Indian Electoral Laws: Candidate Eligibility, Nominations, and Anti-Defection

Qualification and Disqualification of Candidates

This document outlines the qualifications and disqualifications for becoming a member of Parliament and State Legislatures, drawing from the Constitution of India (Articles 84, 101, 102, 103, 104 for Parliament, and 173, 190, 191, 192 for State Legislatures) and Sections 3 to 11A of the Representation of the People (R.P.) Act, 1951.

Constitutional Disqualifications for Legislators

• Holding any office of profit under the Government of India or the government of any state.
• Being of unsound mind as declared by a competent court.
• Being an undischarged insolvent.
• Not being a citizen of India.
• Disqualification by or under any law made by Parliament (including the 10th Schedule).

Relevant Sections of the R.P. Act, 1951

• Section 3: Qualifications for membership of the Council of States.
• Section 4: Qualifications for membership of the House of the People.
• Section 5: Qualifications for membership of a Legislative Assembly.
• Section 5A (Sikkim): Qualifications for membership of the Legislative Assembly of Sikkim.
• Section 6: Qualifications for membership of a Legislative Council.
• Section 7: Definitions in this chapter (Appropriate Government, Disqualified).
• Section 8: Disqualification on conviction for certain offenses.
• Section 8A: Disqualification on ground of corrupt practices.
• Section 9: Disqualification for dismissal for corruption or disloyalty.
• Section 9A: Disqualification for government contracts.
• Section 10: Disqualification for office under government company.
• Section 10A: Disqualification for failure to lodge account of election expenses.
• Section 11: Removal or reduction of period of disqualification.
• Section 11A: Disqualification arising out of conviction and corrupt practices.

Case Laws on Disqualification

• Guru Gobind Basu v. Sankari Prasad Ghosal (1964): The Supreme Court held that Guru Gobind Basu, who was a manager of a government-owned corporation and also a director in another company, was not disqualified under Article 102(1)(a) for holding an "office of profit."
• Ashok Kumar Bhattacharya v. Ajoy A Biswal (1985): The respondent, an Assistant Accountant in Agartala Municipality, was found to hold an office of profit under Article 102(1)(a) and was thus disqualified. The court noted that even municipalities are controlled by the government for the purpose of this article.
• Jaya Bachchan v. Union of India: Jaya Bachchan, a Member of Rajya Sabha, was disqualified under Article 102(1)(a) for also being appointed as the Chairperson of the Film Development Council, which was deemed an "office of profit."
• Parliament (Prevention of Disqualification) Amendment Act, 2006: This Act was challenged after Jaya Bachchan's disqualification, seeking to retrospectively exempt certain offices of profit. The Supreme Court observed that Parliament has the power to enact such laws retrospectively under Article 102(1)(a). The Court also clarified that if a person was under disqualification at the time of election and an election petition declares the election void, the person's membership ceases. If no one challenges the election, the member continues, but the question of disqualification, if raised, is referred to the President of India for a decision after obtaining the opinion of the Election Commission.
• Konappa Rudrappa Nadagouda v. Vishwanath Reddy (1969): The first respondent was disqualified under Section 9A of the R.P. Act, 1951, due to having contracts with the State Government for construction work. The Supreme Court overturned the High Court's dismissal of the election petition.
• K. Prabhakaran v. P. Jayarajan (2005): The Supreme Court held that disqualification under Section 8(3) of the R.P. Act, 1951, takes effect immediately upon conviction and sentencing to imprisonment for two years or more. Filing an appeal does not automatically stay the disqualification unless explicitly stayed by a higher court. This ensures the purity and integrity of the legislature.
• Lily Thomas v. Union of India (2013): The Supreme Court struck down Section 8(4) of the R.P. Act, 1951, as unconstitutional. This provision allowed sitting MPs or State Legislatures to continue as members even after conviction and sentencing for two years or more, if an appeal was filed within three months. The Court held this violated Articles 102(1)(e) and 191(1)(e) of the Constitution, mandating immediate disqualification upon conviction for such offenses. Mere filing of an appeal does not stay the disqualification.

Nominations (R.P. Act, 1951, Sections 30-39)

• Section 30: Appointment of dates for nominations: The Election Commission, through an official gazette, sets dates for nomination, scrutiny of nominations, withdrawal of candidatures, polling, and completion of the election.
• Section 31: Public notice of Election: The Returning Officer (R.O.) issues a public notice of the intended election.
• Section 32: Nominations of candidates: Any qualified person may be nominated.
• Section 33: Presentation of nomination paper and requirements for a valid nomination:
  • Submission to the R.O. between 11 AM and 3 PM, subscribed by ten proposers from the constituency's electors for general seats.
  • For reserved seats, candidates from specific castes or tribes.
  • A person who held an office specified in Section 9J and was dismissed, and a period of five years has not elapsed since the dismissal, cannot be nominated.
  • The R.O. checks the nomination paper with the electoral roll number.
  • If the candidate is an elector of a different constituency, a copy of that electoral roll must be filed with the nomination paper.
  • A candidate cannot be nominated by more than one nomination paper (not more than 4).
  • A person cannot be nominated as a candidate for election from more than two constituencies for the House of the People, more than two for a Legislative Assembly, or more than two for biennial elections to the Council of States or Legislative Councils.
• Section 32A: Right to Information: Candidates must furnish information as per the Act and rules.
• Section 34: Deposits: A deposit of Rs. 25,000 for a Parliamentary constituency (Rs. 12,500 for SC/ST) and Rs. 10,000 for an Assembly or Council constituency (Rs. 5,000 for SC/ST).
• Section 35: Notice of nomination: The R.O. publishes a notice of nominations and the time and place for scrutiny.
• Section 36: Scrutiny of nominations.
• Section 37: Withdrawal of candidatures.
• Section 38: Publication of list of contesting candidates.
• Section 39: Nomination of candidates at other elections.
• Section 39A: Allocation of equitable sharing of time.

Case Laws on Nominations

• Rangalal Choudhary v. Dahu Sao (1962): The Supreme Court dismissed the appeal, upholding that the nomination paper was wrongly rejected.
• N.T. Veluswami Thevar v. Raja Nainar (1959): This case dealt with allegations of corrupt practices under Section 123 of the R.P. Act, including bribery and undue influence.
• Chhedi Ram v. Jhalani Ram (1984): The Supreme Court upheld the election of the respondent, even though the nomination paper of the appellant was challenged, stating that the election was not materially affected by the improper acceptance of the nomination.
• Santosh Yadav v. Narendra Singh (2002): The Supreme Court dismissed the appeal, upholding the High Court's decision that the election petition failed to prove that the election was materially affected by the improper acceptance of the nomination paper.
• Ram Phal Kundu v. Kamal Sharma (2009): The Supreme Court found that the nomination of the respondent was properly rejected, and the appeal was allowed.

Corrupt Practices and Electoral Offenses

This section distinguishes between corrupt practices and electoral offenses:

• Corrupt Practice: Committed by a candidate or someone with their consent, vitiates the whole election, rendering it void.
• Electoral Offense: Does not have such a fatal bearing on the election result. In the former, the whole constituency suffers, whereas in the latter, only the persons committing the offense face criminal liability.

Corrupt Practices (Section 123 of R.P. Act, 1951)

• Bribery: Offering or accepting gratification.
• Undue Influence: Interference with electoral rights, including appeals on grounds of religion, race, caste, community, language, or national symbols.
• Promoting feelings of enmity or hatred between different classes of citizens on grounds of religion, race, caste, community, or language.
• Publication of false statements in relation to the personal character or conduct of a candidate.
• Hiring or procuring vehicles for the free conveyance of voters.
• Incurring or authorizing election expenses in excess of the prescribed limit.
• Obtaining or procuring assistance from specified categories of government servants.
• Booth capturing.

Electoral Offenses

• Section 125: Promoting enmity between different classes in connection with election.
• Section 126: Prohibition of public meetings during the prohibited period.
• Section 127: Disturbances at election meetings.
• Section 128: Restrictions on printing of pamphlets, posters, etc.
• Section 130: Prohibition of canvassing in or near polling station.
• Section 131: Disorderly conduct in or near polling station.
• Section 132: Misconduct at polling station.
• Section 133: Illegal hiring or procuring of conveyances at election.
• Section 134A: Prohibition of going armed to or near polling station.
• Section 135: Removal of ballot papers from polling stations.
• Section 135A: Offense of booth capturing.
• Section 135C: Liquor not to be sold, given, or distributed on polling day.
• Section 136: Fraudulent or unauthorized destruction of election papers, documents, ballot papers, ballot boxes, etc.

Indian Penal Code (Relevant Sections)

• Section 171B: Bribery.
• Section 171C: Undue influence at elections.
• Section 171F: Personation at election.
• Section 171G: False statement in connection with an election.
• Section 171H: Illegal payments in connection with an election.
• Section 171I: Failure to keep election account.

Case Laws on Corrupt Practices

• H.V. Kamath v. Ch. Nitiraj Singh (1970): The Supreme Court found that the evidence did not conclusively prove the allegations of corrupt practices against Ch. Nitiraj Singh. The burden of proof lies on the petitioner.
• Manubhai Nandlal Amersey v. Popatlal Manilal Joshi (1969): The Supreme Court reiterated the definition of corrupt practices under Section 123 of the R.P. Act, 1951, emphasizing the need for strict proof beyond reasonable doubt. Allegations of corrupt practices must be substantiated by concrete evidence, and the burden of proof lies on the petitioner.
• Abhiram Singh v. C.D. Commachen (2017): The Supreme Court held that Section 123(3) should be interpreted broadly to prohibit any appeal for votes based on religion, race, caste, community, or language of the candidate or voters. The purpose is to maintain the purity of the electoral process.
• Dr. Kanto Barooh v. Golok Chandra Baruah (1976): The Supreme Court examined the evidence and found it insufficient to establish the claims beyond reasonable doubt. The election tribunal's decision was overturned, holding that the evidence presented did not meet the standard required to declare the election void on grounds of corrupt practices.
• Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte (1996): This case involved the interpretation of "Hindutva and Hinduism" and their effect on election speeches. The appeal was dismissed.
• Indira Gandhi v. Raj Narain (1975): The Supreme Court held that Section 123(7) of the R.P. Act, 1951, allowing voluntary expenditure by friends, relatives, or sympathizers without the candidate's consent, violated the basic structure of the Constitution. The Court struck down this provision.

Voters' Right to Know Candidate Antecedents

Key Reports and Legal Provisions

• Goswami Committee Report on Electoral Reforms, 1990:
  • Recommended a multi-member Election Commission.
  • Did not desire empowering the Commissioners with contempt powers.
  • Suggested a ban on candidates contesting from more than two constituencies of the same class.
  • Proposed a complete ban on donations by companies.
  • State assistance for certain items should be extended only to candidates set up by regular political parties.
  • Proposed appointing ad-hoc judges for timely disposal of election petitions.
  • Suggested amendments to Anti-Defection Law.
  • Recommended an expert committee to examine the electoral system.
• Vohra Committee Report on Criminalization of Politics, 1993: Highlighted the involvement of politicians with organized crime.
• 170th Report of the Law Commission on Electoral Laws, 1999: Inserted Section 125A into the R.P. Act, 1951, regarding public awareness of criminal antecedents, assets, liabilities, and educational qualifications.

Relevant Sections of R.P. Act, 1951

• Section 33A: Right to Information.
• Section 33B: Candidates to furnish information only under the Act and Rules.
• Section 125A: Penalty for filing false affidavit, etc.

Case Laws on Voter Information

• People's Union for Civil Liberties (PUCL) v. Union of India: This case challenged the validity of the R.P. (Amendment) Ordinance, 2002. The court held that Section 33B of the amended Act was unconstitutional, as it limited candidates from disclosing information beyond what was explicitly required by the Act and Rules.
• Resurgence India v. Election Commission of India (2014): The Election Commission was directed to issue necessary orders under Article 324 of the Constitution, requiring candidates to furnish information in an affidavit as part of the nomination paper regarding:
  • Previous convictions/acquittals/discharges in any criminal offense punishable with imprisonment for two years or more.
  • Assets of the candidate, spouse, and dependents.
  • Liabilities, if any.
  • Educational qualifications.
  The court affirmed that voters have a fundamental right to know full particulars of a candidate, and this information is essential for exercising their franchise. Failure to fill blanks in the affidavit renders the nomination paper liable for rejection.

Anti-Defection Law in India

Introduction

The Anti-Defection Law, introduced through the 52nd Constitutional Amendment Act, 1985, is enshrined in the Tenth Schedule of the Indian Constitution. Its primary objective is to curb the practice of elected representatives switching political parties after elections, which undermines democratic stability, voter mandates, and political integrity. This law aims to ensure loyalty to the party on whose symbol a candidate is elected and maintain stability in governments.

Provisions of the Anti-Defection Law

The Tenth Schedule lays down specific grounds for disqualifying Members of Parliament (MPs) or Members of Legislative Assemblies (MLAs):

• Voluntary Giving Up Membership: If an elected member voluntarily gives up membership of their political party, they can be disqualified. This includes actions that imply disloyalty, such as supporting an opposition leader or forming a new faction.
• Violation of Party Whip: If a member votes or abstains from voting in the House against the directions (whip) issued by their party, they face disqualification, except in cases where such decisions do not affect the stability of the government.
• Independent Members: If an independent candidate joins a political party after being elected, they can be disqualified.
• Nominated Members: Nominated members who join a party within six months of nomination are exempt, but joining later leads to disqualification.

Exemptions

Originally, a "split" in a party (where one-third of members form a new group) was an exemption from disqualification. However, this provision was removed by the 91st Constitutional Amendment Act, 2003, as it was misused to encourage defections.

• A merger of a party with another (supported by two-thirds of its members) is still a valid exemption.

Adjudicating Authority

The Speaker or Chairman of the respective House decides disqualification cases. Their decision is final but subject to judicial review by courts, as established in Kihoto Hollohan v. Zachillhu (1992), where the Supreme Court upheld the constitutionality of the Tenth Schedule but ruled that the Speaker’s decisions can be challenged in courts for bias or mala fide intent.

Landmark Cases

• Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305: In this case, 13 BSP MLAs in Uttar Pradesh approached the Governor to support an opposition leader, indicating disloyalty to their party. The Supreme Court ruled that their actions amounted to voluntarily giving up membership, leading to disqualification. The Court clarified that a "split" must be genuine and not a pretext for defection, and sent the case back to the Speaker for reconsideration.
• Subhash Desai v. Principal Secretary, Governor of Maharashtra, (2024) 2 SCC 719: This case arose from the Shiv Sena split in Maharashtra, where Eknath Shinde’s faction rebelled against Uddhav Thackeray’s leadership. The Supreme Court held that the Speaker cannot decide which faction is the "real" political party (a role reserved for the Election Commission). Actions like supporting an opposition government were seen as voluntarily giving up membership, risking disqualification. The Court emphasized that the original party’s whip is binding.

Merits of the Anti-Defection Law

• Promotes Stability: It prevents frequent government collapses due to defections, ensuring stable governance.
• Respects Voter Mandate: It ensures elected representatives remain loyal to the party on whose symbol they were elected.
• Discourages Opportunism: It curbs the practice of "horse-trading," where MLAs switch parties for personal gains like money or ministerial positions.

Criticisms and Challenges

• Undermines Freedom: The law restricts legislators’ freedom to vote according to their conscience, as they must follow party whips, potentially stifling independent thought.
• Speaker’s Bias: The Speaker, being a party nominee, may make biased decisions, as seen in several cases where disqualification petitions were delayed or dismissed.
• Ambiguity in "Voluntary Giving Up": The term is not clearly defined, leading to judicial interpretations, as in the Rana and Desai cases, which can vary.
• No Time Limit for Decisions: The law does not mandate a time frame for the Speaker to decide disqualification cases, causing delays and political manipulation.
• Encourages Wholesale Defections: While individual defections are curbed, mergers (requiring two-thirds support) can still allow large-scale defections.

Suggestions for Reform

• Independent Tribunal: Replace the Speaker with an independent body, like a tribunal or the Election Commission, to ensure impartiality in disqualification decisions.
• Time-Bound Decisions: Introduce a fixed timeline (e.g., 3 months) for resolving disqualification cases to prevent delays.
• Clear Definitions: Define "voluntary giving up" explicitly to reduce ambiguity and ensure consistent application.
• Strengthen Party Democracy: Encourage internal democracy within parties to reduce the need for splits or rebellions.

Conclusion

The Anti-Defection Law is a crucial tool for maintaining political stability and upholding the democratic mandate in India. While it has curbed opportunistic defections, its implementation faces challenges due to Speaker bias, vague provisions, and restrictions on legislators’ freedom.

Landmark cases like Rajendra Singh Rana and Subhash Desai highlight the judiciary’s role in refining its interpretation. Reforms to ensure impartiality and clarity can strengthen the law, making it more effective in fostering ethical political conduct.