Part XV of the Constitution entitled as “Elections” constitutes a code in itself, providing the groundwork for the enactment of appropriate and the setting up of suitable machinery for the conduct of elections
Election Commission (Article 324)
Article 324 provides for ”the appointment of an Election Commission for superintendence, direction and control of elections”. The Commission is an all-India body having jurisdiction over elections to Parliament, State Legislature, offices of the President and Vice-President. The Commission is constituted as autonomous and independent body, with a view, to ensure the conduct of “free and fair elections”, which is held to be a “basic structure of the Constitution”. It has been said to be the most important arbitrator on holding of the elections.
Constitution of the Election Commission:
Clause (2) of Article 324 provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix.
Until Parliament makes any law in that behalf, the Chief Election Commissioner and other Election Commissioners are appointed by the President.
- When any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the chairman of the Election commission.
- The president may also appoint, after consultation with the Election commissioners such Regional Commissioners as he may consider necessary to assist the election Commission in the performance of its functions.
- The conditions of service and tenure of office of the Election commissioners and the Regional Commissioners shall be such as the President may by the rule determine. These rules, however, are subject to any Parliament in this respect.
Anoop Baranwal vs Union of India 2023: A Constitution Bench of the Supreme Court unanimously held that the selection of the Chief Election Commissioner and the Election Commissioners would be done by a three-member Committee consisting of the Prime Minister, the Leader of the Opposition (or the leader of the largest opposition party in Parliament), and the Chief Justice of India. The Court, thus, altered the present mode of selection, where the CEC is appointed by the President, acting on the advice of the Prime Minister.
Chief Election commissioners vis-à-vis other Election Commissioners
Clause (5) of Article 324 says that the Chief Election commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court and the conditions of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
It is thus clear that the Election Commissioners do not hold the same position as the Chief Election Commissioner.”
- While the CEC is the creation of the Constitution, the number of other Election Commissioners is by the President.
- While the CEC can be removed from his office in the manner provided in the Clause (5) of Article 324, the other commissioners hold their office during the pleasure of the President, subject to any law made by Parliament in this regard.
- Again, while the conditions of the CEC cannot be varied to his disadvantage, the conditions of other Commissioners are determined by President by rule, subject made by Parliament in this regard.
After the Supreme Court’s observation in “S.S. Dhanoa’s case” and also in the wake of certain controversial decisions taken by the CEC resulting in serious confrontation between the Commission and the government of India, the latter decided to provide for a Multi-member Commission.
For the purpose, the President promulgated “The chief election Commissioner and other Election Commissioners (Conditions of service Amendment Ordinance, 1993”, to amend “The Chief Election commissioner and other Election Commissioners (Conditions of Service) Act, The Ordinance was later replaced by the Act in 1994. The Ordinance provided for a multi-member Election Commission, making CEC on par with other election Commissioners and providing that business of the Commission would be transacted on the basis of unanimous decision and in case of difference of opinion, on the basis of opinion of the majority.
In T.N. Seshan vs. Union of India,” the Supreme Court unanimously upheld the constitutionality of the Act equating the status, powers authority of the two Election Commissioners with that of the CEC The C held that the CEC did not enjoy a status superior to other Elect Commissioners even though there were differences between the service conditions of the CEC and other CEs. The scheme of Article 324, it was clearly provided for a multi-member body comprising of the CEC and other EC’s.
Independence of Election Commission
The Constitution envisages the setting up of an independent autonomous Election Commission. To secure independence of action, Art 324 contains the following provisions,
- That, the CEC shall not be removed from his office except in the manner and on the like grounds as a Judge of the Supreme Court.
- The conditions of service of the CEC shall not be Varied to the disadvantage after his appointment. The CEC is, therefore, protected against political and executive influence and for that reason, he can discharge his functions without fear, favour & pressure from the executive or the party in power.
- Even the tenure of office of other Election Commissioners and the Regional Commissioners is also free from the executive control in so far, none of them can be removed from office except on the recommendation of the CEC. This check on the executive power is to safeguard the independence of not only these functionaries but the Election Commission as a body.
Staff of the Election Commission [Article 324 (6)]
The Election Commission, generally has few staff of its own. It, however can demand necessary staff from the Central and State Government whenever required. For that purpose, Clause (6) of Article 324 provides “the President, or the Governor of a State shall, when so requested by the Election Commission, make available to the Election Commission or to Regional Commissioner such staff as may be necessary for the discharge the functions conferred on the Election Commission by Clause (1)”.
Understanding/ Analysing the Power of the Election Commission under (Article 324)
The expression superintendence, direction and control and conduct of all election in Article 324(1) has been held to include such power which is not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding elections in free and fair manner.
- Fixing schedule for election is the exclusive domain of Election commission: Article 174 (1) provides for: The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. There is no provision expressly providing for any period of limitation for constituting a fresh legislative assembly on the premature dissolution of the previous legislative assembly. However apex court held Election commission is required to initiate immediate steps for holding elections for constituting legislative assembly on the first occasion and in any case within six months from the date of premature dissolution of assembly.
- Power in respect to allotment of symbols and adjudication of dispute regarding rival claims to a particular symbol :
- The Commission said that it had based its decision on a “test on majority” as the group of MLAs supporting the Eknath Shinde group had got nearly 76% of the votes polled for the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly Elections, while the Uddhav Thackeray faction got only 23.5% of votes. The party name Shiv Sena and the Party symbol Bow and Arrow will be retained by the petitioner (Eknath Shinde) faction.
- Samajwadi party Feud: Akhilesh was running the Mulayam Singh-founded party, when Shivpal claimed Mulayam’s legacy and the party’s cycle Symbol. When the feud reached the ECI, Akhilesh was able to prove that he had the majority support from the Samajwadi Party leaders, the ECI awarded him the Samajwadi Party chief post retention and the cycle symbol. Shivpal Yadav went on to form a separate party Pragatisheel Samajwadi Party-Lohia.
- Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognized political party if it refuses to observe the model code of conduct. However, the issue is when the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition.
- The Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner 1978 that Article 324 contains plenary powers to ensure free and fair elections and these are vested in the ECI which can take all necessary steps to achieve this constitutional object. However, the transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of the power conferred by Article 324.
- ECI has issued MCC guidelines and as per the guidelines, Ministers cannot announce any construction work, or announce any financial grant but the challenge is Section 123 (2)(b) of the Representation of the People Act, 1951 says that the declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.
- Another key issue is the fact that the EC lacks the machinery to fulfil all that is required of it. For example, under the Representation of People Act, 1951, the EC is the registering authority for all political parties, which been expressly provided under Section 29A of the said Act but the power to register does not carry with it the ancillary power of de-registering a political party. At present, there are 2000 political parties registered with the EC, out of which, several never contest elections or submit their accounts and exist merely for the purposes of money laundering. Despite this, the EC lacks the power to deregister the parties.
- The EC was recently pulled up by the Supreme Court as no action was taken by the Commission even though hate speeches took place across the country and even as votes were appealed to in the name of religions and communities. The EC in its reply to the Court said that it was powerless, that it could merely issue notices, advisories and in case of repeated violations, file complaints. This reply caused the Supreme Court to comment that the EC “can bark but not bite”.
One General Electoral Roll for every Constituency (Article 325)
Article 325 provides: There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of them. Section 22 of the Representation of the People Act, 1950 empowers the Electoral Registration Officer of a constituency to delete the name of a person from the Electoral Roll on certain grounds. It has been held that such deletion must be done only after giving to the person concerned meaningful opportunity of hearing and after following requisite procedure.
System of Adult Suffrage (Article 326)
Article 326 incorporates the system of adult suffrage for elections to the Lok Sabha and the Legislative Assembly of every State. According to this system, a person to be registered as a voter for these elections must comply with the following requirements:
- He must be a citizen of India.
- He must not be less than 18 years of age on the appointed day.
- He must not be otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime, corrupt or illegal practice.
Parliament has enacted the Representation of People Act, 1950 which requires a person, to be registered as a voter, to fulfil the following conditions:
- He must be a citizen of India.
- He must not be declared to be of unsound mind by competent court.
- He must not be disqualified from voting under a law relating to corrupt and illegal practices or other offences in connection with elections.
No person is entitled to be registered in the electoral roll for more than one constituency or of any constituency more than once. A person shall be disqualified from voting at any election for 6 years if he is convicted of any of the specified offences punishable with imprisonment or who, upon the trial of an election petition is found guilty of any corrupt practice. This disqualification may, however, be removed by the Election Commission, for reasons recorded by it in writing.
Status of Right to vote
The Constitution bench comprising in Anoop Baranwal case, was of the view that right to vote is a Constitutional right. The four judges in majority however refrained from making a final judicial declaration in this regard, citing the 2006 judgment in Kuldip Nayar vs Union Of India, where a bench of coordinate strength had held that “there is no Constitutional Right”. Justice Rastogi observed that right to vote is not merely a constitutional right, but a component of Part III of the Constitution. He goes on to state that right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21 of the Constitution. Justice Rastogi attempted to draw strength from the Constituent Assembly Debates which shows that right to vote was initially considered as a fundamental right. However, it was shifted to another constitutional provision as the founders did not want to “offend” the Princely States, with whom they were negotiating to be a part of India.
Settlement of Election Disputes (Article 329):
- Clause (a) of Article 329 provides that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purported to be made under Article 327 or Article 328 shall not be called in question in any Court.
- Clause (b) of Article 329 as amended by the Constitution (19th Amendment) Act, 1966, provides that notwithstanding anything in the Constitution, no election to either House of Parliament or the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. In pursuance of this Clause, Parliament enacted the Representation of the People Act, 1951. The Act has vested the power to decide any election petition, in the High Courts.
In Inderjit Barua vs. Election Commission of India, it was held that preparation of electoral rolls was not part of election. It was further said that no election could be challenged on the ground of defect in electoral rolls. The Court ruled that an election could be challenged only by an election petition as required by Clause (b) of Article 329. Any alleged illegality or irregularity in the matter relating to allotment of symbol can only be challenged by filing a petition on any of the grounds under Section 100 of the Representation of the People Act, 1951, read with Article 329(b) of the Constitution, after the election process is over and not at the intermediate stage by filing a writ petition.