Elections and Voting
Free and fair elections are a cornerstone of any democracy. For elections to be conducted in a meaningful manner, the principle of universal adult suffrage (the ability of every adult citizen to vote in an election) must be followed. The United Nations recognized the importance of elections and voting in 1948 with the adoption of the Universal Declaration of Human Rights (UDHR). There are several other human rights documents that recognise the importance of universal adult suffrage and free and fair elections, such as the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and the African Charter on Human and People’s Rights, to name a few. India acceded to the ICCPR on 10th April 1979, cementing its commitment to the practice of free and fair elections as guaranteed by the Constitution of India.
The Right to Vote:
It is to be noted that independent India did not have to struggle for universal adult suffrage, as other liberal democracies like France and the USA have. It was guaranteed by the Constitution under Article 326, which enshrines the principle of universal adult suffrage for all citizens above 18 years of age (the voting age was previously 21 years until it was amended by the 61st Amendment Act 1988).
Prior to independence, the Government of India Acts of 1919 and 1935 granted the right to vote to a limited number of Indians on the basis of income, property and education. The language of Article 326 is thus radical in that it removed all such criteria and granted the right to vote on the basis of citizenship and age. Dr. B.R. Ambedkar, one of the strongest proponents of the principle of universal adult suffrage, based his arguments on two principles: First, that voting was essential to citizenship and to equal moral membership of the polity; and second, that voting could serve as a means of political education for those who had been denied any part of political and social life for all these years, and thus act as a tool to “remove the evil conditions” that existed.
Further, Article 325 stipulates that no citizen shall be ineligible for inclusion into an electoral roll or claim to be included in any special electoral roll only on grounds of religion, race, caste, sex or any of them. The Representation of People Act, 1951 (the 1951 Act) expands upon voting eligibility. The 1951 Act makes two important points: 1) The right to vote is not a fundamental right, as confirmed by judicial precedent; and 2) The principle of adult suffrage mentioned in Article 326 is not absolute. It may be restricted on the grounds of non-residence, unsoundness of mind and crime, corrupt or illegal practice. The 1951 Act also lists a few other criteria regarding disqualification from voting.
Elections to the Parliament and State Legislatures:
The Parliament consists of the House of the People (Lok Sabha), voted for by direct election (Article 81), and the Council of States (Rajya Sabha), voted for by elected members of the Legislative Assembly of a state (Article 80). There are 543 members in the Lok Sabha and 250 members in the Rajya Sabha. The President nominates 12 of the 250 members of the Rajya Sabha. The Lok Sabha usually dissolves after every 5 years, while the Rajya Sabha is a permanent body, but nearly 1/3rd of its members must retire every 2 years. A person is eligible to be elected to either house of Parliament if they are a citizen of India, above 30 years (for the Rajya Sabha) or above 25 years (for the Lok Sabha) of age and comply with additional requirements in the Representation of People Act 1951.
There is a similar administrative setup in the states, with a few select states having 2 houses (the legislative assembly and the legislative council) and others having a single house (the legislative assembly). The legislative assembly consists of not more than 500 members and not less than 60 members voted for by direct election (Article 170), while the legislative council is voted for by indirect election and does not exceed 1/3rd of the members of the legislative assembly (Article 171). The duration of the legislative assembly is 5 years, while 1/3rd of the legislative council retires after every 2 years, the legislative council being a permanent body (Article 172).
Election of the President and Vice President:
The President and Vice President are selected through indirect elections, governed by provisions of Part V Chapter I of the Constitution. The election of the President is done by the elected members of both houses of Parliament and the state legislative assemblies. Any candidate for president must be a citizen of India, at least 35 years of age, qualified to be a member of the Lok Sabha and must not hold an office of profit under the Government of India. The President remains in office for a period of 5 years, unless he/she resigns or is impeached. There is no bar on the number of times a person may become president.
The election of the Vice President is done by elected members of the Parliament. The term of the office of the Vice President is 5 years unless he/she resigns or is impeached. They must be a citizen of India, at least 35 years of age, qualified to be a member of the Rajya Sabha and must not hold an office of profit under the Government of India
The Election Commission:
The Election Commission (EC) is the constitutional body that is responsible for the smooth conduct of elections (and all other processes incidental to elections, such as marking out constituencies) to the Parliament, the state legislatures and the President and Vice President. The Chief Election Commissioner is the head of the Election Commission and is removed from office by the process adopted to remove a Supreme Court judge. The Representation of People Acts, 1950 and 1951 outline the EC’s powers. The 1951 Act is a complete code for the conduct of elections by the EC. It outlines information about the registration of political parties with the EC, the declaration of their funding, how they may spend money during campaigning, and activities which classify as corrupt practices or electoral offences and punishments for the same. Recent changes to electoral law have impacted the EC’s ability to verify donor identities. These changes may affect the voters’ right to information (guaranteed under Article 19(1) of the Constitution), affecting the voters’ ability to make a well-informed choice. In addition, these changes may allow large anonymous corporate donors to exercise power over political parties and their policies.
Eligibility to the Parliament and State Legislatures:
There is no constitutional right to stand for elections. An individual need not be affiliated to a political party to contest elections and can run independently as long as they comply with provisions of the Constitution and the Representation of People Act, 1951 which govern eligibility. It is interesting to note that while criminals and those in lawful police custody cannot vote , those who face criminal charges can contest elections, as there is nothing in the Constitution or the Representation of People Act, 1951 that prevents them from doing so. Thus, it comes as no surprise that 43% of the 17thLok Sabha face criminal charges against them and has the highest number of Members of Parliament (29%) who face serious criminal charges, such as rape, murder and kidnapping.
However, it is important to note that those MPs (Members of Parliament), MLAs (Members of Legislative Assemblies) or MLCs (Members of Legislative Councils) convicted of offences under the Indian Penal Code (IPC) 1860 stand disqualified under the Representation of People Act, 1951, and are barred from contesting elections for a period of 6 years from the date of their release.
The Constitution also contains provisions for disqualification of membership from legislative bodies. Grounds for disqualification with respect to the Parliament are covered in Articles 101 to 104, while those for the states are governed by Articles 190 to 193. The 1951 Act also supplements the aforementioned Articles. The most pertinent issue with respect to disqualification is the defection of candidates from their political parties during a legislative session, which can make or break governments. Defection is governed by the 10th Schedule of the Constitution and is popularly known as the ‘Anti-Defection Law’. It governs the Parliament as well as the state legislatures.
In a nutshell, a member of a legislative body is deemed to have defected from the political party under which they originally contested elections if they voluntarily give up such membership or if they vote or abstain contrary to the party’s directions. Merging of parties is not considered defection, subject to the qualification that two-thirds of the original party agrees to the merger. Issues of defection are adjudicated by the speaker of the house. Scholars have argued that the Anti-Defection Law fails to serve its purpose of ensuring stable governments because the speaker’s judgement cannot be impartial, as they belong to a political party. They argue that the speaker’s party membership (and possible bias) may lead to a failure to discharge their constitutional duty, allowing for large-scale defections.
 Article 21(3) of the UDHR: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.”
 ECI v Telangana Rashtra Samiti (2011) 1 SCC 370.
 Supra, https://www.hindustantimes.com/analysis/the-electoral-bonds-scheme-is-a-threat-to-democracy/story-PpSiDdUjIw5WNBUzDsSzxI.html
 Raju VB v Chief Electoral Officer, State of Gujarat AIR 1976 Guj 66.
 They are prohibited under Section 62(5) of the Representation of People Act 1951