Election Commission

Introduction

The Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country.

Article 324 of the Constitution provides that the power ofsuperintendence, direction and control of elections to parliament,state legislatures, the office of president of India and the office of vice-president of India shall be vested in the election commission.

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Composition Election commission of India:

The constitution provides for the following provisions in relation to the composition of the election commission:

1. The election commission shall consist of the Chief Election Commissioner and a such number of other election commissioners, if any, as the president may from time to time fix.
2. The appointment of the chief election commissioner and other election commissioners shall 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. The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission.
5. 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

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CEC & EC

• Today, the Election Commission has been functioning as a multi-member body consisting of three election commissioners.
• The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.
• In case of difference of opinion amongst the Chief Election Commissioner and/or two other selection commissioners, the matter is decided by the Commission by majority.
• They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier and can resign at any time or can also be removed before the expiry of their term.

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Powers and functions of the Election Commission of India

Administrative:

• • The Commission has been given powers for determining the territorial areas of the electoral constituencies, preparing electoral rolls, notifying the dates and schedules of elections, granting recognition to political parties, allotting election symbols to parties, determine the code of conduct in times of elections etc.

Advisory:

1. • ECI is empowered to advise the President and Governor on matters relating to the disqualifications of the members of Parliament and state legislature respectively.
   • To advise the president whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.
   • It advises the High Courts and Supreme Court in matters related to post-election disputes between candidates and political parties.

Quasi-judicial:

• • It also acts as a court for settling disputes related to granting of recognition to political parties and disputes arising out of the allotment of election symbols to them.

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State Election Commission.

• The Election commission is not concerned with the elections to panchayats and municipalities inthe states. For this, the Constitution of India provides for a separate State Election Commission.
• The Constitution of India vests in the State Election Commission, consisting of a State ElectionCommissioner, the superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayats and the Municipalities (Articles 243K, 243ZA).
• The State Election Commissioner is appointed by the Governor.
• ECI and SECs-

The provisions of Article 243K of the Constitution, which provides for setting up of SECs, are almost identical to those of Article 324 related to the EC. In other words, the SECs enjoy the same status as the EC.

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Recent Developments in Election Commission of India

• The Supreme Court ruled that serving bureaucrats must not be appointed as election commissioners to ensure that the independence of the office of the election commissioner is not compromised.

Supreme Court’s Ruling:

• • Independent persons and not government employees should be appointed Election Commissioners. Giving government employees additional charge as Election Commissioners is a mockery of the Constitution.
  • Directed States to comply with the constitutional scheme of independent and fair functioning of election commissions.
  • If they hold any such office (under the state government), then they have to resign before taking charge of the office of the election commissioner.
  • Ordered all state governments to appoint whole-time election commissionerswho will act independently and fairly.
• A long debate regarding whether the chief election commissioner and election commissioners be appointed by a three-member collegium. The SC is also hearing a PIL regarding the issue.
• • Law Commission’s in its 255th report suggested a collegium to improve appointments, consisting of the PrimeMinister, the Leader of the Opposition and the Chief Justice of India for the appointment of the Election Commissioners.

Present situation:

• • Constitution has not prescribed any method.
  • It is the executive power of the President.
  • The parliament has the power to make law regulating the terms and conditions.
• A petition being filed by Andhra Pradesh government over the issue of the State Election Commission (SEC)postponing the local body elections citing the COVID-19 threat, which questioned the independence of SEC.

In practice, are the SECs as independent as the EC?

• • Although state election commissioners are appointed by the state governors and can only be removed by impeachment, in the last two decades many have struggled to assert their independence.

• ECI in the General Elections, 2019 announced a series of new measures to keep a check on socialmedia to ensure free and fair elections-
  • It directed its state level bodies to appoint nodal officers to keep tabs on the spread of fakenews, hate speech and other unlawful content across social media companies.
  • Internet and Mobile Association of India (IAMAI) coordinated with the ECI to come up with new measures and code of ethics for internet platforms.
  • Increase transparency in campaigning by verification of the identities and locations of all political advertisers, and disclosure of candidates’ social media accounts and expenditure.
  • Pre-certification of political ads by the ECI’s Media Certification and Monitoring Committee to curb misinformation and hate speech by candidates.

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Challenges/Hindrances in functioning and Independence of Election Commission

• Appointment issues:

There are no prescribed qualifications in Constitution and Members are appointed without any defined criteria or processes. Also, at present, the appointment is done unilaterally by the government of the day which is liable to politicization and raises the potential for partisan appointments, thus diluting its credibility.

• Security of tenure: The Constitution has not specified the term of the members of the election commission. Further, Election Commissioners are not given the same level of security of tenure asthat of CEC.
• Post-retirement appointment: The Constitution has not debarred the retiring ElectionCommissioners from taking up an office of profit under the state or joining a political party after retirement.
• Financial autonomy: At present, the budget of ECI is not charged on Consolidated Fund of India which tends to reduce its independence and autonomy.
• Conflict between constitutional and legal powers: The ECI is vested with absolute power under Article 324, but still has to act according to laws made by Parliament and it can not transgress the same. For e.g. Despite being the registering authority for political parties under underSection 29A of the Representation of the People Act, 1951, it has no power to de-register themeven for the gravest of violations.

• Inadequate capacity: The ECI has been found dependent on various government departments in terms of office finances, legal expertise, security personnel and other staff.

• Unable to curb malpractices: Since the ECI doesn’t have necessary powers; it is not able to control criminalization of politics or use of money and muscle power in elections.

• Upholding its credibility: ECI’s credibility in recent times has been questioned owing to allegations like rampant violation of Model Code of Conduct, debates on working of ElectoralVoting Machines, timing of elections and other directions of the commission.

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Suggestion/Way forward

• Give equal constitutional protection for all three-election commissioners as opposed to just the CEC.
• Institutionalize the convention where the senior-most EC should be automatically elevated asCEC in order to instil a feeling of security in the minds of the ECs and that they are insulatedfrom executive interference in the same manner as CEC.
• Reducing the ECI’s dependence on DoPT, Law Ministry, and Home Ministry. The ECI should have an independent secretariat for itself and frame its own recruitment rules and shortlist and appoint officers on its own.
• Its expenditures must be charged upon the Consolidated Fund of India similar to other constitutional bodies such as the UPSC.
• All provisions of Model code of conduct should have legal backing.
• ECI should be given more power with regards to disqualification of members post-election and in case of anti-defection too. ECI is also demanding a new section 58 B in RPA, 1951 to deal with money menace similar to section 58 A which is related to booth capturing.
• The Election Commission needs to be given the powers of de-registering a political party