UNIT 6

Election Commission: Composition, Powers and Functions and

Challenges faced by it

Additional Topics as per the Course Plan : Important Cases & Anti-
Defection Laws
1) AMRUTH ANAND 1750408
2) SRIVIJAY SASTRY 1750437
3) DIVYA PINHEIRO 1750446
4) IPKSHITA SINGH 1750449
Constituent Assembly Debates, Vol. VII, June 16,
1949
• One of the prominent problems that was faced by the members of the
Constituent Assembly was whether to have a Centralised Election
Commission as in Britain or allow the states to have their own Election
Commission as present in United States of America.
• The members of the Constituent Assembly did discuss this matter at length.
The first draft of the Constitution of India provided a common centralised
authority for elections for both Central and State legislatures. The
amendment of H.V. Pateskar sought to entrust the responsibility of
parliamentary elections to the Section Commission and that of State
Legislatures to a separate machinery. But, keeping in view, the benefits and
effectiveness of uniformity of election procedure, process and practice, the
suggestion of a unified election authority was approved.
• Dr. B.R. Ambedkar firmly advocated for one Election Commission with
jurisdiction of all elections to Parliament and the Legislature of every state as
well as to the offices of the President and Vice-President.’ This advocacy for
‘centralisation of election authority into a single body, namely, Election
Commission of India was also justified on the ground that government in some
provinces was intruding and managing things in such a manner that those
people who do not belong to them either culturally, racially or linguistically
were being excluded in electoral rolls.’
• Mr. K.M. Munshi went to the extent of saying that certain provincial
governments could not be, “trusted to be as impartial in elections as they
should be.”Such discrimination or prejudice would not find any room to exist
and flourish the mechanism of Unified election authority for the country.
The Constitution of India mandates the ECI
to hold free and fair elections.
• Article 324: Superintendence, direction and control of elections to be
vested in an Election Commission
• Article 325: No person to be ineligible for inclusion in, or to claim to be
included in a special, electoral roll on grounds of religion, race, caste or sex
• Article 326: Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage
• Article 327: Power of Parliament to make provision with respect to
elections to Legislatures.
• Article 328: Power of Legislature of a State to make provision with respect
to elections to such Legislature
 THE IDEA OF ELECTION
COMMISSION
• The ECI had been created as an independent constitutional authority
to protect and safeguard this newborn democracy by facilitating free
and fair elections that allowed people to choose their Government.
• Article 324 enjoins upon the ECI, the superintendence, direction and
control of the elections to the Parliament and the Legislatures of the
States.
• The ECI was formally constituted on 25th January 1950, a day before
India became a Sovereign, Secular, Democratic Republic. Mr. Sukumar
Sen, ICS, was appointed the first Chief Election Commissioner on 21
March 1950.
• The ECI functioned as a single member body until 16 October 1989,
when it was made a three-member body. This continued until 1
January 1990, at which time it once again became a single-member
entity.
• Later on, since 1 October 1993, the ECI has been functioning as a
three member body.
 ELECTIONS
• First time during General Elections to the House of the People and State
Legislative Assemblies held in 1951-52. As per Rule 28 of the Conduct of Elections
Rules, 1961, every ballot box used in election must be of the design approved by
the ECI. The ECI decided that all ballot boxes should be made of steel and with an
inbuilt locking system so that no separate locks were required for sealing and
securing them. The ECI had approved the design of ballot boxes of 12
manufacturing firms and gave the option to the State Governments to select and
purchase from them. 25,84,945 ballot boxes were purchased for the first time.
• Ballot dropping: ballot papers in ballot boxes.
• The ballot papers for the first General Elections were printed by the ECI at the
Government of India Security Press at Nashik, Maharashtra, where the country’s
currency notes were also printed.
FIRST ELECTIONS
• 70 % illiterate voters
• Delimitation Commission for demarcating constituencies was formed
• 45% of voters were women
SUBSEQUENT DEVELOPMENTS
• Specially abled, Transgenders from Maharashtra and Tribals were included as voters in
the elections
• The Age limit was reduced from 21 years to 18 years
• Representation of Peoples Act, 1950 and 1951 were enacted
• Secret ballot system was used
• First past the post system for direct elections became a norm
 MILESTONES REACHED
• 25 January 1950 The Election Commission of India is established a day before the country
became a sovereign republic. The ECI could be a single- or multi-member body. On 21 March,
Sukumar Sen, ICS, was appointed as the first CEC.
• 1951-1952 The first General Elections. At that time, there were 314 constituencies with one
seat, 86 with two seats, and one with three seats. There were also 2 nominated Anglo-Indian
members.
• 24 February-14 March, 1957 There were 494 seats elected using the first past the post voting
system. Out of the 403 constituencies, 91 elected two members, while the remaining 312
elected a single member. The multi-seat constituencies were abolished before the next
election.
• 19-25 February, 1962 Unlike the previous two elections but as with all subsequent elections,
each constituency elected a single member. The Marking System of voting was used in all
States, except Manipur, and some areas of Andhra Pradesh, Himachal Pradesh, Gujarat and
Punjab.
• 1977 ECIL was assigned the task of creating an electronic voting machine EVM) suited to Indian
election conditions.
• 1982 The EVMs, which are now pivotal to elections in India, were first used in 50 polling
stations of Kerala’s Parur Assembly constituency in May 1982. However, the machines
could not be used after 1983 following a Supreme Court order that necessitated legal
backing for their use.
• 16 October 1989 For the first time, two ECs and one CEC were appointed by the
President. This was a short-lived arrangement.
• 1 January 1990 The ECI again became a single-member body.
• 1 October 1993 The Commisson again became a three-member body (CEC Mr T.N.
Seshan, and two ECs: Mr M.S. Gill and Mr G.V.G Krishnamurthy).
• 2010 On 8 October 2010, the ECI appointed an expert technical committee, and political
parties backed the proposal to have VVPAT in EVMs to counter the charges of tampering.
• 2014 The ECI conducted the largest exercise in democracy: the Lok Sabha Elections.
• In 2014, for the first time, voters had a ‘None of the Above’ option on the ballot
papers and EVMs. In 2001, the ECI had sent a proposal to the Government to
amend the law so as to provide for a neutral vote provision for the electors who did
not wish to vote for any of the candidates. In 2004, PUCL (People’s Union for Civil
Liberties) filed a petition seeking a direction to provide the necessary provision in
ballot papers and EVMs for protection of the right to not vote for any candidate,
secretly. The Supreme Court in 2013 held that the ECI may provide for the None of
the Above (NOTA) option on EVMs and ballot papers.
( PUCL v. Union of India)
• The Voter Verifiable Paper Audit Trail is an independent system
attached with the EVMs that allows the voters to verify that their
votes are cast as intended. When a vote is cast, a slip is printed and
remains exposed through a transparent window for seven seconds,
showing the serial number, name and symbol of the candidate.
Thereafter, the receipt automatically gets cut and falls into the sealed
drop box of the VVPAT. The system allows a voter to challenge his/her
vote on the basis of the paper receipt. As per rules, the Presiding
Officer of the polling booth will have to record the dissent of the
voter,, which would have to be taken into account at the time of
counting, if the challenge is found to be false.
• For the first time in the country’s history, the Shompens took part in
the poll process. The Shompens themselves are quite unique. They
are one of the last surviving Stone-Age tribes and they live in Great
Nicobar, in the Andaman and Nicobar Islands. They cast their votes to
elect the Lok Sabha candidate from the Bay Islands.
• The members of the Shompen tribe, who only occasionally come out
of the jungle, were curious to see the EVM.
• The Dakshin Kannada District in Karnataka designed its own voter
mascot called ‘Babanna’ (right), which become very visible and
popular during the 2014 Lok Sabha Election. In West Bengal, the DEOs
developed District-specific mascots: ‘Red Panda’, ‘Mrigababu’ and
‘Votuda’ in Darjeeling, Nadia and Jalpaiguri Districts respectively.
Similarly, a mascot ‘Mr Votu’ by a CSO (Civil Society Organisation) was
used to attract voters to programmes and roadshows in Delhi.
• In order to reach out to the largest number of people possible, in 2011, the ECI
instituted the National Voters’ Day (NVD) on its foundation day, 25 January. It is the
day when the founding fathers of the Indian Constitution gave to their people ‘the
Election Commission of India’, with the mandate of superintendence, direction and
control of elections. NVD is celebrated at five levels: Central, State, District, Assembly
Constituency and the polling station levels. Brief public ceremonies are held at each
level, in which the highlight is the distribution of EPICs among the new voters of the
local polling station areas. The Booth Level Officers felicitate the newly registered
voters in their respective polling station areas and hand over their EPICs. All persons
who have attained the age of 18 and are present
• There, are registered as new electors and presented with a badge with the slogan:
‘Proud to be a Voter – Ready to Vote’. The main aim of the day is to develop a sense of
accountable citizenship among voters.
Article 325
There is one general electoral roll for every territorial constituency. No
person is ineligible for inclusion in the electoral roll on the grounds only
of religion, race, caste, sex or any of them. No person can claim
inclusion in special electoral roll for any constituency on grounds only
of religion, race, caste, sex or any of them.
Article 326
Elections are held on the basis of adult suffrage, every person who is i)
a citizen of India, ii) not less than 18 years of age on the date
prescribed by the Legislature, on the ground of non-residence,
unsoundness of mind, crime, corrupt or illegal practice, is entitled to be
registered as a voter at any such election.
NATURE OF RIGHT TO VOTE OR
CONTEST AN ELECTION
NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC
1189
• The right to vote or stand as a candidate and contest an 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.
Jamuna Prasad Mukhariya v. Lachhi Ram AIR 1954 SC 686
• The right to stand as a candidate and contest an election is not a common
law right. It isnnn a special right created by statute and can only be exercised
on the conditions laid down by the statute. The Fundamental Rights Chapter
has no bearing on a right like this created by statue...even right to dispute is
a statutory right.
Election Commission of India set up under
Article 324(1)
• In order to ensure free, fair and impartial elections, the Constitution establishes
the Commission, a body autonomous in character and insulated from political
pressures or executive influence. Care has been taken to ensure that the
Commission functions as an independent agency.
• The Commission is set up as a permanent body under Article 324
(1). It is an all-India body having jurisdiction over elections to Parliament, State
Legislatures, offices of the President and Vice-President.
• The reason for having an all-India body to supervise and conduct elections, is that
some States have mixed population. In order to prevent injustice being to any
section of the people, it was thought best to have one central body which would
be free from local influences and have control over the entire election machinery
on the country.
Sunil Arora-23rd
Chief Election
Commissioner of
India
Composition and functions of the Election
Commission under Article 324 (Important)

• Chief Election Commissioner (CEC) [Article 324(2)]

• A number of Election Commissioners (ECs) as the President may appoint
from time to time.
• The CEC acts as the chairperson of the Election Commission in case any other
ECs are appointed beside him. [Article 324(3)]
• The office of the CEC is envisaged to be a permanent one.
• The office of ECs is cannot be envisaged as permanent.
• President may appoint Regional Commissioners (RCs) after consultation with
the Election Commission.
 When and why are RCs appointed?
• To assist the Election Commission for smooth functioning of elections
• Appointed before:
i. General Election to the Lok Sabha

ii. Election to the State Legislative Assembly

iii. Biennial Election to the State Legislative Councils [Article 324(4)]

 Rules and Regulations; Position [Article
324 (5)]
• President makes rules to determine the tenure and conditions of
service of the ECs & RCs. {subject to nay law made by the Parliament}
• ECs are placed on a higher pedestal than the RCs
• ECs are members of the Election Commission whilst the RCs are not
members of the Election Commission.
 Tenure of the Members
• CEC’s tenure is independent of the executive’s discretion.

• He cannot be removed from office except in the manner and on the

grounds of a Supreme Court Judge.

• The ECs & RCs are also free from executive discretion and they can
only be removed based on the recommendation of the CEC.
 Recruitment of Staff
• Election Commission dose not recruit staff in large numbers.

• Because elections are held at intervals.

• Accordingly Election Commission has been given adequate powers to

recruit staff as and when necessary from the Center and State
Government

• Staff falls under the disciplinary control of Governments.

• Upon the request of the Election Commission, these government
servants are appointed as public servants to assist the Elections

• However, employees of statutory bodies cannot be requisitioned for

election purposes.
- Election Commission of India vs State Bank of India Staff Association
[AIR 1995 SC 1078]
 Commission-A Multi-Member Body
• S.S Dhanoa vs Union of India AIR 1991 SC 1745 (important case)
- Notification rescinding previous notification by which petitioner appointed Election
Commissioner was challenged in the petition challenge made on ground of
independence of Election Commission

- Manner of appointment of petitioner and other Election Commissioners and attitude

adopted by them in discharge of their functions was hardly calculated to ensure free
and independent functioning of commission.

- Not possible to hold that Election Commissioners had same powers and authority as
Chief Election Commissioner and abolition of their posts does not infringe
independence of commission
 T N Seshan vs Union of India (1995) 4 SCC 611 (important case)
• Petitions were filed against Sections 9 & 10 of Ordinances (now Act), whereby Election
Commissioners (other than CEC) was appointed, as ultra vires on ground that they were
inconsistent with scheme underlying Article 324 of Constitution.

• Article 324(2) and (5) contemplate statute for appointment of Election Commissioners(EC) and
for their conditions of service - Impugned ordinance could not be challenged as unconstitutional
since they were expressly permitted by Clauses (2) and (5) of Article 324 of Constitution.

• Once provision for constitution of multi-member Commission is unassailable, provisions

incidental thereto cannot be challenged. Failure to consult Chief Election Commissioner(CEC)
before appointments of ECs did not vitiate appointment as Article 324 of Constitution nowhere
stipulates that before ECs are appointed, CEC will be consulted. Fact that present CEC had taken
certain decisions not palatable to ruling party at Centre, it was not permissible to jump to
conclusion that that was cause for Ordinance and appointments of ECs. Decision to constitute
multi-member Commission was not actuated by malice. ECs could not be thought of as pliable
persons being appointed with sole object of eroding independence of CEC.
 POWERS & FUNCTIONS OF THE
ELECTION COMMISSION (Important
10 or15 Marker)
• The Election Commission primarily exercises administrative functions but it also has
some adjudicative and legislative functions as well.
A) ADMINISTRATIVE POWERS
• Art. 324(1) assigns the following functions to the EC:
1) The Superintendence, direction and control of the preparation of the electoral rolls for
all elections to Parliament, State Legislatures, offices of the President and Vice-President
2)Conduct of these elections
The superintendence, direction and control of the entire electoral process in the country is
vested in the EC. The words “superintendence, direction and control” are of wide
amplitude. These words are wide enough to include all powers necessary for the smooth
and effective conduct of elections so that the will of the people is expressed.
• The term ‘election’ has been used in a wide sense so as to include the
entire process of election which consists of several stages and it
embraces many steps, some of which may have an important bearing
on the result of the process. However, the general powers of
superintendence, direction and control of the elections is vested in
the EC under Art.324(1) are subject to any law made either by
Parliament under Art. 327, or by the State Legislatures under Art. 328
of the Constitution.
• Art. 324(1) is a plenary provision vesting the whole responsibility in the EC for
National and State elections
• If the law makes no provision to meet a situation, Art. 324 enables the Constitution
to act to push forward a free and fair election with expedition. Article 324 makes
comprehensive provision to take care of surprise situations.
• The Commission can order a re-poll for the whole constituency under compulsion of
circumstances. Article 324 confers on the Election Commission necessary powers to
conduct the elections including the power to countermand the poll in a constituency
and ordering a fresh poll therein because of hooliganism and breakdown of law and
order at the time of polling or counting of votes.
• The Commission is subject to Rule of Law; it must act bona fide and be amenable to
the norms of natural justice in so far as enforcement of such canons can reasonably
and realistically be required of it as fair-play-in-action in the most important area of
constitutional law i.e. election.
Digvijay Mote v. Union of India (1993) 4 SCC 175

• The Supreme Court in ruled that the conduct of election is in the hands of the
EC which has the power of superintendence, direction and control of elections
vested in it as per Article 324 of the Constitution. Consequently, if the EC is of
the opinion that having regard to the disturbed condition in a State, or a part
thereof, free and fair elections cannot be held, it may postpone the same.
• However, this power is not uncontrolled and is subject to Judicial Review as it
is a statutory body exercising its functions affecting public law rights. The
judicial review will depend on facts and circumstances of each case. The court
emphasized that the power conferred on the Election Commission by Art 324
has to be exercised not mindlessly nor mala fide nor arbitrarily nor with
partiality but in keeping with the guidelines of the rule of law and not
satisfying the presidential notification nor exercising legislation.
B) LEGISLATIVE POWERS
Election Commission of India v. All India Anna Dravida
Munetra Kazahagam, 1994 Supp (2) SCC 689
• The EC issued an order limiting the hours for using loudspeakers for electioneering
purposes between 8 AM to 7 PM. The order was made to avoid noise pollution and
disturbance of peace and tranquillity of the public in general. The order was
challenged by a political party through a writ petition in the High Court. The High
Court took the view that there was no nexus between the restrictions imposed and
the power under Art 324. The EC appealed to the SC.
• The court without deciding the question whether the Commission has any such
power to make such an order under Art 324(1) in view of the pendency of t he Writ
Petition in the HC, set aside the interim order passed by the High Court in the interest
of public good and the inconvenience being caused to them. The Court held that the
impugned order was too restrictive and accordingly, banned the use of loudspeakers
during 10 PM and 6 AM and modified the order issued by the EC. – the matter was no
unrelated to the power of the EC
AC Jose v. Sivan Pillai, AIR 1984 SC 921
(Important case)
EVMs were used only in some polling booths in one constituency in Kerala. The validity
of elections was in question before the Apex Court.
• The SC laid down the following propositions as regards the power of the Commission
under Article 324:
1)When there is no law or rule made under the law, the Commission may pass any
order in respect of the conduct of elections,
2)When there is an Act and rules made thereunder, it is not open to the Commission
to override the same and pass orders in direct disobedience to the mandate contained
in the rules or the Act.
This means that the powers of the Commission, are meant to supplement, rather than
supplant, the law and the rules in the matter of superintendence, direction and
control provided under Art. 324.
3) Where the law or the rules are silent, the Commission no doubt has plenary
powers under Article 324 to give any direction in respect of the conduct of
elections.
4) In the absence of any specific provision to meet a contingency, the EC can
invoke its plenary powers under Art. 324
• The Commission cannot implement a direction as per its own will without the
approval of the Government.
• Rule 5(1) od the Rules made by the CG under RPA – empowers the EC to allot
symbols to candidates that they may specify
• The power to issue Symbols Order falls within the ambit of superintendence
direction and control power vested with the EC
• The Court has upheld the Order without characterising it as
“legislative” but treating it as “ a compendium of directions in the
shape of general provisions to meet the various kinds of situations
appertaining to elections with particular reference to symbols”
• “ The power to make these directions whether legislative or not flows
from both Art 324 as well as Rules 5 and 10.
Kanhaiya Lal Omar v RK Trivedi AIR 1986 SC 11

• Even if such directions are not traceable to Act or Rules, thr power under
Art 324 is plenary in character can compass all such provisions. Article
324 operates in areas left unoccupied by the legislature. The terms used
are broadest in nature and include all such powers.
• Any other rule can be traced to the reservoir of Art 324(1) which
empowers the Commission to issue all such directions necessary for the
purpose of conducting smooth and fair elections.
• If a competent legislation is enacted, the Commission is bound by it. The
Supreme Court has emphasized that no one is an imperium in imperio in
our Constitution. – 324 not divorced from the purpose of free and fair
elections- only when law is silent
Common Cause- A Registered Society v. Union of
India (1996) 2 SCC 752
• The question about the election expenses incurred by political parties, it was argued that
elections in India are fought with money power and so the people should know the sources of
the expenditure incurred by the political parties and the candidates in the process of election.
The Court ruled that purity of election is fundamental to democracy and the Commission can
ask the candidates about the expenditure incurred by the candidates and by a political party
for this purpose. In a democracy where rule of law prevails “ this type of naked display of
black money, by violating the mandatory provision of law, cannot be permitted.” The court,
therefore, ruled that under Art. 324, the commission can issue suitable directions to maintain
the purity of election and to bring transparency in the process of election.
• The Commission has the power to issue directions requiring the political parties to submit to
the election commission for its scrutiny , the details of the expenditure incurred or authorised
by the parties in connection with the election of their respective candidates. The Court
observed that “the Constitution has made comprehensive provision under Art. 324 to take
care of surprise situations and operates in areas left unoccupied by legislation.”
Are Legislative Powers of the Commission
real? ( Articles 327 and 328)
• No legislative powers, elections are governed by law made by the
Parliament under Articles 82 and 170 (3), Article 327, enforced by
Entry 72 of List I of the Seventh Schedule, Entry 37 in List II and Article
328
• The Delimitation Commission Act , 1952
• Representation of People Act 1950
• The President and Vice President Elections Act 1952
Lakshmi Charan Sen v. AKM Hussain Ujjaman AIR
1985 SC 1233
• The directions issued by the EC to the electoral officers are binding
upon such officers but such directions have no force of law so as to
create rights and liabilities between contestants of election. Election
laws are self contained codes. In the absence of any statutory
provision, the directions issued by EC cannot be equated with law.
• The EC is entitled to act ex debito justitiae, in the sense that it can
take steps or direct that steps be taken over and above those which it
is obligated to take under the law. Violation does not lead to rights or
liabilities, but invalidate the elections.
Kanhaiya Prasad Sinha v. Union of India AIE 1990
Pat 189
• The directions may be directory or mandatory in nature, but even
then they cannot be ignored. The State Government should respect
them and implement them. In case the government fails to respect
the directions, then the Court may examine the matter and pass
appropriate orders.
• The Model Code of Conduct has no legal effect and only holds moral
value.
Election Commission v. Subramanium Swamy, AIR
1996 SC 1810
• While deciding the question of disqualification against Ms. Jayalalitha,
a member of the Legislative Assembly of Tamil Nadu, there was
suspicion of bias against Shree Seshan who was CEC and the
Chairman of Election Commission. The lawyer wife of the complainant
(Dr. Swamy) was professionally engaged as the counsel in a case filed
by Shri Seshan. Therefore, the Supreme Court directed that CEC
should rescue himself from participating in the decision in the first
instance and let the two Election Commissioners decide the matter. In
case, they differ the CEC should express his opinion.
 C) ADJUDICATORY POWERS: ELECTION
DISPUTES
• Article 329(a) lays down that notwithstanding anything in the
Constitution, the validity of any law relating to the delimitation of
constituencies, or the allotment of seats to such constituencies, made
under Article 327 or Article 329 ‘shall not be called in question in any
court.’ This provision immunizes the law pertaining to the matters
mentioned from being questioned in a court or any ground whatsoever.
• Article 329(b) provides that “notwithstanding anything in the
Constitution”, no election to either House of Parliament or to a House of
a State Legislature “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.”
 Is Election Commission a tribunal under
Article 136 of the Constitution?
• In A.P.H.L. Conference, Shillong v. W.A. Sangma AIR 1997 SC 2155
The Supreme Court held that the Commission is a tribunal for the purposes of Art.
136 while deciding such a controversy. “ The power to decide this particular
dispute is a part of the State’s judicial power and that power is conferred on the
Election Commission by Art. 324 od the Consitution is also by Rule 5 of the Rules.”
The EC exercises both adjudicatory and judicial powers.
The EC is a constitutional body which is an independent and impartial body free
from any executive interference. But the powers of the Commission are subject to
a law made by Parliament or a State Legislature so long as the same does not
encroach upon the plenary powers of the Election Commission. The legislative
power is subject to the provisions of the Constitution.
• Conducting of elections is the sole responsibility of the Election Commission. As
a matter of law, the plenary powers of the Election Commission cannot be taken
away by law frame away by law framed by Parliament. If Parliament makes any
such law, it would be repugnant to Art. 324.
• On premature dissolution of the Assembly, the Election Commission is required
to initiate immediate steps for holding election for constituting legislature
assembly on the first occasion and in any case within six months from the date of
premature dissolution of the assembly.
• As regards framing of the schedule for holding the election, the matter lies
within the exclusive domain of the Commission. This is not subject to any law
passed by the Parliament. – applicable mutatis mutandis to Art 85 Lok Sabha
elections.
NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 1189

• The Appellant filed his nomination paper from a constituency for election to the State
Assembly. The returning officer rejected his nomination paper on certain grounds.
The question was whether the candidate could challenge the decision of the
returning officer through a writ petition under Article 226. The Supreme Court
answered in the negative. Keeping in view the phraseology of Article 329(b), the
Supreme Court declared that the courts were barred from dealing with any matter
arising while the elections were in progress, and till an election petition was disposed
of by an election tribunal but not thereafter. The courts would not interfere with the
process of election, i.e. from the time the notification is issued till the election
petition is disposed of. Any irregularity committed during the course of election could
be challenged through an election petition after the election was over.
• It is a matter of judicial policy and not judicial powers. Courts must impose self-
restrain to refrain from looking into election matters.
D) OTHER FUNCTIONS AND POWERS
OF THE COMMISSION
• The Commission also has the function of advising the President or the Governor on the
question of disqualification of any member of Parliament under Art. 103 (2) or a
member of the State Legislature under Art. 192(2). Under these circumstances the EC
has to function as a quasi-judicial body and follow the principles of natural justice and
rule against bias.
• An important function conferred on the Election Commission by law is the removal of
disqualification arising out of conviction for a specified offence, for purposes of voting
or standing as a candidate at an election. The Election Commission is supposed to
record its reasons while deciding such matters.
• In case of disqualification arising out of commission f a corrupt practice at an election,
it is for the President to determine whether such person shall be disqualified and for
what period. In this situation, the President has to act according to the opinion of the
Election Commission. – S.8A of RPA 1951
 CHALLENGES FACED BY THE
ELECTION COMMISSION (Important)
1) CONSTITUTIONAL PROTECTION FOR ALL MEMBERS OF THE ELECTION COMMISSION AND
AN INDEPENDENT SECRETARIAT FOR THE ELECTION COMMISSION
• The ECI is now a three-member body comprising the Chief Election Commissioner (CEC) and
two Election Commissioners (ECs). The ECs are at par with the CEC as far as the decision-
making power is concerned. In order to ensure the independence of the ECI and to keep it
insulated from all external pressure, clause(5) of Article 324 of the Constitution provides
protection to the CEC. In the matter of removability from office, the CEC enjoys the same
protection as is applicable to a Judge of the Supreme Court.
• However, the ECs do not have such protection. The Constitutional provision with regard to the
ECs is that they shall not be removed from office except on the recommendation of the CEC.
The ECI has put up a proposal to provide the same protection to the ECs as is available to the
CEC in the matter of removability from office. This will strengthen the independence of the
ECI. In the Constitution, the independence envisioned is for the institution and not for
individuals. For ensuring the total independence of the ECI, it is important to provide the
same protection to all its members.
2) THE BUDGET OF THE ELECTION COMMISSION IS TO BE ‘CHARGED’
The administrative expenditure of the ECI is a voted expenditure. The
ECI has proposed that the expenditure of the ECI should be charged on
the consolidated fund. A charged budget would also be symbolic of the
independence of the ECI. The Government of India had accepted the
ECI’s proposal in 1994 and introduced a Bill titled the Election
Commission (Charging of Expenses on the Consolidated Fund of India)
Bill 1994, in the House of the People, but the Bill lapsed without being
passed, on the dissolution of that House in 1996.
3) AN INDEPENDENT SECRETARIAT FOR THE COMMISSION
The ECI should have an independent Secretariat on the lines of the Lok
Sabha, the Rajya Sabha and the Registries of the Supreme Court and
High Courts. An independent Secretariat will enable the ECI to choose
and appoint officials considered suitable by the ECI without any
interference from the executive.
4) DECRIMINALISATION OF POLITICS AND ELECTIONS
In order to prevent persons with criminal backgrounds from becoming legislators, the
ECI has proposed the disqualification (from contesting the election) of a person against
whom charges have been framed by a Court for an offence punishable by imprisonment
of five years or more. Under the existing law, there is a disqualification once a person is
convicted and sentenced to imprisonment of two years or more.
In the case of certain specified offences, conviction itself leads to disqualification, even
without any sentence of imprisonment. The ECI’s proposal is for disqualification even
prior to conviction, provided the Court has framed charges. This would be a reasonable
restriction aimed at keeping any person accused of serious criminal charges out of the
electoral arena, in the larger public interest. As a precaution against foisting false cases
on the eve of the elections, it was suggested that only those cases filed six months prior
to an election be taken into account for that election.
5) REFORMS CONCERNING POLITICAL PARTIES CONTESTING THE ELECTIONS
Under the law, any group of citizens can be registered as a political party with the ECI, by
making an application, giving the required documents and other particulars. There are
more than 1,500 registered unrecognised political parties besides more than 50
recognised political parties. A large number of registered unrecognised political parties
do not seem to have a serious interest in contesting elections. There is no provision in the
law to de-register such a defunct party.
Section 29A of the R.P. Act, 1951, another clause may be introduced authorising the ECI
to issue necessary orders regulating the registration and de-registration of political
parties. The parties should be legally required to get their accounts audited annually and
publish them in the public domain. This will bring about transparency in the fund-raising
and expenditure by parties should be given only for those parties that contest elections
and win seats in the Parliament or State Legislature.
6) THE ISSUE OF GOVERNMENT- SPONSORED ADVERTISEMENTS
The departments of the Government in power publish advertisements through
print and electronic media about the achievements of the Government, and its
new schemes and programmes. This lends undue advantage to the political
party or parties in power, and could influence and drive electoral behaviour.
For ensuring a level playing field in the elections for all contesting candidates
and parties, the ECI has suggested that for six months before the date of expiry
of the term of the House, there should be a ban on advertisements on the
achievements of the Government. The ECI has also suggested that
advertisements and dissemination of information on poverty alleviation and
health-related schemes could be exempted from the ban.
7) THE MISUSE OF RELIGION FOR ELECTORAL GAIN
The Liberhan Ayodhya Commission of Inquiry recommended, inter alia, that all
complaints of misuse of religion for electoral gain should be speedily
investigated by the ECI. r The ECI has communicated its view that such
investigations should be carried out by the investigating agencies of the State
rather than by the ECI as the ECI does not have the wherewithal to conduct
such investigations. r A Bill was introduced in the Lok Sabha in 1994 [R.P.
(second amendment) Bill, 1994], in which an amendment was proposed
providing for provision to question before a High Court, acts of misuse of
religion by political parties. The Bill lapsed on the dissolution of the Lok Sabha
in 1996. The ECI has suggested that the provisions proposed in that Bill should
be considered again.
8) Electoral Bonds: A New Controversy
• The electoral bonds were introduced with the Finance Bill (2017). On January 29, 2018
the Narendra Modi-led NDA government notified the Electoral Bond Scheme 2018.

• The bonds will be issued in multiples of Rs 1,000, Rs 10,000, Rs 100,000 and Rs 1 crore
(the range of a bond is between Rs 1,000 to Rs 1 crore). These will be available at
some branches of SBI.

• A donor with a KYC-compliant account can purchase the bonds and can then donate
them to the party or individual of their choice. Now, the receiver can encash the bonds
through the party's verified account. The electoral bond will be valid only for fifteen
days.
 
Electoral Bonds - Conditions
• Any party that is registered under section 29A of the Representation of the
Peoples Act, 1951 (43 of 1951) and has secured at least one per cent of the votes
polled in the most recent General elections or Assembly elections is eligible to
receive electoral bonds.

• The party will be allotted a verified account by the Election Commission of India
(ECI) and the electoral bond transactions can be made only through this account.
 
• The electoral bonds will not bear the name of the donor. Thus, the political party
might not be aware of the donor's identity.
 
Controversy over Electoral Bonds
• Experts are of the view that if the electoral bonds scheme had been introduced to bring about
greater transparency, the government must not restrain from allowing details of such donations to
be made public.

• Experts and several politicians say that since neither the purchaser of the bond nor the political
party receiving the donation is required to disclose the donor’s identity, the shareholders of a
corporation will remain unaware of the company’s contribution. Voters, too, will have no idea of
how, and through whom, a political party has been funded.
 
• Opponents of the electoral bond scheme argue that since the identity of the donor has been kept
anonymous, it could lead to an influx of black money. Some others allege that the scheme was
designed to help big corporate houses donate money without their identity being revealed.
According to civil rights societies, the concept of donor "anonymity" threatens the very spirit of
democracy.
9) ROLE OF ELECTION
COMMISSION IN
DELHI ELECTIONS
2020
A. Kapil Sharma
Former AAP leader and BJP's candidate from Model Town for the upcoming Delhi elections, Kapil Mishra
has been at the centre of controversy on several occasions. During his stint in AAP, he said that the
Pulwama attacker Adil Ahmad Dar became a terrorist after he was hit by police, and if a slap can turn a
person into terrorists, Delhi Chief Minister Arvind Kejriwal would have become Osama bin Laden.  He then
brought corruption charges against AAP supremo and Delhi Chief Minister Arvind Kejriwal and defected
from the party to join BJP. During the campaign for Delhi elections, he tweeted that the February 8 polls
will see a battle between India and Pakistan, before adding that Pakistan has made its entry into Shaheen
Bagh and "small, small Pakistans are being created in Delhi". Because of the controversial tweets, the
Election Commission of India banned him from campaigning for 48 hours. 

Source: https://www.deccanherald.com/national/national-politics/delhi-elections-2020-bjps-
controversial-candidates-801857.html
B. Anurag Thakur & Parvesh Verma
• The Election Commission ordered the removal of BJP minister Anurag Thakur and BJP MP
Parvesh Verma from the list of campaigners of the Bharatiya Janata Party for the Delhi Assembly
polls with immediate effect. The EC has also sent notice to Verma and Thakur in the matter of
violation of provisions of Model Code of Conduct and Representation of the People Act, 1951.
• The Delhi election office on Tuesday had submitted its report to the Election Commission on the
suspected violation of model code of conduct by Verma and Thakur, BJP's star campaigners. The
report referred to Verma's remarks on Shaheen Bagh and his tweet regarding religious places,
besides Thakur's alleged "Shoot the traitors" poll slogan at a rally. Verma had said that mosques
and graveyards have come up on over 500 government properties in the capital, including
hospitals and schools. He said the land where these "illegal structures" have come up belong to
the Delhi Development Authority (DDA), Municipal Corporation of Delhi (MCD), Delhi Jal Board
and many other government agencies.
IMPORTANT CASES & QUESTIONS AS
PER THE COURSE PLAN
CASES
• Lily Thomas v Union of India.,AIR 2013 SC 2662
• In Presidential Reference, 2002.,AIR 2003 SC 87
6
• Jyoti Basu & Others Vs. Debi Ghosal & Others
• Election Commission of India: vs. Mohd. Abdul Ghani, 1995 SCC 6 721
• S.S Dhanoa vs Union of India AIR 1991 SC 1745
• T N Seshan vs Union of India (1995) 4 SCC 611
• AC Jose v. Sivan Pillai, AIR 1984 SC 921
QUESTIONS
Q: Examine the powers and functions of the Election Commission of India and discuss the present
challenges faced by it.
Q: Describe the composition of Election Commission of India.
Lily Thomas v Union of India, AIR 2013
SC 2662
• Two writ petitions were filed contesting the constitutional validity of Section 8(4) of RPA
• Disqualification to contest election on conviction. Members of Parliament or State Legislatures stand on
same footing as sitting members of Parliament and State Legislatures so far as disqualifications are
concerned.
Judgement
• Sitting Members of Parliament and State Legislatures cannot enjoy special privilege of continuing as
members even though they are convicted of offences mentioned in sub-sections (1), (2) and (3) of
Section 8.
• Sitting Members of Parliament or State Legislatures can no longer be protected by sub-section (4) of
Section 8.
• Parliament lacks legislative powers to enact Section 8(4).
• Accordingly Section 8(4), ultra vires the Constitution.
• Membership of Parliament or State Legislatures, not saved by Section 8(4), notwithstanding that
members convicted of offences files appeal or revision against conviction/and or sentence.
• Parliament is to make one law for a person to be disqualified for being
chosen as, and for being, a member of either House of Parliament or
Legislative Assembly or Legislative Council of the State.
In Presidential Reference 2002 ,AIR 2003 SC 87
6

Legislative Assembly of the State of Gujarat was constituted in March 1998 and its
five-year term was to expire on 18.3.2003. On 19.7.2002 on the advice of the Chief
Minister, the Governor of Gujarat dissolved the Legislative Assembly. The last sitting of
the dissolved Legislative Assembly was held on 3rd April 2002. Immediately after
dissolution of the Assembly, the Election Commission of India took steps for holding
fresh elections for constituting the new Legislative Assembly.
However, the Election Commission by its order dated 16th August, 2002 while
acknowledging that Article 174(1) is mandatory and applicable to an Assembly which
is dissolved and further that the elections for constituting new Legislative Assembly
must be held within six months of the last session of the dissolved Assembly, was of
the view that it was not in a position to a conduct elections before 3rd of October,
2002 which was the last date of expiry of six months from last sitting of the dissolved
Legislative Assembly.
Issues:
• Is Article 174 subject to the decision of the Election Commission of India
under Article 324 as to the schedule of elections of the Assembly?
• (ii) Can the Election Commission of India frame a schedule for the elections
to an Assembly on the premise that any infraction of the mandate of Article
174 would be remedied by a resort to Article 356 by the President?
• (iii) Is the Election Commission of India under a duty to carry out the
mandate of Article 174 of the Constitution, by drawing upon all the requisite
resources of the Union and the State to ensure free and fair elections?"
• The provisions of Article 174 are mandatory in character so far as the time period between two
sessions is concerned in respect of live Assemblies and not dissolved Assemblies. Article 174 and
Article 324 operate in different fields. Article 174 does not deal with elections which is the primary
function of the Election Commission under Article 324. Therefore, the question of one yielding to the
other does not arise. There is scope of harmonizing both in a manner indicated supra.
• Article 174 is not relatable to a dissolved Assembly. Similar is the position under Article 85 vis-a-vis
House of People. Merely because the time schedule fixed under Article 174 cannot be adhered to,
that per se cannot be the ground for bringing into operation Article 356.
• As Article 174 does not deal with election, the question of Election Commissioner taking the aid,
assistance or co-operation of the Center or the State Governments or to draw upon their resources
to hold the election does not arise. On the contrary for effective operation of Article 324 the Election
Commission can do so to ensure holding of free and fair election. The question whether free and fair
election is possible to be held or not has to be objectively assessed by the Election Commission by
taking into consideration all relevant aspects. Efforts should be to hold the election and not to defer
holding of election.
Jyoti Basu & Others v. Debi Ghosal &
Others
• Parties to the election petition had colluded and conspired and committed
various alleged corrupt practices.
• The reason for the appeal is because if a person who is not a candidate may not
be joined as a respondent to the election petition.
• Issues:
Whether the person who is not a candidate to the election can joined as a
respondent to the election petition?
• Held:
No one may be joined as a party to ah election petition otherwise than as
provided by Sections 82 and 86(4) of RPA. It follows that a person who is not a
candidate may not be joined as a respondent to the election petition
Election Commission of India v. Mohd.
Abdul Ghani, 1995 SCC 6 721
• The facts of the case showed that in a writ petition the Calcutta High Court had
issued a direction to the Election Commission to exclude 16 villages from the
territorial area of the Jangipur Constituency and to include those villages in the
Malda Constituency, considering the fact that these villages had become part of
the Malda District for administrative purposes. In 1976 the said villages were
part of Murshidabad District. The Election Commission filed an appeal before
the Supreme Court challenging the direction issued by the Calcutta High Court.
• While setting aside the order of the High Court, the Supreme Court observed
that the power of the Election Commission under section 9 of Representation of
Peoples Act, 1950 "cannot extend to alteration of the boundaries or area or
extent of any constituency as shown in the Delimitation Order"
 PARTY SYSTEM AND X SCHEDULE:
ANTI-DIFECTION LAWS
The emergence of a large number of political parties within the Indian
electoral landscape was accompanied by increasing defections. In fact,
nearly 438 defections occurred within the period between March 1967
and February 1968. The malaise of defection resulted in an increase in
political corruption and instability of governments. Principally, frequent
defections made a mockery of the party system and made the electoral
system vulnerable to frequent and unnecessary elections which
inevitably would cost a significant amount to the exchequer. Defections
revealed the inner state of party politics which was fraught with
division, fragmentation and factionalism.
• Hence, the need for an anti-defection law became increasingly urgent. The Committee on
Defections, under the Chairmanship of then Home Minister, Mr. YB Chavan submitted its
report in January 1969 where it noted that there were multiple acts of defections by the
same person(s) and also, indifference on the part of defectors to political proprieties,
constituency preference and public opinion.
• Finally, after the general elections in December 1984, the Constitution (Fifty-second
Amendment) Bill was introduced in the Lok Sabha in January 1985. The object of this anti-
defection law was to curb the evil of political defections motivated by the lure of office or
other similar considerations that endanger the foundations of our democracy. Pursuant to
this ideal, the amendment inserted the Tenth Schedule into the Constitution in order to
curb the evil of political defections. The 52nd Amendment Act, 1985 also amended
Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and
disqualification from membership of Parliament and the State Legislatures.
• Paragraph 2(1) of the Tenth Schedule provides that a member of
Parliament or State Legislature belonging to any political party shall be
disqualified for continuing as such member, if he:

• (i) has voluntarily given up his membership of such political party; or (ii)
votes or abstains from voting in the House contrary to any direction issued
by the political party to which he belongs or by any person or authority
authorised by him in this behalf, without obtaining, in either case, the
prior permission of such political party, person or authority and such
voting or abstention has not been condoned by such political party, person
or authority within 15 days from the date of such voting or abstention
• Further, Paragraph 2(2) provides that if a member elected as an
independent candidate joins any political party after his election, he
shall also stand so disqualified. Paragraph 2(3) provides that a
nominated member of a House shall be disqualified for being a
member of the House if he joins any political party after the expiry of
six months from the date on which he takes his seat upon taking an
oath or affirmation as a member of either House of Parliament, or of
the Legislative Assembly or the Legislative Council of the State.
EXCEPTIONS TO ANTI-DEFECTION
LAWS
• Mere insertion of the Tenth Schedule did not mark an end to the
problems arising out of defection. One of the primary reasons for the
ineffectiveness of the Tenth Schedule was the provision on ‘split’. The
170th Report of the Law Commission made the following observation
about the Tenth Schedule:
“The experience of the country with the Tenth Schedule since its
introduction has not been happy. It has led to innumerable abuses and
undesirable practices. While the idea of disqualifications on the basis of
defection was a right one, the provision relating to ‘split’ has been
abused beyond recall.”
• Paragraph 3 of the Tenth Schedule originally contained an exception for
disqualification on the ground of defection of members in the case of split
in the party to which they belonged, provided their strength was not less
than one-third of the members of their legislature party in the House.
• The intention behind inserting this provision in the Tenth Schedule was
the need to provide for such floor-crossing on the basis of honest dissent.
However, it was noticed that splits were being engineered for the purpose
of Paragraph 3 by indulging in the kind of practices which the Tenth
Schedule sought to prevent. The Tenth Schedule was criticised for
effectively allowing bulk defections while declaring individual defections
as illegal
• While Paragraph 3 with the exception on split has been deleted,
another exception to disqualification of the ground of defection exists
in the case of merger of a political party with another political party,
as provided under Paragraph 4 of the Tenth Schedule. A party shall be
deemed to have merged with another party if not less than two-thirds
of the members of the legislature party concerned have agreed to
such merger. If such merger takes place, those who do not agree to
such merger and opt to function as a separate group in the House are
also saved from disqualification, irrespective of their numerical
strength.
• The 170th Report of the Law Commission had recommended deletion
of Paragraph 4 as well (along with Paragraph 3) in the ‘interest of
maintenance of proper political standards in the House and also to
minimise the complications arising on that account.’ However, the
91st Amendment (or any other) did not delete the provision on
merger and it continues as an exception to the law on disqualification
upon defection.
 ROLE OF THE SPEAKER IN
DECIDING PETITIONS UNDER THE X
SCHEDULE
• It is necessary that the decisions taken by the deciding authority
under the Tenth Schedule are viewed as impartial and untainted by
political considerations. Currently, under Paragraph 6 of the Tenth
Schedule, any question as to whether a member of a House has
become subject to disqualification under the Tenth Schedule is
referred to the Chairman/Speaker of the House. While the decision of
the Chairman/Speaker can be judicially reviewed on various grounds,
the presence of Paragraph 6 has generated widespread controversy.
Kihota Hollohon v. Zachilhu(1992) 1 SCC
309.
• The constitutionality of the Tenth Schedule was challenged on the ground that the
investiture of adjudicatory functions in the Chairman/Speakers creates the
apprehension of political bias.
• The Supreme Court held that the Chairman/Speakers hold a pivotal position in the
scheme of Parliamentary democracy and it would be inappropriate to express
distrust in the high office of the Speaker, merely because some of the Speakers are
alleged to have discharged their functions in a manner not befitting the great
traditions of their high office. Hence, immense confidence was invested in the high
position that the Speaker enjoys within the constitutional scheme. Regardless of this,
Courts have imposed safeguards to ensure that the Speaker/Chairman does not act
in an arbitrary manner. As a necessary safeguard, the decision of the Speaker is
subject to review on the grounds of mala fides, non-compliance with the rules of
natural justice and perversity, among others.
• The minority held that the Speaker being dependent on continuous support
of the majority in the House, he does not satisfy the requirement of an
independent adjudicating authority and his choice as the sole arbitrator in the
matter violates an essential attribute of the basic feature. Not surprisingly,
decisions of Speakers with regard to disqualification on the ground of
defection have been challenged in various instances for being biased and
partial.
• For instance, in Mayawati v. Markandeya Chand and Ors, the Speaker’s
decision was challenged as being perverse because the Speaker unduly
delayed the proceedings under the disqualification petition. While the Court
refused to set aside the order of the Speaker in this case, legal challenges like
these erode the confidence posed in the office of the Speaker.
• The Supreme Court in Balchandra L. Jarkiholi and Ors. v. BS
Yeddyurappa also affirmed that the Speaker functions in a quasi-judicial
capacity, which makes orders passed by him subject to judicial review. In
this case, the Speaker was held to have not taken into consideration
rules of evidence while acting on the disqualification petition, and to
have acted in haste and in violation of the principles of natural justice.
The Court said that the Speaker acted in ‘hot haste’ while disposing off
the disqualification petition, even though there was no conceivable
reason for the Speaker to have taken up the matter in such hurry.
• For more information about Anti-Defection Laws, refer to: Electoral
Reforms in India: An overview by Saurabh Sinha, (2012) PL April S-24.
People's Union for Civil Liberties and Anr.
Vs.
Union of India (UOI) and Anr.
(2013 )10 SCC 1

REVISITING NOTA (FOR KNOWLEDGE PURPOSE ONLY)

STATEMENT OF FACTS

• Parties- Appellants: People's Union for Civil Liberties and Anr.

Respondent: Union of India (UOI) and Anr.
• Events- The People’s Union of Civil Liberties (PUCL), a civil rights NGO, moved to the
Supreme Court of India in the form of a PIL about the grant of right to reject in the elections
in India.  They questioned the constitutional validity of Rules 41(2), (3) and 49-O of the
Conduct of Election Rules, 1961.
• Claims-
• (i) declaring that Rules 41(2) and (3) and 49-O of the Conduct of Election Rules, 1961 are
ultra vires and unconstitutional to the extent they violate secrecy of vote;
• (ii) direct the Election Commission under the existing Representation of People Act, 1951
and the Conduct of Election Rules, 1961 and/or under Article 324 to provide necessary
provision in the ballot papers and the voting machines for protection of right not to vote
and to keep the exercise of such right secret.
ISSUES
• Whether a writ petition is maintainable under Article 19 against the
right of secret balloting of the citizens of India during elections?
• Whether right to vote includes right not to vote?
• Whether the right of expression under Article 19 stands infringed
when secrecy of the poll is not maintained?
LAW
Conduct of Election Rules, 1961:
 41(2)(3) -> (1) An elector who has inadvertently dealt with his ballot paper in such manner that it cannot
be conveniently used as a ballot paper may, on returning it to the presiding officer and on satisfying him of
the inadvertence, be given another ballot paper, and 3 [the ballot paper so returned and the counterfoil of
such ballot paper] shall be marked ``Spoilt: cancelled'' by the presiding officer. (2) If an elector after
obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and 3 [the ballot
paper so returned and the counterfoil of such ballot paper] shall be marked as ``Returned: cancelled'' by the
presiding officer. (3) All ballot papers cancelled under sub-rule (1) or sub-rule (2) shall be kept in a
separate packet.
 49-O ->   Elector  deciding  not  to  vote.-If  an  elector,  after  his electoral  roll number has been duly
entered in the register of voters in  Form-17A and has put his signature or thumb impression thereon  as
required  under  sub-rule (1) of rule 49L, decided not to  record  his vote,  a remark to this effect shall be
made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of
the elector shall be obtained against such remark.
Constitution of India
 Article 14- The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.
 Article 19(1)- All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble
peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the
territory of India; (e) to reside and settle in any part of the territory of India; 1 [and] 2* * * * * (g) to
practise any profession, or to carry on any occupation, trade or business.
 Article 21- No person shall be deprived of his life or personal liberty except according to procedure
established by law
 Article 326- The elections to the House of the People and to the Legislative Assembly of every State shall
be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less
than 2 [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.
ARGUMENTS FOR THE MOTION
Essential for functioning of a vibrant democracy-
• Right to vote is not a fundamental right, but merely a statutory right. But this statutory right is the essence
of democracy. Without this democracy will fail to thrive.If secrecy is not provided to a person choosing
NOTA, then the person can’t vote freely and fearlessly.
• Free and fair election is a basic structure of the constitution and necessarily includes the right of a person
to vote freely without any sort of coercion. Hence, there should be equality in terms of secrecy between
the voter who casts his vote and the voter who doesn’t.
• A positive 'right not to vote' is a part of expression of a voter in a parliamentary democracy and it has to be
recognized and given effect to in the same manner as 'right to vote'.
• Mechanism of negative voting – serves a very fundamental and integral part of a vibrant democracy.
• For democracy to survive, it is essential that the best available men should be chosen as people's
representatives for proper governance of the country. This can be best achieved through men of high moral
and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must
be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the
political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative
voting.
•  
Represents the will of the people
• Giving right to a voter not to vote while protecting his right of secrecy is important. This will allow the
voter to express his disapproval with the candidates. If the right to give no vote is there, a dissatisfied voter
may not turn up, as a result someone else might use his identity and vote.
• A person votes because he is willing to vote for a particular candidate. If the person is dissatisfied with the
candidate he should also have an option not to vote.
Right to Vote is different from Freedom to Vote
• The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and
preference and that final stage in the exercise of voting right marks the accomplishment of freedom of
expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right
to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and
complementary rights such as right to secure information about the candidate which are conducive to the
freedom.
Freedom to Vote is a Fundamental Right
• The decision taken by a voter after verifying the credentials of the candidate either to vote or not is a
form of expression under Article 19(1)(a) of the Constitution. The fundamental right under Article 19(1)(a)
read with statutory right Under Section 79(d) of the RP Act is violated unreasonably if right not to vote
effectively is denied and secrecy is breached. This is how Articles 14 and 19(1)(a) are required to be read
for deciding the issue raised in this writ petition. The casting of the vote is a facet of the right of
expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution of India
(Vide: Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra).
Therefore, any violation of the said rights gives the aggrieved person the right to approach this Court
under Article 32 of the Constitution of India.
ARGUMENTS AGAINST THE MOTION
 Right to vote is merely a statutory right and not a fundamental right, therefore a writ petition is not
maintainable
Right to vote is a statutory right but the decision taken by a voter after verifying the credentials of the candidate
either to vote or not is his right of expression under Article 19(1)(a) Judgements in cases of Association of
democratic reforms and peoples union for civil liberty rather denying the mentioned fact have only added to the
same concept saying right to know the background of a candidate is a fundamental right of a voter so that he can
take a rational decision of expressing himself while exercising the statutory right to vote.
Ballot system
Rule 39 talks about secrecy while voting by ballot and Rule 41 talks about ballot papers. However, as said earlier,
in the case of voting by ballot paper, the candidate always had the option of not putting the cross mark against the
names of any of the candidates and thereby record his disapproval for all the candidates in the fray.
Democracy is concerned with free and fair elections(negative voting is not of prior concern)
Democracy and free elections are part of the basic structure of the Constitution. (Indira Nehru Gandhi v. Raj
Narain Khanna,) democracy postulates that there should be periodic elections where the people should be in a
position to re-elect their old representatives or change the representatives or elect in their place new
representatives.
Positive voting vs negative voting
Section 62 of the RP Act, contended that this Section enables a person to cast a vote and it has no scope for negative
voting. Elections are conducted to fill a seat by electing a person by a positive voting in his favour and there is no concept
of negative voting under the RP Act. Election is only a means of choice or election between various candidates to fill a
seat.
RATIO DECIDENDI
• The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the
voter.
• Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the
auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the
freedom.
• The right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution
and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute,
namely, R.P. act.
• Mechanism of casting vote shall be illegal and ultra vires if finds that it compromise on secrecy of vote as elector and not
provide any privacy when fact of neutral/negative voting goes into record.
OBITER DICTA
• Right to vote as well as right not to vote have been statutorily recognized Under Section 79(d) of the RP Act and Rules
41(2) and (3) and 49-O of the Rules respectively. Whether a voter decides to cast his vote or decides not to cast his vote, in
both cases, secrecy has to be maintained.
• Secrecy of ballots is a vital principle for ensuring free and fair elections, the higher principle is free and fair elections.
• Democracy can only function when elections are free and fair and the people are free to vote for the candidates
 CONCLUSION
A successful democracy requires the best men to lead a country
chosen according to the will of the people. The right to not vote
allows citizens to choose their leaders and exercise their right to
free and fair elections.
Negative voting represents their will and sends a signal to the
political parties to nominate the best candidates.
The secrecy provided to all the voters promotes fairness and
liberty of elections. This allows the citizens to vote freely and
fearlessly.
REFERENCE MATERIAL

• Vol 1. MP Jain, Indian Constitutional Law 1,183-1,214(7th ed. 2017).

• www.eci.nic.in
• Electoral Reforms in India: An overview by Saurabh Sinha, (2012) PL April S-24.
• https://www.barandbench.com/news/electoral-bonds-voters-dont-have-right-
to-know-source-of-funding-of-political-parties-ag-kk-venugopal
• https://pib.gov.in/newsite/PrintRelease.aspx?relid=116934
• http://lawcommissionofindia.nic.in/reports/Report255.pdf
• https://shodhganga.inflibnet.ac.in/bitstream/10603/167048/6/06_chapter
%202.pdf