CEO Andhra : Frequently Asked Questions FAQ on Elections to Council of States & Legislative councils
Organisation : Chief Electoral Officer Andhra Pradesh
Announcement : FAQ on Elections to Council of States & Legislative councils
FAQ: https://www.electionin.in/uploads/3904-FrequentlyAskedQuestiononElectiontoCouncil.pdf
Home Page : http://ceoandhra.nic.in/home.aspx
CEO AP Frequently Asked Questions
Whether an elected member of the legislative assembly of a State or a member of the electoral college of a Union Territory is entitled to participate as an elector at an election to the Council of States or State Legislative Council, even before he has assumed his seat in the legislative assembly and has yet to make and subscribe the requisite oath or affirmation as a member of the assembly under the Constitution?
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Ans: Yes.
This question arose in Pashupati Nath Sukul Vs Nem Chand Jain (AIR 1984 SC 399). The Supreme Court held that the members of the newly elected legislative assembly became members of that assembly as soon as the assembly was constituted by the Election Commission by its notification under Section 73 of the RP Act 1951, and such members could participate in all nonlegislative activities, including the election to the Council of States, even before taking their seats in the assembly. This view was reaffirmed by the Supreme Court by its order of 6 January, 1997 [Madhukar Jetly Vs Union of India and Ors-1997(II)SCC III].
Whether the provisions of the Tenth Schedule to the Constitution relating to disqualifications on the ground of defection are applicable to open voting at elections to Council of States?
Ans: No.
The Supreme Court in its judgment dated 22 August 2006 in the matter of Kuldip Nayar Vs Union of India and Ors (AIR 2006 SC3127) observed that ‘The contention that the right of expression of the voter at an election for the Council of States is affected by open ballot in not tenable, as an elected MLA would not face any disqualification from the Membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs.”
Whether an elected member of a state legislative assembly, whose election has been set aside by the State High Court on an election petition, but in whose favour a conditional stay has been granted by the Supreme Court during the pendency of his appeal, permitting the member concerned to sign the assembly’s attendance register but not permitting him to take part in the proceedings of the House, can vote at the elections to the Council of States or the State Legislative Council?
Ans:
No. The Supreme Court, clarified their order of 27 October 1967 (Satyanarayana Mitra Vs Bireswar Ghose Appeal No. 1408 (NCE) of 1967) that the member concerned should not be allowed to participate in the election to the Council of States. Thereafter as a rule, no such member of any State Legislative Assembly has been permitted to either propose the name of any candidate or to vote at any election to the Council of States or State Legislative Council.
Whether an elected member of a state legislative assembly, whose election has been set aside by High Court on an election petition, but the Supreme Court grants an absolute stay of the High Court’s order, can vote at the elections to the Council of States or State Legislative Council?
Ans:
Yes. In such case the order of the High Court shall be deemed never to have taken affect under Section 116B(3) of the RP Act, 1951, and the member concerned shall continue to enjoy all rights and privileges of a member of the legislative assembly without any fetters, including his right to participate in election to the Council of States or State Legislative Council.
Whether nomination paper can be sent by post or through any other means of communication, like fax or e-mail?
Ans:
No. Nomination cannot be sent by post or through any other means of communication, like fax or e-mail [see Hari Vishnu Kamath Vs Gopal Swarup Pathak 48 ELR 1]
Whether the notice of withdrawal of candidature can be revoked?
Ans:
No. Once a candidate has given notice of withdrawal of candidature in the prescribed manner, he has no option or discretion thereafter to withdraw or cancel his said notice [s 37(2) read with Section 39(2) of RP Act 1951].
The term of certain elected members whose names have been included in the electoral rolls pertaining to the Local Authorities Constituencies, end before the last date offiling nominations. Should their names be removed from the final rolls as their term is going to end before the last date offiling nominations?
Ans:
The Hon’ble Supreme Court of India held in Baidyanath Panjiar Vs Sitaram Mahato (AIR 1970 SC 314) and Narendra Madivalapa Kheni Vs Manikrao Patil and Ors (AIR 1977 SC 2171) that no deletion or inclusion is permissible after 3.00 P.M. on the last date for making nomination in a constituency where election is being held and the electoral roll becomes final at that hour for the purpose of that election. The name of such elected members whose term will end before the publication of the Final Roll pertaining to the Local Authorities Constituencies, shall be removed before 3.00 P.M. on the last date for making nomination, as such deletion is not permissible after 3.00 P.M. on the last date for making nomination.
The term of certain elected members of the Local Authorities will end after the last date of filing nominations pertaining to the Local Authorities’ Constituencies, but before the poll date. In such cases, though their names appear in the final roll, whether we can disallow them from casting their vote on the poll day as they have ceased to be members of the Local bodies on the day of poll?
Ans:
In this case, although the names were in the rolls, since they are not members of local authority on the day of poll, they are not eligible to vote in the election. They should not be permitted to vote, as only members of local authorities can vote under Article 171(3)(a) of the Constitution.
In some cases new members have come after the last date of filing nominations. Can such names be added in the electoral rolls, who did not exist in either draft roll or the final roll, but who are members as on the day of Poll?
Ans:
The Hon’ble Supreme Court of India held in Baidyanath Panjiar Vs Sitaram Mahato (AIR 1970 SC 314) and Narendra Madivalapa Kheni Vs Manikrao Patil and Ors (AIR 1977 SC 2171) that no deletion or inclusion is permissible after 3.00 P.M. on the last date for making nomination in a constituency where election is being held and the electoral roll becomes final at that hour for the purpose of that election. The name of such new members shall not be included in the electoral rolls, who come after the final roll publication, as no such inclusion is permissible after 3.00 P.M. on the last date for making nomination.
How many affidavits, a candidate has to file with his nomination papers?
Ans :
Only one in Form 26
In case any voter changes his/her choice by cutting the earlier choice, will such ballot paper be liable for rejection?
Ans:
If any voter changes his/her choice by cutting the earlier choice, which disclose his identity or he can be identified by such mark or writing, rule 73(2)(d) of the Conduct of Elections Rules, 1961 will be applicable rendering such ballot paper liable for rejection.
Whether the list of electors to be maintained under section 152 of the Representation of the People Act, 1951 can be amended to include the name of newly elected member of state legislative assembly after the date of notification of election to the Council of States or even after the last date offiling of nomination?
Ans:
In case when a member gets elected to the Legislative Assembly at a bye-election, result of which is declared after the date of notification of election to the Council of States or even after the last date of filing nomination, the name of newly elected MLA should be included in the list of members maintained under Section 152 of the RP Act, 1951. Further, he shall then be entitled to vote at the election to the Council of States if the poll is taken after the date of his election as MLA. – This instruction is also applicable in the case of elections to Legislative Council by MLAs.
Whether a person can vote at any election if he is confined in a prison, whether under a sentence of imprisonment of transportation or otherwise, or is in the lawful custody of the police?
Ans:
No. The provisions of Section 62(5) of the Representation of the People Act, 1951 provide that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment of transportation or otherwise, or is in the lawful custody of the police.
What action is required to be taken by Presiding Officer/Returning Officer in election to Council of States, in case an elector belonging to a political party refuse to/does not show his/her marked ballot paper to the authorised agent of his party or shows his/her marked ballot paper to the authorised agent of other political party?
Ans:
In such case the ballot paper issued to the elector shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper and keep it in a separate envelope after recording on the reverse side of the ballot paper “Cancelled-voting procedure violates”. Provision in sub-rules (6) to (8) of rule 39A of the Conduct of Elections Rules, 1961, shall apply in such case. In case before taking back such ballot paper the elector dropped the ballot paper into ballot box, at the time of counting such ballot paper, RO should first separate this concerned ballot paper and it shall not be counted.
