RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

SUBMITTED BY- SUBMITTED TO-

KUNAL JAIN DR. SHIVA SATISH SHARDA

17010 ASSISTANT PROFESSOR OF LAW

Topic- Nature of Powers of Election Commission

NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

TABLE OF CONTENTS
INTRODUCTION.................................................................................................................... 2

BLURRY INDEPENDENCE .................................................................................................. 3

CHOICE OF ELECTION COMMISSIONER ...................................................................... 3

APPOINTMENT PROCESS ................................................................................................. 3

PARTISIANSHIP .................................................................................................................. 3

lethargy, inaction and model code of conduct ....................................................................... 4

reforms and suggestions .......................................................................................................... 6

conclusion.................................................................................................................................. 7

BIBIOGRAPHY ....................................................................................................................... 8

ARTICLES ............................................................................................................................ 8

WEBSITES ............................................................................................................................ 8

1|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

INTRODUCTION

The Election Commission of India is an autonomous constitutional authority responsible

for administering election processes in India. 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 India1.

The purity and freedom of election can be ensured only if the electoral administration,
the basic foundation of democracy, is placed beyond the reach of "party Government". The
architects of the Indian Constitution attached the highest significance to an independent
electoral machinery for the conduct of elections. For this it was necessary that an independent
Election Commission with its vast paraphernalia should be set up in the country.1 Such a
Commission would ensure fair and free elections of the representatives of the people at all
levels. It is mainly with the idea of fulfilling the long-cherished desire that the Election Com-
mission of India was ushered in under Article 324.

1
The Presidential and Vice-Presidential Elections Act, 1952 (Act No. 31 of 1952)

2|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

BLURRY INDEPENDENCE

According to L. K. Advani, "The Election Commission occupies a pivotal place in the

scheme of the Indian Constitution. During recent years it has willingly or unwillingly,
abdicated its independent, progovernment authority and accepted for itself the role of a mere
official department charged with the conduct of elections."

CHOICE OF ELECTION COMMISSIONER

In recent years an impression has gained the ground that the Election Commission is
becoming less and less independent of the executive than in the earlier years of independence,
because the choice of the Chief Election Commissioner has not always been based on the
criteria which would command the confidence of all sections of public opinion. The practice
of making it a berth for retiring government officials has, perhaps, been responsible for the
feeling that incumbent so benefited will be beholden to the Government for his office2.

APPOINTMENT PROCESS

Equally important is the manner of appointing the members of the Commission and the
choice of the Chief Election Commissioner. The Constitution provides that the appointment
should be made by the President3. As he is to act on the advice of the Council of Ministers in
effect, the selection is made by the government of the day. While this may be in keeping with
the basic features of cabinet responsibility under the Parliamentary system of government,
appointment to this high office by the executive of the day is always open to suspicion and
cannot command the prestige and confidence that should be associated with the office.

PARTISIANSHIP

The Election Commission is facing the charge of partisan- ship. On the eve of the Ninth
Lok Sabha polls, it was criticised in the context of the seemingly hesitant approach of

2
Bhalla, R.P., "Electoral Mechanism in India" in Virendra Grover (ed.) Political System in India, Vol. 6 New
Delhi, 1989, p. 11
3
Shiva Rao, B., The Framing of Indians Constitution, New Delhi, 1968, p. 460.

3|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

Commission to the complaint against the announcement of the Indira Mahila Yojana by the
then Prime Minister Rajiv Gandhi, in his capacity as Congress (I) President. During the 2014
elections the opposition alleged that it was favouring the Narendra Modi-led National
Democratic Alliance (NDA). They mainly questioned the basis for a series of “clean chits”
extended to Modi despite his provocative campaign tactics that pushed the boundaries of the
election commission’s model code of conduct. For instance, at a rally in the western state of
Maharashtra, Modi invoked the armed forces in his speech while making an appeal to first-
time voters. “Can your first vote be dedicated to those who carried out the airstrike? I want to
tell the first-time voters: can your first vote be dedicated to the veer jawans (brave soldiers)
who carried out the air strike in Pakistan. Can your first vote be dedicated to the veer Shaheed
(brave martyrs) of Pulwama (terror attack),” he had said.

The local electoral officers found Modi’s appeal to be “inconsistent” with the poll
watchdog’s instructions, according to the Indian Express newspaper. Yet, to everybody’s
surprise, though, he was exonerated by the election commission4.

The suspicion of partisanship got strengthened when it promptly ordered the DMK
Government in Tamil Nadu to desist from screening documentaries on its achievements in the
last one year and the Andhra Pradesh Government to remove cut outs of N.T. Rama Rao,
depicting him as Krishna, but took its time in dealing with complaint made by the non-Congress
Parties against the announcement of the Indira Mahila Yojana by the Congress President who
was also the Prime minister.

LETHARGY, INACTION AND MODEL CODE OF CONDUCT

The ECI has a constitutional duty to act as a referee and all powers to exercise.
However, the three-member commission appears listless, careless, an off-the-field third empire
who occasionally wakes up from deep slumber or at the prodding of the Supreme Court to
make its presence felt. The ECI’s lethargy was in full display recently when it chose to punish
Gujarat state BJP chief, banning him from campaigning for 48 hours when voting had already
concluded in all 26 Lok Sabha seats of Gujarat. In the case of Uttar Pradesh Chief Minister
Yogi Adityanath raising the “Bajrang Bali versus Hazrat Ali” bogey, the ECI helplessly

4
https://qz.com/india/1625877

4|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

watched Adityanath’s image being beamed across TV news channels chanting Hanuman
Chalisa during the supposedly banned period.

The toxic campaign is not alone where the ECI or Election Commission of India is seen
as a hopeless, helpless, and mute spectator. The central government has gone about conducting
income tax raids on a number of opposition leaders and individuals who are considered to be
either against the government or are critical of their governance. The opposition has also raised
issues of national security — which the ECI had sought to discourage — without bothering
about consequences.

The ECI’s inaction is in sharp contrast to its assertiveness in 2014 when it had
recommended postponing certain policy decisions by the government related to natural gas
pricing and notifying ecologically sensitive areas in the Western Ghats. Then the ECI had
invoked the Model Code of Conduct (MCC). The MCC, mentioned in the Article 324 of the
Constitution, is a set of guidelines issued by the ECI to regulate political parties and candidates
prior to elections, in order to ensure a free and fair election. The constitutional provision gives
the ECI the power to supervise elections and the MCC becomes operational from the date that
the election schedule is announced till the date that results are announced5. The MCC was first
introduced in the Kerala assembly elections in 1960 as a set of instructions to political parties
regarding election meetings, speeches, slogans, etc. In the 1962 general elections, the MCC
was circulated to recognize parties and State governments sought feedback from the various
political parties operating in the state. The MCC was largely followed by all parties in the 1962
general elections and continued to be followed in subsequent all general elections that took
place in the country. In 1979, the ECI added a section to regulate the ‘party in power’ and
prevent it from gaining an unfair advantage at the time of elections. There are eight key
provisions of the MCC dealing with general conduct, meetings, processions, polling day,
polling booths, observers, party in power, and election manifestos. It includes issues such as
how one political party should criticise the other. The criticism should be confined to their
policies and programs, past record and work.

Activities such as: (a) using caste and communal feelings to secure votes, (b) criticising
candidates on the basis of unverified reports, (c) bribing or intimidation of voters, and (d)

5
FADIA, B. L. “REFORMING THE ELECTION COMMISSION.” The Indian Journal of Political Science, vol.
53, no. 1, 1992, pp. 78–88. JSTOR, www.jstor.org/stable/41855597.

5|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

organising demonstrations or picketing outside houses of persons to protest against their

opinions, are prohibited.

Even a cursory look at four phases of electioneering would show that none of these
provisions were followed. There was no semblance of any MCC or model code of conduct
being implemented anywhere, be it the BJP-led NDA, the Congress-led UPA or regional
leaders.

It must be remembered and emphasized that the Westminster model of parliamentary

democracy has issues of propriety at premium. The MCC, therefore is based on assumption
that political parties and candidates would accord importance to issue of propriety, ethics and
morality. In the absence of these lofty principles, the Westminster model is reduced to ashes.

Britain, the cradle of parliamentary democracy has no written constitution. Political

defections are rare and conventions have greater say than rules and laws. The Indian experience
is the reverse of it. The MCC, without a stringent legal cover is impractical and toothless6.

REFORMS AND SUGGESTIONS

The Election Commission has called for every effort to eliminate scope for criticism
against the election machinery. It has urged the government to implement the already accepted
proposal ai that the appointment of the Chief Election Commissioner be subject to law made
by Parliament. It has also suggested a series of reforms to reduce the scope for controversies
over the timing of elections and malpractices such as manipulation of voter's lists, rigging or
booth capturing and misuse of official machinery. One of the suggestions made was that the
commis- sion be given the same constitutional status as Parliament, the Supreme Court, the
Comptroller and Auditor General and the Union Public Service Commission. At present, the
Election Commission is regarded as the weakest pillar of democracy because its secretariat and
staff are not insulated completely against the executive.

The Tarkunde Committee suggested that members of the Election Commission should
be appointed by the President on the advice of a Committee consisting of the Prime Minister,
the Leader of the opposition in the Lok Sabba and the chief justice. To restore to the Election
Commission, the position and importance conceived for it by our Constitution makers, L. K.

6
https://www.orfonline.org

6|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

Advani gave three specific suggestions. Firstly, the Commission should be a multi-member
body as contemplated by Article 324 of the Constitution7. Secondly, the practice of nominating
retired secretaries of Government to the Commission must be given up. Only persons qualified
to become judges of the Supreme Court should be eligible for the Commission's membership.
Lastly, retiring members of the Election Commission should not be re- appointed to any other
office.

CONCLUSION

During the last four decades of it’s working the Election Commission of India has
acquired for itself a prestigious position in the constitutional set up of the country. Anybody
having a grievance against a political party, candidate, Minister, or official can approach the
Commission for its redressal. A feeling has grown in the country that the Election Commission
is the only suitable agency for the removal of their electoral grievances and can render the
requisite help and guidance in all matters pertaining to elections. The Commission has been
able to generate a sense of faith that the people repose in its integrity. In fact, the Election
Commission of India is one of the institutions that has earned the country credit at home and
abroad.

In the ultimate analysis, making the Election Commission function independently is not
enough. The political parties too will have to play their part in a fair manner because rigging,
booth- capturing and other malpractices do not take place with- out the connivance of the
candidates.

7
“Election Commission in Tatters.” Economic and Political Weekly, vol. 44, no. 9, 2009, pp. 5–6. JSTOR,
www.jstor.org/stable/40278538.

7|Page
NATURE OF POWERS OF ELECTION COMMISSION ADMINISTRATIVE LAW

BIBIOGRAPHY

ARTICLES
• Fadia, B. L. “Reforming the Election Commission.” The Indian Journal of Political
Science, vol. 53.
• “Election Commission in Tatters.” Economic and Political Weekly, vol. 44.
• Katju, Manjari. “Election Commission and Changing Contours of Politics.” Economic
and Political Weekly, vol. 44.
• Kumar, B.Venkatesh. “Critical Issues in Electoral Reforms.” The Indian Journal of
Political Science, vol. 63.
• “Helpless Election Commission.” Economic and Political Weekly, vol. 22.

WEBSITES
• https://qz.com/india/evm-controversy-other-incidents-mar-indian-general-election-
2019/
• https://www.thehindu.com/elections/lok-sabha-2019/is-the-ec-free-enough-to-play-
fair/article26899391.ece
• https://barandbench.com/moral-or-model-code-of-conduct-the-election-commissions-
powers-to-ensure-free-and-fair-polls/
• https://thewire.in/politics/election-commission-model-code-of-conduct

8|Page