The Prayas ePathshala

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17 May 2024 – The Indian Express


Victory in Election without any Opposition

  • The nominee of the ruling party for the Gujarati Lok Sabha seat, Surat, has been proclaimed elected without any opposition. When there is just one contender remaining in the race after all other contenders withdraw their nominations or are disqualified, this can occur. When this happens, there is no need for a formal election; one candidate is proclaimed the victor. There is a winner in this situation, but there isn’t a “vanquished” party. Only those who choose to “voluntarily” withdraw and those who are excluded by the Rules are present.
  • Under the current electoral laws and practices, winning an election without facing opposition is quite legitimate. Because there is just one option on the ballot, that candidate becomes the undisputed representation of the people even though the electorate hasn’t chosen him or her. It’s like accomplishing a goal without putting in the necessary work. At least 35 candidates have been elected to the Lok Sabha without facing any opposition. The last one was in 2012, while the bulk occurred in the first 20 years following independence.
  • The returning officer (RO) shall… cause a copy of the list of contesting candidates to be affixed in some conspicuous place in his office and, where the number of contesting candidates is equal to, or less than, the number of seats to be filled, he shall, immediately after such affixation, declare under sub-section (2) or, as the case may be, sub-section (3) of section 53 the result of the election in such one of the Forms 21 to 21B as may be appropriate.” This is stated in Rule 11 of the Conduct of Election Rules 1961.

Election Conduct Regulations of 1961:

  • Public Notice of Intended Election: In accordance with Section 31’s requirements, the returning officer may publish the Form 1 public notice of an intended election in any way the returning officer deems appropriate, subject to Election Commission directives.
  • Nomination Paper: Each nomination paper submitted in accordance with section 33, subsection (1), must be filled out using one of the forms 2A through 2E, depending on the situation.
  • As long as the declaration about symbols in a nomination document in Form 2A or Form 2B is completed, it will not be considered a defect of a major character as defined by subsection (4) of section 36.
  • Type of Affidavit to Be Filed at Nomination Paper Delivery: The candidate, or his proposer, if applicable, must also present the returning officer with an affidavit in Form 26 that has been sworn before a Magistrate of the First Class or a Notary at the same time that they deliver the nomination paper to him in accordance with subsection (1) of section 33 of the Act.
  • Symbols for Elections in Parliamentary and Assembly Constituencies: The Election Commission will specify the symbols that candidates may choose in elections in parliamentary or assembly constituencies, along with the limitations that will apply, by publishing a notice in the Indian Gazette and the Official Gazette of each State.

What’s the problem right now?

 Reaction to the Nomination of the Opposing Party Candidate:

  • In this instance, the opposition party’s candidate for the Surat seat had submitted three sets of nomination documents. His brother-in-law, nephew, and business partner were the ones who proposed these three nomination papers. A staffer for the ruling party protested the other candidate’s nomination, claiming that the proposers’ signatures were falsified.
  • Rejecting the Papers Nominated:
  • Affidavits from the proposers asserting that they had not signed the candidate’s nomination papers were also sent to the RO. Within a day, the applicant was asked to respond to or provide clarification on the points brought up. All three sets of nomination papers were rejected because the proposers could not be brought before the RO in time for examination.

Officers who return:

  • Returning Officers (ROs) are in charge of monitoring how elections are conducted in a specific constituency. They are vital to the electoral process and are appointed by the Election Commission of India (ECI).
  • They are responsible for receiving nominations from candidates, reviewing nomination papers, assigning symbols to each candidate, running the polls, and tallying the results. Elections are handled impartially, equitably, and legally thanks to the oversight of ROs.
  • Other Nomination Papers Rejected as Well:
  • A political party may field a replacement candidate in accordance with the election regulations. In the event that the original candidate’s nomination is denied, this replacement candidate’s candidature will be accepted. The opposition party had put forward a stand-in candidate in this instance.
  • But for the same reason—that is, the proposer’s signature wasn’t authentic—the alternative candidate’s nomination paper was also turned down. The nominee of the ruling party was proclaimed the winner as the other nominations were either withdrawn or rejected.

 What is the Indian Nomination Law?

 Part 33 of the RPA, 1951:

  • The conditions necessary for a legitimate nomination are outlined in Section 33 of the Representation of the People Act, 1951 (RP Act). An elector above 25 years of age may run for the Lok Sabha from any Indian seat under the RP Act.

Advocates for Official Political Parties:

  • However, the candidate’s proposer(s) must be an elector from the constituency in which the nomination is being filed. If the candidate is from a recognised party (national or state), they must have one proposer.

Proposers of Political Parties That Are Not Recognised: 

  • Ten proposers must certify candidates proposed by independents and unrecognised parties. Up to four nomination papers from various sets of proposers may be submitted by a candidate. This will allow a candidate to be nominated even if just one set of nomination papers is required.
  • The rules for the Returning Officer’s (RO) examination of nomination papers are outlined in Section 36 of the RP Act. It states that a nomination cannot be denied by the RO for a flaw that is not very serious.
  • It does, however, state that rejection is permitted if the proposer’s or candidate’s signature is determined to be fraudulent.

What are the Common Issues in the Unopposed Candidate Election? 

Issues with NOTA Voters:

  • It is questioned if voters are able to use the None of the Above (NOTA) option throughout this process. Originally not included in the legislation, the NOTA option was added in response to court orders to “enlighten” political parties and candidates regarding public perceptions of them.
  • To those who believe otherwise, it may seem offensive to hear that NOTA has no bearing whatsoever on the electoral process. Unfortunately, it doesn’t even appear to have any kind of impact on political parties.
  • This means that the progressive reform that was intended to change the political culture now hovers over the system in a way that makes it less legitimate.

Understanding the General Financial Regulations (GFRs): 

  • The General Financial Rules (GFRs), a set of directives from the Indian government that must be adhered to by everyone when handling problems pertaining to public finances, describe public procurement as “a fair, transparent, and reasonable procedure.”
  • For example, Rule 166 allows for a “Single Tender Enquiry,” which may be used in the event of an emergency, if the supplier is the original manufacturer, or if standardisation is technically required.
  • The absence of competition “shall not be determined solely on the basis of the number of bidders,” as Rule 173(20) states. Even in the event that only one bid is received, the procedure may still be deemed legitimate as long as the request for bids was adequately publicised, enough time was allowed for bids to be submitted, the qualifying requirements were not overly onerous, and the prices were fair when compared to the going rate in the market.

Undermining Voters’ Significance:

  • The process of selecting his representative is, in a sense, entirely removed from the “elector,” who is described in the RPA as “a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications.”
  • Legislation on behalf of the entire constituency would be made in Parliament by a person without a single vote. The current electoral procedure produces this duality. Despite the fact that it doesn’t seem totally fair, it is intended to be practical. Voters have no choice, thus their choice is assumed unless there is a contradictory demand on their vote.

Evaluating the Severe Circumstance: 

  • In a worst-case scenario, every candidate running in each of the 543 parliamentary constituencies (even if 10,000 of them are independents or members of various political parties) could manipulate the system to deny a billion voters their statutory right while still following the legal process and gravely undermining democracy.
  • One could argue that in the event that there are no candidates to challenge, voters may likewise be deprived of their right. Only when there is interest among candidates and voters does the democratic process succeed. To cast a vote, one must go out and get one.

Uncertainty Clause Under Section 65 of the RP Act of 1951: 

  • The RPA stipulates that a complete boycott will be interpreted as everyone receiving zero votes and covered under Section 65, which addresses “Equality of votes,” which tilts the odds in favour of the candidates running for office.
  • The text states: “The RO shall immediately decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote, if, after the counting of the votes, it is found that an equality of votes exists between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected.”
  • The expediency of the system takes precedence over the will of the people when deciding who will speak for those who abstained from the process. Given that democracy is characterised as a “government of the people, by the people, and for the people,” it is inevitable.

What are the Various Options for Dealing with the Rejection of Nomination Papers?

Examining the Options for the Election Tribunal: 

  • Election Tribunals are established under the RP Act, 1951, to settle such issues. The Act’s Section 100 describes the conditions under which an election of a candidate may be ruled invalid. If parties are unhappy with the Election Tribunal’s ruling, they have the option to file an appeal with the High Court and, eventually, the Supreme Court. Through its rulings, the Supreme Court has set important precedents pertaining to election disputes.

Referring to Article 329 in conjunction with the RP Act of 1951:

  • Elections cannot be contested until a petition is filed with the relevant High Court, according to Article 329(b) of the Constitution as read with the RP Act, 1951. Incorrect rejection of nomination papers is one of the reasons for filing such an election petition.
  • Therefore, submitting an election petition to the Gujarat High Court is the available legal remedy. The RP Act mandates that High Courts try to wrap up these proceedings in six months, a deadline that has historically not been adhered to. Election petitions should be handled quickly; that would be a positive move.
  • Notwithstanding anything in this Constitution, no court shall challenge the legality of any legislation pertaining to the creation of constituencies or the distribution of seats among them that is made or seems to be enacted in accordance with articles 327 or 328;
  • No election to the House of Commons, the House of Representatives, or the House of a State Legislature may be contested unless an election petition is submitted to the proper body and processed in accordance with any guidelines established by the relevant Legislature.

Trial of Election Petition – RP Act, 1951, Section 86:

  • An election petition will be directed to the Judge or one of the Judges designated by the Chief Justice for the trial of election petitions under subsection (2) of section 80A as soon as possible after it has been submitted to the High Court.
  • Unless the High Court determines that a trial adjournment beyond the next day is required for reasons to be recorded, the trial of an election petition shall, to the extent that it is feasible and consistent with the interests of justice in relation to the trial, be continued day by day until its conclusion.
  • Every election petition will be heard as quickly as practicable, and efforts will be made to wrap up the proceedings within six months of the date the petition was submitted to the High Court.

Proceeding to the Supreme Court:

  • Within 30 days of the High Court’s ruling, the harmed party may appeal to the Supreme Court:
  • The Supreme Court held in the landmark decision on election disputes, Jagan Nath v. Jaswant Singh, 1954, that the petitioner bears the burden of demonstrating how corrupt acts have materially affected the candidate’s election. The court also made it clear that the grounds listed in Section 100 of the RP Act, 1951 are the only ones that can be the subject of an electoral petition.
  • The Supreme Court held in Mohinder Singh Gill v. Chief Election Commissioner (1978) that fair elections must be held, and that any election that fails to adhere to this criterion is void. The election tribunal’s authority to look into claims of corrupt behaviour, even if they aren’t included in the election petition directly, was also upheld by the court.

Modifying the FPTPS (First-Past-the-Post System):

  • If no candidates file their nominations the first time, the RPA, 1951 calls for sending out another notification; nevertheless, if the same situation occurs again, nothing happens. That can be resolved, though, if people abstain from voting and are denied the opportunity to select NOTA because NOTA is meaningless in the democratic process.
  • Individuals cannot annul the procedure; candidates may. A minimum percentage of votes must be introduced to the first-past-the-post system in order for the winning candidates to be announced.
  • Likewise, in the event that no candidate stands for election a second time, the seat ought to move to the nominated category, in which the President of India may propose a candidate who meets the requirements without seeking approval from the government.
  • Upholding democratic norms in India requires a fair and transparent electoral process, which is jeopardised when candidates are proclaimed elected with no opposition. India can move towards free and fair elections by establishing strong institutions, thorough legal frameworks, and engaged citizen engagement. Maintaining the integrity of the electoral process requires cooperation from all parties involved, including the judiciary, political parties, and electoral authorities. India can ensure that the voice of the people continues to be the cornerstone of governance and fortify its democratic foundation by supporting the ideals of justice, transparency, and accountability.

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