Election Commission Project

ADMINISTRATIVE LAW NATURE OF POWERS OF ELECTION COMMISSION (FOR)

SUBMITTED IN THE PARTIAL FULFILMENT OF B.A. LL.B. (HONS.) 5TH SEMESTER

DATE OF SUBMISSION: SEPTEMBER 10, 2019. DATE OF VIVA: SEPTEMBER 24, 2019.

SUBMITTED TO:

SUBMITTED BY:

DR. SHIVA SATISH SHARDA

YASHASIVI MISHRA

ASSISTANT PROFESSOR OF LAW.

17007, GROUP 2.

Table of Contents 1. INTRODUCTION……………………………………………………………1 2. CONSTITUTIONAL PERSPECTIVE………………………………………………………………2 3. POWERS OF THE ELECTION COMMISSION……………………………………………………………….3 3.1 ADMINISTRATIVE……………………………………………………..5 3.2 ADVISORY ……………………….……………………………………..7 3.3 QUASI JUDICIAL………………………………………………………………..8 4. RECENT DEVELOPMENTS…………………………………………………………..10 5. BIBLIOGRAPHY….………………………………………………………..12

1. INTRODUCTION. The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils, and the offices of the President and Vice President of the country.1 The Election Commission operates under the authority of Constitution per Article 324 2 , and subsequently enacted Representation of the People Act. 3 The conduct of elections in India after independence became the responsibility of the Election Commission. It was in 1950 that the Election Commission of India was set up as a constitutional body and entrusted with the task of superintendence, direction and control of all national and state level elections. It was also given the work of preparation and revision of electoral rolls. The Constitution has pro- vision for a single EC to manage elections for both Parliament and the state legislatures. There was much discussion in the Constituent Assembly regarding the set- ting up of a single body to handle elections at both the levels. Some members of the Constituent Assembly saw this as a move towards an uncalled for centralisation, but the proposal was carried forth. The EC has "considerable autonomy of action" as it "derives its authority directly from the Constitution. The EC 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" In a countrywide poll conducted by the Centre for the Study of Developing So- cieties (CSDS) (Delhi) in 1996, after the 1st general elections, the EC stood as the institution which was trusted most by the people followed by the judiciary, the state government, local selfgovernment and so on, in that order.4

1

The Presidential and Vice-Presidential Elections Act, 1952. The Constitution of India, 1950, §324. 3 The Representation of the People Act, 1951. 4 Katju, Manjari. “Election Commission and Functioning of Democracy.” Economic and Political Weekly, vol. 41, no. 17, 2006, pp. 1635–1640. 2

2. CONSTITUTIONAL PERSPECTIVE. In the case of TN Seshan v Union of India

5

, it was observed that,

“Democracy being the basic feature of our constitutional set up, there can be no two opinion that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.” The objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution. The superintendence, direction and control of the entire election process in the country has been vested under the said clause in a commission called the Election Commission. Clause (2) of the said article then provides for the constitution of the Election Commission by providing that it shall consist of the CEC and such number of ECs, if any, as the President, may from time to time fix. It is thus obvious from the plain language of this clause that the Election Commission is composed of the CEC and, when they have been appointed, the ECs.6 Dr. Ambedkar while explaining the purport of this clause during the debate in the Constituent Assembly said: "Sub-clause (2) says that there shall be a Chief Election Commissioner and such other Election Commissioners as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent, body consisting of four or 5

TN Seshan v. Union of India, (1995) 4 SCC 611. Katju, Manjari. “Election Commission and Changing Contours of Politics.” Economic and Political Weekly, vol. 44, no. 16, 2009, pp. 8–12. 6

five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee has steered a middle course. What the Drafting Committee Proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available." It is crystal clear from the plain language of the said clause (2) that our Constitutionmakers realised the need to set up an independent body or commission which would be permanently in session with atleast one officer, namely, the CEC, and left it to the President to further add to the Commission such number of ECs as he may consider appropriate from time to time. Clause (4) of the said article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the Election Commission is concerned. The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realise that this check on the executive’s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would

destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons which are conducive to efficient functioning of the Election Commission. The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election. Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the Union Public Service Commission and the Comptroller and Auditor General of India. The commission secretariat is based in New Delhi which includes the Election Commissioners, Deputy Election Commissioners (usually IAS officers) Directors General, Principal Secretaries, Secretaries and Under Secretaries. Administration is generally by state with the Chief Electoral Officer of the State, who is an IAS officer of Principal Secretary rank. At the district and constituency levels, the District Magistrates (in their capacity as District Election Officers), Electoral Registration Officers and Returning Officers perform election work.

3. POWERS OF THE ELECTION COMMISSION. The fundamental pursuit of democracy is elections at regular intervals. The Election Commission is regarded as India's guardian of elections. Starting with the 1971 5th Lok Sabha elections, the commission has issued for each election an advisory Model Code of Conduct guidelines to be adhered to by political parties and candidates although there is no constitutional statutory power or obligation to do so. To curb the growing influence of money during elections, the Election Commission has made many suggestions and changes in this regard. The commission has appointed IRS officers of the Income Tax Department as Election Observers (Expenditure) of all elections and has fixed the legal limits on the amount of money which a candidate can spend during election campaigns. These limits have been revised over time. The Election Commission, by appointing expenditure observers from the Indian Revenue Service, keeps an eye on the individual account of election

expenditure. The commission takes details of the candidate's assets on affidavit at the time of submitting nomination paper, who are also required to give details of their expenditure within 30 days of the declaration of results. The campaign period has also been reduced by the commission from 21 to 14 days for Lok Sabha and Assembly elections to cut down election expenditure. 7 In an attempt to decriminalise politics, the Election Commission has approached the Supreme Court to put a lifetime ban on convicted politicians from contesting elections. The requirements to be fulfilled by an election machinery include, as held by the Supreme Court in NP Ponnuswami v. Returning Officer, Namakkal Constituency8: 

There should be a set of rules and laws making provisions to all matters in relation to elections. It should be decided as to how these rules are to be made.



There should be an executive charged with the duty of securing the due conduct of elections.



There should be a judicial tribunal to decide all disputes arising in connection with elections.

Part XV of the Constitution deals with elections. The second requirement is satisfied by Article 324, while Articles 327 and 328 deal with the first. Article 329 deals with the third one. The powers of the Election Commission are defined in the following articles of the Indian Constitution: 

Article 324: Superintendence, control and direction of national and state level elections are to be directly handled by the ECI



Article 325: Inclusion and exclusion of names in electoral rolls are based on Indian Citizenship. No citizen of India above the voting age should be excluded from the rolls or included in a special electoral roll based on any criteria such as race, caste, religion or sex.

Kumar, Sanjay. “Reforming Indian Electoral Process.” Economic and Political Weekly, vol. 37, no. 34, 2002, pp. 3489–3491. 8 NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64. 7



Article 326: Defines universal adult franchise as the basis for elections to all levels of the elected government.



Article 327: Defines responsibilities of the ECI and parliament for the conduct of national elections.



Article 328: Defines the role and responsibilities of the state legislatures with respect to state level elections.



Article 329: Prohibits court interference in matters related to elections unless specifically asked to provide their views.

The powers of the Election Commission can be studied under three headings: 

Administrative Powers



Advisory Powers



Quasi-Judicial Powers

3.1 Administrative Powers of the Election Commission 1.

The commission has been empowered to function in accordance to the Delimitation Commission Act and define the territorial boundaries of electoral constituencies for different elections. 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 proposal pertained. The Election Commission distributed the seats district-wise in each one of the States and directed the Chief Electoral Officers to prepare proposals for the physical demarcation of Constituencies according to the prescribed criteria. As on outcome of the recommendation of the Election Commission the Parliament enacted the Delimitation Act, 1952. The Delimitation Commission was to consist of three members, two of whom were the nominated by the President

from serving or retired judges of the Supreme Court or High Courts while the Chief Election Commissioner was to be an ex-office member.

2.

It has been given powers to register and deregister any political party or entity. A new part (Part IV A) has been added to the Representation of the People (Amendment) Act, 1951 on registration of political parties. Section 29 A now inserted provides for registration with the Commission, of associations and bodies of individual citizens of India as political parties for purpose of this Act. This provision came into force from June 15, 1989. A recognised political party has been classified either as a National Party or a State Party under paragraph 7 of the Elections Symbol Order, 1968. Another important function of the Election Commission is to allot symbols to the political parties and the candidates, and also to accord recognition to the political parties. The Commission has specified certain symbols as reserved and others as free. The reserved symbols are only available for candidates sponsored by the political pin ties and the free symbols are equally available to other candidates.

3.

It is empowered to enforce the ‘Model Code of Conduct’ for election campaigns and ensures its implementation.

4.

It is empowered to keep a check on the election expenses of the political parties. This ensures a level playing field for all the political parties irrespective of their size and thus the capacity to spend. In India every contesting candidate is required to maintain and file the accounts of his election expenses within a prescribed period after publication of the result of his election. Within 10 days from the last date of filing the returns, the Returning Officer submits to the Election Commission, a list of all the candidates and their agents together with their returns as a also his observations in respect of candidates who have failed to lodge returns in the specified time and in accordance with the procedure prescribed by law. The Commission scrutinizes the accounts and decides whether the returns are in proper form and whether they have been lodged in time. In case of default, it

notifies the candidates or their agents of their disqualification by publishing these in the official Gazette.9 5.

It has the power to appoint officers as election observers and expenditure observers from different departments of the Civil Services.

6.

It undertakes the task of the poll throughout the whole of India. In a Parliamentary or Assembly constituency, the Returning Officer is to make suitable arrangements 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. In the case of AIADMK v. State Election Commissioner 10, it was held that the Election Commission has jurisdiction and authority, nay the duty to direct re-polling in any or all the wards, if he comes to the conclusion on the basis of materials on record that there is no free and fair election and there has been large scale of booth capturing. Such action can be taken by the Election Commission not only on the basis of the reports submitted by various election officers, but also on other materials including the newspaper reports.

3.2 Advisory Powers of the EC: 1.

The Commission is empowered to advise the President of India regarding disqualification of the members of Parliament and the conditions for the same.

2.

The Commission also advises the Governors with respect to the disqualifications of members of the State Legislatures

3.

It advises the High Courts and Supreme Court in matters related to postelection disputes between candidates and political parties.

4.

It examines 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 notifies to all the contesting candidates the date, time and place for the formal scrutiny of nomination papers. The Returning Officer summarily but judicially examine all the nomination papers and decides the objection raised. He is also to see whether the requisite

Jain, Subhash C. “STATE FUNDING OF ELECTIONS AND POLITICAL PARTIES IN INDIA.” Journal of the Indian Law Institute, vol. 43, no. 4, 2001, pp. 500–511. 10 AIADMK v. State Election Commissioner, 2007 SCC OnLine Mad 49. 9

requirements of security deposit, election symbol, election agent, etc., have also been fulfilled. The post-election disputes related to the election of President and Vice President go to the Supreme Court. Disputes regarding the Parliament and the State Legislatures are referred to the High Courts. 3.3 Election Commission Quasi-Judicial Powers 1.

The Election Commission is empowered to settle disputes regarding recognition granted to political parties and candidates.

2.

It has the powers to act as a court for matters related to disputes arising out of the allotment of election symbols to political parties and candidates. No two election symbols are the same, even in different regions.

3.

It must be noted that the elections with respect to the election of Panchayats and Municipalities are carried out under the supervision of the State Election Commission. The State Election Commissions are in turn advised by the ECI and are answerable to it.

The ECI is one of the few constitutional authorities which have the freedom to operate autonomously. Other such bodies are the Comptroller and Auditor General (CAG) of India’s Office, Higher judiciary such as the High Courts and Supreme Court and the Union Public Service Commission. In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate must submit an affidavit regarding the information of his/her criminal antecedents; 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. 11 But political parties believed that the EC and the judiciary were overstepping their powers. At the all-party meeting, held on July 8, 2002, representatives of 21 political parties decided that the EC’s order should not be allowed to be implemented. The

Bose, B.P.C., and M.V.S. Koteswara Rao. “Criminalisation Of Politics : Need For Fundamental Reform.” The Indian Journal of Political Science, vol. 66, no. 4, 2005, pp. 733–754. 11

Supreme Court again came out as a guardian of the citizen’s right to information.The Supreme Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme Court’s order and as such the nomination papers shall be liable to be rejected by the Returning Officer. Furnishing of wrong or incomplete information shall result in the rejection of nomination papers, apart from inviting penal consequences under the Indian Penal Code. The 2004 General Elections were conducted under these rules. The above order is an effective step to make democracy healthy and unpolluted. Citizens have every right to know about the persons whom they prefer as their representatives. The EC has directed all Returning Officers to display the copies of nomination papers and affidavits filed by candidates to the general public and representatives of print and electronic media, free of cost. With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and fictitious entries into electoral rolls, EC took a bold step in 1998 to take a nationwide program for the ‘computerisation’ of electoral rolls.The printed electoral rolls, as well as CDs containing these rolls, are available to the general public for sale national and State parties are provided these free of cost after every revision of electoral rolls.The entire country’s electoral rolls are available on its website. Karnataka became the first State to prepare electoral rolls with the photographs of voters in the 2008 elections. In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs, on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed in the rolls with the issuance of voter identity cards.

For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more. There is a provision of disqualification once a person is convicted and sentenced to imprisonment of two years or more. The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed charges. As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior to an election should be taken into account for that election. 12 In Common Cause (A registered society) v. Union of India and Others13, the court dealt with election expenses incurred by political parties and submission of return and the scope of Article 324 of the Constitution, where it was contended that cumulative effect of the three statutory provisions, namely, Section 293-A of the Companies Act, 1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation of the People Act, 1951, is to bring transparency in the election funding and people of India must know the source of expenditure incurred by the political parties and by the candidates in the process of election. It was contended that election in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election and that this vicious circle has totally polluted the basic democracy in the country. 4.

RECENT DEVELOPMENTS.

The Election Commission's new mega Electors Verification Programme (EVP), which seeks to update electoral rolls through crowd sourcing, is set be to launched on September 1 across the country, officials said on Saturday. Under the programme, a voter from each family will get a username and password, allowing a person to upload all documents related to electoral registration and tag similar details about his or her

12 13

supra note 11. Common Cause v. Union of India, (1996) 2 SCC 752.

family members, Delhi Chief Electoral Officer (CEO) Ranbir Singh said at a press conference. 14

"These details will then be verified by block level officers (BLOs) and therefore, it will save a lot of time. The idea is also to empower voters to assess electoral roll details, self-authenticate and then get mistakes rectified, if any." It has also decided to revamp the voter identity cards across the country to bring in uniformity and the exercise has already commenced in Karnataka. Citizens who already have a black and white card and want to get a new Voter ID can expect to see the new card within a minimum of 15 days. 15 The 15th Law Commission Report16 suggests ways to broaden the powers of the election commission such as the Article 324(5) of the Constitution should be amended to equate the removal procedures of the two Election Commissioners with that of the Chief Election Commissioner. Thus, equal constitutional protection should be given to all members of the ECI in matters of removability from office. A new sub-clause (2A) should be added to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further improve the independence of the ECI. The Model Code of Conduct came into force on March 10, 2019, when the election schedule was announced, and operated till May 23, 2019, when the final results were announced.

“Election Commission's mega Electors Verification Programme to be launched on September 1”, The Economic Times, 31 August 2019. 15 Nivedh Utaih P, “Now you can have voter ID in colour”, The Hindu, 1 September 2019. 16 The Law Commission of India. Two Hundred and Fifty Five Report on “Electoral Reforms.” 14

5.

BIBLIOGRAPHY. Cases:

1. Common Cause v. Union of India, (1996) 2 SCC 752. 2. AIADMK v. State Election Commissioner, 2007 SCC OnLine Mad 49. 3. NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64. 4. TN Seshan v. Union of India, (1995) 4 SCC 611. Statues: 1. The Presidential and Vice-Presidential Elections Act, 1952 (Act No. 31 of 1952). 2. The Constitution of India, 1950, §324. 3. The Representation of the People Act, 1951. Articles: 1. Election Commission's mega Electors Verification Programme to be launched on September 1”, The Economic Times, 31 August 2019. 2. Nivedh Utaih P, “Now you can have voter ID in colour”, The Hindu, 1 September 2019. 3. Bose, B.P.C., and M.V.S. Koteswara Rao. “Criminalisation Of Politics : Need For Fundamental Reform.” The Indian Journal of Political Science, vol. 66, no. 4, 2005, pp. 733–754. 4. Jain, Subhash C. “State Funding Of Elections And Political Parties In India.” Journal of the Indian Law Institute, vol. 43, no. 4, 2001, pp. 500–511. 5. Katju,

Manjari.

“Election Commission and

Changing

Contours of

Politics.” Economic and Political Weekly, vol. 44, no. 16, 2009, pp. 8–12.