ECI - In Brief The Election Commission of India (ECI) is a constitutional body responsible for administering elections in India according to the rules and regulations mentioned in the Constitution of India.
- It was established on January 25, 1950, with an aim to define and control the process for elections conducted at various levels: Parliament, State Legislatures, and the offices of the President and Vice President of India.
- Its existence and independence are necessitated by history, which has shown that democratic elections are not free from sabotage.
- Towards this end, it has been empowered to oversee political parties and candidates and take appropriate action in case of violations.
However, In April, in a letter to the President of India, a group of retired bureaucrats and diplomats, in the context of recent incidents, expressed concern over the EC’s “weak-kneed conduct” and the institution “suffering from a crisis of credibility today”. Also, Election Commissioner Ashok Lavasa recently has dissented with the opinion of his colleagues in the Election Commission in five different matters pertaining to alleged violations of the Model Code of Conduct. So it is important to understand under what circumstances did the EC become a multi-member body? What is its procedure when Commissioners disagree? Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and a such number of other Election Commissioners, if any, as the President may from time to time fix”.
Evolution of ECI As A Multi-Member Body
- From the commencement of the Constitution on January 26, 1950 until 1989, the ECI was a single-member body, with only a Chief Election Commissioner (CEC).
- The ECI has expanded into a multi-member commission just ahead of the elections to the ninth Lok Sabha, against the backdrop of differences between the Congress government and CEC.
- Soon after coming to power, the National Front government rescinded the Presidential notification through which ECI was made a multi-member body. Thus, for the next two years, the ECI continued to function as a single-member body.
- The Supreme Court in SS Dhanoa v/s U.O.I (1991) observed that more heads were better than one in a body that had to perform important constitutional functions and that there should be a provision for the transaction of business if the Commission were to be made a multi-member body again.
- The Union government then enacted The Chief Election Commissioner and Election Commissioners (Conditions of Service) Act, 1991, which gave the CEC a status equal to that of a Supreme Court judge whereas ECs were given the status of High Court judges.
- Unhappy with T N Seshan asserting the Commission’s independence, the Congress government headed by P V Narasimha Rao decided to expand the ECI again in 1993.
- The government made the CEC and the ECs equal by giving all three the status of a Supreme Court judge, retiring at the age of 65 years. In other words, all three Commissioners now had equal decision-making powers.
- A new chapter titled ‘Transaction of Business’, containing Sections 9, 10 and 11, was introduced in the Act. These three sections envisaged that the CEC and the ECs would act in such a manner that there was unanimity in their decisionmaking and, in case there was any difference of opinion on any issue, the majority view would prevail.
- ECI has functioned as a three-member body ever since.
What happens if any of the Election Commissioners dissent?
- If some difference of opinion persists even after oral deliberations and discussions, such dissent is recorded in the file. All opinions carry equal weight, which means the CEC can be overruled by the two ECs.
- In normal practice, while communicating the decision of the Commission in executive matters, or in a case of judicative nature under Article 103 and Article 192, the majority view is conveyed to the parties concerned. The dissent remains recorded in the file.
- Separate opinions were recorded by the two ECs (S Y Quraishi and Navin Chawla) and the CEC (N Gopalaswami) in 2009 in the matter of alleged disqualification of Sonia Gandhi.
- However, despite the existence of the provision to take decisions by the majority since 1993, very rarely has dissent been recorded.
Powers of the Election Commission of India
Some of the powers wielded by the Election Commission are as follows:
- The Commission can suppress the results of opinion polls if it deems such an action fit for the cause of democracy.
- The Commission can advise for disqualification of members after the elections if it thinks they have violated certain guidelines.
- In case, a candidate is found guilty of corrupt practices during the elections, the Supreme Court and High Courts consult the Commission.
- The Commission can suspend candidates who fail to submit their election expense accounts timely.
- The EC could separately file a complaint with the police under IPC provisions.
- The court can refer charges of corrupt practices to the President, who can seek the views of the Election Commission. The Election Commission can advise barring the individual from casting his/her vote for six years.
- In 1999, Bal Thackeray was banned by the EC from casting his vote and contesting elections for six years with effect from 1995.
Note: For more powers of ECI, refer the box of MCC below. Read Also: Election Commission of India (ECI) Nature of the Powers : Defined By Judiciary
- In Mohinder Singh Gill & Anr vs The Chief Election Commissioner and Others (1977), the Supreme Court ruled that “Article 324, vests vast functions in the Commission, which may be powers or duties, essentially administrative, and marginally, even judicative or legislative”.
- It was observed in M.S Gill's case that the framers of the Constitution took care to leave the scope of residuary power to Commission, foreseeing the infinite variety of situations that may emerge from time to time in such a large democracy as ours.
- SC had observed that “where the existing laws are absent, and yet a situation has to be tackled, the CEC must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner.”
The Election Commission (EC) lately, also has come under intense scrutiny for its inability to take swift action against those violating the Model Code of Conduct (MCC).
Model Code of Conduct Philosophy
- The Model Code of Conduct (MCC) is a consensus document. In other words, political parties have themselves agreed to keep their conduct during elections in check, and to work within the Code.
- The philosophy behind the MCC is that parties and candidates should show respect for their opponents, criticise their policies and programmes constructively.
- The MCC is intended to help the poll campaign maintain high standards of public morality and provide a level playing field for all parties and candidates. Evolution
- Kerala was the first state to adopt a code of conduct for elections in 1960.
- Election Commission decided to emulate Kerala’s example and circulate the draft among all recognised parties and state governments for the Lok Sabha elections of 1962.
- However, it was only in 1974, just before the mid-term general elections, that the EC released a formal Model Code of Conduct.
- The MCC has been revised on several occasions since then. The last time this happened was in 2014, when the Commission introduced Part VIII on manifestos, pursuant to the directions of the Supreme Court.
Coverage of MCC
- The Code prohibits political parties or candidates from aggravating existing differences or creating mutual hatred between different religions, castes and communities.
- It bars candidates and parties from criticizing leaders or workers on their personal life.
- No appeal to caste or communal feelings for securing votes is allowed under the Code.
- It forbids ministers from using official machinery for election work and combining official visits with electioneering.
Features of MCC
- MCC is not a legally enforceable document, and the Commission usually uses moral sanction to get political parties and candidates to fall in line.
- However, certain provisions of the MCC may be enforced by invoking corresponding provisions in other statutes such as the Indian Penal Code (IPC), 1860 and the Representation of the People (RP) Act, 1951.
- MCC comes into force as soon as the election schedule is announced, and stays in force until the election process is completed.
Powers of EC under MCC
- The EC has devised several mechanisms to take note of the offences, which include joint task forces of enforcement agencies and flying squads. The latest is the introduction of the cVIGIL mobile app through which audio-visual evidence of malpractices can be reported.
- The ECI can issue a notice to a politician or a party for alleged breach of the MCC either on its own or on the basis of a complaint by another party or individual.
- Once a notice is issued, the person or party must reply in writing — either accepting fault and tendering an unconditional apology or rebutting the allegation. In the latter case, if the person or party is found guilty subsequently, he/it can attract a written censure from the ECI.
- The ECI can take a range of actions in case of violation of the Code, including censure, advise or pull up the person found violating it, imposition of fine, filing of FIR that leads to imprisonment, or even cancelling the polls in that constituency.
- The Model Code of Conduct, which is routinely invoked, is more spirit, less letter - primarily, a moral and ethical restraint on parties in the poll fray. Yet, it is also true that the EC has, in the past, used its subtle powers to greater effect.
- Moral authority of MCC should not be underestimated even if the ultimate punishment under the model code is advice, warning, censure or reprimand. Its contribution towards forming public opinion is firm.
- ECI must not hesitate to resort to its extraordinary powers under Article 324 of the Constitution to impose the MCC.
- Law Commission of India in its report on Electoral Reforms in 2015 recommended that the ECI should impose restrictions on advertisements for up to six months prior to the date of expiry of the House/Assembly.
Should MCC be made legally enforceable?
EC has argued that making the Code legally enforceable would be self-defeating, because any violation must be responded to quickly and this will not be possible if the matter goes to court. However, “statutory backing should be given to some of the more important provisions of the MCC such as the use of government funds for party political advertising.
Essential Electoral Reforms Required
Making ECI More Effective & Powerful
- Collegium system of appointment of ECs- ECs are appointed unilaterally by the government. Appointments should be done through a broad-based consultation, as in other countries.
- Constitutional protection for all members of the Commission - The present constitutional guarantee is inadequate and requires an amendment to provide the same protection and safeguard in the matter of removability of Election Commissioners as is available to the Chief Election Commissioner.
- Independent Secretariat For The Commission - An independent Secretariat will enable the Commission to choose and appoint officials considered suitable by the Commission without any interference from the executive.
- Budget Of The Commission To Be 'charged' - A charged budget would be a symbol of the independence of the Commission and will secure its unconstrained functioning.
- Rule Making Authority To Be Vested In Election Commission - The present framework of RPA Act 1950 and 1951 empowers the Central Government to make rules after consultation of the Election Commission (Central Government is not bound to accept such views or recommendations of the Commission).
- De - Registration Of Political Parties - Many political parties get registered, but never contest election. Such parties exist only on paper. The possibility of forming political parties with an eye on availing the benefit of income tax exemption also cannot be ruled out. It would only be logical that the Commission which has the power to register political parties is also empowered to de-register in appropriate cases.
Better Regulation of Political Parties & Candidates
- Making Of Any False Statement Or Declaration Before Authorities Punishable - In order to discourage motivated false statements before the election authorities, it would be useful to have a provision in The Representation of the People Act, 1951.
- Restriction On The Number Of Seats From Which One May Contest - Law must be amended to provide that a person cannot contest from more than one constituency at a time for conduct and better management of elections.
- De - Criminalisation Of Politics - Persons charged with cognisable offences should be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question.
- Deter The Candidates From filing False Affidavits - To tackle the menace of wilful concealment of information or furnishing of false information and to protect the right to information of the electors, punishment under section 125A must be made more stringent.
- Internal democracy in political parties- Provisions should be made to introduce inner-party democracy within the political parties. This should include mandatory secret ballot voting for all elections for all inner party posts and selection of candidates by the registered members, overseen by ECI
- Institutionalization of political parties- Need for a comprehensive legislation to regulate party activities, criteria for registration as a national or State party, derecognition of parties.
Curbing the Use of Money Power
- Adjournment Of Poll Or Countermanding Of Election On The Ground Of Bribery - On account of increasing incidents of misuse of money in elections, there should be a provision in The RPA Act, to deal with such cases. In some cases, using its plenary powers under Article 324 resorted to cancellation of the election process.
- Tax Relief For Political Parties - There could be cases where political parties could be formed merely for availing of provisions of income tax exemption. Provisions for exemption of Income Tax should be made applicable only to political parties that contest elections and win seat(s) in the Parliament or Legislative Assemblies.
- Compulsory Maintenance Of Accounts By Political Parties - Political parties are major stakeholders in a democracy and they should be accountable to the public. This will ensure transparency and empower people to make informed decisions about electing their representatives.
- Accounting And Auditing Report Of Political Parties - Accounting and auditing standards would help political parties to maintain uniformity in presentation of financial statements, proper disclosure and transparency of their accounts. ● Maintenance Of Separate Bank Accounts By Each Contesting Candidate For Poll Expenses - To ensure better accountability, laws relating to election expenditure need to be amended.
- Ceiling Of Campaign Expenditure By Political Parties - There is no limit on the campaign expenditure by political parties. Apart from ensuring level-playing field for all political parties, it will also control the money power used during election by political parties and their allies.
- Declaring the source of income of the candidate and spouse - It would serve the interests of transparency and the right of electors to obtain information about their candidates for them to make an informed choice of their representative.
- Use Of Totalizer For Counting Of Votes - As per the present provisions votes in the EVMs are to be counted polling station wise, which leads to situations where voting pattern in various localities/pockets become known to everyone. This can result in victimization and/or discrimination and intimidation of electors of particular localities. Thus, provisions for counting of votes of a group of EVMs taken together using Totaliser should be made in The Conduct of Elections Rules, 1961.
- Section 126 Of The Representation Of The People Act, 1951- Amendment that is required to be made in the Act is to include 'print media' under the present provision since the current framework only includes display by electronic media.
- Ban On Opinion Polls - There should be a restriction/regulation on publishing the results of opinion poll surveys before the elections like the Exit Polls.
- Prohibit Publication Of Advertisements By Political Parties In Print Media - Section. 126 of RPA Act must be amended to prohibit publication of advertisements by political parties in print media also (as in electronic media) during the period of 48 hours before the close of poll to allow the voters to arrive at an unprejudiced opinion
- Paid News In Connection With Elections - Paid news plays a vitiating role in the context of free and fair elections therefore an amendment should be made in RPA Act, to provide therein publishing and abetting the publishing of 'paid news' as an electoral offence.
Note: These kinds of polls aim at predicting the actual result on the basis of the information collected from the voters.
Opinion poll - It is a kind of human research survey which is conducted to find out the public opinion before the elections. It is a way in which through a scientific survey the views of a particular group of people can be ascertained. Exit Poll - Unlike Opinion Poll, Exit Poll is a post-election poll which is conducted just after a candidate walks out after casting his or her vote. The Representation of the People Act under section 126A bans conducting and disseminating results of exit polls during the period starting from commencement of polls till the completion of polls in all phases.