Representation of the People Act, 1951 | Conduct of elections

Section 39: Nomination of Candidates at Other Elections

Section 39 of the Representation of the People Act, 1951 prescribes the election timetable and nomination procedure for specified indirect elections, including elections conducted by elected members or members of State Legislative Assemblies and electoral colleges of Union territories. It adapts the general nomination provisions to these elections.

At a glance: Nominations ordinarily close on the seventh day after the election notification; scrutiny follows on the next day; withdrawal closes on the second day after scrutiny; and polling, if required, cannot begin earlier than the seventh day after the withdrawal deadline. Public holidays can shift the specified deadlines.

Scope and purpose of Section 39

The provision applies when a notification calls upon the relevant elected members, members of a State Legislative Assembly, or members of a Union territory electoral college to elect one or more members. The Election Commission of India must then appoint the statutory election dates by notification in the Official Gazette. The provision is particularly relevant to indirect elections, such as certain elections to the Council of States and State Legislative Councils, as applicable.

Section 39(1): Election schedule

Following the election notification, the Election Commission must appoint the following dates:

  1. Last date for nominations [clause (a)]: The seventh day after publication of the initial notification. If that day is a public holiday, the next succeeding non-holiday.
  2. Scrutiny [clause (b)]: The day immediately after the nomination deadline, or the next succeeding non-holiday if that day is a public holiday.
  3. Withdrawal [clause (c)]: The second day after the scrutiny date, or the next succeeding non-holiday if that day is a public holiday.
  4. Poll [clause (d)]: Where necessary, the first polling date must be at least seven days after the final withdrawal date.
  5. Completion [clause (e)]: The Election Commission also specifies the date before which the election must be completed.

The precise dates for an individual election must always be checked against the Election Commission's notification. For this purpose, the meaning of public holiday is governed by the applicable provisions of the Act, including its definition in Section 2.

Section 39(2): Application of nomination provisions

Sections 31 to 38 apply, with the modifications specified in Section 39, to these indirect elections as they do to constituency elections. However, Section 33(2), Section 33(5) and Section 34(1)(a) are expressly excluded. The following special rules must be observed:

Electoral rolls and lists of members: proviso (a)

References to a constituency's electoral roll generally mean the list of members or elected members of the State Legislative Assembly maintained under Section 152(1), or the list of members of the Union territory electoral college maintained under Section 152(2), as the case may be, unless the context requires otherwise.

Number of proposers: proviso (aa)

Instead of the ordinary reference in Section 33(1) to one elector as proposer, a nomination must be proposed by 10% of the members concerned or ten members, whichever is less. Where calculating 10% results in a fraction, a fraction greater than one-half is counted as one, and a fraction less than one-half is ignored. The statutory wording does not expressly resolve a fraction exactly equal to one-half; follow the applicable official nomination guidance for the election concerned.

Legislative Council eligibility: proviso (ab)

For elections to a State Legislative Council by the members of the Legislative Assembly, the grounds of scrutiny in Section 36(2)(a) also include the requirement under Article 171(3)(d) of the Constitution, relating to election of Council members by Assembly members.

References to the election timetable: proviso (b)

Any reference in Sections 31 to 38 to Section 30 is read as a reference to Section 39(1), which prescribes the timetable for these elections.

Proof of electoral-roll entry: proviso (c)

At presentation of a nomination paper, the returning officer may require the person presenting it to produce a copy of the electoral roll, a relevant part of that roll, or a certified copy of the relevant entries showing the candidate's name.

How nomination, scrutiny and withdrawal operate

The returning officer receives nominations under Section 33, considers them at scrutiny under Section 36, and deals with withdrawal under Section 37. The list of contesting candidates is published under Section 38. These provisions operate subject to the exclusions and modifications expressly made by Section 39(2).

For example, a nomination paper may be rejected for a substantial statutory defect following the scrutiny process, while a valid withdrawal notice cannot be cancelled under Section 37(2). The candidate should verify the correct nomination form, proposer requirements, electoral status, deposit and filing deadline for the particular election.

Practical checklist for candidates

  • Obtain the applicable Election Commission notification and confirm all five dates.
  • Verify the candidate's eligibility and the relevant electoral-roll or membership entry.
  • Secure the required number of eligible proposers under Section 39(2)(aa).
  • Submit the prescribed nomination documents and applicable deposit in time.
  • Attend scrutiny and, if necessary, complete withdrawal within the notified deadline.

Official legal and election resources

This article explains the statutory framework. The applicable election notification, prescribed forms, Conduct of Elections Rules, 1961, and current official instructions should be consulted for an actual nomination.