The Supreme Court and electoral reform

1. The constitutional frame

Article 324 vests superintendence, direction and control of elections in the Election Commission; Article 326 guarantees adult suffrage; Article 327 lets Parliament legislate on elections; Article 329(b) bars challenges except by election petition. The Representation of the People Act, 1951 is the main law. In Mohinder Singh Gill v. Chief Election Commissioner (1978) Krishna Iyer J described Article 324 as a reservoir of power for the Commission where the law is silent. The right to vote is a statutory right (Jyoti Basu v. Debi Ghosal, 1982), but the Court has treated the voter’s freedom of expression under Article 19(1)(a) as constitutional, which is the hook for most of the reforms below. Free and fair elections are part of the basic structure (Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272).

2. Information: the right to know

• Union of India v. Association for Democratic Reforms, 2002 INSC 253, (2002) 5 SCC 294: voters have a right under Article 19(1)(a) to know the antecedents of candidates; the Commission was directed to require affidavits disclosing criminal cases, assets, liabilities and education.
• Parliament responded with section 33B of the RPA, limiting disclosure to what the Act required. In People’s Union for Civil Liberties v. Union of India, 2003 INSC 176 section 33B was struck down; the right to information about candidates is a part of the voter’s fundamental right.
• Lok Prahari v. Union of India, 2018 INSC 164: candidates must also disclose the sources of income of themselves, their spouses and dependants.

3. Integrity of candidates

• Lily Thomas v. Union of India, 2013 INSC 456, (2013) 7 SCC 653: section 8(4) of the RPA, which protected sitting legislators from immediate disqualification on conviction if they appealed within three months, was struck down. A sitting member is disqualified on conviction, as any other person is. Disqualification lifts if the conviction itself is stayed on appeal.
• Public Interest Foundation v. Union of India, 2018 INSC 862: the Court refused to add disqualification on framing of charges, which is for Parliament, but directed candidates to declare pending cases prominently and parties to publicise them. In 2020 it directed parties to publish reasons for selecting candidates with criminal antecedents.
• Abhiram Singh v. C.D. Commachen, 2017 INSC 3: by 4:3, an appeal for votes on the ground of religion under section 123(3) is a corrupt practice whether it refers to the religion of the candidate, the opponent or the voter. The dissent warned that this would silence legitimate politics of identity and disadvantage.
• Defection under the Tenth Schedule: Kihoto Hollohan v. Zachillhu (1992) upheld the Schedule but made the Speaker’s decision subject to judicial review; Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 INSC 516 held that the legislature party cannot by itself displace the political party’s choice of whip.

4. Voter choice

People’s Union for Civil Liberties v. Union of India, 2013 INSC 655 directed a “None of the Above” option on ballots and electronic voting machines, holding that the right to reject is part of the right to vote freely and that secrecy must be preserved for a voter who chooses not to vote for any candidate. NOTA has no effect on the result, which critics treat as making it symbolic. In S. Subramaniam Balaji v. Government of Tamil Nadu, 2013 INSC 444 the Court held that pre-election promises of freebies are not corrupt practices under section 123 but directed the Commission to frame guidelines, now part of the Model Code of Conduct. The Court also required a voter-verifiable paper audit trail with EVMs in that year and, in 2024, rejected a plea to return to paper ballots.

5. The referee: Election Commission independence

Anoop Baranwal v. Union of India, 2023 INSC 190: a Constitution Bench held that, until Parliament made a law under Article 324(2), the Chief Election Commissioner and Election Commissioners would be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition (or leader of the largest opposition party) in the Lok Sabha, and the Chief Justice of India. Independence of the Commission was linked to free and fair elections. Parliament then enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaces the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister. Challenges to the Act are pending. The episode shows the limits of judicial reform where Parliament has the last word.

6. Money: the electoral bonds judgment

The Electoral Bond Scheme, 2018, with amendments to the RPA, the Companies Act, 2013, the Income-tax Act and the Foreign Contribution (Regulation) Act made by the Finance Acts of 2016 and 2017, allowed anonymous donations to political parties through bonds bought from the State Bank of India, and removed the cap on corporate donations.

In Association for Democratic Reforms v. Union of India, 2024 INSC 113, a Constitution Bench unanimously struck down the Scheme and the related amendments:

• information about political funding is essential to the voter’s informed choice under Article 19(1)(a), because of the possibility of a quid pro quo between donors and governments;
• curbing black money is a legitimate aim, but anonymity was not the least restrictive means, and the Scheme failed proportionality (Chandrachud CJ wrote for four judges; Khanna J, concurring, reached the same result by his own proportionality analysis);
• the deletion of the cap on corporate donations in section 182 of the Companies Act was manifestly arbitrary, since it allowed loss-making companies to fund parties and treated companies and individuals alike;
• informational privacy of political affiliation does not extend to shielding large contributions that may influence policy;
• the State Bank of India was directed to give the Election Commission details of bonds purchased and redeemed, for publication. When the Bank sought more time, the Court refused (State Bank of India v. Association for Democratic Reforms, 2024 INSC 195), and later orders required disclosure of the unique bond numbers as well, so that donors could be matched with recipient parties.

7. Assessment

The Court’s contribution has been greatest where it used the voter’s right to know, a process-based ground of the kind Ely’s theory supports, and weakest where it was asked to legislate disqualifications or spending limits, which it has rightly left to Parliament. Parliament’s responses (section 33B, the 2023 appointments Act) show that reform by judgment is fragile without legislative agreement. The electoral bonds case shows that disclosure, once ordered and carried out, is difficult to reverse.

How this is examined

Use the thematic structure (information, integrity, choice, referee, money), one or two cases per theme, Parliament’s response, a comparative paragraph and a balanced assessment. For a short note on “electoral bonds” or “NOTA”, sections 6 or 4 are sufficient.