Election Commission: Powers & Functions

Free and fair elections are foundation of any healthy democracy. Free and fair elections guarantee the growth of a democratic polity.

India is the second largest nation in terms of population and seventh largest in terms of area where conducting elections for different positions is a big challenge. India has been characterised as the biggest democracy in the world because of the colossal nature of the elections held in the country. In India elections conducted at various levels, Parliament, State Legislatures, and the offices of the President and Vice President of India. Free and fair Elections ensures smooth and successful operation of the democracy. The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.

What Is Election Commission?

The Election Commission was established in accordance with the Constitution on 25^th January 1950. The Constitution establishes the Election Commission as a body autonomous in character and insulated from political pressures or executive influence. 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. In Order to ensure free, fair, and impartial elections, the Commission functions as a permanent self-governing constitutional body.

Election Commission is an all-India body having jurisdiction over elections of Parliament, State Legislatures, offices of the President and Vice-President. In order to prevent injustice being done to any section of the people, it was thought best to have one central permanent body which would be free from local influences and have control over the entire election machinery in the country.

Constitutional Provisions

Structure of The Commission

• Originally the Election Commission had only one election commissioner but after the Election Commissioner Amendment Act, 1989, it has been made a multi-member body i.e. one Chief Election Commissioner and two Election Commissioners. All Election Commissioners have equal say in the decision making of the Commission. In “S.S. Dhanoa v. Union of India”[1] the Supreme court held that the chief election commissioner does not appear to be primus inter pares, i.e. first among equals, but he is intended to be placed in a distinctly higher position.
• Each of them receives equal status and salary as available to a Judge of the Supreme court of India.
• They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
• The secretariat of the commission is located in New Delhi.
• The President appoints Chief Election Commissioner and Election Commissioners.
• The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.
• The Election Commissioner can only be removed from office by the Chief Election Commissioner.

Election Commission Powers

It is necessary that enormous powers have been vested with the ECI so that it does its job uncompromisingly, which is crucial for a thriving Democracy. The responsibility of superintendence, direction, and control of the preparation of electoral rolls and the conduct of all major elections in the country has been bestowed upon the ECI. Hence the Constitution of India has directly and indirectly conferred upon it. The powers of the Election Commission are defined under part XV (Art. 324 to 329) of the Indian Constitution.

The powers of the Election Commission can be studied under three headings:

1.     Administrative Powers

• The commission has power to define the territorial boundaries of electoral constituencies for different elections in accordance with the Delimitation Commission Act. Under Article 82 of Indian Constitution, the Parliament by law enacts a Delimitation Act after every census. After coming into force commencement of the Act, the Central Government constitutes a Delimitation Commission. This Delimitation Commission demarcates the boundaries of the Parliamentary Constituencies as per provisions of the Delimitation Act. The present delimitation of constituencies has been done on the basis of 2001 census figures under the provisions of Delimitation Act, 2002. The Constitution of India was specifically amended in 2002 not to have delimitation of constituencies till the first census after 2026.
• It has power to register and deregister any political party or entity. The supreme court in “Indian National Congress (I) v. Institute Of Social Welfare & Ors”[2] , stated that the EC does not have the power or authority to cancel the registration of a political party for having violated the provisions of the Constitution or for having committed breach of undertaking at the time of registration. A political party can be deregistered if it has obtained registration by practising fraud or forgery.
•  It has power to allot election symbols to them. It grants recognition to the national parties, state parties and regional parties. Election commission cannot allot same symbol to two regional political parties even if they are not in the same state. The recognition and allotment of symbols of political parties is supervised by the provisions of Election Symbols (Reservation and Allotment) Order, 1968.
• It has power to inform the dates & schedules of election and to scrutinize the nomination papers. Scrutiny of nomination means examination of the nomination papers of the candidates. These papers are accepted if found in order but rejected otherwise. This duty is performed by the Returning Officer who notifies to all the contesting candidates the date, time, and place for the formal scrutiny of nomination papers.
• It has power to enforce the ‘Model Code of Conduct’ for election campaigns and ensures its implementation. The Model Code of Conduct is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to or during the elections, to ensure free and fair elections. Model Code of Conduct is operational from the date that the election schedule is announced till the date that results are announced. Its main purpose is to ensure that ruling parties, at the Centre and in the States, do not misuse their position of advantage to gain an unfair edge. For example, politicians should not make hate speeches, putting one community against another, etc.
• It is empowered to keep a check on the election expenses of the political parties. This ensures that everyone has an equal and fair chance for all the political parties irrespective of their size and thus the capacity to spend. In India, every contesting candidate is required to maintain and file the accounts of his election expenses within a prescribed period after publication of the result of his election. The Commission can suspend candidates who fail to submit their election expense accounts timely.
• It has the power to appoint officers as election observers and expenditure observers from different departments of the Civil Services. Election commission appoints- Chief Electoral Officer, District Election Officer, Returning Officer, Electoral Registration Officer.

2.     Advisory Powers

• The Commission has power to advise the President of India regarding disqualification of the members of Parliament and the conditions for the same. Article 102 of Indian Constitution provides disqualification of member(s) of either house of parliament on various grounds. Article 103 of the constitution gives election Commission power to advice President for disqualification of member(s) of either house of parliament. It is mandatory for president to obtain opinion of election commission on disqualification of member(s).
• The Commission also advises the Governors with respect to the disqualifications of members of the State Legislatures. Article 191 of Indian Constitution provides disqualification of member(s) of the Legislative Assembly or Legislative Council of State(s). Article 192 of the constitution gives election Commission power to advice President for disqualification of member(s) of the Legislative Assembly or Legislative Council of State(s).
• Cases where an individual is found guilty of malpractice at elections by the Supreme Court or High Courts are referred to the ECI for its opinion of the said person’s disqualification. In such cases, the judgement passed by the ECI is final and binding on the President of India or the Governor as per jurisdiction. Section 8A(i) of Representation of People Act,1951 provides the disqualification of candidates on the grounds of corrupt practices. Section 123[ii] states the corrupt practices in detail. The section enlists the activities which are deemed to be corrupt practices and any candidate if found to involve in any of these practices is liable to be disqualified. ECI can also remove or reduce the period of disqualification as per the law.

For instance, In 1999, Thackeray was banned from voting and contesting in any election for six years from 11 December 1999 till 10 December 2005, on the recommendations of the Election Commission for indulging in corrupt practice by seeking votes in the name of religion.[3] The Election Commission of India also has the power to ban any candidate who has not lodged an account of election expenses by the deadline and as per the law.

• It advises the High Courts and Supreme Court in matters related to post-election disputes between candidates and political parties. The post-election disputes related to the election of President and Vice President go to the Supreme Court. Disputes regarding the Parliament and the State Legislatures are referred to the High Courts.

3.     Quasi – Judicial Powers

• The Election Commission has power to settle disputes regarding recognition granted to political parties and candidates.
• It has the powers to act as a court for matters related to disputes arising out of the 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 the State Election Commission. The State Election Commissions are in turn advised by the ECI and are answerable to it.

The Commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election. In “Mohinder Singh Gill & Anr v. The Chief Election Commissioner and Others”[4] , the Supreme Court ruled that “Article 324, vests vast functions in the Commission, which may be powers or duties, essentially administrative, and marginally, even judicative or legislative”. It was observed that the framers of the Constitution took care to leave the scope of residuary power to Commission, foreseeing the infinite variety of situations that may emerge from time to time in such a large democracy as ours.

Supreme court in the case stated that “where the existing laws are absent, and yet a situation has to be tackled, the CEC 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.”

Power of Parliament and State Legislatures

Article 327 of Indian Constitution empowers the Parliament to make provisions with respect to all matters relating in connection with election to Parliament and State Legislature. Parliament has enacted the Representation of Peoples Act, 1950 and 1951, the Presidential and Vice-Presidential elections Act, 1952 and Delimitation Commission Act, 1952.

Article 328 confers similar power on State Legislatures. They can make laws relating to all of the above matters referred to under Article 327, in so far as provision in that behalf is not made by the Parliament.

In “A. C. Jose v. Sivan Pillai”[5] an appeal was filed by the appellant, who was an unelected candidate for an Assembly Constituency in Kerala, challenging the validity of the order of the Election Commission directing casting of ballot by machines in some police stations. The Court held that the order of commission directing casting of votes by a mechanical process in some polling stations is without jurisdiction and hence declared as unconstitutional. The commission has no power to override provisions of the Act or Rules made by the Legislature under Article 327. In absence of any rule or Parliamentary Legislation, the Commission is free to pass any order in respect of the conduct of the election. Article 324 must be read harmoniously with article under Entry 72 of the Union List and Entry 37 of the State List in the seventh schedule of the Constitution.

Election Commission Functions

The election commission has been entrusted its functions under part XV of the Indian Constitution and the People’s Representation Act, 1951.

• Election Commission of India superintendents, direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
• The one of the most important function of the commission is to decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections.
• It has to organize and periodically amend electoral rolls and to register all qualified voters. It also has to issue Electronic Photo Identity Card (EPIC).
• It decides on the location polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

Relation Between Article 174 And Article 324

In Presidential Reference, 2002 the President referred some questions regarding interpretation of Article 174 and Article 324 to the SC for his opinion. Article 174 states that the government has the power to dissolve the State assembly from time to time and place as he thinks fit. It also provides that 6 months shall not intervene between its last sitting in one session and the date appointed for its first time sitting in the next session.

The Government referred three questions to the Supreme Court for its opinion-

1. Whether Article 174 subject to the decision of the Election Commission not to hold the election in a State under Article 324.
   1. Whether the Election Commission can declare an election schedule which violates Article 174 and after the expiry of 6 months constitutional period for assembly to meet the imposition of presidential rule under Article 356
   1. Whether the mandate of Article 174 to hold election will be fulfilled by the holding of election by commission under Article 324.

5 Judge’s benches headed by Chief Justice BN Gopal rejected the intention of the Gujarat government. The court held that Article 174 (1) neither related to election nor does it provide any outer limit for holding elections for constituting the Legislative Assembly. The holding of election is the exclusive domain of Election Commission under Article 324 of the Constitution.

Regarding question 1) the Court held that Article 174 (1) and Article 324 operates on different fields and neither Article 174 (1) is subject to Article 324 nor Article 324 is subject to Article 174 (1).

Regarding question 2) the Court observed that- on premature dissolution of any assembly, the Election Commission is required to initiate immediate steps for holding election for Constitutional Assembly on the first occasion and within 6 months from the date of premature dissolution of the assembly.

Regarding question 3) the Court held that under Article 324, it is a duty and responsibility of the Election Commission to hold free and fair election. The law & order and public disorder is not occasion for postponing the elections, but it is the duty & responsibility of the Election Commission to hold free and fair elections.

Conclusion

Over the past years, the Election Commission has conducted several electoral reforms to strengthen democracy and enhance the fairness of elections. But in the current scenario, our system is still corrupt and political parties do corrupt practices to gain votes and win the elections. There have been allegations of EVMs malfunctioning, getting hacked and not registering votes which corrodes general masses trust from the institution.

The ECI is not adequately equipped to regulate the political parties. To curb these corrupt practices the Election Commission must have more legal and institutional power to punish the politicians who violate the electoral laws. Elections commission should be vigilant and watchful against the collusion at the lower level of civil and police bureaucracy in favour of the ruling party of the day. Until the controversy related to glitches in EVM settles down, commission needs to establish its trust amongst people by installing (Voter Verifiable Paper Audit Trail System) VVPATS in more and more constituencies.

FAQs

What Is Election Commission?

Election commission is an autonomous constitutional body responsible for administering election processes in India at national and state. Under article 324 of Indian Constitution the composition of election commission, powers and functions are conferred.

What Are Powers of Election Commission in India?

• Administrative powers
• Advisory powers
• Quasi-judicial powers

What Are the Functions of Election Commission in India?

Election Commission of India superintendents, direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.

What Is Relation Between Article 174 And 324 Of Indian Constitution?

Article 174 (1) neither related to election nor does it provide any outer limit for holding elections for constituting the Legislative Assembly. The holding of election is the exclusive domain of Election Commission under Article 324 of the Constitution.

What Power Does Constitution Confers to Parliament and State Legislatures Related to Election Commission?

Article 327 of Indian Constitution empowers the Parliament to make provisions with respect to all matters relating in connection with election to Parliament and State Legislature.

References

https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-institutions/election-commission-of-india

https://www.google.com/url?q=https://byjus.com/free-ias-prep/powers-of-the-election-commission/&usg=AOvVaw3prIY_Im9UqRcLGiCd0Qca

Constitution of India, 1949

MP Jain: Indian Constitution, Volume 1, PART V POLITICAL AND CIVIL RIGHTS

https://indiankanoon.org/doc/852842/

https://indiankanoon.org/doc/1158072/

https://web.archive.org/web/20030425223423/http://www.hinduonnet.com/thehindu/revents/01/19990199.htm

https://indiankanoon.org/doc/1831036/

https://indiankanoon.org/doc/390634/

[1] 1991 AIR 1745

[2] AIR 2002 SC 2158

[3]https://web.archive.org/web/20030425223423/http://www.hinduonnet.com/thehindu/revents/01/19990199.htm 

[4] 1978 AIR 851

[5] 1984 AIR 921