Electoral Laws of India
India is a sovereign, socialist, secular democratic republic.
India has adopted the British Westminster system of parliamentary form of government. It has an elected President, elected Vice-President, elected Parliament and elected State Legislature for every State. It also has elected municipalities, panchayats and other local bodies.
The Constitution has created an independent Election Commission of India in which vests the superintendence, direction and control of preparation of electoral rolls for, and conduct of elections to, the offices of President and Vice-President of India and Parliament and State Legislatures (Article 324).
A similar independent constitutional authority has been created for conduct of elections to municipalities, panchayats and other local bodies (Articles 243 K and 243 ZA).
The authority to enact laws for elections to the offices of President and Vice-President and to Parliament and State Legislatures has been reposed by the Constitution in Indian Parliament (Articles 71 and 327).
Laws relating to conduct of elections to municipalities, panchayats and other local bodies are framed by the respective State Legislatures (Articles 243 K and 243 ZA).
All doubts and disputes relating to the elections to the office of President and Vice-President are dealt with by the Supreme Court (Article 71), whereas the initial jurisdiction to deal with all doubts and disputes relating to the elections to Parliament and State Legislatures vests in the High Court of the State concerned, with a right of appeal to the Supreme Court (Article 329).
The disputed matters relating to elections to municipalities, etc. are decided by the lower courts in accordance with the laws made by the respective State Governments.
The law relating to the elections to the offices of President and Vice-President of India has been enacted by Parliament in the form of Presidential and Vice-Presidential Elections Act 1952. This Act has been supplemented by the Presidential and Vice-Presidential Elections Rules 1974 and further supplemented by the Election Commission’s directions and instructions on all aspects.
Conduct of elections to Parliament and State Legislatures are governed by the provisions of two Acts, namely, Representation of the People Act 1950 and Representation of the People Act 1951.
Representation of the People Act 1950 deals mainly with the matters relating to the preparation and revision of electoral rolls. The provisions of this Act have been supplemented by detailed rules, Registration of Electors Rules 1960, made by the Central Government, in consultation with the Election Commission, under Section 28 of that Act and these rules deal with all the aspects of preparation of electoral rolls, their periodic revision and updating, inclusion of eligible names, exclusion of ineligible names, correction of particulars, etc.
These rules also provide for the issue of electoral identity cards to registered electors bearing their photographs at the State cost. These rules also empower the Election Commission to prepare the photo electoral rolls containing photographs of electors, in addition to their other particulars.
All matters relating to the actual conduct of elections are governed by the provisions of the Representation of the People Act 1951 which have been supplemented by the Conduct of Elections Rules 1961 framed by the Central Government, in consultation with the Election Commission, under Section 169 of that Act.
This Act and the rules make detailed provisions for all stages of the conduct of elections like the issue of writ notification calling the election, filing of nominations, scrutiny of nominations, withdrawal of candidatures, taking of poll, counting of votes and constitution of the Houses on the basis of the results so declared.
The superintendence, directions and control of elections vested by the Constitution in the Election Commission empowers the Commission even to make special orders and directions to deal with the situations for which the laws enacted by the Parliament make no provision or insufficient provision.
The classic example of filling such vacuous area is the promulgation of the Election Symbols (Reservation and Allotment) Order 1968 which governs the matters relating to recognition of political parties at the National and State level, reservation of election symbols for them, resolution of disputes between splinter groups of such recognised parties, and allotment of symbols to all candidates at elections, etc.
Another such vacuous area where the Election Commission exercises its inherent powers under Article 324 of the Constitution is the enforcement of the Model Code of Conduct for guidance of political parties and candidates.
The Model Code is a unique document evolved by the political parties themselves to govern their conduct during elections so as to ensure that a level playing field for all political parties is maintained during elections and, in particular, to curb the misuse of official power and official machinery by the ruling party(ies) to further the electoral prospects of their candidates.
All post election matters to resolve doubts and disputes arising out of or in connection with the elections are also dealt with in accordance with the provisions of the Representation of the People Act 1951. Under this Act, all such doubts and disputes can be raised before the High Court of the State concerned, but only after the election is over and not when the election process is still on.
The above mentioned Representation of the People Acts 1950 and 1951 and the Registration of Electors Rules 1960 and Conduct of Elections Rules 1961 form complete code on all matters relating to elections to both Houses of Parliament and State Legislatures.
Any person aggrieved by any of the decisions of the Election Commission or the authorities functioning under it has to find a remedy in accordance with the provisions of these Acts and Rules.