Election Commission of India: Powers & Criticism

Context: The Election Commission of India (ECI) is constitutionally mandated to conduct free and fair elections. With the ongoing Special Intensive Revision (SIR) controversy in Bihar, the credibility of ECI is being questioned. In a functional democracy, reinforcing trust in ECI is crucial to ensure the principle of one person, one vote.

Relevance: Prelims: Powers and functions of Election Commission of India. Mains: Election Commission: Reforms Needed & Way Forward.

Election Commission of India

• The Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country. 
• Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections vested in the Election Commission, related to:
  • Parliament
  • State legislatures
  • Office of President of India
  • Office of Vice-President of India 
• Article 324 (2): Election Commission shall consist of the Chief Election Commissioner (CEC) and such number of Election Commissioners (ECs), as the President may fix from time-to-time. 
• Article 324 of the Constitution and the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 lay down provisions regarding the appointment, tenure, and removal of the CEC.

Election Commission of India: Powers & Criticism

Powers and functions of ECI: 

The powers and functions of the Election Commission with regard to elections to the Parliament, state legislatures and offices of President and Vice-President can be classified into three categories: Administrative, Advisory and Quasi-Judicial.  In detail, these powers and functions are: 

1. To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.
2. To prepare and periodically revise electoral rolls and to register all eligible voters. 
3. To notify the dates and schedules of elections and to scrutinize nomination papers. 
4. To grant recognition to political parties and allot election symbols to them.
5. To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them. 
6. To appoint officers for enquiring into disputes relating to electoral arrangements. 
7.  To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
8. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
9. To advise the President on matters relating to the disqualifications of the members of Parliament.
10. To advise the governor on matters relating to the disqualifications of the members of the state legislature.
11. To cancel polls in the event of rigging, booth capturing, violence and other irregularities.
12. To request the President or the governor for requisitioning the staff necessary for conducting elections.
13. To supervise the machinery of elections throughout the country to ensure free and fair elections.
14. To advise the President whether elections can be held in a state under the president's rule in order to extend the period of emergency after one year. 
15. To register political parties for the purpose of elections and grant them the status of national or state parties based on their poll performance. 

Criticism and Challenges faced by the Election Commission of India: 

• Executive Control in Appointment: Parliament replaced the SC’s interim tripartite panel (PM + LoP + CJI) with a selection committee (PM + a Cabinet Minister nominated by the PM + LoP) to appoint CEC, creating a built-in 2:1 executive majority. This selection committee design for the appointment of CEC weakens institutional independence of the Election Commission.
• Limited Safeguards to ensure Independence:
  • Article 324 does not lay out specific qualifications (educational, professional, or otherwise) for appointment of CEC and ECs. 
  • The Constitution does not bar retiring CEC and ECs and from holding further government office. In the past, retired CEC and ECs have been appointed to the posts like Governor etc. This leaves the scope for partisan approach in their conduct in the anticipation of post-retirement allurements. 
• Lack of Financial Autonomy:  As per the current practice, ECI’s expense is voted and approved by Parliament thereby giving financial discretion to the Parliament. The expenses of ECI are not charged upon Consolidated Fund of India, making EC dependent on the central government in financial matters. 
• Lack of Security of Tenure to ECs: While CEC can only be removed on the grounds as needed for the removal of a Supreme Court judge; ECs can be removed from office on the CEC's recommendation. This makes ECs vulnerable and affects their ability to act independently.
• Lack of Permanent Staff: ECI does not have independent staff of its own, and is dependent upon staff of Central and State Governments for administrative staff whenever elections take place. This hampers efficient functioning of the Commission posing incidents like power tussles between ECI and state government staff in certain states.
• Limited Power to regulate Political Parties: ECI does not have an explicit power to deregister political parties in any event (except on limited grounds such as registration obtained by fraud). ECI does not have any power to enforce internal democracy with political parties and has limited power in regulating party finances.
• Reduced Transparency: The ongoing SIR controversy in Bihar which led to the exclusion of 65 Lakh voters from the electoral rolls adds to the allegations of manipulation of electoral rolls by ECI. Similar claims of voter roll manipulation including duplicate and bulk registrations have been seen in the past, which undermines the credibility of ECI.  

Way Forward

Recommendations of 255th Law Commission Report (2015):   

• Need for Parity in the removal process of Election Commissioners.
• EC’s expense to be charged on Consolidated Fund of India to ensure financial autonomy.
• Separate and Independent Secretariat: Having powers to appoint, transfer and promote its staff and officers. This will insulate personnel from executive and political interference.
• Collegium based Appointment: Appointment of all the ECs, including CEC, should be made by the President in consultation with a three-member collegium or selection committee, consisting of Prime Minister; Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha) and the Chief Justice of India.
• Elevation of an Election Commissioner should be on the basis of seniority - unless the three member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit. 
• EC must have power to de-register political parties.  
• Common Electoral Roll for Parliament, Assembly and Local Elections: This will avoid duplicity of effort and resources by EC and SEC.