The RPA 1951: qualifications, disqualifications and election disputes

Detail

1. Who makes election law

• Art. 327: Parliament can make laws on every part of elections to Parliament and to state legislatures. This includes electoral rolls, delimitation (drawing constituency boundaries) and all other matters.
• Art. 328: a state legislature can also make election laws for its own House. It can do so only where Parliament has not made a law on that matter.
• So Parliament's law comes first, and the states' laws only fill gaps.
• Parliament made two main laws:
• RPA 1950: covers electoral rolls and the number of seats.

• Representation of the People Act 1951 (Act No. 43 of 1951): covers how elections are actually run [2].

• What the RPA 1951 covers:

• qualifications and disqualifications;
• notification of elections;
• administrative machinery (returning officers, presiding officers);
• conduct of elections;
• corrupt practices and electoral offences;
• election disputes;

• registration of political parties (s.29A).

• Conduct of Election Rules 1961: rules made under the RPA that set out the practical steps:

• nomination and other forms;
• ballot papers and EVMs (electronic voting machines);
• postal ballots;
• tendered votes: a paper vote given to a real voter who finds that someone has already voted in their name;
• VVPAT: a paper slip that lets the voter check whom the EVM recorded the vote for;
• NOTA ("None of the Above");
• counting;
• election expense accounts.

2. Right to contest: qualifications

• Right to contest elections: the legal right of a citizen to stand as a candidate.
• It is a statutory right, which means it comes from a law made by Parliament. It is not a fundamental right and not a common-law right.
• So Parliament can add conditions to it.
• Javed v. State of Haryana (2003) upheld a two-child norm for panchayat elections. Under this rule, a person with more than two children cannot contest.

Requirement	Lok Sabha / State Assembly	Rajya Sabha / Legislative Council
Citizenship	Must be a citizen of India (Arts. 84, 173)	Must be a citizen of India
Oath	Before the person authorised by the ECI, in the form set out in the Third Schedule	Same
Minimum age	25 years	30 years
Elector (registered voter)	Lok Sabha: a voter in any parliamentary constituency (RPA s.4). Assembly: a voter in a constituency of that state (s.5)	Rajya Sabha: a voter in any parliamentary constituency (s.3)
Reserved (SC/ST) seat	The candidate must belong to a Scheduled Caste or Scheduled Tribe. For an assembly seat, the community must be listed for that state (s.5)	Not applicable

• The candidate's oath is a promise to bear true faith and allegiance to the Constitution and to uphold India's sovereignty and integrity.
• There is no bar of income, education or gender on who can contest.

3. Constitutional disqualifications (Arts. 102, 191)

• Art. 102 covers MPs and Art. 191 covers state legislators (MLAs and MLCs). A person is disqualified if they:
• hold an office of profit (a paid post under the Central or a state government), unless a law says that post does not count;
• are of unsound mind, as declared by a competent court;
• are an undischarged insolvent: a person declared bankrupt by a court and not yet freed from that status;
• are not a citizen, have voluntarily taken another country's citizenship, or are loyal to a foreign state;
• are disqualified by any law of Parliament (this is how the RPA grounds apply);

• have defected under the Tenth Schedule (the anti-defection law).

• Who decides (Arts. 103, 192):

• For the first five grounds, the President (for MPs) or the Governor (for MLAs) decides.

• Before deciding, the President or Governor must get the ECI's opinion and must act according to it. The opinion is binding.

• Trap: defection does not go through this route. The Speaker or Chairman of the House decides defection cases under the Tenth Schedule (para 6).

4. Disqualifications under the RPA 1951

• s.8, conviction for a crime [2]:
• s.8(1): conviction for listed serious offences (for example, promoting enmity between groups, bribery at elections or offences under anti-terror laws) disqualifies the person even if the only punishment is a fine.
• s.8(3): conviction for any other offence with a jail sentence of two years or more also disqualifies the person.
• The bar runs from the date of conviction and lasts six more years after release from jail.

• (NCERT: "imprisonment for two years" — a simplified version of s.8.)

• Lily Thomas v. Union of India (July 2013):

• s.8(4) used to give a sitting MP or MLA three months to appeal. During that time the member was not disqualified.
• The Supreme Court struck s.8(4) down [4].
• Reason 1: under Art. 102(1)(e), Parliament cannot make different disqualification rules for sitting members and for candidates [4].
• Reason 2: under Art. 101(3)(a), a seat becomes vacant the moment the member is disqualified. So a convicted member loses the seat at once [4].

• The government introduced the RP (Second Amendment and Validation) Bill, 2013 to deal with this judgment [4].

• s.8A, corrupt practice:

• A corrupt practice is a wrong act listed in s.123, such as bribing voters, threatening or unduly influencing voters, or asking for votes on grounds of religion or caste.
• If a court finds a person guilty of a corrupt practice, the case goes to the President.

• The President decides the length of the disqualification, up to six years, on the ECI's opinion.

• s.9: a government servant dismissed for corruption or disloyalty to the State is disqualified for five years from the date of dismissal.

• s.9A, government contract:
• A person is disqualified while they hold a subsisting (still running) contract with the government to supply goods or carry out works.

• The bar ends when the contract ends.

• s.10, government company:

• A person cannot be a managing agent, manager or secretary of a company in which the government holds at least 25% of the shares.

• The bar lasts as long as the person holds that office.

• s.10A, election expense account:

• Every candidate must file an account of election spending, in the time and manner the law requires.

• If the candidate fails to do so and has no good reason, the ECI can disqualify them for three years.

• s.11, power to remove or reduce a disqualification:

• The ECI may remove a disqualification under Chapter III or cut its length. It must record its reasons in writing.
• Example (2019): the ECI shortened the disqualification of P.S. Golay (Prem Singh Tamang), Sikkim's Chief Minister. He had been convicted in a corruption case. The change let him contest a by-election and remain Chief Minister.

5. Contesting from two constituencies

• s.33(7), added in 1996: a candidate can contest from at most two constituencies in one general election or by-election to the same House [3].

• Before 1996 there was no limit on the number of seats.

• If the candidate wins both seats (s.70):

• they must vacate one seat within 14 days of the result;
• this forces a by-election in the vacated seat;

• by-elections cost public money and make voters go to the polls again.

• ECI's position:

• On 5 July 2004, the Chief Election Commissioner wrote to the Prime Minister. He asked for s.33(7) to be amended so that a person could contest from only one constituency [3].

• The ECI's other option: a candidate who wins two seats and gives one up should pay the cost of the by-election.

• Supreme Court, 2 February 2023 (W.P.(C) 967/2017):

• The petition asked the Court to strike down s.33(7) [3].
• The Court refused. It held that allowing a candidate to contest more than one seat is a matter of legislative policy [3].
• Only Parliament can decide whether this choice helps democracy [3].

6. By-elections (s.151A)

• A by-election is an election held to fill one seat that becomes vacant in the middle of a term, through death, resignation, disqualification or a candidate giving up one of two seats.
• s.151A (added in 1996): the ECI must hold the by-election within six months of the vacancy.
• There are two exceptions:
• less than one year of the member's term is left; or
• the ECI, after consulting the Central Government, certifies that holding the poll in that period is difficult.

7. Election disputes: the election petition

• Art. 329(b): an election to Parliament or a state legislature can be challenged only by an election petition, filed before the authority and in the way that law provides.
• Election petition: a court case that questions the result of an election. It is the only legal way to challenge a result.

How an election petition moves through the courts

• Step 1, filing:
• Any candidate or elector (voter) of that election can file the petition.
• It goes to the High Court (s.80A).

• It must be filed within 45 days of the date the winner was declared, and not earlier (s.81) [2].

• Step 2, grounds (s.100): the High Court can declare the election void if:

• the winner was not qualified, or was disqualified, on the date of election;
• the winner or their agent committed a corrupt practice;
• a nomination was wrongly rejected;

• the result was materially affected, meaning the outcome itself was changed, by:

  • a nomination that was wrongly accepted;
  • votes wrongly counted or wrongly rejected;
  • a breach of the Constitution, the RPA or the rules.

• Step 3, checking the petition: the High Court must dismiss a petition that does not follow ss.81, 82 or 117 [2].

• s.82 says who must be named as parties to the case.

• s.117 requires a security deposit to cover costs.

• Step 4, appeal: either side can appeal to the Supreme Court (s.116A).

• N.P. Ponnuswami v. Returning Officer, Namakkal (1952):

• Ponnuswami's nomination paper was rejected, and he went straight to court before the poll.
• The Supreme Court held that "election" means the whole process, from the notification to the declaration of the result.
• So under Art. 329(b), courts cannot step in while an election is going on.

• Even a wrongly rejected nomination can be challenged only through an election petition after the result.

• Bar on judicial interference in electoral matters (Art. 329(a)):

• Courts cannot question any law on delimitation of constituencies or allotment of seats made under Art. 327 or 328.
• Together with Art. 329(b), this means courts cannot stop an election midway.

8. Landmark example: Raj Narain and the 1975 crisis

• The petition: Raj Narain lost to Indira Gandhi in Rae Bareli in the 1971 Lok Sabha election, and he filed an election petition.
• 12 June 1975: the Allahabad High Court (Justice J.M.L. Sinha) declared her election void for corrupt practices. One finding was that she had used government officials and machinery for her campaign.
• The response: the 39th Amendment (1975) added Art. 329A. It placed disputes over the elections of the Prime Minister and the Speaker outside the courts and tried to make her election valid.
• Indira Nehru Gandhi v. Raj Narain (1975): the Supreme Court struck down clause (4) of Art. 329A. It held that free and fair elections are part of the basic structure, meaning core features that even a constitutional amendment cannot destroy.
• 44th Amendment (1978): Art. 329A was removed from the Constitution.

9. President and Vice-President

• Art. 71: disputes over the election of the President or Vice-President go directly to the Supreme Court. They do not go to a High Court.
• These disputes are handled under the Presidential and Vice-Presidential Elections Act 1952, not the RPA.

Prelims Hooks

• Art. 329(b) + N.P. Ponnuswami (1952): an election can be challenged only by an election petition, and only after the result.
• An election petition goes to the High Court (s.80A) within 45 days of the result (s.81). An appeal goes to the Supreme Court (s.116A). For President and Vice-President, disputes go directly to the Supreme Court (Art. 71).
• Trap: for disqualifications under Arts. 102/191, the President or Governor decides and is bound by the ECI's opinion (Arts. 103/192). Defection cases are decided by the Speaker or Chairman, not the President.
• s.10A: failure to file the election expense account leads to 3 years' disqualification, imposed by the ECI. s.9 (dismissal for corruption or disloyalty): 5 years. s.8A (corrupt practice): up to 6 years, decided by the President.
• s.11: the ECI can remove or reduce a disqualification (P.S. Golay, Sikkim, 2019).
• s.33(7) (added in 1996): a candidate can contest at most two seats. The Supreme Court (2023) called this Parliament's policy choice and did not strike it down.
• s.151A: a by-election must be held within 6 months, unless less than 1 year of the term remains or the ECI, after consulting the Centre, certifies difficulty.
• Lily Thomas (2013): struck down s.8(4). A convicted sitting MP or MLA is disqualified at once.
• The right to contest is a statutory right, not a fundamental right (Javed v. State of Haryana, 2003).
• 39th Amendment (1975) added Art. 329A, and the 44th Amendment (1978) removed it.

Mains Points

• One candidate, one seat:
• Problem: under s.33(7), a candidate who wins two seats gives one up. This forces costly by-elections and makes voters go to the polls again.
• Reform proposals: the ECI (2004) wanted one seat per candidate, or the winner paying the by-election cost [3].

• Counter-argument: leaders want a safe second seat, and the Supreme Court (2023) left the choice to Parliament [3].

• Criminals in politics:

• Gain so far: Lily Thomas (2013) ended the protection that s.8(4) gave to convicted sitting legislators [4].

• Remaining gap: s.8 acts only after conviction. Cases take years to decide, so people facing serious charges still contest. Reform debates centre on disqualifying people once a court has framed charges against them.

• Slow justice on election petitions:

• Petitions often go undecided until the term is almost over, so the winner serves almost the full term.
• Possible fixes: special election benches in High Courts and strict time limits.

• Ponnuswami's logic: courts do not interrupt elections. This protects the election timetable, but it pushes every remedy to after the result.

• Who controls disqualification:

• Under Arts. 103/192, the President or Governor is bound by the ECI's view, which keeps the decision neutral.
• Defection cases rest with the Speaker, who is a party member. This raises questions of bias and delay, and gives a reason for a neutral authority such as the ECI.