Election Provisions in Indian Constitution
Election Provisions in Indian Constitution
Election Provisions in Indian Constitution
I would like to express my special thanks of gratitude to my Assistant Professor Dr. Lavlesh Singh, who
gave me this golden opportunity to do this wonderful Assignment of Constitutional Law.
I would also like to acknowledge my sincere gratitude to principal Mr. Anand Shankar Singh and
convener Dr. Manoj Kumar Dubey for providing me with all the facilities that was required to complete
my assignment.
At last but not the least, I am very thankful to my parents and my friends who have boosted me up morally
with their continuous support.
TABLE OF CONTENTS:
1. List of Cases................................................................................…………….…............................1
2. Introduction..................................................................................……………...............................2
3. Election Commission of India.....................................................……………................................2
4. Constitution of Election Commission.......................................................……………..................3
5. Chief Election Commissioner vis-a-vis other Election Commissioners..……………................3
6. Multi-member Election Commission..........................................................…………................3-4
7. Independence of Election Commission....................................................…………...................4-5
8. Staff of Election Commission..........................................................................…….……...............5
9. Functions of Election Commission................................................................…………...............5-6
10. Superintendence, Direction and Control of Election...........................................………..........6-8
11. Fixing Schedule for Election-Exclusive Domain of Election Commission.........………….........9
12. One General Electoral Roll for every Constituency............................................…...……..........9
13. System of Adult Suffrage..........................................................................................…….........9-10
14. Enactment of laws with respect to Elections.........................................................………..........11
15. Settlement of Election Disputes.........................................................................……..............11-13
16. Conclusion..................................................................................................................…………….........14
17. Bibliography.......................................................................................................…………............15
LIST OF CASES
1
INTRODUCTION
From India being a democratic country, the individuals of the country are unrestricted to form political
parties. To form the government of the country the inhabitants must choose their representatives and they
must do so from the available amount of political parties in the country. An election is an official cluster
decision-making process by which the people select an individual to hold public office. Elections have
been the usual instrument by which modern representative democracy has functioned since the 17th
century. Election may fill place of effort in the legislature, occasionally in the executive and the judiciary,
and for regional and local government. This procedure is also used in many other private and business
official doms, from the clubs to charitable associations and corporations. Our discussion is restricted to
part XV of the Constitution of India which deals with Articles 324 to 329. These articles are the
requirements related to elections which are cherished in the constitution. Electoral improvement describes
the process of introducing fair electoral schemes where they are not in place or improving the fairness or
efficacy of existing systems. Psephology is the study of results and other figures relating to elections
(especially with a view to predicting future results). To elect means “to choose or make a decision”, and
so occasionally the other forms of ballot such as referendums are denoted to as elections, especially in the
United States.
Article 324 provided for the appointment of an Election Commission to superintend, direct and control
the elections. The Commission is an all-India body having jurisdiction over elections to Parliament, State
Legislatures, offices of the President and Vice-President. 1
The constitution of one central body, the Election Commission, having control over the entire election
process in the country, is done to prevent injustice, which could be done by regional, state Governments
discriminating against any section of the people in the matters relating to elections.2 The Commission is
constituted as an autonomous and independent body, with a view, to ensure the conduct of free and fair
elections, which feature is held to be a basic structure of the Constitution.3 It has been said to be the most
important arbitrator on holding of the elections.4
1
Clause (1) of Article 324 Section And 138 of the Constitution of J and K, 1956.
2
Dr. Ambedkar’S speech, CAD, VIII, 905-7
3
Indira N. Gandhi v. Raj Narain, AIR 1975 SC 2299
4
Sorabji Soli and Arun Jaitley, The Tribune, May 10, 2007
2
CONSTITUTION OF THE ELECTION COMMISSION
Clause (2) of Article 324 provides that 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. Until Parliament makes any law in the behalf, the Chief Election Commissioner and other
Election Commissioners are appointed by the President. When any other Election Commissioner is do
appointed, the Chief Election Commissioner; shall act as the Chairman of Election Commission.5
The President may also appoint, after consultations with the Election Commission, such Regional
Commissioners as he may consider necessary to assist the Election Commission in the performance of its
functions.6 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. These rules, however, are subject to
any law made by Parliament in this respect.
Proviso to Clause (5) of Article 324 says that the 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. It is thus clear that the Election Commissioners do not hold the same position as does the
Chief Election Commissioner.7 While the CEO is the creation of the Constitution, the number of other
Election Commissioners is determined by the President. While the CEC can be removed from his office
in the manner provided in the Proviso to Clause (5) of Article 324, the other Commissioners hold their
office during the pleasure of the President, subject to any law made by Parliament in this regard.8 Again,
while the conditions of service of the CEC cannot be varied to his disadvantage, the conditions of service
of other Commissioners are determined by President by rule, subject to any law made by Parliament in
this regard.
5
Clause (3) of Article 324.
6
Clause (4) of Article 324.
7
T.N. Seshan v. Union of India, AIR (1995) 4 SCC 611
8
Clause (5) of Article 324.
3
Prompted by the Supreme Court's observation in S. S. Dhanoa's case9 and also in the wake of certain
controversial decisions taken by the CEC resulting in serious confrontation between the Commission and
the Government of India, the latter decided to provide for a Multi-member Election Commission. For the
purpose, the President promulgated: The Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Amendment Ordinance, 1993, to amend The Chief Election Commissioner and
other Election Commissioners (Conditions of Service) Act, 1991. The Ordinance was later replaced by
the Act passed by Parliament in 1994, which came into force on January 1, 1994. The Ordinance provided
for a multi-member Election Commission, making CEC on par with other Election Commissioners and
providing that business of the Commission would be transacted on the basis of unanimous decision and
in case of difference of opinion, on the basis of opinion of the majority.
In T.N. Seshan v. Union of India,10 the Supreme Court unanimously upheld the constitutionality of the
Act equating the status, powers and authority of the two Election Commissioners with that of the CEO.
The Court held that the CEC did not enjoy a status superior to other Election Commissioners even though
there were differences between the service conditions of the CEO and other CEs. The scheme of Article
324, it was held clearly provided for a multi-member body comprising of the CEO and other ECs.
a. That the CEC shall not be removed from his office except in the like manner and on the like
grounds as a Judge of the Supreme Court.
b. That the conditions of service of the CEC shall not be varied to his disadvantage after his
appointment.
The CEO is, therefore, protected against political and executive influence and for that reason, he can
discharge his functions without fear, favour or pressure from the executive or the party in power. Even
the tenure of office of other Election Commissioners and the Regional Commissioners is also free of the
executive control in so far, none of them can be removed from office except on the recommendation of
9
S.S. Dhanoa v. Union of India, AIR(1991) SC 1745
10
(1995) 4 SCC 611.
4
the CEC.11 This check on the executive's power is to safeguard the independence of not only these
functionaries but the Election Commission as a body.12
The Election Commission generally has few staff of its own. It, however, can demand necessary staff from
the Central and State Governments whenever required. For that purpose, Clause (6) of Article 324
provides that the President, or the Governor of a State shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner such staff as
may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1).
Clause ( 6) of Article 324, permits the requisition of services of employees working under the President
or the Governor of a State and not those of Bank employees or that of Life Insurance Corporation,13or
teachers during teaching days.14 Once it is provided that the employees of a State, for a period when the
election process is on, are subject to the control, superintendence and discipline of the Election
Commission, the inevitable corollaries of such power is that the Commission can direct the posting of
such employees for the purpose of ensuring a free and fair holding of elections. The Commission shall
have power to recommend disciplinary action, to the competent authority, against the officers for
insubordination or dereliction of duty while on election duty.15
a. The superintendence, direction and control of the preparation of electoral rolls for all
elections to Parliament and to the Legislature of every State and of elections to the offices of President
and Vice-President.16
11
Second Proviso to Clause (5) of Article 324.
12
T.N. Seshan v. Union of India, (1995) 4 SCC 611.
13
Election Commission of India v. State Bank of India, AIR 1995 SC 1078.
14
Election Commission v. St. Mary’s School, AIR SC 655
15
Rameshwar Oraon v.State of Bihar , AIR 1995 Pat.173.
16
Article 324 (1).
5
c. To advise the President or the Governor of a State, as the case may be, on the question of
disqualification of any Member of Parliament or a member of a State Legislature, respectively.17
Article 324 has been held to be plenary in character, vesting the whole responsibility in the Election
Commission for national and State elections.18 The power conferred on the Commission under Article 324
(1) is subjected to two limitations, namely:
i. When Parliament or any State Legislature has made a valid law relating to or in connection with
elections, the Commission shall act in conformity with such law.
ii. The Commission while exercising power shall conform to the rule of law, act bone fide and be
amenable to the norms of natural justice.19
The expression superintendence, direction and control and the conduct of all elections in Article 324 (1)
has been held to include such powers which though not specifically provided but are necessary to be
exercised for effectively accomplishing the task of holding the elections to their completion.20 It would,
therefore be legitimate, on the part of the Commission, to make general provisions even in anticipation or
in the light of experience, in respect of matters relating to symbols.21
In the interest of free and fair elections, for the safety and security of electors and with a view to prevent
intimidation and victimisation of electors, the Commission has full power to direct the manner of counting
of votes.22
Directives issued by the Election Commission for transfer of those officers from one district to another,
who had completed more than four years of stay in one district, have been held not ultra vires Article
324(1).23
17
Article 103 (2) And 192 (2).
18
AIR 2003 SC 87.
19
Mohinder Singh Gill v. Chief Election Comr., AIR 1978 SC 851.
20
AIR 2003 SC 87.
21
K.M. Sharma v. J.B. Singh, AIR 2001 All.175.
22
E.C. Of India v. Ashok Kumar, AIR 2000 SC 2979.
23
Lalji Shukla v. Election Commissioner of India, AIR 2002 All. 73
6
The word elections in Article 324 includes the entire process of election, which embraces many steps
some of which have an important bearing on the process of choosing a candidate. It includes every process
issued after the issuance of the Notification for holding the election.
The powers in respect to the allotment of symbols to political parties, adjudication of disputes with regard
to recognition of parties and rival claim to a particular symbol, are vested with the Election Commission
under Article 324. Providing and reserving election symbols for recognized political parties would not
amount to undemocratic act.24
Orders passed by the Commission for re-scrutiny of nomination papers are held binding on the Returning
Officer. The direction issued by the Commission of rescinding the election notification for general
elections to the Legislative Assembly of a State, on the ground of abduction of a candidate of a political
party for preventing him from filing nomination papers, has been upheld.25
The phrase conduct of elections in Article 324 has been held to be of wide amplitude, which would
include power to make all necessary provisions for conducting free and fair elections. Since, every
contingency cannot be foreseen or anticipated with precession, the Apex Court in Union of India v.
Association for Democratic Reforms, {30} held that the Commission could cope with situation where the
field was unoccupied by issuing necessary orders.
Article 324 has been said to be a reservoir of power, leaving scope for exercise of residuary power by the
Commission in its own right, as a creature of the Constitution. The Commission, may, therefore, issue
directions, asking the candidates to furnish information relating to their assets, educational qualification,
antecedents of his life, etc.
However, the words superintendence, direction and control in Article 324(1) are meant to supplement
and not supplant the law and therefore, the Commission cannot proceed against a validly made law
concerning the elections. Also, no power is conferred on the Election Commission to de-register a political
party. The Commission may, however, regulate, with the approval of the Government, any gray area, not
covered by the Rules framed by the Legislature.
24
P. Shekharppa v. E.C.I., AIR 2009 (NOC) 259 (Kar.).
25
R.P. Yadav v. A.K. Singh, AIR 2008 Pat.17.
7
Again in Ram Deo Bhandari v. Election Commission,26 the Supreme Court held that the Election
Commission was free to take such steps as it considered necessary to ensure a free and fair poll, but, it
would not withhold the elections to the Legislative Assembly of a State on the ground that the said
Government had failed to complete the process of issuance of photo identity cards by the deadline
prescribed by the Commission, for it would be contravention of the mandate of Article 168 of the
Constitution.
It has been ruled that the Election Commission and the Election Authorities, are also governed by the
Representation of People Act, 1951 and that they cannot act in a manner inconsistent with the Act. It is
thus ruled that Article 324 has to be read in the light of the Constitutional Scheme and the Act 1950 and
the Act, 1951. In A.C. Jose v. Sivan Pillai, the Apex Court had listed out some serious faults in the use of
EVM.
Since the new improved version of EVM had taken care of those defects as also the Representation of
People Act, 1951 and the Rules there under were accordingly amended, the Apex Court in T.A. Ahammed
Kabeer v. A.A. Azeez,27 approved the use of EVM. Relying on the Apex Court's observations the
Karnataka High Court in M.B. Fernandes v. C.K. Jaffer Sharief,28 upheld the amendment incorporated
in the Act, providing the use of EVM as not violative of Article 14, being not arbitrary or ultra vires the
Constitution.
In T.A. Ahammed Kabeer v. A.A. Azeez,29 the Supreme Court approved the use of the present version
of EVM, wherein it was held possible to get at the disputed impersonated votes by decoding, though
identity of the impersonator could not be detected, which shortcoming was well with the manual ballot
system also, the Court said.
26
AIR 1995 SC 852.
27
AIR 2003 SC 2271.
28
AIR 2004 Kant. 289.
29
AIR 2003 SC 2271.
8
FIXING SCHEDULE FOR ELECTIONS-EXCLUSIVE DOMAIN OF ELECTION
COMMISSION
The Apex Court in Special Reference No. 1 of 2002,30 was referred to, questions relating to power of the
Election Commission under Article 324, fixing the schedule for holding elections to the Legislative
Assembly of a State, in the light of the mandate of Article 174(1).
The question cropped up out of the situation then existing in the State of Gujarat. The Legislative
Assembly of the State, which was to complete its term on 18-3-2003, was dissolved on 19-7-2002 by the
Governor on being advised by the Chief Minister. Since the last sitting of the Assembly was held on 3-4-
2002, the Election Commission was required to complete the elections to the Assembly by the date, so as
to comply with the Article 174(1) mandate.
The Election Commission, on its part, recommended the invocation of Article 356 in the State, as the
situation in the State, in their opinion was not suitable to hold, early, free and fair elections, so as to comply
with the requirement of Article 174(1).
There shall be one general electoral roll for every territorial constituency for election to either House of
Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible
for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency
on grounds only of religion, race, caste, sex or any of them.
Section 22 of the Representation of the People Act, 1950 empowers the Electoral Registration Officer of
a constituency to delete the name of a person from the Electoral Roll on certain grounds. It has been held
that such deletion must be done only after giving to the person concerned meaningful opportunity of
hearing and after following requisite procedure.
30
AIR 2003 SC 87.
9
Article 326 incorporates the system of adult suffrage for elections to the Lok Sabha and the Legislative
Assembly of every State. According to this system, a person to be registered as a voter for these elections
must comply with the following requirements:
Parliament has enacted the Representation of People Act, 1950 which requires a person, to be
registered as a voter, to fulfil the following conditions:
No person is entitled to be registered in the electoral roll for more than one constituency or of any
constituency more than once. A person shall be disqualified from voting at any election for 6 years if he
is convicted of any of the specified offences punishable with imprisonment or who, upon the trial of an
election petition is found guilty of any corrupt practice. This disqualification may, however, be removed
by the Election Commission, for reasons recorded by it in writing.
Every person enrolled in the electoral roll by an authority empowered by law to prepare the electoral roll
or to include a name therein, is entitled to cast a vote unless disqualified under law.
The right to vote or stand as a candidate for election is a creature of statute or a special law and must be
subject to the limitations imposed by it.31 These rights are not absolute rights, nor are held to be
constitutional rights.32Though fundamental to democracy, the right to elect is neither a fundamental right
nor a common law right. So, is the right to be elected and the right to dispute an election.
31
Ankhul Chandra Pradhan v. Union of India, AIR 1997 SC 2814.
32
Kuldeep Nayer v. Union of India, AIR 2006 SC 3127.
10
ENACTMENT OF LAWS WITH RESPECT TO ELECTIONS (ARTICLES 327
AND 328)
Article 327 provides that Parliament may, from time to time, by law, make provisions with respect to all
matters relating to, or in connection with, elections to either House of Parliament or the Legislature of a
State. The law may include provisions for the preparation of electoral rolls, the delimitation of
constituencies and all other matters necessary for securing the due constitution of such House or Houses.
The law so made shall be subject to the provisions of the Constitution. Similar power is conferred by
Article 328 on the Legislature of a State with respect to the elections to the Houses of the State Legislature.
The power of the State Legislature is subjected to the provisions of the Constitution and any law made by
Parliament.
In the exercise of the power conferred by Article 327, Parliament has enacted the Representation of the
People Acts, 1950 and 1951 and the Delimitation Commission Act, 1952. The Election Commission is to
act not inconsistent with these Acts.
Clause (a) of Article 329 provides that the validity of any law relating to the delimitation of constituencies
or the allotment of seats to such constituencies made or purported to be made under Article 327 or Article
328 shall not be called in question in any Court.
Clause (b) of Article 329 as amended by the Constitution (19th Amendment) Act, 1966, provides that
notwithstanding anything in the Constitution, no election to either House of Parliament or the Legislature
of a State shall be called in question except by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by the appropriate Legislature. In pursuance of
this Clause, Parliament enacted the Representation of the People Act, 1951. The Act has vested the power
to decide any election petition, in the High Courts.
11
In K. Venkatachalam v. A. Swamickan,33 the Supreme Court has ruled that Article 329(b) does not come
into play when case falls under Articles 191 and 193. The word Election is held to include every process
of proceedings after issuance of election Notification.
In Inderjit Barua v. Election Commission of India,34 it was held that preparation of electoral rolls was
not part of election. It was further said that no election could be challenged on the ground of defect in
electoral rolls. The Court ruled that an election could be challenged only by an election petition as required
by Clause (b) of Article 329. Any alleged illegality or irregularity in the matter relating to allotment of
symbol can only be challenged by filing a petition on any of the grounds under Section 100 of the
Representation of the People Act, 1951, read with Article 329(b) of the Constitution, after the election
process is over and not at the intermediate stage by filing a writ petition.
In Hari Shankar Jain v. Sonia Gandhi,35 the Supreme Court has ruled that in spite of a person having
been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or
disqualified from, contesting an election, can be raised before and tried by the High Court hearing an
election petition.
As regards the locus standi to file an election petition, the Allahabad High Court, in Hari Krishna Lal v.
Atal Bihari Bajpai,36 ruled that only a duly nominated candidate could file the petition. By mere filing
nomination paper, a person does not become duly nominated candidate. Besides he is required by the
Commission to file certain affidavits. The word candidate does not include a candidate who had withdrawn
his candidature.
In Manda Jagannath v. K.S. Rathnam,37 the nomination Form B filed by the respondent was rejected
by the Returning Officer. Whether the Returning Officer was justified in so doing, was held to be a matter
to be agitated in an election petition only and not before the High Court under Article 226.
Any challenge to an election, once the election is over, can be taken by an election petition, filed under
the Representation of People Act, 1951 and not by way of a writ petition. In view of the constitutional bar
under Article 329(b), any matter relating to elections can be questioned only by an election petition under
33
AIR 1999 SC 1723.
34
AIR 1984 SC 1911.
35
AIR 2001 SC 3689.
36
AIR 2003 AII. 128.
37
AIR 2004 SC 3600.
12
the Representation of People Act, 1951. Therefore, complaint relating to validity of caste certificate of a
candidate elected to Vidhan Sabha, can be questioned only by an election petition and cannot be
entertained by National Commission on Scheduled Castes/Tribes under Article 338(1) (a).
13
CONCLUSION
These provisions laid down in the Constitution of India regarding elections miss out on a very important
aspect which the Constitution makers had failed to think of. The very need of certain basic educational
qualifications for person to be a candidate for any election was ignored and it was left free open for anyone
to contest elections. This is one of the most important factors why India has not been able to grow to its
full potential. Education determines a person’s prudent and reasonable thinking or to put it in another way
it determines how reasonable the person is from an illiterate man. To accelerate the growth of the country
it is much important that the person leading the country, or the people elected as people’s representative
are educated. Another important aspect to investigate this is that even today a person who is behind the
bars can contest elections. This is another great flaw persisting even today in the Indian Political Scenario.
As a person from a legal background, I feel this also hampers the growth of our country.
Another aspect to investigate the fact that the number of deserving candidates contesting the elections are
very minimal or negligent. The educated youth of the country is not at all interested in the politics of the
country due to the existing representatives. This forces the people to go for the „None of the Above
Option‟ during an election. It is very important for people, who are deserving, to contest elections so that
the voters vote and get their suitable representatives. Though the election commission is given many
powers under Article 324 of the Constitution of India to ensure that no unfair means are utilized by any
political party or any candidate to win an election still in today’s scenario we can see, and experience
unfair means being used. After going through the Constitution provisions for elections one can understand
that necessary changes are required in the provisions so that people get the appropriate representative and
the democracy of the country, which is of the people, by the people and for the people is maintained.
14
BIBLIOGRAPHY
Primary sources
Secondary sources
https://www.mea.gov.in/Images/pdf1/Part15.pdf
https://www.legalserviceindia.com/legal/article-2032-election-commission-of-indiaarticles- 324-to-
329-.html
https://www.loc.gov/item/14031797/
https://www.osce.org/files/f/documents/f/8/104573.pd
15