Election Commission is the constitutional authority responsible for controlling and regulating elections at various levels i.e. National, State & District level. Article 324 of the Constitution deals with the appointment of an Election Commission to direct & control elections. It is an independent regulatory authority in India.
Composition of election commission
There shall be Chief Election Commissioner and the other Election Commissioners which are appointed by President will be according to the need of time. In other words, there is no fixed number for appointing the Election Commissioners, as the need will arise the appointment will be done by the President.
Appointment & removal of commissioners
Article 324 (2) deals with the provisions of appointment of Election Commissioners. During the appointment of the other Election Commissioners, the Chief Election Commissioner shall act and work as the Chairman of Election Commission. The President appoints the Regional Commissioners as per the necessity, after consulting with Election Commissioner Article 324 (4). President is empowered by the Constitution to decide the conditions of service and tenure of office of the Commissioners. But these rules are subject to any law made by the Parliament.
The Chief Election Commissioner (CEC) is removed from his office on the grounds of proved misbehaviour and incapacity. This removal of CEC is similar to the removal of Supreme Court Judges. Other Election Commissioners are removed by the recommendation of CEC. The conditions of the office of CEC cannot be changed or varied after his appointment from the office of the President.
The Commissioners can perform their duties without fear, pressure either political or other. On the request of the Election Commission, the Governor of the concerned State and the President can make available the staff which is required. The Election Commission doesn’t have a broad staff, when the requirement arises the staff is made available by the Governor and President.
In S.S. Dhannoa v. Union of India case, 1 the SC has held that Election Commissioners cannot be placed on a par with the CEC in the terms of power of authority. The Court while dismissing the petition has held that the term of service was not open to challenge on the grounds of legality. The Court further said that the protection available to CEC were not available to any Commissioners, hence their condition of service can be varied.
Multi member commission:
In 1993, the government has issued an ordinance which afterwards became an Act. The Act converted the single man commission into multi-member commission. After the enforcement of this Act, there will be two Election Commissioners instead of one. The Ordinance of 1993 specifically mentions that the decision of three members Election Commission shall be unanimous.
When the difference between the opinion of CEC and other Commissioners arise then the matter shall be decided according to the majority. The Ordinance provides that the allocation of business work would be done under the Act and Rules of Business issued by the President.
In S.S. Dhannoa v. Union of India case, 2 the SC has held that when the institution like the Election Commission was entrusted with vital functions and has the exclusive and uncontrolled power to execute them, it was desirable and necessary that the powers were not exercised by one individual, however, wise he might be. It all conformed to the tenets of democratic rule.
In T.N. Seshan v. Union of India case, 3 the five judges Constitutional bench of the Supreme Court (comprising CJ Ahamadi, J. S. Verma, N. P. Singh, S. P. Bharuch and M. K. Mukherjee, JJ.) upheld that the validity of the Act equating the status, power and authority of two Election Commissioners with that of CEC. Ahmadi, CJ held that the CEC does not enjoy a status superior to other ECs. The difference between the service conditions of CEC and other ECs such as the CEC can only be removed from his office in the like manner and on the grounds as a Judge of the Supreme Court and that conditions of service cannot be varied to the disadvantage of the CEC. Article 324 envisages a permanent body to be headed by CEC. Hence, to preserve and safeguard his independence, he had to be treated differently because there cannot be an Election Commission without a CEC.
Article 324 deals with a multi-member body comprising the CEC and the Election Commissioners. Ahmadi, CJ, observed “Nobody can be above the institution which he is supposed to serve. He is the creature of the institution and he can exist only if the institution exists. To project the individual as mightier than the institution would be grave injustice”.
Functions of Election Commission:
According to Article 324 (1), the Election Commission performs the following functions:
The superintendence, directions and control of the preparation of electoral rolls and also the conduct of election to Parliament and State Legislatures, and to the office of the President and Vice-President.
According to Article 325- there shall be one general electoral roll for every territorial constituency and no person shall be ineligible for inclusion in any roll merely on the grounds of religion, race, caste and sex. The elections to the Parliament and State Legislatures are to be held based on Adult Suffrage i.e. every person who is a citizen of India and who is not less than 18 years of age has the right to vote. The role of Election Commissions is to take over the actual conduct and supervision of the elections. It is the duty of the Government to initiate elections.
Power of Parliament and State Legislatures with respect to election laws:
Article 327 empowers the Parliament to make provisions with respect to all matters relating in connection with election to Parliament and State Legislature. Parliament has enacted the Representation of Peoples Act, 1950 and 1951, the Presidential and Vice-Presidential elections Act, 1952 and Delimitation Commission Act, 1952. Article 328 confers similar power on State Legislatures the State Legislatures can make laws relating to all of the above matters referred to under Article 327, in so far as provision in that behalf is not made by the Parliament.
In A. C. Jose v. Sivan Pillai 4 an appeal was filed by the appellant, who was an unelected candidate for an Assembly Constituency in Kerala, challenging the validity of the order of the Election Commission directing casting of ballot by machines in some police stations. The Court held that the order of commission directing casting of votes by a mechanical process in some polling stations cause without jurisdiction and hence declared as unconstitutional. The commission has no power to override provisions of the Act or Rules made by the Legislature under Article 327. In absence of any rule or Parliamentary Legislation, the Commission is free to pass any order in respect of the conduct of the election. Article 324 must be read harmoniously with article under Entry 72 of the Union List and Entry 37 of the State List in the seventh schedule of the Constitution.
Relation between Article 174 and Article 324
In Presidential Reference, 2002 5 the President referred some questions regarding interpretation of Article 174 and Article 324 to the SC for his opinion. Article 174 states that the government has the power to dissolve the State assembly from time to time and place as he thinks fit. It also provides that 6 months shall not intervene between its last sitting in one session and the date appointed for its first time sitting in the next session.
The Government referred three questions to the Supreme Court for its opinion:
- Whether Article 174 subject to the decision of the Election Commission not to hold the election in a State under Article 324.
- Whether the Election Commission can declare an election schedule which violates Article 174 and after the expiry of 6 months constitutional period for assembly to meet the imposition of presidential rule under Article 356
- Whether the mandate of Article 174 to hold election will be fulfilled by the holding of election by commission under Article 324.
5 Judge’s bench headed by Chief Justice BN Gopal rejected the intention of the Gujarat government and held that Article 174 (1) neither related to election nor does it provide any outer limit for holding elections for constituting the Legislative Assembly. The holding of election is the exclusive domain of Election Commission under Article 324 of the Constitution.
Regarding question 1: the Court held that Article 174 (1) and Article 324 operates on different fields and neither Article 174 (1) is subject to Article 324 nor Article 324 is subject to Article 174 (1).
The Court observed that- on premature dissolution of any assembly the Election Commission is required to initiate immediate steps for holding election for Constitutional Assembly on the first occasion and within 6 months from the date of premature dissolution of the assembly.
Regarding the third question, the Court held that under Article 324, it is a duty and responsibility of the Election Commission to hold free and fair election. The law & order and public disorder is not occasion for postponing the elections but it is the duty & responsibility of the Election Commission to hold free and fair elections.
Right to Vote:
In case of Anukul Chandra Pradhan v. Union of India, 6 the Court held that right to vote is a statutory right i.e. it’s neither a Fundamental Right nor a common law right. According to Section 5 of Representations of Peoples Act, 1951- a person cannot vote if he is in imprisoned or in police custody but not in preventive detention, is not discriminatory and is not violating Article 14.
Eligibility for inclusive in Electoral Role-
Article 325 deals with the provisions that- no person to be ineligible for inclusive, or to claim to be included in a special electoral roll on grounds of religion race cast or sex i.e. there shall be one general electoral roll for every territorial constituency for election and no person shall be ineligible for inclusion in any special roll on grounds of sex, caste, religion and race.
Elections on the basis of Adult Suffrage-
Article 326 provides that the elections to the House of the People and the Legislative Assemblies of States is based on Adult Suffrage i.e. every person who is a citizen of India and who is not less than 18 years of age shall be entitled to be registered as a vote at any such election.
Power of Parliament to make election provision relating to legislature-
Article 327 deals with the powers of Parliament to make provisions with respect to elections to Legislatures. The provisions related to all matters can be made by Parliament from time to time relating to either House of Parliament or the State Legislatures.
Power of state legislature to make election provisions relating to itself-
Article 328 deals with the power of Legislature of a State to make provisions with respect to elections i.e. the State Legislature can make the provisions with respect to all matters relating to the elections of either house.
Courts not to interfere in election matters-
According to Article 329, the laws relating to allotment of seats and delimitation of constituencies validity cannot be questioned in any Court. While exercising the power under Article 329 (b) Parliament enacted Representation of Peoples Act, 1951 and the decision of Commission is final under this Act. Only the election is questionable in the courts by an election petition with proper proceedings (Article 329 (b).
In Durga Shanker v. Raghuraj, 7 neither Article 329 (b) nor the Representation of Peoples Act (before amendment) the court said that the decision of the Election Tribunal shall be final but could restrict the power of High Courts under Article 226.
But, in 1966, the 19th Amendment abolished the jurisdiction of Election Tribunals over election disputes. The amendment has vested the powers in the High courts was to expedite the decision in election dispute.
Over the past years, the Election Commission has conducted several electoral reforms to strengthen democracy and enhance the fairness of elections. Undoubtedly, these reforms are admirable and the Election Commission deserves the credit for the same. But in the current scenario, our system is still corrupt and political parties do corrupt practices to gain votes and win the elections. The laws are not liberal but their implementations are not up to marks. To curb these corrupt practices the Election Commission must have more legal and institutional power to punish the politicians who violate the electoral laws. If the people start voting according to their will and convictions then the corrupt practices will automatically disappear.
“The views of the authors are personal“
- AIR 1991 SC 1745
- (1995) 4 SCC 611
- AIR 1984 SC 921
- AIR 2003 C 87
- AIR 1997 SC 2814
- AIR 1954 SC 520; Sangram Singh v. Election Tribunal, AIR 1955 SC 424