#Representation of the people act Archives

Case title: ASSOCIATION FOR DEMOCRATIC REFORMS VS ELECTION COMMISSION OF INDIA AND ANOTHER

Case no.: WRIT PETITION (CIVIL) NO. 434 OF 2023

Dated on:26^th April 2024

Quorum: HON’BLE MR JUSTICE SANJIV KHANNA and HON’BLE MR DIPANKAR DATTA

FACTS OF THE CASE

The Association for Democratic Reforms (ADR), a non-governmental organization focused on electoral and political reforms, filed a petition against the Election Commission of India (ECI) and another respondent. The case was centered around the transparency and accountability in the electoral process, particularly regarding the disclosure of information by political candidates and parties.

ISSUES

Whether the Election Commission should mandate candidates to disclose their criminal antecedents, assets, liabilities, and educational qualifications.
whether the constitutionality and transparency of the electoral bonds scheme, which allows anonymous donations to political parties.

LEGAL PROVISINS

Article 324 of the Constitution of India: This article vests the power of superintendence, direction, and control of elections in India in the Election Commission.

Representation of the People Act, 1951: Sections 33A and 33B: These sections were added following a Supreme Court judgment and mandate candidates to file an affidavit declaring their criminal antecedents, assets, liabilities, and educational qualifications.

Section 29C: This section requires political parties to submit annual reports to the Election Commission disclosing donations above a certain threshold.

CONTENTIONS OF THE APPELLANT

The counsel for the petitioners, on 24.04.2024, drew our attention to a Wikipedia article which states that firmware is a software which provides low-level control of computing device hardware etc. It also states that programmable firmware memory can be reprogrammed via a procedure sometimes called flashing. Advocate for greater transparency in the electoral process to ensure that voters are well-informed about the candidates. Argued that non-disclosure of crucial information infringes upon the voters’ right to make an informed choice, a fundamental aspect of a democratic process. Challenged the electoral bonds scheme as it allows anonymous donations, leading to a lack of transparency and potential corruption. During the course of hearing, our attention was drawn to Rule 49MA which permits an elector to raise a complaint regarding the mismatch between the name and symbol of the candidate shown on paper slip generated by the VVPAT and the vote cast on the ballot unit. Such elector is required to make a written declaration to the presiding officer.

CONTENTIONS OF THE RESPONDENTS

The ECI maintained that it had taken steps towards increasing transparency but argued that certain limitations exist within the current legal framework. Defended the electoral bonds scheme as a measure to curb black money in elections, arguing that it provides a cleaner alternative to cash donations.

COURT’S ANALYSIS AND JUDGEMENT

We could have dismissed the present writ petitions by merely relying upon the past precedents and decisions of this Court which, in our opinion, are clear and lucid, and as repeated challenges based on suspicion and doubt, without any cogent material and data, are execrable and undesirable. However, we would like to put on record the procedure and safeguards adopted by the ECI to ensure free and fair elections and the integrity of the electoral process. For this purpose, we shall refer to and take on record the features of EVMs.14 Lastly, we would give two directions, and take on record suggestion(s) for consideration of the ECI. I also wish to observe that while maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress. Instead, a critical yet constructive approach, guided by evidence and reason, should be followed to make room for meaningful improvements and to ensure the system’s credibility and effectiveness. Be it the citizens, the judiciary, the elected representatives, or even the electoral machinery, democracy is all about striving to build harmony and trust between all its pillars through open dialogue, transparency in processes, and continuous improvement of the system by active participation in democratic practices. Our approach should be guided by evidence and reason to allow space for meaningful improvements. By nurturing a culture of trust and collaboration, we can strengthen the foundations of our democracy and ensure that the voices and choices of all citizens are valued and respected. With each pillar fortified, our democracy stands robust and resilient. I conclude with the hope and trust that the system in vogue shall not fail the electorate and the mandate of the voting public shall be truly reflected in the votes cast and counted. empowered to adopt a flexible approach in such cases, acknowledging their far-reaching public interest ramifications. The writ petitions and all pending applications, including the applications for intervention, are disposed of in the above terms.

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Judgement Reviewed by – HARIRAGHAVA JP

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Title: Mohammed Feroz Khan v. Election Commission of India

WP.No.28593 of 2023

Decided on: 12/10/2023

CORAM: THE HON’BLE CHIEF JUSTICE ALOK ARADHE AND THE HON’BLE SRI JUSTICE N.V.SHRAVAN KUMAR

Introduction:

The Telangana High Court decided on the writ petition of mandamus directing the respondents to undertake a special revision of electoral rolls to delete/remove the names of bogus shifted, duplicate, and persons, who are already dead, from the electoral roll of Nampally Assembly Constituency. The writ petition was dismissed by the Hon’ble High Court of Telangana. The Electoral Registration Officer has already undertaken the work of revision of the electoral roll and the revised electoral roll was published on 04.10.2023.

Facts of the Case:

Feroz Khan, a politician of the Indian National Congress, who has contested and lost election three times from Nampally Assembly Constituency, filed a writ petition seeking special revision of the final electoral rolls of Nampally Assembly Constituency. He had contended that the electoral roll of Nampally Constituency contains the names of 10473 voters, who have already died; contains the names of bogus voters to the extent of 34867; contains the names of 45567 voters, who have already shifted from Nampally Assembly Constituency.

The learned counsel for the Election Commission of India submits that the Electoral Registration Officer under section 21(2)(a) of the Representation of the People Act, 1951 had already initiated the work of revision of electoral rolls, and the same was published on 21.08.2023. The objections for it could have been filed between 21.08.2023 to 19.09.2023. It was further submitted that the claims and objections have been decided on 28.09.2023 and the final electoral roll has been published on 04.10.2023.

Court’s Analysis and Decision:

The High Court of Telangana highlighted that under Section 22 and Section 23(3) of the Representation of the People Act, 1951 “provides for no amendment, transposition or deletion of any entry shall be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this Section, after the last date of making the nominations for election in that constituency”

And in the aforesaid case, the validity of the revised electoral roll, published on 04.10.2023, can not be challenged through the writ petition under Article 226 of the Constitution of India.

Hence no case was made out in the present writ petition and the writ petition was disposed of, the High Court of Telangana added that in case the aggrieved person approaches the Electoral Registration Officer, either under Section 22 or under Section 23 of the 1950 Act, such a petition shall be dealt with in accordance with the law.

Written By: Sushant Kumar Sharma

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Supreme Court Upholds Transparency in Elections: Ensures Voter Rights and System Integrity

The Telangana High Court stated that the Electoral Registration Officer to be approached for changes in Electoral, not the High Court