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E-NOTES

Class : B.A.LL.B/ BBA LL.B VIII Semester

Paper Code : LLB 410 B
Subject : Election Law

UNIT-III
Introduction

Nomination is the process of formally offering oneself as a candidate for any elective office. It goes
without saying that the person must be qualified and must not be disqualified under the
Constitution and the law for such candidate.

Before making up his mind to jump into the electoral fray, the intending candidate must satisfy
himself that he fulfills each of the prescribed qualifications and does not suffer from any of the
prescribed disqualification. In fact, law envisages that any person may be nominated as a candidate
for election to fill a seat in Parliament or a State Legislature, if he is qualified to be chosen to fill
that seat under the provisions of “the Constitution and the law (Section:32, 1951 Act)”. But if a
person is suffering from any disqualification, it will be a futile exercise to nominate him as a
candidate, for his candidature is liable to be rejected at the stage of scrutiny of nominations
[Section:36(2)(a)].

The law provides for a total period of eight days for filing nominations (starting from the date on
which the notification calling the election is issued and the last date prescribed for making
nominations, both the dates inclusive). However, no nominations can be filed on any intervening
holiday during this period of eight days.

The law also prescribed certain procedural requirements and formalities which must be duly
complied with, failing which the candidate will run the risk of being excluded from the electoral
race at the starting point itself.
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Forms of Nomination Paper

Every intended candidate for election to any House of Parliament or of a state legislature has to
formally offer his candidature in a form prescribed for the purpose, and in no other manner. Such
forms of nomination papers are prescribed in the 1961 Rules (Rule 4 and Forms 2A to 2E appended
to the said Rules).

Any of the forms appended to the 1961Rules can be used either in English or in any of the
languages used for the official purpose of the state in which the election is taking place [Rule
2(1)(g), 1961 Rules]. If an officially printed form is riot readily available, even handwritten,
typewritten, cyclostyled or privately printed copies of forms can be used. The Election Commission
has instructed all officers to freely accept all such forms so long as they have correctly copied so as
to exactly conform to the prescribed forms.

Candidate and Proposers

A candidate not necessarily be an elector in the constituency from where he is contesting election,
except for a few specified constituencies. But every proposer subscribing the nomination of a
candidate must be an elector registered in the same constituency from which the election is being
held. For any election to Parliament or State Legislature (except Jammu and Kashmir state
legislature), every nomination of a candidate must be subscribed by a prescribed number of
proposers. The underlying idea of certain proposers subscribing to a nomination is that there are
certain electors in the constituency who desire him to be chosen as their representative and his
nomination has come from the constituency itself. But it is not the requirement of the law that the
proposers of a candidate must also vote for him at the time of the Poll.

Under the law, a government servant cannot contest an election to parliament or a state legislature,
but there is no bar under the law prohibiting government servant from proposing the nomination of
a candidate.

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No seconder is required for nomination as a candidate for any election Parliament or a state
legislature. In the beginning, nominations for these elections needed seconders also, but that
provision in section 33 of the 1951 Act was dropped in 1956 by the Representation of the People
(Amendment) Act 1956.

For the House of the People and State Assemblies

Before the amendment of Section:33(1) of the Representation of the People Act,1951 in the year
1996, only one proposer was required to subscribe to the nomination of a candidate for an election
to the House of the People or to the State Assemblies. But, when the new provisions have been
inserted by the Representation of the People (Amendment) Act,1966, to the effect that whereas
only one proposer shall be sufficient to nominate a candidate who is set up by a recognised party at
an election, at least ten proposers shall be required to subscribe the nomination of a candidate who
is set up by an unrecognised political party or who stands as an independent candidate. The need
for this amendment was to curb the nomination of frivolous candidates.

For the Council of States and Legislative Councils

According to section 39(2)(aa) and the proviso to section 33(1) of the Representation of the People
Act, 1951, in case of any election to the Council of States or to a State Legislative Council, every
nomination paper of a candidates shall be subscribed by ten per cent of the elected members or of
the members of the Legislative Assembly of a State or of the members of the Electoral College of a
Union Territory, as the case may be, as ten members concerned, whichever is less, as proposers.

Requirement for Valid Nomination oOf Candidate

In order that a candidate is validly nominated, and his nomination does not suffer from any defects
at the time of scrutiny, the requirements which must be borne in mind and strictly observed may be
summed up as follows:

(a) The candidate must be qualified and must not be disqualified under the Constitution and the
law, on the date fixed for the scrutiny of nominations
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(b) The nomination must be made in the prescribed form of nomination paper, i.e., Form 2A-2E,
as may be appropriate, and duly completed in all respects.

(c) The nomination paper must be subscribed by the requisite number of electors as proposers

(d) The nomination paper must be signed both by the candidate and each of the proposers at the
appropriate places meant for such signatures;

(e) The nomination paper must be accompanied by the receipt showing that the requisite security
deposit has been made with the returning officer or in the Reserve Bank or a government
treasury, as the case may be;

(f) The nomination paper must also be accompanied by a certificate from the competent authority
showing that the candidate belongs to a scheduled caste or scheduled tribe, where he is
contesting election from a constituency in which the seat is reserved for the scheduled castes
or, as the case may be, scheduled tribes, or where he is claiming concession in the matter of his
security deposit for contesting election from a general constituency,

(g) The nomination paper must also be accompanied by a complete copy of the current electoral
roll or of the relevant part thereof or a certified copy of the relevant entries in such current
electoral roll in which the name of the candidate is registered, if he is contesting election from
a different constituency;

(h) The nomination paper must also be accompanied by a certificate from the Election
Commission in terms of Section 9 of the 1951 Act if the candidate was dismissed from
Government service and five years have not elapsed since the date of his dismissal:

(i) The candidate must also submit two affidavits - one in Form 26, and the second in the format
prescribed by the Election Commission by its order dated 27 March 2003-disclosing complete
information with regard to his convictions and pending criminal cases, if any, and also his
assets (along with the assets of his spouse/ dependents), his liabilities and educational
qualifications
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(j) The nomination paper duly accompanied by the aforesaid documents must be presented only to
the returning officer or the authorised assistant returning officer, only between 11:00 am and
3:00 pm on any of the dates prescribed for the purpose in the election programme notification
issued by the Election Commission, and only at the place specified for the purpose by the
returning officer in his public notice under section 31 of the 1951 Act

In addition, the candidate must make and subscribe the requisite oath or affirmation under the
Constitution as soon as may be, after the delivery of his nomination paper to the returning officer
and, in any event, before the commencement of the date of scrutiny of nominations.

Further, if a candidate claims to have been set up by a recognised political party, he must ensure
that the written intimation from the party in the forms prescribed for the purpose Forms A and B)
reaches the returning officer positively before 3:00 pm on the last date for making nominations.

If the candidate has taken care to ensure compliance with each of the above-mentioned
requirements, he can be reasonably sure of his nomination being accepted at the time of scrutiny of
nominations and his sailing through successfully during the first phase of the electoral.

Authority before whom Nomination Paper must be filed

Under the law, a nomination paper for any election must be presented to the returning officer for
the election (s 33(1), 1951 Act). It can also be presented to an assistant returning officer who has
been specifically authorised by the returning officer to receive nomination papers in the public
notice of election issued by him in Form I appended to the 1961 Rules. If more than one assistant
returning officer has been appointed by the Election Commission for any election, a nomination
paper delivered to an assistant returning officer other than the one specifically authorised by the
returning officer to receive the same in his aforesaid public notice shall not be deemed to have been
validly presented to the prescribed authority and shall be liable to rejection for failure to comply
with the provisions of Sections:33 [Section:36(2)(b) ibid]

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Period during which only Nomination Papers must be filed

The nomination, papers may be filed on any day specified for the purpose by the Election
Commission in its programme notification under section 30 of the 1951 Act [Section:33(1)ibid]. As
mentioned in the preceding chapter, a total period of eight days is prescribed for filing of
nominations, including the date on which the notification calling the election is issued.

But no nomination paper can be filed during the aforesaid period of eight days on any intervening
day which is a public holiday [Second provision to Section:33(1) ibid].

Time and Place for filing Nomination Papers

A nomination paper can be filed on any of the aforesaid days, but only between the hours of 11
o'clock in the forenoon (11:00 am) and three o’clock in the afternoon (3:00 pm) on any such day.
No returning officer or the authorised assistant returning officer can receive any nomination paper
either before or after the above-mentioned prescribed hours. No candidate can insist that a
nomination presented by him after 3:00 pm on any day should be received by the returning officer
and considered to have been presented to him on the following day. Failure to file nomination
paper within the prescribed time has been held by the Supreme Court to be a defect of substantial
character, rendering nomination paper liable to be rejected.

Further, the nomination papers must be presented to the returning officer or the authorised assistant
returning officer only at the place specified for the purpose in the aforesaid public notice of
election by the returning officer in Form I. No nomination paper can be delivered to the above
officers at any other place, even during the time and the period prescribed for the purpose. The
Election Commission has, therefore, instructed that all returning officers and authorised assistant
returning officers must remain present at the place mentioned in the public notice for receiving
nomination papers from 11:00 am to 3:00 pm on each of the days on which nominations can be
filed.

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In Hariramsingh v. Kamtapresad Sharma, AIR 1966 MP 255, the returning officer had specified the
district collectorate as the place for the receipt of nomination papers. In was held that the
nomination papers could be received by him anywhere in the collectorate and not necessarily in the
court room of the collectorate.

In order to avoid overcrowding inside the office of the returning officer, the Election Commission
has instructed that only the candidate, his propose and four more persons should be permitted to
enter the office of the returning officer for the purpose of presentation of nomination papers. The
Commission has further instructed that the maximum number of three vehicles of a candidate will
allowed to come within the periphery of 100 metres of the office of the returning officer at the time
the filing of nominations.

Manner of Presentation of Nomination Papers

A nomination paper shall be presented to the returning officer or the authorised assistant returning
officer either by the candidate himself in person, or by any of his proposers [Section 33(1), 1951
Act]. It cannot be presented by any other person, even if authorised in writing by the candidate or
the proposer. It can also not be sent by post or through any other means of communication, like fax
or e-mail.

Security Deposits to be made by Candidates

Every candidate to be duly nominated at an election has also to make, or cause to be made on his
behalf, a deposit of specified amount, commonly called the security deposit. Prior to August 1996,
it was a nominal amount fixed way back in 1951 at the time of enactment of the original 1951 Act.
The amount of such security deposit was only Rs.500 for an election to the House of the People,
and Rs.250 only for an election to the Council of States or for an election to a state legislative
assembly or state legislative council. However, it was felt that the amount of security deposit so
fixed in 1951 were too low and encouraged large number of frivolous candidates jumping into the
electoral arena in a lighthearted manner and without any serious intent to contest election. It was,

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therefore, considered necessary to raise these amounts of security deposit substantially so that the
non-serious candidates may not reduce the election contest to a mockery.

In one case of an election from Modakurichi assembly constituency in the State of Tamil Nadu in
1996, as many as 1,033 persons became contesting Candidates. Accordingly, the law was amended
in August 1996 by the Representation of the People (Amendment) Act 1996, to the effect that a
candidate shall have to make a security deposit of:

Rs. 10,000 (rupees ten thousand), for election to the House of the People [Section34(1)a), 1951
Act)

Rs. 5,000 (rupees five thousand), tor election to the Council of states [Section:39(2) r/w section
34(1)(b) ibid]

Rs. 5,000 (rupees five thousand), for election to a state legislative assembly or state legislative
council [Section 34(1)(b) and section 39(2)]

If, however, a candidate belongs to a scheduled caste or scheduled tribe, the amounts of security to
be made by him is half of the above-mentioned amount, irrespective of whether he is contesting
election from a general Constituency or reserved constituency [Section:34(1) ibid]

It is also relevant to note that only one security deposit is required to be made by a candidate even
if he has filed more than one nomination paper in the same constituency [proviso to Section 34(1)]
But if he contests elections from more than one constituency, he shall have to make separate
deposits in each such constituency.

Manner of making Security Deposit

The above referred security amount may be deposited or caused to be deposited by a candidate
either in cash with the returning officer at the time of the delivery of nomination paper or in
advance in the Reserve Bank of India or in a government treasury [Section 34(2) ibid]. Where the

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deposit has been made in the Reserve Bank or in a government treasury, a receipt issued by the
bank or the treasury in this behalf must be closed with the nomination paper [Section:34(2) ibid]

The Security deposit cannot be made by means of a cheque.

Disclosure by candidates of criminal antecedents, assets, liabilities and educational

qualifications-right to information of election.

In November 1995, the Government of India in the Ministry of Law, Justice and Company Affairs
requested the Law Commission to undertake comprehensive study of the measures required to
expedite hearings of election petitions. The Law Commission undertook suo motu exercise of
thorough review of the Representation of the People Acts with the underlying object to make the
electoral process more fair, transparent, and equitable. The Law Commission, in its 170th report to
the government submitted in May 1999, made several recommendations to amend the Constitution
of India, Representation of the People Acts of 1950 and 1951 and the Indian Penal Code 1860.
These recommendations, inter alia, suggested amendments to the law for the purpose of
disqualifying persons facing criminal charges, as also steps to be taken to obstruct the entry of
criminals into politics. One of the suggestions was that antecedents as also the assets of each
candidate at an election should be published before their nominations were accepted.

As nothing was done by the government for quite some time by way of implementing those
recommendations of the Law Commission, a writ petition by way of public interest litigation was
filed by the Association for Democratic Reforms before the Delhi High Court in December 1999.
The Delhi High Court, by its Judgment dated 2 November 2000, held that the court could not give
a direction to the government or Parliament to amend the law. Nevertheless, the high court held
that the electors had a right to information as part of their fundamental right of freedom of speech
and expression enshrined in Article 19(1)(a) so that they are aware of the criminal propensities and
activities of candidates and the persons with questionable backgrounds do not occupy seats in
Parliament and state legislatures.

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The high court, therefore, directed that the Election Commission shall secure to the voters the
following information pertaining to each of the candidates standing for to Parliament and state
legislatures and the parties they represent:

(a) Whether the candidate is accused of any offence(s) punishable with imprisonment? If so, the
details thereof.

(b) Assets possessed by a candidate, his or her spouse and dependent relations.

(c) Facts giving insight to candidate's competence, capacity, and suitability for acting as
parliamentarian or legislator including details of his/her educational qualifications.

(d) Information which the Election Commission considers necessary for judging the capacity and
capability of the political party fielding the candidate for election to Parliament or the state
legislature.

Scrutiny of Nomination

The scrutiny of nominations is a highly important function of the returning officer, as any lapse on
his part might ultimately result in the entire election being declared void. The law provides that if
the nomination of any candidate is improperly rejected by the returning officer at the time of,
scrutiny of nominations, the entire election shall be declared void by the high court on this ground
alone and the high court is not required to go into the question whether the candidate whose
nomination paper has been improperly rejected had any chance of success or whether such
rejection had any material effect on the result of election otherwise [see Section 100(1)(c), 1951
Act]. In such a case, the agony and frustration of the returned candidate whose election is declared
void for no fault of his, but on account of the lapse of the returning officer in the performance of
his functions can be better imagined than described.

In one such case of this nature, the election of the returned candidate from Solan assembly
constituency to the Himachal Pradesh legislative assembly was declared void by the High Court of
Himachal Pradesh on the ground that the returning officer of the constituency had improperly
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rejected the nomination papers of two candidates on unsustainable grounds. The Supreme Court, on
appeal, could also not come to the rescue of the unfortunate returned candidate

In Punit Rai v. Dinesh Chaudhary, the returning officer had grave doubts whether the candidate
belonged to a scheduled caste as claimed by him and the returning officer even decided to
criminally prosecute the candidate for producing a scheduled caste certificate. Still, he accepted his
nomination paper. The Supreme Court observed that his decision to accept the nomination paper
ran contrary to normal conduct of a prudent and responsible officer. On the above basis, the apex
court held that it could well be said without any hesitation that nomination paper of returned
candidate was improperly accepted by the returning Officer.

Date, Time and Place of Scrutiny of Nominations

The date of scrutiny of nominations is specified by the Election Commission in its programme
notification itself, and the returning officer has no discretion to change it. However, he has a
discretion under the law to fix the time and the place at which he may take up the scrutiny of
nominations on the date fixed for the purpose. The notice with regard to such time and place he has
to give both in the public notice of election issued by him in Form I appended to the 196l Rules and
also in the receipt which he has to give to each candidate in acknowledgement of having received
the nomination paper from him.

Persons who can be Present at Scrutiny of Nominations

The scrutiny of nominations has to be made by the returning officer in a totally transparent manner
in the presence of the candidates and their representatives. In addition to himself, every candidate
can take with him his election agent, one of his proposers and one other person to be present at the
scrutiny of nomination [Section:36(1), 1951 Act].

Conduct of Scrutiny Proceedings

The scrutiny of nominations is a quasi-judicial function of the returning officer, but that does not
give him the status of a court and though his duty is judicial in character, he is not to act as a
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judicial court in discharging it. The enquiry by the returning officer into the question of validity or
otherwise of a nomination paper is a summary enquiry [Section:36(2) ibid], and the rival
candidates do not have legal right to lead evidence as in a judicial proceeding, though the returning
officer may entertain any evidence either in support or rebuttal of any objection raised in regard to
any nomination paper. He must act independently in deciding about the validity or otherwise of a
nomination paper and cannot take any instructions or directions from any of his superior
authorities, including the Election Commission.

Who can object to Nomination

At the scrutiny of nominations, an objection in regard to the validity of nomination paper of a

candidate can be raised either by any of the candidates or by any of their proposers, election agents
or authorised representatives present. Such objection can also be raised by the returning officer suo
motu, if he has any doubt in respect of any nomination paper [Section: 36(2) ibid]

Grounds for Rejection of Nomination

The returning officer is authorised by law to reject the nomination of a candidate on the ground
that:

(a) on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is
disqualified for being chosen as member of Parliament or, as the case may be, of the state
legislature concerned under the Constitution or the law, or

(b) there has been a failure to comply with any of the provisions of Section 33 relating to
presentation of nomination papers in the prescribed form, duly completed in all respects and
subscribed by the required number of proposers, form, and within the in all prescribed time and
period, or by of the section required 34 relating to the making of the requisite security deposit in
the manner prescribed; or

(c) the signature of the candidate or any of his proposers on the nomination paper is not genuine
[Section:36(2) ibid]. Another defect of substantial character will be the failure to submit two
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requisite affidavits in pursuance of the above referred Supreme Court's orders dated 2 May 2002
and 13 March 2003.

Now that the nomination papers in most of the cases are required to be subscribed by more than
one proposer, the returning officer will not be justified in rejecting a nomination paper under clause
(c) above, merely on the ground that the signature of any of the proposers is not genuine, so long as
the number of the remaining proposers in relation to whose signatures no objection has been raised
does not go below the prescribed minimum number of requisite proposers for a valid nomination of
that candidate. The returning officer cannot permit signatures of ten proposers on the date of
scrutiny.

After the scrutiny of each nomination paper, the returning officer has to endorse his decision either
accepting it or rejecting it on each nomination paper. Where he rejects a nomination paper, he has
also to record in writing a brief statement of his reasons for rejecting the same [Section:36(6), 1951
Act]. But where he accepts it, he need not state the reasons.

The Supreme Court observed in Jeet Mohinder Singh vs. Harminder Singh Jassi, AIR 2000 SC
256, that on a plain treading of Section:36(6) it is clear that Parliament has chosen to treat the case
of acceptance of nomination paper differently from the case of rejection. While a decision as to
accepting or rejecting has to be endorsed on each nomination paper, the reasons are required to be
recorded in writing by making a brief statement thereof only in the case of rejection of nomination
There would be non-compliance of Section:36(6) merely because the returning officer had simply
endorsed acceptance on the nomination paper without recording in writing a brief statement of his
reasons for such acceptance.

Rejection of Nomination Paper only on Ground of Defect of Substantial Character

As the improper rejection of a nomination paper has a very serious consequence in law on the
outcome of the election as mentioned above, the returning officer has to be doubly sure of the
ground on which he decides to reject a nomination paper. The law directs him not to reject any

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nomination paper on the ground of any detect which is not of a substantial character [Section:36(4).
1951 Act]

Defects of Substantial Character

What is a defect of substantial character justifying the rejection of a nomination paper has been the
subject matter of consideration by the courts in a very large number of election petitions and
election appeals. By a catena of decisions of the apex court, the law has crystallised that there are
some defects which are curable at the stage of scrutiny of nominations and the returning officer can
allow such defects to be rectified at that stage and are not considered to be defects of substantial
character. But there are several material defects which cannot be cured at that stage and may entail
rejection of the nomination paper being defects of substantial character.

The foregoing discussions will show that:

(a) the failure to declare age in the nomination paper;

(b) failure to sign the nomination paper by the candidate or by any of his proposers in the manner
prescribed;

(c) failure to comply with the requirement to produce the evidence of being a registered elector
where a candidate is contesting election from a different constituency; and

(d) failure to submit the written authorisation within the prescribed time and in the prescribed
forms from the party where a candidate claims to have been set up by a recognised national or state
political party, have been held by the Supreme Court to be defects of substantial character. There
are several other defects too which have been held by the courts to be defects of substantial
character."

Withdrawal of Nomination Paper

Every candidate who has been validly nominated has a right further to reconsider and make up his
mind whether he finally wants to contest the election or not. In some cases, the political parties also
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come so certain electoral adjustments or understanding with other parties at the last moment
whereby they decide ultimately not to field their candidates in any particular constituency and the
candidates set up by them withdraw from the contest, unless they choose to become rebel
candidates. Therefore, the law permits the withdrawal of candidatures by those candidates who
decide for any reason not to remain in the electoral fray. There was some ambiguity earlier whether
the candidature could be withdrawn by a candidate even before the scrutiny of nominations The
Election Commission took the view that the question of withdrawal of candidature would arise
only in respect of that candidate whose nomination was found valid on scrutiny and, therefore, the
withdrawal of candidatures was a stage subsequent to the scrutiny of nominations. In order to
remove the above ambiguity, the form(form 5 appended to the 1961 Rules) in which the candidate
has to give notice of withdrawal of his candidature was itself amended on 4 August 1984, to clarify
that such Notice was being given by a 'candidate validly nominated’.

Period for Withdrawal of Candidatures

Any validly nominated candidate may withdraw his candidature by giving notice in writing to that
effect up to 3:00 pm on the last date fixed for the withdrawal of candidatures in the programme
notification issued by the Election Commission [Section:37(1), 1951 Act]. By law, such last date
for withdrawal of candidature shall be the second day after the date of scrutiny of nominations or,
if that day is a public holiday, the next succeeding day which is not a public holiday [Section:30(c)
ibid]. But the law is silent as to the time up to which the candidatures may be withdrawn on any
intervening day, that is to say, on the date of scrutiny of nominations or the day immediately
following that day.

The Election Commission has clarified that the withdrawal of candidatures on these days can be
made during the normal working hours of the office of the returning officer, and not necessarily up
to 3:00 pm on those days.

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 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)

Form of Notice of Withdrawal of Candidature

As mentioned above, the notice for withdrawal of candidature has to be given in writing and
subscribed by the candidate himself in Form 5 appended to the 1961 Rules. Notice in any other
form shall not be taken cognizance of by the returning officer.

Voters Right to Know the Antecedents of Candidate

The voters right to know the antecedents of the candidates is based on interpretation of the
candidates is based on the interpretation of article 19(1)(a) which provides that all citizens of this
country would have fundamental right to “freedom of speech and expression”. Voters have the
right under article 19(1)(a) to know the antecedents of the candidates contesting election.

Such transparency will imply that the voters make an educated decision when voting, which is
important to democratic participation. If a progress report is availablevto each and every individual,
it will improve the electoral system and regain public trust in the democratic process of electing
representatives.

CASE- People’s Union for civil liberties V. Union of India- AIR 2003 SC 2363

The SC directed the Election Commission to call for the following information on affidavit by
issuing necessary order in exercise of its power u/Art 324 of the constitution from each candidate
seeking election to parliament or state legislature as a necessary part of his nomination paper.

CASE- Public Interest Foundation V Union of India- 2018

The SC stated that it cannot exonerates candidates that have been charged with criminal offences
from elections. The court proposed that parliament lay down legislation to curtail the growing
criminalization of politics.

Campus: Plot No. OCF, Sector A-8, Narela, Delhi-110040

Ph: 91-11-27284333 / 34. Toll Free No. : 1800117677. Website: www.cpj.edu.in.
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)

Laws on the Election Symbols and Recognition af Political Parties

Election symbols

An electoral or election symbol is a standardized symbol allocated to a political party. They are
used by the parties during their campaigning and are shown on Electronic Voting Machines
(EVMs), where the voter chooses the symbol and votes for the associated party. They were
introduced to facilitate voting by illiterate people, who can’t read the name of the party while
casting their votes.

Election Symbols (Reservation and Allotment) (Amendment) Order, 2017 contained the list of the
national and state parties with their respective symbols, list of registered unrecognized parties, list
of free symbols, images of reserved symbols of national and state parties and also the list of
registered unrecognized parties under Para 10/10A of the Order and the symbols allocated to them
when they were recognized.

Allotment of Symbols

Election symbols are simple images that are easily recognizable by the general mass of voters.
Each symbol represents either a political party or an independent candidate and helps the voter to
identify the contender that they intend to vote for. This is essential because not all voters are
literate, and it helps people to instead rely on the symbol and easily identify the party to vote for.

The symbols are allotted to parties by the Election Commission of India. And the provisions for the
specification, reservation, choice and allotment of symbols are provided in the Election Symbols
(Reservation and Allotment) Order, 1968.

Disputes in Election Symbols

The dispute regarding election symbols erupts when there is a conflict within a political party
which leads to the split of the party. Then, both the factions fight for the reserved symbol of the
party. It was held in Sadiq Ali and Another v. Election Commission of India AIR 1972 SC 187 that

Campus: Plot No. OCF, Sector A-8, Narela, Delhi-110040

Ph: 91-11-27284333 / 34. Toll Free No. : 1800117677. Website: www.cpj.edu.in.
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)

symbol is not a property that can be simply divided between two owners. So, the dispute regarding
electoral symbols is resolved by the Election Commission of India. The EC’s power to adjudicate
disputes regarding allotment of election symbols is drawn from Article 324 and Rule 5 of the
Conduct of Election rules, 1961. Also, Para 15 of the Symbols Order talks about the power of the
Commission to split rival factions of a recognized political party. It says that when Commission is
satisfied that there are rival factions within a recognized political party, each of whom claiming to
be that party, the Commission on the basis of relevant facts and circumstances of the case and
hearing the representatives from both the factions, decides that one such rival faction or no such
faction is that recognized party and the decision of the Commission is final on all such sections.
The Supreme Court decided that the EC is a tribunal and its decision regarding derecognition of a
party or allocation of symbols in case of dispute could be challenged only by appealing to the
Supreme Court under Special Leave Petition. But later, it was decided that it can be challenged in
High Courts too. For disputes within registered but unrecognized parties, the EC generally advises
them to solve their disputes amicably or to approach the court.

How does the Election Commission decide on party symbol disputes?

Under Paragraph 15 of the Symbols Order, the EC has the exclusive authority to decide on issues
over merger or split of a party. The EC decides disputes among rivals factions of a recognized
political party staking claim to its symbol and name.

Before 1968, EC used to issue executive orders and notifications under the Conduct of Election
Rules, 1961. The first case of a dispute of party symbols was brought by the Communist Party of
India. One of the factions approached the EC and asked it to recognize it as CPI (M). It presented
the list of its MPs and MLAs. At that time, the EC decided to recognize this faction as CPI (M), as
it was satisfied that its MPs and MLAs secured more than 4% votes in three states, Andhra
Pradesh, Kerala, and West Bengal.

Campus: Plot No. OCF, Sector A-8, Narela, Delhi-110040

Ph: 91-11-27284333 / 34. Toll Free No. : 1800117677. Website: www.cpj.edu.in.
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)

Registration of political parties

The issue of registration and de-registration of political parties has always been in question. In
1988, the Representation of People’s Act was revised to include Section 29A, which says that the
parties, in order to enjoy the benefits of the Act, need to register themselves with the Election
Commission within the period described in the statute. The compelling parties seeking registration
need to furnish documents along with the particulars of their policies and programmes.

The Representation of People’s Act, 1951 was enacted on the ground to ensure just and free
elections across the nation. This act makes provisions for the conduct of the election in the country
in an impartial manner.

Recognition of political parties

After seeking registration, the next thing that political parties seek is recognition. Recognition of
political parties as State or National Party is endowed with several benefits like getting a reserved
symbol, placement of their names at the top of the ballot paper, and other economic benefits. The
recognition of political parties is governed through Paragraph 6 of the Symbols Order.

Advantages of being recognized as a state or national party

There are certainly many benefits of being a recognized state or national party. The biggest
advantage of being recognized is getting the reserved symbol. If a political party is recognized as a
state party, it becomes entitled to the exclusive allotment of its reserved symbols to the candidates
set up by the said party in states in which it is recognized. It can also allocate symbols to its
candidates in other states and UTs, by fulfilling the conditions mentioned in Para 10. And if it’s a
National Party, it exclusively allocates its symbol to the candidates set up throughout the country.
Recognized parties need only one proposer for filing the nomination and they also get two sets of
electoral rolls free of cost at the time of the revision of rolls. Their candidates also get one copy of
the electoral roll free during General Elections. They are also entitled to broadcast or telecast
facilities over Akashwani or Doordarshan during elections.

Campus: Plot No. OCF, Sector A-8, Narela, Delhi-110040

Ph: 91-11-27284333 / 34. Toll Free No. : 1800117677. Website: www.cpj.edu.in.