October 2, 2022

Election Commission: More than just a mere regulatory Institution

This article is written by Smriti Chawla, a student of ll. b at Department of Laws, Panjab University Chandigarh.

India is the largest global democracy, here this institution is practiced at three levels, Parliament, State Legislature, and Nagar or Gram Panchayats. The true test of democracy lies in the continuous, free, and unbiased elections and transfer of power in a smooth fashion. Elections in India have always been fascinating, be they at any level. It is a process that needs active participation and involvement of the government machinery and public servants. The elections are conducted by the Election Commission of India and State Election Commission which were established under Article 324 and Article 243 C (3) respectively in the Constitution of India for ensuring Free and Fair Elections of President, Vice President, Parliament, State Legislatures and Local Bodies as held in MOHINDER SINGH GILL & ANR V THE CHIEF ELECTION COMMISSIONER, a free and fair election is a constitutional imperative.

WHAT IS ELECTION COMMISSION?

Indian Election Commission is one of the most powerful electoral bodies and role model for the world as many nations acknowledge India as the Gold Standard for conducting elections and to acquire this kind of reputation Election Commissioners have worked hard. Moreover, the credit goes to the framers of the Constitution of India who created a great institution with total independence and total autonomy. Yet, the Election Commission was not always as prominent or powerful. Its profile has changed substantially since 1991. Before 1989, the executive restrained the ECI’s autonomy. Its Chief Election Commissioners (CECs) mostly remained quiescent. Occasionally, when a CEC tried to assert his authority, the executive would curtail his efforts, that’s why once Commissioners are appointed executive should not consider them as their subordinates and maintain a distance; that’s why Election Commission is not part of the Government of India but of India as a nation. However, when innovations in electoral practice appeared, they resulted in ECI’s office growing into a powerful institution.

WHAT ARE THE MISSION AND THE VISION OF THE ELECTION COMMISSION?

  • The Mission of the Election Commission: The ECI has to maintain its independence, integrity, and autonomy and it must also ensure ease of accessibility, inclusiveness, and ethical participation. It must also adopt the highest standards of professionalism for free, fair, and transparent elections in India to strengthen the trust which the people have in the electoral democracy and governance.
  • The Vision of the Election Commission: The ECI has to be an Institution of excellence by intensifying active involvement through participation and deepening as well as strengthening the situation of Democracy in India.

COMPOSITION OF THE COMMISSION

Article 324 of the Constitution of India reads the Election Commission shall consist of a Chief Election Commissioner and such other Commissioners as the President may, from time to time, fix. Since its inception in 1950 and till 15th October 1989, the office of EC functioned as a single member body consisting of the Chief Election Commissioner. However, later in 1989, President Ramaswamy Venkataraman appointed two more Election Commissioners to cope with the increased work of the Election Commission on account of lowering the voting age from 21 to 18 years. The Chief Election Commissioner and the two other Election Commissioners possess equal powers and receive an equal salary and other requisites which are, moreover, similar to those of a judge of the Supreme Court. In case of difference of opinion amongst the Commissioners, the matter is decided by the Commission by the majority. They hold office for a term of six or until they attain the age of 65 years, whichever is earlier. They can resign at any time or can be removed before the expiry of their term but a provision to 324 (5) says that the Chief Election Commissioner shall not be removed from his office except in the like manner and on like grounds as a judge of Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. However, the other Commissioners hold their office during the pleasure of the President, subject to any law made by Parliament in this regard. In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal. CEC is given the power of recommending the removal of ECs to shield them and not to use it against them. CEC cannot use its Suo Moto as he is an equal to them.

PROCEDURE OF REMOVAL

Chief Election Commissioner may be removed from office through a motion adopted by Parliament on grounds of ‘Proven misbehavior or incapacity. Removal requires a special majority of 2/3rd members present and voting supported by more than fifty percent of the total strength of the house. The term ‘Impeachment’ is only used for removing the President which requires the special majority of 2/3rd members of the total strength of both the houses which is not used elsewhere.

FUNCTIONS OF ELECTION COMMISSION

Article 324-329 deals with supervision, direction, and control of the Election process in India. The Election Commission is vested with various functions by the Indian constitution. The wide range of functions are:

  • Voters’ list– The Commission supervises in preparing up-to-date voters’ lists. The Commission ensures that the voters’ list contains all the names of the registered and eligible voters and no names for the non-eligible and non-existent voters and therefore ensures that the list does not have any errors or mistakes.
  • Election schedule and timings– The Commission is responsible for fixing the date and timing of elections and for preparing the election schedule. The election schedule includes all notifications of the elections, date from which nomination can be filed, last date for filing nominations, last date of scrutiny, last date of withdrawal, date of polling, date of counting, and declaration of results.
  • Model of conduct– It is a set of rules and regulations implemented by the Commission for the political parties and the candidates before and during the elections.
  • Re-polling or Re-counting– The Commission can also order for recounting of votes in a particular constituency or state or the country if it feels that the counting process lacked fairness and unbiasedness. It can also order for a re-poll in a particular constituency or a state.
  • Recognition and party symbols– It is the Election Commission that accords recognition to the political parties and grants them the status of national or state parties based on their poll performance. Party symbols are also allotted to each party by ECI.
  • Ensure free and fair poll–The Commission has the power to ensure that the Elections are conducted without any biases, unfairness, and maintaining people’s perception of conducting just and fair elections. However, if any question in the mind of people arises, it is crucial to deal with it with prompt communication on behalf of ECI. Therefore, it has the power to make any decisions in this relation. It can cancel or postpone the elections for the entire country, or a particular state, or a particular constituency if it feels that a free and fair election is not possible due to some reason. Moreover, the trust of leaders in ECI is also commendable as the losing Prime Minister or Chief Minister hands over the chair with folded hands without any ill-will which shows their ardency.

COMPARISON OF THE USA MODEL OF ELECTION SYSTEM

Comparing this with the USA Presidential Elections (2021) is worth mentioning as the chaos questions the integrity of the USA as a nation. The system of the Electoral College is one of the problems with the US Election which is given more preference than the popular vote. Popular Vote is a natural vote of One Man and One Woman. Contrary to it, Election College is an artificially created body. Keeping a note of it, Hillary Clinton’s thirty lakhs more popular votes in 2016 did not account for any significance and was set aside because of an electoral college.

Moreover, absence of a Central Election Commission in the USA, unlike India where the federal Election Commission conducts all the elections to the office of President, Vice President, two Houses of Parliament, and two Houses of State Legislative. Notwithstanding, the USA has ten thousand bodies that conduct elections. This diversity sometimes creates a problem.

INDIA’S ELECTION COMMISSION AS AN EMBODIMENT OF INSTITUTIONAL EXCELLENCE AND PROFESSIONALISM

  • Spreading Voter Education: – The theme of National Voters’ day 2019 is “No Voter to be Left Behind”. ECI also highlighted its flagship program, Systematic Voters’ Education and Electoral Participation (SVEEP) for enhancing Inclusion among various categories of voters and to encourage their electoral participation. It is designed according to the socio-economic, cultural, and demographic profile of the state as well as the history of electoral participation in previous rounds of elections and learning thereof.
  • Curbing the menace of bogus voters: – In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly Elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs, on the part of the Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed in the rolls with the issuance of voter identity cards. It also responded by increasing the safeguards and the number of observers and instituting a VVPAT for generating a voter-verified paper audit trail.
  • Continuous Technological Upgradation: – In the initial days of conducting Elections, paper ballots were used. To improve the technological advancement and bringing transparency in the Election process, in 1982, in a constituency called Perur AC in Kerela EVM (electronic voter machine) was used and it worked well. However, its legality was questioned in the court of law. Supreme Court in this matter claimed according to the Representation of People Act,1951, there is no mention of EVMs. Thus, the act was amended in Parliament, and from 1998 EVMs are in continuous use in straight Elections and from 2004 onwards in Lok Sabha Elections.
  • International Interface: – ECI established IIIDM (India’s International Institute of Democracy and Election management) in 2011. Here more than eighty-five countries have come to get trained from ECI and gain experience and exposure to Election management, parties, and managers throughout the world.
  • The criminalization of Politics and Money: – In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies. The Supreme Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme Court’s order and as such the nomination papers shall be liable to be rejected by the Returning Officer.

The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. It has set down norms and made recommendations to the government to curb the menace of criminalization of politics.

The candidates to an Election are also obliged to submit an affidavit in a prescribed for declaring their criminal records, including convictions, charges pending and cases initiated against them. The information so furnished by the candidates is disseminated to the public, and the print and electronic media. EC has also recommended that RoPA, 1951 should be amended to provide that any complaint regarding the false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action. Alternatively, the complaint can lie directly to the Magistrate Court.

WAY FORWARD

  • In 1972, a joint parliamentary committee suggested that the CEC should be supported by the other Election Commissioners as per article 324. The Tarkunde Committee on Electoral reform (1975) and Goswami committees on Electoral reforms (1990) suggested the Election of a Commissioner rather than an appointment based on the discretion of the President.
  • The 2nd ARC report recommended for the Election panel headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members should make recommendations for the consideration of the President for the appointment of the Chief Election Commissioner and the Election Commissioners.
  • Legal backing for Model Code of Conduct is also a necessary step to prevent the violation of MCC which will give power to EC to punish the violators.

REFRENCES

  1. Basu, D. (2017). Commentary on the Constitution of India. Lexi Nexis.
  2. Jain, M. (2018). Indian Constitutional Book. LexiNexis.
  3. Laxmikanth, M. (2019). Indian Polity. McGraw-Hill.
Tip
Tip the Writer




If you like the article and if you feel that it was a useful document to you then please provide a little token of appreciation(Rs10) for the Writer so that he/she can continue to produce more dedicated work in future. As most of the writers are young students thus this initiative wants them to gain confidence and become a better professional in future.