Election and Representation

In a small group everyone can take part in every decision. A country of more than a billion people cannot work that way. So the people rule through representatives whom they elect, and the method used to choose those representatives is the election.

Two basic decisions about elections cannot be left to any government because the party in power could bend them in its own favour. The first is the method of election. The second is who will run the elections. For this reason the Constitution settles both.

A direct democracy lets citizens decide everything themselves, as the small city-states of ancient Greece did. This cannot work for a vast country. So India uses indirect democracy. The people elect representatives to govern on their behalf. Elections by themselves do not make a country democratic. Even undemocratic rulers hold elections to look legitimate. What matters is that the elections are free and fair.

India uses the First Past the Post system. The country is divided into many constituencies, and each one elects a single representative. The candidate who wins the most votes wins the seat, even without a majority.

This can look unfair. In the Lok Sabha election of 1984 the Congress won about 48 per cent of the votes but more than 80 per cent of the seats. The makers of the Constitution still chose this system for good reasons. It is simple to understand. It lets voters choose a known local candidate. It usually gives a clear majority and so a stable government.

There is another system called Proportional Representation. Here each party wins seats in proportion to its share of votes. So a party with a quarter of the votes wins about a quarter of the seats. Israel and the Netherlands use it. Voters there choose a party rather than a single candidate. Proportional representation is not needed everywhere. In a stable two-party system, First Past the Post already produces broadly representative outcomes, so PR adds little there. Some countries combine the two methods in a mixed system. Italy, for example, filled 75 per cent of the seats in both Houses of its Parliament by First Past the Post and the remaining 25 per cent by proportional representation. India uses a form of proportional representation for some indirect elections:

• Rajya Sabha members are elected by the elected members of the State legislative assemblies, by proportional representation through the single transferable vote (Article 80(4)). Nominated MLAs do not vote in this. The Lok Sabha and the state assemblies, by contrast, are filled by First Past the Post, not PR.
• The President is elected by an electoral college (the elected members of both Houses of Parliament and of the state and certain UT assemblies) through proportional representation by the single transferable vote (Article 55, manner of election of the President), and the Vice President the same way by both Houses of Parliament (Article 66, election of the Vice-President).

The makers of the Constitution rejected proportional representation for the Lok Sabha for two reasons. First, it presupposes widespread literacy. Second, it tends to fragment the legislature into small groups, making stable government harder.

First past the post can leave small and scattered groups without any representative. To prevent this, the Constitution reserves some seats. In a reserved constituency every voter votes as usual, but only a candidate from the named group may contest. Seats are reserved for the Scheduled Castes and the Scheduled Tribes in proportion to their share of the population. An independent Delimitation Commission decides which constituencies are reserved.

The arithmetic follows population shares. The Scheduled Castes form roughly 15 per cent, about one seventh, of the population. So a state with 42 Lok Sabha seats has about 6 of them reserved for the Scheduled Castes. ST reservation concentrates where tribal populations are large. Madhya Pradesh has the largest number of ST-reserved Lok Sabha seats among the states.

This reservation is a temporary provision. It was originally meant to lapse after a set period but has been extended repeatedly. The deadline now stands at 80 years from the commencement of the Constitution (Article 334, as last extended by the 104th Amendment Act, 2019). That same amendment also removed the earlier nomination of Anglo-Indians to the Lok Sabha and assemblies.

The number of seats itself has also been revised over time. The 7th Amendment (1956), which followed the reorganisation of states, and the 31st Amendment (1973) readjusted the allocation of Lok Sabha seats elected from the States.

Articles:

• Article 330: reservation of seats for the Scheduled Castes and Scheduled Tribes in the Lok Sabha (in proportion to their population).
• Article 332: reservation of seats for the Scheduled Castes and Scheduled Tribes in the state legislative assemblies.
• Article 334: these reservations are temporary. They now expire 80 years after the Constitution began (104th Amendment, 2019).
• Article 82: after each census, Parliament by law readjusts (delimits) the constituencies. The population figures are frozen at the 2001 census until the first census after 2026 (84th and 87th Amendments).

Delimitation means drawing constituency boundaries and deciding which seats are reserved. This is done not by the Election Commission but by a separate, high-powered Delimitation Commission set up by Parliament under a Delimitation Act. Four such Commissions have been constituted so far, in 1952, 1962, 1972 and 2002. Each is chaired by a retired Supreme Court judge, with the Chief Election Commissioner and the State Election Commissioners as members.

Its orders carry exceptional finality:

• They have the force of law and cannot be challenged in any court. This is a deliberate design so that election timetables are not held up by litigation.
• Its draft orders are only laid before the Lok Sabha and the State Legislative Assembly. The legislators cannot make any modification to them.

Article 324 puts elections to Parliament, the state legislatures, and the offices of the President and Vice President in the hands of an independent Election Commission. This independence is the key to a free and fair vote. The Constitution shields the Commission in three main ways:

• Security of tenure for the CEC. The Chief Election Commissioner can be removed only in the same manner and on the same grounds as a Supreme Court judge. That requires a special majority in each House of Parliament on the ground of proved misbehaviour or incapacity. So the ruling party cannot simply push out an officer who refuses to favour it.
• Wide working powers. The Commission prepares the voters' list, fixes the election schedule and enforces a model code of conduct.
• Power to act when a fair poll is at risk. It can even postpone or cancel a poll if a free and fair election is not possible.

This last power was tested in 2002. The Commission deferred the Gujarat Assembly elections on the ground that a free and fair poll was not then possible. The President referred the matter to the Supreme Court under Article 143, the provision that lets the President seek the Court's advisory opinion on any question of law or fact of public importance. The Court upheld the Commission's control over the election schedule.

It is worth being precise about what kind of right an election creates. The right to vote and to be elected is a constitutional right. It flows from Article 326 (universal adult suffrage) and the Representation of the People Act, 1951. It is not a Fundamental Right and not a common-law natural right. Parliament can therefore lay down who may vote and who is disqualified.

No election system is perfect. Reformers keep suggesting improvements. Some want a shift towards proportional representation. Others want stricter limits on the use of money and a bar on candidates who face serious criminal charges. Laws alone cannot do everything. Free and fair elections also need alert citizens and honest candidates who respect the spirit of democracy.

A long-standing demand was the reservation of seats for women in Parliament and the state legislatures. Note the legal route this requires. Reserving seats needs a constitutional amendment, just as SC and ST reservation rests on Articles 330 and 332. Political parties, by contrast, may voluntarily give a share of their election tickets to women without any amendment at all. The demand was finally met by the 106th Amendment (2023), which reserves one third of the seats in the Lok Sabha and the state assemblies for women.

The reform debate sharpened in the coalition era, when thin majorities raised worries about money power, booth capturing and defections. The National Front government of V.P. Singh set up the Dinesh Goswami Committee (1990) specifically to recommend electoral reforms. Its report dealt with the conduct of elections as a whole: curbing election expenditure, providing limited state funding of elections (a practice already followed abroad: Germany and Austria fund elections from the state treasury), tightening the anti-defection law (the Tenth Schedule rule that disqualifies legislators who switch parties), and strengthening the Election Commission. Remember the committee by its subject. It had nothing to do with bank de-nationalisation, North-East insurgency or the Chakma refugees. It is the standard reference point for electoral reform proposals of the early 1990s. Several later changes, such as stricter expenditure monitoring and the use of electronic voting machines (EVMs), grew out of this reform debate.

• Composition: the Constitution leaves the number of Commissioners to the President to fix (Article 324(2)). For most of its history the Commission was a single-member body (just the CEC). It became a permanent multi-member body from 1 October 1993. It now has the Chief Election Commissioner (CEC) and two Election Commissioners, all appointed by the President. The three are equal and decisions are taken by majority.
• Removal: the CEC has the security of tenure already described, removable only like a Supreme Court judge. The other two Commissioners enjoy less protection. They can be removed by the President only on the CEC's recommendation. This too is a deliberate shield for independence.
• Election petitions: an election can be questioned only by an election petition. It is filed before the High Court, with appeal to the Supreme Court (Article 329(b), bar on courts in electoral matters except through petition). Disputes over the President's and Vice President's own election go straight to the Supreme Court (Article 71, disputes relating to elections of President and VP).
• Model Code of Conduct: the moment elections are announced, the Commission enforces this code on parties and candidates. It bans new schemes and misuse of office. The code is not a statutory law.

Articles:

• Article 324: superintendence, direction and control of elections is vested in an independent Election Commission.
• Article 325: one general electoral roll for every constituency, with no exclusion on grounds of religion, race, caste or sex.
• Article 326: elections to the Lok Sabha and the state assemblies are held on universal adult suffrage (voting age 18).
• Articles 327–328: the power of Parliament and of the state legislatures to make laws regulating elections.
• Article 329: bar on courts interfering in electoral matters, except through an election petition.

The Constitution lays down the framework, but the working detail of elections comes from a law of Parliament: the Representation of the People Act, 1951 (the RPA, 1951). It governs the actual conduct of elections, the qualifications and disqualifications of candidates, the registration of political parties and the resolution of disputes. A companion law, the Representation of the People Act, 1950, deals with electoral rolls and the allocation of seats.

The Act fixes how an election formally begins. The Election Commission recommends the election schedule, but the formal notification calling the election is issued by the President for the Lok Sabha and by the Governors for the state assemblies. The Commission then conducts everything that follows, from nominations to counting.

The rules for candidates are precise and frequently tested:

• Nomination: to contest a Lok Sabha seat, a candidate must be an elector, that is, a citizen whose name appears on the electoral roll of some parliamentary constituency in India. It need not be the constituency being contested, and mere residence is not enough.
• Security deposit: every candidate deposits money that is forfeited on a poor showing. For the Lok Sabha the deposit long stood at Rs 10,000 for general candidates and Rs 5,000 for SC/ST candidates. A 2009 amendment later raised these to Rs 25,000 and Rs 12,500. The deposit is forfeited if the candidate polls less than one sixth of the valid votes.
• Disqualification on conviction: a person sentenced to imprisonment for two years or more is disqualified from contesting for the period of the sentence and for six years after release. The bar is not permanent. Note a related trap: the Constitution allows a non-legislator to be a minister for six months (Article 164(4), ministers in states), but the person must be qualified for election to the legislature. Being merely eligible to vote is not enough.
• Registration of parties: the Act provides for the registration of political parties, and the Election Commission carries out this registration. The Commission also recognises parties as national or state parties. A national party is one recognised in four or more states. In the 1999 general election there were six national parties and 48 recognised state parties.

The Representation of the People (Amendment) Act, 1996 tightened several rules. A conviction under the Prevention of Insults to National Honour Act, the law that punishes insulting the national flag or the Constitution, now disqualifies a person from contesting for six years from conviction. The amendment increased the security deposit for Lok Sabha elections. It also provided that an election is not countermanded merely because a contesting candidate dies. One common misreading: the 1996 amendment did not restrict a candidate to a single constituency. A candidate may still contest from up to two constituencies, though not more.

Several reforms since the Goswami-era debate described under electoral reforms have tightened the system:

• NOTA ("None of the Above", from 2013) lets a voter reject every candidate.
• VVPAT machines give a paper trail to verify the electronic vote.
• Candidates must disclose criminal cases and assets (on Supreme Court orders). This is only a partial answer to the demands noted earlier: an outright bar on candidates facing serious criminal charges remains a proposal, not law.