Election Law Notes- Legal Framework and Process of Elections

Legal framework of Elections

Article 327- Power of parliament to make provisions with respect to elections. Gives power to parliament to frame any law with respect to election of both parliament and legislature of any state.

Article 328- Power of legislature of a state to make provisions with respect to elections.

Under Article 327

Representation of the people act, 1951

Registration of Electors’ Rules

Delimitation Act

Representation of the people act, 1950

Conduct of Election Rules, 1961

Process of Election-

1.      Preliminaries- Application of Delimitation Act and Representation of the people act, 1950 because they provide for selection of seats and delimitation of constituencies for the purpose of election to house of the people and legislature of the state. Therefore, we find that 1950 Act read with Electors’ Rules provides for qualification of voters and preparation of electoral rolls covering the preliminary phase of elections.

2.      Pre Poll Stage- It comprises of the provisions dealing with qualifications and disqualifications for membership of parliament and the state legislature. Also, disqualifications for voting, administrative machinery for conduct of elections, nomination of candidates, scrutiny of nomination of candidates, appointment of election agents, general procedure and the actual polling is covered in this phase.

3.      Post Poll Stage-It consists of counting of votes, publication of results, the logic of accounts of elections or expenses by the contesting candidates and settlement of disputes regarding elections. Therefore, Representation of the people act, 1951 is relevant for the second and the third phase. It ensures free and fair elections.

Punnoswamy v. Returning Officer- The representation of people act, 1951 is a self-content enactment so far as elections are concerned. Wherever one has to ascertain the true position in regard to any matter connected with elections, one has to only to look at the act and the conduct of election rules, 1961 made thereunder.

Chaturbhuj Vitthaldas Jasani v. Mareshwar Prasharan- The act is to maintain the purity of elections to the legislature and to avoid a conflict between duty and interest. The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it.

Electoral Roll- Every qualified citizen has a Right to vote, the essential pre requisite is that name should be correctly registered in the electoral rolls. This objective is fulfilled by Representation of the people act, 1950. It provides for preparation, machinery and maintenance of electoral rolls as well as to correct any defects in it.

An up to date list of voters or persons who are entitled to vote is called Electoral Rolls.

The word Roll means Electoral Roll for a constituency and normally an entry in the electoral roll is conclusive proof of the elector’s right to vote at that election. When the name of the person finds place, his right to vote cannot be questioned, since right to vote is not a fundamental right under the Indian Constitution and is created by the statute. Even, the election of a candidate once elected is -not open to challenge on the ground of electoral roll being defective. (Lakshmi Charan Sen’s Case)

Common Electoral Roll- Article 326

There shall be one general electoral roll- Article 325 and Section 19 of Representation of the people act, 1950.

Machinery for Preparation and Revision of Electoral Roll-

Superintendence and Guidance, the control for Parliament and Legislative assemblies is done through

1.      Maintenance is vested in Election Commission. It is usually done by Chief Electoral Officer of the State.

2.      For each district of a state, there is a District Election Officer and he is supposed to co-ordinate and supervises all the electoral rolls. This is in the control of Chief Electoral Officer of the State. The registration of electors falls entirely on the administrative machinery and governed by the Representation of the people act, 1950.

3.      Section 23 talks about inclusion of names in Electoral Rolls.

4.      Section 22 talks about Correction of Entries in Electoral Rolls.

CEC v. R.S. Dhani- AIR 1957 SC 304- The Supreme Court has held that it is an essence of fair elections that proper electoral rolls should be maintained and for this purpose it is necessary that after the preparation of electoral roll, opportunity should be given to parties concerned to scrutinize whether the persons enrolled as electors possess the requisite qualification. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and for entertaining objections to such enrolment unless this is done the entire obligation cast upon the authorities holding the election is not discharged and the elections held on the basis of such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.

Shankar Babaji Sawant v. Sakharan V. Salunkhe- AIR 1965 SC 1424- The Supreme Court held that an error or defect in the entry or defect in the electoral roll does not disqualify him from voting. It is open to him to satisfy the Presiding Officer that he is really the elector to whom the entry related. Rule 25(4) of Conduct of Election Rules, 1961 makes it obligatory on the Presiding Officer to overlook merely clerical or printing errors if he is satisfied about the identity of the elector.

R. Chandran v. M. Marrapan- AIR 1973 SC 2362- Once a person’s name has been included in the electoral roll, his qualification to be included in that roll cannot be questioned either when he tries to cast his vote or to stand for an election or even after the election is over. It is not necessary to refer to all of them or to quote from them. The only exception has been made in respect of requirement of article 173 of the Constitution. Such election of the candidate should be held to be void on the ground of constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the returning officer. Similarly, when name of a person is entered in the electoral roll, the fact that he is ordinary resident of that constituency cannot be questioned in an election petition.

Section 14 talks about Qualifying Date.

Section 24 talks about Appeals.

Inaccuracy of Electoral Rolls

Baburao v. Manikrao and others- AIR 1999 SC 2028- The fact that a person’s name finds place in more than two assembly constituencies does not make him disqualified from contesting election to the legislative assembly. There is nothing to suggest in Section 16 in the 1950 Act that if a person’s name finds place in more than one constituency that would automatically entail disqualification from contesting in any one of the constituencies. It is relevant to note 2(1)(e) of 1950 Act refers to disqualifications under Section 16 of 1950 Act, while interpreting the word elector and has not mentioned any contravention of Section 17 of the 1950 Act as disqualification. No doubt, Section 17 of the 1950 Act expressly states that no person shall be entitled to be registered in the electoral roll from more than one constituency. Objection under section 17 could have been raised to prevent person’s name from being included in the other constituency. One reading Section 16 of the 1950 Act and Article 173 and Article 191 of Constitution of India, nothing could be found that nomination of such candidates ought to have been rejected.