Election Commissio

1 January 2017

All members of the federal legislature, the Parliament, are directly elected. Elections in India take place every five years by universal adult suffrage . India is the largest democracy in the World. Since 1947 then free and fair elections have been held at regular intervals as per the principles of the Constitution, Electoral Laws and System. The Constitution of India has vested in the Election Commission of India the superintendence , direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.

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An independent Election Commission has been established under the Constitution in order to carry out and regulate the holding of elections in India. The Election Commission was established in accordance with the Constitution on 25th January 1950. Originally a Chief Election Commissioner ran the commission, but first in 1989 and later again in 1993 two additional Election Commissioners were appointed. The Election Commission is responsible for the conduct of elections to parliament and state legislatures and to the offices of the President and Vice-President.

Indian Elections, the Largest Event in the World The independence of India came with the sorrow of partition of the country. After independence the main aim of the members of the constituent assembly was to make independent constitution for the country that would serve the people with the greatest happiness and prosperity. There was a requirement of democratic Government in India, which required the General Elections to be held in the country of 17 Crore eligible voters that time.

General elections to the first Lok Sabha since independence were held in India between 25 October 1951 and 21 February 1952. These Elections are known as 1952 Elections as most part of India casted its vote in this year. The Indian National Congress (INC) stormed into power with 364 of the 489 seat. Conduct of General Elections in India for electing a new Lower House of Parliament (Lok Sabha) involves management of the largest event in the world. The electorate exceeds 668 million voting in 800,000 polling stations spread across widely varying geographic and climatic zones.

Polling stations are located in the snow-clad mountains in the Himalayas, the deserts of the Rajasthan and in sparsely populated islands in the Indian Ocean. Legal Provisions Regarding Election Verdicts Judicial Review 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. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court. Now after discussing all these provisions, laid down under Constitution of India regarding Election Commission, the elections, the election officers, the grave question arises is that whether the Elections are conducted fairly and also, is participation as an candidate or a part of civil society(the people of India)?

Now let us discuss the requirements of Electoral Reforms for conducting fair elections and to form a good Democracy. Regarding this issue the Election Commission has proposed many reforms, and submitted to the Government in hope to help implement them. Some of them have been implemented but still the aim has not been achieved. Still there is a great requirement of Election Laws in Country like India. Consultations on Electoral reforms India has the largest Democracy in the world. However, there is a need to strengthen this democracy which can happen only with some reforms in our electoral system.

There has been an urgent need for electoral reforms and demand for this need has been made by many government committees and civil society organizations. Hence, the initiative taken up by the Ministry of Law and Justice along with the Election Commission of India is appreciated and it surely is a step forward to accomplish this endeavor . Discussion on Various Reports There has been a growing concern over the years in India about several aspects of our electoral system. The Election Commission has made changes in several areas to respond to some of the concerns.

There have also been a number of committees which have examined the major issues pertaining to our electoral system and made a number of recommendations. But there remain some critical issues that might need legislative action to bring about the required changes. •The Second Administrative Reforms Commission (2008) •Election Commission of India – Proposed Electoral Reforms (2004) •National Commission to review the Working of the Constitution (2001) •Law Commission Report on Reform of the Electoral Laws (1999) •Vohra Committee Report (1993) Indrajit Gupta Committee on State Funding of Elections (1998) •Goswami Committee on Electoral Reforms There has also been a great deal of substantive work on the topic of Electoral Reforms undertaken by various civil society groups, which have contributed significantly to the public discourse on the subject. The Role of the ANTI-DEFECTION LAW The 10th Schedule to the Indian Constitution, that is popularly referred to as the ‘Anti-Defection Law’ was inserted by the 1985 Amendment to the Constitution. ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group” The Advanced Law Lexicon efines defection as, “crossing the floor by a member of a Legislature is called defection. ” The reasons for the addition of this Schedule were explained by the Statement of Objects and Reasons of the Fifty-second Amendment (1985) to the constitution. The scope of this anti-defection law was examined in detail in Kihoto Hollohan v Zachillhu, a case that also analyzed various other aspects of this legislation also. Here, the court, spoke about the necessity of an anti-defection legislation, The introduction of Schedule X in the Constitution attempted to bring in a comprehensive legislation that would assail the menace of defection.

While the law has succeeded in this aspect to a reasonable degree, there were certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation. Proliferation of Non-Serious Candidates The abuse of religion and caste in the mobilization of voters.

Potential solutions to these problems are outlined in this paper. This paper also takes consideration of major issues dealing with the role of political parties in the electoral system: proliferation of non-serious parties; process of recognition and DE recognition of political parties; disclosure of assets and liabilities of parties; and audit and publishing of assets and liabilities. Resolution of election petitions and disputes, as well as rulings on defections, are two important processes seen to be operating in a slow and inefficient manner by many pervious committees. This paper reviews recommendations made to mitigate these problems.

The Ministry of Law and Justice, Government of India, has constituted a Committee on Electoral Reforms. The main purpose of the Committee is to recommend to the government concrete ways in which our electoral system can be strengthened. The Committee will take into account the opinions of political leaders, Government servants, legal experts, NGOs, scholars, academics, journalists, and other stakeholders. The purpose of this background paper is to recap some of the key issues with our electoral system, and to briefly examine the recommendations made by some recent committees in this regard.

It is hoped that this background paper will be a starting point to renew a national dialogue on the important changes that need to be brought about to strengthen our electoral system. The purpose of this paper is to provide background information on issues in our electoral process and outline some electoral reform options that have been considered in the past, in order to serve as a platform for a renewed national dialogue on electoral reforms. Disclosure of criminal antecedents of candidates Each candidate must file an affidavit regarding- i)cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court, and (ii)Cases of conviction for an offence other than any of the offences mentionedin Section 8 of Representation of the People Act, 1951, and sentenced to imprisonment for one year or more. (iii)In addition to this, pursuant to the order of the Election Commission on March 27, 2003, candidates must file an additional affidavit stating- ? information relating to all pending cases in which cognizance has been taken by a Court, ? ssets and liabilities, and ?educational qualifications. The affidavit is given in a form prescribed by the Election Commission of India. Recommendations In report on Proposed Election Reforms, 2004 The Election Commission of India recommended that an amendment should be made to Rule 125A of Conduct of Election Rules, 1961 to provide for more stringent punishment for concealing or providing wrong information on Form 26 of Conduct of Election Rules, 1961 to minimum two years imprisonment and removing the alternative punishment of assessing a fine upon the candidate.

It also recommended that Form 26 be amended to include all items from the additional affidavit prescribed by the Election Commission, add a column requiring candidates to disclose their annual declared income for tax purpose as well as their profession. The Law Commission of India Report on Reform of the Electoral Laws, 1999, suggested that an amendment be made to the Representation of the People Act, 1951, to insert a new section 4A after section 4 to make declaration of assets and criminal cases pending against the candidate part of the qualifications necessary for membership to the House of the People.

Eligibility of candidates with criminal cases pending against them Section 8 of the Representation of the People Act, 1951, provides for disqualification of candidates from contesting an election on conviction by a Court of Law. In subsection (i) It lists certain crimes and stipulates a disqualification period of six years from the date of conviction. In subsection (ii)It lists a different set of crimes and provides for the candidate to be disqualified for six years from the date of his release for that conviction.

In subsection (iii)It provides that any candidate convicted for a crime for which the minimum imprisonment is two years shall also be disqualified for six additional years after his release. Recommendations by Election Commission and Law Commission of India Right to Reject: Both the Election Commission and Law Commission of India recommend that a negative or neutral voting option be created. Negative/ neutral voting means allowing voters to reject all of the candidates on the ballot by selection of a “none of the above” option instead of the name of a candidate on the ballot.

In such a system there could a provision whereas if a certain percentage of the vote is negative/neutral, then the election results could be nullified and a new election conducted. Financing of Elections It is widely believed that in many cases successfully contesting an election costs a significant amount of money that is often much greater than the prescribed limits. A Consultation Paper to the National Commission to Review the Working of the Constitution, 2001, noted that “the campaign expenditure by candidates is in the range of about twenty to thirty times the legal limits”.

There are many negative social impacts of this high cost. Chapter 4 of the Report of the National Commission to Review the Working of the Constitution, 2001, notes that the high cost of elections “creates a high degree of compulsion for corruption in the public arena” and that “the sources of some of the election funds are believed to be unaccounted criminal money in return for protection, unaccounted funds from business groups who expect a high return on this investment, kickbacks or commissions on contracts, etc. It also states that “Electoral compulsions for funds become the foundation of the whole super structure of corruption”. A number of remedies have been recommended by previous committees for curbing the negative impact of the high cost of elections: Official limits on campaign expenditure The legal position on expenditure in the case of India is outlined in section 77 of the Representation of the People Act 1951. Currently, limits on campaign expenditure are fixed at certain amounts depending on the nature of the election. However, it is believed that these limits are violated with audacity.

This is mainly attributed to the fact that the actual cost of running an election campaign is often much greater than the prescribed spending limit. Recommendations of National Commission to Review the Working of the Constitution, 2001 The National Commission to Review the Working of the Constitution, 2001, recommended that the existing ceiling on election expenses for the various legislative bodies should be suitably raised to a reasonable level reflecting increasing costs. The ceiling is currently Ra 25 lakh for a Lok Sabha seat and Rs 10 lakh for an Assembly seat.

In order to cope with rising expenditures over time, this ceiling should be fixed by the Election Commission from time to time and should include all the expenses by the candidate as well as by his political party or his friends and well-wishers and any Recommendations by National Commission to Review the Working of the Constitution The National Commission to Review the Working of the Constitution recommended a follow-up action to the declaration of assets and liabilities by candidates – that the particulars of the assets and liabilities of both candidates and political parties should be audited by a special authority created specifically under law for this purpose.

Accounts of candidates and parties should be monitored through a system of checking and cross-checking through the income tax returns filed by candidates, parties, and their well wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads. Victimization of officers drafted for election duties The Election Commission utilizes the services of a large number of government officers for election duties, who perform important statutory functions in connection with preparation of electoral rolls and conduct of elections. The Election Commission has observed many of these officers are later subjected to humiliation and even vindictive disciplinary action by the government. Recommendations by the Election Commission

The Election Commission recommends that, in the case of the government officers performing statutory functions in connection with preparation of electoral rolls, or in the conduct of elections, consultation with the Election Commission and its concurrence should be made compulsory before initiating any disciplinary/legal proceedings by the government. In the case of those officers who have ceased to hold election related positions, consultation with the Commission should be mandatory for initiating any disciplinary/legal proceedings for a period of one year from the date on which the officer ceased to hold election related position. Disqualification for failure to lodge election expenses

Under Section 10A of the Representation of the People Act, 1951, the Election Commission may disqualify a candidate for three years for failure to lodge the account of election expenses as per the requirement of the law. Thus, the period of disqualification may end by the time of the next general election to that House. Therefore, no effective purpose is served by the disqualification (except that the person cannot contest in the odd bye-election that may be held during the 3 year period). on Electoral Reforms Auditing of Finances of Political Parties As mentioned previously in this report, the high cost of elections provides a logic for corruption in the public arena. This affects not only candidates, but parties as well.

In an order dated March 27, 2003, the Election Commission of India issued an order, in pursuance of the Supreme Court judgment dated March 13, 2003 in the Peoples Union for Civil Liberties &Another Vs. Union of India case, that candidates for electoral office must submit an affidavit disclosing his assets and liabilities. This order, however, does not apply to political parties. Adjudication of Election Disputes Disputes relating to elections of the State Legislature and Union Legislature are adjudicated upon exclusively by the High Court’s before whom election petitions under Section 80 and 80-A of the Representation of Peoples Act, 1951, are filed.

Sections 86(6) and 86(7) of the Representation of the People Act, 1951, provide that the High Court shall make an Endeavour to dispose of an election petition within six months from its presentation and also as far as practicably possible conduct proceedings of an election petition on a day to day basis. In practice, however, cases involving election petitions are rarely resolved in a timely manner. According to the report “Ethics in Governance” of the Second Administrative Reforms Commission, “such petitions remain pending for years and in the meanwhile, even the full term of the house expires thus rendering the election petition in fructuous. CONCLUSION

I would like to conclude this discussion with a brief mention of the commendable manner in which the Election Commission conducted the Election.. This act of the Election Commission, which conducted the elections of 600 million voters, is unprecedented in history. While considering this we should not forget, that this gigantic exercise was to be conducted among a voting population which is predominantly illiterate, we get the true magnitude of the achievement. The Commission was able to handle it not only efficiently but in record time. The polling was concluded in four days in 1977; in 1980 it was concluded in two days. Most of the results were declared within twenty-four hours after the conclusion of the polling.

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