Contents

Chapter 1

Introduction and Meaning of Election

* History of Elections in India

 1

• Definition of the Term "Election"

 4

• Meaning of the Term "Electioneering"

 5

• Meaning of the Phrase "Electoral Right"

 5

• Meaning of the Word "Ballot" or "Casting of Vote"

 5

• Electronic Voting System or Computerised Voting System

 5

• Exit Poll

 5

Q. For making the democracy more meaningful

 6

• Principle behind the Term `Election'

 6

Q. Explain the system of election prevalent in India

 6

• Systems of Election

 6

Q. Single transferable vote system is designed to ensure more diverse representation

 6

Q. Now, only one vote to be cast by each elector

 7

• Stages of Election

 7

Q. Why the word `election' used in wide sense in Part XV of the Constitution of India?

 7

• Electoral Right and Nature of Election Proceedings

 8

Q. Right to elect is neither a fundamental right nor a common law right, it is a statutory right

 8

• Right to Vote

 8

Q. Right to elect and right to be elected do not inherit in a person

 8

Q. In what manner the Halsbury's Laws of England expressed the expression "Commencement of the election"?

 9

• Commencement of the `Election' in Halsbury's Laws of England

 9

Q. What are the principles of Election Law?

 9

• Principles of Election Law

 9

* Preamble to the constitution of india

 10

• Expression `We the People' in Constitution of India

 10

Q. Whether the authority is derived from the people, as recited in the Preamble,is purely academic?

 10

• The Words "Sovereign Democratic Republic": in our Constitution

11

Q. `Sovereign Democratic Republic', means both externally and internally India is sovereign

 11

• Model Code of Conduct by Election Commission of India for the Guidance of Political Parties and its Candidates

 11

I. General Conduct

 11

II. Meetings

 12

III. Procession

 13

IV. Polling Day

 13

V. Polling Booth

 14

VI. Observers

 14

VII. Party in Power

 14

* Frequently Asked Questions (Faqs) on select Model Code of Conduct

 15

Q. What is the Model Code of Conduct?

 15

Q. What is the Role of Election Commission in the Matter?

 15

Q. From which Date the Model Code of Conduct is Enforced and Operational upto which Date?

 16

Q. What is Applicability of Code During General Elections and Bye-elections?

 16

Q. What are the Salient Features of the Model Code of Conduct?

 16

* ON OFFICIAL MACHINERY

 16

Q. Whether a Minister can Combine his Official Visit with Electioneering Work?

 16

Q. Whether Government Transport can be Used for Electioneering Work?

 16

Q. Whether Government can Make Transfers and Postings of Officials who are Related to Election Work?

 16

Q. Suppose an Officer Related to Election Work has been Transferred by the Government before Enforcement of Model Code of Conduct and has not taken over Charge at New Place. Can such Officer Take over Charge of Office at New Place after Announcement of the Code?

 16

Q. Whether a Minister of Union or State can Summon any Election-Related Officer of the Constituency or the State for any Official Discussion During the Period of Elections?

 17

Q. Can an Official Meet the Minister on his Private Visit to the Constituency where Elections are being held?

 17

Q. Whether Ministers are Entitled for Official Vehicle During the Election?

 17

Q. Whether Ministers or any other Political Functionaries can use Pilot Car with Beacon Lights Affixed with Siren?

 17

Q. Suppose there is a Visit of President/Vice President at any Place in the State. Is a Minister Allowed to use VIP Car with other Protocol?

 17

Q. Suppose a Vehicle has been Provided to Minister by the State and the Minister is given an Allowance for Maintenance of such Vehicle. Can it be used by the Minister for Election Purposes?

 17

Q. Whether Facility of Official Vehicles can be Withdrawn from those Ministers who Violate the Provisions of Model Code of Conduct?

 18

* ON WELFARE SCHEMES, GOVERNMENT WORKS ETC.

 18

Q. Is there any Restriction on Issue of Advertisement at the Cost of Public Exchequer Regarding Achievements with a View to Furthering the Prospects of the Party in Power?

 18

Q. Whether a Minister or any other Authority can Sanction Grants/Payments out of Discretionary Funds?

 18

Q. Whether Money can be Withdrawn from Treasury Against the Sanctioned Amount from the Discretionary Funds of Ministers to Prepare Draft in the Names of Beneficiaries which may be Disbursed after Process of Election is Completed?

 18

Q. Suppose Work Order has been Issued in Respect of a Scheme or a Programme. Can it be Started after Announcement of Election Programme?

 18

Q. Whether State Government can Seek Clarification/Clearance/Approval in Respect of any Proposal Directly from the Election Commission?

 18

* ELECTION CAMPAIGN

 18

Q. What are the Main Guidelines for Political Parties/Candidates while making Election Campaign?

 18

Q. Are their any Restrictions in Using Religious Places for Election Propaganda?

 19

Q. Can a Candidate go to the Office of Returning Officer for Filing a Nomination with a Procession?

 19

Q. How many Persons are Allowed at the Time of Scrutiny of Nominations by the Returning Officer?

 19

Q. Are there any Guidelines Regarding Use of Vehicles by Ministers/Political Functionaries/Candidates, who have been Provided Security Cover by the State?

 19

Q. Whether there is any Restriction for Plying of Vehicles for Electioneering Purposes?

 19

Q. Whether a Vehicle for which Permission has been Taken for Election Campaign in the Name of a Candidate, can be Used for Election Campaign by Another Candidate?

 20

Q. Can a Vehicle be Used for Electioneering Purposes Without Getting Permit from the District Election Officer/Returning Officer?

 20

Q. Whether there is any Restriction on Use of Educational Institutions including their Grounds (whether Government Aided, Private or Government) for Political Campaigns and Rallies?

 20

Q. Is External Fitting/Modification Allowed in the Vehicles Used for Campaigning?

 20

Q. Is there any Restriction or Use of Rest Houses, Dak Bungalows or other Government Accommodation for Campaign Office or for Holding any Public Meeting for the Purpose of Election Propaganda?

 20

Q. Are there any Conditions for Getting Government Aircraft/Helicopters (Including Public Sector Undertakings) by Political Parties/Candidates?

 21

Q. Is there any Restriction on Displaying Poster, Placard, Banner, Flag etc of the Party Concerned or the Candidate on a Public Property?

 21

Q. If Local Law/Bye-laws Permit Wall Writings and Pasting of Posters,Putting up Hoardings, Banners etc. on Private Premises/Properties, is it Necessary to Obtain Prior Written Permission from the Owner of the Premises/Properties?

 21

Q. Is there any Restriction on Displaying/Carrying Poster/ Placard/Banner/Flag of the Party Concerned or of the Candidate on the Vehicle During the Procession?

 22

Q. Whether there is any Ban on Use of Plastic Sheets for Making use of Posters/Banners During the Election Campaign?

 22

Q. Is there any Restriction on the Printing of Pamphlets, Posters etc?

 22

Q. Whether there is any Restriction on Air Dropping of Leaflets/Pamphlets by the Political Parties/Candidates?

 22

Q. Is Wearing of Special Accessories Like Cap, Mask, Scarf etc. of a Candidate Permitted During the Campaigning?

 22

Q. Whether Dummy Ballot Units of EVM can be Prepared by the Candidate for the Purpose of Educating the Voters?

 22

Q. Whether there is Restriction to Display to the Public any Election Matter by Means of Cinematograph, Television or other Similar Apparatus?

 22

Q. Whether a Candidate can Print and Distribute the Diary/Calendar/Sticker Depicting his Image or Image of Gods/ Deities etc.

 23

Q. Whether Distribution of Printed "Stepney Covers" or other Similar Material Containing Symbol of Party/Candidate or Without Depicting it, is a Violation?

 23

Q. Are there Conditions/Guidelines for Setting-up and Operating of Temporary Offices by Party or Candidate?

 23

Q. Is there any Restriction on the Presence of Political Functionaries in a Constituency after Campaign Period is over?

 23

Q. Is such Restriction Applicable in the Case of Office Bearer of a Political Party who is In-charge of Election in the State?

 23

Q. Whether there is any Restriction for Holding Public Meeting or Taking out Processions?

 23

Q. Whether Loudspeakers can be Used for Public Meetings or for Processions or for General Propaganda without Obtaining Permission from Police Authorities?

 24

Q. Whether there is any Time Limit for Using Loudspeakers?

 24

Q. What is the Deadline after which no Public Meetings and Processions can be Taken out?

 24

Q. Whether there are any Guidelines for Political Parties/Candidates for Issue of Unofficial Identity Slips to Voters?

 24

Q. Is there any Restriction on Appointment of a Minister/M.P./M.L.A/M.L.C or any other Person who is under Security Cover as an Election Agent/Polling Agent/Counting Agent?

 24

Q. Is a Candidate Allowed to Appoint Persons as Polling agents from Anywhere?

 24

Q. Who is the Authority to Issue Permits to Star Campaigners (Leaders)of the Political Parties who Avail Benefit under Section 77(1) of the Representation of the People Act, 1951?

 25

Q. Whether Opinion poll or Exit poll can be Conducted, Published,Publicized or Disseminated at any Time?

 25

Q. Whether there is any Restriction for Transmitting Short Messages Service (SMSs)?

 25

* POLL DAY

 25

Q. Are there any Guidelines for Setting-up of Election Booth by Candidate/Political Parties Near Polling Station on the Day of Poll?

 25

Q. Is it Necessary to Obtain Written Permission of the Concerned Government Authorities or Local Authorities for Setting-up of Election Booth?

 26

Q. Is there any Restriction of Canvassing in or Near Polling Station?

 26

Q. Whether the Use of Mobile Phone is Allowed in the Polling Station?

 26

Q. Is there any Restriction of Going Armed to or Near Polling Station?

 26

Q. How many Vehicles a Candidate is Entitled for on the Day of Poll?

 26

Q. If the Candidate is Absent from the Constituency on the Day of Poll,can the Vehicle Allotted in his Name be Used by any other Person?

 26

Q. Can any Type of Entitled Vehicle be Used on the Day of Poll?

 27

Q. Whether Political Party/Candidate can Make Arrangements for Transporting Voter to and from Polling Station?

 27

Q. Whether there are Restrictions on Plying of Government/Private Vehicles on the Poll Day?

 27

Q. Can a Leader of Political Party Use Private Fixed-wing Aircraft and Helicopters for the Purposes of Supervising and Monitoring the Polling and Counting Process on the Day of Poll and Counting?

 27

* Proposals for Electoral Reforms

 27

1. Affidavits to be Filed by Candidates on Criminal Antecedents, Assets, etc.

 27

2. Need to Increase the Security Deposit of Candidates

 28

3. Criminalisation of Politics

 29

4. Restriction on the Number of Seats from which one may Contest

 30

5. Exit Polls and Opinion Polls

 30

6. Prohibition of Surrogate Advertisements in Print Media

 32

7. Negative/Neutral Voting

 33

8. Appointment of Appellate Authority in Districts Against Orders of Electoral Registration Officers

 33

9. Compulsory Maintenance of Accounts by Political Parties and Audit Thereof by Agencies Specified by the Election Commission

 33

10. Government Sponsored Advertisements

 34

11. Political Advertisements on Television and Cable Network

 34

12 Composition of Election Commission and Constitutional Protection of all Members of the Commission and Independent Secretariat for the Commission

 35

13. Expenses of Election Commission to be Treated as Charged

 36

14. Ban on Transfers of Election Officers on the Eve of Elections

 36

15. All Officials Appointed in Connection with Conduct of Elections to be Included in Clause (7) of Section 123

 37

* PART-II—Pending Proposals

 38

1. Anti-Defection Law

 38

2. Use of Common Electoral Rolls at Elections Conducted by the Election Commission and the State Election Commissions

 38

3. Simplification of Procedure for Disqualification of a Person Found Guilty of Corrupt Practice

 39

4. Same Number of Proposers for all Contesting Candidates Amendment of Section 33 of the Representation of the People Act, 1951

 41

5. Making of False Declaration in Connection with Elections to be an Offence

42

6. Rule Making Authority to be Vested in Election Commission

 42

7. Registration and De-registration of Political Parties Strengthening of Existing Provisions

 42

* Election of the President of india

 43

Q. What is the meaning of words `electoral college' used in Article 54 of the Constitution of India?

 43

Q. Explain the manner of election of the President of India?

 44

• Manner of Election of President of India

 44

• Qualification for Election as President of India

 44

Q. What is the eligibility for a person to be elected as President of India?

 44

• Office of Profit

 45

Q. Is it necessary for a candidate for election as President to take oath?

 45

• Requirement of Oath for Candidates for election as President of India

 45

* Election of Vice-President of India

 45

Q. He is elected by the members of an electoral college

 45

Q. He shall vacate membership of either House of Parliament or State Legislature if any

 45

Q. Explain the eligibility of a person for election as Vice-President

 46

• Eligibility for Election as Vice-President of India

 46

Q. Explain the ineligibility of a person for election as Vice-President

 46

• Ineligibility for Election as Vice-President of India

 46

Q. Vice-President to make and subscribe before the President an oath or affirmation

 46

• Oath or Affirmation by the Vice-President of India

 46

* Parliament of India

 46

Q. What is the System of Composition of Upper House?

 46

• Composition of the Council of States

 46

• Nomination of Members by President of India

 46

* Election of representative of States and Union Territories

 47

• Composition of the House of the People (Lok Sabha)

 47

Q. What is the maximum permissible strength and composition of the Lower House?

 47

• Maximum Permissible Strength

 47

Q. In what manner number seats of the Lower House allotted to each State?

 47

• Manner of Allocation of Seats

 47

• Meaning of the Expression "Population"

 48

• Readjustment after each Census

 48

Q. What is the qualification for a person to be chosen to fill a seat in Parliament?

 48

• Qualification for Membership of Parliament

 48

* The State Legislature

 49

Q. Mention the States having two Houses?

 49

• Composition of the Legislative Assemblies

 49

Q. Maximum and Minimum Strength

 49

Q. What is the procedure of composition of State Legislative Assemblies?

 49

Q. Manner of Allocation of Seats

 49

• Meaning of Expression "Population"

 49

• Readjustment of Seats of State Assemblies

 49

Q. Why the readjustment of seats is made?

 50

Q. How many States are having Legislative Councils?

 50

• The Legislative Councils

 50

• Abolition and Creation of Legislative Councils in States

 50

Q. How the Legislative Councils in States are abolished or created?

 50

• Legislative Council is a Permanent House

 50

• Maximum and Minimum Strength

 50

Q. What is the Procedure of Composition of Legislative Council?

 51

• Composition of Legislative Council

 51

• Who can be Nominated by the Governor?

 51

• Manner of Elections to Legislative Councils

 52

Q. What is the qualification for a person to be chosen to fill a seat in the Legislature of a State?

 52

• Qualification for Membership of the State Legislature

 52

* Part XV of the Constitution of India (Elections)

 52

• Abolition of Post of Election Commissioners

 54

Q. Only citizens of India of not less than eighteen years of age are eligible to vote

 54

Q. Who is empowered to make provisions with respect to elections to either House of Parliament or State Legislatures?

 55

• Declaration of Assets and Liabilities of a Candidate

 55

Q. What is the Limitation of State Legislature to make provisions with respect to elections?

 55

• Election Funding

 55

• Bar to Interference by Court in Electoral Matters

 55

* Disputes Regarding Elections

 56

• Part VI of the Representation of the People Act, 1951

 56

• Challenge to Election

 56

Q. What is meant by the expression "no election shall be called in question except by way of election petition....." as used in Article 329(b) of the Constitution of India?

 56

• Appreciation of Evidence by High Court

 58

• Grounds of Challenge to Election

 58

Q. What are the grounds on which an election may be challenged by means of a petition?

 59

• Clauses (c) and (d) of Section 100: Distinction

 59

Q. Can Civil Courts interfere in electoral matters?

 60

• Jurisdiction of Civil Courts in Electoral Matters

 60

* Election Petitions

 61

• Who can try Election Petition?

 62

Q. Briefly explain the `computation of limitation period' in case of presentation of election petition?

 63

• Limitation in Case of Presentation of Election Petition

 63

• Computation of Limitation Period

 63

• `General Election' cannot be Challenged as a Whole

 65

Q. Can a general election as a whole can be challenged?

 65

Q. What will be the effect when law amended during the pendency of election petition?

 65

• When Law Amended During the Pendency of Election Petition

 65

• Disposal of Election Petition

 65

• Who can be a Petitioner?

 66

Q. What is the manner in which copies to be attached with election petition?

 66

• Copies to be Attached with Election Petition

 66

Q. Who can join as a respondent to an election petition?

 66

• Parties to the Election Petition

 66

• Contents of Election Petition

 67

Q. Explain briefly the contents of election petition with the help of decided caselaws?

 67

Q. What do you mean by `material facts'?

 68

Q. What do you understand by the term `reasonable cause of action'?

 68

Q. What is difference between `material facts' and `material particulars'?

 68

Q. Can an election petitioner claim for any relief?

 70

• Relief that may be Claimed by the Petitioner

 70

Q. High Courts and Article 226

 70

Q. Whether the High Court can be moved under Article 226 of the Constitution with respect to the matter retated to election?

 71

Q. Election Petitions to High Court

 71

Q. How the election petition to the High Court be presented? Explain with the help of decided cases

 72

• Presentation of Election Petition

 72

• Security for Costs

 73

• Trial of Election Petitions

 73

Q. Explain the manner in which the High Court can try the election petition?

 74

Q. Is there any specified time limit in which the High Court has to conclude the trial?

 75

• Time Limit to Conclude the Trial

 75

Q. Is Code of Civil Procedure applicable in case of election petition?

 75

• Applicability of Code of Civil Procedure to the Trial of Suits

 75

Q. Is the Evidence Act applicable to the trial of election petiton?

 76

• Applicability of Evidence Act to the Trial of Election Petitions

 76

* Case Laws

 76

Q. "Art. 329(b) of the Constitution of India prohibits the Courts" Do you agree with the statement? Support your answer with N.P. Ponnusowami case.

 77

Q. Discuss the principles of law laid down in N.P. Ponnusowami v. Returning Officers, case

 78

Q. Briefly discuss the facts and law applied in Jyoti Basu v. Debi Ghosal, case

 80

Q. Briefly discuss the facts and law applied in The Election Commission of India v. Shivaji, case

 81

Q. Examine the various issues discussed by the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioners, case

 83

Chapter 2

Election Commission of India

* Composition of Election Commission of India

 87

Q. What is the procedure of composition of Election Commission of India?

 87

Q. How the Chief Election Commissioner and other Election Commissioners of India are appointed?

 87

• Appointment of Chief Election Commissioner (CEC) and other Election Commissioners of India

 87

Q. Is there any pre-requisite qualification of CEC and ECs of India prescribed by the Constitution?

 88

• Qualifications for Chief Election Commissioner (CEC) and Election Commissioners (ECs) of India

 88

Q. Explain the condition of services of Chief Election Commissioner (CEC) and Election Commissioners (ECs) of India

 88

• Conditions of Service of Election Commissioner (CEC) and Election Commissioners (ECs) of India

 88

Q. Discuss briefly the legal and constitutional position of Election Commission of India

 89

• Legal and Constitutional Position of Election Commission of India

 89

Q. Critically examine the changes in the composition of Election Commission of India since its formation in 1950

 90

• Changes in the Composition of Election Commission of India Since its Formation

 90

Q. How the Regional Election Commissioners are appointed?

 93

• Regional Election Commissioners

 93

• Secretariat of the Election Commission of India

 94

Q. Discuss the powers and functions of Election Commission of India

 94

• Functions of the Election Commission of India

 94

Q. Primary Functions under the Constitution

 94

Q. Critically analyse the expression `Superintendence, Direction and Control' used in Article 324 of the Constitution of India.

 95

Q. Amplitude of Powers—Meaning of Superintendence, Direction and Control

 95

Q. Can Election Commission of India advise the President and the Governor in the matter of disqualification of sitting members of the Parliament and State Legislature?if so, what are those disqualifications?

 97

• Decision of Election Commission of India on Disqualifications of Members

 97

Q. How the fate of a person guilty of corrupt practice in an election is decided?

 99

• Other Functions of Election Commission of India

 99

Q. Explain the quasi-judical functions of the Election Commission of India

 100

• Quasi-judicial Functions of Election Commission of India

 100

Q. Can the functions of the Election Commission be delegated?

 101

• Delegation of Functions of Election Commission of India

 101

• Whether the Election Commission of India is Empowered to Issue Directions Ordered by the High Court?

 101

• What would be Position if the Election Commission of India would Indefinitely Postpone the Election?

 102

• Is Article 174 not Subject to the Decision of the Election Commission of India under Article 324 as to the Schedule of Elections of the Assembly?

 102

• 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 would be Remedied by a Resort to Article 356 by the President?

 174

* CaseLaws

 103

Q. Critically examine the decision in S.S. Dhanoa v. Union of India, case

 104

Q. Critically examine the decision in A.C. Jose v. Sivan Pillai, case

 105

Q. Discuss the principles of law laid down in determining as to who was entitled to the election symbol of "Two Bulls and Yoke on" in Sadiq Ali v.The Chief Election Commission of India, case On Election Symbol

 106

Q. Whether the Election Commission of India got jurisdiction to decide dispute?Discuss in the right of the decision in Sadiq Ali v. Election Commission of India, case

 107

Chapter 3

Delimitation of Constituencies

* Courts not to interfere in delimitation matter

 109

* Delimitation of Parliamentary and Assembly Constituencies (Except Assembly Constituencies in Jammu and Kashmir)

 112

• Initial Delimitation in 1950-51

 112

Q. Election Commission's Report on First General Election

 112

Q. Write short note on initial delimitation of parliamentary and assembly constituencies?

 113

• Delimitation After 1951-census

 113

Q. Election Commission's Report on Second General Elections

 113

• Delimitation After 1961-Census

 114

Q. Based on the Election Commission's Report on Fourth General Elections

 114

• Delimitation After 1971-Census

 114

Q. Based on Election Commission's Report on General Election

 114

Q. Associate Members of Delimitation Commission

 115

Q. Delimitation Commission: Powers and Procedure

 115

Q. Write short note on power and procedure of Delimitation Commission.

 115

• Delimitation After 1981 and 1991 Census

 115

• Basic Principles to be Followed for Delimitation

 115

Q. Discuss the basic principles to be followed for delimitation?

 116

• Determination of Delimitation in Certain Cases

 117

• Delimitation Commission's order with respect to the State of Jharkhand not to have any legal effect

 118

Q. Examine the process of delimitation?

 118

• Process of Delimitation

 118

Q. Based on Election Commission's Report on General Election to Legislative Assemblies in 1974 and 1975

 118

Q. What do you mean by term `propulation'?

 119

• Meaning of Population

 119

* Council Constituencies

 120

• Meaning

 120

• Allocation of seats in the Legislative Councils

 120

Q. Write short note on delimitation of council constituencies?

 120

• Delimitation of Council Constituencies

 120

Chapter 4

Qualifications and Disqualifications of Candidates seeking Election and of Sitting Elected Members of Parliament And state legislatures

* Introduction

 121

Q. Discuss the qualifications for membership of Parliament and State Legislatures?

 122

• Qualification for Membership of Parliament and State Legislatures

 122

• Sine qua non Qualifications

 123

(i) Person must be a Citizen of India

 123

* Constitutional Provisions for CiTizenship

 123

(ii) Oath or Affirmation

 123

Q. Discuss the qualification for contesting candidate relating to the concept of "oath and affirmation'.

 124

• Oath or Affirmation to be made before Whom?

 124

Q. Oath & affirmation to be made before whom?

 125

Q. When oath or affirmation to be made?

 126

Q. Discuss the manner to make or subscribe oath or affirmation.

 127

• Manner to Make or Subscribe Oath or Affirmation

 127

• Penalty for Sitting and Voting before Making Oath or Affirmation

 127

Q. Discuss briefly the disqualification on the ground of `age' with the help of decided cases

 128

(iii) Qualifying Age

 128

* Extracts from the Representation of the People Act, 1951

 129

• Section 3. Qualification for Membership of the Council of States

 129

• Section 4. Qualifications for Membership of the House of the People

 129

• Section 5. Qualifications for Membership of a Legislative Assembly

 129

• Section 5A. Qualifications for Membership of Legislative Assembly of Sikkim

 130

• Section 6. Qualifications for Membership of a Legislative Council

 131

• Section 7. Disqualifications for Membership of Parliament and State Legislatures

 131

• Section 8. Disqualification on Conviction for Certain Offences

 131

• Section 8A. Disqualification on Ground of Corrupt Practices

 133

• Section 9. Disqualification for Dismissal for Corruption or Disloyalty

 133

• Section 9A. Disqualification for Government Contracts, etc.

 134

• Section 10. Disqualification for Office under Government Company

 134

• Section 10A. Disqualification for Failure to Lodge Account of Election Expenses

 134

• Section 11. Removal or Reduction of Period of Disqualification

 134

* Tenth Schedule

 135

• Provisions as to Disqualification on Ground of Defection

 135

Q. Difference between `defection' and `split'

 136

Q. Distinction between the Conception `Defection' and `Split' (in Paragraph 3)

 136

Q. Scope of Para 6

 138

Q. Scope of Para 7

 138

Q. Short note on the Tenth Schedule of the Constitution of India

 139

• Weaknesses in Anti-defection Law and Suggestions for Reform

 140

Q. Briefly discuss the provisions of Anti-Defection Law. What suggestions would you give for the change in the Anit-Defection Law?

 141

Q. Do you agree with the view that the Anti-Defection Law has completely failed to curb the evil of unprincipled defection? What are your suggestions for reform of the Anti-Defection Law?

 141

* CaseLaws

 144

Q. When a person is Vice-Chancellor of an University

 145

Q. When a person is a Chartered Accountant

 146

Q. When a person is employed in a Municipality

 148

Q. When a person is a Government Contractor

 149

Q. When a person is holding the post of teacher

 150

Q. When a person is a Government Contractor

 151

• On the Ground of `Government Contract'

 151

Q. When the person is a Government Contractor

 152

* Anti-Defection Law

 154

Q. Briefly discuss the Constitutional validity of the Tenth Schedule in the light of Kihoat Hollohon v. Zachilhu, case.

 154

Chapter 5

Nominations of candidates to election

* Introduction

 157

• Form of Nomination Paper to Fill Different Seats

 157

• Appointment of Dates for Nominations etc., and Public Notice of Election

 158

• Candidates and Proposer

 159

Q. Basic Guidelines

 159

Q. How many proposers required for the nomination of a candidate?

 159

• Number of Proposers Required for Nomination

 159

Q. For the House of the People and State Assemblies

 159

Q. For the Council of States and Legislative Councils

 159

Q. Discuss the requirements of the valid nomination?

 160

• Requirements of the Valid Nomination

 160

Q. Discuss the disclosure to be made by the candidate.

 162

• Disclosure by the Candidate

 162

• Rejection of Nomination Paper

 163

• Invalid Nomination

 164

Q. Discuss the maximum number of constituencies from which a candidate can file nominations

 165

• Provisions Related to the Maximum Number of Constituencies from which Nomination can be Filed

 165

• Presentation of Nomination Paper and Preliminary Scrutiny by Returning Officer

 165

Q. How the preliminary scrutiny of the nomination paper to be made by Returning Officer?

 166

Q. What do you mean by the scrutiny of nomination papers by the Returning Officers? Discuss the provisions briefly and explain when the Returning Officer can reject the nomination papers?

 166

Q. "At an election for a valid nomination, every candidate is bound to deposit security" Do you agree?

 167

• Security Deposits

 167

Q. How the notice is issued by the Returning Officer after nomination received by him?

 168

• Notice of Nominations

 168

Q. Effect of improper rejection of nomination paper

 169

• Scrutiny of Nominations

 169

Q. Who are the persons authorised to attend at scrutiny of nominations?

 169

• Presence of Authorised Persons at Scrutiny of Nominations

 169

Q. How the scrutiny of nominations conducted?

 170

• Conduct of Scrutiny

 170

• Rejection of Nomination

 170

Q. Discuss the grounds on which the Returning Officer can reject a nomination paper

 171

• Defects of Substantial Character

 172

Q. What do you mean by defects of substantial character?

 173

Q. What is effect when the candidate fails to mention the name of the constituency?

 173

• When Candidate Fails to Mention the Name of Constituency

 173

Q. What is effect when the candidate fails to give full address?

 174

• When Candidate Fails to Give Full Address

 174

• When Candidate Fails to Give Correct Particulars of Electoral Roll Numbers

 174

Q. What is the effect when the candidate fails to give correct particular of Electoral Roll Numbers (ERNs)?

 175

Q. Is it necessary to prepare the list of validly nominated candidates?

 176

• Preparation of List of Validly Nominated Candidates

 176

Q. How the withdrawal of candidature is made? Is it irrevocable?

 176

• Withdrawal of Candidature

 176

• Notice of Withdrawal Irrevocable

 177

• Acceptance of Notice

 177

Q. How does the Returning Officer prepare and publish the list of contesting candidates after the expiry of the period of withdrwal of candidature?

177

• Publication of list of Contesting Candidates

 177

• Nomination of Candidates at other Elections

 178

Q. Consequences of improper rejection and acceptance of a nomination paper

 180

• Nomination and Grounds for Declaring Election to be Void

 180

* CaseLaws

 180

Q. Discuss the facts and law points of Rangilal Choudhury v. Dahu Sah case

 180

Q. Discuss the validity of the nomination when the proposer fails to mention the name of the constituency in the nomination paper

 180

Q. Discuss the validity of the nomination when the candidate puts the mark of his thumb impression on the nomination paper which is presented to the Returning Oficer by the proposer

 182

Q. Ram, Ramesh and Ramu filed nomination papers for contesting election to a Lok Sabha seat. On the day of scrutiny the Returning Officer rejected Ram's nomination paper on the ground that Ram was holding an office of profit under the Government of Delhi

 183

Q. Ram wants to move immediately to the High Court of Delhi under Article of the Constitution for a writ of certiorari to quash the order of the Returning Officer and to direct the Returning Officer to include his name in the list of valid nominations

 226

Q. Will Ram succeed in getting a relief from the High Court? Discuss.

 183

Q. Consequence of improper acceptance of the nomination paper

 185

Q. Case of improper acceptance of the nomination paper

 187

Q. Case of improper acceptance of the nomination paper

 188

Q. Deena, Deevan and Dudhnath were the candidates at an election for Gujarat Legislative Assembly.

 188

Q. Deena polled 17822 votes, Deevan got 17449 votes and Dudhnath polled 6710 votes.Deena was declared elected. The election of Deena is challenged on the ground of improper acceptance of the nomination paper of Dudhnath at the time of the scrutiny of nomination papers by the Returning Officer. Before the High Court during the trial of election petition it is proved that Dudhnath's nomination was improperly accepted as he had not attained the age of 25.

 189

Q. How will you decide this election petition? Refer to the principles of election law relating to the consequence of improper acceptance of a nomination paper.

 189

Chapter 6

Corrupt Practices

• Onus to Prove Corrupt Practice

 193

Q. On whom the burden of proving the corrupt practice lies?

 194

Q. Discuss the nature of proceeding followed in election petition making allegation of corrupt practice

 196

• Nature of Proceeding

 196

Q. Whether an appeal on the ground of religion constitutes corrupt practice? critically analyse

 197

• Appeal on the Ground of Religion

 197

Q. Meaning of word `his' used in Section 123(3) of the Representation of the People Act, 1951

 197

Q. Whether the restriction imposed in Section 123(3) of the Act is violative of the fundamental right of speech and expression guaranteed under Article 19(1)(a)?

 198

Q. "Appeal to `Hindutva' or `Hinduism' in election speeches constitutes corrupt practice."

 199

Q. Do you agree?

 199

• Appeal to `Hindutva' or `Hinduism' in Election Speeches

 199

• When Appeal to Religious Symbols

 200

Q. Discuss the principles of law laid down by the Supreme Court regarding `religious symbols'

 201

• Where any Speech is not Corrupt Practice

 202

Q. Appeal on the ground of caste or community in the election constitutes corrupt practices. Discuss

 202

• Appeal on the Ground of Caste or Community in the Election

 202

Q. Does appeal on the ground of language in the election constitute corrupt practice?

 203

• Appeal on the Ground of Language in Election

 203

• When Feelings of Enmity or Hatred Promoted

 203

Q. Critically analyse the provision inserted under Section 123(3A) of the R.P. Act, 1951?

 204

Q. What is the consequence of publication of false statement during the election?

 205

• Publication of False Statement

 205

Q. What is the meaning of expression `statement of fact `used in Section 123(4) of the R.P. Act, 1951?

 205

• Meaning of the Expression `Statement of Fact' Used in Section 123(4) of 1951-Act

 205

Q. What are the ingredients to be satisfied to invoke Section 123(4) of the R.P. Act, 1951?

 207

• Ingredients to be Satisfied under Section 123(4)

 207

Q. What do you mean by word `Calculated' used in Section 123(4) of the R.P. Act?

 207

• Meaning of the Word `Calculated'

 207

* Free Conveyance

 208

• According to Section 123(5) of 1951-Act

 208

Q. "Hiring or procuring of vehicles for the conveyance of voters constitutes corrupt practice"

 208

Q. Do you agree with the statement?

 208

• Ingredients to Satisfy Provisions under Section 123(5)

 208

Q. Discuss the ingredients to be satisfied to invoke the provisions of Section 123(5) of the R.P. Act, 1951?

 209

* Election Expenditure

 209

Q. Discuss the different provisions with respect to `Election expenditure'.

 210

• Scope and Object of Section 123(6)

 210

Q. Critically analyse the scope and object of Section 123(6) of the R.P. Act?

 210

• When Expenditure is Accountable

 211

Q. What do you mean by expression `expenditure incurred or authorised'?

 212

• Meaning of `Expenditure Incurred or Authorised'

 212

* Procuring Assistance of Government Servants

 213

Q. "Obtaining or procuring of assistance of government servants constitutes corrupt practice"

 213

• According to Section 123(7) of the 1951-Act

 213

Q. Do you agree with the statement?

 213

• Scope of the Provisions

 214

Q. Discuss the scope of Section 123(7) of the R.P. Act?

 214

Q. What are the ingredients to invoke Section 123(7) of R.P. Act?

 215

• Ingredients of the Provisions of Section 123(7)

 215

Q. What is the nature of assistance obtained or procured by the government servants constitutes the corrupt practice under Section 123(7) of the R.P. Act? Discuss with decided cases?

 215

• Nature of Assistance

 215

* Offences Relating to Elections under IPC

 216

• Bribery Means

 216

• Undue Influence at Elections

 216

• Personation at Elections

 216

• Punishment for Bribery

 217

• Punishment for Undue Influence or Personation at an Election

 217

• False Statement in Connection with an Election

 217

• Illegal Payments in Connection with an Election

 217

• Failure to Keep Election Accounts

 217

* Case Laws

 218

Q. Discuss the facts and decision in H.V. Kamath v. C.H. Nitraj Singh.

 218

Q. Propaganda based on exemption from land revenue does not amount to corrupt practice within the meaning of Section 123(1)(A) of the R.P.Act.

 219

Q. Where the candidate procured vehicle in which few electors were conveyed found not a corrupt practice within the meaning of the Act

 220

Q. Appeal on the ground of religion

 220

Q. Discuss the facts and law laid down in Kultar Singh v. Mukhtiar Singh, case

 221

Q. Where it was alleged that the Minister used discretionary funds to bribe the voters

 222

Q. "In Manohar Joshi v. N.B. Patil the appellant (Manohar Joshi) won the case more on the ground of technical errors committed by the respondent in the pleadings and the High Court in the interpretation of relevant provisions of R.P. Act than on the non-commission of corrupt practices under Section 123(3) and (3A) of the R.P. Act." Comment

 223

Q. In an election to Maharashtra Legislative Assembly M, a BJP candidate was declared elected by majority of votes. His election is being challenged by N an elector of the constituency on the ground of commission of corrupt practices by M under Section 123(3) and 123(3A) of the R.P. Act, 1951

 225

Q. N alleged that M delivered several speeches in the constituency in which he made the following statements

 225

Q. (a) M said to voters that he was a good Hindu, whereas Z, his rival candidate set up by Congress-I, was not a good Hindu because Z had a Christian wife and was opposed to Hindutva or Hinduism.

 226

Q. (b) M said that if he was elected the first Hindu State will be established in Maharashtra

 226

Q. Appeal on the ground of religion

 226

Q. What do you mean by "undue influence"? Is it a different concept for election law? Support your answer with reference to Narbada Prasad case

 228

Q. In an election petition X, a defeated candidate, alleged that M the returned candidate published a statement containing, inter alia, the following remarks which led to his defeat "Any one who votes for X will be committing a sin of Go-Hatya"

 228

Q. Disucss in the light of decided cases whether X will succeed in setting aside the election of M

 228

Q. Briefly discuss the facts and the law laid down in Dev Kant Barooah v.Golak Chandra case

 229

Q. A's election to an assembly seat is challenged by B, a defeated candidate on the ground of commission of corrupt practices under Section 123 of the R.P. Act 1951. The main allegation relates to the publication of a pamphlet by A

 229

Q. "B, was anti-national as he had supported the British Rule during the Quit India Movement in 1942"

 229

Q. A engaged you to defend his election. Repeal the allegations of B in the election petition on legal grounds

 229

Table of Cases

 231

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