Article 324(1) provides that the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in an Election Commission.
Whereas, Article 324(2) gives the information regarding the composition of Election Commission, it reads “the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.
Article 324(3) says that when any Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Election Commission.
The Election Commission so constituted by Article 324, is a permanent constitutional body, which came into existence on 25th January, 1950 or on the eve of first Republic Day of India.
According to Article 324(2) of the Constitution, the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
The Goswami Committee on Electoral Reforms was appointed by the Government in 1990 which recommended that the appointment of Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the leader of the opposition in the House of the People, and that the Chief Election Commissioner should also be consulted in the matter of appointment of other election commissioners. Based on the recommendations of the Goswami Committee, a Bill titled the Constitution (Seventieth Amendment) Bill, 1990, was introduced in the Rajya Sabha on 30th May, 1990 to provide, inter alia, that the appointment of the Chief Election Commissioner shall be made by the President after consultation with the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha and the leader of the opposition in the Lok Sabha, or if no leader recognised, then the leader of the party in opposition to the Government having the largest strength in that House. In the case of appointment of other election commissioners, the provision for consultation of CEC was also sought to be made. The Bill, however, could be enacted by Parliament.
Therefore, all appointments of the Chief Election Commissioners and other election commissioners are made by the President. As per the Constitution, the President acts on the advice of the council of ministers headed by the Prime Minister, the selection of the Chief Election Commissioner and election commissioners is in reality made by the Prime Minister in consultation with other members of the Council of Ministers.
There is no pre-requisite qualification prescribed by the Constitution of India. However, by convention, only serving or retired senior civil servants, of the rank of the Cabinet Secretary or secretary to the Government of India or of an equivalent rank have been appointed as the Chief Election Commissioner and Election Commissioners so far.
Article 324(5) provides that, subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from the office except on the recommendation of the Chief Election Commissioner.
Until 1991, Parliament had not made any law prescribing the conditions of service and tenure of office of the Chief Election Commissioner and other election commissioners, before it enacted the Chief Election Commissioner and other Election Commissioners Conditions of Service Act, 1991. The Act has been re-named as the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 by the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Act, 1994. Earlier, these matters were determined by the President. Under the Chief Election Commissioner (Conditions of Service) Rules, 1972, the tenure of office of the Chief Election Commissioner was fixed as five years and he was given the salary and allowances equivalent to those of a Secretary to the Government of India. The 1991-Act fixed the tenure of the Chief Election Commissioner and Election Commissioners as six years, but the retirement age of Chief Election Commissioner was fixed at 65, and was given the salary and other benefits equal to that of a judge of the Supreme Court. The retirement age of other Election Commissioners were fixed at 62 and were to be given the salary and other benefits as are available to a Judge of a High Court. The 1991-Act was amended in 1993, by which the Chief Election Commissioner and other Election Commissioners were placed at par with each other in case of their retirement age and also in the matter of their salaries and allowances, which were to be the same as those of a Judge of the Supreme Court. It was also provided that the Chief Election Commissioner and other Election Commissioners shall have equal status in decision making and in case of any difference of opinion on any matter, the same will be decided by the majority.
As far as the re-appointment of the Chief Election Commissioner and other Election Commissioners are concerned, the Constitution or any other law does not put any bar on that. By the Constitution (Seventieth Amendment) Bill, 1990, they were sought to bar any further employment under the government, and even for appointment as Governor or Lieutenant Governor of a State or a Union territory. But that Bill could not be enacted.
The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word “elections” is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the these provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge form time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject.
To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.1
The Constitution of India empowers the President to decide in respect of the composition of Election Commission, i.e., whether it should be single member body or a multi-member body. Since, the President functions on the advice of the Council of Ministers headed by the Prime Minister, in reality they decide the composition of the Election Commission.
Since the time of its inception in January, 1950 till October, 1989, the Election Commission functioned as a single-member body consisting of only the Chief Election Commissioner. All the Chief Election Commissioners had unanimous opinion that the Election Commission could function effectively, if it was a single member body, as the decisions in relation to electoral matters had to be taken expeditiously. However, in October, 1989, the President, in exercise of the powers under Article 324(2), decided to make the Election Commission a multi-member body i.e., the Chief Election Commissioner and two Election Commissioners. The President appointed the two Election Commissioners on 16th October, 1989. On the same day, the President issued another notification in exercise of the powers conferred by Article 324(5), to make rules to regulate the conditions of service and tenure of office of the Election Commissioners. Among the conditions, an Election Commissioners shall hold office for a term of five years or until he attains the age of 65 years, whichever is earlier. But in these rules the role of the Election Commissioners or their relationship vis-a-vis the Chief Election Commissioner or with regard to the business of the Commission as a multi-member body were not defined. However, in January 1990, the President converted the Election Commission again into a single- member body. The decision of the President was challenged before the Supreme Court, contending, inter alia, that, once appointed; an Election Commissioner continued in office for his full tenure as determined by rules under Article 324(5) and that the President had no power to cut short the tenure so fixed. The Division Bench of the Supreme Court in S.S. Dhanoa v. Union of India,2 rejected the contentions and dismissed the petition. The Supreme Court held that “there was no need for the posts of the Election Commissioners at the time the appointments were made, and that in the absence of a clear definition of their role in the Commission, particularly, vis-a-vis the Chief Election Commissioner, the abolition of the posts far from striking at the independence of the Commission paved the way for its smooth and effective functioning. The creation and abolition of posts is the prerogative of the executive andArticle 324(2) leaves to the President to fix and appoint such number of Election Commissioners as he may from time to time determine. The power of the President to create the posts is unfettered, so is his power to reduce or abolish
______________________
1. Union of India v. Association for Democratic Reforms, MANU/SC/0394/2002 : (2002) 5 SCC 294.
2. MANU/SC/0399/1991 : AIR 1991 SC 1745.
them. With the abolition of the posts, the service rules pertaining to those posts also ceased to have effect and, therefore, the petitioner could not validly claim to continue for the full tenure as fixed by these service rules.
The Court further observed:
“There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined if the functioning of the institution is not to come to a naught”.1
Guided by the observations of the Apex Court, the Parliament enacted the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991. This Act fixed the tenure of Chief Election Commissioner and other Election Commissioners at six years, but age of retirement were 65 and 62 years respectively. The Chief Election Commissioner was given salary and other benefits equal to a Judge of the Supreme Court but the other Election Commissioners were to be given salary and other benefits equal to a Judge of a High Court.
The President again exercised his power provided to him under Article 324(2) and made the Election Commission a multi-member body in 1993. He also appointed Dr. M.S. Gill and Shri G.V.G. Krishnamurthy as the two Election Commissioners. The President, further promulgated an ordinance titled the Chief Election Commissioner and other Election Commissioners (conditions of Service) Amendment Ordinance, 1993 and thus amended the above mentioned 1991-Act. With this amendment, the Chief Election Commissioner and other Election Commissioners were placed at par in the matter of their salary and other benefits, which were equal to the salary and benefits of a Judge of the Supreme Court. The tenure of Election Commissioners was fixed at six years, subject to maximum age limit of 65 years.
The Chief Election Commissioner and other Election Commissioners were provided equal powers in the matter of decision making and in the case of any dispute in opinion, the matter would be decided by the opinion of the majority. The Ordinance also changed the nomenclature of the parent 1991-Act as the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The Ordinance was later replaced in 1994
_________________________
1. MANU/SC/0399/1991 : AIR 1991 SC 1745.
by a Parliamentary Act [The Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Act, 1994] without any change.
The decision of the President was challenged by T.N. Seshan (then CEC) before the Supreme Court, who alleged that the move was to erode his authority and also questioned the Constitutional validity of the amendment, on the ground that the same was inconsistent with Article 324 and that Parliament had no power to frame Rules for transaction of business of the Election Commission.
The Supreme Court directed that “to ensure smooth and effective working of the Commission and also to avoid confusion both in the administration as well as in the electoral process, we direct that the Chief Election Commissioner shall remain in complete overall control of the Commission’s work. He may ascertain the views of the other Commissioners or of such of them as he chooses, on the issues that may come up before the Commission from time to time. However, he will not be bound to their views. It is also made clear that the Chief Election Commissioner alone will be entitled to issue instructions to the Commission’s staff as well as to the outside agencies and that no other Commissioner will issue such instructions”.1
The Constitution Bench of the Supreme Court, however, dismissed the petition by a unanimous decision disagreeing with some of the observations of Dhanoa’s case.1
The Supreme Court, held that the scheme of Article 324 is that the Election Commission can either be a single-member body or a multi-member body, if the President considers it necessary to appoint one or more Election Commissioners. The argument that a multi-member Election Commission would be unworkable and should not, therefore, be appointed could not be accepted as that would tantamount to destroying or nullifying Clauses (2) and (3) of Article 324. By Article 324(1), the Constitution makers entrusted the task of conducting elections in the country to the Election Commission and not to an individual. The Commission discharges a public function. The Election Commissioners form part of the Commission and, therefore, they must have a say in decision making. If the Chief Election Commissioner is considered to be superior in the sense that his word is final, he would render the Election Commissioners non-functional or ornamental. Such an intention is difficult to cull out from Article 324 and it is not possible to accept the argument that the function of the Election Commissioners is only to tender advice to the Chief Election Commissioner. The Chief Election Commissioner does not enjoy a status superior to Election Commissioners, only because the first proviso to Clause (5) of Article 324 lays down that conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment and because such protection is not extended to the Election Commissioners. Similarly, the protection given to the Chief Election Commissioner in the matter of his removal from office in like manner and on
___________________
1. T.N. Seshan v. Union of India, (1995) 4 SCC 611.
the like grounds as of a Judge of the Supreme Court and the absence of such protection to Election Commissioners, who can be removed on the recommendation of the Chief Election Commissioner, is not an indicia for conferring a higher status on the Chief Election Commissioner. The provision that the Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner does not make them subordinate to the latter, but is intended to ensure their independence and that they are not at the mercy of the political an executive bosses of the day. This check on the executive’s power to remove, is built to safeguard the independence of not only these functionaries, but the Election Commission as a body. The Chief Election Commissioner cannot exercise his power to recommend the removal of the Election Commissioners as per his whim and caprice, and has to exercise this power only when there exist valid reasons, which are conducive to efficient functioning of the Commission, as otherwise he would become an instrument of oppression and destroy the independence of the Election Commissioners. As Article 324 envisages the Election Commission to be a permanent body to be headed by a permanent incumbent, namely, the Chief Election Commissioner, in order to preserve and safeguard his independence, he had to be treated differently as there cannot be an Election Commission without a Chief Election Commissioner. But that is not the case with the other Election Commissioners who are not intended to be permanent incumbents. If the Commission is a single-member body, the Chief Election Commissioner is the alter ego of the Commission and no more. And if it is a multi-member body, he is obliged to act as its Chairman. The function of the Chairman would be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business.
The Supreme Court also upheld the power of Parliament to make provisions for the transaction of business of the Election Commission under Clauses (2) and (5) of Article 324, Articles 327 and 328 and Entry 72 of List I of the Seventh Schedule to the Constitution. The Supreme Court also observed that even if it is assumed that the Commission alone was competent to lay down how it would transact its business, it would be required to follow the same pattern of decision-making by the rule of majority as has been set out in the impugned law. The Supreme Court also rejected the allegations of mala fide against the government and saw no merit in them.
Since 1993, the Election Commission is now functioning as a three-member body comprising the Chief Election Commissioner and two election commissioners. The Election Commission also expressed satisfaction with the present set up and recommended that its strength may be permanently fixed at three.
Article 324(4) of the Constitution provides that before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of a State having such Council, the President may appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of its functions. In T.N. Seshan v. Union of India,1 the Apex Court observed that the Regional Commissioners are not members of the Election Commission, but are temporarily appointed merely to assist the Commission. When so appointed, their conditions of service shall be regulated by Parliament by law and, in the absence of such law, by the President by Rules. As per the second proviso to Article 324(5), however, the Regional Commissioners shall not be removed from office except on the recommendation of the Chief Election Commissioner.
In 1951 four posts of Regional Commissioners were sanctioned by the President but only two of them were filled. But after April, 1952, when they left the post no Regional Commissioner has ever been appointed.
The Election Commission has a separate secretariat with permanent headquarter at New Delhi. It consists of over 300 officers and staff at different levels. Their service conditions are regulated by Rules made by the President under Article 309. The work of the Commission has been distributed among these officers and staff, both on the functional basis as well as on the regional basis. Officers at the level of deputy election commissioners and directors or principal secretaries are normally appointed on deputation from the national civil services on tenure basis.
In 1990, the Goswami Committee (to strengthen the independent functioning of the Election Commission) recommended that (a) the Election Commission should also have an independent secretariat like secretariats of the House of the People and the Council of States, (b) EC should be given authority in the matter of appointments, promotions and other conditions of service of its officers at various levels. The Government later turned down these recommendations.
As the administrative expenditure of the Election Commission is a voted expenditure and not a ‘charge’ on the Consolidated Fund of India, the expenditure of the Commission continues to be voted by the Parliament.
According to Article 324(1), the primary function of the Election Commission entrusted to it by the Constitution is the superintendence, direction and control of the preparation of the electoral rolls for, and conduct
of elections, to Parliament and to the Legislature of every State (subject to special provision for Jammu and Kashmir) and also of elections to the offices of the President and Vice-President of India. Originally, the Constitution also vested in the Election Commission the responsibility of appointment of election tribunals for the___________________
1. (1995) 4 SCC 611.
decision of doubts and disputes arising out in cases of Parliamentary and States Legislatures Elections. But after 1962 general elections, the trial of election petitions was entrusted to the High Courts and the institution of election tribunals was abolished. Article 324(1) was amended by the Constitution (Nineteenth Amendment) Act, 1966, to relieve the Commission of the function of appointing election tribunals.
What is the amplitude of powers and width of functions of the Election Commission under Article 324 was interpreted by the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner.1 In this case, the Election Commission had declared the poll in Firozepur Parliamentary Constituency in the State of Punjab in 1977 general election as void, on the basis of complaints. The petitioners contended that the Election Commission under the law could only direct fresh poll at the polling stations where the poll was allegedly vitiated, and not in the entire parliamentary constituency. The Supreme Court rejected the contention of the petitioners. A Constitution Bench of the Supreme Court held that Article 324 is a plenary provision vesting the whole responsibility for national and State elections in the Election Commission and the words “superintendence, direction and control” used in Article 324 are the broadest terms. The responsibility of superintendence, direction and control of the conduct of elections may cover powers, duties and functions of many sorts, administrative or other depending upon the circumstances. Article 324, on the fact of it, vests vast functions in the Commission which may be powers of duties, essentially administrative and marginally even judicative or legislative. Two limitations at least are, however, laid on its plenary character in the exercise of its powers:
(i) when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, and not in violation of, such law. But where such law is silent, Article 324 is a reservoir of power for the Commission to act for the avowed purpose of pushing forward, but not divorced from, a free and fair election with expedition;
(ii) the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in the most important area of the constitutional order, namely, elections. The Supreme Court also observed that Articles 327 and 328 which empower the Parliament to make laws with regard to electoral matters are ‘subject to the provisions’ of the Constitution which include Article 324.
The Court further observed that:
“The framers of the Constitution took care to leaving scope for exercise of residuary power by the Election Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is
___________________________
1. MANU/SC/0209/1977 : AIR 1978 SC 851.
why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be the raison d’etre for the opening clause in Articles 327 and 328 which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area. Where the existing laws are absent and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections and see that the election process is completed properly in a free and fair manner”.
In Kanhiya Lal Omar v. R.K. Trivedi,1 the validity of the Election Symbols (Reservation and Allotment) Order, 1968, promulgated by the Election Commission providing for the recognition of political parties as national or State parties, determination of disputes between the splinter groups of such recognised political parties, allotment of symbols to candidates, etc. was called in question. It was contended that the Symbols Order was legislative in character and could not have been promulgated by the Commission as the Commission is not empowered by law to issue such a legislative order. The Supreme Court rejected the above contention and held that the power to issue the Symbols Order is comprehended in the powers of superintendence, direction and control of elections vested in the Commission under Article 324. If any of the provisions in the Symbols Order could not be traced to the Representation of the People Act, 1951, or the Conduct of Elections Rules, 1961, it could easily be traced to the reservoir of power under Article 324(1), which empowers the Commission to issue all directions necessary for the purpose of conducting smooth, fair and free elections.
In A.C. Jose v. Sivan Pillai,2 the Supreme Court, however, held that when there is no parliamentary legislation or Rule made under the said legislation, the Commission is free to pass any order in respect of the conduct of elections, but where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the rules and pass orders in direct disobedience to the mandate contained in the Act or Rules. The powers of the Commission are meant to supplement rather than supplant the law in the matter of superintendence, direction and control as provided by Article 324. Where a particular direction by the Commission is submitted to the Government for approval as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given. In that case, the Supreme Court struck down the Commission’s order, as being without jurisdiction, whereby the Commission had introduced the electronic voting machines in an election without any
____________________
1. MANU/SC/0170/1985 : AIR 1986 SC 111.
2. MANU/SC/0341/1984 : AIR 1984 SC 921.
express provision in the Act and the rules which then contemplated the taking of poll only by means of ballot papers and ballot boxes.
Apart from the above mentioned primary functions, the constitution, under Articles 103 and 192, entrusted the Election Commission to advise the President and the Governors in the matter of disqualification of sitting members of the Parliament and State Legislatures.
According to Articles 103 and 192, following are the disqualifications of the members of either House of Parliament:
(a) if he holds any office of profit under the Government of India or State Government;
(b) if he is of unsound mind;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India; and
(e) if he is disqualified by or under law made by Parliament.
Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act accordingly [Clause (2) of Article 103].
In case of any question of disqualification of any member in State Legislature, Article 192(2) provides that the Governor shall obtain the opinion of the Election Commission and shall act accordingly to give any decision in these matters.
Supreme Court in Brundaban Nayak v. Election Commission of India,1 held that the President and the Governors are bound by the opinion of the Election Commission in such matters and they are not required even to consult their council of ministers. But the jurisdiction of the President or the Governors and of the Election Commission arises only in those cases where a sitting member of Parliament or of a State Legislature has become subject to disqualification after his election, that is to say, a post-election disqualification. In Election Commission of India v. Sapa Venkata Rao,2 the Supreme Court held that, “If a member was subject to any disqualification at the time of, or prior to, his election, such question cannot be considered and decided by the President or Governor and the Election Commission also cannot make any enquiry into such matter, even if such disqualification can be raised only in an election petition and not before the President or the Governor. Under the Constitution or under the law to go into the question of a pre-election disqualification which is subsisting even after the election, but which has not been questioned by filing an election petition within the period prescribed for filing such petitions.
In the matters of post-election disqualifications of sitting members of Parliament and State Legislatures, though it is the President and, as the case
____________________
1. MANU/SC/0214/1965 : AIR 1965 SC 1892.
2. MANU/SC/0060/1953 : AIR 1953 SC 210.
may be, the Governors who take the decision, they are not required to conduct any enquiry into such matter. It is the Election Commission which makes the necessary enquiry and formulates its opinion which is binding upon the President and the Governors. The Supreme Court in Brundaban Nayak v. Election Commission of India,1 held that the question of disqualification of a sitting member of Parliament or of a State Legislature need not necessarily be raised on the floor of the House concerned, but can be raised by any citizen or voter in the form of a complaint to the President or, as the case may be, the Governor. Such complaint shall be referred to the Election Commission for its opinion, and the Constitution does not contemplate any preliminary enquiry or initial investigation by the President or the Governor receiving the complaint. It is conceivable that in some cases, complaints made to the (President or) Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightway. The Supreme Court also observed that the Chief Election Commissioner, while tendering his opinion to the Governor of Orissa in another similar case observed, that the Election Commission was handicapped in making a proper enquiry in the absence of powers of a court and had to give a decisive opinion on the basis of only the affidavits and documents as were produced before it by the interested parties. The Supreme Court also endorsed the recommendation of the Election Commission that it should be vested with the power of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses. In the light of these observations, Parliament amended the Representation of the People Act, 1951, by the Representation of the People (Amendment) Act, 1965, so as to insert a new Chapter IV in Part VIII of the 1951-Act. Sections 146, 146A, 146B and 146C were included in the new chapter to give same powers to the Election Commission, while making an enquiry in the cases of post-election disqualification, as are enjoyed by a civil court, while trying a civil suit under the Code of Civil Procedure, 1908. It was also provided that, while making the above enquiry, the Election Commission shall have the power to regulate its own procedure, including the fixing of places and time of its sittings and deciding whether to sit in public or in private. It was further provided that no suit, prosecution or other legal proceeding shall be against the Commission or any person acting under the direction of the Commission in respect of anything done in good faith or intended to be so done, or of any order made or in respect of the tendering of any opinion by the Commission to the President or Governor or in respect of the publication, by or under the authority of the Commission, of any such opinion, paper or proceedings.
In Election Commission of India v. N.G. Ranga,2 the Supreme Court contended that “while making the enquiry into the above cases, the Election Commission should follow the principles of natural justice, but added a word of caution that
_________________________
1. MANU/SC/0214/1965 : AIR 1965 SC 1892.
2. MANU/SC/0246/1978 : AIR 1978 SC 1609.
before issuing any notice to the parties concerned, it should examine the records to determine whether any notice is called for at all. But if the Commission issues any notice for an enquiry, the courts cannot intervene in the matter”.
According to the Articles 103(1) and 192(1) the decision given by the President or, as the case may be, the Governor on the basis of the opinion of the Election Commission is final. But in K.S. Haja Sharief v. Governor of Tamil Nadu,1 the courts have held that such decisions are also judicially reviewable, though on limited grounds that the decision was taken on collateral considerations, or there was violation of the principles of natural justice, or the decision was coloured by the advice or representation of the executive or it was founded on no evidence. In R.K. Hegde v. State of Karnataka,2 the decision of the Governor of Karnataka was challenged before the High Court. By the decision, the Governor, on the opinion of the Election Commission, had declared Shri Hegde as disqualified for continuing as a member of the Karnataka Legislative Assembly on his appointment as the Deputy Chairman of the Planning Commission of India, which the Commission had held to be an office of profit. The High Court, after reversing the order of the Governor, held that Shri Hegde had not incurred any disqualification by accepting the above appointment as the terms on which he was appointed to the post of Deputy Chairman of Planning Commission did not amount to his holding an office of profit under the Government. In K.S. Haja Sharief v. Governor of Tamil Nadu,1 the Madras High Court entertained a writ petition questioning the order of the Governor of Tamil Nadu, whereby a sitting member of the Tamil Nadu Legislative Assembly had been declared disqualified on the opinion of the Election Commission that the member concerned had acknowledged adherence to a foreign State by accepting the Honorary Consulship of Government of Turkey at Madras. The High Court, however, ultimately agreed with the view of the Election Commission and dismissed the writ petition.
According to section 8A of the Representation of the People Act, 1951, if a person is found guilty of a corrupt practice at an election either by High Court or Supreme Court, the President shall decide, whether such person should be allowed to contest future elections, if not, then for what period. In this regard, the President shall obtain the opinion of the Election Commission and shall act accordingly. This is a very clear fact that, though the decision is given by the President, but in reality the Election Commission decides the basic issue of disqualification. If the disqualification has been imposed on such person that shall not exceed six years from the date of the order of the High Court or the Supreme Court.
Year 1975, witnessed the sea-change, as prior to that year, there was provision for automatic disqualification for a period of six years from the date of the order of the Supreme Court or the High Court. In 1975, the Election Laws
___________________________
1. MANU/TN/0173/1985 : AIR 1985 Mad 55.
2. AIR 1993 Karn 54.
(Amendment) Act, 1975 was enacted and thus the President was empowered to decide the matter of disqualification on the basis of the opinion of Election Commission. It was provided that the case of every such person found guilty of a corrupt practice would be referred to the President by such authority as may be specified by the Central Government and that the President shall thereupon refer the matter to the Election Commission for its opinion. Therefore, the Central Government has specified the Secretary General of the Lower House or the Secretary General of the Upper House as such referring authority, if the election at which the person concerned has been found guilty related to the Lower House of the People or, as the case may be, to the Upper House. It was observed that there is always a time lag between the date on which the order of the High Court or the Supreme Court takes effect and the date on which the matter is referred by the specified authority to the President and the date on which the President decides the question on the opinion of the Election Commission. During this period, the person concerned cannot be said to be disqualified under the law, as the disqualification will effect only when the President decides the question. The Election Commission, however, expressed that the period of disqualification should be commensurate with the gravity of corrupt practice committed and, therefore, there should not be automatic disqualification for six years in every case.
Under section 29A of the Representation of the People Act, 1951, all associations or bodies of individual citizens calling themselves as political parties and wishing to contest elections under the name and banner of a political party have to get themselves registered with the Election Commission. Such registered political parties, if fulfil the criteria fixed by the Election Commission on the basis of their poll performance, are further recognised by the Commission either as national or State parties, under the provisions of the Election Symbols (Reservation and Allotment) Order, 1968, promulgated by the Commission. In Sadiq Ali v. Election Commission of India,1 it was held that if any split takes place in any such recognised national or State party and there are two or more rival or splinter groups of the party each claiming to be that party, it is the Election Commission which decides under para 15 of the Symbols Order as to which of these rival or splinter groups is the party. Again, if any of such recognised national or State parties merge with other parties, whether recognised or unrecognised, it is the Election Commission which determines the validity of the merging as well as the status of the newly formed party. In All Parties Hill Leaders Conference v. Capt. W.A. Sangma,2 the Supreme Court held that while deciding such disputes, the Election Commission exercises the judicial power of State and is deemed to be a quasi-judicial tribunal against whose decision an appeal shall straightway lie to the Supreme Court under its appellate jurisdiction under Article 136.
______________________
1. MANU/SC/0459/1971 : AIR 1972 SC 187.
2. MANU/SC/0206/1977 : AIR 1977 SC 2155.
According to Section 19A of the Act, 1951, the functions of the Election Commission under the Constitution, the Representation of the People Act, 1950, the Representation of the People Act, 1951 or the Rules made under these Acts may, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, be performed also by a Deputy Election Commissioner in the Commission’s Secretariat or by the secretary to the Election Commission.
Before 1966, the statutory functions of the Election Commission could not be delegated. At that time, the Election Commission was a single-member body i.e., only the Chief Election Commissioner, and there were numerous routine matters in which orders had to be passed by him only. Therefore, on the recommendation of the Election Commission, the provisions relating to delegation of functions of the Election Commission to Deputy Election Commissioners and Secretaries to the Commission was enacted in the law by the Representation of the People (Amendment) Act, 1966. In exercise of this power, the Election Commission has authorised the Deputy Election Commissioners and the Secretaries to the Commission to decide several routine matters at their own level. However, they have to perform under the overall superintendence, direction and control of the Commissioner.
For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote for. The decision of even an illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens—voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided—its result, if pending—Whether charge is framed or cognizance is taken by the court. There is no necessity of suppressing the relevant facts from the voters.1
______________________
1. Union of India v. ADF, MANU/SC/0394/2002 : (2002) 5 SCC 294.
The question here is ‘quis custodiet ipsos custodes’—who will guard the guards themselves? The Election Commission is vested with the power to decide the election schedule. It can act only in accordance with the constitutional provisions. The election process for electing the new Legislative Assembly should start immediately on the dissolution of the Assembly. There may be cases where the electoral roll may not be up-to-date and in such case the Election Commission is well within its power to update the electoral roll and the time taken for such updating of the electoral roll shall be reasonable time. Ordinarily, the Election Commission would also require time for notification, calling of nomination and such other procedures that are required for the proper conduct of election. There may be situation where the Election Commission may not be in a position to conduct free and fair election because of certain natural calamities. Even under such situation the Election Commission shall endeavour to conduct election at the earliest making use of all the resources within its command. Ample powers are given to the Election Commission to coordinate all actions with the help of various departments of the Government including military and para-military forces. When an Assembly is dissolved by the Governor on the advice of the Chief Minister, naturally, the Chief Minister or his political party seeks fresh mandate from the electorate. The duty of the Election Commission is to conduct fresh election and see that a democratically elected Government is installed at the earliest and any decision by the Election Commission, which is intended to defeat this very avowed object of forming an elected Government can certainly be challenged before the Court if the decision taken by the Election Commission is perverse, unreasonable or for extraneous reasons and if the decision of the Election Commission is vitiated by any of these grounds the Court can give appropriate direction for the conduct of the election.1
Article 174 and Article 324 operate in different fields. Article 174 does not apply to dissolved Assemblies. The schedule of the election of the Assembly is to be fixed having regard to the urgency of the situation that a democratically elected Government be installed at the earliest and the process of election shall start immediately on the dissolution of the Assembly. Though the ultimate authority to decide as to when a free and fair election can be conducted is Election Commission, such decisions shall be just and reasonable and arrived at having regard to all relevant circumstances. Any decision to postpone election on unreasonable grounds is anathema to democratic form of Government and it is subject to judicial review on traditionally accepted grounds.
___________________
1. Special Reference No. 1 of 2002, MANU/SC/0891/2002 : AIR 2003 SC 87.
The framing of schedule for election for the new Legislative Assembly shall start immediately on dissolution of the Assembly and the Election Commission shall endeavour to see that the new Legislative Assembly meets at least within a period of six months of the dissolution. Article 356 regarding declaration of State of emergency in the State has no relevance to the fixation of the election schedule.
Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution, by drawing upon all the requisite resources of the Union and the State to ensure free and fair elections?
The Election Commission is under a constitutional duty to conduct the election at the earliest on completion of the term of the Legislative Assembly on dissolution or otherwise. If there is any impediment in conducting free and fair election as per the schedule envisaged by the Election Commission, it can draw upon all the requisite resources of Union and State within its command to ensure free and fair election, though Article 174 has no application in the discharge of such constitutional obligation by the Election Commission. It is the duty of the Election Commission to see that the election is done in a free and fair manner to keep the democratic form of Government vibrant and active.
Facts:—
The petition was filed that for election to the Legislative Council, for Patna Teachers’ Councils the name of teachers not working on sanctioned post were deleted in the District of Nawada and Nalguda but it has not been so done in the case of teachers working in Patna.
Issue:—
Powers of Election Commission.
Decision:—
The duty to hold free and fair election is entrusted to be Election Commission of India. If a large number of persons not eligible to be included in the voters list have been included, the petitioner is to have to raise his grievance before the Election Commissions of India.
S.S. Dhanoa v. Union of India, MANU/SC/0399/1991 : AIR 1991 SC 1745: (1991) 3 SCC 567
Facts:—
On 7th October, 1989 by a notification issued in exercise of the powers conferred by Clause (2) of Article 324 of the Constitution, the President fixed, until further orders, the number of Election Commissioners (other than the Chief Election Commissioner), at two. By a subsequent notification of 16th October, 1989 issued under the same provisions, the President appointed the petitioner and one Shri V.S. Seigell as Election Commissioners w.e.f. the afternoon of that day. On the same day, by another notification issued in exercise of the powers conferred by Clause (5) of Article 324 of the Constitution, the President made Rules to regulate the conditions of service and tenure of office of the Election Commissioner (other than the Chief Election Commissioner). These conditions laid down, among other things, that an Election Commissioner shall hold office for a term of five years or until he attains the age of 65 years whichever happens earlier.
On 1st January, 1990, in exercise of the powers conferred under Article 324(2) of the Constitution, the President issued two notifications—one rescinding, with immediate effect, the notification of 7th October, 1989 creating the two posts of Election Commissioner and another rescinding, with immediate effect, the notification of 16th October, 1989 by which the appointment of the petitioner and Shri V. S. Seigell was made. It is these two notifications of 1st January, 1990 which are being assailed in the present petition.
Issue:—
Abolition of posts of Election Commissioners by the President infringed the independence of Election Commission? Can it be challenged on the ground of illegality?
Decision:—
SAWANT, J.—Felt that, there is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill-conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught.
The Election Commissioners have the same powers and the authority as the Chief Election Commissioner, and it may well be that the Chief Election Commissioner has the power to disregard and override the views of the Election Commissioners, therefore, the abolition of the posts of Election Commissioner least infringed on the independence of the Commission.
The fact that the Regional Commissioners are to be appointed by the President under Article 324(4) in consultation with the Commissioner to assist the Commission to perform its functions, though places the Election Commissioner on a higher pedestal than the Regional Commissioners, does not raise them to the status of the Chief Election Commissioner. The provision is intended to vest the President with the powers of appointment of the Regional Commissioners for a particular purpose, and the framers of the Constitution, it appears, desired to give a Constitutional status to the Regional Commissioners also, as and when they are appointed. The provision, enough spells out the relationship between Election Commission and Regional Commissions does not help to throw light on the relationship between the Chief Election Commissioner and Election Commissioners inter se. On the other hand, Clause (5) of the Article, by placing the Election Commissioners and Regional Commissioners on par in the matter of service conditions and their removability, reinforces the assumption that Election Commissioners do not enjoy the same status and authority as that of the Chief Election Commissioner.
The material loss on account of the cutting short of the tenure of the service is not unknown in a service career and is one of the exigencies of employment. The creation and abolition of post is the prerogative of the executive. Article 324(2) leaves it to the President to fix and appoint such number of Election Commissioners as he may from time to time determine. The power to create the posts is unfettered. So also is the power to reduce or abolish them. If, therefore, the President, finding that there was no work for the Election Commissioners or that the Election Commission could not function, decided to abolish the posts, that was an exigency of the office held by the Election Commissioner. Therefore, it being a clear case of the abolition of posts the termination of the service of the Election Commissioner is a consequence thereof. Hence, the termination of service is not open to challenge on the ground of any illegality.
A.C. Jose v. Sivan Pillai, MANU/SC/0341/1984 : AIR 1984 SC 921
Facts:—
This election appeal has been filed by the appellant, who was a candidate for election to Parur Assembly Constituency in Kerala but not elected. Six candidates contested the said election which was held on May 19, 1982, out of whom the first respondent (Sivan Pillai), who was a candidate of the Communist Party of India, and the appellant were the two principal contestants. The result of the election was announced on May 20, 1982 in which the first respondent was declared elected having secured 30450 votes as against 30327 votes secured by the appellant. Thus, the first respondent secured 123 more votes than the appellant. Of the 30450 votes, 11268 were cast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 made under the Representation of the People Act, 1951, and 19182 votes were cast by means of electronic machines. This was done in pursuance of the direction issued by the Election Commission of India by virtue of a notification published in the Kerala Gazette on 13-5-82. The said notification was purported to have been made under Article 324 of the Constitution of India. Prior to issuing the notification the Commission had sought the sanction of the Government of India which was however refused. But the votes by the mechanical process were cast in 50 out of the 84 polling stations.
Issue:—
Under these facts and circumstances the order of the Commission directing casting of ballot by machines in some of the polling stations was within its jurisdiction?
Decision:—
The Supreme Court observed that, the legal and constitutional position as regard conduct of elections is as follows:—
(a) when there is no parliamentary legislation or Rules made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supllant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324,
(c) where the Act or the Rules are silent the Commission has no doubt plenary powers under Act 324 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.
The word ‘ballot’ in its strict sense would not include voting by the use of voting machines. The Act by framing the Rules completely excluded the mechanical process which, if resorted to, would defeat in a large measure the mandatory requirements of the Rules.
Besides, a number of advantages which could be obtained by using the mechanical process the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite sometime.
Hence the order of the Commission directing casting of ballot by machines in some of the polling stations was without jurisdiction and could not have been resorted to.
For the reasons given above, appeal allowed, and set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a re-poll to be held in these 50 polling stations. However, it is not fair to touch or disturb the results of the votes secured in the other 34 polling stations which was done in accordance with law, viz., the use of ballot papers. After the repoll, the result of the election would be announced afresh after taking into account the votes already secured by the candidates, including the Respondent.
Sadiq Ali v. The Election Commission of India, MANU/SC/0459/1971 : AIR 1972 SC 187
Facts:—
The Congress party under the symbol of the “Two Bullocks with Yoke on” is a recognised National Party. It has framed its own Constitution and Rules. Shri S. Nijalingappa was elected President of the Congress with effect from 1st January, 1968 for a period of two years. Dr. Zakir Hussain, President of India, died in 1969. Split then took place in the Congress Party following differences over the choice of Congress nominee for the office of the President of India. Each group claimed to represent the Congress Party. One of the groups elected Shri C. Subramaniam as the President of the Congress. Subsequently, Shri Jagjivan Ram was elected President by this group (Congress ‘J’) in place of Shri Subramaniam. Mr. Nijalingappa continued to be the President of the Party represented by the group (Congress ‘O’).
On 21st December, 1969, Shri Subramaniam claiming to be the President of the Congress, addressed a letter to the Chief Election Commissioner stating that there had been a change in the office-bearers of the Congress. Enclosed with the letter was the list of office-bearers of Congress ‘J’ Party and it was stated that they were the office-bearers of the Congress. There was then some exchange of correspondence between the Commission and Congress ‘J’ Party. On 3rd January, 1970, a communication was addressed to the Election Commission on behalf of the Congress ‘J’ that Shri Jagjivan Ram had been duly elected as President of the Congress and had taken charge on December 25, 1969, during the plenary Session held at Bombay.
On 8th January, 1970, a letter was sent on behalf of the Commission to the Secretary of Congress ‘O’. The Congress ‘O’ was asked to make its comments so as to enable the Commission to take decision in the matter after hearing both parties. On 14th January, 1970, a reply was sent on behalf of Congress ‘O’ by its General Secretary Shri Sadiq Ali. In that reply it was stated that Shri Subramaniam who had styled himself as the President of the Congress was, in fact not its President and that the duly elected President of the Congress was Shri Nijalingappa. It was also stated that the office-bearers mentioned by Shri Subramaniam including Shri Subramaniam himself, were persons expelled from the Congress and had otherwise ceased to be the members of the Congress. Further, according to the letter of Shri Sadiq Ali, the Commission should not have entertained any communication from a group of people who had formed a new party and were masquerading themselves in the name and style of the Congress. This association of persons, added Shri Sadiq Ali, was neither a splinter group nor a rival section of the Congress. The competence of the Commission to enquire into the matter was also questioned.
Issue:—
Whether paragraph 15 of the Symbol Order which is designed for the case of dispute between two or more groups is ultra vires the power of the Commission?
Decision:—
The Supreme Court observed that, the Commission is an authority created by the Constitution under Article 324. The Symbols Orders has been issued by the Commission in exercise of the powers conferred by Article 324 of the Constitution read with Rules 5 and 10 of the Conduct of Election Rules. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a petitioner party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner.
The figures found by the Commission of the members of the two Houses of Parliament and of the State Legislatures as well as those of AICC members and delegates who supported Congress ‘J’ have not been shown to us to be incorrect. In view of those figures, it can hardly, be disputed that substantial majority of the members of the Congress in both its legislative wing as well as the organisational wing supported Congress ‘J’. As Congress is democratic organisation, the test of majority and numerical strength, was a very valuable and relevant test.
If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understands as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be irrelevant. One can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups, Congress ‘J’ and Congress ‘O’ was the Congress party for the purpose of paragraph 15 of Symbols Order.
It is no doubt true that the mass of Congress members are its primary members. There were obvious difficulties in ascertaining who were the primary members because there would in that event have been allegations of fictitious and bogus members and it would have been difficult for the Commission to go into those allegations and find the truth within a short span of time. The Commission in deciding that matter under paragraph 15 has to act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down in a quagmire. This apart, there was practical difficulty in ascertaining the wishes of those members. The Commission for this purpose could obviously be not expected to take referendum in all the towns and villages in the country in which there were the primary members of the Congress. It can, be legitimately considered that the members of All India Congress Committee and the delegates reflected by and large the views of the primary members.
Therefore, it cannot be said that when the Commission issues direction, it does so not on its own behalf but as a delegate of some other authority.
The Apex Court held that, there is no substance in the contention that paragraph 15 of the Symbols Order is ultra virus the powers of the Commission.
People’s Union of Civil Liberties v. Union of India, MANU/SC/0263/2009 : (2009) 3 SCC 200
Facts:—
The petition was filed under Article 32 of the Constitution of India. It was contended that the right to vote in secrecy included the right to negative voting qua all the candidates. The sought quashment of Rules 41(2) and 49-O of the Conduct of Election Rules, 1961 on the allegation that they violated the right to vote in secrecy and thus violated the provisions under Articles 19(1)(a) and 21 of the Constitution and Section 128 of the Representation of the People Act, 1951. Moreover, they sought a direction to the Election Commission to take steps under Article 324 for making appropriate provision in the ballot papers and electronic voting machines so as to enable the voters to exercise their right to negative voting and also ensure that the exercise of this right is kept secret.
Issue:—
While the right to elect was a statutory right, the physical exercise of the right to vote is a necessary concomitant of the freedom of expression.
Decision:—
The two-Judge Bench referred the case to larger Bench after considering the facts and circumstances of the issues.
—————
© Universal law Publishing Co.