Electoral Laws, Anti-defection and Electoral Reforms

Constitutional framework of elections

Part XV (Articles 324–329) deals with elections:

• Art 324 – Election Commission.
• Art 325 – one general electoral roll for every territorial constituency; no one is ineligible on grounds only of religion, race, caste or sex (this ended separate electorates).
• Art 326 – elections on the basis of adult suffrage (18 years after the 61st Amendment, 1988).
• Art 327 and 328 – Parliament and state legislatures can make laws on elections (delimitation, rolls and other matters).
• Art 329 – bars courts from interfering in electoral matters such as delimitation; an election can be challenged only by an election petition (filed in the High Court) after the results.

Main electoral laws

• Representation of the People Act, 1950 – allocation of seats, delimitation, qualifications of voters, preparation of electoral rolls.
• Representation of the People Act, 1951 – conduct of elections, qualifications and disqualifications of members, corrupt practices and electoral offences, election disputes, registration of political parties (Section 29A), and the expenditure ceiling.
• Delimitation Commission Acts (1952, 1962, 1972, 2002); the Conduct of Election Rules, 1961; the Election Symbols Order, 1968.

Key RPA 1951 provisions:

• Section 8 – disqualification on conviction (for listed offences, or for any offence with imprisonment of two years or more) for the period of sentence plus six years.
• Section 33(7) – a candidate can contest from at most two constituencies (amended in 1996).
• Section 77 – expenditure limit for candidates: ₹95 lakh for Lok Sabha seats in larger states and ₹40 lakh for assembly seats in larger states (revised in 2022). There is no limit on party spending.
• Section 123 – corrupt practices: bribery, undue influence, appeals on grounds of religion, race, caste, community or language, promotion of enmity, booth capturing and others. In Abhiram Singh (2017) the Supreme Court held that appeals to religion, caste etc. of voters, candidates or their agents all fall within the ban.
• Section 126 – ban on election campaigning in the 48 hours before the end of polling ("silence period").
• Section 29C – parties must report donations above ₹20,000 to the ECI to get income tax exemption.

Anti-defection law (Tenth Schedule)

Added by the 52nd Amendment, 1985 to curb "Aaya Ram Gaya Ram" politics (the phrase came from Haryana MLA Gaya Lal, who changed parties three times in a day in 1967).

Grounds for disqualification:

• A member of a political party is disqualified if he voluntarily gives up membership of the party (which can be inferred from conduct), or votes or abstains in the House contrary to the party's direction (whip) without prior permission, unless the party condones it within 15 days.
• An independent member is disqualified if he joins any political party after the election.
• A nominated member is disqualified if he joins a party after six months from taking his seat.

Exceptions: the merger of the original party with another, if at least two-thirds of the legislature party agree. The earlier exception for a split by one-third of members was deleted by the 91st Amendment (2003). Presiding officers who give up party membership on election to the post are protected.

Deciding authority: the Speaker or Chairman of the House. In Kihoto Hollohan (1992) the Supreme Court upheld the Tenth Schedule but held that the presiding officer acts as a tribunal, and the decision is subject to judicial review (on grounds such as mala fides, perversity or violation of natural justice); it struck down paragraph 7, which had barred the courts. In Keisham Meghachandra Singh (2020) the Court said the Speaker should decide disqualification petitions within three months ordinarily, and suggested Parliament consider an independent tribunal. In Subhash Desai (2023) – arising from the split in the Shiv Sena – the Court held that the legislature party cannot by itself decide who the whip is; the political party appoints the whip, and the Speaker must decide disqualification petitions within a reasonable time.

Criticism: the law curbs a legislator's freedom of conscience on every vote (not just confidence motions); presiding officers often delay decisions to benefit the ruling side; mass defections are disguised as "mergers" or members resign to help topple governments and then re-contest; and it has strengthened party high commands. Reforms suggested: limit the whip to confidence and money bills (Dinesh Goswami Committee, 1990; Law Commission, 1999); give the decision-making power to the President or Governor on ECI advice (Goswami Committee, Law Commission, ECI); or an independent tribunal (Supreme Court, 2020).

Electoral reforms – what has been done

• Voting age reduced to 18 (1988); EVMs and VVPAT; EPIC cards.
• Disclosure of criminal antecedents, assets and education by candidates – after Union of India v ADR (2002) and PUCL (2003) – on affidavit with nomination papers. In Public Interest Foundation (2018) and Rambabu Singh Thakur (2020) the Court directed parties to publish the criminal records of their candidates and explain why they chose them.
• Immediate disqualification of convicted legislators (Lily Thomas, 2013).
• NOTA (2013); a limit of two constituencies per candidate (1996).
• Electoral bonds (2018) were struck down in February 2024 (ADR v Union of India) for violating voters' right to information; the SBI was directed to disclose bond details to the ECI, which published them.
• Postal ballots for service voters (electronically transmitted – ETPBS), and for senior citizens and persons with disabilities.
• Remote voting for domestic migrants – the ECI demonstrated a prototype remote EVM in 2023; not yet adopted.

Reform proposals still debated

• State funding of elections – the Indrajit Gupta Committee (1998) recommended partial state funding in kind; the Law Commission (1999) and the Second ARC made related suggestions.
• Simultaneous elections ("One Nation, One Election") – the Ram Nath Kovind High-Level Committee (report March 2024) recommended simultaneous Lok Sabha and assembly elections first, with local body elections within 100 days. The Constitution (129th Amendment) Bill, 2024 (introducing Article 82A) and a related bill for UTs were introduced in December 2024 and referred to a Joint Parliamentary Committee.
• Decriminalisation of politics – barring candidates against whom charges have been framed for serious offences (the Law Commission's 244th report, 2014); the Court has said this is for Parliament.
• Regulation of party finances and inner-party democracy; bringing parties under the RTI Act (the CIC ruled in 2013 that six national parties were public authorities, but the parties have not complied, and the matter is pending in the Supreme Court).
• Power for the ECI to deregister parties (it currently has no such power except in limited cases); and a statutory backing for the Model Code of Conduct.

Practice: Mains question

*"The anti-defection law has failed to check defections while curbing legislators' freedom." Critically examine. (250 words)* Use the Tenth Schedule's purpose, examples of mass resignations and mergers, Kihoto Hollohan, Keisham Meghachandra and Subhash Desai, and reform options (whip limited to confidence and money bills; independent adjudicator; time limits).

Common traps

• The split provision (one-third) was deleted by the 91st Amendment (2003); only merger by two-thirds survives.
• A nominated member may join a party within six months of taking the seat.
• Election petitions are filed in the High Court (Art 329 bars other challenges during the process).
• Campaign silence is 48 hours before the close of polling (Section 126).