Election Commission: Powers and functions | Constitutional Law - CLAT PG PDF Download

 Introduction 

• The  Election Commission  is an independent body created to ensure elections in India are free, fair, and unbiased, away from political influence.
• Founded under  Article 324(1)  of the Indian Constitution, it oversees elections for the Parliament, State legislatures, and the offices of the President and Vice President across the country.
• The Commission was made a central authority to prevent local biases, especially in states with diverse populations, ensuring justice for all groups.

 a. The Original structure of the Election Commission of India: 

• India, the largest democracy globally, established the  Election Commission of India  on  January 25, 1950  , to ensure regular, free, and fair elections as per the Constitution.
• Article  324(2)  allows the Commission to have a Chief Election Commissioner and other members appointed by the President for six years or until age 65.
• The  Chief Election Commissioner  operates independently, free from political or executive pressure.
• Initially, in  1951-52  , the President approved four  Regional Election Commissioners  , but only two positions were filled.
• In  1956  , the role of  Deputy Election Commissioner  was introduced, later leading to the suggestion for  Regional Election Commissioners  to assist in election management.
• The Commission, with a Secretariat in  New Delhi  and about  300 officials  , is organized into various divisions and branches, managing tasks from  electoral roll management  to  election conduct  .
• Its budget is independent, with major election expenses reflected in the budgets of the Union and State Governments.
•  Permanent staff  and those from the All India Services manage electoral rolls and conduct elections.

 b. Composition of Election Commission

• The  Election Commission  currently includes a  Chief Election Commissioner  and two  Election Commissioners  , all appointed by the  President  of India under  Article 324  of the Constitution.
• These Commissioners serve a term of  six years  or until the age of  65  , whichever comes first.
• The process for removing the  Chief Election Commissioner  is similar to that of removing a  Supreme Court Judge  . The  Chief Election Commissioner  earns a salary equivalent to that of a Supreme Court Judge.
• Grounds for removal include misconduct or incapacity, requiring a two-thirds majority in both Houses of Parliament.
• Other Election Commissioners can be removed by the  President  based on the recommendation of the  Chief Election Commissioner  .

 c. Powers and functions of Election Commission of India: 

• The powers and functions of the  Election Commission of India  are derived from  Article 324  of the Indian Constitution, legislation related to elections, and rules and orders issued under the Constitution or parliamentary legislation.
• The key requirement for free and fair elections is that they be conducted by an independent and impartial authority, which the  Election Commission of India  is tasked with ensuring.
• The powers granted to the  Election Commission  by the Constitution are supplemented by the  Representation of the People Act, 1950 and 1951  .
• Under Article 324, the Commission's powers are meant to complement, not replace, the law regarding the supervision, direction, and control of elections.
•  Section 15  of the Representation of the People Act, 1951 gives the Governor the power to notify the election date, and the Election Commission's role is recommendatory.
• The Governor can issue the notification even if it doesn't align with the Election Commission's recommendation, especially if elections are deemed urgent.
• The Election Commission must conduct elections promptly after the Legislative Assembly's term ends, and can use Union and State resources to ensure free and fair elections.
• If there are law and order issues, the Commission can request security forces, but postponing elections is not a viable solution.
• The  superintendence  ,  direction  , and  control  of elections to the Parliament, State Legislatures, and the offices of the President and Vice-President are the responsibility of the  Election Commission  .
• According to the Registration of Election Rules, 1960 and the Conduct of Election Rules, 1961, the  Election Commission of India  has performed various functions to ensure free and fair elections.

 Preparation of Electoral Rolls 

• Article 325 of the Constitution mandates a single general electoral roll for each territorial constituency, prohibiting the preparation of electoral rolls based on religion, race, caste, or sex.
• Accurate electoral rolls are crucial for conducting free and fair elections as per Article 326 of the Constitution.
• The electoral rolls must include all eligible voters without discrimination to ensure fairness.
• Sections 13-D, 15, 27(2), and 27(4) of the Representation of the People Act, 1950, outline the preparation of electoral rolls for Parliamentary, Assembly, and Council elections.
• The Election Commission of India is responsible for maintaining an up-to-date list of eligible voters for polling.

 Power to Superintend, Direct and Control 

• The  Election Commission  oversees the preparation of electoral rolls for elections to the Parliament, State Legislatures, and the offices of the President and Vice President.
• This power is granted under  Article 324(1)  of the Indian Constitution but is subject to laws made by Parliament and State Legislatures under  Articles 327 and 328  , respectively.
•  Article 324(1)  gives the Election Commission the authority to act in situations not covered by existing laws, ensuring free and fair elections.
• The Commission is responsible for both  National  and  State Elections  , making Article 324(1) a comprehensive provision for election conduct.
• In cases where there are no specific laws, the Commission can create necessary provisions to facilitate the electoral process.

 Power to Order Re-Poll 

• Under  Article 324  , the Election Commission has the authority to mandate a re-poll if there are issues like  hooliganism  or a  breakdown of law and order  during the polling or counting process.

 Power to Allot Symbols 

• The  Election Commission  can assign symbols to candidates for elections under Rule 5(1) of the Representation of the People Act, 1951.
• The  Symbols Order, 1968  , supports this power. Although challenged in court, the Supreme Court upheld the Commission's authority, emphasizing the need for symbols to help  illiterate voters  identify candidates.
• In the case of  Kanhaiya Lai v. R.K. Trivedi  , the Supreme Court stated that even if some provisions of the symbols order are not directly linked to the Act or Rules, the Election Commission's power under  Article 324(1)  is broad enough to cover these provisions.
• Article 324 fills gaps left by legislation, allowing the Commission to make necessary rules for elections.

 Power to Postpone Elections 

• The Election Commission can postpone elections if there are disturbances affecting free and fair voting, as established in the case of  Digvijay Mote v. Union of India  .

 Power to Seek Information Regarding Election Expenses 

• In the case  Registered Society v. UOI  , the court addressed the issue of  "election expenses"  incurred by political parties during elections.
• The argument was that elections in India are heavily influenced by  money power  , and there should be transparency regarding the expenses of political parties and candidates.
• The court emphasized the importance of election purity to democracy and granted the  Election Commission  the authority to demand detailed expenditure reports from political parties for scrutiny.

 Power to Issue Budgets and Expenses 

• The budgets of the  Farmers' Secretariat  , responsible for an independent budget, are finalized by the  Union Finance Ministry  and the  Election Commission  .
• The  Union Finance Ministry  typically supports the  Election Commission's recommendations  .
•  Lok Sabha elections  are entirely funded by the  Union Government  , while  legislative assembly elections  are funded by the respective states.

 Power to Disqualify Candidates 

• The  Election Commission  has the authority to  disqualify sitting members  of Parliament and State Legislatures post-election.
• Cases of  corrupt practices  during elections, brought before the  High Court  or  Supreme Court  , are referred to the  Election Commission  for opinion.
• The  Commission's opinion  is binding on the  President  or  Governor  .
• The  Commission  can also  remove or reduce disqualifications  imposed on candidates.

 Decriminalization of Politics 

• The  Election Commission  is concerned about the  criminalization  of politics and has taken initiatives to curb criminal activities, including the  Model Code of Conduct  .
• It prescribes guidelines for  political parties  and  candidates  to ensure  free and fair elections  .

 Model Code of Conduct 

• The  Model Code of Conduct  outlines how  political parties  and  candidates  should behave during elections to promote fairness.
• Each candidate must submit an  affidavit  with details about their  criminal history  ,  assets  , and  qualifications  when filing nomination papers.

 Checking Criminalization in Politics 

• The  Election Commission  urges political parties to  agree  not to nominate individuals with  criminal backgrounds  to prevent such candidates from entering politics.

 Limiting the Poll Expense 

India has witnessed numerous elections marred by the excessive display of money. To curb such activities, the Election Commission has imposed limits on the amount candidates can spend during their election campaigns. Additionally, the commission appoints expenditure observers to monitor the expenses incurred by candidates throughout the election process.

 Use of Scientific and Technological Advancements 

The Election Commission of India has been leveraging scientific and technological advancements to enhance the electoral process. The introduction of Electronic Voting Machines (EVMs) is a significant step in this direction. EVMs have led to a substantial reduction in electoral malpractices and have improved the efficiency of the voting process.

Another notable advancement is the implementation of the  None Of The Above (NOTA)  option, which allows voters to express disapproval of all candidates on the ballot. This innovation is based on the principle that consent in an election requires the option to withhold consent.

 Functions of the Election Commission 

 Primary Functions 

• The Election Commission is primarily responsible for the  superintendence, direction, and control  of the preparation of electoral rolls and the conduct of elections to the Parliament, State Legislatures, and the offices of the President and Vice President of India.
• Other primary functions include:
  •  Demarcation of constituencies 
  •  Preparation of electoral rolls 
  •  Arranging sufficient staff  for conducting elections
  •  Conducting polls 
  •  Briefing the media  about election details

 Other Functions under the Constitution 

• The Election Commission advises the  President  and  Governor  on disqualifying sitting members of Parliament and State Legislatures, except on grounds of defection (Articles 103 and 192).
• The  President  or  Governor  must refer such matters to the Election Commission, which provides its opinion.
• The  Supreme Court  has ruled that the President and Governor must follow the Election Commission's advice, as seen in the case of  Brudaben Nayak v. Election Commission of India  .

 Other Functions under the Law 

• The Election Commission has advisory powers under the law. If someone is found guilty of corrupt practices in an election, the  High Court  or  Supreme Court  decides whether the person should be disqualified from future elections and for how long.
• Before making such decisions, the  President  consults the Election Commission and acts based on its advice.

 Quasi-Judicial Functions 

• The Election Commission registers  political parties  wishing to contest in elections, a function deemed  quasi-judicial  by the Supreme Court.
• In disputes over party mergers, the Election Commission exercises  judicial power  , with appeals against its decisions going directly to the Supreme Court under  Article 136  .

 Conclusion 

• The  Election Commission  has implemented numerous electoral reforms over the years to bolster  democracy  and enhance the fairness of elections through effective use of its powers. However, the system still grapples with various issues, including corrupt practices and unethical methods employed by political parties to secure votes.
• There is a pressing need to empower the  Election Commission  further by granting it additional legal and institutional authorities. Strengthening the commission's capabilities will enable it to punish errant politicians who breach electoral laws and ensure a more transparent and equitable electoral process.