Powers and Functions of Election Commission of India
In a democratic form of government, which is consequently dependent upon the independence of the Election Commission, the bedrock thereof depends upon the conduct of free & fair elections, for which the Election-Commission has been established in order to protect the democratic setup.
While drafting the Constitution, there was a unanimous agreement amongst all the members of the Constituent Assembly that there was an urgent need of holding free & fair elections, and more importantly, there is a need for an independent body, free from Executive control and influence, which would then hold these particular elections.
Dr. B.R. Ambedkar, in one of his speeches, said
“The Indian trust of purity and freedom of elections to Legislative bodies, it is of utmost importance that the independent election conducting body be freed from any kind of interference from the Executive of the day.”
Initially, the Constituent Committee on Fundamental Rights engaged in the framing of the Constitution wanted to include “Independence of Elections and Avoidance of interference by the Executive“ as a Fundamental Right in Part III of the Constitution. But, subsequently, this idea was dropped, following which Dr. Ambedkar said –
“When the matter came before the house, it was the wish of the house that while there was no objection to regard this matter as of Fundamental Importance, it should be provided for in some other Part of the Constitution and not in the chapter dealing with Fundamental Rights.”
The debates in the Constituent Assembly resulted in the formation of separate articles specifically made for the independent election conducting body named Election Commission and this was not only required to be an independent body but should also be fiercely protected from any form of intrusion into the discharge of its functions, be those functions be its executive, legislative or even judiciary itself. Thus, The Election Commission was confined in Part XV (Article 324 to Article 329) of the Constitution of India.
Article 324 (Originally designed as Article 289) provides that – the superintendence, direction, control of preparation of electoral rolls, conduct of all the elections to the Parliament, to the State Legislative Assemblies, to the President & Vice-President will be vested in the Election Commission. It also provides that the Election Commission will comprise of – The Chief Election Commissioner (CEC) and other Election Commissioners as the President will decide from time to time.
Article 324 also insulates the protective measures on the independence of the election commission, according to which, the tenure of office of the Election Commissioners are protected. For Ex: The Chief Election Commissioner’s tenure is protected to the extent that – He shall continue to perform his duties and shall not be removed from his office, same in the manner as that of the Judge of a Supreme Court of India. As far as the other Election Commissioners are concerned, they can not be removed from the office, except on the recommendation made by the Chief Election Commissioner.
Article 327 prescribes the power of the Parliament to make provisions with respect to elections to the legislations. This is the provision, by virtue of which, Representation of People’s Act 1950 & RPA 1951 are framed.
Article 329 provides two essential aspects;
Clause (a) of Article 329: Notwithstanding anything contained in this Constitution, the validity of any law relating to the “Delimitation of Constituencies” shall not be questioned before the courts.
Clause (a) of Article 329: No election to either house of Parliament or to the house of State Legislative Assemblies shall be called for questioning before the courts except by an “Election Petition” presented to such authority in such a manner as provided by the law.
Hence, In the conduct of elections, the Election-Commission is completely insulated while it is conducting elections, its directions and orders cannot be brought to challenge at any point in time.
There was a significant debate before the Constituent Assembly on the matter of – whether there should be a separate election commission for the Centre and a separate election commission for the States. In order to maintain a balance between the two, the assembly decided to have a Central Election Commission that would consist of “Regional Election Commissioners” under its control.
Judicial Intervention with the functioning of Election Commission:
The Supreme Court of India has very zealously protected the independence of the Election Commission since its pronouncement, as early as 1951.
The earliest judgment on the independence of the Election Commission was the N.P. Ponnuswami Vs Returning Officer Case, 1952.
Mr. Ponnuswami was contesting elections from Madras Legislative Assembly in which he filed his nomination from Namakkal constituency and his nomination papers were rejected by the Returning officer, following which, Mr. Ponnuswami challenged the rejection of his nomination papers under Article 226 (Writ Petition) before the Madras High Court. The Honorable Madras High Court rejected the petition on grounds that – Article 329 envisages the powers in this matter and this Court can not interfere with the election process.
Mr. Ponnuswami approached the Honorable Supreme Court of India (1952 AIR 64, 1952 SCR 218). The Supreme Court in its very first judgment held
“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.”
The Court pointed towards the fact that – priority should be given to the constitution of Legislative Constituency first and the matters relating to elections can be heard after the completion of elections.
From 1952 to 2021, the courts have refrained from interfering in the election process, once the election process has commenced. Any dispute with respect to an election is decided in an “Election Petition” which is provided for in the Representation of People Act, 1951 but as soon as the election processes commence, the courts have rigorously and unfailingly applied a “Hands-Off” principle in the conduct of elections.
The Constitution envisages that the powers of the Election Commission under Article 324 were plenary in nature and are subjected to whatever be the law made by the Parliament. The Parliament came up with two legislations, namely,
- RPA 1950 – Provides for the allocation of seats, delimitation of constituencies, qualification of voters.
- RPA 1951 – Provides for the actual conduct of the elections, qualifications & disqualification of members, corrupt illegal practices, election offenses & disputes, petitions, etc.
The broad principle that the courts have held on these legislations is that – the power of the Election Commission under Article 324 is complete in its nature, subjected to RPA Acts. But, in situations where the RPA does not provide for it, the Election Commission can give directions and those directions are to be followed. If such directions are not complied with, and with the absence of Legislative powers under the statute of Election Commission, the courts have held that – “The Election Commission is entitled to issue directions to election authorities and such directions will be binding on all the election authorities but any third-party cannot derive any authority or complain.” For example, If the Election Commission has directed the State to assemble all the leaders of all the political parties of that region and the regional officer does not comply with the given directions and a complaint is filed, in such a situation, this ground alone will not be sufficient to set aside the election process.
The Election Commission is expected to be an independent body without any interference by the Executive, Legislature, or Judiciary. Hence, it was initially comprised of only the Chief Election Commissioner and such other Commissioners as the President may appoint from time to time. Since the entire State machinery is given at its disposal and it has the right to pass any direction to any officer of the Central or State Government during the course of the election, it was initially decided that whoever appoints the Chief Election Commissioner, has to be independent. If the elections have to be completed free & fair, the office of the Chief Election Commissioner or the Election Commissioner has to be completely independent.
The possibility that the President can be prone to appoint a biased Chief Election Commissioner, as the President himself is a party-man and could have its own biases and prejudices and the President being bound by the advice of the Prime Minister & Council of Ministers could be forced to appoint a biased Chief Election Commissioner has been intensely debated.
In one such debate, Dr. Ambedkar said
“There is no use in making a tenure of Election Commission as a fixed & secure tenure if there is no provision in the Constitution to prevent, either a fool or a naïve or a person who is likely to be under the thumb of the Executive. I do not want to confess that this is a very important question and it has given me a great deal of a headache. I have no doubt about that it is going to give the House a great deal of headache.”
However, there were some suggestions that were very significant in this matter.
1. Shibban Lal Saxena – Every person who is appointed originally should be such that he should enjoy the confidence of all the parties, i.e., 2/3rd majority of both the Houses of Legislature, and then appoint the Chief Election Commissioner.
This idea was shot down with the explanation being – this process will get vexed in the Parliament and there will be no desired outcome from it.
2. Pandit Hridaynath Kunzru – The Chief Election Commissioner would be appointed subject to provisions of any law made by the Parliament.
This idea was accepted by Dr. Ambedkar.
Article 324 (5) ensures the protection given to the Chief Election Commissioner under which he gets appointed by the President on the recommendation of the Prime Minister, gets his security of tenure of 6 years or 65 years of age, whichever is earlier.
Like Supreme Court Judge, the Chief Election Commissioner also can not be easily removed from his office. In the instance where his removal gets difficult, he has the power to make independent decisions. The appointment of other Election Commissioners is done by the President, but their removal depends upon the recommendation of the Chief Election Commissioner.
The Supreme Court told in the S.S. Dhanoa Vs Union of India & Ors, 1991
“Recommendations on the removal of Election Commissioners must be based on intelligible and cogent considerations which would have a relation to the efficient functioning of the Election Commission, that is because, a privilege has been conferred on the Chief Election Commissioner to ensure that the Election Commissioners & the Regional Commissioners are not at the mercy of the Political or Executive bosses of the day. It is necessary to realize that this check on the executive power to remove inbuilt in the second proviso of clause 5 to safeguard the bodies.”