This article is written by Adhila Muhammed Arif, a student of Government Law College Thiruvananthapuram. It explains Article 324 of the Indian Constitution and all about the Election Commission.
Free and fair elections is a characteristic of every democratic country. It is necessary for every democratic country to preserve the sanctity of this institution. An Election Commission was established in the year 1950 to ensure the fairness of the elections throughout India. It is responsible for administering elections to the Lok Sabha, Rajya Sabha, State Legislative assemblies and councils, and the offices of the President and Vice President. The power of this body has been vested by Article 324 of the Indian Constitution. Other than the Constitution, the Election Commission is also governed by the Representation of the People Act, 1950.
What is the Election Commission
The Election Commission is an autonomous body established by the Constitution to ensure free, fair and impartial elections. According to Article 324(1) of the Indian Constitution, the power of the Election Commision are of superintendence, direction, and control of the elections to the Lok Sabha, Rajya Sabha, State Legislative assemblies and councils, and the offices of the President and Vice President. It is not concerned with elections of panchayats and municipalities in states as the administration of those elections is done by the State Election Commission in each state.
Composition of the Election Commission
The following are the provisions made by Article 324 regarding the composition of the Election Commission:
- As per Article 324(2), the Election Commission shall consist of the Chief Election Commissioner and any number of other Election Commissioners, if any.
- Article 324(2) also provides for the appointment of the Chief Election Commissioner and the other Election Commissioners to be done by the President of India.
- As per Article 324(3), in cases where another Election Commissioner is appointed, the Chief Election Commissioner becomes the chairman of the commission.
- As per Article 324(4), the President of India may also appoint regional commissioners as he deems necessary to assist the election commission; this can be done after consulting with the election commission.
- Article 324(5) states that the tenure and the conditions of the work to be done by the election commissioners and the regional commissioners will be determined by the President of India. It also provided that the chief election commissioner and the two other election commissioners have equal powers and they also receive equal salary and allowances, these are similar to those of a Judge of the Supreme Court.
Election Commission as a multi-member body
The Election Commission was not a multi-member body until 1989. It used to be a one-member body consisting of only the Chief Election Commissioner. In 1989, a notification was issued by the President under Article 324(2), which changed the composition of the Election Commission. It became a multi-member body consisting of a Chief Election Commissioner and two other Election Commissioners. Subsequently, the President rescinded the earlier notification in 1990 and reverted the Election Commission to be a one-member body again.
The constitutional validity of the revocation of the earlier notification was challenged in the case of S.S. Dhanoa v. Union of India (1991). The Supreme Court observed that it is necessary to prevent the concentration of power of the commission in a single individual’s hands. As the Election Commission has a vital role in preserving the sanctity of elections, it is highly crucial to ensure that it is impartial and does not abuse its power. Yet, the Court held that both the notifications were constitutionally valid. The Article gives the President unfettered power to create as well as abolish the posts. It was only obligatory to appoint the Chief Election Commissioner. Appointing other Election Commissioners or Regional Election Commissioners was a discretionary power according to Article 324(2) and (4). Thus, the President had the power to abolish both the posts of the Election Commissioners.
Subsequently, the Parliament enacted the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991. According to this Act, the Chief Election Commissioner and the other Election Commissioners shall hold their office for a term of 6 years. It was also provided that when the Chief Election Commissioner or any other Election Commissioner attains the age of 65 before the expiry of the 6-year term, he shall vacate his office. The removal process of the Election Commissioner is the same as that of a Supreme Court judge, as prescribed in Article 124. Their salary is also equal to that of a Supreme Court judge. The Chief Election Commissioner and Election Commissioners may resign by addressing it in writing to the President.
In 1993, the government promulgated an Ordinance, which was then replaced by the Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Act, 1993, to provide an appointment for two Election Commissioners. According to this Ordinance, the decisions taken by the commission shall be unanimous. In cases of difference of opinion, the majority opinion must be taken while making decisions.
In 1993, two Election Commissioners were appointed and equated with the Chief Election Commissioner, in exercise of the power laid down in Article 324(2). T.N. Seshan, who was the Chief Election Commissioner of that time, was not pleased with the new laws and challenged the validity of the provision that equated the powers of the Chief Election Commissioner and other Election Commissioners. In the case of T.N. Seshan v. Union of India (1995), the Supreme Court decided that the provision of majority opinion’s superiority was not in contravention with the provisions in Article 324.
The Election Commission at present remains as a multi-member body. If the commission is unable to reach a unanimous decision, the Chief Election Commissioner has to express his opinion on the concerned matter.
Functions of the Election Commission
The following are the functions of the Election Commission as per Article 324(1):
- The superintendence, direction, and control of the preparation of the electoral rolls for the elections.
- Conducting elections to the Parliament as well as the legislatures of all the states.
- Conducting elections to the offices of the President as well as the Vice-President.
Article 324(6) states that when the Election Commission requires staff for the purpose of the discharge of functions as mentioned in clause (1), the President or the Governor shall make arrangements on its request.
Powers of the Election Commission
In Special Reference No.1 of 2002, the Supreme Court held that framing the schedule for the election of the Legislative Assembly is exclusive to the Election Commission. It is not subject to any law framed by the parliament.
The power exercised by the Election Commission must not be excessive or absolute. The power vested in it under Article 324(1) must be executed within limits set by law. The Election Commission has the power to recognise political parties and decide on the disputes arising among them. It has the power to issue symbols, which is a part of its superintendence, control, and direction as given under Article 324. The Election Commission can also order repoll of an entire constituency when it’s necessary. That would also come within the purview of Article 324. It can also transfer officers to ensure that the fairness of elections is maintained. However, such orders should not be arbitrary in nature.
In Union of India v. Association for Democratic Reforms (2002), the Supreme Court issued certain questions to be asked by the Election Commission to the contesting candidates, which are the following:
- Whether the candidate has been linked to any criminal offence in the past, and whether he was convicted, acquitted, or discharged? Was the accused subjected to imprisonment or fine?
- Whether the candidate has been named in any pending criminal case of an offence punishable with imprisonment of 2 years or more, and details regarding the charges framed.
- The movable and immovable assets of candidates, their spouses, and dependants.
- Liabilities, especially pending dues to public financial institutions or the government.
- Educational qualification.
The Election Commission has the power to lay down the Code of Conduct for the candidates and also take action against candidates who do not abide by it.
In the case of A.C. Jose v. Sivan Pillai (1984), the Supreme Court held that the Election Commission can issue orders that are supplementary to the already existing rules. However, they are subject to the following limitations:
- When there is no parliamentary legislation or state legislature issued rules, the commission can pass orders in respect of the conduct of elections.
- When there is an Act or Rule made regarding it, the commission cannot pass any order overriding it.
- When the Act or Rule is silent, the commission can use the power vested in it by Article 324 to issue directions for the conduct of elections.
- When any direction of the commission is submitted to the government for approval, the commission has to wait till its approved before implementing it.
In Kunwar Raghuraj Pratap Singh v. CEC of India, New Delhi (1999), the Chief Election Commissioner directed the petitioner, who was a minister, to withdraw from the district of Pratapgarh till the polling is over to ensure that he does not disrupt the elections. The Court held that the order was not an abuse of the Election Commission’s powers.
In the case of Sayed Ahmed v. CEC of India (1998), it was held that the Election Commission has the power to postpone the election, as it is vested with the power by Article 324. The Election Commission in this case took such a step in order to preserve the purity of the elections. They had to take this step because of the involvement of the Governor of another state in the elections.
The Election Commission has the power to ban pre-poll, exit-polls, surveys, etc. if it is of the opinion that it would affect the free choice of the voters.
In Special Reference No.1 of 2002, the President consulted the Supreme Court regarding a question on the interpretation of Article 174, which is on proroguing and dissolution of the State Legislature, and Article 324. The period between the last sitting in one session and the first sitting in the next session should not be more than 6 months. The power of dissolving the State Legislature is vested in the government. Once this happens fresh elections must be held, the task of which is undertaken by the Election Commission. The superintendence, direction, control, and preparation of electoral rolls for State Legislature elections is done by the Election Commission as per Article 324. In Gujarat, due to the Godhra incident and its aftermath in 2002, the Chief Minister dissolved the assembly and recommended reelections. The Election Commission recommended the President’s rule over the state.
The President’s questions were the following:
- Is Article 174 subject to the Election Commission’s decisions as per Article 324?
- Can the Election Commission declare elections 6 months later and call for the necessity of President’s rule with that?
- Does holding elections as per Article 324 fulfil the mandate of Article 174?
The Supreme Court was of the opinion that Article 174 is not connected to elections and that it does not set any limit for holding the elections. The holding of elections is exclusive to the domain of the Election Commission. It also held that the date of holding of elections is fixed by the President or the Governor on the recommendation of the Election Commission.
Independence of the Election Commission
The following are the provisions in the Indian Constitution that enables the Election Commission to be an independent body:
- As per Article 324(5), the Chief Election Commissioner has a fixed tenure and he cannot be removed from his position except in the manner in which a Supreme Court’s Judge is removed from his office. He can be removed by the President on the basis of a resolution passed by both the Houses of the Parliament with a special majority, which is 2/3rd of the members present and voting. This should be done on the grounds of misbehaviour or incapacity to work.
- Article 324(5) also states that the conditions of the Chief Election Commissioner’s service cannot be changed to his disadvantage after his appointment.
- Lastly, Article 324(5) provides that no other Election Commissioner or Regional Commissioner can be removed from his office unless it is done on the recommendation of the Chief Election Commissioner.
Related constitutional provisions
Apart from Article 324, the Indian Constitution contains the following provisions which are related to the elections in Part XV:
- Article 325 of the constitution is concerned with the general electoral roll of a constituency. According to this Article, no person can be excluded from it on the basis of sex, caste, religion, or race.
- As per Article 326, elections in India follow the principle of universal adult suffrage.
- Article 327 provides that the parliament has the authority to enact laws that concern the elections.
- Article 328 provides that the legislature of a state may also enact laws that concern elections to the state legislature.
- Article 329 provides for the restriction of courts from questioning the laws made by the parliament or legislature of a state under Article 327 and Article 328, which is regarding delimitation of constituencies or allotment of seats in these constituencies.
The Election Commission has controlled and maintained the sanctity of the elections across the country for over half a century. It has played a crucial role in ensuring that the democratic nature of the country remains untainted. To this day, it has protected several elections from the influence of fraudulent activities of political parties and figures so that the citizens’ right to free and fair elections are not taken away. It is apparent that Article 324 has played a fundamental role in aiding the Election Commission in performing its duties free from external influences.
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