17 Election Commission of India

Dr. Sanjay Kumar

ELECTION COMMISSION OF INDIA

PART  ONE – The Constitutional Aspect

The biggest revolution since the Indian Independence was the adoption of universal adult franchise for elections to the Lok Sabha and the Legislative Assemblies of the States. For a newly independent country, with a population size of almost 42 crores with deep-rooted poverty and mass illiteracy, had the biggest challenge of governing the country. However the makers of the constitution had enough conviction of adopting the adult voting system of not less than 21 years, which was subsequently lowered to 18 years (subs. by the Constitution, 61st Amendment Act, 1988) during Rajiv Gandhi tenure. The Preamble of the Indian Constitution declares that India is a democratic republic. This implies that all citizens who are eligible to vote will have the right to participate in election. We all know that India is the largest democracy in the world and has a parliamentary form of government. Therefore the party securing the majority of seats in Lok Sabha or Legislative Assembly either on its own or with the support of other parties forms the Government. Since 1950 this rule and practice is going on uninterrupted except for a brief period of 1975 to 1977. This type of governance has become the most acceptable norm in the larger  world  today  but  for  some  exceptions.  To  vote  in  the  election  is  the  cherished  and fundamental right of each and every citizen of the country.

Election Commission of India is a permanent Constitutional Body. The Commission celebrated its golden jubilee in 2001. Article 324 to 329 of the Indian Constitution deals with election matters. But Article 324 is exclusively dedicated to the Election Commission only. This reads as follows:

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 of the Parliament and to the Legislature of every State and of the elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission.
2. The Election commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President 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 is 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 Commissions 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 the 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 the 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 Commissioners 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).

Until 1989, the Election Commission consisted of the Chief Election Commissioner only. On 16 October 1989 two Election Commissioners were appointed by a Presidential notification. In less than three months, however the notification was revoked and the Election Commission reverted back to its old position from 2 January 1990. The Supreme Court, in this regard, gave its decision that it was the sole discretion of the Executive only to decide upon the necessity of having other election commissioners and that the termination of the services of the two election commissioners was therefore held valid (Dhanoa vs. union of India, AIR 1991). Again, in October 1993 two election commissioners were appointed by an ordinance given the same position and status as the Chief Election Commissioner. It was also decided that the Commission will thereby act as a body which shall take decisions unanimously or by majority. The ordinance was challenged by the then CEC T.N. Shesan before the Supreme Court. But the apex court gave its verdict in the favour of the ordinance. The ordinance was assented by the President on 4 January 1994 with retrospective effect from 1 October 1993.

Article 325 lays down that there shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the either House of a State Legislature. No person is to be ineligible for inclusion in the electoral roll on grounds of religion, race, caste or sex, nor can anyone claim to be included in any special electoral roll for any such constituency on any such ground.

Article 327 vests legislative power in Parliament to make laws relating to all matters concerning elections to either House of Parliament or to the House of either House of a State Legislature, including the preparation of the electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

Article 328 confers powers on State Legislatures to make laws relating to elections to the House, or either House of a legislature of the States, including the preparation of electoral rolls.

Article 329 seeks to bar Courts in the interference of electoral matters. This reads as follows:-

(a) The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328 shall not be called in question in any court.

(b) No election to either House of parliament or to the House or either of the Legislatures of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.

      Under article 323(b) election petitions are at present heard by the High Court under the Representation of people Act, 1981 with a right of appeal to the Supreme Court. Special Election Tribunals having been abolished.

PART  TWO – Functions of Election Commission

The main functions of the Election Commission may be outlined as the following:–

(a) To prepare electoral rolls for the elections and its timely revision after every census and before every general election to the Lok Sabha and State Assemblies. One thing here is noteworthy that for the last three years from 2011 to 2013 the Election Commission has been waging a spiral campaign in the educational institutes for the registration of new voters who have completed 18 years of age on the 1stof January. Therefore 25th of January is being celebrated as the Voter’s Day all over the country. The campaign has also paid rich dividends in the recently concluded Assembly elections in 2012 in eight States, namely U.P, Punjab, Goa, Himachal Pradesh, Gujarat, Uttarakhand, Manipur and Tripura. During these elections voter’s turnout remained a solid 60 to 70 per cent.

(b) To supervise the machinery of elections throughout the country for a fair and free election.

(c) To notify the dates and schedules of elections so that nominations papers are filed and properly scrutinized before the actual election takes place.

(d) To appoint officers for inquiring into disputes relating to electoral arrangements.

(e) To  request  the  President  of  India  or  the  Governor  of  a  State  to  provide adequate staff necessary for the smooth conducting of the election.

(f) To cancel polls in the event of mass rigging or any other irregularities.

(g) Recognition of political parties as National, State or any level, and to allot election symbol thereof.

(h) To advise the President or the Governor on the matter of disqualification of a Member of Parliament or a State Legislature.

PART THREE — Electoral Reforms: An Urgent Need of the Hour

Cry for electoral reforms have been debated right from the beginning of the first general election of Lok Sabha in 1951. However the issue gained momentum in the 1990’s. And with the beginning of the 21st century this has become the central agenda of the Indian political system in general and for the Election Commission in particular. There are various issues involved in electoral reforms. These issues can be outlined broadly as the following:–

1. Change in the First-past-the-post-system,

2. Decriminalization of politics,

3. Funding of elections,

4. Regulation of political parties,

5. Audit and finances of political parties,

6. Conduct and better management of elections,

7. Review of anti-defection law,

8. Simultaneous elections for Union and State legislatures,

9. Allowing of negative polling,

10. Making false declarations in election affidavits an offence,

11. Use of common electoral rolls in the Union and state elections,

12. Decrease  number of registered parties,

13. Increase the amount of security deposits,

14. Not allowing candidates to contest from more than one constituency in an election,

15. Ban on exit/opinion poll results till the final voting is over for the last phase,

Over the last 10 years the demand of electoral reforms have increased manifold. Since 2004 the Congress led coalition government is doing the business at the centre. The next general election is going to happen in 2014. In between the Election Commission has done some marvelous job by registering the young voters between the ages of 18-19 in their respective colleges. This year 2013 the Commission has celebrated the third Voter’s Day on 25th of January. It is also believed that the Commission is going to use SMS alert system in the upcoming Lok Sabha election in 2014.The system uses coded messages to track data of officials on election duty. The system will also help the Commission to monitor a particular booth and information such as time when polling started and voting percentages.

The first and foremost concern of electoral reform is the very basis of our political- representation-process itself. First-past-the-post-system has many loopholes. Multi-cornered contests have become a norm in India rather than an exception due to the increase in the number of smaller and regional parties. There are several instances of victory in assembly elections by a margin less than 100-200 votes. Apart from this anomaly, in most cases, a candidate wins election by securing just 30-35 per cent of the total number of votes polled. Hence he/she can not be deemed to be a choice of popular mandate; nor should he be. To overcome this limitation, this system should be replaced with a two-stage electoral process. In this process, second round of election should take place between the two highest polled candidates, until one of them getting more than 50 per cent of total votes polled.

Criminalization of politics is perhaps the most potent danger our democracy is currently facing. It is very pertinent to ask why tainted person is allowed to contest election; what to talk of making him a minister or giving him a responsible position. On January 12, 2013 the Chief Election Commissioner V.S. Sampath once again raised the demand for a complete ban on contesting elections for those persons against whom heinous crime charges are framed or convicted in a court of law. The very issue came to the fore after a remark made by the Supreme Court that why preferential treatment is accorded to convicted MPs and MLAs as against an ordinary citizen held guilty on a similar count. “The Commission’s view regarding barring criminals from contesting is one of the oldest in the country as early as 1998. About 15 years back, The Commission made the proposals to the government,” the CEC said. He further added, “Not only should those who are convicted, those facing serious criminal charges on heinous affairs also be barred from contesting election. We have been pursuing and hoping for action.” On July 15, 1998 the Commission proposed that for preventing persons with criminal background from becoming legislators against whom charges have been framed by a Court for an offence punishable by imprisonment of five years or more. To ensure that the candidates were not framed in politically motivated cases, the Commission suggested that only those cases in which charges were framed six months prior to an election should be taken into account for that election. As per Section 8 of the Representation of People Act, a candidate is disqualified and debarred from contesting polls if convicted and handed a prison sentence of two years or more. The ban would remain in force from the date of conviction to six years after release from the prison. However if he files an appeal within three months of his conviction, he can still contest an election. The proposals for de-criminalization of politics were reiterated by the EC in November 1999, July 2004 and October 2006.

Recently the issue of funding of elections has also gained momentum. Almost all parties are agreed on increasing the spending limit by a candidate in an election. BJP, BSP and CPI(M) have demanded an increase in the ceiling by referring to the inflation and its impact. On April 17, 2012 the CEC S Y Quraishi said it can be considered only after bringing in financial transparency and internal democracy in political parties. On April 01, 2013 BJP endorsed the Commission effort in its electoral reforms process including making public all donations to political parties. It also maintained that it will abide by any change in rules the poll panel seeks on the issue. “BJP has always been in favour of electoral reforms and always follows rules. Our candidates will be ready to make public their balance sheets, income tax returns and other financial documents as well as donations and gifts to the party,” party spokesperson Prakash Javadekar told reporters. The poll panel has expressed differences with the government’s suggestion that this matter be referred to the Law Commission. The EC wants that it be made mandatory that political parties declare all donations, irrespective of the amount of contribution. The EC had earlier asked the government to modify declaration Form 24A under Representation of  People’s  (RP)  Act.  The  Law  Ministry  had  said  it  had  referred  the  matter  to  the  Law Commission which is looking into amendments required for electoral reforms.

Regulation of Political Parties is another reform which the Commission is vehemently crying for. It is being pleaded that the number of registered political parties be decreased so that the smaller parties, in the case of fractured mandate, are not able to bargain the bigger parties for parochial or narrow political gains. This is also to be noted that smaller parties are more vulnerable to ‘ideological shifts’. The election commission should be given powers to de-recognize smaller political parties on the basis of their performance. Another move to achieve this goal would be to increase the minimum number of primary members that are needed to form a political party. It is also being proposed to increase the security deposit amount to put a check on the number of non-serious candidates contesting union and state assembly elections. The third demand in the series is to stop a candidate contesting election from more than one constituency simultaneously in one election. Further it is also being proposed to use common electoral rolls in the union and state elections. One serious attempt by the Commission to reform the electoral process is to make a person ineligible for contesting election for a minimum of five years if he files false declarations in an election affidavit.

Of late the demand for negative voting or no-voting has gained serious support in the arena of civil society at large. This will allow a voter to express his dissent by rejecting all the candidates contesting in his constituency if he finds none of them suitable to be elected. Currently a large number of people do not go to the polling booth because of their disenchantment with the candidates put up by the political parties. This is reflected in the falling poll percentages. Democracy in India will be strengthened if people participate in large numbers in the electoral process and have a choice to reject all the candidates instead Moreover the noteworthy demand is that an elected representative should be called back if he is unable to perform his duties as MLA or MP. After a certain interval the recall process should start. The nearest defeated candidate during the last election should be declared as the official representative of his electoral constituency if the elected representative is unable to garner a certain percentage of support in his constituency in the repoll. Currently elections in India are held through EVM (Electronic Voting Machine) process. In the EVM there is no option of negative or no-voting. However Rule 49-O of the Conduct of Selection Rules, 1961 states that ” if an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decides not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.” The procedure prescribed under this rule is such that the decision and identity of the elector not voting for any candidate is known to those present in the polling station including the political agents. The Election Commission has thus made a proposal to the government to amend the rules so as to provide for a ‘none of the above’ button on balloting unit of the EVM after the name of the last candidate on the list. This will enable an elector to exercise the option of not voting in secrecy, by pressing the ‘none of the above’ button. This is the latest and most sought for reform the public is demanding. Recently during the various state assembly elections in 2012 and 2013 the civil society has raised this question vehemently. Sooner or later this demand has to be incorporated in the electoral reform process. The apathy and self-centered approach by the majority of representatives towards their constituencies after winning the election has indeed augmented the demand. People at large feel cheated by their elected representatives.

Election Commission is also demanding ban on publication of exit/opinion poll results till voting is over for all phases. To ensure free and fair elections in India, the election commission holds them in different phases so that the available security staff is effectively deployed. Publishing the result of opinion poll on the earlier phases will have an impact on the voting pattern in the subsequent phases. Similarly, the opinion polls that are conducted before the election also influence the voting pattern. Hence there is a need to put a ban on the publication of the results of the exit/opinion polls conducted by various media agencies till all the phases of elections are over.

There is also a demand of online voting. But the then CEC S.Y. Quraishi rejected the idea by saying that “Voting online, technologically is child’s play for us. We are an IT super power Let’s accept that. But we do not see that happening in the near future. Your safety and your integrity is our concern. Someone points a gun at you and asks you to vote for you. We hope that your laptop cannot protect you from that. Secondly, we don’t even trust you. Somebody comes and gives you Rs 5,000 and asks you to vote for him. Till we are able to control that, that (online voting) cannot happen,” he said.

PART FOUR – Conclusion

The question of electoral reforms has raised several eyebrows. In a written reply to the Lok Sabha On November 29, 2102 the Union Law and Justice Minister Ashwani Kumar said, “In view of the complexity of the subject, it is not possible to lay down any rigid time-frame in this regard.” He was asked whether the government proposes to carry out comprehensive electoral reforms. Giving details of the steps taken by government in this regard, Kumar said, “With a view to carrying out comprehensive electoral reforms, a Core Committee was constituted on October 1, 2010 under the chairmanship of Vivek K Tankha, additional solicitor general. “The talking points of the committee included decriminalization of politics, funding of elections, conduct and better management of elections, regulations of political parties, audit and finances of political parties and review of anti-defection law, he added. The committee under the aegis of legislative department and in co-sponsorship of the Election Commission of India conducted seven regional consultations at Bhopal, Kolkata, Mumbai, Lucknow, Chandigarh, Bengaluru and Guwahati, the reply said. The consultations included various stakeholders such as leaders and workers of political parties, legislators, legal luminaries, and representatives of NGOs, eminent persons, civil servants and students.”On basis of the inputs received in these consultations, discussion with all political parties is contemplated,” Kumar said. However the Law Minister had to announce on March 13, 2013 that the “the recommendations of the three- member committee headed by Justice J S Verma on electoral reforms along with observation of the Election Commission of India’s thereon have been forwarded to the Law Commission of India, which is already examining the issue of electoral reforms in its entirety,” Law Minister Ashwini Kumar said. He said the Law Commission has been requested to consider the issue after taking into consideration the reports of various committees in the past, views of the Election Commission and other stake holders and suggest comprehensive measures for changes in the law. The Commission has been asked by the government to give its suggestions by April this year, Kumar said in a written reply in Lok Sabha.”The Law Commission has been requested to give concrete suggestions by April this year. On receipt of the recommendation of the Law Commission, matter will be further examined in consultation with the stake holders,” Kumar said in his written reply to the Lok Sabha.

A very important step in the direction of electoral reform has been taken by the Election Commission. On April 9, 2013 it informed the Supreme Court that it has approved improvised version of EVMs to additionally maintain paper records of votes. It told the court that these EVMs could be used in elections after proper amendments to the election rules and a consensus among the political parties. The commission submitted before a bench led by Justice P Sathasivam that trial of Vote Verifier Paper Audit Trail (VVPAT) in EVMs has been done and approved by the technical committee of experts too. The machines could be used in elections after the Centre approves it and provides funds for its manufacturing. The Commission said that 13 lakh VVPAT machines costing Rs 1,692 crore would be needed for parliamentary polls. “The Conduct of Election Rules, 1961, will have to be amended since the rules approve only two units in an EVM, control unit and ballot unit. The VVPAT system has a third unit where a paper trail would follow each time a button is pressed. This paper receipt would then be deposited in a separate box attached with the machine.”

One very active role in the direction of electoral reforms is being played by active citizens through the process of Public Interest Litigation (PIL). In this regard two PILs concerning the Representation of People’s Act (RPA) have been filed in the Court. The RPA, in a nutshell, “provides for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.” Sections 8.1(a) through 8.1(n) of the RPA list down the disqualification criteria of an elected representative. A quick look at the criminal charges, which about 640 MPs/MLAs boast of on their pre-election affidavits, reveals the overlap between the charges and the aforementioned criteria to be significant. If the wheels of the Criminal Justice System – as applicable to elected representatives – could move faster, a not insignificant number of these MP/MLAs could be disqualified, were they to be convicted of the charges that are listed against them. If you are an elected representative, you can park your derriere in the House even if you have been convicted. How? Just appeal to a higher court and get a stay on the sentence or the conviction.

Case 1: This has been challenged, with Fali Nariman leading the charge. Pursuant to a PIL filed by the NGO Lok Prahari concerning Section8 (4) of the RPA 1951, senior constitutional expert Fali S Nariman has said that this discriminatory provision was the first hurdle in the fight against criminalization of politics and ought to be struck down on the ground that it was in conflict with equality of law guaranteed under the Constitution (Article 14 of the Constitution provides for equality before law – it is time the elected representatives make their acquaintance with the Constitution again). “The Supreme Court put the question to the Centre on 10Jan, 2013, seeking a detailed response from the Union government on the constitutional validity of Section 8(4) of Representation of People Act which allows for
special treatment for lawmakers”.

Case 2: In another parallel development, a bench of Delhi High Court comprising Justice Sanjay Kishen Kaul and Justice Indermeet Kaur, heard the arguments of a PIL that has alleged that INC and BJP have “violated the Representation of People’s Act (RPA) 1951 and Foreign Contribution (Regulation) Act (FCRA) by taking donations from government companies and foreign sources, which is prohibited under both the legislations.” Dr. EAS Sharma (former secretary to the Government of India) and Association for Democratic Reforms [ADR] are the petitioners in this particular case. As this ADR press note states:

a) INC and the BJP have violated Section 29B of the Representation of People’s Act 1951, which categorically prohibits them to take donations from government companies and from any foreign source

b) The donation of huge sums of money made by the Vedanta Group (being a foreign company) to major political parties like INC and BJP is in clear violation of the FCR Act of 1976 and the FCR Act of 2010.

c) The donation of huge sums of money by the public sector undertakings [who are also State within Article 12 of the Constitution] to the political parties is in violation of Section 293A of the Companies Act.

The Delhi High Court, after hearing the petitioners, has asked the Home Ministry and Election Commission of India (ECI) to file their responses within 2 weeks. The Court has also said that the two political parties, INC and BJP, will be called upon to respond only after going through the responses of the Home Ministry and ECI.

Final Thoughts: The current Electoral system holds too many hidden contradictions in its folds for it to be deemed stable and consistent. The most stunning contradiction of it all being, the power to make effective changes and modifications rests with the very same people who stand to lose the most (private gains, private wealth, private power) were such changes to be effected. In light of these contradictions, PILs like these are good news for the citizens, irrespective of which political party one supports; after all, the problem of corrupt and criminal MPs & MLAs, as also of the ills the current political funding mechanisms lead to, is not restricted to only one political outfit. The sooner these reforms take place and mal practices cleaned up, the better it will be for our democracy and the country.