Representation of the People Act 1951

Basics:

• The Representation of the People Act, 1951 is an act of Parliament of India to provide for:   
• The conduct of election of the Houses of Parliament and to the House or Houses of the Legislature of each State,
• The qualifications and disqualifications for membership of those Houses,
• The corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
• It was introduced in Parliament by law minister Dr. B.R. Ambedkar.
• The Act was enacted by the provisional parliament under Article 327 of Indian Constitution, before the first general election.
• To ensure the conduct of elections in free, fair and in an impartial manner, the constitution-makers incorporated Part XV (Articles.324-329) in the constitution and empowered Parliament to make laws to regulate the electoral process.
• The Election Commission of India (ECI) is the watchdog of free and fair elections in the country and Article 324 of the Constitution provides for its establishment. The ECI as an independent constitutional authority & brought into force from November 26^th, 1949.
• In this context, the Parliament has enacted the Representation of the People Act (RPA), 1950 and Representation of the People Act,1951.
• Universal suffrage: After independence, there was a need to hold general elections to elect a truly representative government on the basis of universal adult suffrage.
• Article 325 of the constitution ensures universal suffrage and provides that no person be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.
• The Acts: To provide a legal framework for the conduct of elections, Parliament passed the Representation of the People Act, 1950, Representation of the People Act, 1951 and Delimitation Commission Act of 2002.
• Delimitation: For the purpose of first general elections to the Lok Sabha and Vidhan Sabhas, the first delimitation order was issued by the President, in consultation with ECI and with the approval of Parliament in August 1951.

Representation of People Act (RPA) – Background

Articles 324 to 329 of Part XV of the Indian Constitution provides for the country’s electoral system. The Constitution confers upon the Parliament the power to enact laws for all matters connected with elections to the Parliament and the State Legislature. 

• The government introduced the first RPA in 1950 in order to regulate elections in the country.
• Representation of the People Act (RPA), 1950:
• Key Provisions
  
  • Lays down procedures for delimitation of constituencies.
  • Provides for the allocation of seats in the House of the People and in the Legislative Assemblies and Legislative Councils of States.
  • Lays procedure for the preparation of electoral rolls and the manner of filling seats.
  • Lays down the qualification of voters.

• Delimiting Constituencies
  
  • The President of India has been conferred the power to amend orders delimiting constituencies, only after consulting the ECI.
  • In Lok Sabha, there is a reservation of seats for Scheduled Castes and Scheduled Tribes.
  • The ECI has the power to determine the constituencies to be reserved for scheduled tribes in the states of Meghalaya, Mizoram, Nagaland and Tripura.

• Allocation of seats: As far as possible, every state gets representation in the Lok Sabha in proportion to its population as per census figures.

Electoral Rolls

• The 1950 Act permits the registration of persons in electoral rolls who are ordinarily resident in a constituency and persons holding:
  • Service qualification such as a member of armed forces, member of the armed police force of a state, serving outside the state, or central government employees posted outside India.
  • Certain offices in India declared by the President in consultation with ECI.
  • The wives of such persons are also deemed to be ordinarily residing in India. There is a proposal for making some provisions gender-neutral by replacing the term ‘wife’ with ‘spouse’.

• Chief Electoral Officer (CEO)
  • Each state to have a CEO nominated or designated by the ECI in consultation with the state government to supervise the election work in the State/ UTs.
  • The ECI also nominates or designates an officer of the state as the District Election Officer (DEO) in consultation with the state government
    • The DEO works under the overall superintendence and control of the CEO.

• Electoral Registration Officer (ERO)
  • The ERO is responsible for the preparation of the electoral roll for each constituency (parliamentary/assembly).
  • An appeal against the order of the ERO during the update of the electoral rolls now lies with District Magistrate.

• Returning Officer(RO)
  • RO is responsible for the conduct of the election in a constituency and returns an elected candidate.
  • The ECI nominates or designates an officer of the government or local authority as the RO in consultation with the state government.
• Power to make rules under the act is conferred to the Central government, which can exercise this power in consultation with the ECI.
  • The Civil Courts have also been barred to question the legality of any action of the ERO regarding revision of electoral rolls.
• Voting Rights: In 2010, voting rights were extended to citizens of India living abroad.

Representation of People Act, 1951

• Key Provisions
  
  • It regulates the actual conduct of elections and by-elections.
  • It provides administrative machinery for conducting elections.
  • It deals with the registration of political parties.
  • It specifies the qualifications and disqualifications for membership of the Houses.
  • It provides provisions to curb corrupt practices and other offences.
  • It lays down the procedure for settling doubts and disputes arising out of elections.

• Qualification for Contesting Elections in India
  
  • The Parliament has laid down the following qualifications (for contesting election) in the RPA,1951:
    • A person must be an elector in the constituency.
    • The person must be a member of a Scheduled Caste or Scheduled Tribe in any state/UTs if he/she wants to contest a seat reserved for them.
    • The minimum age for becoming an MLA/MPs (Lok Sabha) is 25 years.
      • At the panchayat and municipality levels, the minimum age limit for contesting elections is 21 years.

• Right to Vote
  
  
  • Apart from Article 326 of the Constitution ( that guarantees the right to vote to every citizen above the age of 18 years, unless disqualified by any law), Section 62 of the RPA,1951 also ensures that every person who is in the electoral roll of that constituency is entitled to vote.
  • One person can vote at one constituency only and only for one time in a particular election.
  • If a person is confined in a prison, whether under a sentence of imprisonment or transportation, then he is not eligible for voting, however, in the case of preventive custody, he can vote.
    
    • In 2014, the ECI had said that the person under preventive custody had the right to vote, but not under-trials and convicts.
    • However, the Act allows those serving sentences less than 2 years to contest elections from prison.

• NOTA Option: None of the Above was introduced in the ballot papers/ Electronic Voting Machine (EVMs) in General Election to the State Assemblies in 2013.

• VVPAT: Voter Verifiable Paper Audit Trail is an independent system attached with the EVMs that allows voters to verify that their votes are cast as intended. It was introduced in 2013, after the SC allowed the ECI for the ‘requirement of free and fair elections’ in its verdict in the People’s Union for Civil Liberties vs. Union of India case (2013).

• Provisions Related to Political Parties: Every association or body in order to become a political party must be registered with the ECI whose decision regarding registration will be final.
  • Registered political parties, in course of time, can get recognition as ‘State Party’ or National Party’.
  • Change in name and address of a registered political party must be communicated to the ECI.
  • The ECI can not derecognise a party.

• Voluntary Contributions
  
  • Voluntary contributions by any person or company within India ( other than a government company) can be accepted by the registered political party.
    • A company can donate any amount of money to any political party.
    • There is no obligation of the company to report such donations in its profit and loss account.
  • It is mandatory for the political parties to submit to the ECI a list of donations they received above Rs. 2,000.
    • Political parties cannot receive more than Rs 2000 as cash donations.
  • Now, political parties are eligible to accept contributions from foreign companies defined under the Foreign Contribution (Regulation) Act, 2010.

• Declaration of Assets and Liabilities
  • Individuals contesting elections have to file an affidavit, declaring their criminal records, assets & liabilities and educational qualification.
  • After getting elected, MPs are required to file a declaration of assets and liabilities with the Speaker of Lok Sabha and the Chairman of Rajya Sabha.
  • These declarations have to be made by MPs within 90 days of taking their seats in Parliament.

• Right to Information
  
  • Candidates need to furnish information whether he/she is accused of any offence punishable with imprisonment of 2 years or more in a pending case or has been convicted of an offence.

• Voting Through Postal Ballot
  • Any class of person can be notified by the ECI in consultation with the concerned government which can give their votes by postal ballot.

• Section 126 of the RPA, 1951
  
  • 48 hours before the polling ends or concludes, displaying of any election matter by television or similar apparatus in a constituency is prohibited.
  • Section 126 is not applicable to the print media, news portals and social media
    • Section 126A prohibits the conduct of exit poll and dissemination of its results during the period mentioned.

• Ceiling on Expenditure
  
  
  • A candidate contesting polls in large states can spend up to Rs 70 lakh in the Lok Sabha election and Rs 28 lakh in an Assembly election.

• Counting of Votes
  
  
  • At every election where a poll is taken, the votes are counted by, or under the supervision of the Returning Officer (RO), and contesting candidate, his election agent and his counting agents.
  • Destruction, loss, damage or tampering of ballot papers at the time of counting must be reported by the RO to the ECI.

• Corrupt Practices
  
  
  • All government or non-government officials are included within the scope of corrupt practices.
  • Bribery: Any gift/offer/promise or gratification to any person as a motive or reward.
  • Undue Influence: Any direct or indirect interference/attempt to interfere on the part of the candidate with the free exercise of any electoral right.
  • The publication by a candidate any statement of fact which is false in relation to the personal character/conduct of any candidate
  • The hiring or procuring of any vehicle by a candidate of any elector to or from any polling station.

• Promoting Enmity
  
  
  • Any person who promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India can be punished with imprisonment for a term which may extend to 3 years.
  • Prohibition of public meetings during a period of 48 hours ending with the hour fixed for the conclusion of the poll.

Disqualification of MPs and MLAs

The RPA, 1951 lays down certain rules for disqualification of MPs and MLAs.

• Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release.
  • • Even if a person is on bail after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.

• Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
  
  • • The Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires and held that the disqualification takes place from the date of conviction.

Other acts:

• Representation of the People (Amendment) Act, 1966
  • This Amendment abolished election tribunals. Election petitions were now transferred to High Courts.
  • But disputes in connection with the presidential and vice-presidential elections are heard directly by the Supreme Court of India.

Representation of the People (Amendment) Act, 1988

• This Amendment made provisions for the adjournment or countermanding of polling because of booth capturing and electronic voting machines (EVMs).
• Representation of the People (Amendment) Act, 2002
  • The 2002 amendment inserted Section 33A into the Act which provides for the right to information for people.
  • After this, voters have the right to know the antecedents of the candidates.
  • Contesting candidates are required to furnish information about the prior conviction of offences or whether they are accused of any offence while filing their nominations.
  • The amendment also included provisions for the declaration of assets and liabilities by the candidates.
• Representation of People (Amendment) Bill, 2010
  • This amending act confers voting rights to Indians who are NRIs.
  • The amendment, however, does not give NRIs the right to contest elections.
  • It also does not give NRIs the right to vote in absentia. They have to be present in their constituencies during polling.
•  

Representation of People (Amendment) Bill, 2017

• This bill, which was passed by the Lok Sabha, seeks to allow proxy voting for NRIs. 

Salient Features of RPA, 1951

The salient features of the Representation of People are described in this section.

• Only a qualified voter is eligible to contest for elections to the Lok Sabha and the Rajya Sabha.
• For seats that are reserved for the Scheduled Caste and Tribe communities, only candidates belonging to those categories can contest the elections.
• A person found guilty of any of the following shall be disqualified for a period of 6 years to contest elections after release from jail:
  • Promoting hatred and enmity between classes
  • Influencing elections
  • Bribery
  • Rape or other grave crimes against women
  • Spreading religious disharmony
  • Practising untouchability
  • Importing or exporting prohibited goods
  • Seling or consuming illegal drugs as well as other chemicals
  • Engaging in terrorism in any form
  • Have been imprisoned for at least two years
• The candidate can also be disqualified if he/she has engaged in any corrupt practice or excluded for related government contracts.
• Disqualification can also result if the candidate fails to declare his/her assets. The candidate must declare his/her assets and liabilities within ninety days from his/her oath-taking day.
• The Act requires all political parties to be registered with the Election Commission. Any change in the name and/or address of the party should be intimated to the Commission.
• A party can take donations from any individual or company within India, but not government-owned ones. And, contributions from foreign entities are not allowed.
• Every political party must report a donation over ₹20,000 received from any person or company.
• A party that gets a minimum of 6 per cent of the valid votes for assembly elections in more than four states or wins at least 2 per cent of seats in Lok Sabha from at least three states is recognized as a National Party.
• A party that gets a minimum 6 per cent of the votes in the state assembly elections or wins at least 3 per cent of total seats in the state assembly will be a state political party.
• Candidates should deposit Rs.25000 as security for the Lok Sabha elections and Rs.12500 for all other elections. Candidates belonging to the SC/ST communities get a 50% reduction in the security deposit.

What are the offences pertaining to elections defined in the RPA 1951?

1. Promoting hatred and enmity.
2. Breach of official duty and providing support to any candidate.
3. Booth capturing and removing ballot papers.
4. Engaging in the sale of liquor within 2 days before the conclusion of polling.
5. Announcing public meetings within 48 hours before voting and also causing disturbances.

Challenges

• False Disclosures: Even after the provision of the declaration of assets and liabilities in the RPA act, candidates do not disclose all the assets and provide wrong and incomplete information regarding their assets, liabilities, and income and educational qualifications.
• The Bureaucratization of Politics: In spite of the inclusion of several provisions aimed at making the ECI as an independent body,it is still dependent on the Union for financial matters that paves the way for political parties to manage to get the officers in their favour through money and muscle power.
• Dual Responsibility of the ECI: The ECI does not have independent staff of its own so whenever elections take place, it has to depend upon staff of Central and State Governments hence the dual responsibility of the administrative staff, to the government for ordinary administration and to the ECI for electoral administration is not conducive to the impartial and efficient functioning of the Commission.
• Misuse of Government Machinery: The RPAs lack clear provisions and guidelines on the matters related to the misuse of official machinery that gives an unfair advantage to the ruling party at the time of elections and leads to the misuse of public funds for furthering the prospects of candidates of a particular party.
  • The misuse of official machinery takes different forms, such as the issue of advertisements at the cost of government and public exchequer highlighting their achievements, disbursements out of the discretionary funds at the disposal of the ministers, use of government vehicles for canvassing etc.

Way Forward

• Restriction on Opinion Polls: By an amendment made to the RPA 1951, conducting and publishing results of exit polls have been prohibited.
  • There should be a similar prohibition or restriction on opinion polls also as several manipulated opinion polls could impact the voting pattern.
• False Declaration as Offense: The RPA ,1951 should be amended to include all the items related to the election disclosure in the affidavit and making false declarations in connection with the election to be an offence.
• Independent ECI: In order to curb the practice of bureaucratization of politics and to secure complete independence of the Election Commission, its expenditure should be charged on the Consolidated Fund of India.
• De-listing of Valid Electorates: Parliament must pass a law dealing with the serious problem of delisting of valid electors from electoral rolls because illiterate electorate residing in far villages cannot watch over the publication of electorate lists.

• State Funding of Elections: To minimise the role of money in elections, provisions should be made for state funding of elections.
  
  • A few government reports have highlighted the prospects of state funding of elections like
    • Indrajit Gupta Committee on State Funding of Elections (1998)
    • Law Commission Report on Reform of the Electoral Laws (1999)
    • National Commission to Review the Working of the Constitution (2001)
    • 2^nd Administrative Reforms Commission (2008)

The powers of the ECI are enormous and all-encompassing which even exceed the powers of the executive in all election-related issues during the course of the election period. Thereby giving it effective tools in dispensing free and fair elections, the only thing that lacks is will and integrity on the part of responsible officials. The ECI should become more prudent and proactive to ensure the fairness and transparency of the general election and wipe away any doubt regarding its integrity as an esteemed institution.