Election Laws and it’s Regulating Process in India:Need for Reformative Approach

Author : Manoj Sri RaghuTeja.T, student at Dr.B.R.Ambedkar College of Law,Andhra University,Visakhapatnam

To the Point:

Representative parliamentary democracy through universal adult franchise and free and fair elections is needed to strengthen Democracy without any bias. To ensure the best representatives are elected for the proper governance of Democratic India,laws are required. These laws make sure that free and fair elections are conducted and the citizens are empowered.

The Proof: 

The international Institute of Democracy(IIDEA),an intergovernmental agency evaluates “representation” in 173 nationals,taking into account political party freedom and election Legitimacy.India’s score on this aspect of electoral democracy dropped from 71% to 60% between 2014 and 2022. India has fallen from the 50th to the 66th position in the recent five years.

Abstract:

Various Election Laws in India:

To better understand the election laws in India, we need to have a clear understanding of the parliamentary structure of democracy, the Westminster model of FPTP(First Past The Post) system of elections in communion with a multi party system.

The elections are held differently for both the centre and the state but the rules regulating the conduct of parliamentary and state legislature elections are almost the same. They are the following:

• Representation of the People Act ,1950: This law mainly deals with the procedure allocation of seats , delimitation of constituencies, preparation of electoral rolls and their revisions or updation.It provides necessary qualifications of voters, and preparation of electoral rolls.

• Representation of the People Act 1951: It Concerns post-election issues related to disputes arising, acts of malpractice etc. All such disputes shall be brought before the State High Court of the state

• Presidential and Vice-Presidential Elections Act 1952: The election to the offices of President and Vice-President of India is dealt with this law.

• The Registration of Electors Rules 1960: This also contains rules on the inclusion of eligible voters, the exclusion of non-eligible voters and card corrections.These are some important rules relating to the supervising of the election’s electoral roll and its updating, along with registration and verification of elector details. These rules provide guidelines for the registration of eligible electors and the issuance of Voter ID cards. 

• Conduct of Elections Rules 1961: Section 169 of the Act ,establishes Detailed rule  for each level of the conduct of elections. It includes written notice for holding elections, nomination registration, withdrawal of candidates, review of endorsements, holding the polls and counting votes. In addition, the result-based constitution of the houses is also categorised according to these rules.

• Election Symbols Order,1968: This is the order authorising the Election Commission to recognize and allocate symbols to political parties.
• Presidential and Vice-Presidential Elections Rules 1974: These are the of rules to the Presidential and Vice-Presidential Elections Act 1952.

• Delimitation Act, 2002: The Parliament by law enacts a Delimitation Act after every census under Article 82 of the Indian Constitution. Since 1971, the number of seats in the Lok-Sabha allocated to different States has been frozen. No fresh Delimitation Commission has been formed. The Commission recommends that intra-State delimitation exercise may be undertaken by the Election Commission for Lok Sabha and assembly constituencies and the Scheduled Castes and Non-Scheduled Area Scheduled Tribe seats should be rotated.

• Anti-defection Law 1985: The Anti-Defection Act, commonly known as the 10th Schedule of the Constitution, is a piece of legislation that was passed by the 52nd Constitutional Amendment. A member of the House who voluntarily leaves a political party, votes or abstains from voting against the wishes of their party, or becomes an independent and joins a political party after the election is likely to be defected from that party.

• Election Laws (Amendment) Act, 2021:It provides for amendment of section 23 of the Representation of People’s Act, 1950, to curb the menace of multiple enrolment of the same person in different places.It enables Electoral Registration Officers to request the Aadhaar number of a current or potential voter in order to verify their identification voluntarily.

A gap in Constitutional Scheme : 

The Constitution  assigns its citizens the role of constituting legitimate government authority.Citizens fill this constitutional role through their consent, which is expressed by voting for candidates in elections. Electoral participation constitutes government authority by holding elected representatives accountable but consent of ordinary voters to the statutes of the legitimate authority has no role in Election Law Jurisprudence. 

The constitutional bench of supreme Court in Anoop Baranwal Vs Union of India delivered a unanimous judgement on March 2,2023 which held that Selection of Chief election commissioner would be done by three-member committee consisting of the Prime minister,The leader of opposition/leader of largest opposition party in parliament,and the chief Justice of India.But in December,2023 the parliament ,passed a law excluding Chief Justice of India and substituting it with a Union cabinet Minister which shows lack of Legislature’s Consensus Ad-idem with Judiciary. 

The framers of the constitution intended to keep Election commision (Art.324)free from Executive influence,however as they could not agree upon how to do it,they left the question for the parliament to resolve.Article 324(2) The most pertinent section for our purposes is , which says that the President will designate the Chief Election Commissioner and other Election Commissioners, subject to any laws passed by Parliament in this regard.

With respect to Article 324(5), parliament had made a law,The Election Commission Act,1991.

under articles 243K and 243ZA of the Constitution State Election Commission is duty bound to bear responsibility of elections to local bodies Panchayats and Municipalities. In March 2008 Maharashtra SEC was arrested and sent to jail for two days when asserted that he should have the power to hold elections to the offices of mayor, deputy mayor, sarpanch and deputy sarpanch.the Legislative Assembly found him guilty of breach of privilege in an alleged conflict over his jurisdiction and powers .The method of Removal of State Election Commissioner like manner and on the like grounds as a Judge of a High Court under Art 243K(2) has been diluted.

There are instances when the SECs have to fight long battles against the State Governments to hold elections as per the provisions of law. It is believed that the SECs should operate independently of the State Governments and get knowledge and direction from the Election Commission of India in order to guarantee the responsibility of the States in arranging Panchayat and Municipal elections on schedule.

Adjudication of Election Disputes:

Election petitions under Sections 80 and 80-A of the Representation of Peoples Act, 1951 will be put before the High Courts, which has the authority to decide disputes pertaining to state and union legislature elections.

The Representation of the People Act, 1951, Sections 86(6) and 86(7), state that the High Court must try to decide an election petition within six months of its presentation and, to the extent that it is reasonably possible, handle the election petition’s proceedings on a daily basis.

Case Laws that guide Election Law Reforms: 

Need for comprehensive changes in the election laws and electoral processes has been emphasised  right from the time of the first general election.Active civil Society organisations along with responsible political vigilante are regularly knocking the doors of the Judiciary to reduce the role of money, muscle and mafia power ,criminalisation, corruption, communalism and casteism. 

1.Lily Thomas v. the Union(2013):

In The Supreme Court of India ruled that Section 8(4) of the Representation of the People Act, 1951 (RPA), which gave legislators a three-month window to appeal against their conviction effectively delaying their disqualification until such appeals were exhausted was unconstitutional.If found guilty of a crime carrying a sentence of two years or longer, a sitting Member of Parliament or Member of Legislative Assembly will instantly forfeit their position.An ineffective and slow judicial process of dealing with election petitions, rendering the whole process quite often meaningless.The misuse of religion and

caste in the process of political mobilisation ,group identities on non-ideological lines was kept behind.

2.Lok Prahari V. Union Of India And Others (2018):

The Supreme Court Directed Necessary Amendments May Be Made In Form 26 And Rule 4A Of The Conduct Of Elections Rules, 1961 To Require Candidates To Declare On Affidavit Their Source Of Their Income along with their associates or close

relatives .The Honourable Court granted the prayer in question, which sought information regarding the candidates’ associates’ contractual relationships with appropriate governments. It further held that failure to disclose such information would violate Section 123(2) of the Representation of the People Act, 1951, by constituting corrupt practice.A permanent mechanism for tracking political activity and looking into lawmakers’ asset accumulation has to be in place by the time of the next election. This system would look at lawmakers with 100% asset growth. The Information will be

published by This Monitoring Body Is Then and Suitable Action will be recommended accordingly.

3. Public Interest Foundation & Others Vs. Union of India & Anr (2018):

The apex court of India recognized the right to information (right to know the criminal past and assets) of the candidates is a fundamental right under Article 19(1)(a) 7the constitution of India. In this case,the apex court directed the Law Commission of India to make suggestions on two specific issues, viz (i) curbing criminalization of politics and needed law reforms; and (ii) Law reforms needed to check such practices of candidates filing false affidavits .

Suggested Reforms :

• A comprehensive consultation paper along with a Questionnaire and a Bibliography on the subject of elections for generating debate and eliciting public response should be made available.For modifying existing laws,legislators should try for constitutional amendments instead of subordinate legislation and executive actions.

• To vitiate Electoral Process,The Election Commission of India (EC) must tackle the incomplete ,defective and faulty electoral rolls for assembly and parliamentary constituencies in coordination with the State election Commission.

• A suitable law should be enacted providing penalties against damaging or desecrating public or private property by candidates, political parties or the agents, through painting of slogans or erecting cutouts and hoarding or putting banners and buntings. The law should also provide for special courts to ensure strict compliance of the aforesaid provisions of law,should any dispute arise in respect of the alleged violations of provisions of law.

• The election expenditure should be systematically reduced by enacting suitable provisions in law. Different electioneering Distortions like public nuisance, wall writings, campaign through loudspeakers, holding rallies on the roads and parks,creating traffic jams, etc. which causes inconvenience to the public at large should be ended.
• Law should define the term ‘close relatives’ mentioned in the declaration of assets and liabilities. All candidates should be required under law to  get their audit of declared assets and liabilities by special authority created specifically under law for the purpose and should be made public. 

• In the context of elections, transparency refers to the disclosure of funding sources and their utilisation in an audited statement. The income tax authorities may review the candidates’ lists of income sources if they are mandated to do so. Each candidate must turn in an audited statement of expenses broken down into categories at the conclusion of the election. 

• Electronic Voting Machines (EVMs) :In certain and crucial times, EVMs have proven effective i.e during bye elections,. The VVPAT slips should be fully counted for the affected region and used as the foundation for results in the event of even a single inaccuracy. Additionally, “totaliser” machines that aggregate votes from group of EVMs before disclosing the candidate-wise count can be added to offer some degree of cover to voters at the booth level.

• Booth Capturing and Rigging : (i)  Election malpractises noted by returning officers, observers or citizen groups and reported to the  Election Commission Under section 58A of the Representation of the People Act, 1951 should also include booth capturing and Destruction of EVMs as well. Election Laws should be amended to include stringent punishments for Destroying EVMs.

• Additionally, the Commission should have the authority to nullify the previous poll and call for a new one that includes the entire constituency or to overturn the results of the election and order a new one; (ii) EC should consider the use of Encrypted and tamper-proof video recordings of booths and other electronic surveillance at sensitive polling stations/ constituencies. 

• Caste and Communal Hatred :Taking precepts from the judgement of Allahabad High court in banning Caste based rallies in Uttar Pradesh ,any attempt to incite caste and communal hate during an election should be considered serious offences.This kind of attempts to disturb social harmony should attract penal provisions.

• Criminalisation :The Representation of the People Act(sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 (RPA 1951)) be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more.There should be ban on person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc to contest again.

• Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts. 

• Constitution of Special Courts at the level of High Courts with their appeal to be made to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). Taking evidences through Commissioners.The Special Courts should be empowered to decide cases at the earliest not less than 6 months. 

Conclusion:

The remedies available to correct malfeasance,misfeasance and non-feasance in Election Process are not ubiquitous.But,Voting is the expression of our commitment to take part in democratic governance. Litra Scripta of election Laws has left a black hole leading to impropriety of Constitutional governance due to lack of will by the political class to implement it in letter and spirirt.In election law jurisprudence,participation, representation, and association depend on structures and processes for the expression of consent.As elections are the mechanism through which the people fulfil their constitutional role, there should be intensified interest in issues of Lawful Conduct,voter protection and electoral integrity.

FAQ 

1.Are election laws interdisciplinary ?

• Yes,Election laws fall at the juncture of  political science and constitutional laws. It involves “the politics of law and the law of politics

2.What are the Elements Which Regulate the Election Process?

• Electoral framework,Election Management ,Operations and participation and Electoral Integrity

3.What is the role of the Election commission in election Laws?

• Election commission through various legislations govern the Election process to conduct free and fair elections.

4.Why is there the need for reforms in the electoral Process?

• The reforms are needed for enhancing voter participation, containing Electoral inequalities, reducing money and muscle power and finally pave the way for transparency and accountability.

5.What are the criticisms of Election Laws?

• Election laws are not amended from time to time which is giving scope for a lot of misgovernance and undue influences.