COUNTERMANDING OF POLL

Countermanding of poll under Section 52 of the R.P.Act,1951 on account of the death of a contesting candidate .

Election Commission's Letter No. 3/1/94/J.S.II Dated: 5th December, 1994, addressed to the Chief Electoral Officers of all States and Union Territories
__________________________________________________________________

Subject: Countermanding of Poll under Section 52 of the Representation of the People Act, 1951 on Account of the death of a contesting candidate set up by Recognised Political Party - Regarding.

I am directed to state that a question has been raised whether the election will be countermanded or not under the amended section 52 of the Representation of the People Act, 1951 on the death of a candidate set up by a political party which is recognised in another State but not in the State in which the candidate set up by that party after obtaining the concession under Para 10 of the Election Symbols (Reservation and Allotment) Order, 1968, has died.

2. The legal position in this regard has been examined in detail and is stated as hereunder.

3. The said section 52, as amended in 1982, provides as follows:

"52. Death of candidate before the poll. - If a candidate, set up by a recognised political party, -

(a) dies at any time after 11 A.M. on the last date for making nominations and his nomination is found valid on scrutiny under section 36; or

(b) whose nomination has been found valid on scrutiny under section 36 and who has not withdrawn his candidature under section 33, dies;

and in either case, a report of his death is received at any time before the publication of the list of contesting candidates under section 38; or

(c) dies as a contesting candidate and a report of his death is received before the commencement of the poll,

the returning officer shall, upon being satisfied about the fact of the death of the candidate, by order, countermand the poll and report the fact to the Election Commission and also to the appropriate authority and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election:

Provided that no order for countermanding a poll should be made in a case referred to in clause (a) except after the scrutiny of all the nominations including the nomination of the deceased candidate:

Provided further that no further nomination shall be necessary in the case of a person who was a contesting candidate at the time of the countermanding of the poll;

Provided also that no person who has given a notice of withdrawal of his candidature under sub-section (1) of section 37 before the countermanding of the poll shall be ineligible for being nominated as a candidate for the election after such countermanding.

Explanation. - For the purposes of this section, "recognised political party" mans a political party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968".

4. Under the scheme of the Representation of the People Act, 1951, election from each Parliamentary or Assembly constituency is a separate election as has been held by the Supreme Court in Inderjit Barua V. Election Commission and others (AIR 198 SC 1912). Therefore, the above mentioned amended provisions of section 52 of the said Act would be attracted only in the case of a candidate set up by a political party which is recognised in the constituency concerned.

5. Section 52 does not expressly spell out whether the recognised political party referred to therein means a party recognised in any State or in the State concerned. That section only says by way of explanation that "recognised political party' means a political party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968. Therefore, the precise meaning of that expression will have to be gathered from the provisions of the said Symbols Order.

6. Under the Symbols Order, recognised political parties are of two categories, i.e., National Parties and State Parties (Vide Para 7). A National Party is recognised in all States and Union Territories in India, that is to say, in all Parliamentary and Assembly Constituencies throughout India. A State Party is recognised only in that State or States where it is specifically recognised by the Commission, that is to say, only in the Parliamentary and Assembly Constituencies in the State concerned. It is not a recognised party for the purposes of the other States. In such other States, it is only a registered-unrecognised party under the Symbols Order.



BACK TO INDEX I NEXT PAGE I NEXT DOCUMENT