Know the Formation, Independence And Functions of the Election Commission of India

Synopsis

1. Introduction
2. Formation and Constitution of Election Commission of India

III.  Independence of the Election Commission of India

1. Functions of the Election Commission of India
2. Constitutional provisions on the conduct of Elections

1. Introduction

Elections hold fundamental importance in a democratic country like India. They ensure that the will of the countrymen is reflected in their elected leaders. They also act as a platform to express resentment against a ruling party as the election of a different government proves that the ultimate authority lies with the people. In order to ensure the efficacy of elections, it is important to ensure that they are conducted in a smooth, fair and transparent manner. For administering the conduct of elections in India, a constitutional body known as the Election Commission of India (hereinafter referred as “ECI“) has been formed under the Constitution of India (hereinafter referred as “Constitution“).

This article discusses the constitutional provisions relating to the conduct of elections in India and the formation of ECI, its independence, powers, and functions.

1. Formation and Constitution of Election Commission of India

The ECI has been formed under Article 324(1) of the Constitution which states that the ECI shall be responsible for superintendence, direction, and control of preparation of electoral rolls and conduct of all elections to the following:

• Parliament i.e. the Central legislature;
• the legislature of every Indian State;
• office of President of India; and,
• office of Vice-President of India.

Article 324(2) talks about the constitution of the ECI stating that it shall consist of the Chief Election Commissioner (CEC) and such other number of Election Commissioners as the President may determine from time to time. The CEC and other commissioners are to be appointed by the President of India in accordance with any law made in that behalf by the Indian Parliament. The CEC acts as the chairman of ECI.

Article 324(5) of the Constitution specifies that the President of India has the power to determine the conditions of service and tenure of the CEC and other election commissioners of the ECI. The proviso to Article 324(5) specifies that the President can remove any election commissioner based on the recommendation of the CEC but the CEC can be removed only on the same grounds and in the same manner as a judge of the Supreme Court of India. Thus, the CEC occupies a superior position compared to other election commissioners.

The proviso to Article 324(5) also provides that the conditions of service of a CEC cannot be varied to his/her disadvantage after his/her appointment.

In S.S. Dhanoa vs. Union of India, AIR 1991 SC 1745, the Supreme Court of India held that the election commissioners of ECI cannot be considered to be at par with the CEC in terms of power and authority.

However, later in T.N. Seshan vs. Union of India, (1995) 4 SCC 611, the Supreme Court held that status, power and authority of the CEC and other election commissioners of ECI are equal. It also held that CEC cannot misuse the power of recommending removal of election commissioners as the power has been given to the CEC to shield the election commissioners and not to use it against them.

Article 324(4) states that the President may appointed Regional Commissioners for assisting ECI in the conduct of elections to the legislative assembly or legislative council of any State legislature.

The Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (hereinafter referred as the “Act“) to provide for the conditions of service of the members of ECI including CEC and procedure for the conduct of business by ECI. The Act makes the following provisions in respect of CEC and other election commissioners:

• Section 3 of the Act states that the salary payable to CEC and other election commissioners shall be equal to that payable to a judge of Supreme Court of India.
• Section 4 of the Act states that term of office of CEC and other election commissioners shall be 6 years or till the age of 65 years, whichever is earlier.
• Section 5 states that the number of leaves available to CEC and other election commissioners shall be that available to any member of Indian Administrative Services in a case where the CEC/election commissioner was not in government service prior to his/her appointment but where the CEC/election commissioner was in a government service prior to his/her appointment, the number of leaves is governed by the rules applicable during such government service.

III. Independence of the Election Commission of India

The ECI has the important responsibility of conducting elections for which it is necessary that it is able to function independently without any political and executive pressure. The independence of ECI has been ensured under Article 324(5) of the Constitution by allowing the CEC to be removed only in the manner applicable to a Supreme Court judge and by preventing variation of terms of service to his/her disadvantage post-appointment. Even the other election commissioners of ECI and regional commissioners appointed under Article 324(4) can be removed only on the recommendation of CEC.

1. Functions of Election Commission of India

In addition to the functions prescribed under Article 324(1) of the Constitution, the ECI also performs the following functions:

1. issuing a model code of conduct to be followed by parties contesting the elections;
2. registration of political parties for entitling them to contest elections;
3. prescribing limits of maximum campaign expenditure that political parties are entitled to make in respect of each candidate;
4. recommending disqualification of elected members post the election for violation of any applicable guidelines;
5. set down general rules for election;
6. allot election symbols to political parties and individual contestants;
7. fix the territorial areas of electoral constituencies throughout India in accordance with the provisions of Delimitation Commission Act, 1952;
8. organize and periodically amend electoral rolls;
9. register all qualified voters;
10. inform dates and schedule of upcoming elections and scrutinize nomination papers submitted by candidates; and,
11. to appoint chief electoral officers and district electoral officers for supervising election work in States and districts respectively.

In A.C. Jose vs. Sivan Pillai, AIR 1984 SC 921, the ECI had passed an order directing the use of the electronic machine for casting votes instead of voting by manual means during the election to the Kerala State Legislative Assembly held in 1982. While setting aside the order as unconstitutional, the Supreme Court of India held that “It is true that Article 324 does authorize the Commission to exercise powers of superintendence, direction, and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under entry No. 72 in the Union List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures“.

1. Constitutional provisions on conduct of Elections

While Article 324 deals with formation of ECI, Articles 324 to 329 of the Constitution make provisions relating to conduct of elections in India.

Article 325 of the Constitution states that one general electoral roll has to be prepared for every territorial constituency for election to either the Central or State legislature and no person shall be considered ineligible for inclusion in such electoral roll merely on basis of religion, race, caste or sex. Thus, Article 325 seeks to prevention discrimination in respect of inclusion in electoral rolls.

Article 326 of the Constitution lays down the principle of adult suffrage. It states that for being registered as a voter for elections to the Lok Sabha of the Parliament or the legislative assembly of any State legislature, a person must fulfil the prescribed conditions:

• he/she must be a citizen of India;
• he/she must be of 18 years of age on the relevant date fixed by any law; and,
• he/she must not be otherwise disqualified under the Constitution or any other law on ground of non-residence, unsoundness of mind, crime, corruption or illegal practices.

Article 327 of the Constitution entitles the Indian Parliament to frame laws to regulate matters relating to elections to the Parliament or State legislatures including preparation of electoral rolls, delimitation of constituencies and other matters necessary for ensuring due constitution of the concerned legislature. Article 328 provides similar power to the State legislatures to make laws for matters relating to election to the concerned State legislature including preparation of electoral rolls.

Article 329 of the Constitution bars the interference of courts in electoral matters. Article 329(1) states that the validity of any law, made under Article 327 or 328, relating to delimitation of constituencies or allotment of seats to such constituencies cannot be questioned in any court of law.

Article 329(2) states that an election to the Central or State legislature cannot be called into question except by filing an election petition in the manner prescribed by law. Such election petitions challenging the election of any candidate can be filed under the Representation of the People Act, 1951 before concerned High Court.

In Inderjit Barua vs. Election Commission of India, AIR 1984 SC 1911, the Supreme Court held that irregularity in the allotment of election symbol could not be challenged during the pendency of elections by filing a writ petition but could be challenged only by filing an election petition after the election process has gotten completed.