Nomination for the Post of Member of Parliament and State Legislature

 In India to conduct general election for the post of Member of Parliament and state legislature there is four steps- 

1. Nomination

2. Campaigning

3. Poll

4. Result

Nomination: Nomination is the first process of conducting election, by which one person formally offers oneself as a candidate for any effective office i.e member of parliament or state legislature, which is subscribed by proposers (electors).  

Under section 30 of Representation of People Act, 1951(RP Act) as soon as the notification for calling election is issued, the ECI appoint the last date of making nomination, the date for the scrutiny of nomination, the last date for the withdrawal of candidature and the date of poll. Law provides total 8 days for making nomination, start from election notification and the last date for making nomination. No nomination can be filled on any public holiday during the period of Nomination.

Under section 31 of RP Act, 1951, the returning officer shall give public notice of the intended election to invite nominations of the candidates for such election and specify the place where nomination papers are to be delivered.  It means candidate has to file his nomination paper to specified person on specified time specified dates and at specified place only.

Under section 32 of RP Act, 1951, any person may be nominated as a candidate for election to fill a seat in parliament or state legislature, if he is qualified to be chosen to fill that seat under the constitution of India and Representation of people Act, 1951. Therefore the intending candidate must satisfy himself before filling nomination that he fulfills each of the prescribed qualifications and does not suffer any of the prescribed disqualification.

Manner of filing nomination paper-Under section 33 of RP Act, 1951, each intending candidate shall deliver his nomination papers, either in person or by his proposer to the returning officer at the specified place on or before appointed date between the hours of 11’0 clock and 3’0 clock.  No nomination paper shall be delivered to the returning officer on public holiday. It also says that each nomination paper shall be signed by candidate and subscribed by proposers.

Subscription: As per sec. 33 (1) proviso of RP Act 1951 nomination paper must be Subscribed by proposers. For any election to the Lok sabha or a state Assemble, every nomination of a candidate must be subscribed by a prescribed number of proposers.  Every proposer subscribing the nomination of candidate must be an elector registered in the same constituency from which the election is being held.

Proposers: If the candidate is set up by the recognised political parties at the election, only one proposer is sufficient to subscribe Nomination of Candidate, if the candidate is set up by the unrecognised political parties or who is independent candidate at the election, at least 10 proposers are required to subscribe Nomination of Candidate. Law permits that an elector subscribing as proposer the nomination of one candidate may so subscribe the nominations of one or more other candidates also.

For any election to the Council of States or a state Legislative Council every nomination of a candidate must be subscribed by 10% of the electors at the election or 10 such elector, whichever is less, as proposers (se. 33(1) third proviso and sec 39 (2) proviso (aa) of RP Act, 1951).

As per proviso of section 33(1A) of RP act, 1951 in the case of election to the reserved seat for sikkimese of Bhutia- Lepcha origin, Sangha, sikkimese of Nepali origin , nomination papers shall be subscribed by at least 20 electors as proposers of that constituencies.

As per section 33(2) of RP act, 1951 where the seat is reserved for SC or ST, candidates for such seat must submit declaration certificate that he is member of such ST/ SC and of that area along with his nomination paper

 

Mithlesh Kumar v/s Returning officer (AIR, 1993 SC 20) SC held that it does not matter that proposer has subscribed the nomination paper prior to the date on which the formal notification of election was called. It also does not matter that candidate has signed the nomination paper before the proposers and seconders had subscribed to his nomination, held by SC in Shiv Kripal Singh v/s VV  Giri (AIR 1970 SC 2097).

Procedure for setting up of candidates by political parties: As per The Election Symbols (Reservation and allotment ) Order, 1968 each political parties has to give a written intimation in the prescribed forms ( Form A and Form B) to the returning officer of the constituency concerned.  Such intimation must reach to the returning officer by 3.00pm on the last date for making nomination in the constituency (para13 of the order 1968).   Compliance of para 13 is relevant because on the basis of the information mentioned in  part III of Form B, candidate can request to allot  the symbol reserved for political parties, if such candidate is set up by that  recognized political parties.  Non compliance of para 13 may lead to reject the nomination of candidate, held in the case of Ramesh Rout v/s Rabindra Nath Rout (2012(1) SCJ 567).

Dismissed for corrupt practices: As per section 33(3) of RP Act, 1951 where a candidate is dismissed for corrupt practices under sec. 9 of RP Act, and the period of 5 years has not elapsed since the dismissal, he will not be entitled to file his nomination papers unless a certificate has been issued by ECI to the effect that he has not been dismissed for corruption. 

As per section 33(4) of RP Act, 1951 after the delivery of nomination papers by candidates, the RO shall satisfy himself that the names and electoral roll numbers of the candidates his proposers entered in the nomination papers are the same as entered in electoral rolls. 

As per section 33(5) of RP Act, 1951 if intending candidate is elector of a different constituency, a copy of that electoral roll of that constituency shall be produced along with nomination paper, if not filled at the time nomination, then has to submit at the time of scrutiny of nomination paper. 

As per section 33(6) of RP Act, 1951 a candidate may file more than one nomination paper but maximum four nomination papers he can file.

Requirements for valid Nomination-For valid nomination candidate is required to furnish requirements  as prescribed by section 33, 33A and 34 of RP Act, 1951.

A. Filing of the prescribed form for nomination as candidature-

1. As per section 33 of RP Act, 1951 and rules of the conduct of election Rules, 1961, every intending candidate for election to any house of parliament or of a state legislature has to formally offer his candidature by filing nomination form in prescribed forms only –i.e. form 2A to 2E. Although photocopy or had written or cyclostyle or private printed copies can be used for nomination purpose.  After 1 May, 2015 ECI issued notice that every intending candidate shall submit his photograph also along with his nomination paper.

Forms of Nomination for -

• House of People- 2 A form

• Council of States- 2 C form

•  State Legislative Assemble- 2 B

• State Legislative Council- 2 E

2. Candidate must be qualified, must not be disqualified on the date Fixed for scrutiny of Nomination

3.  Candidate must filled all details in prescribed format for nomination 

4.  Candidate must have proof age

5.  Nomination paper Must contain declaration of SC/ ST/ and supported with certificates 

6.  Nomination paper must be Signed by candidates and subscribed by proposers and seconders, wherever applicable

7. Nomination paper must have Proof of being elector and submit Copy of electoral roll

8. Candidate must get Certificate from the Election Commission under sect 9 of RP Act, 1951, wherever applicable 

9. Returning officer must have written Intimation for candidature from  recognized political party, if not independent candidate 

B. Addition information to submit- Candidate is required to fulfill disclose certain information also as prescribed by section 33A, which are inserted in 2002 in the RP Act, 1951 after the Case of Association for Democratic Reforms and Another, AIR 2002 SC 2112. These information are additional information have to give in nomination paper by candidate along with the requirements of section 33 of RP Act, 1951. These requirements are as follows-

a. Candidates have to provide the information as Disclosure in 2 affidavits along with revised Form 26, revised format

b. candidate has to disclose about his Criminal antecedent, if any pending case is there, or he is convicted of any offence as prescribed in section 8 of RP Act, 1951.

c. candidate has to disclose  about his  Assets ( Bank deposits, investment etc.) and asset of his dependent also.

d. candidate has to disclose  about his Liabilities and dues, if any

e. candidate has to disclose  about his Educational Qualification 

f. candidate has to disclose  about his  Social media Accounts also.

g. candidate  must make and subscribe requisite oath on prescribed format (sec. 33A).

h.  Candidate must submit requisite affidavits (sec. 33A).

c. deposit security-For duly nomination Candidate must deposit amount of security and get receipt of same as prescribed by section 34 of RP Act, 1951. For parliamentary constituency amount candidate has to deposit Rs. 25000 and for state assembly election rs. 10000.00 in RBI or government treasury.  For SC and ST category candidate has to deposit amount of rs. 12500 for parliamentary constituency and for state assembly amount of rs. 5000. This requirement should be completed at the time of filing of nomination paper.

Rejection of Nomination

The law directs RO not to reject any nomination paper on the ground of any defect which is not of substantial character.  As the improper rejection of a nomination paper has a very serious consequence in law on the outcome of the election, therefore RO has to double sure of the round on which he decides to reject a nomination paper.  Regarding defects of substantial character apex court said there are some defects which are curable at the stage of scrutiny of nomination and the returning officer can allow such defects to be rectified at that stage. But there are several material defects which cannot be cured at that stage and may lead to rejection of nomination paper being defect of substantial character.

When a nomination paper is presented, it is the duty of the returning officer to receive the nomination, out of the defects, if any, and allow the candidate to rectify the defects and when the defects removed then alone the question of rejection of nomination would arise.  It was held in the case of Nandiesha Reddy v/s Kavitha Mahesh, AIR 2011 SC 2639

The returning officer is authorized by law to reject the nomination   of a candidate on the substantial grounds that: 

1. On the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen as member of parliament or state legislature as the case may be under the constitution  of India (Article 8, 102, 173 & 191) or RP Act 1951, or

2. Candidate has  fail to comply with any of the provisions of s.33 relating to presentation of nomination papers in the prescribed form, 

3. Candidate not duly completed in all respects and subscribed nomination paper by the required number of proposers and within the prescribed time and period (sec. 33 & 33A).

4. There has not been duly comply of section 34 relating to making  of the requisite security deposit in the manner prescribed, or

5. The signature of candidate and his proposers on the nomination paper is not genuine (sec. 36(2).

6.   Candidate Fail to submit required affidavits in the form  26 in pursuance of the  SC order  dated 2 May, 2002 and 14 march, 2003.

7. Candidate left  some columns in the affidavit blank ,despite reminder from the returning officer to fill those blanks.

In the case of Ramesh rout v/s Rabindra nath raut, 2012 (1) SCJ 567, SC held that non compliance of para 13 of the 1968 order is a defect of substantial character and the nomination paper of  a candidate proposed by single elector set up be a recognized political party having such defect is liable to be rejected under section 36(2)(b) as it is tantamount to non compliance of the provisions of sec.33.(incomplete Nomination form).

Conclusion- Regarding nomination for the post of Post of Member of Parliament and state legislature researcher discussed about filing of nomination, candidature to file nomination, requirement to file valid nomination, number of proposers to subscribe nomination, status of Nomination form if proposer sign on the Blank Nomination form, status of Nomination form if Candidates sign on the  Nomination form before proposer subscribed, ground nomination  can be rejected, authorities to scrutinize the nomination paper of  candidates. Faculty of JIMS school of law teaching this paper.