Chapter 39: ELECTION COMMISSION

• While the Constitution lays down the procedure for the election of the President and the Vice-.President, the procedure for election to the Legislatures of the Union and the States is left to legislation, the Constitution Itself providing certain principles. These principles are-




• There is no provision for communal, separate or special representation. There shall be one electoral roll for every territorial constituency for election to either House of Parliament or to the State Legislature and no person shall be excluded from such roll on grounds only of religton, race, caste, sex or any of them




• The election shall be on the basis of adult suffrage, i:e., every person who is a citizen of India and who Is not less than 18, years of age shall be entitled to vote at the election provided he is not disqualified by any provision of the Constitution or of any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime, or corrupt or illegal practice




• Subject to the above principles and the other provisions of the of Constitution, the power to make laws relating to all Legislature matters In connection with the election not only to the Houses of Parliament, but also to the Houses of the Legislature of a State belongs to the Union Parliament




• The State Legislature has; however, a subsidiary power in this respect.




• It can legislate on all electoral matters relating to the State Legislature insofar as such matters are not covered by legislation by Parliament.




• The laws of the State Legislature shall, in other words, be valid only if they are not repugnant to laws made by Parliament and, of course, to the provisions of the Constitution




• Parliament has enacted the Representation of the People Acts. 1950. 1951 as well as the Delimitation Commission Acts, 1962, 1972, to prescribe the mode of election, and the formation and delimitation of the constituencies relating to election

• The procedure prescribed by these Acts is voting based on single member territorial constituencies.




• While proportional representation has been prescribed fer election to the office of the President and the Vice-President, that system has not been adopted for election to the Legislature of the Union and the States.




• Disputes are bound to arise in the matter of such a big-scale elections on various points, such as, whether the procedure for election was properly followed or whether any candidate returned as member suffered from any disqualification under law or the Constitution, or whether a candidate who ought to have been returned has been, in fact, declared not elected.




• For the decision of such disputes, the Constitution provides that the ordinary courts of the land will have no jurisdiction and that any question relating to an election can be agitated only by an election petition, as provided for by law.




• Under the Representation of the People Act, as it stood at the end of 1996, the power to decide an election petition is vested In the High Court, with appeal to the Supreme Court,




• By Art 323B of the Constitution, as inserted by the Constitution (42nd Amendment) power has been conferred on the appropriate legislature to set up a Tribunal for the adjudication of disputes relating to elections




• In such law led to the exclusion of all Courts (save that of the Supreme Court under Art 136), to entertain any such matter.




• In short, when any such law is made in exercise of this power, the High Court will cease to have any jurisdiction over election disputes; they will be determined only by the Administrative Tribunal set up by law, with appeal from the decision of such Tribunal to the Supreme Court by special leave




• Art. 71 of the Constitution, the exclusive forum for adjudicating Special disputes relating to the election of the President and Vice-President is the Supreme Court




• There is no special provision for the Prime Minister or the Speaker of the House of the People so that any dispute relating to election to these is to be determined only by an ejection petition before the High Court, according to Art. 329(b).

Description

It is a permanent and independent body formed to ensure free and fair elections in the country under Article 324. EC conducts elections of office of president, vice president, parliament and state legislatures.  Elections of panchayats and municipality are handled by state election commissions formed under 73^rd amendment.

Composition:

It is a multi member body of chief election commissioner [C.E.C] and as many commissioners as the president determines. Both are equal in powers and duties and removal procedures similar to judge of SC.

President can also appoint regional election commissioners after recommendation of C.E.C. The matters / decisions of election commission are determined by majority.

Term of office is 6 years or till age of 65.

The term is decided by the president.

They can resign by writing to president and can be removed by president too but the removal process is same as judge of Supreme Court. Grounds for removal are incapacity or proved misbehaviour.

Any other election commissioner can be removed from office only after recommendation of CEC.

Flaws:

1. Constitution doesn’t prescribe qualifications for members of the EC.
2. Term of the members of EC isn’t specified.
3. They are not debarred from future appointments after retiring or resigning.
4. Election commissioners aren’t constitutionally protected with security of tenure.

Election commission has decided to delist 200 non serious parties that have not contested any elections since 2005 and could be only created for money laundering operations. The EC has no power to deregister registered political parties.

EC has also recommended that political parties declare donations received below Rs. 20000 and the identity of the donor should be maintained. But these recommendations were ignored.

Powers and functions:

1. Determine areas of territorial constituencies with consultation of delimitation commission.
2.  Prepare and revise electoral rolls
3. Notify dates of elections, scrutinise nominations, allot symbols to political parties and recognise them. Grant status of national or state parties.

     National Party:

A)  If it secures six per cent of valid votes polled in any four or more states at a general election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four seats in the Lok Sabha from any state or states; or

B)  If it wins two per cent of seats in the Lok Sabha at a general election; and these candidates are elected from three states; or

C)  If it is recognised as a state party in four states.

     State Party:

·         If it secures six per cent of the valid votes polled in the state at a general election to the legislative assembly of the state concerned; and, in addition, it wins 2 seats in the assembly of the state concerned; or

·         If it secures six per cent of the valid votes polled in the state at a general election to the Lok Sabha from the state concerned; and, in addition, it wins 1 seat in the Lok Sabha from the state concerned; or

 ·       If it wins three per cent of seats in the legislative assembly at a general election to the legislative assembly of the state concerned or 3 seats in the assembly, whichever is more; or

 ·       If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to the state at a general election to the Lok Sabha from the state concerned; or

 ·       If it secures eight per cent of the total valid votes polled in the state at a General Election to the Lok Sabha from the state or to the legislative assembly of the state. This condition was added in 2011.

     National party get an exclusive symbol for use throughout the country. State party gets to use a symbol exclusively throughout the state / states.

     Miscellaneous

• Advice president, governor on question of disqualification of members of legislatures.
• Cancel polls in event of rigging.
• Advice president on whether elections can be held in the state so that presidents rule can be extended beyond one year. Such advice is binding on him.

At state level, chief electoral officer is appointed after consulting the state government. District collector is district returning officer. He appoints returning officer for each constituency and presiding officer for each booth.

Simultaneous Organization of Polls

Simultaneous Elections: Salient Features and Drawbacks

The country has elections in some part or the other throughout the year. This causes wastage of manpower and monetary resources. Paramilitary has to be deployed for security, government officers have to do poll duty wasting manpower, model code of conduct is enforced making policy making difficult. Therefore the PM suggested holding simultaneous elections at central and state level to reduce this wastage. Subsequently NITI Aayog has created a study based on which it commented that such a step would need curtailing of the terms of state assemblies by 3 months to a year while some might need to be extended.

Since independence till 1970 simultaneous elections were a practice. But in 1970’s there were dissolution of state assemblies before they completed their 5 year term. This became a norm soon as the Central government changed it dissolved the assemblies of its opposition. Vendetta politics became common. Other factors were weak coalitions, defection and emergencies at National level due to War and Internal disturbances. All these led to disruption in the schedule of Central and State elections.

For simultaneous elections, electoral norms will have to be strengthened to prevent dissolutions of state assemblies in arbitrary manner. The coalition partners will have to remain in the government and prevented from withdrawing support midway. There should be checks to ensure that withdrawal of support would mean seeking mandate again [This was suggested by Administrative Reforms Commission].

Supreme Court Judgment on Representation of Public Act

Religion, race, caste, community or language shall not be allowed to play any role in the electoral process. The candidate may lose his election if these matters are referred to during the campaign. Thus the reference to the voter’s identity too is now illegal. Although the intentions of this judgment are great it also has some counterpoints:

1. It is insensitive to the history of political mobilization and social reality of the country. The Constitution recognizes the position of religion, language, caste and race as defining characteristics of a person. These defining characteristics too are regarded as the reasons for discrimination. Therefore it has various safeguards to protect these minorities. Political mobilization was made on these grounds and has been successful e.g Dalit movement or the Jat/Patidar/Maratha rallies. Declaring these activities as illegal would increase dissent against the State.


2. Since the judgment doesn’t clarify what kind of appeals shall be treated as religious appeals or what speeches does the prohibition apply too or can a single reference too be a ground for disqualification.


3. Since RPA is applied after the election the ruling can be used to overturn a mandate based on fuzzy interpretation of what is a religious appeal.


4. The judgment also outlaws political parties like Akali Dal, AIMIM that were created after political mobilization in name of religion.


5. Campaigners can evade this judgment by making the same religious claims but giving them a historical aspect. E.g: Beef ban can become an argument on basis of Animal husbandry, Temple building can be argued on basis of historical claims.

Steps to clean up political finance

1. Government should ban cash donations to political parties.
2. Parties are under no obligation to disclose donations received under Rs. 20000 from a single source. This affects cleaning up exercise as nearly 70%-100% of funds are undisclosed by parties.
3. Tax exemptions could be restricted to only the funds that are transparently disclosed by parties.
4. EC should get the powers to de-register parties that violate norms.
5. Chartered Accountants audit the books of parties and this is hardly an audit as the CA's are chosen by the party. They can be pressurized or lured into hiding the details. So third party audit must be made mandatory.

Exit Polls and the Election Commissions Action.

The Election commission has come down heavily on media for publishing exit polls. Earlier it used to prosecute the media agencies under the Representation of People’s Act that prohibited the actions that sway voters but now it has invoked I.P.C. sections to ask the police to arrest the errant media persons.

This action is of over-zealousness on part of the EC. The media is capable of regulating itself and needs no policing. There are adequate checks and balances to curb any unethical practices in its ranks.

Q. For election to the Lok Sabha, a nomination paper can be filed by (UPSC CSAT 2017)

1. anyone residing in India.

2. a resident of the constituency from which the election is to be contested.

3. any citizen of India whose name appears in the electoral roll of a constituency.

4. any citizen of India.

Ans . C

1. He must be a citizen of India.

2. He must be registered as an elector for a parliamentary constituency. This is same in the case of both, the Rajya Sabha and the Lok Sabha.

Q. Consider the following statements:
1. In the election for Lok Sabha or State Assembly, the winning candidate must get at least 50 percent of the votes polled, to be declared elected.
2. According to the provisions laid down in the Constitution of India, in Lok Sabha, the Speaker’s post goes to the majority party and the Deputy Speaker’s to the Opposition.
Which of the statements given above is/are correct? (UPSC CSAT 2017)

1. 1 only

2. 2 only

3. Both 1 and 2

4. Neither 1 nor 2

Ans . D

1. Candidates must get more votes than others not necessarily 50%+. Anyone can be speaker or deputy speaker irrespective of party.

Q. Consider the following statements: 1. The Election Commission of India is a five-member body. 2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and by-elections. 3. Election Commission resolves the disputes relating to splits/mergers of recognized political parties. Which of the statements given above is/are correct? (UPSC CSAT 2017)

1. 1 and 2 only

2. 2 only

3. 2 and 3 only

4. 3 only

Ans . D

1. It is a three member body that decides the election schedules and resolves disputes of splits and mergers.

Quiz

Score more than 80% marks and move ahead else stay back and read again!