ELECTION LAW PROJECT ON- ELECTION COMMISION AND

ITS POWER

SUBMITTED BY- ANKITA

B.A.LLB(9TH SEM)
49/18(SEC-A)

SUBMITTED TO- Ms. NEHMAT

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ACKNOWLEDGEMENT

I would like to convey my heartfelt gratitude to Ms. NEHMAT for giving me opportunity to
do this project work “ELECTION COMMISSION AND IT’S POWERS”.
I would also like to thank my friends who helped and supported me in completion of this
project. The completion of the project would not have been possible without their help and
insights.

ANKITA

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TABLE OF CONTENTS
1.- Introduction
2.- Articles Related to Election Commission
3.- Structure of Election Commission
4.- Appointment, Tenure & Removal of Election Commission
5.- Functions of Election Commission
6.- Duties of EC
7.- Wide Powers of EC
8.- Case Laws Related to Election Commission
9.- Challenges Faced by EC
10.- Way Forward
11.- Conclusion
12.- References

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INTRODUCTION

The Election Commission of India, abbreviated as ECI is a constitutional body responsible

for administering elections in India according to the rules and regulations mentioned in the
Constitution of India.
It was established on January 25, 1950. The major aim of election commission of India is to
define and control the process for elections conducted at various levels, Parliament, State
Legislatures, and the offices of the President and Vice President of India. It can be said that
the Election Commission of India ensures smooth and successful operation of the democracy.
According to Article 324 of Indian Constitution, the Election Commission of India has
superintendence, direction, and control of the entire process for conduct of elections to
Parliament and Legislature (state legislative assembly & state legislative council) of every
State and to the offices of President and Vice-President of India.
Initially, the commission had only a Chief Election Commissioner. Presently, it consists of a
Chief Election Commissioner and two Election Commissioners. For the first time, two
additional Commissioners were appointed on 16th October 1989 but they had a very short
term till 1st January 1990. Afterwards, on 1st October 1993 two additional Election
Commissioners were appointed. The concept of multi-member Commission has been in
operation since then, with decision-making power by majority vote.
The Supreme Court in TN Seshan v Union of India and Ors.1 observed that :

Democracy being the basic feature of our constitutional set up, there can be no two opinions
that free and fair elections to our legislative bodies alone would guarantee the growth of a
healthy democracy in the country. ln order to ensure the purity of the election process, it was
thought by our Constitution-makers that the responsibility to hold free and fair election in the
country should be entrusted to an independent body which would be insulated from political
and/ or executive interference. It is inherent in a democratic set up that the agency which is
entrusted the task of holding elections to the legislatures should be fully insulated so that it
can function as an independent agency free from external pressures from the party in power
or executive of the day. This objective is achieved by the setting up of an Election
Commission, a permanent body, under Art 324(1) of the constitution.

• The Election Commission was established on Jan 25, 1950, and the Constitution of
India provided permanent and Independent autonomous authority to the body.
• Part XV of the Constitution of India deals with establishing the Election Commission
and its power and functions.
• Articles 324 to 329 of the Constitution provide for the powers, duties, tenure, and
eligibility of the Election Commission.
1- AIR 1995

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 • The body conducts elections to the Lok Sabha, Rajya Sabha, and State Legislatures in
India and the offices of the President and Vice President of the country.
• The Secretariat of the Election Commission is in New Delhi.

Articles Relating to the Election Commission:

Article 324 – The superintendence, direction, and control of the preparation of the electoral
rolls for, and the conduct of, all elections to Parliament and The legislature of every State and
elections to the offices of President and Vice-President.
Article 325 – No person shall be disqualified for inclusion in any electoral rolls based on
religion, race, caste, gender, or anything them.
Article 326 – The elections to the house of the people and the legislative assembly of every
State shall be based on adult suffrage.
Article 327 – Subject to the provisions of this Constitution, Parliament may from time to
time make provisions by law concerning all matters relating to or in connection therewith
elections to the Parliament or Legislature of a state.
Article 328 – The Legislature of a State may from time to time by law make provision
concerning all matters relating to, or in connection with, the elections to the House or either
House of the Legislature of the State.
Article 329 – Prevented the intervention of the courts in electoral matters.

Structure of the Election Commission:

• The Election Commission consists of the Chief Election Commissioner and other
Election Commissioners appointed for a fixed period by the President.
• If any other Election Commissioner is appointed by the President as the Chief
Election Commissioner then he/she shall act as the Chairman of the Election
Commission.
• The President may also appoint a regional Election Commissioner after consulting
with the Chief Election Commissioner to assist him to overcome the workload.

Appointment, Tenure & Removal of the Election Commissioners:

• The President appoints the Election Commissioner and other Election Commissioners.

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 • The fixed term of office for them is up to six years or the age of 65 years, whichever
is earlier.
• They enjoy the same status available to Indian Supreme Court judges.
• The Chief Election Commissioner can be removed from the office only through the
process of removing on the same ground as an SC judge by Parliament. This means
that the President can remove him based on a resolution passed by a special majority
of both Houses of Parliament on the ground of proven misbehavior or incapacity.
• No other Election Commissioner or Regional Commissioner shall be removed from
office except on the recommendation of the Chief Election Commissioner to the
President.

FUNCTIONS OF ELECTION COMMISSION

• ECI is responsible for a free and reasonable election.
• It ensures that political parties and candidates adhere to the Model Code of Conduct.
• Regulates parties and registers them as per eligibility to contest in election.
• Proposes the limits of campaign expenditure per candidate to all parties and monitors
the same.
• It is mandatory for all political parties to submit annual report to the ECI in order to
be able to claim the tax benefit on the contributors.
• Guarantees that all political parties regularly submit audited financial reports.

DUTIES OF ELECTION COMMISSION.

• Supervise, control and conduct all elections to Parliament and State Legislature.
• Set general rules for election.
• Prepare electoral rolls.
• Determine the territorial distribution of constituencies.
• Give credit to political parties
• Allot election symbols to political parties or candidates.
• Appoint tribunals for the decision of doubts and disputes arising out of an election to
Parliament and State Legislature.

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 WIDE POWERS OF ELECTION COMMISSION

There are three main types of powers of Election Commission.

1. ADVISORY
2. ADMINISTRATIVE
3. QUASI- JUDICIAL

Advisory Powers
• The commission is empowered to advise the president of India regarding
disqualification of the Members of Parliament and the conditions for the same.
• The commission also advices the Governors with respect to the disqualification of
members of State Legislature.
• It advises the High Court and Supreme Court in matters related to post elections
disputes between candidates and political parties.

Administrative Powers
• To decide the territorial areas of the electoral constituencies throughout the country on
the basis of the Delimitation Commission Act of Parliament.
• To organize and periodically amend electoral rolls and to register all qualified voters.
• To inform the dates & schedules of election and to scrutinize the nomination papers.
• To grant recognition to political parties & allot election symbols to them.
• To act as a court for settling disputes related to granting of recognition to political
parties and allotment of election symbol to them.
• ECI appoints the following-
Chief Electoral Officer– ECI in consultation with State Government/Union Territory
Administration nominates or designates an Officer of the said State/UT as the Chief Electoral
Officer to supervise the election work in the State/UT
District Election Officer– ECI in consultation with the State Government/ Union Territory
Administration designates an officer of the said State/UT as the District Election Officer to
supervise the election work of a district
Returning Officer– ECI in consultation with State Government/Union Territory
Administration nominates or designates an officer of the Government or a local authority as
the Returning Officer for each assembly and parliamentary constituency. Returning Officer is
responsible for the conduct of elections in the parliamentary or assembly constituency and
may be assisted by one or more Assistant Returning Officers (again appointed by ECI) in the
performance of his functions

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Electoral Registration Officer– ECI appoints the officer of State or local government as
Electoral Registration Officer for the preparation of Electoral rolls for a parliamentary/
assembly constituency.

QUASI- JUDICIAL POWERS

The EC is empowered to settle disputes regarding recognition granted to political parties and
candidates.
It has the power to act as a code for matters related to disputes arising out of allotment of
election symbols to political parties and candidates. No two election symbols are the same
even in different regions.
It must be noted that the elections with respect to the election of Panchayats and
Municipalities are carried out under the supervision of State Election Commission. The state
Election Commission are in turn advised by the ECI are answerable to it.
The ECI is one of the few constitutional authorities which have the freedom to operate
autonomously.

CASE LAWS RELATED TO ELECTION COMMISSION

In AC Jose v Sivan Pillai and Ors2 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 there under, 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 aft 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
Commissions order, as being without jurisdiction, whereby the Commission had introduced
the electronic voting machines in an election without any express provision in the Act and the
rules which then contemplated the taking of poll only by means of ballot papers and ballot
boxes.
In Common Cause v Union of India and Ors3, the Supreme Court held that the expression
°conduct of election° in art 324 of the Constitution is wide enough to include in its sweep, the
power of the Election Commission to issue——in the process of the conduct of elections—
directions to the effect that the political parties shall submit to the Commission for its
scrutiny, the details of the expenditure incurred or authorised by the political parties in
connection with the election of their respective candidates.
2- AIR 1984 SC 921
3- AIR 1996 SC 706

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Summing up the amplitude of powers of the Election Commission under Art 324, the
Supreme Court held in Union of India v Association for Democratic Reforms and Ors4.
(1) 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.
(2) The limitation on plenary character of power is when the 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 said provisions. In case where law is silent, art 324 is a reservoir
of power to act for the avowed purpose of having free and fair election. 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
from 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 direction, Commission can
fill the vacuum till there is legislation on the subject.
In Kanhiya Lal Omar’s case5, the Court construed the expressions ‘superintendence,
direction and control` in Art 324 (1) and held that a direction may mean an order issued to a
particular individual or a precept which may have to follow and it may be a specific or a
general order and such phrase should be construed liberally empowering the election
commission to issue such orders.

Challenges Faced by Election Commission:

• For other constitutional positions similar demand can be raised where it is the
imperative of the executive to make such appointments like for Attorney General or
Comptroller & Auditor-General.
• The government has the right to decide such appointments like it did for CBI director
or the Chief Vigilance Commissioner. But these are statutory positions. As of now,
there is no committee for constitutional appointments.
• Constitutional Dilemma: According to Article 324(2), the President shall make the
appointment till the time there is no law being made by the Parliament for this
purpose.
• Because of the absence of such law, the possible statutory appointment process has
been made a constitutional appointment (done under executive domain) by the
President.
4- AIR 2002 SC 2112
5- Kanhiya Lal Omar v. R.K. Trivedi & Ors. AIR 1986 SC 111

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 • Even in the debates of Constituent Assembly, it was argued that the appointments be
made by the President in consultation with PM with the concurrence of two-thirds of
the majority of the joint session of both the Houses of Parliament.
• Distinction between CEC & EC: There is a difference between the position of a CEC
& EC. The appointments to both the position may differ according to the task they
perform. Therefore, to differentiate the process of appointment which is still done on
an ad-hoc basis (because of absence of any constitutional law) becomes a challenging
task that needs to be addressed properly to ensure the independent working of the
commission.
• Demand for Collegium System- In the recent past, this demand has gained
prominence in the backdrop of allegations raised by political parties regarding the
independence of the Commission. Therefore, it is due to political necessity and not
legal conundrum that there is a demand for multiparty approach in appointment
process.
• Judicial Overreach: The Supreme Court (SC) interprets any law on the basis of
provisions of the constitution, and constitutionally decision for appointment procedure
of EC comes under executive domain. Thereby, decision by the Supreme Court in this
regard can possibly shake the harmonious balance of power.

Way Forward

• Deficiencies in the present system of appointment process needs to be removed. And

adequate safeguards must be put into place to ensure that ethical and capable people
head the concerned positions.
• Independence: There must be similar election and removal procedure for CEC and
ECs, and they must exercise the same powers unless specifically prescribed by a law.
Also the expenses of ECI must be charged expenditure on Consolidated Fund of
India.
• Transparency: Appointments through collegium or any other system as discussed in
constitutional debate can bring more transparency in the appointment process.
• Autonomy: Even, the Law Commission in its 255th report on electoral reforms (2015)
for ensuring greater autonomy to the ECI, recommended for the constitution of a
selection committee.
• Legislation: There is a need for debate and discussions in the Parliament on the issue
of independency of ECI and consequently passing of required legislation.

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 CONCLUSION

Law Commission 255th Report on Electoral Reforms: Strengthening the office of the
Election Commission of India
The Commission in its report inter-alia suggested, the ECI must be strengthened by:
• Giving equal constitutional protection to all members of the Commission in matters of
removability;
• Making the appointment process of the Election Commissioners and the CEC
consultative; and
• Creating a permanent, independent Secretariat for the ECI.
Article 324(5) of the Constitution must be amended to equate the removal procedures of the
two Election Commissioners with that of the Chief Election Commissioner. Thus, equal
constitutional protection should be given to all members of the ECI in matters of removability
from office.
The appointment of all the Election Commissioners, including the CEC, must be made by the
President in consultation with a three-member collegium or selection committee, consisting
of the Prime Minister; the Leader of the Opposition of the Lok Sabha (or the leader of the
largest opposition party in the Lok Sabha in terms of numerical strength); and the Chief
Justice of India.
• Elevation of an Election Commissioner must be on the basis of seniority, unless the
three member collegium/committee finds such Commissioner unfit.
• Amendments must be made in the Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) Act, 1991 to reflect this.
It also recommended, to add a new sub-clause as (2A) to Article 324 of the Constitution to
provide for a separate independent and permanent Secretariat for the ECI along the lines of
the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further
improve the independence of the ECI.
Though there are various issues faced by the Election Commission of India, it has still
managed to maintain its reputation worldwide by maintaining its integrity and faithfully
discharging its duty by staying within the constitutional realms.

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 REFERENCES

• V.S. Rama Devi and SK Mendiratta, How India Votes- Election Laws, Practice and
Procedure (4th ed., 2017).
• Kiran Gupta and P.C. Jain, Chawla's Elections-law& practice (10th ed.,2014).
• M.P. Jain, Indian Constitutional Law, Lexis Nexis,(8th ed., 2018).
• https://www.insightsonindia.com/
• https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-election-
commission-collegium-system-appointments
• http://www.legalservicesindia.com/article/246/Election-Commission-of-India.html
• https://www.geeksforgeeks.org/functions-of-election-commission/
• https://indiankanoon.org/doc/23632/

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