ELECTIONS IN INDIA

ELECTION IN INDIA

ELECTIONS IN INDIA UNDER THE INDIAN CONSTITUTION
Elections are process of selection of members of Parliament and State Legislative Assemblies and it is known as general election.  General  Elections are normally held in every five years but mid-term elections can also be held if circumstances so warrant. The Election Commission consists of the Chief Election Commissioner and a number of Election Commissioners. They are appointed by the President to control and supervise the Elections.

Elections  process  are divided into three categories:
First General  Elections;
Mid-term Elections; and
By-election.
First   General  Election:-  The first general election were held in 1951-52 and spread over 100 days. In all, 1800 candidates contested for 489 seats of the Lok Sabha and 15,000 candidates for 5283 seats of state legislative assemblies.
Mid-term Elections:-  Mid-term elections are held outside the schedule as a result of dissolution of Parliament or a State Legislature before it has been in existence for its normal term of five years.
By-election:-  A by-election is held in respect of a seat rendered vacant during the running term of an elected person due to his death, resignation or any other subsequent disqualification of the already elected member.
CONSTITUTIONAL PROVISION REGARDING ELECTIONS:
PART XV of the Indian Constitution contain provisions from Article 324 to 329A regarding Elections.
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 ¹ [***] shall be vested in a Commission ( referred  to in this Constitution as 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 People and to the Legislative Assembly of each State ,and before the first general election and therefore 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 removed from 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 his office except  on the recommendation of the Chief Election Commissioner.
 (6) The President , or the Governor  ²[***] 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).
NOTE: 1.certain words omitted by the Constitution  ( Nineteenth Amendment  ) Act, 1966, sec.2 (w.e.f.11-12-1966).
2.The words “or Rajpramukh” omitted by the Constitution (Seventh Amendment) Act, 1956, sec. 29 and Sch (w.e.f.1-11-1956).
The Constitution of India provides status of  Election Commission as an “ Independent Autonomous  Body” which is  free to  discharge its all liabilities in a fair manner like Hon’ble Supreme Court  and High Court.
The President or the Governor shall, when requested by the Election Commission, make available to the Election Commission such staff as may be necessary to discharge its function .Thus the Election Commission shall have generally few staff of its own. It can demand necessary staff from the Centre and State Governments whenever required.
Presidential  Reference under   Art. 143 :  Relation between Art. 174  and  Art. 324-Election Commission has exclusive power to hold elections –It is not absolute but subject to judicial review,- In Presidential reference,2002, AIR 2003 SC 87.  the President referred the important question regarding interpretation of Art.174 and Art.  324 to the Supreme Court for its opinion under  Art.  143 of   the Constitution. Under  Art. 174,  the  government has power to dissolve the State Legislative Assembly from time to time and place as he thinks fit. This power, however, is exercised by the government. But it also provides that six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. This means that in normal situation if a Legislative assembly is dissolve, election must be held and the assembly be constituted to meet within that period.
The facts were that in an unfortunate incident in Gujarat on 27 February, 2002, 58 persons were brunt alive in a train in resulting widespread communal riots in certain areas of State. The government, acted swiftly and controlled the riot and peace returned. The Chief Minister then took a political move and prematurely got the Assembly dissolved and recommended for election.  The Election Commissioner visited the State to take the stock of the situation and took the decision that condition in the state was not conducive for holding the assembly election. It even recommended for the imposition of President’s rule after the lapse of 6 months. In view of this the government referred three questions to the Supreme Court for its opinion:
Whether Art. 174 is subject to the decisions of the Election Commission not to hold elections in the State under Art. 324.
Whether the Election Commission can declare election schedule which violates Art.174 and after the expiry of 6 months constitutional period for assembly to meet necessitating the imposition of President’s Rule under Art.324.
Whether the mandate of Art. 174 to hold election will be fulfilled by the holding of election by Commission under Art.324.
A Five Judge Bench headed by the Chief Justice B.N. Kripal (and Justice V.N. Khare,  Justice K.G. Balakrishnan, Justice Ashok Bhan and Justice Pasayat ) rejected the contention  of the Gujarat government that Art.174 of the Constitution which mandates that not more than six months shall lapse between two sittings of an elected assembly and held that Art .174(1) does  not apply to a  “dissolved Assembly” whose life has come to an end and ceased to exist but applies to a ‘live’ assembly. The Court held- Art.174(1) neither relates  to elections nor does it provide any outer limit for holding elections for constituting the Legislative Assembly “ . The holding of elections is the exclusive domain of the Election Commission under Art.324 of the Constitution. This is evident  from Sections 14 and 15of the Representation of People Act  which provide that the President or the Governor shall fix the date for holding elections on the recommendations of the Election Commission.
Right to Vote.-There is question that Right to Vote is a Constitutional Right or Statutory Right ?  It is make clear by the Apex Court in case of:
Anukul Chandra Pradhan V. Union of India, AIR1997 SC 2814.
It has been held that the rights to vote is a statutory right and therefore subject to limitations imposed by the State which can be exercised only in the manner provided by the Statute. It is neither a fundamental right nor a common law right.  It is pure and simple, a statutory right. Accordingly, Section 5 of the Representation of People Act . 1951 which debars a person to vote in an election if he is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or in lawful custody of police, but not under prevention detention , is not discriminatory and is not violative of Art. 14  of the Constitution.   
No person to be ineligible for inclusion in, or to claim to be included 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 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.
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 ant 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.
*Subs. By the Constitution (Sixty-first Amendment) Act , 1988, sec. 2, for “twenty-one years”(w.e.f.28-3-1989).
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.
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 of the Legislature of the State including the due constitution of such House or Houses.
Bar to interference by courts in electoral matters.-¹ [Notwithstanding anything in this Constitution ²[***]]
(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.
By the Constitution (Thirty-ninth Amendment) Act, 1975,   sec. 3 , for certain words (w.e.f.10-8-1975).
The words, figures and letter “but subject  to the provisions of article 329A” omitted by the Constitution (Forty-fourth Amendment) Act, 1978, sec.35(w.e.f.20-6-1979).
In Ponnu Swami v. Returning Officer, Namakal, AIR 1962 SC 64. And  in Hari Krishna v. Ahmad Ishaque, AIR  1955 SC 233; the appellant’s nomination paper for the State Assembly was rejected by the Returning Officer. He then moved the High Court under art. 226 to quash the order of the Returning  Officer  and to direct the inclusion of his name in the list of valid nominations. The High Court dismissed the writ-petition on the ground that under Article 329(b) the Court had no jurisdiction to interfere with the order of the Returning officer . The appellant went in appeal to the Supreme Court . The Supreme Court held that the word “election ”in Article 329 connotes the entire procedure to be gone through to return the candidate to the legislature , and bars the jurisdiction of the High Court under Article 226 as well. Acceptance or rejection of nomination paper is included in the term “election”. The matter can only be challenged by the election –petition before the High Court after the election is over.
In Venkatachalam v. A. Swamicakan AIR 1999 SC 172.  the Supreme Court has held that Art.329 (b) which bars interference of Court  in electoral matter does not come into play in a case which falls under Arts.191 and 193 which provides for disqualification of membership and penalty for sitting and voting when disqualified and the whole of election process is over. In such case the High Court can interfere under Art. 226 and declare that he was not entitled to sit in the State Assembly.
               But   neither  Article 329(b) nor the Representation of the Peoples Act  ( before its amendment) which said that the decision by order of the Election Tribunal shall be “final” could restrict  the power of the High Courts under Article 226, and the power of the Supreme Court  under Article 136. In Durga Shanker v. Raghuraj, AIR 1954 SC 520.
The Constitution (19^th  Amendment ) Act, 1966, abolished the jurisdiction of Election Tribunals over election disputes. The Amendment has vested this power in the High courts. The effect of vesting the power in the High  Courts was to expedite decision in election disputes.
³[  329A.  Special  provision as to elections to Parliament in the case of Prime Minister and Speaker.- [rep. by  the Constitution (Forty-fourth Amendment ) Act, 1978, sec. 36 (w.e.f.20-6-1979).]]

Article 329A was earlier inserted by the Constitution (Thirty-ninth Amendment) Act, 1975, sec.4 (w.e.f.10-8-1975).