Part XV (Art. 324-329) of the Constitution of India, provides the provisions related to Election procedure in India.

Article 324

Article 324 is a plenary provision clothing the Election Commission with the entire responsibility to hold the National and State elections and carries with it the necessary powers to discharge its functions. However, the Commission cannot act against a law framed by Parliament or the State Legislature. The power of the Commission is also subject to norms of fairness and it cannot act arbitrarily. The action cannot be mala fide. Article 324 governs in matters not covered by legislation. Being a high functionary who is expected to function fairly and legally if he does otherwise, the courts can veto the illegal action.[1]

The Election Commission under Article 324 can postpone an election on the basis of the opinion that there existed disturbed conditions in the State or some area of the State thus making of holding free and fair elections not possible. The court followed the views in the Mohinder Singh Gill case (supra) that democracy depends on the man as much as on the Constitution. The Election Commission is endowed with the power to recognise political parties and to decide disputes arising among them. It can also adjudicate controversies between splinter groups within a political party. The Commission has been found to have the power to issue the symbols order. This right has been traced to Article 324[2].

Recognising the magnitude of the exercise involved in ensuring free and fair elections, Supreme Court declared that in case of conflict of opinion between the Election Commission and the Government, as to the adequacy of the machinery to deal with the state of law and order, the assessment of the Election Commission was to prima facie prevail. Supreme Court, no doubt, also observed that a mutually acceptable coordinating machinery may be put in place.[3]

While dealing with the power of the Election Commission to requisition such staff “for election duty” and disagreeing with the Commission that it could requisition the service of the employees of the State Bank of India, Supreme Court declared that the election commission did not have untrammelled power. The power must be traced to the Constitution or a law[4].

The Election Commission has power to issue directions for the conduct of elections requiring the political parties to submit the details of the expenditure incurred or authorised by them for the purpose of the election of their respective candidates. This power was traced to the words “conduct of elections”.[5]

All powers though not specifically provided but necessary for effectively holding the elections are available to the Election Commission.

 Article 324 is a reservoir of power to be used for holding free and fair elections. The Commission as a creature of the Constitution may exercise it in an infinite variety of situations. In a democracy, the electoral process plays a strategic role. The commission can fill up the vacuum by issuing directions until there is a law made. This was laid down in the context of directions aimed at securing information about the candidates[6].

Following a spate of violence in the State of Gujarat and upon the dissolution of the Assembly, the Commission took the view that it may not be possible to hold the election though Article 174(1) mandated that there shall not be more than six months in between the last session of the assembly and the first meeting of the next session. After finding that Article 174 did not apply to a dissolved assembly as was indeed the case, Supreme Court reiterated that the words ‘superintendence, control, direction as also ‘the conduct of all elections’ were the broadest terms. The court also found that if there is no free and fair periodic election, it is the end of democracy. The said judgment was rendered while answering a reference made to the Court under Article 143 of the Constitution.

The Election Commission has the power to lay down a certain benchmark to be achieved by a party in State politics before it could be recognised as a political party.[7]

Jurisdiction of Election Commission

While dealing with the aspect of jurisdiction of the Election Commission under Section 10A of the 1951 Act to ascertain whether there has been a failure to lodge true, correct and genuine accounts of bona fide election expenditure and that it did not exceed the maximum limit, the Election Commission has been found to have overarching powers and it has been described as a ‘guardian of democracy’. In this regard, we notice the following words of the Court in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar[8] :

“67. In this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the People of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintained, and for that purpose when the Constitution makers in their wisdom thought it fit to create an authority, namely, the Election Commission and invested with it the power of superintendence, control and also to issue directions, it must be stated that such power invested with the said constitutional authority should not be a mere empty formality but an effective and stable one, in whom the citizens of this country can repose in and look upon to ensure that such unscrupulous elements and their attempts to enter into political administration of this vast country are scuttled.

In that respect, since the ruling of this vast country is always in the hands of the elected representatives of the people, the enormous powers of the Election Commission as the guardian of democracy should be recognised. It is unfortunate that those who are really interested in the welfare of society and who are incapable of indulging in any such corrupt practices are virtually side-lined and are treated as totally ineligible for contesting the elections.”

Under Article 103(2) and Article 192(2), the President and the Governor are to act on the opinion of the Election Commission as regards the question of disqualification of the Member of Parliament and of the Legislature of a State, respectively. This is the advisory jurisdiction of the Election Commission. It exercises vast administrative powers. Further, the Election Commission discharges quasi-judicial functions also.

Article 329(b)

Article 329 (b) declares as follows:

“(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.”

Regarding the impact of Article 329(b), a Bench of three learned judges after an exhaustive review of the earlier case law has set down the following summary of conclusions in the case of Election Commission of India v. Ashok Kumar[9]:

“31. The founding fathers of the Constitution have consciously employed use of the words “no election shall be called in question” in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court “calls in question an election” the bar of Article 329(b) is attracted. Else it is not.

32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.

(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end.

Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

33. These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons.”

In a most recent case ‘Anoop Baranwal v. UOI (2023)’, the court observed,

“Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner. It must observe the provisions of the Constitution and abide by the directions of the Court. The same being done, it can draw upon a nearly infinite reservoir of power. Once the poll is notified, [which again is a call to be taken by the Election Commission itself, and indeed capable of being misused and the subject of considerable controversy, if bias or subservience to the powers that be, is betrayed], it assumes unusual powers.

Its writ lies across Governments over the length and breadth of the country. Officers of the Government who come under its charge become subject to the superintendence of the Commission. The fate of the political parties and its candidates, and therefore, of democracy itself to a great measure is allowed to rest in the hands of the Election Commission. While there may be officers who assist the Commission, vitally important decisions have to be taken by those at the helm of the affairs.

It is the Chief Election Commissioner and the Election Commissioners at whose table the buck must stop. It is in this scenario, we bear in mind that when a decision is taken in the process of the holding of the poll, that subject to proceedings which are initiated in courts which conduce to the effective holding of the poll, any proceeding which seeks to bring the election process under a shadow is tabooed. The significance of this aspect is that it adds to the enormity of the powers and responsibilities of the Election Commission.

Awaiting the outcome of the poll to question the election before the tribunal may result in many illegal, unfair and mala fide decisions by the Election Commission passing muster for the day. Once the election results are out, the matter is largely reduced to a fait accompli. In fact, many a time an omission or a delay in taking a decision can itself be fatal to the holding of a free and fair poll. The relief vouchsafed in an election petition may not by itself provide a just solution to the conduct of election in an illegal, mala fide or unfair manner.”

We would, therefore, find that the Election Commission of India has been charged with the duty and blessed with extraordinary powers to hold elections to both Parliament and state legislatures from time to time. This is an enormous task. The power it possesses under Article 324 is plenary. It is only subject to any law which may be made by Parliament or by the State Legislature.


Anoop Baranwal v. UOI (2023)

[1] Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405)

[2] All Party Hill Leaders Conference Shillong v. Captain W.A. Sangma and Others (1977) 4 SCC 161, and Kanhiya Lal Omar v. R.K. Trivedi and Others, (1985) 4 SCC 628

[3] Election Commission of India v. State of T.N and Others (1995) Suppl. 3 SCC 379.

[4] Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Others(1995) suppl.2 SCC 13

[5] Common Cause (A Registered Society) v. Union of India and Others (1996) 2 SCC 752 54 (2000)

[6] Union of India v. Association for Democratic Reforms and Others (2002) 5 SCC 294

[7] Desiya Murpokku Dravida Kazhagam (DMDK) v. Election Commission of India and Others (2012) 7 SCC 340

[8] (2014) 7 SCC 99

[9] (2000) 8 SCC 216