Representation of People's Act

Indian Polity Elections

Why RPA? India like any other democracy has been established as a sovereign democratic Republic wherein, the supreme power rests with the people of the country who in the exercise of the same, elect their representatives to get themselves represented in the union and state legislatures. Therefore, to achieve the best of the democratic traditions, the Constitution of India prescribes the system of universal adult franchise within the body of the Constitution itself. But other than prescribing this, the Constitution of India does not prescribe what number of seats shall be allocated to the states and Union territories so as to fill the union legislature particularly, the popular house and similarly, what number of seats that a state legislature could have insofar as its population is concerned. Therefore, the Constitution makers left this matter other than fixing the maximum limit of membership that a house of the Union legislature or for that matter, the house or houses of the state legislature might have, entirely to the union Parliament to determine the same through a law from time to time keeping in view the demographic growth that happens in each of the units of the country. This is why, Article 80 of the Constitution merely prescribes that there shall be 250 seats in the upper House of the Union legislature of which 238 shall be filled through an indirect election by proportional representation from the concerned state Assemblies and not more than 12 members shall be nominated by the Union Executive from amongst persons with specific backgrounds. In the same vein, Article 81 of the Constitution, fixes 552 as the maximum strength of the Lower house of the Union legislature with specific demarcation of seats between the states and the UT’s including two being nominated from the Anglo-Indian community.

Other than the above demarcation of seats and the maximum number thereof, the Constitution nowhere specifies how many seats of this number shall be apportioned among the states or union territories in the Union legislature or what will be the strength of the respective state legislatures obviously because, it cannot be uniform with respect to all the states. Nor is it possible to determine this number a –priori as the population is not a static factor.

At the same time, the Constitution of India as originally enacted also did not prescribe any detailed set of qualifications and disqualifications other than prescribing for just the bare minimum of these and thus, again left the matter to be determined by a law made by the Union parliament in this regard as may be seen from the terms of Article 84 which provides for few qualifications for being member of either of the union or state legislature such as the concerned person should be a citizen of India, should have completed 25 years of age for becoming a member of Lok Sabha and 30 years for being a member of Rajya Sabha. Similarly, Article 102 of the Constitution prescribes only few of such disqualifications that render a person ineligible for being a member of either union or the state legislature such as he should not be of unsound mind or a declared insolvent etc. Therefore, in this regard also, the Constitution leaves the matter to be settled by a law made by the Union legislature again on the similar consideration that such a matter can also not be possible to be determined a –priori as what amounts to a qualification or disqualification depends upon the exigencies of the time just like a population factor.

Therefore, to fill in the gaps left in the Constitution concerning such matters, the Union Parliament enacted the following two Acts just at the commencement of the Constitution (amended from time to time) called as:

Representation of Peoples Act-1950 andRepresentation of peoples Act-1951 respectively….

Herein below, we shall discuss the salient features of each of the above two Acts:

Schedule-1 of the RPA-1950 deals with the allocation of seats to the states and UT’s in the Lok Sabha including the number of the reserved seats from such a state/UT for SC/ST’s.

Schedule-2 of the RPA deals with the allocation of seats in the legislative Assembly of the concerned state/UT.

Schedule-3 of the RPA similarly allocates the seats in the Legislative Council of the concerned state in which it exists.

These schedules are appended to the RPA-1950 which was enacted on May 12, 1950 which in brief provides for the following matters:

Allocation of seats to the states and UT’s in the Lok Sabha and delimitation of constituencies in the respective state/UT’s, so called under the Act as parliamentary constituencies for the said purpose of allocation of seats. The provisions regarding a delimitation commission and its constitution after every census has been stated in Article-82 of the Constitution under whose mandate, the Union parliament constituted such a commission from time to time, first time in the year 1952, followed by in the year 1962 and then 1972 that regulate the current status of delimited parliamentary constituencies in the states. However, the 84^th and 87^th Constitutional amendments though, have imposed a freeze on any increase in the number of seats from the respective state/UT until the year 2026 yet, it has permitted to re-distribute the territorial constituencies in the states to bring in an element of rationality in the number of territorial constituencies on the basis of increased population since the 1971 census.

Allocation of seats and delimitation of constituencies so called as Assembly constituencies for the purposes of election to the state assemblies and councils in the state or UT’s.

The qualification of voters at such elections including the preparation of electoral rolls for the purposes of such elections. Section 16 of the RPA-1950 prescribes for such qualifications of the voters which are to be the same for both parliamentary and Assembly elections. In the absence of such qualifications, a voter may neither be registered in the electoral roll nor eligible to exercise his franchise. In brief, such qualifications are:

He should be a citizen of India;

He should be of sound mind;

He should not have been disqualified from voting under the provisions of any law relating either to corrupt practices at the elections or have been disqualified as such for committing any election related offences.

Section 17 and 18 of the RPA-1950 provides that no person shall be registered in more than one constituency and not more than once in a single constituency.

Section 19 prescribes some conditions for the purposes of registration in the electoral roll of a particular constituency and accordingly, provides for the following conditions:

He should have completed the age of 18 years on the qualifying date of the year in which electoral roll is prepared or revised. For the purposes of the Act, the qualifying date is Ist of January of the particular year.

He must be ordinarily resident in the particular constituency in which he has been registered as an elector. Here the expression ‘ordinary resident’ does not imply that he should have been resident at such a place all the time. Therefore, if a person who temporarily absents himself for whatever reasons from that place where he is registered shall not cease to be an ordinary resident of such a place. But under the Act, to be an ordinary resident certainly does not mean only that he has set up a dwelling unit or owns a house at such a place…

THE REPRESENTATION OF THE PEOPLE ACT, 1951

This Act was enacted by the Union legislature on July 17, 1951 and essentially provides for the following matters:

The conduct of elections of the Houses of Parliament and to the House or

Houses of the Legislature of each State;

The qualifications other than those that are prescribed under Article-82 for being a member of either house of the union legislature or of the state legislature;

The disqualifications other than those prescribed under Article 102 of the Constitution for becoming a member of either house of the union legislature or that of the state legislature and

The corrupt practices and other offences at or in connection with such elections including the decision of doubts and disputes arising out of or in connection with such elections.

Qualifications for Membership of Parliament:

A) Qualification for membership of the Council of States: - A person shall not be qualified to be chosen as a representative of any State or Union territory in the Council of States unless; he is an elector for any Parliamentary constituency in India. This provision was made by an amendment to the existing provision in the Act in the year 2003 such that today any qualified person can become a member of the upper house no matter, in whichever parliamentary constituency he or she has been registered as an elector.

B) Qualifications for membership of the House of the People: - A person shall not be qualified to be chosen to fill a seat in the House of the People, unless;

(a) In the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency;

(b) In the case of a seat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), he is a member of any of the Scheduled Tribes, whether of that State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency;

(c) In the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district;

(d) In the case of the seat reserved for the Scheduled Tribes in the Union territory of [Lakshadweep], he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency of that Union territory;]

(e) In the case of the seat allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkim;] and

(f) In the case of any other seat, he is an elector for any Parliamentary constituency in the country.

Qualifications for Membership of State Legislatures:

A) Qualifications for membership of a Legislative Assembly: - A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless:

(a) In the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly constituency in that State;

(b) In the case of a seat reserved for an autonomous district of Assam, he is a member of a [Scheduled Tribe of any autonomous district] and is an elector for the Assembly constituency in which such seat or any other seat is reserved for that district; and

(c) In the case of any other seat, he is an elector for any Assembly constituency in that State: [Provided that for the period referred to in clause (2) of article 371A, a person shall not be qualified to be chosen to fill any seat allocated to the Tuensang district in the Legislative Assembly of Nagaland unless he is a member of the regional council referred to in that article.]

Qualifications for membership of Legislative Assembly of Sikkim: – A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution) unless –

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;

(b) In the case of a seat reserved for Sikkimese of Nepal origin, he is a person of Nepali origin and is an elector of any Assembly constituency in the State;

(c) In the case of a seat reserved for Scheduled Castes, he is a member of any of the castes specified in the representation of Sikkim Subjects Act, 1974 and is an elector for any Assembly constituency in the State; and

(d) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency.]

Qualification for membership of a Legislative Council in the states:

A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to be filled by election unless; he is an elector for any Assembly constituency in the State. Similarly,

A person shall not be qualified to be chosen to fill a seat in the Legislative

Council of a State to be filled by nomination by the Governor unless he is

Ordinarily resident in the State.

Disqualifications for membership of Parliament and StateLegislatures:

After prescribing for the requisite qualifications for being a member of either

House of the Parliament or of the state legislature as mentioned above, this is

The second most important aspect that is being dealt with by the Representationof people Act-1951. As we have noted at the outset that so far as Article 102 of the Constitution is concerned; it deals with just a few of the disqualifications forthe purpose of being a member of the Parliament and leaves the matter to theParliament to determine what other disqualifications that may be imposed on aPerson for becoming a member of the Parliament or of the state Legislature assuch. In pursuance of which the RPA-1951 as enacted by the Parliament, prescribes some of the following more disqualifications. These disqualifications for the sake of convenience may be classified broadly under some of the following heads viz:

Disqualification arising out of conviction for certain offences under the IPC. These are mentioned in section-8 (1) of the RPA-1951;

Disqualification arising out of conviction for various offences under the various Laws or Acts of the Parliament- section-8 (1);

Disqualifications under the various sections of Representation of people Act i.e. for being a guilty under various election related offences as described in the RPA-1951 vide sections, 125, 135, 135-A, 136 and so on;

Disqualification for being convicted under some specific Acts such as food adulteration Act or Dowry prohibition Act etc- section 8 (2) and

Disqualification on being convicted for any other offence other than those mentioned above and on being so convicted, has been sentenced to 2 years or more of imprisonment- section 8 (3). Let’s discuss about these disqualifications in some more detail…

Disqualification on conviction for certain offences under the Indian penal

Code: Section 8 (1) of the RPA deals with such disqualifications and provides as follows with regard to the same:

A person convicted of an offence under –

(a) Section 153A of IPC (offence of promoting enmity between different groups on ground of religion, race, place of residence, language, etc., and doing acts prejudicial to maintenance of harmony) or

Section 171E of IPC (offence of bribery) or

Section 171F (offence of undue influence or personation at an election) or Section 376 or section 376A or section 376B or section 376C or section 376D of IPC (offences relating to rape) or

Section 498A (offence of cruelty towards a woman by husband or relative of a husband) or

Section 505 (offence of making statement creating or promoting enmity, hatred or ill will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of a religious worship or religious ceremonies).

Disqualification under various Laws or Acts of the Parliament

Any person, who is convicted for offences under the following Acts of the parliament, shall be disqualified to be chosen as a member of the legislature, such as:

(b) Under the Protection of Civil Rights Act of 1955 which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising there from; or

(d) Under Sections 10 to 12 of the unlawful Activities(prevention) Act of 1967 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place); or

(e) Under the Foreign Exchange (Regulation) Act of 1973 (FERA); or

(f) Under the Narcotic Drugs and Psychotropic Substances Act of 1985; or

(g) Under section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act of 1987; or

(h) Under section 7 (offence of contravention of the provisions of the Religious Institutions Prevention of Misuse) Act, of 1988…

Disqualification for being convicted under various sections of the RPA-1951, such as:

(i) Under Section 125 (offence of promoting enmity between classes in connection with the election) or

Under section 135 (offence of removal of ballot papers from polling stations) or

Under section 135A (offence of booth capturing) or

Under section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) etc.

Noted that in the year 2003 by way of an amendment to the RPA-1951, some more additional disqualifications were prescribed and added to the existing list of disqualifications, if the person has been convicted under the following:

(j) Section 6 of the misuse of the places of worship (special provisions) Act of 1991 (offence of conversion of a place of worship) or

(k) Section 2 of the prevention of Insults to national honour Act of 1971 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 of the same Act (offence of preventing singing of National Anthem) or under

(l) The Commission of Sati (Prevention) Act, 1987 or under

(m) The Prevention of Corruption Act, 1988 or under

(n) The Prevention of Terrorism Act, 2002 etc…

Noted further that if a person has been convicted under any of the above mentioned offences, he shall deemed to be disqualified for being chosen as a member of either the parliament or of the state legislature as such and shall remain disqualified for such a period as is being mentioned below:

If the said convicted person has been sentenced with:

(i) Only fine, for a period of six years from the date of such conviction;

(ii) Imprisonment, from the date of such conviction and shall continue to be disqualified for a further period six years since the date of his release. Noted further that such a convicted person shall also remain disqualified for voting at any election for the same period of 6 years…

Disqualification for being convicted under some specific offences:

Section 8(2) of RPA describes about such disqualifications of a person who has been convicted for the contravention of the following:

(a) Any law providing for the prevention of hoarding or profiteering;

(b) Any law relating to the adulteration of food or drugs; or

Such a person shall also remain disqualified for a period of 6 years from the date of his conviction, if only fined and for a further period of 6 years from the date of his release.

Disqualification for being convicted under any other offences other than those mentioned above: Section 8 (3) of the RPA mentions about such a disqualification and provides as follows:

A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) of section 8), shall be disqualified from the date of such conviction and shall continue to be so disqualified for a further period of six years since his release.

Finally, section 8 (4) of the RPA provides about the following:

Notwithstanding anything [in sub-section (1), sub-section (2) or sub-section (3)] of section 8, a disqualification under either subsection shall not be incurred by a person in case, he on the date of his conviction, is a member of Parliament or the Legislature of a State. Similarly, the section further stipulates that such a disqualification shall not take effect until three months have elapsed from that date or, if within that period, an appeal or application for revision of his order of conviction has been brought by him before a court of law and until that appeal or application for revision is disposed of by the concerned court.

Note: This Section of RPA – 1951 (i.e. Section 8(4) has been declared unconstitutional by the S.C in its recent judgment of July 18, ‘2013’. It held that the disqualification will commence immediately after one is declared convicted by the court no matter, he has later appealed against such an order of conviction…

Additional disqualifications under the Act

Disqualification for dismissal for corruption or disloyalty: Section 9 of the RPA provides for such a disqualification and states that:

A person who having held an office under the Government of India or under the

Government of any State has been dismissed for corruption or for disloyalty to the State, shall be disqualified for a period five years from the date of such dismissal.

Noted that for the purposes of such disqualification, a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of the fact: Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty the State be issued unless, an opportunity of being heard has been given to the said person. Disqualification for Government contracts etc: Section 9-A of the Act states that:

A person shall be disqualified if, and for so long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.

(Note): For the purposes of this section, where a contract has been fully performed by the person whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact the Government has not performed its part of the contract either wholly or in part.

Disqualification for holding an office under Government Company:

Section 10 of the RPA provides for such a disqualification and states that:

A person shall be disqualified if, and for long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in the capital which, the appropriate Government (central or state government), has not less than 25% share.

Disqualification for failure to lodge account of election expenses: Section 10-A of the Act provides for a disqualification in this regard and states that:

If the Election Commission is satisfied that a person:

(a) Has failed to lodge an account of election expenses within the time and in the manner required by or under this Act.

(b) Has no good reason or justification for such a failure on his part, the Election Commission shall, by an order published in the Official Gazette, declare him to be disqualified.

Any such shall be disqualified for a period of three years from the date of such an order.

Representation of people act-1951: imposes a bar on multiple elections:This is another salient feature of the RPA-1951 which imposes a bar on a person to occupy a seat in the capacity of double membership, if has either been elected to two seats in a House or been elected to another House while being a sitting member of one of the houses. Similarly, it also imposes a bar on double membership, if he has been elected to a House of the state legislature as well as to either House of the Parliament. In any case, under the Act, the said elected person has to exercise his option within the prescribed period of time to occupy his only one seat in a particular House. The Act provides for the following provisions in cases of double membership:

Vacation of seats when elected to both Houses of Parliament:

Any person who is chosen a member of both the Houses of the people and the Council of States and who has not taken his seat in either House may, by notice in writing signed by him and delivered to the Secretary to the Election Commission [within ten days from the date, or the later of the dates, on which he is so chosen, intimate] in which of the Houses he wishes to serve, and thereupon, his seat in the House in which he does not wish to serve shall become vacant.

In default of such intimation within the aforesaid period, his seat in the Council of States shall, at the expiration of that period, become vacant.

Any, intimation given as above, shall be final and irrevocable.

(Note): For the above purposes, the date on which a person is chosen to be a member of either House of Parliament, shall be in the case of an elected member, the date of his election and in the case of a nominated member, the date of first publication in the Gazette of India of his nomination.]

Vacation of a seat by a person who is already a member of one House, but has been elected to the other House of Parliament:

If a person who is already a member of the House of the People and has taken his seat in such House, is chosen a member of the Council of States, his seat in the House of the People shall, [on the date on which he is so chosen], becomes vacant.

If a person who is already a member of the Council of States and has taken his seat in such Council, is chosen a member of the House of the People, his seat in the Council of States shall, '[on the date on which he is so chosen], becomes vacant.

Election to more than one seat in either House of Parliament or in the House or either House of the legislature of a State:

If a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State then, unless within the prescribed time he resigns all but one of the seats [by writing under his hand addressed to the Speaker or Chairman. as the case may be, or to such other authority or officer as may be prescribed], all the seats shall become vacant.

Provisions regarding Election Expenses etc, under the Act:

Noted that the above provisions under the Act, shall apply only to elections to the House of the People and to the Legislative Assembly of a State and not to Council elections as such. In this regard, the Act makes the following prescriptions:

Maintenance of an account of election expenses and maximum thereof:

Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between [the date on which he has been nominated] and the date of declaration of the result thereof, both dates inclusive.

Noted that for the purposes of above expenditure that has been incurred by a candidate towards election expenses, any expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorized by a candidate of that political party or his election agent for the purposes of the said election.

Here in the above context, “leaders of political party”, in respect of any election means the following:

Where such a political party is a recognized political party, such persons not exceeding forty in number, and

(ii) Where such political party is other than a recognized political party, such persons not exceeding twenty in number, whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purposes of such election and that too within a period of seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be, under this Act.

Lodging of an account of election expenses with the district election officer: Every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the [district election officer] an account of his election expenses which shall be a true copy of the account kept by him or by his election agent as such.

Disputes Regarding Elections & provisions

Following provisions have beenspelled out under the Act in this regard :

First: No election shall be called in question except by an election petition to be presented to such an authority and in such a manner as prescribed under the Act.

Second: For the purposes of the authority to try these election petitions, it shall be the High Court.

Third: While exercising jurisdiction by the High Court concerned to try such election petitions, such a jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

Fourth: The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly at a place other than the place of seat of the High Court.

How election petitions are to be presented?

The Act provides that an election petition calling in question any election may be presented on one or more of the grounds as being specified in [sub-section (1) of section 100 and section 101, to the [High Court] by any candidate at such an election or even by any elector within forty-five days from the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, then on the later of those two dates.

In the above context, an "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has actually voted at such an election or not.

Noted further that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.

Who can be the parties to an election petition? The Act lays down that even a petitioner can join as respondents to his petition where:

a) The petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected. In such a case, all the contesting candidates other than the petitioner can become a party to such an election petition. However, where no such further declaration has been made by him, then all the returned candidates; and

(b) Any other candidate against whom allegations of any corrupt practice are made in the petition.]

What are to be the contents of the petition? Under the Act, an election petition should contain the following contents:

(a) It shall contain a concise statement of the material facts on which the petitioner relies;

(b) It shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such corrupt practice; and

(c) It shall also be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 regarding the verification of pleadings:

[Provided that where the petitioner alleges any corrupt practice, then the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such a corrupt practice and the particulars thereof.]

Different types of “electoral offences” under the Act:

Promoting enmity between classes in connection with election: Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, any feelings of enmity or hatred between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]

Filing of false affidavit, etc: .A candidate who either himself or through his proposer, with an intent to be elected in an election. –

(i) Fails to furnish information relating to sub-section (I) of section 33A: or

(ii) Give false information which he knows or has reason to believe to be false: or

(iii)conceals any information, in his nomination paper delivered under sub-section (I) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

Prohibition of public meetings during period of forty eight hours ending with hour fixed for conclusion of poll. If any person violates any such prohibition is deemed guilty of an electoral offence under the Act: Thus, the Act ordains that:

No person shall:

(a) Convene, hold or attend, join or address any public meeting or procession in connection with an election; or

(b) Display to the public any election matter by means of cinematograph, television or other similar apparatus; or

(c) Propagate any election matter to the public by holding, or by arranging the holding of any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in an polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in the polling area. Therefore, any person who contravenes the above mentioned provisions shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

Noted that for the above purposes, the expression "election matter" means any matter intended or calculated to influence or affect the result of an election.

Creating disturbances at election meetings, is an electoral offence: Any person who at a public meeting called for the purposes of an election, acts, or incites others to act, in a disorderly manner for the purpose of preventing the transaction of the business for which such a meeting has been called together, shall be deemed to have committed an electoral offence.

In such a case, such person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both. Even such an offence shall be regarded as a cognizable one.

For the purposes of the above offence, a “public meeting” refers to any meeting of a political character held in any constituency between the date of the issue of a notification under this Act calling upon the constituency' to elect a member or members and the date on which such election is held.

Restrictions on the printing of pamphlets, posters, etc and a non-adherence to such a stipulation is as an electoral offence: Accordingly, the Act provides that:

(1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.

(2) No person shall print or cause to be printed any election pamphlet or poster –

(a) unless, a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and

(b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document to the Chief Electoral Officer and in any other case, to the district magistrate of the district in which it is printed.

Noted that for the above purposes, an "election pamphlet or poster" means any printed pamphlet, hand-bill or any other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.

Any person, who contravenes any of the above provisions, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.).

The maintenance of Secrecy of voting and a violation thereof is an electoral offence: The RPA stipulates that:

(1) Every officer, clerk, agent or any other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law), communicate to any person any information calculated to violate such a secrecy of an election.

[Provided that the above provisions, shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States].

(2) Any person who contravenes the above provision shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.

Officers, etc., at elections not to act for candidates or to influence voting:

(1) No person who is [a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer or the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.

(2) No such person as aforesaid, and no member of a police force, shall endeavor: –

(a) To persuade any person to give his vote at an election, or

(b) To dissuade any person from giving his vote at an election, or

Any person, who contravenes the provisions as mentioned above, shall be punishable with imprisonment which may extend to six months or with fine or with both. It shall also amount to a cognizable offence.

Prohibition of canvassing in or near polling station:

(1) No person shall,on the date or dates on which a poll is to be taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of [one hundred metres] of the polling station, namely:-

(a) Canvassing for votes; or

(b) Soliciting the vote of any elector; or

(d) Persuading any elector not to vote at the election; or

(e) Exhibiting any notice or sign (other than an official notice) relating to the election.

Any person, who contravenes the above provisions, shall be punishable with fine which may extend to two hundred and fifty rupees. It shall also amount to a cognizable offence.

A misconduct at the polling station, is an electoral offence: The Act provides that:

Any person who during the hours fixed for the poll at any polling station misconducts himself or fails to obey the lawful directions of the presiding officer, may be removed from the polling station by the presiding officer concerned or by any police officer on duty or by any person authorized in this behalf by such a presiding officer. The Act however, further lays down that the above power shall not be exercised in such a way so as to prevent any elector to cast his vote, who is otherwise entitled voting at that station.

If any person, who has been so removed from a polling station, re-enters the polling station without the permission of the presiding officer, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both. It also amounts to a cognizable offence.

Prohibition of going armed to or near a polling station:

(1) No person, other than the returning officer, the presiding officer, any police officer and any other person appointed to maintain peace and order, at a polling station who is on duty at the polling station, shall, on a polling, day, go armed with arms, as defined in the Arms Act, 1959 (of any kind within the neighborhood of a polling station.

(2) If any person, contravenes the above provisions, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

(3) Notwithstanding anything contained in the Arms Act, 1959 (54 of 1959), where a person is convicted of an offence under this section, the arms as defined in the said Act found in his possession shall be liable to confiscation and the licence granted in relation to such arms shall be deemed to have been revoked under section 17 of that Act.

Removal of ballot papers from polling station to be an electoral offence:

(1) Any person who at any election [unauthorisedly] takes, or attempts to take, a ballot paper out of a polling station, or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees or with both.

(2) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable as above, such an officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer: Provided that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

Any ballot paper found upon the person arrested on search shall be made over the safe custody to a police officer by the presiding officer or when the search is made by a police officer, shall be kept by such officer in safe custody.

An offence punishable as above shall be a cognizable one.

Offence of booth capturing, is an electoral offence:

(1) Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine].

Noted that for the above purposes, an offence of "booth capturing" includes, among other things, all or any of the following activities, namely:-

(a) Seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;

(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and [preventing others from free exercise of their right to vote];

(c) [Coercing or intimidating or threatening directly or indirectly] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;

(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting, machines and the doing of anything which affects the orderly counting of votes and

(e) Doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.

Grant of paid holiday to employees on the day of poll. –

(1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State is on the day of poll, be granted a holiday.

(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having been granted in accordance with the above stipulation and if such person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such day the wages he would have drawn had not a holiday been granted to him on that day.

If an employer contravenes any of the above provisions, then such a employer shall be punishable with fine which may extend to five hundred rupees.

This however, does not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.

Liquor not to be sold, given or distributed on polling day: –

(1) No spirituous, fermented or intoxicating liquors or other - substances of a like nature shall be sold, given or distributed at a hotel, eating house, tavern, shop or any other place public or private within a polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.

(2) Any person who contravenes the provisions of the above provisions shall be punishable with imprisonment for a term which may extend to six months, or with line, which may extend to two thousand rupees, or with both.

Where a person is convicted of an offence under this section, the spirituous, fermented or intoxicating liquors or other substances of a like nature found in his possession shall be liable to confiscation and the same shall be disposed of in such manner as may be prescribed.

Has the time come to redefine the role of Rajya Sabha?

In the wake of continuous gridlock in the Rajya Sabha that we all now witness as a rule rather than exception, should certainly be taken as a serious cause of concern. This stalemate is occasionally witnessed when the government of the day lacks majority in the upper House irrespective of the fact that the government wishes to get through some of its key economic or other legislations. The result being, the economic development of the country would suffer and consequently, the welfare of the people.

Here in this context, the smouldering debate on revisiting Rajya Sabha’s role in a democracy seems to be a necessary fallout.

Nevertheless, before do we indulge into the nitty gritty of this debate, it becomes pertinent to first of all know about the utility of an Upper Chamber in a federation after all.

According to our Constitution makers, the Rajya Sabha was supposed to perform some of the following three important functions in India.

Firstly, it was envisaged to serve as a forum to which seasoned and experienced public men might get access without undergoing the din and bustle of a highly competitive general election which is inevitable to find a seat in the Lok Sabha. In fact, the idea was to enable the senior public men finding their way to Rajya Sabha and hence applying their mature judgment and wisdom towards solving the problems confronting the country. In this sense and as contemplated by the founding fathers that the utility of Rajya Sabha would lie in the talent, experience and knowledge which it can harness to the service of the country which might be lost otherwise. Unfortunately, in none of the directions, the Rajya Sabha has fulfilled its mandate of late and the hope of the makers has been belied completely. Had the Rajya Sabha members been cognizant of their envisaged role they would have certainly rose to the occasion; above party politics and lent their unequivocal support to the government’s highly useful economic legislative programme.

Secondly, It was also envisaged to serve/ act as a debating chamber in which dignified debates are to be held on various issues confronting the country. Simultaneously, it was also contemplated that it would act as a revising chamber over Lok Sabha. As the Lok Sabha being a popularly elected House, it could easily sway to act hastily under public pressure or under the heat of passion of the moment and the second house would act as a kind of heat absorber. In this respect, the Rajya Sabha did have served its purpose ever since its existence whenever the ruling dispensation sought to pursue its legislative agenda to fulfill its poll promises aiming at the appeasement of a particular section of the society just by the force of its brute majority. To this extent, the Rajya Sabha’s role is laudable and justified. But what about its unwarranted opposition under the instances which showcase its intention merely to embarrass the government even though the initiative is/are in the larger public interest or the interest of the country? GST bill can be a point in case

Thirdly, As in any other federation, so does in India, the creation of an upper chamber was a virtual necessity on account of India’s being constituted as a federation which inevitably required a chamber in which states are to be represented for articulating their interest. In this regard also, the Rajya Sabha has been serving no purpose; a phenomenon that becomes true to all the federations today, for the members of the upper chamber today votes no more on the state lines, but on party lines due to the emergence of strong party discipline and representing more of a national interest than a regional interest.

On the basis of above considerations, it appears that Rajya Sabha has remained far removed from its original envisaged role. It may not be inappropriate to argue that its role, structure and composition may be reviewed sans its complete abrogation so as to make it more democratic and relevant in the changing context of the governance lest it should become an “indefensible anachronism” as was being alluded to House of Lords of the British Parliament until it was made more democratic in the recent past by redefining its role in the form of effectively curtailing its powers in the legislative process of the country.

Notwithstanding the very nature and purpose of Indian Rajya Sabha, the government’s contention to have a revisit on its role is justified to the extent that it being an indirectly elected and partly nominated House, it cannot bulldoze a popularly elected House which not only carries the mandate of the people at its back and thus is in sync with the democratic principles, but the responsibility of the government also lies to this house insofar as the cardinal principle of Parliamentary democracy is concerned. Being responsible to the popularly elected House, the government certainly has some obligations to be redeemed towards the people. Isn’t a kind of betrayal of the popular mandate and hence democracy, if the government is being made handicapped in carrying out its articulated political or legislative agenda to fruition which apparently has people’s backing?

This probably is the reason that the powers of the House of Lords have been substantially curtailed in the recent past and so did that of the Senate of Canadian Parliament.

On account of this undemocratic and an unduly dilatory character of Rajya Sabha, Indian parliament even went on to discuss a private Member’ resolutions for the abolition of Rajya Sabha way back in the Year 1973 (March 30) although, then the general view prevailed in favour of its retention…..