India’s Electoral System: Why the Nomination Process Needs Reform?

Syllabus: GS2/Polity & Governance

Context

• There is a need for reforms in the nomination process in India’s electoral system that has become increasingly exclusionary, vulnerable, and convoluted to procedural misuse.

About the Nomination Process in India’s Electoral System

• The nomination process is the gateway to electoral participation, governed by constitutional provisions and detailed procedures laid out by the Election Commission of India (ECI). It involves:
  • Eligibility Criteria: Candidates need to meet age and voter registration requirements as per the Representation of the People Act, 1951 (RPA).
  • Filing Nomination Papers: Candidates submit Form 2A (for Lok Sabha) or Form 2B (for State Assemblies), along with affidavits declaring criminal records, assets, liabilities, and educational qualifications.
  • Scrutiny and Withdrawal: Nomination papers are scrutinized by the Returning Officer (RO), and candidates may withdraw by a specified deadline.
  • Digital Integration: The ENCORE portal allows online submission of nomination forms and affidavits, enhancing transparency and accessibility.
• Candidates need to be registered voters and at least 25 years old to contest Lok Sabha or Vidhan Sabha elections.

Lapses & Concerns in Current Nomination System

• Procedural Complexity vs. Substantive Justice: The process of verifying qualifications made under RPA, 1951 has become overly procedural.
  • The Returning Officers (RO) may reject a nomination deemed invalid after a summary inquiry, under Sections 33–36 of RPA, 1951, and the Conduct of Elections Rules, 1961.
  • RO is unchecked until after the election due to Article 329(b), allowing technicalities to triumph over fairness.
• Procedural Traps: Candidates often fall to paperwork errors rather than constitutional disqualifications. Common procedural pitfalls include:
  • Oath Trap: Invalid oaths taken too early, too late, or before the wrong authority.
  • Treasury Trap: Wrong payment mode or late submission of security deposits.
  • Notarisation Trap: Missing notarised affidavits (Form 26).
  • Certificate Trap: Delays in obtaining no-dues certificates from various departments.
• Constitutional Barriers: Article 329 of the Constitution bars courts from intervening in electoral matters until after the elections are concluded.
  • It means that even wrongful rejection of nominations cannot be challenged immediately through writ petitions, and candidates need to wait until after the election to file an election petition.
• Judicial Complexities: Judicial interventions, though aimed at transparency, have added new grounds for disqualification.
  • The Supreme Court’s 2013 Resurgence India judgment ruled that incomplete affidavits are invalid, but false declarations are not.
• Filtration Approach: India’s RO Handbook attempts through a checklist system without having legal value.
  • An RO can still reject a previously ‘defect-free’ nomination at scrutiny, breeding arbitrariness and undermines trust.
• Disproportionate Impact on Marginalized Candidates: Lack of legal literacy, limited access to professional assistance, and fear of procedural rejection discourage participation.

What Reforms Are Needed?

• Restoring Fairness: Returning Officers (RO) need to be legally required to:
  • Issue written notices specifying exact defects and relevant provisions.
  • Allow a 48-hour correction window.
  • Provide reasoned rejection orders detailing evidence and justification.
• Adopting Digital-by-Default Framework: The Election Commission of India (ECI) can build a digital-by-default framework to simplify nominations:
  • Online verification of voter ID, age, and constituency.
  • Digital submission of oaths and affidavits.
  • Electronic payment options (UPI, RTGS, cards).
  • Public dashboard tracking every stage of nomination, including reasons for rejection.
• Strengthening Democracy: When a nomination is rejected unfairly, two rights are violated, i.e. the candidate’s right to contest, and the voter’s right to choose.
  • India needs a nomination system that is citizen-centric, transparent, and inclusive, and the process needs to move from rule by law to rule of democracy—from filtration to facilitation.
• Best Practices: Other democracies take a facilitative approach:
  • UK officials help candidates correct errors before deadlines.
  • Canada allows 48 hours to fix deficiencies.
  • Germany and Australia require written notice and provide appeal opportunities.

Source: TH