Constitutional Provisions Regarding Elections
Part XV of the Indian Constitution deals with Elections. However, it only provides the foundational framework for holding elections; for example, it provides for the Election Commission to hold elections, universal adult suffrage, etc.; the elaborate provisions are made by the Parliament and, in some cases, state legislatures too, as provided under Article 327.
- Article 324: It provides for the Election Commission of India and vests in it the superintendence, direction and control of elections.
- Article 325: It provides for a general electoral roll for every constituency for the purpose of the elections to the Parliament or the state legislature. It also bars the inclusion of any person in the electoral roll on grounds only of religion, caste, race, sex or any of them.
- Article 326: It provides that elections to the Lok Sabha and state legislative assemblies are to be held on the basis of adult suffrage.
All who are not less than 18 years of age are entitled to vote, provided s/he is not disqualified by a provision of the Constitution or law made by ‘appropriate legislature’ on the grounds of non-residence, unsound mind, criminal activity, or corrupt or unlawful practice.
- Article 327: It provides for the power of Parliament to make provisions with regard to the election of the Parliament and state legislatures, including preparation of electoral rolls, delimitation of constituencies and other necessary matters.
- Article 328: This article has a provision for the power of the state legislatures to make provisions with respect to elections to that legislature.
However, the state legislature is only empowered to legislate on such matters where the Parliament has not made any provisions. It means the state legislature has subsidiary powers with respect to such matters.
- Article 329: This article bars the interference of courts in electoral matters.
Constitutional Provisions Related to Composition of Legislature
Parliamentary Laws Related to the Elections in India
While Articles 81, 170, and 171 provide for the composition of the Parliament, state legislative assemblies, and state legislative councils, the actual allocation of seats has to be made as per the law.
Similarly, Articles 327 and 328 empower Parliament and the state legislature (limited powers) to make provisions with regard to the election to the Parliament and state legislatures, including preparation of electoral rolls, delimitation of constituencies, and other necessary matters.
Hence, the Parliament has enacted several legislations regarding the conduct of elections in India, including:
- Representation of the People Act, 1950: It defines the constituencies, electoral officers and the electors.
- Representation of the People Act, 1951: It deals with the day-to-day affairs of electoral politics, such as registration of parties, conduct of elections, qualification and disqualification of candidates, electoral disputes, etc.
- Delimitation Acts: These decide upon the boundaries of the respective constituencies.
Representation of People Act, 1950
The RPA 1950 was passed before the first election in the Independent India to define the allocation of seats and the electors.
- Allocation of seats: It was enacted to provide for the allocation of seats in the Lok Sabha and the legislative assemblies and legislative councils in the states.
- Delimitation of constituencies: It also empowers the President to delimit, after consultation with the EC, the constituencies for the purpose of elections to the Lok Sabha and state legislative assemblies and councils. We will read about the delimitation process in detail in the later part of the chapter.
- Election Officers: The Act provides for elections officers such as chief electoral officers, district election officers, electoral registration officers, etc.
- Chief Electoral officers and district election officers head the state and the district electoral machinery, respectively, and are generally IAS officers.
- The role of these officers is the registration of voters and correction of the names in the electoral rolls.
- CEO, DEO and electoral registration officers are all designated/nominated by the Election Commission of India in consultation with the State government whenever their need arises.
Note: Officers related to the actual conduct of elections are defined in RPA 1951.
- Registration of Voters: The Act provides for the registration of electors for Parliamentary constituencies and legislative assembly and council constituencies.
Conditions for registration as voters:
- Nobody shall be entitled to be enrolled in the electoral roll for more than one constituency.
- Nobody shall be entitled to be enrolled in the electoral roll for any constituency more than once.
- The person must be not less than 18 years of age on the qualifying date.
The person should be an “ordinarily resident” in a constituency.
Disqualification of registration of Voters: A person shall be disqualified from enrolling in an electoral roll if s/he;
(a) Is not a citizen of India;
(b) is of unsound mind and declared so by a competent court; (c) is disqualified from voting under any law concerning corrupt practices and other offences in connection with elections.
- The Acts bars the jurisdiction of civil courts regarding the registration of a person in an electoral roll.
Election Laws (Amendment) Act, 2021:
It amends the Representation of People Act 1950 and 1951 to introduce certain electoral reforms.
- Linking electoral roll data with Aadhar on a voluntary basis.
- Now, there will be 4 qualifying dates for enrolment in an electoral roll instead of one. Besides 1 January, new qualifying dates are 1 April, 1 July and 1 October.
Representation of the People Act, 1951
The RPA 1951 deals with the actual conduct of elections to the Parliament and state legislature, and membership of these Houses was made under this act. The act contains the following provisions regarding electoral matters:
Qualifications for membership of Parliament and State Legislature:
- For Rajya Sabha: The person must be an elector in a parliamentary constituency in India.
- For Lok Sabha:
- The person must be an elector in a parliamentary constituency.
- In the case of seats reserved for SCs and STs, the person must be a member of the SC and ST community, respectively, in any state, besides being an elector in any parliamentary constituency in India. [Special provisions in case of Assam, Lakshadweep and Sikkim].
- For Legislative Assembly:
- The person must be an elector in any assembly constituency of that state.
- In the case of seats reserved for SCs and STs, the person must be a member of the SC and ST community, respectively, besides being an elector in any assembly constituency of that state.
- For membership of a Legislative Council:
- The person must be an elector in any assembly constituency in the state.
- To be qualified for nomination by the Governors, the person must be an ordinary resident of the state.
Disqualifications for membership of Parliament and State Legislature
The act provides for the disqualification of members of Parliament and state legislature on various grounds mentioned under sections 8, 8a, 9, 9a and 10.
Disqualification undergrounds of criminal offences
There are three provisions for disqualification under section 8.
- Severe Offences and offences of a communal nature (section 8(1)): If someone is Only fined for committing a severe criminal offence or is imprisoned, they are disqualified from the date of conviction and will continue to be disqualified for a further period of six years since his/her release.
The offences mentioned in this sub-section are:
- Representation of People Act, 1951: Promoting hostility between classes during the election period, taking ballot papers from polling stations, capturing booths, and unlawfully defacing or destructing any nomination paper.
- Offences in Indian Penal Code: Promoting discord between different sections on the grounds of religion, race, place of birth, residence, language, etc. (Section 153A), Offences of Rape (Section 376), Cruelty towards a woman by the husband or relative of a husband (498A), etc.
- Offences related to civil rights: Protection of Civil Rights Act, 1955 (untouchability), Commission of Sati (Prevention) Act, 1987
- Offences related to law and order and terrorism: Unlawful Activities (Prevention) Act (1967), Terrorist and Disruptive Activities (Prevention) Act (1987).
- Offences related to religious places: Religious Institutions (Prevention of Misuse) Act, 1988, Places of Worship (Special Provisions) Act 1991
- Other offences: Importing or exporting prohibited goods under the Foreign Exchange (Regulation) Act (1973), Narcotic Drugs and Psychotropic Substances Act (NDPS) (1985), Prevention of Corruption Act (PCA) (1988), Prevention of Insults to National Honour Act (1971) and Customs Act.
Less Severe Offences (Section 8(2)): Conviction under these offences leads to disqualification if sentenced to imprisonment for six months or more. Disqualification is effective from the date of such conviction and continues for an additional six years since his/her release.
The offences under this sub-section are:
- Dowry Prohibition Act
- Any law that prohibits stockpiling or profiteering;
- Any law pertaining to the adulteration of food or
Note: In these offences, if the sentence is lower than six months of imprisonment, there is no disqualification.
- Other Offences (Section 8(3)): For any other criminal offence, if the sentence to imprisonment is for 2 or more years, it leads to disqualification from the date of conviction, and the disqualification continues further for 6 years after release.
Lily Thomas Case Vs Union of India Case (2013)
Disqualification on the grounds of Corrupt practices (Section 8A)
A candidate can be disqualified from contesting elections if s/he is found guilty of “corrupt practices” (i.e. electoral malpractices) as defined in section 123 of this act. In such a case, an election petition is filed in the High Court, which determines if a person is guilty of corrupt electoral practices.
Once the High Court passes an order, the President decides, within three months, regarding the period of disqualification for the person found guilty. Such a period of disqualification cannot be of more than 6 years.
Section 123 defines the following electoral malpractices as “corrupt practices”:
- Undue influence means any direct or indirect intervention or attempt to intervene by the candidate or his/her agent or any other person.
- Appeal to vote or not to vote on the grounds of caste, religion, race, community or language or the use of, or appeal to religious symbols, national symbols, such as the national flag or the national emblem or propagation or glorification of sati, etc.
- Promoting enmity between classes by aggravating mutual hatred or causing conflict between different castes and communities, etc.
- Providing illegal conveyance to voters to influence the voters in favour of a candidate.
- Incurring or authorising electoral expenses beyond what is mentioned in section 77.
- Aiding, abetting or taking help from a government servant to further own electoral prospects.
- Booth capturing by candidate or agent or any other person.
Other Modes of Disqualification
- Disqualification for dismissal for corruption or disloyalty (Section 9): A person who has held a position under the Central or State Government has been dismissed for corruption or for disloyalty towards the state shall be disqualified for a period of 5 years from the date of such dismissal.
- Disqualification for government contracts (Section 9A): A candidate is disqualified for entering into a contract with the “appropriate government” for the supply of goods or services or execution of any work undertaken by that government. The disqualification persists till such a contract persists.
Note: appropriate government for the purpose of this act means central government in case of disqualification as a Member of Parliament and state government in case of disqualification as a member of state legislature.
- Disqualification for holding government offices (Section 10): A person is disqualified if and for as long as s/he holds a position of managing agent, manager, or secretary in any corporation or firm (except cooperative societies) in which the appropriate government owns at least 25% of the shares.
- Disqualification for failure to lodge account of election expenses (Section 10A): A candidate can be disqualified for 3 years if they fail to furnish an account of electoral expenses in the time or manner specified under this act.
Power of the Election Commission to reduce disqualification
Section 11 of the RPA 1951 allows the Election Commission to remove any disqualification under the above-mentioned provisions or reduce the period of any such disqualification. Only one exception of Electoral “corrupt Practices” under Section 8A is provided by the act.
Disqualification from Voting [Section 11A]
A person stands disqualified from voting in any election for a period of 6 years if s/he is convicted for:
- Bribery or undue influence in elections
- Removal of ballot papers from polling station
- Promoting enmity between communities.
- A government officer on election duty, found guilty of electoral malpractice.
Further, any person disqualified from membership by a decision of the President for corrupt practices for any period shall also be disqualified for the same period for voting at any election.
Elimination or reduction of the period of disqualification: The Election Commission is empowered to remove any disqualification under this provision. (Section 11B).
Registration of Political Parties [Section 29]
- Registration for recognition:
Any association or body of citizens of India calling itself a political party can make an application to the Election Commission with a memorandum of its rules for registration.
- Political parties are entitled to accept contributions:
Every political party can accept any amount of voluntary contribution offered to it by any person or company other than a Government company subject to the provisions of the Companies Act 1956.
- However, no political party will be eligible to accept any funds from any “foreign source” defined under the Foreign Contribution (Regulation) Act, 1976.
- In 2017, the limit on corporate contributions to political parties (5% of the net profit of the past 3 financial years) was removed. Now, a company can contribute any amount of money to political parties. Further, the company is not obligated to report such donations in its profit-loss account.
Amendment in Foreign Contribution (Regulation) Act, 1976
- Declaration of donation received by the political parties (to EC):
The treasurer of a political party or any other person assigned by the political party on this behalf will make a report in respect of the following, namely:
- The contribution of ₹20000 received by such political party from any person in that financial year;
- The contribution in excess of ₹20000 received by such political parties from companies other than Government companies in that financial year.
Note 1: The above-mentioned provisions do not apply to the contributions received through an electoral bond.
Note 2: In 2017, the government amended the Income-tax Act, 1961, to prohibit cash donations of ₹2000 or more.
Electoral Bonds Scheme
Conduct of Elections and electoral officers:
The electoral officers are defined in both RPA 1950 and 1951. RPA 1950 mainly deals with the election machinery that is required for the registration of voters and upkeeping of the voter list.
RPA 1951 provides for the election machinery required for the actual conduct of elections, which is discussed in the article on the Conduct of Elections.
Important Amendments in the Representation of People Act, 1951
- Representation of the People (Amendment) Act, 1966
It abolished election tribunals, and the original jurisdiction in case of election petition (except the election of President and Vice-President) was granted to the High Court.
- Representation of the People (Amendment) Act, 2002
- It amended the Representation of the People Act 1951 to provide voters with a statutory right to information to enable them to make choices about a candidate.
- Now, candidates are required to furnish information about prior convictions of offences or if they are accused of any offences while filing nomination papers.
- The candidates are also required to declare their assets and liabilities.
- Representation of the People (Amendment) Act, 2010
The amending act confers voting rights to citizens of India who are not present at their place or ordinary residence in India (NRIs) owing to their employment, education or otherwise outside India (whether temporarily or not).
- The RPA (Amendment and Validation) Bill, 2013
Even if a person is not allowed to vote due to being in police custody or jail, s/he can file a nomination as a contestant in an election, as long as his/her name is in the electoral roll.
- The Representation of the People (Amendment) Bill, 2017
It seeks to enable overseas voters to proxy voting.
Article 82 and Article 170 of the Constitution provide for the readjustment of the seats and division of states into territorial constituencies for conducting direct elections based on the 2001 population census by an authority determined by the Parliament.
- Provision for Reservation: Besides territorial constituencies, the Constitution, under Articles 330 and 332, provides for reservation of seats for the scheduled caste and scheduled tribe and horizontal reservation to women in the Lok Sabha and Legislative Assemblies of the states.
- Freeze on readjustment of seats: To promote population control measures, the 42nd Constitutional Amendment Act 1976 froze the allocation of seats to the states and the division of states into constituencies at the 1971 level. This freeze was extended till 2026 by the 84th Constitutional Amendment Act, 2001. This has led to a distortion in the size of electoral constituencies due to uneven population growth and migration in different constituencies.
- Readjustment within the states is allowed: To rectify the issue of uneven population growth, the 87th Constitutional Amendment Act 2003 permitted the adjustment of seats within the states (with no change in the number of seats allotted to states) as per the 2001 census figures.
In line with these provisions, the Parliament passed delimitation acts in 1952, 1962, and 1972 and then, after a gap of 30 years, in 2002.
Delimitation Act, 2002
The Delimitation Act 2002 was passed to facilitate delimitation of the basis of the 2001 census.
- The proposed Commission was empowered to re-fix the number of seats reserved for SCs and STs based on the 2001 census, but without changing the total number of seats as per the 1971
- The act lays down the guidelines under which the Commission would carry out the delimitation of parliamentary and assembly constituencies.
The anti-defection law was passed through the 52nd Constitutional Amendment (1985) with the intent to curb “the menace of anti-defection”.
For this, the 10th schedule was added to the Constitution. It contains provisions related to disqualification on grounds of defection. We have covered the anti-defection law in detail in a separate chapter.
The Election Symbols (Reservation and Allotment) Order, 1968
This law contains provisions regarding the recognition of political parties as National and State parties and the allotment of election symbols. Some relevant details about the law are given here.
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- Constitutional Provisions Regarding Elections
- Parliamentary Laws Related to the Elections in India
- Representation of People Act, 1950
- Representation of the People Act, 1951
- Power of the Election Commission to reduce disqualification
- Disqualification from Voting [Section 11A]
- Registration of Political Parties [Section 29]
- Conduct of Elections and electoral officers:
- Important Amendments in the Representation of People Act, 1951
- Delimitation Acts
- Anti-defection Law
- The Election Symbols (Reservation and Allotment) Order, 1968