- The holding of free and fair elections is the sine-qua-non of democracy. To ensure the conduct of elections in free, fair and in an impartial manner, the constitution-makers incorporated Part XV (Articles 324-329) in the constitution and empowered Parliament to make laws to regulate the electoral process.
- The Election Commission of India (ECI) is the watchdog of free and fair elections in the country and Article 324 of the Constitution provides for its establishment.
- Election Commission of India (ECI): The ECI as an independent constitutional authority was therefore brought into force from November 26th, 1949.
- In this context, the Parliament has enacted the Representation of the People Act (RPA), 1950 and Representation of the People Act,1951.
Representation of People Act, 1950
- Article 324 envisages the provision of the Election Commission of India. Article 324 empowers the Election Commission of India to issue rules and guidelines for conducting elections of Parliament, President, Vice President and State Legislature Assemblies in the country.
- Article 327 of the Indian Constitution empowers the Parliament to make law with respect to all matters relating to elections to either House of Parliament or to the House or either House of the Legislature of a State. The Parliament has made the following laws under this article:
- Representation of the People Act of 1950.
- Representation of the People Act of 1951.
- Delimitation Commission Act of 1952.
- Delimitation: For the purpose of first general elections to the Lok Sabha and Vidhan Sabhas, the first delimitation order was issued by the President, in consultation with ECI and with the approval of Parliament in August 1951.
- Article 328 empowers the Legislature of a State to make provision with respect to elections to such Legislature subject to the provisions of the Constitution and any law in that respect made by the parliament (Similar to article 327, with an added restriction under any law made by parliament with that respect).
- Article 329 prevents any interference by courts in electoral matters. It provides that the validity of any law made under
- Article 327 or 328, like delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any court. Petition to any dispute regarding election to the parliament or to assembly shall be made in manner and to authority as sanctioned by some law made by an appropriate legislature.
- The Act also sought to give the President the authority to delimit the various constituencies for the purpose of elections to fill seats in the House of People, Legislative Assemblies, and Legislative Councils of States, after consultation with the Election Commission.
- The Act also provided for the registration of electors for Parliamentary Constituencies, Assembly Constituencies, and Council Constituencies, as well as the qualifications and disqualifications for such registration.
- It provides for 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.
- All the seats in the House of the People shall be filled by the persons chosen by direct election from parliamentary constituencies in the States.
- Every parliamentary constituency shall be a single member constituency .
Electoral Rolls for Parliamentary Constituencies
- Electoral roll for every parliamentary constituency, except Union territory without its own assembly, shall be sum total of all the electoral rolls of assembly constituencies inside that parliamentary constituencies.
- The 1950 Act permits the registration of persons in electoral rolls who are ordinarily resident in a constituency and persons holding:
- Service qualification such as a member of armed forces, member of the armed police force of a state, serving outside the state, or central government employees posted outside India.
- Certain offices in India declared by the President in consultation with ECI.
- The wives of such persons are also deemed to be ordinarily residing in India. There is a proposal for making some provisions gender-neutral by replacing the term ‘wife’ with ‘spouse’.
- It provides for the allocation of seats to the Legislative Assembly of each State and the number of seats if any to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State.
- It is to be filled by direct election from assembly constituencies (not same as parliamentary constituencies).
- Every Assembly constituency shall be a single member constituency.
Electoral Roll for Assembly Constituency
- Election commission shall be responsible for making electoral rolls for every constituency under each assembly and such roll has to be made according to the provisions of this act .
Delimitation of Parliamentary Constituencies
- Delimitation act is enacted by parliament, after every census (ten years), as provided under the Article 82 of the Constitution.
- Delimitation Commission is established by central government under the provisions of new Delimitation act formed after every census.
- Its task is to carve out the boundaries of the Parliamentary Constituencies as per provisions of the Delimitation Act.
- The present delimitation has been done using 2001 census figures under the provisions of Delimitation Act 2002.
- Since then, delimitation of constituencies has been frozen by an amendment in constitution, which demands no delimitation of constituencies can be done before the data on next census soon after 2026 is made available. Thus, the present constituencies carved out on the basis of 2001 census shall continue to be in operation till the first census after 2026.
- 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 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 1963.
- 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 Representation of People Act 1950. 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 State wise breakup. For Scheduled Tribes 47 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 State-wise break up.
Process of Delimitation of Council Constituencies
As soon as may be after the commencement of Representation of Peoples Act 1950, the President shall, by order determine:
- 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
- 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 Section 19 of Representation of People’s Act 1950 stipulates 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 Representation of People 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 1989.
- A person cannot be enrolled as a voter in more than one place in the same constituency or in more than one constituency in view of the provisions contained under Section 17 and 18 of Representation of People Act 1950.
- 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.
- 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.
Criteria for the Disqualifications for Registration in an Electoral Roll
A person shall be disqualified for registration in an electoral roll if he:
- 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.
Preparation 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.
Revision of Electoral Rolls
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:
- Before each by election to the House of People or to the Legislative Assembly of a State;
- 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.
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.
Deputy Election Commissioner or the Secretary to the Election Commission can assume job of delegated function on the basis of directions, as may be given by election commission.
- Chief Electoral Officer (CEO): 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 Election Commission of India nominates or designates an Officer of the Government of the state / Union Territory as the Chief Electoral Officer in consultation with that State Government / Union Territory Administration.
- District Election Officer (DEO): Subject to the superintendence, direction and control of the Chief Electoral Officer, the District Election Officer supervises the election work of a district. The Election Commission of India nominates or designates an officer of the state Government as the District Election Officer in consultation with the state government.
- Returning Officer (RO): The Returning Officer of a Parliamentary or assembly constituency is responsible for the conduct of elections in the Parliamentary or Assembly constituency concerned. The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government / Union Territory Administration.
- Assistant Returning Officers: In addition the Election Commission of India also appoints one or more assistant Returning Officers for each of the assembly and Parliamentary constituencies to assist the Returning Officer in the performance of his functions in connection with the conduct of elections
- Electoral Registration Officer (ERO): The Electoral Registration Officer is responsible for the preparation of electoral rolls for a Parliamentary/assembly constituency. The Election Commission of India, in consultation with the State / UT government, appoints an officer of the government or the local authorities as the Electoral Registration Officer. In addition, the Election Commission of India also appoints one or more Assistant Electoral Registration Officers to assist the Electoral Registration Officer in the performance of his functions in the matter of preparation / revision of electoral rolls.
- Presiding Officer: The Presiding Officer with the assistance of polling officers conducts the poll at a polling station. The District Election Officer appoints the Presiding Officers and the Polling Officers. In the case of Union Territories, such appointments are made by the Returning Officers.
- Observer: The Election Commission may nominate an Observer who shallbe an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies. They report directly to the Commission. The Observer has 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 his opinion booth capturing has taken place. In case of stopping the counting of votes or non-declaration of result, a report shall be sent by the Observer to the EC, which issue appropriate directions.
- A polling officer: A polling officer performs all or any of the functions of a presiding officer based upon his direction. If the presiding officer is absent from the polling station due to illness or other unavoidable cause, his functions shall be performed by such polling officer as has been previously authorized by the district election Officer to perform such functions during any such absence. It is the duty of the polling officers at a polling station to assist the presiding officer for such station in the performance of his functions.
Manner of Filling of Seats in the Council of States Allotted to Union Territories
- For the purpose of filling any seat or seats in the Council of States allotted to any Union territory in the Fourth Schedule to the Constitution there shall be an electoral college for that territory.
- It was enacted to provide for the allocation of seats and the delimitation of constituencies, to establish voter qualifications, to determine the procedure for preparing electoral rolls, and to determine the method of filling seats.
- This Act has been amended numerous times since then, with the most recent change occurring in 2017.
- The Act allows ordinary residents of a constituency to be registered on its electoral rolls.
- Since elections are held at the constituency level, people have the ability to choose their leaders in a direct and participatory democracy.
- To ensure equity, MPs and MLAs are elected based on population, with the assistance of a delimitation commission.
- The regular updating of electoral rolls keeps ghost and false voters at bay.
- Sections such as 8(4), which prohibit the admission of members with criminal records, help to decriminalize politics.
- It encourages free and fair elections by prohibiting candidates from using money to influence voters.
- Act as a deterrent for candidates to avoid corruption and malpractice and work for the public good.
- Implementation issues by the Election Commission of India (ECI), since the constitutional body lacks sufficient powers due to a lack of independent staff and a separate secretariat for its own operation.
- Unlike Germany and Portugal, India has no legal framework in place to enforce internal party democracy, not even the RPA act.
- Despite the fact that the Supreme Court and the RPA require candidates to declare their assets and liabilities, they fail to do so.
- Misuse of Government Machinery, RPAs lack clear provisions and guidelines on matters relating to the misuse of official machinery that gives the ruling party an unfair advantage during elections.
- False affidavits or material suspension are not grounds for election offences under the RPA act.
- Election funding from the state could be implemented, as suggested by the 2nd ARC report.
- Giving ECI more authority, as well as the ability to deregister political parties.
- Parliament should pass legislation to decriminalize politics, as recommended by the Supreme Court.
- Include a conviction under Section 125A (filing a false affidavit) as a ground for disqualification under Section 8(1), as well as a sentence enhancement for false affidavits.
- To reduce the occurrence of false disclosures, the Law Commission recommended establishing an independent method of verifying the winning candidate’s affidavit.
- Insertion of new section 58B of the RPA, as proposed by the Election Commission, to take action against political parties that bribe voters.
India, as a democratic country where people elect their representatives, must have a mechanism to protect people’s interests and electors work for people’s interests rather than self-interest. With these considerations in mind, Parliament passed the Representation of the Peoples Act (RPA).