ICFAI UNIVERSITY DEHRADUN

ASSIGNMENT WORK ON CONSTITUTIONAL

LAW

TOPIC - ELECTION COMMISION AND RECENT

CONTROVERCIES REGARDING IT

SUBMITTED TO:

HEMANT SINGH

SUBMITTED BY: Aditya Kumar

ENROLMENT NO. 16FLICDDNO1006
B.B.A LL.B 2nd year
 INTRODUCTION

India is a constitutional democracy with a parliamentary system

of government. The Election Commission of India (ECI) was
established under India's Constitution in 1950. The ECI's
constitutional authority includes preparing electoral rolls and
exercising control over elections to the national Parliament, to
the offices of the president and vice-president and to state
legislatures. The Constitution also provides for the appointment
of commissioners, the conditions of their tenure and removal
from office and the availability of staff for the ECI to carry out
its functions. The Constitution establishes the primacy of the
Chief Election Commissioner and provides the ECI with the
authority needed to carry out its mandate. The Constitution also
establishes voter entitlement on the basis of citizenship and age
and bars the courts from interfering in electoral matters.
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 in India, and
the offices of the President and Vice President in the country.
The Election Commission operates under the authority of
Constitution per Article 324, and subsequently enacted
Representation of the People Act. 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.

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http://www.elections.ca/content.aspx?section=res&dir=rec/tech/
comp&document=p5&lang=e
 STRUCTURE

Originally in 1950, the commission had only a Chief Election

Commissioner. Two additional Commissioners were appointed
to the commission for the first time on 16 October 1989 but they
had a very short tenure, ending on 1 January 1990. The Election
Commissioner Amendment Act, 1989 made the Commission a
multi-member body. The concept of a 3-member Commission
has been in operation since then, with the decisions being made
by a majority vote. The Chief Election Commissioner and the
two Election Commissioners who are usually retired IAS
officers draw salaries and allowances at par with those of the
Judges of the Supreme Court of India as per the Chief Election
Commissioner and other Election Commissioners (Conditions of
Service) Rules, 1992.
The Commission is served by its Secretariat located in New
Delhi. The Election Commissioners are assisted by Deputy
Election Commissioners, who are generally IAS officers. They
are further assisted by Directors General, Principal Secretaries,
and Secretaries and Under Secretaries.
At the state level, Election Commission is assisted by 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.
 REMOVAL OF CHIEF ELECTION
COMMISSIONER

The Chief Election Commissioner of India can be removed from

his office similar to the removal of a judge of the Supreme Court
of India which requires a resolution passed by the Parliament.
The chief election commissioner (CEC) can be removed from
his office before the completion of his/her tenure through the
process of impeachment by the parliament.
In this process any of the two houses can start determining the
charges against the CEC. After the charges are determined, it
should be passed by 1/4th of the member of that particular house
and then a notice will be sent to the CEC.

After 14 days the charges are taken up for the consideration and
then the resolution to impeach must be passed by 2/3rd majority
of the house. During this period the CEC has the right to defend
himself/herself through a counsel.

Once it is passed with the required majority, it goes to the other

house which investigates the charges and there also the
resolution of impeachment must be passed by the same majority.
If the other house also passes the resolution by 2/3 majority the
CEC stands impeached and is considered to have vacated his/her
office from the date the resolution stands passed
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http://www.indiastudychannel.com
 FUNCTIONS

According to article 324 (1) the election commission performs

the following functions:
The superintendence, direction and control of the preparation of
the electoral rolls and also the conduct of the elections to the
Parliament, State Legislatures and to the offices of President and
the Vice President.
There shall be one general electoral roll for every territorial
constituency. No person shall be ineligible for inclusion in any
such roll on grounds only of religion, caste, sex, race or any of
them. The elections to the Parliament and State Legislatures are
to be held on the basis of adult suffrage. Every person who is a
citizen of India and who is not less the 18 years of age is not
otherwise disqualified under this Constitution or any law made
by Legislature on the ground of non-residence, unsoundness of
mind, crime, or illegal practice, has a right to be registered as a
voter.
It is the prerogative of the government to choose the timing of
the general elections. The Election Commission’s role is to take
over the actual conduct and supervision of the elections. The
duty and power to initiate elections lies with the government.
This is the view expressed by the Supreme Court in a recent case
while hearing a public interest litigation petition by the J. & K.
Panther’s Party Mr. Bhim Singh challenging the election
commission’s order rejecting the request of the government to
hold J. & K. State Assembly elections before December 20,
1995.

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Refer Constitutional Law of India by D.r. J.N Pandey
 MODERNISATION

The Election Commission had tried to bring improvements in

election procedures by the introduction of Electronic voting
machines or EVMs. It was thought that these would reduce
malpractices and improve efficiency. It was first tried out on an
experimental basis in the state of Kerala for the 1982 Legislative
Assembly Elections. After a successful testing and the legal
inquiries, the Commission took the decision to begin the use of
these voting machines. The Election Commission launched a
web site of its own on 28 February 1998 in order to provide
accurate information, management, administration and instant
results of the elections. In an effort to prevent electoral fraud, in
1993, EPICs or Electors Photo Identity Cards were issued,
which became mandatory by the 2004 elections. However ration
cards have been allowed for election purposes in certain
situations. In 1998, the Commission decided on a programme
for the 'computerization' of the electoral rolls. The introduction
of Voter-verified paper audit trail (VVPAT) in eight Lok Sabha
constituencies in 2014 Indian General Elections was a big
achievement for the Election Commission. This Voter-verified
paper audit trail (VVPAT) system was first used with EVMs in a
by-poll in September 2013 in Noksen (Assembly Constituency)
in Nagaland. And eventually in all elections from September
2013 onwards in various Legislative elections in the country.
In 2014, None of the above or NOTA was also added as an
option on the voting machines which is now a mandatory option
to be provided in any election. The specific symbol for NOTA, a
ballot paper with a black cross across it, was introduced on 18
September 2015. The symbol has been designed by National
Institute of Design, Ahmadabad. With the Bihar Legislative
Assembly election, 2015 , the state became the first to have
photo electoral rolls, with photographs of the candidates on the
EVMs.
 PROS AND CONS OF EVM’S
Pros:

 The cost per EVM was Rs.5, 500/- at the time the machines
were purchased in 1989–90. Even though the initial
investment was somewhat heavy, it was more than
neutralized by the savings in the matter of production
and printing of ballot papers in lakhs, their transportation,
storage etc., and the substantial reduction in the counting
staff and the remuneration paid to them.
 The vote-counting is very fast and the result can be
declared within 2 to 3 hours as compared to 30–40 hours,
on an average, under the ballot-paper system. The Control
Unit of the EVM can store the result in its memory for 10
years and even more. So recounting can also be done in
case a court in India orders it.
 Bogus voting can be greatly reduced by the use of EVMs.
In case of ballot paper system, a bogus voter can stuff
thousands of bogus ballot papers inside the ballot box. But,
an EVM is programmed to record only five votes in a
minute. This will frustrate the bogus voters. Further, the
maximum number of votes that can be cast in a single
EVM is 3840, and this is sufficient considering the fact that
typically no booth in India has more than 1400 voters
registered.
 Invalid votes can be reduced by use of EVMs. With EVMs,
there are much less incidences of invalid votes, i. e. less
than 0.02%. When ballot system was used in India, the
 number of invalid votes was allegedly more than the
winning margin between the candidates in every general
election.
 For each national election alone it is estimated that about
10,000 tons of ballot paper (roughly 200,000 trees) would
be saved. So basically what we are seeing is an enormous
positive environmental impact of EVMs.

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https://www.quora.com/What-are-the-pros-and-cons-of-
electronic-voting-systems-vs-manual-balloting
Cons:
Perhaps the biggest problem with the EVM's is that it
compromises on ballot secrecy in one case, when a voter tries to
use his/her Right to No Vote. Right to No Vote was first brought
in India in 1961. It was to facilitate the expression of the
sentiment of the voter in case he did not find any candidate
suitable enough to vote, so that his choice of withholding his
vote is recorded officially and thereby reducing the chances of
bogus votes given in his name. In the days of paper ballot, this
right was exercised by the voters themselves by stamping on
more than one candidate, thus officially wasting a ballot. You
could still keep your preference a secret.
Things changed with EVM. There was no mechanism provided
to exercise the Right to No Vote. So in order for a voter to do
that, (s)he has to explicitly tell the Presiding Officer in a polling
booth, in front of everyone, about his/her wish to not vote for
anyone. It is a cumbersome process wherein the Presiding
Officer will then make an entry against your name in the
electoral roll and you have to countersign it.

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https://www.quora.com/What-are-the-pros-and-cons-of-
electronic-voting-systems-vs-manual-balloting
 CONTROVERCIES
1. The Aam Aadmi Party on Tuesday reiterated its accusation
against the Bharatiya Janata Party had rigged the Electronic
Voting Machines used in Delhi’s civic polls to win the local
body elections. In a special session of the Delhi Assembly,
AAP leader Saurabh Bhardwaj conducted a demonstration to
suggest how easily a manipulated EVM could pass a mock
test.
2. The EVM controversy has been making headlines since
March 11, the day the election results were announced in five
states. Bahujan Samaj Party leader Mayawati had then alleged
that the voting machines used during the Uttar Pradesh
Assembly elections in February-March had been tampering
with to favor the BJP.
Soon after she made the allegations, AAP National Convenor
and Delhi Chief Minister Arvind Kejriwal joined the chorus of
Opposition party leaders claiming that the BJP was tampering
EVMs. Although they have been demanding that the Election
Commission revert back to using the paper ballot system to hold
polls, the EC has maintained that its EVMs are tamper-proof.

3. Election Commission ‘delaying poll announcement for BJP in

Gujarat.
When the Gujarat election dates were not announced along with
Himachal Pradesh, Congress targeted the Election Commission,
alleging that the body was deliberately “delaying” the
announcement to allow more time to the ruling BJP government
to offer sops to voters before the model code of conduct kicked
in. Prime Minister Narendra Modi responded to the allegations
by saying that the Congress had no right to question the
constitutional body.
Chief election commissioner AK Joti defended the decision to
announce Gujarat’s dates later, saying that factors such as
snowfall in Himachal Pradesh, flood relief efforts in Gujarat and
festivities played a role in the decision.

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1. https://www.livemint.com/Opinion/FDVSv3lwp2GyylS8B
Y4PfK/In-defence-of-the-Election-Commission.html
2. https://www.hindustantimes.com/assembly-
elections/gujarat-elections-delayed-date-announcement-to-
hardik-patel-video-5-controversies/story-
LuaQU1rcNnRtBxuriyBRIL.html
3. https://www.news18.com/news/india/all-you-need-to-
know-about-the-controversy-around-evm-hackathon-
1372893.html
 CASES

1. S.S. Dhannoa V. Union of India AIR 1991 SC 1745

The S.C held that Election Commissioners cannot be

placed on a par with the Chief Election Commissioner in
terms of power and authority. The court dismissed the
petition of M.r. Dhanoa challenging his removal from the
post. Holding that the removal of the two E.Cs. were ‘not a
case of premature termination of service’ but it was a case
of the abolition of the posts with termination of service as a
consequence. Hence the termination of service was not
open to challenge on ground of illegality. The court said
that the protection available to the C.E.C was not available
either to the Election Commissioners or Regional
Commissions and therefore their conditions of the service
can be varied even to their disadvantage.

2. In A.C. Jose v. Sivan Pillai AIR 1984 SC 921

An appeal was filed by the applicant, who was a candidate
for an Assembly Constituency in Kerala but was not
elected challenging validity of the order of the Election
Commission directing casting of ballot by machines in
some polling stations. Out of 84 polling stations votes in 34
polling stations were cast manually according to the
conventional method as provided in the conduct of Election
 Rules, 1961, made under the Representation of the People
Act, 1951, and in 50 polling stations votes were cast by
means of electronic machines, under the directions of the
Election Commission by virtue of a notification published
under Art. 324. The government had refused permission to
use voting machines. The court held that the order of the
Election Commission directing casting of votes by
mechanical process in some polling stations was without
jurisdiction and hence unconstitutional.

3. Ponnu Swami v. Returning Officer, Namakal AIR 1962

SC 64
The appellant’s nomination paper for the State Assembly
was rejected by the Returning Officer. He then moved the
High Court under Art. 226 to quash the order of the
Returning Officer and to direct the inclusion of his name in
the list of valid nominations. The High Court dismissed the
writ-petition on the ground that under Art. 329(b) the court
had no jurisdiction to interfere with the order of the
Returning Officer. The appellant went in appeal to the
Supreme Court. The Supreme Court held that the word
“election” in Article 329 connotes the entire procedure to
be gone through to return the candidate to the legislature,
and bars the jurisdiction of the High Court under Article
226 as well. Acceptance or rejection of the nomination
paper is included in the term “election”. The matter can
 only be challenged by the election-petition before the High
Court after the election is over.
4. In Venkatachalam v. A. Swamickan AIR 1999 SC 172
The Supreme Court held that Art.329 (b) which bars
interference of court in electoral matter does not come into
play in a case which falls under Arts. 191 and 193 which
provides for disqualification of membership and penalty for
sitting and voting when disqualified and the whole of
election process is over. In such case the High Court can
interfere under Art. 226 and declare that he was not entitled
to sit in the State Assembly.

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Refer Constitutional Law of India by D.r. J.N Pandey