The Election Commission of India

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India at national, state and district level. 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. The Election Commission operates under the authority of Constitution per Article 324, and subsequently enacted Representation of the People Act.

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 was established in 1950 and originally only had a Chief Election Commissioner. Two additional Commissioners were appointed to the commission for the first time on 16 October 1989 (on the eve of the 1989 General Election), but they had a very short tenure, ending on 1 January 1990.

The Election Commissioner Amendment Act, 1989 was adopted on 1 January 1990 which turned the commission into a multi-member body: a 3-member Commission has been in operation since then and the decisions by the commission are made by a majority vote. The Chief Election Commissioner and the two Election Commissioners who are usually retired IAS officers draw salaries and allowances at par with those of the Judges of the Supreme Court of India as per the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Rules, 1992.

The commission is served by its secretariat located in New Delhi. The Election Commissioners are assisted by Deputy Election Commissioners, who are generally IAS officers. They are further assisted by Directors General, Principal Secretaries, and Secretaries and Under Secretaries.

At the state level, Election Commission is assisted by 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.

Part XV of the Constitution entitled as Elections constitutes a code in itself, providing the groundwork for the enactment of appropriate laws and the setting up of suitable machinery for the conduct of elections.

(a) Election Commission (Article 324)

Article 324 provided for the appointment of an Election Commission to superintend, direct and control the elections. The Commission is an all-India body having jurisdiction over elections to Parliament, State Legislatures, offices of the President and Vice-President.{1}

The constitution of one central body, the Election Commission, having control over the entire election process in the country, is done to prevent injustice, which could be done by regional, State Governments, discriminating against any section of the people in the matters relating to elections.{2} The Commission is constituted as an autonomous and independent body, with a view, to ensure the conduct of free and fair elections, which feature is held to be a basic structure of the Constitution.{3} It has been said to be the most important arbitrator on holding of the elections.{4}

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.{5}

The President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of its functions.{6} The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine. These rules, however, are subject to any law made by Parliament in this respect.

Chief Election Commissioner vis-a-vis other Election Commissioners

Proviso to Clause (5) of Article 324 says that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service 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 does the Chief Election Commissioner.{7}

While the CEO is the creation of the Constitution, the number of other Election Commissioners is determined by the President. While the CEC can be removed from his office in the manner provided in the Proviso to 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. {8} Again, while the conditions of service of the CEC cannot be varied to his disadvantage, the conditions of service of other Commissioners are determined by President by rule, subject to any law made by Parliament in this regard.

Multi-member Election Commission

Prompted by the Supreme Court’s observation in S. S. Dhanoa’s case {9} 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 Election 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, 1991. The Ordinance was later replaced by the Act passed by Parliament in 1994, which came into force on January 1, 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 v. Union of India,{10} the Supreme Court unanimously upheld the constitutionality of the Act equating the status, powers and authority of the two Election Commissioners with that of the CEO. The Court held that the CEC did not enjoy a status superior to other Election Commissioners even though there were differences between the service conditions of the CEO and other CEs. The scheme of Article 324, it was held clearly provided for a multi-member body comprising of the CEO and other ECs.

Independence of Election Commission

The Constitution envisages the setting up of an independent, autonomous Election Commission.
To secure independence of action, Article 324 contains the following provisions:

1. That the CEC shall not be removed from his office except in the like manner and on the like grounds as a Judge of the Supreme Court.
2. That the conditions of service of the CEC shall not be varied to his disadvantage after his appointment.

The CEO is, therefore, protected against political and executive influence and for that reason, he can discharge his functions without fear, favour or 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 of the executive control in so far, none of them can be removed from office except on the recommendation of the CEC. {11} This check on the executive’s power is to safeguard the independence of not only these functionaries but the Election Commission as a body. {12}

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 Governments whenever required. For that purpose, Clause (6) of Article 324 provides that the President, or the Governor of a State shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1).

Clause ( 6) of Article 324, permits the requisition of services of employees working under the President or the Governor of a State and not those of Bank employees or that of Life Insurance Corporation,{13} or teachers during teaching days.{14} Once it is provided that the employees of a State, for a period when the election process is on, are subject to the control, superintendence and discipline of the Election Commission, the inevitable corollaries of such power is that the Commission can direct the posting of such employees for the purpose of ensuring a free and fair holding of elections. The Commission shall have power to recommend disciplinary action, to the competent authority, against the officers for insubordination or dereliction of duty while on election duty.{15}

Functions of the Election Commission

The Election Commission performs the following functions:

1. The superintendence, direction and control of the preparation of electoral rolls for all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President. {16}
    
2. The conduct of all the elections mentioned. {17}
    
3. To advise the President or the Governor of a State, as the case may be, on the question of disqualification of any Member of Parliament or a member of a State Legislature, respectively. {18}

Article 324 has been held to be plenary in character, vesting the whole responsibility in the Election Commission for national and State elections. {19} The power conferred on the Commission under Article 324 (1) is subjected to two limitations, namely:

1. When Parliament or any State Legislature has made a valid law relating to or in connection with elections, the Commission shall act in conformity with such law.
2. The Commission while exercising power shall conform to the rule of law, act bone fide and be amenable to the norms of natural justice. {20}

Superintendence, Direction and Control of Elections

The expression superintendence, direction and control and the conduct of all elections in Article 324 (1) has been held to include such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion. {21} It would, therefore be legitimate, on the part of the Commission, to make general provisions even in anticipation or in the light of experience, in respect of matters relating to symbols. {22}

In the interest of free and fair elections, for the safety and security of electors and with a view to prevent intimidation and victimisation of electors, the Commission has full power to direct the manner of counting of votes. {23}

Directives issued by the Election Commission for transfer of those officers from one district to another, who had completed more than four years of stay in one district, have been held not ultra vires Article 324(1). {24}

The word elections in Article 324 includes the entire process of election, which embraces many steps some of which have an important bearing on the process of choosing a candidate. {25} It includes every process issued after the issuance of the Notification for holding the election.

The powers in respect to the allotment of symbols to political parties, adjudication of disputes with regard to recognition of parties and rival claim to a particular symbol, are vested with the Election Commission under Article 324. {27} Providing and reserving election symbols for recognised political parties would not amount to undemocratic act. {28}

Orders passed by the Commission for re-scrutiny of nomination papers are held binding on the Returning Officer. The direction issued by the Commission of rescinding the election notification for general elections to the Legislative Assembly of a State, on the ground of abduction of a candidate of a political party for preventing him from filing nomination papers, has been upheld. {29}

The phrase conduct of elections in Article 324 has been held to be of wide amplitude, which would include power to make all necessary provisions for conducting free and fair elections. Since, every contingency cannot be foreseen or anticipated with precession, the Apex Court in Union of India v. Association for Democratic Reforms, {30} held that the Commission could cope with situation where the field was unoccupied by issuing necessary orders.

Article 324 has been said to be a reservoir of power, leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution. The Commission, may, therefore, issue directions, asking the candidates to furnish information relating to their assets, educational qualification, antecedents of his life, etc.

However, the words superintendence, direction and control in Article 324(1) are meant to supplement and not supplant the law and therefore, the Commission cannot proceed against a validly made law concerning the elections. {31} Also, no power is conferred on the Election Commission to de-register a political party. {32} The Commission may, however, regulate, with the approval of the Government, any gray area, not covered by the Rules framed by the Legislature.

Again, in Ram Deo Bhandari v. Election Commission, {33} ,the Supreme Court held that the Election Commission was free to take such steps as it considered necessary to ensure a free and fair poll, but, it would not withhold the elections to the Legislative Assembly of a State on the ground that the said Government had failed to complete the process of issuance of photo identity cards by the deadline prescribed by the Commission, for it would be contravention of the mandate of Article 168 of the Constitution.

It has been ruled that the Election Commission and the Election Authorities, are also governed by the Representation of People Act, 1951 and that they cannot act in a manner inconsistent with the Act. {35} It is thus ruled that Article 324 has to be read in the light of the Constitutional Scheme and the Act 1950 and the Act, 1951. {36} In A.C. Jose v. Sivan Pillai, the Apex Court had listed out some serious faults in the use of EVM.

Since the new improved version of EVM had taken care of those defects as also the Representation of People Act, 1951 and the Rules there under were accordingly amended, the Apex Court in T.A. Ahammed Kabeer v. A.A. Azeez, {38} approved the use of EVM. Relying on the Apex Court’s observations the Karnataka High Court in M.B. Fernandes v. C.K. Jaffer Sharief, {39} upheld the amendment incorporated in the Act, providing the use of EVM as not violative of Article 14, being not arbitrary or ultra vires the Constitution.

In T.A. Ahammed Kabeer v. A.A. Azeez, {40} the Supreme Court approved the use of the present version of EVM, wherein it was held possible to get at the disputed impersonated votes by decoding, though identity of the impersonator could not be detected, which shortcoming was well with the manual ballot system also, the Court said.

Fixing Schedule for Elections-Exclusive Domain of Election Commission

The Apex Court in Special Reference No. 1 of 2002, {41} was referred to, questions relating to power of the Election Commission under Article 324, fixing the schedule for holding elections to the Legislative Assembly of a State, in the light of the mandate of Article 174(1).

The question cropped up out of the situation then existing in the State of Gujarat. The Legislative Assembly of the State, which was to complete its term on 18-3-2003, was dissolved on 19-7-2002 by the Governor on being advised by the Chief Minister. Since the last sitting of the Assembly was held on 3-4-2002, the Election Commission was required to complete the elections to the Assembly by the date, so as to comply with the Article 174(1) mandate.

The Election Commission, on its part, recommended the invocation of Article 356 in the State, as the situation in the State, in their opinion was not suitable to hold, early, free and fair elections, so as to comply with the requirement of Article 174(1).{42}

A Constitution Bench of five Judges of the Supreme Court, answering the questions set out in the Reference, reported as follows:

1. Article 174(1), which is a complete code in itself deals only with a live Legislature.
2. Article 174(1) does not provide for any period of limitation for holding elections within six months from the date of last sitting of the Session of the dissolved Assembly.
3. There is no provision, {43} expressly providing for any period of limitation for constituting a fresh Legislative Assembly on the premature dissolution of the previous Legislative Assembly.
4. The entire matter relating the elections is entrusted to the Election Commission.
5. The general power of superintendence, direction, control and conduct of election, although vested in the Election Commission under Article 324(1), yet is subjected to any law either made by the Parliament or State Legislature, as the case may be, which is also subject to the provisions of the Constitution.{44}
6. The Election Commission is required to take steps for holding elections immediately on expiration of the term of the Assembly or its dissolution, although no period has been provided for.
7. In view of the provisions of Articles 109, 110 and 111 and analogous Articles for State Assembly, on the premature dissolution of the Legislative Assembly, the Election Commission is required to initiate immediate steps for holding election for constituting Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Assembly.

(b) 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 or claim to be included in any special electoral roll for any such constituency 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. {45}

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:

1. He must be a citizen of India.
2. He must not be less than 18 years of age on the appointed day. {46}
3. 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 fulfill the following conditions:

1. He must be a citizen of India.
2. He must not be declared to be of unsound mind by competent court.
3. 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 {47} or of any constituency more than once. {48} 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.

Every person enrolled in the electoral roll by an authority empowered by law to prepare the electoral roll or to include a name therein, is entitled to cast a vote {49} unless disqualified under law. {50}

Right to Vote Not a Fundamental Right

The right to vote or stand as a candidate for election is a creature of statute or a special law and must be subject to the limitations imposed by it. {51} These rights are not absolute rights, nor are held to be constitutional rights. {52} Though fundamental to democracy, the right to elect is neither a fundamental right nor a common law right. So, is the right to be elected and the right to dispute an election. {53}

(c) Enactment of laws with respect to Elections (Articles 327 and 328)

Article 327 provides that Parliament may, from time to time, by law, make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament or the Legislature of a State. The law may include provisions for the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. The law so made shall be subject to the provisions of the Constitution. Similar power is conferred by Article 328 on the Legislature of a State with respect to the elections to the Houses of the State Legislature. The power of the State Legislature is subjected to the provisions of the Constitution and any law made by Parliament.

In the exercise of the power conferred by Article 327, Parliament has enacted the Representation of the People Acts, 1950 and 1951 and the Delimitation Commission Act, 1952. The Election Commission is to act not inconsistent with these Acts. {54}

(d) 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 K. Venkatachalam v. A. Swamickan, {55} the Supreme Court has ruled that Article 329(b) does not come into play when case falls under Articles 191 and 193.
The word Election is held to include every process of proceedings after issuance of election Notification. {56}

In Inderjit Barua v. Election Commission of India, {57} 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. {58}

In Hari Shankar Jain v. Sonia Gandhi, {59} the Supreme Court has ruled that in spite of a person having been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election, can be raised before and tried by the High Court hearing an election petition.

As regards the locus standi to file an election petition, the Allahabad High Court, in Hari Krishna Lal v. Atal Bihari Bajpai, {60} ruled that only a duly nominated candidate could file the petition. By mere filing nomination paper, a person does not become duly nominated candidate. Besides he is required by the Commission to file certain affidavits. The word candidate does not include a candidate who had withdrawn his candidature. {61}

In Manda Jagannath v. K.S. Rathnam, {62} the nomination Form B filed by the respondent was rejected by the Returning Officer. Whether the Returning Officer was justified in so doing, was held to be a matter to be agitated in an election petition only and not before the High Court under Article 226.

Any challenge to an election, once the election is over, can be taken by an election petition, filed under the Representation of People Act, 1951 and not by way of a writ petition. {63} In view of the constitutional bar under Article 329(b), any matter relating to elections can be questioned only by an election petition under the Representation of People Act, 1951. Therefore, complaint relating to validity of caste certificate of a candidate elected to Vidhan Sabha, can be questioned only by an election petition and cannot be entertained by National Commission on Scheduled Castes/Tribes under Article 338(1) (a). {64}

Delimitation Commission

The delimitation of constituencies as enshrined in Articles 82 and 170 is a necessary process, as important as the elections themselves. It is to take place after every census so that all Parliamentary and State Assembly constituencies are re-drawn on the basis of population. Since the population keeps on shifting, it becomes necessary to readjust the boundaries of constituencies, so that there should be true representation of the people in the elections held to serve the purpose in a democracy.

The delimitation is supposed to take place every 10 years. It is done by Delimitation Commission. The Constitution (84th Amendment) Act, 1976 freezed it till 2001. There have been three Delimitation Commissions, in 1952, 1963 and 1973, before the present Commission appointed in 2002 with Justice Kuldeep Singh as its Chairman.

The Notification issued based on the report of the Delimitation Commission is held to be final and binding. It would have the effect of law. {65} No government can make any changes or choose to alter it. It cannot be challenged before any Court either. {66} If a person felt that he was not given due opportunity of being heard or felt that the Commission was not following the procedure prescribed, he could have approached the High Court, prior to issuance of the final Notification and sought appropriate directions.{67}

Any objection to delimitation of constituencies can only be entertained by the Commission before the date specified and not after its publication in the Official Gazette. The object is that no voter should be allowed to hold up an election indefinitely, by questioning the delimitation of the constituencies, from Court to Court. {68}

Though the delimitation for the purpose of dividing the State into territorial constituencies is a mandate of the Constitution and is basic feature of democracy contemplated in the Constitution, but re-adjustment of the extent and boundaries of such territorial constituencies upon completion of each census is not such a mandate, nor it is contemplated to be the basic feature of democracy. In the event, no census takes place, there would be no re-adjustment and there being no mandate in the Constitution to take census, readjustment of the extent and boundaries of territorial constituencies is an uncertainty and accordingly, it is said, cannot be said to be the basic feature of democracy contemplated in the Constitution. {69]

Division Bench of the Supreme Court dismissed a petition by Panther Party Chief Bhim Singh of the State of J & K., against the State Government’s decision to defer the delimitation exercise for the Assembly Constituencies till the first Census after 2026. It was ruled that such provisions of law were out of bounds for judiciary.

The Court observed:
Clearly, there is an express constitutional bar to any challenge being made to the delimitation law which is made under Constitutional provisions. Therefore, the substantial challenge of the appellant in this proceeding is not to be entertained by any Court including this Court.

The Court explained that a right to cast vote was a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons was not a justiciable right.