Election Commission of India
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Clashes of EC: with govt, within EC
From the archives of "India Today"
1989: Rajiv Gandhi expands the EC by handpicking two members. Commits impropriety by announcing poll dates.
1990: V.P. Singh sacks two election commissioners saying they were partisan. S.S. Dhanoa challenges removal in the SC. Appeal is rejected.
1993: Narasimha Rao expands EC to rein in T.N. Seshan who approached SC. Apex Court upholds order. In Dhanoa and Seshan cases, court treats the commissioners as equals but says CEC had powers to recommend their removal. Battle renewed
2005: BJP objects to Chawla’s elevation as election commissioner, claiming he was partial to the Congress.
2006-07: Chawla and Gopalaswami lock horns over poll dates for Uttar Pradesh and Chawla’s decision to consult the MEA on Sonia Gandhi accepting a Belgian honour.
2008: CEC sends notice asking Chawla why he should not be sacked for being partisan. Finds Chawla’s reply unsatisfactory.
2009: Gopalaswami recommends to the President that Chawla be dismissed
Election commissioners, selection of
Debates in Constituent Assembly, 1949; subsequent changes
Right from the time the Constitution was being finalised through debates in the Constituent Assembly in 1949, there has been unanimity that elections must be insulated from executive interference.
The Fundamental Rights Committee had recommended recognising “independence of elections and the avoidance of any interference by the executive in the elections to the legislatures“ as a fundamental right. But, after long debate, the Constituent Assembly , in the words of B R Ambedkar, resolved that “while there was no objection to regard the 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 original draft Constitu tion had provided that the chief election commissioner and election commissioners would be appointed by the President.Many members had expressed reservations over giving unbridled powers to the PM to choose a person of his choice as the CEC. They felt such a personalised selection process was sure to impede the independence of the commission.
This had forced Ambedkar to amend the original draft provision. The amended version, which is now Article 324(2), said, “The Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time to time fix and the appointment of CEC and other election commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.“
`Subject to law made by Parliament' was inserted to keep the doors open for devising a suitable mechanism in future. For four decades, the EC was a single-member body with the CEC as its head. From October 16, 1989 till January 1, 1990, it became a three-member body . From January 2, 1990, when T N Seshan became CEC, and up to September 30, 1993, it again became a singlemember commission.
For decades, the commission was subservient to the ruling party -in fixing poll schedule and blinking at electoral malpractices. Seshan changed it all. He gradually assumed grotesque independence and recklessly cracked the `model code of conduct' whip. He refused all requests from the ruling party, even for postponement of bye-elections involving Sharad Pa war and Pranab Mukherjee.
An upset government brought an ordinance in 1993 to rein in the “too independent“ CEC. It appointed two more election commissioners and gave them equal status with that of the CEC. An angry Seshan challenged the validity of the ordinance in the Supreme Court. A five-judge bench rebuffed Seshan [1995 (4) SCC 611] and upheld appo intment of the two ECs.
In the past, the SC had never commented on the process for selection and appointment of CEC and ECs. In 2006, then CEC B Tandon had written to then President A P J Abdul Kalam proposing a sevenmember collegium headed by the PM for selection of CEC and ECs. The other members in the proposed collegium were Lok Sabha Speaker, law mi nister, leaders of opposition in LS and RS, an SC judge nominated by the CJI and deputy chairman of RS.
Three years later, then CEC N Gopalaswami wrote to then President Pratibha Patil proposing a six-member collegium headed by the PM for selection of CEC and ECs. the collegium proposed by Gopalaswami excluded the SC judge. Both Tandon and Gopalaswami had said such collegiums were in action for selection of central vigilance commissioner and chairman and members of National Human Rights Commission. When Navin Chawla was set to become the CEC, BJP leaders L K Advani and Arun Jaitley had whole-heartedly supported the concept of a collegium for selection of the CEC and ECs.
Last week, the SC picked the threads from the ex-CECs' letters and asked the government, “The President appoints the CEC and ECs. The Constitution says it will be subject to any law enacted by Parliament. But till date, no law has been enacted. In such a scenario, in the absence of a law and till Parliament legislates on this issue, would it not be appropriate to institutionalise the appointment process by laying down certain norms?“ Maintaining independence of the CEC and ECs and keeping them free from political masters was the main object behind the SC's query .The NDA government opposed and said, “Rightly or wrongly , Parliament has decided not to enact a law. If Parliament says there is no need for a law, can the Supreme Court step into the legislative arena and attempt to fill the perceived gaps which do not exist? This will be improper on the part of the court.“
Given the earlier statements of Advani and Jaitley , the NDA government may not have difficulty in drafting a bill for introduction in Parliament. But the government and the SC must remember the golden words of caution uttered by K M Munshi in the Constituent Assembly on independence of the EC, which he felt would have a large army of officials given the enormity of the task entrusted to it.
“Now, all this army cannot be set up as a machinery independent of the government. It is not possible nor advisable to have a kingdom within a kingdom, so that election matters could be left to an entirely independent organ of the government. A machinery , so independent, cannot be allowed to sit as a kind of super-government to decide which government shall come to power. There will be great political danger if the Election Commission becomes such a political power in the country .“
Powers of the Election Commission, in brief
From where does the EC derive its powers and what is its extent?
The Election Commission of India is a creation of the Constitution. Article 324 says the superintendence, direction and control of all elections to Parliament, the State legislatures, and the offices of the President and Vice-President shall be vested in the EC. The Article has been interpreted by courts and by orders of the EC from time to time to mean that the power vested in it is plenary in nature. It is seen as unlimited and unconditional in the matter of holding elections. In other words, the EC can take any action it deems fit to ensure that elections and the election process are free and fair.
The independence of the EC is preserved by clauses in the Constitution that say the Chief Election Commissioner cannot be removed from office except in the manner provided for the removal of a Supreme Court judge and that the conditions of his service cannot be varied to the incumbent’s disadvantage after appointment.
Has the EC always been a multi-member body?
No, the Election Commission was helmed by a single Chief Election Commissioner for decades since the body was set up in 1950 based on the provisions of the Constitution. It was on October 16, 1989, that two more Election Commissioners were appointed to expand the panel’s composition. Their tenure ended in 1990. Thereafter, two Election Commissioners were appointed in 1993. Since then, the EC has been a three-member panel, with a Chief Election Commissioner and two Election Commissioners. Decision-making within the panel is by majority. While the CEC can only be removed in the manner set out for a Supreme Court judge, the other two Commissioners may be removed on the recommendation of the CEC. In 1995, the Supreme Court held that the Election Commissioners are on a par with the CEC and the latter is not superior in standing with the other Commissioners. The EC has been demanding that the protection and safeguards given to the CEC under the Constitution should also be extended to the other Election Commissioners.
What kind of control does the EC have over civil servants during an election?
As the superintendence and control over all aspects of the election process is vested in the EC, it exercises direction and control over civil servants deployed for election-related work. This means that bureaucrats engaged in the administrative aspects of elections, including police officers with law and order duties, are also amenable to the EC’s jurisdiction. This power enables the EC to monitor both the manner in which civil servants perform their election-related duties, and prevent activities which may be seen as partisan. The EC often cites its vast powers under Article 324 to transfer or suspend officials during election time, even though they normally come under the disciplinary purview of the government of India or the State governments. There have been instances of the EC transferring not only Returning Officers, but also Commissioners of Police and Superintendents of Police. On April 5, the EC transferred Kolkata Police Commissioner Anuj Sharma and three other top police officers. The normal reasons cited are to prevent these civil servants from aiding any political party and to ensure a level-playing field for all contestants.
What are the possible actions it can take against candidates and parties?
The EC monitors the adherence of political parties and candidates to the ‘Model Code of Conduct’. The code is a set of norms laid down by the EC, based on a consensus among political parties, spelling out the dos and don’ts for elections. However, it does not have statutory value, and it is enforced only by the moral and constitutional authority of the EC. If the violations are also offences under election law and the criminal law of the land, the EC has the power to recommend registration of cases against the offenders.
However, for some violations — such as canvassing for votes during a period when electioneering is barred, making official announcements while the MCC is in force, and making appeal to voters on sectarian grounds — the EC has the power to advise or censure candidates, in addition to directing registration of cases. In some cases, as recent incidents would show, the EC may bar candidates or leaders from campaigning for specified periods. Asking individuals to leave a constituency or barring entry into certain areas are other powers that the EC may exercise. These powers are not necessarily traceable to any provision in law, but are generally considered inherent because of the sweeping and plenary nature of the EC’s responsibility under the Constitution to ensure free and fair elections.
Its powers extend to postponing elections to any constituency, cancelling an election already notified, and even to abrogate or annul an election already held. While postponement on the grounds of rampant bribery of voters has been done on a few occasions, the resort to the grave action of rescinding the notification for a Lok Sabha constituency happened in Vellore in the current general election. Earlier, by-elections had been called off on similar grounds. In March 2012, the Election Commission cancelled a Rajya Sabha election in Jharkhand after polling was completed, following the emergence of evidence that candidates were bribing voters.
What are the limitations of the EC’s powers?
The EC does not have the power to disqualify candidates who commit electoral malpractices. At best, it may direct the registration of a case. The EC also does not have the power to deregister any political party. However, the Constitution empowers the EC to decide whether a candidate has incurred disqualification by holding an office of profit under the appropriate government, or has been declared an insolvent, or acquired the citizenship of a foreign state. When a question arises whether a candidate has incurred any of these disqualifications, the President of India or Governor has to refer it to the EC. The poll panel’s decision on this is binding.
Reforms, proposed and actual
Govt thwarts EC bid to bar utility bill defaulters
The government has rejected a proposal from the Election Commission (EC) to amend the Representation of the People Act to bar candidates from contesting parliamentary or assembly elections if they have not cleared their dues such as house rent in government accommodation, electricity and water bills.
The EC had in a communication to the law ministry requested amending the election laws to include failure to clear dues of public utilities as a disqualification from contesting Lok Sabha and assembly polls.
Barring candidates will require amendment to Chapter III of the RP Act which deals with electoral offences. A new clause will have to be inserted therein for disqualification “on the ground of being a defaulter of public dues“.
However, in its response to the election watchdog, the law ministry had said the proposal was “not desirable“. According to the law ministry , the ban would not be desirable as the authority issuing no-dues certificate or no-objection certificate to a candidate could be biased and may not give the required papers.
The ministry also said in cases of dispute on the dues, the matter could be referred to a court and may take time to settle. In such cases, it would not be desirable to deny the candidate with the nodues certificate.
In July , 2015 the Delhi High Court had through an order asked the EC to “consider the possibility , if any, of putting any impediment to a defaulter of public dues contesting election, to ensure quick recovery of the said dues“.
Based on the judgment, the commission had recently made it mandatory for candidates contesting polls to furnish a `no-dues certificate' from the agency providing electricity, water and telephone connections to their accommodation.
This led to some candidates missing filing their nomination papers in the recent assembly polls as they had failed to get the required no-dues certificate. There was, however, no legal backing to such instructions from the EC.
Election Commission of India