Election Law Notes- Qualifications and Disqualifications

Qualification of candidates and members

The purpose behind fixing the legal qualification for the position of legislature is quite clear that only competent and fit persons should occupy a seat in democratic institutions like parliament which has dominant role of making laws for the country.

What does candidature mean?

A.    The first condition for contesting the election is to file nomination as the candidate.

B.     Khadersheriff v. Manuswami Gondar, AIR 1955 SC 775- The Supreme Court held that when a question arises whether a person had become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate for election so that it can be said that he had himself come out as a prospective candidate that can only be communicated to the outside world by declaration or by conduct from which it could be inferred that he intends to stand as candidate and for that very purpose, nomination, the foundation of candidate’s right to go to courts. Therefore, nomination to election is an integral part of election process.

C.    Constitutional Qualifications-

a.      Article 84 for Parliament and Article 173 for State Elections. Graduate Constituencies- Legislative Councils (Article 173(3)(b)).

b.      Citizenship- Article 5 to Article 8 and Citizenship Act, 1955 pursuant to Article 11 read with Item 17 of List I of Schedule VII of the Constitution making elaborate provisions for the acquisition and termination of citizenship subsequent to the commencement of the constitution. Therefore it is a relationship between sovereign and the subject. So far as Indian Constitution is concerned, no distinction is drawn in the status of citizen whether a born citizen or a citizen by registration.

c.       Age of Candidate- Article 84 and Article 173.

d.      Brijendra Gupta v. Jwala Prasad, AIR 1960 SC 1049- A candidate had omitted to mention age in his nomination paper. Consequently, his nomination paper was rejected by the returning officer. The returning officer can reject nomination on the ground of any defect provided the defect is of substantial nature. Election tribunal also had that the omission or defect was of substantial character but the High Court allowed the appeal on the ground that at the time of scrutiny, the candidate had offered to supply the omission but was not allowed to do so and that returning officer was bound to make a summary enquiry before rejecting nomination paper and therefore, the rejection was bad in law. Supreme Court on appeal reversed the decision of High Court and held that the failure to specify the age on the nomination paper amounts to a defect of substantial character under Section 36(4) of the Representation of people act, 1951.

e.       Oath of Allegiance- It refers to the obligation of the subject to be loyal to the state and follow its constitution and laws made thereunder. Therefore, it is necessary for a candidate seeking election to a seat in a state or central legislature to take oath or make affirmation that he will bear true faith and allegiance to the constitution of India and that he will uphold the sovereignty and integrity of India. This oath has to be taken after the nomination and this should exist at the time of scrutiny. Article 102 and Article 191- Disqualifications for Membership. Since not taking oath is a disqualification, nomination of a candidate could be rejected on this ground.

D.    Statutory Qualifications-

a.      Section 3- Qualification for membership of Council of States.

b.      Section 4- Qualification for Membership of House of the people.

c.       Section 5- Qualification for membership of Legislative Assembly.

d.      Section 5A- Sikkim

e.       Section- Legislative Council. Section 20 of 1950 Act explains “ordinarily resident”.

f.       Normal rule is that person should be elector of that constituency.

g.      Constitutional Qualification and Statutory Qualifications do not vary in case of Scheduled Castes and Scheduled Tribes.

h.      G.Ram v. Rihiram Kaundal- Candidate did not specify his caste in the nomination paper. But he provided an annexure certifying that the appellant belonged to scheduled caste ‘loha’. High Court said that Section 33 of 1951 Act requires that nomination must be in a prescribed form which is a self-content one. The filing of any certificate along with the form is not contemplated. It set aside the election. The Supreme Court said that the high court was in error and said that the certificate must be treated within the meaning of the said section.

E.     Disqualification of Candidate and Members- Article 102 and Article 191 of Constitution of India. Article 190 talks about Vacation of Seats.

a.       Office of Profit- Parliament (Prevention of Disqualification Act), 1959- Talks about Offices which are not office of profit.

b.      Priya Lal v. Roshan Lal- Object of this provision is to secure independence of members of parliament and to ensure that parliament does not contain persons who have received favours or benefits from executive and who consequently are under an obligation to the executive, might be amenable to its influence, that there should not be any risk of conflict between duty and self-interest amongst members of parliament.

c.       Guru Govind Basu v. Sankari Prasad- AIR 1964 SC 254- Supreme Court laid down a test for determination whether an office is under a government or it is an office of profit.

                                                  i.      Whether the Government makes the appointment?

                                                ii.      Whether the Government has the right to remove or dismiss the holder?

                                              iii.      Whether the Government pays the remuneration?

                                              iv.      What are the functions of the holder of office?

                                                v.      Does the Government exercise any control over the performance of these functions?

Siva Murti Swami Inamdar v. Agadi Sanganna Andanappa- 1971 3 SCC 870- It must be established that the person was holding office under Union or State Government. Thereafter, one must see disqualification relating to office has been removed by any parliamentary legislation. The office in question must have been held by the government and to that some pay be attached. The word profit connotes the idea of pecuniary gain. Therefore, if there is really a gain, its quantum would not be material, but the amount of money receivable in connection with the office he holds may be material in deciding whether the office really carries any profit.

The test given in above two cases must co-exist and if one of the elements is absent, the test of the person holding the office under the government is not satisfied.

Being of Unsound Mind-Lunacy Act, 1912- It must come from a competent court under this statute.

Undischarged Insolvent- A person must be declared under Presidency Towns Insolvent Act or Provincial Insolvency Act, 1920 by the competent authority.

Not being Indian Citizen- A person who does not hold citizenship of the country cannot contest election.

Kedar Pandey v. Narain Vikram Shah- AIR 1968 SC 160- When a person can be said to have changed his domicile of origin? Supreme Court observed that law attributes every person at birth, a domicile of origin, this domicile may be changed and a new domicile may be required. The former kind of domicile is received by operation of law at birth while the latter kind of domicile is acquired later by the actual removal of the individual to another country accompanied by his animous manendi. Therefore, any individual who is not under disability may at any time change his existing domicile and acquire for himself a domicile of choice by residing in a country other than that of his domicile of origin with a intention of continuing to reside there indefinitely. He should have formed a deliberate intention to settle there. Thus, domicile and citizenship are two different concepts. Within the meaning of article, domicile along with 5 years residence is necessary to make a person as Indian Citizen, mere domicile is not a sufficient qualification for membership of the legislature.

Defection- 52^nd Amendment- Schedule 10 of the Constitution Introduced.

Statutory Disqualifications

1.      Conviction for certain offences- RP Act, 1951 Section 8, 8A, 9, 9A, 10 and 11. Raghubeer Singh v. Surjeet Singh, 1994 Supp 3 SCC 160- The differentiation made in subsection 2 and 3 of section 8 as regards “further six years since his release” was challenged as discriminatory on the ground that there is no rational for providing different periods of disqualifications in section 8. The Supreme Court rejected the contention holding that the classification of offences is permissible.  Jawahar Singh v. ECI, AIR 1999 Allahabad 18.

2.      Chandra Raha v. Kahendra Nath, AIR 1961 SC 334.

3.      Mani Lal v. Parmailal, AIR 1971 SC 330- The respondent was convicted under IPC after his nomination paper was accepted. He won the election. During the pendency of Election Petition, his conviction was set aside. The SC said that the returned candidate cannot be said to be disqualified on the date of the election. If, before, or, during the pendency of the petition, his conviction is set aside and he is acquitted, the order of acquittal in appeal wipes out the conviction and sentence retrospectively.

4.      SM Banerjee v. Krishna Agrawal- AIR 1960 SC 368- if the nomination paper expressly does not disclose any disqualification but there is non-compliance with constitutional and statutory provisions, then it can be challenged under Section 100(d)(iv) for declaring the election void. If Returning officer accepts the nomination paper of a candidate who has been dismissed due to the above reason and five years period has not elapsed since, then it would be a ground for setting aside his election on improper acceptance of nomination paper.

5.      Mangilal v. K.R. Powar- AIR 1971 SC 1943- Contracts with Government- The chairman of BoD of a company entered into a contract for supply of electricity with government. The court held that it would not incur disqualification since supply of electricity cannot be considered to be a contract entered into by the chairman of the board in the course of his trade or business and it is settled law that a company registered under the Companies’ Act is a separate entity distinct from its shareholders.

6.      Chaturbhuj Vitthaldas Dasani v. Moreshwar Parsharam- AIR 1954 SC 236- Whether a contract for the supply of goods terminates when the goods are supplied or does it continue till the payment is finally made after the contract is fully discharged by performance of both sides. The court said that the interest in contract continues even if supply is completed and the payment is awaited.

7.      A person is disqualified if and so long is manager of the corporation and person has 25% shares. Co-Operative Society is excluded.

8.      Failure to lodge account of election expenses- 77(2) and 78 of Election Rules, 1961 and Section 10A of RP Act.

9.      Shatrucharia C. Raju v. V.P. Kumar Deo- AIR 1992 SC 1959- The court said that the submission of details of expenses in the prescribed manner is mandatory and failure to do so without justification incurs disqualification and therefore the candidate has to comply with the provision of law in that very manner to the satisfaction of the election commissioner.

10.  A.C. Pradhan v. Union of India- AIR 1997 SC 2814- Unless Election law permits, no authority can prohibit the election candidate and the right to contest or vote is not a fundamental but a statutory right.

11.  Nomination of paper-The person proposes himself as the candidate as representative of that constituency and he has to submit the form in the prescribed manner. The nomination form has to be duly filled in.

12.  Bajendra Gupta v. Jwala Prasad- Non- compliance with Section 33 (nomination) would justify the rejection of nomination paper provided of course that the defect arising out of non-compliance is of substantial character. Section 100(1)(c) of RP Act- essentials of a valid nomination.

a.       Nomination should be in the prescribed form and it should be duly filled by the candidate and signed by him

b.      It should accompany the required documents and annexures.

c.       It should accompany the required deposits.

d.      The candidate should be an elector to the said election from any constituency.

e.       Candidate should be qualified and should not be disqualified under the relevant rules.

f.       His proposer and seconder should be electors from the constituency from which the candidate is nominated and should have signed the nomination paper.

g.      In case of general election to that legislature, he is not nominated for more than 2 constituencies.

h.      The form should be presented to designated officer in the manner and within the time prescribed.

13.  Harjeet Singh Mann v. Umrao Singh- AIR 1980 SC 701- Delay in the presentation of nomination paper- The appellants alleged that the proposer of the candidate went to the returning officer after 2 P.M. Nomination was filed 10 minutes after 3 PM. Thus, there was non-compliance with Section 33(1). Returning Officer had no option but to reject the nomination.

14.  Name and Serial Number in Electoral Roll- Rangi Lal Chaudhri v. D. Sahu- The court dealt with a situation where the appellant was elected as a member of legislative assembly from Dhanbad. Nomination paper of respondent was rejected because the proposer proposed to candidate to contest from Bihar and not Dhanbad. Tribunal said it was rightly rejected. High court reversed the decision. The Supreme Court came to the conclusion that since the mistake has occurred on account of inconsistency in Hindi Form, the defect is not of a substantial character under Section 36(4) of RP Act, 1951.

15.  Ram Avdhesh Singh v. Sumitra Devi- The Supreme Court said that misdescription of electoral roll number or proposer or their names in the nomination paper is not to be considered a material defect.

16.  Rafique Khan v. L.N. Sharma- the Supreme Court reviewed the earlier case laws. The defect which can be per se noticed at Section 33 (4) and later at Section 36(4), the same cannot be said to be of non-substantial character.

17.  Ranjeet Singh v. Preetam Singh- AIR 1966 SC 1626- The object of producing the copy under Section 33(5) is to enable the returning officer, is to check whether the candidate and the proposer are qualified, one for the purpose of standing and other for the purpose of proposing. If this qualification is not maintained, the entire process becomes faulty. Non- compliance with this clause will prove fatal in the election.

18.  Errors of Substantial Character- There are no definitions as to defects which can be called as substantial character.  Devkant Barua v. Kushi Ram- AIR 1961 SC 1125- The nomination form contained the statement that the respondent no. 1 was nominated as the candidate for election from Navgaon Assembly constituency stating the electoral roll no. of the proposer and candidates respectively. The entry was misspelled. Supreme Court held that the defect was not of substantial character.

19.  Vivekananda Giri v. Nand Kishore Sahay- AIR 1984 SC 856- The candidate stated his age in the nomination paper to be 33 years while age in the electoral roll was given as 37 years. The Supreme Court held that the defect was not of substantial character. Thus, his nomination was wrongly rejected.

20.  Roll of returning officer in scrutiny- Returning Officer occupies a pivotal position in the whole electoral process. And for every election, the election commission, in consultation with the government designates an officer of government or of a local authority. Based on his decisions, a nomination paper is to be accepted and rejected. It is the general duty of the returning officer to do all such acts as may be necessary for effectuating the conduct of elections in a manner provided by the RP Act, 1951.

Withdrawal of Candidature- Conduct of Election Rules, 1961- The candidate must fill in the form and apply before the last date for withdrawal of candidature [Section 30(c)].

Mohd. Younis Saleem v. Shiv Kumar Shasthri- AIR 1974 SC 1218- Whether gift offer or promise to a candidate from withdrawing from a contest after a time prescribed for withdrawal is over would come under the mischief of Section 123(A)(a) of RP Act, 1951. Since purity of election is the most important object of the act, a narrow meaning to the word withdraw to refer only to legal withdrawal would forfeit the purpose, so the court has to give meaning to the word withdraw keeping in mind the object and scheme of the act with a view to effectuate the intention of legislature to ensure purity of elections. Else, there would be an assured where actual withdrawal after the time limit will be free from the vice of corrupt practice. Whereas, that prior to it will not be so. Such an intention cannot be attributed to the legislature from deletion of the words “retire from contest”. The word withdraw is comprehensive enough to also connote “retire from contest”.

Ummed v. Raj Singh- Justice Bhagwati agreed that the provision should be construed so as to the supress the mischief and advance the remedy but that does not mean a construction should be adopted which ignores the plain natural meaning of the words or disregards the context or colloquation in which they occurred. It was held that the scheme of the act should be taken into consideration in order to find out the true meaning of the words. Since Section 37 prescribed for procedure of Withdrawal of candidature, the term must be interpreted in the backdrop of Section 37. The only mode in which a candidate can withdraw his candidature and cease to be a candidate is that set out in section 37 until the last date for withdrawal of candidature, the candidate has locus paenitentiae and he can withdraw by giving a notice in writing to that effect under Section 37. But once the date is passed, he becomes a contesting candidate and he has no choice. The term “withdraw” in Section123 has to be interpreted in light of its meaning under previous Sections.