A A young woman from Dadra and Nagar Haveli called last week about the recent city council elections. This is the district in which I once served as Collector and Returning Officer. Her father’s nomination for municipal councilor was rejected without any hearing or opportunity for verification. He asked, “Sir, are elections like this?” The honest answer is yes. And that is the problem. His case was no different. In the same elections, Congress candidates were systematically rejected on technical grounds, effectively ensuring unopposed victories in many wards. However, the fact of the matter is that such rejections are legitimate.
And that is the deepest tragedy, democracy being killed by the rule of law. The most undemocratic part of India’s electoral process occurs before even a single vote is cast – the nomination scrutiny stage.
politics of process
India’s electoral nomination process vests extraordinary discretion in a single official – the Returning Officer (RO). The Representation of the People Act (RP), 1951, specifically sections 33 to 36, and the Conduct of Elections Rules, 1961, govern the nomination process. Section 33 sets out who can file a nomination; Section 34 provides for security deposit; And Section 36 authorizes the RO to scrutinize nominations and reject nominations deemed invalid. The RO’s power under Section 36(2) to conduct a “summary inquiry” and reject nominations for “defects of significant character” is exceptionally broad, and is largely not reviewable before voting, as Article 329(b) prevents courts from interfering mid-election. The law states that no nomination should be rejected for defects which are not of substantial character. But there are no written guidelines on what is important. And the only way to oppose it is an election petition after the election, when the damage is irreversible. In a democracy, this absolutism wrapped in legal language has the potential to become a tool of political exclusion.
This year in Bihar, the nomination of a Rashtriya Janata Dal (RJD) candidate was rejected for leaving some fields blank. Last year in Surat, opposition candidates were dropped after refusing to sign the proposers’ signatures, leaving the Lok Sabha seat unopposed. In the 2019 elections in Varanasi, the ticket of BSF jawan Tej Bahadur Yadav was rejected because he could not obtain the Election Commission certificate overnight. In Birbhum, former IPS officer Debashish Dhar was kept away from voting as his no-dues certificate from the government was delayed. I have read that in Sikkim’s first Lok Sabha election in 1977, all but one candidate failed to take the constitutional oath before scrutiny, resulting in a one-man contest. This is where the process becomes political. Yet, there is no publicly available consolidated dataset on the grounds, patterns, or party-wise analysis of rejection. This opaqueness shields the weaponization of the process.
procedural trap
Section 36 of the RP Act states that only qualified candidates can contest elections. However, the process of verifying eligibility has increased in complexity over the years. Well-intentioned judicial interventions have paradoxically made the problem worse. Supreme Court directions mandating detailed affidavits on assets, liabilities and criminal cases were meant to ensure transparency, yet each new disclosure requirement added another opportunity for technical rejection. For example, in Resurgence India vs Election Commission (2013), the Supreme Court held that false declarations are prosecuted, but nominations are not invalid, only incomplete nominations are invalid. This means that a candidate who lies but fills out all the columns remains on the ballot, and a candidate who makes a mistake in good faith may be rejected. The system now penalizes incomplete declarations more harshly than dishonest declarations.
A missing signature, a mismatched electoral number, a form filed at 3:05 pm instead of 3:00 pm, a blank column in an affidavit, a delayed oath, a missing no-dues certificate – any one of these can derail the candidature. Thus the burden of proof lies entirely on the citizen seeking to exercise the legal right and not on the officer denying it. It is constitutionally backward. The right to vote is the essential twin of the right to vote. Without candidates to choose from, the ballot is merely a meaningless ritual. The first principle should be that every eligible citizen has the presumptive right to contest elections. That right may be denied only if the RO establishes, with clear evidence, a bona fide constitutional or statutory disqualification. Technical paperwork errors cannot be a reason for disqualification.
Some of the common procedural technicalities on the basis of which nominations are rejected include:
oath trap: Every candidate has to take an oath before a specified authority after filing the nomination but before scrutiny. If it is too early, it is invalid, and if it is too late, the nomination is rejected. Moreover, if it is not before the specified authority, your form will be rejected again. Does this ritual serve any public interest in the age of digital identity? Electronic declaration certified by Aadhaar OTP or digital signature will suffice.
Treasury net: Security deposit should be made in cash or through treasury challan. Candidates coming after 3 PM with correct amount but wrong payment mode may be disqualified. Security deposit deposits can be made more citizen friendly by including payment methods like UPI, RTGS or debit cards.
Net of Notarization: Every Form 26 affidavit (an affidavit which is required to be filed by the candidate along with the nomination paper) must be notarized by a specified authority. Failure to do so may result in rejection of the nomination.
Certificate Trap: Along with the nomination form, the candidate must submit no-dues certificate from the municipal bodies, electricity board, or other government departments; No Objection Certificate from the Election Commission for Government servants; And various other bureaucratic verifications, each of which has a veto point when it comes time to investigate. Thus, each issuing office becomes a potential chokepoint where deliberate delay can result in termination of candidature.
And why is there a restricted time of 11:00 am to 3:00 pm for the enrollment process?
These processes, once designed as security measures, have turned into potential opportunities for delay and manipulation. Here, bureaucratic compliance is being rewarded more than democratic legitimacy.
Convenience, no filtration
Other democracies show a different approach. In the UK, ROs help candidates correct errors before the deadline. A 48-hour recovery period is mandatory in Canada. Germany requires written notice of problems, time to resolve them, and several appeal levels. Australia encourages early submission to allow for correction. The general view is that election officials are facilitators, not watchdogs. Their job is to expand participation, not narrow it.
There is also a checklist system in India. The RO Handbook instructs ROs to point out the deficiencies at the time of filing and record them in a checklist. But this checklist has no legal validity. The Handbook itself clarifies that the checklist “shall not prevent the Returning Officer from pointing out other defects, if any, found during subsequent scrutiny.” A nomination may be marked as defect-free at the time of filing, yet be rejected later on scrutiny for defects discovered by the RO. The candidate has no right to rely on the checklist, and the RO has no legal obligation to respect it. Thus the checklist becomes an illusion of transparency without providing any real protection to the candidate.
The role of RO should shift from discretion to duty. When there is a deficiency, the RO should issue a detailed written notice specifying the exact error, the legal provision violated and the correction required. After receiving this notice candidates should be given a guarantee of 48 hours to correct it.
The current system is not rule-based; It is ruler based. What one RO considers important, another may ignore. The consequences entirely depend on who is making the decisions. This is the definition of arbitrariness. Thus the law should classify deficiencies into three categories: (1) Technical or paper defects such as missing signatures, blank affidavit columns, clerical errors, no-dues certificates, etc. These cannot justify rejection; (2) Cases requiring verification of authenticity such as disputed signatures, challenged documents, etc. These require investigation before being rejected; and (3) constitutional and statutory prohibitions. These should lead to immediate and complete disqualification. Furthermore, the reason for each rejection order should be clear. The RO must specify which precise requirement was not met, which provision of law was violated, what evidence supports the conclusion, and why the defect is sufficient to justify rejection.
a digital solution
The Election Commission of India (EC) may create a nomination system that is digital by default; One that doesn’t depend on excessive paperwork. This is not to argue for a digital-only framework, but for a digital-by-default framework that could eliminate blank columns and disqualification based on misspelled names or typos. The entire enrollment process can be done on a unified online portal linked to the voter list. The system can automatically validate voter ID, age and constituency details. Oath taking, submission of affidavit, proposer verification and deposit payment can all be digital. Additionally, the progress of each nomination such as when it was filed, verified, deficiency notified, corrected, accepted or rejected should be visible on a public dashboard with timestamps and reasons.
maintaining democracy
When a nomination is arbitrarily rejected, two rights are violated: the right of the candidate to contest the election and the right of the voters to choose. The world’s largest democracy deserves a nomination process that is modern, fair and inclusive, where the burden of proof to justify exclusion lies on the state, not on citizens to prove their right to participate. Fairness should extend to the nomination stage, where the voter’s right to choose is determined.
The Election Commission should work towards a citizen-friendly nomination process that will eliminate bureaucratic red tape around ineligibility for blank columns, wrong payment mode, wrong signatures, misspelled names and typos, no outstanding certificates or delayed oath taking. It should work towards a simplified process that removes the possibility of the process being used as a form of politics.
Kannan Gopinathan is a former IAS officer who is now part of the Congress.
