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Election commission of India - Power, Function under Constitution

Updated: Jun 1

The Election Commission of India, a institution in modern constitutional democracies, is established and recognised under Article 324 of the Indian Constitution. This Commission is entrusted with the comprehensive responsibility for overseeing the preparation of electoral rolls and conducting elections to the Parliament, State Legislatures, and for the offices of the President and Vice President.

Election commission of india power and function

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Election Commission under constitution

The Chief Election Commissioner (CEC), a central figure in this framework, enjoys a high degree of security in tenure. As per Article 324(5) of the Constitution, the CEC can be removed from office only under circumstances and through procedures akin to those applicable to a Judge of the Supreme Court.

Furthermore, post-appointment, the conditions of service of the CEC cannot be altered to their disadvantage.

The commission was established in 1950 and originally only had one Chief Election Commissioner. Two additional Commissioners were appointed to the commission for the first time on 16 October 1989 (on the eve of the 1989 General Election)

To further define and regulate the conditions of service for the Chief Election Commissioner and other Election Commissioners, the Parliament enacted the CEC and Other Election Commissioners (Condition of Service) Act, 1991.

This legislation serves to concretize the operational framework and service conditions for the key functionaries of the Election Commission, thereby reinforcing the institutional integrity and independence necessary for conducting free and fair elections in India.

Case law governing appointment of CEC and EC

In TN Seshan, the Supreme Court, while dealing with the removal of members of the Election Commission, held that:

[T]he scheme of Article 324 in this behalf is that after insulating the [Chief Election Commissioner]  ... by the first proviso to Clause (5), the Election Commissioners and the Regional Commissioners have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC’’

In above case it was further observed

  • It was further clarified that the recommendation for removal must be based on ‘intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission’. 

  • That is so because this ‘privilege has been conferred on the CEC ... ’ to ensure that the ECs ‘are not at the mercy ofpolitical or executive bosses of the day’.

  • The Court further forewarned that if the power were to be exercisable by the CEC ‘as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal’.

  • The CEC was described ultimately as ‘merely a functionary of [the Election Commission]’, an ‘alter ego of the Commission and no more’.

Anoop Barwal Case(2023) and Subsequent Law by Parliament

The Supreme Court held in Anoop Barwal v Union of India, that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on appointments to the Election Commission of India until Parliament enacts a law on the subject. Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 was passed which now governs the Process.

The new legislation covers aspects such as the appointment, salary, and removal of the CEC and other election commissioners.

  • The president would appoint the CEC and ECs based on the recommendation of a selection committee, comprising the prime minister, a union cabinet minister, and the leader of the opposition or the leader of the largest opposition party in the Lok Sabha.

  • The recommendations of this committee would remain valid even in the absence of a full committee.

  • A search committee, headed by the Law Minister, would propose a panel of names to the selection committee, with eligibility criteria requiring candidates to have held a position equivalent to the secretary to the central government.

  • The salary and conditions of service for the CEC and ECs were set to be equivalent to that of the cabinet secretary, deviating from the previous equivalence with a Supreme Court judge's salary.

Nature of Power and Function of Election Commision

The Constitution endows the Election Commission (EC) with the superintendence, direction, and control over the preparation of electoral rolls and the conduct of all elections. This authority is comprehensive, extending beyond mere administrative functions to encompass legislative power as well.

  1. Plenary Powers of the Election Commission: In the case of India v Association for Democratic Reforms, the Supreme Court recognized the plenary nature of the EC's powers under Article 324 of the Constitution. These powers are broad, encompassing all necessary actions for the smooth execution of elections, limited only by valid laws enacted by Parliament or state legislatures. Consequently, the EC has the authority to mandate that every candidate filing a nomination for elections disclose details of any criminal proceedings, concluded or pending, against them, as well as information about their property and educational qualifications. This requirement is crucial to fulfill the voters' right to be informed about candidates.

  2. Include both specific and general order: Further elaborating on the scope of Article 324, the Supreme Court in Kanhiya Lal Omar interpreted the phrase ‘superintendence, direction, and control’ to include both specific and general orders. This power is to be interpreted liberally to effectively achieve the intended objective of the provision.

  3. Scope of Article 324 in Unlegislated Areas: As clarified in Association for Democratic Reforms, Article 324 operates in realms not covered by legislation. The terms ‘superintendence, direction and control’ and ‘conduct of all elections’ are interpreted expansively.

  4. Election Commission's Authority Over Election Expenses: In the judgment of Common Cause, which addressed the issues of election expenses incurred by political parties and the submission of returns, the Court underscored the critical importance of electoral integrity to democratic governance.

  5. Comprehensive Electoral Oversight: Thus, the Court concluded that the EC's powers over the electoral process encompass the scrutiny of all election-related expenses, whether incurred by a political party, a candidate, or any other group or individual, affirming the comprehensive scope of the Commission’s authority in maintaining the integrity of the electoral process.

Power and function of Election Commission

The Election Commission's (EC) powers and functions, though generally outlined in the Constitution, are more specifically governed by laws such as the People Representation Act, 1950. This act provides a detailed legal framework for the EC's operations.

1. Preparation of electoral roll and conduct election

2. Staffing Powers and Disputes 3. Transfer ad posting during election

4. Delimitation of Constituencies

5. Appointment of Electoral Officers

6. Power to Remove Disqualification

7. Registration and Recognition of Political Parties

8. Power of a civil Court

1. Preparation of electoral roll and conduct of election :The Election Commission is responsible for creating and maintaining the electoral roll, which is a comprehensive list of all eligible voters, ensuring its accuracy and up-to-dateness for the smooth conduct of elections. This function is crucial for delineating who has the right to vote, thereby upholding the integrity and fairness of the electoral process. In Indrajit Barua v Election Commission of India,the Supreme Court took the view that:

[O]nce the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Representation of the People Act, 1951

Date of Conduction of Election

The authority to decide the timing of elections in India is a significant aspect of the Election Commission's mandate. As per Sections 14 and 15 of the Representation of the People Act (RP Act), the President or Governor announces the dates for elections based on the recommendations of the Election Commission.

This clearly establishes that the prerogative to schedule elections for the House of People or a Legislative Assembly squarely falls within the jurisdiction of the Election Commission.

This power is not merely procedural but carries substantial significance, especially when it comes to ensuring free and fair elections. The process of electing a new legislature is expected to commence immediately following the dissolution of the assembly.

This entails an update of the electoral rolls to reflect current voter eligibility, further underscoring the Commission's role in maintaining the integrity of the electoral process.

The Supreme Court of India has also upheld the autonomy and authority of the Election Commission in matters related to election scheduling.

In Digvijay Mote v Union of India, the Court dealt with a challenging scenario concerning elections in disturbed areas. The plea to declare elections void in such volatile contexts was rejected, reaffirming the Election Commission's capability to handle 'surprise situations' as conferred by Article 324 of the Constitution.

Moreover, in Re Special Reference No 1 of 2002, the Court emphasized the exclusive domain of the Election Commission in framing the schedule or calendar for the election of the Legislative Assembly.

It was categorically stated that this power of the Election Commission is beyond the scope of any law framed by Parliament, highlighting its plenary nature.

This decision reinforces the notion that the Commission's powers, especially concerning election scheduling, are not just administrative but also inherently strategic, ensuring that elections are conducted in a manner that upholds democratic principles.

In conclusion, the Election Commission of India, through its constitutionally granted powers and judicial affirmations, plays a pivotal role in determining the timing of elections. This responsibility is integral to preserving the democratic fabric of the nation, enabling the Commission to function independently and effectively in the face of various challenges and circumstances.

2. Staffing Powers and Disputes: The EC, upon request, is entitled to staff from the President or state governors for executing its constitutional duties. However, questions arise regarding the EC's autonomy in selecting its staff and the administrative control over these personnel. These issues came to the forefront when the CEC threatened to postpone elections over staffing disputes, leading to Supreme Court intervention.

3. Transfer ad posting during election: The Supreme Court, in  Lalji Shukla v EC of India case, upheld the wide-ranging powers of the EC, including its authority to transfer officials for ensuring free and fair elections, thus emphasizing the EC's extensive control over election-related administrative matters.

4. Delimitation of Constituencies: The EC is empowered to update the delimitation of parliamentary and assembly constituencies, as stated in Section 9(1) of the RP Act, 1950. This process involves issuing notifications and ensuring legislative scrutiny.

5. Appointment of Electoral Officers: Under Sections 13 and 13A of the RP Act, 1950, the EC, in consultation with state governments, designates chief electoral officers and district election officers, highlighting its role in the administrative setup of elections.

6. Power to Remove Disqualification: The EC can remove or reduce the period of disqualification under certain conditions of the RPA, except in cases of corrupt practices. This power necessitates the recording of reasons for such decisions.

7. Registration and Recognition of Political Parties: Section 29A of the RPA, as amended in 1988, mandates political parties to register with the EC, providing detailed information about their principles and adherence to constitutional values. The EC's decision on registration is final, emphasizing its role in maintaining the political framework's integrity.

Conditions for Withdrawing Recognition of Political Parties:

The EC's authority to withdraw recognition from a political party has been subject to judicial interpretation.In Communist Party of India (M) v Bharat Kumar, the Supreme Court suggested that parties violating democratic principles could lose recognition.

However, in Indian Congress v Institute of Social Welfare, the court clarified that the EC does not have the power to withdraw recognition based on actions contrary to the principles mentioned in Section 29A post-registration.

8. Powers of Civil Court: Powers of Civil Court: The EC has power of a civil court trying a suit under CPC for making inquiries that, in its opinion, are necessary to be made before giving opinion under arts 103 and 192  of the Constitution or under s 14(4) of the Government of Union Territories Act 1963. These powers are listed below:

(i) summoning and enforcing the attendance of any person, and examining her on oath;

(i) requiring discovery and production of any document or other material object produced as evidence;

(iii) receiving evidence on affidavits;

(iv)requisitioning any public record or a copy thereof from any court or office; and

(v) issuing commissions for examination of witnesses or documents.

The EC also has power to require any person, subject to any privilege that may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as in EC's opinion, may be useful for, or relevant to, the subject matter of inquiry.

The EC is deemed civil court. When any offence unders 175 178, 179, 180 or 228 of the IPC is committed in view or presence of the EC, the EC may, after recording facts of the offence and the statement of the accused as provided in the Cr PC 1898, forward the case to a magistrate having jurisdiction to try the same.

The magistrate, to whom any such case is forwarded, proceeds to hear the complaint against the accused, as if the case had been forwarded under s 346 of the Cr PC 1973 (s 482 of the Cr PC 1898).

Any proceeding before the EC is deemed judicial proceeding within the meaning of s. 193 and 228 of the IPC.

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