ELECTIONS

Introduction
• Importance
• Preamble – Democratic Republic
• Democracy and free and fair elections – basic feature
• Need for an independent Commission
• Part XV
• Arts 324 - 329
Election Commission
• Article 324
• Constitutes Election Commission
• The superintendence, direction and control of the preparation of the
electoral rolls for; and
• the conduct of Elections to
• Parliament
• The Legislature of every State
• Offices of President and Vice-President
• Article 324 (1)
Election Commission
• Composition
• The Chief Election Commissioner
• Such number of other Election Commissioners, if any, as the President may from
time to time fix
• The appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in that behalf by
Parliament, be made by the President.
• CEC to be the Chairman
• Regional Commissioners: the President may also appoint after consultation with 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, to assist the Election Commission in the performance of the
functions
Election Commission
• The Governor and President to make available such staff as is necessary for
the discharge of the functions of Election Commission
• Chief Election Commissioner can be removed in the same way as the
removal of Supreme Court judge
• Other Election Commissioners and Regional Commissioners can be
removed only on the recommendation of the Chief Election Commissioner
• Service conditions to be determined by the President in accordance with
the Parliamentary law made in this behalf
• The Election Commission (Conditions of Service of Election Commissioners
and Transaction of Business) Act, 1991
Election Commission
• Position of CEC vis-s-vis ECs
• In the matter of the conditions of service and tenure of office of the Election
Commissioners, a distinction is made between the Chief Election Commissioner
on the one hand and Election Commissioners and Regional Commissioners on the
other. Whereas the conditions of service and tenure of office of all are to be such
as the President may, by rule determine, a protection is given to the Chief
Election Commissioner in that his conditions of service shall not be varied to his
disadvantage after his appointment, and he shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court.
These protections are not available either to the Election Commissioners or to
the Regional Commissioners. Their conditions of service can be varied even to
their disadvantage after their appointment and they can be removed on the
recommendation of the Chief Election Commissioner, although not otherwise. It
would thus appear that in these two respects not only the Election
Commissioners are not on par with the Chief Election Commissioner, but they are
placed on par with the Regional Commissioners although the former constitute
the Commission and the latter do not and are only appointed to assist the
Commission.
• S. S. Dhanoa v. Union of India (1991)
Election Commission
• What is, therefore, evident from the discussion of the framers of the
Constitution is, firstly, they did not want to give the same-status to the
Election Commissioners as of the Chief Election Commissioner and,
secondly, they wanted the Chief Election Commissioner to be in overall
control of the business of the Commission. The nearest analogy of another
Constitutional institution that comes to our mind in this connection, is that
of the Council of Ministers under Articles 74 and 163 of the Constitution.
• It is further an acknowledged rule of transacting business in a multi-
member body that when there is no express provision to the contrary, the
business has to be carried on unanimously. The rule to the contrary such as
the decision by majority, has to be laid down specifically by spelling out the
kind of majority--whether simple, special, of all the members or of the
members present and voting etc.
• S. S. Dhanoa v. Union of India (1991)
Election Commission
• The proviso to clause (4) of Article 324 says (i) the CEC shall not be
removed from his office except in like manner and on the like grounds as a
Judge of the Supreme Court and (ii) the condition of service of the CEC
shall not be varied to his disadvantage after his appointment. These two
limitations on the power of Parliament are intended to protect the
independence of the CEC from political and/or executive interference. In
the case of ECs as well as RCs the second proviso to clause(5) provides that
they shall not be removed from office except on the recommendation of
the CEC. It may also be noticed that while under clause (4), before the
appointment of the RCs, consultation with the Election Commission (not
CEC) is necessary, there is no such requirement in the case of appointments
of ECs. The provision that the ECs and the RCs once appointed cannot be
removed from office before the expiry of their tenure except on the
recommendation of the CEC ensures their independence.
Election Commission
• The scheme of Article 324 in this behalf is that after insulating the CEC by the first
proviso to clause (5), the ECs and the RCs have been assured independence of
functioning by providing that they cannot be removed except on the
recommendation of the CEC. of course, the recommendation for removal must be
based on intelligible, and cogent considerations which would have relation to
efficient functioning of the Election Commission. That is so because this privilege
has been conferred on the CEC to ensure that the ECs as well as the RCs are not
at the mercy of political or executive bosses of the day. It is necessary to relise
that this check on the executive's power to remove is built into the second
proviso to clause (5) to safeguard the independence of not only these
functionaries but the Election Commission as a body. If, therefore, the power
were to be exercisable by the CEC as per his whim and caprice, the CEC himself
would become an instrument of oppression and would destroy the independence
of the ECs and the RCs if they are required to function under the threat of the CEC
recommending their removal. It is, therefore, needless to emphasise that the CEC
must exercise this power only when there exist valid reasons which are conducive
to efficient functioning of the Election Commission. This, briefly stated, indicates
the status of the various functionaries constituting the Election Commission.
Election Commission
• It would be wrong to project the individual and eclipse the Election Commission.
Nobody can be above the institution which he is supposed to serve. He is merely
the creature of the institution, he can exist only if the institution exists. To project
the individual as mightier than the institution would be a grave mistake.
Therefore, even if the Election Commission is a single-member body, the CEC is
merely a functionary of that body; to put it differently, the alter ego of the
Commission and no more. And if it is a multi-member body the CEC is obliged to
act as its Chairman. 'Chairman' according to the Concise Oxford Dictionary means
a person chosen to preside over meetings, e.g., one who presides over the
meetings of the Board of Directors. In Black's law Dictionary, 6th Edition, page
230, the same expression is defined as a name given to a Presiding Officer of an
assembly, public meeting, convention, deliberative or legislative body, board of
directors, committee, etc. Similar meanings have been attributed to that
expression in Ballentine's law Dictionary, 3rd Edition, pages 189-190, Webster's
New Twentieth Century Dictionary, Unabridged, 2nd Edition, page 299, and
Aiyer's Judicial Dictionary, 11th Edition
• T. N. Seshan v. Union of India (1995)
Election Commission
• Power of Parliament and State Legislature vis-à-vis the Powers of
the Commission
• Article 327. Power of Parliament to make provision with respect to
elections to Legislatures.—Subject to the provisions of this
Constitution, Parliament may from time to time by law make
provision with respect to all matters relating to, or in connection with,
elections to either House of Parliament or to the House or either
House of the Legislature of a State including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses.
Election Commission
• Article 328. Power of Legislature of a State to make provision with
respect to elections to such Legislature.—Subject to the provisions of
this Constitution and in so far as provision in that behalf is not made
by Parliament, the Legislature of a State may from time to time by law
make provision with respect to all matters relating to, or in
connection with, the elections to the House or either House of the
Legislature of the State including the preparation of electoral rolls and
all other matters necessary for securing the due constitution of such
House or Houses.
Election Commission
• Power of Parliament and State Legislature vis-à-vis the Powers of the
Commission
• When there is no Parliamentary legislation or rule made under the said
legislation, the Commission is free to pass any orders in respect of the
conduct of elections.
• Where there is an Act and express Rules made thereunder it is not open to
the Commission to override the Act or the Rules and pass orders in direct
disobedience to the mandate contained in the Act or the Rules. In other
words, the powers of the Commission are meant to supplement rather
than supplant the law (both statute and Rules) in the matter of
superintendence, direction and control as provided by Art. 324.
Election Commission
• Where the Act or the Rules are silent, the Commission has no doubt
plenary powers under Art. 324 to give any direction in respect of the
conduct of election.
• Where a particular direction by the Commission is submitted to the
government for approval, as required by the Rules, it is not open to
the Commission to go ahead with implementation of it at its own
sweet will even if the approval of the Government is not given.
• A. C. Jose v. Sivan Pillai (1984)
Election Commission
• 329. Bar to interference by courts in electoral matters.—
Notwithstanding anything in this Constitution
• (a) 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;
• (b) 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.
Election Commission
• Broadly speaking, before an election machinery can be brought into operation,
there are three requisites which require to be attended to, namely, (1) there
should be a set of laws and rules making provisions with respect to all matters
relating to, or in connection with, elections, and it should be decided as to how
these laws and rules are to be made;(2) there should be an executive charged
with the duty of securing the due conduct of elections; and (3)there should be a
judicial tribunal to deal with disputes arising out of or in connection with
elections. Articles 327 and 328 deal with the first of these requisites, article
324 with the second and article 329 with the third requisite.
• The other two articles in Part XV, viz, articles 325 and 326, deal with two matters
of principle to which the Constitution-framers have attached much importance.
They are :--(1) prohibition against discrimination in the preparation of, or
eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste,
sex or any of them; and (2) adult suffrage. Part XV of the Constitution is really a
code in itself providing the entire ground-work for enacting appropriate laws and
setting up suitable machinery for the conduct of elections.
Election Commission
• Having regard to the important functions which the legislatures have to
perform in democratic countries, it has always been recognized to be a
matter of first importance that elections should be concluded as early as
possible according to time schedule and all controversial matters and all
disputes arising out of elections should be postponed till after the elections
are over, so that the election proceedings may not be unduly retarded or
protracted.
• In conformity with this principle, the scheme the election law in this
country as well as in England is that no significance should be attached to
anything which does not affect the "election"; and if any irregularities are
committed while it is in progress and they belong to the category or class
which, under the law by which elections are governed, would have the
effect of vitiating the' 'election" and enable the person affected to call it in
question, they should be brought up before a special tribunal by means of
an election petition and not be made the subject of a dispute before any
court while the election is in progress.
• N. P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952)
• “The pointed an pungent observations extracted above, really amount to a
Bible of the election law as culled out from an interpretation of the
provisions of Arts. 324 to 329 of the Constitution, and were referred to
with approval even in Mohinder Singh Gill's case (supra). During the last
three decades this case has neither been distinguished nor dissented from
and still holds the field and with due respect, very rightly. No other case
ever made such a dynamic and clear approach to the problem, perhaps
due to the fact that no such occasion arose because the Commission has
always been following the provisions of the Act and the Rules and had
never attempted to arrogate to itself powers which were not meant to
belong to it.”
• A. C. Jose v. Sivan Pillai (1984)
Election Commission
• Even so, situations may arise which enacted law has not provided for.
Legislators are not prophets but pragmatists. So it is that the Constitution
has made comprehensive provision in Art. 324 to take care of surprise
situations. That power itself has to be exercised, not mindlessly nor mala
fide, nor arbitrarily nor with partiality but in keeping with the guidelines of
the rule of law and not stultifying the Presidential notification nor existing
legislation. More is not necessary to specify; less is insufficient to leave
unsaid. Article 324, in our view, operates in areas left unoccupied by
legislation and the words 'superintendence, direction and control' as well
as 'conduct of all elections' are the broadest terms. Myriad maybes, too
mystic to be precisely presaged, may call for prompt action to reach the
goal of free and fair election. It has been argued that this will create a
constitutional despot beyond the pale of accountability; a Frankenstein's
monster who may manipulate the system into elected despotism--
instances of such phenomena are the tears of history.
Election Commission
• Two limitations at least are laid on its plenary character in the exercise
thereof. Firstly, when Parliament or any State Legislature has made valid
law relating to or in connection with elections, the Commission shall act in
conformity with, not in violation of such provision but where such law is
silent Art. 324 is a reservoir of power to act for the avowed purpose of, not
divorced from pushing forward a free and fair election with expedition.
Secondly, the Commission shall be responsible to the rule of law, act bona
fide and be amenable to the norms of natural justice in so far as
conformance to such canons can reasonably and realistically be required of
it as fairplay-in-action in a most important area of the constitutional order,
viz., elections.
• M. S. Gill v. Chief Election Commissioner (1977)
• The pervasive philosophy of democratic elections which Sir Winston
Churchill vivified in matchless words (is):
• "At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross on
a little bit of paper-no amount of rhetoric or voluminous discussion
can possibly diminish the overwhelming importance of the point.“
• If we may add, the little, large Indian shall not be hijacked from the
course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men dressed in little, brief authority. For
'be you ever so high, the law is above you.
Election Commission
• Apparent Conflict between Article 174 (1) and Article 324 (1)
• (six months shall not intervene between the last sitting of the Legislative
Assembly in one session and the date appointed for its first sitting in the
next Session)
• Is Article 174 subject to the decision of the Election Commission of India
under Article 324 as to the schedule of elections of the Assembly?
• Is the Election Commission of India under a duty to carry out the mandate
of Article 174 of the Constitution, by drawing upon all the requisite
resources of the Union and the State to ensure free and fair elections?“
• Presidential Reference No.1 of 2002 (2002) Gujarat Assembly Election
Election Commission
• The provisions of Article 174 are mandatory in character so far as the
time period between two sessions is concerned in respect of live
Assemblies and not dissolved Assemblies. Article 174 and Article
324 operate in different fields. Article 174 does not deal with
elections which is the primary function of the Election Commission
under Article 324. Therefore, the question of one yielding to the
other does not arise.
Election Commission
• Powers and Functions
• 1. The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the offices of
President and Vice-President held under this Constitution
• Power to cancel and order repoll (M. S. Gill v. CEC – 1977)
• Power to postpone elections (Digvijay Mote v. Union of India 1978)
• Power to impose conditions in campaigning (Election Commission of
India v. AIADMK 1994)
• Allotment of symbols (Roop Lal Sathi v. Nachhattar Singh 1982)
Election Commission
• 2. Tribunal
• Allotment of symbols (APHL Conference, Shillong v. P. A. Sangma
1977)
• Deciding the question of disqualification - Art. 103 (2) & 192 (2)
Elections
• Article 325. No person to be ineligible for inclusion in, or to claim to
be included in a special, electoral roll on grounds of religion, race,
caste or sex.—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.
Elections
• Article 326. Elections to the House of the People and to the
Legislative Assemblies of States to be on the basis of adult
suffrage.—The elections to the House of the People and to the
Legislative Assembly of every State shall be on the basis of adult
suffrage; that is to say, every person who is a citizen of India and who
is not less than eighteen years of age on such date as may be fixed in
that behalf by or under any law made by the appropriate Legislature
and is not otherwise disqualified under this Constitution or any law
made by the appropriate Legislature on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election.
Right to vote: Nature
• N. P. Ponnuswami v. Returning Officer, Namakkal Constituency
(1952)
• Jamuna Prasad Mukhariya v. Lachhi Ram (1954)
• Jyoti Basu v. Debi Ghosal (1982)
• Right to vote and stand for elections are statutory right. There is no
fundamental, constitutional or common law right
• Anukul Chandra Pradhan v. Union of India (1997)
• S. 62 (5) debarring prisoners and persons in lawful custody from voting was
upheld
• Cannot challenge constituionality
Right to vote: Nature
• Peoples Union for Civil Liberties v. Union of India (2013) NOTA case
• The decision taken by a voter after verifying the credentials of the candidate
either to vote or not is a form of expression under Article 19(1)(a) of the
Constitution. The fundamental right under Article 19(1)(a) read with statutory
right under Section 79(d) of the RP Act is violated unreasonably if right not to
vote effectively is denied and secrecy is breached.
• The casting of the vote is a facet of the right of expression of an individual and
the said right is provided under Article 19(1)(a) of the Constitution of India
(Vide: Association for Democratic Reforms (supra) and People’s Union for Civil
Liberties (supra). Therefore, any violation of the said rights gives the
aggrieved person the right to approach this Court under Article 32 of the
Constitution of India.
Electoral Reforms
• Election expenditure
• Common Cause v. Union of India (1996)
• Right to know the antecedents of the candidates
• Union of India v. Association for Democratic Reforms (2002)
• Right to cast NOTA
• Peoples Union for Civil Liberties v. Union of India (2013)