Dhananjay Mahapatra

SC's recent verdicts reshaped election laws, mandating CEC appointments by a 3-member panel, striking down electoral bonds scheme for political donors' anonymity, and emphasizing voter rights protection and transparency in poll funding.

1952 :Months before the first general elections, in Jan 1952, SC in the Ponnuswami case ruled that the word ‘election’ in Article 329 (b) of the Constitution “connotes the entire electoral process commencing with the issue of the notification calling the election and culminating in the declaration of result, and that the electoral process once started could not be interfered with at any intermediary stage by Courts”.

As a result, an aggrieved candidate can challenge poll anomalies only through an election petition after declaration of results.

1971: When Congress split in1969 and factions headed by Jagjivan Ram and S Nijalingappa laid claim to the party name, Election Commission (EC) ruled in the Jagjivan Ram faction’s favour on finding that it enjoyed majority support of Congress MPs, MLAs and delegates.
Later, in the Sadiq Ali case (1971), SC upheld EC’s methodology: “...there were obvious difficulties in ascertaining who were the primary members and in ascertaining their wishes… It can be legitimately considered that members of All India Congress Committee and the delegates reflected by and large the views of the primary members.”

EC ruled on the recent splits in Shiv Sena and NCP on the same basis as it did in the Congress case of 1969.
1975: On June 12, 1975, Allahabad HC quashed PM Indira Gandhi’s election from Rae Bareli, leading to declaration of Emergency. During pendency of PM’s appeal in SC, Parliament passed Election Laws (Amendment) Act, 1975, changing several Repre sentation of People (RP) Act provisions. Parliament also enacted the 39th Constitutional Amendment Act, barring courts from scrutinising elections of PM and Speaker. SC in Nov 1975 upheld Indira’s election, but partly struck down the 39th amendment Act, as far as it barred courts from entertaining election petitions against PM and Speaker.

1977/1995: In July 1977, SC in Narendra Kheni case ruled that no addition or deletion to a voter list could be carried out by a returning officer or EC after the last date for filing nominations.
Changes made after this date, it said, “must be visited with fatality”. In Mohinder Singh Gill (1977) and T N Seshan (1995) cases, SC reiterated EC’s supremacy in superintending the conduct of polls and the CEC’s captaining authority over the Commission.
2002/2004: The turn of the century saw SC deliver a slew of landmark decisions protecting and expanding voter rights. In 2002, in Union of India vs Association for Democratic Reforms, it ruled that electors have a fundamental right to know the antecedents of candidates, including their criminal record, education level and wealth. SC said the right to be informed supplements the right to choose and it flows from the fundamental right to freedom of speech and expression.

The NDA govt brought a Bill and introduced Section 33B in RP Act to exempt candidates from declaring criminal antecedents. In 2004, SC struck down this provision as unconstitutional and mandated candidates to declare criminal cases pending against them, including FIRs.
July 2013: In Lily Thomas case, SC struck down Section 8(4) of RP Act that allowed MPs and MLAs to continue as legislators even after being convicted in corruption cases or sentenced to two or more years in other criminal cases, if they appealed in a higher forum within 90 days of the conviction. After SC’s ruling, disqualification kicks in automatically and a legislator can get back their seat if a higher forum stays conviction and sentence.
Sept 2013: In PUCL case, SC introduced none of the above (NOTA) option for voters, saying it was “extremely important” to let a voter “express his disapproval with the kind of candidates that are being put up by the political parties” as growing disapproval would gradually bring about “systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity”. NOTA has not fared well in elections.

Oct 2013: In Subramanian Swamy case, SC forced an initially reluctant EC to implement, in a phased manner, the introduction of voter verifiable paper audit trail (VVPAT) in EVMs. SC said, “We are satisfied that the ‘paper trail’ is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the ‘paper trail’. EVMs with VVPAT system ensure the accuracy of the voting system.”
2014: SC in Manoj Narula case advised PM and CMs not to make persons with criminal antecedents ministers, keeping in view their role in the council of ministers and the sanctity of the oath they take. “This is what the Constitution suggests and that is the constitutional expectation from the PM. Rest has to be left to the wisdom of the PM. We say nothing more, nothing less,” SC said.
Recent important verdicts
EC Appointments
➤ On March 2, 2023, an SC constitution bench unanimously ruled that selection of CEC and ECs would be done by a 3-member panel comprising the PM, Leader of Opposition and CJI. Later in the year, govt passed an Act on appointment of CEC/ ECs that replaced CJI with a Union cabinet minister. On Jan 12, 2024, SC declined to stay the new law. Court refused to intervene in the selection of 2 ECs in March although it berated the govt for the ‘hurry’ in which the appointments were made.
Electoral Bonds
➤ On Feb 15, 2024, a 5-judge bench led by CJI D Y Chandrachud struck down the electoral bonds scheme providing anonymity to political donors as ‘unconstitutional’ and violative of voters’ right to information under Article 19(1)(a). Electoral bonds as a mode of poll funding were introduced in 2017. The judgment and court’s subsequent stern directions to State Bank of India led to EB data coming into public domain.

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