Module 9.

Election Commission of India

Q1. Which Article of the Indian Constitution
provides for the Election Commission ?

1. Article 187
2. Article 256
3. Article 278
4. Article 324
Q2. Who appoints the Chief Election
Commissioner of India?

1. Chief Justice of India

2. Governor of India
3. President of India
4. Prime Minister of India
Q3. Chief Election Commissioner of India
is appointed for a period of how many years?

1. 5 years
2. 7 years
3. 4 years
4. 6 years
Q4. Who was the first Chief Election
Commissioner of India?

1. Sukumar Sen
2. R.V.S. Peri Sastri
3. R.K. Trivedi
4. S.L. Shakdha
Q5. Who is the current Chief Election
Commissioner of India?

1. Dr. Sukhbir Singh Sandhu

2. Dr. Vivek Joshi
3. Shri Gyanesh Kumar
4. Shri Sushil Chandra
BONUS QUESTIONS
What is the full form of
➢ SVEEP?
➢ EPIC?
➢ VVPAT?
Mysore Paints & Varnish Ltd. (MPVL), a Karnataka
government company since 1962, is the unsung hero behind
India’s reliable and trusted indelible ink. It is the sole
supplier of the product.
They produce over 26.5 lakhs vials for every election,
ensuring the integrity of the democratic process.
A total 48,044 TG electors were in the roll as on
March 16, 2024, up from 39,075 in 2019 and 28,527 in
2014.
Many third gender voters prefer to register as male or female voters,
often due to fear of coming out, since electoral roll is a public
document, and lack of social acceptance.
As of 2025, there are 6 national
parties, 58 state parties, and 2,763
unrecognized parties in India.
WHAT IS ELECTION COMMISSION?

• The Election Commission is a permanent and independent body established by

the Constitution of India to ensure free and fair elections across the country.

• ECI is a constitutional body responsible for administering elections in India

according to the rules and regulations mentioned in the Constitution of India.

• It was established on January 25, 1950.

• The major aim of election commission of India is to define and control the
process for elections conducted at various levels, Parliament, State Legislatures,
and the offices of the President and Vice President of India.

• It can be said that the Election Commission of India ensures smooth and
successful operation of the democracy.
 Article 324 in Constitution of India
324. Superintendence, direction and control of elections to be vested in an
Election Commission
(1) The superintendence, direction and control of the preparation of the electoral rolls
for, and the conduct of, all elections to Parliament and to the Legislature of every State
and of elections to the offices of President and Vice-President held under this Constitution
shall be vested in a Commission (referred to in this Constitution as the Election Commission).

(2) The Election Commission shall consist of the Chief Election Commissioner and such
number of other Election Commissioners, if any, as the President may from time to time
fix and the appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in that behalf by Parliament,
be made by the President.

(3) When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly
of each State, and before the first general election and thereafter before each biennial election
to the Legislative Council of each State having such Council, the President may also
appoint after consultation with the Election Commission such Regional Commissioners as
he may consider necessary to assist the Election Commission in the performance of the
functions conferred on the Commission by clause (1).

(5) Subject to the provisions of any law made by Parliament, the conditions of service and
tenure of office of the Election Commissioners and the Regional Commissioners shall
be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court and the
conditions of service of the Chief Election Commissioner shall not be varied to his
disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall
not be removed from office except on the recommendation of the Chief Election
Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner
such staff as may be necessary for the discharge of the functions conferred on the
Election Commission by clause (1).
 Article 325 in Constitution of India

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

There shall be one general electoral roll for every territorial

constituency for election to either House of Parliament or to the
House or either House of the Legislature of a State and no person
shall be ineligible for inclusion in any such roll or claim to be
included in any special electoral roll for any such constituency on
grounds only of religion, race, caste, sex or any of them.
 Article 326 in Constitution of India

326. Elections to the House of the People and to the Legislative Assemblies of States to
be on the basis of adult suffrage

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 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.
Did you know?
The Constitution (Sixty-first
Amendment) Act, 1988, reduced
the voting age for elections for
Indian citizens from 21 years to
18 years.
Question: Are prisoners allowed to vote in India?
 Article 327 in Constitution of India

327. Power of Parliament to make provision with respect to elections to

Legislatures

Subject to the provisions of this Constitution, Parliament may from time to

time by law make provision with respect to all matters relating to, or in
Connection with, elections to either House of Parliament or to the House or
either House of the Legislature of a State including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses.
 Article 328 in Constitution of India

328. Power of Legislature of a State to make provision with respect to

elections to such Legislature

Subject to the provisions of this Constitution and in so far as provision in

that behalf is not made by Parliament, the Legislature of a State may from
time to time by law make provision with respect to all matters relating to, or
in connection with, the elections to the House or either House of the
Legislature of the State including the preparation of electoral rolls and all
other matters necessary for securing the due constitution of such House
or Houses.
 Article 329 in Constitution of India

329. Bar to interference by courts in electoral matters

Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies, made or purporting to be made
under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House
of the Legislature of a State 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.
Entry 72, Union List, Schedule VII

Entry 37, State List, Schedule VII

Composition of the Election Commission of India

Article 324 of the Constitution outlines the following provisions regarding the
composition of the Election Commission:
1. The Election Commission shall consist of the Chief Election Commissioner and
any other election commissioners, as the President may appoint from time to
time.
2. The President is responsible for the appointment of the Chief Election
Commissioner and other election commissioners.
3. When additional election commissioners are appointed, the Chief Election
Commissioner will act as the Chairman of the Election Commission.
4. The President may also appoint regional commissioners, after consulting the
Election Commission, to assist in its duties.
5. The President will determine the conditions of service and tenure for both
the election commissioners and the regional commissioners.
• The appointment of the Chief Election Commissioner is made by the President of
India, based on the recommendations of a three-member selection committee
chaired by the Prime Minister.
• The senior-most Election Commissioner is typically elevated to the position
of CEC.
• The term of the Chief Election Commissioner is a maximum of six years or
until they reach the age of 65, whichever comes first.
• The CEC is generally a member of the Indian Civil Services, predominantly
from the Indian Administrative Service (IAS).
• The CEC and the two other commissioners have equal powers, salaries,
allowances, and benefits, similar to those of a judge of the Supreme Court.
• In case of a difference of opinion among the Chief Election Commissioner and
the other commissioners, the matter is decided by the majority.
INDEPENDENCE OF THE ELECTION COMMISSION

1. The CEC is provided with the security of tenure. He holds office for a term of 6 years
from the date he assumes office or till he attains the age of 65 years, whichever is earlier.

2. Art. 324(5) says that the CEC cannot be removed from his office except in like manner
and on like grounds as a Judge of the Supreme Court i.e. he can be removed by the
president on the basis of a resolution passed to that effect by both the Houses of Parliament
with special majority, either on the ground of proved misbehaviour or incapacity

3. Any other election commissioner or a regional commissioner cannot be removed from

office except on the recommendation of the CEC.

4. The service conditions of the CEC cannot be varied to his disadvantage after his
appointment.
POWER OF THE ELECTION COMMISSION OF INDIA

1. To determine the territorial boundaries of electoral constituencies

across the country based on the Delimitation Commission Act of Parliament.
2. To prepare and periodically revise the electoral rolls and register all
eligible voters.
3. To notify election dates and schedules, and to scrutinize nomination
papers.
4. To grant recognition to political parties and allot election symbols to
them.
5. To act as a court to resolve disputes related to granting recognition to
political parties and allotting election symbols.
6. To appoint officers to inquire into disputes related to electoral
arrangements.

7. To establish the code of conduct for political parties and candidates

during elections.

8. To manage the publicity of political parties’ policies on radio and

television during elections.

9. To advise the President on matters relating to the disqualification

of members of Parliament.

10. To advise the Governor on matters relating to the disqualification

of members of the state legislature.
11. To cancel elections in cases of rigging, booth capturing, violence, and
other irregularities.

12. To request the President or Governor to requisition staff necessary for

conducting elections.

13. To oversee the election machinery nationwide to ensure free and fair
elections.

14. To advise the President on whether elections can be held in a state

under President’s Rule to extend the period of emergency after one year.

15. To register political parties for elections and grant them the status of
national or state parties based on their electoral performance.
ELECTORAL REFORMS

1. Model Code of Conduct - A provision was made under the Code that from the
time the elections are announced by the Commission, Ministers and other
authorities cannot announce any financial grant, make promises of construction of
roads, carry out any appointments in government and public undertakings which
may have the effect of influencing the voters in favour of the ruling party.)

2. Disclosure of Criminal Antecedents by Candidates - In June 2002, the EC on

the direction of the Supreme Court, issued an order under Article 324 that each
candidate must submit an affidavit regarding the information of his/her criminal
antecedents; assets (both movable and immovable) of self and those of
spouses and dependents as well; and qualifications at the time of filing his/her
nomination papers for election to the Lok Sabha, the Rajya Sabha and the State
Legislative Assemblies.
3. Limits on Poll Expenses - EC has fixed legal limits on the amount of money
which a candidate can spend during the election campaign. These limits are revised
from time to time. The EC, by appointing expenditure observers keeps an eye on the
individual accounts of election expenditure made by a candidate during election
campaign. The contestants are also required to give details of expenditure within 30
days of the declaration of the election results.

Apart from this, the EC is also in favor of holding the Lok Sabha and the Assembly
elections simultaneously, and to reduce the campaign period from 21 to 14 days.
This, they feel, will lead to trim down the election expenditure.
4. Use of Scientific and Technological Advancements
A. EVMs - On an experimental basis, the EVMs were first tried in the State of Kerala
during the 1982 Legislative Assembly Elections. In June 1999 Assembly elections, Goa
became the first State to successfully use EVMs in all its Assembly constituencies. In the
2004 Lok Sabha elections, the machines were used all over the country. It is a major
initiative taken by the EC to make the electoral process simple, quick and trouble-free.
B. Computerization of Electoral Rolls
With a view to prevent impersonation of electors at the time of voting and to eliminate
bogus and fictitious entries into electoral rolls, EC took a bold step in 1998 to take a
nationwide program for the ‘computerisation’ of electoral rolls.

5. EPICs:
In an attempt to improve the accuracy of the electoral rolls and prevent
electoral fraud, the Election Commission in August 1993 ordered the
issuance of electors’ photo identity cards (EPICs) for all voters.
6. NOTA
In September 2013, the Supreme Court directed the ECI to introduce the NOTA
option following its directive given in the PUCL vs Union of India Case (2013 SC),
as a measure to safeguard the secrecy of voters' choices.
NOTA option (since 2013) allows voters to reject all candidates anonymously by
pressing a designated button on EVMs which preserves the secrecy of the ballot,
empowering voters to express dissent without fear or exposure.
Technically, it does not affect the outcome of the
election, i.e., the candidate with the highest votes
still wins, even if NOTA gets more votes than any
candidate, but it empowers citizens to
express dissatisfaction with contesting candidates
without abstaining from the electoral process.
Announcement of Issue of
Filing of Nominations
Election Schedule Notification
by the Candidates
by the ECI by the EC

Election
Oath or
Campaigns by Polling of
Affirmations of
the Votes
Candidates
Candidates

Counting of Constitution of
Votes House
AREAS OF INTEREST FOR SELF STUDY

1. First-Past-the-Post Electoral System

2. Opinion Polls
3. Exit Polls
4. National Grievance Services Portal
5. Electoral Roll Revisions
6. Model Code of Conduct
7. Right to Know
8. Disqualification as Voter
9. EVM Tampering
 ELECTION PETITIONS

The Representation of the People Act, 1951

Refer to Section 79 – 123, ROPA in Bare Act

 CASES
1. People's Union for Civil Liberties v. Union of India, (2003 (4) SCC 399)
2. People's Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
3. Subramanian Swamy v. Election Commission of India, 2013 AIR SCW 5615
4. Public Interest Foundation v. Union of India, 2013 (15) SCALE 482 (Self Study)
5. Arikala Narasa Reddy v. Venkata Rama Reddy, 2014 (5) SCC 312
6. Jafar Imam Naqvi v. Election Commission of India (2014 SC)
7. Mohd. Akbar v. Ashok Sahu, 2015 AIR SCW 4093
8. Common Cause v. Union of India, AIR 2015 SC 2286
9. Rajbala v. State of Haryana, 2016 (2) SCC 445 (Self Study)
10. Abhiram Singh v. C.D. Commachen (Dead) by LRS & Ors 2017 (2) SCC 629 (Self Study)
11. Lok Prahari v. Union of India, Writ Petition 784/2015 (2018 SC) (Self Study)
12. W.B. State Election Commission v. Communist Party of India (Marxist), (2018) 10 SCALE 186
13. Shailesh Manubhai Parmar v. Election Commission of India, 2018 (9) SCC 100
14. N Chandrababu Naidu v. Union of India, Writ Petition (C) No. 273/2019
15. Anoop Baranwal v. Union of India, decided on 2nd March 2023

16. Bonus Case: T.N. Seshan v. Union of India, (1995) 4 SCC 611
 CASE I
People's Union for Civil Liberties v.
Union of India, (2003 (4) SCC 399)
In Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Supreme
Court of India recognized that the right to know about electoral candidates falls within the
right to information available under the right to freedom of speech and expression described in
Article 19(1)(a) of the Indian Constitution. It further indicated that information about the
criminal background of candidates, assets and liabilities of candidates and their family members, and
educational qualifications of candidates should be available to the voters as part of their right.
The Election Commission issued directives to effect this judgment.
However, Section 33B made ineffective the judgment in that case and other directives.

Thus, the PUCL challenged Section 33B as violative of Article 19(1)(a).

The trite saying that 'democracy is for the people, of the people and by the people' has to
be remembered for ever. In a democratic republic, it is the will of the people that is paramount
and becomes the basis of the authority of the Government.

The will is expressed in periodic elections based on universal adult suffrage held by
means of secret ballot. It is through the ballot that the voter expresses his choice or
preference for a candidate.

In a Parliamentary democracy like ours, the Government of the day is responsible to

the people through their elected representatives. The elected representative acts or is
supposed to act as a live link between the people and the Government. The peoples'
representatives fill the role of law-makers and custodians of Government.
The moment they put in papers for contesting the election, they are
subjected to public gaze and public scrutiny.

The character, strength and weakness of the candidate is widely debated.

Nothing is therefore more important for sustenance of democratic polity

than the voter making an intelligent and rational choice of his or her representative.

For this, the voter should be in a position to effectively formulate his/her opinion and to
ultimately express that opinion through ballot by casting the vote.

The concomitant of the right to vote which is the basic postulate of democracy is thus two
fold: first, formulation of opinion about the candidates and second, the expression of choice
by casting the vote in favour of the preferred candidate at the polling booth. The first step is
complementary to the other.
Many a voter will be handicapped in formulating the opinion and making a proper choice of the
candidate unless the essential information regarding the candidate is available. The voter/citizen
should have at least the basic information about the contesting candidate, such as his involvement in
serious criminal offences.

“It will go a long way in promoting the freedom of speech and expression. That goal would be accomplished
in two ways. It will help the voter who is interested in seeking and receiving information about the candidate
to form an opinion according to his or her conscience and best of judgment and secondly it will facilitate the
Press and voluntary organizations in imparting information on a matter of vital public concern. An informed
voter-whether he acquires information directly by keeping track of disclosures or through the Press and other
channels of communication, will be able to fulfil his responsibility in a more satisfactory manner. An
enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of
proper and relevant information about the candidate fosters and promotes the freedom of speech and
expression both from the point of view of imparting and receiving the information. In turn, it would lead to
the preservation of the integrity of electoral process which is so essential for the growth of democracy.
Though I do not go to the extent of remarking that the election will be a farce if the candidates' antecedents
are not known to the voters, I would say that such information will certainly be conducive to fairness in
election process and integrity in public life. The disclosure of information would facilitate and augment the
freedom of expression both from the point of view of the voter as well as the media through which the
information is publicized and openly debated.”
 • Right to vote is a stuatory right though not a fundamental right; but right to make
choice by means of ballot is part of freedom of expression.

• The right to information cannot be frozen and stagnated.

• Firstly, when the right to secure information about a contesting candidate is

recognized as an integral part of fundamental right as it ought to be, it follows that its
ambit, amplitude and parameters cannot be chained and circumscribed for all time
to come by declaring that no information, other than that specifically laid down in the Act,
should be required to be given.

• When the legislation delimiting the areas of disclosure was enacted, it may be that the
Parliament felt that the disclosure on other aspects was not necessary for the time being.
Assuming that the guarantee of right to information is not violated by making a departure
from the paradigms set by the Court, it is not open to the Parliament to stop all further
disclosures concerning the candidate in future.
• In other words, a blanket ban on dissemination of information other than that spelt
out in the enactment, irrespective of need of the hour and the future exigencies and
expedients is, in my view, impermissible.

• It must be remembered that the concept of freedom of speech and expression does
not remain static.

• The felt necessities of the times coupled with experiences drawn from the past may give
rise to the need to insist on additional information on the aspects not provided for by law.

• New situations and march of events may demand the flow of additional facets of
information.

• The right to information should be allowed to grow rather than being frozen and
stagnated; but the mandate of Section 33B prefaced by the non obstante clause
impedes the flow of such information conducive to the freedom of expression.
In the face of the prohibition under Section 33B, the Election Commission which is
entrusted with the function of monitoring and supervising the election process will
have to sit back with a sense of helplessness in spite of the pressing need for insisting
on additional information.

Even the Court may at times feel handicapped in taking necessary remedial steps to enforce
the right to information

In my view, the legislative injunction curtailing the nature of information to be furnished by

the contesting candidates only to the specific matters provided for by the legislation and
nothing more would emasculate the fundamental right to freedom of expression of which the
right to information is a part.

The very objective of recognizing the right to information as part of the fundamental
right under Article 19(1)(a) in order to ensure free and fair elections would be
frustrated if the ban prescribed by Section 33B is taken to its logical effect.
As regards the first aspect, namely criminal record, the directives in Association for Democratic Reforms
case are two fold: "(i) whether the candidate is convicted/ acquitted/discharged of any criminal case in
the past-if any, whether he is punished with imprisonment or fine and (ii) prior to six months of filing of
nomination, whether the candidate is an accused in any pending case of any offence punishable with
imprisonment for two years or more and in which charge is framed or cognizance is taken by the Court
of law." As regards the second directive, the Parliament has substantially proceeded on the same lines and
made it obligatory to the candidate to furnish information as to whether he is accused of any offence
punishable with imprisonment for two years or more in a pending case in which a charge has been framed
by the competent Court. However, the case in which cognizance has been taken but charge has
not been framed is not covered by Clause (i) of Section 33A(I). The Parliament having taken the
right step of compelling disclosure of the pendency of cases relating to major offences, there is no good
reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance
has been taken by the Court. It is common knowledge that on account of variety of reasons such as the
delaying tactics of one or the other accused and inadequacies of prosecuting machinery, framing of
formal charges get delayed considerably, especially in serious cases where committal procedure has to be
gone through. On that account, the voter/citizen shall not be denied information regarding cognizance
taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right
to information, when once it is recognized to be part of the fundamental right under Article 19(I)(a),
cannot be truncated in the manner in which it has been done.
It is borne out by experience that by virtue of the office they hold there is a real potential
for misuse. The public awareness of financial position of the candidate will go a long
way in forming an opinion whether the candidate, after election to the office had amassed
wealth either in his own name or in the name of family members viz., spouse and dependent
children. At the time when the candidate seeks re-election, the citizens/voters can have a
comparative idea of the assets before and after the election so as to assess whether the
high public office had possibly been used for self-aggrandizement.

Incidentally, the disclosure will serve as a check against misuse of power for making quick
money-a malady which nobody can deny, has been pervading the political spectrum of our
democratic nation. As regards liabilities, the disclosure will enable
the voter to know, inter alia, whether the candidate has outstanding
dues payable to public financial institutions or the Government.
Such information has a relevant bearing on the antecedents and
the propensities of the candidate in his dealings with public money.
'Assets and liabilities' is one of the important aspects to which extensive reference has been
made in Association for Democratic Reforms case. The Court did consider it, after an
elaborate discussion, as a vital piece of information as far as the voter is concerned.

But, unfortunately, the observations made by this Court in this regard have been given
a short shrift by the Parliament with little realization that they have significant
bearing on the right to get information from the contesting candidates and such
information is necessary to give effect to the freedom of expression.

By calling upon the contesting candidate to disclose the assets and liabilities of his/her
spouse, the fundamental right to information of a voter/citizen is thereby promoted.

When there is a competition between the right to privacy of an individual and the
right to information of the citizens, the former right has to be subordinated to the
latter right as it serves larger public interest.
Consistent with the principle of adult suffrage, the Constitution has not prescribed any
educational qualification for being Member of the House of the People or Legislative
Assembly.

That apart, I am inclined to think that the information relating to educational

qualifications of contesting candidates does not serve any useful purpose in the present
context and scenario. It is a well known fact that barring a few exceptions, most of the
candidates elected to Parliament or the State Legislatures are fairly educated even if they are
not Graduates or Post-Graduates.

To say that well educated persons such as those having graduate and post- graduate
qualifications will be able to serve the people better and conduct themselves in a better
way inside and outside the House is nothing but overlooking the stark realities.

The experience and events in public life and the Legislatures have demonstrated that the
dividing line between the well educated and less educated from the point of view of
his/her calibre and culture is rather thin.
Much depends on the character of the individual, the sense of devotion to duty and the
sense of concern to the welfare of the people. These characteristics are not the
monopoly of well educated persons.

I do not think that it is necessary to supply information to the voter to facilitate him to indulge
in an infructuous exercise of comparing the educational qualifications of the candidates. It
may be that certain candidates having exceptionally high qualifications in specialized
field may prove useful to the society, but it is natural to expect that such candidates
would voluntarily come forward with an account of their own academic and other
talents as a part of their election programme.

Viewed from any angle, the information regarding educational qualifications is not a vital and
useful piece of information to the voter, in ultimate analysis. At any rate, two views are
reasonably possible. Therefore, it is not possible to hold that the Parliament should
have necessarily made the provision for disclosure of information regarding
educational qualifications of the candidates.
Held –
Section 33B inserted by the Representation of People (3rd Amendment)
Act, 2002 does not pass the test of constitutionality firstly for the
reason that it imposes blanket ban on dissemination of information
other than that spelt out in the enactment irrespective of the need of
the hour and the future exigencies and expedients and secondly for the
reason that the ban operates despite the fact that the disclosure of
information now provided for is deficient and inadequate.

The Election Commission has to issue revised instructions to ensure

implementation of Section 33A subject to what is laid down in this
judgment regarding the cases in which cognizance has been taken.
 CASE II
People's Union for Civil Liberties v.
Union of India, (2013) 10 SCC 1
In the above backdrop, the petitioners herein prayed for declaring Rules 41(2) & (3) and 49-O
of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election
Commission of India to provide necessary provision in the ballot papers as well as in the
electronic voting machines for the protection of the right of not to vote in order to keep
the exercise of such right a secret under the existing RP Act/the Rules or under Article 324 of
the Constitution.

Union of India has contended that -

1. Right to vote is neither a fundamental right nor a constitutional right nor a common law right
but only a statutory right and so is not amenable to writ jurisdiction under article 32.
2. Powers of election commission under article 324 are not wide enough to enter arenas already
covered by statutory provisions.
3. Section 2(d) of the RP act defines ‘election’ as only a means of choice between various
candidates to fill a seat and so it cannot be interpreted as to not fill a seat and there is no
concept of negative voting and as it has no legal consequence there is no motivation for
voters to travel to the polling booth and reject all the candidates by exercising NOTA option.
4. The right of secrecy has been extended to only those who have exercised their right to vote
and not to those who have not voted at all.
The court distinguished between ‘right to vote’ and ‘freedom of voting or right to reject as
a species of freedom of expression’ and stated that though 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 a form of expression under article 19(1)(a) of the Constitution.

The casting of vote in favour of one or the other candidate tantamount 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. This is where article 19(1)(a) is
attracted.

No doubt, the right to vote is a statutory right but it is equally vital

to recollect that this statutory right is the essence of democracy.
Without this, democracy will fail to thrive.

Therefore, even if the right to vote is statutory, the significance attached

with the right is massive. Thus, it is necessary to keep in mind these facets
while deciding the issue at hand.
1. In a system of direct elections, secrecy is essential in order to ensure
the effectiveness of the vote i.e. elections could not be free and fair
unless secrecy is maintained.

2. Also, since freedom to vote naturally includes the freedom not to vote,
it would be arbitrary to extend secrecy to one and not to other.

3. An arbitrary distinction between the voter who cast his vote and the
voter who does not is violative of article 14. And so secrecy needs to be
extended to both categories of persons.

4. Voting and not voting both deserves similar levels of protection as the
act of not voting is as much a positive exercise of free expression
under Article 19(1)(a) as is voting.
“54) Free and fair election is a basic structure of the Constitution and necessarily
includes within its ambit the right of an elector to cast his vote without fear of reprisal,
duress or coercion. Protection of elector’s identity and affording secrecy is therefore
integral to free and fair elections and an arbitrary distinction between the voter who casts
his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is
required to be maintained for both categories of persons.”

55) Giving right to a voter not to vote for any candidate while protecting his right
of secrecy is extremely important in a democracy. Such an option gives the voter the
right to express his disapproval with the kind of candidates that are being put up by the
political parties. When the political parties will realize that a large number of people
are expressing their disapproval with the candidates being put up by them,
gradually there will be a systemic change and the political parties will be forced to
accept the will of the people and field candidates who are known for their
integrity.
56) The direction can also be supported by the fact that in the existing system a dissatisfied
voter ordinarily does not turn up for voting which in turn provides a chance to
unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a
negative one. Furthermore, a provision of negative voting would be in the interest of promoting
democracy as it would send clear signals to political parties and their candidates as to what the
electorate think about them.

In view of our conclusion, we direct the Election Commission

to provide necessary provision in the ballot papers/EVMs and
another button called “None of the Above” (NOTA) may be provided in EVMs so that the
voters, who come to the polling booth and decide not to vote for any of the candidates in the fray,
are able to exercise their right not to vote while maintaining their right of secrecy.

Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we
direct the Election Commission to implement the same either in a phased manner or at a time
with the assistance of the Government of India. We also direct the Government of India to
provide necessary help for implementation of the above direction. Besides, we also direct the
Election Commission to undertake awareness programmes to educate the masses.
 CASE III
Subramanian Swamy v. Election
Commission of India, 2013 AIR SCW 5615
Dr. Subramanian Swamy vs Election Commission Of India
2013 AIR SCW 5615

CJI P Sathasivam
J. Ranjan Gogoi

Introduction of
VVPAT in India
This appeal is directed against the judgment and order dated 17.01.2012 passed by the
Division Bench of the High Court of Delhi at New Delhi in W.P.(C) No. 11879 of 2009
whereby the High Court disposed of the petition by disallowing the prayer made by the
appellant herein for issuance of a writ of mandamus directing the Election
Commission of India (ECI)-Respondent herein to incorporate a system of “paper
trail/paper receipt” in the Electronic Voting Machines (EVMs) as a convincing proof
that the EVM has rightly registered the vote cast by a voter in favour of a particular
candidate.

7) Dr. Subramanian Swamy, the appellant herein contended before this Court that the
present system of EVMs, as utilized in the last few general elections in India, does not
meet all the requirements of the international standards and,

…though the ECI maintains that the EVMs cannot be tampered with, but the fact is
that EVMs, like all electronic equipment, are open to hacking.
8) The appellant has further highlighted that the instant matter arises out of the refusal of
the ECI to incorporate a certain obvious safeguard in the EVMs called “paper backup”,
“paper receipt” or “paper trail”, presently in use and mandated in some countries like
USA, which would easily and cheaply meet the requirement of proof that the EVM has
rightly registered the vote cast by a voter.

The appellant has further highlighted that the “paper trail” system is to supplement the
procedure of voting as in this procedure, after recording a vote in the EVM, a print out
will come out which will appraise the voter that his vote has been rightly registered
and the same will be deposited in a box which can only be used by the ECI in case
of election dispute.
9) It is the categorical stand of the appellant that the above said system will bring more
accuracy in the present system and if a particular election is challenged on the ground that
some particular identified voter’s voter or the votes of a group of voters have been
suppressed/have not been correctly assigned by the EVMs, the accepted current procedure
is for a re-run of the same EVMs for a re-count, however, under the new procedure, a
re-count will be of the receipts in the ballot box containing the printouts the EVMs had
issued to the voter thereby ensuring more transparency in the process.

10) The writ petitioner has also raised similar contentions as those of Dr. Swamy. According to
the petitioner, in the present system of voting through EVMs, there is no such facility by
which a voter can verify and confirm his own voting. At present, a voter presses a
button only but cannot ascertain the actual voting. He is not sure whether his vote is
recorded or not, if recorded, whether it is recorded in favour of the person to whom it
was intended or not.
Stand of the Election Commission of India:
11) Mr. Ashok Desai, learned senior counsel for the ECI submitted that the apprehension that
EVMs could be tampered with is baseless. It was also informed to this Court that the ECI has
been exploring the possibility of incorporating a viable Voter Verifiable Paper Audit Trail
(VVPAT) system as a part of the presently used EVMs to make the election system more
transparent. Further, it was brought to our notice that the ECI conducted field trials for VVPAT
system earlier also but the same had not been successful and were discontinued. The ECI also
filed a counter affidavit stating that the EVMs provided by the Commission are of such a high
end technology that it cannot be hacked.
13) It is further submitted that the EVMs used in India are unique and unlike the ones used
in the elections in USA and other countries, which are personal computer based. EVMs
deployed by the ECI have been lauded not only in India but also abroad.
EVM’s Control Unit retains in the memory each vote recorded elector-wise. The
information stored in the memory of the Control Unit can be retrieved by using a device
called the “decoder” which, when attached to the Control Unit of EVM, can print out the
statement of voting data showing the order in which each voter has voted and to whom he
has voted.
14) Insofar as the transparency of the election process as well as the right of a voter to know
whether his vote has actually been recorded for the candidate for whom it was cast is
concerned, it is submitted that as soon as a vote is recorded by a voter by pressing the
“candidate’s” button on the Ballot Unit, a light glows against the name and symbol of
the candidate, which the voter can see for himself/ herself. This is a visual (electronic)
assurance to the voter that the candidate for whom he has cast his vote has actually got
that vote. Thereafter, the light goes off to protect the secrecy of voting.
15) It is further submitted that the feasibility of VVPAT system was sought to be explored to by various
political parties and they were explained the technical and administrative safeguards. The ECI also
constituted a Technical Experts Committee to examine the viability of the VVPAT system. On
27.05.2011, the Technical Experts Committee, after discussion with political parties and civil society
members and also after seeing the demonstration of the prototype VVPAT system developed by M/s.
Bharat Electronics Ltd. (BEL) and M/s. Electronics Corporation of India Ltd. (ECIL),
recommended that a field test of the prototype VVPAT system should be carried out in a
simulated election under different environmental conditions in Jaisalmer, Delhi, Leh and
Cherapunji.

Though initially the ECI was little reluctant in introducing “paper trail” by use of VVPAT,
taking note of the advantage in the system as demonstrated by Dr. Subramanian Swamy, we
issued several directions to the ECI .

Pursuant to the same, the ECI contacted several expert bodies, technical advisers, etc. They also
had various meetings with National and State level political parties, demonstrations were conducted at
various places and finally after a thorough examination and full discussion, VVPAT was used
successfully in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland.
The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that
VVPAT system is a successful one.

We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his
vote, in addition to the electronic record of the ballot, for the purpose of verification of his choice
of candidate and also for manual counting of votes in case of dispute.

29) From the materials placed by both the sides, we are satisfied that the “paper trail” is an
indispensable requirement of free and fair elections. The confidence of the voters in the
EVMs can be achieved only with the introduction of the “paper trail”.

EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest
transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs
with VVPAT system because vote is nothing but an act of expression which has immense importance
in democratic system.
30) In the light of the above discussion and taking notice of the pragmatic and reasonable
approach of the ECI and considering the fact that in general elections all over India, the ECI has to
handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in
gradual stages or geographical-wise in the ensuing general elections. The area, State or actual
booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased
manner. We appreciate the efforts and good gesture made by the ECI in introducing the same.

31) For implementation of such a system (VVPAT) in a phased manner, the Government of India
is directed to provide required financial assistance for procurement of units of VVPAT.
 CASE IV
Arikala Narasa Reddy v. Venkata Rama
Reddy, 2014 (5) SCC 312
Facts of the Case

Legislative Council Elections

Election Date – 30 March 2009
Total Votes – 706
Votes Cast – 701

The votes were counted on 2.4.2009 and initially both the contesting candidates are said to have got
equal number of votes as 336 each while 29 votes were found invalid.

On the application of the appellant herein, the Returning Officer allowed re-counting of all the
votes wherein the appellant got 336 votes and the respondent no.1 secured 335 votes and 30
votes were found to be invalid and therefore, the appellant was declared to be the successful
candidate and elected as MLC by a margin of one vote.

The election petition was filed mainly on the ground that 3 votes in question Ex.X-1 to X-3 polled
in favour of the respondent no.1 had been wrongly rejected and one vote Ex.Y-13 which had
been counted in favour of the appellant ought to have been declared invalid.
During the pendency of the election petition vide order dated 23.9.2011, the High Court
directed the Registrar (Judicial), High Court of Andhra Pradesh to scrutinize and re-
count all the ballot papers in the presence of the parties and their counsel as per the
rules and regulations, and the instructions and guidelines issued by the Election Commission
of India and submit a report within a stipulated period.

Aggrieved, the appellant challenged the said order by filing Special Leave Petition
(Civil) No.29095 of 2011 and this Court vide an order dated 20.10.2011 set aside the
impugned order of the High Court and directed to first determine the question relating to
the validity of the 3 disputed votes and, thereafter, to examine the issue of re-counting of all
the votes, if required.

The High Court, in pursuance of the order of this Court, scrutinized and examined
the 3 disputed votes in question in the presence of the parties and their counsel from
the bundle of disputed votes… and came to the conclusion that the Returning Officer
had wrongly rejected the said 3 votes as invalid and ordered that all the 3 disputed
votes to be counted in favour of respondent no.1.
• The High Court during the trial of the election petition picked up 17 ballot papers
from the bundle of rejected ballot papers as determined by the Returning Officer and
also picked up 2 ballot papers from the valid votes of the appellant.

• The High Court vide judgment and order dated 20.7.2012 allowed the election petition
holding that certain votes cast in favour of respondent no.1 had wrongly been rejected and
the vote which should have been declared as invalid had wrongly been counted in favour of
the appellant as valid and thus, the respondent no.1 was declared as successful
candidate and elected as MLC.

• The operation of the aforesaid judgment dated 20.7.2012 was stayed only for a period of
4 weeks to enable the appellant to approach this Court.

• Hence, these appeals.

3. Shri B. Adinarayana Rao, learned senior counsel appearing for the appellant has
submitted that the election petition has not been decided by the High Court giving
strict adherence to the provisions of the Act and the Rules framed for this purpose.
It was not permissible for the High Court to go beyond the pleadings of the election
petition. The entire controversy could only be in respect of 3 votes as pleaded in the election
petition by the respondent no.1 which had been declared invalid and another vote which
ought to have been declared invalid but had been counted in favour of the appellant as valid.
It was not permissible for the High Court to count all the votes and pick up large
number of votes from the bundle of invalid votes, totaling 30, or from the valid votes
duly counted in favour of the appellant or the respondent no.1.
Counting has to take place strictly in accordance with the rules and there was no
occasion for the court to find out the intention of the voters or draw an inference in
whose favour the elector wanted to vote.

Therefore, the appeals deserve to be allowed.

Per contra, Shri P.P. Rao, learned senior counsel appearing for the respondents has
vehemently opposed the appeals contending that even if the case is restricted to
aforesaid 4 votes, as submitted by learned counsel for the appellant, the result so
declared by the High Court is not materially affected.

The Returning Officer had committed an error in declaring the 3 valid votes in
favour of the respondent no.1 as invalid and miscounted one vote as valid.

Thus, in such a fact-situation, the intention of the elector has to be inferred in view of the
statutory rules and executive instructions issued by the Election Commission for counting
the ballot papers.

Therefore, the judgment delivered by the High Court can by no means be termed as
perverse and no interference is called for.

The appeals lack merit and are liable to be dismissed.

• Section 87 of the Act provides that the election petition is to be tried by the High
Court applying the provisions of the Code of Civil Procedure, 1908 (hereinafter
referred to as the ‘CPC’) “as nearly as may be” and in accordance with the procedure
applicable under CPC and the provisions of the Indian Evidence Act, 1872 (hereinafter
referred to as the ‘Evidence Act’) shall also be applicable subject to the provisions of the
Act.

• 7. It is a settled legal proposition that the statutory requirements relating to election

law have to be strictly adhered to for the reason that an election dispute is a
statutory proceeding unknown to the common law and thus, the doctrine of
equity, etc. does not apply in such dispute.

• Therefore, answer to every question raised in election dispute is to be solved

within the four corners of the statute.
The result announced by the Returning Officer leads to formation of a government
which requires the stability and continuity as an essential feature in election process
and therefore, the counting of ballots is not to be interfered with frequently.

More so, secrecy of ballot which is sacrosanct gets exposed if

recounting of votes is made easy.

The court has to be more careful when the margin between the
contesting candidates is very narrow.

“Looking for numerical good fortune or windfall of chance discovery of illegal

rejection or reception of ballots must be avoided, as it may tend to a dangerous
disorientation which invades the democratic order by providing scope for reopening of
declared results”.

However, a genuine apprehension of mis-count or illegality and other compulsions of

justice may require the recourse to a drastic step.
 Before the court permits the recounting, the following conditions must be satisfied:

i. The court must be satisfied that a prima facie case is established;

ii. The material facts and full particulars have been pleaded stating the
irregularities in counting of votes;
iii. A roving and fishing inquiry should not be directed by way of an order to re-
count the votes;
iv. An opportunity should be given to file objection; and
v. Secrecy of the ballot should be guarded
This Court has consistently held that the court cannot go beyond the pleadings of the
parties. (important)

The parties have to take proper pleadings and establish by adducing evidence that by a
particular irregularity/illegality, the result of the election has been “materially affected”.
There can be no dispute to the settled legal proposition that “as a rule relief not founded on the
pleadings should not be granted”.

Thus, a decision of the case should not be based on grounds outside the pleadings of
the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be
considered.

It is also a settled legal proposition that no party should be permitted to travel beyond its
pleadings and parties are bound to take all necessary and material facts in support of the case
set up by them. (important)
Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they
may have an opportunity of placing the relevant evidence before the court for its consideration.
The secrecy of a ballot is to be preserved in view of the statutory provision contained
in Section 94 of the Act. Secrecy of ballot has always been treated as sacrosanct and
indispensable adjunct of free and fair election. Such principle of secrecy is based on public
policy aimed to ensure that voter may vote without fear or favour and is free from any
apprehension of its disclosure against his will.

20. In view of the pleadings in the election petition, the case should have been
restricted only to these four votes and even if the recrimination petition is taken into
account, there could have been no occasion for the High Court to direct recounting of
all the votes and in case certain discrepancies were found out in recounting of votes by the
Registrar of the High Court as per the direction of the High Court, it was not permissible for
the High Court to take into consideration all such discrepancies and decide the election
petition or recrimination petition on the basis thereof.

The course adopted by the High Court is impermissible and cannot be taken note of
being in contravention with statutory requirements.
Therefore, the case has to be restricted only to the four votes in the election petition and the
allegations made in the recrimination petition ignoring altogether what had been found out in the
recounting of votes as under no circumstance the recounting of votes at that stage was permissible.

Then, the Apex Court looked at the judgment of the High Court as well as the four ballot papers in
question, and came to the conclusion – that the Returning Officer had made the correct decisions.

35. In view of the above, we reach the inescapable conclusion that even after deciding the
Recrimination Petition, the appellant and the respondent no.1 have received equal number of
votes.

36. In such a fact-situation the decision as to who will be the returned candidate is to be decided by
the draw of lots by virtue of the provisions of Section 102 of the Act.
37. In view of the above, in the presence of all the learned counsel for the parties we have drawn
the lots in the open Court and by draw of lots, the appellant succeeds.

38. The appeals stand disposed of accordingly in favour of appellant. No costs.

 CASE V
Jafar Imam Naqvi v. Election
Commission of India (2014 SC)
 JAFAR IMAM NAQVI VS. ELECTION COMMISSION OF INDIA (2014 SC)
JUSTICE DEEPAK MISHRA & JUSTICE N V RAMANNA

3. The petitioner appearing in person has submitted that in view of such hate speeches by
political leaders when the equilibrium of the society is disturbed and there is a
possibility of creating a crack in the multi-faceted fabric of the society, it is the
constitutional duty of this Court to issue a writ or mandamus to the Election
Commission of India to take appropriate steps.

That apart, the petitioner-in-person has also made

submissions for issue of a mandamus to cancel the
recognition of such political parties and also to protect
the liberty and safety of the citizens.
4. The seminal question that emanates for consideration is whether the Court in
exercise of power under Article 32 of the Constitution should enter into the arena of
effect and impact of election speeches rendered during the election campaign in
public interest litigation. The petitioner commenced his arguments by stating that since the
infancy of the Constitution, this Court has not declined to declare a law wherever it has
found that it is unconstitutional. In that regard, he has commended us to the decision in The
State of Bihar vs. Sir Kameshwar Singh. On a careful reading of the said decision, we find
that the issue decided therein has nothing to do with the case of the present nature.

Petitioner referred to Smt. Nilabati Behera alias Lalita

Behera vs. State of Orissa, Vishaka and others vs.
State of Rajasthan and others to reflect judicial activism
whenever there is curtailment of, or threat to, Fundamental
Rights of citizens. But these were instances of violation of
Basic Human Rights. Can Hate Speech in elections be equated
to the same?
22. Be that as it may, this Court has consistently clarified that the directions have been
issued by the Court only when there has been a total vacuum in law, i.e. complete
absence of active law to provide for the effective enforcement of a basic human right. In
case there is inaction on the part of the executive for whatsoever reason, the court
has stepped in, in exercise of its constitutional obligations to enforce the law.

In case of vacuum of legal regime to deal with a particular situation the court may
issue guidelines to provide absolution till such time as the legislature acts to
perform its role by enacting proper legislation to cover the field.

Thus, direction can be issued only in a situation where the will of the elected
legislature has not yet been expressed.

10. The petitioner has submitted that this Court being the guardian of the Constitution is
obligated to issue notice, call for the response and issue appropriate directions. Be it stated,
the Election Commission might have taken note of it and initiated certain action.
The matter of handling hate speeches could be a matter of adjudication in an appropriate legal
forum and may also have some impact in an election disputes raised under the Representation
of People Act, 1951.
Therefore, to entertain a petition as a public interest litigation and to give directions would be
inappropriate.
11. Before parting with the case, it may be stated that public interest litigation was initially used by
this Court as a tool to take care of certain situations which related to the poor and under-
privileged who were not in a position to have access to the Court. Thereafter, from time to time,
the concept of public interest litigation expanded with the change of time and the horizon
included the environment and ecology, the atrocities faced by individuals in the hands of the
authorities, financial scams and various other categories including eligibility of the people
holding high offices without qualification.
But a public interest litigation pertaining to speeches delivered during election campaign, we
are afraid, cannot be put on the pedestal of a real public interest litigation. There are laws to take
care of it. In the name of a constitutional safeguard entering into this kind of arena, in our convinced
opinion, would not be within the constitutional parameters.
Petition Dismissed.
 CASE VI
Mohd. Akbar v. Ashok Sahu
2015 AIR SCW 4093
 MOHD. AKBAR VS ASHOK SAHU 2015 AIR SCW 4093
BENCH: J. ROHINTON FALI NARIMAN, J. CHELAMESWAR

Polling – 19 November 2023

Results – 8 December 2023
Election Petition by Appellant – 20 January 2024
HC Issued Summons to Respondents – 29 January 2024

February – December 2024: Hearings, Applications (OVII, R11) Interim Orders,

interlocutory applications, Adjournments

Section 86 (7), ROPA 1951 - Every election petition shall be tried as expeditiously as possible
and endeavour shall be made to conclude the trial within six months from the date on which
the election petition is presented to the High Court for trial.
▪ It was the pious hope of the Parliament that election disputes under the Representation of
the People Act, 1951 should be resolved expeditiously. The purpose is obvious. The tenure of
the members of the Parliament as well as the Legislature of the State is relatively short. It is five
years in the case of Lok Sabha and Legislative Assembly, and six years in the case of Rajya Sabha
and Legislative Council. Therefore, if there is a dispute regarding the election of any member of
any one of the said bodies, it is desirable that the dispute is resolved as early as possible for various
reasons.

▪ Membership of the Legislative bodies under the scheme of our constitution is a sacred
responsibility. The continuance of any member in such bodies who secured his election to
such a body by legally impermissible means even for a day is most undesirable. Such
continuance affords an opportunity to such a member to take part in the law-making process
affecting the destinies of the people.

▪ Even from the point of view of the contesting candidates, unless the rights and the obligations are
decided within a reasonable time, the adjudication and the consequences of the adjudication
may eventually remain on paper without any tangible effect insofar as the participation of such
parties in the legislative process.
13. However, we are sad to state that invariably the resolution of election disputes in this
country takes unacceptably long periods in most of the cases.
Very rarely an election dispute gets resolved during the tenure of the declared
candidate reducing the adjudicatory process into a mockery of justice.

Such delay coupled with a right of appeal to this Court makes the whole process of
adjudication a task in a good number of cases. The reasons are many, we will only mention few;
The stakes are very high for the parties. Nothing short of the membership of a
constitutional body for a limited period. The power and glory that go with such
membership is too high and valuable and the returned candidates naturally leave no
stone unturned for protracting the litigation as long as possible.
The law of elections and election disputes is highly technical. Therefore, there is always
scope for lot of objections and cross-objections regarding every step in the conduct of the
election petition.
The absence of dedicated Benches in the High Court for resolution of the election
disputes is another factor which contributes enormously to the delay in the
adjudicatory process.

15. The facts of the present case are telling. Some 15 months after the election, the trial of
the election petition has not yet commenced. In the circumstances, we deem it appropriate
to request the Chief Justice to take necessary steps for disposal of the Election Petition No. 4
of 2014 expeditiously, by devising such appropriate measures as the Hon'ble Chief Justice may
deem fit and proper in the circumstances.

14. We therefore deem it desirable that in each High Court dedicated Benches are created
by the Chief Justice to deal with the election petitions exclusively. In other words, those
judges assigned with the adjudication of election petitions preferably may not be burdened
with any other work until the adjudication of the election petitions is completed. An exercise
which may not be difficult especially the class of litigation occurs only once in 5 or 6
years and the number of cases would be very limited.
We are conscious of the fact that it is not possible for laying down any absolute rules in this
regard. Essentially it is for a Chief Justice of the High Court to run the administration and
devise ways and means for expeditiously disposing of the cases brought before the High
Court.

We only gently remind that the kind of delay in the adjudication of election disputes
exposes the High Court's unpleasant criticism damaging the credibility of the
institution.

A situation which is certainly required

to be avoided at any cost.
 CASE VII
Common Cause v. Union of India, AIR
2015 SC 2286
 COMMON CAUSE VS UNION OF INDIA AIR 2015 SC 2286
BENCH: J. PINAKI CHANDRA GHOSE, J. RANJAN GOGOI

Common Cause and Centre for Public Interest Litigation, two registered bodies, have approached this
Court under Article 32 of the Constitution seeking an appropriate writ to restrain the Union of
India and all State Governments from using public funds on Government advertisements
which are primarily intended to project individual functionaries of the Government or a political party.
The writ petitioners have also prayed for laying down of appropriate guidelines by this Court to
regulate Government action in the matter so as to prevent misuse/wastage of public funds in
connection with such advertisements.
 In the above stated writ petitions the writ petitioners while conceding the beneficial effect
of government advertisements which convey necessary information to the citizens with
regard to various welfare and progressive measures as also their rights and entitlements,
however, had contended that in the garb of communicating with the people, in many
instances, undue political advantage and mileage is sought to be achieved by
personifying individuals and crediting such individuals or political leaders (who are
either from a political party or government functionaries) as being responsible for
various government achievements and progressive plans. According to the petitioners
such practice becomes rampant on the eve of the elections. Such advertisements not only
result in gross wastage of public funds but constitute misuse of governmental powers
besides derogating the fundamental rights of a large section of the citizens as guaranteed by
Article 14 and 21 of the Constitution of India.

The writ petitions, filed as public interest litigations, were resisted by the Union of India
primarily on the ground that the issues sought to be raised pertain to governmental
policies and executive decisions in respect of which it may not be appropriate for this
Court to lay down binding guidelines under Article 142.
The issues arising in the writ petitions were considered by this Court in an earlier round of exhaustive
hearings. By order dated 23.04.2014, this Court, on consideration of the respective stands of the
parties and by relying on the principles laid down in the decisions specifically referred to in the
aforesaid order dated 23.04.2014, inter alia, held that there is no dispute that “primary cause of
government advertisement is to use public funds to inform the public of their rights,
obligations, and entitlements as well as to explain Government policies, programmes, services
and initiatives.”

It was further held that only such government advertisements which do not fulfil the above requisites
will fall foul of the area of permissible advertisements. This Court acknowledged the fact that the
dividing line between permissible advertisements that are a part of government messaging
and advertisements that are “politically motivated” may at times gets blurred.

As the materials laid before the Court by the parties were found to be inadequate for the purpose of
evolving what would be the best practices keeping in view the prevailing scenario in other jurisdictions
across the globe, this Court felt the necessity of constituting a Committee consisting of (1) Prof.
(Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal (2) Mr. T.K.
Viswanathan, former Secretary General, Lok Sabha and (3) Mr. Ranjit Kumar, Senior Advocate
to go into the matter and submit a report to the Court.
PRINCIPLES OF CONTENT REGULATION:

While placing advertisements or purchasing advertising space in any media, the Government
shall be guided by the following principles, namely:-

▪ Advertising Campaigns to be related to Government responsibilities:

▪ While it is the duty of the Government to provide the public with timely, accurate,
clear, objective and complete information about its policies, programmes, services and
initiatives since the public has a right to such information, the content of government
advertisements should be relevant to the governments’ constitutional and legal obligations
as well as the citizens’ rights and entitlements.

▪ Advertisement materials should be presented in an objective, fair and accessible

manner and be designed to meet the objectives of the campaign:
▪ Government shall exercise due caution while deciding the content, layout, size and
design of the message including the target area and the creative requirement of the
intended communication in order to ensure that the maximum reach and impact are
achieved in the most cost effective manner;

▪ Content of advertisement must enable the recipients of the information to distinguish

between facts and analysis and where information is presented as a fact, it should be
accurate and verifiable;

▪ Pre-existing policies, products, services and initiatives should not be presented as

new unless there has been a substantial change or modification of such policies,
products or services;
▪ Content of advertisement should provide information in a manner that accommodates
special needs of disadvantaged individuals or groups identified as being within the
target audience;

▪ Multiple formats may be used to ensure equal access;

▪ Every effort shall be made to pre-test the material in case of large scale campaign
with target audiences.

▪ Advertisement materials should be objective and not directed at promoting political

interests of ruling party:

▪ Display material must be presented in objective language and be free of political

argument or partisan standpoint:
▪ Government advertising shall maintain political neutrality and avoid glorification
of political personalities and projecting a positive impression of the party in power or a
negative impression of parties critical of the government.

▪ Advertisement materials must not –

o Mention the party in government by name;
o directly attack the views or actions of others in opposition;
o include party political symbol or logo or flag;
o aim to influence public support for a political party, candidate for election; or
refer to link to the websites of political parties or politicians.
▪ Government advertisement materials should avoid photographs of political leaders and
if it is felt essential for effective Government messaging, only the photographs of the
President/Prime Minster or Governor/Chief Minister should be used;

▪ Government advertisements shall not be used at patronizing media houses or aimed

at receiving favourable reporting for the party or person in power Advertisement
Campaigns be justified and undertaken in an efficient and cost-effective manner:

▪ Since it is the responsibility of government to safeguard the trust and confidence in the
integrity and impartiality of public services and hence it should be the policy of
governments to use public funds in such a manner as to obtain maximum value for
taxpayers’ money;

▪ Advertisement Campaigns must be justified and undertaken in an efficient and

cost-effective manner;
▪ The Government shall – decide and announce beforehand, a list of personalities on whose
birth or death anniversaries, advertisements could be released every year and specify which
Ministry/Department could release the same;
▪ avoid the issue of multiple advertisements by different departments and PSUs of the same
Government in Commemorative Advertisements and shall issue a single advertisement only;

▪ Though advertising by governments should remain regulated all the time, it is particularly important
to scrupulously follow these principles before and during the elections. As far as possible,
during the period prior to elections, only those advertisements required by law (such as public health
and safety advisories or job and contract advertisements) alone be released by governments;

▪ Advertisement campaigns should only be need based; and

▪ In case of large volume advertisement campaigns, post-campaign impact assessment is

necessary to be included in the planning process itself and shall identify the indicators to
measure success when the campaign has ended.
9. It is neither possible nor feasible or even necessary to try and encompass the myriad
situations where government advertisements are issued. Indeed, the situations and
circumstances; events and occasions on which government advertisements are issued are
infinite. Nevertheless, an attempt can be made to arrive at a broad categorization for the
purpose of an illustrative understanding.

Advertisements highlighting completion of a fixed period of the Government’s Tenure

Governments at the Centre as well as in the States often bring out advertisements on
completion of a number of days, months and years of governance. In such advertisements, not
only the ‘achievements’ are highlighted even the different tasks which are in contemplation are
enumerated.
By way of example one of the points highlighted may be supply of electricity to each
and every village. Though the achievements of a Government should not be a matter of
publicity and really ought to be a matter of perception to be felt by the citizens on the
results achieved, such advertisements do have the effect of keeping the citizens
informed of the government functioning and therefore would be permissible.
10. A connected facet of the matter which cannot be ignored is the power of the Government to
give/award advertisements to selected media houses and the concomitant issue of freedom
of press. Award of advertisements, naturally, brings financial benefit to the particular media
house/newspaper group. Patronization of any particular media house(s) must be avoided
and award of advertisements must be on an equal basis to all newspapers who may, however,
be categorized depending upon their circulation.
The D.A.V.P. guidelines do not deal with the said aspect of the matter and hence the
necessity of incorporating the same in the present directions to ensure the independence,
impartiality and the neutrality of the fourth estate which is vital to the growth and sustenance
of democracy will have to be weighed and considered by us.

15. A consideration of the objections filed by the Union would go to show that the Union seriously
disagrees with the recommendations of the Committee in respect of the following matters:
(1) restricted publication of photographs of the Government functionaries and political
leaders alongwith the advertisement etc.
(2) appointment of an Ombudsman
(3) the recommendation with regard to performance audit by each Ministry.
(4) embargo on advertisements on the eve of the elections.
23. The legitimate and permissible object of an advertisement, as earlier discussed, can
always be achieved without publication of the photograph of any particular functionary
either in the State of a political party.

We are, therefore, of the view that in departure to the views of the Committee which
recommended permissibility of publication of the photographs of the President and Prime
Minister of the country and Governor or Chief Minister of the State along with the
advertisements, there should be an exception only in the case of the President, Prime
Minister and Chief Justice of the country who may themselves decide the question.

Advertisements issued to commemorate the anniversaries of acknowledged personalities like

the father of the nation would of course carry the photograph of the departed leader.
24. Insofar as the recommendation with regard to the appointment of Ombudsman is
concerned, we are of the view that for ironing out the creases that are bound to show from
time to time in the implementation of the present directions and to oversee such
implementation the government should constitute a three member body consisting of
persons with unimpeachable neutrality and impartiality and who have excelled in their
respective fields. We could have but we refrain from naming the specific persons and leave
the said exercise to be performed by the Union Government.

25. Insofar as performance/special audit is concerned, we do not feel the necessity of

any such special audit inasmuch as the machinery available is adequate to ensure due
performance as well as accountability and proper utilization of public money.

26. If Government advertisements adhere to the objects and parameters mentioned above
we do not feel the necessity of imposing a special curb on government
advertisements on the eve of the elections, as suggested by the Committee.
28. We close the matters on the aforesaid note by approving and adopting the
recommendations of the Committee except what has been specifically indicated above
with regard to (1) publication of photographs of the Government functionaries and political
leaders alongwith the advertisement(s). (2) appointment of an Ombudsman (3) the
recommendation with regard to performance audit by each Ministry.
(4) embargo on advertisements on the eve of the elections.

29. We also make it clear that the present directions issued under Article 142 of the
Constitution cannot be comprehensive and there are several aspects of the matter
which may have escaped our attention at this stage.

In this regard, we would like to clarify that it is not the intention of the Court to attempt to lay
down infallible and all comprehensive directions to cover the issue at hand. The gaps, if any,
we are confident would be filled up by the executive arm of the government itself
inasmuch as the attainment of constitutional goals and values enshrined in Part IV of
the Constitution is the conjoint responsibility of the three organs of the State i.e.
legislative, executive and the judiciary, as earlier discussed.
• As per the directions of Supreme Court in 2015, the Government of India had set up a
three-member body in 2016 to look into content regulation of government funded
advertisements in all media platforms.
• As per directions of the Hon’ble Supreme Court, states are mandated to set up their
respective three member committees on Content Regulation of Government
Advertisements.
• Karnataka, Goa, Mizoram and Nagaland States have already constituted state-level Three
Member Committees.
• It is empowered to
address complaints
from the general
public and can also
take suo-moto
cognizance of any
violation of the Supreme
Court guidelines and
recommend corrective
actions.
• The Committee may, if
necessary, also decide
to summon the
concerned official of
the Govt.
agencies dealing with
release of
advertisements in the
event of undue delay in
responding to
Committee’s notices.
 CASE VIII
W.B. State Election Commission v.
Communist Party of India (Marxist),
(2018) 10 SCALE 186

J. D Y Chandrachud,
J. Am Khanwilkar
J. Dipak Misra
Facts of the Case –

31 March 2018: Notification for Panchayat Elections:

Last Date to File Nominations – 9 April 2018
Scrutiny of Nominations – 11 April 2018
Last Date of Withdrawal of Candidature – 16 April 2018
Polling – 1, 3, 5 May 2018

6 April 2018 – PIL filed by Adhir Ranjan Chowdhury of the Indian National Congress
challenging the Notification.
6 April 2018 – PIL filed by Bharatiya Janta Party for a direction to accept nomination papers
through e-mail.

A grievance was made before this Court, based on newspaper reports, that candidates
who wished to contest the panchayat elections were not being allowed to collect and
submit their nomination forms as a result of the violent actions of the supporters of the
ruling party in the State.
9 April 2018 – Court Recorded –
Relying upon the newspaper reports which appeared in the Times of India, Kolkata edition dated
03.04.2018 and 04.04.2018, the Statesman, Kolkata edition dated 04.04.2018 and the Telegraph e-paper
preview, the learned senior counsels for the petitioner submitted that the petitioner’s candidates who
want to contest election for the panchayat which is to be held in the State of West Bengal are not
allowed to collect the nominations forms and to submit the same on account of violent
resistance being put by the supporters of the ruling party.

This grievance, in the view of the Court, was for the State Election Commission to
consider at the behest of any political party or a candidate who desired to contest the
election.

Liberty was accordingly granted to them to approach the State Election Commissioner who was
directed to ensure the disposal of the grievances in accordance with law, forthwith. This Court
expressed the hope that in order to ensure free and fair elections to the panchayats, the
State Commission shall take appropriate steps to remove the apprehensions of intending
candidates. The petitions were accordingly disposed of.
9 April 2018 –
State Election Commission extended date of filing nomination by one day i..e, till 10 April
2018 for the following reasons: “Whereas, information has been received through complaints,
deputation etc. that intending candidates and proposers are being obstructed or prevented from
making nomination; and Whereas, many intending candidates could not file their
nomination papers due to the above disruption; and Whereas, along with complaints made
by the Political Parties some nomination papers that they allegedly could not submit before the
Panchayat Returning Officers, have been annexed.”

10 April 2018 – State Election Commission immediately recalled the Notification

(As a result, many petitions/applications filed in HC)

21 April 2018 – State Election Commission issued Notification –

Last Date to File Nominations – 23 April 2018
Scrutiny of Nominations – 25 April 2018
Last Date of Withdrawal of Candidature – 28 April 2018
23 April 2018 –
High Court moved by Candidates – Prayed - State Election Commission to ensure the
acceptance of nomination forms.

24 April 2018 - the learned Single Judge declined to interfere with the election process
observing that:
“This Court cannot be further unmindful of the fact that the order of 20th April, 2018 has
been accepted and acted upon. The participation of the major stake holders, including the
INC, as reflected from the documents filed by the Commission in Court today, disclose that
each of their views have been noticed prior to the Commission exercising its prerogative in
consultation with the State Government to re- extend the nomination date.”

26 April 2018 – State Election Commission were announced for 14th May 2018.

1 May 2018 – Fresh Petitions were moved. Single Bench of High Court declined to
issue any further directions having regard to its earlier orders.
The Division Bench, while disposing of the appeal, directed the State Election Commission
to accept nominations in the electronic form of those candidates who had filed and
submitted them electronically to the panchayat returning officers by 3.00pm on 23 April 2018.
The names of such candidates were directed to be published in the list of candidates contesting the
Panchayat elections of 2018.

Contentions of Parties -
State Election Commission –
(i) the directions issued by the High Court, after the last date of
nominations and scrutiny, to accept nominations submitted electronically
is contrary to the clear mandate of Section 46(1) of the Panchayat Elections Act;
(i) though this relief had been specifically sought in proceedings under Article 32 before this Court
in Writ Petition (C) 302 of 2018, it had been declined;
(ii) the directions issued by the High Court are contrary to the mandate of Article 243 K of the
Constitution since the provisions contained in the Panchayat Elections Act constitute a
complete code regarding the filing of nominations;
(iii) the High Court was manifestly in error in holding that the Information Technology
Act 2000 shall be deemed to be a part of the Panchayat Elections Act 2003.
14 On the other hand, it has been urged on behalf of the first respondent that the High
Court had been constrained to issue a direction for the acceptance of nominations in the
electronic form after sufficient material was placed before it indicating that candidates had
been prevented from filing their nominations. It was urged that as a result of the violent
activities of the supporters of the ruling party in the state, a situation had arisen where
it was not possible to file nominations personally and hence the directions which were issued
by the High Court sub-serve the cause of a free and fair election.

Held -
The provisions contained in the Panchayat Elections Act and rules constitute a
complete code in regard to the conduct of the election, including in the matter of
filing of nominations.

Neither the Panchayat Elections Act nor the Rules contemplate the filing of
nominations in the electronic form.
Any reform of the electoral process to permit the filing of nominations electronically
would have to be carried out by a legislative amendment. The High Court ought not to
have issued a mandatory direction of this nature in the face of the specific provisions
contained in the Panchayat Elections Act and Rules.

Moreover, the election process had already been initiated. The last date for the filing of
nominations was over. The directions issued by the High Court are in the teeth of the
settled principle of self-restraint which governs the exercise of the jurisdiction
under Article 226 once the election process commences. Moreover, such a direction would be
contrary to the provisions of Article 243 O of the Constitution. In this view of the matter, we are
of the view that the High Court was in error in issuing directions for the acceptance of
nominations in the electronic form. The judgement of the High Court would accordingly have to
be set aside.

There is merit in the submission that the discipline which is mandated by the provisions
of the Constitution and enforced by the enabling state law on the subject must be
maintained. Any dispute in regard to the validity of the election has to be espoused by
adopting a remedy which is known to law namely through an election petition.
Other Issue was of declaration of Results of Uncontested Seats –
While issuing notice in these proceedings on 10 May 2018, this Court directed that the election
which was scheduled to take place on 14 May 2018 shall proceed in accordance with law and
upon its conclusion, the results would be notified. However, the State Election
Commission was directed not to notify the results in respect of constituencies where
there was no contest, without the leave of the Court.

The data placed on the record indicates that out of a total of 58,692 seats combined for
Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seats have been
uncontested.

Section 64 of the Panchayat Elections Act lays down the procedure to be followed in the case
by contested and uncontested elections. If at any election of a gram panchayat, panchayat
samiti or zilla parishad, the number of contesting candidates is less than the number of seats
to be filled in a constituency, the panchayat returning officer shall forthwith declare all such
candidates to be duly elected.
It has been urged by State Government that -
(i) this Court should not exercise its jurisdiction to interfere with the declaration of
the results of uncontested seats, once the process has been completed;
(ii) under the provisions of Section 7 of the West Bengal Panchayat Act 1973 the term of
the panchayats is only five years after which no extension is permissible;
(iii) if the declaration of results to the uncontested seats are not allowed to be
effected, it would be impossible to constitute the panchayats, resulting in a
failure of allocation of funds for constitutional purposes;
(iv) in the absence of any cogent complaint of obstruction in the filing of nominations a
generalised presumption cannot be made in respect of each one of the nearly 20,000
seats.

It has been submitted that as many as 3,170

panchayats are non-functional as a result of the stay
on the declaration of results.
• Having given our anxious consideration to the rival submissions which have been urged at
the bar, we find that there are several reasons why it would be inappropriate for this
Court to exercise its jurisdiction to interdict the declaration of results of the
uncontested seats.

• First and foremost, it is necessary for the Court to notice that no specific relief was
claimed before the High Court in regard to those seats where there was no contest.

• The second important consideration which must weigh with the Court is that if the
above submission is accepted, election results to over 20,000 seats will be set at
naught in the absence of the affected parties before the Court.

• Thirdly, once the election process has commenced, it is trite law that it should not
be interdicted mid stage.

• The electoral process is afforded sanctity in a democracy.

That is the reason why in a consistent line of precedent, this Court has insisted upon the
discipline of the law being followed so that any challenge to the validity of an election
has to be addressed by adopting the remedy of an election petition provided under the
governing statute.

For this Court to set aside elections to over 20,000 seats would be to prejudge the basic
issue as to whether in each of those constituencies, the election stands vitiated by
obstruction having been caused to candidates from filing their nominations. A general
assumption of this nature cannot be made.

Ultimately whether this is correct would depend upon the evidence adduced in the facts of
individual cases where such a grievance has been made in an election petition. The Court has
been apprised that approximately 1,700 complaints were filed and about 168 election petitions
have been instituted.

We are emphatically of the view that any challenge to the election must take place in a
manner which is known to law.
While we are of the view that the validity of the elections must be tested in election petitions
under Section 79(1), the question as to whether there was a large scale obstruction from filing
nominations is a serious matter which needs to be resolved. This is particularly because even
the Election Commission, as we have seen, had proceeded to take notice of the grim situation
while extending the date for the filing of nominations.

Having regard to the seriousness of the allegations and bearing in mind the fact that
these proceedings were pending, we are of the view that it would be necessary to
exercise the power under Article 142 of the Constitution to extend the period of 30
days for the filing of election petitions in respect of the uncontested seats.
For these reasons, we are of the view that challenges in regard to the validity of the
elections to the uncontested seats in the panchayats, panchayat samitis and zilla parishads
must also be pursued in election petitions under Section 79(1) of the Panchayat Elections
Act. We leave it open to any person aggrieved to raise a dispute in the form of an
election petition in accordance with the provisions contained in the Panchayat
Elections Act.

In exercise of the power conferred by Article 142, we direct that the period of 30
days for filing election petitions in respect of the uncontested seats shall
commence from the date of the publication of the results in the Official Gazette.

32 For the reasons indicated earlier, we allow the appeals and set aside the
impugned judgment and order of the Calcutta High Court directing the
acceptance of nominations in the electronic form. Pending applications, if any, are
also disposed of. There shall be no order as to costs.
 CASE IX
Shailesh Manubhai Parmar v. Election
Commission of India, 2018 (9) SCC 100
Shri C. Sadanandan Sh. Harsh Vardhan Shringla
- BJP Veteran - Ex-Foreign Secretary
- Teacher from Kerala - Former US Ambassador
- Political Violence Survivor 2019-2020
 Shailesh Manubhai Parmar vs Election Commission Of India

AIR 2018 SC 3918

J. D.Y. Chandrachud

J. A.M. Khanwilkar

CJI Dipak Misra

Provision for "None of the above" (NOTA) option on ballot paper for
elections to Rajya Sabha and State Legislative Council
In the instant writ petition preferred under Article 32 of the Constitution of India, the
petitioner who is the Chief Whip of the Indian National Congress party in Gujarat
Legislative Assembly challenges the circular dated 1st August, 2017 issued by the Secretary,
Gujarat Legislature Secretariat, the Respondent No.3 herein, in relation to the conduct of
elections for the Council of States. Though the circular covers various aspects, he has
challenged the availability of the option ―None of the Above‖ (NOTA).

A counter affidavit has been filed by the 1st respondent contending, inter alia, that the
constitutional courts do not interdict in the election process and challenge can only be
made after the election is over by filing an election petition before the appropriate
court; that as per the pronouncement in PUCL‘s case, there is no distinction between direct
and indirect elections and, hence, the provision of NOTA in the ballot paper of the
elections has been made applicable by the Election Commission to Rajya Sabha to
effectuate the right of electors guaranteed to them under Section 79A of the Act; that
though there is no need for secrecy in Rajya Sahba elections because the law makes it open
voting, yet that does not take away the right of the elector not to vote by expressing the option
of NOTA;
Even assuming the position that the judgment in PUCL’s case does not indicate that this
Court ever intended to apply the option of NOTA to Rajya Sabha elections, yet the
Election Commission has issued letter dated 24th January, 2014 and further reiterated by
letter dated 12th November, 2015 that the option of NOTA would be applicable to
elections in Rajya Sabha; and that elections had already been held by applying the said
option and, therefore, there is no justification to challenge the said directions at a
belated stage.

Kuldip Nayar and others v. Union of India (2006 SC)

“The secrecy of ballot is a vital principle for ensuring free and fair
elections. The higher principle, however, is free and fair elections
and purity of elections. If secrecy becomes a source for corruption,
then sunlight and transparency have the capacity to remove it.
We can only say that legislation pursuant to a legislative policy that transparency will
eliminate the evil that has crept in would hopefully serve the larger object
of free and fair elections” -
―441. Voting at elections to the Council of States cannot be compared with a general election. In a
general election, the electors have to vote in a secret manner without fear that their votes would be
disclosed to anyone or would result in victimisation. There is no party affiliation and hence the choice is
entirely with the voter. This is not the case when elections are held to the Council of States as the electors
are elected Members of the Legislative Assemblies who in turn have party affiliations.‖ And again:

-―454. The distinguishing feature between ―constituency-based representation‖

and ―proportional representation‖ in a representative democracy is that in the case of the list
system of proportional representation, members are elected on party lines. They are subject to
party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to
the concept of proportional representation, Parliament can suggest ―open ballot.

In such a case, it cannot be said that “free and fair elections” would stand defeated by “open
ballot”. As stated above, in a constituency-based election it is the people who vote whereas in proportional
representation it is the elector who votes. This distinction is indicated also in the Australian judgment in R.
v. Jones. In constituency-based representation, ―secrecy is the basis whereas in the case of proportional
representation in a representative democracy the basis can be ―open ballot and it would not violate the
concept of ―free and fair elections‖, which concept is one of the pillars of democracy.
19. The aforesaid passages throw immense light on the distinction between direct and
indirect elections and especially on the concept of indirect election which encompasses
proportional representation.

There is voting by open ballot and it has been so introduced to sustain the foundational
values of party discipline and to avoid any kind of cross voting thereby ensuring purity
in the election process.

They have been treated as core values of democracy and fair election. It is worth to note that in
a voting for members of the Council of States, the nature of voting by an elector is a grave
concern. It is because in such an election, there is a party whip and the elector is bound to
obey the command of the party. The party discipline in this kind of election is of
extreme significance, for that is the fulcrum of the existence of political parties.

It is essential in a parliamentary democracy. The thought of cross voting and corruption is

obnoxious in such a voting.
22. It is demonstrable that an elector can be disqualified if he voluntarily gives up his membership of the
political party. It is submitted by Dr. Abhishek Manu Singhvi that an elector belonging to a particular
party may not voluntarily give up the membership but can exercise his choice of NOTA despite
his political party setting up a candidate. According to the learned senior counsel, this creates an
anomalous situation and brings in horse trading, corruption and use of extra constitutional
methods which were sought to be avoided by the introduction of the Tenth Schedule in the
Constitution by the Constitution (Fifty-Second Amendment) Act, 1985. It is necessary to mention here
that the said amendment was introduced to eradicate the evil of political defection. The Statement of
Objects and Reasons to the said amendment provides thus:-

―The evil of political defections has been a matter of national concern. If it is not combated, it is likely
to undermine the very foundations of our democracy and the principles which sustain it. With
this object, an assurance was given in the Address by the President to Parliament that the
Government intended to introduce in the current session of Parliament an anti-defection Bill.
This Bill is meant for outlawing defection and fulfilling the above assurance.

On a keen scrutiny of the Statement of Objects and Reasons and the concept of
disqualification to rule out defection, it is clear that the same is indirectly defeated by the
introduction of NOTA.
• When one analyses the exercise of choice of NOTA in the voting process of the Council of
States where open ballot is permissible and secrecy of voting has no room and further where the
discipline of the political party/parties matters, it is clear that such choice will have a negative
impact.

• An elector, though a single voter, has a quantified value of his vote and the surplus votes are
transferable. There is existence of a formula for determining the value of the vote. The concept
of vote being transferable has a different connotation. It further needs to be stated that a
candidate after being elected becomes a representative of the State and does not represent a
particular constituency.

• The cumulative effect of all these aspects clearly conveys that the introduction of NOTA to
the election process for electing members of the Council of States will be an anathema
to the fundamental criterion of democracy which is a basic feature of the Constitution.

• It can be stated without any fear of contradiction that the provisions for introduction of
NOTA as conceived by the Election Commission, the first respondent herein, on the
basis of the PUCL judgment is absolutely erroneous, for the said judgment does not say so.
We are disposed to think that the decision could not have also said so having regard to the
constitutional provisions contained in Article 80 and the stipulations provided under the Tenth
Schedule to the Constitution.

The introduction of NOTA in such an election will not only run counter to the discipline
that is expected from an elector under the Tenth Schedule to the Constitution but also be
counterproductive to the basic grammar of the law of disqualification of a member on the
ground of defection.

It is a well settled principle that what cannot be done directly, cannot be done indirectly.

To elaborate, if NOTA is allowed in the election of the members

to the Council of States, the prohibited aspect of defection
would indirectly usher in with immense vigour.
Interpreting the said Article, the Constitution Bench in Kuldip Nayar (supra) held:-

―427. In this context, we would say that where the law on the subject is silent, Article 324 is a
reservoir of power for the Election Commission to act for the avowed purpose of pursuing the
goal of a free and fair election, and in this view it also assumes the role of an adviser. But the
power to make law under Article 327 vests in Parliament, which is supreme and so, not bound
by such advice. We would reject the argument by referring to what this Court has already said in
Mohinder Singh Gill (1978) 1 SCC 405 and what bears reiteration here is that the limitations on the
exercise of ―plenary character of the Election Commission include one to the effect that ―when
Parliament or any State Legislature has made valid law relating to or in connection with
elections, the Commission, shall act in conformity with, not in violation of, such provisions.

From the aforesaid passage, it is quite clear that the Election Commission has to act within the
four corners of law made by the Parliament.

That apart, if any direction is issued by this Court interpreting a provision for furtherance of
purity of election, it will be obligatory on the part of the Commission to act in accordance
with the same. The Commission cannot be allowed to conceive of certain concepts or ideas or, for
that matter, think of a different dimension which would not fit into the legal framework.
• It can be said without a speck of doubt that the decision taken by the Election Commission as
regards the introduction of NOTA in the election of the members to the Council of States also
runs counter to what has been stated hereinabove.

• NOTA will destroy the concept of value of a vote and representation and encourage
defection that shall open the doors for corruption which is a malignant disorder.

• It has to be remembered that democracy garners its strength from the citizenry trust which is
sustained only on the foundational pillars of purity, integrity, probity and rectitude and such
stronghold can be maintained only by ensuring that the process of elections remains unsullied and
unpolluted so that the citadel of democracy stands tall as an impregnable bulwark against
unscrupulous forces.

• The introduction of NOTA in indirect elections may on a first

glance tempt the intellect but on a keen scrutiny, it falls to the ground,
for it completely ignores the role of an elector in such an election
and fully destroys the democratic value.
• It may be stated with profit that the idea may look attractive but its practical
application defeats the fairness ingrained in an indirect election. More so where the
elector’s vote has value and the value of the vote is transferrable.

• It is an abstraction which does not withstand the scrutiny of, to borrow an expression
from Krishna Iyer, J., the ―cosmos of concreteness.

• We may immediately add that the option of NOTA may serve as an elixir in direct
elections but in respect of the election to the Council of States which is a different
one as discussed above, it would not only undermine the purity of democracy but
also serve the Satan of defection and corruption.

• 28. In view of the aforesaid analysis, the writ petition is allowed and the circulars issued by
the Election Commission, the first respondent herein, introducing NOTA in respect of
elections to the Council of States are hereby quashed. There shall be no order as to
costs.
 CASE X
N Chandrababu Naidu v. Union of
India, Writ Petition (C) No. 273/2019
N CHANDRABABU NAIDU V UNION OF INDIA
(2019 SC)
• VVPAT is an independent vote verification system, which allows a voter to see
whether their vote was cast correctly. VVPAT generates a paper slip that the
voter can view — the paper slip is kept in a sealed cover, which can be opened in
case a dispute arises.

• As per Guideline 16.6 in the Manual on Electronic Voting Machine and

VVPAT, only 1 randomly selected polling station in each Assembly
Segment/Constituency will undergo verification of VVPAT slips.

• Petitioners: Direct the EC to verify 50% of VVPAT

slips in each Assembly Segment/Constituency.

• Affidavit by EC - if 50% VVPAT slips were double-

counted, this would delay the announcement of results
by at least 6 days.
Supreme Court:
“If the number of machines which are subjected to verification of paper trail can be increased to a
reasonable number, it would lead to greater satisfaction amongst not only the political parties but the
entire electorate of the Country. This is what the Court should endeavour and the exercise, therefore,
should be to find a viable number of machines that should be subjected to the verification of VVPAT
paper trails keeping in mind the infrastructure and the manpower difficulties pointed out by the
Deputy Election Commissioner. In this regard, the proximity to the Election schedule announced by
the ECI must be kept in mind.
10. Having considered the matter, we are of the view that if the number of EVMs in respect of which
VVPAT paper slips is to be subjected to physical scrutiny is increased from 1 to 5, the additional
manpower that would be required would not be difficult for the ECI to provide nor would the
declaration of the result be substantially delayed. In fact, if the said number is increased to 5, the
process of verification can be done by the same team of Polling Staff and supervisors/officials. It is,
therefore, our considered view that having regard to the totality of the facts of the case and need to
generate the greatest degree of satisfaction in all with regard to the full accuracy of the election
results, the number of EVMs that would now be subjected to verification so far as VVPAT paper trail
is concerned would be 5 per Assembly Constituency or Assembly Segments in a Parliamentary
Constituency instead of what is provided by Guideline No. 16.6, namely, one machine per Assembly
Constituency or Assembly Segment in a Parliamentary Constituency.”
 CASE XI
Anoop Baranwal v. Union of India,
decided on 2nd March 2023
 ANOOP BARANWAL V. UNION OF INDIA (2023 SC)

Bench:
Justice K.M. Joseph,
Justice Ajay Rastogi,
Justice Aniruddha Bose,
Justice Hrishikesh Roy,
Justice C.T. Ravikumar

Appointment of Chief Election Commissioner and Election

Commissioners in India
Primary Issue before the Court:

• The system for appointment of members of ECI was challenged on the

ground that the existing practice of appointment is incompatible with
Article 324(2) and manifestly arbitrary. Hence, an independent Election
Commission was sought for a functioning democracy as it ensures Rule of
Law and free and fair elections.
• It was argued that there is a lacuna in the matter of appointment under
Article 324 of the Constitution as out of the twelve categories of
unelected Constitutional Authorities, it is only the Election
Commission and the National Commission for Scheduled Castes,
where qualifications and eligibility are not laid down in the
Constitution or the Statute.
It was prayed that:
1. A Committee of five, comprising the Prime Minister, the leader of the Opposition or of the
single largest party in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha
and an eminent jurist selected by the first four to recommend suitable candidates, is to be
appointed for appointment to the Election Commission.
2. Qualifications be declared, which include citizenship of India, and that a person should have
completed between 45 years and 61 years and the person should have impeccable integrity and
high moral character.
3. The individual must have never had affiliation either directly or indirectly to any political
party.
4. The person appointed must have been a Member of the IAS or the IPS or a Judge of the
High Court.
5. The Election Commissioners must be irremovable except after following the procedure
in the first proviso.
6. An independent Secretariat must be established.
7. The expenditure of the Election Commission should be brought on par with those of
the Supreme Court, the CAG and the UPSC. The expenditure must be made non-votable
expenditure charged on the Consolidated Fund of India.
• Election Commission of India has been charged with the duty and blessed with
extraordinary powers to hold elections to both Parliament and state legislatures from
time to time. This is an enormous task. The power it possesses under Article 324 is
plenary. It is only subject to any law which may be made by Parliament or by the State
Legislature.

• Undoubtedly, the Election Commission is duty bound to act in a fair and legal
manner. It must observe the provisions of the Constitution and abide by the directions of
the Court. The same being done, it can draw upon a nearly infinite reservoir of power.
Once the poll is notified, [which again is a call to be taken by the Election Commission
itself, and indeed capable of being misused and the subject of considerable
controversy, if bias or subservience to the powers that be, is betrayed], it assumes
unusual powers.

• Once the election results are out, the matter is largely reduced to a fait accompli.
• The relief vouchsafed in an election petition may not by itself provide a just solution
to the conduct of election in an illegal, mala fide or unfair manner.
• The purpose of achieving power is to run the Government.
• No doubt, the Government must be run in accordance with the dictate of the Constitution
and the laws.
• Political parties not unnaturally come out with manifestos containing a charter of
promises they intend to keep. Without attaining power, men organised as political
parties cannot achieve their goals.
• Power becomes, therefore, a means to an end.
• The goal can only be to govern so that the lofty aims enshrined in the directive principles
are achieved while observing the fundamental rights as also the mandate of all the laws.
What is contemplated is a lawful Government. So far so good.
• What, however, is disturbing and forms as we understand the substratum
of the complaints of the petitioner is the pollution of the stream or the
sullying of the electoral process which precedes the gaining of power.
• Can ends justify the means?
• In the wide spectrum of powers, if the Election Commission exercises them
unfairly or illegally as much as he refuses to exercise power when such exercise
becomes a duty it has a telling and chilling effect on the fortunes of the
political parties.

• Inequality in the matter of treatment of political parties who are otherwise

similarly circumstanced unquestionably breaches the mandate of Article 14.

• Political parties must be viewed as organisations representing the hopes and

aspirations of its constituents, who are citizens. The electorate are ordinarily,
supporters or adherents of one or the other political parties.

• “Therefore, any action or omission by the Election Commission in holding the

poll which treats political parties with an uneven hand, and what is more, in an
unfair or arbitrary manner would be anathema to the mandate of Article 14,
and therefore, cause its breach.”
• An Election Commissioner is answerable to the Nation.
• The people of the country look forward to him so that democracy is always preserved and fostered.
• We may qualify the above observations by stating that true independence of a Body of persons is not
to be confused with sheer unilateralism. This means that the Election Commission must act within
the Constitutional framework and the laws. It cannot transgress the mandate of either and still claim
to be independent.
• Riding on the horse of independence, it cannot act in an unfair manner either. Independence
must be related, finally, to the question of ‘what is right and what is wrong’.
• A person, who is weak kneed before the powers that be, cannot be appointed as an Election
Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed
him, fails the nation and can have no place in the conduct of elections, forming the very foundation
of the democracy. An independent person cannot be biased.
• “Holding the scales evenly, even in the stormiest of times, not being servile to the powerful,
but coming to the rescue of the weak and the wronged, who are otherwise in the right, would
qualify as true independence.”
• Upholding the constitutional values, which are, in fact, a part of the Basic Structure, and
which includes, democracy, the Rule of Law, the Right to Equality, secularism and the purity
of elections otherwise, would, indeed, proclaim the presence of
independence. Independence must embrace the ability to be firm, even as against the
highest. Not unnaturally, uncompromising fearlessness will mark an independent
person from those who put all they hold dear before their Karma.

• It is important that the appointment must not be overshadowed by even a

perception, that a ‘yes man’ will decide the fate of democracy
and all that it promises.

• Certainty, the darkest apprehensions of the founding fathers as buttressed

by the reports and other materials, unerringly point to the imperative need to act.
 “The electoral scene in the country is not what it was in the years immediately
following the country becoming a Republic. Criminalisation of politics, with all
its attendant evils, has become a nightmarish reality.

The faith of the electorate in the very process, which underlies democracy itself,
stands shaken.

The impact of ‘big money’ and its power to influence elections, the influence of
certain sections of media, makes it also absolutely imperative
that the appointment of the Election Commission, which has
been declared by this Court to be the guardian of the
citizenry and its Fundamental Rights, becomes a matter,
which cannot be postponed further.”
• Article 324(2), does not provide for consultation with any one and it appears to place
the power to make appointments, exclusively with the Executive as the President is
bound by the advice of the Prime Minister. However, it is precisely to guard against
the abuse by the exclusive power being vested with the Executive that instead of a
consultative process being provided, Parliament was to make a law.

• Supreme Court: “The Founding Fathers clearly contemplated a law by Parliament

and did not intend the executive exclusively calling the shots in the matter of
appointments to the Election Commission. Seven decades have passed by. Political
dispensations of varying hues, which have held the reigns of power have not
unnaturally introduced a law. A law could, not be one to perpetuate what is already
permitted namely appointment at the absolute and sole discretion of the Executive.”

• “A pliable Election Commission, an unfair and biased overseer of the foundational

exercise of adult franchise, which lies at the heart of democracy, who obliges the
powers that be, perhaps offers the surest gateway to acquisition and retention of
power.”
• The Court, hence, observed that the absence of such a law does create a void or
vacuum. This is despite a chorus of voices even cutting across the political divide
urging divesting of the exclusive power of appointment from the Executive.

• Concerned with the devastating effect of continuing to leave appointments in sole hands
of the Executive on fundamental values, as also the Fundamental Rights, the Court
observed that the time is ripe for the Court to lay down norms.

• “Criminalisation of politics, a huge surge in the influence of money power, the role of
certain sections of the media where they appear to have forgotten their invaluable role
and have turned unashamedly partisan, call for the unavoidable and unpostponable filling
up of the vacuum. Even as it is said that justice must not only be done but seen to be
done, the outpouring of demands for an impartial mode of appointment of the
Members require, at the least, the banishing of the impression, that the Election
Commission is appointed by less than fair means.”.
Speaking for Justice Aniruddha Bose, Justice Hrishikesh Roy, Justice C.T. Ravikumar,
Justice KM Joseph held that,

“I. We declare that as far as appointment to the posts of Chief Election

Commissioner and the Election Commissioners are concerned, the same shall be
done by the President of India on the basis of the advice tendered by a
Committee consisting of the Prime Minister of India, the Leader of the
Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of
the largest Party in the Opposition in the Lok Sabha having the largest numerical
strength, and the Chief Justice of India.
This norm will continue to hold good till a law is made by the Parliament.”
On same protection to Election Commissioners as given to Chief Election Commissioner:

• The Court rejected this proposal after observing that if the Election Commissioner is accorded
the protection available to the Chief Election Commissioner, he would be entitled to not only
claim immunity from removal except on being impeached like a Judge of the Supreme
Court but he would be conferred with a further protection even after the impeachment or
before the impeachment starts, that the Chief Election Commissioner must also recommend the
removal.

• Justice Rastogi, in his concurring opinion, stressed that in order to allow independence in the
functioning of the Election Commission as a Constitutional body, the office of Chief Election
Commissioners as well as the Election Commissioners have to be insulated from the executive
interference.

• Hence, keeping in view the importance of maintaining the neutrality and independence of the office
of the Election Commission to hold free and fair election which is a sine qua non for upholding the
democracy as enshrined in our Constitution, Justice Rastogi observed that it was imperative to
extend the protection available to the Chief Election Commissioner under the first proviso to
Article 324(5) to other Election Commissioners as well until any law is being framed by the
Parliament.
On independent Secretariat/Charging Expenditure on the Consolidated Fund of India
Noticing that the Election Commission of India is to perform the arduous and unenviable task
of remaining aloof from all forms of subjugation by and interference from the Executive, the
Court observed,
“One of the ways, in which, the Executive can bring an otherwise independent Body to
its knees, is by starving it off or cutting off the requisite financial wherewithal and
resources required for its efficient and independent functioning. It would not be
unnatural if faced with the prospect of it not being supplied enough funds and facilities,
a vulnerable Commission may cave in to the pressure from the Executive and, thus, it
would result in an insidious but veritable conquest of an otherwise defiant and
independent Commission.”
However, noting that it is a matter of policy, the Court refrained from passing any
direction and made an appeal that there is an urgent need to provide for a permanent
Secretariat and also to provide that the expenditure be charged on the Consolidated
Fund of India and it is for the Union of India to seriously consider bringing in the much-
needed changes.
1. Appointment Committee Recommendation – Accepted
2. Same protection to Election Commissioners from removal as CEC- Not Accepted
3. Independent Secretariat/Charging Expenditure on the Consolidated Fund of India - Not Accepted
 CASE XII
T.N. Seshan v. Union of India,
(1995) 4 SCC 611
• Initially, only one Election Commissioner i.e., Chief Election Commissioner.

• In October 1993, President promulgated an ordinance under Article 123 of the

Constitution of India, titled “The Chief Election Commissioner and other
Election Commissioners (Condition of Service) Amendment Ordinance,
1993”.

• This ordinance amended “The Chief Election Commissioner and other

Commissioners (Condition of Service) Act, 1991”, and was published in the Gazette
of India on October 1, 1993.

• The ordinance made several amendments to the 1991 Act, including changes to the
conditions of service of the CEC and Election Commissioners (ECs), the
procedure for transaction of business by the Election Commission, and the
tenure of office of the CEC and ECs. It also introduced a new chapter on the
transaction of business of the Election Commission.
The ordinance fixed the number of ECs at two and appointed Mr. M.S. Gill and Mr. G.V.G.
Krishnamurthy as the two EC’s.

The then CEC, T.N. Seshan accused the govt. of taking such an action to prevent him
from taking any action against alleged violation of code of conduct by the ruling
party and also curb his powers. Thus, he (along with few other petitioners) moved the
Supreme Court by way of a writ petition.

The two issues that were to be decided by the

court were:-
1.)Whether the appointment of the other
election commissioners was intra-vires
the constitution of India?
2.) Constitutional validity of the
Ordinance and therefore the Act, and
the orders thereto?
• The petitioners contented that Centre’s intention behind issuance of the notifications and
appointments was mala fide and the Ordinance was only issued with the purpose of side-lining CEC
and eroding his authority.

• They also argued that Section 9 and 10 of the Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) Act, 1991 are ultra vires the
constitution and inconsistent with Article 324 of the Indian Constitution as the said Article did not
give any power to Parliament to frame rules for transaction of business of the EC and also does not
lay down any procedures/rules for the functioning of a multi-member Commission.

• Section 9 of the said act deals with the transaction of business of

EC and Section 10 deals with the disposal of business by EC.
Section 10 was also challenged on the ground that it is arbitrary,
unworkable and violative of Article 14 of the Indian Constitution.

• The final argument made by the petitioners was

that the role of the additional Commissioners is only to
tender advice to the CEC.
The respondents denied the allegations of there being any connections between the discomfiture
of the then ruling party at Centre and conversion of Election Commission into a multi-member
body.
It argued that the concerned Ordinance was framed in accordance with the observations in S.S.
Dhanoa v. Union of India as per which vast discretionary powers, with virtually no checks
and balances, should not be left in the hands of a single individual.
It was contended that the plain language of Article 324(2) envisages a multi-member
Commission and any act undertaken to achieve this object cannot be termed as ultra vires or
mala fide.
It was also contended that the said provision is neither arbitrary nor violative of Article 14 as
in case of a difference of opinion, the majority view shall prevail which exhibits
democratic principles.
It was also contended that Section 9 and Section 10 are intra vires the Constitution and no
mala fides can be attributed to the exercise of President’s legislative power under Article
123 of the Indian constitution.
Held –
1. There is no doubt that that two heads are better than one, particularly when an
institution like the EC is entrusted with vital functions.

2. The Act treating CEC at par with ECs is not unconstitutional and said that
Article 324(1) entrusts the task of conducting all elections in the country to a
commission and not to an individual.

3. It further stated that nobody can be above the institution which he is supposed
to serve and is merely the creature of this Institution.

4. Answering to petitioners’ contention that Art. 324 does not lay down any
procedures/rules for the functioning of a multi-member Commission, court,
referred to Halsbury’s Laws of England and observed that the principle of
majority is the default form of decision-making in a multi-member body, and
can validly fill the procedural void left by Art. 324.
5. A.M. Ahmadi, the then CJI, said that that idea of considering the additional
Commissioners as advisors to the CEC runs against the grain of Article 324
and would render them mere “ornamental” functionaries.

6. The Court also held that no mala fide intention can be attributed to the
President or the Council of Ministers for expanding the size of the
Commission as this reform had been in the works for a long time.

7. In the result, we uphold the impugned Ordinance (now Act 4 of 1994) in its
entirety. We also uphold the two impugned notifications dated 1st October,
1993.
 SELF-STUDY

1. Public Interest Foundation vs Union of India, 2013 (15) SCALE 482

2. Rajbala & Ors vs State Of Haryana 2016 (2) SCC 445
3. Abhiram Singh vs C.D. Commachen (Dead) by LRS & Ors 2017 (2) SCC 629
4. Lok Prahari v. Union of India, Writ Petition 784/2015 (2018 SC)
THANK YOU!