The Electoral System

ELECTIONS TO PARLIAMENT

Representative parliamentary democracy calls for a system of choosing representatives of the people and for a suitable machinery for the purpose. The Constitution provides for universal adult franchise. Every citizen who is 18 years or above has full voting rights irrespective of religion, race, caste, sex or place of birth. It is most important that the elections are free and fair and are seen to be so. These are, therefore, to be conducted under the superintendence and direction of an independent authority called the Election Commission. In a country of India's vast size (nearly 3.3 million sq.km.) and its large population (over 1 billion) and with a massive electorate (nearly 620 million), the conduct of nation-wise elections becomes a gigantic undertaking.' In addition to the elections to the two Houses of Parliament and the State Legislatures, the Election Commission is inquired to conduct elections to the high offices of the President and Vice-President of India.

The Election Commission

The Election Commission consists of the Chief Election Commissioner and such other Election Commissioners as may be appointed by the President. In October 1992 two Election Commissioners were appointed and by an ordinance given the same position and status as the Chief Election Commissioner. Also, the Commission was required to act as a body taking decisions unanimously or by majority. The ordinance (which was later replaced by an Act) was challenged by the Chief Election Commissioner but the Supreme Court held the Act to be valid.

Taking into consideration the importance of the duties that the Chief Election Commissioner has to perform, persons of eminence with rich administrative experience, legal knowledge and high social standing are appointed to this post. The condition of service and tenure of office of the members of the Commission cannot be changed to their disadvantage after the appointment. The Chief Election Commissioner cannot be removed from his office except through the same process as in the case of a judge of the Supreme Court. Other Election Commissioners cannot be removed from office without the recommendation of the Chief Election Commissioner. The Union and State governments are enjoined to make available to the Commission such officers and staff as may be necessary for the proper discharge of its duties and responsibilities and while performing any functions in connection with the elections all such officers and staff are fully answerable to the Election Commission.2

For every State, there is a Chief Electoral Officer nomi­nated by the Election Commission to supervise the preparation, revision and correction of electoral rolls and to conduct all elections in the State. Likewise, for each dis­trict there is a District Election Officer who coordinates and supervises all work in his district relating to elections un­der the direction of the Chief Electoral Officer.3 Usually the District Collectors or Deputy Commissioners are designated as the District Election Officers. They appoint presiding and polling officers for the polling stations. The presiding officer plays an important role on the day of the election. His general duty at a polling station is to keep order there and to see that the poll is fair and free.4 It is the duty of the polling officers at a polling station to assist the presiding officer in the performance of his functions.5

The Election Commission, in consultation with the State Government, appoints a Returning Officer for every parliamentary and assembly constituency and for every election to fill a seat or seats in the Rajya Sabha. The Re­turning Officer is authorised to do all such acts and things as may be necessary for conducting the elections according to election laws.6

Election of Members

A general election to the Lok Sabha is held either on the expiration of its term or on its dissolution.7

The Constitution empowers the Parliament to make laws concerning elections to either House of Parliament or to either House of the Legislature of a State, including the preparation of electoral rolls, the delimitation of constitu­encies and all other necessary matters for securing the due constitution of such House or Houses.8 The Representation of the People Act, 1950 and the Representation of the People Act, 1951 are two of the most important statutes enacted in pursuance of this provision. Supplementing the provisions of these statutes are the Registration of Electoral Rules, 1960 and the Conduct of Election Rules, 1961. The Acts and Rules are amended and updated from time to time to meet the exigencies of developing situations.

Qualifications and Disqualifications for Membership

To be qualified to become a member of Parliament a person must be:

  • a citizen of India;
  • not less than 30 years of age in the case of the Rajya Sabha and not less than 25 years in the case of the Lok Sabha; and
  • and elector for any parliamentary constituency in India, but in the case of the Rajya Sabha a candidate mu t be registered as an elector in the State or Union Territory from where he is to be chosen.

Additional Qualifications may be Prescribed by Parliament by law.9

There are also certain disqualifications for becoming a member. A person, for example, shall be disqualified for being a member of either House of Parliament if:

  • he holds any office of profit under the government other than an office declared by Parliament by law not to disqualify its holder;
  • he is of unsound mind;
  • he is an undischarged insolvent;
  • he has ceased to be a citizen of India;
  • he is so disqualified by any law made by Parliament; and
  • he is so disqualified on the ground of defection.10

The office of a minister is not deemed to be an office of profit." Besides the above constitutional requirements, the election laws lay down some more disqualifications. Under the Representation of the People Act, 1951, if a person has been convicted, among other things, for promoting enmity between different groups or convicted for the offence of bribery or has been punished for preaching and practising social crimes such as untouchability, dowry and sati, then he is disqualified from being chosen as a member. Again, a person convicted for any offence and sentenced to imprisonment for not less than two years stands disquali­fied for a period of five years after his release. A government servant dismissed for corruption or for disloyalty to the State is disqualified for a period of five years from the date of his dismissal.

Mode of Election

Rajya Sablia: Members of the Rajya Sabha are the representatives of the people of the States and of Union Territories. They are elected in the case of a State by the elected members of the Legislative Assembly of the State and in case of a Union Territory by an electoral college. They are elected through a system of indirect election and in accordance with the system of proportional representation by means of single transferable vote. This is intended to provide some representation to minority community and parties.12

For the purpose of filling seats in the Rajya Sabha, the President, by issuing notification on a date as may be rec­ommended by the Election Commission, calls upon the electors to elect the members of the Rajya Sabha. No such notification is issued more than three months prior to the date on which the term of office of the retiring members is due to expire.13 The Returning Officer, with the approval of the Election Commission, fixes and notifies the place at which the polling is to be held.

Lok Sabha: For the purpose of electing a new Lok Sabha, the President, by notification published in the Ga­zette, on such date as suggested by the Election Commission, calls upon all parliamentary constituencies to elect members to the Lok Sabha. After the notification has been issued, the Election Commission fixes the dates for filing of nominations, scrutiny, withdrawal and polling.14 Every candidate for election has to deposit a security amount to validate his nomination. The amount is forfeited if the candidate fails to secure a minimum percentage of votes polled in that constituency.15 A candidate for election has to make and subscribe an oath or affirmation bearing true faith and allegiance to the Constitution according to the form set out for the purpose in the Third Schedule of the Constitution. Under the latest judgement of the Supreme Court and directions issued by the Election Commission thereunder, every candidate has also to declare on affidavit his criminal background, if any, educational qualifications, assets and liabilities, etc. The Returning Officer, after exam­ining the validity of nomination papers, publishes a list of validly nominated candidates.

The election to the Lok Sabha, being direct, requires the territory of India to be divided into suitable territorial constituencies. Thus, each State is divided into several parliamentary constituencies in such a manner that the ratio between the population of each constituency and number of seats allotted to it is, so far as practicable, the same throughout the State. Every parliamentary constituency is a single member constituency.16

After the polling has been completed, counting of votes takes place on the date and time

fixed by the Returning Officer. He declares the result and reports it to the Election Commission and to the Secretary-General of the concerned House.

If any question arises as to whether a member of ei­ther House of Parliament has become subject to any of the disqualifications specified in the Constitution, the President's decision shall be final. However, before giving his decision, he is required to obtain the opinion of the Elec­tion Commission in this matter.17

Vacation of Seats

If a member of one House is also elected to the other House, his seat in the first House becomes vacant with effect from the date on which he is elected to the other House.18 Simi­larly, if he is chosen also as a member of a State Legislature, he ceases to remain a member of Parliament, unless he re­signs his seat in the State Legislature within a period of 14 days from the publication of declaration in the State Ga­zette. A member may vacate his seat by submitting his resignation to the Chairman, Rajya Sabha or Speaker, Lok Sabha, as the case may be. I f a member does not attend any of the meetings of the House for a period of 60 days, with­out the permission of the House, it may declare his seat vacant.19 Further, a member has to vacate his seat in the House if (i) he holds any office of profit; (ii) is declared to be of unsound mind or an undischarged insolvent; (iii) vol­untarily acquires citizenship of a foreign State; (iv) his election is declared void by the Court; (v) he is expelled upon the adoption of a motion of expulsion by the House; or (vi) he is elected President, Vice-President or appointed Governor of a State.20

A member may also cease to be a member on being disqualified on grounds of defection under the provisions of the Tenth Schedule of the Constitution (see chapter 15).

Election Disputes

Elections give rise to disputes also. It has been provided that no election to either House of Parliament or of a State Legislature shall be called in question except by an election petition presented to a High Court.22 The petition can be presented by any candidate at such election, or by any voter. The petition can be presented on the ground of disqualifi­cations to fill the seat or adopting during the election, any corrupt practices forbidden by law. The High Court is em­powered to declare the election of a returned candidate void on any of the grounds mentioned above, if proved.23

If in a petition, a claim has been made by the petitioner that he received the majority of valid votes and that the returned candidate may not have won but for the corrupt practices adopted by him, the Court, if satisfied, can de­clare the election of the returned candidate void and declare the petitioner duly elected.24

A right to appeal to the Supreme Court from the order of the High Court, is available to the aggrieved party.

Electoral Reforms

During recent years, widespread concern has been felt in the matter of the influence of what is called 'money, muscle and mafia power' in the electoral process. The tenth gen­eral elections of 1991 were reported to be particularly brutal, violent and associated with all sorts of crime, riots, mur­ders and mayhem. The then Prime Minister himself had gone on record to deprecate the prevalent "criminalisation of politics and politicisation of criminals". Video and other media coverage of elections and stories of booth capturing, rigging, bogus voting, impersonation, misuse of religious and caste identities and various other corrupt practices made the need for electoral reforms imperative. From time to time various suggestions were made by academics, the Election Commission, Law Commission, other commissions and committees including the Goswami Committee and Indrajit Gupta Committee. The Election Commission has of late been trying to enforce a code of conduct, various rules, etc. with a view to cleanse and streamline the electoral process. The latest have been the two Supreme Court judgement of May 2002 and March 2003 on Public Interest Petitions. The first judgement and related Election Commission direction were debated in an All-Party meeting and a consensus legislation was passed by Parliament. The Supreme Court did not find it satisfactory and reiterated its May 2002 judgement. The Election Commission has since issued fresh directives making it necessary for all candidates for membership of legislatures to give on affidavit infor­mation about the educational qualifications, assets and liabilities of self and close family, and criminal record, if any. The government was also toying with the idea of bring­ing a comprehensive legislation for electoral reforms but the entire exercise got embroiled in political controversies and party differences.

The most comprehensive and meaningful recent exer­cise in the field of electoral reforms was the one undertaken by the National Commission to Review the Working of the Constitution. The Commission submitted its report on 31 March 2002. It noted that nearly 70 per cent of all our repre­sentatives were elected by minority of votes cast, i.e. more votes were cast against every winning candidate than for him. The representational legitimacy of our representatives was thus doubtful. There were substantial advantages in following the policy of 50 %+one vote. On the one hand, it would resolve the problem of representation, on the other, it would be in the self-interest of various political parties to widen their appeal to the electorate. It could help push po­litical rhetoric in a direction where the mobilising language might take on comparative "universal' tones as opposed to "sectoral" tones of the present day. With the need to be more broad based in their appeal, issues that had to do with good governance rather than with cleavages and narrow identi­ties might start to surface in the political vocabulary. This one proposal had the greatest potential of service to the cause of national integration and ridding Indian politics of the scourge of casteism and communalism. The Commis­sion recommended that the Government and the Election Commission should examine this issue of prescribing a minimum of 50% plus one vote for election in all its as­pects, consult various political parties, and other interests that might consider themselves affected by this change and evaluate the acceptability and benefits of this system.

The Commission found that most of the independent candidates are dummies and only vitiate the sanctity of the electoral process. Only a few—6 out of 1900 in 1998 and 9 out of over 10,000 in 1996—got elected. Such independent candidates should be discouraged and only those who have a track record of having won any local election or who are nominated by at least twenty elected members of Panchayats, Municipalities or other local bodies spread out in majority of electoral districts in their constituency should be allowed to contest for Assembly or Parliament.

Also, the Commission recommended (i) a foolproof method of preparing electoral rolls and multi-purpose ID Cards, (ii) introduction of Electronic Voting Machines in all the constituencies, (iii) authorising the Election Commis­sion to take a decision in regard to booth capturing, countermanding the election or ordering repoll etc., and (iv) use of tamper-proof video and other electronic surveillance at sensitive polling stations/constituencies. Some of the other significant recommendations of the Commission for legislative action were (i) mandatory imprisonment and dis­qualification for spreading caste or communal hatred during election campaigns, (ii) disqualfication of those charged with serious offences and derecognition of parties putting up such candidates, (iii) permanent disqualification for life of those convicted of heinous crimes, (iv) speedy trial of election petitions and of cases involving candidates, (v) dis­qualification on conviction to apply to sitting legislators also, (vi) ceiling of election expenses to be progressively raised with increasing costs but to cover all expenses by party, friends etc. and an audited statement of expenses to be submitted, (vii) declaration by every candidate and ev­ery holder of political office of all assets and liabilities and these declarations to be subjected to audit and public scru­tiny, (viii) security deposits of candidates securing less than 25% votes be forfeited, (ix) Chief Election Commissioner and Election Commissioners to be appointed on the recom­mendations of a body consisting of Prime Minister, Leaders of the Opposition in Lok Sabha and Rajya Sabha, Speaker of Lok Sabha and Dy. Chairman of Rajya Sabha, and (x) candidates to clear all government dues and vacate unau­thorised government accommodation etc. before being allowed to go to polls.

With a view to reducing costs of elections, the Com­mission recommended that (i) to the extent possible, State and parliamentary elections should be held simultaneously, (ii) campaign period should be reduced, (iii) no one should be allowed to contest from more than one constituency, (iv) code of conduct should be made into a law and its viola­tion should attract penal action. Lastly, besides intra-State delimitation of constituencies, the Commission categorically recommended rotation of reserved seats.25

REFERENCES

  1. Art. 324 (1), 325 & 326
  2. Art. 324
  3. Representation of the People Act, 1950, Secs. 13 A & 13 AA
  4. ,Sec. 27
  5. ,Sec. 28
  6. RP. Act, 1951, Secs 21 & 24
  7. Art.326; See also R.P. Act, 1951, Sec. 16
  8. Art.327
  9. Art.84, and R.P. Act, 1951, Secs 3 & 4
  10. See Tenth Schedule and Arts 102 (2) and 191 (2) llr'-'Art. 102
  11. Art.80 (4) (5) and R.P. Act, 1951, Secs 27A & 27 H
  12. RP. Act, 1951 Sec. 12
  13. ,Sec. 14
  14. ,Secs 34 & 158
  15. See arts 81 (2) & 3 and 82
  16. Art. 103
  17. RP. Act, 1951, Sec. 69
  18. Art.101 (3) & (4)
  19. See Arts 59 (1), 66 (1), 102 (1), 158 (1) and R.P. Act, 1951, Sec. 100 (1)
  20. The Constitution (52nd) Amendment Act, 1985 and the Lok Sabha (Disqualification on Ground of Defection) Rule, 1985.
  21. RP. Act, 1951, Secs 80 & 80A
  22. ,Sec. 100
  23. ,Sec. 101
  24. For further study see Subhash C. Kashyap (ed). National Resur­gence through Electoral Reforms,Shipra, New Delh, 2002; Blueprint of Political Reforms, Shipra, New Delhi, 2003. Also see The Report of the National Commission to Review the Working of the Vol. 1, Universal, New Delhi, 2003.
PARLIAMENT OF INDIA
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