned candidate had not obtained votes by corrupt means, the petitioner or other candidate would have gotten the majority of the votes.

Electoral Offenses

1. Promoting enmity between groups in the run-up to the elections on the grounds of religion, caste, race, community or language.
2. Filing false information, failing to furnish information required under section 33 or concealing information in the nomination papers.
3. Holding public meetings during a period of 48 hours, ending with an hour fixed for the conclusion of the poll.
4. Publication and dissemination of exit polls during such period as may be notified by the EC.
5. Disturbances at election meetings.
6. Printing pamphlets and posters without the names of the publisher and printer.
7. Non-maintenance of secrecy of voting.
8. Government servants at the elections, such as the Returning officer and district election officer, working to further the electoral prospects of a particular candidate.
9. Canvassing within 100 metres of the polling station.
10. Misconduct at polling station, such as disobeying the presiding officer.
11. Going armed to or near a polling station.
12. Booth capturing
13. Not granting paid holidays to employees on the day of polls.
14. Serving or distributing liquor on polling day or 48 hours preceding it.

Bye-Elections

1. A bye-election or bye-poll is a special election that is conducted to fill a parliamentary or state legislative seat that has become vacant between general elections.
2. It is conducted to ensure the timely filling of vacant seats and restore the representation of the affected seats.
3. Section 151 of the Representation of the People Act mandates the Election Commission to fill the vacant seats of the Parliament and state legislature through bye-elections within 6 months of the occurrence of the vacancy except if the remaining term is not less than one year or the central government in consultation with the Election Commission, certifies that it is difficult to hold bye-elections, within the said period.