Election Commission

Composition of Election Commission –

žA. 324

žAccording to Cl. (1) of art. 324, the superintendence, direction & control of the preparation of the electoral roll & conduct of elections.

žAccording to Cl. (2) of art. 324, the Election Commission consists of the.

žAccording to Cl. (3) of art. 324, the Chief Election Commissioner acts as the Chairman.

žAccording to cl. (4), the President after consultation with the Election Commission may appoint such Regional Commissioners.

žAccording to cl. (5) of art.324, the President may make rules…..

žThere are 2 provisos to this clause. ….

žAccording to cl. (6), an obligation has been placed on the Central & State governments in the name of the President or Governor respectively to make available such staff.

S.S.Dhanoa V. Union of India
AIR 1991 SC 1745

žIn this case, the SC has laid down an important proposition regarding the composition of the Election Commission.

žUntil 1989, the Election Commission consisted of only the Chief Election Commissioner.

žIn 1989, the Central Govt. sought to appoint Election Commissioners.

žBy notification, the President appointed the petitioner & one another person as Election Commissioners.

žThese 2 other Election Commissioners who had been appointed by the President in 1989, had to vacate their posts as subsequently when the Government at the Centre changed after general elections, these posts were abolished by the new Government.

žSo, one of these other Election Commissioners moved the SC against this decision of the Govt.

žThe SC observed that the Chief Election Commissioner & the Other Election Commissioners were not given positions of equality by the Constitution.

žAbolition of the poet was distinguished from the removal of the person from the post.

žThe parliament had passed the Chief Election Commissioner & other Election Commissioners (Conditions of Service) Act, 1991 to lay down conditions of service of the Chief Election Commissioner & other Election Commissioners.

žThese conditions of service clearly showed that the Chief Election Commissioner occupied a higher position.

Position Thereafter –

žParliament amended the Chief Election Commissioner & other Election Commissioners (Conditions of service) Act, 1991 in the year 1994.

žThe 3 Election Commissioners have to act unanimously on the procedure for transaction of business, as also regarding allotment of business amongst the Chief Election Commissioner & other Election Commissioner.

žAnd where there is a difference of opinion, the matter shall be decided according to the majority opinion.

žNow, all the 3 Commissioners retire at the age of 65 years & each of them receives a salary equal to that of the SC judge.

žThe Act places the Chief Election Commissioner & other Election Commissioners at par in matters of tenure & salary, however, still the position of the Chief Election Commissioner differs from the Other Election Commissioners –

  1. The Chief Election Commissioner cannot be removed from his office except in the like manner & on the like grounds as that of the SC judge.
  2. The conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment.

Multi-member Body –

ž1993, the CG decided to convert the Election Commission into a multi-member body.

žThe notification was issued and 2 Election Commissioners were appointed.

žFollowing this, the then Chief Election Commissioner, T.N.Seshan challenged the notification as well as the changes made in the Act as ‘unconstitutional.  (T.N. Seshan v. UOI, (1995) 4 SCC 611)

žThe gist of his argument was that either there should not be a multi-member body, & if there is a multi-member Election Commission, then, in that case, the Chief Election Commissioner should have the sole decision-making power & the other Election Commissioners should act merely as advisors.

žThe CEC claimed that he was the sole repository of all the powers exercisable by the Commission.

žSC rejected the arguments of Mr. Seshan & upheld the appointments of the other Election Commissioners.

žSC held CEC is 1st among equals.

POWERS & FUNCTIONS OF THE ELECTION COMMISSION –

žThe Election Commission plays a pivotal role in the electoral mechanism of the country. Art. 324 (1) assigns the following functions the Election Commission –

  1. Superintendence, direction & control of the preparation of the electoral rolls for all elections to the parliament, state legislatures, offices of the president & vice-president.
  2. Conduct all these elections.

žThe words “superintendence, direction & control” are of wide amplitude & these are wide enough to include all powers necessary for smooth & effective conduct of elections so that the will of the people may be expressed.

žThe term ‘election’ in art. 324 has been used in a wide sense so as to include the entire process of election which may consist of several stages.

žIf the law makes no provision to meet a particular situation, then A. 324 enables the Election Commission to act in such a manner so as to ensure free & fair elections.

 

žElection Commission can order a re-poll of the whole constituency.

žIt can order a fresh poll in case of reported booth capturing or breakdown of law & order at the time of polling or counting of votes.

žThe Election Commission also has the power to review its decision as to the holding of polls on a particular date.

žElection Commission has the power to fix a date for holding the polls.

žIt also has the power to change the date due to certain unavoidable circumstances.

Digvijay Mote V. Union of India
(1993) 4 SCC 175

žThe SC ruled that the conduct of Elections is in the hands of the Election Commission.

žConsequently, if the Election Commission is of the opinion that having regard to the disturbed conditions in a state or a part thereof, free & fair elections cannot be held, it may postpone the same.

žHowever, this power is not uncontrolled & is subject to judicial review as it affects public law rights.

žHowever, the judicial review will depend on the facts & circumstances of each case.

žThe Court emphasized that this power conferred on the Election Commission has to be exercised not mindlessly, nor Malahide, nor arbitrarily not with partiality, but in keeping with the guidelines of Rule of Law.

 

Election Commission of India V. All India Anna Dravida Munnetra Kazahagam (AIADMK)
1994 Supp. (2) SCC 689

žIn this case, the Election Commission issued an order limiting the hours for using loudspeakers for electioneering purposes between 8 am to 7 pm.

žThe order was made to avoid noise pollution & disturbance of peace and tranquillity of the public in general.

žChallenged by a political party through a WP in the HC.

žHC took the view that there was no nexus between the restriction imposed & the power under Art. 324.

žAgainst this order, the Election Commission appealed to the SC, the SC did not go into deciding whether the Election Commission had any such power to make such an order under art. 324 or not, as the matter was pending in the HC.

žHowever, the SC set aside the interim order passed by the HC because – ‘prima facie position & balance of convenience seems to be in favor of the public good in a matter that cannot be said to be unrelated to the area of powers of the EC under art. 324’.

žBut, then granting prima facie existence of the power to the EC, the SC held the impugned order to be too restrictive & accordingly banned the use of loudspeakers from 10 pm to 6 am & modified the order issued by the EC accordingly.

 

The Common Cause – A Registered Society V. Union of India
(1996) 2 SCC 752

žIn this case, the question was about the election expenses incurred by political parties & whether the Election Commission has powers to issue a direction requiring the political parties to submit to the Commission, for the purpose of scrutiny, the details of the expenditure incurred in connection with the election of their respective candidate.

žSo, the Election Commission’s power to issue such direction was called into question before the court & the SC ruled that the purity of elections is fundamental to democracy and the Commission can ask the candidates about the expenditure incurred by the candidates & their political parties for this purpose.

žThe court, therefore, ruled that under Art. 324, the Election Commission can issue suitable directions to maintain the purity of elections & to bring transparency in the process of elections.

 

Union of India V. Association for Democratic Reforms
(2002) 5 SCC 294

žIt was held that the powers of the Election Commission under Art. 324 are plenary & comprehend all such actions as were required for the smooth conduct of an election subject only to a valid law enacted by the parliament or the state legislatures.

žThe Election Commission could therefore ask every candidate filing a nomination for election to give details of any criminal proceedings concluded or pending against him, his property & educational qualifications.

žThis was done to stop the criminalisation of politics.

žThe Court opined that the Right to Information was part of the basic structure of the Constitution.

 

People’s Union for Civil Liberties V. Union of India
(2003) 4 SCC 399

žThe government enacted an Ordinance to override that decision & strip the Election Commission of such powers.

žThe President of India has sent back the Ordinance for reconsideration.

žThe govt. however, persisted.

žThis Ordinance was challenged before the SC on the ground that it resulted in denial of the Right to Information of people.

žThe Ordinance lapsed and an Act came to be enacted in its place.

žThe impugned sec. 33-B had provided that – ‘notwithstanding anything contained in any judgment, decree or order of any Court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or required to be disclosed or furnish any such information with regard to elections, which is not required to be disclosed or furnished under this Act or Rules made there under.

ž The SC struck down this sec. 33-B of the Representation of People’s Act (3rd amendment) Act, 2002.

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