Elections and Election of Commission of India

Election Provisions in Constitution of India

1. Election Commission

2. Article 324 Article 324 in the Indian Constitution gives power to the Election Commission to direct, control, and conduct elections to all Parliament, to the Legislature of every state and of elections to the offices of the President and Vice President held under the Constitution. Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”. In Mohinder Singh Gill & Anr vs The Chief Election Commissioner and Others (December 2, 1977), the Supreme Court ruled that “Article 324, on the face of it, vests vast functions in the Commission, which may be powers or duties, essentially administrative, and marginally, even judicative or legislative”. This means the ECI mainly has administrative functions in the preparation of electoral rolls and conduct of elections. The Commission has to exercise its powers and perform its functions under Article 324 in conformity with the provisions of Sections 9 to 11 of The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The three Sections apply to all the items of business transacted by the Commission — whether administrative, judicative or legislative.

3. Chief Election Commissioner (CEC) and election Commissioners (If any) CEC- Permanent Regional Commissioners CEC- safety of tenure CEC AND EC (Conditions of Service) Act, 1991. - laid down 6 years

4. S.S. Dhanoa vs. Union of India 1991; Vast powers may not be entrusted in one person. EC do not have same protection of tenure as CEC. President by a notification issued in pursuance of clause (2) of Article 324 fixed the number of ECs, besides the CEC, at two and a few days thereafter by a separate notification appointed the petitioner and one another as ECs. By yet another notification issued under clause (5) of Article 324 the President made rules to regulate their lenure and conditions of service. After watching the functioning of the multi-member body for about a couple of months, the President issued two notifications rescinding with immediate effect the notification by which the two posts of ECs were created and the notification by which the petitioner and one another were appointed thereto. The petitioner S.S. Dhanoa challenged the notifications rescinding the earlier notification firstly on the ground that once appointed an EC continues in office for the full term determined by rules made under clause (5) of Article 324 and, in any event, the petitioner could not be removed except on the recommendation of the CEC. At the same time it was also contended that the notifications were issued malafide under the advise of the CEC to get rid of the petitioner and his colleague because the CEC was from the very begining ill-disposed or opposed to the ceration of the posts of ECs. The Court found as a fact that there was no imminent need to create two posts of ECs and fill them up by appointing the petitioner and his colleague. The additional work likely to be generated on account of the lowering of the voling age from 21 years to 18 years could have been handled by increasing the staff rather than appoint two ECs. So the Court look the view that from the inception the Government had committed an error in creating two posts of ECs and filling them up. The Court, therefore, upheld the Presidential notifications rescinding the creation of the two posts of ECs and the appointments of the petitioner and his colleague thereon

5. 1993- converted into multi-member body - 2 ECs T.N. Seshan v. Union of India 1995: Under clause (3) of Article 324 , in the case of a multi-member Election Commission, the CEC 'shall act' as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is a permanent incumbent cannot confer on him a higher status than the ECs for the simple reason that the latter are not intended to be permanent appointees. Since the Election Commission would have a staff of its own dealing with matters concerning the superintendence, direction and control of the preparation of electoral rolls, etc., that staff would have to function under the direction and guidance of the CEC and hence it was in the fitness of things for the Constitution-makers to provide that where the Election Commission is a multi-member body, the CEC shall act as its Chairman. That would also ensure continuity and smooth functioning of the Commission. That brings us to the question: what role has the CEC to play as the Chairman of a multi-member Election Commission? Article 324 does not throw any light on this point. the debates of the Constituent Assembly also do not help. Although there had been a multi-member Commission in the past no convention or procedural arrangement had been worked out then. It is this situation which compelled the Division Bench of this Court in Dhanoa's case to inter alia observe that in the absence of rules to the contrary, the members of a multi-member body are not and need not always be on par with each other in the matter of their rights, authority and powers. A Constitution Bench of the Supreme Court, by its landmark judgment dated 14th July, 1995, dismissed the writ petition of Shri T.N.Seshan, fully upholding the constitutional validity of the impugned Ordinance and the Act, and also upholding the appointment of Dr. M.S.Gill and Shri G.V.G.Krishnamurty as Election Commissioners.. The Court also made some adverse observations about the conduct of Shri T.N.Seshan as Chief Election Commissioner.

6. Anoop Baranwal v Union of India 2023 In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments, which the PIL contends has degraded the ECI’s independence over time. The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments. It claims that the current system of appointments violates Article 324(2) of the Constitution. Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists). While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister. After hearing four days of substantial arguments in November 2022, the Constitution Bench decided to change the process for Election Commission appointments in order to secure their independence. The Bench created a committee comprising the Prime Minister, the Leader of the Opposition in Parliament, and the Chief Justice of India. This committee will make recommendations and advise the President on Election Commission appointments until Parliament enacts a separate law on the subject. https://thewire.in/law/decoding-the-supreme-courts-election-commission-judgment

7. Article 325- Political Equality Article 326- Adult Suffrage Article 327- Representation of People’s Act, 1950 Delimitataion Commission Act, 1962

8. Electoral reforms Union of India v Association for Democratic Reforms 2002 The Court in dealing with the question of criminalization of politics held that under the Indian Constitution, electors had a fundamental right to know the antecedents of candidates contesting elections to hold public office. The court read in ‘right to be informed’ as a right flowing from freedom of speech and expression. Election Commission was directed to secure affidavits by candidates recording all particulars relating to past or pending criminal charges or cases against them. This included information as to whether the candidate was convicted/acquitted/discharged of any criminal offence in the past. Additionally, if convicted, the quantum of punishment that was awarded; and whether prior to six months of filing of nomination, the candidate was accused of an offence punishable with minimum two years of imprisonment.

9. PUCL v Union of India 2004 The Peoples Union for Civil Liberties approached the Supreme Court challenging Section 33B of the Representation of People (Third Amendment) Act which nullified the decision in Association for Democratic Reforms (2002) by providing that candidates contesting elections need not file affidavit of criminal antecedents and particulars as directed by the Court. This provision was held unconstitutional and void as it infringed the “right of electors’ to know”, a constituent of the fundamental right to free speech and expression and hindered free and fair elections, which is part of the basic structure of the Constitution. Subsequently, all criminal records and antecedents of candidates contesting elections are now mandated to be matters of public record.

10. Lily Thomas v Union of India 2013 A 2 Judge bench of the Supreme Court in 2013 ruled that Members of Parliament, Legislative Councils and Legislative Assemblies convicted of crimes where they had been awarded a minimum sentence of 2 years imprisonment would cease to be members of the house to which they were elected from the date of sentencing. It further struck down the provision, which allowed convicted members a 3 month time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification.

11. Manoj Narula v Union of India 2014 A 5 Judge Bench of the Supreme Court was dealing with the question whether persons with criminal backgrounds and antecedents or those accused of heinous crimes were fit to be appointed as Ministers in Central and State Governments. Recognizing the limitations of the powers of the Court in matters of appointment of Ministers, it was held that the judiciary could not read a disqualification not contemplated by the statute into Article 75(1). The Court left the appointment of Ministers with a criminal past to the discretion of the Prime Minister. However, it recorded that it can always be legitimately expected that the Prime Minister, while delivering on the Constitutional expectations, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a minister of the council of ministers.

12. Public Interest Foundation v UOI 2018 The Court delivered its judgement in the Electoral Disqualification case. The Court had to decide if persons ought to be disqualified from membership in legislative bodies when criminal charges are framed against them. Currently Section 8 of the Representation of Peoples Act only disqualifies persons when they are convicted of criminal charges. The five-judge Bench unanimously decided that it cannot disqualify candidates, against whom criminal charges have been framed, from contesting elections. It recognized that it cannot introduce new rules regarding the disqualification of electoral candidates.The Bench asked Parliament to make a law that prevents candidates accused of serious crimes from entering politics.