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Part III Constituting Democracy, Ch.12 Elections

Aditya Sondhi

From: The Oxford Handbook of the Indian Constitution

Edited By: Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 October 2020

(p. 196) Chapter 12  Elections

I.  Introduction

Modern constitutional democracies, which establish democratic self-government as a core ideal, also establish a range of regulatory mechanisms to preserve this ideal.1 India is no exception. India’s constitutional framework contains an extraordinary regulatory regime that, on the one hand, is democracy enhancing, while on the other hand, impinges upon a whole set of other principles. This chapter provides an overview and account of this regime; and considers their operation and the extent to which they are justifiable. While the inner workings of free and fair elections are often governed by statutes and the field of ‘election law’, important questions are and have been the subject of constitutional debate and adjudication. Some of the topics explored in this chapter relate to specific mechanisms that constitutionalise democratic self-government. Examples include the recognition and nature of the right to vote and the existence of an independent body like the Election Commission to oversee the election process. Other topics are more carefully focused upon potential challenges to free and fair elections, such as challenges posed by money and the problem of campaign finance or challenges posed by certain forms of electoral speech. Together, these topics help us notice the complex legal web surrounding the abstract ideal of self-government and, to borrow a term from Richard Pildes, the ‘constitutionalization of democratic politics’ in India.2

II.  The Right to Vote

The Constitution of India does not explicitly mention the right to vote as a fundamental right. Article 326 of the Constitution, however, refers to elections to the House of the (p. 197) People and to State legislative assemblies as being based on adult suffrage. According to Article 326:

[E]very person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.3

A bare textual reading of this provision suggests that the right to vote is sourced from the Constitution, even if the right is not specifically guaranteed as a fundamental right under Part III of the Constitution. In fact, we might say that Article 326 presupposes the right to vote. Further, it mentions in broad terms the restrictions that might be placed upon the right, the details of which are explicated in the Representation of the People Act 1951 (hereinafter RP Act). Section 62 of the RP Act, while titled as the ‘Right to Vote’, is in fact couched in the negative and contains restrictions and limitations upon the exercise of franchise. It debars from voting those who are disqualified as per Section 16 of the RP Act or have otherwise voted in another constituency, or have been imprisoned. The section does not, by itself, recognise a right to vote for the citizens of India, lending strength to the suggestion that the right is implicit in Article 326 of the Constitution.

The status of the right to vote has been a matter of considerable constitutional debate. In NP Ponnuswami,4 which first discussed Article 329 of the Constitution dealing with the bar on the interference of courts in electoral matters, the Supreme Court held that the right to vote or stand as a candidate for election is ‘not a civil right’ but is ‘a creature of statute or special law and must be subject to the limitations imposed by it’.5 The Court further stated in Jumuna Prasad Mukhariya that Part III of the Constitution—that is, the fundamental rights chapter—had ‘no bearing on a right like this created by statute …’6 It seems that the Court was simply stating the obvious fact that Part III did not explicitly provide for the right to vote, and it was disinclined to say anything further about the implicit constitutional recognition of the right.

It was in Jyoti Basu that the Supreme Court noticed the tension in Indian electoral jurisprudence that the right to elect, ‘fundamental though it is to democracy’, is ‘anomalously enough, neither a fundamental right nor a common law right’.7 The Court was categorical in stating that ‘outside of statute, there is no right to elect, no right to be elected, and no right to dispute an election’.8 And being statutory creations, these rights were subject to statutory limitation. As such, the RP Act was regarded as a complete and self-contained code ‘within which must be found any rights claimed in relation to an election or an election dispute’.9 At this stage, this unequivocal statement characterised the position of law.

A shift regarding the right to vote occurred in People’s Union for Civil Liberties v Union of India (PUCL) .10 A writ petition was filed against the provisions of an ordinance (which later (p. 198) became an Act of Parliament) to amend the RP Act in order to dilute the reporting requirements established by the Supreme Court’s decision in Association for Democratic Reforms.11 A three-judge bench delivered three separate opinions, which all agreed on the fact that the newly inserted Section 33-B of the Act was unconstitutional, chiefly because it violated the voter’s right to know the antecedents of his candidate which had been established under Article 19(1)(a). However, the opinions differed on the status of the right to vote, with Reddi J holding that the right to vote ‘if not a fundamental right, is certainly a constitutional right’.12 It was only by virtue of the constitutional mandate that existed, Reddi J noted, that the right had been accordingly shaped by the RP Act. It was thus ‘not very accurate to describe it as a statutory right, pure and simple’.13 The Supreme Court’s previous decision in Jumuna Prasad Mukhariya, Reddi J observed, could be distinguished on the ground that it dealt with a contesting candidate’s rights and obligations and did not deal with or was not related to ‘the freedom of expression of the voter and the public in general in the context of elections’.14 MB Shah J’s opinion was categorical in regarding the right to vote as a statutory right.15 Reddi J’s view could not, however, entirely settle matters, for it did not receive complete support from Dharmadhikari J’s short concurring opinion. Dharmadhikari J’s opinion was caveated by the observation that the ‘freedom of a citizen to participate and choose a candidate at an election is distinct from exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act’.16 However, as Dam points out, this was somewhat muddied by the concluding lines of the opinion, which stated that he agreed with certain specific conclusions from both Reddi J’s and Shah J’s opinions: ‘Effectively, Judge Dharmadhikari has expressed the view that the right to vote is both a constitutional and statutory right, while each of the other two judges has held the right as either statutory or constitutional.’17

Thereafter, in Kuldip Nayar, the Supreme Court observed that even if one were to cast aside the view taken in NP Ponnuswami and proceed on the assumption that the right to vote is a constitutional right, expanding the view taken in PUCL, ‘there can be no denial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the statute’.18 While here the Court was, of course, dealing with elections to the Rajya Sabha, it is important to note that it did not fully endorse the view expressed by Reddi J in PUCL. In other words, as recently as 2006, the right to vote was not fully recognised as a constitutional right in India.

There have also been cases dealing with the unenumerated and implied rights that follow from the right to vote. The first is regarding the right to know the criminal antecedents of the candidate. The issue first gained traction with the 170th Report of the Law Commission of India. The Report recommended amending the RP Act in order to make it mandatory for candidates to submit a declaration of their (and their spouse’s and dependant relations’) assets and a declaration as to whether any criminal charges had been framed (p. 199) against them.19 A petition to implement these recommendations was filed before the Delhi High Court.20 The High Court duly instructed the Election Commission to collect information about assets, criminal offences, educational qualifications, and any other details which the Commission ‘considers necessary for judging the capacity and capability of the political party fielding the candidate …’21 On appeal, the Supreme Court, taking a cue from the High Court’s decision, cited cases such as Indian Express Newspapers v Union of India22 and Ministry of Information and Broadcasting v Cricket Association of Bengal,23 which had expanded the scope of freedom of speech and expression under Article 19(1)(a). This led the Court to ask:

If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter … to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a).24

Thus, ‘democracy cannot survive without free and fair election, without free and fairly informed voters’.25 Finally, the Court directed the Election Commission to issue an order under Article 324 requiring candidates for election to furnish information about: (1) details about past criminal charges; (2) details about any pending charge punishable with at least two years of imprisonment; (3) assets of themselves, their spouse, and their dependants; (4) details of liabilities, in particular those owed to the government or State-run institutions; (5) educational qualifications.26

The second case flowing from the implications of the right to vote was the decision of the Supreme Court in 2013, directing the Election Commission to provide for a ‘none-of-the-above’ option in electronic voting machines.27 It interpreted its previous decisions to hold that the Court had consistently desisted from recognising the right to vote as a constitutional right, and that ‘there is no contradiction as to the fact that right to vote is neither a fundamental right nor a constitutional right but a pure and simple statutory right’.28 It justified its decision, that citizens had a right to the ‘none-of-the-above’ option in elections, on the ground that this right emerged from the right to ‘freedom of voting’ contained within the right to free speech and expression guaranteed by Article 19(1)(a) of the Constitution. In other words, the Supreme Court drew a distinction between the ‘right to vote’ and the right to ‘freedom of voting’, the former being a mere statutory right, the latter being part of the constitutional right to free speech. This distinction has rightly been criticised; it is neither clear what purpose it serves nor how the expression of the right to vote is distinct from the right to vote.29 A far more suitable solution might simply have been for the Court to clearly (p. 200) acknowledge the right to vote as a constitutional right guaranteed naturally by Article 326 of the Constitution.

Democracy has been held to be part of the basic structure of the Constitution, and thereby immune from amendment.30 Curiously, however, the right to vote—the core expression of democratic rule—is yet to be recognised as a constitutional right. The status of the right to vote matters, quite simply, because it determines the ease or difficulty with which the boundaries of who can vote can be changed. The Supreme Court has been surprisingly accepting of the incongruity that exists in a constitutional framework where democracy is part of the basic structure, elections are conducted by an independent Election Commission that enjoys constitutional status under Article 324, court intervention is precluded by Article 329 of the Constitution, but the exercise of one’s franchise is given secondary legal status.

III.  The Election Commission

Article 324 of the Constitution recognises and establishes the Election Commission. The Commission is vested with the ‘superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President’.31 According to Article 324(5), ‘the Chief Election Commissioner (CEC) shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment’.32 Provisions such as this ensure the independence and status of the Commission and its members, isolating its operations from political interference and executive control.

In TN Seshan, the Supreme Court, while dealing with the removal of members of the Election Commission, held that:

[T]he scheme of Article 324 in this behalf is that after insulating the [Chief Election Commissioner] … by the first proviso to Clause (5), the Election Commissioners and the Regional Commissioners have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC.33

It was further clarified that the recommendation for removal must be based on ‘intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission’.34 That is so because this ‘privilege has been conferred on the CEC … ’ to ensure that the ECs ‘are not at the mercy of political or executive bosses of the day’.35 The Court further forewarned that if the power were to be exercisable by the CEC ‘as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under (p. 201) the threat of the CEC recommending their removal’.36 The CEC was described ultimately as ‘merely a functionary of [the Election Commission]’, an ‘alter ego of the Commission and no more’.37

As regards the powers of the Election Commission, the Supreme Court in Kanhiya Lal Omar construed the expression ‘superintendence, direction and control’ in Article 324 to include a specific or a general order, and mandated that such power is to be ‘construed liberally so that the object for which the power is granted is effectively achieved’.38 Thereby, the Commission was not circumscribed in the exercise of its powers and could issue executive orders as may be required in the discharge of its functions. In Mohinder Singh Gill,39 a constitutional bench of the Supreme Court took its cue from Kanhiya Lal while considering whether the Election Commission had the power to cancel an election and direct repolling. The Court observed that Article 324 operated in an ‘area left unoccupied by legislation … ’ and the words in the provision were ‘the broadest [of] terms …’40 The Court further held that the provision is ‘wide enough to supplement the powers under the Act … ’ but subject to the several conditions on its exercise as set out in the law.41 As a result, and as explained in Association for Democratic Reforms, Article 324 operates in areas ‘left unoccupied by legislation’ and where ‘the words “superintendence, direction and control” as well as “conduct of all elections” are the broadest terms’.42 Therefore, ‘the Commission can cope with a situation where the field is unoccupied by issuing necessary orders’.43

In Common Cause—a judgment that dealt with election expenses incurred by political parties and submission of return and the scope of Article 324 of the Constitution—the Court held that the integrity of elections was fundamental to democratic government and the Election Commission can ask candidates about the expenditure incurred by them and by a political party.44 The Court noted, with visible anguish, that thousands of crores of expenses towards an election remained unaccounted for, marking a ‘naked display of black money … ’45 Accordingly, the Court held that the Election Commission’s powers over the electoral process included ‘the scrutiny of all expenses incurred by a political party, a candidate or any other association of body of persons or by any individual in the course of the election’.46

In the exercise of its functions, the Commission also frames a ‘Model Code of Conduct’ to be observed by the candidates and parties during elections. However, the Code does not trace itself to any constitutional provision and is less a legally enforceable charter and more a set of behavioural guidelines for electoral candidates. Its efficacy is nonetheless substantial, considering the demands from various political quarters to ‘review’ the Model Code.47 As pointed to by Singh, the Code, which came into existence before the Kerala Assembly (p. 202) Elections in 1960, was initially the product of a mutual political consensus, with the Election Commission limited to ‘eliciting consent from political parties … encouraging them to comply with norms, which the political parties had themselves evolved and resolved to follow’.48 However, beginning with the 1980s and especially after the consolidation of the Election Commission’s powers under Article 324 in the 1990s, there has been a ‘reluctance of the Election Commission to push forcefully for a legislated Model Code’.49 Singh suggests that this is due to the possibility that ‘a statutory Model Code would open up the space of executive action on which the Election Commission hitherto had exclusive control, to be occupied by a statute, whose form and content would be controlled by the Parliament … ’50 In practice, the Election Commission enforcement of the Model Code has taken two forms. The first is the use of paragraph 16A of the Election Symbols Order 1968, which allows the Commission to suspend or withdraw the recognition of a political party found to be violating the Model Code. The second is directing the relevant district administrations to file cases ‘for the breach of specific provisions of the Model Code, which were also punishable offences under the [Indian Penal Code] … ’51

A recent decision of the Supreme Court, S Subramaniam Balaji v State of Tamil Nadu,52 suggests future possibilities for the enforcement and evolution of the Code. A petition was filed against the practice followed by several parties in the State of Tamil Nadu of announcing gifts for voters in their respective election manifestos. The Court reluctantly admitted it could not intervene and dismissed the argument of such promises amounting to ‘corrupt practices’ under Section 123 of the Representation of People Act 1951. However, at the end of the judgment, the Court noted that ‘the Election Commission, in order to ensure a level playing field … in elections and also in order to see that the purity of the election process does not get vitiated, [h]as in the past been issuing instruction under the Model Code of Conduct’.53 Noting that there was ‘no enactment that directly governs the contents of the election manifesto … ’ the Court directed the Commission to frame guidelines for this purpose, suggesting that ‘a separate head for guidelines for the election manifesto released by a political party can also be included in the Model Code of Conduct … ’54 Interestingly, the Court acknowledged that ‘strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the [election] date. Nevertheless, an exception can be made in this regard as the purpose of the election manifesto is directly associated with the election process.’55 General guidelines based on these directions have been duly added by the Election Commission.56

The lacuna in the framework governing the exercise of powers by the Commission extends to political parties. The Constitution did not actually mention political parties until the Fifty-second Amendment in 1985 (which inserted the Tenth Schedule) and it was only the Election Symbols (Reservation and Allotment) Order 1968 that defined the term. In 1989, the RP Act 1951 was amended by the insertion of Part IV-A, entitled ‘Registration of Political Parties’. The absence of any constitutional provision providing for (p. 203) their establishment, role, and regulation, makes one of the key constituents of the Indian electoral process an ad hoc player.

In Indian National Congress (I) v Institute of Social Welfare,57 the Court considered whether the Election Commission had the power to deregister a political party under Section 29A of the RP Act. The Court found no express power conferred on the Commission under Section 29A to deregister a political party. Moreover, it clarified that the nature of the power of registration exercised under Section 29A was ‘quasi-judicial’, and since no power of review had been conferred on the Commission, it had no power to review its orders of registration.58

The Symbols Order itself has been quite controversial, and has been litigated before the Supreme Court several times. The first, and most important, challenge was in Sadiq Ali v Election Commission of India.59 The Commission had to decide between rival claims made by two factions of the Congress Party, and passed an order under paragraph 15 of the Symbols Order. The power of the Commission under paragraph 15 was challenged as being ultra vires the powers conferred on it by the Constitution. Repelling the challenge, the Court traced the power under paragraph 15 to Article 324 of the Constitution, and argued that ‘The fact that the power of resolving a dispute between two rival groups … has been vested in such a high authority would raise a presumption … that the power would not be misused but would be exercised in a fair and reasonable manner.’60

In Kanhiya Lal Omar v RK Trivedi,61 the petitioners challenged the overall validity of the Symbols Order, arguing that it was legislative in character and beyond the power of the Election Commission under Article 324. Citing its earlier decision, including Sadiq Ali, the Court asserted that even if any of the provisions of the Symbols Order could not be traced to the RP Act 1951, ‘the power of the Commission under Article 324(1) of the Constitution which is plenary in character can encompass all such provisions’.62

In Desiya Murpokku Dravida Kazhagam v Election Commission of India,63 the petitioners challenged the constitutional validity of an amendment to the Symbols Order in 2000. The amendment mandated that in order to be recognised as a State party in a State, a party would have to secure at least 6 per cent of the total valid votes polled in the State and would also have to return at least two members to the Legislative Assembly. The petitioners contended that the Symbols Order was ‘only a compilation of general directions, and not … law’, and thereby violated Articles 19(1)(a) and 19(2) of the Constitution.64 The Court dismissed the petitions, simply stating that the ‘Election Commission has set down a benchmark which is not unreasonable … a party has to prove itself and to establish its credibility as a serious player in the political arena of the State’.65(p. 204)

The ‘private’ status of the political parties enabled them to come together after the judgment of the Central Information Commission in SC Agarwar v INC, which made political parties amenable to the Right to Information Act 2005.66 The swiftly moved Right to Information (Amendment) Bill 2013,67 which aimed at insulating political parties from the Right to Information Act, betrayed the pernicious consequences of having these parties exist outside a legal (constitutional) frame. The peculiar position that emerges is that while the prime ombudsman and organiser of elections occupies an elevated, constitutional status, neither those voting nor political parties find much space within the constitutional framework.

IV.  Elections: Regulating Inputs

The regulation of elections can take place at multiple levels. The most preliminary stage of regulation is one relating to the preparation of the electoral roll. In Lakshmi Charan Sen v AKN Hassan Uzzaman,68 a constitutional bench of the Supreme Court considered alleged irregularities in the preparation of electoral rolls in the State of West Bengal. The petitioners argued that until their objections were disposed of, the elections to the Legislative Assembly could not be carried out on the basis of the new, revised rolls. Chandrachud CJ, writing for the majority (Islam J dissented), declined to hold up elections in all 294 constituencies of West Bengal, though electoral rolls were not prepared in accordance with law for two constituencies, as no case had been made out that no election could be held in any of the 294 constituencies. One of the questions that the Court had to address was whether it was barred by Article 329(b) from hearing such a challenge. The majority, without categorically addressing the issue, suggested that it would ‘be difficult … ’ to hold that the preparation and revision of electoral rolls was a part of ‘election’ under Article 329(b).69 Subsequently, in Indrajit Barua v Election Commission of India,70 the Supreme Court took the view that:

[O]nce the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Representation of the People Act, 1951.71

The proviso added to Section 22(2) of the Representation of the People Act 1950 requires the Electoral Registration Officer to give the person concerned a reasonable opportunity of being heard before amending any entry in the electoral roll on the ground that the entry is defective, he has ceased to be ordinarily resident, or is otherwise not entitled to be registered (p. 205) in that roll. The Court went on the hold in Indrajit Barua that the proviso is intended to extend cover to the electoral rolls in eventualities which otherwise might have interfered with the smooth working of the programme.

On matters of such inquiry, in Lal Babu Hussein v Electoral Registration Officer, the Court issued exhaustive guidelines to be followed by the Electoral Registration Officer, one of which merits full reference:

If any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceedings …72

This process attaches greater importance when the citizenship of the voter in question can have a bearing on her ultimate right to contest an election as an Indian citizen and possibly become its Prime Minister (as was the potential case with Sonia Gandhi). The Supreme Court is to be commended for straitjacketing the method of inquiry to be followed by electoral officers—not merely in terms of adherence to the principles of natural justice but also as to the significance of the exercise, by ‘[bearing] in mind the provisions of the Constitution and the Citizenship Act … and all related provisions bearing on the question of citizenship and then pass an appropriate speaking order … ’73 This is all the more relevant as no statutory appeal is provided and the normal recourse would be the filing of a writ petition, where evidence is not ordinarily led or re-evaluated.

Another important issue is the timing of elections. Sections 14 and 15 of the RP Act provide that the President or Governor shall fix the date for holding elections on the recommendation of the Election Commission. Therefore, the fixing of the schedule for elections for the House of People, a Legislative Assembly, belongs to the Election Commission. Of course, the election process for electing a new legislature should commence immediately upon the dissolution of the assembly, after updating the rolls. In Digvijay Mote v Union of India,74 the Supreme Court rejected prayers seeking a declaration that elections held during violent periods in disturbed areas were void, and for a stay on future action pursuant thereto. Though not dealing with the timing of elections per se, the judgment restated the law on the powers of the Election Commission under Article 324 by holding ‘ … that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations’.75

In Re Special Reference No 1 of 2002,76 it was reiterated that as far as the framing of the schedule or calendar for election of the Legislative Assembly was concerned, the same was within the ‘exclusive domain of the Election Commission, which is not subject to any law framed by the Parliament’ and that ‘the plenary powers of the Election Commission cannot be taken away by law framed by Parliament’. Any such law, if made, ‘would be repugnant to Article 324’.77 The Court noted that while there could be situations in which the Commission might not be able to hold elections because of natural calamities, the institution had ‘ample powers’ to ‘coordinate all actions with the help of various (p. 206) departments of the government including military and paramilitary forces’.78 Here, it is to be noted that the members of the military and paramilitary on duty during the elections themselves are constrained not to vote as they are away from their constituencies. This merits correction. In the case of soldiers stationed in peace stations, the Supreme Court has recently recognised their right to be registered as voters.79 This is a noteworthy step in the right direction.

The final topic, one already briefly touched upon, regarding the various ex ante electoral regulations are political parties. Vide the Fifty-second Amendment to the Constitution in 1985, ‘Political Parties’ were referred to in the Constitution for the first time. This reference was in Schedule X, which focused specifically on the problem of defection. Until then, political parties had been defined toin Election Symbols (Reservation and Allotment) Order 1968, as ‘an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951’.80 In Kanhiya Lal Omar,81 wherein the validity of the Order was challenged, the Supreme Court did not accede to the argument that the Union government which had been delegated the power to make rules under Section 169 of the RP Act could not further delegate the power to make any subordinate legislation in the form of the Symbols Order to the Commission. The Court held that any part of the Symbols Order which cannot be traced to Rules 5 and 10 of the Rules could ‘easily be traced to the reservoir of power under Article 324(1), which empowers the Commission to issue all directions necessary for the purpose of conducting free and fair elections’.82 Before ending the judgment, the Court made the following observation:

We are not satisfied with the submission that the several evils, malpractices etc. which are alleged to be existing amongst the political parties today are due to the Symbols Order which recognises political parties and provides for their registration etc. The reasons for the existence of such evils, malpractices etc. are to be found elsewhere. The surer remedy for getting rid of those evils, malpractices etc. is to appeal to the conscience of the nation.83

Although the Court was right in noting that electoral corruption and malpractices were not a function of the Symbols Order, the sheer lack of constitutional or legal regulation of political parties has meant that they function entirely on their own terms.

V.  Elections: Process

A second stage at which elections might be regulated is during their process. The two most important regulatory mechanisms at this stage are the regulation of electoral speech and the regulation of money (ie, campaign finance).(p. 207)

As Samuel Issacharoff’s work has shown, democratic countries employ a range of techniques to deal with anti-democratic and intolerant political parties.84 In India the principal means of democratic self-preservation is neither the banning of parties nor the imposition of criminal sanctions, but instead restrictions on electoral speech.85 The most significant Indian case in this regard is Dr Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte.86 Here, the Supreme Court considered an appeal from a judgment of the Bombay High Court which had set aside the election of a candidate on the ground that he had violated Sections 123(3) and 123(3-A) of the RP Act. These provisions prohibit, inter alia, appeals to religion and the incitement of religious hatred for electoral gain, respectively.

The appellant’s contentions included the claim that any restricted speech must have an adverse impact upon public order. It was argued that only this could reconcile the restriction with the free speech guarantee and the explicit exceptions to that guarantee outlined in Article 19 of the Constitution. Rejecting this contention, the Supreme Court found nothing in sub-section (3) to warrant that the appeal would affect public order. While Section 123(3-A) incorporated a public order condition, in the case of Section 123(3) the act would be complete the moment a religious appeal was made, for the ‘purpose of enacting the provision is to ensure that no candidate at an election gets votes only because of his religion and no candidate is denied any votes on the ground of his religion’.87 This purpose, the Court noted, was ‘in keeping with the secular character of the Indian polity and rejection of the scheme of separate electorates based on religion in our constitutional scheme’.88 The impugned provision was constitutional because it could be saved by a different exception in Article 19(2): decency. Rejecting the argument that this head was limited to sexual morality, a restriction in furtherance of the constitutional commitment to secularism was permissible for it aimed at ‘maintaining the standard of behaviour required in conformity with the decency and propriety of the societal norms’.89

Given that the Indian Constitution also guaranteed the freedom of religion, the Court clarified that the mentioning of religion per se was not prohibited. What was impermissible was ‘an appeal to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion’.90 It was in this context that the Court noted that a reference to Hindutva or Hinduism will not, in and of itself, be a corrupt practice under Section 123 of the RP Act.91 In this particular instance, the speeches focused on the supremacy of Hindus, and made clear attacks upon the Muslim community. Surveying various speeches and statements, the Court found them to be corrupt practices under Section 123 of the RP Act. One speech in particular was characterised by the Court as making ‘derogatory reference to Muslims’ and ‘amounted to’, the Court felt, ‘an attempt to promote feelings of enmity or hatred between the Hindus and the Muslims on the ground of religion’.92(p. 208)

Indian electoral speech regulation has taken a less harsh approach than the banning of parties and the like, which has been adopted in some other nations. There have, however, been calls for a more stringent approach. In a recent case, Pravasi Bhalai Sangathan v Union of India,93 the Supreme Court considered a petition against hate speeches, especially by political parties and leaders. Rejecting the petition, the Court noted that India’s statutory framework was sufficient to deal with the problem of hate speech and no further judicial intervention was required. It did, however, suggest that the Law Commission consider whether the Election Commission should be empowered to deal with the problem of hate speech even outside of the election period.94 Currently, as the Court noted, the Election Commission has only acted during the subsistence of the Model Code of Conduct. In considering whether the Indian approach is the best one to address the problem of undemocratic behaviour, one might also examine what view the approach takes of the voter. As Issacharoff points out, ‘the Indian approach, while committed to maintaining public order during a heated election, exposes uncertainty about voters’ motivations in exercising the franchise’.95 There is a fear that voters need to be taken care of, a fear that the exposure to certain forms of speech will disable them.

The second major type of regulation during elections is restrictions upon the use and management of funds. Campaign finance has proven to be a problem that defies solution in a range of jurisdictions, and India is no exception.96 There are a number of statutory provisions that relate to campaign finance. These include Sections 29B, 29C, and 77 of the RP Act; Section 293A of the Companies Act 1956; and Section 13A of the Income Tax Act 1961. Section 77 of the RP Act mandates the maintenance of election expenses by the candidate, and was amended following the ruling in Kanwar Lal Gupta v Amar Nath Chawla.97 Sections 29B, 29C, and 29D, allowing the receipt and declaration of donations by political parties, were inserted by the Election and Other Related Laws (Amendment) Act in 2003. This Amendment also made contributions to political parties fully tax-deductible under Sections 80 GGB and 80 GGC of the Income Tax Act. Section 13A of the Income Tax Act also mandates that political parties only need to maintain a record of donations in excess of Rs 20,000. Finally, Section 293A of the Companies Act 1956 (and Section 182 of the Companies Act 2013) allows companies to donate to political parties, subject to the limits described in the section.

In Common Cause v Union of India,98 the Court heard a public-interest litigation petition under Article 32, alleging that there was widespread flouting of the reporting requirements mandated by Section 77 of the Representation of People Act, Section 293A of the Companies Act, and Section 13A of the Income Tax Act. Coming down hard on the lack of compliance, the Court directed an investigation against the responsible parties, and importantly, interpreted Explanation 1 to Section 77 by shifting the burden of proof to the candidate to ‘prove that the said expenditure was in fact incurred by the political party and not by him’.99 This decision, according to Gowda and Sridharan, helped ‘[bring] about a degree of transparency in party finance’ by forcing parties to declare incomes and submit audited accounts.100

(p. 209) VI.  Elections: Outcomes

The third level of regulation is at the outcome and verdict stage. As per Article 329 of the Constitution:

  1. (a)  the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

  2. (b)  No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.101

The task of delimitation is to be performed after each new census, according to Article 82 of the Constitution. The statute that currently governs this task is the Delimitation Act 2002. In Meghraj Kothari v Delimitation Commission,102 the Supreme Court was asked to clarify the exact nature of the bar in Article 329(a). The Court was asked to quash a notification issued under the then applicable statute, the Delimitation Commission Act 1962. The bar under Article 329(a) was argued to be inapplicable on the ground that the notification was not ‘law’ and was not enacted under Article 327. Regarding the first contention, the Court examined the provisions of the Delimitation Commission Act. In particular, it noted Section 10(2), which provided that orders made by the Delimitation Commission under Sections 8 and 9 were ‘to have the force of law and shall not be called in question in any court’.103 This showed that the intention of Parliament was that the orders passed by the Commission ‘were to be treated as having the binding force of law and not mere administrative directions’.104 In response, the appellant referred to Sangram Singh v Election Tribunal, Kotah,105 where the Court had rejected the contention that Section 105 of the RP Act placed the order of an election tribunal beyond the jurisdiction of the High Courts or Supreme Court. However, the Court in Meghraj Kothari noted that delimitation was a special case since there was a constitutional bar under Article 329(a). Therefore, it was not the statutory expression ‘shall not be called in question in any court’ that barred the Court’s jurisdiction, but the fact that it was treated as a law under Article 327, thereby gaining the protection of Article 329(a).106

Regarding the second contention, the Court pointed out that Article 82 ‘merely envisaged that readjustment might be necessary after each census and that the same should be effected by Parliament as it may deem fit … ’,107 but it was Article 327 that ‘[gave] power to Parliament to make elaborate provisions for such readjustment including delimitation of constituencies …’108 On this basis, the Court dismissed the appeal.(p. 210)

In Election Commission of India v Mohd Abdul Ghani,109 the Supreme Court was required to consider an anomalous situation where certain villages on the west bank of the Ganga came to be located on the east bank due to a change in the course of the river. The State government had changed the district to which the villages belonged, but they were still treated as belonging to their old constituency for electoral purposes. The respondents, who were residents of the villages, claimed that this cast a duty on the Election Commission to change their parliamentary constituency by virtue of its power under Section 9(1)(b) of the Representation of the People Act 1950. The High Court had issued a writ of mandamus directing the Election Commission to make the relevant changes to effect the shift of the villages to the parliamentary constituency on the east bank. The specific statutory provisions in dispute in this case were Section 9(1)(b) of the Representation of the People Act 1950 and Section 11(1)(b) of the Delimitation Act 1972. Both sections dealt with the power of the Election Commission to update Delimitation Orders that had been passed by the Delimitation Commission. Importantly, however, as the Supreme Court (through Verma J) pointed out, both sections were identical, except for one addition in Section 11(1)(b): ‘so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification’. This, the Court pointed out, meant that there was ‘a specific restriction against any alteration or change in the boundaries or area or extent of any constituency as shown in the Delimitation Order … ’110 Setting aside the decision of the High Court, Verma J noted that the task to be performed by the Election Commission was:

[T]o merely update the Delimitation Order by making the necessary changes on account of subsequent events to correct the description in the Delimitation Order which has become inappropriate … [this] cannot extend to alteration of the boundaries or area or extent of any constituency as shown in the Delimitation Order.111

On the relationship between the conduct of elections and delimitation, the Andhra Pradesh High Court has held that the ‘constitutional requirement … ’ to ‘conduct of elections to the House of the People and the State Legislative Assemblies as and when they are due … ’ cannot be withheld or postponed on the ground that the Delimitation Commission has not undertaken the task of delimitation and readjustment of territorial constituencies.112 This is expressly clear from the Forty-second Constitutional Amendment, which inserted provisos into Articles 82 and 170(3) providing that election to the Lok Sabha and State Legislative Assemblies need not await delimitation of constituencies after each census.

The second part of Article 329 deals with election disputes. It is also important to take note of Chapter VI of the RP Act, which provides, in some detail, the method of dealing with election disputes, and the filing and trial of election petitions. In Tukaram S Dighole v Manikrao Shivaji Kokate,113 the Supreme Court outlined the principles to be kept in view while dealing with election petitions and appeals arising therefrom. The appellant in this case had filed an election petition against the respondent, alleging that the latter had violated Section 123(3) of the RP Act by appealing to voters to vote on communal grounds. The Court noted that charges of corrupt practices under the Act were ‘equated with a criminal (p. 211) charge … ’ and had a higher standard of proof, that of being beyond reasonable doubt.114 The justification for this higher standard was the ‘serious prejudice … likely to be caused to the successful candidate … ’ who would have his election set aside and could potentially also incur a disqualification from future elections.115

The Court also referred to Jeet Mohinder Singh v Harminder Singh Jassi,116 where the Court had summarised several principles applicable to such cases. The first was that an election was not to be ‘lightly interfered with’,117 since it entailed consequences both for the affected candidate and for the public at large due to the use of public funds and administrative machinery. The second was the ‘quasi-criminal’ nature of the charge of corrupt practice, as elaborated in Tukaram S Dighole.

VII.  Conclusion

India’s constitutional framework has an elaborate set of mechanisms that govern and control the electoral process. This chapter has sought to provide an account of some of these mechanisms, especially those that travel beyond the domain of election law and raise constitutional questions and concerns. Some aspects of India’s electoral framework, most notably the independent Election Commission, have by and large served the nation well. The practice of free and fair elections is widely regarded as one of the major achievements of the modern Indian State. Some other regulatory aspects, such as campaign finance, present a far less promising picture, and one that does not show any signs of immediate improvement.

This field of law is likely to remain one of intense contestation, with future debates arising on questions that might well differ from those covered in this chapter. A recent controversial ordinance, amending the Rajasthan Panchayati Raj Act 1994, passed by the State of Rajasthan provides an example. The ordinance imposes educational qualifications on those standing for local government elections.118 The constitutionality of the ordinance is currently being considered by the judiciary, and while the measure might appear to be undemocratic, precedent on this question is not conclusive. In Javed v State of Haryana, the Supreme Court upheld provisions of the Haryana Panchayati Raj Act 1994, which barred anyone having more than two living children from holding particular offices at the local government level.119 With regard to the primary question of who has a right to stand for office, the Court observed as follows:

Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, (p. 212) a right to contest election for an office in Panchayat may be said to be a constitutional right—a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.120

The Court surveyed past cases permitting restrictions upon the holding of office, without saying very much about what distinguished a permissible restriction from an impermissible one. It simply noted that the ‘disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability’.121 Such reasoning fits into the larger dichotomous pattern which this chapter has explored—where, on the one hand, institutions like the Election Commission are given importance and the electoral process is granted paramount status; and, on the other hand, cases involving the right to vote or, as we see with Javed, the right to contest elections, invite lesser judicial scrutiny. The way legal developments on questions of elections, like the ordinance notified by the State of Rajasthan, unfold will—more than many other areas of constitutional law—shape the unfolding of Indian democracy.

Footnotes:

*  I am grateful to Arjun Rao for valuable research assistance.

1  See Richard H Pildes, ‘Elections’ in Michel Rosenfeld and András Sajó (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 529; Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press 2015).

2  Richard Pildes, ‘Foreword: The Constitutionalization of Democratic Politics’ (2004) 118 Harvard Law Review 29.

3  Constitution of India 1950, art 326 (emphasis added).

4  NP Ponnuswami v Returning Officer AIR 1952 SC 64.

5  NP Ponnuswami (n 4) [19].

6  Jumuna Prasad Mukhariya AIR 1954 SC 686 [5].

7  Jyoti Basu v Debi Ghosal (1982) 1 SCC 691 [8].

8  Jyoti Basu (n 7) [8].

9  Jyoti Basu (n 7) [8].

10  (2003) 4 SCC 399. See also Shubhankar Dam, ‘People’s Union for Civil Liberties v Union of India: Is Indian Democracy Dependent on a Statute?’ (2004) Public Law 704.

11  Union of India v Association for Democratic Reforms (2002) 5 SCC 294.

12  People’s Union for Civil Liberties (n 10) [97].

13  People’s Union for Civil Liberties (n 10) [97].

14  People’s Union for Civil Liberties (n 10) [98].

15  People’s Union for Civil Liberties (n 10) [57].

16  People’s Union for Civil Liberties (n 10) [127].

17  Dam (n 10) [710].

18  Kuldip Nayar v Union of India (2006) 7 SCC 1 [460].

19  Law Commission of India, Reform of the Electoral Laws (Law Com No 170, 1999) <http://www.lawcommissionofindia.nic.in/lc170.htm>, accessed October 2015.

20  Association for Democratic Reforms v Union of India (2001) 57 DRJ 82 (DB).

21  Association for Democratic Reforms (n 20) 97.

22  (1985) 1 SCC 641.

23  (1995) 2 SCC 161.

24  Association for Democratic Reforms (n 11) [38].

25  Association for Democratic Reforms (n 11) [38].

26  Association for Democratic Reforms (n 11) [48].

27  People’s Union for Civil Liberties v Union of India (2013) 10 SCC 1.

28  People’s Union for Civil Liberties (n 27) [25].

29  Madhav Khosla, ‘Hot Button’ (The Caravan, 1 November 2013) <http://www.caravanmagazine.in/perspectives/hot-button>, accessed October 2015.

30  SR Bommai v Union of India (1994) 3 SCC 1.

31  Constitution of India 1950, art 324.

32  Constitution of India 1950, art 324(5).

33  TN Seshan, Chief Election Commissioner v Union of India (1995) 4 SCC 611 [11].

34  TN Seshan (n 33) [11].

35  TN Seshan (n 33) [11].

36  TN Seshan (n 33) [11].

37  TN Seshan (n 33) [19].

38  Kanhiya Lal Omar v RK Trivedi (1985) 4 SCC 628 [17].

39  Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405.

40  Mohinder Singh Gill (n 39) [39].

41  Mohinder Singh Gill (n 39) [41].

42  Association for Democratic Reforms (n 11) [26].

43  Association for Democratic Reforms (n 11) [26].

44  Common Cause v Union of India (1996) 2 SCC 752.

45  Common Cause (n 44) [18].

46  Common Cause (n 44) [26].

47  Ujjwal Kumar Singh, ‘Between Moral Force and Supplementary Legality: A Model Code of Conduct and the Election Commission of India’ (2012) 11(2) Election Law Journal 149.

48  Singh (n 47) 152.

49  Singh (n 47) 159.

50  Singh (n 47) 159.

51  Singh (n 47) 161.

52  (2013) 9 SCC 659.

53  S Subramaniam Balaji (n 52) [86].

54  S Subramaniam Balaji (n 52) [87].

55  S Subramaniam Balaji (n 52) [87].

56  See Election Commission of India, ‘Model Code of Conduct for the Guidance of Political Parties and Candidates’ <http://eci.nic.in/eci_main/MCC-ENGLISH_28022014.pdf>, accessed October 2015.

57  (2002) 5 SCC 685.

58  Indian National Congress (n 57) [41]. However, the Court admitted that there were three possible exceptions to this rule: (1) where a party obtained its registration through fraud; (2) where a party itself intimated to the Commission that it had ceased to comply with the requirements of s 29A(5); (3) any similar ground which does not call for an inquiry by the Commission.

59  (1972) 4 SCC 664. See also All Party Hill-Leaders’ Conference v Captain WA Sangma (1977) 4 SCC 161; Roop Lal Sathi v Nachhattar Singh Gill (1982) 3 SCC 487; Subramanian Swamy v Election Commission of India (2008) 14 SCC 318.

60  Sadiq Ali (n 59) [40].

61  Kanhiya Lal Omar (n 38).

62  Kanhiya Lal Omar (n 38) [16].

63  (2012) 7 SCC 340.

64  Desiya Murpokku Dravida Kazhagam (n 63) [31].

65  Desiya Murpokku Dravida Kazhagam (n 63) [53].

66  Subhash Chandra Agrawal v Indian National Congress CIC/SM/C/2011/001386: CIC/SM/C/2011/000838.

67  The Statement of Objects and Reasons of the Bill justifies its introduction on the basis that there are already provisions in the Representation of People Act 1951 as well as in the Income Tax Act 1961 which deal with transparency in the financial matters of political parties and their candidates and that declaring a political party as public authority under the RTI Act would hamper its internal functioning and could be misused by political rivals. The Bill is yet to be passed.

68  (1985) 4 SCC 689.

69  Lakshmi Charan Sen (n 68) [28].

70  (1985) 4 SCC 722.

71  Indrajit Barua (n 70) [3].

72  (1995) 3 SCC 100 [13].

73  Lal Babu Hussein (n 72) [13].

74  (1993) 4 SCC 175.

75  Digvijay Mote (n 74) [12].

76  (2002) 8 SCC 237.

77  Re Special Reference No 1 of 2002 (n 76) [80].

78  Re Special Reference No 1 of 2002 (n 76) [105].

79  Neela Gokhale v Union of India Writ Petition (Civil) No 1005/2013, order dated 24 March 2014.

80  Election Symbols (Reservation and Allotment) Order 1968 para 2(h).

81  Kanhiya Lal Omar (n 38).

82  Kanhiya Lal Omar (n 38) [17].

83  Kanhiya Lal Omar (n 38) [18].

84  Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1405.

85  Issacharoff (n 84).

86  (1996) 1 SCC 130.

87  Dr Ramesh Yeshwant Prabhoo (n 86) [13].

88  Dr Ramesh Yeshwant Prabhoo (n 86) [13]. One of the decisions relied upon by the Court, to emphasise the importance of Section 123 and of secular values, was Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra (1976) 2 SCC 17.

89  Dr Ramesh Yeshwant Prabhoo (n 86) [30].

90  Dr Ramesh Yeshwant Prabhoo (n 86) [18].

91  Dr Ramesh Yeshwant Prabhoo (n 86) [44].

92  Dr Ramesh Yeshwant Prabhoo (n 86) [59].

93  (2014) 11 SCC 477.

94  Pravasi Bhalai Sangathan (n 93) [29].

95  Issacharoff (n 84) 1428.

96  MV Rajeev Gowda and E Sridharan, ‘Reforming India’s Party Financing and Election Expenditure Laws’ (2012) 11(2) Election Law Journal 226.

97  (1975) 3 SCC 646.

98  Common Cause (n 44).

99  Common Cause (n 44) [23].

100  Gowda and Sridharan (n 96) 228.

101  Constitution of India 1950, art 329.

102  AIR 1967 SC 669.

103  The Delimitation Commission Act 1962, s 10(2).

104  Meghraj Kothari (n 102) [11].

105  AIR 1955 SC 425.

106  Meghraj Kothari (n 102) [16].

107  Meghraj Kothari (n 102) [12].

108  Meghraj Kothari (n 102) [9].

109  (1995) 6 SCC 721.

110  Mohd Abdul Ghani (n 109) [8].

111  Mohd Abdul Ghani (n 109) [10].

112  AP Scheduled Castes Welfare Association, Hyderabad v Union of India AIR 2004 AP 381 [26].

113  (2010) 4 SCC 329.

114  Tukaram S Dighole (n 113) [12].

115  Tukaram S Dighole (n 113) [12].

116  (1999) 9 SCC 386. See also Jagan Nath v Jaswant Singh AIR 1954 SC 210; Razik Ram v Jaswant Singh Chouhan (1975) 4 SCC 769; Gajanan Krishnaji Bapat v Dattaji Raghobaji Meghe (1995) 5 SCC 347.

117  Jeet Mohinder Singh (n 116) [40].

118  See ‘Sweta Dutta, Rajasthan Governor fixes minimum education qualifications for Panchayat polls’ (The Indian Express, 22 December 2014) <http://indianexpress.com/article/india/india-others/rajasthan-governor-fixes-minimum-education-qualifications-for-panchayat-polls/>, accessed October 2015.

119  (2003) 8 SCC 369.

120  Javed (n 119) [22].

121  Javed (n 119) [25].