Election Commission And Electoral System In India
India is a democracy and as such most of important positions under the Indian Polity including that of the President, Member of Parliament, Member of State Legislatures etc. are filled by elections. Impartial and fair elections are critically important for functioning of a democracy.
The Constitution has incorporated provisions from Article 324 to 329 related with election.
What are functions of Election Commission ?
Article 324 provides for superintendence, direction, and control of elections by Election Commission.
Article 324 (1) provides that the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to the Parliament and to the Legislature of every state and of elections to the offices of President and Vice President shall vest in the Election Commission.
The Supreme Court in various judgments have held that powers of the Election commission under Article 324 (1) is comprehensive and operates in areas left unoccupied by legislation and words “superintendence” “direction” and “conrol” have to be read in broadest terms.
Article 324 (1) has to be read with Representation of People Act, 1950 and 1951. Where law have been made by Parliament, the Election Commission does not have discretion. Further, the Election Commission while taking a decision has to follow principle of natural justice.
What is constitution of Election Commission ?
Article 324 (2) provides that the Election Commission consists of the Chief Election Commissioner and such other Chief Commissioners as the President time to time fix and appointment of Chief Election Commissioners and other commissioners, subject to law made by parliament, will be made by the President.
Article 324 (3) provides that when any other commissioners are appointed, the Chief Election Commissioner acts as Chairman of the Election Commission.
Election Commission used to have only Chief Election Commissioner. For the first time two additional members were appointed on 16th October, 1989, which continued till only 1st January, 1990.
Again, the President issued ordinance for appointment of two additional members in 1993. This ordinance was challenged in T N Session Chief Election Commissioner of India Vs. Union of India (1995) 4 S.C.C. 611). The ordinance issued by the President was held valid by the Supreme Court.
The present structure of Election Commission was challenged in Anoop Baranwal Vs. Union of India (WP (C) 104/2015). It was argued that Election Commission was not functioning independently as members are appointed by executive. No law has been made by Parliament in respect of appointment of Chief Election commissioner and other members. The Supreme Court directed for appointment of Chief Election Commissioner and Election Commissioners on recommendation of three members body consisting of the Prime Minister, Leader of Opposition and the Chief Justice of India. Relevant para are as under:
(1) We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.
(2) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.
(3) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.
The Parliament is in process of passing an Act in respect of appointment, conditions of service and term of office of Chief Election Commissioner and Election Commissioners.
What is procedure of appointment of Regional Commissioners ?
Article 324 (4) provides that 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 before each biennial election to the Legislative Council of each state having such council, the President may appoint after consultation with the Election Commission such Regional Commissioners as he may consider to assist the Election Commission in the performance of the functions conferred on the Commission.
What are conditions of service of Election Commissioners ?
Article 324 (5) provides that 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 determined by the President.
Chief Election Commissioner shall not be removed from his office except in manner and on grounds as a judge of the Supreme Court and conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
What is electoral roll for a territorial constituency ?
Article 325 provides that there shall be one general electoral roll for every territorial constituency for election to either House of Parliament or the House of either House of Legislature of a State. No person shall be ineligible for inclusion in any such roll or claims to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
What is adult suffrage ?
Article 326 provides for universal adult suffrage. The election to the House of the People and to the Legislative Assembly of every state has to be on the basis of adult suffrage. Every person who is citizen of India and who is not less than eighteen years of age on such date and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.