REPRESENTATION OF PEOPLE ACT 1950 AND 1951

Transcription

1 REPRESENTATION OF PEOPLE ACT 1950 AND 1951 Representation of Peoples Act is an act enacted by the Indian provincial parliament before first general elections. Representation of Peoples Act 1950 provides: a) the allocation of seats in, and the delimitation of constituencies for the purpose of election to the House of the People and the Legislatures of States; b) the qualification of voters at such elections; c) the methodology of preparation of electoral rolls; d) the manner of filling seats in the Council of States and; e) matters connected therewith. Representation of Peoples Act 1951 provides: a) Methodology for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State; b) the qualifications and disqualifications for membership of those Houses; c) the corrupt practices and other offences at or in connection with such elections and; d) the decision on doubts and disputes arising out of or in connection with elections. Salient Features of the Representation of Peoples Act 1950 Allocation and Filling of Seats in the House of the People and Parliamentary Constituencies All the seats in the House of the People allotted to the States shall be seats to be filled by persons chosen by direct election from parliamentary constituencies in the States. Every parliamentary constituency shall be a single member constituency. Every State to which only one seat is allotted shall form one parliamentary constituency. Total Number of Seats in Legislative Assemblies and Assembly Constituencies The total number of seats in the Legislative Assembly of each State to be filled by persons chosen by direct election from assembly constituencies, and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State. Every Assembly constituency shall be a single-member constituency. Electoral Rolls for Parliamentary Constituencies The electoral roll for every parliamentary constituency, other than a parliamentary constituency in the State of Jammu and Kashmir or in a Union Territory not having a Legislative Assembly, shall consist of the electoral rolls for all the assembly constituencies comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency. 1

2 Electoral Roll for Every Assembly Constituency For every constituency there shall be an electoral roll, which shall be prepared in accordance with the provisions of this Act under the superintendence, direction and control of the Election Commission. Delimitation of Parliamentary Constituencies Under Article 82 of the Constitution, the Parliament by law enacts a Delimitation Act after every census. After commencement of the Act, the Central Government constitutes a Delimitation Commission. This Delimitation Commission demarcates the boundaries of the Parliamentary Constituencies as per provisions of the Delimitation Act. The present delimitation of constituencies has been done on the basis of 2001 census figures under the provisions of Delimitation Act, Notwithstanding the above, the Constitution of India was specifically amended in 2002 not to have delimitation of constituencies till the first census after Thus, the present Constituencies carved out on the basis of 2001 census shall continue to be in operation till the first census after The extent of all parliamentary constituencies except the parliamentary constituencies in the Union territory of Arunachal Pradesh shall be as determined by the orders of the Delimitation Commission made under the provisions of the Delimitation Act, 1972 (76 of 1972) and the extent of the parliamentary constituencies in the Union territory of Arunachal Pradesh shall be as determined by the order of the Election Commission under the provisions of the Government of Union Territories Act, Allocation of seats for Scheduled Castes and Tribes in the Lok Sabha are made on the basis of proportion of Scheduled Castes and Tribes in the State concerned to that of the total population, vide provision contained in Article 330 of the Constitution of India read with Section 3 of the R. P. Act, For Scheduled Castes, 84 seats are reserved in Lok Sabha. The 1st schedule to Representation of People Act, 1950 as amended vide Representation of People (Amendment) Act, 2008 gives the Statewise breakup. For Scheduled Tribes, 47 seats are reserved in Lok Sabha. The 1st schedule to R. P. Act, 1950 as amended vide Representation of People (Amendment) Act, 2008 gives the State-wise break up. Process of Delimitation of Council Constituencies The President shall, by order determine- (a) (b) the constituencies into which each State having a Legislative Council shall be divided for the purpose of elections to that Council; the extent of each constituency; and (c) the number of seats allotted to each constituency. Conditions for Registration in Electoral Rolls For every constituency, there is a voters list. Article 326 of the Constitution, and Sec. 19 of R. P. Act, 1950 stipulate that the minimum age for registration of a voter is 18 years. Earlier, the age for registration of a voter was 21 years. Through the 61st amendment Act, 1988 of the Constitution read with Act 21 of 1989 amending the R. P. Act, 1950, the minimum age of registration of a voter has been brought down to 18 years. This has been made effective from 28th March, Further no person shall be entitled to be registered in the electoral roll for more than one constituency and no person shall be entitled to be registered in the electoral roll for any constituency more than once. 2

3 The other criteria is that he should be the ordinarily resident in a constituency, a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. Sub criteria s are: (1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. (1B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member. (2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein. (3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date. No civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll. Criteria for the Disqualifications for Registration in an Electoral Roll are A person shall be disqualified for registration in an electoral roll if he- (a) (b) (c) Is not a citizen of India; or Is of unsound mind and stands so declared by a competent court; or Is for the time being disqualified from voting under the provisions of this relating to corrupt practices and other offences in connection with election. The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included: No person shall be entitled to be registered in the electoral roll for more than one constituency. No person shall be entitled to be registered in the electoral roll for more than once. Preparation and Revision of Electoral Rolls The electoral roll for each constituency shall be prepared in the prescribed timing by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act. The said electoral roll- Shall, unless otherwise directed by the Election Commission for to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date- 3

4 (i) (ii) Before each by election to the House of People or to the Legislative Assembly of a State; and Before each by election to fill in casual vacancy in a seat allotted to the constituency; and Shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by Election Commission. Correction of Entries in Electoral Rolls If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency- (a) (b) (c) is erroneous or defective in any particular constituency, should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or should be detected on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any, as any be given by the Election Commission in this behalf, amend, transpose or delete the entry. Making False Declarations If any person makes in connection with- The preparation, revision or correction of an electoral roll, or The inclusion or exclusion of any entry in or from an electoral roll, a statement or declaration in writing which is false and which he either knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. Administrative Machinery for the Design of Electoral Rolls 1. Chief Electoral Officer For each State a chief electoral officer is appointed who shall be such officer of Government as the Election Commission may, in consultation with that government, designate or nominate in this behalf. The Chief Electoral Officer of a State/Union Territory is authorised to supervise the election work in the State/Union Territory subject to the overall superintendence, direction and control of the Election Commission. The chief electoral officer of each State shall also supervise the conduct of all elections in the State. 2. District Electoral Officer For each district in a State the Election Commission shall, in consultation with the Government of the State, designate or nominate a district election officer who shall be an officer of Government: The Election Commission may designate or nominate more than one such officer for a district if the Election Commission is satisfied that the functions of the office cannot be performed satisfactorily by one officer. The District Election Officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State. 4

5 3. Electoral Registration Officers The electoral roll for each parliamentary constituency in the State of Jammu and Kashmir or in a Union territory not having a Legislative Assembly, each assembly constituency and each Council constituency shall be prepared and revised by an electoral registration officer who shall be such officer of Government or of a local authority as the Election Commission may, in consultation with the Government of the State in which the constituency is situated, designate or nominate in this behalf. An electoral registration officer may, subject to any prescribed restrictions, employ such persons as he thinks fit for the preparation and revision of the electoral roll for the constituency. 4. Assistant Electoral Registration Officers The Election Commission may appoint one or more persons as assistant electoral registration officers to assist any electoral registration officer in the performance of his functions. Every assistant electoral registration officer shall, subject to the control of the electoral registration officer, be competent to perform all or any of the functions of the electoral registration officer. Breach of official duty in connection with the preparation, etc., of electoral rolls: If any electoral registration officer, assistant electoral registration officer or other person required by or under this Act to perform any official duty in connection with the preparation, revision or correction of an electoral roll or the inclusion or exclusion of any entry in or from that roll, is without reasonable cause, guilty of any act or omission in breach of such official duty, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to two years and with fine. No suit or other legal proceeding shall lie against any such officer or other person for damages in respect of any such act or omission as aforesaid. No Court shall take cognizance of any such offence publishable unless there is a complaint made by order of, or under authority from, the Election Commission or the chief electoral officer of the State concerned. Manner of Filling of Seats in the Council of States Allotted to Union Territories The seat or seats in the Council of States allotted to any in the Fourth Schedule of the Constitution shall be filled by a person or persons elected by the members of the electoral college for that territory in accordance with the system of proportional representation by means of the single transferable vote. Staff of Local Authorities to be made Available Every local authority in a State shall, when so requested by the chief electoral officer of the State, make available to any electoral registration officer such staff as may be necessary for the performance of any duties in connection with the preparation and revision of electoral rolls. Jurisdiction of Civil Courts Barred No civil court shall have jurisdiction- To entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or To question the legality of any action taken by or under the authority of all electoral registration officers, or of any decision given by any authority, appointed under this Act for the revision of any such roll. 5

6 Salient Features of Representation of Peoples Act 1951 Qualifications for Membership of the Council of States/Legislative Council A person for being elected as a member of Rajya Sabha from any State or Union Territory should be an elector from that Parliamentary constituency. For election by nomination to the legislative Council, one has to be ordinarily a resident in that state. Qualifications for Membership of the House of the People/Legislative Assembly A person for being elected as a member of Lok Sabha from any State or Union Territory should be an elector from any Parliamentary constituency. Further, in the case of a seat reserved for the Scheduled Castes in any State, he should be the member of the Scheduled Castes, whether of that State or of any other State; In the case of a seat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), he should be the member of any of the Scheduled Tribes, whether of that State or of any other State (excluding the tribal areas of Assam); A person for being elected as a member of State Assembly from any State or Union Territory should be an elector for any Assembly constituency in that State. Further, in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he should be member of any of those castes or of those tribes. Disqualifications for Membership of Parliament or of a State Legislature A person is disqualified if s/he gets convicted for offences like bribery, spreading communal hatred, undue influence in election, offences relating to rape, untouchability, importing or exporting prohibited goods, cruelty towards a woman by husband or relative of a husband being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place, the Foreign Exchange (Regulation) Act, 1973 (46 of 1973), the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) etc. In any other offence, if the period of jail sentence exceeds 2 years, s/he shall be similarly disqualified. The disqualification begins from the date of conviction and stays for a period of six years after the person is released. The person will have 3 months for appeal in higher courts if the convicted person is a member of Parliament at the time of such conviction. Disqualification on Ground of Corrupt Practices (Section 8A) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period; provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect. The president decides in consultation with the Election Commission whose advice is final. 6

7 A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. For failure to lodge account of election expenses, the EC can disqualify the person which will be for a period of three years. The EC is the authority that can reduce the period of disqualification, except under Section 8A. Disqualification for Government Contracts, etc. A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Disqualification for Office Under Government Company A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society), in the capital of which the appropriate Government has not less than twenty-five per cent share. Disqualification From Voting A person shall be disqualified from voting for six years if convicted under section 171 E (offence of bribery) or section 171 F (offence of undue influence or presentation at an election) of IPC 1860, etc. If disqualified under section 8A by the President, then the disqualification will be for the period as decided by the President. The EC can reduce or remove the disqualification, except those disqualified under section 8A. According to the recent ruling of Supreme Court chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months time for appeal, as was the case before. Notification for Election For Council of States/legislative Council the notification will be valid by the President/Governor/Administrator not more than three months before the expiry of the term of the 1/3rd members retiring that year. For House of people/legislative Assembly in cases other than dissolution, the notification will be issued by the President/Governor/Administrator not more than six months before the expiry of the term of House/Assembly. Registration of Political Parties Political parties are an established part of modern mass democracy, and the conduct of elections in India is largely dependent on the behaviour of political parties. Although many candidates for Indian elections are independent, the winning candidates for Lok Sabha and Vidhan Sabha elections usually stand as members of political parties, and opinion polls suggest that people tend to vote for a party rather than a particular candidate. Parties offer candidates organisational support, and by offering a broader election campaign, looking at the record of government and putting forward alternative proposals for government, help voters make a choice about how the government is run. 7

8 Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of political party shall make an application to the Election Commission for its registration as a political party for the purposes of this Act. It will have 30 days from its formation to file such an application. To be a National Party the party should fulfill one of the three requirements 1. Secures six per cent of valid votes polled in any four or more states at a general election to the Lok Sabha and or to the legislative assembly; and, in addition, it wins four seats in the Lok Sabha from any state; 2. Wins two per cent of seats in the Lok Sabha at a general election; and these candidates are elected from three states; 3. Should be a party recognized as a state party in at least four states. To be a State Party the party should fulfill one of the requirements 1. Secures eight per cent of the valid votes in the state at a general election to the legislative assembly of the state concerned and in addition it wins 2 seats in the assembly of the state concerned; 2. Secures eight per cent of the valid votes polled in the state at a general election to the Lok Sabha and in addition wins one seat in Lok Sabha from the state concerned; 3. Wins three per cent of the seats in the legislative assembly or three seats in the assembly whichever is more; 4. Wins 1 seat in the Lok Sabha for every 25 seats in the Lok Sabha or any fraction thereof allotted to the state at a general election to the Lok Sabha concerned. Subject to the provisions of the Companies Act, 1956 every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company. Further no political party shall be eligible to accept any contribution from any foreign source. The treasurer of a political party or any other person authorised by the political party in this behalf shall, in each financial year, prepare a report in respect of the following, namely: (a) (b) the contribution in excess of twenty thousand rupees received by such political party from any person in that financial year; the contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year. Where the treasurer of any political party or any other person authorised by the political party in this behalf fails to submit a report under sub-section (3) then, notwithstanding anything contained in the Income-tax Act, 1961 (43 of 1961), such political party shall not be entitled to any tax relief under that Act. Nomination of Candidates The last date for making nominations, which shall be the seventh day after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday. 8

9 The date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday. The last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations. The date of poll will be more than 14 days after the last day of withdrawal of nomination. Valid nomination of a candidate of a registered political party needs at least one proposer who is an elector from the same constituency. For a candidate who does not belong to any political party, there has to be at least 10 proposers from the same constituency. In the case of local authorities constituency, graduates constituency or teachers constituency, there must be at least 10 % of the electors of the constituency or ten such electors, whichever is less as proposers. In one election a person can be nominated from a maximum of two seats/constituencies. The candidate will have to furnish information regarding the cases in which he is accused for which the punishment is 2 years or more and/or cases in which s/he has been convicted for more than one year apart from the offences under which s/he can be disqualified under this act. The Returning Officer has to put up this information in a conspicuous place for general public. Scrutiny of Nominations On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates. The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination with reason mentioned. The Candidate may be allowed to rebut any objection till the next day only. The returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, categorized under candidates belonging to recognized political parties, candidates belonging to registered parties and other candidates. The EC will provide for equitable distribution of time on cable TV network and radio to the recognized political parties based on their past performance. Declaration of Assets Every elected candidate for a House of Parliament shall, within ninety days from the date on which he makes and subscribes an oath or affirmation, according to the form set out for the purpose in the Third Schedule to the Constitution, for taking his seat in either House of Parliament, furnish the information to the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, relating to (i) (ii) The movable and immovable property of which he, his spouse and his dependant children are jointly or severally owners or beneficiaries; His liabilities to any public financial institution; and 9

10 (iii) His liabilities to the Central Government or the State Government, any contravention of the above will be treated as breach of privilege of the House. Limit on Poll Expenses There are tight legal limits on the amount of money a candidate can spend during the election campaign. The government has cleared a proposal of the Election Commission to raise expenditure limits for Lok Sabha elections to a maximum of Rs.70 lakh, allowing candidates to spend more on their poll campaigns. The poll expenditure rates has gone up from Rs. 40 lakh to Rs.70 lakh for each Lok Sabha constituency in bigger states such as Maharashtra, Madhya Pradesh, Uttar Pradesh, West Bengal and Karnataka, while it has gone up from Rs. 22 lakh in smaller states such as Goa to Rs. 54 lakh, on par with other hilly and north eastern states, where the limits were earlier varying between Rs. 27 lakh and Rs. 35 lakh. Among the union territories, the limit has gone up from Rs. 40 lakh to Rs. 70 lakh in Delhi, while it is uniform at Rs. 54 lakh for all other union territories (UTs). The limit for Delhi assembly elections is proposed to be raised to Rs. 28 lakh from Rs. 14 lakh at present and Rs. 20 lakh for Puducherry from Rs. 8 lakh now. Candidates and their Agents A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made, notice of the appointment shall be given in the prescribed manner to the returning officer. Election agents are responsible for sanctioning all expenditure on the candidate s campaign, for maintaining the accuracy of and submitting to the returning officer the candidate s expenses and other documents, as well as deciding whether to contest the result of a count. Agents are also permitted to oversee the polling and counting of votes to ensure the accuracy and impartiality of the election, and may appoint polling and counting agents to assist them in these tasks. The number of polling and counting agents that can be appointed is determined by the returning officer of the election and they must be appointed by a set date laid out in the timetable of the election. A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station. The primary purpose of a polling agent is to assist in detection of personation. A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to be present as his counting agent or agents at the counting of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. The role of the counting agent is to oversee the count itself, though they may not touch any of the ballot papers and must act through the returning officer. During counts, generally only the candidate, the candidate s partner and the candidate s counting agents may enter the place where voting takes place. Multiple Elections Any person who is chosen as a member of both the Houses of the People and the Council of States and who has not taken his seat in either House and does not intimate the EC about his /her preference, his seat in the Council of States shall remain vacant. If the person is already a member of one House of Parliament, his/her seat in that house will fall vacant the moment s/he is elected to other House. 10

11 In case of Election to more than one seat in a House, the person shall need to resign from all but one seat by writing to the Chairman/Speaker otherwise all seats shall fall vacant. The EC publishes in the official Gazette the names of the persons who are successfully elected in the election. Election Expenses The people who contest the elections to the House of the People and to the Legislative Assembly of a State are required to maintain such accounts. Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive. Administrative Machinery for the Conduct of Elections There is the Chief Electoral Officer at the state level, District Election Officer at the district level for the supervision and conduct of elections. Chief Electoral Officers: Subject to the superintendence, direction and control of the Election Commission, the Chief Electoral Officer of each State shall supervise the conduct of all elections in the State under this Act. District Election Officer: Subject to the superintendence, direction and control of the Chief Electoral Officer, the Chief Electoral Officer shall coordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State. The Chief Electoral Officer shall also perform such other functions as may be entrusted to him by the Election Commission and the Chief Electoral Officer. Observers: The Election Commission may nominate an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission. The Observer nominated shall have the power to direct the returning officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if in the opinion of the Observer booth capturing has taken place at a large number of polling stations or at places fixed for the poll or counting of votes or any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained. Where an Observer has directed the returning officer under this section to stop counting of votes or not to declare the result, the Observer shall forthwith report the matter to the Election Commission and thereupon the Election Commission shall, after taking all material circumstances into account, issue appropriate directions under section 58A or section 64A or section 66. Returning Officer for each Constituency: For each constituency/ seat (council of states) there shall be a Returning Officer appointed by the EC. The person shall be an officer of government or local body. 11

12 Election Commission can designate or nominate the same person to be the Returning Officer for more than one constituency. Assistant Returning Officers: The Election Commission may appoint one or more persons to assist any Returning Officer in the performance of his functions, Provided that every such person shall be an officer of Government. Every Assistant Returning Officer shall, subject to the control of the Returning Officer, be competent to perform all or any of the functions of the Returning Officer. District Election Officer: The Chief Electoral Officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided. Presiding Officers: The Chief Electoral Officer shall appoint a Presiding Officer for each polling station and such Polling Officer or officers as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election. A Polling Officer shall, if so directed by the Presiding Officer, perform all or any of the functions of a presiding officer under this Act or any rules or orders made there under. In case of elections to council of states or legislative council, the returning officer will also be the presiding officer. Disputes Regarding Elections All election disputes are to be tried by the respective High Courts. Election petititon is the only way to challenge any election. Election can be challenged by a candidate or any voter listed in the electoral roll of that constituency within 45 days of declaration of the result. The petition has to contain the material facts on which the election is challenged. Trial of the Petition The trial shall have to be completed within six months. No witness or person will be required to state which candidate that person has voted for. The court can declare the election of any or all candidates as void and also declare any other candidate as duly elected. The election can be declared null and void in case of the elected candidate not being qualified or being disqualified, or any other candidate s nomination being improperly rejected, or corrupt practices by any other candidate/agent which materially affects the result, improper rejection/acceptance of vote or by non- compliance with the provisions of the constitution or of this Act. However, if elected candidate and/or his agent did not indulge in any corrupt practices and tried their level best to stop them, then his election will not be void. A copy of the decision will be sent by the court to the EC, and speaker/chairman of the House concerned. The acts of the candidate, whose election is declared void, before such decision of the court, shall still be valid. Death of the sole petitioner or the sole respondent may lead to abatement of the trial. An appeal against the High Court order has to be made in the Supreme Court within 30 days of the High Court s judgment. 12

13 Criminality in the Indian Political System - The Supreme Court Judgment The Supreme Court judgement on the 10th July, 2013 on Writ Petitions filed by Ms Lily Thomas and Mr Shukla of Lok Prahari has stated that if a sitting MP/MLA is convicted (not only charged) then he/ she would be disqualified immediately and the seat would be declared as vacant. Sub-sections (1) of Section 8 of RPA states that a person will be disqualified for a period of 6 years from contesting or for being an MP/MLA if he/she is convicted of an offence mentioned in the sub-section which includes charges of rape. Sub-section (2) of Section 8 of the RPA states the person will be disqualified for a period of 6 years since release for charges with imprisonment upto 6 months. Sub-section (3) of Section 8 of the RPA states that if a person is convicted and sentenced for more than 2 years then he/she would be disqualified from the date of conviction for six years from release. The present Supreme Court judgement has ruled that henceforth if MPs and MLAs get convicted in a court of law then such a conviction will lead to instant disqualification of the legislators. But earlier convictions don t come under the purview of this judgement. Also, if convicted MPs/MLAs appeal in higher courts and get convicted again, they would be disqualified under this Supreme Court ruling. The present Supreme Court judgement only talks about the convictions in a court of law as the criteria for instant disqualification of the sitting MPs or MLAs. Earlier there was no deterrence for Political Parties for not giving tickets to these candidates with pending criminal cases because even if any such candidate got convicted, they would appeal against the conviction and continue to be an MP or MLA. Now since the convicted representative will immediately lose his/her seat, parties would be hesitant to give tickets to such candidates. This is a very significant judgement, as it would act as a deterrent to political parties from giving tickets to tainted candidates. The problem concerning pending criminal cases against MPs and MLAs being dragged in the court for many years (actually decades) is also paramount. There is a PIL on this issue in the Supreme Court for which the Court has asked for response from the center and the states. We hope that the court will take it soon as this will be a very important step in the direction of curbing criminalisation of politics. In addition, electoral reforms such as introducting a Bill to reform political parties apart from judicial and police reforms would help in removing criminals from politics. The Representation of the People (Amendment and Validation) Act The Representation of the People (Amendment and Validation) seeks to amend the Representation of People Act, 1951 (RPA, 1951). The two key changes brought about by the Bill are: Even if a person is prohibited from voting due to being in police custody or in jail, as long as his name is entered on the electoral roll he shall not cease to be an elector. This implies that he can file nomination for an election. The definition of disqualified in the Act has been amended. Currently, the definition of disqualified means disqualified for either being chosen as or being a Member of Parliament or a State Legislature. The amendment adds a ground to the definition that the disqualification has to be due to conviction for certain specified offences and can be on no other ground. Conviction for one of these offences would result in the person s name being removed from the electoral roll and he would cease to be an elector. This amendment Bill seeks to address the situation arising out of the Supreme Court s judgment. On July 10, 2013, the Supreme Court ruled that a person, who is in jail or in police custody, cannot contest elections to legislative bodies. The RPA, 1951 states that any contestant to an election to legislative bodies has to be an elector, i.e., his name should be on the electoral roll and he is not subject to any of the disqualifications 13

14 mentioned in Section 16 of the Representation of People Act, Among other things, that section disqualifies anyone from being on the electoral roll if he is disqualified from voting under the provisions of any law relating to corrupt practices and other offences in relation to elections. Another provision in the RPA, 1951 says that anyone in prison or on the lawful custody of the police (other than preventive detention) is not entitled to vote. The Supreme Court concluded that a person in jail or police custody is not entitled to vote, and therefore, is not an elector, and thus, cannot contest elections. Law Commission Report on Electoral Disqualifications The report examined issues related to: (i) disqualification of candidates with criminal background, and (ii) consequences of filing false affidavits. Key recommendations include: Stage at which Disqualification is to be Triggered The Commission examined the different stages at which disqualification may be triggered, and decided upon the stage of framing of charges. (i) (ii) Conviction: The current practice of disqualification upon conviction has been unable to curb the criminalisation of politics, owing to long delays in trials and rare convictions. The law must evolve to act as an effective deterrent. Filing of police report: At the stage of the filing of the police report, there is no application of judicial mind. Thus, this would not be the appropriate stage at which disqualification may be effected. (iii) Framing of charges: The stage of framing of charges is based on adequate levels of judicial scrutiny. By effecting disqualification at this stage, with adequate safeguards, the spread of criminalisation of politics may be curbed. Safeguards at the stage of framing of charges Certain safeguards must be included to prevent misuse of this provision and to address the concern of lack of remedy for the accused. These include: (i) (ii) Only offences that attract a maximum punishment of five years or above should be included within the ambit of this provision. Charges filed within one year before the date of scrutiny of nominations for an election will not lead to disqualification. (iii) The disqualification will operate until acquittal by a trial court, or a period of six years, whichever is earlier. (iv) For charges framed against sitting MPs or MLAs, the trial must be expedited. It must be conducted on a day to day basis, and completed within one year. (v) If the trial is not concluded within a one year period then the MP/MLA may be disqualified at the expiry of that period. Alternatively, the MP/MLA s right to vote in the House as a member, remuneration and other perquisites attached to his/her office should be suspended at the end of one year. (vi) Disqualification at the stage of framing of charges must apply retroactively as well. Persons with charges pending (punishable by five years or more) at the time of this law coming into effect must be disqualified from contesting future elections. The safeguards for charges filed within one year of the date of scrutiny of nomination papers would apply. 14

15 False affidavits as grounds for disqualification On the issue of filing of a false affidavit, the Representation of the People Act, 1951 must be amended to reflect the following: (i) Conviction on the charge of filing of a false affidavit must be grounds for disqualification. (ii) Punishment to be enhanced, from a maximum of six months imprisonment, to a minimum of two years imprisonment. (iii) Filing of a false affidavit should qualify as a corrupt practice under the Act. Consequently, trials of cases in relation to false affidavits must also be conducted on a day to day basis. Further, a gap of one week should be introduced between the last date for filing nominations and the date of scrutiny. This would give adequate time to file an objection on nomination papers. 15