The Representation of the People Act, 1951 (RP Act) governs the conduct of elections in India, including the nomination process for candidates. While the Act lays down a legal framework to ensure free and fair elections, several issues persist in the nomination process, undermining transparency, inclusivity, and democratic integrity.

Issues with the Nomination Process under RP Act, 1951

• Concentrated Discretion with Returning Officer (RO):
  Sections 33–36 of the RP Act grant the RO wide-ranging powers to scrutinize and reject nomination papers, leading to subjective decisions.
• Undefined “Defect of Substantial Character”:
  No clear guidelines exist on what constitutes a substantial defect, allowing ROs to interpret it arbitrarily.
• No Judicial Review During Elections:
  Article 329(b) bars courts from intervening during ongoing elections, preventing rejected candidates from seeking relief until after polls conclude.

Four Key Procedural Traps Causing Exclusions

• The Oath Trap:
  Candidates must take an oath within a designated timeframe before authorized officers. Mistimed or unauthorized oaths invalidate nominations.
• The Treasury Trap:
  Even with correct security deposit amounts, payments made by incorrect methods (cash vs. challan) lead to rejection.
• The Notarisation Trap:
  Failure to notarize Form 26 affidavits with the specified authority renders nominations liable for rejection.
• The Certificate Trap:
  Delays in issuing no-dues or clearance certificates cause nominations to be rejected. The Resurgence India (2013) ruling allows rejection for incomplete affidavits but prosecutes false affidavits, encouraging inaccurate filings.
• The filing checklist lacks legal binding, enabling ROs to reject nominations during scrutiny on technicalities.

Consequences of the Flawed Process

• Legal but Undemocratic Elimination:
  Candidates face disqualification over trivial procedural errors, despite meeting substantive eligibility.
• Arbitrariness and RO Dependence:
  Identical defects can yield differing outcomes based on RO’s subjective judgment.
• Violation of Voter’s Right to Choose:
  Arbitrary rejections diminish voter choice and reduce elections to formalities.
• Lack of Transparency:
  No consolidated public data exists on nomination rejections or their reasons, masking procedural bias.

Best Practices from Other Democracies

• United Kingdom:
  ROs assist candidates in correcting errors before deadlines rather than rejecting nominations outright.
• Canada:
  Provides candidates a mandatory 48-hour window to correct defects.
• Germany:
  Written notices specifying defects with time to rectify and multiple appeal levels.
• Australia:
  Encourages early nominations to allow adequate time for error correction.

Way Forward for India

• Shift RO Role from Discretion to Duty:
  ROs should issue written defect notices detailing legal requirements and corrective steps.
• Categorise Defects:
  Distinguish between technical/clerical errors (which should not cause rejection), authenticity/verification issues (requiring examination), and clear statutory disqualifications (warranting immediate rejection).
• Digital-by-Default Nomination System:
  Implement an integrated online portal linked with electoral rolls for automatic voter credential validation. Enable digital submission of oaths, affidavits, and deposits with a public dashboard displaying real-time form status and rejection reasons.

The nomination process must transform from a candidate-filtering mechanism into a facilitator of democratic participation, ensuring procedural hurdles do not override the fundamental voter right to freely choose their representatives.