Electoral System in India ( Part -1) - Indian Polity and Governance | Polity and Constitution (Prelims) by IAS Masters - UPSC PDF Download

 Electoral System in india

India is the most populous democracy in the world with about 75 cores of voters. Being a three­tiered democracy- central , state and local layers of governance-, the depth of democracy is great. India is a great example of representative democracy where periodical elections that are free and fair in which people vote without any coercion or fear, is the norm.AH social groups are free to participate in elections without any discrimination.

Apart from a robust constitutional and legislative framework, universal adult franchise, competitive political party system, statutory right to vote, an informed electorate and a vigilant media and civil society o constitute key elements of a sound and democratic electoral system, and are important prerequisites for a credible electoral democracy. It goes without-saying that a neutral and efficient election management with transparent systems and procedures in place is the most critical of all.

Constitutional provisions, supplemented by laws made by Parliament and the Rules made by the Election Commission are the basis for the conduct of elections.                               ■           -     .

Part XV of the Constitution (Art.324-329 ) contains provisions related to elections. There are two RPAs:   .

• Representation of the People Act, 1950, which mainly deals with the preparation and- revision of electoral rolls and
• Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes.

Other laws that confer powers on the EC are Presidential and Vice-Presidential Elections Acts, 1952, Government of Union Territories Act, 1963, Government of the National Capital Territory of Delhi Act, 1991 and the Rules and Orders under them.

 Further, the Supreme Court of India held that where the enacted laws are silent or inadequate, the Election Commission has the residuary powers under the Constitution to act in an appropriate manner.

Constitutional provisions                              ’      '

Art. 324 broadly speaks of the functions of the Election Commission and its composition. It confers the power of superintendence, direction and control of elections in the Election Commission. It includes the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and State Legislature; and elections to the offices of President and Vice-President of India.

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. President appoints the Chief Election Commissioner and other Election Commissioners subject to any law made by Parliament.

When any Election Commissioner is appointed, the Chief Election Commissioner shall act as the Chairman of the Election Commission.

Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission .

President determines the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners, subject to the provisions of any law made by Parliament.

The manner of removal of the CEC and the ground -for removal are the same as the Supreme Court judge- parliamentary vote followed by the Presidential decision. The conditions of service of the Chief Election Commissioner shall riot be varied to his disadvantage after his appointment. 

Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.

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 that is necessary for the conduct of the elections

An. 325 says that there shall be one general electoral rojl for every territorial constituency for election to either House of Parliament and State Legislature. It establishes equality among citizens for being enrolled as voters by affirming that no person shall be ineligible for inclusion in the electoral roll on grounds of religion, race, caste or sex.

326 lays down adult suffrage as the basis for elections to the House of the People and to the Legislative Assemblies of States .The following are the qualifications to vote

• Should be a citizen of India
• Should be not less than eighteen years of age.
• is not disqualified under this Constitution or any law made by the appropriate Legislature on the grounds of

1. non-residence
2. unsoundness of mind
3. crime or
4. corrupt or illegal practice.

However, right to vote is not implied in Art.326. It is a statutory right under the RPA 1950.

Art. 327 confers on Parliament the power to make provision with respeet to elections to federal and state Legislatures, subject to the provisions of the

Constitution, on all matters relating to elections to Parliament or Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies etc.   -

Art. 328 confers on the State Legislature power to make laws with respect to elections to such Legislature, subject to the provisions of the Constitution and any law made in that respect by Parliament. Such powers include the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.

Art.329 bars interference by courts in electoral matters.—Notwithstanding anything in the Constitution—

1. the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
2. no election to either House of Parliament or to the House or either House of 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.

Any elector or candidate can file an election petition on grounds of malpractice during the election An election petition can only be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

Election Commission

Since 1993, the Election Commission of India is a three-member body, with one Chief Election Commissioner and two Election Commissioners. It was not a multi member body from the beginning. It was a single - member body when it was first set up in 1950 till 1993 except for a brief period between 1989 October and 1990 January. In 1993 it became a three-member Commission and has remained so since then. Article 324(2) empowers the President of India to fix from time to time the number of Election Commissioners other than the Chief Election Commissioner.

The Chief Election Commissioner and the two Election Commissioners draw salaries and allowances at par with those of the Judges ofthe Supreme Court of India .

The Chief Election Commissioner or an Election Commissioner holds office for a term of six years from the date on which he assumes his office or till he attains the age of 65 years, whichever is earlier.

The Chief Election Commissioner and Other Election Commissioners (Conditions of Service)' Act, 1991, as amended, provides that if the CEC and his colleagues differ in opinion on any matter, such matter shall be decided by the opinion of the majority. CEC has no special role in decision making.

Are the commissioners and the CEC equal?

Former CEC N. Gopalaswami’s suo motu recommendation to the President to remove MrNavin Chawl'a from the post of Election Commissioner in 2009 raised legal questions as to whether he is Constitutionally competent to do so.

In S.S. Dhanoa vs Union of India (1991), the Supreme Court held: “The Chief Election Commissioner does not... appear to be primus inter pares, i.e. first among the equals, but is intended to be placed in a distinctly higher position .”

The position of the apex court evolved in the case of T.N. Seshan vs Union of India(1995). It held that the CEC and the ECs are equal. CEC is given the power of recommending the removal of ECs and it is intended to shield them and not use it against them. He can not use it suo moto as he is an equal of them.

While functioning as the CEC, he acts as the Chairman which means he presides over the meetings, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business.

Functions of Election Commission

It has administrative, advisory and quasi-judicial functions.

Administrative functions

Under Article 324(1) of the Constitution of India, the Election Commission of India, interalia, is vested with the power of superintendence, direction and control of conducting the elections to the offices of the President and Vice-President of India. Detailed provisions are made under the Presidential and Vice Presidential Elections Act, 1952 and the rules made thereunder.

The same Article 324 also vests in the Commission the powers of uperintendence, direction and control of the elections to both Houses of Parliament. Detailed provisions are made under the Representation of the People Act, 1951 and the rules made thereunder.

Article 324 (1) also vests in the Commission the powers of superintendence, direction and control of the elections to both Houses of the State Legislature. Detailed provisions are made under the Representation of the People Act, 1951 and the rules made thereunder.

EC appoints the following :

The Election Commission of India nominates or designates an Officer of the Government of the State/Union Territory as the Chief Electoral Officer in consultation with that State Government/Union Territory Administration, the Chief Electoral Officer of a State/ Union Territory is authorised to supervise the election work in the State/Union Territory subject to the overall superintendence, direction and control of the Election Commission.

The Election Commission of India designates an Officer of the State Government as the District Election Officer in consultation with the State Government. The District Election Officer supervises the election work of a district.

The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government/Union Territory Administration. In addition, the Election Commission of India also appoints one or more Assistant Returning

The Returning Officer of a parliamentary or assembly constituency is responsible for the conduct of elections in the parliamentary or assembly constituency concerned EC appoints the officer of State or local government as Electoral Registration Officer (ERO).The Electoral Registration officer is responsible for the preparation of electoral rolls for a parliamentary / assembly constituency.

Under the Representation of the People Act 1951, the Election Commission of India nominates officers of Government as Observers (General Observers and Election Expenditure Observers) for parliamentary and assembly constituencies. They perform such functions as are entrusted to them by the Commission. The amendments made to the Representation of the People Act, 1951 in 1996 make the observers statutory appointments. They report directly to the Commission. EC's other administrative functions are

• Under Art.324, EC is made responsible for the free and fair elections in the Country for elections to Parliament, Stare Legislature, President and Vice President of India
• Under Art.324, EC has the duty to prepare and revise the electoral rolls
• Political parties have to be registered with the Election Commission.
• Election Commission decides the election schedules for the conduct ,bf elections, general elections or bye-elections; location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangementsrto be made in and around polling stations and counting centres and all allied matters.
• EC enforces the Model Code of Electoral Conduct that is mutually agreed upon by the political parties
• Defines the national political party and State political party and accords recognition .EC declares other parties as registered-unrecognised parties.
• in case of a dispute as to which party is to be given a particular symbol, it is the Election Commission that decides
• it enforces limits on expenditure on elections
• it postpones( for any reason like floods, cyclone etc) or orders repoll or countermands elections
• if President’s rule is to be extended beyond one year, EC should certify that elections can not be held in the State( 44^th Amendment Act)
• During the elections, vast powers are assigned to the election commission enabling it to work as a civil court. According to Art.329b, courts do not intervene in election matters after the electoral process has begun
• either the CEC or an EC nominated by the CEC is an ex officio member of the Delimitation Commission

BLO

Enrolling of all eligible voters and removing the names of the dead and shifted voters from electoral rolls are two important tasks in the updating of the electoral rolls.. As we do not have compulsory voting in our country, the enrolment of eligible voters did not always receive the attention it deserves. Besides, there was no focused attention paid to the process of removal of the names of bogus, dead and shifted voters from electoral rolls. As the result, the inaccuracy of rolls used to.be as high as 10 per cent in some cases. The presence of names of non-existent voters in the rolls therefore offered scope for poll-day malpractices such as impersonation and bogus-voting. Often, names were repeated. With up-to-date software, EC is able to easily eliminate such duplication all over the courrtcy.The ECl deliberated and introduced a new system called the booth level officer (BLO) system to deal with these problems. It created a clear line of accountability for preparation of an error-free electoral roll, making the BLO its custodian at the polling booth level. So he or she became accountable for the 1,000 to 1,500 eligible voters in his or her area. During 2009 and the subsequent elections to State Assemblies, the BLOs also ensured door-to-door distribution of voter-identification slips to voters. The preparation of accurate electoral rolls and direct distribution of voter identification slips by the BLOs also boosted voter confidence in the credibility of the election process. BLO system led to increase in voter turnout.

Within a few of years of the introduction of the BLO system in 2007 it has now become an integral part of election management. In subsequent elections in Gujarat and in other States, the BLOs now began to also collect photos for photo electoral rolls. Finally, we adopted the concept of the BLO system as a national exercise in the 2009 election, with very beneficial results.

Advisory Jurisdiction

Linder the Constitution, the Commission also has advisory jurisdiction in the matter of

• post election disqualification of sitting members of Parliament and Sfate Legislatures. For example, for holding office of profit.
• cases of persons found guilty of corrupt practices at elections which are dealt with by Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period.

The opinion of the Commission is given to the President or the Governor as the case may be and is binding.

Quasi-Judicial jurisdiction

The Commission has the power to disqualify a candidate who has not lodged an account of his election expenses within the time and in the manner prescribed by law. The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Political Parties & the Election Commission

The Election Commission of India is the authority to register political parties under Sec.29A of_; the Registration of People Act. All political parties are registered with the Election Commission under the law. Some parties are merely registered and some are recognized as national and state parties if they comply with the criteria that the EC lays down. The EC may enforce inner party democracy in their functioning by making it compulsory to hold organizational elections at stated intervals.

It has quasi-judicial jurisdiction :settlement of disputes between the splinter groups of a recognised party based on which symbol may be attached or frozen.

The Model Code of Conduct is voluntarily agreed to by the parties who have given power to the EC to enforce the same so that there is level playing field among them- among the big and small parties and also the ruling and opposition parties. EC’s power to enforce the MCC is recognized by the courts and also acquires force by precedent.

The Commission has a separate Secretariat at New Delhi. Two Deputy Election Commissioners who are the senior most officers in the Secretariat assist the Commission. They are generally appointed from the national civil service of the country and are selected and appointed by the Commission with tenure.

At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a team of supporting staff.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers perform election work. They all perform their functions relating to elections in addition to their other responsibilities.

The workforce for conducting a countrywide general election to Lok Sabha consists of nearly five million polling personnel and civil police forces so that about 70 crore electorate can vote in about 8 lakh polling booths. This huge election machinery is deemed to be on deputation to the Election Commission and is subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.

The Secretariat of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the Finance Ministry of the Union Government.

For parliament elections, Central Government bears the expenditure . State Government pays for the elections to State Legislature. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital Equipment, expenditure related to preparation for electoral rolls and for Electors' Identity Cards too, the expenditure is shared equally.

Election Process

The Commission announces the schedule of elections before the formal process begins. With the announcement of schedule, the Model Code of Conduct for guidance of candidates and Political Parties comes into effect. The formal process for the elections starts with the notification calling upon the electorate to elect Members of a House. As soon as notification is issued, candidates can start filing their nominations in the constituencies from where they decide to contest. These are scrutinised by the Returning Officer of the constituency concerned after.the last date for nomination is over. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny.

At least two weeks are given for political campaign before the actual date of poll. A separate date for counting is fixed and the results are declared for each constituency by the Returning Officer. The Commission announces list of Members elected and issues Notification for the due Constitution of the House. With such notification, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned States, in case of Vidhan Sabhas, can then convene the respective Houses to hold their sessions. The process takes 5-to 8 weeks for the national elections, 4 - 5 weeks for separate elections only for Legislative Assemblies.

Independence of Election Commission and its insulation from executive interference is guaranteed by the following provisions

• The term of office of the Chief Election Commissioner and other Election Commissioners is six years from the date he assumes office or till the day he attains the age of 65 years, whichever is earlier.
• Art. 324(5) says that Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a judge of the Supreme Court and conditions of his service shall not be varied to his disadvantage after his appointment.The other Election Commissioners cannot be removed from office except on recommendation by the Chief Election Commissioner.
• The Chief Election Commissioner and Election Commissioner's are entitled to the samesalary and other facilities, like rent free accommodation, as are provided to a judge of the Supreme Court
• Conditions of service of the CEC and ECs can not be altered to their disadvantage^-after their appointment.

It must be stated that unlike the judges of SC and HCs; CAG and the members of the UPSC, the administrative expenditure of the EC or the salaries , allowances and pensions of the CEC and ECs are not charged on the Consolidated Fund of India.

Recommendations to make the EC more independent and effective

• Moily Commission (SAR)( 2007) recommends that there should be a collegium fpr appointment of Chief Election Commissioner and other Commissioners. It should be headed by Prime Minister consisting of Lok Sabha Speaker, Leader of Opposition in Lok Sabha, Law Minister and Rajya Sabha Deputy Chairperson.Same was earlier recommended by the NCRWC
• The same constitutional protection to all Election Commissioners as is available to the Chief Election Commissioner
• all such functions concerning the Secretariat of the Election Commission, consisting of officers and staff at various levels, such as their appointments, promotions, etc., be exclusively vested in the Election Corrimission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc., and
• EC budget be Charged on the Consolidated Fund of India.

Tbe six-member-Commission headed by the former Chief Minister of Karnataka, Veerappa Moily made the following suggestions in its report titled “ Ethics in Governance’ ( 2007)

• partial state funding of elections should be available
• tightening of anti-defection law. Power of disqualification of MPs and MLAs on grounds of defection should be taken away from the Presiding Officers and be vested with President and Governors on the advice of the Election Commission. Such an amendment to the law is said to be necessary in the light of the long delays seen in some recent cases
• a collegium should be given the power of appointment of Chief Election Commissioner and other Commissioners. Collegium should be headed by Prime Minister and should consist of Lok Sabha Speaker, Leader of Opposition in Lok Sabha, Law Minister and Rajya Sabha Deputy Chairperson
• Special Election Tribunals should be constituted at the regional level to ensure speedydisposal of election petitions and disputes within a stipulated peritid of six months. Each Tribunal should comprise a High Court judge and a senior civil servant with at least five years of experience in the conduct of elections. Its mandate should be to ensure that all election petitions are decided within a period of six months as provided by the law. The Tribunals should normally be set up for a term of one year only, extendable for a period of six months in exceptional circumstances
• Section 8 of the Representation of the People Act, 1951 needs to be amended to disqualify all persons facing charges related to grave and heinous offences and corruption, with the modification suggested by the. EC.

Some electoral reforms conducted in the last decade

The introduction of electoral Identity Cards and preparation of photo voter rolls, stricter enforcement of the Model Code of Conduct, large-scale deployment of central paramilitary forces, the appointment of general and expenditure observers, clear and strict directions of the Election Commission regarding the conduct of party meetings, gradual introduction of Electronic Voting Machines and use of technology in various administrative matters such as videography of elections and secret cameras in sensitive polling stations are some of the salient features introduced by the Election Commission since the ’90s.Enhancing voter awareness by declaring January 25, the day the EC came into force in 1950, as the voter awareness day.
These reforms have paid off as can be seen from the high voter turnout in the 2011 and 2012 assembly elections- 75-80%. The reasons for the same are- increasing awareness; fearless voters due to better security that the EC ensured by videography etc; simple voting through EVMs; gravity of issues like corruption; good performance like in Kerala by Achutanandan govt; dynasty issues as in Tamil Nadu with DMK party.
• BLO
• Vulnerability mappin