Election laws, rules. procedures: India
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Election symbols
Symbols and the law
A party that loses its recognition doesn't lose symbol immediately, Jan 9, 2017: The Times of India
Under which law are the political parties allotted symbols for contesting elections?
According to the Constitution, the superintendence, direction and control of elections to the Parliament as well as states assemblies are vested in the Election Commission of India (EC).Through the Election Symbols (Reservation and Allotment) Order, 1968, the EC provides for specification, reservation, choice and allotment of symbols in the elections.
How are parties allotted symbols?
The 1968 order states that different symbols are to be allotted to candidates contesting in parliamentary as well as assembly elections. For this purpose, symbols are classified as reserved and free. A reserved symbol is a symbol reserved for a recognised political party for exclusive allotment to the candidates put up by the party . Symbols other than the reserved ones are classified as free symbols. For this and other such issues, the EC classifies parties as recognised and unrecognised. A recognised political party is further classified as a national or state party.
How is a party recognised as state party?
A political party becomes eligible for recognition as a state party if in the last election to the state assembly the party got 6% of the valid votes and at least two of its candidates were elected to the assembly .Parties getting 3% of the total seats or at least three MLAs elected -whichever is more -also get recognised as state parties. Similarly , parties getting 6% of the valid votes in the last Lok Sabha election and getting at least one MP elected from the state, or a party that has got one MP elected per 25 contesting candidates from the state will also get recognised as a state party. A party that had won 8% or higher of the valid votes in the last state or Lok Sabha election held in the state is also recognised as a state party.
What are the conditions for recognition as national party?
To qualify as a national party , candidates of a party must have got more than 6% of valid votes in the last assembly or Lok Sabha election in four or more states, and in addition get at least four MPs elected from these states. Parties that have won at least 2% of the total seats in the Lok Sabha with candidates getting elected from at least three states also qualify as a na tional party . In addition, any party that is recognised as a state party in at least four states also qualifies as a national party .
What are the rules followed while allotting symbols to parties?
A candidate set up by a national party at any election will be allotted the symbol reserved for the party. Similarly , a candidate of a party recognised as a state party in any particular state will be allotted the symbol reserved for that party in all constituencies in that state.
Can a state party be allotted its reserved symbol in a state in which it is not recognised?
Yes, if a political party recognised as a state party in some state or states sets up a candidate in any other state or UT, it can be allotted the symbol reserved for it in its state of recognition provided that symbol is not reserved for any recognised state party in that state. It is, however, up to the EC to grant such permission if the commission doesn't have a reasonable ground for refusing such application.Because of this law, Samajwadi Party cannot contest election in Andhra Pradesh on the cycle symbol, as it is reserved for TDP in that state.
What if a party loses its recognition?
A party that loses its recognition doesn't lose its symbol immediately .A party that is unrecognised in the present election but was a recognised national or state party not earlier than six years from the date of notification of the election can be allotted its reserved symbol. The extension in the use of symbol doesn't mean the extension of other facilities provided to recognised parties like free time on Doordarshan AIR, free supply of copies of electoral rolls and so on.
What will happen in case of a split in a party?
In case of a split, it is up to the EC to decide which faction represents the original party. The decision of the commission is binding on all rival sections. It is to be noted that recognition should be given to a party only on the basis of its own performance in elections and not because it is a splinter group of some other recognised party .
Electronic Voting Machines (EVMs)
A Short History
Baijayant `Jay' Panda, A Short History Of EVMs , April 12, 2017: The Times of India
They are to paper ballots what motor vehicles are to horse drawn buggies
Alleging vote fraud through tampering of Electronic Voting Machines (EVMs) is a time-honoured tradition by losing candidates and parties in India. This tradition began right from the very first instance of the use of EVMs, when the Election Commission (EC) tried out a pilot project during the Kerala assembly elections in 1982.
In fact, Communist Party of India (CPI) candidate Sivan Pillai challenged the use of EVMs even before the election could be held, but the Kerala high court did not entertain him. However, the fun was only just beginning since Pillai, despite his apprehensions, ended up winning.
Thereupon it was the turn of the losing Congress party to challenge the use of EVMs and Pillai's victory , setting in motion a practice that has since become de rigueur for any self-respecting loser of an Indian election. Not all losing candidates go to court against EVMs, of course, but it has almost come to be considered bad form if the loser does not at least hold a press conference to denigrate them.
Ironically, in that first instance Congress actually prevailed. Though the HC turned down its argument that the Representation of the People Act (1951) and Conduct of Election Rules (1961) did not provide for EVMs, on appeal the Supreme Court then ruled in its favour in 1984.
In the resultant re-election conducted with traditional paper ballots, its candidate beat Pillai. Although of course that by itself was no proof against the veracity of EVMs, it has remained a beacon of hope for election losers over the decades.
In any event the 1984 SC ruling against EVMs had been on a legal technicality , and not about their fundamental suitability. That flaw was corrected by a 1988 amendment to the RoP Act, providing the legal framework for use of EVMs. In yet another ironic twist of history that was passed by a Parliament dominated by Congress, the only beneficiary of EVMs being set aside in favour of paper ballots.
The incorporation of machines, technology and automation for electoral voting goes back to at least 1892, when the first “lever voting machine“ was used in New York, after decades of relying on paper ballots. Punch-card voting machines were introduced in the US in the 1960s, and were still in use in Florida four decades later, when their malfunctioning helped make the 2000 presidential election controversial. The US also saw the first EVMs introduced in 1975.
Automation helps improve the efficiency and speed of voting and counting. But it is even more important in overcoming fraud, as well as aiding the crucial democratic requirement of secret ballots, both aspects being much more vulnerable in manual voting. Those, and the huge logistical challenges of paper ballots, were exactly the reasons why India's EC pushed for EVMs, after widespread malpractices in the 1970s.
Democracy in India has made much progress over the decades, with the rest of the world going from being cynical about its survival, to now treating it as a triumphant role model. And since at least the era of TN Seshan in the early 1990s, the EC has arguably become our most respected institution, not to mention helping several other nations run their elections better. EVMs have played a significant role in this transition, which has seen a drastic reduction in voting malpractices.
Those who demand a rollback to paper ballots are wrong, and forget why we moved on from them. After all, despite the real risks of road accidents, we don't abandon motor vehicles and go back to horse drawn carriages. Instead, we implement safety measures like speed limits, seat belts and helmets.
Of course, no technology is infallible, and credible allegations of EVM tampe ring must be taken seriously . Fortunately, the EC does. In 2009, it conducted a highly publicised exercise, asking petitioners to demonstrate tampering. None could.
Similarly , the Delhi HC in 2004 and Karnataka HC in 2005 had rejected petitions challenging EVMs, after exami ning scientific and technical experts.
In a case last month of an EVM allegedly yielding votes for only one party , the EC enquiry found that the allegation was untrue. Such quick responses by the EC to specific allegations, random audits, and public demonstrations are Uday Deb essential to reinforce EVMs' reliability.
But two aspects of EVMs in India remain works in progress that are important to further improve the electoral system. First, the EC's proposal to use “Totaliser“ machines to aggregate the vote counting of multiple EVMs has been stymied by litigation as well as the government's disagreement. This relates to the core of why secret ballots are crucial for democracy . Without it, voters at any particular booth stand the risk of being victimised for not voting for powerful interests.
Finally , a new generation of EVMs was developed in 2011 with a feature for Voter Verified Paper Audit Trail (VVPAT). As the name implies, these make it vastly easier to audit and verify the votes cast if challenged. After an SC judgment to deploy these EVMs by 2019, the EC has already commissioned 20,000 of them, and is awaiting funding for the rest.
That would take EVMs' trustworthi ness beyond reproach, but would sadly end 35 years of a gloriously entertaining tradition.
E-postal ballot (online voting)
Allowed for armed forces/ 2016
E-postal ballot allowed for armed forces, Oct 25 2016 : The Times of India
The government has amended electoral rules to allow postal ballots to be sent electronically to the armed forces personnel, cutting delays experienced with their two-way transmission through post.
This would mean that armed forces personnel can now download the blank postal ballot sent to them electronically , mark their preference and post the filled-up ballot back to their respective returning officers.Two-way electronic transmission was not recommended by the Election Commission for security and secrecy reasons.
The armed forces personnel serving in remote and border areas would be greatly benefited since the present system of two-way transmission of ballot paper by the postal services has not been able to meet the expectations of the service voters. The issue had earlier come up before the Supreme Court where it was pleaded that an effective mechanism be created for armed forces personnel and their families to exercise their right to vote easily.
False declaration in the nomination paper
Election can be set aside: SC
Says Voters Have Fundamental Right To Know About Contestants' Antecedents
The Supreme Court ruled on Tuesday that voters had a fundamental right to know about the educational background of people contesting polls and that election of a candidate could be set aside for making false declaration on educational qualifications in the nomination paper.
The ruling came when a bench of Justice A R Dave and Justice L Nageswara Rao quashed the election of Manipur Congress MLA, Mairembam Prithviraj, for falsely declaring in his nomination papers that he had an MBA degree.
The court held that the right to vote would be meaningless unless citizens were well-informed about the antecedents of candidates, in cluding their educational qualification. It said all information about a candidate contesting elections must be available in public domain as exposure to public scrutiny was one of the surest means to cleanse the democratic governing system and have competent legislators.
“This court held that the voter has a fundamental right to information about the contesting candidates.The voter has the choice to decide whether he should cast a vote in favour of a person involved in a criminal ca se. He also has a right to decide whether holding of an educational qualification or holding of property is relevant for electing a person to be his representative,“ the bench said.
“It is clear from the law laid down by this court that every voter has a fundamental right to know about the educational qualification of a candidate. It is also clear from the provisions of the Representation of the People Act, Rules and form 26 that there is a duty cast on the candidates to give correct in formation about their educational qualifications,“ the bench said.
The Congress MLA contended that there was a “clerical error“ on the part of his lawyer and agent who had filed the nomination papers in 2012 and pleaded to the court not to quash his election as the defect was not of substantial nature. Prithviraj had mentioned in the nomination papers that he had passed MBA in 2004 from Mysore University .
The bench, however, rejected his plea saying the election result was materially affected by the false declaration and it had to be quashed. The court noted that he had made the false declaration in the 2008 assembly election as well.
“The contention of the appellant that the declaration relating to his educatio nal qualification in the affidavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, he was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in form 26 would amount to a false declaration.The said false declaration cannot be said to be a defect which is not substantial,“ the court said.
“It is no more res integra (issue not decided by court) that every candidate has to disclose his educational qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, he cannot be permitted to contend that the declaration is not of a substantial character,“ the bench added.
Manifestoes, promises
False promises
Rohan Dua, Don't promise the moon to voters: EC, Nov 01 2016 : The Times of India
The election commission has decided to crack down on parties that go overboard with their manifesto promises. Officials will soon start vetting manifestos for the 2017 assembly polls in Punjab and UP.
Punitive action could be as harsh as withdrawing a party's symbol if it promises the moon without giving an affidavit on a stamp paper to the commission.
The decision was taken at a meeting on September 23, according to an internal note accessed by TOI. “... it is expected that manifestos reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on promises which can be fulfilled,“ it reads.
In 2012, the Shiromani Akali Dal had promised laptops to class 12 students but later backtracked because of a Rs 1.25 lakh crore debt.
Minimum age of candidates
SC: We do not have the power to change age limit
‘Can’t take call on min age to contest’
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: Why not change the age limit for contesting the Lok Sabha and assembly elections to 21 years from the stipulated 25 years, when the age of voting has been reduced from 21 years to 18 years?
On Monday, this question from a PIL by one Kumar Gaurav left a Supreme Court bench comprising Chief Justice K G Balakrishnan and justices R V Raveendran and Deepak Verma thinking for a while. But, it countered the petitioner by asking: “What is the hurry? Why not have some experience of politics before entering the fray?” Well the counsel for the petitioner was not to be deterred and said it was the people’s fundamental right to choose a profession and politics has become one. He said most of the countries around the world have reduced the age limit for people’s representatives to 18 years and India should follow suit.
The bench said: “But this would require amendments to several Articles of the Constitution which prescribe the age limit. Can the SC do it? We do not have powers to reduce the minimum age stipulated for persons to contest Lok Sabha or assembly elections.”
Minimum education qualification for contestants
SC disagrees
The Times of India, September 22, 2015
AmitAnand Choudhary
SC frowns on edu bar for Haryana poll
The Supreme Court expressed concern over recent laws framed by some state governments fixing minimum education qualification for people to contest local body elections and questioned its validity as it would bar majority of the population from the contest.
“Let's settle the issue as it would be followed across the country ,“ a bench of Justices J Chelameswar and A M Sapre said while hearing a plea questioning the validity of a law passed in Haryana mandating educational qualification -Class 10 for men, Class 8 for women and Class 5 for Dalits -for those contesting panchayat polls. Attorney general Mukul Rohatgi, appearing for the state, contend ed that it was a progressive law and the SC should not interfere. The bench then referred to Article 326 of the Constitution, which lays down the grounds for disqualification, and asked, “Can a legislature prescribe other ground for disqualification?
It needs to be examined.“
After a brief hearing, the bench said it would allow the election process if the state agreed to drop education qualification criteria and asked the AG to take instructions from the government.
Voter has right to know candidate’s qualification: SC
The Hindu, November 4, 2016
Every voter has a fundamental right to know the educational qualification of a candidate, who has a duty not to lie about his or her academic past, the Supreme Court has held.
“Every voter has a fundamental right to know about the educational qualification of a candidate. There is a duty cast on the candidates to give correct information about their educational qualifications,” a Bench of Justices Anil R. Dave and L. Nageswara Rao held in a recent judgment.
The verdict came on appeals filed by Mairembam Prithviraj alias Prithviraj Singh and Pukhrem Sharatchandra Singh against each other challenging the judgment of the Manipur High Court. The HC had declared as “void” the election of Mr. Prithviraj in the 2012 polls on an NCP ticket against Congress nominee Mr. Sharatchandra from the Moirang Assembly seat in Manipur. It was alleged that Mr. Prithviraj, in his nomination papers, had said he was an MBA, which was found to be incorrect.
Upholding the HC verdict, Justice Rao said the apex court was not “in dispute that the Appellant did not study MBA in Mysore University” and the plea that it was a “clerical error” could not be accepted. “Since 2008, the Appellant was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial ... ,” the judgment said.
None of the above (NOTA)
2017: SC won't ban NOTA in Gujarat Rajya Sabha elections
Dhananjay Mahapatra, SC won't ban NOTA in Guj RS polls, August 4, 2017: The Times of India
`Option In RS Polls Since 2014, Cong Can't Challenge It When It Wishes'
The Supreme Court rejected Congress's plea for a stay on `none of the above' (NOTA) choice for MLAs in the polls to three Rajya Sabha seats from Gujarat on August 8, fuelling the party's concerns over desertions from its ranks.
The defection of six of its MLAs to BJP had forced Congress to herd the rest to Bengaluru to prevent further poaching and diminution of its vote value in the Rajya Sabha elections where it is contesting the third seat with senior party member Ahmed Patel, political secretary to party president Sonia Gandhi, as its candidate.
Congress had rushed to the SC as it realised that MLAs could use NOTA as their choice in the elections despite a party whip. Exercise of NOTA option will not attract disqualification of the MLA for disobeying the whip.
The party , through legal stalwarts Kapil Sibal, A M Singhvi and Vivek Tankha, made a valiant attempt to impress upon a bench of Justices Dipak Misra, Amitava Roy and A M Khanwilkar that employing NOTA in an indirect election like Rajya Sabha polls was unconstitutional and illegal.
“NOTA is a sure recipe for bribing MLAs in a close contest that is in store in Gujarat assembly when on August 8 it elects three members from among four in the fray for the council of states.Party whip to vote for a candidate can be successfully defied by MLAs, who have been bribed by opponent political parties, by choosing NOTA option,“ Sibal said.
The bench was unimpressed by the late challenge to NOTA in Rajya Sabha elections and refused to stay it.The Election Commission had decided to include NOTA option in Rajya Sabha polls in January 2014 based on a 2013 SC judgment, which had asked the poll panel to pro vide the choice of NOTA to voters in the Lok Sabha and assembly elections.
“So many elections have been held since January 2014, including Rajya Sabha polls, with NOTA as a choice.Why did Congress not challenge it in the last three years? You (Congress) cannot rush to the court challenging constitutional validity of NOTA in Rajya Sabha polls as and when it suits you. The January 2014 notification was not any state spe cific. It affected political parties across the board. And you all are politically conscious persons, why no one challenged it? We cannot grant any interim order staying use of NOTA in the coming elections. It is an issue that needs to be debated,“ the bench said.
The bench agreed to examine the constitutional issue raised by Congress. It asked the EC to file its response in two weeks and posted the matter for de tailed hearing on September 13, defeating the relief Congress had rushed to the SC on Wednesday . The EC, through senior advocate Ashok Desai, echoed the SC's view. “So many elections have taken place. Why did no one challenge it? Why has it suddenly dawned on the eve of elections in Gujarat that NOTA in Rajya Sabha polls is unconstitutional?“ he asked.
Congress's attempt to draw strength from BJP's appeal on Wednesday to the EC not to employ NOTA in the Gujarat elections did not bear fruit.
The NDA government strategically distanced itself from the controversy .
The bench asked attorney general K K Venugopal whether the Centre had anything to do with EC's decision to include NOTA option in Rajya Sabha polls. Venugopal said, “The Union government cannot have anything to say on EC's decision. That is the reason why I did not even get up to make submissions.“
NRI voters
2017: Only 24,000 register
Only 24,000 overseas Indians have registered as voters, Aug 13, 2017: The Times of India
NEW DELHI: A little over 24,000 overseas Indians, who are entitled to cast their ballot in India, have registered themselves as voters.
Now, in a bid to attract more such Indian citizens living abroad to become voters here, the Election Commission has launched a portal which allows them to register online.
The portal also has a long list of frequently asked questions to help people understand the procedure. While there are no estimates on the number of overseas Indians eligible to vote in India, only 24,348 have registered with the poll panel. Out of these, 23,556 are from Kerala, 364 from Punjab and 14 from Gujarat, according to the data provided by the Commission.
According to the 'Overseas Indian Voters' portal, an overseas elector is a person who is a citizen of India and who has not acquired citizenship of any other country. The portal can be accessed through the Election Commission website: eci.nic.in.
Such people are eligible to be registered as voters in the constituency in which their place of residence in India, as mentioned in their original Indian passport in which visa endorsement has been made, is located.
Once their name is registered as a voter, the election officials of the constituency concerned will inform the overseas Indian by post on his or latest address abroad. But, the portal clarifies, that overseas electors are not issued an election photo identity card as they are allowed to cast vote in an election in the constituency in person at the polling station on showing their original passport.
Data shows that only 10,000 to 12,000 NRIs have voted because they do not want to spend foreign currency to come to India and exercise their franchise. Now, things may change as the Union Cabinet had on August 2 cleared a proposal to extend proxy voting to overseas Indians by amending electoral laws. While NRIs and overseas Indians are free to cast their votes in constituencies where they are registered, according to the proposal, they would also be allowed to use the option of proxy, which as of now is only available to service personnel.
An expert committee in the Election Commission working on the issue had, in 2015, forwarded the legal framework to the law ministry to amend electoral laws to allow overseas Indians use proxy voting. But for every election, the overseas voters will have to name a new person as their proxy.
The bill to allow the new provision for overseas voters could not be introduced in the Monsoon session of Parliament which ended
Religion, caste, race, community
SC: Candidate using community to seek votes can be barred
The Supreme Court ruled that seeking votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent would be a corrupt electoral practice rendering the person open to disqualification.
The order, which some political and official sources felt would be of limited utility in a country teeming with parties appealing to regional, caste-based and community identities, widened the scope of Section 123(3) of the Representation of the People Act in order to “maintain the purity of the electoral process“.
In addition, the apex court sought to deal a body blow to communal politics by ruling a candidate could be disqualified if an appeal is made by any religious leader to his community to vote for him if it is established that such an appeal was made with the consent of the candidate. The existing provision under Section 123(3) provides for disqualification if a candidate or his agent or anyone appeals to voters in the name of the candidate's religion, caste, race, language or community . In 1961, its ambit was sought to be widened by striking off words like “systematic appeal“ in the name of religion, caste, community or language“: a caveat which, many felt, blunted its effectiveness. In the event, however, the change also failed to realise the avowed objective because its application was restricted only to the candidate who sought votes on the strength of “his“ religion, caste, race, language or community . The widely perceived lacuna has been addressed by the seven-judge Constitution bench by a four to three majority , banning candidates from seeking votes in the name of religion, language, caste and community irrespective of whether he highlights his own identity or that of his rival.
This means, a Hindu candidate would be disqualified if he, his agent or anyone with his or his agent's consent appealed to voters not to vote for his opponent because he is a Muslim or Christian and vice-versa. An offence would be deemed to be committed even if such an appeal is made not by the candidate himself or an agent in case it is established that the person making the pitch had acted with the consent of the aspirant.
However, establishing the consent of the candidate could prove a challenging task, felt EC officials, even as they pointed out that usual time consumed by a disqualification petition meant that such cases could linger without curtailing a legislator's term. The majority judgment authored by Justices Madan B Lokur and L N Rao, with which Chief Justice T Thakur and Justice S A Bobde concurred, said the purposive interpretation of Section 123(3) was required, as felt by Parliament, to place a strong check on corrupt practices based on an appeal on the ground of religion during election campaign or otherwise.
Writing the main judgment, Justice Lokur said: “The concerns which formed the ground for amending Section 123(3) of the Act have increased with the tremendous reach already available to a candidate through the print and electronic media and now with access to millions through the internet and social media as well as mobile phone technology.“
“Therefore, now, more than ever it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing even tempo of life,“ he said.
“There is no doubt in our mind that keeping in view the social context in which sub-section 3 of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the counsel for appellants, which, as he suggested should be limited to the candidate's religion or that of his rival candidates,“ the majority judgment said.
The court then summarised its view with a long paragraph: “For maintaining the purity of electoral process and not vitiating it, sub-section (3) of the RP Act, 1951, must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for the furtherance of the prospects of the elections of that candidate or for prejudicially affecting the election of any candidate on the ground of religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.“
Widening scope of S. 123(3) of Representation of People Act
`Could be tough to establish consent of any candidate', Jan 03 2017: The Times of India
The Supreme Co urt ruled that seeking votes in the name of religion, caste, race, community or language by a candidate, his agent or anyone with his consent would be a corrupt electoral practice rendering the person open to disqualification.
The order, which some political and official sources felt would be of limited utility in a country teeming with parties appealing to regional, caste-based and community identities, widened the scope of Section 123(3) of the Representation of the People Act in order to “maintain the purity of the electoral process“.
In addition, the apex court sought to deal a body blow to communal politics by ruling a candidate could be disqualified if an appeal is made by any religious leader to his community to vote for him if it is established that such an appeal was made with the consent of the candidate. The existing provision under Section 123(3) provides for disqualification if a candidate or his agent or anyone appeals to voters in the name of the candidate's religion, caste, race, language or community . In 1961, its ambit was sought to be widened by striking off words like “systematic appeal“ in the name of religion, caste, community or language“: a caveat which, many felt, blunted its effectiveness. In the event, however, the change also failed to realise the avowed objective because its application was restricted only to the candidate who sought votes on the strength of “his“ religion, caste, race, language or community . The widely perceived lacuna has been addressed by the seven-judge Constitution bench by a four to three majority , banning candidates from seeking votes in the name of religion, language, caste and community irrespective of whether he highlights his own identity or that of his rival.
This means, a Hindu candidate would be disqualified if he, his agent or anyone with his or his agent's consent appealed to voters not to vote for his opponent because he is a Muslim or Christian and vice-versa. An offence would be deemed to be committed even if such an appeal is made not by the candidate himself or an agent in case it is established that the person making the pitch had acted with the consent of the aspirant.
However, establishing the consent of the candidate could prove a challenging task, felt EC officials, even as they pointed out that usual time consumed by a disqualification petition meant that such cases could linger without curtailing a legislator's term. The majority judgment authored by Justices Madan B Lokur and L N Rao, with which Chief Justice T Thakur and Justice S A Bobde concurred, said the purposive interpretation of Section 123(3) was required, as felt by Parliament, to place a strong check on corrupt practices based on an appeal on the ground of religion during election campaign or otherwise.
Writing the main judgment, Justice Lokur said: “The concerns which formed the ground for amending Section 123(3) of the Act have increased with the tremendous reach already available to a candidate through the print and electronic media and now with access to millions through the internet and social media as well as mobile phone technology.“
“Therefore, now, more than ever it is necessary to ensure that the provisions of sub-section (3) of Section 123 of the Act are not exploited by a candidate or anyone on his or her behalf by making an appeal on the ground of religion with a possibility of disturbing even tempo of life,“ he said.
“There is no doubt in our mind that keeping in view the social context in which sub-section 3 of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the counsel for appellants, which, as he suggested should be limited to the candidate's religion or that of his rival candidates,“ the majority judgment said.
The court then summarised its view with a long paragraph: “For maintaining the purity of electoral process and not vitiating it, sub-section (3) of the RP Act, 1951, must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for the furtherance of the prospects of the elections of that candidate or for prejudicially affecting the election of any candidate on the ground of religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.“
Politicians cannot seek votes in name of caste, creed or religion: Supreme Court
Jan 2, 2017, The Times of India
HIGHLIGHTS
The Supreme Court barred politicians from seeking votes in the name of religion, caste or creed
The court gave a wider meaning to Section 123 of the Representation of People Act to stamp out the use of religion and community affiliation from elections.
Politicians are barred from seeking votes in the name of religion, caste or creed the Supreme Court ruled in a landmark judgment, ahead of crucial assembly polls+ in five states. The court also ruled that seeking votes in this manner will be deemed a corrupt practice and not permissible.
The court's bench said today by a 4:3 majority that elections are a secular exercise and that the relationship between people and whom they worship is an individual choice. Therefore, the state is forbidden to interfere in such an activity, the court said.
A 7-judge constitution bench passed the judgement in the Hindutva case+ after hearing arguments from various petitioners/respondents. The top court was examining a politically explosive question arising out of a plea filed in 1990. That question - Will a religious leader's appeal to his followers to vote for a particular political party amount to electoral malpractice under Section 123 of the Representation of People Act.
The court gave a wider meaning to Section 123 of the Representation of People Act to stamp out the use of religion and community affiliation from elections. Chief Justice T S Thakur, justices M B Lokur, S A Bobde and L N Rao favoured rooting out religion from election, while Justices A K Goel, U U Lalit and D Y Chandrachud were in a minority on the issue.
Representation of the People (RP) Act
Section 123(3): national symbols and emblems; corrupt practices
PTI |Supreme Court raises series of questions in debate on Hindutva judgment.Oct 20, 2016
Referring to the terms "national symbols" and "national emblem" in section 123(3) of the Representation of the People (RP) Act, a seven-judge Constitution bench [of the Supreme Court] headed by Chief Justice of India TS Thakur said nobody can be allowed to use them to garner votes in the elections.
"Anybody can seek votes on the ground of national flag and national emblem and say that people are dying on the borders and so vote for a particular party. Can it be permitted," asked the bench.
"This is specifically proscribed under this provision," senior advocate Shyam Divan said.
The hearing also saw the bench observing that Parliament has consciously "widened" the scope of the term "corrupt practices" in the poll law to curb "separatist and communal" tendencies.
"What is most significant in the present clause (of the RP Act) is that Parliament thought to widening the scope of 'corrupt practices' to curb separatist and communal tendencies during elections," the bench said.
The bench then raised a hypothetical question and asked if a 'Sikh granthi' seeks votes for a particular Hindu candidate, can it be said that this appeal "falls foul" of the provision in question.
It may not amount to "corrupt practice" under the specific section of the RP Act, Divan responded.
He also said that the term "his religion", used in the provision, means religion of the candidate and not that of the spiritual leader or cleric who seek votes.
The court is examining the "scope and width" of section 123(3) of the RP Act which deals with electoral malpractices amounting to "corrupt practices", among other things.
The relevant section of the RP Act deals with "corrupt practices" and reads: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols..., for furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" would amount to corrupt practices.
On Wednesday, the apex court asked whether non-contesting spiritual leaders or clerics can be held accountable for "corrupt practices" under electoral law for asking voters to vote for a particular party or candidate.
"How can a person, who himself has neither contested nor returned as a winning candidate, be tried for allegedly resorting to corrupt practices under the Representation of the People (RP) Act," it had asked.
Senior advocate Arvind Datar, appearing for Abhiram Singh whose election as an MLA in 1990 on BJP ticket from Santacruz assembly seat in Mumbai was set aside by the High Court, referred to section 123(3) of the Act and had said that corrupt practice can only be established if either the "candidate or his agent" seek votes on the name of religion.
If any other person, like late Bal Thackeray and late Pramod Mahajan in the present case, sought votes on these grounds, referred to in the RP Act, then there has to be the "consent" of the candidate, he told the bench.
The issue assumes significance as questions were raised on its 1995 verdict which held that vote in the name of "Hindutva/Hinduism" did not prejudicially affect any candidate, and since then three election petitions are pending on the subject in the apex court.
The apex court's three-judge bench in 1995 had held that "Hindutva/Hinduism is a way of life of the people in the sub-continent" and "is a state of mind".
The judgment was delivered in the case of Manohar Joshi versus N B Patil which was authored by Justice J S Verma who found that the statement by Joshi that the 'first Hindu State will be established in Maharashtra' did not amount to appeal on ground of religion".
The issue of interpretation of section 123(3) again arose on January 30, 2014 before a five-judge which referred it for examination before a larger bench of seven judges.
A three-judge bench on April 16, 1992 had referred to a five-judge Constitution Bench Singh's appeal in which the same question and interpretation of Section 123(3) was raised.
While the five-judge bench was hearing this matter on January 30, 2014, it was informed that an identical issue was raised in an election petition filed by Narayan Singh against BJP leader Sunderlal Patwa and the another Constitution Bench of five judges of the apex court had referred it to a larger bench of seven judges.
Thereafter, the five-judge bench had referred Singh's matter also to the Chief Justice for placing it before a seven-judge bench.
See also
Chief Election Commissioners Of India
Election laws, rules. procedures: India
Election laws, rules. procedures: India
Elections in India: behaviour and trends (2014)
Elections in India: behaviour and trends (historical)
