The Representation of the People (RP) Act, 1951 empowers Returning Officers to scrutinise and reject nominations. However, excessive focus on procedural technicalities enables legal but undemocratic exclusion of candidates.

Issues with respect to the Nomination Process

• Discretion Concentrated with Returning Officer (RO): The Returning Officer, under Sections 33–36 of the RP Act, holds extraordinary discretion to accept or reject nomination papers during scrutiny.
• Undefined “Defect of Substantial Character”: There are no written guidelines on what constitutes a “defect of substantial character,” leaving significant room for subjective interpretation by the RO.
• No Mid-Election Judicial Review: Article 329(b) prevents courts from intervening while elections are underway, meaning that rejected candidates cannot seek relief until the election concludes.

Four Traps- Mechanisms which Creates A System Creates Exclusion

• The Oath Trap: Every candidate must take an oath before the specified authority after filing but before scrutiny. An oath taken too early, too late, or before an unauthorized officer renders the nomination invalid and subject to rejection.
• The Treasury Trap: Even if the correct security deposit amount is paid, using the wrong mode of payment (such as challan instead of cash or vice versa) leads to disqualification.
• The Notarisation Trap: If the Form 26 affidavit is not notarised by the specified authority, the nomination becomes liable for rejection.
• The Certificate Trap: Delays in issuing no-dues or clearance certificates often cause nomination rejections. As per the Resurgence India (2013) ruling, incomplete affidavits face rejection, while false ones invite only prosecution, encouraging inaccurate filings. 
  • The filing checklist lacks legal force, enabling ROs to reject nominations later during scrutiny.

Consequences of The Flawed Nomination Process

• Legal but Undemocratic Candidate Elimination: Candidates are disqualified on trivial procedural grounds such as blank columns, delayed certificates, or minor clerical errors, despite being otherwise eligible.
• Arbitrary and RO-Dependent Outcomes: Two candidates with identical defects may face different outcomes depending solely on the Returning Officer’s personal interpretation.
• Violation of Voter’s Right to Choose: Rejecting nominations arbitrarily denies voters the right to choose from a full slate of candidates, reducing elections to a mere formality.
• Lack of Transparency: There is no publicly available consolidated dataset on nomination rejections, the grounds for rejection, or party-wise breakdowns, allowing procedural bias to remain hidden.

Best Practices Related To Nomination Process

• United Kingdom: Returning Officers assist candidates in correcting errors before the deadline instead of rejecting the nomination.
• Canada: A mandatory 48-hour correction window is provided to candidates to rectify errors identified in their nomination papers.
• Germany: Authorities issue written notices specifying defects, provide time to fix them, and allow multiple levels of appeal.
• Australia: Candidates are encouraged to file nominations early, enabling sufficient time for error correction before the final scrutiny.

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Way Forward

• Shift RO Role from Discretion to Duty: The RO should issue a written notice specifying the defect, the legal requirement not met, and the steps needed to correct it.
• Categorise Defects: Technical or clerical errors should not justify rejection; authenticity disputes should require verification, and statutory disqualifications should result in immediate rejection.
• Digital-by-Default Nomination System: Develop an integrated online portal linked to the electoral roll for automatic validation of voter credentials. The system should enable digital submission of oaths, affidavits, and deposits, and feature a public dashboard showing real-time form status and reasons for rejection.

Conclusion

The nomination process must move from filtering candidates out to facilitating democratic participation, ensuring that procedural barriers do not override the voter’s right to choose.

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