Chief Electoral Officer, Government of Tamil Nadu

            

VIII. Conduct of Elections

Electoral System

The Constitution of India embodies certain basic principles, one of the most important one of which is popular sovereignty. Inherent in the principle of popular sovereignty is the commitment to hold regular free and fair elections. These elections determine the composition of the Government, the membership of the two Houses of Parliament, the State and the Union Territory Assemblies and the Presidency and the Vice-Presidency. The elections to the House of the People (Lok Sabha) and the Legislative Assembly of every State have to be held on the basis of universal adult suffrage.

Such elections should take place at least once every five years. Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. An Election Commission was set up for the superintendence, direction and control of the preparation for, and conduct of, the elections. The major laws passed by the Parliament are the Presidential and Vice-Presidential Elections Act, 1952, the Representation of the People Act, 1950 and the Representation of the People Act, 1951. Further, Rules have been framed to govern the conduct of elections, viz., the Conduct of the Elections Rules, 1961.

The power of superintendence, direction and control of the preparation of electoral rolls and the conduct of elections has been vested in the Election Commission under Article 324 of the Constitution of India. Where the enacted laws are silent or make insufficient provision to deal with a given situation in the conduct of elections, the Election Commission has the residuary powers to act in a given situation. If there is a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken adequate care of leaving scope for exercise of discretionary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or rules.

Election as President- Article 55 of the Constitution provides for the election of the President by an electoral college consisting of the elected members of both the Houses of Parliament and the State Legislative Assemblies. The election of the President is by the system of proportional representation by means of the single transferable vote. For the purpose of ensuring uniformity in the scale of representation of the different states interse as well as parity between the States as a whole and the Union, every elected member of the State Assembly shall have votes equal to the multiples of 1000 in the population of the State divided by the number of elected members of the Assembly (if the remainder is equal or greater than 500, the vote of each member shall be increased by one) and each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Assemblies of the States by the total number of elected members of both Houses of Parliament, fractions greater than being counted as 1 and other fractions being disregarded.

In the single transferable vote system, the voters indicate their order of preference for the candidates listed in the ballot paper. A threshold number of votes, known as the 'quota', is set, which candidates have to secure to be elected. For the Presidential Election, the quota is set at 1 more than the number of votes (disregarding any remainder), ensuring thereby that the winner is the candidate who gets a clear majority.

No person shall be eligible for election as President–

  • unless he is a citizen of India;

  • unless he has completed the age of 35 years; and

  • unless he is qualified for election as a member of the House of the People

  • if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.

Explanation – A person shall not be deemed to hold any office of profit by reason only that he is the President or the Vice-President of the Union or the Governor of any State or is either for the Union or for any State.

Election as Vice-President- According to Article 66 of the Constitution, the Vice-President is elected by the members of an electoral college consisting of the members of both the Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote. Every ballot paper represents at each count in a Vice-Presidential election one vote. The determination of the quota and the result is on the same basis as for the Presidential election.

The provisions governing the conduct of elections to the offices of President and Vice-President of India are set out in the Presidential and Vice-Presidential Elections Act, 1952 and the Presidential and Vice-Presidential Elections Rules, 1974.

The qualifications for election as Vice-President are the same as for the President except that the Vice-President should be qualified for election as a member of the Council of States (instead of the House of the People).

Election of members of Rajya Sabha- The members of the Upper House of Parliament or the Council of States (Rajya Sabha) are elected indirectly. According to Article 80 of the Constitution, the Council of States shall consist of

  • 12 members to be nominated by the President; and

  • not more than 238 representatives of the States and of the Union territories;*

* The allocation of seats in the Council of States to each State or Union territory is set out in the Fourth Schedule of the Constitution of India. This number is roughly in proportion to the State's population. A nominated member is not eligible to vote.

According to Section 154 of the Representation of the People Act 1951, a Member so elected will hold office for a period of 6 years. A member chosen to fill a casual vacancy will serve for the remainder of his predecessor's term of office.

According to Article 83 of the Constitution, the Council of States shall not be subject to dissolution, but, as nearly as possible, 1/3 of the members thereof retire as soon as may be on the expiration of every second year. Thus elections are staggered with 1/3 members being elected every 2 years.

According to Article 80(4) of the Constitution, the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. The procedure for counting of votes is laid down in the Conduct of Elections Rules, 1961.

Elections to House of People and State Assemblies- The country has been divided into 543 Parliamentary Constituencies, each of which returns one Member of Parliament to the Lok Sabha, the lower House of Parliament. The size and shape of the Parliamentary Constituencies are determined, according to section 4 of the Representation of the People Act, 1950, by an independent Delimitation Commission.

According to section 3 of the Representation of the People Act, 1950, the allocation of seats to the States in the House of the People and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of each State shall be as shown in the First Schedule.

The elections to the Lok Sabha are carried out using first-past-the-post electoral system. The electors can cast one vote each for a candidate, the winner being the candidate who gets the most votes. All the seats in the House of the People allotted to the States are seats to be filled by persons chosen by direct election from parliamentary constituencies in the States. Every parliamentary constituency is a single member constituency.

The State Assemblies or Vidhan Sabhas are directly elected bodies. According to Article 170 of the Constitution, the Legislative Assembly of each State shall consist of not more than 500, and not less than 60, members chosen by direct election from territorial constituencies in the State.

Some States have, with reference to Article 168 of the Constitution, a bicameral system of legislature with both an Upper and lower House. The Elections to the Legislative Assemblies are carried out in the same manner as for the Lok Sabha elections with the States and Union Territories divided into single-member constituencies and on the first-past-the-post electoral system. The size of the Assembly is related to the population of the State.

According to section 7 of the Representation of the People Act, 1950, the total number of seats in the Legislative Assembly of each State specified in the Second Schedule, to be filled up by persons chosen by direct election from the assembly constituencies, and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State, shall be as shown in the Schedule.

Election of members of Legislative Councils- Vidhan Parishad (Legislative Council) consists of representatives chosen by the members of Vidhan Sabhas and local authorities, and also by graduates and teachers in the State having such Parishad. The Governor of the State also nominates certain members to give representation to art, science, literature, social service and co-operative movement. The elections to these Parishads are held under the system of proportional representation by means of single transferable vote.

Conduct of elections

There are 234 Assembly Constituencies and 39 Parliamentary Constituencies in Tamil Nadu. For every Constituency, for every election to fill a seat or seats of Tamil Nadu Legislative Assembly or Parliament, the Election Commission designates or nominates a Returning Officer (who shall be an officer of Government or of local authority) in consultation with the State Government. The Election Commission may appoint one or more persons, officer of Government or a local authority to assist any Returning Officer in the performance of his functions. It should be the general duty of the Returning Officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and rules or orders made there under.

(i) Qualifications and Disqualifications for Election

A person shall not be qualified to be chosen to fill a seat in Parliament unless

  • he is a citizen of India and

  • makes and subscribes before some person authorized in that behalf by the Election Commission of India an oath or affirmation according to the form set out for the purpose in the 3rd Schedule..

  • to contest for a seat in the Council of States, he should not be less than 30 years of age and, for the Lok Sabha not less than 25 years of age.

  • he should also possess such other qualifications as may be prescribed by or under any law made by Parliament.

  • A person shall not be qualified to be chosen as a representative of any State or Union Territory in the Council of States unless he is an elector for a Parliamentary Constituency in India.

  • A person shall not be qualified to be chosen to fill a seat in the House of the People unless, in the case of a seat reserved for the Scheduled Castes / Scheduled Tribes in any State, he is a member of any of the Scheduled Castes or of any of the Scheduled Tribes as the case may be, whether of that State or of any other State, and is an elector for any Parliamentary Constituency, and

  • in the case of any other seat (i.e. a seat which is not reserved), he is an elector for any Parliamentary Constituency.

  • a person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to be filled by election unless he is an elector for any Assembly Constituency in that State.

  • a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, in the case of a seat reserved for the Scheduled Castes / Scheduled Tribes of that State, he is a member of any of those castes / tribes, as the case may be, and is an elector for any Assembly Constituency in that State, and,

  • in the case of any other seat (i.e. a seat which is not reserved), he is an elector for any Assembly Constituency in that State.

  • A person shall be disqualified for being chosen as, and for being a member of either House of Parliament –

  • if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

  • if he is of unsound mind and stands so declared by a competent court;

  • if he is an undischarged solvent;

  • if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence to a foreign State;

  • if he is so disqualified by or under any law made by Parliament.

Explanation – A person shall not be deemed to hold an office of profit by reason only that he is a Minister either for the Union or the State.

The provisions for qualification and disqualification for membership of the State Legislature are similar except that the office of profit should have been so declared by law by the State Legislature instead of the Parliament as not disqualifying its holder.

Disqualifications for Members of Parliament and State Legislatures

"Disqualified" means disqualified for being chosen as, and being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

Disqualification on conviction for certain offences- According to Section 8 of the Representation of the People Act, 1951, (1) a person convicted of an offence punishable under –

(a)

Indian Penal Code

 

 

Section 153A

Offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony or

 

Section 171E

Offence of bribery or

 

Section 171F

Offence of undue influence or personation at an election or

 

Sub-section (1) or (2) of Section 376 or 376A or 376B or 376C or 376D

Offences relating to rape or

 

 

 

Section 498A

Offence of cruelty towards a woman by husband or relative of a husband or

 

Sub-section (2) or (3) of Section 505

Offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies; or

(b)

The Protection of Civil Rights Act, 1955

Which provides for punishment for the preaching and practice of "untouchability" and for the enforcement of any disability arising therefrom; or

(c)

Section 11 of the Customs Act, 1962

Offence of importing or exporting prohibited goods; or

(d)

Sections 10 to 12 of the Unlawful Activities (Prevention) Act, 1967

Offence of being a member of an association declared unlawful offence relating to contravention of an order made in respect of a notified place; or

(e)

The Foreign Exchange (Regulation) Act, 1973; or

 

(f)

The Narcotics Drugs and Psychotropic Substances Act, 1985; or

 

 

 

(g)

The Terrorists and Disruptive Activities (Prevention) Act, 1987

 

Section 3

Offence of committing terrorist acts or

 

Section 4

Offence of committing disruptive activities; or

(h)

Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988

Offence or contravention of the provisions of Sections 3 to 6; or

(i)

The Representation of the People Act, 1951

 

 

Section 125

Offence of promoting enmity between classes in connection with the election or

 

Section 135

Offence of removal of ballot papers from polling papers from polling stations or

 

Section 135A

Offence of booth capturing or

 

Clause (a) of sub-section (2) of Section 136

Offence of fraudulently defacing or fraudulently destroying any nomination paper; or

(j)

Section 6 of the Places or Worship (Special Provisions) Act, 1991

Offence of conversion of a place of worship; or

(k)

Prevention of Insults to National Honour Act, 1971

 

 

Section 2

Offence of insulting the Indian National Flag or the Constitution of India or

 

Section 3

Offence of preventing singing of National Anthem, or

(l)

Commission of Sati (Prevention) Act, 1987, or

 

(m)

Prevention of Corruption Act, 1988

 

(n)

Prevention of Terrorism Act, 2002

 

shall be disqualified, where the convicted person is sentenced to

(i) only fine, for a period of 6 years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.

(2) A person convicted for the contravention of –

  • any law providing for the prevention of hoarding or profiteering; or

  • any law relating to the adulteration of the food or drugs; or

  • any provisions of the Dowry Prohibition Act, 1961; or

  • and sentenced to imprisonment for not less than 6 months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.

(3) A person convicted of any offence and sentenced to imprisonment for not less than 2 years (other than an offence referred to in sub-section (1) or sub-section (2) above), shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.

(4) Notwithstanding anything in sub-section (1) or sub-section (2) or sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, take effect until 3 months have elapsed from the date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

Disqualification on ground of corrupt practices- According to Section 8A of the Act, the case of every person found guilty of a corrupt practice by an order under Section 99 of the Representation of the People Act, 1951 (made by the High Court at the conclusion of the trial of an Election Petition in case where a charge is made in an Election Petition of any corrupt practice having been committed at an election), 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 shall in no case exceed 6 years from the date on which the order made in relation to him under Section 99 takes effect.

(The Central Government has specified –

  • in relation to an election to the House of the People or the Council of States, the Secretary-General of the House of the People or the Council of States, as the case may be, and

  • in relation to an election to the Legislative Assembly or to the Legislative Council of a State, the Secretary of the Legislative Assembly or the Legislative Council of a State, as the case may be,

as the Authority for the above purpose).

Before giving his decision on any question indicated above, the President / Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

Disqualification for dismissal for corruption or disloyalty- According to Section 9 of the Act, 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 5 years from the date of such dismissal. For this purpose, a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of any State has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact. Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person.

Disqualification for Government contracts, etc.- According to Section 9A of the Act, a person shall be disqualified if, and 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- According to Section 10 of the Act, a person shall be disqualified if, and so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than 25% share.

Disqualification for failure to lodge account of election expenses- According to Section 10A of the Act, if the Election Commission is satisfied that a person –

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under the Act, and

(b) has no good reason or justification for the failure,

the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of 3 years from the date of the order.

(According to Section 77 –

every candidate 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.

The account shall contain particulars such as expenditure incurred on vehicles, meetings, publicity, etc.,

The total of the said expenditure shall not exceed such amount as may be prescribed.

[Rs. 25 lakhs in the case of Parliament and Rs.10 lakhs in the case of Legislative Assembly for Tamil Nadu]

According to Section 78 of the Act, every contesting candidate at an election shall, within 30 days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the District Election Officer (Returning Officer in the case of a constituency in a Union Territory) an account of his election expenses which shall be a true account of the account kept by him or his election agent under Section 77).

Removal or reduction of period of disqualification- The Election Commission may, for reasons to be recorded, remove any disqualification except under Section 8A or reduce the period of such disqualification.

Nomination of candidate

For nomination, a candidate has to make deposit as indicated below (section 34 of the Act).

 

General

S.C

S.T.

Rajya Sabha

Rs.5000

Rs.2500

Rs.2500

Lok Sabha

Rs.10000

Rs.5000

Rs.5000

Assembly

Rs.5000

Rs.2500

Rs.2500

 

Under Section 33 of the Representation of the People Act, 1951, in respect of candidates set up by recognized political parties, the nomination should be subscribed by the elector of the constituency as proposer. In this case of candidate not set up by recognized political party, it should be subscribed by 10 electors of this constituency as proposer.

The nomination should be in such one of the Forms 2A to 2E (prescribed in the Conduct of Elections Rules, 1961) as may be appropriate.

Documents to be submitted along with nomination

1. Affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26 (in Stamp paper of value Rs.20) (details about conviction, cases pending in courts etc.) (Rule 4A of the Conduct of Elections Rules, 1961)

2. Forms A & B in case of recognized and registered political parties

3. Certified copy of Electoral Roll if he is a voter of another constituency

4. Affidavit (made mandatory consequent upon a judgment of the Supreme Court) containing details of the candidate in regard to

i. criminal antecedents

ii. assets and liabilities and those of spouse and dependents, and

iii. educational background.

This has been done with a view that every citizen has a right to know about the candidates contesting an election and make an informed choice.

The Election Commission has directed all Returning Officers to display the copies of nomination papers and accompanying affidavits received during any day on his notice board immediately on receipt and make copies of these for distribution to the press and any members of public who want this information, free cost. Any citizen of the country can obtain copies of the nomination form and the affidavit filed by any candidate from the Returning Officer and it shall not be refused.

The details of the dues owned by the candidates to the Government are published by giving an advertisement in the leading newspapers by the Returning Officer for the benefit of electors.

The above measures help the electors make an informed choice about the candidate they are going to vote for.

Registration of new political party

Any association or body of individual citizens of India calling itself a political party can make an application to the Election Commission for its registration as a political party. This is governed by the provisions of Section 29A of the Representation of the People Act, 1951.

Election Petition

Any election can be called in question only through the Election Petition which should be filed before the High Court within 45 days from the date of declaration of results.

Duties of DEOs and Returning Officers in relation to conduct of elections

Duties of DEOs

  • selection (and, at the appropriate time, setting up) of polling stations, with previous approval of the Election Commission.

  • Formation of polling parties and appointment of Presiding Officer and Polling Officers for each polling station;

  • Imparting intensive training to the polling personnel (including those on reserve duty)

  • Building awareness about the use and working of Electronic Voting machine among the general public, political parties, candidates and media

  • Printing of postal ballot papers for service voters and their dispatch to the service voters

  • Scrutiny of accounts of election expenses of contesting candidates and submission of returns to the Commission

  • Safe custody of all voting machines, election papers and election materials after the completion of election and during the period specified for the purpose

Duties of Returning Officer

  • drawing up, well in advance, a programme and plan of detailed arrangements for the poll;

  • procurement of voting machines and all election materials in sufficient quantity

  • issue of public notice of election in Form 1 of the Conduct of Elections Rules, 1961 on the day on which the notification calling the election is issued

  • reception of nomination papers, security deposits, etc.

  • administration of oath or affirmation to candidates after they have filed their nomination papers

  • dissemination of information contained in the affidavits filed by the candidates

  • scrutiny of nomination paper

  • recording of reasons in brief for rejecting any nomination paper

  • receipt of notices for withdrawal of candidature

  • allotment of symbols to contesting candidates

  • preparation and publication of notice of nominations, list of validly nominated candidates and list of contesting candidates

  • assessing the requirements of (i) ballot papers for use in the balloting units of the voting machines (ii) postal ballot papers for service voters and voters on election duty, etc and (iii) tendered ballot papers and arranging the printing and supply thereof;

  • preparing the lists of classified service voters who have appointed proxy voters

  • establishing contact with the contesting candidates and political parties to ensure free, fair and smooth election

  • convening of meeting to discuss common problems relating to conduct of election, review of law and order situation, enforcement of code of conduct for political parties, etc;

  • preparation and commissioning of voting machines about one week in advance before the date of poll

  • transport arrangements for voting machines and election materials

  • dispatch of polling materials for the conduct of poll and supply of voting machines, tendered ballot papers

  • effective supervision of the poll

  • appointment of counting staff

  • transport and storage of voting machines after the poll, under strict security arrangements

  • fixing of date, time and place of counting and actual counting of votes

  • declaration of result

  • transportation of all voting machines, election papers and election materials after declaration of results, to the District Election Officer for safe custody

  • overall supervision of election work

 
 

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