• Election Law

  • Elections are considered to be a process to achieve democracy and as an indispensable element in the establishment and continuation of any democracy. India is having a Constitution that guarantees a democratic republic to its citizens. This is based unmistakably on adult franchise, though the question remains about the nature of right to vote whether fundamental or statutory. This apart, the Constitution of India gives a scheme of democratic bodies/posts as well as an independent constitutional authority bestowed with the function of conduct of free and fair elections, namely the Election Commission. So it can be safely assumed that elections are firmly rooted in the constitutional premise and are an attribute of the promise of democracy. Elections could be viewed as a part of the political process that reaches the culminating point of establishment of democratic governance. The Election Commission Of India, which is the constitutional body is the apex in-charge of the affairs of the elections of any sort in Inda.      

    India has a federal government, with elected heads at the federal, state and local levels. At the national level, the  Prime Minister is elected by members of the Lok Sabha, the lower house of the parliament of India.The elections are conducted by the Election Commission of India. All members of the Lok Sabha, except two who can be nominated by the President of India, are directly elected through general elections which take place every five years, in normal circumstances, by universal adult suffrage and afirst-past-the-post system. Members of the Rajya Sabha, the upper house of the Indian parliament, are elected by elected members of the legislative assemblies of the states and the Electoral college for the Union Territories of India.

    Election law includes the allocation of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories, and matters connected therewith.

    The parliamentary constituency means a constituency provided by law for the purpose of elections to the House of the People. The Assembly constituency means a constituency provided by law for the purpose of elections to the Legislative Assembly of a State. The Council constituency means a constituency provided by law for the purpose of elections to the Legislative Council of a State.

    The election laws are governed by the Representation of the People Act, 1950 [The Act]. The Act provides or allocation of seats and delimitation of constituencies, electoral rolls for parliamentary constituencies and council constituencies, qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. 

    Democratic bodies for which elections are sought to be held are- Parliament, State Legislatures & Local Self- Governments. The democratic posts for which elections are held are- President, Vice- President, Speakers/ Chairperson.  

    Frame Work of Elections comprises of the following: right to democracy, electoral system, constitutional framework of Election Commission, democratic bodies, reservation in legislative bodies and defection.

    Prime Election disputes and issues are as follows: jurisdiction, registration of political parties, allotment of symbols, criminalisation of politics, right to information vis-à-vis election, election expenditure, electoral offences, exit polls and opinion polls. The jurisdiction of the Civil Court stands barred in the election matters.

    Election law has evolved to a great extent with continuous efforts and contributions being made by the following: legislative endeavours, judicial efforts, contribution of civil society, recommendations and efforts by Election Commission, report of the NCRWC, Law Commission report on reform of electoral laws, etc.

    Some notable Cases and Instances are as follows: (i) Former Prime Minister Man Mohan Singh had announced that the government had issued notifications for registration of overseas Indian electors under the Representation of People Act, 1950 to enable Indians resident abroad to participate in elections. (ii) Former state cabinet minister, Jagir Kaur was booked under Section 123 of the act for bribing voters after the police seized 183 cases of liquor from the vehicles. (iii) The Allahabad high court invalidated the election of Indira Gandhi who was the then Prime Minister, and found her guilty on the charge of misuse of government machinery for her election campaign. The court declared her election null and void and unseated her from her seat in the Lok Sabha representing Rae Baeilly. constituency. The court also banned her from contesting any election for an additional six years. This resulted in declaration of emergency and amendments were made in the constitution to validate her election. (iv) Umlesh Yadav is the first politician to be disqualified by the Election Commission Of India for a period of three years for suppression of her election expenses incurred when she was elected as an MLA to the Bisauli constituency in the Uttar Pradesh state assembly elections. (v) Two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts. 

    The decisions of the Commission can be challenged in the High Court and the Supreme Court of the India by appropriate petitions. By long standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls. Once the polls are completed and result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. The High Courts of the concerned states have been conferred with an exclusive jurisdiction to hear election petitions. Any party aggrieved by the decision of the High Court may file an appeal to the Hon'ble Supreme Court Of India. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court. 

    Hello Counsel undertakes Election Cases all over India. For convenience sake we have categorised issues pertaining to the Election Cases in the following categories.

    Vital Features Of Election Law  

    • Judicial Review 
    • Model Code of Conduct
    • Quasi Judicial Functions Of Election Commission
    • Format of the Election Plaint to be filed before- Competent Authority, Tribunal & Fora- Under Representation of the People Act, 1950.
    • Format of the Plaint to be filed before- The High Courts of various states.
    • Format of the Plaint to be filed before- The Supreme Court Of India. 
    • Judgments- Tribunal & Fora, High Court & the Hon'ble Supreme Court of India. 

    Court & Fora

    [In Hierarchical Order]

    • Supreme Court Of India.
    • High Courts;
    • Election Commission Of India  

    Legislations Governing Election Laws In India

    Judgments: Election Laws

    • Bhanu Kumar Vs. M. Sukhadia AIR 1971 SC 2025,
    • B. R. Kapur Vs. State of Tamil Nadu (2001) 7 SCC 231,
    • Common Cause, A Registered Society Vs. UOI (1996) 2 SCC 752,
    • Delhi Bar Association  (2002) 4 SCC 275
    • Gajanan Krishnaji Bapat Vs. D R Meg AIR 1995 SC 2284,
    • Hinds v Queen (1976) 1 All ER 533
    • Harry Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245;  
    • K. Venketachalam Vs. A Swamickan AIR 1999 SC 1723,
    • K. Prabhakaran Vs. Jayarajan Judgment dated 11/01/2005 in CIVIL APPEAL NO. 6691 OF 2002;
    • Lakshmi Charan Sen Vs. A K M Hassam Uzzaman AIR 1985 SC 1233,
    • L. Chandra Kumar Versus Union of India & Others, Appeal (Civil)  481 of 1980, DATE OF JUDGMENT- 18/03/1997, BENCH: A.M. Ahmadi CJI & M.M. Punchhi & K. Ramaswamy & S.P. Bharucha & S. Saghir Ahmad & K. Venkataswami & K.T. Thomas, JJ, Supreme Court Of India, Citation: (1997) 3 SCC 261= 1997 (2) SCR 1186- Issues involved- Firstly, whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?- Secondly, whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?- Thirdly, whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?. 
    • Northern Pipeline Construction Co. v Marathan Pipeline Co. 73 Led 2d 675
    • Pukhrem Sharatchandra Singh v. Mairembam Prithviraj[Bench Strength  2], CA No. 8063/2015 (@ SLP(C) No. 15813/2015), Judgment Dated: 01/10/2015, Bench: Dipak Misra, J. & Prafulla C. Pant, J., Supreme Court Of India, Citation: 2015(9) JT 113: 2015(10) SCALE 285(2): 2015(7) SLT 795- Representation of the People Act, 1951- Section 86(7)- Election trial- Dilatory tactics ingeniously adopted by elected candidate- Curbing adjournments and irrelevant applications- Election petition by the appellant, a contesting candidate of 10th Manipur Assembly Election from 27-Moirang Assembly Constituency of Bishnupur District, Manipur was filed in 2012, but the respondent, the returned candidate moved a series of irrelevant miscellaneous applications and after disposal thereof including Special Leave Petition, has filed written statement after two years- Thereafter appellant has filed application to decide the election petition on preliminary issue of admission in written statement- SLP against adjournment by trial court- Held, the elected candidate has been taking time at his own pleasure and leisure and filing applications as he desired and the Court has granted adjournment in an extremely liberal manner which is exception of provision for expeditious disposal of election petition- Expeditious disposal of election petition is to sustain purity of parliamentary democracy- This kind of attitude has to be curbed from all angles because law does not countenance it- Election petition pending before the High Court has to be decided with extreme alertness and in quite promptitude- The court shall, regard being had to the statutory command and the norms in a democratic polity, dispose of the election petition by end of February 2016- All the miscellaneous applications shall be decided at the time of final hearing so that the procrastination is totally ostracized- Satya Narain v. Dhuja Ram, (1974) 4 SCC 237, P. Nalla Thampy Thera v. B.L. Shanker, (1984) Supp. SCC 631, F.A. Sapa v. Singora, (1991) 3 SCC 375, Rameshwar Prasad and others v. Union of India and another, (2006) 2 SCC 1, Manoj Narula v. Union of India, (2014) 9 SCC 1, Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, Relied- HELD: In the case at hand, as we have stated, the elected candidate has been taking time at his own pleasure and leisure and filing applications as he desired giving vent to his whim and fancy and the Court has granted adjournment in an extremely liberal manner. All the aspects can be taken exception to and they really run counter to the conception of expeditious disposal (Para 15)- At this juncture, we may state without any hesitation that the fundamental purpose for expeditious disposal of an election petition is to sustain the purity of parliamentary democracy (Para 16)- A voter casts his vote as a responsible citizen to choose the masters for governing the country. That being the trust of the electorate in an elected candidate, when he faces an assail to his election, it should be his sanguine effort to become free from the assail in the election petition and work with attainment and not take shelter seeking adjournments with the elated hope that he can be triumphant in the contest by passage of time. This kind of attitude has to be curbed from all angles because law does not countenance it (Para 19)- We are absolutely conscious that in this case the election petitioner has also filed an application for early determination of the preliminary objection. The respondent, the elected candidate, has filed series of applications. We are of the convinced opinion that the election petition pending before the High Court has to be decided with extreme alertness and in quite promptitude. As the court has not framed issues, it shall proceed to frame issues. Thereafter, the evidence shall commence and the court shall, regard being had to the statutory command and the norms in a democratic polity, dispose of the election petition by end of February 2016. All the miscellaneous applications shall be decided at the time of final hearing so that the procrastination is totally ostracised (Para 20).
    • Rajendra Prasad Vs. Sheel Bhadra AIR 1967 SC 1445,
    • R Y Prabhoo Vs. P.K Kunte AIR 1996 SC 1113,
    • Residential Tenancies (1981) 123 DLR(3d) 554
    • S.P. Sampath Kumar v Union of India (1987) 1 SCC 124
    • Shaji K. Joseph Versus V. Viswanath & Ors., Civil Appeal No.1629 Of 2016, Judgment Dated: 22.02.2016, Bench: Anil R. Dave & Adarsh Kumar Goel, JJ, Supreme Court Of India [Full PDF Judgment] – Held, “15. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra). 16. Thus, in view of the aforestated settled legal position, the High Court should not have interfered with the process of election. We, therefore, set aside the impugned judgment and direct that the result of the election should be published. We are sure that due to interim relief granted by this Court, Respondent no.1 must not have been permitted to contest the election. It would be open to Respondent no.1 to approach the Central Government for referring the dispute, if he thinks it proper to do so. No issue with regard to limitation will be raised if Respondent no.1 initiates an action under Section 5 of the Act within four weeks from today.”.
    • Union of India v Madras Bar Association, (2010) 11 SCC 1;
    • Union of India v. Delhi High Court Bar Association (2002) 4 SCC 275;
    • Union of India Vs. Assn. for Democratic Reforms (2002) 5 SCC 294,
    • V.Balachandran v Union of India (1993) 76 Comp Cas 67 (Mad)

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