Election Commission of India and it’s controlled autonomy
Author: Deepak Thakur,
3rd Year Student B.A. LL.B. (Hons.) ,
School of Law, CHRIST (Deemed to be University).
Abstract
The Election Commission of India is an autonomous body under article 324 part XV of the constitution. The commission is vested with the responsibility to conduct elections for the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. Thus, it becomes very import to make sure that the election commission is under no influence while discharging its duties.
To uphold the spirit of constitutionalism the commission must function without fear and favour. There have been instances in the past where the wisdom of the election commission was put into question by political parties and the citizens of the country.
Time and again, Political parties and the candidates have violated the model code of conduct and other rules and norms established by the commission. The election commission of India has become a toothless tiger that has no powers.
This article highlights how the autonomy of the commission can easily be influenced by the ruling party. The author has put forth the need to change the organizational setup of the commission. The author has also drawn an organisational comparison between the Election Commission of India and the Indian Judiciary.
The article contains an in-depth doctrinal analysis of the laws governing the Election Commission of India. The role of the judiciary has also been taken into consideration which has led to the strengthening of the election process in India.
Key words:Autonomy, Free and Fair Election, Constitutional body, Democracy, Organisational setup
Introduction
The Constitution of India provides for a democratic, republic which is strengthened by free and fair elections. The founding fathers of the Constitution took solemn care to devote a special chapter to elections niched safely in Part XV of the Constitution. The draft of Art 289 of the Constitution of India (which on adoption later became the present Art 324 in Part XV of the Constitution) was introduced in the Constituent Assembly on 15] une 1949 by Dr BR Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly and one of the chief architects of the Indian Constitution.
The hon’ble supreme court in the case of Indira Nehru Gandhi V/s. Raj Narayan[1]held Democracy to be a basic feature of the Constitution.
One of the most important features of the democratic polity is the elections at regular intervals. Elections constitute the signpost of the democracy; these are medium through which the attitudes, values and beliefs of the people towards their political environment are reflected. Elections are the central democratic procedure for selecting and controlling leaders. Elections are a form of a social contract between the citizens and the government. It symbolizes the sovereignty of the people and provide legitimacy to the authority of the government. Thus, free & fair elections are indispensable for the success of democracy.
The growth of democracy is only possible when people are entitled to participate in the democratic process of the country. According to Art. 326 of the constitution 1950, elections in India are conducted on the basis of the “Adult Suffrage”, which is the most important pillar of the democracy.
The Supreme Court in TN Seshan v Union of India and Ors[2] observed that the democracy being the basic feature of our constitutional set up, there can be no two opinions about free and fair elections. Which will guarantee the growth of a healthy democracy in the country. ln order to ensure the purity of the election process, the Constitution-makers constituted 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. This objective is thus achieved by the setting up of an Election Commission, as a permanent body, under Art 324(1) of the constitution.
To determine the whether the Election Commission of India has met with the expectation of the Constitution makers, we need to have a throw analysis of the structure of the election commission of India and its comparison with other independent constitutional institutions.
Comparison between the Structures of the Election commission and the Indian judiciary.
Part Xv, Article 324 of the constitution provides for the Election commission of India. It provides that the Superintendence, direction, and control of elections shall be vested in an ElectionCommission.
The Election Commission shall have a Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners. The Chief Election Commissioner shall will be the Chairman of the Election Commission.
The Election Commission shall have a Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners. The Chief Election Commissioner shall will be the Chairman of the Election Commission.
This article gives powers to the Parliament to make laws on the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners. It Provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. It also states that the other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
The Constitution makers has given the power to the President to decide, whether the Election Commission should be a single member body or a multi—member body, depending upon the exigencies of work in the Commission. Since, under the Constitution, the President functions on the aid and advice of the council of ministers, in effect, it is the council of ministers headed by the Prime Minister which ultimately decides about the composition of the Election Commission.
At time of inception the Election Commission has worked as a single member body consisting only the Chief Election Commissioner. However, on 7 October 1989, the President, in exercise of the powers under art 324(2), decided to make the Election Commission a multi—member body, which includes a Chief Election Commissioner and other election commissioners. Further the President made rules to regulate the service and tenure of office of the election commissioners. These conditions laid down, among other things, that an election commissioner shall hold office for a term of 5 years or 65 years whichever is earlier.
The commission presently consists of a Chief Election Commissioner and two Election Commissioners, appointed by the president.
The Constitution does not prescribe any qualifications, academic or otherwise, for appointment to these offices. However, by convention, only senior civil servants, either serving or retired, of the rank of the cabinet secretary or secretary to the Government of India or of an equivalent rank have been appointed as the Chief Election Commissioner and election commissioners so far.
Whereas the Judges of the High Court and the Supreme court are appointed under the article 217 and 124 of the constitution respectively.
For a person to become a J
udge of the Supreme court. The candidate should be an Indian citizen, who has held the office of a high court judge for the minimum period of 5 years and in the opinion of the President, the candidate should be a distinguished jurist.
udge of the Supreme court. The candidate should be an Indian citizen, who has held the office of a high court judge for the minimum period of 5 years and in the opinion of the President, the candidate should be a distinguished jurist.
The appointment of the Judges is done by the Collegium system. Chief Justice of India along with the four senior judges of the Supreme court decides on the merits of the candidates who can be elevated to the supreme court from the High Courts.
The decision of the collegium is binding on the government[3]. Government plays a mere persuasive role in the appointment if the Judges.
It is prima facie evident that the Judiciary has a greater autonomy as compared with the election commission.
Central government plays a crucial role in the appointment of the election commissioners. As per the article 74(1), the President of India has to work within the aid and advice of the Council of minister headed by the Prime minister. Therefore, the ruling party in the union government can easily control the election commission by appointing officials who favour them.
Under article 324 of the constitution states, it is only the Chief election commissioner who enjoys the privilege as the Judge of the supreme court. Whereas the other election commissioners along with the regional election commissioners can be removed by the President after consulting the Chief election commissioner.
In Bhagwati Prashad Dixit Ghorewala v. Rajiv Gandhi[4], it was contended that the Chief Election Commissioner is placed at par with a judge of the Supreme Court in the matter of his removability from office under the Constitution, for his appointment also he should possess qualifications similar to that of a judge of the Supreme Court.
A Division Bench of the Supreme Court in the case of SS Dhanoa v Union of India and Ors[5] held, on merits, that there was no need for the posts of the election commissioners `at the time the appointments were made, and that in the absence of a clear definition of their role in the Commission, particularly, vis-a-vis the Chief Election Commissioner, the abolition of the posts, far from striking at the independence of the Commission, paved the way for its smooth and effective functioning. The Supreme Court further observed that the creation and abolition of posts is the prerogative of the executive, and art 324(2) leaves it to the President to fix and appoint such number of election commissioners as he may from time to time determine. The power of the President to create the posts is unfettered, so is his power to reduce or abolish them. With the abolition of the posts, the service rules pertaining to those posts also ceased to have effect and, therefore, the petitioner could not validly claim to continue for the full tenure as fixed by those service rules.
This indicates the amount of interference the Central government can have in the working of the Election commission. The President is bound by the aid and advises of the Council of the minister and if the Chief Election Commissioner is also directly influenced by the central government, the central government to remove any election commissioner or the officer working for the election commission at any given time. Whereas the judges of the Supreme Court and the High Courts can only be removed by the prosses of impeachment conducted by the parliament and the state assemblies respectively.
Dependence on the Central Government for administrative expenditure and execution
The Administrative expenditure of the Election Commission is not a ‘ch
arge’ on the Consolidated Fund of India, and is a voted expenditure. The Commission has time and again proposed that its administrative expenditure should also be a `charge’ on the Consolidated Fund of India, like the expenditure of some other constitutional authorities, namely the Union Public Service Commission and the Comptroller and Auditor- General of India. This proposal did not find favour with the Goswami Committee on Electoral Reforms in 1990. However, the government subsequently accepted the Commission’s proposal and introduced a Bill titled the Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill 1994, in the House of the People, but it lapsed without being passed on the dissolution of that House in 1996. Thus, the expenditure of the Commission continues to be voted by Parliament, despite the reiteration of its proposal by the Election Commission from time to time and in its latest proposals in July 2004.
In the case of Judiciary most of its expenditure is a charge on the Consolidated fun of India and rest is levied on the union budget. This ensure the judiciary to be an independent body with minimal interference by the executive.
In the case of AC Jose v Sivan Pillai and Ors[6]the Supreme Court, held that when there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any order in respect of the conduct of elections, but where there is an Act and express rules made there under, it is not open to the Commission to override the Act or the rules, and pass orders in direct disobedience to the mandate contained in the Act or rules.
Very often we have seen pollical parties violating the rules of the election but due to lack of independent execution mechanism these rules are yet to be implemented in true sense. Even the dependence of the election commission on the central government for monitory aid makes it disarmed to execute its functions independently.
The election commission is even dependent on the Union Ministry of Home Affairs for the security Forces at the time of elections. Before every election the Election commission submits a report to the Union Home Ministry for the deployment of the security forces however the report submitted by the Election commission is only of a persuasive value, the acceptance of the proposal rests with the ministry.
Where in under article 141 and 142 of the constitution, law declared by the Supreme Court is the law of the land and it is binding on all the lower courts, Government officials and the citizens. Any violation to the judgement or the order of the Supreme Court will amount to contempt proceedings and the offender shall be punished accordingly. Therefore, this makes judiciary above the executive, where the judiciary can direct the executive to act in furtherance of the constitutional sprit. The directions of the Supreme court are binding. The central government cannot reject the orders and judgements of the court.
Conclusion
Over the years, the Election Commission has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the EC, deserves credit for conducting elections in a free and fair manner. However, our system is still plagued by many vices. To win votes, political parties’ resort to foul methods and corrupt practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant politicians who transgress and violate the electoral laws. There should be change in the foundation of the of the election commission. The Election officer should be given security over the removal from the office. The Appointment of the election Commissioners along with the chief election commissioner shall be more independently done. There shall be a committee framed where representatives from al the constitutional institutions are given equal representation and only after having a unanimous decision by all the members the Chief Election commissioner shall be appoint along with the other Election Commissioners.
Our election commission tries its best to weed out the virus of malpractices. It is optimistic of strengthening and improving the working of democracy through free and fair elections. It has always devised better systems and is using advanced scientific technologies for maintaining the high reputation of the Indian elections. However, the success of reforms will largely depend upon the will of the political parties to adhere to and implement such reforms. An independent media and an enlightened public opinion have no substitute in pushing through reforms. If people vote according to their convictions and punish those who infract the rules, corrupt practices will automatically disappear. And this will go a long way towards enabling democracy t
o flourish and grow to its full capacity
[1] 1975 AIR 865
[2] (1995) 4 SCC 611
[3] Supreme Court Advocates-onRecord Association v. Union of India (2016) 4 SCC 1
[4] AIR 1986 SC 1534
[5] AIR 1991 SC 1745
[6] AIR 1986 SC 1534
