Role of Election Commission under Representation of People Act

INTRODUCTION

Election is formal process in which people vote to choose a person for an authoritative position or an office. “Under Representation of the people Act 1951”, elections  means choosing people to fill a seat or seats in the House of Parliament or House of legislature of a state. In India election commission is responsible for conducting elections within in the territory of   India. The election commission was established in the year the main objective of the election commission is to conduct fair and unbiased election conducted at various levels of central and the state governments.

By virtue of Article 324 of the constitution of Indian, election commission has direct and absolute control over the entire election process whether being parliament election or state legislative elections or president election or vice president etc. Thus, the election commission is a self governing body constituted by constitution of India. Now the question arise that what is role and powers of the election commission. Now we will discuss in detail the responsibilities and powers conferred to election commission under Representation of People Act.

COMPOSITION OF ELECTION COMMISSION

The Constitution of India provide for composition of Election Commission for regulating electoral duties and for conducting fair and transparent elections in India. Article 324(2) says that the Election Commission shall consist of a Chief Election Commissioner and other commissioners. The number of election commissioners may be fix by the president time to time.  Article 324(2) is reproduced below-

The Election Commission shall consist of the 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 shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”[1]

Clause (3) of  the Article 324 empowers the Chief Election Commissioner to act as Chairman of the Election Commission at the time of appointment of other commissioner. Article 324(3) is reproduced below-

“When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission”[2]

ROLE AND POWERS OF ELECTION COMMISSION

The powers of the Election Commission enshrined under Article 324(1) of the Indian Constitution are augmented by the Representation of the People Act 1950 and Representation of the People Act 1951.

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Where in  case a person is found guilty of corrupt practices by order under Section 99, such cases are referred to the Election Commission under Section 8A of the Representation of the People Act 1951. Such reference is made with a view to ascertain opinion of the commission as to whether his disqualification form contesting election is justified or not. It is binding on the president to consider the opinion of  the commission. Section 8A(3) of the ROP Act is reproduced below-

Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under subsection (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.”[3]

By virtue of Section 10A the ROP Act the Election commission has been empowered to disqualify a candidate form contesting election who failed to supply accounts of election expenses within the time period stipulated by the Act. Such disqualification is supported by the situation where the  such person is not able to give reasonable justification for is failure to do so. The commission can disqualify such candidate by publishing an order to that effect in the Official Gazette. Such person shall be disqualified from contesting election till three years from the date of order passed by commission. Section 10A of ROP Act is reproduced below-

“If the Election Commission is satisfied that a person— (a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.”[4]

The Election commission has one of the most significant role to play where the general elections of parliament has to be conducted after the expiration of existing duration of the parliament. For this purpose, Section 14 of the ROP Act possess responsibility on commission to recommend dates on which election is to be conducted and such date or dates shall be published by way of notification in the official Gazette. Such notification is to be published by president as per recommendations of the commission.

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In the “Gujarat Assembly Election Matter Supreme Court of India said, parliament is empowered to frame as regards conduct of elections but conduct of elections is sole responsibility of Election Commission. Plenary powers of Election Commission cannot be taken away by law framed by parliament and if Parliament makes any such law it would be repugnant to Article 324.”[5]

ROP Act provides for “Delegation of functions of Election Commission” . According to Sec 19A of ROP Act 1951, the functions of the commission provided under Indian Constitution, ROP Act 1950 and ROP Act 1951 in case of special or general directions, be performed also by “ Deputy Election Commissioner or by Secretory to the Election Commission”, on behalf of the commission.[6]

Apart from other functions the ROP Act also provides some “Quasi-judicial functions” of the Election Commission. Sec 29A of the ROP Act provides quasi-judicial functions which are to be performed by Commission. According to aforesaid provision, any association and body of  individual citizen who wants to calls themselves a political party must make an application to commissioner for its registration as political party, availing provisions of this act or for contesting elections as per the Act. The application shall be made in the manner as provided under sub-section (2) to (5) of Sec 29A of the ROP Act.

“Sub-Section (7) of the aforesaid provision provides that the commission shall consider all the material facts and shall provide opportunity of being heard to the representation of political party intending to get registered. After such consideration the commission shall decide whether to register such association  or not and shall also communicate its decision thereon. The decision of the commission shall be final”

In the Case of “Indian National Congress(I) Vs. Institute of Social Welfare” , the Supreme Court of held that-

“The Election Commission while exercising its power to register a political party under Section 29A of the Act, acts as quasi-judicially and decision rendered by it is a quasi-judicial order and once a political party is registered, no power of review having conferred on the Election Commission, it has no power to review the order registering a political party for having violated the provisions of the Constitution or for having committed breach of undertaking given to the Election Commission at the time of registration.”[7]

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In the case of “A.C. Jose Vs. Sivan Pillai” , the Supreme Court of India broadly justified the powers of the Election Commission regarding conduct of election. SC observed that :

“When there is no parliamentary legislation or rule made tinder the said legislation, the Commission is free to pass any orders in respect of the conduct of elections. Where there is an Act and express rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law in the matter of superintendence, direction and control as provided by Article 324.

Where the act or the Rules are silent the Commission has no doubt plenary powers under Art. 324 to give any direction in respect of the conduct election and where a particular direction by the Commission is submitted to the Government for approval as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.”[8]

 

 

[1] Constitution of India 1949

[2] Constitution of India 1949

[3] Subs. by  Act 40 of 1975, s. 2, for s. 8A.

[4]Sec 10A  Act 43 of 1951

[5] AIR 2003 SC 87

[6] Sec 19A Act 43 of 1951

[7] AIR 2002 SC 2158

[8] AIR  1984  SC 921

 

Author: Lalit Mohan,
Delhi Metropolitan Education,GGSIPU ( 4th Year )

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