Lesson-4 The Election Commission Important Notes

Lesson-4 The Election Commission

India has the distinction of being the largest democracy of the world. Election is a device which a modern State creates amongst its citizens a sense of involvement and participation in public affairs.

The Election Commission of India has been termed as “the means to the end of a vibrant representative democracy” and as a “bulwark for free and fair elections in India”. The institutions like Election Commission are non-elected or not constituted through an electoral mandate, but enjoy a higher level of confidence among the voters than those in whose formation the voters enjoy an electoral choice (where the people are actually voters) like the Parliament or the legislatures.

Election Commission: Genesis

The idea of parliamentary and electoral democracy was a striking plan, when it was conceived in colonial India. After independence, the architects of the Indian Constitution attached the highest significance to independent electoral machinery for the conduct of elections. This is discernible from the reports of the various committees and the discussions on the matter in the Constituent Assembly.

Consequently, it recommended the inclusion of the following clause in the list of Fundamental Rights. The superintendence, direction and control of all elections to the Legislature, whether of the Union or of the states, including the appointment of Election Tribunal, shall be vested in the Election Commission for the Union or Unit as the case may be appointed in all cases in accordance with the law of the Union.

The Advisory Committee agreed in principle with the contents of this clause but felt that “instead of being included in the list of Fundamental Rights, it should find a place in some other part of the Constitution”

When the matter was considered by the Constituent Assembly the mover of the clause, Gopalswami Aiyangar, a member of the Drafting Committee, accepted the amendment of H.V. Pataskar (Bombay) entrusting the Election Commission.

With the task of federal elections only and charging the Governor with the responsibility for the management and conduct of elections to the legislatures of the units through separate machineryx Thus the Drafting Committee through Article 289 of the Draft Constitution provided for separate Commissions for the conduct of federal and provincial elections.

“The new articles” he contended “proposed to centralise the Elections Machinery in the hands of a single Commission, to be assisted by Regional Commissioners working under the supervision, direction and control of the Election Commission” and not under the control of the State Governor.

The Fundamental Rights Committee came to the conclusion that no guarantee regarding minorities or regarding elections could be given if the elections were left in the hands of the executive of the day. Many people felt that if the elections were conducted under the auspices of the executive authority and if the executive authority did have power, as it must have, of transferring officers from one area to another with the object of gaining support for a particular candidate who was a favourite with the party in office or with the Government of the day, that will certainly vitiate the free election which we all wanted.

A section of the Constituent Assembly including Pataskar pleaded strongly for the retention of the original clause 289. Pataskar felt that the amended clause displayed a distrust of people in the provinces, down from the Governor nominated by the President to the smallest local authority and would be tantamount to depriving the provinces of the right to manage their elections. It would take away the ‘last vestiges of the provincial autonomy’.

A reading of the relevant provisions of the Constitution relating to elections reveal that the framers of the Constitution in their anxiety to ensure an independent position for such election authority made power of Parliament and the State Legislatures to make laws with respect to various electoral matters mentioned in articles 327 and 328 “Subject to the provisions of this Constitution”, including the provisions of article 324 of the Constitution.

Composition, Tenure and Conditions of Service

Regarding the composition of the Election Commission, there were two divergent proposals before the Drafting Committee: (a) either to have a permanent body of four or five members, or (b) ad hoc body constituted at the time of peak electoral activity. The Drafting Committee steered a middle course (Constituent Assembly Debates 1949 905). It decided to have permanently in office one man, namely, the Chief Election Commissioner who formed the permanent nucleus for organizing and conducting bye-elections and to arrange for general elections to Legislatures in case of premature dissolution, and arrange for the preparation of electoral rolls for the prospective general election.

Constitutional Provisions

The Constitution of India provides for a permanent and independent body, the Election Commission of India, and vests in it the superintendence, direction and control of the preparation of electoral rolls for the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-President’ (Article 324).

The Election Commission consists of the Chief Election Commissioner and such number of Election Commissioners, if any, as the President may fix from time to time. The Chief Election Commissioner stands at the apex of the hierarchy of the Election Commission of India. All these commissioners are appointed by the President subject to the provisions of any law Article 324 (2).

The Commission may have one or more than one member to be appointed by the President, i.e., the Executive. The Chief Election Commissioner enjoys a constitutional protection in manner of removal from the position, which requires parliamentary impeachment [Article 324(5)].

When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. Before each general election to the House of the People and to the Legislative Assembly of each State and before the first General Election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (1).

The words, ‘misbehaviour’ and ‘incapacity’ have, however, been left undefined in the Constitution. These words have been borrowed from the American Constitution where the final authority of interpreting the two terms rests with the Congress.

The method of removal of the Chief Election Commissioner like that of the Judges of Supreme Court or High Courts, doubtless, is complicated and difficult, but his tenure is dissimilar to that of the Judges.

A Supreme Court Judge holds office till the completion of a definite age, i.e., sixty-five years, whereas the tenure of the Chief Election Commissioner depends upon the rules framed by the President subject to statutory regulations. He may be appointed for any period of time. His tenure may also be extended. This was actually done in case of the two former Chief Election Commissioners, Sukumar Sen and K.V.K. Sundaram, both of whom held office for eight years (approximately) though initially both of them were appointed for a period of five years only.

Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. This distinction in the method of removal of the Chief Election Commissioner and other Election Commissioners was necessitated by the temporary nature of the appointment of the latter.

The salary and other conditions of service of the Chief Election Commissioner and the other Election Commissioners are to be determined by the President subject to statutory regulations and the constitutional guarantee that “the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment”.

Functions and Powers of the Election Commission

The Election Commission of India has to perform multifarious duties assigned to it under the Constitution which are as follows:

Demarcation of Constituencies

To facilitate the process of elections a country has to be divided into several constituencies. The task of delimiting the constituencies is generally performed by a delimitation commission. But the power to delimit parliamentary and assembly constituencies for the first general elections in 1951 was conferred on the President.

The President's delimitation order was to be released on the advice of the Election Commission which also consulted Parliamentary Advisory Committees set by the Speaker of Parliament and the Speaker of the respective legislative assembly to which the delimitation proposals pertained.

Electoral Rolls

The second important but tedious function of the Election Commission is to prepare the list of the eligible voters.

Registration of Political Parties and Allotment of Symbols

The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political parties in the Constitution of India. Section 29 A of the Representation of the People Act, 1951, provides for the registration with the Election Commission of political parties on application.

The Commission registers a party which has at least 100 registered electors as its members and is also charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur on correspondence with the parties after their registration. In order to ensure that the registered political parties practice democracy in their internal functioning, the Commission requires them to hold their organisational elections regularly in accordance with their constitutions.

The Commission registers a party which has at least 100 registered electors as its members and is also charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur on correspondence with the parties after their registration. In order to ensure that the registered political parties practice democracy in their internal functioning, the Commission requires them to hold their organisational elections regularly in accordance with their constitutions.

The Chief Election Commissioner is entirely within his rights to take the much needed initiative for trying to discipline and democratise the political parties before they can be allowed to take part in the democratic process of election, as registered and recognised parties. The Election Commission's also has the power to deregister and derecognize a party.

Scrutiny of the Nomination Papers

Another function of the Election Commission is to examine the nomination papers of the candidates. These papers are accepted if found in order, but rejected otherwise. This duty is performed by the Returning officer who notified to all the contesting candidates the date, time and place for the formal scrutiny of nomination papers.

The Conduct of the Poll

Another stupendous task that the Election Commission has to undertake is the conduct of the poll throughout the whole of India. In a Parliamentary or Assembly constituency, the Returning Officer is to make suitable arrangement for conducting the poll with the prior approval of the Election Commission. The Commission can order a re-poll for the whole constituency under compulsion of circumstances.

Election Financing

The Indian Electoral Law, under Section 77 of the Representation of the People Act, 1951, requires that all candidates should disclose the correct account of all the expenditure incurred in connection with the elections and that they are bound to submit the accounts between the day on which they have been nominated for election and the day of declarations of the results thereof.

The Election Commission itself has the right to disqualify a candidate, if it is satisfied that s/he has failed to submit an account of the expenses incurred within the specified time limit and in the manner required by the Act.

In another case Common Cause, the Court held that the integrity of elections was fundamental to democratic government and the election Commission can ask candidates about the expenditure incurred by them and by a political party.

Model Code of Conduct

The EC has taken several initiatives in the recent past as a use of state owned Electronic Media for broadcast or telecast by political parties, checking : criminalization of polities, providing with electoral identify cars, streamlining the procedure for registration of political parties and requiring them to hold regular organizational elections, a variety of measures of strict compliance of Model Code of Conduct for providing a level playing field to contestants during the elections, and so on.

The Code of Conduct lays down guidelines as to how political parties and candidates should conduct themselves during elections. A provision was made under the Code that from the time the elections are announced by the Commission, Ministers and other authorities cannot announce any financial grant, lay foundation stones of projects of schemes of any kind, make promises of construction of roads, carry out any appointments in government and public undertakings which may have the effect of influencing the voters in favour of the ruling party.

During the 2002 Punjab Assembly elections, an aggressive advertisement campaign was launched by the Congress against Chief Minister Parkash Singh Badal and his son, accusing them of corruption and bartering away the interests of Punjab. The Akali Dal hit back with its own set of equally aggressive advertisements against the Congress leaders.

Disclosure of Antecedents by Candidates

The Peoples Representation Amendment Act 2002 issued an order that each candidate must submit an affidavit regarding the information of his/her criminal antecedents. If he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction or sentenced to imprisonment for one year or more and more than this if the assets (both movable and immovable) of self and those of spouses and dependents as well and qualifications at the time of filing his/her nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies.

The Election Commission is in favour of the expenditure incurred by a political party to be included in the election expenses of a candidate, for purposes of ceiling on election expenses. In fact, the Commission has been insistently pressing for such a reform, right since the midseventies. The Supreme Court of India has also, time and again, commented on the inadequacy of the existing provisions in this regard.

The Commission felt that Article 324 of the Constitution should be amended to provide that (a) there should be a maximum of two Election Commissioners, along with the Chief Election Commissioner; and (b) the method of appointment and the constitutional protection after appointment, should be the same for the Chief Election Commissioner and other Election Commissioners.

Criminalization of Politics

Criminalization of politics is one of the most urgent issues for the Parliament to consider and legislate to tackle the problem. The Election Commission suggested a series of steps including the filings of declarations by political parties with the Commission that they would not field candidates and give tickets to those who were convicted as criminals, even if imprisoned for a period less than five years for a cognizable offence, in any election.

The Commission felt that the nomination form should contain a column seeking information if the candidate had ever been jailed and its duration, criminal cases pending against the persons, and, if the person had been charge-sheeted for any offence.

In a significant order to curb the criminalisation of politics, the Election Commission on 28th August 1997 passed an order, which prohibited convicted persons, regardless of whether an appeal was pending in a higher court, from contesting elections. The Election Commission felt that though Section 8 of the Representation of the People Act, 1951 provided that any convict would stand disqualified from contesting elections to the Parliament and Legislatures for six years, those on bail or with an appeal pending were being allowed to contest.

The Commission, in continuation of its desire to curb the menace of criminalisation, recommended to the Government sweeping changes in the election laws, suggesting that a person sentenced for more than six months should be debarred from contesting in elections for a period of six years and above.

Democracy within the Party

While pronouncing his order in the Janata Dal symbol case on October 16, 1994, the Chief Election Commissioner, T.N. Seshan, warned the political parties that if they failed to hold their organisational elections according to their constitution, necessary action would be initiated according to the Election Symbols (Reservation and Allotment) Order. Thereby their status of being legitimate democratic parties could be in jeopardy.

 

Strategic Voter Education and Electoral Participation (SVEEP)

The innovation of best practices is part of tendency in election administration to conduct elections in efficient management, one of the component is (SVEEP) which is voter education programme. It was launched in 2008 in Jharkhand and ECI termed this initiative as one of educating voters.

 

Election Commission and its Reforms

In 1972, the Joint parliamentary Committee on reform of electoral law suggested that the Chief Election Commissioner should be supported by the appointment of other Election Commissioners as allowed by Article 324 of the Constitution.

The Tarkunde Committee on Electoral Reform 1975 appointed by the Citizens for Democracy suggested a multi-member body and proposed that the selection of commissioners rather than being in the hands of the Presidents alone, should be put in the hands of a committee consisting of the Prime Minister Leader of Opposition in the Lok Sabha and the Chief /Justice.

The Chief Election Commissioner, Peri Sastri, thought the issue worthy of consideration in the late 1980s but was not prepared for the sudden nomination of two extra commissioners instigated by the Rajiv Gandhi government in October 1989.

The Government was fully within its jurisdiction to constitute a multi member commission (Prasad 1995). Clause (6) Article 324 prescribes “the president or the Governor of the State shall, when so requested by the Election Commission make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission.

The decision of the Supreme Court in T.N. Seshan finally closed the much debated controversy over the constitution of the multi-member Election Commission by declaring the presidential ordinance constituting a multi-member Election Commission as valid.

It also provided a fertile ground to the court to explain the need to have an independent Election Commission, manned with persons of high stature and integrity to ensure a free and fair poll in the Indian Electoral process.

The Supreme Court in T. N. Seshan case maintained that the scheme of Article 324 is that there shall be a permanent body to be called the Election Commission with a permanent incumbent to be called the Chief Election Commissioner.

The Supreme Court in its opinion rightly held that the Chief Election Commissioner does not enjoy a status superior to Election Commissioners. But, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the Chief Election Commissioner.

Therefore, in order to preserve and safeguard his independence, he had to be treated differently because there can’t be an election commission without a CEC. That is not the case with other Election Commissioners. They are not permanent incumbents.

On the status of the CEC vis-à-vis ECs’, the court came to a conclusion that the CEC does not enjoy a status superior to Election Commissioners. Though it is in the case of the CEC that the first proviso to clause (5) of Article after his appointment, where as such protection is not extended to Election Commissioners, but by virtue of the ordinance the CEC and the E.Cs’, are placed on a par in the matter of salary etc., of course, there can’t be Election Commission without CEC. That is not in the case of Election Commissioners, but this is not indication for conferring a higher status on the CEC. The court in the T. N. Seshan clearly maintained that no superior status is conferred on CEC and that the amending Ordinance/Act treating CEC on par with E.Cs’ not unconstitutional.

The decision to make the Election Commission a multi member one was made by the Government in the wake of certain recent controversial decisions taken by the Chief Election Commission which had created a serious confrontation between Election Commission and the Government in August, 1993.

The Chief Election Commissioner has postponed certain by-elections and biennial elections to the Rajya Sabha and State legislature councils unless certain “unresolved” dispute about the exclusive powers and privileges of the Commission to ‘direct’ the Government about the deployment of Central police forces at the time of an election. 

B.A. Political Science Notes, Sol DU BA Study Notes, BA Study Notes, ignou ba notes