Law and You > Constitutional Law > Election Commission of India (Article 324)
As per the Constitution India is a representative democracy which has opted for a Parliamentary Form of Government. Under this system, people elect their representatives both for the state legislatures as well as for Parliament through exercising their right to vote during periodic elections. Thus, the success of democracy depends on a successful election mechanism. For a healthy and functioning democracy, it is essential that there is an independent institution to conduct and supervise the election procedure. The founding fathers of the Constitution took solemn care to devote a special chapter to elections in Part XV of the Constitution. The Constitution has provided for the establishment of an independent Election Commission. To ensure free, fair and impartial election. It is a body autonomous in character and free from political or executive influence. In this article let us discuss constitution, functions, powers of Election Commission of India.
The Election Commission of India, abbreviated as ECI is an autonomous constitutional authority responsible for administering Union and State election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country. Article 324 of the Constitution, provides for the appointment of an election commission to superintend, direct and control elections. It was established on January 25, 1950.
Article 324 of the Constitution of India:
Superintendence, Direction, and Control of Elections to be Vested in an Election Commission:
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) 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.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided 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:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
Functions and Powers of Election Commission of India:
According to Article 324(1) of the Indian Constitution, the power of the Election Commission 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.
Note: The Election Commission is not concerned with the elections to panchayats and municipalities in the states. For, this the Constitution of India provides for a separate State Election Commission.
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 recognize 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 itโs 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. 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.
Composition of Election Commission: of India
According to Article 324(2) of the Indian Constitution, 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.
According to Article 324(3) of the Indian Constitution, when any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
According to Article 324(4) of the Indian Constitution, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). The Regional Commissioners may be appointed before each general election of Lok Sabha and State Legislative Assemblies and also the biennial election to the State Legislative Councils.
Appointment & Tenure of Election Commissioners:
According to Article 324(5) of the Indian Constitution, 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.
They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
The conditions of CEC’s service cannot be varied to his disadvantage after appointment. He can, therefore, discharge his functions without fear or favour.
For the first time, two additional Commissioners were appointed by the president on 16th October 1989 to cope up the increased work of election commission by lowering the age from 21 to 18 years but they had a very short tenure till 1st January 1990.
Again, on 1st October 1993, two Election Commissioners were appointed in addition. Since then and till today, the Election Commission has been functioning as a multi-member body consisting of three election commissioners.
Removal of the CEC and Election Commissioners:
The Chief Election Commissioner can be removed from office only through impeachment process by Parliament. The CEC can be removed only on the same grounds and in the same manner as a judge of the Supreme Court. An Election Commissioner or a Regional Commissioner can be removed by the President only on the recommendation of the Chief Election Commissioner.
Case Laws
In S.S. Dhannoa v. Union of India, AIR 1991 SC 1745 case the Supreme Court observed that it is necessary to prevent the concentration of power of the commission in a single individualโs 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. 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. But, the Supreme Court held that Election Commissioners cannot be placed at par with the Chief Election Commissioner in terms of power and authority.
On October 2, 1993, the Government issued an Ordinance (which is now an Act, the Election Commissioners (Condition of Service) Amendment Act, 1993) and converted the one man Election Commission into a multi-member Commission by appointing two persons as Election Commissioners. The Ordinance provides specifically that the decision of three members Election Commission “shall as far as possible, be unanimous”. But, in case of difference of opinion between the Chief Election Commissioner and other Election Commissioners, the matter “shall be decided according to the opinion of the majority”. The Ordinance has amended the law and equated the two Election Commissioners with the CEC in respect of salary and other terms of service.
In T.N. Seshan v. Union of India, (1995) 4 SCC 611 case,a five-judge Constitution Bench of the Supreme Court unanimously upheld the validity of the Act equating the status, power. and authority of two Election Commissioners with that of CEC The Chief Election Commissioner Mr. T.N. Seshan had challenged the validity of the Ordinance and the Act on the ground that it was arbitrary, unconstitutional and void. Delivering the judgment of the Court, held that the CEC does not enjoy a status superior to other ECs. Although there are two differences between the service conditions of CEC and other ECs such as the CEC can only be removed from his office in the like manner and on the like ground as a judge of the Supreme Court and that conditions of service cannot be varied to the disadvantage of the CEC after his appointment, while other ECs can be removed on the recommendation of the CEC, but that is not an indicia for conferring a higher status on CEC. Article 324 envisages a permanent body to be headed by a permanent incumbent namely, the CEC. Court also opined that the scheme of Article 324 clearly provides for a multi-member body comprising the CEC and the Election Commissioners (ECs).
In Union of India v. Association for Democratic Reforms, 2 May, 2002 case, 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.
In the case of A.C. Jose v. Sivan Pillai, AIR 1984 SC 921 case, 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 Ashok Pandey v. Election Commission of India, 2 August, 2019case, the Court held thatthe power to issue guidelines for transfer and posting or direct transfer of a particular officer is an implied power vested in the Election Commission and has to be necessarily read in power conferred upon it by Article 324 of the Constitution of India.
Important Case Laws:
| Title of Case | Judgment passed by |
| N. P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency | Supreme Court of India |
| Election Commission of India Vs. Saka Venkata Rao | Supreme Court of India |
| Brundaban Nayak Vs. Election Commission of India & Another | Supreme Court of India |
| Meghraj Kothari Vs. Delimitation Commission & Others | Supreme Court of India |
| Pashupati Nath Singh Vs. Harihar Prasad Singh | Supreme Court of India |
| Sadiq Ali & Another Vs. Election Commission of India & Others | Supreme Court of India |
| Smt. Indira Nehru Gandhi Vs. Shri Raj Narayan | Supreme Court of India |
| All Party Hill Leaders๏ฟฝ Conference Vs. Captain W.A. Sangma | Supreme Court of India |
| Narendra Madivalapa Kheni Vs. Manikarao Patil & Others | Supreme Court of India |
| Mohinder Singh Gill & Another Vs. Chief Election Commissioner & Others | Supreme Court of India |
| B. Sundra Rami Reddy Vs. Election Commission of India | Supreme Court of India |
| Shri Kihota Hollohon Vs. Mr. Zachilhu & Others | Supreme Court of India |
| Rama Kant Pandey Vs. Union of India | Supreme Court of India |
| Lal Babu Hussain & Others Vs. Electoral Registration Officer | Supreme Court of India |
| T.N. Seshan Vs. Union of India & Others | Supreme Court of India |
| Janata Dal (Samajwadi) Vs. Election Commission of India | Supreme Court of India |
| Common Cause, A Registered Society Vs. Union of India & Others. | Supreme Court of India |
| Jyoti Basu & Others Vs. Debi Ghosal & Others | Supreme Court of India |
| Km. Shradha Devi Vs. Krishna Chandra Pant & Others | Supreme Court of India |
| Pashupati Nath Sukul Vs. Nem Chandra Jain & Others | Supreme Court of India |
| A.C. Jose Vs. Sivan Pillai & Others | Supreme Court of India |
| Election Commission of India Vs. State of Haryana | Supreme Court of India |
| Samarath Lal Vs. Chief Election Commissioner & Others | Supreme Court of India |
| (i) Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzaman & Others (ii) Election Commission of India Vs. A.K.M. Hassan Uzzaman | Supreme Court of India |
| Krishna Ballabh Prasad Singh Vs. Sub-Divisional Officer, Hilsa-cum-Returning Officer & Others | Supreme Court of India |
| Indrajit Barua Vs. Election Commission of India & Others | Supreme Court of India |
| Kanhiya Lal Omar Vs. R.K. Trivedi & Others | Supreme Court of India |
| Azhar Hussain Vs. Rajiv Gandhi | Supreme Court of India |
| Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi | Supreme Court of India |
| Election Commission of India Vs. Shivaji & Others | Supreme Court of India |
| Kanhaiya Prasad Sinha Vs. Union of India & Others | Patna High Court |
| N. Kristappa Vs. Chief Election Commissioner & Others | Andhra Pradesh High Court |
| P. Ravindra Reddy, P.Indrajit Reddy, P. Bayyapa Reddy Vs. Election Commission of India & Others | Andhra Pradesh High Court |
| Om Prakash Srivastava alias Babloo Srivastava Vs Election Commission of India & Others | Allahabad High Court, Lucknow Bench |
| Harbans Singh Jalal Vs. Union of India & Others | Punjab and Haryana High Court |
| Kotha Dass Goud Vs. The Returning Officer, 41-Nalgonda P.C. and Election Commission of India | Andhra Pradesh High Court |
| Arjun Singh Vs. The President, Indian National Congress | Election Commission of India |