University Institute of Legal Studies

Election Laws Project Report on

Election Commission- A Constitutional Entity

SUBMITTED TO: SUBMITTED BY:

Ms. Umang Garg Harshjit Singh

UILS BA.LLB (HONS.)

PANJAB UNIVERSITY 9TH SEMESTER

Roll no- 66/19
 ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some

respected persons, who deserve my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to thank Ms. Umang Garg
,Election Laws professor for giving me good guidelines for this assignment.

I am overwhelmed in all humbleness and gratitude to exhibit my sincere and

heartfelt obligation towards all the personages who have helped me in this
endeavor Without their active guidance, help and cooperation and
encouragement, I would not have made headway in this project
 TABLE OF CONTENTS:

SERIAL TOPIC
NO.
1. Introduction

2. Election Commmision of India

3. Composition of Election Commission of India

4. Powers and Functions of Election Commission

5. Judicial Review in the Election Commission

6. Conclusion

7. Bibliography
 INTRODUCTION

Election is the process through which people can express their political opinion. They express
this opinion by public voting to choose a political leader. Furthermore, this political leader
would have authority and responsibility. Most noteworthy, Election is a formal group
decision making the process.
Right to vote has been enshrined in Article 326 of the Indian Constitution. The right to vote is
neither a fundamental nor a constitutional right but is merely a statutory or legal right. This
right came into existence because of the constitution and accordingly, is enshrined in it but
the right has been shaped by a statute called the Representation of People Act, 1951.

If your country is democratic then the Elections are very crucial aspect for a country. Chapter
XV of the Indian Constitution deals with the provision of Elections.
Basically, the Election Commission is a permanent and an independent body established by
the constitution of Indian and its role is to become responsible or making sure for conducting
free and fair election in the country. Article 324 of the Indian Constitution provides the
power of superintendence, direction and control of elections to parliament, state legislatures,
the office of president of India and the office of vice-president of Indian shall be vested in the
Election Commission
Since, its establishment in 1950 and till 15th October 1989, the Election Commission had
functioned as a single member body consisting of the chief Election Commissioner. But
further on 16th October 1989, the President of India appointed two more election
commissioners to cope up with the increased work of the election commission, this was done
due to the fact that the voting age had been reduced to 18 years from 21 years.
And in October 1993, the President of India appointed two more Election Commissioner and
since then, to this day, the Election Commission has been functioning as a multi-member
body consisting of three election commissioners. This article deals with the Election
Commission’s powers and functions as well as the flaws which are present in the body.

It is very pertinent to note that the election commission is not concerned with the elections of
panchayats and municipalities in the states. For this, the constitution of India provides for a
separate State Election Commission.
 ELECTION COMMISSION OF INDIA:

The Election Commission is an independent and permanent body which is established by the
Constitution of India to ensure free and fair elections in the entire Country. Several methods
have been adopted by the lawmakers in order to ensure free and fair elections and one of
them is appointing a commission for conducting elections known as the Election Commission
of India.

There are various laws related to the conduct of elections in India. The elections for both the
Centre and the State are conducted differently but the laws governing the conduct of elections
of the Parliament and State Legislature are almost the same. Further, the judicial review of an
election process can’t be done. But it doesn’t mean it gives unfettered power to the ECI. The
decision of the ECI could be challenged by the courts.

❖
Historical Background:

Election Commission was established on 25th January 1950 in accordance with the
Constitution of India. Originally the commission consisted of Chief Election Commissioner
and two Election Commissioners. Thus, demonstrating the major aspect of democracy that is
participation of the citizens of the country itself. The ECI has evolved and updated with time
and has been questioned a lot of times. It has been one of the most crucial body for ensuring
that the elections are being conducted in a manner which is not violative of any
Constitutional principles.
 COMPOSITION OF ELECTION COMMISION:
As per Article 324, the Constitution of India has made many provisions with respect to the
composition of the election commission, these are,

1. The Election commission will consist of the chief election commissioner and any
number of other election commissioners, if any, as per the President of India’s assent.

2. The appointments of the chief election commissioner and any other election
commissioner will be done by the President of India himself.

3. When another election commissioner is appointed then in such cases, the chief election
commissioner will have the authority to act as the chairman of the election commission.

4. The President of India can also appoint regional commissioners as he deems

necessary to assist the election commission, this can be done after consulting with the
election commission.

5. The tenure and the conditions of the work to be done by the election commissioners
and the regional commissioners will be determined by the President of India.

The chief election commissioner and the two other election commissioners have equal
powers and they also receive equal salary and allowances, these are similar to those of a
Judge of the Supreme Court.

Tenure: They hold the office for a period of 6 years or till they attain the age of 65 years,
whichever happens first and they can also resign at any time or can be removed before the
expiry of their tenure.
 POWERS AND FUNCTIONS OF ELECTION COMMMSION:
The powers and the function of the Election Commission have been defined under Article
324(1) of Indian Constitution which are as follows:

“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 shall be
vested in a Commission.”

Administrative Powers

The important responsibility of superintendence, direction and control of the conduct of

elections covers powers, duties and functions of many sorts, these are essentially the
administrative powers of the election commission of India. Article 324 vests many functions
in the Commission which may be powers or duties, essentially administrative and even
judicative or legislative.

Advisory Powers

The Election Commission of India has been vested with this power in the cases where if a
person is found to be guilty of any corrupt practices during an election either by a High Court
in an election petition or by the Supreme Court in an election appeal, the President of India
decides whether such a person should be disqualified for contesting elections in the future or
not and, if so, for what time period. Before taking a decision on the occurrence of such a
scenario, the President of India requests to obtain the opinion of the Election Commission
and may act according to such opinion as per the situation.

Quasi-Judicial Powers

The Election Commission has another important function to perform under the law. All
associations or the bodies of citizens calling themselves as political parties and willingly
wishing to contest the elections under the name and banner of a political party have to get
themselves registered with the Election Commission. Such a function of registration of
political parties by the Election Commission has been held by the Supreme Court to be a
quasi-judicial function of the Election Commission of India.

Hence, the Powers and Functions of the Election Commission include

 To Notify the dates and the schedule of the elections and to scrutinise the nomination
papers.

To prepare and revise electoral rolls and register all the eligible voters.

To determine the areas of the electoral constituencies throughout the territory of India.

To grant recognition to the political parties and assign the election symbols to the
political parties.

To act as a Court for settling disputes which are related to granting recognition to the
political parties and in the allotment of election symbols to these political parties.

Determining the code of conduct to be followed by the parties and the candidates at
the time of the elections.

Appointment of officers for inquiring into disputes related to electoral arrangements.

Preparing a roster for publicity of the policies of the political parties.

Advising the President of India on the matters related to the disqualifications of the
members of the Parliament.

Advising the Governor of a state on the matters related to the disqualifications of the
members of the state legislature.

Cancelling of polls in cases of rigging, booth capturing, or any other irregularity.

Requesting the President of India or the Governor of a State for commandeering the
staff for conducting the elections.

Supervising the machinery of the elections throughout the territory of India and
ensuring fair and free elections in the country.

Advising the President of India on the scenario of President’s rule in the state.

Registering the political parties for elections and granting them the status of a national
or a state political party on the account of their poll performance.

In Election Commission of India v. St. Mary’s School & Ors1, it was held that teachers should
not ordinarily be put on duty of election work on teaching days and within the teaching

1
Appeal (civil) 5659 of 2007.
hours. The non- teaching staff, however, may be put on such duties on any day or at any time,
if permissible in law.

SCOPE OF JUDICIAL REVIEW IN THE ELECTION

COMMISSION.

Basically, Judicial Review has the power which are conferred to Hon’ble High Court and
Supreme Court, to check the constitutionality of the acts of legislature or executive. Election
Commission of India (ECI), is a constitutional body which is responsible to conduct the state
and union elections in India. The power to administer the election of Lok Sabha, Rajya
Sabha, State Legislative Assemblies in India and the offices of the President and Vice
President in the country are under the hands of ECI. The decision of the election
commissions can be challengeable by the petitions in High Court and Supreme Court, but the
judiciary has no power if the election process has begun and judiciary will not intervene in
the actual conduct of the polls. “Election petitions” are only an option through which, the
result of the elections could be reviewed by the judiciary. Moreover, this election petition can
only be filed before the High Court, when the election of Parliament and State Legislatures
are in questions. If the election of President or Vice President are in question, then the
election petition can only be filed Infront of Honourable Supreme Court.

❖
Involvement of Judiciary in electoral cases:

As per Article 329 of Indian Constitution debars any court, to entertain a suit or proceeding
calling in question any election to parliament or the state legislature. The proceedings must be
initiated by an election petition and in such manner as may be prescribed by the statute. Further,
in pursuance of Article 329 (b) of the Constitution, Parliament enacted the Representation of the
people Act, 1951. Part VI of the mentioned act deals with election disputes. As provided in the
Representation of the People (Amendment) Act 1966, Election petitions are triable by High

2
Writ petition- Case no. 2754 of 2015.
Court. The election petitions are now directly heard by the High Court from which an appeal may
be taken to the Supreme Court under Article 132, 133 and 136. Once the polls are competed and
the result are declared, the commission cannot review any result on its own. This can only be
reviewed through the process of an election petition, which can be filed before the High Court, in
respect of elections to the Parliament and State Legislatures. The High Courts of the concerned
states have been conferred with an exclusive jurisdiction to hear election petitions. Any party
aggrieved by the decision of the High Court may file an appeal to the Hon’ble Supreme Court of
India. As per mention above, the election of President and Vice President could not be reviewed
by any other court than the Supreme Court of India.

Article 71(4) provides that the election of a person as President or Vice-President shall not be
called in question on the ground of the existence of any vacancy for whatever reason among
the members of the electoral college electing him.

❖
Incidents that hinder transparency in the election commission:

The term transparency is for a clear and open process, which is understandable and
accountable to the electorate. Transparent procedures encourage participation in and support
of the electoral system. Transparency is the term for a clear and open process, which is
understandable and accountable to the electorate. Transparent procedures encourage
participation in and support of the electoral system. Transparency is essential need to the
electoral process because it eliminates the appearance of impropriety and limits the possibility
of electoral fraud. Incidents are as follows:

1. In one of the incidents, the EC had refused the RTI request, claiming that it can’t disclose
the dissent for granting the clearness given to politicians for violating MCC. Reasoning put
forward by the authorities was that it could potentially endanger the life and physical safety
of a person or assistance given in confidence for law enforcement or security purposes.

2. The electoral bonds were introduced with the Finance Bill (2017). It is like a promissory
note that can be bought by any Indian citizen or company incorporated in India from selected
branches of State Bank of India. The citizen or corporate can then after donate the same to
any eligible political party of his/her choice. The main problem of transparency
accompanied by these electoral bonds is that one cannot make anyone accountable for
the funding that the political parties receive.
 ❖
Do Judicial Interference Guarantee Transparency and Fair Elections:

1. One of the examples where courts have investigated the matter and made the EC realize
that the duty that they are entrusted with. At one of the incidents, the Honourable Supreme
Court summoned representative of EC and expressed their displeasure over the “hate speech”
delivered by BSP supreme Mayawati and UP Chief Minister Yogi Adityanath during their
campaign. Further the EC took action, by barring the two leaders from campaigning for 72
hours and 48 hours respectively.

2. In many cases, the EC might act arbitrarily. The courts hence might use their powers to
combat it. EC’s decision to disqualify 20 members of AAP for holding the office of profit,
was held to be bad in law by the High Court since they were not given the opportunity to be
heard. The case was referred to the EC for a fresh hearing.

•There were cases where judicial interference might cause problems.

The Supreme Court in many cases refused to review the elections matters, third party’s
request to the Supreme Court to review the decision of EC was rejected by the Supreme
Court. EC is a constitutional body. There might be incidents or the cases where the parties
might not be satisfied with the decisions of EC. In this case, it’s not possible that each of such
aggrieved parties applies for the judicial review of the decisions of EC. “Rightly or wrongly,
the EC has decided the issue. You can now challenge it in separate writs,” said the bench led
by CJI Ranjan Gogoi3.

❖
Landmark Judgments:

• INDIRA NEHRU GANDHI VS RAJ NARAIN4.

In this case, Raj Narain was a politician who was standing against Indira Gandhi for elections.
Ms. Indira Gandhi won the elections with a sweeping majority. But Raj Narain filed a case in
court for malpractice. The court held decision in favour of Raj Narain, and hence ordered that Ms.
Gandhi couldn’t continue to be the PM of the nation. Aggrieved by this decision she appealed to
the Supreme Court. However, while the appeal was pending in the Supreme Court, an emergency
was declared by the President due to internal disturbance. Also, during that

3 Stuti Jain “Scope of Judicial Review in the Election Commission”. Ipleaders Publication 2020, available at,

https://blog.ipleaders.in/scope-of-judicial-review-in-the-election-commission/
4 AIR 1975 SC 2299.
period, the 39th amendment was passed, according to which the elections of the President,
PM, Vice- President and speaker of Lok-Sabha were out of the jurisdiction of the judicial
review by courts.

Hence barring the Supreme Court of the jurisdiction to entertain the said matter. Hence, the
legality of the 39th Amendment was challenged in this case. The court held the amendment
to be illegal and arbitrary. The court held that the basic structure of the Indian constitution
must be kept in mind. Judicial review is one of the basic structures. Such an amendment was
a danger to the free and fair election theory on which our country works.

• KM. SHRADHA DEVI VS KRISHNA CHANDRA PANT AND OTHERS5

In this case, an election petition was filed which challenged the election of Shri Krishna Chandra
Pant, held in 1978. 11 votes out of 421 votes were invalidated. Such invalidation was challenged
in the High court. These votes had been cast under the system of proportional representation
using a single transferable vote. The High Court allowed the inspection of only 4 of the 11 invalid
votes, on the ground that the petitioner had given details about the rejection of these 4 votes only
in her election petition. papers, only 2 were considered and it was found that the petitioner still
lost the election. The petitioner appealed to the Supreme Court against this order, where the High
court order was set aside. The Supreme Court was of the view that all 11 of the votes should have
been examined. The Supreme Court held that the petitioner had to offer prima facie proof of
errors in counting and if errors in counting were established, by providing proof of some errors in
respect of some ballot papers, scrutiny and recounting could not be limited to those ballot papers
only and that a recount could be ordered of all disputed ballot papers. The Supreme Court,
therefore, sent the case back to the High Court for the re-examination of the case by a re-scrutiny
of all the 11 ballot papers under dispute.

• ELECTION COMMISSION OF INDIA VS ASHOK KUMAR AND ORS 6

In Election Commission of India vs Ashok Kumar & Ors., While exercising the powers
conferred by Rule 59A of the Conduct of Election Rules, 1961, the Election Commission of
India issued a notification published, according to which the areas where the voting was to be
done by ballot paper, the counting of such votes was to be done by mixing the ballot papers
and not station wise. Writ petitions were filed before the High court against this

5 1982 AIR 1569, 1983 SCR (1) 681

6
AIR 2000 SC 2395
notification, claiming that the counting must be done station- wise. The High court ordered in
favour of the petitioner.

Aggrieved by this order, the ECI filed an SLP in the Supreme Court. The Supreme Court
overturned the order of the High court, claiming that, according to Article (b), the elections
couldn’t be called in question until the process is not finished.

❖
Independence of the Election Commission:

The independence of the Election Commission is the major concern in today’s time, and it
has been challenged from time to time extensively. The major issue that arises is that the
Constitution has not explicitly defined the qualification pertaining to the legal, administrative
and judicial education the members of the Election Commission and also the retired
commissioners are not being debarred from any other appointments further which again lead
to certain sort of biases. there arises a constant need of bringing the social reforms in order to
make the commission even more accountable and independent of any extraordinary pressures
of performing the tasks which benefits the other side. It is important to note that the salary
and allowances of the officers are not being paid from Consolidated Funds.

❖ Flaws in the Election Commission

• The Constitution of India has not specified the qualifications of the members of
Election Commission.

• The Constitution of India has not specified the term of the tenure of the members of
the Election Commission.

• The Constitution of India has not restricted the retiring election commissioners from
any further appointments by the government of India.
 CONCLUSION
Over the decades, the Election Commission of India has conducted a good number of elections in
India and there have been many changes to the electoral reforms to strengthen the democracy and
enhance the elections in India. However, the elections in India have become or are still plagued to
this day. This is due to many reasons, the reasons for such events happening may be, to win
votes, the political parties’ resort to using foul methods or corrupt practices in order to gain an
advantage in the Elections. The Election Commission of India tries its level best to wipe out the
virus of malpractices from its roots. This is done through the usage of the new and improved
technology which is ever growing and developing every day. The Election Commission of India
has taken many steps in the recent past to overcome the corrupt practices that may exist. Through
schemes for use of State-owned Electronic media for broadcasting by Political parties, providing
electors with identity cards, and simplifying the procedure for maintenance of accounts and
filling the same by the candidates, etc.

The decision of the ECI could be challenged by the courts. Also, during the election process,
judicial intervention couldn’t be sought. This is to avoid any further delays of the election
process, because if in case the judicial intervention takes a long time to scrutinize the case and
give its judgements. The courts are the peacekeepers of our country, hence, there are times when
the courts have directed the ECI to improve or to monitor the election processes and to
make sure that the MCC is followed properly. It has been clearly observed that in order to
take charge of the elections, the Election Commission is envisaged to be the only
autonomous body to ensure that they take place in a complete fair manner. However, it has
often been observed that the Commission has been often alleged to have been engaged in
malpractice of the voting machines from time to time. It becomes important to note that if a
body of this sort is being empowered with the task of dealing with the whole procedure of
elections; it should be respected, keeping in mind the Constitutional validity of the same.

The current position can’t continue itself for long as the administrations now and then will
attempt to impact the established office of the Election Commission. It is time that rather than
a minor manner of speaking over the autonomy of the EC some significant change is
presented

with the goal that the bedrock of vote-based system doesn’t shake at its establishments.
 BIBLIOGRAPHY

❖
M Laxmikanth, Indian Polity, pg 42.3-42.6 (McGraw Hill Education India Pvt.
Ltd., (Sixth Edition).
❖ Stuti Jain “Scope of Judicial Review in the Election Commission”. Ipleaders
Publication 2020, available at, https://blog.ipleaders.in/scope-of-judicial-review-in-
the-election- commission/.
❖ Ritika Sharma “Analytical Study of the Election Commission of India”, ipleaders
Publication, 2020. available at https://blog.ipleaders.in/analytical-study-election-
commission-india/.
❖ Aditya Dubey “Election Commission of India”, ipleaders Publication 2019,
available at, https://blog.ipleaders.in/election -commission-india/

❖ https://www.mea.gov.in/Images/pdf1/Part15.pdf
❖ https://www.indiabudget.gov.in/budget2017-2018/ub2017-18/memo/memo.pdf

❖ https://eci.gov.in/files/category/53-proposed-election-reforms/
❖ https://www.civilsdaily.com/story/electoral-reforms-in-india/

❖ https://www.britannica.com/topic/Election-Commission-of-India