ADMINISTRATIVE LAW

NATURE OF POWERS OF ELECTION COMMISSION (FOR)

SUBMITTED IN THE PARTIAL FULFILMENT OF B.A. LL.B. (HONS.)

5TH SEMESTER

DATE OF SUBMISSION: SEPTEMBER 10, 2019.

DATE OF VIVA: SEPTEMBER 24, 2019.

SUBMITTED TO: SUBMITTED BY:

DR. SHIVA SATISH SHARDA YASHASIVI MISHRA
ASSISTANT PROFESSOR OF LAW. 17007, GROUP 2.
Table of Contents
1. INTRODUCTION……………………………………………………………1
2. CONSTITUTIONAL
PERSPECTIVE………………………………………………………………2
3. POWERS OF THE ELECTION
COMMISSION……………………………………………………………….3
3.1 ADMINISTRATIVE……………………………………………………..5
3.2 ADVISORY ……………………….……………………………………..7
3.3 QUASI
JUDICIAL………………………………………………………………..8
4. RECENT
DEVELOPMENTS…………………………………………………………..10
5. BIBLIOGRAPHY….………………………………………………………..12
 1. INTRODUCTION.

The Election Commission of India is an autonomous constitutional authority

responsible for administering election processes in India. The body administers
elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State
Legislative Councils, and the offices of the President and Vice President of the
country.1

The Election Commission operates under the authority of Constitution per Article
324 2 , and subsequently enacted Representation of the People Act. 3 The conduct of
elections in India after independence became the responsibility of the Election
Commission. It was in 1950 that the Election Commission of India was set up as a
constitutional body and entrusted with the task of superintendence, direction and
control of all national and state level elections. It was also given the work of
preparation and revision of electoral rolls. The Constitution has pro- vision for a
single EC to manage elections for both Parliament and the state legislatures. There
was much discussion in the Constituent Assembly regarding the set- ting up of a
single body to handle elections at both the levels. Some members of the Constituent
Assembly saw this as a move towards an uncalled for centralisation, but the proposal
was carried forth. The EC has "considerable autonomy of action" as it "derives its
authority directly from the Constitution.

The EC has been termed as "the means to the end of a vibrant representative
democracy" and as a "bulwark for free and fair elections in India" In a countrywide
poll conducted by the Centre for the Study of Developing So- cieties (CSDS) (Delhi)
in 1996, after the 1st general elections, the EC stood as the institution which was
trusted most by the people followed by the judiciary, the state government, local self-
government and so on, in that order.4

1
The Presidential and Vice-Presidential Elections Act, 1952.
2
The Constitution of India, 1950, §324.
3
The Representation of the People Act, 1951.
4
Katju, Manjari. “Election Commission and Functioning of Democracy.” Economic and Political
Weekly, vol. 41, no. 17, 2006, pp. 1635–1640.
 2. CONSTITUTIONAL PERSPECTIVE.

5
In the case of TN Seshan v Union of India , it was observed that,

“Democracy being the basic feature of our constitutional set up, there can
be no two opinion that free and fair elections to our legislative bodies
alone would guarantee the growth of a healthy democracy in the country.
In order to ensure the purity of the election process it was thought by our
Constitution-makers that the responsibility to hold free and fair elections
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.”

The objective is achieved by the setting up of an Election Commission, a permanent

body, under Article 324(1) of the Constitution. The superintendence, direction and
control of the entire election process in the country has been vested under the said
clause in a commission called the Election Commission. Clause (2) of the said article
then provides for the constitution of the Election Commission by providing that it
shall consist of the CEC and such number of ECs, if any, as the President, may from
time to time fix. It is thus obvious from the plain language of this clause that the
Election Commission is composed of the CEC and, when they have been appointed,
the ECs.6

Dr. Ambedkar while explaining the purport of this clause during the debate in the
Constituent Assembly said:

"Sub-clause (2) says that there shall be a Chief Election Commissioner

and such other Election Commissioners as the President may, from time
to time appoint. There were two alternatives before the Drafting
Committee, namely, either to have a permanent, body consisting of four or

5
TN Seshan v. Union of India, (1995) 4 SCC 611.
6
Katju, Manjari. “Election Commission and Changing Contours of Politics.” Economic and Political
Weekly, vol. 44, no. 16, 2009, pp. 8–12.
 five members of the Election Commission who would continue in office
throughout without any break, or to permit the President to have an ad
hoc body appointed at the time when there is an election on the anvil. The
Committee has steered a middle course. What the Drafting Committee
Proposes by sub-clause (2) is to have permanently in office one man
called the Chief Election Commissioner, so that the skeleton machinery
would always be available."

It is crystal clear from the plain language of the said clause (2) that our Constitution-
makers realised the need to set up an independent body or commission which would
be permanently in session with atleast one officer, namely, the CEC, and left it to the
President to further add to the Commission such number of ECs as he may consider
appropriate from time to time.

Clause (4) of the said article further provides for the appointment of RCs to assist the
Election Commission in the performance of its functions set out in clause (1). This, in
brief, is the scheme of Article 324 insofar as the constitution of the Election
Commission is concerned.

The provision that the ECs and the RCs once appointed cannot be removed from
office before the expiry of their tenure except on the recommendation of the CEC
ensures their independence. The scheme of Article 324 in this behalf is that after
insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been
assured independence of functioning by providing that they cannot be removed except
on the recommendation of the CEC.

Of course, the recommendation for removal must be based on intelligible, and cogent
considerations which would have relation to efficient functioning of the Election
Commission. That is so because this privilege has been conferred on the CEC to
ensure that the ECs as well as the RCs are not at the mercy of political or executive
bosses of the day. It is necessary to realise that this check on the executive’s power to
remove is built into the second proviso to clause (5) to safeguard the independence of
not only these functionaries but the Election Commission as a body.

If, therefore, the power were to be exercisable by the CEC as per his whim and
caprice, the CEC himself would become an instrument of oppression and would
destroy the independence of the ECs and the RCs if they are required to function
under the threat of the CEC recommending their removal. It is, therefore, needless to
emphasise that the CEC must exercise this power only when there exist valid reasons
which are conducive to efficient functioning of the Election Commission.

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. Being a constitutional authority, Election
Commission is amongst the few institutions which function with both autonomy and
freedom, along with the country’s higher judiciary, the Union Public Service
Commission and the Comptroller and Auditor General of India.

The commission secretariat is based in New Delhi which includes the Election
Commissioners, Deputy Election Commissioners (usually IAS officers) Directors
General, Principal Secretaries, Secretaries and Under Secretaries.

Administration is generally by state with the Chief Electoral Officer of the State, who
is an IAS officer of Principal Secretary rank. At the district and constituency levels,
the District Magistrates (in their capacity as District Election Officers), Electoral
Registration Officers and Returning Officers perform election work.

3. POWERS OF THE ELECTION COMMISSION.

The fundamental pursuit of democracy is elections at regular intervals. The Election

Commission is regarded as India's guardian of elections. Starting with the 1971 5th
Lok Sabha elections, the commission has issued for each election an advisory Model
Code of Conduct guidelines to be adhered to by political parties and candidates
although there is no constitutional statutory power or obligation to do so.

To curb the growing influence of money during elections, the Election Commission
has made many suggestions and changes in this regard. The commission has
appointed IRS officers of the Income Tax Department as Election Observers
(Expenditure) of all elections and has fixed the legal limits on the amount of money
which a candidate can spend during election campaigns. These limits have been
revised over time. The Election Commission, by appointing expenditure observers
from the Indian Revenue Service, keeps an eye on the individual account of election
expenditure. The commission takes details of the candidate's assets on affidavit at the
time of submitting nomination paper, who are also required to give details of their
expenditure within 30 days of the declaration of results. The campaign period has also
been reduced by the commission from 21 to 14 days for Lok Sabha and Assembly
elections to cut down election expenditure. 7

In an attempt to decriminalise politics, the Election Commission has approached

the Supreme Court to put a lifetime ban on convicted politicians from contesting
elections.

The requirements to be fulfilled by an election machinery include, as held by the

Supreme Court in NP Ponnuswami v. Returning Officer, Namakkal Constituency8:

 There should be a set of rules and laws making provisions to all matters in
relation to elections. It should be decided as to how these rules are to be made.
 There should be an executive charged with the duty of securing the due
conduct of elections.
 There should be a judicial tribunal to decide all disputes arising in connection
with elections.

Part XV of the Constitution deals with elections. The second requirement is satisfied
by Article 324, while Articles 327 and 328 deal with the first. Article 329 deals with
the third one.

The powers of the Election Commission are defined in the following articles of the
Indian Constitution:

 Article 324: Superintendence, control and direction of national and state level
elections are to be directly handled by the ECI

 Article 325: Inclusion and exclusion of names in electoral rolls are based on
Indian Citizenship. No citizen of India above the voting age should be
excluded from the rolls or included in a special electoral roll based on any
criteria such as race, caste, religion or sex.

7
Kumar, Sanjay. “Reforming Indian Electoral Process.” Economic and Political Weekly, vol. 37, no.
34, 2002, pp. 3489–3491.
8
NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64.
  Article 326: Defines universal adult franchise as the basis for elections to all
levels of the elected government.

 Article 327: Defines responsibilities of the ECI and parliament for the conduct
of national elections.

 Article 328: Defines the role and responsibilities of the state legislatures with
respect to state level elections.

 Article 329: Prohibits court interference in matters related to elections unless

specifically asked to provide their views.

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

 Administrative Powers

 Advisory Powers

 Quasi-Judicial Powers

3.1 Administrative Powers of the Election Commission

1. The commission has been empowered to function in accordance to the

Delimitation Commission Act and define the territorial boundaries of electoral
constituencies for different elections. To facilitate the process of elections, a
country has to be divided into several constituencies. The task of delimiting
the constituencies is generally performed by a Delimitation Commission. But
the power to delimit parliamentary and Assembly constituencies for the first
general elections in 1951 was conferred on the President. The President’s
delimitation order was to be released on the advice of the Election
Commission which also consulted Parliamentary Advisory Committees set by
the Speaker of Parliament and the Speaker of the respective legislative
Assembly to which the delimitation proposal pertained. The Election
Commission distributed the seats district-wise in each one of the States and
directed the Chief Electoral Officers to prepare proposals for the physical
demarcation of Constituencies according to the prescribed criteria. As on
outcome of the recommendation of the Election Commission the Parliament
enacted the Delimitation Act, 1952. The Delimitation Commission was to
consist of three members, two of whom were the nominated by the President
 from serving or retired judges of the Supreme Court or High Courts while the
Chief Election Commissioner was to be an ex-office member.

2. It has been given powers to register and deregister any political party or entity.
A new part (Part IV A) has been added to the Representation of the People
(Amendment) Act, 1951 on registration of political parties. Section 29 A now
inserted provides for registration with the Commission, of associations and
bodies of individual citizens of India as political parties for purpose of this
Act. This provision came into force from June 15, 1989. A recognised political
party has been classified either as a National Party or a State Party under
paragraph 7 of the Elections Symbol Order, 1968. Another important function
of the Election Commission is to allot symbols to the political parties and the
candidates, and also to accord recognition to the political parties. The
Commission has specified certain symbols as reserved and others as free. The
reserved symbols are only available for candidates sponsored by the political
pin ties and the free symbols are equally available to other candidates.
3. It is empowered to enforce the ‘Model Code of Conduct’ for election
campaigns and ensures its implementation.

4. It is empowered to keep a check on the election expenses of the political

parties. This ensures a level playing field 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. Within 10 days from the last date of filing the returns, the
Returning Officer submits to the Election Commission, a list of all the
candidates and their agents together with their returns as a also his
observations in respect of candidates who have failed to lodge returns in the
specified time and in accordance with the procedure prescribed by law. The
Commission scrutinizes the accounts and decides whether the returns are in
proper form and whether they have been lodged in time. In case of default, it
 notifies the candidates or their agents of their disqualification by publishing
these in the official Gazette.9

5. It has the power to appoint officers as election observers and expenditure

observers from different departments of the Civil Services.

6. It undertakes the task of the poll throughout the whole of India. In a

Parliamentary or Assembly constituency, the Returning Officer is to make
suitable arrangements for conducting the poll with the prior approval of the
Election Commission. The Commission can order a re-poll for the whole
constituency under compulsion of circumstances. In the case of AIADMK v.
State Election Commissioner 10, it was held that the Election Commission has
jurisdiction and authority, nay the duty to direct re-polling in any or all the
wards, if he comes to the conclusion on the basis of materials on record that
there is no free and fair election and there has been large scale of booth
capturing. Such action can be taken by the Election Commission not only on
the basis of the reports submitted by various election officers, but also on other
materials including the newspaper reports.

3.2 Advisory Powers of the EC:

1. The Commission is empowered to advise the President of India regarding

disqualification of the members of Parliament and the conditions for the same.

2. The Commission also advises the Governors with respect to the

disqualifications of members of the State Legislatures

3. It advises the High Courts and Supreme Court in matters related to post-
election disputes between candidates and political parties.

4. It examines 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. The Returning
Officer summarily but judicially examine all the nomination papers and
decides the objection raised. He is also to see whether the requisite

9
Jain, Subhash C. “STATE FUNDING OF ELECTIONS AND POLITICAL PARTIES IN
INDIA.” Journal of the Indian Law Institute, vol. 43, no. 4, 2001, pp. 500–511.
10
AIADMK v. State Election Commissioner, 2007 SCC OnLine Mad 49.
 requirements of security deposit, election symbol, election agent, etc., have
also been fulfilled.

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.

3.3 Election Commission Quasi-Judicial Powers

1. The Election Commission is empowered to settle disputes regarding

recognition granted to political parties and candidates.

2. 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.

3. 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 ECI is one of the few constitutional authorities which have the freedom to operate
autonomously. Other such bodies are the Comptroller and Auditor General (CAG) of
India’s Office, Higher judiciary such as the High Courts and Supreme Court and the
Union Public Service Commission.

In June 2002, the EC on the direction of the Supreme Court, issued an order under
Article 324 that each candidate must submit an affidavit regarding the information of
his/her criminal antecedents; assets (both movable and immovable) of self and those
of spouses and dependents as well; and qualifications at the time of filing his/her
nomination papers for election to the Lok Sabha, the Rajya Sabha and the State
Legislative Assemblies. 11

But political parties believed that the EC and the judiciary were overstepping their
powers. At the all-party meeting, held on July 8, 2002, representatives of 21 political
parties decided that the EC’s order should not be allowed to be implemented. The

11
Bose, B.P.C., and M.V.S. Koteswara Rao. “Criminalisation Of Politics : Need For Fundamental
Reform.” The Indian Journal of Political Science, vol. 66, no. 4, 2005, pp. 733–754.
Supreme Court again came out as a guardian of the citizen’s right to information.The
Supreme Court made it clear that failing to furnish the relevant affidavit shall be
considered as a violation of the Supreme Court’s order and as such the nomination
papers shall be liable to be rejected by the Returning Officer.

Furnishing of wrong or incomplete information shall result in the rejection of

nomination papers, apart from inviting penal consequences under the Indian Penal
Code. The 2004 General Elections were conducted under these rules.

The above order is an effective step to make democracy healthy and unpolluted.
Citizens have every right to know about the persons whom they prefer as their
representatives.

The EC has directed all Returning Officers to display the copies of nomination papers
and affidavits filed by candidates to the general public and representatives of print and
electronic media, free of cost.

With a view to prevent impersonation of electors at the time of voting and to

eliminate bogus and fictitious entries into electoral rolls, EC took a bold step in 1998
to take a nationwide program for the ‘computerisation’ of electoral rolls.The printed
electoral rolls, as well as CDs containing these rolls, are available to the general
public for sale national and State parties are provided these free of cost after every
revision of electoral rolls.The entire country’s electoral rolls are available on its
website. Karnataka became the first State to prepare electoral rolls with the
photographs of voters in the 2008 elections.

In an attempt to improve the accuracy of the electoral rolls and prevent electoral
fraud, the Election Commission in August 1993 ordered the issuance of electors’
photo identity cards (EPICs) for all voters.

During the 2004 Assembly elections, it was mandatory for people possessing EPICs
to furnish it at the time of voting. The distribution of EPICs, on the part of Election
Commission, was a major step to reduce electoral malpractices. Only genuine voters
were listed in the rolls with the issuance of voter identity cards.
For preventing persons with criminal background from becoming legislators, the
Commission has made a proposal for disqualifying (from contesting election) a
person against whom charges have been framed by a Court for an offence punishable
by imprisonment of 5 years or more. There is a provision of disqualification once a
person is convicted and sentenced to imprisonment of two years or more. The
Commission’s proposal is for disqualification even prior to conviction, provided the
court has framed charges. As a precaution against foisting false cases on the eve of
election, it has been suggested that only those cases in which charges are framed six
months prior to an election should be taken into account for that election. 12

In Common Cause (A registered society) v. Union of India and Others13, the court
dealt with election expenses incurred by political parties and submission of return and
the scope of Article 324 of the Constitution, where it was contended that cumulative
effect of the three statutory provisions, namely, Section 293-A of the Companies Act,
1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation
of the People Act, 1951, is to bring transparency in the election funding and people of
India must know the source of expenditure incurred by the political parties and by the
candidates in the process of election. It was contended that election in the country are
fought with the help of money power which is gathered from black sources and once
elected to power, it becomes easy to collect tons of black money, which is used for
retaining power and for re-election and that this vicious circle has totally polluted the
basic democracy in the country.

4. RECENT DEVELOPMENTS.

The Election Commission's new mega Electors Verification Programme (EVP),

which seeks to update electoral rolls through crowd sourcing, is set be to launched on
September 1 across the country, officials said on Saturday. Under the programme, a
voter from each family will get a username and password, allowing a person to upload
all documents related to electoral registration and tag similar details about his or her

12
supra note 11.
13
Common Cause v. Union of India, (1996) 2 SCC 752.
family members, Delhi Chief Electoral Officer (CEO) Ranbir Singh said at a press
conference. 14

"These details will then be verified by block level officers (BLOs) and
therefore, it will save a lot of time. The idea is also to empower voters to
assess electoral roll details, self-authenticate and then get mistakes rectified,
if any."

It has also decided to revamp the voter identity cards across the country to bring in
uniformity and the exercise has already commenced in Karnataka. Citizens who
already have a black and white card and want to get a new Voter ID can expect to see
the new card within a minimum of 15 days. 15

The 15th Law Commission Report16 suggests ways to broaden the powers of the
election commission such as the Article 324(5) of the Constitution should 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. A new sub-clause
(2A) should be added 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.

The Model Code of Conduct came into force on March 10, 2019, when the election
schedule was announced, and operated till May 23, 2019, when the final results were
announced.

14
“Election Commission's mega Electors Verification Programme to be launched on September 1”,
The Economic Times, 31 August 2019.
15
Nivedh Utaih P, “Now you can have voter ID in colour”, The Hindu, 1 September 2019.
16
The Law Commission of India. Two Hundred and Fifty Five Report on “Electoral Reforms.”
5. BIBLIOGRAPHY.

Cases:

1. Common Cause v. Union of India, (1996) 2 SCC 752.

2. AIADMK v. State Election Commissioner, 2007 SCC OnLine Mad 49.
3. NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC
64.
4. TN Seshan v. Union of India, (1995) 4 SCC 611.

Statues:

1. The Presidential and Vice-Presidential Elections Act, 1952 (Act No. 31 of

1952).
2. The Constitution of India, 1950, §324.
3. The Representation of the People Act, 1951.

Articles:

1. Election Commission's mega Electors Verification Programme to be launched

on September 1”, The Economic Times, 31 August 2019.
2. Nivedh Utaih P, “Now you can have voter ID in colour”, The Hindu, 1
September 2019.
3. Bose, B.P.C., and M.V.S. Koteswara Rao. “Criminalisation Of Politics : Need
For Fundamental Reform.” The Indian Journal of Political Science, vol. 66,
no. 4, 2005, pp. 733–754.
4. Jain, Subhash C. “State Funding Of Elections And Political Parties In
India.” Journal of the Indian Law Institute, vol. 43, no. 4, 2001, pp. 500–511.
5. Katju, Manjari. “Election Commission and Changing Contours of
Politics.” Economic and Political Weekly, vol. 44, no. 16, 2009, pp. 8–12.