The Election Commission of India, abbreviated as ECI, is a self-governing constitutionally mandated authority which is charged with the task of fostering Democratic process in India by conducting free and fair elections in India. It was established in 1950 and it derives its source of authority from Article 324 of the Constitution of India and the Representation of People Act, 1956. From the day of its conception, it has been administering elections to the LokSabha, RajyaSabha, State Legislative Assemblies, State Legislative Councils and the offices of President and Vice-President of the country. Article 21 of UNDHR proclaims that everyone has the right to take part in the government of his country and that the will of people shall be the basis of authority of the government which can be expressed through periodic and genuine elections[i]. This has been contentedly carried on by the ECI till this date.
The existence of ECI is sine qua non for the continual participative operation of Democracy in India. This is because each common man marking his vote in the poll does a social audit of his parliament and in turn will reflect the political choice of the country. Even though a fully participative government hardly ever unfolds, the minimum credential popular government has efficiently been sustained by the ECI. This essay will primarily look at the powers, rights and duties of ECI.
Powers of Election Commission of India:
Sociologically, power means the capacity of a body or an individual to influence the conduct of others. In this sense, it is necessary that enormous powers have been vested with the ECI so that it does its job uncompromisingly, which is crucial for a thriving Democracy. The responsibility of superintendence, direction and control of the preparation of electoral rolls and the conduct of all major elections in the country has been bestowed upon the ECI. Hence the Constitution of India has directly and indirectly conferred upon it the following powers for fulfilling its major goal.
1. The ECI has the power to act appropriately according to its volition when there arises a surprise situation, in relation to the conduct of an election, on which already enacted laws are silent. Article 324, which gives this power to the ECI, is a plenary provision, enabling it to enact necessary provisions for dealing with a previously unknown state of affair. This power is available, unless and until the existing parliamentary laws are not transgressed. In the case of C.Jose V. Sivan Pillai,[ii] the Supreme Court of India held that, the power conferring Article 324 has to be read together with the powers given to legislatures under Entry 72 of Union List and Entry 37 of State List in the Seventh schedule to the Constitution of India. It was further said that the commission, under the robes of regulating elections, could not take upon purely legislative activity, which is reserved for Parliament and State Legislatures under the Constitution. This view was reiterated in the case of Kuldip Nair V. Union of India.[iii]
2. The ECI has the power to determine whether a registered political party is in the status of National party or Regional party.
3. The ECI is endowed with the power of setting limit on expenses of poll. This limit is revised from time to time. This power is given with a view to secure fair elections by curbing the undue advantage, which may be gained by wealthy candidates.
4. The ECI has the power to seek information from candidates regarding expenses made during election. In order to exercise this power the commission appoints officers from Indian Revenue Service designated as Expenditure Observers, who will have a check on the individual account of election expenditure.
5. The ECI also has the power to publish all particulars of a candidate, which are relevant to the election. In Resurgence India V. Election Commission of India,[iv] the Supreme Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament and such right to get information is universally recognised natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
6. ECI has power to forbid circulation of publication of voting trends like opinion polls or exit polls.
7. The ECI has got the power to transfer and to relieve Government employees or officers till the completion of elections, such action if left undone would hamper the conduct of free and fair elections. In Anurag Gupta V. Election Commission of India,[v] the Jharkhand High Court dismissed the petitioner’s challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner. The court further said that though orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28(A) of Representation of People Act, 1956.
8. ECI under certain circumstances has the power to postpone the date of election.[vi]
9. The ECI has power to decriminalize politics by putting lifetime ban on convicted politicians, thereby preventing those from criminal background to contest in elections. This has been envisaged in Articles 102 and 191 of the Indian Constitution along with sections 7(b), 8 to 10-A of the Representation of People Act, 1956.
Rights of Election Commission of India:
1. ECI has the right to decide the schedule of elections.
2. Article 324 of the Indian Constitution explicitly provides the right to maintain electoral rolls to the ECI.
3. ECI only will allot symbols to political parties. Some symbols are identified as reserved while others as free. The reserved symbols will be allotted only to candidates who belong to a recognized political party while free symbols are available to other candidates. The Supreme Court has held that, ECI will be the adjudicating authority and will act as a tribunal in relation to disputes regarding symbols.
4. ECI has the right to direct re-polls. Article 324 confers on the ECI, the powers to countermand a poll because of hooliganism and breakdown of law and order at the time of polling or counting of votes within 10 days from the last date of filing the returns.
5. After a sitting member of the Parliament or State Legislature has been found guilty of malpractices during election by the Supreme Court or High Court, the ECI has the right to give opinion as to whether such person should be disqualified or not.
6. By virtue of Articles 103 and 192 of the Indian Constitution, the ECI has the right to give opinion to the President and Governor respectively on matters relating to disqualification of sitting members of Parliament and State Legislature.
7. ECI has the right to remove or reduce the period of disqualification of any member of legislature from contesting elections according to law existing at that time.
8. ECI has the right to quasi-judicial function of settling merger disputes between political parties. The commission is a tribunal in such cases and appeal against any of its order will lie before Supreme Court under Article 136 of the Constitution of India.
Duties of Election Commission of India:
1. The first and foremost duty of ECI is to superintend, direct and control the process free and fair election for which issuance of advisory Model Code of Conduct to parties and candidates becomes indispensible.[vii] Though it does not have a statutory backing, it has a persuasive effect. In MumtajAhmedKhan V. ECI,[viii] a PIL was filed seeking squashing of a condition in MCC, which restricted the use of pictures of military personnel in any campaign related activities. In the present case the SC dismissed the PIL saying that, though MCC is only a moral code of conduct, it is the bedrock of Democracy.
2. ECI has a duty to register and recognise political parties in order to avoid confusion. Section 29(A) of the Representation of People Act, 1956 provides for registration with the commission of associations and bodies of individual citizens of India as political parties for purpose of this Act.[ix]
3. Duty to register all eligible voters and revise the electoral roll occasionally
4. Duty to circumvent bogus voting by disqualifying ineligible voters once in a while and noting the same
5. Duty to ensure whether, campaign ethics are followed by candidates
6. Duty to assign tribunals for hearing disputes in relation to elections of Parliament and State Legislatures
7. Duty to receive and re-inspect nomination papers
8. Duty to accept deposit fee from candidates
9. Duty to collect audited financial reports and annual reports from political parties
10. Duty to monitor the limit of campaign expenditure
11. Duty to delimit and revise territorial areas of electoral constituencies and to carryon periodic demarcation of electoral constituencies into general and reserved
12. Duty to appoint the offices of Chief Electoral Officer, District Election Officer, Returning Officer and Electoral Registration Officer.
Even though the ECI has brought meritorious and praiseworthy reforms, the election system is still foiled due to failure in creating a level playing field for all players and increase in electoral finance. This may lead to a decline in credibility on the ECI. Hence this is high time that the policies of ECI with regard to curtailment of undue advantage to party in power be reinforced. As India’s guardian of elections, the ECI has a more crucial role to play now, so that the prospects of creating an educated electorate with political awareness along with inter democratic parties and a consensus in how the polls have to be conducted, can be realised in near future.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[ii] 1984 AIR 1921
[iii] Writ petition (civil) 217 of 2004
[iv] Writ Petition (Civil) No. 121 of 2008
[v] W.P.(S) No. 1714 of 2019 and https://www.scconline.com/blog/post/2019/05/06/jhar-eci-held-empowered-under-art-324-and-s-28-of-rp-act-to-transfer-and-divest-adg-of-police-of-his-duties-till-completion-of-elections/