A PROJECT ASSIGNMENT ON THE

TOPIC OF

“FUNCTION &POWER OF
ELECTION COMMISION
with ELECTORAL BOND”

Under the supervision of

Dr. Ashok kumar
Professor SLG, CUSB

3rd Semester,BA.LLB(Hons.)
School of Law and Governance

Submitted By:

YUSEER AMAN
(CUSB2213125125)
Subject:-CONSTITUTIONAL LAW II
Section:-A,
Session - 2022-27
 Acknowledgement
I would like to express my special thanks of gratitude to my course instructor Dr. Ashok Kumar
for her able guidance and full support throughtout the completion of my project. Her dedication,
knowledge, positive attitude and keen interest towards her students had made it possible for me
to complete this project in a decent manner.

For this, I am eternally grateful to her.

Thanking You

@theyuseeraman
Table of Contents
Introduction ..................................................................................................................................... 3

CONSTITUTIONAL PROVISION…............................................................................................ 4

ELECTION COMMISSION OF INDIA ........................................................................................ 5

POWERS of ELECTION COMMISSION OF INDIA .................................................................. 6

FUNCTIONS of ELECTION COMMISSION OF INDIA ............................................................ 7

Electoral Bonds & Its Issues ......................................................................................................... 12

 Associated Challenges With The Electoral Bonds...................................................................... 12

Conclusion .................................................................................................................................... 14

BIBLIOGRAPHY ......................................................................................................................... 14
 Introduction

A few days ago, Varun Gandhi, who is proposed to be a Bharatiya Janata Party candidate
from Pilibhit in Uttar Pradesh, made a highly condemnable hate speech against a minority
community in an attempt to communalise the election atmosphere in the country and attempt
to polarise voters on a communal basis. Obviously such an attempt is totally unconstitutional
and also constitutes a serious criminal offence.

The Election Commission, by a unanimous order, advised the BJP not to nominate Varun
Gandhi as a candidate. The BJP leadership has declared that it would defy that advice.

The important question is: what are the powers and duties of the Election Commission in this
situation?

Article 324 of the Constitution provides that the superintendence, direction and control of the
conduct of elections to Parliament are vested in the Election Commission.

In Bhim Singh Vs. Election Commission (1996) 4 S.C.C. 188, the Supreme Court held thus:
“Having due regard to the ground realities we must emphasise that functionaries in any
manner concerned with duties to conduct, supervise and control of free, fair and peaceful
election to the House of People and the legislative assemblies of the States need to adopt a
realistic, pragmatic and flexible approach to ensure that the country shall be
governed in its true secular, socialist, democratic prospective.”

The powers and obligations of the Election Commission to ensure a proper election which is
free and fair, and to maintain a proper atmosphere conducive to such an election, are derived
from Article 324. It can exercise any power which is necessary to achieve this objective even if
the Conduct of Elections Act and the rules made thereunder do not confer such powers
specifically.

This principle has been forcefully established by a Constitution Bench comprising five
judges of the Supreme Court and authored by Justice V.R. Krishna Iyer, in Mohinder Singh
Gill Vs. The Chief Election Commissioner AIR 1978 S.C. – 851.
1

1
. Mohinder Singh Gill Vs. The Chief Election Commissioner AIR 1978 S.C. – 851.
CONSTITUTIONAL PROVISION…

ARTICLE 324. (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 [1] 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.1

(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

(5).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 performanceof the functions conferred on the Commission by
clause (1).

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 shallnot 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 disadvantageafter his
appointment:Provided further that any other Election Commissioneoa RegionalCommissioner
shall not be removed fromofficexcept on the recommendation of the Chief Election
Commissioner.
 ELECTION COMMISSION OF INDIA

The Election Commission of India is an autonomous, quasi-judiciary constitutional body of

India. Its mission is to conduct free and fair elections in India. It was established on 25
January 19501 under Article 324 of the Constitution of India.

The commission presently consists of a Chief Election Commissioner and two Election
Commissioners, appointed by the president. Until October 1989, there was just one Chief
Election Commissioner. In 1989, two Election Commissioners were appointed, but were
removed again in January 1990. In 1991, however, the Parliament of India passed a law
providing for the appointment of two Election Commissioners. This law was amended and
renamed in 1993 as the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Amendment Act 1993. As of 7 April 2011, the CEC is Shahabuddin
Yaqoob Quraishi.

The Chief Election Commissioner can be removed from his office by Parliament with two-
thirds majority in Lok Sabha and Rajya Sabha on the ground of proved misbehaviour or
incapacity. The Election Commission shall consist of a Chief Election Commissioner and
such other Commissioners as the President may, from time to time, fix. Other Election
Commissioner can be removed by the

President on the recommendation of the Chief Election Commissioner. Salary of chief

election commissioner is same as justice of supreme court of India. All three commissioner
have same right of taking a decision. Tenure of commissioners is 6 years or up to age of 65,
whichever is earlier. The Election Commission of India has completed more than 300
elections.

The Election Commission shall have the power of superintendence, direction and control of
all elections to parliament and the state legislatures and of elections to the office of the
President and Vice-President.
 POWERS of ELECTION COMMISSION OF INDIA

The Election Commission Of India enjoys the following powers.

 The Election Commission enjoys complete autonomy and is insulated from any kind of
executive interference.

 The body also functions as a quasi-judiciary body in matters of electoral disputes and other
matters involving the conduct of elections.

 Its recommendations and opinions are binding on the President of India. However, the
decisions of the body are liable for independent judiciary reviews by courts acting on
electoral petitions.

 The Election Commission is responsible for planning and executing a whole amount of
complex operations that go into the conduct of elections, however Election forces and the
Police is deemed to be on deputation to the Election Commission which takes effective
control of personnel, movable and immovable Government Properties it deems necessary
for successful completion of the electoral process

 Apart from conducting elections to representative bodies, the Election Commission has
been on many occasions, called upon by the Courts to oversee and execute elections to
various governing bodies of other autonomous organizations, such as Syndicates of
Universities, statutory professional bodies, etc.
 FUNCTIONS of ELECTION COMMISSION OF INDIA

 The following are the principle functions of the Election Commission of India:

1. Demarcation of Constituencies

 The Electoral Commission, as the authority empowered by the Constitution and the
laws of the land to demarcate the boundaries of constituencies and electoral areas has
to see to it that:

o It is neutral , objective and non-partisan in its approach to the demarcation exercise.

o The appropriate rules and regulations are applied in its demarcation exercises

o The needed resources are procured and applied effectively.

o The staff who undertake the exercise are well trained and adequately motivated in order
to prevent the incidence of bias.

o The exercise is well monitored and co-ordinated. Data collected from the field exercise is
well processed and stored.

o The petitions arising out of the exercise are resolved

o The necessary consultations are made with stakeholders including the Attorney General’s
Department and the Ministry of Local government.

o The necessary instruments giving legal backing to the newly demarcated boundaries are
drafted and put before parliament.

o The newly drawn electoral boundaries are put into effect.

o The necessary linkages are established between electoral boundaries and administrative
boundaries.

2
Election Commission of India-ECI
3

2. Preparation of Electoral Rolls.

 The Electoral Roll

The electoral roll is a list of all people in the constituency who are registered to vote in
Indian Elections. Only those people with their names on the electoral roll are allowed to
vote. The electoral roll is normally revised every year to add the names of those who are
to turn 18 on the 1st January of that year or have moved into a constituency and to
remove the names of those who have died or moved out of a constituency. If you are
eligible to vote and are not on the electoral roll, you can apply to the Electoral
Registration Officer of the constituency, who will update the register. The updating of the
Electoral Roll only stops during an election campaign, after the nominations for
candidates have closed.

 Computerisation of Rolls

In 1998 the Commission took a historic decision to computerise the entire electoral rolls
of 620 million voters. This work has been completed and now well printed electoral rolls
are available. The photo identity card number of the voter has also been printed in the
electoral rolls, for cross linking. The printed electoral rolls as well as CDs containing
these rolls are available for sale to general public. National and State parties are
provided these free of cost after every revision of electoral rolls. Entire country's rolls are
also available on this website.

 Electors' Photo Identity Cards (EPIC)

In an attempt to improve the accuracy of the electoral roll and prevent electoral fraud, the
Election Commission ordered the making ofphoto identity cards for allvoters in the
country in Aug, 1993. To take advantage of latest technological innovations, the
Commission issued revised guidelines for EPIC Program in May 2000. More than 450
million Identity cards has been distributed till now.

3. Recognition of Political parties and allotment of symbols.

 Registration with Election Commission

Political parties have to be registered with the Election Commission. The Commission
determines whether the party is structured and committed to principles of democracy,
secularism and socialism in accordance with the Indian Constitution and would uphold

3
1 Navin Chawla takes over as CEC on Tuesday". CNN-IBN. 20 April 2009. Retrieved 2009-
04-21.
the sovereignty, unity and integrity of India. Parties are expected to hold organisational
elections and have a written constitution.

 Recognition and Reservation of Symbols

According to certain criteria, set by the Election Commission regarding the length of
political activity and success in elections, parties are categorised by the Commission as
National or State parties, or simply declared registered-unrecognised parties. How a
party is classified determines a party’s right to certain privileges, such as access to
electoral rolls and provision of time for political broadcasts on the state-owned television
and radio stations - All India Radio and Doordarshan - and also the important question of
the allocation of the party symbol. Party symbols enable illiterate voters to identify the
candidate of the party they wish to vote for. National parties are given a symbol that is for
their use only, throughout the country. State parties have the sole use of a symbol in the
state in which they are recognised as such Registered-unrecognised parties can choose
a symbol from a selection of ‘free’ symbols.

4. Scrutiny of nomination papers.

o You have filed the nomination paper and other candidates would have also done so. The
next stage in the election process is the scrutiny of nomination papers by the Returning
Officer. The Returning Officer is required by law to hold the scrutiny of all nomination
papers received by him on the date fixed for scrutiny in this election time table issued under
section 30 of the Representation of the People Act, 1951.

o The scrutiny of nomination papers takes place on the day immediately following the last
date for filing nominations. Thus, if today is the last date for filing nominations then
tomorrow will be the date for scrutiny of nominations. But if tomorrow is a public holiday
then the scrutiny of nominations will take place day after tomorrow provided it again is not a
public holiday. In other words, scrutiny of nominations papers cannot be held as pointed out
already on a public holiday.

 By whom scrutiny of nomination papers is held:-

The scrutiny of nomination papers can be held only by the Returning Officer. This function
cannot be delegated by the Returning Officer even to an Assistant Returning Officer. There is
only one exception, that is to say, an Assistant Returning Officer may be authorised by the
Returning Officer to hold the scrutiny of nominations if, and only if, the Returning Officer is
unavoidably prevented from performing the function relating to the scrutiny of nominations
(see the provision to section 22 (2) of the Representation of the People Act, 1951).

 Who may attend scrutiny of nominations:-

According to law only four persons in the case of each candidate may attend at the place
where scrutiny takes place. These four persons are : (1) the candidate himself, (2) the
candidate's election agent, (3) any one of the proposers of the candidate and (4) one other
person authorised in writing by the candidate. Even if you have filed the maximum number of
nomination papers from the same constituency namely four nomination papers and there are
four or more different proposers, even then only one proposer can be present at the scrutiny.
Thus only four persons for each candidate can be present, and if there are, say, for example,
ten candidates who have filed nomination papers from a particular constituency then in all
forty persons can be present at the scrutiny. It will be better for you if the fourth person to be
authorised by you in writing at the time of scrutiny is a lawyer conversant with election law
so
that he may adequately protects your interests at the time of scrutiny. It will also be to your
interests if you yourself can be present at the scrutiny.

 Reasonable facilities for examination of nomination papers:-

The four persons (including yourself) who can be present on your behalf at the time of
scrutiny have a right to have all reasonable facilities for examining the nomination papers of
all the candidates which are taken up for scrutiny by the Returning Officer. This is a valuable
right for you and the three other persons who may be present along with you, namely, your
election agent, one of your proposers and the person authorised by you.

 Objections which may be raised :

You should not raise any flimsy or technical objections in regard to any nomination paper.
Similarly you or the person representing you should oppose any objection raised against your
nomination on flimsy or technical ground. Section 36(4) of the Representation of the People
act, 1951 clearly lays down that the Returning Officer shall not reject any nomination paper
on the ground of any defect which is not of a substantial character. Rule 4 of the Conduct of
Elections Rules 1961 lays down that the failure to complete or defect in completing a
declaration regarding symbols in the nomination papers is not a defect of a substantial
character. Therefore, if any of your opposing candidates raises any objection regarding a
defect which is not of a substantial character you or any of the persons who may be present
on your behalf may oppose it. It has already been pointed out that on the presentation of a
nomination paper the Returning Officer will satisfy himself that the names and the electoral
roll numbers of the candidate and his proposer as entered in the nomination paper are the
same as those entered in the electoral rolls. The Returning Officer may not therefore reject
your nomination paper on the ground of any misnomer or any inaccurate description or
clerical or technical or printing error in regard to your name or the name of your proposer or
any other person or in regard to any place mention in the electoral roll or nomination paper,
etc., provided that such description in regard to any name and place is such as to be
commonly understood. If at the time of scrutiny any objection is raised regarding such
misnomer or inaccurate description etc., you may draw immediate attention to the proviso to
section 33(4) of the Representation of the People act, 1951.

5. Scrutiny of election expense of candidates.

 Limit on poll expenses

There are tight legal limits on the amount of money a candidate can spend during the
election campaign. Since December 1997, in most Lok Sabha constituencies the limit was Rs
15,00,000/-, although in some States the limit is Rs 6,00,000/- (for Vidhan Sabha elections
the highest limit is Rs 6,00,000/-, the lowest Rs 3,00,000/-). Recent amendment in October
2003 has increased these limits. For Lok Sabha seats in bigger states, it is now Rs
25,00,000. In other states and Union Territories, it varies between Rs 10,00,000 to Rs
25,00,000. Similarly, for Assembly seats, in bigger states, it is now Rs 10,00,000, while in
other states and Union Territories, it varies between Rs 5,00,000 to Rs 10,00,000. Although
supporters of a candidate can spend as much as they like to help out with a campaign, they
have to get written permission of the candidate, and whilst parties are allowed to spend as
much money on campaigns as they want, recent Supreme Court judgments have said that,
unless a political party can specifically account for money spent during the campaign, it will
consider any activities as being funded by the candidates and counting towards their election
expenses. The accountability imposed on the candidates and parties has curtailed some of
the more extravagant campaigning that was previously a part of Indian elections
.
 Free Campaign time on state owned electronic media
By Election Commission, all recognised National and State parties have been allowed free
access to the state owned electronic media-AIR and Doordarshan- on an extensive scale for
their campaigns during elections. The total free time allocated extends over 122 hours on the
state owned Television and Radio channels. This is allocated equitably by combining a base
limit and additional time linked to poll performance of the party in recent election.

6. Conduct Of Polls
 Supervising Elections, Election Observers
The Election Commission appoints a large number of Observers to ensure that the campaign
is conducted fairly, and that people are free to vote as they choose. Election expenditure
Observers keeps a check on the amount that each candidate and party spends on the
election.

 Counting of Votes
After the polling has finished, the votes are counted under the supervision of Returning
Officers and Observers appointed by the Election Commission. After the counting of votes is
over, the Returning Officer declares the name of the candidate to whom the largest number of
votes have been given as the winner, and as having been returned by the constituency to the 4
concerned house.

Electoral Bonds & Its Issues

“Here is why the electoral bonds scheme must go”

In less than three years of their introduction, by virtue of the anonymity they offer to
donors, electoral bonds have become the most popular route of political donation.

However, many political experts are of the opinion that electoral bonds in their design and
operation, allow for limitless and anonymous corporate donations to political parties. This
violates the basic tenets of India’s democracy by keeping the knowledge of the ‘right to
know’ from citizens and voters.

Due to this, in the wake of the upcoming State elections, the Association of Democratic
Reforms (ADR) has filed a petition in the Supreme Court, seeking a stay in the electoral
bond. The Supreme Court has reserved orders on the question of whether or not to stay the
electoral bond scheme.

 Associated Challenges With The Electoral Bonds

 A Blow to Democracy: Through an amendment to the Finance Act 2017, the Union
government has exempted political parties from disclosing donations received through
electoral bonds.

o This means the voters will not know which individual, company, or organization
has funded which party, and to what extent.
o However, in a representative democracy, citizens cast their votes for the people
who will represent them in Parliament and have the right to do so on the basis of
full and complete information.
 Compromising Right To Know: The Indian Supreme Court has long held that the
“right to know”, especially in the context of elections, is an integral part of the right to
freedom of expression under the Indian Constitution.

o By keeping this knowledge from citizens and voters, the electoral bonds scheme
violates fundamental tenets of our democracy.
 Against Free & Fair Elections: While electoral bonds provide no details to the
citizens, the said anonymity does not apply to the government of the day, which can

4
. 2 Quraishi new Chief Election Commissioner". The Hindu. 28 July 2010
 always access the donor details by demanding the data from the State Bank of India.

o This implies that the government in power can leverage this information and
disrupt free and fair elections.
 Opposition by Election Commission of India: The Election Commission, in May
2017, objected to the amendments in the Representation of the People (RP) Act, which
exempt political parties from disclosing donations received through electoral bonds.

o It described the move as a “retrograde step”.

 Institutionalizing Corruption: The electoral bonds scheme removes all pre-existing
limits on political donations and effectively allows well-resourced corporations to fund
elections and subsequently paving the way for crony capitalism.

o Further, as the electoral bonds scheme allows even foreign donations to political
parties (which can often be made through shell companies) the prospects of
institutional corruption increase with the electoral bonds scheme, instead of
decreasing.
 Judiciary Acting as an Umpire: One of the most critical5 functions of an
independent judiciary in a functioning democracy is to referee the fundamentals of
the democratic process.

o Electoral bonds have raised questions on the electoral legitimacy of the

government and thus the whole electoral process has become questionable.
o In this context, the courts should act as an umpire and enforce the ground
rules of democracy.
 Transition Towards Civic Culture: India has been working well as a democracy
for nearly 75 years. Now in order to make the government more accountable, the
voters should become self-aware and reject candidates and parties that violate the
principle of free and fair elections.

5
www.electioncommisionofindia.gov.in
https://www.drishtiias.com/daily-updates/daily-news-editorials/electoral-bonds-its-issues
 Conclusion
 The Election Commission of India is an autonomous, quasi-judiciary constitutional
body of India. Its mission is to conduct free and fair elections in India. It was
established on 25 January 19503 under Article 324 of the Constitution of India.

 The commission presently consists of a Chief Election Commissioner and two

Election Commissioners, appointed by the president. We discussed the powers of
Election Commission Of India and the functions of Election Commission Of India as
well.We had a quick look over all the Election Commissioners selected from time to
time.

 It is essential that if democracy is to thrive, the role of money in influencing politics

ought to be limited. Thus, it is imperative that the scheme of the electoral bonds
should be revised.

BIBLIOGRAPHY

Books referred
 THE CONSTITUTION OF INDIA
: P.M. BAKSHI
Publication – Universal law publishing co.

ELECTORAL POLITICS AND GENERAL ELECTIONS IN INDIA
: M. L. AHUJA

 LAW RELATING TO ELECTIONS
: Publication – UNIVERSAL LAW PUBLISHING CO. PVT. LTD.

INDIAN POLITY
: By M Laxmikanth, Mc Graw Hill (7edition).

Websites used :
 en.wikipedia.org/wiki/Election_Commission_of_India
 eci.nic.in
 www.nios.ac.in
 https://www.drishtiias.com/daily-updates/daily-news-editorials/electoral-bonds-its-issues